Sec. 33. Statute Of Frauds No Defense If Payment Has Been Made In Whole Or In Part

If there has been a payment by the buyer the contract is enforceable by or against him though it is otherwise unexecuted and though it is entirely oral.

Example 2. A sells B an automobile for $1200. There is no writing and the automobile has not been delivered, but B gave and A accepted $10 in part payment. Neither party, on being sued, can plead the statute of frauds in defense.

Payment may be in any thing agreed upon as such.11 Payment by one's own note has been held not to be payment; or a mere agreement to apply an indebtedness in part payment.12

Sec. 34. Statute Of Frauds No Defense Where There Has Been Delivery And Acceptance Of All Or Part Of The Goods

A delivery and actual acceptance of the goods or any part of them at the time of making the bargain or before suit is brought is sufficient to enable the party suing to prove the contract though it is entirely oral and no part of the price has been paid.

10. Baldy v. Parker, 2 B. & C. 37.

11. Wier v. Hudnut, 115 Ind. 525.

12. Krohn v. Bantz, 68 Ind. 277; Walker v. Nussey, 16 M. & W. 302.

Note that there must be both delivery by the seller and actual acceptance by the buyer. If the seller attempts to make delivery, but the buyer refuses to accept, the contract cannot be proved unless there has been a part payment or a written memorandum. It is sufficient if the delivery and acceptance is in part only. If articles of a miscellaneous sort were all bought under one contract of sale, the delivery and acceptance of any one of these articles would be a sufficient delivery and acceptance to satisfy the statute and permit the enforcement of the entire contract. But if articles are bought under separate contracts, the performance or part performance of one of these could not be relied on in aid of another.

Delivery and acceptance does not necessarily involve removal of the goods, although that would be the usual case, but in the event of delivery and acceptance without removal there would have to be some act showing clearly that one party meant to deliver, and the other to take control of the property.13

Sec. 35. Statute Of Frauds No Defense Where There Is A Sufficient Signed Memorandum

If there has been no payment and no delivery and acceptance of the goods or any part of them then the statute requires a memorandum signed by the party sought to be charged.

There being no sufficient performance to take away the defense of the statute of frauds, there must be a memorandum signed by the party sought to be charged. Of this it should be noted:

13. Shindler v. Houston, 1 N. Y. 261.

First. The memorandum need not be of a formal character; it may be in the form of a note, letter, receipt, entries in book, telegrams, etc., provided these contain a sufficient memorandum and be signed. It may also consist in a series of papers, if, all together, they go to make up or express one contract.14

Second. That, in most states, the memorandum need not be made at the time the contract of sale is made, but it is sufficient if it be made any time thereafter but before suit is begun. This accomplishes the purpose of the statute, as that is merely for the prevention of frauds and perjuries. It is therefore immaterial when the memorandum was made and signed by the party sought to be charged or his duly authorized agent.

Third. The memorandum must state all the material terms of the contract and leave no material term to be orally proved. All of the contract must be proved by the memoranda. It must state the names of or describe the parties though the name in the signature would be sufficient. It must state the price agreed upon; provided there was a price agreed upon; but if the parties had left the price to inference, then, as the law will under such circumstances imply an agreement to pay a reasonable price, the contract is enforceable. It must describe the subject matter, or refer to it in such a way as to plainly identify it. So all the other substantial terms of the contract must be stated.

Fourth. The memorandum must be signed by the party sought to be charged and need not be signed by the other party. By the party sought to be charged is ordinarily meant the defendant. Unless the statute uses the term "subscribed" instead of "signed" the signature need not be at the bottom of the memorandum but may be any place in the writing, provided it was intended as a signature. Any mark or writing intended as a signature and which can be so proved would be sufficient.15 Thus signature by initial would be sufficient. If the contract consists in several memoranda, they must all be signed, or else those that are signed must make a sufficient reference to the others to identify them.

14. Louisville, etc., Co., v. Lorick, 29 S. C. 533.

Fifth. The memorandum and signature may be made by agent duly authorized for that purpose. Any agent having a special authority to make the bargain, or a large general authority where from the authority to make the particular bargain could be inferred, would also have authority impliedly given therewith to make the memorandum and sign his principal's name thereto. Thus suppose that A orally appoints B general manager of his store, to buy and sell the stock in trade, etc. B would have implied authority to comply with the statute of frauds in purchases and sales.

Sec. 36. What Is A Contract Of Sale Within The Statute

By the Uniform Sales Act, and by the prevailing view adopted by such act, the requirements of the statute are inapplicable where the goods are to be made up by the seller especially for the buyer, and are not suitable for sale to others in the ordinary course of the seller's business.

The original statute of frauds required a signed memorandum, part payment or part delivery in every case of sale of the prescribed amount. It made no distinction as to goods to be made up by the seller specially for the buyer. For instance, suppose a person orders a dentist to make up a set of teeth for him,16 and there being no memorandum, payment or delivery, pleads the statute of frauds. Here is a hard case, for the dentist will have left on hand an article of comparatively little value to him, and none to any one else. The courts in the construction of the law, developed three rules. Some courts said that if the goods were to be made up for the buyer, whether stock goods or not, the contract was one of work and labor and the statute of frauds did not apply; other courts said that if it were to be made up, and in addition, was of a peculiar nature, not readily resellable, as stock ware, then the statute did not apply; and others said that it applied in any event, for it was a sale and therefore within the act; but the matter has now been settled by the Sales Act, which has adopted the second rule. Under that rule, the dentist's customer would have no defense.

15. A printed bill head is a sufficient signature, Goldiwitz v. Kupfer, 141 N. Y. Suppl. 531.

Example 3. A orders dishes to be made up with his monogram thereon. There is no writing, no part delivery and no part payment. The contract is enforceable, being within the exception made by the sales act.16a

16. Lee v. Griffin, 1 B. & S. (Eng.) 272.

16a. Bauscher Bros. v. Gies Estate, 160 Mich. 502, 125 N. W. 420.