"Subject to the provisions of this act and of any statute in that behalf, a contract to sell or a sale may be made in writing (either with or without seal) or by word of mouth, or may be inferred from the conduct of the parties." 7
7. Uniform Sales Act, SEC. 3.
Innumerable sales of personal property are made upon the market day by day. The chief end of any mercantile business is to sell its product. Any law requiring sales to be put in any particular form would be senseless and impracticable. Sales may be in writing; may be oral; may be implied; may be any combination of these.
The "statute of frauds," 17th section, requires a written proof if the sale is above a certain amount, and if there has not been performance in whole or part. This subject is discussed in Volume I, but will also be covered briefly here.
By the 17th section of the English Statutes of Frauds, substantially copied by enactment in many of the states, and by section 4 of the Uniform Sales Act, a contract to sell or a sale of goods at a price amounting to or above a certain sum is not enforceable in the courts unless a payment has been made upon the bargain or unless part of the goods have been accepted and actually received by the buyer or unless some memorandum in writing of the contract or sale has been signed by the party sought to be charged or by his duly authorized agent.
Statutes substantially to this effect are in force in the following states and territories: Alaska ($50) ; Arizona ($500) ; Arkansas ($30) ; California ($200) ; Colorado ($50) ; Connecticut ($100) ; District of Columbia ($50) ; Florida (of any amount) ; Georgia ($50) ; Idaho ($200) ; Illinois ($500) ; Indiana ($50) ; Indian Territory ($30) ; Iowa (of any amount) ; Maine ($30) ; Maryland ($50) ; Massachusetts ($500) ; Michigan ($50) ; Minnesota ($50) ; Mississippi ($50) ; Missouri ($30) ; Montana ($200) ; Nebraska ($50); Nevada ($200) ; New Jersey ($500) ; New Hampshire ($33) ; New York ($50) ; North Dakota ($50) ; Ohio ($2500) ; Oklahoma ($50) ; Oregon ($50); Pennsylvania ($500) ; Rhode Island ($500) ; South Carolina ($50) ; South Dakota ($50) ; Tennessee ($500) ; Utah ($200); Vermont ($40) ; Washington ($50); Wisconsin ($50); Wyoming ($50).
The English "Statute of Frauds" was passed to prevent "frauds and perjuries," that is, false testimony in respect to alleged transactions.8 Clearly, if the law requires a plaintiff who alleges a breach of contract of sale to produce written evidence of the contract, signed by the other party, there can be no perjury on his part in that respect, and neither can the other party swear contrary to such written evidence, except to prove it a forgery or fraudulently obtained. The statute also allows, however, the enforcement of a contract of sale when there is no writing, if it has been partly performed by some payment or by delivery and acceptance of some part; for, these things furnish corroborative evidence of the sale alleged.
8. See Volume on Contracts in this series for general discussion of Statute of Frauds.
The following should be observed in reference to this statute:
First: The provision concerns the enforcement and in no sense the validity of the transaction. Therefore, if the contract of sale has been executed, or if the defense is not relied upon by the party sought to be charged, the provision has no application.
Second: The statute does not apply at all if the goods are sold for a less sum than a certain value, this value, differing in different states, as shown above.
Third: That a sale is enforceable notwithstanding there is no writing;
(a) If below the amount named;
(b) If a part payment has been made;
(c) If a part delivery has been made and received;
(d) If a sale is of goods to be specially made up for the buyer.
Fourth: The practical observation should be made that out of the great multitude of cases to which the statute would be a defense, because no compliance therewith, the deal nevertheless goes through as planned, as the parties intend it shall.
This seventeenth section of the statute of frauds has been incorporated in the Sales Act. An important addition has been made respecting sales of goods to be made up to the special order of the buyer, as explained hereafter.
The statutes of frauds of the various states name a certain price at and beyond which sales are to be unenforceable unless the other provisions of the statute are satisfied. To bargains below that price the statute has no application. This price varies in the different jurisdictions.
If a bargain is for less than the price named in the statute, it is enforceable though there is no written memorandum and though there has been nothing paid and no part of the goods delivered. For in sales of small amounts it would be a matter of too great inconvenience to require the formalities required in sales of greater moment, and the law considers that a party will not for the smaller sums be so strongly tempted to commit perjury, or if he does so, the hardship is not enough to overcome other considerations. Accordingly the statute does not include sales which are below a certain amount.
If several articles are purchased at one time and under one contract the statute applies if the aggregate price is of or above the amount named in the statute, although each article was separately priced at an amount below the amount named in the statute. The test would be whether or not the contract was all one contract and not several contracts.9
Example 1. A comes to B's residence and offers B $10 for a chair, $5 for a lamp, $3 for a stool, and $35 for a bookcase. B accepts this offer. He afterwards refuses
9. Mechem on Sales, SEC. 349, 350 to deliver the articles. Nothing has been paid and there has been no memorandum. A statute is in force in reference to sales in sums of $50 and upwards. B can plead this statute in defense, for the contract of sale is all one, having been made at one time and as one transaction.10