131. Bull v. Griswold, 19 Ibid. 631.
132. MacElree v. Wolfersberger, 59 Kan. 105.
These contracts in many jurisdictions cannot be proved unless there is written evidence of them signed by the party sought to be charged, or unless there is at least part delivery and acceptance, or part payment.
It will be noticed at once that this provision of the statute differs from those which have been mentioned above, in two main particulars: first, that it does not apply unless the price reaches a certain amount; and second, it is enforceable though not in writing if there has been a delivery and acceptance of the goods, or part thereof, or payment in whole or part. This provision is not in force in a number of the American States, but in the majority of them it is.133
The original English statute of frauds related to the sale of goods, wares, and merchandise for the price of ten pounds sterling or upwards. In this country, the limitation as to price varies, although the commonest provision is fifty dollars.
For an elaboration of the law as to this subject, see The Law of Sales of Personal Property, in this series.
(c) What amounts to compliance with statute.
The memorandum and signature may be made at any time. The memorandum need not be formal but must sufficiently identify the parties, describe the subject matter and set forth the terms, but the consideration may usually be proved by parol evidence. The signature may be any name intended as a signature either in the body of the writing or written thereunder and made by the party or his agent.
133. See Sales in this series.
We have already seen how the writing and signature need not be made at the time of the formation of the contract, but at any time thereafter.
The entire contract must appear from the writing, except the consideration which in many states may be orally proved. Thus the writing must identify the subject matter, the parties and state the terms; but this may all appear from the roughest sort of a memorandum, as a receipt, and the writing may be in the form of print, typewriting, or lead pencil memorandum.134
The signature is the use by a party or his agent of a name or mark to express his acceptance of the contract. It may be his true name, or any assumed name, or any mark intended as a signature. It need not be at the bottom of the writing, but anywhere therein.
Example 59. John Smith engages in business as "The Novelty Store, Unincorporated." He employs Walter Jones as an agent. Walter Jones, as agent, makes a contract with Harry Wilson which comes within the statute of frauds, reading as follows: "The Novelty Store, Unincorporated, hereby promises," etc., and is not otherwise signed. This is a sufficient signature to bind John Smith, assuming the agent had authority, real or apparent, to make this particular contract for his principal.135
The signature of the party sought to be charged is sufficient. That the other party has not signed is unimportant, if in fact he made the contract. Thus in the above example suppose Harry Wilson sues and is able to produce the above memorandum. He can thereby supply signed, written evidence that Smith made the contract. The purpose of the statute is accomplished.
134. Clason v. Bailey, 14 Johns (N. Y.) 484.
135. United Hardware Furn. Co. v. Blue, 59 Fla. 419.
Memorandum and Signature May Be by Agent. The statute expressly recognizes this, but undoubtedly that would be the implication at any rate.
The agent of one party may be chosen by the other party as his agent for the purpose of making the memorandum and the signature. This is recognized as the rule in two classes of cases:
First: Where the agent of the seller is an auctioneer, such auctioneer, although for all substantial purposes the agent of the seller, is also the agent of the buyer for the purpose of complying with the statute.136
Second: Where the agent of either buyer or seller is a broker, that is, one who makes it his business to bring buyers and sellers together, he is the agent of the one who employs him, but for the limited purpose of complying with the statute of frauds, he is also the agent of the other party.137
Evidence of a contract of sale of personal property which is not in writing and signed may consist in a delivery and acceptance of such property or a part thereof.
The 17th section of the statute of frauds and the sales act does not require signed written memorandum if there is part delivery and acceptance of the property alleged to have been sold. In such a case the statute is no defense although there is no writing.
136. Love v. Harris, 156 N. C. 88, 36 L. R. A. N. S. 927.
137. Clason v. Bailey, supra.
The Delivery. The delivery does not necessarily require a removal, but any surrender of authority over the property in favor of the other, as the delivery of a key or a taking charge and assuming dominion by the buyer pursuant to the alleged contract.138
The Acceptance. Acceptance signifies more than mere receipt. It signifies a receipt accompanied by an intention to retain. Acceptance may be by carrier for some purposes, as to accomplish transition of title, but receipt by a carrier is not acceptance from this standpoint.139
Under the 17th section of the Statute of Frauds a contract of sale is enforcible though there is no writing or delivery where the buyer has given something in earnest to bind the bargain or in part payment.
Another way of satisfying the statute of frauds relating to sales of personal property (the seventeenth section), is in payment in whole or part of the purchase price by the buyer and its receipt by the seller.140 If this is proved this is corroborative evidence of the fact that a contract has been had between the parties although the rest of it must be proved by witnesses.
The entire amount need not be paid; it is sufficient if there be something in earnest to bind the bargain.