If when the contract was made it was contemplated that the seller should make up for the buyer the goods which were the subject matter of the sale, some courts held that this was not a contract of sale within the Statute of Frauds; but other courts held that it was a sale notwithstanding this circumstance and some held that the statute did not apply provided the goods were to be made up to the special order of the buyer and were not otherwise kept in stock.
138. Shindler v. Houston, 1 N. Y. 261.
139. United Hardware Co. v. Blue, 59 Fla. 419.
140. Wier v. Hudnutz, 115 Ind. 525.
If A orders a wagon from B which B is to make up from his own material, is this a sale? It undoubtedly is, and as much so as though the wagon is already made up and taken away by A at the time of the bargain, and the law of sales must be called upon to govern such a transaction. Now the 17th section of the statute of frauds said nothing as to the exclusion of such a transaction from its operation, yet some courts regarding the hardship of the operation of the statute in such cases, especially if the goods were to be made up specially for the buyer, excluded it by construction through the simple device of calling such a contract one of work and labor rather than one of sale. Three rules developed: 141 (1) the rule of those courts which followed the statute literally that such a contract was one of sale and not enforcible if no writing, part payment or part delivery and receipt; (2) the rule that if the goods were to be made up by the seller the statute did not apply; (3) the rule that it did not apply if the goods were to be made up by the seller provided they were made up on the buyer's special order and were not fit for the general market. This question has now been set at rest in this country to a very general extent by the adoption of the Uniform Sales Act. See next section.
The 17th section of the Statute of
141. Goddard v. Binney, 115 Mass. 450.
Frauds has been incorporated in the Uniform Sales Act, which provides specifically that the statute shall apply to all cases whether the goods are to be made up or not unless being ordered to be made up they are not fit for sale to others in the ordinary course of the vendor's trade.
The statute of frauds relating to sales of personal property had been adopted in most of our American States and has been reaffirmed by its inclusion in the Uniform Sales Act; the question presented by the last section has been settled by a definite provision in that act that the statute must be complied with by signed written memorandum, or by part delivery and acceptance or by part payment even if the goods are yet to be made unless they are made up for the special benefit of the buyer, that is, are not stock goods, and cannot be disposed of on the general market.
Example 60. A hotel company orders a lot of dishes to be made up for it by the M. Co., with the monogram of the buyer thereon. There is no written memorandum, no part payment, and no receipt of the goods by the buyer. The statute is not a legal defense.
D. The Parol Evidence Rule.
The parol evidence rule is, that if a contract is reduced to writing, such writing is the evidence of the contract and therefore not subject to contradiction, addition or variance by oral or extrinsic testimony.
Parties reduce a contract to writing either because such is the requirement of the law, or because they desire it to be in that form.
It not infrequently happens that a party to a contract will claim that prior to the execution of his contract or at the time thereof, there were other matters agreed upon which were not set forth in the writing which he now seeks to enforce. For instance, suppose Smith sells a jewelry store to Brown and it is agreed that Brown shall not use Smith's name and shall remove the signs upon the store, and it is so stated in the bill of sale, but, at the time, Brown makes the point that he does not wish to go to the extra expense of new signs right away, and Smith states that while he is unwilling to give Brown the right to use his signs, he will do the right thing and let Brown use the signs for a month. The next day Smith demands that Brown pull down the signs and stop using the name. The parol evidence rule would forbid the proof by Brown that any such an oral agreement was made, for it contradicts the writing that was made between the parties as the expression of their contract. Notice that the parol evidence rule is a rule of exclusion of evidence. If a court considers that evidence which is proffered would violate the parol evidence rule, it will, upon objection by the other side, refuse to admit such evidence in the case. Now, such a rule undoubtedly works injustice in specific instances, but it serves, nevertheless in other instances to prevent the injustice of the proof of collateral agreements that were never made, and preserves the integrity of written evidence, which, but for such rule, would not serve the purpose that the parties and the law intend it shall serve.
Example 61. A by contract in writing agrees to furnish B a certain quantity of cotton upon terms stated. B refuses to receive cotton sent by A upon the ground that A agreed to deliver cotton grown by A upon his own land. A brings suit and B offers this evidence. A objects. The Court refuses to admit it upon the ground that it would add to and vary the terms of the written contract.142