Same - Earnest And Part Payment

57. EARNEST. Earnest is something of value given and received to mark the final assent of the parties to the bargain.

58. PART PAYMENT. Part payment may be made at or (unless the statute otherwise requires) subsequently to the time of the contract, either in money or anything of value.

Earnest is money or some gift or token delivered to mark the assent to the bargain.48 The practice of giving earnest was formerly prevalent in England, and, as the term was originally used, it was regarded as distinct from part payment.49 Now, however, the custom of giving something aside from a part of the purchase money "to bind the bargain" has fallen into disuse, and the word "earnest" is commonly interpreted as synonymous with part payment.50

Part payment may be subsequent to the contract,51 unless, as in some states, the statute provides that it must be given at the time of the contract.62 It must be accepted.63 It need not be money,

Townsend v. Hargraves, 118 Mass. 325, 332; Bassett v. Camp. 54 Vt. 232. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 90; Cent. Dig. §§ 162-179.

47 Tansley v. Turner, 2 Bing. N. C. 151; Cooper v. Bill, 3 H. & C. 722; Leonard v. Davis, 1 Black, 476, 17 L. Ed. 222; Boynton v. Veazie, 24 Me. 286; Kingsley v. White, 57 Vt. 565; Brewster v. Leith, 1 Minn. 56 (Gil. 40). See "Frauds, Statute of," Dec. Dig. (Key-No.) § 90; Cent. Dig. §§ 162-179.

48 Brae. 1, 2, c. 27.

49 Benj. Sales (6th Am. Ed.) § 189; Howe v. Smith, 27 Ch. D. 89, 101. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 94; Cent. Dig. § 182.

50 Howe v. Hayward, 108 Mass. 54, 11 Am. Rep. 306; Groomer v. McMillan, 143 Mo. App. 612, 128 S. W. 2S5. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 94; Cent. Dig. § 182.

51 Walker v. Nussey, 16 Mees. & W. 302; Thompson v. Alger, 12 Mete. (Mass.) 428, 435; Marsh v. Hyde, 3 Gray (Mass.) 331. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 95; Cent. Dig. §§ 183-185.

52 Hunter v. Wetsell, 57 N. Y. 375, 15 Am. Rep. 508; Id., 84 N. Y. 549, 38 Am. Rep. 544; Jackson v. Tupper, 101 N. Y. 515, 5 N. E. 65; Kerkhof v. Paper Co., 68 Wis. 674, 32 N. W. 766; Gabriel v. Kildare Elevator Co., 18 Okl. 318, 90 Pac. 10, 10 L. R. A. (N. S.) 638, 11 Ann. Cas. 517; Franklin v. Matoa Gold Min, Co., 158 Fed. 941, 86 C. C. A. 145, 16 L. R. A. (N. S.) 381, 14 Ann. Cas. 302 (Colorado Statute). See "Frauds, Statute of," Dec. Dig. (Key-No.) § 95; Cent. Dig. §§ 183-185.

53 Edgerton v. Hodge. 41 Vt. 076. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 95; Cent. Dig. §§ 183-185.

but may be anything of value, which by mutual agreement is given and accepted on account or in part satisfaction of the price.54 It may, for example, be in the form of a credit on indebtedness of the seller.55 But whatever is relied upon to constitute payment must be accepted as absolute payment, and the delivery of a check does not constitute payment unless it is agreed by the parties that it is to be accepted as absolute, and not merely as conditional payment.56