55. "Goods, wares, and merchandises" comprehend:
(a) All corporeal movable property.
(b) In the United States, generally (but not in England), incorporeal property, such as shares, bonds, notes, etc.
(c) Fructus naturales and fructus industriales, where the ownership is not to pass until after severance.
(d) Fructus industriales (perhaps) also where the ownership is to pass before severance.
The treatment of this section belongs more properly to a work on the law of sales, and the rules governing its application will be very briefly indicated.1 While it is a part of the statute law of most of the states, in others it has never been enacted or has been repealed, and is not now the law.2
1 See Tiffany, Sales, 35-81.
Although there was doubt in England, to remove which a special statute was enacted, it has been held with us that the statute applies not only to executed contracts of sale, but also to executory contracts, as, for instance, where the goods are not specified, but are to be afterwards obtained by the seller, or selected and set apart to the purchaser.8
'It also applies to sales at public auction as well as private sales;4 and to contracts of barter or exchange.5
A contract for the sale of goods is not taken out of the operation of the statute by the fact that there are other stipulations to which the statute does not apply.6 The contract must be for the sale of goods, and a promise, therefore, by the seller of bonds or other goods to take them back is not within the statute. It is a promise to rescind the sale, not a promise to sell.7 So, also, a contract by which one of the parties is to purchase goods for the other at a certain price, the latter agreeing to receive and pay for them on delivery, is a contract of agency, and not of bargain and sale, and is, therefore, not within the statute.8 Nor is an oral agreement for a trading venture, by which one party agrees to account to the other for half the profits in consideration that the other shall bear half the losses, within the statute.9
2It is not in force in Virginia, West Virginia, Kentucky, North Carolina, and other states. See Odom v. Clark, 146 N. C. 544, 60 S. E. 513. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 81; Cent. Dig. § 140.
3Bennett v. Hull, 10 Johns. (N. Y.) 364; Lamb v. Crafts, 12 Mete. (Mass.) 353; Edwards v. Railroad Co., 48 Me. 379; Franklin v. Long, 7 Gill & J. (Md.) 407; Cason v. Cheely, 6 Ga. 554; Sawyer v. Ware, 36 Ala. 676; Mechanical Boiler-Cleaner Co. v. Kellner, 62 N. J. Law, 544, 43 Atl. 599. See "Frauds, Statute of," Dec. Dig. (Key-No.) §§ 83-86; Cent. Dig. §§ 142-161.
4 Singstack's Ex'rs v. Harding, 4 Har. & J. (Md.) 186, 7 Am. Dec. 669. See, also, ante, p. 112. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 84; Cent. Dig. §§ 154-161.
5 Franklin v. Matea Gold Min. Co., 158 Fed. 941, 86 C. C. A. 145, 16 L. R. A. (N. S.) 381, 14 Ann. Cas. 302. See "Frauds, Statute of," Dec. Dig. (Key-No.) §§ 83-85; Cent. Dig. §§ 142-161.
6 Hanson v. Marsh, 40 Minn. 1, 40 N. W. 841. See "Frauds, Statute of," Dec. Dig. (Key-No.) §§ 83S6; Cent. Dig. §§ 142-161.
7 Johnston v. Trask, 116 N. Y. 136, 22 N. E. 377, 5 L. R. A. 630, 15 Am. St. Rep. 304. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 84; Cent. Dig. §§ 154-161.
8 Hatch v. McBrien, 83 Mich. 150, 47 N. W. 214. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 84; Cent. Dig. §§ 154-161.
9Coleman v. Eyre, 45 N. Y. 41; Green v. Brookins, 23 Mich. 48, 9 Am. Rep. 74. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 84; Cent. Dig. §§ 154-161.
In most states the statute fixes the value of the goods under this section at $50; but in some the value is fixed at a greater or less amount, and in two, at least, all contracts of sale are within the statute.
Where several articles, all of which together exceed, but no one of which alone reaches, the value specified in the statute, are purchased independently at different times, each purchase is a separate contract, and is not within the statute; but it is otherwise if they are all purchased at the same time, in one and the same transaction.10