The Statute of Frauds, s. 17, and Lord Tenterden's Act, s. 7, have now been replaced by the Sale of Goods Act (Ont. s. 6; U. K. s. 4) which provides:

6. - (1) A contract for the sale of any goods of the value of forty dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the contract or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf.

(2) The provisions of this section shall apply to every such contract, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery.

(3) There is an acceptance of goods within the mean-ing_fl|_this section when the buyer does any act in relation to the goods which recognizes a pre-existing contract of sale, whether there be an acceptance in per-formance of the contract or not.

In the United Kingdom the amount mentioned in sub-s. 1 is 10, and it is provided by sub.-s. 4 that the provisions of the section do not apply to Scotland. In New Brunswick and Nova Scotia the amount mentioned in sub.-s. 1 is $40, as in Ontario, whereas in Prince Edward Island it is $30, and in Alberta, British Columbia, Manitoba, Saskatchewan, and the Territories it is $50.

Action is defined as including counterclaim and set-off (chapter 9).

The section applies only to a contract for the sale of goods, that is "a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration" (see chapter 1, 11). Goods are defined as including all chattels personal other than things in action and money, and including emblements, industrial growing crops, and things attached to and forming part of the land which are agreed to be severed before sale or under the contract of sale. In the Statute of Frauds the expression used was " goods, wares, and merchandises." See chapter 1, 14.

In the United States, things in action are likewise excluded by the definition of "goods" for the general purposes of the "statute, but are included for the purpose of the Statute of Frauds, and the provision of the Uniform Sales Act (s. 4) which corresponds with the section now under consideration begins with the words "A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards, shall not be enforceable by action, unless," etc. Cf. Humble v. Mitchell, 1839, 11 A. & E. 205, 23 R.C. 207, and American notes at pp. 211-12.

The section of the Sale of Goods Act applies to an executory contract to sell (as is made clear by sub.-s. 2, which re-enacts in effect s. 7 of Lord Tenterden's Act quoted in 23), notwithstanding that the goods " may not at the time of such contract be actually made, procured or provided,or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery." The statute does not, however, apply to a contract for work and labour.

In the United States the statutory provision last quoted is qualified as follows (Uniform Sales Act, s. 4) : "but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply." This qualification is intended to reproduce the rule laid down by Shaw C.J., in Mixer v. Howarth, 1838, 21 Pick. (38 Mass.) 205, and by Ames J., in Goddard v. Bin-ney, 1874, 115 Mass. 450. See also the American notes to Lee v. Griffin, 23 R.C. at pp. 196-7.

In Lee v. Griffin, 1861, 1 B. & S. 272, 23 R.C. 191, it was held that where a dentist made two sets of false teeth upon the oral order of A; and A died before the teeth could be fitted, no action would lie against A's executor, the contract being one for the sale of goods. Blackburn J said:

It is clear that there was no sufficient memorandum of the contract within the Statute of Frauds. The other question is, whether the present was a contract for the sale of goods, or for work and labour. In order to ascertain this you must of course, in each case, look at the contract itself. If the contract be such that it will result in the sale of a chattel, the proper form of action, if the employer refuses to accept the article when made, would be for not accepting. But if the work and labour be bestowed in such a manner as that the result would not be anything which could properly be said to be the subject of sale, then an action for work and labour is the proper remedy. An attorney employed to draw a deed is a familiar example of the latter proposition; and it would be an abuse of language to say that the paper or parchment of the deed were goods sold and delivered. . . Here if the teeth had been delivered and accepted, the contract for the sale of a chattel would have been complete. I do not think that the relative value of the labour and of the materials on which it is bestowed can in any case be the test of what is the cause of action; and that if Benvenuto Cellini had contracted to execute a work of art for another, much as the value of the skill might exceed that of the materials, the contract would have been none the less for the sale of a chattel. The following are some of the cases:

Clay v. Yates, 1856, 1 H. & N. 73 (printing book for author: work and labour).

Wolfenden v. Wilson, 1873, 33 U.C.R. 442 (tombstone: sale).

Isaacs v. Hardy, 1884, Cab. & El. 287 (picture: sale).

Canada Bank Note Co. v. Toronto Ry Co., 1895, 22 O. A.R. 462 (printing debentures in special form on paper supplied by printer: sale).

Allis v. Walker, 1910, 21 Man. R. 770 (engine to be installed on premises: work and materials). See also Benjamin, Sale, 5th ed. , 1906, pp. 151 ff.; Willis, Sale of Goods, pp. 64-66; article in 1 L.Q.R. 9 (January, 1885) by Stephen and Pollock.