It is not clear at common law whether a mortgage of goods is to be regarded as within the statute. In jurisdictions where it is held that a mortgage does not transfer title but merely creates a lien, it seems obvious that the statute must be held inapplicable. Even in jurisdictions where a mortgage is held to transfer a title defeasible upon the condition subsequent of payment by the mortgagor, authority points in the same direction.25 In view of the definitions in section 75 of the Uniform Sales Act, it is clear that mortgages are not within the Words "contract to sell" or "sale" in section 4 of that Act.
A contract by which parties agree to acquire and divide or to acquire and sell to third persons, or simply to sell to third persons, property for their joint benefit is not a contract to sell, or a sale, within terms of the statute.26 Similarly an agreement between partners to dissolve the partnership and divide the assets is not within the statute, even though one partner, who has advanced the money with which the assets had been purchased, is by the agreement to have a lien on the property until the other partner pays his share of the debt.27 With such cases should be contrasted a case where the agreement is that one party shall buy goods and, subsequently, resell a share of them to the other. Such a contract is within the statute.28 Where choses in action are expressly included in the terms of the statute the sale of a partner's interest in a business would seem also to require a writing.29 But otherwise such a sale is not within the statute.30 A contract creating an agency to sell goods is not a contract for the sale of goods and is not within the statute.31
24 See infra, Sec. 569.
25Gleason v. Drew, 9 Green!. 79; Alexander v. Ghiselin, 5 Gill, 138; Bogigian v. Hassanoff, 186 Mass. 380, 382, 71 N. E. 789. See also Helfrech, etc., Co. v. Honaker, 26 Ky. L. Rep. 717, 76 S. W. 342. In Cerny v. Pu-ton A Gallagher Co., 78 Neb. 134, 110 N. W. 882, 10 L. R. A. (N. S) 640, a debtor gave a chattel mortgage to his creditor on the faith of a promise by the latter that, if the property when sold at auction did not bring above a certain price, he would bid it in and allow the debtor to sell it at private sale and keep any balance above the debt. This agreement was held not within the statute.
26 Hunt p. Elliott, 80 Ind. 24S, 41
Am. Rep. 794; Colt p. Clapp, 127 Man. 476; Bullard v. Smith, 139 Mass. 492, 2 N. E. 86; Bogigian v. Hasseuoff, 186 Mass. 380, 71 N. E. 789; Buckner v. Reis, 34 Mo. 357; McNealy v. Bart-lett , 123 Mo. App. 68, 99 S. W. 767; Coleman v. Eyre, 46 N. Y. 38; Sanger v. French, 1S7 N. Y. 213, 234, 61 N. E. 979; Treat v. Hiles, 68 Wis. 344, 32 N. W. 617, 60 Am. Rep. 868; Stack v. Roth Bros. Co., 162 Wis. 281, 166 N. W.148,. Ann. Cas. 1918 C. 741. But see Mace v. Heath, 30 Neb. 620, 46 N. W. 918. A fortiori, a contract of agency under which the agent is to purchase goods for the principal is not within the statute. Wiger v. Carr, 131 Wis. 584, 111 N. W. 657, 11L. R.A. (N.S.)650. See also supra, Sec. 489.
A contract by which one person agrees merely to surrender a claim upon goods is not within the statute, for the title in the other person vests in him, not by virtue of a transfer from the adverse claimant, but by virtue of his own original title.32 So where parties having competing executions agree that the property shall be sold under one of them and the proceeds divided, they are not agreeing to transfer title to the property or to their claims but merely to divide the money received from the Bale.33