At the present day, earnest as distinguished from part payment is seldom or never given. Formerly a small payment was sometimes made to bind the bargain which was not regarded as part of the price.24 This would perhaps still be binding and satisfy the statute, but the possibility of earnest as distinguished from part payment is now of little practical importance.24a The only question that has arisen in modern times in regard to the meaning of earnest is whether a sum of money deposited with a third person as a forfeit to secure the performance of a bargain, but not to be applied as part payment is earnest within the meaning of the statute. It was held not to be.25 If money v. St. Paul Sash Co., 66 Minn. 449, 69 N. W. 21S; Edgerton v. Hodge, 41 Vt. 676.
24See Bach v. Owen, 5 T. R. 409, where the buyer paid a halfpenny to bind the bargain, and this was held sufficient to transfer the property in the horse which was the subject of the Bale.
24a See Howe v. Hayward, 108 Maw. 64, 11 Am. Rep. 306; Jennings v. Dunham, 60 Mo. App. 635.
25Noakes v. Morey, 30 Ind. 103; Howe v. Hayward, 108 Man. 54, 11 Am. Rep. 306; Jennings v. Dunham, 60 Mo. App. 635. In the latter case the court said, at p. 638: "Originally this 'earnest' wan not necessarily a part payment. It was a custom under the common law, and seems also to have been a custom in other countries than England to give something to bind a bargain. In some countries some act was performed. Story on Sales, Sec. 273. Benjamin states in his work on Sales, Sec. 196, that one species of earnest in the Roman law was a payment of a sum which if the sale was carried out was to be credited on the price, but which carried the understanding that it was forfeit money were deposited with the seller to be applied on the price if the buyer completed the bargain but otherwise to be forfeited, there would, however, seem to be a part payment.