The statute by these words requires no specific amount to be paid but it does require payment. Consequently a tender is not enough.26 Nor does it suffice that the price remain in the buyer's hands for the seller to draw upon.27 It has been seen that contracts of barter are within the statute.28 It must follow that the payment required by the statute is not necessarily a payment in money. It may be other property.29 This is put beyond doubt in the Uniform Sales Act by the provision that the price may be any personal property.30 So the use of property has been held a payment.31 likewise services.32 If the contract or sale specifies a money price, howif the sale was not completed by the buyer; and if the contract was not performed by the seller, he was to return to the buyer the money advanced together with a like sum as a forfeit on his part. Whether a sum which is termed forfeit money was ever a species of earnest by the common law need not now be investigated, since it has ceased to be of practical importance. It is now considered, that giving something in earnest to bind the bargain, and giving something in payment mean the same thing; that is, a part payment of the price. Benjamin, on Bales Sec. 189; Story on Sales, Sec.Sec. 273,276. So, while in some countries in olden times, 'earnest to bind the bargain' might consist of forfeit money, it is not so now. In modern times, earnest must be a part payment of the price. And, where the parties to a contract put up a sum of money to be forfeited to the nondefaulting party, it is not a part payment, and, therefore, does not take the contract out of the Statute of Frauds."
26Davis v. Phillips (K. B. 1907), 24 T. L. R. 4; Henbey Lumber Co.
27Bowers v. Anderson, 49 Ga. 143. In this case the buyer was obviously simply to remain a debtor. If the buyer became the bailee or trustee of specific money, the cases would be indistinguishable from the analogous situation in regard to goods, supra, Sec. 558.
28 See supra, Sec. 523.
29 Eastern R. R. Co. v. Benedict, 10 Gray, 212; Kuhns v. Gates, 92 Ind. 66; Wallace v. Long, 105 Ind. 522, 526, 5 N. E. 666, 55 Am. Rep. 222; Weir v. Hudnut, 115 Ind. 525, 18 N. E. 24; Howe v. Jones, 57 Iowa, 130; Driggs v. Bush, 152 Mich. 53, 115 N. W. 985, 15 L. R. A. (N. S.) 654, 125 Am. St. Rep. 389; Burton v. Gage, 85 Minn. 355, 88 N. W. 997; Dow v. Wortben, 37 Vt. 1GS; Sharp v. Carroll, 66 Wis. 62, 27 N. W. 832.
30Section 9 (2). Williston on Sales, Sec. 166.
31 Weir v. Hudnut, 115 Ind. 525, 18 N.E.24.
32Wallace, v. Long, 105 Ind. 522, ever, the requirement of the statute would seem not to be satisfied by negotiable paper given for the price until the paper is paid or unless it was taken in absolute payment.33 The buyer's note 34 or check 35 not generally being taken in absolute payment will, therefore, generally not be sufficient. But a negotiable instrument given as absolute payment is sufficient; 36 and so is the return to the seller of a note previously made by him.37 A detriment incurred in reliance on the oral contract, but not part of the price is obviously insufficient.38 The most difficult question of part payment is where the seller is indebted to the buyer on a previous account and contracts to sell, or
526, 5 N. E. 666, 55 Am. Rep. 222; White p. Drew, 56 How. Pr. S3. In Driggs p. Bush, 152 Mich. 53, 115 N. W. 985, 15 L. R, A. (N. 8.) 654, 125 Am. St. Rep. 389, the defendant agreed to sell and the plaintiff to buy certain hay at 310 a ton. The hay was to be baled by the plaintiff and then transported by the defendant to an adjoining town. The plaintiff sent men to the defendant's premises who with hie assent baled the hay, and the plaintiff paid them for the work. The defendant afterward refused to carry out the contract. It was held that the property had not passed to the buyer, and that, therefore, the baling of the hay inured to the benefit of the defendant, and that this benefit received in accordance with the contract was a part payment taking the case out of the statute.
33 A check drawn by the buyer and afterward paid by the bank was held to satisfy the statute in Hunter v. Wetsell, 84 N. Y. 549, 38 Am. Rep. 544. And in Parker v. Crisp,  1 K. B. 481; McLure v. Sherman, 70 Fed. 190, and Logan v. Carroll, 72 Mo. App. 613, a check, though not cashed, was held to suffice. See also Rohrbach v. Hammill, 162 Ia. 131, 143 N. W. 872, where a check was held a payment of purchase money sufficient to take a contract for the sale of land out of the statute; but in Hessberg v. Welsh, 147 N. Y. S. 44, the court held a check on which payment was stopped not part payment in the absence of proof that the check itself was agreed upon as payment, rather than a means of payment
34Krohn v. Bants, 68 Ind. 277; Ireland p. Johnson, 18 Abb. Pr. 392.
35 Groomer p. McMillan, 143 Mo. App. 612, 128 S. W. 285; Bates p. Dwinell, 101 Neb. 712, 164 N. W. 722. (The buyer returned the check without presenting it.) Cf. McLure v. Sherman, 70 Fed. 190, and cases supra, in note 33. A fortiori an order which is not a negotiable bill of exchange is not part payment. Johnson p. Morrison, 163 Mich. 322, 128 N. W. 243.
36 Combs v. Bateman, 10 Barb. 573; and where a check is the agreed mode of payment, even though not strictly absolute payment, it seems sufficient. Summers v. Wood, 131 Ark. 345, 198 S. W. 692.
37 Norton v. Simonds, 124 Mass. 19.
38Where plaintiff orally contracted to buy defendant's stock and defendant agreed to employ plaintiff, that plaintiff gave up his position to go to work for defendant was not earnest or "part payment." Hewson v. Peter-man Mfg. Co., 76 Wash. 600, 136 Pac 1158, 51 L. R. A. (N. S.) 398, Ann. Caa. 1915 D. 346.
Bells, goods, in satisfaction of the claim in whole or in part. The leading case upon this point is Walker v. Nussey,39 where the goods were not delivered and the court held that by the terms of the bargain the old claim was not to be extinguished until the goods should be delivered and that, therefore, there was no payment. Pollock, C. B., said, however: "Had these parties positively agreed to extinguish the debt of £4 odd, and receive the plaintiff's goods pro tanto instead of it, the law might have been satisfied without the ceremony of paying it to the defendant and repaying it by him. But the actual contract did not amount to that, and there has been no part payment within the statute." There seems no reason on principle to question the correctness of this dictum. It has been approved in Vermont 40 and finds support elsewhere.41 But generally it has either been overlooked or not proved convincing in subsequent decisions, for the courts decide, or at least say for the most part, that a mere agreement that the old account should be canceled is not enough.42 This leads to the rather curious result that though as a matter of common law the whole price has been paid by the cancellation of an indebtedness, there has not been any part payment within the statute, because the satisfaction of the price is effected wholly by parol. The statute puts no limitation on the way that the price should be paid and it seems an unnecessary piece of judicial legislation for courts to make the requirements of the statute more stringent than the Legislature has done. This might be expected, however, in New York, in view of the rule laid down by the courts of that State in regard to acceptance and receipt,43 and in other jurisdictions which have followed New York, in that matter. Even though a mere oral agreement to cancel a debt is held insufficient, the surrender of a note representing the buyer's claim is sufficiently tangible to amount to part payment;44 as is indorsement upon a note,45 or an entry on books of account.46 Payment to a third person, in accordance with an agreement made with the seller that the price shall be so paid, is enough,47 and of course payment to the seller's agent is enough; 48 if the agent was authorized to receive it, or if the principal knowing the facts took the benefit of it.49 This has been so held even though a local statute required that authority to enter into a contract required in law to be in writing can only be given in writing.50 Payment to an agent for several sellers who were entitled to share the money paid satisfies the statute as to each of the sales.51 So payments made on a general account and applicable to the price of several lots of goods take all the transactions out of the statute.52
3916 M.& W. 302.
40 Dow v. Worthen, 37 Vt. 108.
41Peake v. Conian, 43 Iowa, 297; Howe v. Jones, 57 Iowa, 130, 8 N. W. 461, 10 N. W. 290; Cotterill v. Stevens, 10 Wis. 422. In the case last cited the arrangement was triangular, the buyer agreeing to assume a debt of the seller's to a third person who assented to the transaction. This novation was held to amount to payment within the statute.
42Norton v. Davison,  1 Q. B. 401; Galbraith v. Holmes, 15 Ind. App. 34, 43 N. E. 576; Gorman v. Brassard, 120 Mich. 611, 79 N. W. 903; Matthieesen v. McMahon's Adm., 38 N. J. L. 536; Artcher v. Zeh, 5 Hill, 200; Walrath v. Richie, 5 Lans. 362; Brabin v. Hyde, 32 N. Y. 519; -
Young v. Ingalsbe, 138 N. Y. App. Div. 587, 122 N. Y. S. 707 (reported in subsequent stages, 151 N. Y. App. D. 375, 135 N. Y. S 939, 208 N. Y. 503, 102 N. E. 590); Milos v. Covaoevich, 40 Or. 239, 66 Pac. 914. In many of these cases, as in Walker v. Nuseey, there was merely an agreement to extinguish the debt later. Lord Hals-bury in Norton v. Davison, uses language similar to that in Shindler v. Houston, 1 N. Y. 261, 49 Am. Dec, 316, that mere words are insufficient to satisfy the statute, though it is perfectly settled in England that mere words may be sufficient, e. g., where the goods are already in the possession of the buyer or where the seller becomes bailee for the buyer. Supra, Sec.Sec. 590,91.
43 See supra, Sec. 563.
44 Norton v. Simonds, 124 Man. 19; Sharp v. Carroll, 6(1 Wis. 62, 28 N. W. 832.
45 Dieckman v. Young, 87 Mo. App. 630.
46Norwegian Plough Co. v. Han-thorn, 71 Wis. 529, 37 N. W. 826.
47Johnson v. Tabor, 101 Mian. 78, 67 So. 366; Brady v. Harrahy, 21 U. C. Q. B. 340. See also Stoddard v. Graham, 23 Bow. Pr. 618.
48 Hawley v. Koeler, 63 N. Y. 114. The limitation which this case seeks to impose on the appointment of an agent by requiring that the agency shall not arise from the same parol agreement which it is sought to validate has been previously criticised. See Sec. 81.
49 But not otherwise. City Drug Co. v. American Soda Fountain Co., 13 Ga. App. 486, 79 S. E. 376.
50Case v. Kramer, 34 Mont. 142, 86 Pac. 878. In this case, an agent orally employed to sell cattle was instructed to require a part payment of the purchase price. The agent procured a purchaser who made a partial payment. It was held, that the contract was valid notwithstanding Civ. Code, Sec. 3085, declaring that authority to enter into a contract required by law to be in writing can only be given in writing.
51 Burhans v. Corey, 17 Mich. 282.
52 Berwin v. Boiles, 183 Mass. 340, 67 N. E. 323.
But payment for a past purchase, though made as an inducement for making a present one, is insufficient.53