This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Whether the term "goods, wares and merchandise " includes incorporeal personalty which passes by assignment or by delivery of a written evidence thereof, such as notes, drafts, checks, bonds, stocks and the like, is a question on which there has always been a conflict. The English courts finally held that such forms of property were incapable of delivery and hence not within this section of the statute,1 and this view has been followed in some jurisdictions in the United States. Thus subscriptions to stock in a corporation,2 or a sale of an interest in a partnership,3 or a contract to sell a promissory note,4 are none of them within the statute. In other jurisdictions incorporeal personalty is classed with "goods, wares and merchandise."
1 Flynn v. Dougherty, 91 Cal. 669; 14 L. R. A. 230; 27 Pac. 1080; Brown, etc., Co. v. Wunder, 64 Minn. 450; 32 L. R. A. 593; 67 N. W. 357; Scales v. Wiley, 68 Vt. 39; 33 Atl. 771.
2 Forsyth v. Mann, 68 Vt. 116; 32 L. R. A. 788; 34 Atl. 481; Fox v. Utter, 6 Wash. 299; 33 Pac. 354.
3 McDonald v. Webster's Estate, 71 Vt. 302; 45 Atl. 895.
4 Underfeed Stoker Co. v. Salt Co. - Mich.- ; 97 N. W. 950. 5 Putnam, etc., Co. v. Canfield,
25 R. I. 548; 56 Atl. 1033.
6 See Sec. 682.
1 Humble v. Mitchell, 11 Ad. & E. 205.
2 Rogers v. Burr, 105 Ga. 432; 70 Am. St. Rep. 50; 31 S. E. 438; Des Moines Savings Bank v. Hotel Co., 88 la. 4; 55 N. W. 67; Webb v. Ry.. 77 Md. 92; 39 Am. St. Rep. 396; 26 Atl. 113.
3Sherley v. Sherley, 97 Ky. 512; 31 S. W. 275; Vincent v. Vieths, 60 Mo. App. 9.
4 Vawter v. Griffin, 40 Ind. 593.
Thus a contract to sell a bond and mortgage,5 promissory notes,6 or stock,7 or a chose in action which the assignor is to put in judgment,8 are each within the statute. A contract to resign an office is not a contract for the sale of goods, wares and merchandise.9 If the statute of frauds specifically includes "things in action" incorporeal personalty is thereby included. Thus an option to buy another option for the purchase of stock,10 or a contract to sell stock,11 or land scrip,12 are each within the statute. Even where contracts for the sale of incorporeal personal property in general is held to be within the statute, a contract for the transfer of an interest in a patent-right is not within the statute,13 nor is a contract to share the profits and losses arising out of the sale of stock theretofore owned by one of the parties.14