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.
An important point of difference between the fourth section and the seventeenth section of the statute of frauds is this. The fourth section provides without alternative provision, that the contract or some note or memorandum thereof must be in writing. The seventeenth section provides four courses: (1) a written contract or memorandum; (2) acceptance and actual receipt of the property sold; (3) payment of part or all of the purchase price; (4) payment of earnest. Any one of these four courses complies literally with the statute and makes the contract enforceable. Payment of the purchase price, payment of earnest, and acceptance and receipt, are none of them merely acts of part performance which justify equity in enforcing the contract in the absence of a written memorandum and in disregard of the statute.1 They or any of them constitute compliance with the statute as truly as the written memorandum. Full performance by one2 or both3 of the parties, is a compliance with the statute. Hence it is error to charge that there can be no sale of personalty without a memorandum in writing and refusal so to charge is not error.4 If on the other hand a written memorandum has been made as provided for by statute, no acts of performance are necessary.5
15SchoItz v. Ins. Co., 100 Fed. 573; 40 C. C. A. 556.
16 Sayre v. Mohney, 35 Or. 141; 56 Pac. 526.
17 Wilson v. Samuels. 100 Cal. 514; 35 Pac. 148; McLeod v. Adams. 102 Ga. 533; 27 S. E. 6S0.
18 Wilson v. Samuels,, 100 Col. 514; 35 Pac. 148.
1 See Sec. 717 et seq.
2 Fermont Carriage Mfg. Co. v. Thomsen. 65 Neb. 370; 91 N. W. 376.
3 Lathrop v. Humble, - Wis. -; 97 N. W. 905.
Furthermore, the seventeenth section specifically provides the methods of complying with its requirements. Accordingly other acts intended as performance of the contract are insufficient as compliance with the statute. Preparations by the vendee for receiving the goods,6 or for having them transported by vendor, as furnishing flour sacks in which vendor is to ship the flour sold,7 or trimming the sides of a hay rick, sold with others for delivery by vendor at another place,8 do not prevent the statute from applying. Still less does conduct by the vendor, such as buying goods with which to perform the contract of sale9 prevent the statute from applying. This rule is modified in England by the present statute which provides that acceptance exists within the meaning of the contract where the buyer does any act which recognizes a pre-existing contract of sale whether he accepts the goods in performance of the contract or not. Thus the statute does not apply where the vendee examines the goods, takes a sample and rejects them on the ground that they are not equal to a sample previously given to him with which the goods were to correspond.10
The statute requires acts of the prescribed classes which clearly show the intention of the parties to make the contract which they seek to enforce. Mere words, no matter how clear, cannot satisfy the statute.11 The nature of the written mamo-
4 Williams v. Andrew, 185 111. 98; 56 N. E. 1041; affirming, 84 111. App. 289.
5 Warner v. Warner, 30 Ind. App. 578; 66 N. E. 760; Wade v. Curtis, 96 Me. 309; 52 Atl. 762.
6 Harris v. Rounsevel, 61 N. H. 250.
7 Galbraith v. Holmes, 15 Ind. App. 34; 43 N. E. 575.
8Corbett v. Wolford, 84 Md. 426; 35 Atl. 1088.
9 Bernhardt v. Walls, 29 Mo. App. 206.
10 Abbott v. Wolsey (1895), 2 Q. B. 97.
11 It is said to be definitely settled that "words are not enough, and thai the statute can be satisfied only by something done subsequent randum has been discussed elsewhere.12 The remaining acts specified by this section of the statute will be considered in detail.