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.
The enforceability of a contract for the sale of chattels when affected by the statute of frauds often depends on whether it is several or inseverable. This question may arise in two ways. First, the separate chattels may each sell at a price below the limit fixed by statute, but the sum total of the price of all the chattels sold may exceed such limit. In this case, if the sales are separate, each sale for a price below the statutory limit is not affected by the statute.1 If, however, the transaction is one entire sale and the price exceeds the statutory limit the statute applies, though separate chattels are sold,2 and though delivery is to be made in installments,3 and though the price of each chattel is estimated separately.4 This is not the rule for testing the severability of contracts for other purposes, such as illegality.5 Second, part of one lot of chattels sold may be received and accepted, or they may be paid for in part. Does this satisfy the statute as to other chattels sold between the same parties? The answer depends on whether the sales amount to one transaction or not. If separate chattels are sold under one contract, any act of receipt and acceptance or part payment which satisfies the statute as to one chattel, satisfies it as to all.6 This is true even though by the terms of the contained for failure to pay interest.3 However, an entire promise to pay in part one's own debt and in part the debt of another has been held enforceable as to the first part of the contract though not as to the second.4
20 Dinkel v. Gundelfinger, 35 Mo. 172.
1 Johnson v. Buchanan, 29 X. S. 27.
2Jenness v. Wendell, 51 N. H. 63; 12 Am. Rep. 48.
3 Standard Wall Paper Co. v. Towns. - X. H. -; 56 Atl. 744.
4Allard v. Greasert, 61 N. Y. 1.
5 See Sec. 509.
6 Garfield v. Paris, 96 U. S. 557; Kaufman Bros. v. Mfg. Co., 78 la. 679; 16 Am. St. Rep. 462; 43 N. W. 612; Weeks v. Crie, 94 Me. 458; 80 Am. St. Rep. 410; 48 Atl. 107; French v. Bank, 179 Mass. 404; 60 N. E. 793; Gilbert v. Lich-tenberg, 98 Mich. 417; 57 X. W. 259; Earl Fruit Co. v. McKinney, 65 Mo. App. 220; Farmer v. Gray, tract delivery is to be made in installments.7 Thus, where A agreed to sell goods to B in a given district as long as B orders such goods and has a sale for them, one order under such a contract if received and accepted takes the entire contract out of the statute.8
If there are separate contracts of sale, acts of receipt and acceptance or of part payment which satisfy the statute as to one contract, do not satisfy it as to the others.9 So a contract to sell stock owned by several persons, made by one purporting, without authority, to act on their behalf, and performed by Joe of the owners, is not taken out of the statute as to an owner who ratified the sale orally but did nothing further.10
Contracts, as to the effect of receipt and acceptance or part payment, may be separate though entered into at the same time.11 On the other hand, successive negotiations for the sale of different chattels may result at one contract of sale.12 The question whether there is one contract or more than one is a question for the jury.13 Thus a finding by the jury that where orders were given at the same time on two separate lists, the contracts were separate, was not disturbed, though it appeared that the orders were placed on two lists instead of one, chiefly for convenience in writing the order.14
16 Neb 401; 20 N. W. 276.
7 Gilbert v. Lichtenberg, 98 Mich. 417; 57 N. W. 259; Beyerstedt v. Mill Co., 49 Minn. 1; 51 N. W. 619.
8 "Each order was not a new contract, but in fulfillment of the old one." Kaufman Bros. v. Mfg. Co., 78 la. 679, 686; 16 Am. St. Rep. 462; 43 N. W. 612.
9 Brown v. Snider, 126 Mich. 198; 85 N. W. 570; McCormick Harvesting Machine Co. v. Cusack, 116 Mich. 647; 74 N. W. 1005; Hershey Lumber Co. v. Lumber Co., 66 Minn. 449; 69 N. W. 215; Tompkins v. Sheehan, 158 N. Y. 617; 53 N. E. 502.
10 Tompkins v. Sheehan, 158 N. Y. 617; 53 N. E. 502.
11 Brown v. Snider. 126 Mich. 198; 85 N. W. 570.
12 Weeks v. Crie, 94 Me. 458; 80 Am. St. Rep. 410; 48 Atl. 107.
13 Weeks v. Crie, 94 Me. 458; 80 Am. St. Rep. 410; 48 Atl. 107; Brown v. Snider, 126 Mich. 198; 85 N. W. 570. "Whether negotiations for separate articles result in one entire contract for the whole, or whether the contract for each remains separate and distinct, may depend upon many circumstances. It raises a question of fact, properly to be passed upon by a jury." Weeks v. Crie, 94 Me. 458, 464; 80 Am. St. Rep. 410; 48 Atl. 107.
14 Brown v. Snider, 126 Mich. 198; 85 N. W. 570 (one order in
If A and B enter into an oral contract for the sale of distinct parcels of realty, at separate prices for each, and the purchaser takes possession of one parcel, such possession takes the contract out of the statute as to the realty taken possession of, but not as to the remaining parcels.15 Still less is a contract taken out of the statute by possession of other parcels of realty taken by other vendees under separate contracts with the same vendor.16 On the other hand, a contract for conveying several parcels at one time for a gross consideration is taken out of the statute by a delivery of the possession of one parcel.17