Under The 17th Section Of The Statute Of Frauds.-Other Contracts Where Writing Is Or Has Been Necessary.-Points Applying To All Simple Contracts.-Assent.Offer And Acceptance.-Consideration Of Contracts By Deed And Of Simple Contracts

I concluded in the last Lecture the consideration of the five cases in which the 4th section of the Statute of Frauds renders it necessary that a contract should be reduced into writing. There are, as I then said, a few other cases, which, being of constant occurrence, it will be right to specify before proceeding to the next branch of the subject.

The first of these cases is that of a sale for the price of 10 or upwards, regarding which the 17th section of the Statute of Frauds has provided as follows :"No contract for the sale of any goods, wares, or merchandises for the price of 10 or upwards shall be good, except the buyer shall accept part of the goods so sold, and actually receive the*same; or give something in earnest to bind the bargain, or in part payment; or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized."

As to the subject-matter of this section there is little difficulty in applying it. As to the case of growing crops, and trees, and roots, etc, in the ground, the law has been already considered in treating on the 4th section. It has been decided that shares in railway and other joint stock companies are not an interest in land within the 4th section of the Statute of Frauds; nor are they goods, wares, or merchandises, within the 17th (a). A sale, also, of tenant's fixtures is not a sale of goods within this section, and as we have already seen (ante, p. *127), is not within the 4th (b).

The first great difference which you will observe between this section and the 4th section of the same Act is, that the 4th section renders a writing necessary in all cases which fall within its terms; whereas the 17th mentions three circumstances, any one of which it directs shall he as effectual as *a writing, namely, acceptance of any part of the goods, payment of part of the price, and, lastly, the giving something by way of earnest to bind the bargain, or in part payment; any one of which three things will as effectually perfect the sale as a writing would (c). Where none of these has taken place, a writing, however, becomes necessary;1 and

(a) Humble v. Mitchell, 11 A. & E. (39 E. C. L. R.) 205; Bradley v. Holds-worth, 3 M. &. W. 422; Bowlby v. Bell, 3 C. B. (54 E. C. L. R) 284; Knight v. Barber, 16 M.& W. 66; Tempest v. Kilner, 3 0. B. (54 E. C. L. R.) 249. See Baxter v. Brown, 7 M. & G. (49 E. C. L. R.) 198.

(b) Lee v. Gaskell, 1 Q. B. D. 700; 45 L. J. (Q. B. etc.) 540.

(c) As to what amounts to acceptance and receipt within the meaning of this section, generally, see Blackburn on Sales, 22, 23; Benjamin on Sales, Book I, part ii. chap. iv. As to what is a sufficient acceptance and receipt of bulky things such as growing timber, see Marshall v. Green, 1 C. P. D. 35; 45 L. J. (Q. B. etc.) 153.

1 Delivery to and acceptance by the agent of the vendee is sufficient: Ont-water v. Dodge, 6 Wend. 397. Aliter of an acceptance by a mere shopboy, out of the scope of his duty: Smith v. Mason, Anthon, 225. Goods are received and accepted by the purchaser within the Statute of Frauds when they are transported by the seller to the place of delivery appointed by the agent who contracted for them, and are there delivered to another agent of the purchaser, and are by him shipped to a port where the purchaser had given him general directions to ship goods of the same kind : Snow v. Warner, 10 Metc. 132. A delivery of goods by the vendor, on a parol sale, whether actual or constructive, and an acceptance by the vendee, is a perif there he none, the bargain cannot be enforced by action. It was formerly indeed thought that the operaforrnance of the contract, and the vendor cannot afterwards retract and avoid the sale as being within the Statute of Frauds: Johnson v. Watson, 1 Ga. 348. To constitute a delivery and acceptance of goods sold, within the meaning of the statute, something more than mere words is necessary. There must be some act of the parties, amounting to a transfer of the possession, and an acceptance thereof by the buyer, and the case of cumbrous articles is not an exception to this rule : Shindler v. Houston, 1 N. Y. 261. Where, by the terms of an agreement for the sale and purchase of goods, cash is to be paid on the delivery of the goods, payment of the money is sufficient evidence that the goods have been delivered in pursuance of the contract, for the purpose of taking the case out of the Statute of Frauds: Aguirre v. Allen, 10 Barb. 74. See also upon the subject of acceptance of part, Vincent v. Ger-mond, 11 Johns. 2S3; Seymour v. Davis, 2 Sand. 239.

A contract to make machines for a specified price and find the materials, is not within the statute : Spencer v. Cone, 1 Metc. 283. If the articles exist at the time in the condition in which they are to be delivered, it should be regarded as a contract of sale; but if labour and skill are to be applied to existing materials, it is then a contract for the manufacture of such article : Hight v. Ripley, 19 Me. 137; Cummings v. Dennett, 26 Me. 397; Cason v. Cheely, 6 Ga. 554; Seymour v. Davis, 2 Sand. 239; Allen v. Jarvis, 20 Conn. 38; Bronson v. Wiman, 10 Barb. 406; Hardell v. McClure, 1 Wis. 271. A delivery takes the case out of the statute: Houghtaling v. Ball, 19 Mo. 84. It may be subsequent to the agreement: Marsh v. Hyde, 3 Gray, 331; Sale v. Darrah, 2 Hilt. 184. A parol sale, unaccompanied by an act of the vendee indicating acceptance of the goods is void: Alderton v. Buchoz, 3 Mich. 322; Shepherd v. Pressey, 32 N. H. 49; Gilman v. Hill, 36 lb. 311. Partial delivery by vendor is a part performance which takes the case out of the statute : Dennison v. Carnahan, 1 E. D. Sm. 144; Swigart v. McGee, 19 Ark. 473. A parol contract for goods on shipboard, without delivery, is void: Stevens v. Stewart, 3 Cal. 140. Growing crops are not goods and chattels within the meaning of this provision: Bours v. Webster, 6 lb. 660. A provision for the transportation of cattle to the place of delivery, although effected according to the verbal agreement, does not take it out of the statute: Barbour v. Disher 11 Rich. 347. When goods are purchased under a parol contract, without the payment of any earnest money, the delivery of them to a carrier, selected and named by the purchaser, and their acceptance by the carrier, constitute a sufficient acceptance: Spencer v. Hale, 30 Vt. 314. The mere taking a sample without an express understanding that such taking is to be a delivery is not enough: Carver v. Lane, 4 E. D. Sm. 168. There is no acceptance although the goods may have been delivered to a carrier, so long as the buyer has the right to object to the quantity or quality: Lloyd v. Wright, 25 Ga. 215. A verbal agreement to purchase goods and credit the price towards payment of an old debt is valid the moment the act of giving the credit is performed by the buyer making the entry in his books: Brabin v. Hyde, 30 Barb. 265. A promise to pay to the vendor's creditor, accepted by him, who thereupon distion of the 17th section was to make the bargain void altogether in the absence of one of the three essential circumstances above-mentioned. Thus in Laythoarp v. Bryant (d), Bosanquet, J., says: "the 4th section does not avoid contracts not signed in the manner described; it only precludes the right of action. This 17th section is stronger, and avoids contracts not made in the manner prescribed." This proposition, however, hardly represents the present state of the law, and since the case of Bailey v. Sweeting (e), it is not safe to say that a parol sale, unaided by any of the three formalities mentioned in the 17th section as equivalent to writing, is totally and *entirely void. In that case, a letter from the purchaser to the seller of goods, written after the contract was made, and the goods had been sent, was held a sufficient memorandum to satisfy the 17th section; and Williams, J., in giving judgment, said: "It cannot be controverted that, in point of fact, there was a good and lawful contract for the sale of the goods, the price of which is sought to be recovered. It is clear, however, that as the price is greater than 10, the contract, though good, would not be actionable, unless the requisites of the Statute of Frauds had been complied with." (His Lordship here read the 17th sect.) "The effect of that section is, that though there is a valid verbal contract, it is not actionable unless something of several things has happened, one of which is, the existence of a note or memorandum in writing charges the vendor, is a sufficient part payment: Cotterill v. Stevens, 10 "Wis. 422. A delivery and acceptance of goods, sufficient to satisfy the Statute of Frauds, can only be shown by some clear and unequivocal act: Denny v. Williams, 5 Allen, 1. A part payment will not take a contract out of the statute unless made at the time of the contract: Bissell v. Balcom, 40 Barb. 98.-S.