This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 Baldey v. Parker, 2 Barn. & C. 37; Elliott v. Thomas, 3 Mees. & W. 170 (in which Hodgson v. Le Bret, 1 Camp. 233, so far as it is opposed to the rule stated in the text, was declared to be no binding authority); Scott v. Eastern Counties Railway Co , 12 Mees. & W. 33; Allard v. Greasert, 61 N. Y. 1; ante, § 314. And see Hart v. Mills, 15 Mees. & W' 85; Champion v. Short, 1 Camp. 53; Bailey v. Sweeting, 9 C. B. N. S. 843; Garfield v. Paris, 96 U. S. 557.
2 Emmerson v. Heelis, 2 Taunt. 38. See per Le Blanc, J., in Rugg v. Minett, 11 East 218; Franklyn v. Lamond, 4 C. B. 637.
3 Mills v. Hunt, 17 Wend. (N. Y.) 333, affirmed on error, 20 Wend. 431; Jenness v. Wendell, 51 N. H. 63. See Coffman v. Hampton, 2 Watts & S. (Pa.) 377; Tompkins v. Haas, 2 Pa. St. 74.
§ 336. The Court of Exchequer have determined an interesting point, and one not unlikely to be of frequent recurrence, touching the combined effect of the Statute of Charles and of Lord Tenterden's Act, so called (which it will be remembered concerns contracts for unmanufactured or unfinished goods), as regards this matter of accepting one of a lot of articles. The defendants ordered of the plaintiffs certain lamps, some of which were ready made, and one was to be made to order; the former were afterwards delivered and paid for, and the question was whether the defendants were thereby bound for the whole. Lord Abinger, C. B., said that the "two statutes must be construed as incorporated together, and then it is plain that where an order for goods made and for others to be made forms one entire contract, acceptance of the former goods will take the case out of the statutes as regards the other also;" and Alderson, B., said: "The articles bargained to be made are treated for this purpose as goods actually made, although they are not in existence at the time of the agreement." 1 Bearing in mind that the statute requires an acceptance and receipt of a part only of the goods sold, the decision is evidently correct; and in this point of view, it seems to throw some further light upon the question discussed in a former section, as to the extent to which acceptance sufficient to satisfy the statute precludes the subsequent refusal to accept, and the return of any part of the goods as not answering the demands of the contract. In the case under discussion all of the lamps were delivered and paid for shortly after the contract was made, except one lamp of peculiar form, which at the time of the delivery of the rest was not in existence, and which was not in fact completed till two years afterward. The decision was that, by an acceptance and receipt of a part, the contract as a whole was freed from the application of the statute. It was not decided, nor could it well be maintained, that the buyer had, at any time before the triangular lamp was made and shown to him, ever done anything whatever to preclude him from examining that lamp when finished, and rejecting it if it was not what it was promised to be. Thus it is seen that while the acceptance of goods may preclude the subsequent rejection of those same goods, it does not relate to or concern the other goods which have not been examined, although they are to be made and delivered under the same contract.2 In connection with this point of the acceptance of one of a number of articles not all ready for delivery, it may be proper to refer to the case of goods owned by two or more persons in severalty; it has been held that if all the owners together make sale of the goods, a delivery and acceptance of part of one parcel is sufficient as to the whole.1 And acceptance and receipt by one of several joint purchasers will, it is said, bind the bargain against all.2
1 Bigg v. Whisking, 14 C. B. 195.
2 Price v. Lea, 1 Barn. & C. 156.
1 Scott v. Eastern Counties Railway Co., 12 Mees. & W. 33; Van Woert v. Albany & Susquehanna R. R. Co., 67 N. Y. 538; Kaufman v. Farley Mfg. Co., 78 Iowa 679.
2 Some cases which may create embarrassment may be here referred to; e. g. Rung v Minett, 11 East 210; Rohde p. Thwaites, 6 Barn. & C. 888; Logan v. Le Mesnrier, 6 Moo. P. C. 116. The two former, however, were determined before the passage of Lord Tenterden's Act; and the latter was determined, the report seems to show, upon the old French law prevailing in Lower Canada.
§ 337. We next come to the question, when the acceptance and receipt may take place; and this, it seems, may be contemporaneous with or at any time subsequent to the making of the verbal agreement.3 The grounds upon which this rule rests are presented with such clearness in an opinion of the Supreme Court of Massachusetts, delivered by Bigelow, J., as to justify an extended quotation. "There is nothing in the statute, which fixes or limits the time within which a purchaser is to accept and receive part of the goods sold, or give something in earnest to bind the bargain, or in part-payment. It would fully satisfy its terms if the delivery or part-payment were made in pursuance of a contract previously entered into. . . . The great purpose of the enactments, commonly known as the Statute of Frauds, is to guard against the commission of perjury in the proof of certain contracts. This is effected by providing that mere parol proof of such contracts shall be insufficient to establish them in a court of justice. In regard to contracts for sales of goods, one mode of proof which the statute adopts to secure this object is the delivery of part of the goods sold. But this provision does not effectually prevent the commission of perjury; it only renders it less probable, by rendering proof in support of the contract more difficult. So in regard to other provisions of the same statute; perjury is not entirely prevented by them; the handwriting of the party to be charged, or the agency of the person acting in his behalf, may still be proved by the testimony of witnesses who swear falsely. Absolute prevention of perjury is not possible. In carrying this great purpose of the statute into practical operation, it can add no security against the danger of perjury, that the act, proof of which is necessary to render a contract operative, is not contemporaneous with the verbal agreement. A memorandum in writing will be as effectual against perjury, although signed subsequently to the making of a verbal contract, as if it had been executed at the moment when the parties consummated their agreement by word of mouth. So proof of the delivery of goods, in pursuance of an agreement for their sale previously made, will be as efficacious to secure parties against false swearing, as if the delivery had accompanied the verbal contract. It is the fact of delivery under and in pursuance of an agreement of sale, not the time when the delivery is made, that the statute renders essential to the proof of a valid contract. It is to be borne in mind that, in all cases where there is no memorandum or note in writing of the bargain, the verbal agreement of the parties must be proved. The statute does not prohibit verbal contracts. On the contrary, it presupposes that the terms of the contract rest in parol proof, and only requires, in addition to the proof of such verbal agreement, evidence of a delivery or part-payment under it. It does not therefore change the nature of the evidence to be offered in support of the contract. It merely renders it necessary for the party claiming under it to show an additional fact in order to make it ' good and valid.' ... In all cases like the present, a single inquiry operates as a test by which to ascertain whether a contract is binding upon the parties under the Statute of Frauds. It is whether the delivery and acceptance, whenever they took place, were in pursuance of a previous agreement. If the verbal contract is proved, and a delivery in pursuance of it is shown, the requisites of the statute are fulfilled."1