§ 292. The form of the seventeenth section itself suggests a method which will probably be found convenient for its consideration; and that is, to examine in the first place the question, what is a contract such as is contemplated by it; and in the second place the question, what evidence of such a contract it requires. The latter topic, however, embraces not only the acceptance and receipt of part of the goods sold and the payment of earnest, formalities which are peculiar to this section, but also the making of a written memorandum of the bargain, a formality which applies also to the fourth section and the various classes of contracts enumerated therein. It seems best, therefore, to consider in this chapter only those matters which strictly concern contracts for the sale of goods, wares, and merchandise, and to postpone the subject of the written memorandum to the succeeding chapter, where it can be discussed singly and separately, and in relation to the general topic of contracts as affected by the statute.

§ 293. Upon the first of the proposed divisions of the present subject, our attention is attracted at the outset to the inquiry, what transactions are to be regarded as contracts for the sale of goods, etc. As to the character of the parties the statute makes no distinction, and the established doctrines of the courts present none. Nor, as it seems, will the contract be any less within the statute, because something other than money is to be given in return for the goods; contracts of barter being regarded, so far as the Statute of Frauds is concerned, as contracts of sale.1 It was at one time doubted whether the policy of the statute extended to sales at public auction,1 but it is now settled beyond dispute that it does, and that sheriffs' sales in execution are also included by its provisions.2 Another distinction, which has been supposed to be established by some of the earlier cases, was that the statute did not embrace executory contracts for the sale of goods, etc., but only those which contemplated an immediate execution.3 But this was manifestly against the intent and spirit of the statute, and has, of late years, been entirely rejected,4 and those cases upon which it was imagined that it rested have been shown to relate to a distinct point, of great importance, which we shall presently have occasion to examine.6 Nor is it necessary that the contract should be particularly formal or explicit, so that there appear to be a bargain made; a common order, given to the seller for the article required, is clearly equivalent to a contract for the purchase.6 A stipulation that the subject of the sale may be returned in a certain event, is not to be regarded as a contract for resale, so as to be affected by the statute. Thus in a case where the plaintiff sold a mare to the defendant for 20, with the understanding that if she should prove to be in foal he might have her back again on paying 12, and the mare was delivered to the defendant, and afterwards, when she proved

1 See Dowling v. McKenney, 124 Mass. 478; Rutan v. Hinchman, 30 N. J. L. 255; Kuhns v. Gates, 92 Ind. 66. See § 76, supra.

1 Simon v. Metivier, 1 W. Bl. 599; Hinde v. Whitehouse, 7 East 558.

2 Sujzden, Vend. & P. ch. v. § 6; 2 Kent, Comm. 540; Chitty on Contracts, 272; and cases cited by those authors to be in foal, the plaintiff tendered the 12, but the defendant refused to return her, and set up the Statute of Frauds as a bar to any recovery on the agreement to return her, the Court of Queen's Bench held that it did not apply, considering that this stipulation was not an independent contract of sale, but was part of the original contract, which was a qualified one, and which had been taken out of the statute by the delivery of the mare.1

2 Rondeau v. Wyatt, 2 H. Bl. 63; s. c. 3 Bro. Ch. 154; Alexander v. Comber, 1 H. Bl. 20; Towers v. Osborne, 1 Stra. 506; Clayton v. An-drews, 4 Burr. 2101.

4 Cooper v. Elston, 7 T. R. 14; Acker v. Campbell, 23 Wend. (N. Y.) 372; Bennett v. Hull, 10 Johns. (N. Y.) 364; Ide v. Stanton, 15 Vt. 690; Carman v. Smick, 3 Green (X. J.) Law 252; Newman v. Morris, 4 Hair. & McH. (Md.) 421; and see Appendix, Lord Tenterden's Act, 9 Geo. IV. c 14, § 7..

5 See post, §§ 299-309.

6 Allen v. Bennet, 3 Taunt. 169.

§ 293 a. But it may be necessary to distinguish between such a case as this, where the stipulation to return is annexed to the original sale by way of condition, and the case of a stipulation to resell at a future time for the same or a different price, although made contemporaneously with the original sale. It must depend, it seems, upon whether the latter is a complete transaction of itself, and, in some degree, upon the language used by the parties. Where a partner upon the formation of a partnership sold and delivered a quantity of goods to the firm, soon after which the partnership was dissolved, and it was agreed that his claim for the goods should be cancelled by his taking them back, but there was no written memorandum on the subject and no act of acceptance; upon a bill in equity brought by the partner who had sold the goods, alleging the sale and dissolution, and praying for a decree that the other partners should pay their share of the price of the goods, it was held that the arrangement by which the goods were to be taken back was not to be considered as properly a resale of them, or as an independent transaction, but as a mutual rescission of the original contract of sale, and therefore the transaction was valid without a written memorandum or act of acceptance, especially against the petitioner, who had alleged the dissolution, which was not in writing, and of which the agreement for the taking back the goods was part.1

1 Williams v. Burgess, 10 Ad. & E. 499. The case was likened by Littledale, J., to a delivery on trial; but it must be observed that the stipulation was to return, not to receive back, and was made in favor of the vendor, not of the vendee. See Fay v. Wheeler, 44 Vt. 292; Wooster v. Sage, 6 Hun (N. Y.) 285, 67 N. Y. 67; Fitzpatrick v. Woodruff, 96 N. Y. 561; Johnson v. Trask, 116 N. Y. 136.