§ 293 b. An agreement to deliver goods, wares, or merchandise to the amount of, and in payment of, a pre-existing debt, has been held in Alabama 2 to be, and in New York 3 not to be, within the statute as a bargain for the sale of the goods, etc. The latter decision appears to be the more reasonable. There is no reason why the language of the seventeenth section should be strained beyond its expressed limitation to such transactions as come under the common designation of sales of goods.

§ 294. Whether a mortgage of goods, wares, and merchandise is within the scope of the Statute of Frauds is, apparently, to be considered a doubtful question. The Supreme Court of Maine have expressed themselves not satisfied that the statute was to be so construed. They say that the statute "manifestly contemplates an absolute sale, where the vendor is to receive payment and the vendee the goods purchased. But the mortgagee is not interided or expected to pay anything. His lien is created to secure what he is to receive. Nor is he to take possession, unless his security requires it. That is retained by the mortgagor; and herein a mortgage differs from a pledge. As this is a contract, then, in which neither payment nor delivery is expected, we are not prepared to say that it comes within the statute."4 It is manifest, however, that the mortgagee has paid something before, or contemporaneously with, the execution of the mortgage; and it is a familiar principle of law that the mortgagee of personal property may, and as a general rule ought to, take possession. Such a mortgage is simply a conditional or defeasible sale; and where the opinion above quoted speaks of an absolute sale as what the statute manifestly contemplates, we should say it must intend an actual sale, as distinguished perhaps from a merely nominal one; for that a defeasible sale is within the Statute of Frauds can hardly be doubted on principle, and is, by implication, decided in the English case last referred to. But the court (in Maine did not, it will be observed, find it necessary to place their judgment upon the ground we have been considering.

1 Dickinson v. Dickinson, 29 Conn. 600; Wulschner v. Ward, 115 Ind. 219. See Boardman v. Cutter, 128 Mass. 388.

2 Sawyer v. Ware, 36 Ala. 675.

3 Woodford v. Patterson, 32 Barb. 630.

4 Gleason v. Drew, 9 Greenl. 79. Where A took from B a chattel mortgage, which was not recorded, and B sold the mortgaged property to C and took his note for the price, and C and A then agreed orally that, if A would take up C's note and return it to him, C would deliver the property to A, and A took up the note and tendered it to C, who refused to deliver the property; it was held, on a suit by A against C for the value of the property, that the agreement between A and C was not a contract of sale, but an agreement by C to waive his claim and allow A's mortgage to take effect; and was not within the Statute of Frauds.

§ 294 a. An agreement between two parties to be partners in a sale of goods has been held to be not within the statute.1 But otherwise where the contract is in substance for the purchase of all the goods by one, and a subsequent sale by him of part of them to the other.2

§ 294 b. An agreement between two creditors claiming the same property under rival executions, that the property should be sold under one execution and the proceeds divided equally, is not to be regarded as a sale by either to the other, but simply as a compromise of conflicting money claims.3

§ 295. In the next place, we have to inquire what is the proper scope of the words "goods, wares, and merchandise,"

Clark v. Dnffey, 24 Ind. 271; and see Phelps v. Hendrick, 105 Mass. 106. An agreement to mortgage personal property was held not within the statute in Alexander v. Ghiselin, 5 Gill (Md.) 180.

1 Buckner v. Ries. 34 Mo. 357; Colt v. Clapp, 127 Mass. 476; Bullard v. Smith, 139 Mass. 497. See Coleman v. Eyre, 45 N. Y. 38. As to an agreement to be a partner in the real estate business, see § 262, ante.

2 Brown v. Slauson, 23 Wisc. 244.

3 Mygatt v. Tarbell, 78 Wisc. 351. And see Goldbeck v. Kensington Nat. Bk., 147 Pa. St. 267.

as used in the seventeenth section to denote the subject-matter of the contracts embraced by it. On this point there has been considerable diversity of opinion in the courts, arising, it would seem, from their having adopted, on the one hand, that interpretation which is founded upon the abstract legal signification of the words, and, on the other, that which limits this signification by a reference to the other clauses of the section.

§ 296. The most difficult class of cases under this head has grown out of contracts for the sale of shares or stocks, notes, checks, bonds, and generally evidences of value as distinguished from palpable personal property having an intrinsic value. In the early case of Pickering v. Appleby, the question was submitted, as appears by Comyns's report, to all the judges of England, whether a contract for the purchase of shares in the stock of a copper company was affected by the seventeenth section of the statute, and they were divided in opinion.1 Subsequently Lord Chancellor King, in Colt v. Nettervill, upon the ground of that division, declined to take the responsibility of deciding the point.2 But some years later, and notwithstanding the intervention of several cases in which a disposition was shown to hold otherwise,3 it was directly determined in England, and so far as that country is concerned must be taken to be settled, that the statute is not applicable to such contracts. Such was the decision of Sir Lancelot Shadwell in Duncuft v. Albrecht, and of Lord Denman in Humble v. Mitchell, cases which have been fully acquiesced in by the English courts.4 Both of these decisions proceeded upon the ground that shares were mere choses in action, and were not in their nature capable of that delivery and acceptance by the respective parties to the contract which the statute provides as one method of making it binding.