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 Pickering v. Appleby, 1 Comyns 354.
2 Colt v. Nettervill, 2 P. Wms. 304.
3 Mus8ell v. Cooke, Finch, Prec. Ch. 533; Crull v. Dodson, Sel. Cas. Ch. 41.
4 Duncuft v Albrecht, 12 Sim. 189; Humble v. Mitchell, 11 Ad. & E. 205; Heseltine v. Siggers, 1 Exch. 856; Tempest v. Kilner, 3 C. B. 249; Bowlby v. Bell, 3 C. B. 284; Bradley v. Holdsworth, 3 Mees. & W. 422; Watson v. Spratley, 10 Exch. 222. See Pawle v. Gunn, 4 Bing. N. R. 445.
§ 296 a. The Supreme Court of Massachusetts have taken a different view of the question. In Tisdale v. Harris, they decided that shares in a manufacturing corporation were to be deemed included by the words "goods, wares, and merchandise." The opinion of the court, delivered by Shaw, C. J., places the decision on two grounds; first, that by correct legal definition "goods" and "merchandise" were both sufficiently comprehensive to include shares, and, secondly, that the policy of the statute required that they should be included. Upon the latter point he says: "There is nothing in the nature of stocks, or shares in companies, which in reason or sound policy should exempt contracts in respect to them from those reasonable restrictions designed by the statute to prevent frauds in the sale of other commodities. On the contrary, these companies have become so numerous, so large an amount of the property of the community is now invested in them, and as the ordinary indicia of property, arising from delivery and possession, cannot take place, there seems to be peculiar reason for extending the provisions of this statute to them." He does not consider the circumstance that shares cannot be actually accepted and received as at all conclusive of the question, and says that this seems to be rather a narrow and forced construction of the statute. "The provision is general, that no contract for the sale of goods, etc., shall be allowed to be good. The exception is, when part are delivered, but, if part cannot be delivered, then the exception cannot exist to take the case out of the general prohibition. The provision extended to a great variety of objects, and the exception may well be construed to apply only to such of those objects to which it is applicable, without affecting others, to which from their nature, it cannot apply."1 In the doctrine of this case the Supreme Court of Connecticut have fully concurred.2
§ 297. It has been since still further extended in Massachusetts in the case of Baldwin v. Williams, where it was held that a contract for the sale of promissory notes was within the seventeenth section. Wilde, J., who delivered judgment, said it was certainly within the mischief thereby intended to be prevented, and that the words "goods" and "merchandise," both of them of large signification, were sufficiently comprehensive to include promissory notes; applying the definition merx est quicquid vendi potest.3
1 Tisdale v. Harris, 20 Pick. 13. See Eastern R. R. Co. v. Benedict, 10 Gray 212; Boardman v. Cutter, 128 Mass. 388; Meehan v. Sharp, 151 Mass. 564.
2 North v. Forest, 15 Conn. 400; Reed v. Copeland, 50 Conn. 472; See also Fay v. Wheeler, 44 Vt. 292. An early case in Maryland, also, Colvin v. Williams, 3 Harr. & J. 38, seems to be to the same effect. But in the case of Webb v. Baltimore & E. S. R. R., 77 Md. 92, the court decide that a contract of subscription to stock is not within the statute, and pronounce Colvin v. Williams at best only a dictum to the contrary. See also Bullock v. Falmouth Co., 85 Ky. 184, and §§ 297, 298, post; Hinchman v;. Lincoln, 124 U. S. 38.
3 Baldwin v. Williams, 3 Met. (Mass.) 365. The learned judge refers, in support of this judgment, to two prior decisions of the same court, Mills v. Gore, 20 Pick. 28, and Clapp v. Shephard, 23 Pick. 228, to the effect that a bill in equity might be maintained to compel the redelivery of a deed and note of hand on the provision in the Massachusetts Revised Statutes (c 81, § 8), giving the court jurisdiction in all suits to compel the redelivery of any goods or chattels whatsoever taken and detained from the owner thereof and secreted or withheld so that the same cannot be replevied. But it is the deed and note, the papers on which they are written, that the words goods and chattels are held to embrace; not the right, interest, or obligation represented by those papers, as in the case of Baldwin v. Williams. There is a decision of the U. S. Circuit Court, Riggs v. Magruder, reported in 2 Cranch 143, to the effect that a contract for the notes of a private bank was within the seventeenth section; but the bench was not full at the time, and the grounds of the decision are not furnished. A contract for the sale of gold, i. e. coin, was held within the statute in Peabody v. Speyers, 56 N. Y. 230. And a contract for the sale of a bond and mortgage was held to be a contract for the sale of goods, wares, or merchandise under the Statute of Frauds in Greenwood v. Law, 55 N. J. Law 168.
§ 297 a. In a later case in Massachusetts, however, a disposition seems to be manifested against further extending the doctrine. The court there held that a contract for the sale of an interest in an invention, before letters patent obtained, was not a contract for the sale of goods, wares, or merchandise; and they also express the opinion that to apply the seventeenth section to a patent right, granted by the government, " would be unreasonably to extend the meaning and effect of words which have already been carried quite far enough." 1
§ 298. And it seems impossible to regard Judge Wilde's interpretation as entirely free from doubt and difficulty, whether the meaning of the words used in the statute be taken abstractly or in connection with the context. That merx est quicquid vendi potest is not to be taken strictly as the definition of this word, as used in the statute, seems to be very clear; for if it is, certainly goods and wares, if not lands also, must be embraced by it. Moreover, it appears by the reports of those cases in which first the collected judges of England, and afterward Lord Chancellor King, failed to determine the application of the statute to sales of shares, that in both the same definition was urged by counsel. And in regard to goods, also, it seems dangerous to found a construction of the statute on a mere verbal definition. As was said in one of the superior courts of Georgia, where it was held that treasury checks on the Bank of the United States were not covered by the seventeenth section, "In the civil law it is a term that embraces all things over which a man may exercise private dominion, divided into goods movable and immovable. This cannot be the sense attached to the word in the statute, for other sections of it treat of immovables, this alone of movables. Nor can it be designed to include every class of movables, for wares and merchandise are expressly mentioned, which latter embrace everything usually rendered in commerce." And it is added that it is "a fair construction of the statute to limit the meaning of the word goods to such personal property, other than wares and merchandise, as are usually transferred by sale and delivery." l This view, which, as we have seen, nearly corresponds to that taken by the English courts, appears to be reasonable. Indeed, upon that taken by the earlier cases above cited of the Supreme Court of Massachusetts, the words used in the statute appear to be made coextensive with personal property.2 As to the principle that the goods, wares, and merchandise intended by the statute must be such as are capable of acceptance and receipt by the purchaser, it is true that there are many cases 3 in which sales of articles not in existence at the time of the bargain have been held to be within the statute; but there the articles contracted for were essentially capable of acceptance and receipt, and were to be, in time, bodily accepted and received according to the contract. Nevertheless, the difficulty presents itself that shares or stocks, and even (though that would be far more doubtful) promissory notes, bonds, etc., may become in the course of commercial development so much the subject of ordinary traffic, that the construction of the statute must be expanded so as to make it reach them, as being one kind of merchandise.4 And so with that rapidly enlarging class time of making the bargain, is to be regarded in determining whether the statute will apply to it.