1 Somerby v. Buntin, 118 Mass. 285. See Boardman v. Cutter, 128 Mass. 388.

1 Beers v. Crowell, Dudley 29. But see Walker v. Supple, 54 Ga. 178.

2 In Florida, the expression used to describe the subject-matter of the seventeenth section is "personal property," which has, of course, been held to include shares. See Southern Life Ins. Co. v Cole, 4 Flor. 359. In New York, choses in action are expressly specified as requiring a writing for their sale, and the following cases may be referred to as illustrative of that enactment. Allen v Aguirre, 7 N. Y. 543; People v. Beebe, 1 Barb. 379; Thompson v. Alger, 12 Met. (Mass.) 428, which arose on the New York statute; Armstrong v. Cushney, 43 Barb. 340; Tomlinson v. Miller, 7 Abb. Pr. N. S. 364; Doty v. Smith, 62 Hun (N. Y.) 598. And see Bank v. German American Ins. Co., 72 Wisc. 535.

3 See post, §§ 299-309.

4 Gadsden v. Lance, McMull. (S. C.) Eq. 87. Since the publication of the first edition of this treatise, it has been decided in Maine that sales of promissory notes were within the statute, and in New Hampof transactions, the purchase and sale of patent rights; the business, as it has now become, of many individuals and even partnerships in this country. But in a case in the Court of Exchequer it has been lately held that the purchase of a right to use a patented furnace, which was already erected by the purchaser, was not within the seventeenth section;1 and although upon the principles of the earlier Massachusetts cases we have quoted, patent rights would seem to be included in the words of the statute as there interpreted, yet, as we have seen, in a later case, the court, manifesting a disposition to restrict the application of the statute, were of opinion that patent rights were not goods, wares, and merchandise.2 In New York the contrary view has been expressed as to an invention complete but unpatented.3

§ 299. Several questions which might require attention in this place, such as those arising on contracts for the sale of fixtures and growing crops, particularly the latter, have been anticipated in the course of our consideration of the fourth section as it regards interests in land. But a most important one remains to be examined, and that is how far, if at all, the condition of the goods, wares, and merchandise, at the shire and Indiana that they were not. The Supreme Court of Alabama seem to hold the former opinion. Gooch v. Holmes, 41 Me. 523; Whitte-more v. Gibbs, 24 N. H. 484; Vawter v. Griffin, 40 Ind. 593; Hudson v. Weir, 29 Ala. 294. A book account was held to be within the seventeenth section in Walker v. Supple, 54 Ga. 178; shares in an ice company, in Pray v. Mitchell, 60 Me. 430; land scrip, in Smith v. Bouck, 33 Wisc. 19, and see Fine v. Hornsby, 2 Mo. App. 61; May v. Thomson, L. R. 20 Ch. D. 705. It has been held in Wisconsin that a contract for the publication of an advertisement in a newspaper was a contract for the sale of goods, chattels, or things in action within the meaning of the Statute of Frauds of that State. Goodland v. Le Clair, 78 Wisc. 176. In New Jersey a bond and mortgage have been held to be goods, wares, and merchandise within the statute. Greenwood v. Law, 26 Atl. Rep. (N. J.)134.

1 Chanter v. Dickinson, 5 Man & G. 253.

2 Somerby v. Buntin, 118 Mass. 279. See Gould v. Banks, 8 Wend. (N. Y.) 562; Dalzell v. Dueber Mfg. Co., 149 U. S. 320; Burr v. De la Vergne, 102 N. Y. 415; Blakeney v, Goode, 30 Ohio St. 350.

3 Jones v. Reynolds, 120 N. Y. 213.

§ 300. In Clayton v. Andrews, a case early decided in the Queen's Bench, the defendant agreed verbally to deliver to the plaintiff a quantity of wheat at a future day, for a certain price, of which, however, no part was paid by way of earnest, nor was there any portion of the wheat accepted and received by the plaintiff at the time, nor was any memorandum of the bargain made in writing; but the wheat was unthreshed, and of course unfit for delivery, when the bargain was concluded. Lord Mansfield and the other judges held, upon the supposed authority of a previous case,1 that the statute did not apply, for the reason that the wheat was not to be delivered immediately.2 This doctrine, of the necessity of the parties' contemplating an immediate execution of the bargain in order to bring it within the prohibitions of the seventeenth section, has long since been abandoned; but the case itself has often been quoted as an authority for the position that, where work and labor are required to be performed upon the article sold, in order to put it in condition to be delivered, the statute does not apply to the contract of sale. This, however, as will amply appear by the cases to which reference will be presently made, is not a tenable doctrine.

§ 301. In Towers v. Osborne, upon which the decision in Clayton v. Andrews was based, the defendant bespoke a chariot (to use the language of the report), and after it was made refused to take it. In an action for the value of the chariot, it was held that the statute did not apply; and here also the decision was put upon the ground that the statute only related to contracts for the sale of goods to be delivered immediately. It was not till long after these two cases that this opinion was directly condemned; and it is a singular fact that they have been made the foundation of a distinction, as to the application of the statute, not alluded to in them, but which is one of the most important on this branch of our subject; namely, the distinction which regards the condition of the article at the time of the bargain. It will be perceived that Towers v. Osborne differs from Clayton v. Andrews in this particular, that whereas in the latter the wheat only required the operation of threshing to be performed to prepare it for delivery, in the former the chariot contracted for did not exist at all. And the courts have shown a disposition, while doubting the authority of Clayton v. Andrews, to place the authority of the other case upon the simple ground of that difference. Thus, in Groves v. Buck, Lord Ellenborough held that the statute did not apply to a contract for the purchase of a quantity of oak pins, which were not then made, but were to be cut out of slabs and delivered to the buyer; for, he said, the subject-matter of the contract did not exist in rerum natura; it was incapable of delivery and part acceptance; and when that was the case, the contract had been considered as not within the statute.1