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.
§ 138/. Cases where the rights or liabilities of third parties depend upon the question of title passing by the verbal contract without satisfaction of the statute present more difficulty. In Morgan v. Sykes,2 the transaction was such as apparently to vest the title to the goods in the buyer at common law, before the loss of part of them by a carrier, who was sued in this action by the vendor to recover their value; and the vendor recovered, and judgment on the verdict was sustained. The residue of the goods was accepted and received by the buyer after the loss; but this fact was held immaterial. In Stockdale v. Dunlop3 there was a dictum by Parke, B., to the effect that the complete oral contract of purchase, enough to give title at common law, did not, in the absence of compliance with the statute, give the buyer an insurable interest. And this dictum was referred to and approved by Willes, J. (though the question was not necessary to the decision), in Felthouse v. Bindley;4 and there has been a decision to the same effect by a majority of the Court of Appeals of New York.5 In O'Neil v. N. Y. C. & H. R. R. Co.,6 where the goods after the oral sale were destroyed by fire in the hands of the carrier on the way to the purchaser, it was held by the Court of Appeals of New York, as in Morgan v. Sykes, that he could not recover. In Ely v. Ormbsy,1 the Supreme Court of the same State held that the vendee, after oral purchase, could not maintain trespass against a sheriff for attaching the goods as the property of the seller. And in the Court of Appeals, again, it was held 2 that the seller's assignee in bankruptcy could maintain trover against a creditor of the buyer attaching the goods as his, after the oral purchase, there being (as in all the cases now under examination) no satisfaction of the statute. In the Supreme Court of Maine,3 it has been held that a subsequent purchaser by a third party by bill of sale from the original seller of the same goods which he had already sold by oral bargain, could maintain replevin against the first purchaser undertaking to carry away the goods as his own. And in Florida,4 it was held that the oral sale was insufficient to support an action by the purchaser of a slave against a third party detaining him.
1 Bailey v. Sweeting, 9 C. B. n. a. 843; Wilkinson v. Evans, L. R. 1 C. P. 407; Townsend v. Hargraves, 118 Mass. 325; Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140; Phillips v. Ocmulgee Mills, 55 Ga 633, Vincent v. Germond, 11 Johns. (N. Y.) 283.
2 Morgan v. Sykes, 3 Q. B. 486, note.
3 Stockdale v. Dunlop, 6 Mees. & W. 224.
4 Felthouse v. Bindley, 11 C. B. n. 8. 869.
5 Pitney v. Glen's Falls Ins. Co., 65 N. Y. 6.
6 O'Neil v N. Y. C. & II. R R. Co., 60 N. Y. 138.
§ 138 g. The Supreme Court of the United States has dealt with the question, in which of the parties was the title to cotton at the time of its capture, for the purposes of an Act of Congress allowing compensation to the loyal owners of property captured in war.5 Certain bales of cotton were seized by military order during the war of the rebellion; the "Captured and Abandoned Property Act" allowed the owner, if loyal, to recover the value of the cotton from the United States; and the claimant (who was buyer under the contract of sale in question) brought suit accordingly in the Court of Claims, alleging herself to have been owner of the cotton at the time of capture. By the reporter's statement of the facts it appears that the seller agreed orally with the claimant that the claimant should have that particular lot of cotton in payment of a mortgage held by her from the seller; that the price of the cotton was fixed at so much per pound; but the cotton was not weighed, nor was payment indorsed on the mortgage, nor was there any actual or symbolic change of possession. There was, therefore, no satisfaction of the Statute of Frauds; but there was (it would seem) an ascertainment of the particular goods, a fixing of the price, and an agreement that the title should then pass to the claimant; being a state of facts upon which, as was argued on behalf of the claimant, title passed at common law. But the report made by the Court of Claims of the facts found by it, which report the Supreme Court refused to go behind, stated that there was "no ascertainment of the price" of the cotton. The Supreme Court affirmed the judgment of the Court of Claims that the claimant was not, upon the facts reported, owner of the cotton at the time of capture; proceeding apparently, not only upon the ground that upon the facts reported by the Court of Claims there was no change of title at common law, but also upon the ground that, if there had been such facts as to work change of title at common law, title was still not changed for want of satisfaction of the Statute of Frauds. Miller, J., who delivered the opinion, after quoting the Mississippi statute as it relates to sales of goods, viz., that the sale should not be "allowed to be good and valid," except, etc., says: "The finding of the Court of Claims negatives in the most express terms the existence in the agreement, by which the title of the cotton was supposed to be transferred, of each and every one of the acts or conditions, some one of which is by that statute made necessary to the validity of the contract. To hold that an agreement which that statute declares shall not be allowed to be good and valid was sufficient to transfer the title of the property to the claimant, would be to overrule the uniform construction of this or a similar clause in all statutes of frauds by all the courts which have construed them." No authorities are cited in the opinion of the court; nor does it notice the distinction between "good and valid" for purposes of enforcement, and "good and valid" for the purpose of passing title between the parties.
1 Ely v. Ormsby, 12 Barb. 570. And see Winner v. Williams, 62 Mich. 363.