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.
2 Hicks v. Cleveland, 48 N. Y. 84. 3 Young v. Blaisdell, 60 Me. 272.
4 Summerall v. Thorns, 3 Fla. 298.
5 Mahan v. United States, 16 Wall. 143.
§ 138 h. In opposition to the commanding current of authority above exhibited, as to the effect of the oral purchase to give title to the buyer, where the rights or liabilities of third parties are involved, there is an early case in Maine,1 where it was said that the buyer by oral purchase could maintain an action against a sheriff attaching the goods as the property of the seller; and a case in the Supreme Court of Massachusetts,2 where the plaintiff sued in replevin of goods on a title acquired from one whose title was by oral purchase, and it was held that he had such an interest in the goods that he could maintain the action. It was decided in another Massachusetts case that one who has orally contracted to buy a ship has an insurable interest in her.3
§ 138 i. It will be noticed that in all the cases there had been no satisfaction of the statute up to the time when the right or the liability of the third party accrued. In some of them there was such satisfaction afterwards; but none of the cases recognize it as having any retroactive effect upon the title given by the oral purchase as to the third party.4
§ 138,;. If the question whether an oral purchase of goods sufficient to vest title as between the buyer and seller is sufficient to do so as to third parties, can be regarded as open, there is much to be said against the doctrine that it is not;
1 Cowan v. Adams, 1 Fairf. 374. 2 Norton v. Simonds, 124 Mass. 19.
3 Amsinck v. American Insurance Co., 129 Mass. 185.
4 In an article in the American Law Review, Vol. IX. p. 434, containing a very intelligent discussion of this head of the statute, it is suggested that the subsequent satisfaction of the statute operates retroactively as between the parties by a fiction of law, and does not as to third parties, because no fiction of law affects third parties. See Messmore v. Cunningham, 78 Mich. 623.
strongly sustained by authority as we have seen that doctrine to be. It has been already shown in this chapter that the statute does not make the contract void, but only allows a defence to its enforcement, which defence is personal to the defendant and may be waived by him, and which no third party can assume that he will or would avail himself of, so as in effect to give the third party the privilege of the statute. Now the decisions under consideration seem to contravene this well-settled and salutary rule. In the case of the captured cotton the United States undertook to decide that the seller of the cotton would avail himself of his statutory right, and therefore held that the buyer had no title; and so in the cases holding that the buyer had no insurable interest. In the cases of attaching officers, it was their business to find out in whom was the title to the goods before they attached them; and there appears to be no reason why they should not be bound by the facts which make a common law title in the case of a chattel worth more than fifty dollars, as well as in the case of a chattel worth less. In the cases of suits against carriers, it has been supposed that to allow the question of title to be determined as at common law, and without regard to the fact that the statute had not been complied with, would work practical mischief by exposing the carrier to a double recovery. But suppose the buyer sue, and recover as for the loss of his goods, the seller cannot afterwards sue the carrier; for by claiming the goods as his own, the buyer has "accepted and received" them,1 and the contract becomes valid to all intents and purposes. Or suppose the seller sue, can he recover against the carrier, and the carrier be afterwards subject to recovery by the buyer? It seems not. To the seller's action, the carrier may plead that the title is in the buyer; and this is not to enforce the contract against the seller contrary to the statute; the seller, having done his part by delivering the goods, has no privilege under the statute, but is bound unless the buyer should afterward refuse to accept the goods; which right of refusal he alone can exercise or waive. Again, suppose the goods are damaged in the hands of the carrier, and afterwards the statute is satisfied so that the buyer becomes bound to pay the seller the contract price; if the seller can recover from the carrier for the damage (as the cases we are criticising hold), and afterward recover the full contract price from the buyer, he is paid twice for a part of the goods; and the buyer who has had to pay for the goods as perfect, can have no action against the carrier for the damage.1
1 See post, Chan. XV.
1 This question might well have arisen upon the facts in Bailey v. Sweeting, 9 C. B. N. S. 843. And see C. B. & Q. R. R. v. Boyd, 118 111. 73.