The seventeenth section of the English statute of frauds provides that "No contract for the sale of any goods, wares or merchandises, for the price of ten pounds sterling or upwards, shall be allowed to be good; except the buyer shall accept part of the goods so sold, and actually receive the same, or, give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." Similar provisions have been adopted in most, but not all, of the states.

74 Sprague vs. Chastain, 68 Ind., 376. 75 Sears vs. Smith, 3 Colo., 287;

Stem vs. Nysonger, 69 Iowa, 512. 76 Wheeler vs. Frankethal, 78 I11.,

124; Wolf vs. Dozer, 22 Kan.,

436. 77 Derby vs. Meyer, 10 Fed., 241;

Ullman vs. Meyer, 85 I11., 222;

Clark vs. Reese, 267 ex. Civ.

App., 619.

78 Blackburn vs. Mann, 85 I11., 222; Lawrence vs. Cooke, 56 Me., 187.

79 Alderman vs. Chester, 34 Ga.,

152; Roberts vs. Rockbottom Co., 7 Metc, 45.

80 Greene vs. Harris, 9 R. I., 401;

Warner vs. Texas, etc., R. Co., 164, U. S., 418.

81 Higgins vs. Gager, 65 Ark., 604,

47; S. W., 848.

If no value is stated by the parties, the question as to whether the value exceeds fifty dollars (the limit in the American statutes) is one of fact for the jury.82 If the amount involved is uncertain at the time of the making of the contract and ultimately exceeds fifty dollars, the statute applies.83 Where several articles are sold together, the value of each of which, by itself, is less than fifty dollars, but which are of more than fifty dollars' value in the aggregate, the question whether there has been but one transaction, or a series of different transactions,is one of fact.

There is some uncertainty as to just what is included under this section. "The language of the English statute and the statutes of many of the United States is 'goods, wares, or merchandise.' The language in other states is 'personal property' and in yet others, 'goods, chattels, or things in action.' These expressions are held in England, to include every kind of tangible, movable personal property, and in some of the United States, certain intangible personal property as well."84

82 Gerndt vs. Conradt, 117 Wis., 15.

83 Kaufman vs. Farley Mfg. Co., 78

Iowa, 679; Brown vs. Sanborn, 21 Minn., 402.

84 20 Cyc, 243.

Promissory notes,85 bonds,86 other choses in action,87 and corporate stock 88 are generally held to be within the statute in the United States, but not in England.89

An acceptance and receipt of part of the goods takes the contract out of the statute.90 What is a sufficient receipt and acceptance is considered by the Court in Jamison vs. Simon:91 "This action was brought to recover damages alleged to have resulted to the plaintiffs by reason of the breach by the defendants of a contract for the sale of a certain lot of wool. The contract was oral, and no part of the price was paid. Under such circumstances the contract is by the statute declared to be invalid unless 'the buyer accepts and receives part of the thing sold.' Civil Code, Sec. 1739. 'There must be not only a delivery of the goods by the vendor,' said the court of appeals of New York (Caulkins vs. Hellman, 47 N. Y., 452), 'but a receipt of the goods, with an acceptance of them by the vendee liable for the price; and this acceptance must be voluntary and conditional. Even the receipt of the goods, without an acceptance is not sufficient. Some act or conduct on the part of the vendee, or his authorized agent, manifesting an intention to accept the goods as a performance of the contract, and to appropriate them is required to supply the place of a written contract.' By the terms of the contract in the present case the wool was to be delivered by the plaintiffs to the defendants at the railroad depot in Merced; but, as says the vendee, the contract was invalid in law. That the wool was not accepted on the part of the defendants because of its alleged dampness, clearly appears from the evidence. Indeed, the objection of defendant's agent to accepting the wool is admitted in a letter put in evidence from the plaintiff Jamison, to his co-plaintiff, Stewart, in which Jamison says: The wool is damp. Mr. Simon wants me to discount twenty-five pounds on the bale. I am not willing to do it. We have agreed to wait eight or ten days after the rain is over, to weigh the wool if the dampness is out of it.' The evidence further shows that at the expiration of the time agreed on, Simon still refused to accept the wool, and the plaintiffs then sold it in Merced at the highest price obtainable, and brought this suit to recover the difference between the amount realized by the sale and the amount the wool would have brought at the price fixed in the oral agreement with the defendants. But as there was no acceptance of the property on the part of the defendants the case comes within the statute of frauds, and the action cannot be maintained."

85 Baldwin vs. Williams, 3 Metc,

365, Contra; Vawter vs. Griffin, 40 Ind.. 593.

86 Hagar vs. King, 38 Barb, 200.

87 French vs. Schoonmaker, 69 N.

J. L., 6. 88 Pray vs. Mitchell, 60 Me., 430;

Boardman vs. Cutter, 128

Mass., 388.

89 Humble vs. Mitchell, 11 A & E.,

205; Bradley vs. Holdsworth'

1 H. & H.. 156. 90 Gardet vs. Belknap, 1 Cal.. 399;

Calkin vs vs. Lock wood, 17

Conn., 154. 91 68 Cal., 117,8 Pac., 502.

There may be a constructive acceptance while the goods remain in the hands of the vendor.92

The payment of earnest money also takes the transaction out of the operation of the statute.93 Such earnest money may be paid either at the time the contract was entered into, or afterwards.94

92 Buckley vs. Waterman, 13 Conn., 328.

93 Howe vs. Jones, 57 Iowa, 130, 8

N. W., 451, 10 N. W., 299; French vs. Boston National Bank, 179 Mass., 404, 60 N. E., 793. 94 Thompason vs. Alger, 12 Metc, 425.