THE SEVENTEENTH SECTION

STATUTE OF FRAUDS.

OF THE

SECTION 65. THE RULES AS TO SALE OF GOODS.

The seventeenth section of the statute of frauds, which has to do purely with the sale of goods, is as follows: "No contract for the sale of goods, wares or merchandises for the prices 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 payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." This part of the statute of frauds has been enacted in nearly all the States of the Union,-Illinois, Ohio, Delaware, Kansas, Texas, Virginia, and Pennsylvania being exceptions.

The original English statute became a law in 1677, and its passage and authorship is credited for the most part to Lords Hale and Nottingham.

SECTION 66. CONTRACTS WITHIN THE STATUTE.

Broadly speaking, this section of the statute includes all contracts for the sale of goods for the price specified. The term sale being understood in its ordinary meaning, that is, a transfer of the property rights in goods. The statute is also held to apply to executory contracts of sale as well.' It includes also

1 Brown vs. Farmer's L. & T.

Assn., 117 N. Y., 266.

the sale of goods by auction, and likewise the transfer of goods by barter and exchange; a sale of a part interest is also included as within the statute. The value of the goods may not have been determined at the time of sale owing to the fact that the quantity remained indeterminable, the price eventually determined upon, will then control, in determining whether they are within the statute, or, whether the price as eventually shown is not sufficient to bring them within the statute. Where a number of articles are bought, the aggregate value of which exceeds the necessary statute price, the contract is within the statute.5

A contract of sale is none the less within the statute, because there is incorporated in the contract ancillary agreements which are not within the statute." In the case cited the court decided that a contract for the sale of a mare, was not taken out of the statute, because of an agreement for the feeding of the mare and another mare, which was not included in the sale. SECTION 67. WHAT IS INCLUDED IN TERMS, GOODS, WARES AND MERCHANDISES.

The original idea is, that the words, include all kinds of corporeal movable property, and the English decisions held that the statute did not apply to incorporeal rights and property such as stocks, and shares, etc.' The English rule has been followed in part in the United States, but the majority of the decisions are to the contrary, the Massachusetts court, for instance, has decided that a sale of promissory notes

is within the statute,' as is also the sale of shares in a manufacturing corporation,10 and the Maryland and Connecticut courts have held the same. The Maine court has held a sale of bank notes is within the statute." So it may be said that the term, goods, wares and merchandise, includes both corporeal and in a qualified sense at least, incorporeal personal property, according to the general rule in the United States. SECTION 68. ACCEPTANCE AND RECEIPT OF THE GOODS.

Lord Blackburn has used the following language in commenting on the clause of the statute, in reference to receipt of part of the goods and acceptance: "The receipt of part of the goods is the taking possession of them. When the seller gives to the buyer the actual control of the goods, and the buyer accepts such control he has actually received them. Such a receipt is often evidence of an acceptance, but it is not the same thing; indeed the receipt by the buyer may be, and often is, for the very purpose of seeing whether he will accept or not. If goods of a particular description are ordered to be sent by the carrier, the buyer must in every case receive the package to see whether it answers his order or not; it may even be reasonable to try part of the goods by using them; but though this is a very actual receipt it is no acceptance, so long as the buyer can consistently object to the goods as not answering his order. It follows from this, that a receipt of the goods by a carrier, or on board ship, though a sufficient delivery to the purchaser is not an acceptance by him so as to bind the contract, for the carrier, if he be an agent to receive, is clearly not one to accept the goods.""12 To satisfy

• Baldwin vs. Williams, 3 Met., 367. 10 Tisdale vs. Harris, 20 Pick. 9.

11 Gooch vs. Holmes, 41 Me., 523. 12 Blackburn on Sales, 22, 23.

the statute, the acceptance by the vendee, should be made with the intention of taking possession of the goods of the owner.18

It will be seen that delivery, or mere possession by the vendee, is not enough. Acceptance need not be by the vendee in person, however, but may be made by his duly authorized agent. It will also be seen that the vendee has the right of time, for making examination of the goods, and the right of rejecting same, if not in accordance with his order.

The acceptance may never take place, because one of the party may make a disaffirmance of the contract, either with or without just cause, before the acceptance is made, and while the contract is still unenforceable because of the statute.14

The acceptance need not be made expressly, it may be inferred from the acts or conduct of the buyer in reference to the goods, either by the buyer's act in retaining the goods, for an unreasonable length of time after their receipt, without giving notice to the seller of an intention not to accept,15 or by conduct before or after the receipt of the goods, that would be inconsistent with the ownership of the seller. Where the goods at the time of the sale are in the hands of a third party, the statute is satisfied, where the third party attorns to the buyer, the seller giving his assent thereto, the third person then holding the goods as bailee of the buyer."7

16

Receipt of the goods need not necessarily precede acceptance, nor is it necessary that receipt and acceptance be contemporaneous. Acceptance may be

13 Knight vs. Mann, 118 Mass., 143. 14 Remick vs. Sanford, 120 Mass., 309.

15 Taylor vs. Smith, 2 Q. B., 71.

10 Beaumont vs. Brengeri, 5 C. B.,

301.

17 Boardman vs. Spooner, 13 Allen,

353.