liberty to sell them to another. [The United States courts CH. 11 will not enforce an agreement made in fraud of the laws of Art. 2. the United States.] Whatever sum is paid as earnest, is to be deemed part of the price when the goods come to be paid for. 3 Cranch. Earnest, therefore, is no more than an advance or payment, 242. or a part of the price. 5 Co. 177.-2 Vern. 606. 1 Saund. 319, Pordage v. 2 H. Bl. 316, 3. The deft. agreed to sell goods to the plt., who paid a Cole.certain sum as earnest, and the goods were packed in the plt's. 1 Esp. 15. clothes, and left in the deft's. store till the plt. should send for Goodall v. them; but the deft., at the same time, declared they should Skelton.not be taken away till he was paid. The court held, this was no delivery to the plt., and vested no property in the goods in him; he had no right of action for them till paid for. If the vendee do not perform the bargain, the deposit is forfeited. 1 Esp. 15. 4. If A agree to purchase plate of B, and he, to get A's 7 T. R. 64., arms engraved on it, and to pay for the engraving; the court Owenson r. held, that a delivery to the engraver for this purpose was no 2 Com. D. delivery to A, but that B might stop the plate in transitu, the 135. price not being paid by A. See 2 Phil. Evid. 118. Morse. Back v. § 5. If A and B agree to exchange horses, and B pay A 5 T. R. 409. $1 to bind the bargain, A may sue B for not delivering the Owen. horse, and need not allege his offer to deliver his own to B, for the payment of earnest vests the property of A's horse in B; but A must allege, (or it is bad on special demurrer) he specially demanded the horse of B, and that he did not deliver him. Contra, Ch. R. 16. Voll v. Smith. $ 6. Earnest, or part payment for land purchased, according to the better opinion, does not amount to a part performance, so as to take the case out of the 11th section of the statute of frauds, in law or equity; for the legislature has said 1 Vern. 482. in the 17th section, that such earnest shall, as to goods, have the effect, but not in the 11th section as to lands. The cases are many, and sometimes contradictory, and it will be observ- 3 Atk. 1, Laed, that all the cases cited in this article respect goods. In sup- tins. port of the above position, are New. on Con. 187 to 191; Ch. R. 128, Symonds v. Cornelius; 7 Vesey 341; and Seagood v. Meale, a. 8; 4 Vesey 720, Main v. Milbourne, and Sugden's Vendors &c. 88, 89. con v. Mer. Owen v. Da $7. Change of property without earnest paid, &c. A, know- 2 Ch. Ca. 135, ing B was insolvent, sold him goods for a promissory note at vies. sixty days; the goods were left in A's possession, and no earnest 2 Caines' R. paid; A shewed them as the goods of B; held, B's sale was 38, Hunn & good against one made by A, though B became insolvent, and the note remained unpaid. al. v. Bowne. § 8. An agreement void ab initio, cannot be subsequently 3 Caines' R. affirmed by a new promise. As where an insolvent gave his 213, Payne note, date blank, to his creditor, to induce him to sign a peti Eden. CH. 11. Art. 4. 10 Johns. R. 250, 251, Locke v. Smith. Hob. 41, 42, 1 Com. D. 401. 1 Roll. 449. Bro. Con tracts 27.1 Com. D. 403. tion for the benefit of the insolvent. Held, it was absolutely void, though the payee signed last, and without him the insolvent had a sufficient number and amount for his discharge; leaving the date blank, to be filled up after the insolvent's discharge, did not cure the defect; and the contract being void in its execution, was incapable of being affirmed, and when endorsed for the benefit of a relation of the payee, and ultimately his benefit; held, also, it was open in the endorsee's hands to the same objections as in the payee's hand. court. § 9. Agreement implied. In error on certiorari from a justice's Action assumpsit for labour &c. against Locke. Smith signed a writing; for value received he promised to paint Locke's house in a particular manner specified in the writing; and B endorsed on it a promise that the agreement should be executed in a workmanlike manner. S. sued L, and he pleaded the agreement by way of set-off, and claimed damages for the non-performance. Held, a valid contract between S. and L. which might be set off. ART. 3. Effect of the word pro or for, and of conditions in agreements. § 1. If I agree to sell a horse to A for £100, he cannot take him till he pays. So if I agree to pay $50 for a year's work, he cannot sue for the $50, but on alleging he has done the year's service. § 2. When an agreement is conditional, it is not complete till the condition is performed. As if I sell goods at such a price as A shall name, the contract is not complete till A names the price; but when he does this, it relates back to the time of the agreement, and if the vendor sells in the mean time, an action of assumpsit lies against him. 3. If the condition be, if the vendee like the goods on view of them, if he agrees or disagrees on his first seeing them, the matter is fixed; but if the agreement be, that if he likes or dislikes them, at such a day, if he declare his liking or disliking See Ch.80, a. before the day, he may alter it at the day, as he has to that day to form his opinion. 34. Mass. Act, This statute as debt of an other is the same as ART. 4. Writings, when necessary to support an action on June 20, 1788. an agreement. 1. This article has been already in part to paying the considered, in treating of a promise to pay the debt of another. This act, 1st, enacts, that "no action shall be brought, whereby to charge any executor or administrator upon any special prom29 Ch. II, c.3. ise to answer damages out of his own estate; 2, is as before in regard to paying the debt of another; 3, to charge any person upon any agreement made upon consideration of marriage; 4th, or upon any agreement that is not to be performed in one year from the making thereof, unless the agreeinent, upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the Laws of Maine, ch. 53. CH. 11. Art. 4. party to be charged therewith, or some other person thereto by him lawfully authorized. 5th. That no contract for the sale of any goods, wares, or merchandise, of the price of £10 or more, shall be allowed to be good, except the purchaser 10 Johns. R. shall accept part of the goods so sold and actually receive the 364. same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the bargain be made and signed by the party to be charged therewith, or some other person thereto by him lawfully authorized." See 29 Charles II, s. 17; Ch. 32, a. 7. A bill of parcels with the deft's. name printed, and vendee's written by vendor, is a good memorandum to charge the vendor. 2 Maule & S. 286. 244. 2. This act is in the same words as was the province 10 Johns. R. statute of 1692, and as is the statute of frauds and perjuries Must be exof the 29th Charles II. in England. And the same construc- press, not to tion has been invariably made upon all of them. Same in be performed New York act (Sess. 10, c. 44,) enacted, and in most of the states. Hence English constructions apply to them. acts. within a year. Cock v. Ba See Ch. 32.— Ld. Raym. 387.-2 Eq. Ca. Abr. 248. 3. As to the 1st provision in this act, as to executors and Strange 34, administrators, it is plain; so clear, that no questions of any ker-Imp. importance are to be found in the books on this branch of the M. P. 167. As to the 2d branch of these acts, the debt of another; this has been considered in Ch. 9, a. 20. As to the 3d branch, it is settled, that mutual promises to marry are not within the act; for they relate only to contracts in consideration of marriage, as to pay money, make settlements, &c. in consideration of a marriage had, or to be had. There are, however, some few cases to the contrary, as 3 Lev. 65; Skin. 196. 1 Com. D. 199. Imp. M. P. 167, 168. 3 Bl. Com. Chris. notes, 1281.-Bull. 4. As to the 4th branch or provision respecting one year. It is settled, that "where the agreement is to be performed on a contingency, and it does not appear within the agreement that it is to be performed after the year, then a note in writing 13.-3 Burr. is not necessary, for the contingency might happen within N. P.277. the year; but when it appears by the whole tenor of the agree-See Skin. ment, that it is to be performed after the year, then a note in 336, 353. writing is necessary," otherwise not. 1 W. Bl. 353. 1 B. & Alder son, 722. Peter v. 3 Burr. 1278, 5. As where the deft. agreed for one guinea, "to give the Salk. 280.— plt. so many guineas at the day of his marriage." This might Pet Frompton, happen within the year. So a promise to pay on the return Skin. 353.of a ship, which did not return in less than two years; this 3 Salk. 9. promise is good without writing, for the event might have hap- Fentonv.Em pened within a year, and the statutes extend only to those blers, exr.promises that, by the terms of them, are not to be performed 1Ld. Raym. within the year. 6. Assumpsit against the deft. as executor of Mary May, 3 Burr 1278, in consideration the plt. would be his house-keeper and ser- Embler's exr. -1 W. Bl. 353, cited Rob. on Frauds 188.-Cited 1 Phil. Evid. 366. 31 VOL. I 316, Smith v. Westal. Fenton v. Сн. 11. 2 Vent. 361. 199.-3 Bos. & P. 233, Kent v. Hutchinson. vant &c., by parol, promised her to give her £8 a year, and leave her by his will an annuity of £16 a year. She lived with him till he died, and he not making the provision in his will, she sued his executor; and the court held, that no note in writing was necessary, as it depended on a contingency that might happen within a year; as the testator might have died within that time. Bul. N. P. 280.-1 Salk. 279.-1 Ld. Raym. 316.-11 East 142, 159, 366. 7. A letter by one is a good memorandum, that he pro-1 Com. D. mises the thing contained in it, for this matter is in writing and signed by the proper person; but not a letter refusing the offered goods, and returning them, saying the price was too high. Every writing must contain the material parts of the agreement. Ch. 32, a. 10, s. 12. 1 Stra. 506, Powers v. Osborne, cited as law 1 Esp. 14. 8. As to the said fifth provision in the statute as to goods &c., of the value of £10 or more sold &c., numerous decisions have been made. Only a part of the most authentic can be noticed here. The words of this clause in the act may be taken in order. "No contract for the sale" &c. Once held, that this did not extend to contracts executory, or to be executed; as where the deft. spoke for a chariot, and when made refused to take it; held, not within the act. Like decisions 4 Burr. 2101, Clayton v. Andrews, as to the sale of wheat &c. But this opinion, that the act relates only to executed contracts, or where the goods were to be delivered immediately after the sale, has been sometime exploded. § 9. It is now held, if the goods agreed for are complete and ready for delivery when the bargain is made, the case is within the statute, but otherwise, if not ready, but are to be made or manufactured, or some labour is to be done, or materials provided, in order to make them ready to be delivered. § 10. Cases. The plt. agreed to buy sheep at the Leeds fair, and take them away at a certain hour. There was no money paid, no sheep delivered; the plt. not coming to take the sheep at the time appointed, the deft. sold them to A, the plt. brought trover. Held, the case was within the statute, and that no property vested in the plt. there being neither earnest, delivery, nor agreement in writing-no doubt the price was above £10. Here was a bare agreement by parol only, and no act done to change the property, and the goods were ready to be delivered when agreed for. But an agreement to leave money by will, need not be in writing; an act to be done but in future, see Fenton v. Emblers, above, s. 6. The statute of New York, sect. 15, like 29 Ch II, sect. 17 above, applies as well to contracts executory as executed. Agreement to sell apples, value above $25. 10 Johns. R. 364, Bennet v. Hull.-Grover v. Duck, 3 Maule & Sel. 179.Cooper v. Elston, 7 D. & E. 14.-4 Maule & S. 262, Astley v. Emery. The next words in the clause are, goods, wares, and merchandise; there seem to have been no decisions explaining these words. In Pickering v. Appleby, Com. R. 354, 358, the court doubted if they included ten shares of stock in copper mines; many cases cited by the counsel as to the meaning of the words goods &c. cited Roberts on Frauds 184. See the cases cited Rob. on Frauds 184 to 188, as Colt v. Netterville, 2 P. W. 307.-Mussel v. Cooke, Pr. in. Ch. 533. On the whole, the leaning seems to be, that stocks are not goods, wares, or merchandise. Next words, £10 or upwards in Massachusetts, is £10 lawful or $33.33; New York, £10 or $25, in England, £10 sterling; so varying in some other states. CH. 11. Art. 4. 233, Kent v. Huskinson. Next words are," except the purchaser shall accept part of 3 Bos. & P. the goods so sold and actually receive the same" &c. There must be an acceptance that confirms the bargain. As when the plt. sent a bale of sponge under a verbal order to the deft. at 11s. a pound. The deft. returned it, and with it a letter, saying it was worth but 6s. and so he returned it. Held, this letter did not amount to such an acceptance of the goods as to take the case of the statute. As to what is a delivery and acceptance, see Ch. 32, a. 10, s. 1, 2, 3, 4, Towers v. Osborne, Chaplin v. Rogers, Searle v. Kieves, Hind v. Whitehouse. See also Elmore v. Stone, 1 Taun. 458, and Ch. 32, a. 3, s. 4, Atkinson v. Maling, a ship at sea. See 2 Ves. 272-3 Bro. Ch. Ca. 362, if the buyer treats the goods as if in his actual possession, this is an acceptance that confirms the bargain. The delivery of a sample must be a part of the goods sold, Ch. 32, a. 10, s. 4, Hinde v. Whitehouse, Cooper v. Elston, 7 D. & E. 14. Talver v. West, 1 Holt's R. 178. Quære, as to part performance, 1 Ves. jr. 326, 334.-2 Johns. R. 221, 227, many cases cited undecided, Ch. 32, a. 11, s. 8. Strong cases as to accepting, and received, A. D. 1820, 3 Barnwall & Alderson 321, Howe v. Palmer. Vendee, verbally agreed at a public market with the vendor's agent, to buy twelve bushels of tares in the vendor's possession on his farm, to remain there till called for. The agent on his return home measured the twelve bushels, and set them apart for the vendee. Held, no acceptance. Page 680, Tennet v. Fitzgerald. A agreed to buy a horse of B for ready money and take him. away in a time agreed on. Near the expiration of that time A rode the horse, and gave directions as to his treatment, and requested he might remain longer in B's possession, but did not pay. Held, no acceptance. 1 Phil. Evid. 380, 381. Next words in the act are," or give something in earnest to bind the bargain" &c. See cases on this point, Ch. 11, a. 2, s. 1, 2, 3, Ch. 139, a. 8, s. 9, Ch. 214, a. 5, s. 2, and 1 |