ized agent of the other; the agent must be a third person. (1) (a) The seventeenth section (b) of the statute of frauds enacts, "that no contract for the sale of any goods, wares, and merchandizes, 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 of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authori zed." (c) An agreement to sell goods for a certain price to be paid on delivery would have been a valid contract, according to the rules of common law; so that if the buyer had made a regular tender of payment at the appointed time, or, if no time were fixed, within a reasonable time, and the other party had refused to deliver, he might have brought his action against the seller for a breach of the contract; or, if the seller had afterwards sold the goods to another person without any default in the first buyer, he would have been subject to an action of trover. But the rule of law is now altered by the statute of frauds, on a sale of goods for the price of ten pounds or upwards; in which case, the contract of sale will not be binding, unless one of the three requisites mentioned in this section has been strictly observed. (1) Wright v Dannah, 2 Campb. 203. (a) A sale of land by the sheriff under execution, is a sale within the statute of frauds, and requires a deed or note in writing to pass the estate. Simonds Catlin, 2 Caines' Rep. 60. Jackson d. Grats v Catlin, 2 Johns. Rep. 249. (b) N. Y. R. L. 1 vol. 79. sess. 10. chap. 44. rec. 15. c) Vide ante, 374, n. Where indeed it is stipulated that the contraet is not to be performed within the space of a year, there, as we have before seen, a written memorandum of the agreement is made necessary by the fourth section; and the giving of something in earnest, or in part of payment, would not be sufficient, it is presumed, in such a case to dispense with that requisite. As, where the contract is to make a carriage at a certain price, and deliver it at the end of a year and a half, there a written memorandum is necessary, for the reason before mentioned; although, as will be presently shewn no such memorandum would be absolutely necessary, if the stipulation respecting the delivery after the year, were omitted. On the construction of this section, an opinion at one time prevailed, that it did not apply to executory contracts, that is, to contracts not to be immediately performed. (1) In the case of Towers v. Sir J. Osborne, (2) Ch. Justice Pratt ruled, that an action would lie for the value of a chariot, which the defendant had bespoke and afterwards refused to take, though there was no written memorandum of the bargain, and no earnest; the Ch. Justice being of opinion, that this was not a case within the statute of frauds, which relates only to contracts for the actual sale of goods, where the buyer is immediately answerable, (unless time is given to him by special agreement,) and where the seller is to deliver the goods immediately. Yet it seems evident from the words used by the legislature, which are very general and extensive, that the provision was intended to comprehend executory as well as other contracts. Indeed, such a provision is peculiarly necessary in the case of executory contracts; because they are in their nature more likely than any others to be attended by that uncertainty and confusion, which it was the great (1) See the ground of the decision in Towers v Sir J. Osborne, by Pratt, C. J. 1 Str. 505. which was adopted by the court of K. B. in Clayton v Andrews, 4 Burr. 2101, S. P. Bull. N. P. 279. S. P. by the opinion of Yates J. in Simon (377) object of the legislature to prevent. It has therefore been settled by the later authorities, that executory contracts for the sale of goods, wares, and merchandizes, to be delivered at a future time, to the amount specified, are within the meaning of the statute. (1) (a) But still, it may be observed, that although one of the grounds (namely, the executory nature of the contract,) upon which the decision in the case of Towers v. Sir J. Osborne partly proceeded, has been contradicted, yet the decision in that case has not been overruled, and may be supported on another ground. There, the contract was not for the purchase of goods, but for the making of something, which had no existence at the time; it was a contract for work and labour to be done, and materials, &c. to be supplied, and distinguishable from a mere contract of sale, to which species of contract alone the statute is applicable; (2) for the seventeenth section speaks of acceptance of part of the goods as one of the requisites to bind the bargain, and is supposed therefore not to extend to those cases in which the subject-matter of the contract is incapable of delivery and part acceptance. (3) So, in the case of Clayton v. Andrews, (4) (where the contract was for a quantity of wheat to be delivered some weeks afterwards, the wheat at the time of the contract being unthrashed,) the Court of King's Bench were of opinion, on the authority of the last case, that the contract was binding, without any earnest or delive (1) Rondeau v Wyatt, 2 H. Bl. 63. Cooper v Elston, 7 T. R. Alexander v Comber, 1 H. BI. 20. (2) See the opinion of Lawrence J. in Cooper v Elston, 7 T. R. 17., and in Emmerson v Heelis, 2 Taunt. 42.; and the judgment of Lord Loughborough (a) In the case of Bennett v Hull, 10 Johns. Rep. 364. The Supreme Court of New-York say, "The 15th section of our statute of frauds (sess. 10. c. 44.) and which is the same as the 17th section of the English statute applies as well to executory as to other contracts; and the decision of the English courts on this point in Rondeau v Wyatt, (2 H. Bl. 63.) and in Cooper v Elston, (7 Term Rep14.) contain the sound and just construction of the statute. ry of part, and without any written memorandum. Here, also, as it has been observed, some alteration was to be made in the state of the commodity previous to the delivery; (1) for it was necessary that the corn should be first thrashed. This perhaps may seem a very nice distinction; but still the work to be performed in thrashing, made, though in a small degree, a part of the contract. In the case of Rondeau v. Wyatt, (2) the defendant made a verbal contract to sell and deliver a certain number of sacks of flour to the plaintiff, to be put in sacks which the plaintiff was to send, and to be shipped on board of vessels to be provided by him; and the Court of Common Pleas, after much consideration, were of opinion, that the plaintiff could not recover, as the requisites of the statute had not been complied with. Here the subject-matter of the contract (the flour,) though it was to be put into sacks and shipped by the defendant, was yet in a deliverable condition, and specifically the same article from the first to the last; in the other case, the corn was unthrashed, and not in a state capable of delivery. Sales of real property by auction have, as was before mentioned, been frequently determined to be within the 4th section; and from reading the words of the 17th section, which are very general, and apply without exception to all contracts for the sale of goods, it might be supposed that sales by auction were intended no less than other kinds of sale. (a) However, in the case of Simon v. Motivos, (3) the Court of King's Bench inclined to be of opinion, that a sale of goods by auction was not within the statute. "The solemnity," said Lord Mansfield, "of that kind of sale precludes all perjury (1) By Lawrence J. in Cooper v Elston, 7 T. R. 17. Eyre C. J. in RonJeau v Wyatt, 2 H. Bl. 67. (2) 2 H. BI. 67. Astey v Emery, 4 Maule & Selw. 262. (3) 1 Black 599. 3 Burr. 1922. S. C. The report in Burrow is very short, and merely notices the point, adding that the court inclined to be of this opinion. a Vide ante 375. n) [530] as to the fact itself of sale." He added, "According to the inclination of my present opinion, auctions in general are not within the statute; but this is not necessary to be now determined." Mr. Justice Wilmot said, "It may be a great question, whether sales by auction are within the statute; I am inclined to think sales by auction, openly transacted be fore five hundred people are not within the statute." Mr. Justice Yates said, "I much doubt, whether the contract was within the statute of frauds." Mr. Justice Aston said nothing upon the point. The case was determined principally upon the ground, that the note of the auctioneer, mentioning the buyer's name and the price, &c. in the usual manner, was a memoran. dum of the bargain by him as agent of the buyer; and another circumstance, namely, that the goods were on the day after the bidding weighed out to the buyer's servant, was thought to be very material. Upon the whole, the question seems not to be completely settled by the case of Simon v. Motivos, which, it may be observed, was antecedent to those before mentioned upon the fourth section. The point was very little considered; and the plain construction of the statute most clearly applies to all contracts for the sale of goods, as well those at a public auction as by private sale. The observations on this subject in a late case (1) are extremely strong, and deserving of the greatest consideration. "With all deference to these opinions," said Lord Ellenborough, alluding to the opinions in the case of Simon v. Motivos, "I do not at present feel any sufficient reason for dispensing with the express requisition of a memorandum in writing in a statute applying without exception to all sales of goods above the value of 101. merely because the quantum of parol evidence in the case of an auction is likely to render the danger of perjury less considerable. That argument in a degree applies to all sales in market overt; and if we once get loose from the positive (1) Hinde Whitehouse, 7 East, 568 |