be taken as part of the commodity purchased, it is a sufficient Taking a acceptance within the meaning of the statute; but if it be sample. delivered as a specimen of the quality only, and be not considered as part of the bulk sold, it is not a sufficient accept ance a SECTION XVI. EARNEST. Ir is laid down in Blackstone's Commentaries, that if any part of the price is paid down, if it is but a penny, or any portion of the goods is delivered by way of earnest, it is binding b. To constitute a payment as earnest, or part payment, within the statute, there must be an actual transfer of the thing or money agreed to be so given; therefore, where the vendor drew the edge of a shilling across the palm of the vendee's hand, and afterwards returned the shilling to his own pocket, which in the North of England is called "striking the bargain," it was held not sufficient to satisfy the statute c. The delivery of a bill of exchange or promissory note in part payment, according to agreement, would clearly be sufficient, such an instrument amounting to payment till dishonoured. Drawing the edge of a shilling across the palm of the hand is not earnest. SECTION XVII. NOTE OR MEMORANDUM IN WRITING. No particular form of words is necessary to satisfy this requisite; the statute only requires written evidence of the bargain. The memorandum should, however, specify the article sold, the price, if any be agreed upon, and the names of the contracting parties d. Where the memorandum was in these words, "we agree to give Mr. E. 19d. per lb. for thirty bales of cotton, customary The conneed not be sideration expressed in the note. It should contain the price. If no price be stipu lated for, the memorandum need not mention a price. allowance cash, 3 per cent., (signed) Mathews and Turnball;" it was held sufficient within the meaning of the statute, though no consideration was expressed for the promise, the court considering that the word "bargain," used in the 17th sec. had not the same technical signification as the word "agreement," in the 4th. "The words of the statute are satisfied," said Lord Ellenborough, "if there were some note or memorandum in writing, of the bargain, signed by the parties to be charged therewith; and this was a memorandum of the bargain, or at least of so much of it as was sufficient to bind the parties to be charged therewith, and whose signatures to it was all that the statute required." a Where in an action for the price of horses, the memorandum of the bargain did not state the price, in consequence of which the plaintiff was nonsuited; on a motion to set the nonsuit aside, the court said, that the price agreed to be paid constituted a material part of the bargain. If it were competent to a party to prove, by parol evidence, the price intended to be paid, it would let in much of the mischief which it was the object of the statute to prevent b. But as the statute only requires a note or memorandum of the bargain, that is, of the terms on which the parties contract, a memorandum is good, though no mention be made therein of As where the the price; provided no price be stipulated for. defendant gave an order to build a new, fashionable, and handsome landaulet, &c.; it was held, that a note containing the terms of the order, without mentioning the price, was sufficient to satisfy the provisions of 9 Geo. IV: c. 14, s. 7. But if any specific price had been agreed upon, the court said, that the note would not be sufficient, and that where the parties were silent as to price, the law would infer that they intended to sell and buy at a reasonable price c. of the con tract be in several distinct writings, it ficient. will be suf The whole of the terms of the contract need not be comprised If the term in one document; it is sufficient under this section, as under the fourth, if the terms can be collected from several distinct comprised writings containing internal references to one another. Thus, an order for goods signed by the vendor in a book of the vendee, may be connected with a letter of the vendee to his agent mentioning the name of the vendor, and with a letter of the vendor to the vendee claiming the performance of the order, to constitute a complete contract. So, a bill of parcels in which the vendor's name is printed, may be connected with a subsequent letter from the vendor to the vendee. Where the purchaser of flour gave a notice in writing to the seller, who had delivered part of it, that it was of a bad quality and unsaleable, and required him to take it away, and in which notice the quantity, quality, price, and time of delivery were stated; and the attorney for the vendor answered the notice, stating that the latter had performed his contract as far as it had gone, and was ready to complete the remainder; held, that these two documents were a sufficient memorandum or note in writing of the contract, to satisfy the terms of the statute ©. So, where goods were sold by auction to an agent, and the auctioneer wrote the initials of the agent's name, together with the prices opposite the lots purchased by him, on the printed catalogue, and the principal afterwards in a letter to the agent recognized the purchase; held, that the entry in the catalogue and the letter, coupled together, were a sufficient memorandum of the contract within the statute 4. But where there was a defective memorandum of the bargain, and the vendee wrote a letter recognizing the order, but at the same time insisting that the terms of it had not been performed, inasmuch as the goods had not been delivered in time; held, not sufficient to supply the defects of the memorandum. where the letter stated that the goods had not arrived, and that if they did not arrive in a few days, the defendant, (the vendee,) Allen v. Bennett, 3 Taunt. 169. › Saunderson v. Jackson, 2 B. & P. 238. Jackson v. Lowe, 7 Moore, 219. S. C. 1 Bing. 9. VOL. II. So, d Phillimore v. Barry, 1 Camp. 513, ante, 1048. Cooper v. Smith, 15 East, 103. See Smith v. Surman, 9 B. & C. 561, ante, 1040. A A a must get them elsewhere". Letters offering and accepting price, do not constitute an agreement executed in writing within the statute b. Where, at a public auction, the conditions of sale were read by the auctioneer before the biddings commenced, but the printed catalogue did not refer to the conditions, nor were they attached to it, and the agent of the defendant was declared the highest bidder for a lot, and the auctioneer put down the price, 100 guineas, and the name of the agent opposite the lot in the sale catalogue; held, that this was not a sufficient memorandum in writing of the bargain to satisfy the statute; but if the conditions of sale had been annexed to the catalogue, the putting down the agent's name would have been sufficient to bind his principal c. SECTION XVIII. AGENT. Who is an agent with. in the statute. THE statute requires that the note or memorandum should be "made or signed by the parties to be charged therewith, or their agents thereunto lawfully authorized." It has been established by several decisions that an auctioneer is agent for both parties; and if he writes the name of the vendee in the catalogue it will satisfy the statute, provided the conditions of sale be annexed to the catalogue, or referred to thereby d The agent contemplated by the statute, who may bind a defendant by his signature to the memorandum of a bargain, must be a third person, and not the other contracting party e. Where, therefore, an auctioneer wrote the name of the defendant in his book opposite to a lot purchased; held, in an action brought in the name of the auctioneer, that such entry was not sufficient to take the case out of the statute f a Richards v. Porter, 6 B. & C. 437. с Popham v. Eyre, Lofft. 786. Kenworthy v. Schofield, supra. Phillimore v. Barry, ante, 1061. f Farebrother v. Simmons, 5 B. & A. 33. Rayner v. Linthorne, 2 C. & P. 124. But where an auctioneer's clerk attended the sale, and as each lot was knocked down named the purchaser aloud, and on a sign of assent from him entered his name in a book; it was held, in an action by the auctioneer, to be a memorandum by an agent lawfully authorized; for the clerk was not identified with the auctioneer, (who sued,) and in writing down the name he was impliedly authorized by the vendee to act as his agent". If an agent without authority make a contract in writing for the purchase of goods by his principal, who subsequently ratifies the contract, such ratification will render a note or memorandum of the sale, signed by the agent, sufficient under the statute b. A broker A broker also, is the agent of both parties. It is the duty of a broker to enter in a book, kept by him, a memorandum of the terms of any contract which he effects, and the names of parties. the parties. The broker's signature to such entry is sufficient to satisfy the statute; for he is in law the agent of both parties. The bought and sold notes delivered to the parties constitute the contract between them, and not the entry made by the broker in his book d. Where a broker made an entry of a contract in his book, which he omitted to sign, and sent to the respective parties bought and sold notes copied from the book and signed by him; it was held a sufficient memorandum of the bargain to satisfy the statute. But if the bought and sold notes sent to the respective parties be imperfect, or if there be a variance between them, In Grant v. Fletcher, infra, Abbott, • Goom v. Aflalo, 6 B. & C. 117. |