the question suggested on this point by Lord Mansfield, in Simon v. Motivos, (c) has long been at rest. (d) ute. a contract for flour to be ground from wheat, bargained for, but not then received, was decided not to be within the statute. See, also, to the same effect, Donovan v. Willson, 26 Barb. 138; Parker v. Schenck, 28 Ib. 38; Mead v. Case, 33 Ib. 202; Higgins v. Murray, 73 N. Y. 252. But in Downs v. Ross, 23 Wend. 270, this subject was discussed with great ability by Bronson J., and the English and some American cases reviewed; and the court decided that a sale of seven hundred bushels of wheat, part of which was yet to be threshed, and the rest to be cleaned more thoroughly, and all to be delivered in six days, at a price fixed, was a sale of goods, and within the statute. Cowen J. dissented, upon the ground that the question was closed by the early English and New York decisions; but said that, were it an open question, he would not deny that a contract to manufacture and sell would more correctly be considered a sale within the statIn Wright v. O'Brien, 5 Daly, 54, the plaintiff employed an artist to copy in Wright v. crayon, from a small photoO'Brien. graph, a likeness of the plaintiff's child. Of the contract Daly C. J. said: This was not a contract for the sale and delivery of goods, wares, and merchandise, in which both delivery and acceptance are essential to the validity of the contract under the statute of frauds. It was the employment of an artist to copy in crayons a photograph, for which he was to be paid a specified sum -an agreement for the performance of work and labor, in which almost the sole ingredient was his labor and skill; the materials, which consisted of the canvas upon which the work was executed, and the crayon pencils with which it was done, being unimportant and merely ancillary to his contract for skill, work, and labor." Flint v. Cor. In Flint v. Corbitt, 6 Daly, 429, the plaintiff kept a large warehouse for the sale of furniture, which he manufactured at another place in New York city, and finished at the warehouse. bitt. ers. The defendant went to the warehouse and selected a sofa, two arm-chairs, and four other chairs, from patterns shown there, which were not covered, or only covered in part, the plaintiff having a large num ber of the like articles already manufactured and in the warehouse ready to be covered according to the taste of customThe defendant chose brocatelle for the covering, this not being a usual covering. All that remained to be done to the furniture was to cover and varnish it. The articles were covered, varnished, and sent to the defendant's house, but he refused to receive them. Daly C. J. said: "This was a contract of sale. . . . . When the contract is for the purchase of an article which the vendor usually has for sale in the course of his business, which he keeps in his warehouse substantially made, but not entirely finished, that the taste or wish of the purchaser may be consulted as to the final finish, the finishing of it in the way that the purchaser prefers does not change it from a contract of sale into a contract for work and labor. What is in contemplation of the parties is the purchase and sale of an article which is examined and selected, but upon which something more is to be done, which, as a matter of taste, choice, or expense, is left to the purchaser." See Rentch v. Long, 27 Md. 188; 2 Kent, 511, note (d); Phipps v. M'Farlane, 3 Minn. 109; Seymour v. Davis, 2 Sandf. 239; O'Neil v. N. Y. Mining Co. 3 Nev. 141; Cooke v. Millard, 5 Lansing, 243; S. C. 65 N. Y. 352; Passaic Manuf. Co. v. Hoffman, 3 Daly (N. Y.), 495; Bates v. Coster, 1 Hun, 400; Kellogg v. Witherhead, 4 Ib. 273; Smith v. N. Y. Cent. Ry. 4 Keyes, 180; Parsons v. Loucks, 48 N. Y. 17; Deal v. Maxwell, 51 Ib. 652; Courtwright v. Stewart, 19 Barb. 455.] (c) 3 Burr. 1921, and 1 W. Bl. 599. (d) [Davis v. Rowell, 2 Pick. 63; Pike v. Balch, 38 Maine, 302, 310; O'Donnell v. Leeman, 43 Ib. 158, 160; Morton v. Dean, 13 Met. 385; People v. White, 6 Cal. 75; Talman v. Franklin, 3 Duer (N. Y.), 395; 2 Kent, 539.] § 111. THE 17th section of the statute applies to contracts for the sale of "goods, wares, and merchandise," words which comprehend all corporeal movable property. The statute, therefore, does not apply to shares, stocks, documents of title, choses in action, and other incorporeal rights and property. (a) The following cases have been decided on (a) [In some of the American States the "Goods," &c. Indiana. same construction of the corresponding provision of their statute of frauds has been adopted. In Indiana the word "goods" alone is used in the seventh section of the statute of frauds, which corresponds to the seventeenth section of the English statute; but it is held that the legal effect of the section remains the same and that it does not apply to contracts for the sale of shares, notes, checks, bonds, or evidences of value. Vawter v. Griffin, New Hamp40 Ind. 593. So in New Hampshire, it was held that promissory notes are not embraced in the terms "goods, wares, and merchandise," shire. Choses in within the action not statute. Georgia. as used in the statute of frauds. Whittemore v. Gibbs, 24 N. H. 484. See Hudson v. Weir, 29 Ala. 294. In Beers v. Crowell, Dudley (Ga.), 28, it was decided that treasury checks on the Bank of the United States were not within the statute. But in MassachuBaldwin v. Williams, 3 Met. setts. 367, it was decided in Massachusetts that a sale of promissory notes is within the statute. So of shares in a manufacturing corporation. Tisdale v. Harris, 20 Pick. 9; North v. Forest, 15 Conn. 404; Pray v. Mitchell, 60 Maine, 430; Colvin v. Wil- Maine. liams, 3 Harr. & J. 38; Maryland. Thompson v. Alger, 12 Met. 428; Ross J. Connecticut. this point: The statute does not apply to a sale of shares in a joint stock banking company, Humble v. Mitchell; (b) nor to a sale of stock of a foreign state, Heseltine v. Siggers; (c) nor to a sale of railway shares, Tempest v. Kilner, (d) Bowlby v. Bell, (e) Bradley v. Holdsworth, (ƒ) and Duncroft v. Albrecht; (g) nor of shares in a mining company on the cost-book principle, Watson v. Spratley, (h) Powell v. Jessop. (i) Florida. § 112. Most of the foregoing decisions went upon the ground in Fay v. Wheeler, 44 Vt. 292, 293. A jects of common sale and barter, and which sale of bank bills was held within the stat- have a visible and palpable form. To ute of frauds in Maine. Gooch v. Holmes, include in them an incorporeal right or 41 Maine, 523; Riggs v. Magruder, 2 franchise, granted by the government, seCranch C. C. 143. In Somerby v. Buntin, curing to the inventor and his assigns the 118 Mass. 279, 285, Gray C. J. said: "It exclusive right to make, use, and vend the was held by the court of chancery in Eng- article patented; or a share in that right, land, before the American Revolution, that which has no separate or distinct existshares in a corporation were goods, wares, ence at law until created by the instru and merchandise within the statute of ment of assignment; would be unreasonfrauds. Mussel v. Cooke, Pre. Ch 533; ably to extend the meaning and effect of Crull v. Dodson, Sel. Cas. in Ch. 41." In words which have already been carried quite far enough." Somerby v. Buntin, 118 Mass. 279, 285. Chanter e. Dickinson, 5 M. & G. 253, was cited in support. In Galpin v. Atwater, 29 Conn. 93, p. 98, Ellsworth J. expressed an opinion to the contrary, but the point was not necessarily involved in the decision. The point is rendered somewhat unimportant as regards the statute of frauds by virtue of Congressional enactments. R. S. of U. S. § 4898. Jordan v. Dobson, 4 Fisher, 232; Dalgleish v. Conboy, 26 U. C. C. P. 254. See Blakeney v. Goode, 30 O. St. 350. In Springfield v. Drake, 58 N. H. 19, Bingham J. said: "A patent is personal property. . . . and, if it were not for the law of Congress, could be conveyed by parol." Burke v. Partridge, 58 N. H. 349, p. 353.] New York. Florida the statute of frauds contains the expression “personal property," in addition to the words used in the 17th section of the English statute; and it has been held in that state that shares are included in the statute. Southern Life Ins. & Trust Co. v. Cole, 4 Florida, 359. See Gadsden v. Lance, 1 McMullan Eq. 87. In New York choses in action are expressly named as requiring a writing for the sale of them, and the cases below will help to show the effect of the enactment. People v. Beebe, 1 Barb. 379; Allen v. Aguirre, 3 Selden, 543; S. C. 10 Barb. 74; Thompson v. Alger, 12 Met. 436; Artcher v. Zeh, 5 Hill, 200; Peabody v. Speyers, 56 N. Y. 230; Hagar v. King, 38 Barb. As to sale of an interest in an invention before and after letters patent granted. 200; Kessel v. Albetis, 56 Ib. 362. In a case where the question arose whether an oral agreement for the sale of an interest in an invention, before letters patent are obtained, is a contract within the statute of frauds, Gray C. J. said: "The words of the statute have never yet been extended by any court beyond securities which are sub (b) 11 A. & E. 205. (f) 3 M. & W. 422. (h) 10 Ex. 222, and 24 L. J. Ex. 53. that the sales were of choses in action not properly embraced in the words "goods, wares, and merchandise," but some turned upon other enactments, to which it will now be convenient to refer. These are, first, the 4th section of the statute of frauds; and secondly, the exemption in the stamp act, of agreements relating to the sale of goods, wares, and merchandise. of statute § 113. The 4th section (7) of the act of 29 Car. 2, c. 23, enacts, "that no action shall be brought whereby to charge any 4th section executor or administrator upon any special promise to of frauds. answer damages out of his own estate, or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriages of another person; or to charge any person upon any agreement made upon consideration of marriage; or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." The stamp act, 55 Geo. 3, c. 184, in the schedule (reënacted in the Stamp stamp act, 1870), title "Agreements," exempts from laws. stamp duties every "memorandum, letter, or agreement, made. for or relating to the sale of any goods, wares, or merchandise." § 114. It is often important to determine whether a sale of certain articles attached to the soil, such as fixtures and growing crops, is governed by the 17th section as being a sale of "goods, wares, and merchandise," or by the 4th section, as a sale of an "interest in or concerning land." Though these two sections, on a cursory perusal, might seem to be substantially the same, both requiring some written note or memorandum, signed by the party to be charged, a more attentive consideration will show very material distinctions. Agreements under the 4th section require a written note or memorandum, under all circumstances, and for any amount or value. But under the 17th section, the necessity for the writing does not exist when the value is under 107., and it may be dispensed with (7) It was held in Leroux v. Brown, 12 C. B. 801, and 22 L. J. C. P. 1, that this section is applicable to a contract Difference between 4th and 17th sec tions. made in a foreign country. See remarks on the case by Willes J. in Gibson v. Holland, L. R. 1 C. P. 1 ; 35 L. J. C. P. 5. in contracts for larger sums, by proof of part acceptance or part payment by the buyer, or by the giving of something in earnest to bind the bargain. Again, a contract for sale under the 17th section is exempt from stamp duty, but if the agreement be for a sale of any "interest in or concerning land," a stamp is required. Practically, therefore, the whole controversy between the parties to an action is often finally disposed of by this test. What is an interest in land under the 4th § 115. Complaint has been made at different times of the unsatisfactory character of the decisions in which the courts have sought to establish rules distinguishing with accuracy and certainty whether a contract for the sale of section. things attached to the soil be or not a sale of an interest in land within the 4th section. Lord Abinger, in 1842, gave expression to this complaint in a somewhat exaggerated form when he said, "It must be admitted, taking the cases altogether, that no general rule is laid down by any one of them that is not contradicted by some other. (m) § 116. Before entering upon an examination of the decisions, it will conduce to a proper understanding of the subject to transcribe in full the remarks of Mr. Justice Blackburn on the general principles of law involved in the question. "The statutes are now applicable to all contracts for the sale of goods, wares, and merchandise,' words which, as has been already said, comprehended all tangible movable property; I say movable property, for things attached to the soil are not goods, though when severed from it they are; thus, growing trees are part of the land, but the cut logs are goods; and so, too, bricks or stones, which are goods, cease to be so when built into a wall, they then become a part of the soil. Fixtures, and those crops which are included amongst emblements, though attached to the soil, are not for all purposes part of the freehold. § 117. "It seems pretty plain upon principle that an agreement to transfer the property in something that is attached to the soil at the time of the agreement, but which is to be severed from the soil and converted into goods before the property is to be transferred, is an agreement for the sale of goods within the meaning of the 9 Geo. 4, c. 14, (n) if not of the 29 Car. 2, c. 3. The agreement is, that the thing shall be rendered into goods, and then in that state sold; it is an executory agreement for the sale of (m) Rodwell v. Phillips, 9 M. & W. 505. (n) Lord Tenterden's act, ante, § 93. |