Although the mark of the party has been received as a subscription under the statute,(m) it is only where the party cannot write, and the witness has seen the mark affixed by him, or the mark has been admitted to be genuine. And although Tindal, Chief Justice, allowed the testimony of a witness to go to the jury, he not having seen the mark affixed, but having frequently seen the party make his mark, and pointing out some peculiarities as indicating identity, it was with hesitation that he did so.(n)

(2d.) It has been settled that, if the note or memorandum do not contain all the particulars of the contract, it cannot be taken to give a commencement to parole evidence (as proving that a bargain of sale has been entered into), so as to entitle the parties, by parole proof, to establish the particulars of the contract. *According to the true policy of the statute, the note or memorandum must either be in itself complete, or at least the essen[*51] tial terms of the contract must be made out by direct reference, or connection in writing, with something else, or by implied reference to the usage or custom of trade, or rate of the market, or reasonable price. The Court of King's Bench, in a case where an essential alteration had been made on the original sale note, without the consent of the purchaser, refused to allow parole evidence; and Mr. Justice Bayley said, that, "without a written contract, the case would be within the statute of frauds; and the mischief would be the same if parole evidence were let in, to show how much of the contract was good, and how much was bad."(o)

As the price is an essential part of the contract, so, where a special price has been fixed by the parties, it must be specified in the note, and cannot be supplied by parole proof.(p) But if no special price has been fixed, and the note says nothing of the price, the market price will be implied, if the commodity be marketable; or the reasonable worth will be taken, if fairly applicable to the case.(g)

All the other essential parts of the contract must be stated in the memorandum, and cannot be supplied by parole evidence. (r)

The importance of this doctrine is confirmed by the *contrast between cases under the 17th section of the statute, [*52] and engagements under the 4th section, as to which last, the statement of the consideration for the engagement has been strictly required. (s)

The same necessity which, under the statute, has been thought indispensable in respect to the essential conditions of the contract, is not insisted upon in proof of the authority under which an agent signs for the party.This, as already observed, may be proved by parol evidence.(†)

P. 20. Stranger v. Searle, 1793; 1 Esp. 14. Goodtitle v. Braham, 1792; 4 Term Rep. 497; Peake, Addl. Cases, 131. Carey v. Pitt, 1797; Peake, Addl. Cases, 130. Gurney v. Langlands, 1822; 5 Barn. and Ald. 330. In which last case Abbott, Chief Justice, Bayley, Holroyd, and Best, Justices, rejecting the evidence of the inspector of franks at the post-office, held that such evidence, if in any case to be admitted, is of little or no weight. (m) See Lemayne v. Stanley, 1 Phillips on Evidence, 480. (n) George v. Surrey, 1830; 1 Mood. and Malk. 516.

95.

(0) Powel v. Divot, 1812; 15 East, 29.

(p) Elmore v. Kingscote, 1826; 5 Barn. and Cress. 583. Acebal v. Levy, 10 Bing. 384. (2) 2 Blacks. 30. See also Hoadly v. M'Laine, 1834; 10 Bing. 482; 1 Bell's Illus. p. (r) See Brodie v. St. Paul, 1791; 1 Ves. Jr. 326.

(s) See the cases Wain v. Warlters, 1804; 5 East, 10. Phillips v. Bateman, 1812; 16 East, 356. Saunders v. Wakefield, 1821; 4 Barn. and Ald. 595. Egerton v. Mathews, 1805; 6 East, 307. (t) Wilson v. Hart, 1817; 7 Taunt. 295.

DECEMBER, 1845.-39

The summary, then, of the English law as to written proof of sale, is

this:

1st, That there must be a note or memorandum in writing, either signed by the party to be charged on the bargain, or by one authorized by him; or,

2d, That at least the writing must be such as to prove the assent of the party to the terms of the agreement, and the employment of his name as so assenting.

3d, That the authenticity of the signature, or what is to stand as such, must be admitted, or proved by one who has seen it written, or who knows the handwriting by having seen the party write his name, or who has corresponded with him in an interchange of letters known to be written by him.

4th, That a broker employed by the parties may bind them by the boughtand-sold notes, the evidence of such employment, or of the authority to sign for the party, being either in writing or by parole.

*5th, That the writing must contain all the essential parts of the [*53] agreement, the thing sold, and the price to be paid, or must refer specially, or by necessary implication, to the market or reasonable price of the commodity.

6th, That letters of correspondence, or other writings, out of which the assent of the parties to the essential terms of the bargain can be collected, will satisfy the statute.

Parole Proof-The original statute of frauds admits parole proof of sale in the following cases of bargains to the amount of £10 or upwards, as exceptions to the general rule by which a written note or memorandum is required, viz., where the buyer shall accept part of the goods sold, and actually receive the same; or give something in earnest to bind the bargain, or in part of payment." And the more recent act relative to executory sales, extends the same rule to "all contracts for the sale of goods of the value of £10 and upwards, notwithstanding the goods may be intended to be delivered at some future period, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery."(u)

The construction of these acts seems to admit of no doubt; and in several cases, both in the King's Bench and Common Pleas, it has been held that a verbal contract, without earnest or part payment, or delivery and acceptance in whole or in part, is not binding on the parties. Lord Loughborough, in 1792, laid down: That *though an agreement (to furnish 3000 sacks [*54] of flour at 41s. per sack) was confessed, the buyer was not bound; it being one great object of the statute to lay down a clear and positive rule to determine when the contract should be complete, and that there being neither earnest, nor part of the goods received, nor a note in writing signed by the parties, there was no binding contract.(v)

The first doubt on the construction of the act, relates to the amount of the price, whether above £10? It was held, first, that when one goes into a

(u) 9th George IV. chap. 14, § 7.

(v) Rondeau v. Wyatt, 1792; 2 Hy. Blacks. 63; Confirmed in Cooper v. Elston, 1796; 7 Term Rep. 14. Garbutt v. Watson, 1822; 5 Barn. and Ald. 613. See also Wilks v. Atkinson; 6 Taunt. 11.

shop and purchases a number of articles, each below the value of £10, but the amount of the whole is above that value, it is one entire contract, and parole evidence is excluded.(w) But, secondly, it was held in another case of sale by auction, that the purchase of several lots, each set up by itself, and the purchase concluded by an entry in the auctioneer's book, there was not one but several contracts, and the value of each purchase being under £10, parole evidence was admissible.(x)

Earnest given by the buyer to bind the bargain is, when proved by parole evidence, sufficient, and the property is passed. It is not much used in modern practice-does not require to be in money-but the token must be passed between the parties, (y) it having been held insufficient to draw a shilling across the hand of the seller according to the custom of the

north of England.(z)

[ *55]

By the statute, payment of part of the price will give admission to parole

evidence.

The most difficult set of questions has arisen upon that part of the statute by which the bargain is held complete if "the buyer should accept part of the goods sold and actually receive the same." So many nice distinctions and subtleties have been admitted in the construction of this part of the statute, that, to any one not familiar with the peculiarities of English pleading, the doctrine is difficult to be reconciled with the simplicity requisite in practice. Two distinct acts are included; 1st, An act implying delivery on the part of the seller; and, 2dly, An act on the part of the buyer implying his acceptance of the goods as his own.(a)

Acceptance of a part of the goods, however small, is sufficient to bind the bargain, provided it is given and received as part of the goods purchased. But it is not sufficient that a sample has been taken from the bulk and placed as such in the hands of the buyer, unless it is given or taken by the buyer out of the bulk after the bargain, as part of the goods for his own use. The proper use of a sample being to guide the buyer's judgment prévious to a purchase, and not the indication of a completed transference.(b)

Analogous to a sample of goods is the trial of a horse, and the [*56] criterion is, whether the riding of the horse is a mere trial, or the exercise of an act of ownership. And in a case where it was proposed to purchase a horse, and the buyer and his servant ordered the horse out of the stable, galloped, cleaned, and ordered a new roller and strap to be put on, it was left to the jury whether the sale was complete by the directions being given as owner of the horse. They held that it was so; but a new trial was granted, on the ground that the sale was not complete.(c)

The leading principle adopted in construing what shall be held the delivery and acceptance of a part, has, after much discussion and many doubts, been settled to be this, that it is necessary that there shall be such a dealing on the part of the purchaser as to deprive him of any right to object to the quantity or quality of the goods, and on the part of the seller such an

(w) Baldey v. Parker, 1823; 2 Barn. and Cress. 37.

(x) Emerson v. Heelis, 1809; 2 Taunt. 38. Confirmed in Roots v. Lord Dormer, 1832; 4 Barn. and Ad. 77. (y) 2 Black. 447.

(2) Blenkinsop v. Clayton, 1817; 7 Taunt. 597. Bach v. Owens, 1793; 5 Term Reports, 409. (a) Philips v. Bistolli; 2 Barn. and Cress. 511.

(b) Hinde v. Whitehouse, 1806; 7 East, 558; 1 Bell's Illus. p. 87. Talver v. West, 1816; Holt's Cases, 178. Cooper v. Elston; 7 T. Rep. 14.

(c) Tempest v. Fitzgerald, 1820; 3 Barn. & Ald. 680.

act as will put an end to his lien on the goods for the price.(d) Thus Lord Chief-Justice Eyre held that the delivery of an order on the holder of a quantity of rice purchased verbally was sufficient to bind the seller.(e)

In another case it was held that an act tantamount to delivery, as the giving of the key of the warehouse in which the goods are lodged, or the disposal of a part of the goods by the buyer to a third party, is sufficient to satisfy the statute.(f) Again, it was held in respect to a sale of wine, that the cutting off of the spills, and marking the initials of the buyer on the *cask by [*57] the seller's clerk, was a sufficient delivery and acceptance under the statute, though not perhaps perfect to other purposes.(g)

But the mere operation of weighing out, or measuring, and laying aside, a commodity, does not seem to be sufficient acceptance and delivery according to the statute. (h) When, however, the article has been placed or left in possession of the seller, on a contract distinct from that of sale, this has been held sufficient: as where two horses having been purchased by verbal agreement, the buyer desired the seller to place them in his livery stable instead of the sale stable: this was held a sufficient delivery.(i) And in all the subsequent cases, this case has been held a leading precedent, and the change of the contract from sale to that of custody, has been held the criterion of a delivery and acceptance in terms of the statute.

The difficulties which arose in those cases, seem to have been accumulated in another,(k) where a race-horse having been purchased, the operation of firing was done under the inspection of the buyer, the seller agreeing to keep the horse for twenty days without charge, and the horse, on expiration of that time, was, by the buyer's direction, entered at grass in the name of the seller, no time being given for payment of the price. The Court held, that the horse having been entered in *the name of the seller, and no time given for payment of the price, there was no delivery in terms of the statute.

[*58 ]

In the case of a foreigner bidding at auction for an article of jewellery, on condition that a part of the price was to be paid on being declared bidder, and the residue on delivery, it was held that the handing of the article to the foreigner, who objected that he had been mistaken as to the price he had bid, was not a delivery and acceptance in terms of the act.(?)

In one case of an executory contract, a person employed another to make for him a wagon, and furnished to him iron and a tilt with which to complete the work. The wagon was finished, and the workman brought his action for the price, but he was nonsuited on the ground that there was here no acceptance under the statute, which there would have been if, after the work was finished, the person who ordered the wagon had sent a workman of his own to perform any additional work on it; and that where any doubt remains, it is safe to adhere to the plain words of the statute, which point as clearly as

(d) Smith v. Surman, 1829; 9 Barn. & Cress. 561. Hanson v. Armitage, 1822; 5 Barn. and Ald. 557. (e) Searles v. Keeves, 1798; 2 Esp. 398.

(f) Chaplain v. Rogers, 1800; 1 East, 192. (g). Anderson v. Scott, 1806; 1 Camp. 235; 1 Bell's Illus. p. 88. See also Hodgson v. Le Bret, 1808; 1 Camp. 233.

(h) Howe v. Palmer, 1820; 3 Barn. and Ald. 321.

(i) Elmore v. Stone, 1809; 1 Taunt. 458. See Smith v. Surman, 1829; 9 Barn. & Cress. 561. (k) Carter v. Toussaint, 1822; 5 Barn. and Ald. 855.

(1) Philips v. Bistolli, 1824; 2 Barn, and Cress. 511.

words can do to an actual delivery and an actual receiving of the whole or part of the goods sold. (m)

In reviewing the cases on the construction of this statute, it is to be lamented that there is a want of the simplicity in the rules according to which the binding force of a bargain is to be determined, which is so desirable in a matter of daily occurrence. This seems to proceed from two causes,-from the strictness of English *pleading, and the rigid adherence to certain

requisites as essential to the nature and success of particular actions; [*59 ]

and from allowing the doctrines relating to the direct transference to be confounded with those which properly belong to a question of evidence relative to the contract between the parties. In those systems of jurisprudence in which the doctrines of transference of property, and those of contract and engagement, are kept distinct, these perplexities and subtleties are avoided. And it does not seem obvious, on perusing the statute of frauds, that there was any other intention on the part of the Legislature than to exclude parole evidence in those cases in which there was no overt act proving that the parties had seriously engaged to complete the transference.

Proof of Sale by the Law of America.

The law of the United States of America in this matter is grounded on the law of England, and has indeed been settled nearly on the footing of the English statute of frauds, as applicable to all contracts for the sale of goods or chattels for the price of 50 dollars or more. What has already been said, therefore, on the statute of frauds, may be applied generally, but with certain exceptions, to the American law; and accordingly the venerable Chancellor of the United States has, in his excellent Commentaries, referred to the English cases as precedents and authorities on these points.(n)

The statute of frauds, as thus adopted in America, *has a few years ago been reconstructed by the Legislature of New York, and the rules as so fixed, are proclaimed in the Revised Statutes.(o) Under the law, as it formerly stood, it was held—

[*60]

1st, That a mere contract to sell, without delivery, actual or symbolical, did not pass the property.

2d, That the rule requiring either writing, or alternatively part payment of the price, or a delivery and acceptance of the whole, or of part, of the goods, extended to executory sales, as well as to others, the Court declaring in one case,(p) that the American Statute of Frauds, in the 15th section (corresponding with the 17th section of the English) extended to executory contracts as to others, and that the decisions of the English Courts, in Rondeau v. Wyatt, (q) and Cooper v. Elston, (q) contained the sound and just construction of the statute. But,

3d, That it did not extend to a contract for goods to be manufactured, only to goods in solido, as wheat unthrashed.(r)

4th, That delivery of the documentary evidence of title (as the receipt of

(m) Maberly v. Shepherd, 1835; 10 Bing. 99.

(n) 2 Kent, Com., 493 and seq.

(0) Revised Statutes of the State of New York, vol. 2, chap. 7; vol. 3, p. 657. (p) Burnet v. Hall, 1813; 10 Hen. Johns. Rep. 372, confirmed in Newman v. Morris, 4 Har. and M. 421. -(9) See above, p. 54.

(r) Sewell v. Fitch, 1828; 8 Cowen's Rep. 215.