« ΠροηγούμενηΣυνέχεια »
a store-keeper for the goods) was sufficient to satisfy the statute and change
#61 , the property,(s) and even pointing out of ponderous goods (as logs *in L"-a boom) was delivery sufficient to change the property.(t)
5th, That it was sufficient acceptance under the statute, to receive a bill of parcels and an order on the warehouseman for the goods, and pay the price.(u)
6th, That, as part performance, it was sufficient generally to take the case out of the statute, that the act was such as would not have been done but on account of the agreement; and that being done, with a view to performance, it was prejudicial to the person so acting,(V) or such as usually or necessarily follows such an agreement,(W)—the difficulties which had been found to attend the very rigid construction of the English law having led the American Judges so far to relax the rule as to admit symbolical delivery as sufficient.
The law of America, standing thus on the same footing as that of England, under the statute of frauds, the precise words of which had been adopted in the American statute, the following alterations were made in the Revised Statutes of New York in 1836.
1st, That instead of 25 dollars as the amount of the price requiring the contract to be subject to the rule of the statute, it should apply only to contracts to the value of 50 dollars.
2d, That, as to - the buyer accepting and actually receiving a part of the goods,” the difficulties which had arisen in America, as well as in England, o from the *restrictive word “ actually,” even in cases where, from
necessity or the convenience of trade, the parties were obliged to satisfy themselves with a virtual or symbolical, or constructive delivery, and which had induced the American courts in some cases to hold symbolical delivery enough, it was thought expedient to remove those difficulties by striking out the word “ actually.”(2)
3d, Another modification of the former law was suggested and adopted as to requiring payment of part of the price. The words " at the time" were introduced, so as to require the bargain to be bound at the time of making it,.. by such payment.
The Revised American Statute of Frauds, as applicable to sale, stands thus:
“ That every contract for the sale of any goods, chattels, or things in action for the price of 50 dollars or more, shall be void, unless, (1.) a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby; or, (2.) unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action; or, (3.) unless the buyer shall at the time pay some part of the purchasemoney.”(y)
It is further provided, with a view to the protection of creditors against devices by which they are frequently defrauded, and, in order to correct too
(8) Wilks v. Ferris; 5 Johns. 385. Hollingworth v. Napier ; 3 Caines's Rep. 182.
rigid a rule, holding every sale and mortgage of moveables, without immediate possession, as void : “ That every sale made by a vendor of goods or chattels in his possession or *under his control, and every assignment, of goods and chattels by way of mortgage or security, or upon any L" condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession of the things sold, mortgaged, or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vender or the creditors of the person making such assignment or subsequent purchasers in good faith ; and shall be conclusive evidence of fraud, unless it shall be made to appear, on the part of the persons claiming under such sale or assignment, that the same was made in good faith, and without any intent to defraud such creditors or purchasers.”(z)
Proof of Sale by the Law of Scotland.
The proof of the contract of sale of goods and merchandise by the law of Scotland is not confined to written evidence, except in the few cases already stated, where it is specially required by statute. All the evidence which is admissible to prove facts is competent to establish this contract ; solemn written contracts, notes, or memorandums, signed by the parties, correspondence, invoices, and bills of parcels, or parole evidence, without either earnest or part payment of the price, or part delivery of the goods, may all of them be resorted to in support of an action on the contract of sale.
In those cases in which writing is made necessary, or *when the parties choose that mode of proof, it may either be by a formal con- L.09.1 tract, signed before witnesses, and bearing the name and designation of the writer and witnesses, or by writings holograph of the parties, and signed by them, or by a note or memorandum in writing, not holograph but signed.(a) The law was more strict formerly, it having been held, in the earlier cases, that a writing bearing the terms of the contract should be holograph of the obligor, and that the authenticity of the subscription, when the writing was not holograph, should be proved by the person founding on it. But this was afterwards deemed inconsistent with the facilities required in commercial dealings; and it is now held that a writing or memorandum, though neither witnessed nor holograph, if signed by the parties, is probative and sufficient to maintain an action, unless the defender shall prove it to be false.(6)
Parole evidence, where the parties rely upon that sort of proof, requires the testimony of two witnesses, or of one witness with circumstantial evidence. But where the parties have agreed to reduce their contract to writing, parole evidence is not admitted to alter the terms, or even to complete what may have been omitted, and is essential to the contract.
There is a limitation, however, of parole evidence as applicable to sale,
(2) 2 Revised Statutes, c. 7, tit. 2, § 5, and Reviser's Notes, vol. 3, p. 657. (a) 3 Ersk. 2, 24.
(b) Paterson v. Wright, Jan. 31, 1810; Fac. Coll.; affirmed 4th July 1814; 1 Bell's Illus. p. 176. See Ramsay v. Pyronon, July 12, 1632; Mor. 16,963; 3 Bell's Illus. p. 72. Forrest v. Veitch, July 19, 1676; Mor. 16,970; 3 Bell's Illus. p. 72. M'Lurg v. E. of Dalhousie, Jan. 2, 1678; Mor. 16,970. Goodlet Campbell v. Lennox, Dec. 18, 1793; Mor. 16,979; 3 Bell's Illus. p. 72.
namely, that after five years the *bargain cannot be proved, otherLudwise than by the writing or admission on reference to oath of the person to be charged.(c) But this limitation has been held not to apply to a consignment of goods on an advance made by the consignee.(d)
Thus the distressing subtleties and nice distinctions which have oocasioned so much litigation in England relative to the part-delivery of goods as binding the bargain, and which in America are now avoided by the change upon the Revised Statutes of New York, have no place in the law of Scotland. And it does not appear that any of the evils or inconveniences which compelled the English Legislature to pass the Statute of Frauds have attended the more relaxed rule established in Scotland. And, indeed, it well may be doubted whether the requisite of a note or memorandum in writing, signed by the party, may not in this age of frequent and successful forgeries, produce more numerous frauds than the course which has been adopted in the law of Scotland.
Proof of Sale by the Law of France.
By the ordinance of Moulins in 1566, proof by witnesses was greatly limited in cases not commercial. Contracts for a value above 100 livres were required to be completed before notaries and witnesses, or constituted by price vate writing, verified after a certain prescribed *mode. But an exL os ception was, in practice, made of mercantile dealings on account of
the necessary rapidity of such transactions, and of the difficulty of having written evidence of such dealings made out in the market place. Parole evidence in such cases was first admitted in the mercantile tribunals by « les Juges et Conseils des Marchands,” and they continued, notwithstanding the above ordinance, to admit parole evidence in mercantile cases by a discretionary administration of the law, wherever the good credit and character of the dealer, or the attending circumstances, seemed to render that a safe course to be followed.
When this matter came to be settled in later times, the framers of the Code Civile, in lạying down the rule of written evidence in ordinary agreements, added, “ Without prejudice to what is prescribed in the laws relative to commerce.” And in settling for the Code de Commerce what should thus be prescribed, after much discussion it was resolved, so far to yield to the favour of trade, and the impossibility or difficulty of preparing written evidence amidst the hurry of many commercial dealings, as to leave the power of admitting parole evidence in the discretion of the mercantile courts. At first it was proposed to admit parole testimony only when commenced in written proof.” But this, in detail, was found to be very inexpedient and inconvenient; as most of the dealings in the provinces were by illiterate persons who could not write, nor keep books, such as farmers, carriers, and countrymen who transact their business in fairs; and the checks and guards on dishonesty make parole evidence on the whole not dangerous in such cases, as disputes seldom occur, except on occasions of extraordinary rise or fall of
(c) Stat. 1669, c. 9; 3 Ersk. 7, 20. White v. Spence, Jan. 1683; Mor. 11,065; 1 Bell's Illus. p. 349. Ewart v. Murray, June 1730; Mor. 11,067; 1 Bell's Illus. p. 349. Nobles v. Armstrong, June 11, 1813; Fac. Coll.; 1 Bell's Illus. p. 349.
(d) M-Farlane v. Brown, Jan. 17, 1827; 5 S. 205; 1 Bell's Illus. p. 349.
prices, and *then witnesses are always found sufficient to prevent *887 injustice. On these considerations it was settled that “the contract of sale may be constituted by parole proof, wherever the tribunal should think it ought to be admitted.”(e) This is held to imply, 1st, That the mercantile tribunals are entitled, according to mercantile practice, to sustain parole proof without requiring a commencement in writing ; 2d, That the spirit of the law requires them to be very circumspect in receiving such proof; but, 3d, That in admitting it rashly, and without proper checks, they are guilty of no violation of the law, however exceptionable their judgment may be in the particular case, or in the conclusion at which the Judges have arrived. (f)
In the administration of the law thus modified, it is of course held to be the duty of the Judge, where the proofs are not in all respects clear of doubt, to take care, by means of concurring testimony, or of accompanying circumstances, to search out the truth ; and in this respect the French law does not seem to differ much from that of Scotland.
Formal contracts, by “ actes authentiques,” or “actes sous signe privé,” subscribed by the parties ; or simple letters duly exchanged; or correspondence ; although one or the other of the necessary proofs of the agreement may be in the power of one of the parties, (g) are all admissible as good evi. dence of sale.
Referring to the code, and to the commentaries of Toullier and Pardessus(h) for the requisites of the *actes authentiques,” it is sufficient here to say, that they derive their authority as genuine from the L os mutual assent or subscription of the parties before official persons or notaries. Where this formal act is used, it must be agreeably to the rules laid down in the common law, and must forego all the privileges of a mercantile writing ; but it is, of itself, proof of the contract and of its terms against the parties, requiring only, when founded on beyond the territory where made, the character and signature of the officer to be established by a judicial attestation.(i) Against third parties, however, it is proof only of the fact of the act itself.(k) i
* Actes sous signe privé” are proper contracts, formally extended and subscribed by the parties. The rule is, “ that no writing is of itself proof,"'(“ aucune écriture ne fait foi par elle-même,”) and it admits of exception only in favour of actes authentiques."(1) But writings under private signature, though not of themselves probative, are, at least, to a certain extent worthy of credit, being made the ground-work of a judicial demand, under the penalty, if insisted in, of the person being held to use a forged writing. (m) The person whose name it bears, and who is called upon as bound by it, may be required to confess or deny his signature, to the effect, on his acknowledging its authenticity, or keeping silence, of being held bound ; and, in case of denial of the signature, all sorts of evidence, parole, or *comparison with recorded signatures in “ actes authentiques,” by skilful L. examiners of manuscript, (n) may be admitted to establish the contract. (e) Code de Commerce, Art. 109.
(f) 9 Toullier, 367. (g) Toullier, vol. viii. No. 325; Duvergier, vol. xvi. p. 204. (h) Toullier, vol. viii. p. 102–274; 2 Pardessus, No. 242. i) Pothier, Traité des Obligations, No. 734.
(k) Ibid. No. 735-8. O Pothier, des Obligations, No. 742; Toullier, vol. viii. p. 291, (m) Code Penal, Art. 150–51.
in) Code de Procedure, Art. 195. “Si le defendeur denie la signature à lui attribué," _"la verification en pourra être ordonné tant par titres que par experts, et par temoins." - Toullier, 313.
Formal contracts, then, under private subscription, are evidence only when fortified by admission, or by proof of the genuineness of the subscription. In effecting this, witnesses are admissible, if they were present when the writing was subscribed ;(0) if not, but know the party's subscription, as having seen him write and sign his name. This is less to be relied on, and seems to require the aid of comparison by skilful persons of the writing, with others admitted or proved to be genuine.(P) Failing such proof, testimony seems admissible to facts which necessarily imply the existence and subscription of the writing, and its terms.(g) So that the result is, that “actes sous signe privé,” i. e. contracts formal and subscribed privately, commence by written proof what may be completed by witnesses in verification.(?)
“Comparatio literarum,” seems in France not to be admitted as evidence, except as an inference or argument or presumption of fact only: thus according so far with the opinion of the English Judges, that it is not evidence, but -*80 opinion,-a mere auxiliary to the Judge in *the search of truth, and
Od the admission of which is left very much to discretion.(8)
To the general rule, that an “acte sous signe privé” is effectual, two exceptions have been stated :
1. Bills and notes must have the sum recognised by the obligant; either the whole bill, or at least the sum, must be written by him,(a) except bills by merchants, artisans, and journeymen. And,
2. In mutual contracts there must be a duplicate for each party, otherwise they shall not be probative (« valable,") i. e. shall not of themselves bear full faith.(t) To this, however, there is an exception in commercial dealings. See below, p. 71.
Besides those more formal and solemn kinds of written proof, which, of course, may occasionally be used in commercial dealings, there are several other kinds of writing admissible in evidence. Thus,
1. An offer and acceptance in writing will afford good proof of a contract, even in matters not mercantile, although it may be in the power of one of the parties to destroy either of these writings. In this the commercial law differs from the common. If the latter be held to require duplicates and fortification by other proofs, in the former, the writings themselves are proof, and duplicates are not required.(u) * 2. Missives are good evidence to any extent, and are *indeed the
" ordinary mode of concluding dealings between merchants at a distance from each other. "
3. Accounts of sale and invoices, and bills of lading, sent to correspondents, and bought and sold notes passed between the parties by brokers, are legitimate proofs in mercantile law.(v) .
Invoices and accounts of sale require acceptance to bind the person to whom they are sent. But such acceptance may be proved otherwise than by writing, -as by witnesses or circumstances.(w) (0) 8 Toullier, 315.
(p) 8 Toullier, 317.. b) Code de Procedure, Art. 211. “Pourront être entendus comme temoins ceux," — (r) 8 Toullier, 325.
(8) 8 Toullier, 327. 343–362. la) Code Civ., Art. 1326. See 8 Toullier, 414, and seq. " (1) Art. 1325; 8 Toullier, 476, and seq.
(u) Code de Commerce, Art. 109. “Les achats et ventes se constatent par la corres. pondance." 2 Pardessus, No. 245.
(v) Code de Commerce, Art. 109. . (w) 2 Pardessus, No. 248.