125 LECTURE IV. SALE OF GOODS, ETC., UNDER THE 17TH SECTION OF CONTRACTS BY DEED AND OF SIMPLE CON TRACTS. I CONCLUDED in the last lecture the consideration of the five cases in which the 4th section of the Statute of Frauds renders it necessary that a contract should be reduced into writing. There are, as I then said, a few other cases, which, being of constant occurrence, it will be right to specify before proceeding to the next branch of the subject. The first of these cases is that of a sale for the price of £10 or upwards, regarding which the 17th section of the Statute of Frauds has provided as follows: "No contract for the sale of any goods, wares, or merchandizes for the price of £10. or upwards shall 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 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 Sale of goods of value of £10. or upwards Sect. 17. contract, or their agents thereunto lawfully authorised." As to the subject-matter of this section there is little difficulty in applying it. As to the case of growing crops, and trees, and roots, &c., in the ground, the law has been already considered in treating of the 4th section, see page 109. It has been decided that shares in railway and other jointstock companies are not an interest in land within the 4th section of the Statute of Frauds; nor are they goods, wares, or merchandizes, within the 17th (a). The first great difference which you will observe between this section and the 4th section of the same Act is, that the 4th section renders a writing necessary in all cases which fall within its terms; whereas the 17th mentions three circumstances, any one of which it directs shall be as effectual as a writing, namely, acceptance of any part of the goods, payment of part of the price, and, lastly, the giving something by way of earnest to bind the bargain, or in part payment; any one of which three things will as effectually perfect the sale as a writing would. Where none of these has taken place, a writing, however, becomes necessary; and if there be none, the bargain is void, and there is (a) Humble v. Mitchell, 11 A. & E. 205; Bradley v. Holdsworth, 3 M. & W. 422 ; Bowlby v. Bell, 3 C. B. 284; Knight v. Barber, 16 M. & W. 66; Tempest v. Kilner, 3 C. B. 249. See Baxter v. Brown, 7 M. & G. 198. no sale for, to use the words of Mr. J. Bosanquet in Laythoarp v. Bryant (b), "the 4th section does not avoid contracts not signed in the manner described; it only precludes the right of action. The 17th section is stronger, and avoids contracts not made in the manner prescribed." A parol sale, therefore, unaided by any of the three formalities mentioned in the 17th section as equivalent to writing, is totally and entirely void. A doubt was entertained at one period whether the 17th section included the case of a contract for something not in existence in a chattel state at the time of making the bargain, but which was to become a chattel before the time agreed upon for its delivery (c). Where, for instance, growing timber was bargained for, to be delivered cut into planks, or a ship or a carriage not yet built. However, any doubt that formerly existed on this subject is now put an end to; for, by statute 9 Geo. 4, c. 14, s. 7, it is enacted that the 17th section of the Statute of Frauds "shall extend to all contracts for the sale of goods of the value of £10. sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, 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." These two (b) 2 Bing. N. C. 735. (c) Lee v. Griffin, 30 L. J. (Q. B.) 252. Several documents may be statutes, according to a well-known rule, are to be read as incorporated together (d), one effect of which is that the 17th section of the Statute of Frauds must be read as applying to all goods, &c., of the value of £10., instead of the price to that amount (e). Where a writing is relied on to satisfy the provisions of the 17th section, the rules which govern the case are very analogous to those which I have already stated with regard to the 4th. The signature must be by the party to be charged or his agent. And one party cannot be the other's agent for this purpose (f). Nor can the agent of the party complaining of a breach of the contract signing a memorandum of the bargain at the request of the party to be charged, be considered as the agent of the party to be charged (g). But under neither the 4th nor the 17th section is there any necessity for the agent's being appointed by writing. Under the 17th section, too, as well as under the read together. 4th, several documents may be read together as making up the contract, provided they be suffi (d). Scott v. Eastern Counties Railway, 12 M. & W. 33; Harman v. Reeve, 25 L. J. (C. P.) 257; 18 C. B. 587. (e) Harman v. Reevé, supra. (f) Wright v. Dannah, 2 Camp. 203; Farebrother v. Simmons, 5 B. & Ald. 333. (g) Graham v. Musson, 5 Bing. N. C. 603; Graham v. Fretwell, 3 M. & G. 368. See Bird v. Boulter, 4 B. & Ad. 443, post; and Mews v. Carr, 26 L. J. (Ex.) 39; 1 H. & N. 484; Durrell v. Evans, 30 L. J. (Ex.) 254. ciently connected in sense among themselves without the aid of parol evidence (h). And in such cases, as different phrases are commonly used in the different documents, it is peculiarly important to ascertain that both parties mean the same thing; as where there was a treaty for the sale of a horse, and one wrote that he would buy him if warranted sound and quiet in harness, and the other wrote that he would warrant him sound and quiet in double-harness, it was considered by the Court that the parties never had contracted in writing ad idem, and, consequently, that the statute had not been complied with (i). The defendants wrote to the plaintiffs offering them a certain quantity of "good" harley upon certain terms, to which the plaintiffs answered, after quoting the defendant's letter, as follows:-“ Of which offer we accept, expecting you will give us fine barley and full weight." The defendants, in reply, stated that their letter contained no such expression as fine barley, and declined to ship the same. Evidence was given at the trial that the terms "good" and "fine" were terms well known in the trade, and the jury found that there was a distinction in the trade between "good" and "fine" |