SEC. XIII.] THE 29 CAR. II, C. 3, s. 17, AND 9 G. IV, c. 14, s. 7. 1050

SECTION XIII.

THE 29 CAR. II, c. 3, s. 17, and 9 g. iv, c. 14, s. 7.

goods for

the price

of 101.

SEC. 17, enacts that "no contract for the sale of any goods, Sale of wares, or merchandise, for the price of 10. or upwards, shall be allowed to 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 of 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 contract, or their agents thereunto lawfully authorised."

It having been held in several cases, that the above enactment did not apply to executory contracts, or to contracts for the sale of goods which, to the knowledge of the vendee, were not specifically in existence at the time of the sale; and it being *1051 deemed expedient to extend the remedy to such contracts,

It was enacted by the 9 Geo. IV, c. 14, s. 7, "that the pro- Of the vavisions of the seventeenth section, as aforesaid, should extend lue of 101. to all contracts for the sale of goods of the value of 107, and upwards, notwithstanding that 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."

It is observable that there is a distinction between the wording of the two sections; for the contract mentioned in the seventeenth section, is for the sale of goods for the price of 107.; whereas in the seventh section, it is of goods of the value of 107. In reference to this distinction, Tindal, C. J., says, "the extreme accuracy of the mind of the framer of the 9 Geo. IV, c. 14, s. 7, is shown in this; that while the seventeenth section of the statute of frauds in its enactment touching contracts for the sale of goods, employs the word price, the framer of the latter act has substituted the word value, so that where the parties have omitted to fix a price, it may be open to the jury to ascertain the value in dispute."b

■ Towers v. Osborne, 1 Stra. 505. Clayton v. Andrews, 4 Burr. 2101. The doctrite laid down by these cases, was, however, overruled by Rondeau v. Wyatt, 2 H. Bl. 62. See Cooper v. Elston, 7 T. R. 14. Astey v. Emery, 4 M. & S. 262. Garbutt v. Watson, 5 B. & A. 613. (7 Eng. C. L. 209.)

▷ Hoadly v. M'Lane, 10 Bing. 488. (25 Eng. C. L. 208.)

SECTION XIV.

WHAT CONTRACTS FOR THE SALE OF GOODS ARE WITHIN THESE
ENACTMENTS.

ALL contracts for the sale of goods are within the statute, whether the goods are to be delivered immediately or not. Thus, a contract for the sale of flour, which at the time was not prepared and in a state of immediate delivery, was held to be within the statute. So a contract to sell oil not then expressed from seed in the vendor's possession. So was a con*1052 tract to *supply a house with pipes, to be laid in a specified manner. So, an agreement to furnish chimney-pieces at certain prices, and to finish then in a tradesman-like manner.

Purchas

ral articles

at one

We have seen that a contract for the sale of growing crops is within the 17th section, But whether a contract for the sale of stock falls within the statute, is rather doubtful. In one instance all the judges were divided in opinion upon this point.f

It is now settled, that a sale by auction is within the seventeenth section of the statute of frauds; though it was in one case considered otherwise.h

But a contract to procure goods, and carry them, is not within the statute. As where the plaintiff agreed by parol, that if the defendant would employ his ship to carry corn, he would procure him coals at A., and convey them to B., at a stipulated price; it was held not to be within the statute.i

Where a person at one time purchases several articles at seing seve- parate prices, none of them singly amounting to 107., but together exceeding that sum, questions have arisen whether it be an entire contract for all, or separate contracts for each; if the former, the statutes apply, if the latter, they do not. Upon this point no general rule can be collected from the decisions; every case must be decided upon its own peculiar circum

time at separate

prices.

stances.

Where the defendant, at a public auction, purchased twentyseven lots of turnips severally, but not consecutively, the price of no single lot amounting to 107., the court held, that each lot

Garbutt v. Watson, 5 B. & A. 613. (7 Eng. C. L. 209.)

Wilks v. Atkinson, 6 Taunt. 11. (1 Eng. C. L. 292.)

West Middlesex Water Company v. Suwercropp, M. & M. 408.

d Hughes v. Breeds, 2 C. & P. 159. (12 Eng. C. L. 71.) The point in this case was, whether it was a contract that required a stamp, and it was decided in the negative.

* Ante, 1039.

f Pickering v. Appleby, 2 P. Wms. 307. See Bull v. Dodson, Cas. temp. King, 41. Kenworthy v. Scholefield, 2 B. & C. 945. (9 Eng. C. L. 286.) And see Hinde

v. Whitehouse, 7 East, 558.

Simon v. Motivos, 3 Burr. 1924.

i Cobbold v. Caston, 1 Bing. 399.

was a distinct contract, and therefore not within the statute.a So where the defendant purchased of a traveller of the plaintiff's a cask of cream of tartar, and offered to purchase two chests of lac dye at a certain price, and the traveller said that the price was too low, but that if he did not write to the defendant in a day or two he might have it; the traveller did not write, but afterwards sent the cream of tartar and the lac dye; the court held, that the contracts were distinct, for it could not be considered as an entire or joint order, if as to one article the vendor was to have an option and time for consideration."

But where the defendant purchased various articles at a linendraper's shop, and a separate price was agreed upon for each, no article being of the price of 10l., and he desired an account of the whole to be sent to his house, and a bill, amounting to 70%, was accordingly sent; the court held it to be one. entire contract for the whole of the articles. "Had the entire value," said Bayley, J., "been set upon the whole together, there cannot be a doubt of its being a contract for a greater amount than 10/., within the meaning of the seventeenth section; and I think that the circumstance of a separate price being fixed upon each article, makes no such difference as will take the case out of the operation of that law." Holroyd, J.:-"At first it appears to be a contract for goods of less value than 10.; but in course of dealing, it grew into a contract for a much larger amount. At last, therefore, it was one entire contract within the meaning and mischief of the statute of frauds, it being the intention of that statute, that where the contract, either at the commencement or at the conclusion, amounted to or exceeded the value of 107., it should not bind, unless the requisites there mentioned were complied with."

Where A. agreed to supply B. with a quantity of turnip seed, and B. agreed to sow it on his own land, and sell the crop of seed produced therefrom to A. at 11. 1s. the Winchester bushel; and the seed so produced, at the price agreed upon, exceeded in value the sum of 10/., the court held that the contract was within the statute, and void for want of a memorandum in writing. A sale of goods for more than 107, by *sample in one place, to be afterwards delivered at another, is *1054 within the statute."

It is immaterial that the price agreed upon was enhanced by the fact, that the vendor had to incur an expense in causing the goods to be conveyed to the purchaser.

Emerson v. Heelis, 2 Taunt. 38. Roots v. Lord Dormer, 4 B. & Ad. 77. (24 Eng. C. L. 29.) See James v. Shore, 1 Stark. 426. (2 Eng. C. L. 456.)

Delivery to a carrier

is not sufficient.

same."

SECTION XV.

DELIVERY AND ACCEPTANCE.

THE words of the seventeenth section are, "except the buyer shall accept part of the goods so sold, and actually receive the To satisfy this requisite, two facts are necessary--a delivery by the vendor with the intention of transferring the possession, and an acceptance by the vendee with an intention. of taking to that possession as owner; and therefore there must be an actual delivery. A delivery in law, though it might enable the vendor to maintain an action as for goods sold and delivered, is not a sufficient compliance with this provision, unless there be a delivery in fact. (1)

Thus, though it is settled that delivery to a carrier, to be conveyed to a vendee, is at law a delivery to all intents and purposes, save as to the vendor's right of stoppage in transitu, so as to enable the latter to maintain an action for goods sold and delivered against the vendee; yet it is now established, (though formerly it was considered otherwise,) that such delivery is not a sufficient compliance with the above requisite.

The result of the cases on this subject appears to be, that so long as the vendor has control over the goods, so as to retain his lien for the price, or so long as the vendee can object to their quantity or quality, there can be no acceptance within *1055 the meaning of the statute. The following cases will illustrate this position.

Where the vendee verbally agreed at a public market, with the agent of the vendor, to purchase twelve bushels of tares, (then in the vendor's possession, constituting part of a larger quantity in bulk,) to remain in the vendor's possession till called for; and the agent on his return home measured the twelve bushels, and set them apart for the vendor; held, that this did not amount to an acceptance; for if the vendee had gone to the vendor's granary after the sale, and upon inspection discovered that the tares did not correspond with the sample, he might have objected to them, and if so, there could not have been any previous acceptance. So where A., a merchant in

See Phillips v. Bistolli, 2 B. & C. 513, (9 Eng. C. L. 162,) post.

See Dawes v. Peck, 8 T. R. 330, and other cases under the title "Carrier," ante, 531, et seq. Hart v. Sattley, 3 Camp. 528, where it was held that a delivery on a parol order to a carrier, was a delivery to the vendee.

d Hanson v. Armitage, 5 B. & A. 557. (7 Eng. C. L. 191.) Nicholle v. Plume, 1 C. & P. 272. (11 Eng. C. L. 390.) Howe r. Palmer, 3 B. & A. 321. (5 Eng. C. L. 303.)

Howe v. Palmer, 3 B. & A. 321. ante, 1040.

(5 Eng. C. L. 303.) See Smith v. Surman,

(1) (Outwater v. Dodge, 6 Wend. 397. Franklin v. Long, 7 Gill & Johns, 407. Jackson v. Covert, 5 Wend. 139. Peltier v. Collins, 3 Wend. 459.)

London, had been in the habit of selling goods to B., resident in the country, and in pursuance of a parol order from B., sent goods to a wharfinger, to be forwarded in the usual manner; the ship containing the goods having been lost; the court held, that the acceptance not being by the vendee himself, was not sufficient. Abbott, C. J., having referred to the preceding case, observed, "that there could be no actual acceptance, so long as the buyer continued to have a right to object, either to the quantum or quality of the goods."a

So where goods were bought abroad, and there delivered on board a ship chartered by the vendee; held, not a sufficient acceptance. So where the purchaser appointed the mode in which the goods should be conveyed, and directed a third person in whose possession the goods were to see them delivered and measured. So where A. agreed to purchase a horse from B., for ready money, and to take him within a time agreed upon, and about the expiration of that time, A. rode the horse and gave directions as to its treatment, &c., but requested that it might remain in B.'s possession for a further time, at the expiration of which he promised to fetch it away, and pay the price; the horse died before A. paid the price or took him. away: *held, not to amount to an acceptance, for B. never *1056 parted with the possession or control; at all events he had a lien for the price. But where the defendant bought two horses from the plaintiff, a livery stable keeper, and desired to keep them at livery for him, whereupon the plaintiff removed them out of his sale stable into another stable; held, that the plaintiff by assenting to the defendant's order, and changing the stables in which the horses had been kept, had relinquished his lien for the price, and that he held the horses not as owner, but as any other livery stable keeper might have done, and consequently, that there was a delivery and acceptance.

Where goods to the value of 144/. were made pursuant to order, but continued, by the desire of the vendee, upon the premises of the vendor, excepting a part to the value of 27. 10s. which the former took away; held, that there was no delivery and acceptance of the rest of the goods within the meaning of the statute.f

When the facts and intention of the parties are ascertained, it is for the court to decide whether, in law, they constitute an

Hanson v. Armitage, 5 B. & A. 557. (7 Eng. C. L. 191.) And see Rhode v. Thwaites, 6 B. & C. 392, (13 Eng. C. L. 206,) post, 1058.

Acebal v. Levy, 10 Bing. 376. (25 Eng. C. L. 170.)

• Astey v. Emery, 4 M. & S. 262. See Anderson v. Hodgson, 5 Price, 630.

a Tempest v. Fitzgerald, 3 B. & A. 680. (5 Eng. C. L. 419.) See also Carter v. Toussaint, 5 B. & A. 855, (7 Eng. C. L. 280,) where, by the vendee's direction, the horse was fired and sent to grass, but entered as the property of the vendor.

Elmore v. Stone, 1 Taunt. 458. The authority of this decision was doubted by Bayley, J., in Howe v. Palmer, 3 B. & A. 324, (5 Eng. C. L. 303,) and by Best, C. J., in Proctor v. Jones, 2 C. & P. 534. (12 Eng. C. L. 248.)

Thompson v. Maceroni, 4 D. & R. 619. 3 B. & C. 1. (10 Eng. C. L. 3.)