Shares in companies. Emblements. The 7th section of Lord Tenterden's Act and the 17th section of the Statute of Frauds are to be read and construed together (a); and one effect of the more recent enactment is to substitute the words "value of ten pounds" for the words "price of ten pounds" in the 17th section of the Statute of Frauds (b). Shares in a joint stock banking company are not "goods, wares, or merchandises," within the section, being mere choses in action and incapable of delivery (c). A contract for the sale of railway shares, or railway scrip, is not within the section (d); so, a contract for the sale of foreign stock (e). The sale of emblements, or the annual growing crops sown by the tenant of land, (which is not considered to be a contract within the 4th section as concerning an interest in the land) is held to be a sale of goods within the 17th section (f). The sale of the produce of land, to be taken as Produce of goods, though it is not severed from the land at the time of land. Fixtures. sale, is held not to be a contract concerning an interest in the land within the 4th section of the statute, but a contract relating to the sale of goods within this section (g); as a sale of timber at a certain price per foot, being the produce of certain trees then growing, when they should be cut down (h); so, a sale of a crop of seed to be sown and produced on certain land at so much per bushel (i). The right to remove fixtures does not come within the description of goods, wares, and merchandises, within this section, nor is it an interest in land within the fourth (j). Contracts for work and labour, though expended in makand labour ing goods for the employer, are not contracts for the sale of in making goods within the statute. Thus, a contract with a person to Contracts for work goods. dal, 3 East, 303, seeming to hold them (b) See Harman v. Reeve, 18 C. B. (e) Humble v. Mitchell, 11 A. & E. 205. (d) Tempest v. Kilner, 3 C. B. 249; Bowlby v. Bell, 3 C. B. 284; Knight v. Barber, 16 M. & W. 66. (e) Heseltine v. Siggers, 1 Ex. 856. (f) Evans v. Roberts, 5 B. & C. 829; and see ante, p. 133. (g) See ante, p. 134; Smith v. Surman, 9 B. & C. 561. (h) Smith v. Surman, supra. (i) Watts v. Friend, 10 B. & C. 446. (j) See ante, p. 133; Hallen v. Runder, 1 C. M. & R. 266; and see Horsfall v. Hey, 2 Ex. 778. make an article with the materials of the employer is a contract for work and labour, and not within the statute (a). A contract with a person to work up his own materials in making an article, and to deliver it, may be a contract for work and labour and the materials incident to the employment, or a contract for the sale of goods, according to the circumstances(); thus, a contract with an attorney to prepare a deed (c), a contract for contriving a machine for a certain purpose (d), a contract with a printer to print a book (e), are contracts for work and labour and materials, and not for the sale of goods, and are not within the statute. A contract for the manufacture of a machine (ƒ), a contract with a tailor or shoemaker for the making of articles of their trade (g), a contract with a miller for a quantity of flour which he had to grind (h), a contract to make a set of artificial teeth to fit the mouth of the purchaser (i), a contract with an artist for a work of art (j), are not contracts for work and labour, but for the sale of goods when completed. A contract for the sale of goods at a certain price, including the carriage and delivery of them at a certain place, is within the statute (k). Where a carrier was employed by a purchaser of goods to buy them for him, and to carry and deliver them, the contract was held not to be within the statute (1). Auction. A sale of goods by auction is within the statute (m). The statute applies only to contracts for the sale of goods Value of the of the value of ten pounds sterling and upwards (n). If one goods sold. (a) Per Bayley, J., Atkinson v. Bell, 8 B. & C. 277, 283. (b) Ib. and see Lee v. Griffin, 1 B. & S. 272; 30 L. J. Q. B. 252. (c) See per Erle, J., Grafton v. Armitage, 2 C. B. 336, 339; per Blackburn, J., Lee v. Griffin, 1 B. & S. 272, 277. (d) Grafton v. Armitage, 2 C. B. 336. (e) Clay v. Yates, 1 H. & N. 73; 25 L. J. Ex. 237. (f)Atkinson v. Bell, 8 B. & C. 277; see Grafton v. Armitage, supra. (g) Per Coltman, J., Grafton v. Armitage, 2 C. B. 336, 341. (h) Garbutt v. Watson, 5 B. & Ald. 613; and see Wilks v. Atkinson, 6 Taunt. 11; Rondeau v. Wyatt, 2 H. Bl. 63, 67. (i) Lee v. Griffin, 1 B. & S. 272; 30 L. J. Q. B. 252. (j) Lee v. Griffin, supra; but see (k) Astey v. Emery, 4 M. & S. 262. Sales of several articles. contract is made for the sale of several articles, the value of which collectively is above ten pounds, though the value of each article separately may be less than ten pounds, the contract is within the statute (a). A purchase of various articles in a shop on one occasion at separate prices was held to be one contract, and, the articles together being above the value of ten pounds, within the statute (b). At a sale by auction each lot sold is a distinct contract, and if the same person buys several lots, each of less value than ten pounds, his contracts are not within the statute, though collectively the value of the lots may be above ten pounds (c). The parties may subsequently treat the several sales as one entire contract by entering them altogether as one contract in a written memorandum (1). Whether a sale of several articles forms one contract or several seems, in general, to be a question of fact for the decision of the jury (e). CHAP. I. SECT. V. § 2. FORMS AND CONDITIONS REQUIRED Forms and Signature by Party charged... 148 THE fourth section enacts" that no action shall be brought conditions whereby to charge" any person upon any of the contracts of required by the statute. the kinds therein described, "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 seventeenth section enacts "that no contract" of the (a) Baldey v. Parker, 2 B. & C. 37. (d) Franklyn v. Lamond, 4 C. B. 637; and see Biggs v. Wisking, 14 C. B. 195. (e) See Bailey v. Sweeting, 9 C. B. N. S. 813. kind therein described "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 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 authorized." It is proposed to treat first of the requirements of the statute respecting the note or memorandum in writing common to both sections, and then to treat in order of the other modes of exception provided in the seventeenth section, namely, the acceptance and receipt of part of the goods sold, and the giving of something in earnest or in part payment. dum in The statute does not require that the contracts to which it Memoranrelates should be originally made in writing. If the parties writing. have originally made their contract in writing, that writing alone contains the contract by virtue of their agreement (a); and it also, if signed, satisfies the requirements of the statute. If they have not made their contract in writing, the plaintiff, seeking to charge the defendant with it, must resort to written documents signed by him, as letters, memoranda, etc. containing the terms of their contract, in order to satisfy the requirements of the statute (b). of writing sufficient. A letter, the contents of which ascertain and identify the What kind agreement, will serve this purpose; so, a letter referring to another document containing the terms of the contract (c); an invoice or bill of parcels signed by the party to be charged (d); a memorandum of the contract entered by one of the parties in his own book kept in his own possession (e); an order book of a tradesman containing a list of articles ordered and signed by the purchaser (f). (a) See ante, p. 100. (b) Sievewright v. Archibald, 17 Q. B. 103, 107, 114; Roberts v. Tucker, 3 Ex. 632, 641. (c) Saunderson v. Jackson, 2 B. & P. 238; Allen v. Bennet, 3 Taunt. 169; Dobell v. Hutchinson, 3 A. & E. 355; Ridgway v. Wharton, 6 H. L. C. 238. (d) Saunderson v. Jackson, 2 B. & P. 238; Schneider v. Norris, 2 M. & (e) Johnson v. Dodgson, 2 M. & W. (f) Sarl v. Bourdillon, 1 C. B. N. S. 188; 26 L. J. C. P. 78. Memoran dum contained in several writings. Brokers' bought and sold notes are sufficient, unless they disagree in their terms (a); one of such notes is sufficient though the other is not produced, and it will be presumed that they agree (b); the entry of the contract in the brokers' own book is sufficient to charge the parties in the absence of the bought and sold notes (c). An affidavit sworn to and signed by the defendant in another cause was held to be a sufficient memorandum of the terms of an agreement mentioned in it which had been previously made by parol (d). So, a letter written by one of the parties to his own solicitor or agent, or a correspondence between the party and his agent containing the terms of the contract (e). The note or memorandum may consist of several documents, if they are sufficiently connected together by internal reference. A letter written after a sale by auction, acknowledging the sale and referring to the conditions of sale, was held to incorporate those conditions with the letter, so as to constitute a memorandum of the contract sufficient to charge the party signing it, though he did not sign the conditions separately (f). A letter referring to a memorandum of agreement, and supplying certain particulars in which the memorandum was deficient, was held jointly with the memorandum to satisfy the statute (g). A correspondence between the parties by letters sufficiently connected together by their contents, and containing the terms of the contract, constitutes a sufficient note in writing (h). But several documents cannot be connected by external evidence for the purpose of making a note or memorandum (a) Goom v. Aflalo, 6 B. & C. 117; Sievewright v. Archibald, 17 Q. B. 103. (b) Parton v. Crofts, 16 C. B. N. S. 11; 33 L. J. C. P. 189. (c) See per Parke, B., Thornton v. Charles, 9 M. & W. 802, 807; Pitts v. Beckett, 13 M. & W. 743, 746; per Lord Campbell, C.J., Sievewright v. Archibald, 17 Q. B. 103, 124. (d) Barkworth v. Young, 4 Drew. 1; 26 L. J. C. 153; and see Rondeau v. Wyatt, 2 H. Bl. 63. (e) Gibson v. Holland, 1 H. & R. 1; 35 L. J. C. P. 5; L. R. 1 C. P. 1; and see Welford v. Beazely, 3 Atk. 503; Rose v. Cuninghame, 11 Ves. 550; Barkworth v. Young, 4 Drew. 1, 13. (f) Dobell v. Hutchinson, 3 A.& E. 355; and see Phillimore v. Barry, 1 Camp. 513; Ridgway v. Wharton, 6 H. L. C. 238; 27 L. J. C. 46. (g) Allen v. Bennet, 3 Taunt. 169; Brettel v. Williams, 4 Ex. 623; Warner v. Willington, 3 Drew. 523; 25 L. J. C. 662. (h) Allen v. Bennet, 3 Taunt. 169; Jackson v. Lowe, 1 Bing. 9. |