property in tion of the 17th section is not effectual alone to pass any as to the property in the goods to the buyer: thus, the buyer of goods sold. goods under a contract which was not allowed to be good by reason of the statute was held not to have an insurable interest in the goods, and consequently not entitled to recover upon a policy effected by him upon the goods (a). And the buyer of goods under a contract within the operation of the statute was held not to be entitled to sue for a conversion of the goods by a third party, although before he began his action, but after the conversion was committed, he obtained a memorandum in writing sufficient to take the contract out of the operation of the statute (b). Upon a sale of goods within the statute without a written memorandum, the goods were delivered according to the contract, when the buyer being in bankrupt circumstances refused to accept them; it was held that the property in the goods never vested in him, and consequently his assignees had no title to them against the seller (c). Under a similar contract the goods having been delivered and lying at a railway-station at the order of the buyer, the seller, in consequence of the bankruptcy of the buyer, before any act of acceptance of the goods by him, countermanded the delivery; it was held that the property never passed to the buyer, and that his assignees had no claim to the goods (d). Where goods are sold under a contract within the operation of the statute, and are delivered to a carrier named by the buyer, as thereby no property vests in the buyer, he is not competent to sue the carrier for loss of or injury to the goods (e); in such case the carrier is liable to the consignor only (f); and the consignee cannot acquire a right to sue the carrier by making a part payment, or a part acceptance, or obtaining a memorandum in writing sufficient to (a) Stockdale v. Dunlop, 6 M. & W. 224. (b) Felthouse v. Bindley, 11 C. B. N. S. 869; 31 L. J. C. P. 204. (c) Nicholson v. Bower, 1 El. & El. 172; 28 L. J. Q. B. 97. (d) Smith v. Hudson, 34 L. J. Q. B. 145; and see Bolton v. Lancashire and Yorkshire Ry. Co., L. R. 1 C. P. (e) Coombs v. Bristol and Exeter (f) Ib.; and see Coats v. Chaplin, 3 Q. B. 483. Contracts partly with tute and partly not. except the sale of the goods from the operation of the statute, after the happening of the loss or injury and the accruing of the cause of action (a). Where a contract is, in respect of its matter, partly within in the sta- the statute and partly not within the statute, and does not satisfy the conditions required to except it from the operation of the statute, it cannot be enforced as to that part which is not within the statute (b). The plaintiff charged the defendant upon a contract within the operation of the 4th section, that in consideration that the plaintiff would release a debtor, the defendant promised to pay the debt, and also the expenses which the plaintiff had incurred in seeking to recover it; it was held that the contract was indivisible, and that the plaintiff could not maintain an action to recover the expenses without showing a memorandum in writing (c). The plaintiff having taken the goods of his tenant as a distress for rent then due, the defendant promised the plaintiff, in consideration of his abandoning the distress, to pay the rent then due, and also the rent that would become due at the Michaelmas following; it was held that the promise was entire, and the part as to the future rent being within the 4th section of the statute, the plaintiff could not maintain an action upon the contract to recover the past rent without showing a proper memorandum (d). A contract, that in consideration that the plaintiff would hire of the defendant a house and furniture, the defendant promised to send in furniture into the house, was held to be inseparable; and as it was within the statute in respect of the house, the plaintiff could not sue the defendant for a breach in not sending in the furniture without a memorandum in writing (e). The plaintiff agreed to sell to the defendant a (a) Morgan v. Sykes, cited in Coats v. Chaplin, Q. B. 483, 486; per Pollock, C. B., Coombs v. Bristol and Exeter Ry. Co., 3 H. & N. 510, 515; 27 L. J. Ex. 401, 402; per Willes, J., Bailey v. Sweeting, 9C. B. N. S. 813, 856. (b) Lexington v. Clark, 2 Vent. 223; Chater v. Becket, 7 T. R. 201; Thomas v. Williams, 10 B. & C. 664 ; and see Head v. Baldrey, 6 A. & E. 459. (c) Chater v. Becket, 7 T. R. 201. (d) Thomas v. Williams, 10 B. & C. 664. 49. (e) Mechelen v. Wallace, 7 A. & E. mare and foal, and keep and feed them at his own expense until the following Michaelmas, and also to keep and feed another mare and foal of the defendant for six weeks, and the defendant agreed to take the mare and foal and pay to the plaintiff the sum of £30; it was held to be one contract, and as it appeared that the value of the mare and foal was above £10, the contract was within the statute (a). The defendant, being about to take possession of a farm of which the plaintiff was the previous occupier, bargained with him without writing for the sale of the crops, and also of the dead stock, at distinct prices; it was held that the plaintiff might recover the price of the latter, notwithstanding the contract for the crops might be for an interest in land, as they were distinct contracts (b). The defendant sold to the plaintiff the possession of a shop and slaughterhouse for £37, and it was agreed that in case a license to use the slaughter-house should be refused, the defendant would repay to the plaintiff £10; the plaintiff having taken possession and paid the price, the license was refused, and he sued the defendant for the £10; it was held that he might maintain the action without a written memorandum, because there were substantially two contracts, and the one sued on was not within the statute (c). the statute contract in whole and in part. The execution of the contract, so far as the matter of it is Effect of within the statute, does not take the contract out of the ope- after execu ration of the statute, so as to admit of an action upon it in tion of the respect of the part remaining executory, although that part taken alone does not relate to a matter within the statute (d). The plaintiff agreed to give up the tenancy of a farm to the defendant, in consideration of which the defendant promised to pay the plaintiff £100 when he should become such tenant; the defendant having obtained the possession of the farm as tenant, the plaintiff brought an action on the contract to recover the £100; it was held that the plaintiff could not (a) Harman v. Reeve, 18 C. B. 587; 25 L. J. C. P. 257. (b) Mayfield v. Wadsley, 3 B. & C. 357. (c) Green v. Saddington, 7 E. & B. 503, Crompton, J., dissentiente; and (d) Cocking v. Ward, 1 C. B. 858; Effect of the statute after execution of the contract. maintain the action without showing a memorandum of the contract in writing (a). But it seems that a plaintiff might in some cases recover upon a contract implied from the execution of the consideration, where he could not recover upon the original contract by reason of the statute (b). The defendant being tenant to the plaintiff, it was agreed without writing that, if the plaintiff would consent to an assignment of the tenancy to a third party, the defendant would pay to the plaintiff £40 out of the sum of £100 which the new tenant was to pay him for the assignment; the assignment having been completed and the money paid to the defendant, it was held that the plaintiff might recover his share as money received to his use, although the original agreement as relating to an interest in land came within the operation of the statute (c). The plaintiff let land to the defendant on the terms of being paid a moiety of the crops instead of rent; it was afterwards agreed that the defendant should keep the crops and pay the plaintiff the value of the moiety, and the crops were appraised between them for the purpose of ascertaining the amount; it was held that the plaintiff might recover this sum as the price of the moiety of the crops. sold to the defendant, although the original agreement concerning the land was not in writing (d). Whatever is done in execution of a contract within the operation of the statute is valid, although the contract may be incapable of being enforced by reason of not satisfying the requirements of the statute. Thus, a person, having paid money under a contract within the statute which he cannot enforce for want of a written memorandum, is not, on that account, entitled to recover it back (e). An agent, having paid money by authority of his principal in discharge of a contract within the statute, which could not have been enforced by action, may recover the amount from the principal (ƒ). An agreement was made to discharge a debt by giving up (a) Cocking v. Ward, 1 C. B. 858. (b) Souch v. Strawbridge, 2 C. B. 808, 814; Harman v. Reeve, 18 C. B. 587, 593, 596; see ante, p. 36, 72. () Griffith v. Young, 12 East, 513. (d) Poulter v. Killingbeck, 1 B. & P. 397. (e) Sweet v. Lee, 3 M. & G. 452. (f) Pawle v. Gunn, 4 Bing. N. C. 445. possession of a public house and stock in trade to the creditor, and the agreement was executed by delivery up and acceptance of the possession; it was held that, though the agreement could not have been enforced for want of evidence to satisfy the statute, it might be proved without writing for the purpose of showing the discharge of the debt (a). So, the effect of an account stated, admitting a debt and raising an implied contract to pay it, cannot be obviated by showing that the account was stated respecting a debt due under a contract within the operation of the statute, if the consideration of the debt has been completely executed (b); but the effect of such an account stated may be obviated by showing that it was stated respecting a debt under a contract within the operation of the statute which was executory at the time of stating the account (c). part performance in In equity part performance of the contract in a material Effect of particular takes the contract out of the operation of the statute, upon the ground that it would effect a fraud, if after one equity. party has performed an agreement on his side, the other party should refuse performance of it under a plea of the statute (7). A marriage taking place in pursuance of a parol agreement made in consideration of marriage is held not to be a part performance within the rule of equity (e); a marriage settlement made in pursuance of such agreement is such a part performance (ƒ). Part performance by the party to be charged will not take a case out of the operation of the statute within the rule of equity (g). There is no similar doctrine in law respecting part performance of the contract (h); but the 17th section, relating (a) Lavery v. Turley, 6 H. & N. 239; 30 L. J. Ex. 49. (b) Cocking v. Ward, 1 C. B. 858; Knowles v. Michel, 13 East, 249; Seago v. Deane, 4 Bing. 459; und see ante, p. 72. (c) Earl Falmouth v. Thomas, 1 C. & M. 89. (d) Story, Equity Jur. § 759, 760; Nunn v. Fabian, L. R. 1 Ch. Ap. 35 ; 35 L. J. C. 140. (e) Lassence v. Tierney, 1 Mac. & (f) De Biel v. Thompson, 3 Beav. 469. (y) Caton v. Caton, L. R. 1 Ch. Ap. 137; 35 L. J. C. 292. (h) See Massey v. Johnson, 1 Ex. 241, 252. |