Requisites of

the statute of frauds.

Note or memorandum.

Who is the agent contemplated by statute.

A broker is an agent of both parties.

Bought and sold notes.

In England and Ireland, that a sale of goods, wares, and merchandise, of £10 sterling or upward, may be enforced, there must be some note or memorandum in writing of the bargain made, and signed by the parties to be charged by such contract, or their agents lawfully authorised, or the buyer must have accepted part of the same so sold, and actually received the same, or something must have been given in earnest to bind the bargain, or in part payment (a). It is the same for contracts for the sale of goods of the value of £10 and upwards intended to be delivered at some future time, or not ready at the time of such contract, or where some act is requisite for the making or completing thereof, or rendering the same fit for delivery (b).

But the omission of

A note or memorandum in writing of a contract for the sale of goods, signed by the seller only, is not a sufficient memorandum within the meaning of the statute. To be valid, it must be signed by the party to be charged (c). the particular mode or time of payment, or even of the price itself, does not necessarily invalidate a contract of sale. It is sufficient if the note amounts to an acknowledgment by the party that it is his agreement (d). An invoice or bill of parcels, in which the vendor's name is printed, delivered to the vendor at the time of an order given for the future delivery of goods is sufficient, and so a bill of parcels with the name of the vendor printed in it, and that of the vendee written by the vendor (e).

The agent contemplated by the statute of frauds who is to bind the parties by his signature must be a third person, and not one or other of the contracting parties (f); and when a note is signed by the agent, it must appear that he was authorised to sign as agent to the buyer (g).

A broker employed to sell goods, and giving a bought and sold note to the seller and purchaser, is considered as an agent of both parties, and the note is a sufficient note in writing within the statute of frauds (h). Should, however, the bought and sold note delivered to the vendor and vendee respectively (a) 29 Car. 2, c. 17, s. 2.

(b) 9 Geo. 4, c. 14, s. 7.

(c) Graham v. Mussom, 7 Scott, 776; Champion v. Plummer, 5 Esp. 240.

(d) Ashcroft v. Morrin, 4 M. & S. 450; Stokes v. Moore, 1 Cox, 222.

(e) Saunderson v. Jackson, 2 B. & P. 238; Johnson v. Dodgson, 2 M. &

W. 653.

(f) Wright v. Dannah, 2 Camp. 203; Farebrother v. Simmons, 5 B. & A. 333; Cooper v. Smith, 15 East, 103.

(g) Graham v. Fretwell, 4 Scott, N. R. 25; Graham v. Mussom, 5 Bing. N. C. 603.

(h) Rucker v. Cammeyer, 1 Esp. 105.

differ in their terms, there would be no memorandum in writing under the statute (a). When bought and sold notes are given, these, and not the entry of the contract made by the broker on his book, constitute the contract between the parties; but if there be no bought and sold note, the entry in the broker's book may be resorted to (b). And as the statute of frauds requires a writing, it is doubtful whether a machine copy of the bought and sold note would be sufficient (c).

written contract cannot

be varied by parol.

That a memorandum in writing of a contract may satisfy the statute of frauds, it must have been made before the commencement of the action (d). And it is necessary to remember that, Terms of a once put in writing, the terms of a written contract for the sale of goods falling within the operation of the statute of frauds cannot be varied or altered by parol (e). When however the contract is for the sale of goods to be manufactured, and alterations or additions are made in the progress of the work, such alterations or additions need not be made the subject of a distinct contract in writing (f). Letters do not constitute a note in writing of the contract if they vary in their description of the terms of the contract (g), but two distinct written instruments may be coupled together so as to constitute a valid memorandum of the contract (h).

statute.

The purchaser may by other acts of ownership be held to What is an have accepted and received the goods within the statute, and reception acceptance although he has had no opportunity of examining the goods, to satisfy the and although he has done nothing to preclude himself from objecting that they do not correspond with the contract (i). Whenever a manual receipt and acceptance are impracticable, the statute will be satisfied by an actual receipt, by acquiescence, or by any other act of ownership (j).

The delivery and receipt of a delivery order or dock warrant What is a delivery and

(a) Grant v. Fletcher, 8 D. & R. 59; Thornton v. Meux, M. & M. 43; Sievewright v. Archibald, 17 Q. B. 203; Townsend v. Drakeford, 1 C. & K. 20.

(b) Sievewright v. Archibald, 17 Q. B. 403; Hayman v. Neale, 2 Camp. 337.

(c) Pitts v. Beckett, 13 M. & W. 743.

(d) Bill v. Bament, 9 M. & W. 36. (e) Marshall v. Lynn, 6 M. & W. 109; Stead v. Dawber, 10 Ad. & E.

57; Moore v. Campbell, 10 Exch. 323.
(f) Hoadly v. McLaine, 10 Bing.

482.

(g) Smith v. Surnam, 9 B. & C. 561; Archer v. Baynes, 5 Exch. 625.

(h) Jackson v. Lowe, 1 Bing. 9; Allen v. Bennet, 3 Taunt. 169; Archer v. Baynes, 5 Exch. 625.

(i) Morton v. Tibbett, 15 Q. B.
428.

(j) Bushel v. Wheeler, 15 Q. B.
445;
Edan v. Dudfield, 1 Q. B. 302.

receipt to satisfy the statute.

Earnest or

part payment.

What delivery will satisfy

the statute.

What acceptance will satisfy the statute.

Acceptance by a carrier.

Sales by auction.

is not sufficient to satisfy the statute, unless the wharfinger had accepted the order of the consignor, and agreed to hold the goods to the order of the purchaser (a). The delivery and receipt of the bill of lading in transitu is not a sufficient delivery and receipt of the goods themselves, unless the purchaser has exercised a dominion and ownership over it (b). The delivery of goods at a wharf would not be an acceptance and receipt within the statute (c).

The payment of any sum, however small, in earnest to bind the bargain, or in part payment, may be sufficient; but the part payment must take place either at or subsequent to the time when the bargain was made (d).

In order to satisfy the statute of frauds there must be a delivery of the goods by the vendor, with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter with an intention of taking possession of them as owner (e). When goods are sold by sample, and the sample delivered is part of the bulk, there will be part delivery. Not so, however, when the delivery of the sample is a collateral thing (ƒ).

That the acceptance and receipt may dispense with the necessity of a written memorandum of the contract there must be a final and absolute appropriation by the purchaser either of the whole articles sold or of a part thereof (g). There is no such acceptance unless the vendee has had an opportunity of judging whether the goods sent corresponded to the order (h).

Acceptance and receipt by a carrier or wharfinger, or other forwarding agent appointed by the purchaser, are not acceptance and receipt by the vendee sufficient to satisfy the statute, unless the purchaser by his dealing with the carrier, or forwarding agent, causes him to keep the goods on his (the purchaser's) behalf (i).

Sales by auction are within the statute of frauds, and a memo

(a) Farina v. Home, 16 M. & W.

119.

(b) Meredith v. Meigh, 2 E. & B.
368.

(c) Hart v. Bush, 22 Jur. 633.
(d) Walker v. Nussey, 16 M. & W.
302.

(e) Phillips v. Bistolli, 2 B. & C.

(f) Kleneth v. Surrey, 5 Esp. 267; Hinde v. Whitehouse, 7 East, 558; Stokes v. Moore, 1 Cox, 222.

(g) Morton v. Tibbett, 15 Q. B. 428; Hunt v. Hecht, 8 Exch. 814.

(h) Curtis v. Pugh, 16 L. J. Q. B. 199.

(i) Coats v. Chaplin, 3 Q. B. 492.

randum of the bargain not annexed to the catalogue is not sufficient to satisfy the statute (a). The auctioneer effecting a sale by auction, or an auctioneer's clerk taking down the bidding in the presence of the purchaser, is the authorised agent of both the vendor and purchaser, and his signature in the books binds both parties, and is sufficient to satisfy the statute (b). When, however, the sale is over, the same principle does not apply, and the auctioneer is no longer the agent of both parties, but of the seller only, and his signature cannot bind the buyer (c).

British Colonies.-In Jamaica, Tortola, Antigua, Montserrat, Dominica, Tobago, Grenada, St. Vincent, Bermuda, Upper Canada, Nova Scotia, and Prince Edward's Island, the statute of frauds is in force as part of the English statute law received on the establishment of these colonies. It has also been adopted in Barbadoes by § 226, in Bahamas by the Court Act, 25th clause; in New Brunswick, by the 26 Geo. 3, c. 14; and in Nevis, by 6 Geo. 2, c. 12, by Acts of their own legislatures.

SECTION III.

EFFECTS OF THE CONTRACT ON THE PROPERTY SOLD.

When by a contract of sale the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific chattel and to pay the stipulated price, the parties are then in the same situation as they would be after the delivery of the goods. The very appropriation of the chattel is equivalent to delivery by the vendor, and the assent of the vendee to take the specific chattel and to pay the price is equivalent to his accepting possession. The effect of the contract, therefore, is to vest the property in the vendee (d). In order, however, that the property may pass by the contract, the article must be specific and ascertained. When something remains to be done on the part of the seller before the goods are to be delivered, as when they are to be numbered, weighed,

(a) Kenworthy v. Schofield, 2 B. & C. 945.

(b) Hinde v. Whitehouse. 7 East, 558; Emmerson v. Heelis, 2 Taunt. 38.

(c) Meux v. Carr, 1 H. & N. 484.
(d) Per J. Parke, Dixon v. Yates, 5
B. & Ad. 340.

Effect of conpossession.

tract as to

Effect of the contract as to risk.

or measured, or when the quantity sold must be separated from the bulk the property in them, does not pass to the purchaser until what remains to be done is complete (a).

By the common law of Scotland the right of property in the goods sold did not pass to the buyer by the mere contract of sale, but remained with the seller until the goods were delivered. Thence, if before delivery of the goods to the buyer, the seller sold and delivered them to a third party, the first buyer had no remedy against such third party unless he established fraud or collusion. By a recent statute, however, it was enacted, that where goods sold remain in the hands of the seller, it shall not be competent for any creditor of such seller to attach such goods so as to prevent the purchaser to enforce the delivery of the same (b).

When the sale is perfect, and nothing remains to be done by the seller before the goods are to be delivered, the right of property in the goods having passed to the purchaser without delivery, if they are injured or destroyed after the sale, the loss would fall upon the purchaser, and the seller would be entitled to payment of the price (c). Where the property has not passed to the purchaser, the goods still remain at the risk of the seller, and if destroyed, the seller will not be entitled to payment of the price. Whatever happens to the goods before the sale affects the seller only, and whatever happens to them after the sale affects the buyer.

FOREIGN LAWS ON THE REQUISITES AND FORM OF THE

CONTRACT OF SALE.

France. Sale is a contract by which one binds himself to deliver a thing, and the other to pay for it. It may be made by deed or by private contract. A sale may be pure and simple, or under a condition either suspensive or absolute. It may also have for its object two or more things alternately. In all such cases its effect is regulated by the general principles of contracts. A sale is perfected between the parties, and the ownership passes to the buyer, so soon as the parties have agreed as to the

(a) Hanson v. Meyer, 6 East, 614; Rugg v. Minett, 11 East, 219; Simmons v. Swift, 5 B. & C. 857; Wallace v. Breeds, 13 East, 522; Dixon v. Yates, 5 B. & Ad. 340.

(b) 19 & 20 Vict. c. 60, s. 1.

(c) Tarling v. Baxter, 6 B. & C. 360; Whitehouse . Frost, 12 East, 614; Alexander v. Gardner, 1 Bing. N. C. 671; Martindale v. Smith, 1 Q. B. 391.