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vendor being accessory to the smuggling, cannot be enforced (a). When, however, the contract and delivery of goods are complete abroad, and the seller does not assist in smuggling them into this country, the contract is valid (b).

made on

void.

Contracts by illegal weights and measures.

All sales of goods made on Sundays are void, and no action Contracts can be maintained for the price of goods sold on a Sunday in Sundays the ordinary course of trade and business of the vendor. But the mere inception of a contract on a Sunday will not avoid it if it be completed the next day (c). In Scotland bargains and sales made on a Sunday are not null (d). All contracts by any denomination of weight or measure other than one of the standard or imperial weight or measure, or some multiple or aliquot part thereof, are void (e). Sales of coal, culm, and cannel by measure, and not by weight, are prohibited. So sales of game by persons not having either a licence to deal in game, or a game certificate (f). Sales of butter not properly marked and branded with the name of the seller, and the weight and tare of the vessel, are also prohibited (g). All contracts expressly or by implication forbidden by the common or statute law are void. Though the statute inflicts a penalty only, the contract is void, because such a penalty implies a prohibition (h).

The subject of sale must be certain and existing. The sale of a thing which, without the knowledge of the parties, had perished, is null (i). If part only of the thing sold has perished, it is at the option of the purchaser to rescind the sale altogether, or to accept the part preserved at a valuation.

The subject

matter must

be certain and existing.

There can be no sale without a price or a valuable considera- The price. tion. The contract would be complete and binding, though silent as to price, but in that case such silence is equivalent to a stipulation for a reasonable price (j). The price must be in money, or what passes as such, and not in any security or goods,

(a) Waymell v. Read, 5 T. R. 599; Biggs v. Lawrence, 3 T. R. 454; Clugas v. Penaluna, 4 T. R. 466; Pellecat v. Angell, 2 C. M. & R. 311.

(b) Holman v. Johnson, Cowp. 341. (c) 29 Car. 2, c. 7, s. 1; Bloxome v. Williams, 3 B. & C. 233; Smith v. Sparrow, 4 Bing. 84; Drury v. Defontaine, 1 Taunt. 131.

(d) Oliphant, Feb. 2, 1662; Phillips,

VOL. I.

May 19, 1835; reversed Feb. 20, 1837;
2 S. M. App. Cases, 465.

(e) 5 Geo. 4, c. 74; 6 Geo. 4, c. 12;
5 & 6 Wm. 4, c. 63, s. 6.

(f) 1 & 2 Wm. 4, c. 32, s. 17.
(g) Foster v. Taylor, 5 B. & Ad. 887.
(h) Cope v. Rowlands, 2 M. & W.
157; Bartlett v. Vinor, Carth. 252.
(i) Hastie v. Couturier, 9 Exch. 102.
(j) Valpy v. Gibson, 4 C. B. 837,

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as otherwise it would be barter, not sale. The price must be just and reasonable, not nominal or illusory. If it be grossly inadequate, or merely colorable, it would invalidate the sale. There must also be a mutual consent as to the price; if there be a material error upon it, there would be no sale. The price must be certain or ascertainable by reference to some criterion by which it may be fixed. When it is left uncertain, the parties are held to have contracted for what the goods shall be found to be reasonably worth (a). The price may also be left to be decided by arbitrators appointed by both parties (b). When, however, the contract is executory, and the goods still remain in the possession or under the control of the seller, such presumption does not exist (c).

INTRODUC-
TORY OBSER-
VATIONS.

SECTION II.

FORM OF THE CONTRACT.

The Royal Commissioners appointed to inquire and ascertain how the mercantile laws in the different parts of the United Kingdom of Great Britain and Ireland may be advantageously assimilated, reported in favour of the repeal of the statute of frauds. "We are of opinion," they said, "that no party to a contract of sale of goods should be entitled to withdraw from the bargain merely because it has not been accompanied or followed by writing, or some other ceremony. For obvious. reasons the important business of buying and selling ought not to be trammelled with unnecessary solemnities; and such transactions, if they be satisfactorily proved by legal evidence of any kind, ought to be binding. While it appears from all the evidence we have received from Scotland that no inconvenience is experienced in that country from the extensive class of transactions being thus left untrammelled, the evidence as to the practical working of the English and Irish rule is of a different tendency. The general contravention of the rule of the laws of England and Ireland in the practice of the great commercial emporiums of these countries, whereby most of the innumerable sales which are there daily taking place are left out of the

(a) Valpy v. Gibson, 4 C. B. 837. (b) Cannan v. Fowler, 14 C. B. 181. (c) Acebal v. Levy, 10 Bing. 376.

protection of the law, indicates that the requirements of the seventeenth section of the English statute of frauds, and the corresponding section of the Irish statute, are not now adapted to the practical management of commercial business. We therefore recommend that that portion of those Acts should be repealed, and that the laws of England and Ireland should in this respect be assimilated to the simpler rule of the common law observed in Scotland." In conformity with the recommendations of the commissioners, a Bill to amend the laws of England and Ireland affecting trade and commerce, introduced in 1856, contained a clause abolishing the said provision of the statute of frauds. The Bill passed the House of Commons in its integrity. But the House of Lords struck out the clause. We have already seen that in foreign countries the law generally gives a discretionary power to the judges to admit parol evidence on sale of goods. And in Scotland a contract for sale of goods, with the exception of ships, is effectual without writing, and may be established by oral or other legal evidence, whether the goods are or are not specific, or ready for delivery, or whether they are to be delivered immediately, or at a future day.

Sale unaffected

by the statute

of frauds.

A contract of sale may be by parol, by letter, or by deed. Thus a sale of goods for an amount below £10 may be by parol. Shares in a joint-stock company, railway shares, or consols, are not good wares and merchandise, and may therefore be bought and sold by parol (a). Some kinds of property, such as ships, land, &c., can only be sold by deed or by bill of sale; and where Sale by deed. such or any other property is so sold, the property passes out of the vendor's into the vendee's hands by the execution and delivery of the deed (b). Provided, however, that to render such sales valid in case of bankruptcy or insolvency of the vendor as against the assignees or against any subsequent assignment or an execution, where the goods remain in the vendor's actual or apparent ownership, the instrument, or a copy of it, must be filed within twenty-one days of the making of the bill, together with an affidavit of the time of such a bill of sale being made or given, and a description of the residence and occupation of the person making or giving the same (c).

(a) Humble v. Mitchell, 11 A. & E. 203; Bowlby v. Bell, 3 C. B. 284; Watson v. Spratley, 10 Ex. 220. (b) Gale v. Burnell, 7 Q. R. 850.

(c) 17 & 18 Vict. c. 36; Allen V. Thompson, 1 H. & N. 15; Hatton v. English, 7 E. & B. 94.

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 (ƒ); 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

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 by 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).

acceptance

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 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.

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