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state contemplated by the terms of the contract. Sir J. Osborne (f) bespoke a chariot, and when it was made refused to take it ;-Pratt, C. J., ruled that this was not within the statute. The principle here laid down, though cited by the Court in the overruled case of Clayton v. Andrews as the ground of that decision, was distinguished from the latter case, and acknowledged to be good law(g). Again, where the contract was for the purchase of several oak pins, which were not made at the time but had still to be cut from the slabs, the case was held not to be within the statute (h). On the other hand it was decided, that a contract with a miller for the sale of flour, which at the time was not ground, was within the statute(i). There would be some difficulty in reconciling these decisions; and cases may readily be conceived, where the distinction between contracts strictly for the sale of goods, and contracts for work and labour to be added to materials, might give rise to questions of great nicety. The statute therefore seems to have wisely removed the distinction altogether.

Sales by Auction(k). It was formerly doubted,


(f) Towers v. Osborne, 1 Str. 506.

(8) In Garbutt v. Watson, 5 B. & A. 614, Abbott, C. J., distinguished the case from Towers v. Osborne, observing, that in the latter “ the chariot, which was ordered to be made, would never but for that order have had any existence.”

(h) Groves v. Buck, 3 M. & S. 178.
(i) Garbutt v. Watson, 5 B. & A. 613.
(k) See post, of auctions, Chap. v.

whether sales of goods by auction were within the statute (I); as it was thought, that the publicity of the sale was sufficient to provide against fraud. But it is now determined that they are (m). A separate contract arises for each lot(n); therefore, where several lots are knocked down to one bidder, if they do not individually exceed £10, although the amount of the whole purchase may be much greater, the statute is not applicable. A different rule prevails in the case of a private contract, for the purchase of several articles at the same time and place. Where a person entered a shop, and bargained for several things, none of which singly were worth £10, but the whole value amounted to £70, it was held to be one entire contract, and void because not reduced to writing (0).

Sales of stock. It is said that a sale of stock is Stock. within the statute(p), though this has been doubted(9), because there can be no actual delivery.

(1) Simon v. Motivos (or Metivier), 3 Burr. 1921 ; Hinde v. Whitehouse, 7 East, 558.

(m) Kenworthy v. Schofield, 2 B. & C. 945; S. C. 4 D. & R. 556.

(n) Emmerson v.. Heelis, 2 Taunt. 47, see the judgment of Mansfield, C. J.; James v. Shore, 1 Stark. N. P. C. 426.

() Baldey v. Parker, 2 B. & C. 37; and see Champion v. Short, 1 Campb. 53. Post.

(p) Mussel v. Cooke, Prec. Chan. 533 ; 2 Stark. Ev. 352, (2nd Ed.)

(9) Pickering v. Appleby, Com. Rep. 354 ; Colt v. Nettervill, 2 P. Wms. 308. [All the judges in England were equally divided on the point, ibid.]

Pablic shares.

Crops, &c.

Sales of public shares. It was ruled by Perryn, B., that a contract for the sale of shares in a canal navigation was not within the statute. An objection was taken at the trial, but on a motion to enter a nonsuit it was abandoned without argumentír).

Sales of crops, timber, &c. A question frequently arises, whether a contract relating to the sale of growing crops is within the 17th section, or whether it affects an interest in land within the meaning of the 4th section (s) of the same statute.

A contract for the purchase of a growing crop of grass, to be mown and made into hay by the vendee(t);—a sale of growing turnips, the degree of maturity and the stipulated period of removal not being positively stated (u);--a sale of growing hops(x), or of turnips, corn, and growing crops in general(y), which have not arrived at maturity ;have been held to be within the 4th section.

Growing crops.

(r) Latham v. Barber, 6 T. R. 67, 70.

(s) By the 4th section of 29 Car. II. c. 3, no action shall be brought upon any contract or sale of lands, tenements or “hereditaments, or any interest in or concerning them,” without a memorandum or note thereof written and signed by the parties, or their authorised agents. [It is to be observed, that where the contract falls within this section and is distinguished from a sale, the written note of agreement is excluded from the exemption clause of the Stamp Act, and requires an agreement stamp. See Waddington v. Bristow, 2 B. & P. 452, post.]

(t) Crosby v. Wadsworth, 6 East, 602.
(u) Emmerson v. Heelis, 2 Taunt. 38.
(r) Waddington v. Bristow, 2 B. & P. 452.

(y) Falmouth (Earl) v. Thomas, 3 Tyrw. 26; S. C. 1 Cr. & Mees. 89; see 1 Cr. & Mees. 109.

But a contract for matured crops, which are to Matured be taken up immediately, is held to pass no interest crops. in the land ; because they can derive no further advantage from the soil, and the land may be considered merely as a sort of warehouse until they can be removed. Thus, a sale of mature potatoes or other crops (z); or, an agreement by the incoming with the outgoing tenant to take the crops(a), or such an agreement, where it is made a condition of taking the farm(b); are not within the 4th section of the statute. So, where the seller was to raise the potatoes from the ground, although their growth was not complete(c), it was held to be strictly a contract of sale for goods, chattels and merchandise within the 17th section. So it was held, where defendant, upon condition that plaintiff would supply him with a quantity of turnipseed, agreed to sow it in his own land, and to sell to plaintiff the whole crop of seed produced therefrom; because the thing, agreed to be delivered, would at the time of delivery be a personal chattel (d).

(z) Parker v. Staniland, 11 East, 362 ; Warwick v. Bruce, 2 M. & S. 205. [Per Lord Ellenborough, C. J., " the potatoes are the subject matter of the sale, and whether, at the time of the sale, they are covered with earth, in a field or in a box, still it is a sale of a mere chattel ;" 2 M. & S. 208.]

(a) Mayfield v. Wadsley, 3 B. & C. 357, 363.
(6) Ib. ; see Poulter v. Killingbeck, 1 B. & P. 397.
(c) Evans v. Roberts, 5 B. & C. 829 ; S. C. 8 D. & R. 611.
(d) Watts v. Friend, 10 B. & C. 446.



A contract for the purchase of timber at so much per foot, was decided to be a contract of sale within the 17th section (e); Bayley, J. said, that the agreement was not for the growing trees, but for the produce when they should be cut down and severed from the freehold (f). But where the agreement is for growing trees(g), it seems to fall within the 4th section; as trees for the purpose of making hop-poles (h), or growing underwood to be felled by the purchaser(i).

It seems that fixtures, unsevered from the freehold, are not within the statute of frauds at all. They have been decided not to constitute an interest in land within the 4th section(k), and they cannot be recovered in an action for goods sold and delivered(I).

Contract to procure goods. A contract to procure coals at A., and bring them to B., was held not to be a contract of sale, and therefore not within the statute(m). It was said, that if no coals could have been procured at A., an action

Contract to procure goods.

(e) Smith v. Surman, 9 B. & C. 561.
() Ib. 568.
(g) See Knowles v. Michel, 13 East, 249.

(1) Teal v. Auty, 2 B. & B. 99. [But see 1 Ld. Raym. 182, per Treby, C. J., and Powell, J.]

(i) Scorell v. Boxall, 1 Y. & J. 396.
(k) Hallen v. Runder, 1 Cr. M. & Ros. 266.
(l) Lee v. Risdon, 7 Taunt. 188; post.

(m) Cobbold v. Caston, 1 Bingh. 399; S. C. 8 B. Moore, 456 ; 1 C. & P. 51.

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