is not taken out of it by the acceptance and receipt of part of the goods.9

A promise that if another party will buy a certain steamer, the promisor will make a contract to use it for three years is within the statute.1 10

12

A contract to pay for a certain chattel in instalments, the last fourteen months from its date, is within the statute,11 and so is a contract to supply a saw mill with timber for two years. The agreements often found to be within this clause are those for service, where the term is for more than a year or is to begin at a future time.13 If the term of service is indefinite, the contract is not affected by the statute.1

14

But where one has rendered services under a contract not enforceable because not in writing, he is entitled to recover for them under a quantum meruit, and it cannot be set up in defence that he violated the contract by quitting the service before the expiration of the stipulated time.15

$ 60.

Contracts for the Sale of Goods. The original statute of 29 Car. II, ch. 3, sec. 17, provided that:

No contract for the sale of any goods, wares and merchandises for the price of ten pounds sterling and upwards shall be allowed to be good except the buyer shall accept part of the goods so sold and actually receive the same, or give some

9 Prested Miners Co. v. Garner [1910], 2 K. B. 776.

10 Green v. Penn. Steel Co., 75 Md. 109. In Packet Co. v. Sickles, 5 Wallace, 588, where the contract was to pay a certain sum annually for the right to use a patented invention on a boat during the term of the patent having twelve years to run, it was held to be within the statute, although a certain contingency,-the loss or destruction of the boat,-might terminate it within a year. The loss of the boat would leave the original contract uncompleted, but put an end to liability under it.

11 Tiernan v. Granger, 65 Ill. 351.

12 Pattin v. Hicks, 43 Cal. 509.

13 Chase v. Hinkley, 126 Wis. 75; 2 L. R. A. (N. S.) 738.

14 Carnig v. Carr, 167 Mass. 544; Peter v. Compton, 1 Smith's Ldg. Cas. 303.

15 Baker v. Lauetrbach, 68 Md. 64. See also, as to recovery for benefit conferred, Warden v. Sharp, 56 Ill. 104; Dix v. Marcy, 116 Mass. 416; Miller v. Roberts, 169 Mass. 134.

thing in earnest to bind the bargain, or in part of 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 a contract, or their agent thereunto lawfully authorized. The Uniform Sales Act, in force in several States, has altered and added to this section in a different way from the English Sale of Goods Act (1893).

The latter statute provides as follows:

4-(1) A contract for the sale of any goods of the value of ten pounds or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf.

(2) The provisions of this section apply to every such contract, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery.

(3) There is an acceptance of goods within the meaning of this section when the buyer does any act in relation to the goods which recognizes a pre-existing contract of sale whether there be an acceptance in performance of the con

tract or not.

The American statute provides as follows in some States: (1) A contract to sell or a sale of any goods or choses in action of the value of fifty dollars1 or upward shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest. to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.

(2) The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be

1 In some States this amount has been increased. The Maryland Act of 1910, ch. 346, mentions $50.

intended to be delivered at some future time, or may not at the time of such contract or sale be actually made, procured. or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply.

(3) There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.

In all cases under the fourth section of this statute a writing is necessary to the enforceability of the contract, but under the seventeenth any one of the following circumstances is as effectual: (a) Acceptance and receipt of part of the goods. (b) Payment of part of the price. (c) Giving something in earnest to bind the bargain.

Under the original statute there was much diversity in the rulings as to whether a contract under which the seller was to perform some work and labor upon the thing sold before the property was transferred was within the statute as being a contract for the sale of goods, or not within it as being a contract for work and labor or a mixed contract of sale and work. The statute codifies the rule as finally established in England, that when the contract is such that a chattel is ultimately to be delivered by the seller, then the cause of action after delivery is for goods sold and delivered.2

Acceptance and receipt. The American statute codifies the construction which had been placed in some jurisdictions upon the provision of the 17th section relating to acceptance and receipt. These are distinct things and both are essential. The decisions upon this subject are very numerous. In

2 Lee v. Griffin, 1 B. & S. 272. In Maryland, where the seller was to bestow some work upon the thing sold before delivery the contract was held not to be within the 17th section. Grove v. Reutch, 27 Md. 188; Eichelberger v. McCauley, 5 H. & J. 213.

one case, A. orally agreed to buy from B. 200 barrels of apples, and directed them to be shipped to him at a certain place by a designated schooner. The vessel was delayed, and A. refused to accept more than four barrels, which the supercargo declined to let him have unless he would pay freight for the whole. In an action by the seller for the price it was held that this section of the statute was a bar to a recovery.3 The Court said: "The statute does not speak of delivery, but superadds to the delivery which the common law requires, acceptance of the goods or some part of them by the purchaser. It confers upon the buyer alone the privilege of preventing a consummation of the contract. In order to satisfy the statute there must be a delivery of the goods with intent to vest the right of possession in the vendee, and there must be an actual acceptance by the latter with intent to take possession as owner. Whether the buyer has accepted or not depends upon the fact and circumstances of each separate transaction." It was also ruled in this case that the fact that the buyer has designated a particular vessel as the carrier did not constitute it an agent with power to accept and receive.

The delivery of goods to the purchaser and the unpacking of them by him are not a sufficient acceptance if it appears that he has taken them and had them in his possession for no greater time than was reasonably necessary to enable him to examine their quantity and quality and to declare his approval or disapproval.*

3 Jones v. Mechanics Bank, 29 Md. 287. See also, Jarrell v. Young, 105 Md. 280. The taking away by the buyer of samples is not an acceptance and receipt of part of the goods. Richardson v. Smith, 101 Md. 15.

4 Hewes v. Jordan, 39 Md. 472. In 1 Law Quarterly Review, 1, there is a vigorous, but one-sided, criticism by Sir James Stephen upon the ethical effect of this section of the statute.

CHAPTER V

CAPACITY OF PARTIES

The normal condition of all parties is one in which they are capable of making any contract. But certain classes of persons are under a disability to contract, either total or partial, which is abnormal. This disability may arise from political status, infancy, lunacy, &c.

$61. Alien Enemies. An alien enemy can make no contract with a citizen of this country during the continuance of hostilities. His right to enforce contracts made ante bellum are suspended, but, since the plea of alien enemy goes only to the disability of the plaintiff, the right to proceed against him continues to exist.1

$ 62. Contracts of Infants. All persons under the age of twenty-one years were placed by the common law under a qualified disability to contract. Some of the earlier cases. divide the contracts of infants into the three classes of void, voidable and binding. But the later cases state the rule to be that the contracts of infants other than for necessaries are not void, but only voidable, and hence capable of ratification.1

The rights and liabilities of infants under contracts made by them can be best discovered by considering: (1) Their contracts for necessaries; (2) Their contracts not relating to

1 Hanger v. Abbott, 6 Wallace, 532; Armstrong v. Toler, 11 Wheat. 258; Whelan v. Cook, 29 Md. 1; Dorsey v. Kyle, 30 Md. 512; Dorsey v. Thompson, 37 Md. 25.

1 Ridgely v. Crandall, 4 Md. 441; Chew v. Bank, 14 Md. 318. But a power of attorney executed by an infant is void and incapable of ratification. Wainwright v. Wilkinson, 62 Md. 146. The English Infant's Relief Act of 1874 declares void, and incapable of ratification after coming of age, all contracts of infants except certain specified ones.