the goods so sold and actually receive the same, or give something 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 contract, or their agents thereunto lawfully authorized.”

The object of the statute, as its name implied, was to prevent frauds and perjuries by requiring that contracts of certain kinds-in contracts of sale those above a certain amount-should be evidenced by writing, signed by the parties to be charged, and not proven by the mere statements of witnesses depending upon their memories, and open to temptations to commit fraud and perjury. Statutes, the general effects of which are the same as this English statute, have been enacted in all the states in the Union except Rhode Island, Pennsylvania, Delaware, Virginia, West Virginia, North Carolina, Alabama, Louisiana, Texas, Kentucky, Tennessee, Ohio, Illinois, Kansas, New Mexico and Arizona.

§ 12. Same: Sales Act. The general effect of the provision of the Sales Act is the same, although the wording is somewhat changed. The provision is as follows: "Statute of Frauds. 1. A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards 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 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" (2).

§ 13. "Contracts for the sale of." One of the first questions which arose under the statute, 29 Charles II, c. 3, s. 17, was whether it embraced both executory and executed contracts. The question was settled by the passage of Lord Tenterden's act, in 1828, which extended the statute to agreements to sell (3). In the United States, the language of the statute of frauds was construed to include executory as well as executed sales, and this even before the passage of Lord Tenterden's act in England, which has never been enacted in this country. The language of the Sales Act, "A contract to sell or a sale"

(§ 12, above), is clear, including executory as well as executed sales.

§ 14. Sales and contracts for work and labor: English rule. A contract for work and labor is not within the statute of frauds; that is, it is not necessary that it be in writing in order to be valid. It is often a close question whether a contract is a contract of sale or a contract for work and labor. Conflicting rules were adopted by the earlier English cases, but a decision which seems to be the present English doctrine was rendered in 1861, in the case of Lee v. Griffin (4). The plaintiff, in pursuance of an order from one Frances P., made two sets of artificial teeth, for the price of £21, after he had prepared a model of her mouth. As soon as they were ready, he wrote her a letter requesting her to appoint a day when he could fit them. She replied by letter, saying: "My health will prevent my taking advantage of the early day. I fear I may not be able for some days." Shortly after writing this letter, she died. The plaintiff brought suit against her executor. It was held that the contract was one for the sale of goods, and hence that the plaintiff could not recover, as there was no evidence of a delivery and acceptance of the goods by the deceased, nor any memorandum in writing in accordance with the provision of the statute of frauds. Blackburn's rule, as there stated, is: "If the contract be such that, when carried out, it would result in the sale of a chattel, the party cannot sue for work and labor; but if the result of the

(4) 1 Best & Smith, 272.

contract is that the party has done work and labor which ends in nothing that can become the subject of a sale, the party cannot sue for goods sold and delivered." Probably the only state in the Union which follows the English rule is Missouri (5).

§ 15. Same: Massachusetts rule. Generally in the United States, one or the other of two rules is followed, viz., what may be called the Massachusetts and the New York rules. Under the Massachusetts rule, a contract for the sale of articles then existing, or such as the vendor in the ordinary course of his business manufactures or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods, to which the statute applies. But, on the other hand, if the goods are to be manufactured especially for the purchaser, and upon his special order, and not for the general market, the case is not within the statute.

In Goddard v. Binney (6) the plaintiff was a carriage manufacturer; the defendant came to his place of business and directed him to make a buggy for the defendant; the defendant gave directions as to the color of the lining, the material of the seat, and the painting, and also that the buggy was to have on it the defendant's monogram and initials; the price was agreed upon as $675, and the buggy was to be done in about four months. The plaintiff built the buggy in accordance with the order, and notified the defendant that it was completed. About

(5) Pratt v. Miller, 109 Mo., 78. But see Brown v. Sanborn, 21 Minn., 402.

(6) 115 Mass. 450.

two months after it was finished, the buggy was destroyed by a fire which consumed the plaintiff's factory and contents. In an action against the defendant for the price of the buggy, it was held that the defendant was liable; that the contract was one to which the statute of frauds did not apply, in accordance with the rule above stated; that enough had been done, in a case not within the statute, to vest the general ownership in the defendant, and to cast upon him the risk of loss by fire, while the chattel remained in the plaintiff's possession. The case followed the earlier Massachusetts case of Mixer v. Howarth (7).

The Massachusetts rule is followed in New England (except in Vermont, where the rule seems unsettled), New Jersey, Alabama, Georgia, Michigan, Indiana, Wisconsin, Minnesota, Wyoming, New Mexico, Washington, and California. The provision in the Sales Act is framed in accordance with this rule.

§ 16. Same: New York rule. Under the New York rule, as laid down in Parsons v. Loucks (8), which is followed in Maryland, North Carolina, South Carolina, and Oregon, "a distinction is drawn between the sale of goods in existence, at the time of making the contract, and an agreement to manufacture goods. The former is within the prohibition of the statute, and void unless it is in writing, or there has been a delivery of a portion of the goods sold or a payment of the purchase price. The latter is not." The agreement in that case, was to

(7) 21 Pickering, 205.

(8) 48 N. Y. 17.