Page images
PDF
EPUB

sale by a partner of his interest in the firm need not be in writing (20). An agreement to form a mercantile partnership is valid when made by parol.

The definition of "goods," in the Sales Act, is as follows: "Goods' include all chattels personal other than things in action and money. The term includes emblements, industrial growing crops, and things attached to and forming part of the land which are agreed to be severed before sale or under the contract of sale" (21).

§ 20. "For the price of fifty dollars (ten pounds sterling) or upwards." The word "price" in the English statute has been adopted in all the statutes of frauds in this country, but it has been construed as the equivalent of "value;" so contracts of exchange or barter have been held to be within the statute. In the Sales Act, the word "value" is used. The amount, however, though generally fifty dollars, about the equivalent of the amount in the English statute, varies from thirty to two hundred dollars. In Florida no limit is fixed. The purchasing value of fifty dollars (ten pounds) has greatly diminished since the English statute of frauds was passed, over two hundred years ago. Five hundred dollars is the amount fixed by the Sales Act, and that is the amount fixed in the act as passed in Arizona, New Jersey, Massachusetts and Rhode Island. In Connecticut the amount has been fixed at one hundred dollars, and in Ohio at twenty-five hundred. It is not likely that the amount adopted will ever become uniform in the several states.

(20) Victor v. Vieths, 60 Mo. App., 9

(21) Sales Act, sec. 76.

Where several articles are bought under one contract, the price of each article being less than the limit fixed by the statute, but the total sum being greater, the contract is within the statute (22). So also where the price of the goods is above the limit fixed and the contract includes an undertaking to do or furnish something else, as a sale of a mare and foal with an agreement that the vendor will keep the mare and foal and also another mare and foal belonging to the purchaser for a certain length of time. This is within the statute, and the vendor has no action upon the contract if it is not in writing. He may, however, recover for the keep of the purchaser's mare and foal (23). It may be that the value or price of the goods is not known at the time the contract is entered into, but is to be determined by the weight or measure of the goods. If the price, when ascertained, is found to be above the limit fixed, the contract is within the statute, and not valid if not in writing (24). Where sundry articles are purchased at the same time, though for a separate price for each article, the sale is to be regarded as one entire contract for all and not a several contract for each article (25). Where goods were ordered at one time, some of which were manufactured, and others not, it was held that the contract was entire for all the goods, and that the delivery and acceptance of the manu

(22) Baldey v. Parker, 2 B. & C., 37; Allard v. Greasert, 61 N. Y., 1. (23) Harman v. Reeve, 25 L. J. Rep., C. P., 257. (24) Watts v. Friend, 10 B. &

(25) Gault v. Brown, 48 N. H.,

C., 446.

183.

factured articles took the case out of the statute as to

all (26).

§ 21. "Shall be allowed to be good." Instead of the

[merged small][ocr errors][ocr errors][ocr errors][merged small]
[ocr errors]
[ocr errors]

shall not be

good," used in the English statute of frauds, the words of the Sales Act are, "A contract enforceable by action unless," etc. The meaning of the words used in the English statute, as construed by the courts, was the same as the words of the Sales Act. The language of the statutes in the different states varies. Only one or two states adopted the words of the English statute. Such expressions as, "shall be good;" that only a contract which complies with the terms of the statute "is valid;" or that one that does not so comply "is invalid;" or "shall be binding on the parties;" or "binding on the promisor;" or that "no evidence is competent unless it be in writing;" are found in the different state statutes. The legal effect of all these expressions is the same as that of the words of the English statute.

Under these statutes a contract made by parol is a valid contract, though not enforceable. The statute affects only the remedy, as between the parties, and not the validity of the contract itself. In Amsinck v. American Insurance Company (27) it was held that one who had only an oral contract for the purchase of a vessel had an insurable interest in the vessel. The court said: "But the oral contract to purchase was not void or illegal by

(26) Scott v. Eastern Counties Railway Co., 12 M. & W., (27) 129 Mass., 185.

33.

reason of the statute of frauds. Indeed, the statute presupposes an existing lawful contract; it affects the remedy only as between the parties, and not the validity of the contract itself; and where the contract has actually been performed, even as between the parties themselves, it stands unaffected by the statute. It is, therefore, to be treated as a valid subsisting contract when it comes in question between other parties for purposes other than a recovery upon it." The defense of the statute, then, is purely a personal one, and cannot be made by strangers to the contract. In Maddison v. Alderson (28) Lord Blackburn said: "I think it is now finally settled that the true construction of the statute of frauds, both the fourth and the seventeenth sections, is not to render the contracts within them void, still less illegal, but it is to render the kind of evidence required indispensable when it is sought to enforce the contract."

The words, "shall be void" or "are void" are used in the statutes of several states. It would seem that such words should receive an entirely different construction from the words of the English statute, or similar words which are found in the American statutes; but that does not appear to be the case. It is generally held that these words are to be taken in the sense of "voidable" and as meaning the same as the words of the English statute (29).

[blocks in formation]

§ 22. "Except the buyer shall accept part of the goods so sold, and actually receive the same:" Acceptance. There must be both an acceptance and an actual receipt of the goods by the buyer, or by his authorized agent. Either may precede the other, but both must exist in order to satisfy the statute.

An acceptance is an assent by the buyer, either before or after delivery, to becoming the owner of those specific goods (§ 12, clause 3, above). It must be absolute and not conditional. A mere delivery of the goods, or a part of the goods, is not sufficient. In Hunt v. Hecht (30) the defendant orally agreed to purchase a quantity of bones, directing them to be sent to a certain wharf, and giving a notice to the wharfinger to receive them. The bones were delivered at the wharf and received by the wharfinger. The defendant next day examined them and refused to receive them on the ground that they were not of the quality bargained for. It was held that there was here no sufficient evidence of acceptance and receipt. There may have been a receipt by the wharfinger, as agent of the purchaser, but there was here no sufficient acceptance to satisfy the statute.

A delivery of goods to a common carrier does not constitute an acceptance of the goods by the purchaser, unless the carrier has authority from the purchaser to accept the goods. Where, however, the requirement of the statute is that part of the goods be "delivered," a delivery of the goods sold, to the carrier in the usual course of transportation has been held to satisfy the (301 & Exch., 814.

« PreviousContinue »