S. 3. another to a third party, treating the seller as his agent, (2.) The owner of goods who has sold them to an insolvent (4.) A wife, who is insufficiently supplied with necessaries, Provided. For the law relating to the contracts of corporations, see Pollock, &c. on Contracts (5th ed.), pp. 145-155; and Lindley on Companies (5th ed.), pp. 220 et seq. ILLUSTRATIONS. 1. B. writes to A. ordering a carriage with particular appointments, which he afterwards verbally modifies and adds to. The contract of sale is to be proved by B.'s letter and the subsequent verbal instructions. Hoadley v. McLaine (1834), 10 Bing. 482. 2. A. agrees to supply B. with furniture to the amount of 6007., or 7001. payable half in cash, and half by bill at six months. When goods to the value of 887. had been delivered, B. refuses to take any more, but retains the part delivered. There is a new implied contract of sale for 887., and B. is not entitled to the original credit. Bartholomew v. Markwick (1863), 15 C. B. N. S. 710. 3. A. agrees to sell goods to B. on the valuation of C. and D., but before valuation B. consumes the goods. There is an implied contract by B. to pay the reasonable worth of the goods. Clarke v. Westrope (1856), 18 C. B. 765 (8). 4. B. sends A. the draft of an agreement to form the basis of a formal contract for the supply of coals by A. to B. A. fills up blanks and makes modifications, and writes "approved" at the end, and then returns to B. No formal document is executed by either party, but (n) Smith v. Hodson (1791), 4 T. R. 211; 2 Sm. L. C. (9th ed.) p. 138. (0) Hill v. Perrott (1810), 3 Taunt. 274; Abbott v. Barry (1820), 2 B. & B. 369. (p) Brinsmead v. Harrison (1871), L. R. 6 C. P. 584. (g) Cooper v. Shepherd (1846), 3 C. B. 266; Ex parte Drake (1877), 5 Ch. D. 866. This would seem an illustration of the ordinary principle (seen in cases of insurance) that a total indemnity for loss of a thing transfers the property and rights of the owner to the indemnified. See Simpson v. Thompson (1877), 3 Ap. Ca. 279. (r) Eastland v. Burchell (1878), 3 Q. B. D. 436; the rules relating to the law of principal and agent are saved by s. 61 (2). (s) See s. 9. coals are supplied by A., and payments are made to him by B. according to the terms of the draft. The circumstances show a contract of sale on the terms of the draft. Brogden v. Met. Ry. Co. (1877), 2 Ap. Ca. 666. 5. B. orders of A. two dozen port, and two dozen sherry. A. sends four dozen of each. B. retains one dozen sherry and one bottle of port, returning the rest. This is a sale by A. to B. of the wine retained. Hart v. Mills (1846), 15 M. & W. 85 (t). 6. A. agrees to supply B. with two hundred and fifty bushels of wheat deliverable over a certain period, but delivers only one hundred and thirty bushels. B. keeps them after the expiration of the period. This is a contract of sale of the part retained (t). Oxendale v. Wetherall (1829), 9 B. & C. 386. 7. B. guarantees to A. the sale of certain goods for 9,0007. by a certain date, and A. agrees to give B. an irrevocable power of attorney allowing B. to deal with the goods as he pleased. B. also agrees to take over the goods at 9,0007. if not sold at that date. The transaction amounts to a sale of the goods to B., though it was called a guaranty. Hutton v. Lippert (1883), 8 Ap. Ca. 309. 8. A. delivers goods to B. with a price list, B. to sell them at his own price and account therefor at the first price, and B. also to be at liberty to alter the goods. This is a contract of “sale or return" by A. to B. Ex parte White (1870), 6 Ch. 397. S. 3. sale for ten upwards. 4. (1.) A contract for the sale of any goods of Contract of the value of ten pounds or upwards shall not be pounds and 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 (t) See s. 30 of this Act. S. 4. act in relation to the goods which recognizes a preexisting contract of sale whether there be an acceptance in performance of the contract or not. (4.) The provisions of this section do not apply to Scotland. This section reproduces in a slightly amended form s. 17 of the Statute of Frauds, which is repealed by s. 60 (see schedule of repealed enactments at the end of the Act). Before considering its provisions in detail, one preliminary rule should be first stated, viz., the satisfaction relied upon of the requirements of this section must take place before action brought, "that is to say, that when one of these requirements is satisfied, the agreement then becomes enforceable by action" (u); there must, "in order to sustain the action, be a good contract in existence at the time of action brought; and to make it a good contract. . . . there must be one of the three requisites" (x). As regards the memorandum, this was decided to be the law as long ago as 1841 in the case of Bill v. Bament (x), and also in a late case (y). Even disregarding judicial dicta, the conclusion from logic and common sense is irresistible that the same rule applies to the other requisites of the section. There is, however, no express decision applying to the latter. The above rule appears at first sight inconsistent with the theory (to be mentioned later on) that the present section, as regards the memorandum, deals not with the contract itself, but only with evidence of it. But "it may well be," says Lord Esher in Lucas v. Dixon (y), "that the legislature intended to prevent persons being vexed with actions that could not succeed." And Fry, L.J., says in the same case (though he calls the conclusion "singular"), "The statute requires the memorandum as evidence, but requires the evidence to be in existence at the commencement of the action" (:). One further point should be mentioned in connection with these requirements of the section, and that is, that, though the effect of all of them, as rendering the contract enforceable by action, is the same, yet that the memorandum stands in some respects on a different footing from the others. The memorandum must necessarily declare all the material terms of the contract; the (u) Per Williams, J., in Bailey v. (y) Lucas v. Dixon (1889), 22 Q. B. D. 357. (2) See also per Lindley, L.J., in In re Hoyle, [1893] 1 Ch. at p. 97. others merely show the relation of seller and buyer. See post, p. 31, s. v. "Acceptance." A contract for the sale.-Prior to Lord Tenterden's Act (9 Geo. 4, c. 14, s. 7) thère had been many conflicting decisions on the question whether the Statute of Frauds applied to executory agreements, as well as to bargains and sales. By that Act (which is re-enacted in sub-s. 2 of this section) the provisions of the original statute were extended to executory agreements, the two Acts being by implication incorporated, with the effect of substituting the word "value" for "price" in the Statute of Frauds (a). "Value" now appears in the present section. With regard to the distinction between contracts of sale and contracts for work and materials, or for the affixing of a chattel, see notes to s. 1, ante, pp. 3, 4. In this connection it has been decided (b), that any stipulation for the resale by the buyer to the seller of goods, forming a term of an entire and enforceable contract for the sale thereof to the buyer, is not "a contract of sale" so as to separately require to be rendered enforceable by acceptance, &c. Of any goods.-Defined in s. 62 (1) as including “all chattels personal other than things in action and money . . . emblements, industrial growing crops, and things attached to or forming part of the land which are agreed to be severed before sale, or under the contract of sale." The term would thus include all corporeal moveable property, and would not include incorporeal rights or property, such as(1) Scrip (c), shares (d), and stocks (e). (2) Documents of title (ƒ). (3) Tenants' fixtures sold as unsevered (g). In the latter part of this interpretation clause are included various things with which, previously to the Act, a number of cases have been concerned, with some conflict of authority. Under the words "emblements, industrial growing crops" are included all that class of productions of the earth which is known as fructus industriales, emblements being only such as (a) Per Jervis, C.J., in Harman v. Reeve (1856), 18 C. B. 587. (b) Williams v. Burgess (1839), 10 A. & E. 499. (c) Knight v. Barber (1846), 16 M. & W. 66. (d) Humble v. Mitchell (1839), 11 A. & E. 205; Duncuft v. Albrecht (1841), 12 Sim. 189; Bradley v. Holdsworth (1838), 3 M. & W. 422; Colonial Bank v. Whinney (1885), 30 (e) Heseltine v. Siggers (1848), 1 (f) Freeman v. Appleyard (1862), 32 L. J. Ex. 175 (goods within Factors Act). (g) Lee v. Gaskell (1876), 1 Q. B. D. 700. See notes on p. 27, infra, on this point. S. 4. S. 4 (1) 24 S. 4 (1). Emblements. Industrial growing crops. ordinarily produce, under labour and manurance, a crop within the year of sowing (h); whereas "industrial growing crops appear to include the larger class of industrial crops, though not necessarily annual. First, as regards emblements. The law prior to the Act is thus stated by Mr. Benjamin at p. 121:-"Growing crops, if fructus industriales, are chattels, and an agreement for the sale of them, whether mature or immature, whether the property in them is transferred before or after severance, is not an agreement for the sale of any interest in land, and is not governed by the 4th section of the Statute of Frauds." And at p. 123:-" Whether fructus industriales, while still growing, are not only chattels, but 'goods, wares, and merchandise,' has not, it is believed, been directly decided. Both Bayley, J., and Littledale, J., expressed an opinion in the affirmative in Evans v. Roberts (i). Lord Blackburn, on the contrary, says that the proposition is 'exceedingly questionable,' and that no authority was given for it in Evans v. Roberts." But later, Brett, J., says, in Marshall v. Green (k), that a sale of fructus industriales to be taken away by the buyer (i.e., where the property is to pass before severance) is only a sale of "goods," though the crops be immature. The Act appears to have adopted the latter view of the law, so that, in the future, a sale of emblements, whether mature or immature, and whether the property is to pass before or after severance, is only a sale of " 'goods." Secondly, with regard to industrial growing crops. This term, it is apprehended, is meant to include that class of crops above referred to, i.e., produced by the labour of man, though not technically falling under the denomination of "emblements." As Mr. Benjamin says, at p. 125, "there is an intermediate class of products of the soil, not annual, as emblements, nor permanent, as grass or trees, but affording either no crop till the second or third year, or affording a succession of crops for two or three years before they are exhausted, such as madder, clover, teazles, &c." Groves v. Weld (1) appears to establish the following propositions, that, previously to the Act, industrial growing crops, as distinguished from emblements, were: (1) Crops ordinarily yielding profit beyond the expiration of a year from the date of sowing, (h) Per Cur. in Groves v. Weld (1833), 5 B. & Ad. 105. (i) (1826), 5 B. & C. at p. 836. (k) (1875), 1 C. P. D. at p. 42. |