CHAPTER VIII.

THE CONTRACT, AND THE FORMALITIES REQUIRED BY

THE STATUTE OF FRAUDS.

"FOR prevention of many fraudulent practices which The Statute are commonly endeavoured to be upheld by perjury and of Frauds. subornation of perjury" the law has provided, in what is called the "Statute of Frauds" (a), that certain formalities shall be necessary, in some cases to the enforcement, in others to the validity, of contracts.

auction.

It was formerly doubted (b) whether sales by auction Extends to were within the meaning of the statute, as it was thought sales by that the publicity of such sales ought to be sufficient to guard against fraud; and questions founded upon this doubt have at different times been brought before the courts. It is now, however, clearly settled that auctionsales, with the exception of such as are held by order of the Court (c), are within the statute, and that they, therefore, require compliance with the formalities imposed by it, as

It

(a) 29 Car. II. c. 3 (made perpetual by 1 Jac. II. c. 17, s. 5). has been said that Lord Chief Justice Hale drew up this act, but Lord Mansfield is reported, in Wyndham v. Chetwynd, 1 Burr. 414, 418, to have doubted the accuracy of the statement.

(b) Simon v. Metivier, 1 Bl. R. 599.

(c) See post, p. 244.

Sect. 4.

Sect. 17.

Lord Tenterden's Act.

much as do sales of less publicity (d). And it is the duty of the auctioneer to take reasonable and proper care that the contract of sale is binding under the statute (e).

The 4th and 17th sections of the Statute of Frauds are the only ones that have an important bearing on the subjectmatter of this work.

The former enacts, inter alia, "that no action shall be brought . . . . upon any contract or (sic) sale (ƒ) of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized."

The latter section (g) enacts that "no contract for the sale of any goods, wares or merchandises for the price of £10 sterling or upwards shall be allowed to be good, except (1) the buyer shall accept part of the goods so sold and actually receive the same, or (2) give something in earnest to bind the bargain or in part of payment, or (3) 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."

In consequence of doubts which had arisen upon the construction of the 17th section it was enacted by 9 Geo. IV. c. 14, s. 7 (h), that the 17th section of the Statute of Frauds

(d) Blagden v. Bradbear, 12 Ves. 466; Higginson v. Clowes, 15 Ves. 516; Kenworthy v. Schofield, 2 B. & C. 945.

(e) Per Blackburn, J., in Peirce v. Corf, L. R. 9 Q. B. 210, 214; 43 L. J. Q. B. 52.

(f) For remarks on these words, see Sugd. 123; Broom, C. L. 384.

(g) This section is numbered as the 16th in the revised edition of the statutes, but, it being better known as the 17th, the old numbering has been retained.

(h) Commonly called Lord Tenterden's Act.

"shall extend to all contracts for the sale of goods of the value of £10 sterling and upwards, notwithstanding 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."

This section and the 17th section of the Statute of Construed together Frauds are to be read together, and the words "of the with sect. value" in the former must be substituted for the words 17. "for the price" in the latter (). The value, it seems, may be an amount to be ascertained in a manner indicated by the contract (j); nor is it material that the price agreed upon was enhanced by the fact that the vendor had to incur expense in causing the goods to be conveyed to the purchaser (k).

tions

Before discussing the effect of the 4th and 17th sections Distincof the Statute of Frauds, it may be observed that, while the between the requirements of the former section can only be satisfied by 4th & 17th a written memorandum, those of the latter may be complied secs. with in any one of three ways, compliance with either of the first two of which will let in parol evidence of the whole contract (). Moreover, the "4th section does not avoid contracts not signed in the manner prescribed; it only precludes any right of action. The 17th section is stronger,

(i) Harman v. Reeve, 18 C. B. 587; 25 L. J. C. P. 257.

(j) Watts v. Friend, 10 B. & C. 446. "Where the parties have omitted to fix a price, it may be open to a jury to ascertain the value in dispute ❞—per Tindal, C. J., in Hoadly v. M'Laine, 10 Bing. 482, 487; and see post, p. 152.

(k) Astey v. Emery, 4 M. & S. 262.

(1) Tomkinson v. Staight, 17 C. B. 697; 25 L. J. C. P. 85.

Provided

that the contract has not been reduced into writing; see ante, p. 45; and provided that the contract is to be performed within a year; see notes to Peter v. Compton, 1 Sm. L. C. 335.

L

What they

include :

Lands &c.;

goods &c.; tenants' fixtures;

and avoids contracts not made as the section prescribes" (m). This distinction is important; for a parol agreement relating to land, when executed, is not invalidated by the 4th section; and in some cases a Court of Equity will decree specific performance of such a contract, when it has been partly executed (n).

"The words 'lands, tenements and hereditaments' appear to have been used by the legislature to denote a fee simple, and the words any interest in or concerning them' to denote a chattel interest, or some interest less than the fee simple" (o). A contract for a lease (p), or to give up possession (9) of a house, or for the sale of a business, with possession of the premises where it is carried on (r), is within the section; but a contract for the use of a graving dock, the control and management of which remains with the party letting it, is not (s). The fact that the party contracting to sell an interest in land has not himself an interest in it, but merely acts as broker or agent, is immaterial (†).

There is not often much difficulty in determining whether certain things are goods or not. Tenants' fixtures are considered to be goods, when severed from the freehold (u); and a recent case has laid down the following rule as to

(m) Per Bosanquet, J., in Laythoarp v. Bryant, 2 Bing. N. C. 735, 747; 2 Hodg. 25; cf. Leroux v. Brown, 12 C. B. 801, 825; 22 L. J. C. P. 1; 16 Jur. 1021.

(n) Post, p. 197.

(o) Per Littledale, J., in Evans v. Roberts, 5 B. & C. 829, 839; cf. Smith v. Surman, 9 B. & C. 561, 573.

(p) Vaughan v. Hancock, 3 C. B. 766.

(q) Kelly v. Webster, 12 C. B. 283; 21 L. J. C. P. 163.

(r) Smart v. Harding, 15 C. B. 652; 24 L. J. C. P. 76; Hodgson v. Johnson, E. B. & E. 685; 28 L. J. Q. B. 88.

(s) Wells v. Kingston-upon-Hull, L. R. 10 C. P. 402; 44 L. J. C. P. 257.

(t) Horsey. Graham, L. R. 5 C. P. 9; 39 L. J. C. P. 58.

(u) Minshall v. Lloyd, 2 M. & W. 450, 459; Dalton v. Whittem, 3

crops.

growing crops (v): "Where the subject-matter of the con- growing tract is growing in the land at the time of the sale, then, if, by the contract, the thing sold is to be delivered at once by the seller, the case is not within the (4th) section. Another case is where, although the thing may have to remain in the ground some time, it is to be delivered by the seller finally, and the purchaser is to have nothing to do with it, until it is severed; and that case also is not within the (4th) section. Then there comes the class of cases where the purchaser is to take the thing away himself. In such a case, where the things are fructus industriales (w), then, although they are still to derive benefit from the land after the sale, in order to become fit for delivery, nevertheless, it is merely a sale of goods, and not within the (4th) section. If they are not fructus industriales (x), then the question seems to be whether it can be gathered from the contract that they are intended to remain in the land for the advantage of the purchaser, and are to derive

Q. B. 961; but not when they are unsevered; see post, p. 149, and cf. ante, p. 63.

(v) Per Brett, L. J., in Marshall v. Green, 1 C. P. D. 35, 42; 45 L. J. Q. B. 153, 155.

(w) I.e. corn and other growth of the earth which is produced, not spontaneously, but by labour and industry. They can be seized by the sheriff under a fi. fa., and go to the executor, and not to the heir. Wheat, potatoes, turnips &c.; Jones v. Flint, 10 A. & E. 753; 2 P. & D. 594; Dunne v. Ferguson, Hayes, 540; and also, it seems, hops; Rodwell v. Phillips, 9 M. & W. 501, 503, are fructus industriales. From the cases cited it appears that emblements, as to which see Wms. Exors. 716, come under the same rule as fructus industriales, which, in fact, they include. Growing crops are treated in a similar manner to fixtures in the Bills of Sale Act, 1878; see ante, p. 63, note (8).

(x) E.g. clover; Graves v. Weld, 5 B. & Ad. 105; mowing_grass; Crosby v. Wadsworth, 6 East, 602; cf. Jones v. Flint, 10 A. & E. 753, 759 (where it was held that a contract of agistment, i.e. where the owner Contract of a pasture takes in cattle to be fed, is not an interest in land, though a for agistcontract to sell the feed, to be taken by the cattle of the buyer, would be); ment. standing underwood; Scorrell v. Boxall, 1 Y. & J. 396; Teal v. Anty, 2 B.

& B. 99; poles or timber; growing fruit; Rodwell v. Phillips, 9 M. & W.

501.