Page images
PDF
EPUB

FRAUDS” AND UNIFORM SALES ACT. By the 17th section of the English Statutes of Frauds, substantially copied by enactment in many of the states, and by section 4 of the Uniform Sales Act, a contract to sell or a sale of goods at a price amounting to or above a certain sum is not enforceable in the courts unless a payment has been made upon the bargain or unless part of the goods have been accepted and actually received by the buyer or unless some memorandum in writing of the contract or sale has been signed by the party sought to be charged or by his duly authorized agent.

Statutes substantially to this effect are in force in the following states and territories: Alaska ($50); Arizona ($500); Arkansas ($30); California ($200); Colorado ($50); Connecticut ($100); District of Columbia ($50); Florida (of any amount); Georgia ($50); Idaho ($200); Illinois ($500); Indiana ($50); Indian Territory ($30); Iowa (of any amount); Maine ($30); Maryland ($50); Massachusetts ($500); Michigan ($50); Minnesota ($50) ; Mississippi ($50); Missouri ($30) ; Montana ($200); Nebraska ($50); Nevada ($200); New Jersey ($500); New Hampshire ($33); New York ($50); North Dakota ($50); Ohio ($2500); Oklahoma ($50); Oregon ($50); Pennsylvania ($500); Rhode Island ($500); South Carolina ($50); South Dakota ($50); Tennessee ($500); Utah ($200); Vermont ($40); Washington ($50); Wisconsin ($50); Wyoming ($50).

The English "Statute of Frauds” was passed to prevent "frauds and perjuries,” that is, false testimony in respect to alleged transactions.8 Clearly, if the law requires a plaintiff who alleges a breach of contract of

8. See Volume on Contracts in this series for general discussion of Statute of Frauds.

[ocr errors]

sale to produce written evidence of the contract, signed by the other party, there can be no perjury on his part in that respect, and neither can the other party swear contrary to such written evidence, except to prove it a forgery or fraudulently obtained. The statute also allows, however, the enforcement of a contract of sale when there is no writing, if it has been partly performed by some payment or by delivery and acceptance of some part; for, these things furnish corroborative evidence of the sale alleged.

The following should be observed in reference to this statute:

First: The provision concerns the enforcement and in no sense the validity of the transaction. Therefore, if the contract of sale has been executed, or if the defense is not relied upon by the party sought to be charged, the provision has no application.

Second: The statute does not apply at all if the goods are sold for a less sum than a certain value, this value, differing in different states, as shown above.

Third: That a sale is enforceable notwithstanding there is no writing;

(a) If below the amount named; (b) If a part payment has been made; (c) If a part delivery has been made and received ; (d) If a sale is of goods to be specially made up for

the buyer. Fourth: The practical observation should be made that out of the great multitude of cases to which the statute would be a defense, because no compliance therewith, the deal nevertheless goes through as planned, as the parties intend it shall.

This seventeenth section of the statute of frauds has been incorporated in the Sales Act. An important addition has been made respecting sales of goods to be made up to the special order of the buyer, as explained hereafter.

Sec. 32. STATUTE OF FRAUDS NOT APPLICABLE IF PRICE IS LESS THAN A CERTAIN AMOUNT. The statutes of frauds of the various states name a certain price at and beyond which sales are to be unenforceable unless the other provisions of the statute are satisfied. To bargains below that price the statute has no application. This price varies in the different jurisdictions.

If a bargain is for less than the price named in the statute, it is enforceable though there is no written memorandum and though there has been nothing paid and no part of the goods delivered. For in sales of small amounts it would be a matter of too great inconvenience to require the formalities required in sales of greater moment, and the law considers that a party will not for the smaller sums be so strongly tempted to commit perjury, or if he does so, the hardship is not enough to overcome other considerations. Accordingly the statute does not include sales which are below a certain amount.

If several articles are purchased at one time and under one contract the statute applies if the aggregate price is of or above the amount named in the statute, although each article was separately priced at an amount below the amount named in the statute. The test would be whether or not the contract was all one contract and not several contracts.

Example 1. A comes to B's residence and offers B $10 for a chair, $5 for a lamp, $3 for a stool, and $35 for a bookcase. B accepts this offer. He afterwards refuses 9. Mechem on Sales, Sec. 349, 352

to deliver the articles. Nothing has been paid and there has been no memorandum. A statute is in force in reference to sales in sums of $50 and upwards. B can plead this statute in defense, for the contract of sale is all one, having been made at one time and as one transaction. 10

Sec. 33. STATUTE OF FRAUDS NO DEFENSE IF PAYMENT HAS BEEN MADE IN WHOLE OR IN PART. If there has been a payment by the buyer the contract is enforceable by or against him though it is otherwise unexecuted and though it is entirely oral.

Example 2. A sells B an automobile for $1200. There is no writing and the automobile has not been delivered, but B gave and A accepted $10 in part payment. Neither party, on being sued, can plead the statute of frauds in defense.

Payment may be in any thing agreed upon as such.11

Payment by one's own note has been held not to be payment; or a mere agreement to apply an indebtedness in part payment.12

Sec. 34. STATUTE OF FRAUDS NO DEFENSE WHERE THERE HAS BEEN DELIVERY AND ACCEPTANCE OF ALL OR PART OF THE GOODS. A delivery and actual acceptance of the goods or any part of them at the time of making the bargain or before suit is brought is sufficient to enable the party suing to prove the contract though it is entirely oral and no part of the price has been paid.

10. Baldy v. Parker, 2 B. & C. 37. 11. Wier v. Hudnut, 115 Ind. 525.

12. Krohn v. Bantz, 68 Ind. 277 ; Walker v. Nussey, 16 M. & W.

Note that there must be both delivery by the seller and actual acceptance by the buyer. If the seller attempts to make delivery, but the buyer refuses to accept, the contract cannot be proved unless there has been a part payment or a written memorandum. It is sufficient if the delivery and acceptance is in part only. If articles of a miscellaneous sort were all bought under one contract of sale, the delivery and acceptance of any one of these articles would be a sufficient delivery and acceptance to satisfy the statute and permit the enforcement of the entire contract. But if articles are bought under separate contracts, the performance or part performance of one of these could not be relied on in aid of another.

Delivery and acceptance does not necessarily involve removal of the goods, although that would be the usual case, but in the event of delivery and acceptance without removal there would have to be some act showing clearly that one party meant to deliver, and the other to take control of the property.13

Sec. 35. STATUTE OF FRAUDS NO DEFENSE WHERE THERE IS A SUFFICIENT SIGNED MEMORANDUM. If there has been no payment and no delivery, and acceptance of the goods or any part of them then the statute requires a memorandum signed by the party sought to be charged.

There being no sufficient performance to take away the defense of the statute of frauds, there must be a memorandum signed by the party sought to be charged. Of this it should be noted:

13. Shindler v. Houston, i N. Y. 261.

« PreviousContinue »