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First. The memorandum need not be of a formal character; it may be in the form of a note, letter, receipt, entries in book, telegrams, etc., provided these contain a sufficient memorandum and be signed. It may also consist in a series of papers, if, all together, they go to make up or express one contract.14
Second. That, in most states, the memorandum need not be made at the time the contract of sale is made, but it is sufficient if it be made any time thereafter but before suit is begun. This accomplishes the purpose of the statute, as that is merely for the prevention of frauds and perjuries. It is therefore immaterial when the memorandum was made and signed by the party sought to be charged or his duly authorized agent.
Third. The memorandum must state all the material terms of the contract and leave no material term to be orally proved. All of the contract must be proved by the memoranda. It must state the names of or describe the parties though the name in the signature would be sufficient. It must state the price agreed upon; provided there was a price agreed upon; but if the parties had left the price to inference, then, as the law will under such circumstances imply an agreement to pay a reasonable price, the contract is enforceable. It must describe the subject matter, or refer to it in such a way as to plainly identify it. So all the other substantial terms of the contract must be stated.
Fourth. The memorandum must be signed by the party sought to be charged and need not be signed by the other party. By the party sought to be charged is ordinarily meant the defendant. Unless the statute uses the term "subscribed" instead of "signed" the signature need not be at the bottom of the memorandum but may
14. Louisville, etc., Co., v. Lorick, 29 S. C. 533.
be any place in the writing, provided it was intended as a signature. Any mark or writing intended as a signature and which can be so proved would be sufficient.15 Thus signature by initial would be sufficient. If the contract consists in several memoranda, they must all be signed, or else those that are signed must make a sufficient reference to the others to identify them.
Fifth. The memorandum and signature may be made by agent duly authorized for that purpose. Any agent having a special authority to make the bargain, or a large general authority wherefrom the authority to make the particular bargain could be inferred, would also have authority impliedly given therewith to make the memorandum and sign his principal's name thereto. Thus suppose that A orally appoints B general manager of his store, to buy and sell the stock in trade, etc. B would have implied authority to comply with the statute of frauds in purchases and sales.
Sec. 36. WHAT IS A CONTRACT OF SALE WITHIN THE STATUTE. By the Uniform Sales Act, and by the prevailing view adopted by such act, the requirements of the statute are inapplicable where the goods are to be made up 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 original statute of frauds required a signed memorandum, part payment or part delivery in every case of sale of the prescribed amount. It made no distinction as to goods to be made up by the seller specially for the buyer. For instance, suppose a person orders a dentist
15. A printed bill head is a sufficient signature, Goldiwitz v. Kupfer, 141 N. Y. Suppl. 531.
to make up a set of teeth for him,16 and there being no memorandum, payment or delivery, pleads the statute of frauds. Here is a hard case, for the dentist will have left on hand an article of comparatively little value to him, and none to any one else. The courts in the construction of the law, developed three rules. Some courts said that if the goods were to be made up for the buyer, whether stock goods or not, the contract was one of work and labor and the statute of frauds did not apply; other courts said that if it were to be made up, and in addition, was of a peculiar nature, not readily resellable, as stock ware, then the statute did not apply; and others said that it applied in any event, for it was a sale and therefore within the act; but the matter has now been settled by the Sales Act, which has adopted the second rule. Under that rule, the dentist's customer would have no defense.
Example 3. A orders dishes to be made up with his monogram thereon. There is no writing, no part delivery and no part payment. The contract is enforceable, being within the exception made by the sales act.16a
16. Lee v. Griffin, 1 B. & S. (Eng.) 272.
16a. Bauscher Bros. v. Gies Estate, 160 Mich. 502, 125 N. W. 420.
PARTIES AND SUBJECT MATTER.
Sec. 37. PARTIES TO SALES. The capacity of parties 40 sales is governed entirely by the general law of contract.
Reference is made to the general law of contract as to capacity of parties to sales.17
Sec. 38. SALE OF “FUTURE GOODS.” Goods to be acquired to arise in the future, or being now in existence, but to be acquired in the future, may be the subject of a contract to sell but not of a sale.
A sale, in its narrower sense is a transfer of ownership in property from one to another. Logically, one can not confer ownership to another of a thing he doesn't own himself. Therefore there may be no sale of goods to be acquired in the future, although there may be a contract to sell such goods and if there has been an attempted sale it will operate as a contract to sell,18 but, as was explained, in that event the buyer gets thereby no title. Something further must be done in order to transfer title; that is, the contract to sell must be executed after the goods come into existence. Until that time the purchaser has only his action for damages. Thus A "sells” to B fish yet to be caught by him. This does not put the title in B as the fish are caught. A must confer the title by some unequivocable act after the fish are 17. Such reference is also made by the Uniform Sales Act. 18. Low v. Pew, 108 Mass. 347.
caught. If he sells the fish to C, C gets a good title and B has only his action for damages.19
Sec. 39. DESTRUCTION OR DETERIORATION OF THE GOODS BEFORE THE MAKING OF THE CONTRACT. If one attempts to sell specific goods which without his or the buyer's knowledge have been destroyed in whole or in part, or have materially deteriorated in whole or in part, there is a mistake which prevents a contract from arising and neither party can aver breach; yet the law permits the buyer in case of part destruction or deterioration to take the part remaining or the deteriorated goods.
It is well settled in the law of contracts that if there is a mutual mistake in the minds of the parties to an agreement as to the existence of the subject matter thereof there is really no meeting of minds and therefore there is no formation of contract. This principle is applicable to the law of sales. If a contract is made to sell goods, whether title is to pass now or later, and before the time of making the contract, but unknown to the parties, the goods had been destroyed, then neither party may be charged with breach. There was really no contract to be broken. We shall note hereafter that where one orders goods by description or by sample he thereby undertakes that he will supply goods of a certain quality, and it is immaterial that his stock or the material from which he expected to supply them has been destroyed, where it is not the stipulation of both parties that they shall be supplied out of certain ascertained stock or material. But if the seller and buyer are negotiating concerning certain known and ascertained goods, then their agreement cannot attach to any other goods whatsoever; and in such