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whether sales of goods by auction were within the statute (/); as it was thought, that the publicity of the sale was sufficient to provide against fraud. But it is now determined that they are(w). A separate contract arises for each lot(w); therefore, where several lots are knocked down to one bidder, if they do not individually exceed £10, although the amount of the whole purchase may be much greater, the statute is not applicable. A different rule prevails in the case of a private contract, for the purchase of several articles at the same time and place. Where a person entered a shop, and bargained for several things, none of which singly were worth £10, but the whole value amounted to £70, it was held to be one entire contract, and void because not reduced to writing (o).
Sales of stock. It is said that a sale of stock is stock. within the statute (p), though this has been doubted^), because there can be no actual delivery.
(/) Simon v. Molivos (or Metivier), 3 Burr. 1921; Hitide v. Whitehovse, 7 East, 558.
(m) Kenworthy v. Schofield, 2 B. & C. 945; S. C. 4 D. & R. 556.
(n) Emmerson v.. Heelis, 2 Taunt. 47, see the judgment of Mansfield, C. J.; James v. Shore, 1 Stark. N. P. C. 426.
(o) Balder/ v. Parker, 2 B. & C. 37; and see Champion v. Short,
1 Carnpb. 53. Post.
(p) Mussel v. Cooke, Prec. Chan. 533; 2 Stark. Ev. 352, (2nd Ed.) (q) Pickering v. Appleby, Com. Rep. 354; Colt v. Nettervill,
2 P. Wms. 308. [All the judges in England were equally divided on the point, ibid.]
Public Sales of public shares. It was ruled by Perryn, B.,
that a contract for the sale of shares in a canal navigation was not within the statute. An objection was taken at the trial, but on a motion to enter a nonsuit it was abandoned without argument (r).
crops, &c. Sales of crops, timber, &;c. A question frequently arises, whether a contract relating to the sale of growing crops is within the 17th section, or whether it affects an interest in land within the meaning of the 4th section (s) of the same statute.
Growing A contract for the purchase of a growing crop of grass, to be mown and made into hay by the vendee (t) ;—a sale of growing turnips, the degree of maturity and the stipulated period of removal not being positively stated (u) ;—a sale of growing hops(.r), or of turnips, corn, and growing crops in general(3/), which have not arrived at maturity;— have been held to be within the 4th section.
(r) Latham v. Barber, 6 T. R. 67, 70.
(s) By the 4th section of 29 Car. II. c. 3, no action shall be brought "upon any contract or sale of lands, tenements or "hereditaments, or any interest in or concerning them," without a memorandum or note thereof written and signed by the parties, or their authorised agents. [It is to be observed, that where the contract falls within this section and is distinguished from a sale, the written note of agreement is excluded from the exemption clause of the Stamp Act, and requires an agreement stamp. See Waddington v. Bristow, 2 B. & P. 452, post.']
(t) Crosby v. Wads-worth, 6 East, 602.
(a) Emmerson v. Heelis, 2 Taunt. 38.
(x) Waddington v. Bristow, 2 B. & P. 452.
\y) Falmouth (Earl) v. Thomas, 3 Tyrw. 26; S. C. 1 Cr. & Mees. 89; see 1 Cr. & Mees. 109.
But a contract for matured crops, which are to Matured be taken up immediately, is held to pass no interest crops" in the land; because they can derive no further advantage from the soil, and the land may be considered merely as a sort of warehouse until they can be removed. Thus, a sale of mature potatoes or other crops (2); or, an agreement by the incoming with the outgoing tenant to take the crops (a), or such an agreement, where it is made a condition of taking the farm (Jb); are not within the 4th section of the statute. So, where the seller was to raise the potatoes from the ground, although their growth was not complete (c), it was held to be strictly a contract of sale for goods, chattels and merchandise within the 17th section. So it was held, where defendant, upon condition that plaintiff would supply him with a quantity of turnipseed, agreed to sow it in his own land, and to sell to plaintiff the whole crop of seed produced therefrom; because the thing, agreed to be delivered, would at the time of delivery be a personal chattel (d).
(z) Parker v. Staniland, 11 East, 362; Warwick v. Bruce, 2 M. & S. 205. [Per Lord Ellenborough, C. J., "the potatoes are the subject-matter of the sale, and whether, at the time of the sale, they are covered with earth, in a field or in a box, still it is a sale of a mere chattel;" 2 M. & S. 208.]
(a) Mayfield v. Wadsley, 3 B. & C. 357, 863.
(b) lb.; see Poulter v. Killingbcck, 1 B. & P. 397.
(c) Evans v. Roberts, 5 B. & C. 829 ; S. C. 8 D. & R. 611. (rf) Watts v. Friend, 10 B. & C. 116.
Timber. A contract for the purchase of timber at so much
per foot, was decided to be a contract of sale within the 17th section (e); Bayley, J. said, that the agreement was not for the growing trees, but for the produce when they should be cut down and severed from the freehold(/). But where the agreement is for growing trees (g), it seems to fall within the 4th section; as trees for the purpose of making hop-poles (h), or growing underwood to be felled by the purchaser (J).
Fixtures. It seems that fixtures, unsevered from the free
hold, are not within the statute of frauds at all. They have been decided not to constitute an interest in land within the 4th section (&), and they cannot be recovered in an action for goods sold and delivered (/).
contract to Contract to procure goods. A contract to proprocure . goods. cure coals at A., and bring them to B., was held
not to be a contract of sale, and therefore not
within the statute (m). It was said, that if no
coals could have been procured at A., an action
(e) Smith v. Surman, 9 B. & C. 561.
(f) lb. 568.
(g) See Knowles v. Michel, 13 East, 249.
(A) Teal v. Auiy, 2 B. & B. 99. [But see 1 Ld. Raym. 182, per Treby, C. J., and Powell, J.]
(0 Scorell v. Boxall, 1 Y. & J. 396.
(k) Hallen v. Runder, 1 Cr. M. & Ros. 266.
(/) Lee v. Risdun, 7 Taunt. 188; post.
(m) Cobbold v. Caston, 1 Bingh. 399; S. C. 8 B. Moore, 456; 1 C. & P. 51.
could not have been maintained for non-delivery. But the mere additional expense of carriage of goods, does not make it a mixed contract distinguishable from sale(«).
Section II.— What Delivery and Acceptance of the goods are sufficient to satisfy the Statute.
The first exception made by the statute is, where "the buyer shall accept part of the goods "so sold, and actually receive the same."
Actual Delivery and Acceptance of part.—The Sufficient voluntary reception of the goods by the buyer, is ceptance. made essential by the words of the statute; therefore a delivery alone on the part of the seller is insufficient, if the purchaser at the time refuse to accept. Defendant went to the shop of the plaintiff, and contracted to purchase several articles, some of which he marked with a pencil, others were measured in his presence, and the whole were sent to his house according to his order, but he refused to accept them; it was held to be no delivery and acceptance to satisfy the statute (a). So, where the vendee opened the bale of goods which had been sent to his order, but returned
(«) Astey v. Emery, 4 M. & S. 262.
(a) Baldey v. Parker, 2 B. & C. 37 ; and see Nicholle v. Plume, 1 C. & P. 272.