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"called a lien growing out of his original ownership, "independent of the actual possession, and consistent "with the property being in the defendant. This he "retained in respect of the term agreed on, that the "goods should not be removed to their ultimate place "of destination before payment; but this lien is con"sistent, as we have stated, with the possession, "having passed to the buyer: so that there may have "been a delivery to and actual receipt by him. This "we think is the proper conclusion upon the present "evidence, and there will be no rule."
It seems perfectly clear, that if Bamford was the defendant's agent, there was ample evidence of such an appropriation of the specific wools as would convert the agreement to sell into a bargain and sale, and (if the Statute of Frauds were out of the way) transfer the property and consequent risk to the defendant. The only question, therefore, in the case was, whether the facts shewed such a receipt of the goods as is contemplated by the Statute of Frauds. The argument for the defendant seems to have been that the agreement by which the purchaser was not to remove the wool till paid for, shewed that the acts done to the wool could not be done with the intention to give him possession. The Court, however, seem to have thought that the facts shewed an unequivocal delivery of the actual possession, and consequently that the agreement could only operate by giving such rights to the vendor as were consistent with an actual delivery of possession to the purchaser. In Howes v. Ball (a), it was decided that an agreement of this kind did not confer, on the
vendor any right either of property or possession in the goods actually delivered, but at most operated as a personal license from the purchaser. Probably the Queen's Bench, in Dodsley v. Varley, would have come to the same decision if it had been material to determine what rights Dodsley had in the wool, but that being perfectly immaterial to the question then before the Court, they did not consider that point. The judgment, therefore, in Dodsley v. Varley, cannot be taken to shew that the Queen's Bench thought that there might be an actual receipt of goods by the purchaser within the meaning of the Statute of Frauds without such a taking of possession by him as would completely determine the vendor's rights in the part of the goods so received, and consequently the case does not affect the authority of Baldey v. Parker, (2 B. & C. 37), and the other cases before quoted.
It may therefore be considered as settled, that the construction of the statute is that so concisely and clearly stated by Holroyd, J., in Baldey v. Parker (a), and repeated in almost the same terms by Parke, B. in Bill v. Bament (b), namely, that the facts which prove that part of the goods have been delivered and taken into the purchaser's control, so as to determine the vendor's possession of that part, prove that he has actually received them, and that nothing short of such a delivery and taking can amount to an actual receipt by the purchaser within the meaning of the Statute of Frauds.
The second exception, viz., " Except the buyer shall "give something in earnest to bind the bargain or "in part payment," need not detain us long. The words have in practice been found so intelligible that there is only one case in which any decision on the meaning of this clause is reported, and that decision seems almost self-evident. In Blenkinsop v. Clayton (a), the buyer drew a shilling across the purchaser's hand, and put it in his own pocket to strike the bargain, and the Court of Common Pleas thought that he had not given anything in earnest.
It need only be observed, that there cannot be any payment unless it is accepted as well given as payment.
(a) Blenkinsop v. Clayton, 7 Taunt. 597.
What is a sufficient memorandum.
The third exception, "Except that some note or "memorandum in writing of the said bargain be made "and signed by the parties to be charged by such con"tract or their agents thereunto lawfully authorized," is probably that which would be most apt to mislead a person not acquainted with the decisions. It is to be observed that the statute does not interfere with the rules of evidence applicable to written testimony (a). A signed note or memorandum of the bargain is one way of making the contract good, but the legal effect of such a note or memorandum upon the proof of the contract is left entirely as it was at common law. It is perfectly competent for persons who are entering
(a) It would be too much of a digression to attempt to state with precision the laws of evidence relating to written contracts, but so much of the construction of this section depends on a knowledge of that law, that it seems proper to try to state the leading principles of it, though without attempting to give the qualifications necessary to render such a statement accurate and without attempting to collect the authorities.
into any agreement either to have the whole terms of it reduced to writing, or to make their agreement with reference to some previously existing writing, and if they do so, whether the writing be signed or not the parties must be bound by its contents; they are not allowed by the law to show that there was a mistake, and that they intended to agree to something different from what is stated in the writing for the very object of agreeing to a writing is to prevent disputes about what they intended; this rule of law is very inflexible: And if the parties have expressed their assent to the reduction of the whole contract to writing, they are in general prohibited from adding anything to the terms expressed in the writing: this is to be understood of terms that require an agreement between the parties, for where the terms reduced to writing are such that a legal duty would result, that legal duty is added to the terms of the contract. To this last rule, however, there is a wide class of exceptions, arising from local customs and the usage of particular trades.
But there is no rule of common law to prohibit the parties from making an agreement part only of which is to be proved by writing. If the parties say in substance, "we agree to the terms contained in such a "writing, with the exceptions and additions which at "such a time were agreed upon by word of mouth;" there is no legal objection to this. Parol evidence may be used to show what the exceptions and additions are, the writing is conclusive as to the rest.
When either the part or the whole of an agreement is thus reduced to writing, the agreement cannot (in general) be proved by any other means than by showing