Page images
PDF
EPUB

A TREATISE

ON THE

CONTRACT OF SALE,

PART i

OF THE SEVENTEENTH SECTION OF THE STATUTE OF FRAUDS,

»

CHAPTER I.

WHAT AGREEMENTS ABE WITHIN IT.

The 17th section of 29 Car. 2, c. 3, made for the prevention of frauds and perjuries, commonly called the Statute of Frauds, is in the following words:— "And be it enacted, that from and after the said four"and-twentieth day of June (a. D. 1677), no contract "for the sale of any goods, wares, or merchandizes, "for the price of 10/. or upwards, shall be allowed to "be good, except the buyer shall accept part of the "goods so sold, and actually receive the same, or give "something in earnest to bind the bargain, or in part "payment, or 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."

This important enactment is applicable to every sale of tangible moveable property, though not to sales of shares in a company or other intangible property, Humble v. Mitchell (a).

At one time a question was made whether public sales by auction were not excepted from its operation. In Simon v. Motivos (b), in 1766, Lord Mansfield thought that a sale by auction, from the publicity of its nature, was not within the mischief aimed at by the statute, namely, the temptation to commit frauds and perjuries; and the rest of the King's Bench seem to have agreed with him, but the case was decided upon another ground, as the requisites of the statute had in fact been complied with.

In Hinde v. Whitehouse (c), in 1806, Lord Ellenborough expressed a strong opinion that sales by auction were within the statute, and that the opinion expressed in Simon v. Motivos was ill-founded, but it was not necessary to decide the point, as the requisites of the statute were in that case also complied with.

In Kenworthy v. Schofield (d), in 1824, the point

(a) Humble v. Mitchell, 11 A. & E. 205.

(ft) Simon v. Motivos, W. Bl. 599; S, C. 3 Burr. 1921.

(c) Hinde v. Whitehouse, 7 East, 558.

(d) Kenworthy v. Schofield, 2 B. & C. 945.

was decided. In that case there was a sale by auction of goods above 101. in value, and the requisites of the statute were not complied with. The King's Bench decided that the contract could not be enforced; this decision has always been acted upon.

It is an unsettled point whether the provisions of the Statute of Frauds were applicable to contracts for the sale of goods which were at the time of the contract not in a state capable of being delivered according to the provisions of the contract: a more recent statute has rendered the point no longer important, but it may be worth while to state the difficulty.

In Towers v. Osborne (a), in 1724, Pratt, C. J., decided that an agreement to make a chariot was not within the statute which he said related only to contracts in which the seller was to deliver the goods immediately.

In Clayton v. Andrews (b), in 1767, the King's Bench confirmed this case, and held that a contract to deliver wheat (then unthrashed) in a month from the time of the agreement was not within the statute.

In Groves v. Buck (c), in 1814, the King's Bench decided that an agreement to purchase a quantity of oak pins, not yet cut out of the slab, was not within the statute.

The principle of these cases, decided by great Judges, including Pratt, C. J., Lord Mansfield, and Lord Ellenborough, seems to have been either that the

(a) Towers v. Osborne, 1 Strange, 506.
(6) Clayton v. Andrews, 4 Burr. 2101.
(c) Groves v. Buck, 3 M. & S. 178.

word bargain in the statute must be taken in the strict technical sense, so as to exclude all executory contracts not amounting to a bargain and sale, or else that, as the statute said the contract was to be good if the buyer "accepted and actually received" part of the goods, it could only be meant to apply to contracts where it was possible to accept and receive part of the goods. It is clear that the buyer could neither accept nor receive the chariot before it was built, the corn before it was thrashed, or the oak pins before they were cut out.

On the other hand, in Rondeau v. Wyatt(a), in 1792, the Court of Common Pleas decided, after taking time to consider, that a contract to supply goods on board ship was within the statute, as it was a contract for a sale, though a future one; and in Garbutt v. Watson (b), in 1822, the King's Bench decided the same point where the goods were flour yet unground. In both these cases the Court said that Towers v. Osborne might, perhaps, be supported as being a contract, not for a sale, but for work, labour, and materials; but subsequently, in Atkinson v. Bell, (c) the King's Bench held that it was not so. In Garbutt v. Watson, Clayton v. Anderson was expressly overruled.

It seems impossible to reconcile these decisions, but the legislature in 9 Geo. 4, c. 14, s. 7, has put an end to the difficulty by enacting, that "the provisions of u the Statute of Frauds shall extend to all contracts for

[ocr errors]

"the sale of goods to the value of 10/. or 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 last enactment has not yet been made the subject of litigation, and indeed it seems as plain as words can make it.

The statutes, therefore, are now applicable to all contracts for the sale of "goods, wares, and merchandize," words which, as has been already said, comprehend all tangible moveable property; I say moveable property, for things attached to the soil are not goods, though when severed from it they are; thus, growing trees are a part of the land, but the cut logs are goods, and so too bricks or stones which are goods cease to be so when built into a wall, they then become a part of the soil. Fixtures and those crops which are included amongst emblements though attached to the soil are not for all purposes part of the freehold.

It seems pretty plain, upon principle, that an agreement to transfer the property in something that is attached to the soil at the time of the agreement, but which is to be severed from the soil and converted into goods before the property is to be transferred, is an agreement for the sale of goods within the meaning of the 9 Geo. 4, c. 14, if not of the 29 Car. 2, c. 3. The agreement is, that the thing shall be rendered into goods and then in that state sold, it is an executory

« PreviousContinue »