mixed with the soil] an incident of the real estate of such peculiar character that while it remains only constructively annexed, it will be personal property if the parties interested agree so to treat it." 51

§ 519. Fixtures.

The legal interest which a tenant has in articles affixed to the realty, but which he has a right to remove, is a right to sever the fixtures and revest himself with the title to them as personalty. Consequently what purports to be a sale of fixtures by a tenant to his landlord is in realty a surrender by the tenant of his right to sever. The title is already in the landlord by virtue of his ownership of the real estate of which the fixtures form part. The bargain is, therefore, neither within the fourth section nor the seventeenth section of the English statute. 52 A case where a tenant attempts to sell his fixtures to a third person should be sharply distinguished. Such a transaction involves an agreement on the part of the tenant to transfer the title to them, and, therefore, it is a contract to sell goods. Even if it is contemplated that the buyer shall make the severance, he can only become owner of the property severed by virtue of the agreement that the tenant has made to transfer title. This distinction has not been sufficiently observed by the cases. 53

51 The court, therefore, held title to the manure in question did not pass to the purchaser of a farm, it having been agreed that it should not.

52 Hallen v. Runder, 1 C. M. & R. 266; Lee v. Gaskell, 1 Q. B. D. 700; South Baltimore Co. v. Muhlbach, 69 Md. 395, 16 Atl. 117, 1 L. R. A. 507.

53 Lee v. Gaskell, 1 Q. B. D. 700; Moody v. Aiken, 50 Tex. 65. These were both cases where a sale was made to a third person and, in both, the statute was held inoperative. In Lee v. Gaskell, Cockburn, C. J., said: "Fixtures, although they could be removable during the tenancy, as long as they remained unsevered, are part of the freehold and you cannot dispose of them to the landlord or any one else as goods and chattels because they

are not severed from the freehold so as
to become goods and chattels." To
this it should be answered that it is
settled that the statute applies to con-
tracts for the sale of goods not in exist-
ence as such, or in existence at all at
the time of the bargain. The decision
of the cases of Lee v. Gaskell and of
Moody v. Aiken, was, nevertheless,
correct. In each case the action was
not between the parties to the bargain,
but between the purchaser from the
tenant and the landlord. The land-
lord had no right to set up the lack of
memoranda under the seventeenth
If the seller and buyer are
e an oral sale or contract
te sch, one else can say that it is in-
V. d
See infra, § 532. Browne on
the Statute of Frauds, § 234, fails to

C

What are fixtures may depend to some extent upon the agreement of the parties. 54 For the same reason that a sale of fixtures by a tenant to his landlord is not a sale of goods, so a contract by which one person agrees to make improvements on land of another who agrees to pay subsequently for the improvements is not within the statute, whether the agreement to pay is made before or after the improvements have been made. 55

§ 520. Buildings.

Agreements are not infrequently made for the sale of buildings or of the materials in standing buildings. If the contract is to sell and deliver a house, even though the house is at the time of the bargain affixed to the realty, it is a contract for the sale of goods, for the parties contract to buy and sell a house separated from the realty and moved from its foundations.56 On the other hand, if the parties attempt to make a present transfer of a building or materials fixed in a building, it is evident that they are attempting to make a sale of realty, even though it is also agreed that the subject-matter of the sale shall be severed within a short time;57 and a parol reservation

observe the importance of distinguishing between a sale of fixtures to the landlord and one to a third person. See also Strong v. Doyle, 110 Mass. 92, 93; Morgan v. Russell, [1909] 1 K. B. 357.

54 Durkee v. Powell, 75 N. Y. App. Div. 176, 77 N. Y. S. 368. See also Strong v. Doyle, 110 Mass. 92.

55 Frear v. Hardenbergh, 5 Johns. 272, 4 Am. Dec. 356; Benedict v. Beebee, 11 Johns. 145; Lower v. Winters, 7 Cow. 263. See also Underfeed Stoker Co. v. Detroit Co., 135 Mich. 431, 97 N. W. 959.

56 Scoggin v. Slater, 22 Ala. 687; Harris v. Powers, 57 Ala. 139; Clements v. Morton (Ala.), 76 So. 306; Long v. White, 42 Ohio St. 59. See also Rogers v. Cox, 96 Ind. 157, 49 Am. Rep. 152; Whetmore v. Rhett, 12 Rich. L. 565; Brown v. Roland, 11 Tex. Civ.

App. 648, 33 S. W. 273. Compare Fenlason v. Rackliff, 50 Me. 362; Powell v. McAshan, 28 Mo. 70. The statement of law in this section was quoted with approval in Wetopsky v. New Haven Gas Light Co., 88 Conn. 1, 90 Atl. 30, where the sale of a house to be removed was held not to be a contract for the sale of realty.

57 Lavery v. Pursell, 39 Ch. D. 508. In this case the defendant sold building materials in a standing building. By the terms of the sale the materials were to be taken down and removed within two months. Chitty, J., held the contract to be one for the sale of an interest in land and refused to follow the doctrine applied to trees in Marshall v. Green, 1 C. P. D. 35, that the prospect of immediate severance took the case out of the fourth section. To the same effect as Lavery

of a building is equally opposed to the section of the statute relating to land. 58

Under the English statute it is settled that choses in action are not included within the terms "goods, wares, and merchandises." This is true even though the chose in action in question is evidenced by a tangible document, as a certificate of stock. 59 In the United States, under statutes similar to the English original, shares of stock are held to be included.60 Likewise a bond and mortgage are goods, wares and merchandise within the statutes in the United States; 61 and bills and notes. 62 But stock

has no existence until it is issued, and, therefore, an oral ag ment to contribute capital and take stock in a corpora about to be formed has been upheld; 63 as has an oral agreem for the sale of an interest in an invention, before letters-pa have been obtained; 64 and so a patent itself or an interes. a patent has been held orally assignable.65 In a Massachusetts case which so held,66 the court said: "The words of the statute have never yet been extended by any court beyond securities which are subjects of common sale and barter and which have a visible and tangible form.” These words are quoted with approval in other cases.67 They are, however, not strictly accurate, for even a sale of a simple contract debt has been held by some courts to be within the statute.68 The sale of a partner's interest in a firm is not within the statute.69 In some States choses in action have been included by the express words of the statute,70 or the wide term "personal property" is used."1

N. W. 451, 10 N. W. 299; Bell v. Pit-
man, 143 Ky. 521, 136 S. W. 1026, 35
L. R. A. (N. S.) 820; Whittemore v.
Gibbs, 24 N. H. 484.

63 Wemple v. St. Louis &c. R. Co., 120 Ill. 196, 11 N. E. 906; Peninsula Leasing Co. v. Cody, 161 Mich. 604, 126 N. W. 1053; York Park Building Assoc. v. Barnes, 39 Neb. 834, 58 N. W. 440; Clapp v. Gilt Edge Mines Co., 33 S. Dak. 123, 144 N. W. 721. See also Berwin v. Bolles, 183 Mass. 340, 342, 67 N. E. 323; Clement v. Rowe, 33 S. Dak. 499, 146 N. W. 700.

64 Dalzell v. Dueber Watch Case Mfg. Co., 149 U. S. 315, 37 L. Ed. 749, 13 S. Ct. 886; Somerby v. Buntin, 118 Mass. 279, 19 Am. Rep. 459; Harrigan v. Smith, 57 N. J. Eq. 635, 42 Atl. 579; Jones v. Reynolds, 120 N. Y. 213, 24 N. E. 279. See also Cook v. Sterling Electric Co., 118 Fed. 45. An assignment of a patent must be in writing. U. S. Comp. St. (1901), p. 3387.

65 Searle v. Hill, 73 Ia. 367, 35 N. W. 490, 5 Am. St. Rep. 688; Burr v. DeLeVergne, 102 N. Y. 415, 7 N. E. 366; Whitcomb v. Whitcomb, 85 Vt. 76, 81

Atl. 97. The Federal Statute requiring a writing in order to validate an assignment [Comp. Stat. (1901), p. 3387], is only of importance where the rights of third persons are concerned. See cases supra, also Burke v. Partridge, 58 N. H. 349.

66 Somerby v. Buntin, 118 Mass. 279, 19 Am. Rep. 459.

67 Meehan v. Sharp, 151 Mass. 564, 24 N. E. 907; Vincent v. Vieths, 60 Mo. App. 9. See also Banta v. Chicago, 172 Ill. 264, 218, 50 N. E. 233, 40 L. R. A. 611; Howe v. Jones, 57 Iowa, 130, 8 N. W. 451.

68 Walker v. Supple, 54 Ga. 178; French v. Schoonmaker, 69 N. J. L. 6, 54 Atl. 225.

69 Vincent v. Vieths, 60 Mo. App. 9. 70 See Colton v. Raymond, 114 Fed. 863, 52 C. C. A. 382; Artcher v. Zeh, 5 Hill, 200; Peabody v. Speyers, 56 N. Y. 230; Tomplins v. Sheehan, 158 N. Y. 617, 53 N. E. 502; Greenberg v. Davidson, 39 N. Y. Misc. Rep. 796, 81 N. Y. S. 345; Nichols v. Clark, 40 N. Y. Misc. Rep. 107; Spear v. Bach, 82 Wis. 192, 52 N. W. 97.

71 See Mechem on Sales, § 287.

Where the statute is in this form there seems no ground for restricting its application to choses in action of "a visible and palpable form." But where the words of the statute are confined to goods, wares, and merchandise, this construction seems sound. As there is perhaps quite as much reason why the transfer of intangible property should be supported by written evidence as the transfer of visible property the Uniform Sales Act expressly included choses in action.

§ 522. Undivided interest in goods.

The sale of an undivided share of goods is within the statute.72

§ 523. "Of the value of."

The English statute contained the words "for the price," and the word "price" has generally been copied in statutes in the United States. Lord Tenterden's Act,73 however, made use of the word "value," and it was subsequently held that the effect of this was to extend to all contracts for the sale of goods of the value of £10 and upwards the earlier statute. That is, "to substitute the word 'value' for the word 'price.'"' 74 Though the word "price" is used in almost all the American statutes, and the word "value" in none, the narrow construction which the English court suggests that it would have given to the Statute of Frauds, had it not been for Lord Tenterden's Act, has never been adopted in this country. Thus, contracts of barter are held to be within the terms of the statute.75 The importance of determining whether value is equivalent to price also arises where the contract is to sell an article for a fair price or to sell several articles for a lump price,76 or a contract to sell a quantity of goods as yet undetermined at a price to be determined by the number, weight, or measure of the goods."

72 Dehority v. Paxson, 97 Ind. 253; Gerndt v. Conradt, 117 Wis. 15, 93 N. W. 804.

73 9 George IV, c. 14.

74 Harman v. Reeve, 25 L. J. C. P. 257.

75 Raymond v. Colton, 104 Fed. 219, 43 C. C. A. 501; Kuhns v. Gates, 92 Ind. 66; Dowling v. McKenney, 124

Mass. 478; Gorman v. Brossard, 120 Mich. 611, 79 N. W. 903; Rutan v. Hinchman, 30 N. J. L. 255; Misner v. Strong, 181 N. Y. 163, 168, 73 N. E. 965; supra, §517. But see Spinney v. Hill, 81 Minn. 316, 84 N. W. 116.

76 Harman v. Reeve, 25 L. J. C. P. 257.

77 Watts v. Friend, 10 B. & C. 446;