rial when performance on one side is executed, whether within or beyond the period of a year. Indeed, it has been stated by good English authority that either if the contract was performable on one side within a year or, though not so performable, was in fact fully executed on one side, the contract is not within the statute. Subsequently, however, the English court has held a contract within the statute where performance on one side could not be completed within the year, and performance on the other side (though it might possibly have been performed within the year), was not expected to be so performed and was not so performed, in spite of the fact that the latter promise was fully executed after the expiration of a year.7+ the United States the distinct numerical weight of authority supports the proposition that if performance on one side can be fully executed within a year, and is so executed, the contract is not within the statute, and in many cases the mere fact that it is executed on one side withdraws it from the statute. It is not usually clearly stated upon what ground the Exch. 1, per Blackburn, J., referring to Souch v. Strawbridge, 2 C. B. 808.

In 7 Halsbury's Laws of England, 366, it is said: "The statute has no application to contracts for an executed consideration (citing Knowlman v. Bluett, L. R. 9 Exch. 1; Souch v. Strawbridge, 2 C. B. 808. As to executed consideration, see page 384, 7 Laws of England); or where the contract is to be entirely executed by one party within the year [citing Donellan v. Read, 3 B. & Ad. 899, where the plaintiff, a landlord, had laid out £50 on improvements in consideration of the tenants agreeing to pay him £5 more rent; Smith v. Neale, 26 L. J. C. P. 143. See 1 Smith L. C. (11th ed.) 319], nor is a contract under the terms ofwhich it is possible that one of the parties may wholly perform his part of the contract within the year, although the performance by the other party extends over several years (citing Cherry v.Heming, [1849] 4 Exch. 631, assignment of patent, the price to be paid by instalments extending over several years)."

In

7 Reeve v. Jennings, [1910] 2 K. B. 522. The facts of the case were that the plaintiff had employed the defendant orally without limit of time other than that a week's notice might terminate the arrangement. The defendant promised further that he would not set up a competing business for three years after leaving the defendant's service. The defendant remained with the plaintiff for about two years and set up a competing business within three years thereafter. The court assumed as a fact that when the original arrangement was made it was thought probable that the employment might last more than a year.

8 Fernald v. Town of Gilman, 123 Fed. 797; Wehner v. Bauer, 160 Fed. 240; Rake's Admr. v. Pope, 7 Ala. 161; Diamond v. Jacquith, 14 Ariz. 119, 125 Pac. 712, L. R. A. 1915 D. 880; Enos v. Anderson, 40 Colo. 395, 93 Pac. 475; Johnson v. Watson, 1 Ga. 348; Fraser v. Gates, 118 Ill. 99, 112, 1 N. E. 817; MacDonald v. Crosby, 192 Ill. 283, 61 N. E. 505; Hodgens v. Shultz, 92 Ill

decisions so holding rest. In some of them at least it is stated broadly that full performance on one side, whenever made, takes the case out of the statute; but generally it seems to be regarded as essential that such performance be made within a year. There are, however, numerous decisions which seem supported by a more reasonable construction of the statute which hold that unless the contract from its inception is fully performable within a year on both sides, it is within the statute; and if after full performance on one side, performance on the other side still cannot take place within a year, the statute is applicable; and any redress which can be obtained for either full or partial performance must be based on principles of quasi-contract.'

App. 84; Wolke v. Fleming, 103 Ind. 105, 2 N. E. 325, 53 Am. Rep. 495; Piper v. Fosher, 121 Ind. 407, 23 N. E. 269; Smalley v. Greene, 52 Ia. 241, 3 N. W. 78; Atchison, etc., Ry. Co. v. English, 38 Kan. 110, 16 Pac. 82; Heery v. Reed, 80 Kans. 380, 102 Pac. 846; Dant v. Head, 90 Ky. 255, 13 S. W. 1073, 29 Am. St. Rep. 369; Jones v. Comer, 25 Ky. L. Rep. 773, 1104, 76 S. W. 392, 77 S. W. 184; Whitley v. Whitley's Adm., 26 Ky. L. Rep. 134, 80 S. W. 825; Holbrook v. Armstrong, 10 Me. 31; Ellicott v. Turner, 4 Md. 476; Warren v. Ayres, 126 Md. 551, 95 Atl. 52, 54; Lally v. Crookston Lumber Co., 85 Minn. 257, 88 N. W. 846; Bless v. Jenkins, 129 Mo. 647, 31 S. W. 938; Marks v. Davis, 72 Mo. App. 557; Kendall v. Garneau, 55 Neb. 403, 75 N. W. 852; Blanding v. Sargent, 33 N. H. 239, 66 Am. Dec. 720; Perkins v. Clay, 54 N. H. 518 (but see Emery v. Smith, 46 N. H. 151); Berry v. Doremus, 30 N. J. L. 399 (but see Okin v. Selidor, 78 N. J. L. 54, 78 Atl. 770, where the court admits that a promise to guarantee the condition of a sidewalk after a year would be within the statute, though the consideration had been fully paid); Matter of Chamberlain, 146 N. Y. App. D. 583, 131 N. Y. S. 245; Durfee v. O'Brien, 16 R. I. 213, 14 Atl. 857;

Compton v. Martin, 5 Rich. L. 14; Bates v. Moore, 2 Bailey, 614; Seddon v. Rosenbaum, 85. Va. 928, 9 S. E. 326, 3 L. R. A. 337; Reed v. Gold, 102 Va. 37, 45 S. E. 868; McClellan v. Sanford, 26 Wis. 595; Grace v. Lynch, 80 Wis. 166, 49 N. W. 751; Phillips v. Holland, 149 Wis. 524, 136 N. W. 191.

9 Warner v. Texas & P. Ry. Co., 54 Fed. 922, 4 C. C. A. 673 (the decision was affirmed in 164 U. S. 418, 41 L. Ed. 495, but the upper court holding the defendant's promise performable within a year found it unnecessary to consider the effect of the plaintiff's performance); Jackson Iron Co. v. Negaunee Co., 65 Fed. 298, 12 C. C. A. 636; Patten v. Hicks, 43 Cal. 509; Marcy v. Marcy, 9 Allen, 8; Frary v. Sterling, 99 Mass. 461; Kelley v. Thompson, 175 Mass. 427, 56 N. E. 713; Whipple v. Parker, 29 Mich. 369; Dietrich v. Hoefelmeir, 128 Mich. 145, 87 N. W. 111 (cf. Paul v. Graham, 193 Mich. 447, 160 N. W. 616, 617, and cases cited); Buckley v. Buckley, 9 Nev. 373; Broadwell v. Getman, 2 Denio, 87; Day v. New York Central R. Co., 51 N. Y. 583, 89 N. Y. 616; Hubbard v. Hubbard, 151 N. Y. App. D. 174, 135 N. Y. S. 908; Reinheimer v. Carter, 31 Ohio St. 579, 587; Pierce v. Payne, 28 Vt. 34; Parks v. Francis, 50 Vt. 626, 28 Am. Rep. 517.

CHAPTER XVII

CONTRACTS FOR THE SALE OF GOODS

Statutes of Frauds in England and America concerning sales of goods...... 505

Statute of Frauds in Sales Act..

"A contract to sell or a sale".

Contracts of work and labor-The English rule..

American rules.

Exchanges.

Mortgages.

Agreements of partnership or agency.

Agreements of compromise.

"Of any goods"..

Crops and fructus industriales.

Trees and fructus naturales..

Water and ice...

Minerals, manure.

Fixtures.

Buildings.

Choses in action.

Undivided interest in goods.

"Of the value of"...

"Five hundred dollars or upwards"

Agreements to execute a written memorandum of an oral contract.

506

507

508

509

510

511

512

513

514

515

516

517

518

519

520

521

522

523

524

.524a

§ 505. Statutes of Frauds in England and America concerning sales of goods.

The seventeenth section of the English Statute of Frauds1 is as follows:

"And be it further enacted by the authority aforesaid, That from and after the said four and twentieth day of June [A. D. 1677] no contract for the sale of any goods, wares, and merchandises, for the price of ten pounds sterling 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 of 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." There

129 Car. II, c. 3, § 17.

is a corresponding enactment in all of the United States except Alabama, Delaware, Kansas, Kentucky, Louisiana, New Mexico, North Carolina, Texas, Virginia, and West Virginia. The language of the American statutes is not uniform and often not quite the same in meaning as that of the English statute. Reference will be made hereafter to these changes in wording.

509. Statute of Frauds in Sales Act.

The effect of the English statute has been preserved in the English Sale of Goods Act, section 4, though the wording has been changed and elaborated. In the American Uniform Sales Act,2 except in one or two particulars which will be hereafter referred to, the wording of the later English statute has been followed, the section reading:

Sec. 4. STATUTE OF FRAUDS.

3

(1.) A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf.

5

(2.) The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract or sale be actually made, procured, or pro

2 This statute was enacted in 1907 by Arizona, New Jersey and Connecticut; in 1908 by Massachusetts, Rhode Island and Ohio; in 1910 by Maryland, in 1911 by New York and Wisconsin; in 1913 by Michigan and Alaska; in 1915 by Illinois, Nevada and Pennsylvania; in 1917 by Minnesota, North Dakota, Utah and Wyoming, and in 1919, by Idaho, Iowa, Oregon and Tennessee.

This was amended to $2,500 in the act as passed in Ohio; to $100 in Connecticut and Michigan; to $50 in Minnesota, New York and Wisconsin.

4 The requirement of actual receipt was considered in Castle v Swift, 132 Md. 631, 104 Atl. 187.

'See Falletti v. Carrano, 92 Conn. 636, 103 Atl. 753.

vided, 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; but if the goods are to be manufactured 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 provisions of this section shall not apply."

(3,) There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.

§ 507. "A contract to sell or a sale.”

The question was early made under the English Statute whether it applied to executory contracts to sell goods as well as to sales, and there were decisions to the effect that executory contracts were not included,' but the contrary view was afterward taken and the correctness of it confirmed by a statute known as Lord Tenterden's Act. This statute is in terms merely declaratory, and such it has always been considered, so that though not enacted in the United States there has never been any doubt that in America as in England executory contracts are within the terms of Statutes of Frauds. It is probable, however, that the early English decisions in regard to this matter have been partly responsible for the confusion of the law in the United States in regard to contracts for work and labor as distinguished from contracts to sell. The words of the Uniform Sales Act make it clear that executory contracts are covered. A conditional sale or contract to sell on condition is

On the construction of this clause, see Willard v. Higdon, 123 Md. 447, 91 Atl. 577; Ann. Cas. 1916 C. 339; Davis v. Blanchard, 138 N. Y. S. 202; Goldowitz v. Kupfer, 80 N. Y. Misc. 487, 141 N. Y. S. 531; Schneider v. Lezinsky, 162 N. Y. S. 769; Reading Silk Mills v. Barso, 169 N. Y. S. 672; Zimmerman v. Gillman, 172 N. Y. S. 263. Appropriation of the goods by the seller in conformity with an order by the buyer does not satisfy this provision. Peck v. Abbott & Fernald Co.,

223 Mass. 423, 111 N. E. 890. See also infra, § 548. But putting them as requested in a place which belongs to the buyer or is under his control is evidence of acceptance and receipt. Castle v. Swift, 132 Md. 631, 104 Atl. 187.

7 Towers v. Osborne, 1 Strange, 506; Clayton v. Andrews, 4 Burr, 1201. 89 George IV, c. 14, § 7.

9 See cases cited infra, § 516; also Barr v. Satcher, 72 S. C. 35, 51 S. E. 530.