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The refusal of the trial court to grant this motion is assigned for

error.

In Baldwin v. Williams, 3 Met, 365, a parol contract for the sale of a promissory note was held to be within the statute.

In Connecticut and Maine a contract for the sale of shares in a joint stock company is required to be in writing. North v. Forest, 15 Conn. 400; Pray v. Mitchell, 60 Me. 430.

Bonds and mortgages were expressly held to be goods and chattels in Terhune v. Executors of Bray, 1 Harr. 53. That was an action of trover for a bond and mortgage. Chief Justice Hornblower, in deciding the case, said that, although the attachment act and letters of administration seem to distinguish between rights and credits and goods and chattels, and although an execution against the latter will not reach bonds and notes, yet there is a sense in which upon sound legal principles such securities are goods and chattels.

This sense ought to be applied to these words in this case.

Reason and sound policy require that contracts in respect to securities for money should be subject to the reasonable restrictions provided by the statute to prevent frauds in the sale of other personal property.

The words "goods, wares and merchandise" in the sixth section of the statute are equivalent to the term "personal property" and are intended to include whatever is not embraced by the phrase "lands, tenements, and hereditaments" in the preceding section. In my judgment, the contract sued upon is within the statute of frauds, and it was error in the court below to refuse to nonsuit. All concur.

Judgment reversed.

A MEMORANDUM MUST BE SIGNED BY THE PARTY TO BE CHARGED

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Assumpsit for breach of contract by defendant to sell and deliver all the new milk cheese he then had on hand, about 975 pounds, and what he should make during the season of 1864, at 15 cents a pound. To

a judgment for $306.62 and costs in favor of the plaintiff, the defendant excepted.

WILSON, J. The parol agreement entered into by the parties, June 30th, being for the sale of goods, wares, and merchandise for the price of forty dollars and more, is within the statute of frauds, and inoperative, unless taken out of the statute by the subsequent acts of the parties. It is claimed by the plaintiff that the defendant's letter under date of July 1st, and the depositing of the plaintiff's letter with the fifty dollars in the post office on the 2d of that month, constitute a payment of part of the purchase money within the meaning of the statute. It will be observed that, when those letters were written, no binding agreement had been concluded. The defendant, in his letter of July 1st, says: "According to our talk yesterday, you bought my cheese for the season. I shall stand to it, but shall want fifty dollars to bind it." By that letter the plaintiff was notified that he could make the bargain binding upon himself as well as the defendant, by paying to the defendant the sum demanded for that purpose. The plaintiff on the 2d day of July enclosed fifty dollars in a letter, directed to the defendant and deposited it in the post office, which letter was delivered to the defendant on the 8th of that month. He did not accept the money, but returned it to the plaintiff. It is clear that the act of depositing the letter and the money in the post office was not a payment to the defendant. His letter did not direct the money to be sent by mail; it contains nothing that would indicate that the defendant expected the plaintiff would reply by letter, or accept the proposition by depositing the money in the post office; and the fact that the defendant by letter offered to allow the plaintiff to perfect the agreement by paying part of the purchase money did not authorize or invite the plaintiff to send the money by mail, or make the mail the defendant's carrier of the money. The language of the defendant's letter is: "I shall want you to pay me fifty dollars to bind it," that is, to make it a valid contract.

The money, when deposited in the post office, belonged to the plaintiff; it belonged to the plaintiff while being carried by mail to the defendant, and it would continue the property of the plaintiff unless accepted by the defendant. The plaintiff took the risk, not only of the safe conveyance of the money to the defendant, but also as to the willingness of the defendant to accept it. The defendant's letter, not constituting such a note or memorandum of the agreement as the statute required, left it optional with the defendant to accept or refuse part payment when offered to him, the same as if the defendant had sent to the plaintiff a verbal communication of the same import as the defendant's letter. A point is made by counsel as to whether the money was

conveyed and delivered or offered to the defendant, within a reasonable time after his letter was received by the plaintiff, but it seems to us that the time the money was offered is not material. We hink, even if the plaintiff had gone immediately after receiving the defendant's letter, and offered and tendered to him the fifty dollars, the defendant would have been under no legal obligation to accept it. The mere offer of the defendant to receive the money would not estop him from refusing to accept it; but in order to take the case out of the operation of the statute, it required the agreement or consent of both parties, as to payment by the plaintiff and acceptance of it by the defendant. Upon the facts of this case, we think the rights of the parties rest upon and are to be determined by the verbal agreement entered into by them on the 30th of June, and that their subsequent attempts to make that agreement a valid contract cannot aid the plaintiff. The statute provides that "no contract for the sale of any goods, wares, or merchandise for the price of forty dollars or more, shall be valid, unless the purchaser shall accept and receive part of the goods so sold, or shall give something in earnest to bind the bargain, or in part payment, or unless some note or memorandum of the bargain be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized.

The very language of the statute above quoted implies that, in whichever way the parties verbally agree or propose that contract for the sale of goods, wares, or merchandise for the price of forty dollars or more, shall be made exempt from the statute of frauds, whether it be by the purchaser accepting and receiving part of the goods so sold by giving some thing in earnest to bind the bargain, or in part payment, or by making a note or memorandum of the bargain, it must be done, if done at all, by the consent of both parties. It is obvious that it would require the consent of the purchaser to accept and receive part of the goods, and he could not receive them unless by consent of the seller; the purchaser could not give something in earnest to bind the bargain, or in part payment, unless the seller accept and receive it; nor could a note or memorandum of the bargain be made and signed unless by the consent of the party to be charged thereby. A valid contract is an agreement or covenant between two or more persons, in which each party binds himself to do or forbear some act; and each acquires a right to what the other promises; but if the parties, in making a contract like the present one, omit to do what the statute requires to be done to make a valid contract, it would require the consent of both parties to supply the thing omitted. Suppose it had been cne stipulation of the verbal agreement on the 30th of June that the plaintiff should give and the defendant

receive something in earnest to bind the bargain, and in pursuance of such stipulation the plaintiff had then offered to give or pay the amount so stipulated, and the defendant had refused to receive it, saying that he preferred not to receive any money until he had delivered the whole or part of the property, or had refused to accept the money so offered, or do any other act to bind the bargain without giving any reason for such refusal, it would be evident that he did not intend to make a binding contract. But the fact that he had made such verbal agreement to receive something or to do some other act to bind the bargain, and that the plaintiff was ready and offered to comply on his part, would not take the agreement out of the statute. A verbal stipulation to give and to receive something in earnest to bind the bargain or in part payment, or a verbal promise to make a note or memorandum in writing necessary to exempt the agreement from the operation of the statute, is as much within the statute of frauds as is the agreement or contract taken as a whole; and a note or memorandum in relation to giving something in earnest to bind a bargain, or in part payment, which is insufficient of itself to take the contract out of the statute, is also insufficient to make the contract binding upon either party.

The judgment of the county court is reversed, and judgment for the defendant for his costs.

A MEMORANDUM MAY CONSIST OF TWO OR MORE PIECES OF PAPER BUT THEY MUST BE SO CONNECTED AS TO FORM ONE MEMORANDUM OF THE CONTRACT OLIVER V. HUNTING

44 Ch. Div. 205 (1890)

In August, 1888, Emma Oliver, a married woman, possessed of considerable separate estate, negotiated with a Mr. Hunting for the purchase of a freehold property known as the Fletton Manor House estate. Eventually she agreed to purchase it for £2,375, and on the 7th of September, 1888, he signed the following document:

"Memorandum of terms of agreement between Mr. Hunting and Mrs. Oliver: Price £2,375. Vendor to make good title. Purchaser to pay for her own conveyance. Fixtures included in purchase. Purchase to be settled as soon as possible. Possession on 25th September. Deposit to be paid on the 10th."

On the 12th of September, 1888, Mr. Hunting wrote and sent a letter to Mrs. Oliver in the following words:

"I beg to acknowledge receipt of check, value £375, on account of the purchase money for the Fletton Manor House estate."

Mr. Hunting having refused to complete, Mrs. Oliver commenced this action against him, claiming specific performance of the contract of the 7th of September, 1888, and alleging in her statement of claim. that in pursuance of the said contract she, on the 10th of September, 1888, paid to Mr. Hunting the sum of £375, as a deposit and in part payment of the said purchase money, and submitting that the memorandum of the 7th and the letter of the 12th of September, 1888, formed a valid contract and a sufficient memorandum within the statute of frauds.

Mr. Hunting, by his statement of defence, did not admit any of allegations in the statement of claim, and relied on the statute of frauds. Issue was joined. This was the trial of the action.

Mrs. Oliver in her evidence deposed that she sent the check of £375, mentioned in the letter of the 12th of September, on account of the purchase money of the Fletton Manor House estate. It was part of the £2,375. No other money was payable by her to the defendant. The £375 was the balance that Mr. Hunting was to receive, because the £2,000 was to be paid over to a mortgagee of the property. Her solicitor, Mr. Law, was going to find the £2,000 for her.

KEKEWICH, J. The elementary proposition about which there is no doubt is this, the memorandum to be signed by the party sought to be charged, so as to bring a particular case within the statute of frauds, need not be on one piece of paper, nor need it be a complete document, signed by the party at one and the same time. It may be contained in two or more pieces of paper, but they must be so connected that you can read them together, so as to form one memorandum of the contract between the parties. Directly you get beyond that, you get into difficulty. One can illustrate that in a simple manner. An intending purchaser accepts an offer made by a proposing vendor thus: "In reply to your letter of the 14th instant." Can one annex to that reply the letter of the 14th instant? Surely one cannot, without inquiring what letter it is; unless the purchaser has, with unusual prudence, completed the reference by saying, "In reply to your letter of the 14th instant, a copy of which is on the other side." In the absence of any such complete evidence as that, one must inquire what the letter of the 14th instant was, because non constat it may have been a reference to any one of half a dozen different letters; and so, from that very simple illustration, one can go through a large variety of more complex ones. It is not for me to say that the old rule was better or worse than the present rule; but that it was a different rule, notwithstanding the criticisms in the cases which Mr. Neville has given me, I have no doubt. I take the old rule from the original edition of Lord Blackburn, on the Contract of

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