A parol promise to pay for goods that is supplied to another person, who is carrying on business in his own name, is within the statute of frauds, and can not be enforced. Indiana Co. v. Finitzer, 160 Ind. 647.

6629a. Commission for the sale of land.

Since the passage of the statute of 1901, no recovery can be had for services rendered in the sale of land unless a contract is made in writing by the owner of the land promising to pay for such service. Beahler v. Clark, 32 App. 222.

6630. Consideration need not be stated.

If the consideration stated in a contract required by the statute of frauds to be in writing is indefinite and uncertain, parol evidence is admissible to explain the same. Burke v. Meade, 159 Ind. 252.

Antenuptial contracts need not state a consideration, as marriage is a sufficient consideration to support a promise. Moore v. Harrison, 26 App. 408.

6633. Specific performance.

If possession of land is taken under a written contract of sale, the consideration to be paid in money, and a subsequent parol agreement is made to accept land in payment instead of money, there is no such part performance of the parol agreement as will take the same out of the statute frauds. Bradley v. Harter, 156 Ind. 499.

Specific performance of a written contract to execute a lease for more than three years may be decreed when the lessee takes possession under the contract and pays rent. St. Joseph Co. v. Globe Tissue Co., 156 Ind. 665.

Payment of the purchase money for land is not such a part performance of a parol contract of sale as will take the contract out of the statute of frauds. Riley v. Hayworth, 30 App. 377.

In order that taking possession of land under a parol contract of sale will take the case out of the statute of frauds, the possession must be open, absolute, and with the consent of the vendor. Riley v. Hayworth, 30 App. 377.

6634. Representations of character and credit.

Representations made by a person concerning the value of patent rights and bank stock, in order to induce investments therein, do not fall within the statute requiring representations concerning the character, conduct, credit, ability, trade or dealings of another person to be in writing in order to create a liability therefor. Coulter v. Clark, 160 Ind. 311.

6635. Contract for goods over $50.

In order that a parol contract for the sale of goods for more than $50 can be enforced because of a delivery of a part of the goods, it must be alleged that a part of the goods was received by the purchaser, an allegation of a delivery of a part of the goods not being sufficient. Goodwine v. Cadwallader, 158 Ind. 202.

A contract by which a manufacturer is to furnish materials and manufacture an article and deliver the same to another is a contract for the sale of goods within the meaning of the statute of frauds. Yoe v. Newcomb, 33 App. 615.

Contracts for the sale of goods for more than fifty dollars are not within the statute of frauds when the contract is in writing. Warner v. Warner, 30 App. 578.

6636. Sale of goods without delivery.

A presumption of fraud, when goods sold are not delivered to the purchaser, arises only in favor of creditors of the vendor or subsequent purchasers in good faith. Warner v. Warner, 30 App. 578.

[Acts 1903, p. 276. In force April 23, 1903.]

6637a. Sale of merchandise in bulk.-1. That it shall be unlawful for any merchant engaged in the buying and selling of merchandise, while he is indebted to any person who has in good faith given him credit for merchandise sold to him and to be used by him in the conduct of his business, or to any person for money loaned to him to be used in the conduct of such business, and which has been actually used in said business, to sell his entire stock of merchandise in bulk, or to sell the major portion thereof in value in one or more parcels or to one or more persons for the purpose and with the intention of ceasing to conduct said business in the same manner and at the same place as he has theretofore conducted the same, without first making a full and complete inventory of the merchandise so proposed to be sold, in which inventory the values shall be extended at the ruling wholesale market price thereof; and making a full, true and correct schedule of all persons to whom he is indebted for merchandise so sold to him and of all persons to whom he is indebted for money loaned to him to be used in the conduct of such business, and which has been used therein, stating therein the post office address of each of said creditors and the amount owing to each of them; to which inventory and schedule there shall be attached the oath of the seller that the same is true and correct; or if the seller shall assert that he is not indebted to any person of the classes above designated, he shall make an affidavit to that effect and deliver the same to the purchaser with the inventory as hereinafter provided. The seller shall deliver said inventory and schedule to the proposed purchaser and shall retain exact copies thereof in his own possession; the seller and the purchaser shall each preserve such inventory schedule and affidavit for the period of six months after such sale and purchase and the same shall be open to the inspection of the creditors of the seller. Five days before such sale shall be consummated and before the purchaser shall take possession of the merchandise so proposed to be sold the seller and proposed purchaser shall join in giving written or printed notice of the proposed sale and purchase of such merchandise to each of the creditors named in such schedule; such notice may be delivered in person to such creditors or transmitted to them by registered letter through the United States mail by being deposited in the United States postoffice at the place where the seller has heretofore conducted business, or nearest thereto, properly addressed to the respective creditors at the postoffice address given in such schedule, with proper postage affixed; such notice shall state the aggregate value of the merchandise proposed to be sold as shown by such inventory, the consideration to be paid therefor, and the time and manner of making such payment. If said seller shall fail to make such inventory of such merchandise;

or if such inventory shall fail to state the true value of said goods as above required; or if said seller shall fail to make such true schedule of creditors as hereinbefore provided, and the purchaser shall have knowledge of the fact; or in event the seller shall assert that there are no debts of the character above specified; if the purchaser shall fail to require the affidavit above provided; or if the seller and purchaser shall fail to give each of said creditors named in said schedule the notice above required in the manner above provided; or if such notice shall not correctly state the amount of such merchandise proposed to be sold and the consideration to be paid therefor, and the time and manner of making the same; then and in either of such events such sale shall be deemed fraudulent and void as against the creditors of such seller on account of merchandise sold to him and money loaned to him to be used in the conduct of said business, and actually used in said business, and the merchandise in the hands of the purchaser, or any part thereof, if it shall be found in his hands, shall be liable to such creditors, and in event the same or any part thereof shall be withdrawn by said purchaser, then the purchaser himself, personally, shall also be liable to said creditors of such seller to the extent of the value of the merchandise so received by him and thus withdrawn.

This section supersedes section 6637a, Burns' R. S. 1901.

This act is class legislation, and in violation of the 14th amendment of the federal constitution, and is void. McKinster v. Sager, 163 Ind. 671.

Consideration and construction of the act of 1901, section 6637a, Burns' R. S. 1901, regulating the sale of merchandise in bulk. Sellers v. Hayes, 163 Ind. 422.

6637b. Act repealed.-2. Be it further enacted, That the act of the general assembly of the State of Indiana entitled "An act to regulate the sale of merchandise in bulk, and declaring an emergency," approved March 11, 1901, be and the same is hereby repealed.

The act repealed by this section constitutes sections 6637a, 6637b, Burns' R. S. 1901.

6638. Chattel mortgages, recording.

The withholding of chattel mortgages from record, and the executing of new mortgages each ten days for several months, will not be deemed a fraud on creditors of the mortgagor when such mortgages were not recorded because of the promises of the mortgagor to pay the debt and the last mortgage was duly recorded. National St. Bank v. Sandford Ca., 157 Ind. 10.

Chattel mortgages are valid between the parties thereto without a delivery of the property to the mortgagee or a recording of the mortgage. Warner v. Warner, 30 App. 578.

6645. Conveyances and acts to defraud creditors.

A mortgage executed by an insolvent corporation to secure the payment of preferred stock, to the exclusion of general creditors, is void as to such creditors. Reagan v. First Nat. Bank, 157 Ind. 623.

If property is conveyed for an inadequate consideration, the conveyance may be declared fraudulent as to creditors of the vendor, and the rights of the vendee protected to the extent of the purchase money paid. Jameson v. Dilley, 27 Ind. 429.

6648. Innocent purchasers.

When land is conveyed for an inadequate consideration to a purchaser who has no notice of an intention to defraud, the conveyance may be set aside in favor of the creditors of the vendor and the rights of the vendee protected to the extent of the consideration paid. Jameson v. Dilley, 27 App. 429.

6649. Fraudulent intent, question of fact.

The question of fraud is one of fact, and where fraud is essential to a cause of action it must be found as a fact, and not be left to be inferred as a matter of law. National St. Bank v. Sandford Co., 157 Ind. 10.

CHAPTER 73.

GAMING CONTRACTS.

Section numbers to notes refer to Revised Statutes of 1901.

Checks given for money won at gaming are void in the hands of innocent holders for value. Irwin v. Marquett, 26 App. 383.

6676. Recovery of losses.

Money lost, and paid by virtue of a bet or wager on a wrestling match, may be recovered from the winner. Desgain v. Wessner, 161 Ind. 205.

When judgment is rendered for money lost by gaming, the defendant can not claim property as exempt from sale on an execution issued on such judgment. State v. Morgan, 160 Ind. 474.

An action can not be maintained under the statute to recover money lost by dealing in options or bucket-shop transactions. Lancaster v. McKinley, 33 App. 448.