no stable ready. Held, a receipt of the horses within the statute: Elmore v. Stone, 1 Taunt. 458. A person, having sold a horse to another, requested the buyer to lend it to him for a journey, which the buyer assented to. Held, to be an acceptance and receipt of the horse within the statute: Marvin v. Wallace, 6 El. & B. 726; 25 L. J. Q. B. 369. A buyer selected and bought casks of wine, which he marked as his own, and left in the cellars of the wine merchant. Held, an acceptance and receipt: Anderson v. Scot, 1 Camp. 235. Trees standing on the seller's land were sold as timber for immediate removal, and the buyer cut down some and sold the top and lop. Held, a sufficient acceptance and receipt: Marshall v. Green, L. R. 1 C. P. D. 35. Defendant agreed to buy some cotton-bagging of the plaintiff at a certain price, and was told that it remained in the plaintiff's store at his risk; he then had some of it turned out of the store, but afterwards returned it, and refused to complete his contract. Held, a sufficient delivery: Jackson v. Watts, 1 McCord, 288. Parties orally agreed for the purchase and sale of a lot of cotton, consisting of six bales, weighed and stored in a warehouse, and the seller gave the purchaser an order on the warehouseman for it. The seller notified the warehouseman of the sale, and the purchaser applied to him for the cotton, but delivery was postponed by agreement of the warehouseman and the purchaser until the next morning. No money passed, and no other writing was executed. Held, a valid delivery and acceptance: King v. Jarman, 35 Ark. 190; 37 Am. Rep. 11. Defendant agreed to purchase a steam-engine, the boiler of which was set in bricks, in the plaintiff's shop, and could not be removed until they were taken away. The next week after the agreement was made, the plaintiff removed the bricks. The bargain was not in writing, and the defendant did not pay or secure any part of the price, and did not take away the engine. Held, no delivery: Dole v. Stimpson, 21 Pick. 384.

§ 2335. Part or Portion of Goods only need be Accepted-Sample.-A sample of the goods is sufficient, if accepted as part of the bulk. But as a rule, a sample is given merely as a specimen of the goods contracted to be delivered, and not as part of the bulk; and as such the receipt of it is not sufficient.

Hinde v. Whitehouse, 7 East, 558; Atwood v. Lucas, 53 Me. 508; 89 Am. Dec. 713; Smith v. Stoller, 26 Wis. 671; Jackson v. Watts, 1 McCord, 288; Jenness v. Wendell, 51 N. H. 63; 12

And taking and using a

sample out of the bulk merely for the purpose of examining the quality with a view to acceptance is not alone an acceptance and receipt within the statute. Where an order is given for several articles, or a purchase made of several parcels or kinds of goods, at the same time, in a manner to constitute one contract for the whole, the acceptance and receipt of one article or of one parcel or kind of the goods is sufficient to take the whole contract out of the statute. Under an entire oral order for goods, the acceptance of a part, though shipped at a different time from the rest, will validate the entire contract.3

§ 2336. Part or Entire Performance Takes Case out of Statute. A part or an entire performance under a parol contract takes the case out of the statute. As to agreements for the sale of lands, this has been frequently held in equity in suits for specific performance.5

An agreement executed on one part is not within the statute of frauds." One having voluntarily performed an

1 Nicholson v. Bower, 1 El. & E. 172; 28 L. J. Q. B. 97; Carver v. Lane, 4 E. D. Smith, 168.

2 Elliott v. Thomas, 3 Mees. & W. 170; Bigg v. Whisking, 14 Com. B. 195; Scott v. R. R. Co., 12 Mees. & W. 33.

3 Farmer v. Gray, 16 Neb. 401.

Browne on Statute of Frauds, 124; Ives v. Gilbert, 1 Root, 89; 1 Am. Dec. 35; Stone v. Dennison, 13 Pick. 1; 23 Am. Dec. 654; Swanzey v. Moore, 22 Ill. 63; 74 Am. Dec. 134; Martin v. McCord, 5 Watts, 493; 30 Am. Dec. 342; Lamar v. McNamee, 10 Gill & J. 116; 32 Am. Dec. 152; Fay v. Wheeler, 44 Vt. 292; Huntley v. Huntley, 114 U. S. 394; Horder v. Horder, 2 Sand. Ch. 17; Pomeroy v. Winship, 12 Mass. 514; 7 Am. Dec. 91; Brown v. Bellows, 4 Pick. 179; Newman v. Nellis, 97 N. Y. 285; Tatum v. Brooks, 51 Mo. 148; Erskine v. Plummer, 7 Me. 447; 22 Am. Dec. 216; Warren v. Warren, 105 Ill. 568; Towsley v. Moore, 30 Ohio St. 185; 27 Am. Rep. 434; Moss v. Culver, 64 Pa. St. 414; 3 Am. Rep. 601; Reedy v. Smith, 42 Cal. 245; Ran

son v. Bell, 46 Ga. 19; Rosser v. Harris, 48 Ga. 512. A contract for the sale of goods is not taken out of the statute of frauds by the vendee's preparation for receiving them: Harris v. Rounsevel, 61 N. H. 250. Marriage is not a sufficient part performance of a contract made in consideration of marriage to take the contract out of the statute of frauds: Brown v. Conger, 8 Hun, 625.

See post, Title Specific Performance; Chapman v. Allen, Kirby, 399; 1 Am. Dec. 24. See McKowen v. McDonald, 43 Pa. St. 441; 82 Am. Dec. 576. Aliter in actions at law for the purchase-money or for damages for breach of contract: Kidder v. Hunt, 1 Pick. 328; 11 Am. Dec. 183; Norton v. Preston, 15 Me. 14; 32 Am. Dec. 128; Johnson v. Hanson, 6 Ala. 351; 41 Am. Dec. 55; Baldwin v. Palmer, 10 N. Y. 232; 61 Am. Dec. 743.

Noyes v. Moore, 1 Root, 142; Chittington v. Fowler, 2 Root, 387; Cone v. Tracy, 1 Root, 479; Rogers v. Tracy, 1 Root, 233; Watrous v. Chalker, 7 Conn. 224; Pinney v. Pin

agreement on his part cannot allege that it was void by he statute.1 A contract within the statute is not illegal, but only not capable of being proved by parol, - an immunity which may be waived by the one sought to be bound.2 Therefore an action will not lie to recover the consideration paid upon an oral agreement for the purchase of lands, if the vendor is willing to fulfill. Where a party to an agreement void by the statute of frauds fails to execute it, the price advanced, or the value of articles delivered in part performance of the contract, whether in money, labor, or chattels, may be recovered back. In such cases, the law raises, by implication, a promise to pay advances made upon the faith of the contract, and for which no consideration has been paid."

ney, 2 Root, 191; Washburn v. Dosch, 2 Montgomery v. Edwards, 46 Vt. 68 Wis. 436; 60 Am. Rep. 873; Sug-151; 14 Am. Rep. 618. gett v. Cason, 26 Mo. 221; Frazer v. Gates, 118 Ill. 99; McCue v. Smith, 9 Minn. 252; 86 Am. Dec. 100.

1 Westfall v. Parsons, 16 Barb.

645.

3 Galway v. Shields, 66 Mo. 313; 27 Am. Rep. 351; Coughlin v. Knowles, 7 Met. 57; 39 Am. Dec. 759.

Smith v. Smith, 28 N. J. L. 208; 78 Am. Dec. 49.

CHAPTER CXI.

MISTAKE, FRAUD, DURESS, AND UNDUE INFLUENCE.

§ 2337. Mistake in making the agreement.

Mistake in expressing the agreement - Mistake of one party only.
Mistake of both parties.

§ 2338.

§ 2339.

§ 2340.

Mistake of one party caused by the other.

§ 2347.

§ 2348.

Non-disclosure of latent defect.

Non-disclosure of patent defect.

§ 2349. Sale "with all faults.”

§ 2350. Non-disclosure by purchaser.

§ 2351. Representation believed to be true.

§ 2352. Representation not known to be true.

§ 2353. Representations subsequently becoming false or true.

§ 2355.

§ 2356.

§ 2354. Representation must have been material and have induced contract. Representation to person having knowledge or means of knowledge. Representation as to one of several matters.

§ 2358.

Party may elect to avoid or treat binding fraudulent contract.

§ 2366.

§ 2367.

But money obtained by duress of goods may be recovered back.
Who must impose duress - Duress on third person.

§ 2368. Agreement obtained by duress may be avoided or affirmed.

§ 2369. Oppression and undue influence.

§ 2337. Mistake in Making the Agreement. —A party may show that, by mistake, he has entered into a different kind of agreement than that which he intended to make;1

Leake on Contracts, 313. In Foster v. Mackinnon, L. R. 4 Com. P. 704, it is said: "It is plain, on princi

ple and on authority, that if a blind man, or a man who cannot read, or who for some reason (not implying

2

for example, that he has signed a bill of exchange believing that it was simply a guaranty;' or that he has signed as a party to a bond when he intended only to sign as a witness. So a note executed by mistake for too large an amount is a good ground for relief in equity. To establish mistake, the party alleging it must prove it clearly and satisfactorily, and perhaps beyond a reasonable doubt; at any rate a mere preponderance of evidence is not sufficient."

ILLUSTRATIONS. An illiterate man signed a paper, which was falsely represented to be a petition, but which was really a bond. Held, that he was not liable thereon: Schuylkill County v. Copley, 67 Pa. St. 386; 5 Am. Rep. 441. A deed was signed by one who believed it to be the duplicate of a lease of a portion of the premises conveyed, which he had signed after it had been read to and by him, the lessee therein having placed the two documents, which closely resembled each other, together upon the table to be signed, and it having been previously agreed that two copies of the lease should be signed. Held, not the deed of the signer: McGinn v. Tobey, 62 Mich. 252; 4 Am. St. Rep. 848. A conveyed a tract of land by a warranty deed, in which the consideration was expressed to be eighty-six pounds. B brought a suit against A on the warranty, and recovered judgment for eighty-six pounds. It was proved that forty-three pounds was the consideration really paid, eighty-six pounds having been inserted in the deed by mistake. Held, that A was entitled to relief: Yelton v. Hawkins, 2 J. J. Marsh. 1.

§ 2338. Mistake in Expressing the Agreement - Mistake of One Party only. Where there is a mistake in

negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs, then, at least if there be no negligence, the signature so obtained is of no force. And it is invalid, not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature, in other words, that he never intended

to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended": Smentek v. Cornhauser, 17 Ill. App. 266. But see Weller's Appeal, 103 Pa. St. 594.

Foster v. Mackinnon, L. R. 4 Com. P. 704.

2 Wake v. Harrop, 6 Hurl. & N. 768, per Bramwell, B.

3 Harrison v. Jameson, 3 J. J. Marsh. 232; Rigsbee v. Trees, 21 Ind. 227.

Parker v. Hull, 71 Wis. 368; 5 Am. St. Rep. 224.