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this section will be found in Boydell v. Drummond, 11 E. 142., the facts of which I have already stated in a former lecture; and Birch v. The Earl of Liverpool, 9 B. & C. 392. (a)

ment. Geraud v. Richmond, C. J.) was to prevent frauds 15 Law Jour. C. P. 180. by perjury and subornation But where it is expressed in of perjury, which might set short and in complete terms, up promises by word of as we have previously seen, mouth to serve for a long parol evidence of the situa- period of years, or to enter tion of the parties is admis- into a partnership for life, or sible to explain what is per promises of a similar nature. se unintelligible. Sweet v. The statute merely says, that Lee, 3 M. & Gr. 452. a party shall not be hurt by evidence of parol promises of such a nature as that. * * * Looking at the terms here, I see nothing which must necessarily extend the agreement beyond the year. there be an agreement to serve for two years, that is undoubtedly within the statute; but if the agreement be to serve, and that such service may be put an end to on a month's notice, it is not within it." The same case decides that no agreement having reference to an executed consideration is within the statute; the agreement must be prospective, not retrospective.

(a) The statute applies only to agreements of which the entire performance by both parties, in their contemplation, as gathered from the scope and terms of the memorandum, must necessarily extend beyond the year. To this extent has the doctrine laid down in Boydell v. Drummond been applied in the very recent case of Souch v. Strawbridge, 15 Law Jour. C. P. 170., where the agreement was that the

plaintiff should keep the defendant's child so long as the defendant should think proper; and he did keep it for some years. This was held not to require a written memorandum, for "the object of the statute (said TINDAL

If

A contemplated performance of the agreement by either of the parties within

Recapitulation of Lectures.

I have now gone through the five cases to which the fourth section of the statute of Frauds

applies, and in which it requires a written memorandum of the contract. There are one or two other cases of very considerable importance in practice on which I shall briefly observe in the next lecture, in which a writing is required by the express enactment of the legislature. Having mentioned them, I shall say something of the consideration upon which a simple contract may be grounded, and which is, as you are aware, an essential part of every such contract; and then, having finished the remarks I had to make on Simple Contracts exclusively, shall resume the consideration of the general law of contracts, and shall speak of the competency or incompetency of the contracting parties, and of remedies by which, in case of breach of contract, their performance is to be enforced.

the year will take it out of
the statute. In the case, for
instance, of a parol sale of
goods, it often happens that
they are not to be paid for in
full till after the expiration
of a longer period of time
than a year; and the law
would not sanction a defence

on that ground, when the buyer had had the full benefit of the goods within the year. (Donellan v. Read, 3 B. & Ad. 899.) If either party is to perform his part of the agreement, therefore, within the year, it need not be in writing.

69

LECTURE IV.

SALE OF GOODS, ETC. UNDER THE 17TH SECTION OF THE STATUTE OF FRAUDS.-CONSIDERATION OF CONTRACTS BY DEED AND OF SIMPLE CON

TRACTS.

I CONCLUDED in the last lecture the consideration of the five cases in which the fourth section of the statute of Frauds renders it necessary that a contract should be reduced to writing. There are, as I then said, one or two other cases, which, being of constant occurrence, it will be right to specify before proceeding to the next branch of the subject.

of the value

The first of these cases is that of a sale for Sale of goods the price of 107. or upwards, regarding which the seventeenth section of the statute of Frauds upwards. has provided as follows: —

section.

"No contract for the sale of any goods, wares, or mer- The 17th chandizes (a), for the price of 10l. or upwards shall 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 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."

The first great difference which you will observe between this section and the fourth section of the same act is, that the fourth section ren

(a) See Humble v. Mitchell, 11 Ad. & Ell. 205.

It avoids contracts within and not in accordance with it.

Contracts for

chattels not in esse.

ders a writing necessary in all cases which fall within its terms; whereas the seventeenth mentions three circumstances, any one of which it directs shall be as effectual as a writing, namely, acceptance of any part of the goods, payment of part of the price, and THIRDLY, the giving something by way of earnest to bind the bargain; any one of which three things will as effectually perfect the sale as a writing would. Where none of these has taken place, a writing, however, becomes necessary; and if there be none, the bargain is void, and there is no sale: for, to use the words of Mr. J. BOSANQUET in Laythroap v. Bryant, "the fourth section does not avoid contracts not signed in the manner described; it only precludes the right of action. The seventeenth section is stronger, and avoids contracts not made in the manner prescribed." A parol sale, therefore, unaided by any of the three formalities mentioned in the seventeenth section as equivalent to writing, is totally and entirely void. A doubt was entertained at one period whether the seventeenth section included the case of a contract for something not in existence in a chattel estate at the time of making the bargain, but which was to become a chattel before the time agreed upon for its delivery. Where, for instance, growing timber was bargained for, to be delivered cut into planks, or a ship or a carriage not yet built. However, any doubt that formerly existed on this subject is

ance.

s. 7.

now put an end to, for by stat. 9 Geo. 4. c.14. 9 Geo. 4. c.14.
s. 7. it is enacted, that the seventeenth section of
the statute of Frauds

"Shall extend to all contracts for the sale of goods of the
value of 101. sterling and upwards, notwithstanding the
goods may be intended to be delivered at some future time,
or may not, at the time of such contract, be actually made,
procured, or provided, 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." (a)

What con-
(a) Much litigation has
titutes
arisen on what constitutes
Helivery
and accept- acceptance such as to satisfy
the statute. Acceptance by
the buyer of goods is in all
cases essential to give the
seller of them a right of
action upon the contract; nor
is there any difference in the
sort of acceptance required
in such cases, whether they
are or are not within the
operation of this statute. In
order to an acceptance by the
buyer there must have been
a delivery by the seller; and
there must be both in order
to satisfy this clause of the
seventeenth section.

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hands of a del credere agent,
though ordered by the buyer,
who directs them to be
marked with his mark, this is
no delivery, for the agent,
not being the buyer's agent
but the seller's, the seller has
not parted with the posses-
sion or divested himself of
the property in the goods.
(Bill v. Baiment, 9 M. & W.
36.; Baldey v. Parker, 2 B.
& Cr. 37.) Even a delivery
order for goods upon a dock
company, given by the seller
to the buyer, would not con-
stitute delivery, according to
ABBOTT C. J., "until the
dock company had accepted
the seller's delivery order,
and, by so doing, assented to
hold the wine as the agents
of the buyer." (Bentall v.
Burn, 3 B. & C. 423.) On
the same principle, a transfer
of wine, sold by parol, in the
books of the London Dock
Company, would, if made by

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