livery.1 The Uniform Sales Act,2 following the Sale of Goods Act, declares that "what is a reasonable price is a question of fact dependent on the circumstances of the case."

§ 9. Price and Part Payment under the Statute of Frauds.

58. A contract for the sale of goods is not within the statute, unless the price or money consideration reaches a certain limit,

£10 in England, $30 to $2,500 in the United States. If the price is fixed by the express agreement of the parties, there is no difficulty in determining whether the statute applies. In other cases, however, the question is not so simple.

59. Several Articles bought at one Interview. It may happen that several articles are sold by A and bought by B during a single interview, and that the agreed price for each article is below the limit, while the aggregate price exceeds it. Whether the statute applies depends upon the severability of the transaction, as disclosed by the facts in each case. If one person bargains with another for various articles which are separately selected and agreed upon, and asks that one statement of the whole be rendered, there is but a single contract. Even in the case of auction sales, the parties may convert into a single contract what would otherwise be distinct transactions; but where the parties contract for articles of different kinds, which are to be delivered and paid for at distinct times, places, and by buyer and seller in an open market in the usual and ordinary course of lawful trade and competition. It cannot be devested of these incidents and retain its character. Associations of this character give the buyer no voice, and close the market against competition."

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1 Dunkirk Colliery Co. v. Lever, 9 Ch. D. 20, 25; 41 L. T. n. s. 633 (1878).

2 Mass. L. 1908, ch. 237, § 9 (4).

56 & 57 Vict. ch. 71, § 8 (2).

4 The Uniform Sales Act fixes the minimum limit at $500. Mass. L. 1908, § 4 (1). Conn. (L. 1907, ch. 212, § 4) fixes it at $100; Ohio (Code, § 8384), at $2,500; Md. (L. 1910, ch. 346, § 202), N. Y. (L. 1911, ch. 591, § 85), and Wis., at $50. Thus it has come about that the Uniform

Law is not uniform on this point.

5 Baldey v. Parker, 2 B. & C. 37 (1823); Burdick's Cases on Sales, 53; Allard v. Greasert, 61 N. Y. 1 (1874); Burdick's Cases on Sales, 246.

Mills v. Hunt, 20 Wend. (N. Y.) 431 (1838); Jenness v. Wendell, 51 N. H. 63; 12 Am. R. 45 (1871).

prices, the transaction is severable,1 and the statute will not apply if each sale falls below the statutory limit, although the sum of the sales exceeds it.2

60. Uncertainty of Aggregate Sum. Even where the sale contract is entire, the aggregate sum to be paid may be ascertainable only in the future; as where a crop of grain or of fruit is sold at a stipulated price per bushel, or the offspring, sired by a certain animal during a designated period, are bargained for at a fixed price per head.3 Whether such a contract is within the statute depends upon the sequel.

Again, an indivisible contract may embrace a sale of goods and a distinct undertaking, such as the transportation of the goods, or the agistment of animals. In that event, if the price of the goods, whether separately agreed upon or not, exceeds the limit, the whole contract is under the statutory ban.*

61. Earnest and Part Payment. The statute is satisfied if the buyer gives "something in earnest to bind the bargain or in part of payment." In early English law, earnest was "a distinct payment for the seller's forbearance to sell or deliver a thing to any one else." 5 It has a different meaning in the Statute of Frauds, although its present signification is a matter of disagreement between the courts of England and those of the United States. According to the view of the former it "is money or a valuable thing, not forming part of the price of the goods sold, and given by the buyer to the seller, and accepted by the seller, in order to mark the assent of both parties to the agreement." "

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1 Aldrich v. Pyatt, 64 Barb. (N. Y.) 391 (1872); cf. Tipton v. Feitner, 20 N. Y. 423 (1859); Weeks v. Crie, 94 Me. 458; 48 At. 107; 80 Am. St. R. 410 (1900).

2 Statutory provisions on this topic are found in Sale of Goods Act, § 58, and Uniform Sales Act (Mass. L. 1908, ch. 237), § 21; N. Y. Act, § 102.

Carpenter v. Galloway, 73 Ind. 418 (1881).

Harman v. Reeve, 25 L. J. C. P. 257 (1856); Burdick's Cases on Sales, 55; Irvine v. Stone, 6 Cush. (Mass.) 508 (1852).

Pollock and Maitland's History of English Law, vol. 2, p. 208; cf. Moyle's Contract of Sale in the Civil Law, 48, 172.

1 Law Quar. Rev. p. 17; cf. Howe v. Smith, 27 Ch. D. 87, 102 (1884). In Scotland it is sometimes called "dead earnest" to distinguish it from part payment. Brown's Sale of Goods Act (1st ed.), 26.

In this country the term is understood to be synonymous with part payment. What is given must be delivered and accepted as a part of the price,' and not simply as evidence that the parties are in earnest.2 Accordingly, if the parties make a deposit which is to belong to the one who is ready to perform if the other neglects performance, the deposit does not satisfy the statutory requirement of earnest or part payment. It is not necessary that legal tender money be used. Part payment may be made "in money or property, or in the discharge of an existing debt, in whole or in part. . . . A mere agreement to apply the purchase-money to either of these objects would not be enough, because the contract would still rest in words, and nothing more." 5 Payment may be made by rendering stipulated services; as where a person was to have a third interest in a vessel for lending his credit and helping negotiate a loan of $5,000. "The statute is satisfied by money paid or money's worth received in payment." •

62. Time of Part Payment. In some States the statute requires part payment to be made at the time of the contract.

1 Edgerton v. Hodge, 41 Vt. 67 (1869); Burdick's Cases on Sales, 56. Hudnut v. Weir, 100 Ind. 501 (1884); 115 Ind. 525; 18 N. E. 24 (1888); Burdick's Cases on Sales, 59.

'Howe v. Hayward, 108 Mass. 54; 11 Am. R. 306 (1871). The statutes of some States omit the term "earnest." It is retained in Massachusetts. The Uniform Sales Act (Mass. L. 1908, ch. 237), § 4 (1) reads, “or give something in earnest to bind the contract, or in part payment."

• Johnson v. Taber,

Miss.; 57 So. 365 (1912). "There is a payment of the purchase-money when the consideration is to be a credit on indebtedness and the credit is actually entered."

Brabin v. Hyde, 32 N. Y. 519 (1865). In accordance with this rule, it was held, in the case last cited, that the provision of the statute as to part payment was not complied with, when the buyer of a mare and colt testified that he told the seller (who was indebted to the buyer in a sum exceeding $175, the agreed price), "I would give him credit on my books when I got home for the $175, and he said that would be right." The court declared: "If the purchase-money is to be applied to pay an open account, in whole or in part, the creditor and purchaser should part with some written evidence of such application which shall bind him and put it into the power of his debtor and vendor to enforce the contract. Without this, or something like this, the contract is a mere collection of words, and the statute evaded." Accord, Norton v. Davidson (1899), 1 Q. B. 401; 68 L. J. Q. B. 265.

• Misner v. Strong, 181 N. Y. 163; 73 N. E. 965 (1905).

Under such statute, "It is in substance held that payment subsequently made, although conforming to the oral agreement, is insufficient of itself to make the prior oral agreement valid. There must be enough in addition to the act of payment to show that the terms of the prior oral contract were then in the minds of the parties, and were reaffirmed by them; and this being shown, a cause of action arises, not on the prior oral contract, but on the new contract made at the time of the payment." 1

§ 10. The Form of the Contract.

63. Nature of the Memorandum. - The common law prescribed no requirements of form for the contract of sale. It was equally valid and enforceable, whether oral or written. But by the Statute of Frauds, in the absence of part payment, or of acceptance and receipt of part of the goods, the only evidence receivable to establish the contract, in an action for its enforcement, is a note or memorandum in writing, signed by the party to be charged or his duly authorized agent. According to the weight of authority, however, the statute does not make this form essential to the validity of the contract,2 but to its enforceability against the party pleading the statute.33 On the other hand, it is held in a few jurisdictions that an oral

1 Jackson v. Tupper, 101 N. Y. 515; 5 N. E. 65 (1886); Burdick's Cases on Sales, 67; Raymond v. Colton, 104 Fed. 219; 43 C. C. A. 501 (1900), applying the former N. Y. statute; Franklin v. Matoa Gold Mining Co., 158 Fed. 941 (1907), applying Colorado statute which was copied from N. Y. The present N. Y. statute does not require payment to be made at the time of the contract (L. 1911, ch. 571, § 85).

2 Porter v. Wormser, 94 N. Y. 431 (1884); Burdick's Cases on Sales, 66; Bird v. Munroe, 66 Me. 337; 22 Am. R. 571 (1887); Burdick's Cases on Sales, 60.

Crane v. Powell, 139 N. Y. 379; 34 N. E. 911 (1893); Porter v. Wormser, 94 N. Y. 431 (1884); Burdick's Cases on Sales, 66; Browne on Statute of Frauds, ch. viii; Alaska Salmon Co. v. Standard Box Co., 158 Cal. 567; 112 Pac. 459 (1910); cf. Mendel v. Miller Sons, 134 Ga. 610; 68 S. E. 430 (1910), holding that defendant may admit the oral agreement, and still plead the statute.

In some jurisdictions, a party may avail himself of the statutory bar under the general issue. Riif v. Riibe, 68 Neb. 543; 94 N. W. 517 (1903); Hillhouse v. Jennings, 60 S. C. 373; 38 S. E. 599 (1901); Dunphy v. Ryan, 116 U. S. 491; 6 Sup. Ct. 486; 29 L. ed. 703 (1886).

contract for the sale of goods, the value of which exceeds the statutory limit, when there is neither part payment of the price, nor acceptance and receipt of any part of the goods, is wholly void, "a mere nullity, and cannot be used for any purpose whatever." 1

64. Memorandum not a Written Contract.

Moreover, such

a note or memorandum is not a written contract. When the parties freely and deliberately embody their sale agreement in a written instrument, they satisfy the statute, indeed; but they do more. They make the writing the best evidence of the terms of the contract, and they preclude each other from giving oral evidence to vary its provisions. All previous negotiations and understandings are merged in the written contract, and such contract dates from the time of its consummation. On the other hand, the statute presupposes an oral contract, which is not merged in the subsequent note or memorandum, and which dates from its oral creation. Moreover, the written contract is binding on both parties, for it is the writing of both; while the memorandum need be signed by, and binding on but one of the parties - the party to be charged in the action. Hence, although the statutory writing is made and signed by the party to be charged, it is not conclusive as to the terms of the contract actually agreed upon. It may be disregarded save as an explainable admission when part payment, or receipt and acceptance, is proved. It may be shown by oral evidence not to be a true memorandum of the contract, by reason of its containing terms not agreed to or omitting some stipulated term.3

65. Terms of an Accurate Memorandum not to be modified by Oral Evidence. When a true and sufficient memorandum has been made, an oral agreement to vary the contract thus noted is unavailable, either to defeat an action on the original con

1 Grimes v. Van Vechten, 20 Mich. 410 (1870); Scott v. Bush, 26 Mich. 418, 421 (1873); Waite v. McKelvey, 71 Minn. 167; 73 N. W. 727 (1898). 2 Lockett v. Nicklin, 2 Ex. 93; 19 L. J. Ex. 403 (1848).

McLean v. Nicoll, 7 Jurist, N. s. 999 (1861); Burdick's Cases on Sales, 69; Boardman v. Spooner, 13 Allen (Mass.), 353 (1866). Contra, Cameron Coal & M. Co. v. Universal M. Co., 26 Okla. 615; 110 Pac. 720 (1910).