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confusion is between the nominal personality and that represented by handwriting, or characteristics other than physical appearance, the rule appears to be to treat the nominal person as the one really intended.61

Avoidance by Infants.-An infant's right to avoid his contract of sale and to retake title and possession of the chattel sold is not based upon mere equitable right, but is a matter of public policy in his protection. Consequently, when a third person has acquired the chattel for value from the infant's buyer, that third person's right to keep it as against the infant seller does not depend on a comparison of equities as affected by the legal title. It depends on whether public policy, as interpreted by the

O. S. 235; Tolman v. Am. Nat'l Bk., 22 R. I. 462, 84 Am. St. Rep. 850; Simpson v. Denver & R. G. R. R., 43 Utah 105, 46 L. R. A. (n. s.) 1164; Cf. Mercantile Nat'l Bk. v. Silverman, 132 N. Y. S. 1017, aff. 210 N. Y. 567.

But contra, Land Title & Tr. Co. V. Northwestern Bank, 196 Pa. 230, 79 Am. St. Rep. 717, 50 L. R. A. Robert75, annotated; son v. Coleman, 141 Mass. 231; Heavey v. Com. Nat'l Bk., 27 Utah 222; Hoffman v. Am. Exch. Bk., Neb., 96 N. W. 112; Jamieson v. Heim, 43 Wash. 153; Boatsman v. Stockman's Nat'l Bk., 56 Colo. 495; McHenry V. Nat'l Bk., 85 O. S. 203, 38 L. R. A. (n. 8.) 1111 N.

61-Pacific Express Co. V. Shearer, 160 III. 215, rejecting the decision in Samuel v. Cheney, 135 Mass. 278; Consumers Ice Co. v. Webster, 53 N. Y. S. 56, dictum to the effect that physical presence of agent will not dominate nominal characteristics.

Cundy v. Lindsay, 3 App. Cas. 459, name dominated hand-writing. Newberry v. Norfolk & S. R. Co., 133 N. C. 45. Some confusion is caused in these cases by confounding the question of which personality was intended, with the question whether a carrier is absolutely bound to deliver to the person so intended. On the latter question there is considerable diversity of opinion.

Contra, as to payee of a promissory note, First Natl. Bk. v. Am. Exch. Bk., 63 N. Y. S. 58, 170 N. Y. 88; in Sherman v. Corn Exch. Bk., 86 N. Y. S. 341; the real owner of the goods for which the note was given was held the proper payee, although the maker had in mind another person of the same name. The maker had in mind a person who had both furnished the consideration and had certain other characteristics; as there was no such person the former characteristic was held indicative of the legally proper payee.

courts, requires the right of rescission to be available even against such third persons. The decided cases indicate that the infant can retake even from them.68*

-Avoidance by Insane Persons.-Where the seller is insane, a purchaser from his buyer is in no better position than is that first buyer, but the right of the insane person to avoid even as against the first buyer varies in different jurisdictions. The weight of authority is that he can not avoid against even his own buyer, who took in good faith and for fair consideration, without restoration of the consideration.68

62-Hill v. Anderson, 5 Smed. & M. (Miss.) 216; Downing v. Stone, 47 Mo. Ap. 144.

For the analogy of the same rule in sales of real property, see Harrod v. Myers, 21 Ark. 592, 76

*See Uniform Sales Act, Section 2.

Am. Dec. 409; McMorris v. Webb, 17 S. C. 558, 43 Am. Rep. 629.

63-For a compilation of author. ity see the note in Annotated Cases, 1914 D 867.

CHAPTER VI

THE STATUTE OF FRAUDS

1. CONTRACTS AFFECTED BY THE STATUTE

In 1677 the English Parliament put into effect the Statute of Frauds. This was enacted, according to its preamble, "For prevention of many fraudulent practices which are commonly endeavored to be upheld by perjury and subornation of perjury." Its several sections cover various contracts and conveyances of land.

The seventeenth section concerns contracts for the sale of goods and reads, "No contract for the sale of any goods, wares or merchandises for the price of ten pounds Sterling or upwards shall be allowed to 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 substance of this statute, in slightly varying form, has been enacted into law in most of the states of the Union. The application of the rule to particular cases has been a most prolific source of litigation.

1-This Statute did not become a part of the common law and, therefore, is not in force in this country except as it has been enacted into law by the legislatures of the several states. Cleveland v. Williams, 29 Tex. 204, 94 Am. Dec. 274.

This Statute should not be confused with statutes declaring sales in fraud of creditors to be void, as was done in Mahan v. U. S., 16 Wall. 143.

•See Uniform Sales Act, Section 4, (1).

Executory Contracts.-The first question to arise concerning its application is, "What is a contract of sale?" Does it mean a contract by which title has passed and the change of ownership is judicially recognized, or a contract by which title is to be passed? The English courts were originally somewhat at variance on this point. In 1829, however, Parliament settled this disagreement by the passage of Lord Tenterden's Act, which provided that the 17th Section of the Statute of Frauds should "extend to all contracts for the sale of goods of the value of ten pounds 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."

While this later statute has not been generally adopted by legislation in this country, the courts have consistently assumed that the Statutes of Fraud in the various states apply to all contracts, if truly contracts of sale, regardless of whether title has or has not passed."

2-9 Geo. IV. Ch. 14.

3-Atwater v. Hough, 29 Conn. 508, 79 Am. Dec. 229, defendant had contracted to sell to plaintiff 100 sewing machines for which he had already contracted with a third party. Some of the machines were already manufactured, others were not. No title to any of them was to pass until actual delivery of possession to the plaintiff. It was held, nevertheless, that the contract was affected by the Statute. "It seems now to be settled, in accordance with the rules of just interpretation, as well as the dictates of reason and common sense, that *See Uniform Sales Act, Section 4,

a contract for the sale of goods is not without the purview of the statute merely because it is executory." Accord, Ide & Smith v. Stanton, 15 Vt. 685, 40 Am. Dec. 698; Downs & Skillinger v. Ross, 23 Wend. (N. Y.) 270, contract was for sale of existing wheat to be threshed and cleaned by seller; Jackson V. Covert's Admrs., 5 Wend. (N. Y.) 139; Irwin v. Knox, 10 Johns. (N. Y.) 364. “The statute applies as well to executory as to other contracts; and the decisions of the English courts, on this point, in Rondeau v. Wyatt, 2 H. Bl. 63, and in Corper v. Elston, 7 (2).

Contracts to Manufacture and Sell.-The question whether a contract is a contract of sale or a contract to do work has caused far more difficulty. There is in fact no generally accepted test by which one can be distinguished from the other.

-English Rule.-The early English decisions, by their holdings that the Statute did not apply to executory contracts, necessarily confined the Statute to cases in which title could pass coincidently with the making of the contract. Contracts for goods to be manufactured were not within the statute, not expressly because they were contracts for work and labor, but because title was to pass in the future.4

When, subsequently, the courts decided that executory contracts, as well as those whereby title had already passed, were properly within the Statute, instead of overruling the preceding decisions they "distinguished" them. In Rondeau v. Wyatt' it was held that the Statute did apply even though title to the goods had not passed, and Lord Loughborough, to avoid the precedent of Towers v. Osborne," said that case was outside of the statute "not because it was an executory contract, as it has been said, but because it was for work and labor to be done, and materials and other necessary things to be found, which is different from a mere contract of sale, to which species of contract alone the statute is applicable."

This suggestion that a contract to create a chattel might be outside the statute was followed in the decision of Groves v. Buck, holding that the statute did not apply where the thing contracted to be sold was not in existence

Term Rep. 14, contain the sound and just construction of the statute."

An oral contract to bequeath personal property by will, so that title would not pass until the death of the testator, has been held within the purview of the

Statute. Wallace v. Long, 105 Ind.
522, 55 Am. Rep. 222, 5 N. E. 666.
4-Towers v. Osborne, 1 Strange
506; Clayton v. Andrews, 4 Bur-
rows 2101.

5-2 H. Bl. 63.
6-1 Strange, 506.

7-3 M. & S. 178 (1814).

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