The memorandum may consist of various papers connected by reference and "it matters not how informal or bunglingly constructed the writing may be." Spiegel v. Lowenstein, 147 N. Y. S. 655.

The memorandum must show the agreement as entered into, with all its terms and conditions. Bauman v. Mendell Lunepp Co., 153 N. Y. S. 896.

Action for purchase price of tar. Plaintiffs admitted that they had agreed to furnish tar which should be satisfactory to highway commissioner. The written memorandum did not contain this provision. Held, memorandum insufficient to satisfy the statute. Barrett Mfg. Co. v. Ambrosio, Conn., 96 Atl. 930.

Printed signature, delivered by the defendant, is sufficient. Goldowitz v. Kupfer & Co., 141 N. Y. S. 531.

Signature by agent in his own name is sufficient to bind his principal. Hager v. Henneberger, 145 N. Y. S. 152.

A sale of corporate stock is within the statute. De Nunzio v. DeNunzio, 90 Conn. 342, 97 Atl. 323.

Growing crops are within the statute. Md. 447.

Willard v. Higdon, 123

Sale of a house, then a part of the realty, to be removed by the buyer. Held, if title was to pass before severance it was a sale of realty, otherwise of personalty. Fact that buyer is to do the severing is important only in determining the intent as to when title was to pass. Held error to exclude evidence as to such real intent. Wetkopski v. N. H. Gas Co., 88 Conn. 1.

(2.) The provisions of this section apply to every such contract or sale, notwithstanding the goods may be intended to be delivered at some future time or may not at the time of such contract or sale 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; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply.

As to sale of wheat, etc., to be threshed, shucked, or gathered, the Act changes the prior rule and such contracts are now within the statute. Willard v. Higdon, 123 Md. 447.

A contract to manufacture a suit of clothes from cloth of a special pattern is covered by the exception and need not be in writing. Schneider v. Lezinsky, 162 N. Y. S. 769.

Sale of clothing to be made out of existing cloth held not within the statute; the Act was not mentioned. Davis v. Blanchard, 138 N. Y. S. 202.

(3.) There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods.

Acceptance may precede delivery. Laundry Co. v. Whitmore, 92 O. S. 44, dictum.

The Act "seems to separate acceptance from receipt and provide that the former requirement may be satisfied by words or conduct, while the latter presupposes a delivery by the seller and requires some intentional act of receipt on the part of the purchaser." But such actual receipt, whether before or after the acceptance, is essential. Friedman v. Plous, 158 Wis. 435.

Whether or not acceptance and receipt have taken place is a question of fact for the jury. Laundry Co. v. Whitmore, 92 O. S. 44; Friedman v. Plous, 158 Wis. 435, although the finding of the jury may be reversed for lack of evidence.

SUBJECT MATTER OF CONTRACT

Section 5.-Existing and Future Goods.-(1.) The goods which form the subject of a contract to sell may be either existing goods, owned or possessed by the seller, or goods to be manufactured or acquired by the seller after the making of the contract to sell, in this act called "future goods."

(2.) There may be a contract to sell goods, the acquisition of which by the seller depends upon a contingency which may or may not happen.

(3.) Where the parties purport to effect a present sale of future goods, the agreement operates as a contract to sell the goods.

Section 6.-Undivided Shares.-(1.) There may be a contract to sell or a sale of an undivided share of goods. If the parties intend to effect a present sale, the buyer, by force of the agreement, becomes an owner in common with the owner or owners of the remaining shares.

(2.) In the case of fungible goods, there may be a sale of an undivided share of a specific mass, though the seller purports to sell and the buyer to buy a definite num

ber, weight or measure of the goods in the mass, and though the number, weight or measure of the goods in the mass is undetermined. By such a sale the buyer becomes owner in common of such a share of the mass as the number, weight or measure bought bears to the number, weight or measure of the mass. If the mass contains less than the number, weight or measure bought, the buyer becomes the owner of the whole mass and the seller is bound to make good the deficiency from similar goods unless a contrary intent appears.

Section 7.-Destruction of Goods Sold.-(1.) Where the parties purport to sell specific goods, and the goods without the knowledge of the seller have wholly perished at the time when the agreement is made, the agreement is void.

(2.) Where the parties purport to sell specific goods, and the goods without the knowledge of the seller have perished in part or have wholly or in a material part so deteriorated in quality as to be substantially changed in character, the buyer may at his option treat the sale(a.) As avoided, or

(b.) As transferring the property in all of the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the sale was indivisible, or to pay the agreed price for the goods in which the property passes if the sale was divisible.

Section 8.-Destruction of Goods Contracted to be Sold.-(1.) Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault on the part of the seller or the buyer, the goods wholly perish, the contract is thereby avoided.

(2.) Where there is a contract to sell specific goods, and subsequently, but before the risk passes to the buyer, without any fault of the seller or the buyer, part of the

goods perish, or the whole or a material part of the goods so deteriorate in quality as to be substantially changed in character, the buyer may at his option treat the contract

(a.) As avoided, or

(b.) As binding the seller to transfer the property in all of the existing goods or in so much thereof as have not deteriorated, and as binding the buyer to pay the full agreed price if the contract was indivisible, or to pay the agreed price for so much of the goods as the seller, by the buyer's option, is bound to transfer if the contract was divisible.

THE PRICE

Section 9.-Definition and Ascertainment of Price.(1.) The price may be fixed by the contract, or may be left to be fixed in such manner as may be agreed, or it may be determined by the course of dealing between the parties.

(2.) The price may be made payable in any personal property.

(3.) Where transferring or promising to transfer any interest in real estate constitutes the whole or part of the consideration for transferring or for promising to transfer the property in goods, this act shall not apply.

(4.) Where the price is not determined in accordance with the foregoing provisions the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular

case.

Section 10.-Sale at a Valuation.-(1.) Where there is a contract to sell or a sale of goods at a price or on terms to be fixed by a third person, and such third person without fault of the seller or the buyer, cannot or does not fix the price or terms, the contract or the sale is thereby avoided; but if the goods or any part thereof have been delivered to and appropriated by the buyer he must pay a reasonable price therefor.

(2.) Where such third person is prevented from fixing the price or terms by fault of the seller or the buyer, the party not in fault may have such remedies against the party in fault as are allowed by Parts IV and V of this act.

CONDITIONS AND WARRANTIES

Section 11.-Effect of Conditions.—(1.) Where the obligation of either party to a contract to sell or a sale is subject to any condition which is not performed, such party may refuse to proceed with the contract or sale or he may waive performance of the condition. If the other party has promised that the condition should happen or be performed, such first mentioned party may also treat the non-performance of the condition as a breach of warranty.

Seller allowed to refuse delivery of current installments until buyer had paid sums already due according to contract. Nat'l Contracting Co. v. Vulcanite etc. Co., 192 Mass. 247.

Sec. 11 (1), first part, applied, Brought v. Redewell Music Co., 17 Ariz. 393; Potter Press Co. v. Newark Daily etc. Co., 82 N. J. L. 671. Seller is not in default until buyer has performed conditions precedent to seller's liability. Murphy v. Moon Motor Car Co., 131 N. Y. S. 873.

(2.) Where the property in the goods has not passed, the buyer may treat the fulfillment by the seller of his obligation to furnish goods as described and as warranted expressly or by implication in the contract to sell as a condition of the obligation of the buyer to perform his promise to accept and pay for the goods.

Whether or not buyer had reasonable time in which to test the goods left to the jury. Fechteler v. Whittemore, 205 Mass. 6.

Description of cloth to be manufactured identifies the subject matter of the contract and seller can not recover without proof that he tendered cloth conforming to this description. This condition precedent to recovery called a "warranty." Putnam-Hooker Co. v. Hewins, 204 Mass. 426.

Section 12.-Definition of Express Warranty.-Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural