A set of letters between the purchaser and his agent, which, as a whole, set out all the terms of the contract, is a sufficient memorandum, within the statute (46). It is not necessary that the party making the memorandum should intend it to be one; often his intention is decidedly otherwise. Even a letter expressly repudiating the transaction, but sufficiently setting forth its terms, is a sufficient memorandum of the bargain (47). It may be contained in telegrams, although the message which is actually delivered is not signed by the other party. The memorandum must either be some writing, which contains the terms of the contract, or connected with some other writing which does. If the terms of the bargain are contained in some other document, it must be sufficiently connected by reference with the writing which is signed, to make it a part of it. "When it is proposed to prove the existence of a contract by several documents, it must appear upon the face of the agreement signed by the party to be charged that reference is made to another document; and this omission cannot be supplied by parol evidence. If, however, it appears from the instrument itself that another document is referred to, that document may be identified by parol evidence" (48).

§ 27. Verbal alteration of contract. Contents of memorandum. A contract for the sale of goods once made and the statute complied with cannot be varied by a verbal

(46) Gibson v. Holland, 1 C. P., 1.

(47) Bailey v. Sweeting, 30 L. J. Rep. C. P., 150.

(48) Long v. Millar, 4 Com. Pl. Div., 450; Beckwith v. Talbot, 95 U. S., 289.

agreement which changes its terms, as an extension of the time of delivery. A new contract is not made, since the statute is not complied with by the requisite note or memorandum, and the old contract was not intended to be rescinded by a new one which is invalid (49). An oral rescission of the whole contract, intended as such, however, is valid (49a).

The memorandum must contain the names of both the buyer and the seller (50). It is sufficient if it can be shown that it was understood by the parties themselves; and it may be shown by other evidence who was the buyer and who the seller (51). The memorandum must be sufficient to show the material terms of the bargain, including generally a description of the goods sold, sufficient to identify them with certainty, the parties to the transaction and the price. In some states it is expressly declared in the statute that the consideration must be named in the memorandum. In a large number, probably a majority of the states, it is held that the consideration must be stated, but many states hold otherwise, and in some states, by statute, the consideration need not be stated.

§ 28. Signing memorandum by agents. The agent must be some third person, and cannot be the other contracting party (52). One agent, however, may act for

(49) Noble v. Ward, L. R., 2 Exch., 135.

(49a) Goss v. Lord Nugent, 5 B. & Ad. 58, 66.

(50)

Champion v. Plummer, 1 New Rep., 252; Grafton v. Cummings, 99 U. S., 100.

(51)

Newell v. Radford, L. R., 3 Com. Pl., 52.

(52) Wright v. Dannah, 2 Campbell, 203.

both parties. An auctioneer, while he is the agent of the seller in accepting bids and thus completing the contract, may act as the agent of the buyer in signing the memorandum required by the statute of frauds. Where the parties to the contract deal through a broker and know that he is acting in his capacity as such, he has authority to bind them both by making a memorandum of the contract in writing, and signing it in their behalf respectively (53). The broker may make the memorandum in his own book, and, when bought and sold notes are delivered to the parties, the entry in the broker's book is original evidence of the contract (54). It is not necessary that the authority of the agent be in writing. He may be appointed by parol, unless the statute specifies that his appointment be evidenced by a writing.

(53) Coddington v. Goddard, 16 Gray, 436.
(54) Slevewright v. Archibald, 17 Q. B., 103.

CHAPTER III.

SUBJECT-MATTER OF CONTRACT. PRICE.

§ 29. Sale of future goods: Seller with potential interest. In order to have a valid sale of goods, in which case the title to the goods passes to the seller, the subjectmatter of the sale must be in existence and owned by the seller. One cannot sell goods in which one has no property interest at the time of the sale. One may sell goods in which one has a potential interest, that is, a present interest in the property of which the thing sold is the product or growth or increase; thus, a man may sell the wool to be grown upon his own sheep, or the crops to be grown upon his own land, or the offspring of animals of which he is the present owner; but not the wool to be grown upon the sheep of another; or the crops to be grown upon land in which he has no present interest; or the offspring of animals which he does not own.

In the case of a sale of goods having a potential existence, the property vests in the buyer as soon as it comes into existence, without any act on the part of either the buyer or the seller. In Hull v. Hull (1), the owner sold to the superintendent of his farm two mares, and agreed that the mares and their offspring might be kept upon his farm, at his expense, as compensation to the pur

(1) 48 Conn., 250.

chaser for services as superintendent of his farm.

As the possession of the mares was kept by the seller, it may be that, under a principle which we shall consider later (§ 77), the title to the mares did not pass, except as between the parties and those having notice. But, even if title to the mares did not pass, it was held that the title to the colts vested in the purchaser at the time they came into existence. The title to the colts could vest in the purchaser only on the ground that title passes to things in potential existence. As between the parties, the title passed to the mares; and title to the colts passed, good against all the world.

§ 30. Same: Seller with no interest. The seller, at the time of the sale, must have an interest, actual or potential, in the thing sold. A mere possibility and expectancy, coupled with no present interest, is not sufficient. In Low v. Pew (2), fishermen sold their catch of halibut before the fishing voyage was made, at a certain price per pound, and $1500 was paid down by the purchaser. Before the return of the ship, the fishermen became bankrupt, and, on the return of the ship, the assignees took possession. The purchaser replevied $1500 worth of fish, and offered to buy the rest at the same price. It was held that the purchaser took nothing by the sale. Fish to be caught are not the subject of sale. It was intended as a present sale and not an executory agreement to sell at some future day.

Most of the authorities upon the question of the control (2) 108 Mass., 347.