In Higgins v. Kusterer,39 the facts were as follows: Ice had formed upon water which had spread over a spot of low ground partly belonging to one Henry Coats, who, by a parol bargain, sold the ice to Higgins for fifty cents. The parties at the time stood near by in view of the ice, and the quantity sold was pointed out and the money paid. The ice was then all uncut.

About two weeks later a man named Loder, knowing that Higgins had purchased and claimed the ice, and having been warned thereof by Coats, offered Coats five dollars for the ice, which Coats accepted. Loder cut the ice and sold it to Kusterer, who had previously made a verbal contract with him for it. Higgins was present when the ice was loaded on Kusterer's sleigh, and forbade the loading and removal on the ground that he had purchased it from Coats, who said he had sold it to Loder. The only question presented was whether Higgins was owner of the ice. The court said:

"The ephemeral character of ice renders it incapable of any permanent, beneficial use as part of the soil, and it is only valuable when it is removed from its original place. Its connection, if its position in the water can be called a connection, is neither organic nor lasting. Its removal or disappearance can take nothing from the land. It can only be used and sold as personalty and its use only tends to its immediate destruction. We think that it should be dealt with in law according to its uses in fact, and that any sale of ice ready formed, as a distinct commodity, should be held a sale of personalty, whether in the water or out of the water."

§ 31. Fixtures. By fixtures are meant articles originally personal property, which by annexation to realty have come to be regarded as realty. It is frequently a difficult question to determine whether an article has ceased to be personalty or not. Permanent annexations to the land such as buildings, fences, furnaces, water and gas pipes built into a house, are fixtures that cannot be removed.

39 41 Mich. 318.

Buildings on temporary foundations, machinery, counters, book-cases, shelving, engines, have been held to be removable fixtures, and hence, personalty and subject-matter of a sale. It is vital in cases of sales of removable fixtures, that the articles if owned by a tenant should be severed before the expiration of the tenancy, if that can be done without serious injury to the premises.

Fixtures used in husbandry and trade are treated by the courts as personal fixtures if annexed by a tenant for the purpose of his business or calling, and may be severed and sold by the tenant before or at the expiration of his term.

§ 32. Effect of Destruction of Subject-Matter. In an action40 brought to recover damages for a breach of a contract to sell and deliver cotton, it appeared that defendants, on the fifth day of October, 1865, at the city of New York, agreed to sell and deliver to the plaintiff 607 bales of cotton, bearing certain marks and numbers, specified in the contract, at the price of forty-nine cents per pound, and fourteen bales, bearing marks and numbers, at the price of forty-three cents per pound, the cotton to be paid for on delivery. Defendants delivered to the plaintiff 460 bales of the said cotton; the remaining 161 bales were accidentally destroyed by fire without fault or negligence of the defendants. Cotton rose in value after the sale, and plaintiff sued to recover the increase on the 161 bales. Upon this state of facts the court, through Church, C. J., said:

"This action was brought by the purchaser against the vendor to recover damages for the non-delivery of the cotton, and the important and only question in the case is, whether upon an agreement for the sale and delivery of specific articles of personal property, under circumstances where the title to the property does not vest in the vendee, and the property is destroyed by an accidental fire before delivery without the fault of the seller, the latter is liable upon the contract for damages sustained by the purchaser.

"The contract was executory, and various things remained to be done to the 161 bales in question by the 40 Dexter v. Norton, 47 N. Y. 62.

sellers before delivery. The title, therefore, did not pass to the vendee, but remained in the vendor.

"The general rule on this subject is well established, that where the performance of a duty or charge created by law is prevented by inevitable accident without the fault of the party he will be excused, but where a person absolutely contracts to do a certain thing not impossible or unlawful at the time, he will not be excused from the obligations of the contract unless the performance is made unlawful, or is prevented by the other party."

If A agrees to sell a number of tons of hay, intending to take it from a particular lot but without any understanding with the other party on this point, and the hay is destroyed while in his possession, he is nevertheless obliged to perform the contract. Any other ten tons of hay of equal quality will do.41

41 Anderson v. May, 50 Minn. 280, 52 N. W. 530.

CHAPTER III

STATUTE OF FRAUDS

§ 33. Historical. At common law a contract of sale could be oral or in writing. Such is the rule at the present time, in the absence of statutory provision to the contrary. Section three of the Uniform Sales Act provides that "subject to the provisions in this act, and of any statute in that behalf, a contract to sell or a sale may be made in writing (either with or without seal), or by word of mouth, or partly in writing and partly by word of mouth, or may be inferred from the conduct of the parties." This was substantially the rule at common law, and continued to be the rule in England down to the time of the adoption of the Statute of Frauds, passed in the twenty-ninth year of Charles II. The object of this statute was to prevent the committing of frauds and perjuries in connection with transactions affecting chiefly transfers of property. Under the common law the parties to a contract were not competent as witnesses in any subsequent litigation arising between them. Consequently, it was not unusual for parties to a law suit, either to prove or to defend their side of the case, to summon as witnesses friends and dependents who testified as of their own knowledge to matters originally within the knowledge only of the parties themselves. These witnesses testified in many cases to being present at transactions where only the parties to the action were present. The purpose was to bring before the jury evidence which the parties themselves were not allowed to testify to. The statute was intended to lessen litigation, but it is a question if it has not caused more litigation than it has prevented. The number of cases brought under the Statute of Frauds to obtain an interpretation and construction of its different provisions would fill many vol

44

umes. It has never found favor in the business world, and its operation has been restricted by the policy of technical interpretation of the courts.

The fourth and seventeenth sections of this historic statute have been enacted in many States of the Union, generally with some modifications. The seventeenth section is the law in about two-thirds of the United States, and reads as follows:

"And, be it enacted, that from and after the said four and twentieth day of June (1677), no contract for the sale of any goods, wares, or merchandise, for the price of ten pounds sterling or upward, 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 seventeenth section is unlike the fourth section in one noticeable particular. The fourth section declares that "no action shall be brought on any contract, unless the terms of the statute are complied with." In other words, it makes the contract voidable, but not void. The seventeenth section, on the contrary, distinctly declares that no contract "shall be allowed to be good, which is in violation of the conditions of this section;" therefore such a contract would be void, apparently; but it has been interpreted and construed by the courts to mean the same as the fourth section, namely, that the contract shall be voidable only.

Section four of the Uniform Sales Act is the same as this section except that it makes the value of the goods $500 and includes choses in action (e. g., a promissory note) as well as goods, wares, and merchandise, within its provisions; and in section 2 the act is made applicable not only to goods in existence but to future goods, that is, to goods not yet manufactured or in a deliverable condition. In the States which in the main follow the English Statute, the value of the goods runs from $30 up.