of Mussell v. Cooke, reported in Finch, Prec. 533, (decided in 1720,) and Crull v. Dodson, reported in 2 Eq. Cas. Abr. 51, c. 28, Sel. Cas. Ch. 41 (decided in 1725,) in which the contrary view' was taken. In the case of Pickering v. Appleby, Comyn, 354, this question was fully argued before the 12 judges, who were equally divided upon it. The cases decided in the English courts since 1840 have followed Humble v. Mitchell. They will be found collected in Benj. Sales (Ed. 1888,) in a note on page 106.

In this country a different rule prevails in most of the states. In Baldwin v. Williams, 3 Metc. (Mass.) 365, a parol contract for the sale of a promissory note was held to be within the statute. In Connnecticut and Maine a contract for the sale of shares in a joint-stock company is required to be in writing. North v. Forest, 15 Conn. 400; Pray v. Mitchell, 60 Me. 430. Chief Justice Shaw, after a full discussion of the subject in Tisdale v. Harris, 20 Pick. (Mass.) 9, concludes that a contract for the sale of shares in a manufacturing corporation is a contract for the sale of goods or merchandise within the statute of frauds, and, in the absence of the other requisites of the statute, must be proved by some note or memorandum in writing, signed by the party to be charged or his agent. He did not regard the argument that by necessary implication the statute applies only to goods of which part may be delivered as worthy of much consideration. An animal is not susceptible of part delivery, yet undoubtedly the sale of a horse by parol is within the statute. The exception in the statute is when part is delivered; but, if there cannot be a delivery in part, the exception cannot exist to take the case out of the general prohibition.

Bonds and mortgages were expressly held to be goods and chattels in Terhune v. Bray's Ex'rs, 16 N. J. Law, 53. That was an action of trover for a bond and mortgage. Chief Justice Hornblower, in deciding the case, said that, although the attachment act and letters of administration seem to distinguish between rights and credits and goods and chattels, and although an execution against the latter will not reach bonds and notes, yet there is a sense in which, upon sound legal principles, such securities are goods and chattels. This sense ought to be applied to these words in this case. Reason and sound policy require that contracts in respect to securities for money should be subject to the reasonable restrictions provided by the statute to prevent frauds in the sale of other personal property. The words, "goods, wares, and merchandise," in the sixth section of the statute, are equivalent to the term "personal property," and are intended to include whatever is not embraced by the phrase "lands, tenements, and hereditaments" in the preceding section.

In my judgment, the contract sued upon is within the statute of frauds, and it was error in the court below to refuse to nonsuit."

In Walker v. Supple, 54 Ga. 178 (1875), and French v. Schoonmaker, 69 N. J. Law, 6, 54 Atl. 225 (1903), a sale of a simple contract debt was held

SECTION 2.-"FOR THE PRICE OF £10 OR UPWARDS"

HARMAN v. REEVE.

(Court of Common Pleas, 1856. 25 Law J. C. P. 257.)

The declaration stated that, on the 28th of June, 1855, in consideration that the plaintiff bargained with the defendant to sell, and then sold to him, a certain mare and foal, and that the plaintiff would, at his own expense keep and feed the said mare and foal for a certain time, to wit, until Michaelmas then next ensuing; and that the plaintiff would, at his own expense, maintain, feed, and keep a certain other mare and foal belonging to the defendant for and during the period of six weeks, the defendant agreed to purchase from the plaintiff the mare and foal first mentioned, and to fetch the same away from the plaintiff's at Michaelmas aforesaid, and pay to the plaintiff the sum of £30. Averment of performance by the plaintiff of all things on his part to be performed; and that all things had happened to entitle the plaintiff to have the contract performed on the defendant's part. Breach, that the defendant did not nor would fetch away the mare and foal so agreed to be purchased and fetched away, or either of them, or pay to the plaintiff the said sum of £30. Special damage.

Plea denying the contract.

The cause was tried, before Jervis, C. J., at the last Spring Assizes for Norfolk, when the plaintiff having proved his case as stated in the declaration, it was objected, on behalf of the defendant, that the contract was not in writing, as required by the 17th section of the Statute of Frauds; whereupon his Lordship nonsuited the plaintiff, and reserved leave to him to move to enter a verdict for £30.

to be within the statute. But see Somerby v. Buntin, 118 Mass. 279, 19 Am. Rep. 459 (1875).

As to corporate stock, see Davis Laundry & Cleaning Co. v. Whitmore, 92 Ohio St. 44, 110 N. E. 518, Ann. Cas. 1917C, 988 (1915).

Although money is expressly excluded from the definition of "goods" in both the Sale of Goods Act and the Sales Act, it has been held that a contract to sell Russian banknotes is within the statute. Reisfeld v. Jacobs, 107 Misc. Rep. 1, 176 N. Y. Supp. 223 (1919). But a contract to deliver "a cable transfer of exchange on London, England, in the amount of £20,000 sterling," has been held not to be within the statute; it appearing that the contract was not to sell an existing credit, but to create a credit for the person named. Equitable Trust Co. v. Keene, 232 N. Y. 290, 133 N. E. 894, 19 A. L. R. 1137 (1922). See note, 35 Harv. Law Rev. 772.

For a study of cable or wireless transfers of credit, in general, see Fraenkel, Some Aspects of the Law Relating to Foreign Exchange, 20 Columbia Law Rev. 832.

WOODW.SALES (2D ED.)-43

JERVIS, C. J. I am of opinion that this rule should be discharged. It is now well settled that the 7th section of Lord Tenterden's Act, 9 Geo. IV, c. 14, and the 17th section of the Statute of Frauds are to be read together, and the enactments of the latter statute are extended to all contracts for the sale of goods of the value of £10. and upwards. The effect of that is to substitute the word "value" for the word "price" in the 17th section of the Statute of Frauds, so as to adopt one uniform rule in all cases, and the 17th section must now be read, "no contract for the sale of any goods, &c. of the value of £10. 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," &c. Now, the present is the case of a contract for the sale of goods above the value of £10., for there is no doubt that the plaintiff's mare and foal were worth more than £10.; and although that may not very distinctly appear upon the face of the contract, still it might and would have been shown by parol evidence. Then, it is a contract for the sale of the plaintiff's mare and foal above the value of £10.; and it is not the less so because something else is included in it, and there is no note or memorandum in writing. Prima facie, therefore, the case is within. the statute, the principal subject-matter of the contract being the sale of the plaintiff's mare and foal to the defendant, the rest being merely ancillary to it; but even if this be not so, it is still a contract for the sale of goods above the value of £10., and, as such, I think cannot be enforced.

But then it is argued that there has been an acceptance, which takes the case out of the statute. I think not, for there has been no acceptance of the "goods so sold"-that is, of the plaintiff's mare and foal -but the defendant has had the enjoyment of something else engrafted upon the contract, and that does not satisfy the statute. And there. is no hardship in our so deciding, for the plaintiff is still at liberty to recover for the price of the agistment of the defendant's mare and foal. The answer given to this suggestion by Mr. Couch is, that the plaintiff would not have contracted for the agistment of the defendant's mare and foal, unless the whole contract had been entered into, and that it is unfair that he should recover for part only. But that is a sort of thing that occurs daily. I agree to let a house to a man for a term of years, and he enters under the promise of a lease and occupies for a year, when I sue him for use and occupation. It would be no answer for him to say, "I should not have entered at all, unless you had agreed to grant me a lease." If entitled to a lease, it is his own fault if he does not get it; and it is no reason because, by his own fault, he has failed to get all he was entitled to, that he should not pay for what he has had.

In this case the plaintiff may recover for the agistment of the defendant's mare and foal when he properly sues for it; but he cannot re

cover the price of his own mare and foal. "It by no means follows," as said by Bayley, B., "because you cannot sustain a contract in the whole, you cannot sustain it in part, provided your declaration be so framed as to meet the proof of that part of the contract which is good."

Rule discharged.10

WEEKS v. CRIE et al.

(Supreme Judicial Court of Maine, 1900. 94 Me. 458, 48 Atl. 107, 80 Am. St. Rep. 410.)

Assumpsit to recover damages for nondelivery of a quantity of fish, which the plaintiff alleged he purchased of the defendants under an oral contract. The defendants denied the contract, and invoked the statute of frauds.11

SAVAGE, J. At the trial of this case the plaintiff claimed, and introduced evidence tending to show, that the defendants in November, 1898, orally agreed to sell him from three to five hundred drums of hake at $1.65 per kentle, to be delivered at Rockland when called for by him, and at the same interview agreed to sell him ten barrels of split herring at $4.25 per barrel, to be delivered in Rockland by next boat from Criehaven, which would be within one week; that he (the plaintiff) orally agreed with the defendants to purchase the hake and the herring upon these terms. It was admitted by the defendants that they sold the herring to the plaintiff as claimed, and that they were delivered according to the agreement, and paid for by the plaintiff. The plaintiff in January, 1899, demanded 300 drums of hake to be delivered in accordance with the alleged agreement, but the defendants refused to deliver them; and to recover damages for that alleged breach of contract this action was brought.

The defendants denied that they agreed to sell any hake to the plaintiff. But the jury, under instructions to which no exceptions were taken, have found they did make such a contract. In this contingency the defendants claim that, if any such contract of sale was made, it was oral merely, and being for more than $30, it was invalid under the statute of frauds. The case shows that no memorandum was made. and nothing was given in earnest to bind the bargain; and the defendants claim that no part of the goods sold were accepted and received by the purchaser, so as to bind the defendants to deliver the hake. *

10 Concurring opinions were delivered by Williams and Crowder, JJ. 11 The statement of facts is abridged and part of the opinion is omitted.

The plaintiff, however, contends that the contracts for the hake and the herring constituted in fact but one entire contract for hake and herring, and that his acceptance and receipt of the herring, a part of the merchandise contracted for, took the sale out of the statute as to the whole. The defendants admit the "delivery" of the herring, and we understand from that admission that they also admit that the herring were accepted and received by the plaintiff. The phrase "delivered by the seller" is frequently used in such cases in the sense of "accepted and received by the purchaser," and not unnaturally, for a receipt by the purchaser necessarily presupposes a delivery by the seller. This is not entirely accurate, however, for the statute makes acceptance and receipt by the purchaser the test of the removal of the statutory bar.

Now, if there were two separate contracts of sale, one for the herring and one for the hake, it is clear that the acceptance and receipt of the herring did not take the contract for the hake out of the statute, for an acceptance under one contract cannot make another contract valid. But if there was in fact only one contract, for both herring and hake, negotiated for, it may be, successively, a delivery followed by an acceptance and receipt of the herring did take the hake out of the statute. It is unquestionably the law in such case that an acceptance and receipt of part of the articles purchased, or of all of one class of articles purchased, necessarily takes the whole contract out of the statute. Elliott v. Thomas, 3 Mees. & W. 170. So that, if the contract in this case was single and entire, it was proper for the presiding justice to rule that the delivery of the herring took the hake out of the statute. For, although the question whether there is an acceptance and receipt under the contract is ordinarily for the jury, yet in this case the admission that the herring was so accepted carried with it, necessarily, the contract as to the hake, provided only that it was a single contract. There was nothing left on this point for the jury to decide.

But this conclusion follows only upon the assumption that there was but a single contract. The application of the statute of frauds in case of the purchase of a number of articles at the same transaction may depend upon whether there is one contract or more. The mere fact that a separate price is agreed upon for each article, or even that each article is laid aside as purchased, makes no difference, so long as the different purchases are so connected in time or place, or in the conduct of the parties, that the whole may be fairly considered as one transaction. Browne, St. Frauds, § 314; Baldey v. Parker, 2 Barn. & C. 37; Scott v. Railway Co., 12 Mees. & W. 33. Such is the common case of a number of articles purchased at private sale of a shopman, for instance. at the same time, though at separate prices. Browne, St. Frauds, §§ 335, 336. The same doctrine was applied in a case where the parties made bargains for the purchase and sale of several lots of