timber at different places, some miles apart; the bargains being made at the different places and at separate prices, but all on the same day. Biggs v. Whisking, 14 C. B. 195. Such purchases may be regarded as entire, though composed of separate parts.

But whether such negotiations for separate articles result in one entire contract for the whole, or whether the contract for each remains separate and distinct, may depend upon many circumstances. It raises a question of fact properly to be passed upon by a jury. Were the transactions near in time or place or similar in circumstances? What was the conduct of the parties? Was the seller a merchant engaged in the regular course of his business in his shop or store? What was the language used? What are the proper inferences to be drawn as to the intention of the parties? The answers to these and other like questions solve the problem. If the circumstances are such as to lead to a reasonable supposition that the parties intended that the whole series of transactions should constitute one trade, they may be regarded as one entire contract; otherwise, not.

Now, in the case at bar, the jury were instructed, in effect, that, if the two contracts for sale were made at the same interview, that would be sufficient. We think this ruling was erroneous. Even if there were no other facts or circumstances to be considered, which is hardly supposable, it cannot be said, as a matter of law, that the mere fact that ́ the negotiations for the herring and the hake were made at the same interview resulted in a single contract. They may have constituted one contract only, and they may not. If not, then the hake were not taken out of the statute by the acceptance of the herring. Whether the negotiations constituted one contract or more was a question of fact, and should have been submitted to the jury. Exceptions sustained.12

12 As to successive sales of several articles or lots to one purchaser by auction, compare Emerson v. Heelis, 2 Taunt. 38 (1809), and Jenness v. Wendell, 51 N. H. 63, 12 Am. Rep. 48 (1871).

SECTION 3. "SHALL BE ALLOWED TO BE GOOD"

MAHAN v. UNITED STATES.

(Supreme Court of United States, 1872. 16 Wall. 143, 21 L. Ed. 307.)

Appeal from the Court of Claims; the case as found by that court, from the evidence, being thus:

One Mitchell, of Mississippi, being indebted to his step-daughter, of whose estate he had been the guardian, mortgaged, with his wife (the mother of the step-daughter mentioned), a life estate which the wife had in a valuable cotton farm in Mississippi, near the river of that name; and soon afterwards died. Mrs. Mitchell, his widow, became administratrix of his estate. In 1861 the rebellion broke out. There were at this time one hundred and sixteen bales of cotton on the farm; and the war being flagrant in Mississippi, the Confederate general ordered all cotton near the river, under penalty of being burnt, to be removed from it, in order to prevent its capture by the forces of the United States.

In compliance with this order, Mrs. Mitchell removed the cotton to Kingston, near Natchez, where it was stacked and covered. "After the cotton had been thus removed to Kingston, but before the capture of Natchez by the United States forces, and before the passage of the Abandoned and Captured Property Act, a parol agreement was made between Mrs. Mitchell and her daughter, now like herself a widow, to the effect that the latter should take the cotton as a payment upon the mortgage before described. The price was fixed at twenty cents per pound, but the number of pounds was not definitely ascertained, neither was any payment indorsed upon the mortgage, nor any receipt given, nor any memorandum in writing made, nor any present consideration paid. Neither did any change of possession take place, nor was there any delivery, actual or symbolic. The cotton remained at Kingston until its seizure by the military forces of the United States, immediately upon which the daughter asserted that she was the owner, and sought to procure its release."

Not succeeding in this, and the cotton being sold, and the Captured and Abandoned Property Act being passed, which allowed loyal owners of property captured in the South and so disposed of, to apply to the Court of Claims for the proceeds, the daughter (now re-married to one Mahan) filed with her husband a petition in the court just named, to have the money which, on sale of it, the cotton had brought. The Court of Claims said:

"The party relies upon a purchase and sale at which, so far as the evidence shows, she paid no money, relinquished no rights, released no debt, assumed no responsibility, and acquired no possession. The

intent of the parties was not evidenced by the payment of the purchase-money, nor by the ascertainment of the price, nor by a receipt upon the mortgage, nor by a written memorandum between the parties, nor by any formal or decisive declaration before witnesses, nor by the delivery of the thing sold. The facts do not, in law, establish a sale and delivery, and the evidence to prove the ownership of the captured property fails."

The court accordingly dismissed the petition, and from that dismissal this appeal came.

Mr. Justice MILLER. The sole question in the case is, whether the appellant was the owner of the cotton at the time of its seizure by the agents of the United States, and this must be decided as a matter of law on the finding of facts made by the Court of Claims, notwithstanding the frequent reference by the counsel of the appellant to the view which he takes of the evidence given in that court.

It is strongly urged by the counsel that, by the common law, the facts as found by the court, constituted a valid sale of the property, and that, as there was no statute of frauds in force in the State of Mississippi requiring delivery or a written memorandum to make a sale of personal property valid, the parol agreement set out in this finding constituted a valid sale. Whether this would be so in the absence of such a statute as most of the States have on that subject, might admit of serious debate.

But, while there is no such provision in the authorized publication of the statutes of Mississippi of 1840 by Howard and Hutchinson, to which we have been referred, we find in the Revised Code of Mississippi of 1857, which, from our own researches, we are bound to believe was the law in force when this agreement was made, a very stringent provision on this subject in the statute of frauds and perjuries of that code.

Article 4 of chapter 44 (pages 359) enacts that no contract for the sale of any slaves, personal property, goods, wares, and merchandise for the price of fifty dollars or upwards shall be allowed to be good and valid, except the buyer shall receive the slaves, or part of the personal property, goods, wares, and merchandise, or shall actually pay or secure the purchase-money, or part thereof, or unless some note or memorandum in writing of the bargain be made and signed by the party to be charged by such contract or his agent thereunto lawfully authorized.

The finding of the Court of Claims negatives in the most express terms the existence in the agreement, by which the title of the cotton was supposed to be transferred, of each and every one of the acts or conditions, some one of which is by that statute made necessary to the validity of the contract.

To hold that an agreement which the statute declares shall not be allowed to be good and valid was sufficient to transfer the title of the

property to the claimant, would be to overrule the uniform construction of this or a similar clause in all statutes of frauds by all the courts which have construed them.

The Court of Claims held that the agreement passed no title, and we concur in their conclusion on that subject.

It is unnecessary to examine into the effect of the transaction as a gift inter vivos. The finding that there was no delivery would be as fatal to such a gift as to the agreement of sale. Besides there is nothing in the petition of the plaintiff, or in the findings of the Court of Claims, on which such a gift could be considered as in the issue. The finding that it was a parol contract of sale is directly opposed to the idea of a gift.

Decree affirmed.18

13 Compare Briggs v. United States, 143 U. S. 346, 12 Sup. Ct. 391, 36 L. Ed. 180. (1892).

In Waite v. McKelvy, 71 Minn. 167, 73 N. W. 727 (1898), which was an action to recover possession of a carload of wheat and other grain, formerly the property of the plaintiff's son, but sold to the plaintiff, as she claimed, before it was levied upon by the defendant, as sheriff, by virtue of a writ of attachment issued against the son, the court said "that the rule, relied on by the plaintiff, to the effect that the defense of the statute of frauds is personal to the parties to the verbal contract, and cannot be invoked by third parties, has no application to this case, for the defendant, as sheriff, has, by virtue of his levy, all of the title and right to the property that the seller had, if any, at the time the levy was made. If the verbal contract had not been so far performed as to satisfy the statute, the verbal contract was, in the language of our statute, void, and no title passed to the buyer as against the sheriff. To permit the parties to the verbal contract, after the levy, to waive the statute would encourage perjuries, and, as was said in Ely v. Ormsby, 12 Barb. (N. Y.) 570, 'open wide the doors for frauds, and be a very convenient method of enabling a party to put off his creditors.' This proposition is supported by the commanding weight of authority. The adjudged cases on the question are collected and analyzed in Browne, St. Frauds (5th Ed.) pp. 173-178. The author, however, while admitting that the rule that where there has been no satisfaction of the statute up to the time when the right or liability of a third party accrues, the verbal contract cannot be enforced, is strongly sustained by authority, questions it on principle, on the ground 'that the statute does not make the contract void, but only allows a defense to its enforcement, which defense is personal to the defendant, and may be waived by him.' It is to be noted, in this connection, that the original statute, and that of several of the states, unlike our own, do not declare the verbal contract void, but provide that no such contract shall be allowed to be good' except the statute is satisfied. Order reversed, and a new trial granted."

'AMSINCK et al. v. AMERICAN INS. CO.

SAME v. BOYLSTON MUT. INS. CO.

SAME v. NEW ENGLAND MUT. INS. CO.

(Supreme Judicial Court of Massachusetts, 1880. 129 Mass. 185.) Three actions of contract upon policies of marine insurance. At the trial in this court, before Morton, J., the jury returned a verdict. for the plaintiffs; the case was reported for the consideration of the full court, and appears in the opinion.

ENDICOTT, J. Upon the facts reported, the court is of opinion that Machado had an insurable interest in the vessel at the time the policies attached, even if we assume that they took effect on July 5, 1876, the day of their date. On that day, the plaintiffs, as agents for Machado, made an oral agreement in New York with the owners of the vessel for her purchase for the sum of $11,000, payable on delivery of a proper bill of sale; and, having previously ascertained. that the defendants would insure her, they gave directions to have the insurance closed. The policies were written on that day; the precise time of their delivery does not appear. The oral contract to purchase was reduced to writing and signed by the plaintiffs and the owners on July 7; and a portion of the purchase money was paid on that day. Possession was taken by Machado, the balance due was paid, and a bill of sale was duly executed to a third person in trust for Machado, who was a foreigner.

It is conceded by the defendants that Machado was the only person whose interest was insured, as appears by the declarations and the policies. But they contend that he had no insurable interest on July 5, for at that time he had only an oral contract for the purchase of the vessel; and that such a contract, being within the statute of frauds, and incapable of being enforced, gives no insurable interest.

But the oral contract to purchase was not void or illegal by reason of the statute of frauds. Indeed, the statute presupposes an existing lawful contract; it affects the remedy only as between the parties, and not the validity of the contract itself; and where the contract has actually been performed, even as between the parties themselves, it stands unaffected by the statute. It is therefore to be "treated as a valid subsisting contract when it comes in question between other parties for purposes other than a recovery upon it." Townsend v. Hargraves, 118 Mass. 325, 336; Cahill v. Bigelow, 18 Pick. 369; Beal v. Brown, 13 Allen, 114; Norton v. Simonds, 124 Mass. 19. See, also, Stone v. Dennison, 13 Pick. 1, 23 Am. Dec. 654. Machado had under his oral agreement an interest in the vessel, and would have suffered a loss by her injury or destruction. Eastern Railroad 14 Part of the opinion is omitted.