223 Pa. 554, 72 Atl. 885; Holloway v. Frick, 149 Pa. 178, 24 Atl. 201; Grace Contracting Co. v. N. & W. Ry. Co., 259 Pa. 241, 102 Atl. 956; Reber v. Brownback, 27 Pa. Super. Ct. 471. Plaintiff, while conceding the rule, contends that it does not apply here because of the first clause of section 4 of the Sales Act of May 19, 1915 (P. L. 543), Purdon's Digest (13th Ed.) vol. 6, p. 7473, viz.: "A contract to sell or a sale of any goods or choses in action of the value of five hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf."

True, thereunder a mere parol contract for the sale of goods to the value of $500 or upwards, without more, is not enforceable, but the act points out three ways by either of which it may be validated: (a) An acceptance and actual receipt by the purchaser of a part of the goods contracted for; (b) the giving of something in earnest to bind the bargain or in part payment; or (c) a memorandum in writing of the sale signed by the party to be charged therewith. Hence a parol contract of sale when part of the goods have been accepted or part of the consideration paid is just as enforceable as a written contract. Here defendant's offer was to prove, not only that the written contract had been modified by the parol contract, but also that for seven months thereafter the coke had been delivered, accepted, and paid for under the latter; if so, it would be valid, although not in writing. Of course, the burden was upon the defendant to prove, by evidence convincing to the jury, the alleged parol contract (Achenbach v. Stoddard, 253 Pa. 338, 98 Atl. 604; and see Malone & Son v. Railroad Co., 157 Pa. 430, 27 Atl. 756), and that it had been in part performed.

Had the new contract been put in writing no one could question its validity, for parties may change or rescind their contracts at pleasure, and yet when part performed a verbal contract for sale of goods has, under the statute, the same force as a written one. The consideration for the modified, as well as for the original, contract, was the mutual obligations of the parties thereunder. Flannery v. Wessels, 244 Pa. 321, 324, 90 Atl. 715; Flegal v. Hoover, 156 Pa. 276, 280, 27 Atl. 162; Wilgus v. Whitehead, 89 Pa. 131, 133; Carrier v. Dilworth, 59 Pa. 406, 410. The contract embraced a specified amount of coke, but the parties by valid agreement could change that amount as they saw fit. It is not like the case of an agreement to discharge the whole of an admitted indebtedness by part payment, for here plaintiff was required to pay for the coke actually received at so much per ton. Defendant's offer to prove that during the seven months plaintiff bought other coke of him, at the market price, was relevant only as tending to show a modification of the original contract. Of course, where the statute not only requires the original contract, but any modification thereof, to

be in writing (Musselman v. Stoner, 31 Pa. 265; Malone et al. v. Philadelphia, 147 Pa. 416, 23 Atl. 628; Espy v. Anderson, 14 Pa. 318), it must be complied with; but here there is no such requirement. What defendant offered to prove would have been in form sufficient as an original contract of sale, and certainly would have no less an effect in modifying such a contract.

Under the statute of frauds, every contract for sale of real estate must be in writing, and thereunder it has been held that a new contract modifying such written contract must also be in writing; otherwise the statute would be evaded, and a party rendered liable on a parol contract for sale of land. But as to sales of personal property, the statute above quoted is entirely different. That clause was copied from section 17 of the English statute of frauds, and a like provision has long been incorporated in the statutes of many states, and has frequently been before the courts, as indicated by the numerous decisions called to our attention. Appellee cites cases holding that a written contract for sale of goods cannot be modified by parol; but an examination thereof generally shows that nothing was paid or done pursuant to the new parol contract. That is notably so in the leading case of Willis v. Fields, 132 Ga. 242, 63 S. E. 828; and Rucker v. Harrington, 52 Mo. App. 481, also relied upon, was an attempt to set up a parol modification of a written contract for sale of land.

On the other hand, following the plain language of the statute, it is well settled that part performance will validate a parol contract for sale of personalty. Garfield v. Paris, 96 U. S. 557, 24 L. Ed. 821; Mills v. Hunt, 20 Wend. (N. Y.) 431; Riley et al. v. Bancroft's Estate, 51 Neb. 864, 71 N. W. 745; Hollrah-Dieckmann R. & F. Co. v. St. Louis, H. & W. Co., 186 Mo. App. 207, 171 S. W. 576; Gault, Brown & Co. v. Brown et al., 48 N. H. 183, 2 Am. Rep. 210; Richardson v. Squires, 37 Vt. 640; Swigart v. McGee, 19 Ark. 473. "The statute of frauds affects the remedy and not the validity of the contract, and if there is a completed oral contract of the sale of goods, the acceptance and receipt of part of the goods by the purchaser takes the case out of the statute." Smith on the Law of Frauds, § 378. See, also, Williston on Sales, §§ 73 & 94.

The judgment is reversed, and a venire facias de novo awarded.

SALE OF GOODS ACT

AN ACT FOR CODIFYING THE LAW RELATING TO THE SALE OF GOODS

[Chapter 71 of 56 & 57 Victoria, February 20, 1894.]

PART I

FORMATION OF THE CONTRACT

Contract of Sale

1.—(1.) A contract of sale of goods is a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a money consideration, called the price. There may be a contract of sale between one part-owner and another.

(2.) A contract of sale may be absolute or conditional.

(3.) Where under a contract of sale the property in the goods is transferred from the seller to the buyer the contract is called a sale; but where the transfer of the property in the goods is to take place at a future time or subject to some condition thereafter to be fulfilled, the contract is called an agreement to sell.

(4.) An agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.

2. Capacity to buy and sell is regulated by the general law concerning capacity to contract, and to transfer and acquire property.

Provided that where necessaries are sold and delivered to an infant, or minor, or to a person who by reason of mental incapacity or drunkenness is incompetent to contract, he must pay a reasonable price therefor.

Necessaries in this section mean goods suitable to the condition in life of such infant or minor or other person, and to his actual requirements at the time of the sale and delivery.

Formalities of the Contract

3. Subject to the provisions of this Act and of any statute in that behalf, a contract of 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 implied from the conduct of the parties.

Provided that nothing in this section shall affect the law relating to corporations.

4.-(1.) A contract for the sale of any goods of the value of ten pounds or upwards shall not be enforceable by action unless the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract be made and signed by the party to be charged or his agent in that behalf.

(2.) The provisions of this section apply to every such contract, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract 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.

(3.) There is an acceptance of goods within the meaning of this section when the buyer does any act in relation to the goods which recognizes a preexisting contract of sale whether there be an acceptance in performance of the contract or not.

(4.) The provisions of this section do not apply to Scotland.

Subject-Matter of Contract

5.-(1.) The goods which form the subject of a contract of sale 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 of sale, in this Act called "future goods."

(2.) There may be a contract for the sale of goods, the acquisition of which by the seller depends upon a contingency which may or may not happen. (3.) Where by a contract of sale the seller purports to effect a present sale of future goods, the contract operates as an agreement to sell the goods.

6. Where there is a contract for the sale of specific goods, and the goods without the knowledge of the seller have perished at the time when the contract is made, the contract is void.

7. Where there is an agreement to sell specific goods, and subsequently the goods, without any fault on the part of the seller or buyer, perish before the risk passes to the buyer, the agreement is thereby avoided.

The Price

8.-(1.) The price in a contract of sale may be fixed by the contract, or may be left to be fixed in manner thereby agreed, or may be determined by the course of dealing between the parties.

(2.) 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.

9.-(1.) Where there is an agreement to sell goods on the terms that the price is to be fixed by the valuation of a third party, and such third party cannot or does not make such valuation, the agreement is avoided; provided that 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 party is prevented from making the valuation by the fault of the seller or buyer, the party not in fault may maintain an action for damages against the party in fault.

Conditions and Warranties

10.-(1.) Unless a different intention appears from the terms of the contract, stipulations as to time of payment are not deemed to be of the essence of a contract of sale. Whether any other stipulation as to time is of the essence of the contract or not depends on the terms of the contract.

(2.) In a contract of sale "month" means prima facie calendar month. 11.-(1.) In England or Ireland

(a.) Where a contract of sale is subject to any condition to be fulfilled by the seller the buyer may waive the condition, or may elect to treat the breach