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C. 381; S. C. 9 Sc. C. of Sess. Cases, 1847, p. 1407; Harris's case, L. R., 7 Ch. 587; Household, &c. Insur. Co. v. Grant, 4 Ex. D. 216, C. A., overruling, British & American Telegraph Co. v. Colson, L. R., 6 Ex. 108; see also 2 Ap. Ca. 692, per Ld. Blackburn. The acceptance must be unconditional in order to bind the party offering. Chaplin v. Clarke, 4 Exch. 403. If, therefore, the acceptance introduce any variation, there is no contract, unless there be evidence of assent by the other party to the alteration, either express or implied. Illustrations of this rule will be found in Wontner v. Shairp, 4 C. B. 404; Duke v. Andrews, 2 Exch. 290; Cheveley v. Fuller, 13 C. B. 122; Hutton v. Upfill, 2 H. L. C. 674; Barker v. Allan, 5 H. & N. 61; 29 L. J., Ex. 100; Appleby v. Johnson, L. R., 9 C. P. 158. See further on the making, accepting, and retractation of offers, cases cited ante, pp. 287, et seq. A tender to supply goods at specified prices, followed by an order for a specified quantity of such goods, constitutes a valid contract. Gt. N. Ry. Co. v. Witham, L. R., 9 C. P. 16. A mere mental assent to the terms of a proposed contract is not binding, but acting on those terms, may amount to evidence of the adoption of the contract. Metropolitan Ry. Co. v. Broyden, 2 Ap. Ca. 666, D. P. Where the contract is entered into by telegram, the sender is not liable for a mistake of the telegraph clerk in sending the message. Henkel v. Pape, L. R., 6 Ex. 7.

In an action for not accepting goods sold, the plaintiff may be put to proof of the contract, the performance of all conditions precedent on his part, the refusal to receive, and the amount of damage.

It is most commonly in an action for not accepting that the question as to the validity of contract of sale without writing arises, although it occurs in other actions, &c. The principal decisions on the Stat. of Frauds, so far as relates to contracts not to be performed within a year, and for the sale of goods and merchandise, therefore may be collected here.

The contract-Stat. of Frauds, s. 4.] By the Stat. of Frauds, 29 Car. 2, c. 3, s. 4, no action shall be brought whereby to charge any person "upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised."

Contracts within the Stat. of Frauds, s. 4.] Sect. 4 applies "to contracts the complete performance of which is of necessity extended beyond the space of a year." "Where the agreement distinctly shows, upon the face of it, that the parties contemplated its performance to extend over a greater space of time than one year, the case is within the statute; but that where the contract is such, that the whole may be performed within a year, and there is no express stipulation to the contrary, the statute does not apply;" per Tindal, C. J., Souch v. Strawbridge, 2 C. B. 815; Boydell v. Drummond, 11 East, 142; Knowlman v. Bluett, L. R., 9 Ex. 1, 307, Ex. Ch., 1 Smith's Lead. Cas., notes to Peter v. Compton.

An agreement to serve for 70l. the first year, 901. the second, and so on, is within the section, and requires a writing; and such writing cannot be explained by showing a contemporary or subsequent agreement to pay the salary quarterly. Giraud v. Richmond, 2 C. B. 835. An agreement by a company that E. "shall be the solicitor to the company," "and shall not be removed from his office except for misconduct," is within the section. Eley v. Positive Assur. Co., 1 Ex. D. 20; affirm. on another ground, Id. 88, C. A. So, is an agreement that S. should not carry on a certain trade. Davey v. Shannon, 4 Ex. D. 81.

The Contract.-Contracts within Statute of Frauds.

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A contract for a year's service, to commence on a subsequent day, is within the section. Bracegirdle v. Heald, 1 B. & A. 722; Snelling v. Huntingfield, Ld., 1 C. M. & R. 20; Britain v. Rossiter, 11 Q. B. D. 123, C. A. ; unless perhaps, if the service is to begin on the next day. Id. 125; Cawthorn v. Cordrey, infra. The contract is within the statute, although the service is subject to be determined by a notice within the year. Dobson v. Collis, 1 H. & N. 81; 25 L. J., Ex. 267. A contract not enforceable, because of the statute, is an existing contract, and a fresh contract cannot be implied from acts done in pursuance of it. Britain v. Rossiter, supra; but, where A. orally agreed to serve B. for a year, the service to commence on a subsequent day; and A. entered upon the service upon the day named, and B. paid him wages on account; it was held that the jury might infer a new implied contract from that day. Cawthorn v. Cordrey, 13 C. B., N. S. 406; 32 L. J., C. P. 152.

The section applies only to contracts which are not to be performed on either side within the year. Bracegirdle v. Heald, supra; Donellan v. Read, 3 B. & Ad. 899. If all that is to be done by one party, as the consideration for the promise of the other, can be done within the year, it is not within the section. S. C.; Smith v. Neale, 2 C. B., N. S. 67; 26 L. J., C. P. 143. The doctrine of part performance vide ante, p. 291, applies only to contracts relating to land. Britain v. Rossiter, supra. See also Caton v. Caton, L. R., 2 H. L. 136, 137.

Where in a contract, between the plaintiff and the defendant, one of several terms to be performed by the defendant falls within the section, the contract cannot be enforced; but if the entire work be done under the contract by the plaintiff, and accepted by the defendant, the plaintiff can recover on a quantum meruit, without before action electing to abandon the contract. Savage v. Canning, I. R., 1 C. L. 134, C. P.; following Gray v. Hill, Ry. & M. 420; and see per cur., Teal v. Auty, 2 B. & B. 99; Harman v. Reeve, 18 C. B. 587; 25 L. J., C. P. 257. Where there was a contract for 24 numbers of a periodical work, to be delivered monthly at 21s. a number, it was held that the plaintiff might sue for the price of the numbers actually delivered, the defendant having refused to accept the remainder. Mavor v. Pyne, 3 Bing. 285. See Knowlman v. Bluett, L. R., 9 Ex. 1, 307, Ex. Ch.

The consideration must appear in the memorandum, at least by necessary inference. Wain v. Warlters, 5 East, 10. See further as to the sufficiency of the memorandum, ante, pp. 287, et seq., and post, p. 475.

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The contract. Stat. of Frauds, s. 17.] By sect. 17 (sect. 16 in Stat. of the Realm), no contract for the sale of any goods, wares, or merchandises for the price of 101. sterling 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 of 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 authorised."

Contracts within the Stat. of Frauds, s. 17.] Where the subject-matter of the contract did not exist in esse, and was therefore incapable of delivery and of part acceptance, at the time of the bargain, it was held not to be within the statute. Groves v. Buck, 3 M. & S. 178. But, now by Ld. Tenterden's Act (9 Geo. 4, c. 14), s. 7, the above provision of the Stat. of Frauds "shall extend to all contracts for the sale of goods of the value of 10l. sterling and upwards, notwithstanding 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." The effect of this last act is to substitute the word "value" for "price' in the Stat. of Frauds, s. 17, and both acts are now construed together. Scott v. E. Counties Ry. Co., 12 M. & W. 33, 38; Harman v. Reeve, ante, p. 469.

Executory contracts relating to goods in esse, are within the Stat. of Frauds, s. 17, and were so held before Ld. Tenterden's Act. Rondeau v. Wyatt, 2 H. Bl. 63. So, sales by auction are within the section. Kenworthy v. Schofield, 2 B. & C. 945. A sale of shares of a joint-stock banking company is not within sect. 17. Humble v. Mitchell, 11 Ad. & E. 205. Nor, of shares in a canal company. Latham v. Barber, 6 T. R. 76. Nor, of railway shares. Bowlby v. Bell, 3 C. B. 284; Tempest v. Kilner, 3 C. B. 249. Nor, of shares in a mining company. Watson v. Spratley, 10 Exch. 222; 24 L. J., Ex. 53. Nor, is a sale or contract to deliver foreign stock, consisting of bonds and certificates. Heseltine v. Siggers, 1 Exch. 856; see post, p. 512. Sales of timber and growing crops, where they are not an "interest in land" within sect. 4, may be within sect. 17. See the cases cited ante, pp. 285, et seq., and also the cases under the third exemption from the Stamp Act as to agreements, ante, p. 222. Trees lying felled are within sect. 17. Acraman v. Morrice, 8 C. B. 449. A contract for work and labour, as an agreement by a printer to print a book, although it involves finding materials, is not within sect. 17; Clay v. Yates, 1 H. & N. 73; 25 L. J., Ex. 237. But a contract to make a set of artificial teeth to fit the mouth of the employer is a contract for the sale of a chattel, and therefore within the section; Lee v. Griffin, 1 B. & S. 272; 30 L. J., Q. B. 252. If the substance of the contract be goods to be sold and delivered by the one party to the other, it is within the section. S. C.; Atkinson v. Bell, 8 B. & C. 277 ; Grafton v. Armitage, 2 C. B. 336. A sale is not less within the statute because it also includes an exchange; Bach v. Owen, 5 T. R. 409; or, a collateral agreement touching the thing sold; Harman v. Reeve, 18 C. B. 587; 25 L. J., C. P. 257. The plaintiff agreed to sell a horse to defendant, and to agist the horse sold, and also another horse of the defendant for a fixed time, and defendant was to pay 301.; it was held, in an action for non-payment, that the contract was within sect. 17, the horse sold being shown to be of the value of 107. S. C.

Acceptance and receipt within the Stat. of Frauds, s. 17.] Where goods above the value of 101. have been sold, and there is no note or memorandum in writing, and no earnest has been given or payment made, then there must be a delivery of the goods by the vendor with an intention of vesting the right of possession in the vendee, and there must be an actual acceptance by the latter with the intention of taking to the possession as owner; per cur. Phillips v. Bistolli, 2 B. & C. 513. Acceptance without a delivery is insufficient, for the words are "accept and actually receive;” but the acceptance may be prior to the actual receipt, and need not be contemporaneous with or subsequent to it. Cusack v. Robinson, 1 B. & S. 299; 30 L. J., Q. B. 261; Kershaw v. Ogden, 3 H. & C. 717; 34 L. J., Ex. 159; post, p. 473; Morton v. Tibbett, 15 Q. B. 429; 19 L. J., Q. B. 382. Where the vendee ordered the goods to be marked while in the hands of the vendor's agent, and to be sent to a certain place, the sale was held to be insufficient without writing; Bill v. Bament, 9 M. & W. 36; and see Saunders v. Topp, 4 Exch. 390; for there can be no acceptance and receipt by the purchaser while the lien of the vendor remains, for the vendor's lien necessarily supposes that he retains possession of the goods. Morton v. Tibbett, supra; Carter v. Toussaint, Baldey v. Parker, and other cases, post, pp. 471, 472, et seq.

Acceptance and Receipt within Statute of Frauds, s. 17. 471

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Bulk samples were sent to the vendee by coach, pursuant to the contract, but he returned them as not answering to the samples shown to him when he bought the jury in an action for the price of the goods found that the samples did answer the contract: held that there was no acceptance. Johnson v. Dodgson, 2 M. & W. 653. It has been thought that there is not a sufficient acceptance so long as the buyer continues to have a right to object either to the quantity or the quality of the goods. Hanson v. Armitage, 5 B. & A. 559; Smith v. Surman, 9 B. & C. 561. This has, indeed, been directly denied, as a test in Morton v. Tibbett, ante, p. 470; while in Hunt v. Hecht, 8 Exch. 814, it was held that there is no acceptance (although there may be a receipt) unless the vendee has had an opportunity of judging whether the article corresponds with the order; and in Smith v. Hudson, infra, it was held that the acceptance must be made with the consent of the vendor. As an acceptance of a part, however small, of articles sold by a single oral contract lets in the oral terms of the entire bargain (Elliott v. Thomas, 3 M. & W. 170), it should seem that there certainly may be an acceptance without an opportunity of examining the whole; though the buyer may, of course, reject the residue if it does not correspond with the part received; for this he may do when the contract is a written one. See Morton v. Tibbett, ante, p. 470, and the judgment there; and see Cunliffe v. Harrison, 6 Exch. 903; 20 L. J., Ex. 325. There may be delivery to and acceptance of the goods by the vendee, so as to satisfy the statute, although it may still be open to him to dispute the terms of the contract as alleged by the vendor. Tomkinson v. Staight, 17 C. B. 697; 25 L. J., C. P. 85. And it would seem that though the purchaser has used more of the goods than (in the opinion of the jury) was necessary for the purpose of trying experiments to ascertain their quality, this does not necessarily amount to an acceptance. Elliott v. Thomas, supra; Curtis v. Pugh, 10 Q. B. 111.

Where the defendant bought of the plaintiff's agent 12 bushels of tares, part of a larger quantity in bulk, and the agent measured the 12 bushels and set them apart for the vendee to remain till called for, it was held that there was no acceptance. Howe v. Palmer, 3 B. & A. 321. So, where goods were sent by a vendor to a railway station, consigned to the order of the vendee, the property in the goods, whilst they were lying at the station waiting the order of the vendee, and before any order given or any other act done by him constituting an acceptance, was held not to pass to the vendee. Smith v. Hudson, 6 B. & S. 431; 34 L. J., Q. B. 145. So, where A. agreed to purchase a horse from B. for ready money, and to take him within a time agreed upon, and about the expiration of that time A. rode the horse by way of trial, and gave directions as to its treatment, &c., but requested that it might remain in B,'s possession for a further time, at the expiration of which he promised to fetch it away and pay the price; these circumstances were held not to constitute an acceptance. Tempest v. Fitzgerald, 3 B. & A. 680. A horse was sold, and no time fixed for payment, and the horse was to remain with the vendors for 20 days without any charge to the vendee, at the expiration of which time the horse was sent to grass by the direction of the vendee, and by his desire entered as the horse of one of the vendors: it was held that there was no acceptance, as the vendor's possession and lien still remained. Carter v. Toussaint, 5 B. & A. 855; accord. Holmes v. Hoskins, 9 Exch. 753. A delivery of goods to a wharfinger or agent, who has been accustomed to forward goods from the plaintiff to the defendant, and a delivery by him to the carrier, is not an acceptance, the carrier having no authority, though named by the vendee, to accept the goods for him, but only to receive them for the purpose of being carried. Hanson v. Armitage, 5 B. & A. 557; Meredith v. Meigh 2 E. & B. 364; 22 L. J., Q. B. 401. So, where goods, bought abroad, were de

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livered at a foreign port, on board a ship chartered by the purchaser, this was held to be no acceptance. Acebal v. Levy, 10 Bing. 376. So, where the purchaser appointed the mode in which the goods should be conveyed, and directed a third person, in whose possession the goods temporarily were, to see them delivered and measured and put up properly, and they were accordingly sent to another warehouse of the vendor, where the clerk gave an invoice to the purchaser, who did not pay for the goods, but the same day gave notice that he would not accept them, these circumstances were held not to amount to an acceptance. Astey v. Emery, 4 M. & S. 262. The same principle was recognised in the following case: A. went to the shop of B., and contracted for the purchase of various articles, each of which was under the value of 10l., but the whole amounted to 70l. A separate price for each article was agreed upon. Some A. marked, others were measured in his presence, and others he assisted in cutting from larger bulks. He then desired that an account of the whole might be sent to his house, and went away; a bill of parcels was accordingly sent, together with the goods, which A. refused to accept. It was held that this was all one contract, and therefore within the Stat. of Frauds, and that there was no acceptance and actual receipt. Baldey v. Parker, 2 B. & C. 37. Upon a sale of specific goods for a specific price, by parting with the possession the seller parts with his lien. The statute contemplates such a parting with the possession, and therefore as long as the seller preserves his control over the goods so as to retain his lien, he prevents the vendee from accepting and receiving them as his own within the meaning of the statute." S. C., Id., p. 44, per Holroyd, J., cited with approval, per cur., in Cusack v. Robinson, 1 B. & S. 308; 30 L. J., Q. B. 264, post, p. 473. So, where a hogshead of wine in the warehouse of the London Dock Company was sold for 137., and a delivery order given to the vendee, but there was no assent on the part of the Dock Company to hold the wine as the agents of the vendee, it was held that there was no actual receipt within the statute. Bentall v. Burn, 3 B. & C. 423; Farina v. Home, 16 M. & W. 119. Where A. employed B. to construct a waggon, and while it was in B.'s yard unfinished, A. employed a third person to fix upon it some iron work and a tilt, it was held that this did not amount to an acceptance; but per Tindal, C.J., it might perhaps have been otherwise, if these acts had been done after the waggon was completed. Maberley v. Sheppard, 10 Bing. 99. Where the goods were sent with an invoice, and the vendee declined to receive them of the carrier, who kept them for a month, and until the end of that time the vendee, who had received the invoice, did not communicate with the vendor, it was held that there was not sufficient evidence of acceptance to justify a jury in finding one. Norman v. Phillips, 14 M. & W. 277. Where the consignee of goods, sold by sample, sent for a bulk sample on their arrival at the carrier's warehouse, but refused to remove the bulk in order to favour the right of stoppage in transitu, though the goods did, in fact, answer the sample: held that, assuming the transitus to be ended, there was yet no acceptance. Nicholson v. Bower, 1 E. & E. 172; 28 L. J., Q. B. 97; but see Cusack v. Robinson, post, p. 473; and Heinekey v. Earle, 8 E. & B. 428 ; 28 L. J., Q. B. 79, Ex. Ch.

There may, however, be a constructive acceptance by acquiescence. Thus, where the goods were sent by a named carrier, and a letter of advice was forwarded to the vendee stating that the credit was three months, and the goods, after arrival, were seen by him in the warehouse of the carrier, when he told the carrier that he refused to take them, but made no communication whatever to the vendor till after five months; it was held that this was evidence to be left to the jury of acceptance and actual receipt. Bushel v. Wheeler, 15 Q. B. 442. In another case, where wheat was sent by a carrier

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