1819.

Weightman

V.

Caldwell.

plaintiff had an interest in the said cargo, and that the defendant never demanded of the plaintiff any written assignment of his share of the said cargo, then the statute of frauds is no bar to the plaintiff's recovery, and that the said note is not, by reason of the said statute, void, as being given without consideration.

Taking the charge prayed for, and the charge given, together they appear to make out the following case : The defendant moved the Court to instruct the jury that the note which was he cause of action, was void for want of consideration; inasmuch as it was given in compliance with an agreement signed by one party, and not the other, and which being unattended with any actual delivery of the article sold, was, as he contended, void under the statute of frauds. The Court, without denying the principles laid down by the defendant, submit the whole case to the jury, and instruct them, that upon that evidence they were at liberty to infer an actual execution of the agreement by both parties, and thus take the case entirely out of the operation of the statute of frauds. Under this construction of the bill of exceptions, for it must, like all other instruments, be the subject of construction, we are decidedly of opinion, that the judgment below must be affirmed. Whether right or wrong, the defendant had all the benefit of the law that his case admitted of, and, therefore, this Court is not called upon to express a judgment on its correctness. The Court below were clearly right in submitting the question of execution to the jury. If there had ever been a doubt

entertained on this point it is now removed by numerous adjudications.

Judgment affirmed."

a The 17th section of the statute of frauds, 29 Car. II. c. 3. which has been incorporated into the laws of most of the States, provides, "that no contract for the sale of any goods, wares, and merchandizes, for the price of 10 pounds or upwards, shall be good, except the buyer shall accept part of the goods, 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 bargain be made and signed by the parties to be charged by the contract, or their agents thereunto lawfully authorized."

[That no contract for the sale, &c.] It was formerly supposed, that executory contracts, (that is, where time is given for the delivery of the goods,) were not within this section of the statute; but that it only related to executed contracts, or where the goods were to be delivered immediately after the sale. Towers v. Osborne, Str. 506. Clayton v. Andrews, 4 Burr. 2101. But this distinction has been since exploded; and it is now settled, that where the goods bargained for are complete, and existing in solido, ready for delivery at the time of the contract, it is within the statute; but that where they are not complete and ready for delivery, but are either to be made, or work and labour is required to be done, and materials found, in order to put them into the state in which they are contracted to be sold, such a contract is out of the statute, and need not be in writing. Rondeau v. Wyatt, 2 H. Bl. 63. Bennett v. Hull, 10 Johns. Rep. 364. Groves v. Duck, 3 Maule & Selw. 178. Cooper v. Elston, 7 T. R. 14.

[Of any goods, wares, and merchandizes, &c.] Quære, whether shares of a company or public stock, are comprehended under the words "goods, wares, and merchandizes." Pickering v. Appleby, Com. R. 354. Mussell v. Cooke, Prec. in Chan. 533. Rob. on Frauds, 185. Colt v. Netterville, 2 P. Wins. 307. This point appears never to have been decided.

1819.

Weightman

V.

Caldwell:

1819.

[Except the buyer shall accept part of the goods, and actually receive the same, &c.] A delivery without an ultimate acceptWeightman ance, and such as completely affirms the contract, is not suffiCaldwell. cient. Kent v. Huskinson, 3 Bos. & Pull. 233. Where the goods are ponderous, or from some other circumstance incapable of being immediately handed over from one to another, there need not be an actual acceptance of the goods by the vendee, but a symbolical delivery will be sufficient to dispense with a written agreement signed by the parties. Searle v. Keeves, 2 Esp. N. P. C. 598. Anderson v. Scott, 1 Camp. N. P. 235. note. Chaplin v. Rogers, 1 East, 195. Hinde v. Whitehouse, 7 East, 558. Elmore v. Stone, 1 Taunt. 458. Vide ante, vol. I. 84. note d. And in the sale of a ship or goods at sea, (like the principal case in the text,) the delivery is always by such symbolical means as the circumstances allow. Ex parte Matthews, 2 Ves. 272. Atkinson v. Maling, 2 T. R.

p.

462. Ex parte Batson, 3 Bro. Ch. Cas. 362. So, if the purchaser deals with the commodity as if it were in his actual possession, it is considered as an acceptance. Chaplin v. Rogers, 1 East, 192. And it is no objection to a constructive delivery of goods, that it is made by words parcel of the parol contract of sale. If, therefore, a man bargain for the purchase of goods, and desire the vendor to keep them in possession for a special purpose for the vendee, and the vendor accept the order, it is a sufficient delivery within the statute of frauds. Elmore v. Stone, 1 Taunt. 458. But the delivery of a sample, if it be considered as no part of the bulk, is not a delivery within the statute. Cooper v. Elston, 7 T. R. 14. But if the sample be delivered as a part of the bulk, it then binds the contract. Talver v. West, 1 Holt's R. 178. And quare, whether part per

formance of the agreement will take the case out of the statute at law? There is a dictum to that effect by Mr. Justice Buller, in Brodie v. St. Paul, 1 Ves. jun. 433. ; but it is denied by Lord ELDON, in Cooth v. Jackson, 6 Ves. 39., and by Mr. Chief Justice (now Chancellor) KENT, in Jackson v. Pierce, 2 Johns: Rep. 224; and the principle is considered as applicable in a Court of Equity only. But in the principal case in the text there was a complete execution of the agreement, as far as

practicable, the goods being at sea, and only capable of a sym- 1819. bolical delivery.

[Or give something in earnest to bind the bargain, or in part payment.] Where the defendant, on the purchase of a horse, offered the plaintiff's servant a shilling to bind the bargain, which was returned; this was held not to be a sufficient compliance with the statute. Blenkinsop v. Clayton, 1 B. Moore's R. 328.

[Or that some note or memorandum in writing of the bargain be made, &c.] Under the 4th section of the statute, which provides that no action shall be brought in certain cases, 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 authorized," it has been held, in a celebrated case, that the term " agreement" includes the consideration upon which the promise is founded, and that, therefore, it is necessary the consideration should be expressed upon the face of the written memorandum. Wain v. Warlters, 5 East, 10. S. P. Sears v. Brink, 3 Johns. Rep. 210. But this strictness of construction is not applied to a contract for the sale of goods under the 17th section, the word "bargain" being there substituted for agreement, and it is thus distinguished from the 4th section. Egerton v. Matthews, 6 East, 307. Indeed, the case of Wain v. Warlters itself has been questioned by high judicial authority, (per Lord ELDON, ex parte Minet, 14 Ves. 189., and ex parte Gordon, 15 Ves. 286.) and by very eminent elementary writers. Roberts on Frauds, 117. note 58. Fell on Mercantile Guaranties, 246. Appendix No. IV. And it manifestly did not meet the approbation of Lord Chief Justice GIBBS, in Minis v. Stacey, (1 Holt's R. 153.) who said, "I do not think it necessary in this case to overrule the decision in Waine v. Warlters." It is also doubted by Mr. Chief Justice PARSONS, in Hunt v. Adamson, 5 Mas. R. 358. It has been expressly held, that no engagement need appear on the face of the memorandum in writing, on the part of the person to whom the promise is made, to do that which is the consideration for the other party's promise. In other words, the mutuality of the con

Weightman

V.

Caldwell.

1819.

V.

tract need not appear on the face of the memorandum. It is sufficient that the party to whom the promise is made, in point Weightman of fact, does that which is the consideration for the other parCaldwell. ty's undertaking. Stapp v. Lill, Camp. N. P. 242. Egerton v. Matthews, 6 East, 307. And in the principal case in the text, (Weightman v. Caldwell,) the actual performance of that which was the consideration of the other party's undertaking, was properly left by the Court to the jury, as a question of fact. Printing or writing with a lead pencil, is a sufficient writing within the statute. Saunderson v. Jackson, 2 Bos. & Pull. 238. Clason v. Bailey, 14 Johns. Rep. 484. Merrit v. Clason, 12 Johns. Rep. 102. A letter, by whomsoever written, and to whomsoever addressed, if written by the assent of one party, for the purpose of being communicated, and actually communicated to the other, is a note or memorandum in writing, within the statute. Moore v. Hart, 2 Ch. Rep. 147. 1 Vern. 110. Hodgson v. Hutchinson, 5 Vin. 522. Coleman v. Upcott, 5 Vin. 527. Wankford v. Fotherly, 2 Vern. 322. But a letter not written to be communicated to the other party, nor actually communicated to him, is not a sufficient note or memorandum. Ayliff v. Tracy, 2 P. Wms. 65. If, however, the letter set forth the terms of an agreement, and recognize it as already actually concluded by the party, although not written to the other party, or with a view of being communicated to him, it is sufficient. Welford v. Beazeley, 3 Atk. 503. Although the letter itself does not state the terms of the agreement, yet if it refers to another paper that does, and the letter is signed by the party to be charged, it is sufficient. Saunderson v. Jackson, 2 Bos. & Pul. 238. Tawney v. Crowther, 3 Bro. Ch. Cas. 161. 318. Clinan v. Cooke, 1 Scho. & Lefr. 22. Nor is it material, whether the party writing the letter intended to recognize the previous written agreement. It is sufficient if he does in fact recognize it as a past transaction. Saunderson v. Jackson, 2 Bos. & Pul. 238. Coles v. Trecothick, 9 Ves. 234. 250. But either the letter, or the writing it refers to, must contain the terms of the agreement; and it is not sufficient that they merely recognize that there was some agreement. Clark v. Wright, 1 Atk. 12. Rose v. Cunningham, 11 Ves. 550. Parkhurst v.