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.

This section takes the place of and repeals the Statute of Frauds (29 Car. 2, c. 3), s. 17, the words in italics shewing the alterations in form: the force of the original remains. "The price," was the word used in the Statute of Frauds, "the value" in Lord Tenterden's Act, which is reproduced in sub-section (2). The word "goods" is defined in section 61.

c. 14, s. 7.]

(2.) The provisions of this section apply to [9 Geo. 4, 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.

These two sub-sections are to be read together. Scott v. E. C. Ry. Co. (1843, 12 M. & W. 33. Per Lord Abinger at p. 38). See also the judgment of Jervis, C.J. in Harman v. Reeve.1

As regards the acceptance and receipt required :

(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 recognises a

N.S.G.

1 18 C. B. 587, 595; 25 L. J. C. P. 257. [1856.]

C

pre-existing contract of sale whether there be an acceptance in performance of the contract or not.

..

"There must be . . . both an acceptance and actual receipt, but such acceptance need not be an absolute acceptance all that is necessary is an acceptance which could not have been made except upon admission that there was a contract, and that the goods were sent to fulfil that contract." Per Brett, M.R., quoting Kibble v. Gough in Page v. Morgan 2; see also Morton v. Tibbett.3 The force of these cases was, however, materially diminished by the later decision of the Court of Appeal in Taylor v. Smith, when the true meaning of "acceptance" was insisted on.

Receipt may take place by actual delivery to the buyer, or to a carrier (who is agent to receive, but not to accept). Cusack v. Robinson; or by attornment, Godts v. Rose; or the seller may hold as bailee for the buyer, Marvin v. Wallis, Castle v. Sworder: or the bailee may hold as owner (Edan v. Dudfield 9).

8

An earnest may be in money or goods, but must be something actually given, and does not form part of the price. See Blenkinsop v. Clayton, 7 Taunt. 597 (1817).

A note or memorandum" must contain a description. of the goods sold (Thornton v. Kempster,10) the names of the parties as buyer and seller (Vandenbergh v. Spooner,11)

1 38 L. T. N. S. 204. [1878.]

2 15 Q. B. D. 228, 230; 54 L. J. Q. B. 434; 53 L. T. 126; 33 W. R. 793. [1885.]

4

15 Q. B. 428; 19 L. J. Q. B. 382; 14 Jur. 669. [1850.]

[1893], 2 Q. B. 65; 61 L. J. Q. B. 331; 40 W. R. 486; 67 L. T. 39. [1892.]

5 1 B. & S. 299; 30 L. J. Q. B. 261; 4 L. T. 506; 7 Jur. N. S. 542; 9 W. R. 735. [1861.]

6 17 C. B. 229; 25 L. J. C. P. 61; 1 Jur. N. S. 1173. [1855.]

7 6 E. & B. 726; 25 L. J. Q. B. 369; Jur. N. S. 689. [1856.]

8 6 H. & N. 828; 30 L. J. Ex. 310; 9 W. R. 697; 8 Jur. N. S. 233;

4 L. T. 865. [1861.]

9 1 Q. B. 302. [1841.]

10 5 Taunt. 786. [1814.]

31 L. R. 1 Ex. 316; 35 L. J. Ex. 201; 14 W. R. 843; 4 H. & C. 519. [1866.]

or sufficient description to identify them (Newell v. Radford),' and the price, if fixed (Elmore v. Kingscote,? Hoadly v. M'Laine,3 Acebal v. Levy); it may be made up of two or more consistent documents referring to each other (Jackson v. Lowe, Allen v. Bennet, Boydell v. Drummond, Smith v. Surman), or to the same parol agreement, where, taken together, they contain.all the terms of the contract (Studds v. Watson); it may be an offer accepted verbally (Reuss v. Picksley),1o or a document never intended to be used as evidence, e.g., a repudiation of the contract, the previous existence of which is thereby confessed (Bailey v. Sweeting, Wilkinson v. Evans,12 per Erle, C.J., Buxton v. Rust,13 per Willes, J.), but it must be made before action (Lucas v. Dixon 14).

In an action against brokers as principals for not accepting goods sold, a memorandum signed by them for our principal," unnamed, was held sufficient to satisfy the Statute of Frauds, when a custom was proved according to which brokers were regarded as principals: Dale v. Humfrey 15 (brokers selling oil). The dissentient judgment of Willes, J., as reported, is not easily intelligible.

The Statute of Frauds, section 17 (goods, wares and

1 L. R. 3 C. P. 52; 37 L. J. C. P. 1; 17 L. T. 118; 16 W. R. 97. [1867.]

5

1 Bing. 9; 7 Moore, 219. [1822.]

6 3 Taunt. 169. [1810.]

7 11 East, 142; 2 Camp. 157. [1809.]

8 9 B. & C. 561; 4 M. & R. 455. [1829.]

928 Ch. D. 305; 54 L. J. Ch. 626; 52 L. T. 129; 33 W. R. 118. [1884.]

10 L. R. 1 Ex. 342; 35 L. J. Ex. 218; 12 Jur. N. S. 628; 15 L. T. 25; 14 W. R. 924; 4 H. & C. 388. [1866.]

11 9 C. B. N. S. 843; 30 L. J. C. P. 150; 9 W. R. 273. [1861.]

12 L. R. 1 C. P. 407; 35 L. J. C. P. 224; 12 Jur. N. S. 600; 14 W. R. 963; 1 H. & R. 552. [1866.]

13 L. R. 7 Ex. 279; 41 L. J. Ex. 1; 26 L. T. 502; 20 W. R. 100. [1872.]

122 Q. B. D. 357; 58 L. J. Q. B. 161; 37 W. R. 270. [1889].

15 E. B. & E. 1004. [1858.]

Existing or future goods

merchandise), did not apply to shares in joint stock banking companies, Humble v. Mitchell:1 railway scrip, Knight v. Barber: 2 foreign stock, Heseltine v. Siggers,3 Pawle v. Gunn : railway shares, Tempest v. Kilner,5 Bowlby v. Bell, Bradley v. Holdsworth : stock in copper mines, Pickering v. Appleby, Nunns v. Scipio.

4

8

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

The Statute of Frauds did 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."

See section 6, infra. If the goods are supposed to be existing," but in reality are not so, at the time when the parties made the bargain, there is no contract; "a person cannot buy anything that has been totally lost." (Per Coleridge, J., Hastie v. Couturier.10)

Example.—The London factors of foreign merchants sold to C. a cargo of corn coming from S. on customary terms; at the time of sale the corn had already been sold

1 11 A. & E. 205; 3 P. & D. 141; 2 Rail. Cas. 70. [1839.]

2 16 M. & W. 66; 10 L. J. Ex. 18; 10 Jur. 929; 2 C. & K. 333. [1846.] 31 Ex. 856; 18 L. J. Ex. 166. [1848.]

4 4 Bing. N. C. 445. [1838.]

5 3 C. B. 249; 3 D. & L. 407; 15 L. J. C. P. 10. [1846.]

6 3 C. B. 284; 16 L. J. C. P. 18. [1846.]

7 3 M. & W. 422; 1 H. & H. 156.

81 Com. [353.]

91 Com. [357.]

[1846.]

10 9 Ex. 110; 22 L. J. Ex. 209; 17 Jur. 1127; 5 H. L. C. 673; 25 L. J.

Ex. 253; 2 Jur. N. S. 1241. [1853.]

damaged at T. C. repudiated the contract. The foreign merchants could not recover against the factors, even on the del credere guarantee. Couturier v. Hastie.1

The goods which form the subject of a charterparty need not, apparently, be existing or future goods, but if a shipowner positively contracts to load a full cargo, and subsequently finds it an impossibility, he cannot plead that "as an unforeseen cause, preventing the completion of the charterparty," but is bound by his contract, Hills v. Sughrue. So, where there was an absolute covenant, by a lessee, to raise a certain quantity of coals in each year, it was held to be no answer that no coals were to be got (Marquis of Bute v. Thompson 3).

future goods.-The dictum of Lord Tenterden (then Abbott, C.J.) in Lorymer v. Smith, that the bargaining to deliver corn not then in possession of the vendor and relying upon making a future purchase in time to fulfil his undertaking was "a mode of dealing not to be encouraged," together with its still stronger expression four years later in Bryan v. Lewis 5 (where it was said that a contract to supply goods to be bought in the market first, and then delivered, "amounts to a wager, and is attended with most mischievous consequences"), was held to be contrary to the law by the judges who decided Hibblewhite v. M'Morine. They laid down the principle, that a contract for the sale of goods to be delivered at a future day is not invalidated by the circumstance that, at the time of the contract, the vendor neither has the goods in his possession, nor has entered into any contract to buy them, nor has any reasonable expectation of becoming possessed of them by the time appointed for delivering them otherwise than by purchasing them after making the contract. Alderson, B., said that if it were otherwise

19 Ex. 110; 22 L. J. Ex. 209; 17 Jur. 1127; 5 H. L. C. 673; 25 L. J. . Ex. 253; 2 Jur. N. S. 1241. [1853.]

2 15 M. & W. 253, 262 (Guano at Ichaboe). [1846.]

3 13 M. & W. 487. [1844.]

4 1 B. & C. 1; 2 D. & R. 23 (wheat by sample). [1822.]

5 Ry. & M. 386 (nutmegs). [1826.]

6 5 M. & W. 462; 2 Rail. Cas. 51 (50 shares B. Ry. Co.). [1839.]