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HINDE versus

did so in this case. The counsel for the defendant 1806. objected that there was not a sufficient memorandum in writing signed by the parties, under the statute of frauds to make the sale valid; the memorandum being Watt made by the broker only and not by the defendant or any authorised agent of his; and contended, that the sugars were not at the risk of the defendant : that the memorandum did not contain all the conditions which were on a separate paper. There was, however, a verdict for the plaintiff', and a rule being obtained, lo shew cause why the verdict should not be set aside, for a misdirection of the learned judge in point of law.

PARK, Topping, and Scarlett, for the plaintiff, now shewed cause. The case of Simon v. Motivos * is precisely the same case with this; and Lord Mans. field then said that the inclination of his opinion was, that auctions were not at all within the statute : that the ceremony of weighing out, to bind the bargain, in the Roman law, was similar to the solennity of a sale by auction.

Lord ELLENBOROUGH, C. J. “What written evidence is there to lead him from the catalogue to the conditions ? The catalogue is only “to be sold by auction ;” but it is not said according to certain conditions in a paper to be produced at the time; if they were pinned together, there would be a clear union, and the memorandum of the sale might be said to contain the terms of the sale. A sale by auction is a case of all others in which the stalute ought to have its operation. I am convinced of this from my experience, of the manner of conducting such sules, as we see every day at the sittings.”

LAWRENCE, J. “ Considering what we hear from

* i Sir Il'. Blu. 599, 3 Burr, 1991,

HINDE versus

1806. auctioneers, this is the very thing which we ought to

be protected against. A man in a pulpit commends the

thing which he is to sell most extravagantly, and states WOITEHOI SE.

a pamber of terms which are never introduced into bis conditions or his description of the thing in his cata. logue.”

Lord ELLENBOROUGH, C. J. “To support this as an agreement within the statute of frauds, you must go the length of saying, that where the sale is by a middle-man, there can be no danger of perjury, and it must be without the statule of frauds."

Park then cited a case at the last sittings, in which Lord ELLENBOROUGH, C.J. bad ruled, that where some casks of wine continued in the custody of the seller, and were not to be delivered for a week, and the buyer was to write a note when to be delivered, the merely putting A Won a cask of wine with chalk,by the foreman of the defendant, was held a sufficient delivery.

Lord ELLENBOROUGH, C. J. “That recognises the delivery.

Park. “ This is also a part delivery. The plaintif cannot make out the invoice till the buyer says, whether he will take them at the king's weights or not; or whether he takes them at the re-weighing. In Hanson v. Meyer,* and all the cases of partial delivery, it has been held, that the contract is complete when the vendee has receiverla part and ascertained the price. There the party agreed to buy all the starch in a certain warehouse, but the exact weight was not ascertained, and it was held that until it was ascertained, in order to know the price, there was no delivery, but here the weight is ascertained. Here also the date counecis ile catalogue and the conditions. Even a will is good though the sheets he not all fastened together, but the sheets connect the

East. 514. Smilla's Rep.

HINDE

one with the other and there is one sheet only signed. 1806. The conditions of sale are dated the 20th of Sep'ember, they are entitled "conditions of sugar sale, versus

WHITEHOUSE 20th September,' and it does not appear that there was iny other sale on the same day.

Lord ELLENBOROUGH, C. J.“ To be sold on the 20th of September, is the description in the catalogue, but that does not shew that the conditions were written on the same day: “To be sold by auction at Whitehouse and Sill's office, for particulars apply to Mr. T. Hinde, merchant, or to Whitehouse and Sill the brokers. This paper is therefore prospective, and the conditions of the sale must necessarily be prior to sale, so that without reference in the latter paper there is nothing to connect it with the former bul parol evidence. "

Gibbs and HOLROYn, contrà. .“ In Simson v. Moti. cos, Lord Mansfield considers a sale of goods by auction as not within the statute of frauds, both on account of the publicity of the thing, and of the auctioneer being the agent of both parties : But the publicity cannot take it out of the statute, nor can the auctioneer be considered as the agent of the purchaser, for he is employed and paid by the seller.

It has been held that this supposed exception in favour of a sale by auction does not extend to sales of lands, under the 3d section. This question indeed arises upon the 17th but the words are very similar as to the signing of the agreement. In Stuns ield v. Johnson, after Hilary Term, 34 Geo. III.* Eyre, C. J. held it within the statute of frauds as to land ; and there is no difference as to the two clauses in setse. He therefore in effect, though not in terms, decided against Simon v. Motivos + A sale according to these conditions, is no more than if it was entirely without writing by the auctioneer ; be repeated inese conditions at ihe

* 1 Esp. X.P.C. 101. + See also 7 Vezpy, Jun. 3+5.

1806.

HINDE tersus

auction and the catalogue merely states the thing to be sold ; that cannot refer to the conditions, and even

if the date be stated, and if the conditions are signed HITEHOUSE. the same day it will be immaterial.”

Lord ELLENBOROUGH, C. J. “ There is no date or signature, and both of them, the conditions and the catalogue, are before the auction.

Gibbs. “ As to the past delivery, the exception in the act is unless the buyer accept a part of the · goods so sold and actually receives the same;" but · how can this be considered as a part of the goods sold? It was delivered as a sample and not as a part of the goods. The seller also was to pay the duties, on the thing delivered, before the delivery, the whole commodity therefore is sugar, upon which a duty is to be paid, but upon these samples no duty is paid. In order to make the delivery of part binding, it must be a substantial part delivered as a part of the thing; but if a man takes a sınall sample of linen, a small strip, that is not delivered : neither are these samples of sugar as the substance of the thing sold ; but they were merely to enable the parties to shew it to others, as a sample of the goods.”

They, therefore, again contended that a nousuit should be entered or a new trial had.

Cur. adv. tult.

And, now the judgment of the court was delivered to the following effect, by

Lord ELLENBOROUGH, C.J. - This is a sale by auction of sugars burnt in the king's warehouses, while under the king's lockers for the payment of the duties; and the questionis whether after the sale, they became the gouds of the purchaser ? They were put up on the 20111 of September 1805, according to the conditious of sale entitled sugar sale 2011 September, but there

1806. Herne

versus HITEH GUSE.

were other conditions, which regarded the payment of the duties which were read at the time of the sale. The fire happened on the 22d, and it is admitted that there were no laches in the nonpayment of the duties, between the time of sale and the fire. Two questions arise on the stat, of frauds, s. 17. One of which depends upon the consideracion, whether what has passed is a valid contract of sale with respect to the terins of that section? The first question arises on the latter words of the statute, and that question is whether the writing put in the catalogue of the sale can be considered as a note or memorandum in writing within the meaning of the statute. The second question is whether this is a case in which the buyer can be said to have accepted part of the goods sold, and to have received the same. Paramount this question, it has been argued that sales of goods by auction, are not within this clause at all : and for this purpose Simon v. Motivos, has been cited, which is reported in 3 Burr, 1921, and also in 1 Black. 599; but in the latier report there are some particulars, as to the grounds of the opinions of the judges, which are not mentioned in the former. Lord Mansfield says the solemnity of that kind of sale, precludes all perjury in the fact itself of the sale, and according to the inclination of his then present opinion sales by auction were not within the statute ; and Mr. Justice Wilmot inclined to think sales by auction openly transacted before 500 people were not within the statute, which was meant to be applied only to clandestine sales. But, with all due deference to such high autho. rities, I do not feel that any reason exists in these cases to dispense with the requisitions of the statute. Shall they be excepted, merely because the quantum of parol evidence is likely to render the danger of perjury less ? That argument applies to all sales in market overt; and if you once get rid of the statute, in respect to sales by auction, on this account, it must

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