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The contract, must, however, be stated with reasonable certainty, so that it can be understood from the writing itself, without having recourse to parol proof.* Unless the essential terms of the sale can be ascertained from the writing itself, or by a reference contained in it to something else, the writing is not a compliance with the statute; and if the agreement be thus defective, it cannot be supplied by parol proof, for that would at once introduce all the mischiefs which the statute of frauds and perjuries was intended to prevent.1'
C. 190. Saunderson v. Jackson, 2 Boa. Pull. 238. Schneider v. Morris, 2 Mauls 4 - Still. 286. Clason v. Bailey, 14 John: Rep. 484. Thornton v. Kempster, 5 Taunt. Rep. 786. Penniman v. Hartshorn, 13 Mass. Rep. 87.
• Bailey & Bogart v. Ogdens, 3 Johns. Rep. 399. Champion v. Plnmmer, 4 Bos. <J. Pull. 252. Elmore v. Kingscote, 5 Barnw. <J• Cress. 583. If a bill of parcels be delivered to, and accepted by the purchaser, with his name in it, from the commission merchant, it is a sufficient memorandum of the sale of the goods within the statute of frauds. Batturs v. Sellers, 5 Harr. Johns. 117. But a written agreement may be waived, and the terms of it varied by a subsequent parol agreement, for that becomes a new subsequent contract. Thomas v. Currie, Brevard's M. S. Rep. cited in Rice's Dig. tit. Agreement, sec. 117. Neil v. Cheves, J Bait S. C. Rep. 537. In Langford v. Cummings, 4 Alabama R. N. S. 49, it was declared that either the time or the place of performance fixed in a written contract, may be changed or modified by a subsequent parol agreement. A mutual promise by parol, may be waived and the party discharged by parol, before any breach. King v. Gillett, 7 M. <J- W. 55. Medomak Bank v. Curtis, 24 Maine Rep. 36.
b Parkhurst v. Van Cortland, 1 Johns. Ch. Rep. 280, 281. Abeel v. Radeliff, 13 Johns. Rep. 297. Vide supra, p. 493. It was held, in the cases of Towers v. Osborne, Sir. Rep. 506, and Clayton v. Andrews, 4 Burr. Rep. 2101, that a contract for the sale of goods, to be thereafter produced by work and labour, was not within the statute of frauds, which only related to sales where the delivery was to be immediate, and the buyer immediately answerable. In the one case, tho coach was to be afterwards made, and in the other, the wheat was to bo thrashed; and as the article contracted to be sold was to be first manufactured, or labour bestowed upon it, the contract might be deemed to be one for work and labour in making or preparing an article for delivery. These cases have been since somewhat questioned, and the latter went quite far with its distinction. It seems now to be settled, that the statute of frauds extends to *IX. Of sales of goods, as effected by fraud. Though there be a judgment against the vendor, and the purchaser has notice of it, that fact will not, of itself,
executory as well as to executed contracts; and that if the article sold existed at the time in eolido, and was capable of delivery, the contract is within the statute of frauds; but if the article is to be afterwards manufactured, or prepared by work and labour for delivery, the contract is not within the statute. Rondeau v. Wyatt, 2 // Black's R. 63. Cooper v. Elston, 7 Term R. 14. Smith v. Surman, 9 B. 4> Cress. 561. Gadsden v. Lance, 1 M'Mullan's S. C. R. 87. Hight v. Ripley, 19 Maine R. 137. Bennett v. Hull, 10 Johns. Rep.36i. Crookshank v- Burrell, 18 Ibid. 58. Sewall v. Fitch, 8 Cowen's Rep. 215. Jackson v. Covert, 5 Wendell, 139. These latter cases admit the distinction above stated to be well settled, and that it goes to sustain the correctness of the decisions in Strange, if not in Burrow, though not entirely, upon the ground assumed in them. And yet, in Garbutt v. Watson, 5 Barnw. <J- ^M. 613, the decision of Clayton v. Andrews is strongly and justly shaken, as having pushed the distinction to an extreme of refinement; and though, in the last case, the sacks of flour sold were not then prepared, but were to be got ready for delivery in a few weeks, yet the sale was held to be within the statute, and that though the flour was not ground at the time, it was still a contract for the sale of goods, and not for work and labour and materials found. This seems to be the most reasonable construction of such a contract. See, also, to the S. P., Downs v. Ross, 23 Wendell, 270, and see in Scott v. Eastern Co. R. W. Co. 12 Meeson 4> Welsby, 33, where part of the goods are made and delivered, and the residue are to be manufactured according to order, the whole forms one entire contract and the acceptance of part applies to the whole so as to satisfy the statute of frauds.
The court of appeals, in Maryland, in Eichelberger v. M'Cauly, 5 Harr. Sf Johns. 213, followed, with some reluctance, the case of Clayton v. Andrews, and declared, that it was not to be extended to cases where the work and labour to be done might be, of themselves, considered parts of the contract. The English statute of 9 Geo. IV. ch. 14, entitled, " An act for rendering a written memorandum necessary to the validity of certain promises and engagements," has provided for this case, by declaring that the statute of frauds of 29 Car. II. ch. 3, shall extend to all contracts for the sale of goods of the value of ten pounds and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not, at the time of the 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. It was said, in the last century at Westminster Hall, that the statute of frauds, of 29 Car. II. had not been explained at a less expense that) one hundred thousand pounds sterling. I should suppose, from the numerous questions and decisions affect the validity of the sale of personal property. *513 But if the *purchaser, knowing of the judgment, purchases, with the view and purpose to defeat the creditor's execution, it is iniquitous and fraudulent, notwithstanding he may have given a full price, for it is assisting the debtor to injure the creditor. The question of fraud depends upon the motive. The purchase must be bona fide, as well as upon a valuable consideration. The rule has been repeatedly declared and established.» Whether it would be an act of fraud sufficient to vacate the contract, if the purchaser, knowing of his own insolvency, and utter incapacity to make payment, but without using any device or contrivance to deceive the vendor, purchases goods of another, who is ignorant of his insolvency, and sells them under the belief of the solvency as well as good faith of the buyer, is a ques*514 tion which *was raised, but left undecided in Conyers v. Ennis.b It has been since decided in another case,0 that the mere insolvency of the vendee, and the liability of the goods to immediate attachment by his creditors, though well known to himself, and not disclosed to the vendor, would not, of itself, avoid the sale. In that case there was no false assertion, or fraudulent misrepresentation or deceit practised, or concert, or secret agreement, with any other person, and there was
which have since arisen upon it, that we might put down the sum at a million and upwards. How hazardous it would now seem to be, to attempt to recast the statute in new language, or to disturb the order and style of its composition, considering how costly its judicial liquidation has been, and how applicable its provisions are to the daily contracts and practical affairs of mankind. It has been affirmed in England, that every line of it was worth a subsidy; and uniform experience shows how difficult it is, by new provisions, to meet every contingency, and silence the tone of sharp, piercing criticism, and the restless and reckless spirit of litigation.
• Lord Mansfield, 1 Burr. Rep. 474. Cove p. Rep. 434. Dallas, Ch. J., 8 Taunt. Rep. 678. Beats v. Guernsey, 8 Johns. Rep. 446. Duncan, J., 7 Serg. $ Rawie, 89.
b 2 Mamm's Rep. 236.
• Cross v. Peters, 1 Oresnleaf'« Rep. 376.
no direct evidence that the vendee knew at the time that he was insolvent. The decision was put upon the ground that the credit was in fact obtained without any fraudulent intent, and the validity of the sale would depend upon the decision of the question, whether there was fraud in fact.»
If the vendee discovers that he is insolvent, and that it is not in his power to pay for the goods, the courts have allowed him to rescind the contract, and return the goods to the seller with his assent, provided he did it before the
• It was settled in the court of errors of New York, in Lupin v. Maire, 6 Wendell's Rep. 77, that where goods are delivered unconditionally to the vendee, a mistake or error as to his solvency will not invalidate the contract, or entitle the vendor to relief; for the vendor of personal property has no lien on the goods sold and delivered. But if there be fraud in fact on the part of the buyer in respect to the purchase, the vendor may elect, either to affirm the sale, and sue for the price, or to treat the sale as void, and follow the goods or proceeds, even into the hands of a third person, who received them without paying any new consideration. Lloyd v. Brewster, 4 Paige's Ch. Rep. 537. Cary v. Hotailing, 1 Hill's N. Y. Rep. 311. George v. Kimball, 24 Pick. Rep. 241. If, however, the purchaser from the fraudulent vendee has actually paid for the goods, he will hold them. See the last case supra. A fraudulent purchase of goods gives no title as against the vendor, nor will such a purchaser's transfer of the goods to pay or secure a bona fide creditor for a pre-existing debt, vest a title in the creditor. But if the under or second purchaser obtains the goods bona fide, in the usual course of trade, by giving value, or incurring responsiblities on the strength of a pledge of the goods, he may hold the goods as against the original vendor. Root v. French, 13 Wendell, 576. Trott v. Warren, 2 Fairfield, 227. Mowrey v. Walsh, 8 Cowen, 238. Rowley v. Bigelow, 12 Pick. 307. But these latter cases are questioned in Ash v. Putnam, 1 Hill's N. Y. Rep. 306, 7, and with the exception of commercial paper, the rule is, that he who has acquired no title can convey none. Vide supra, p. 324, note. In the jurisprudence of some parts of continental Europe, it is admitted that there exists a presumption juris et de jure of fraud, if the buyer becomes insolvent within a few days, (and which, in some cases, has been fixed at three.) after receiving the goods. Voet, Com. ad Pand. 6. 1. 14, cites several authorities in support of this rule. In 1736 it was attempted to be introduced into the law of Scotland as a rule, that the cessio fori, within three days after the purchase, should be received as evidence per se of fraud ; but such a strict and precise test was finally rejected, in 1788, in the case of Allen &. Stewart v. The Creditors of Stein, 1 Bell's Com. 244—248.
contract was consummated by an absolute delivery and acceptance, and provided it was done in good faith, and not with the colourable design of favouring a particular creditor. He cannot rescind the contract after the transit has ceased, and the goods have been actually received into his possession, and the rights of other creditors have attached.11
*515 *(1.) On the subject of fraudulent sales, another and a very vexatious question has arisen, as to the legal consequence and effect of an agreement between the parties at the time of the sale, that possession was not to accompany and follow the bill of sale of the goods. There is no doubt of its being evidence of fraud; but the great point has been, whether the fraud which was to be inferred in such a case, was an inference of law to be drawn by the court, and resulting inevitably from the fact, or whether the fact was only evidence of fraud to be drawn by the jury, and susceptible of explanation. The history and diversity of the decisions on this subject form a curious and instructive portion of our jurisprudence.
By the English statutes of 3 Hen. VII. and 13 Eliz. ch. 5, which have been re-enacted in New York,b and the essential provisions of which have been adopted generally throughout the United States, all conveyances of goods and chattels not made bona fide and upon good consideration, but in trust for the use of the person conveying them, or made to delay, hinder, or defraud creditors, are declared to be void; and it is everywhere admit
• Barnes v. Freeland, G Term Rep. 80. Richardson v. Goss, 3 Bos. 4/ Pull. 119. Neate v. Ball, 2 East's Rep. 117. Dixon v. Baldwin, 5 Ibid. 175 Salter v. Field, 5 Term Rep. 211. In Neate v. Ball, Lord Kenyon said, it was much to be wished, that where goods continued in bulk, and discernible from the general mass of the trader's property at the time of bankruptcy, that they could be returned to the original owners who bad received no compensation for them, but that it could not be done without breaking in upon the whole system of the bankrupt laws.
• Vide supra, p. 440.