rectify a mistake and give relief, and decree specific performance in cases of written contract, where there is a plain mistake clearly made out by satisfactory parol proof, or even fairly and necessarily implied. (a)

* VII. Of passing the title by delivery.1

(1.) When the terms of sale are agreed on, and the

distinction taken in the Carolina case, between ignorance of the law and mistake of the law, was not solid.

(a) Gillespie v. Moon, 2 Johns. Ch. Rep. 595. Lyman v. United Ins. Co. ib. 630. Keisselbrack v. Livingston, 4 ib. 144. Andrews v. Essex F. & M. Ins. Co. 3 Mason, 10, 15. Dunlap v. Stetson, 4 ib. 349, 372. Hunt v. Rousmanier, 8 Wheaton, 174, 211. Story's Com. on Eq. Jurisprudence, 164, 176. Newsom v. Bufferlow, 1 Dev. N. C. Eq. 379. 1 Yeates's Penn. Rep. 132, 138, 437. Ball v. Storie, 1 Sim. & Stu. 210. Lord Eldon, 10 Vesey, 227. Tilton v. Tilton, 9 N. H. Rep. 385. Moale v. Buchanan, 11 Gill & Johnson, 314. Mr. Justice Story, in his Com. on Eq. Jurisprudence, 121-194, has reviewed and collected most of the English and American cases, and drawn the proper conclusions from them with his customary ability and accuracy. Mr. Justice Turley, in Trigg v. Read, 5 Humphrey's Tenn. R. 529, has elaborately and ably examined the refined distinctions on this subject. So, in Duer on Insurance, vol. i. p. 132, note 11, the cases in equity correcting a clear mistake in a policy of insurance are collected. In Rogers v. Atkinson, 1 Kelly's Geo. R. 12, Ch. J., Lumpkin accurately collects and examines the principal English and American cases leading to the establishment of the principle, that equity relieves against mistakes as well as fraud in contracts in writing. The subject was very learnedly discussed in that

case.

The omission of the mode or the time of payment, or even of the price itself, does not necessarily render a sale defective. The price will be inferred to be a reasonable one. Valpy v. Gibson, 4 M. G. & Scott's R. 864.

Many of the decisions quoted in the text, at page [494,] and in the following pages, will be observed, on examination, not to apply to the statute of frauds, but to be illustrative of the general rules governing the contract of sale, independently of the statute. Indeed, the mass of mercantile contracts are in writing, and to such contracts the statute has no application. The distinction between the general rule of law on this subject, and the rules arising from the 17th section of the statute, must be borne in mind.

1. Where the statute does not apply, it may be laid down generally, as it may also be gathered from the text, [pp. 491-510,] that if the parties have agreed, the one to buy and the other to sell specific and determined articles, of which the price, weight, measure, or requisite fitness have been ascertained or agreed upon, or if suitable means have been provided by which these qualities or conditions may be ascertained, and the articles are put in that state for which the parties contracted, the property passes eo instanti, by virtue of the contract of sale, and without delivery.

This is not inconsistent with the lien that may remain to the vendor for payment of the price; and, though the general rule is as above stated, the parties may, by the form of the contract, or by special reservations, provide that some other act shall be a condition precedent to the passing of the property.

bargain is struck, and every thing that the seller has to do with the goods is complete, the contract of sale becomes absolute as between the parties, without actual payment or delivery, and the property and the risk of accident to the goods vest in the buyer. (a) He is entitled to the goods on payment or tender of the price, and not otherwise, when nothing is said at the sale as

(a) Noy's Maxims, ch. 42. 2 Blacks. Com. 448. Lord Ellenborough, in Hinde v. Whitehouse, 7 East's Rep. 571. Code Napoleon, No. 1583. Civil Code of Louisiana, art. 2431. Tarling v. Baxter, 6 Barnew. & Cress. 360. Fletcher v. Howard, 2 Aikin's Vt. Rep. 115. Potter v. Coward, Meig's Tenn. Rep. 22. Mr. Justice Story observed, in the case of the Brig Sarah Ann, 2 Summer's Rep. 211, that he knew of no principle of law which establishes that a sale of personal goods is invalid, because they are not in possession of the rightful owner, but are withheld by a wrong-doer. The sale is not, under such circumstances, the sale of a right of action, but a sale of the thing itself, and good to pass the title against every person not holding the same under a bona fide title, for a valuable consideration, without notice, and a fortiori against a wrong-doer.

2. Under the statute of frauds a different class of questions arises; and many of the cases mentioned in the text, relate to the construction of the clause of the 17th section, which provides, that no contract for the sale of goods, &c., shall be good, “unless the buyer accepts part of the goods sold, and actually receives the same."

Two things, it will be observed, are required by this clause, viz: an acceptance of part of the goods, and an actual receipt of the same.

1. Questions have arisen in several of the cases, as to the nature of the acceptance required, and the decisions are somewhat contradictory.

A series of English cases seemed to have established, that unless there has been such a dealing on the part of the purchaser as to deprive him of any right to object to the quantity or quality of the goods, there cannot be any part acceptance under the statute. Howev. Palmer, 3 B. & Ald. 321. Tempest v. Fitzgerald, id. 680. Hanson . Armitage, 5 id. 557. Carter v. Toussaint, id. 855. Smith v. Surman, 9 B. & Cress. 561. Norman v. Phillips, 14 M. & W. 277. Hunt v. Hecht, 20 Eng. L. & Eq. 524. Cunliffe *. Harrison, 5 Eng. L. & Eq. 539. Shepherd v. Pressey, 32 N. H. 49.

But in a very recent case in the Q. B., Lord Chief Justice Campbell, in an elaborate opinion, dissents from this doctrine, and holds that an acceptance may be sufficient to satisfy the statute, although the purchaser has a right to object to the quantity of the article, and to repudiate the sale. Morton v. Tibbett, 15 Q. B. 428. See also Curtis v. Pugh, 10 Ad. & El. N. S. 114. Parker v. Wallis, 37 Eng. L. & Eq. 26.

2. The decisions just referred to do not affect the question of receipt under the statute. This is examined in a subsequent part of the lecture, (pp. 500, 505.)

Two propositions seem to be well established on this point, viz: that there can be no receipt while the vendor retains his lieu; and, again, the receipt is sufficient, when the goods come into the actual possession and control of the vendee. Within those limits, there are numerous decisions depending on a great variety of facts and circumstances. Most of them will be found in the text and notes, to which reference has been made. The subject of acceptance and receipt under the statute of frauds, is thoroughly examined in Browne on the Statute of Frauds, pp. 316–348.

to the time of delivery, or the time of payment.

The payment

or tender of the price is, in such cases, a condition precedent implied in the contract of sale, and the buyer cannot take the goods, or sue for them, without payment; for, though the vendee acquires a right of property by the contract of sale, he does not acquire a right of possession of the goods until * 493 he pays or tenders the price. (a) But if the goods are sold upon credit, and nothing is agreed upon as to the time of delivering the goods, the vendee is immediately entitled to the possession, and the right of possession and the right of property vest at once in him;2 though the right of possession is not absolute, but is liable to be defeated, if he becomes insolvent before he obtains possession. (b) If the seller has even despatched the goods to the buyer, and insolvency occurs, he has a right, in virtue of his original ownership, to stop them in transitu; for, though the property is vested in the buyer, so as to subject him to the risk of any accident, he has not an indefeasible right to the possession; and his insolvency, without payment of the price, defeats that right, equally after the transitus has begun, as before the seller has parted with the actual possession of the goods. Whether default in payment, when the credit expires, will destroy that right of possession, if the vendee has not before that time obtained actual possession, and put the vendor in the same situation as if there had been no bargain for credit, was left undecided in Bloxam v. Sanders, (c) though as between the original parties that consequence would follow. (d)

(a) Glanville, b. 10, ch. 14. Langfort v. Tiler, 1 Salk. 113. Hob. Rep. 41. 1 H. Blacks. Rep. 363. Bloxam v. Sanders, 4 Barnew. & Cress. 941. Lafon v. De Armas, 12 Rob. Louis. Rep. 598, 622. Sce infra, p. 497, S. C.

(b) Hanson v. Meyer, 6 East's Rep. 614. Bayley, J., in Bloxam v. Sanders, 4 Barnew. & Cress. 941, and in Simmons v. Swift, 5 id. 857.

(c) 4 Barnew. & Cress. 941.

(d) This has been so decided in Hunter v. Talbot, 3 Smedes & Marshall, 754, and in New v. Swain, Dan. & Lloyd's Merc. Cases, 193, where it was held, that if the

1 And payment must be made in a reasonable time, or the vendor is released from the contract. Conway v. Bush, 4 Barb. S. C. Rep. 564.

2 So held in Kimbro v. Hamilton, 2 Swan, 190. Cartland v. Morison, 32 Me. 190. Hall v. Robinson, 2 Coms. 293. But contra in McGoon v. Ankeny, 11 Ill. 558. O'Keefe v. Kellogg, 15 id. 347.

(2.) To make the contract of sale valid in the first instance according to statute law, there must be a delivery or tender of it, or payment, or tender of payment, or earnest given, or a memorandum in writing signed by the party to be charged; and if nothing of this kind takes place, it is no contract, and

the owner may dispose of his goods as he pleases. (a) 1 * 494 The English statute of *frauds of 29 Car. II. ch. 3, sec. 17, (the provisions of which prevail in the United States, with the exception of Louisiana,)2 declares, that no contract for the sale of goods, for the price of £10 or upwards, shall 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 payment; or unless some note or memorandum in writing of the bargain be made, and signed by the parties to be charged, or their agents thereunto lawfully authorized. (b) If, therefore, earnest money be given,

buyer does not pay when the time of payment arrives, the seller in that case has a right to retain the goods. It was held in that case, that the right of the seller to retain the goods existed, though the goods were left with the seller on rent. If, however, the rent had been actually received, it would seem to have amounted to an

actual transfer.

(a) Noy's Maxims, ch. 42. Tempest v. Fitzgerald, 3 Barnew. & Ald. 680.

(b) The New York Revised Statutes, vol. ii. p. 136, sec. 3, 8, apply to the sale of goods, chattels, or things in action, for the price of fifty dollars or more, and declare that there must be a note or memorandum of such contract, in writing, subscribed by the parties to be charged, or the lawful agent of the party; or the buyer accept and receive part of the goods, or the evidences, or some of them, of the things in action; or at the time pay some part of the purchase-money. The statute puts equitable transfers of choses in action on a footing similar to that on which sales of goods stand. The English statute is not so broad. It does not reach things in action, as shares in a banking company. Humble v. Mitchell, 3 Perry & Davison, 141. S. C. 11 Adolph. & Ellis, 205. The New York statute requires the name of the party to be changed to be literally subscribed, or signed below or at the end of the memorandum, and the more loose doctrine under the English statute as to signing is not sufficient. Davis v. Shields, 26 Wendell, 341.3 In Connecticut, the price limited is $35, and in New Jersey, $30, or upwards. In England, the provisions of the 17th section of the stat

1 The delivery required to satisfy the 17th section of the statute of frauds, may be subsequent to the agreement. Marsh v. Hyde, 3 Gray, 331. McKnight v. Dunlop, 1 Seld.

537.

2 And Virginia, Chapman v. Campbell, 13 Gratt. 105.

3 See also James v. Patten, 2 Seld. 9, where the court of appeals held that the contract must be literally subscribed, overruling the decision of the Supreme Court in 8 Barb

though of the smallest value, or there be a delivery or payment in whole or in part, or a note or memorandum of the contract duly signed, the contract is binding, and the property passes to the vendee, with the risk and under the qualifications already stated. (a) Whether a delivery of part of an entire stock, lot,

ute of frauds have been lately extended by statute to contracts for the sale of goods, “notwithstanding the goods may not, at the time of the contract, be actually made.” The Revised Statutes of Massachusetts, of 1836, and of Connecticut, 1838, and of New Jersey, 1794, follow the words of the English statute of frauds.

The English Statutes of Frauds and Perjuries, 29 Car. II. c. 3, carries its influence through the whole body of our civil jurisprudence, and is in many respects the most comprehensive, salutary, and important legislative regulation on record, affecting the security of private rights. It seems to have been intended to embrace within its provisions the subject-matter of all contracts, and a sketch of its essential parts may facilitate the knowledge and study of it.

The 1st section enacts, that parol leases, estates, interest of freehold, or terms of years in land, shall have the effect of estates at will only.

The 2d excepts leases not exceeding three years, and where the rent received shall be at least two thirds of the improved value.

The 3d, that no leases, or interests of freehold, or terms for years, shall be assigned, granted, or surrendered, except by deed or note, in writing, signed, &c.

The 4th, that no action shall be maintained to charge an executor or administrator upon any special promise to answer out of his own estate-or to charge the defendant upon any special promise to answer for the debts, default, or miscarriage, of another-or to charge any person upon an agreement made in consideration of marriage or upon any contract or sale of lands, or any interest in or concerning them or upon any agreement not to be performed within a year, unless the agree ment, or some note thereof, be in writing, signed, &c.

The 5th and 6th apply to devises of land.

The 7th, 8th,, and 9th, apply to declarations and assignments of trusts, which are required to be in writing, except implied trusts.

The 10th gives a remedy against the lands of cestui que trust.

The 11th relieves heirs from liabilities out of their own estates.

The 12th regulates, pur auter vie.

The 13th, 14th, 15th, and 16th sections apply to judgments and executions.

The 17th enacts that no contract for the sale of goods of £10, and upwards, shall be good, unless the buyer accepts part of the goods sold, and actually receives the same, or gives something in earnest to bind the bargain, or in part payment; or some note or memorandum in writing, of the bargain, be made and signed, &c. The intention was to comprehend within the 4th and 17th sections, the subjectmatter of every parol contract, of which uncertainty in the terms was likely to produce perjury. In Scotland, France, Holland, &c., there is no such provision as the English statute of frauds, and sales of goods may be established by parol proof, though in France such latitudinarian proof is specially applicable to mercantile cases. Mr. Bell questions the superior policy or safety of the strict rule of evidence required by the English statute of frauds. Bell on the Contract of Sale, Edin. 1844, pp. 63–72. (a) Noy's Maxims, ub. sub. Shep. Touch. 224. Bach v. Owen, 5 Term Rep. 409.