For instance, where anything remains to be done by the seller of the goods which are the subject-matter of the contract, for the purpose of ascertaining their price, as by weighing, measuring, or testing them, the price having been made dependent on the quantity or quality of the goods, the performance of such thing is a condition precedent to the transfer of the property in the goods, even though they be ascertained and are in the state in [*163] which they ought to be accepted. But this general rule may be modified by the expressed intention of the parties (p). (509)

Where a contract is made for the purchase and sale of goods not ascertained, the property therein cannot of course pass immediately to the vendor, but it is quite competent to the vendor and vendee to make whatsoever bargain they please, so as to regulate the vesting of the property in the goods when they have become ascertained and specific, and the courts will endeavour to search out and give effect to such their intention. If goods are ordered from abroad under a contract, showing the intention of the parties to be that the goods shall be shipped by the person who is to supply them, on the terms that when shipped they shall be the consignee's property, and at his risk, so that the vendor shall be paid them whether delivered at the port of destination or not, this intention is effectual. Such is a very common state of things, and the obligations thence resulting are of this kind:-The vendor's duty is in such case at an end, when he has delivered the goods to the carrier, and if the goods perish in the carrier's hands, the maxim res perit domino applies; the vendor is discharged, and the purchaser is bound to pay to him the price of the goods or merchandize (q).

As closely connected with this part of our subject, a peculiar doctrine of the law demands attention. Where an unpaid vendor of goods has put them into the hands of a carrier in order to their being by him conveyed Stoppage in transitu. and delivered to the vendee; then, if the vendee before actual delivery to him becomes bankrupt or insolvent, the vendor has a right, if he can, to resume possession of the goods, by stopping them in transitu (r), but his right to do so will be defeated if the consignee of the goods [* 164] assign over the bill of lading to one who bond fide purchases them. The assignment of a bill of lading is in practice frequent, and so the vendor's

(p) Turley v. Bates, 2 H. & C. 200; Gilmour v. Supple, 11 Moo. P. C. C. 567.

(q) Dunlop v. Lambert, 6 Cl. & F. 600; Wood v. Bell, 5 E. & B. 791-2, 6 E. & B. 355. (7) In regard to the parentage of this right, whether it be the offspring of a court of equity or of law, and likewise in regard to its true nature, obscurity prevails. Sometimes this right of the vendor to stop in transitu has been viewed as an equitable lien upon the goods; sometimes regarded as a privilege resulting from his latent jus proprietatis; or as a power impliedly reserved to him to rescind the contract of sale under certain circumstances; or as an arbitrary

doctrine adopted for the benefit of trade. According to the opinion of Lord Abinger, in Gibson v. Carruthers, 8 M. & W: 339, the right of stoppage in transitu may be presumed to be a part of the law of merchants, which prevails generally on the continent, the proof of which, from time to time, by competent evidence, combined with its manifest justice and utility, at length introduced it into the common law of England, of which the law merchant, properly understood, has always been reckoned to form a part. See further as to this, Blackburn, Contract of Sale, Pt. iii. chap. 1.

(509) On this subject see the following instructive American cases: Sawyer v. Nichols, 40 Me. 212; Hotchkiss v. Hunt, 49 id. 213; Walden v. Murdock, 23 Cal. 540; Prescott v. Locke, 51 N. H. 94; Walrath v. Ingles, 64 Barb. 265; Stone v. Peacock, 35 Me. 388; Sumner v Hamlet, 12 Pick. (Mass.) 76; Frost v. Woodruff, 54 Ill. 155; Ockington v. Richey, 41 N. H. 275, 281; Ward v. Shaw, 7 Wend. 404; Foster v. Ropes, 111 Mass. 10.

VOL. II.-18

right to stop in transitu is often set at naught. Thus, a merchant resident in this country, has merchandize consigned to him from abroad; he receives advice that there is a large quantity of the same article ready for shipment to our market; he knows that when these projected consignments arrive the home market will be glutted, and the goods in question depreciated in value. He wishes, therefore, to sell his own cargo immediately, whilst it is at sea, and before it comes to hand, and the profit thus derivable would be fairly gained; accordingly he desires to negociate the bill of lading, and he would of course be precluded from doing so unless he could thereby legally defeat the right of his consignor to stop in transitu. A quick circulation is the life and soul of trade, and if the merchant cannot sell with safety to the buyer, that quickness of circulation must necessarily be retarded (s). The right of stoppage in transitu exists then, in the event mentioned, where goods have been sold and constructively delivered; delivery to the carrier, whether by land or water, being in law a delivery to the *vendee (t), and our law regarding the contract [*165] of sale as ambulatory and permitting the unpaid vendor at any time before the arrival of the goods at their place of destination, at any time, indeed, before they have got into the purchaser's hands, or the bill of lading has been assigned, to resume possession of the goods, and thus to put himself in the same positition as if he had not parted with them. But the right of stoppage in transitu cannot be exercised when the transit is terminated (u). (510)

(s) Per Buller, J., Lickbarrow v. Mason, 2 T. R. 63; 1 H. Bla. 357.

The rights of the bonâ fide assignee of a

bill of lading have been amplified by stat. 18 & 19 Vict. c. 111.

(t) Ante. p. 161.

(u) Heinekey v. Earle, 8 E. & B. 410.

(510) The right of stoppage in transitu is nothing more than the extension of the right of lien, which by the common law the vendor has upon goods for the price, originally allowed in equity, and subsequently adopted as a rule of law. Rowley v. Bigelow, 12 Pick. (Mass.) 313; Grout v. Hill, 4 Gray (Mass.), 361, 366. See Newhal! v. Vargas, 13 Me. 93; S. C., 15 id. 314. The exercise of the right of stoppage does not amount to a rescission of the contract (see id.; Stanton v. Eager, 16 Pick. [Mass.] 474; Chandler v. Fulton, 10 Tex. 2; Rogers v. Thomas, 20 Conn. 53); and the vendee, at any time after stoppage, may recover the goods upon payment or tender of the price. See id.; Rowley v. Bigelow, 12 Pick. (Mass.) 313; Atkins v. Colby, 20 N. H. 154; Benedict v. Schaettle, 12 Ohio St. 515.

The object in allowing the privilege of stoppage in transitu to the vendor being his protection against the insolvency of the vendee, such privilege, unless waived, properly extends to cases of insolvency, whether existing at the time of sale and unknown to the vendor, or occurring at any time before the actual delivery of the goods. Benedict v. Schaettle, 12 Ohio St. 515. See also Blum v. Marks, 21 La. Ann. 268; O'Brien v. Norris, 16 Md. 122; Reynolds v. The Railroad, 43 N. H. 580. But see contra, Rogers v. Thomas, 20 Conn. 53. Insolvency may be established by proof of inability to pay; and proof of some overt act of insolvency, such as a stoppage of payment, is not requisite. Secomb v. Nutt, 14 B. Monr. (Ky.) 324; Benedict v. Schaettle, 12 Ohio St. 515. But see contra, Rodgers v. Thomas, supra. See, on this subject, Chandler v. Fulton, 10 Tex. 2; Hays v. Monille, 14 Penn. St. 51.

The right to stop in transitu, in the proper sense of the term, only exists as between vendor and vendee. See The Merrimac, 8 Cranch, 317, 353; Newhall v. Vargas, 13 Me. 93; S. C., 15 id. 314; Ash v. Putnam, 1 Hill. 302; Naylor v. Dennie, 8 Pick. (Mass.) 198. Whenever the transitus is terminated the right of stoppage is gone. But the transitus will endure as long as anything remains to be done by the carrier for the purposes of transporting the goods to the purchaser, or by the purchaser, to entitle him to receive them from the carrier; and although the delivery by which it is terminated need not be actual, it must be final, and not a mere pause in a journey which is not ended, and is subsequently to be resumed. See Harris v. Pratt, 17 N. Y. (3 Smith) 249; Fraschieris v. Henriques, 6 Abb. N. S. 251; Cabeen v. Campbell, 30 Penn. St. 254; Secomb v. Nutt, 14 B. Monr. (Ky.) 424; Frazer v.

Such being the contract of sale and its effect in passing property at common law, certain statutory provisions concerning it must be noticed. Our customary law recognized no distinction between verbal contracts and written contracts not under seal (x). It discriminated merely between a deed and a parol contract. To the former sealing and delivery were essential; the latter had to be proved by the testimony of bystanders, by admissions express or implied, or in any way that was available. When, however, writing had become common, and trading operations had expanded, the legislature thought it expedient in some cases to draw a line between written and verbal contracts, and to require proof in writing of an alleged contract for breach of which the plaintiff sued. Such proof has been necessitated by various enactments, the most important of these being the Statute of Frauds.

29 Car. 2, c. 3, 8. 17.

The Statute of Frauds (y) was passed for "prevention of many fraudulent practices which are commonly endeavoured to be upheld by perjury and subornation of perjury;" and by its 17th section enacts, that "no contract for the sale of any goods, wares, or merchandises, for the price of 107. sterling or upwards, shall be allowed to 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 of pay[* 166] ment (z), or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized." (511) Further, it having been

(x) Rann v. Hughes, 7 T. R. 350 (a). (y) 29 Car. 2, c. 3.

(2) By our common law, if any part of the price of goods is paid down, if it be but a penny, or any portion of the goods delivered by way of earnest, (which the Roman law calls arrha, and interprets to be emptionisvenditionis contractæ argumentum (Inst. 3, tit. 24)), the property of the goods is absolutely bound, so that the vendee may recover the

goods by action, and the vendor may recover the price of them (Noy's Max. c. 42).

Anciently, among the northern nations, shaking of hands was held necessary to bind a bargain. A sale thus made was called handsale, "venditio per mutuam manuum complexionem" (Stiernhook de Jure Goth. 1. 2, c. 5), till in process of time the same word was used to signify the price or earnest, which was given immediately after the shaking of hands, or instead thereof.

Hilliard, 2 Strobh. (S. C.) 309; Stevens v. Wheeler, 27 Barb. 658; Grout v. Hill, 4 Gray (Mass.), 361. While the goods remain unpaid for, and the transitus continues, the right of the vendor to stop them, upon the occurrence of insolvency in the vendee, may be defeated by a bona fide sale, for a valuable consideration, accompanied by a transfer of the bill of lading. All these requisites must, however, concur. Stanton v. Eager, 16 Pick. (Mass.) 473; Kitchen v. Spear, 30 Vt. 515; O'Brien v. Norris, 16 Md. 122. An attachment of goods on board a vessel, as the property of the consignee, does not defeat the right of the consignor to stop them in transitu. Hause v. Judson, 4 Dana (Ky.), 12; Wood v. Yeatman, 15 B. Monr. (Ky.) 270; Naylor v. Dennie, 8 Pick. (Mass.) 198; Clark v. Lynch, 4 Daly, 83.

Although the vendor may have received part payment for the goods in cash, he may still have recourse to a stoppage in transitu for the remainder of the price. Newhall v. Vargas, 13 Me. 93; S. C., 15 id. 314. In order to destroy the right as between vendor and vendee, there must be a full payment or final delivery of the whole of the goods. If part only be delivered the right will survive as to the rest. White v. Welsh, 38 Penn. St. 396; Cabeen v. Campbell, 30 id. 264; Buckley v. Furniss, 15 Wend. 137; S. C. again, 17 id. 504.

The right of stoppage in transitu is held applicable to bills of exchange. Muller v. Pondir, 6 Lans. 472.

(511) The provisions of the English Statute of Frauds have been generally adopted throughout the United States. The amount necessary to bring a sale within the provisions of the statute varies in the different States. Thus, in New York it is fixed at $50, in Vermont at $40, in New Hampshire at $33.33, in Maine at $30, and in Massachusetts at $50.

thought doubtful whether this section applied at all to any executory contract, the subject-matter of which did not exist at the time of contracting, or was to be delivered afterwards (a), the 7th section of lord Tenterden's Geo. 4, c. 4, s. 7. Act (b) extends its operation to all contracts for the sale of goods of the value of 107. and upwards, notwithstanding such goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, or be fit or ready for delivery, or although some act may be requisite for the making or completing thereof or rendering the same fit for delivery. The above clause of lord Tenterden's Act and the 17th section of the Statute of Frauds are to be read as though incorporated together (c), so that if an order be given for goods made and for others to be made, this will form one entire contract, to which the alternative clauses of the 17th section will have to be applied-for instance, acceptance of the former goods will take the case out of the statutes so as to render a written contract unnecessary as regards the latter also (d).

*The general effect of the 17th section of the Statute of Frauds [* 167] is clear; it nullifies a contract not authenticated in conformity with its requirements (e). Serious difficulties have, however, arisen in construing it, and embarrassment has been felt in regard to the sufficiency of the memorandum (ƒ) and of the signature (g) which will satisfy it; perhaps from among

(a) Per Littledale, J., Smith v. Surman, 9 B. & C. 574.

(b) 9 Geo. 4, c. 14.

(c) Per Lord Abinger, C. B., Scott v. Eastern Counties R. C., 12 M. & W. 33.

(d) As to cases within the above statutes, see Clay v. Yates, 1 H. & N. 73, 78.

(e) Noble v. Ward, L. R. 2 Ex. 135. (f) Newell v. Radford, L. R. 3 C. P. 52; Vandenbergh v. Spooner, L. R. 1 Ex. 316; Gibson v. Holland, L. R. 1 C. P. 1.

(g) Caton v. Caton, L. R. 2 App. Cas. 127.

The form of the memorandum of the bargain required by the statute is not material; but it must state the contract with reasonable certainty, so that the substance of it can be understood from the writing itself, without having recourse to parol proof. Bailey v. Ogden, 3 Johns. 399; Salmon Falls Manuf. Co. v. Goddard, 14 How. (U. S.) 446; Hurley v. Brown, 98 Mass. 546. It is sufficient if it be in pencil. McDowell v. Chambers, 1 Strobh. (S. C.) 347; Clason v. Bailey, 14 Johns. 584. So, it is sufficient if it be signed by the party to be charged without its being signed by the other party. See Dresel v. Jordon, 104 Mass. 412; Shirley v. Shirley, 7 Black f. (Ind.) 452; Ide v. Stanton, 15 Vt. 687; De Cordova v. Smith, 9 Tex. 129. In New York the name of the party must be signed below or at the end of the memorandum. Vielie v. Osgood, 8 Barb. 130; Davis v. Shields, 26 Wend. 341. Where the contract or memorandum of it is to be proved from several papers, there must be clear reference from one to the other. Kurtz v. Cummings, 24 Penn. St. 25; O'Donnell v. Leman, 43 Me. 158; Fowler v. Rendican, 52 Ill. 405; Moale v. Buchanan, 11 Gill. & J. (Md.) 314.

It has been held by the supreme court of Massachusetts that a contract for the sale of shares in a manufacturing corporation is a contract for the sale of "goods, wares or merchandise," within the statute. Tisdale v. Harris, 20 Pick. 13; and see, to the same effect, North v. Forest, 15 Conn. 404; Calvin v. Williams, 3 Harr. & J. (Md.) 38. But see, contra, Hudson v. Weir, 29 Ala. 294; Whittemore v. Gibbs, 24 N. H. 484. So, a contract for the sale of promissory notes is held to be within the statute. Baldwin v. Williams, 3 Metc. (Mass.) 367. And so of a sale of bank bills. Gooch v. Holmes, 41 Me. 523.

As to the effect of an acceptance to satisfy the statute of frauds, see Snow v. Warner, 10 Metc. (Mass.) 132; Maxwell v. Brown, 39 Me. 98; Outwater v. Dodge, 6 Wend. 400. No act of the seller alone is sufficient to constitute an acceptance an actual receipt. Shepherd v. Pressey, 32 N. H. 49.

See, generally, as to the construction of the seventeenth section, the following American cases: Hight v. Ripley, 19 Me. 137; Waterman v. Meigs, 4 Cush. (Mass.) 497; Bird v. Muhlenbrink, 1 Rich. (S. C.) 199; Mixer v. Howarth, 21 Pick. (Mass,) 205; Crookshank v. Burrell, 18 Johns. 58; Webster v. Zielly, 52 Barb. 482; Cooke v. Millard, 5 Lans. 243.

such minor difficulties, the most noteworthy points decided are that a proposal in writing signed by the party to be charged and accepted verbally by the party to whom it is made will suffice (h), and that where a bought and a sold note, delivered respectively to the buyer and seller of goods by the broker who negotiates their sale, are relied upon as evidencing the contract, a material variance between such notes will preclude them from so doing (i). Where an offer to sell goods is made, the bargain is complete when a letter accepting such offer without qualification is put into the post (j).

The principal difficulty, however, experienced in construing the 17th section of the Statute of Frauds has arisen on that clause of it which provides as a substitute for a written memorandum of the sale of goods an "acceptance and actual receipt" thereof. It will be conceded that the word "accept" is stronger than the words "actually receive," which must be taken to signify a receipt animo accipiendi, and imply a delivery of the possession of the goods. -actual as by their bodily transfer, or constructive as by handing over the key of the warehouse in which they are stored to the intended purchaser. * And in most cases the question whether or not the 17th [* 168] section of the Statute of Frauds has been complied with will be one of fact, and it will be for the jury to say what was the character of the transaction, whether or no the circumstances deposed to show that there was an acceptance and actual receipt of the goods in question (k); the larger the bulk of the goods as to which a question under the statute arises, the more impracticable would be a manual receipt of them.

Again, if goods sent on approval are retained by the consignee for an unreasonable time, or if acts of ownership are exercised by him over the goods, an acceptance may be inferred or presumed as against the alleged vendee when sued for the value of the goods. If the purchaser of goods by sample re-sells them before objecting to the quality of the goods, he will afterwards be precluded from saying that he has not accepted them within the statute, for he has exercised an indubitable act of ownership over the goods by re-selling them (7). And there may be an acceptance and receipt such as to satisfy the statute, and yet the buyer may refuse to carry out the contract on the ground that the goods were not according to it (m). Acts, indeed, done at different periods of time may be so connected together as to form one transaction, and therefore it would seem that an acceptance of goods within the statute may be prior to the actual delivery of them (n).

It was long since judiciously observed that the law is best applied when made subservient to the honesty of a case, and that our law merchant is Effect of illegality a system of equity founded on the rules of equity and governed. or fraud. in all its parts by plain justice and good faith (0). Such a remark forcibly applies to the contract of sale, which cannot be allowed to stand if tainted by illegality or fraud.

*

[* 169]

Not only is a contract made in direct contravention of the statute law null

(h) Reuss v. Picksley, L. R. 1 Ex. 342, which was decided under s. 4, as to which, post.

(i) Sievewright v. Archibald, 17 Q. B. 103. (j) Dunlop v. Higgins, 1 H. L. Ca. 381; Adams v. Lindsell, 1 B. & Ald. 681.

(k) Bushel v. Wheeler, 15 Q. B. 442; Kershaw v. Ogden, 3 H. & C. 717.

(1) Morton v. Tibbett, 15 Q. B. 428.

(m) Smith v. Hudson, 6 B. & S. 431, 450. (n) Compare Reuss v. Picksley, L. R. 1 Ex. 351-2; and cases there cited; Morton v. Tibbett, supra; Hunt v. Hecht, 8 Exch. 814. (0) Master v. Miller, 4 T. R. 335, 342.