the defendant of 100 sacks of flour known as "seconds," at 358. per sack.

2. Eighty sacks delivered were inferior to "seconds," and twenty sacks were not delivered.

contract

where the goods are above or below £10 in value.

What the

memoran

dum must contain.

The effect

of the omission of the

price from the note.

The plaintiff claims £21.

as soon as the parties have come to a verbal agreement. A. enters a shop and sees a watch. He asks the price, and the shopman says £7. He says he will purchase, and the shopman agrees to sell it. The contract of sale is then complete, and if A., the purchaser, leaves the shop without taking with him the watch, or paying the price or any part of it, or signing any acknowledgment of the contract, the sale is nevertheless complete, the watch is his, remains in the shop at his risk, and he is liable to the shopkeeper for its price. But suppose in the case stated the shopman had fixed the value of the watch at £13, and A. had agreed to purchase and the shopman to sell at that sum, and nothing more had taken place, but A. hal left the shop without the watch, without paying the price or any part. and without signing any memorandum of the contract-in that case there would have been no enforceable contract, the property in the watch would not pass to A., and he would not be liable in any action to the shopkeeper. To constitute a valid contract of sale of goods, wares, or merchandise which are above the value of £10, one or more of three things must happen. Either the purchaser or his agent must sign some memorandum of the contract, or he must pay the price or part of it, or give some earnest to bind the bargain, or he must accept and actually receive the goods. There are to be found in the books an infinite number of decisions upon what constitutes a good satisfaction of these conditions -the effect only of which can be given here.

The memorandum in writing.]—The note of the contract upon which reliance is placed need not be made at the time the contract is entered into, though it must be made before action brought (Bill v. Bament, 9 M. & W. 36); and several documents, if sufficiently connected the one with the other by internal evidence, will constitute a good memorandum within the statute. (Jackson v. Lowe, 1 Bing. 9; Saunderson v. Jackson. 2 B. & P. 238; Warner v. Willington, L. J. 25 Ch. 662; Buxton v. Rust, L. R. 7 Ex. 279.) The note or notes which make up the memorandum must contain all the terms of the agreement. (Kenworthy v. Schofield, 2 B. & C. 947.) It or they must contain the names of both the contract parties or their agents (Williams v. Brynes, 1 Mco. P. C. N. S. 154, 198; Vandenbergh v. Spooner, L. R. 1 Ex. 316), the subject-matter of the contract, and the price and mode of payment if agreed upon. Where it appears by parol that the price has been agreed upon, and it is omitted in the note of the contract, the written memorandum is imperfect, and cannot be given in evidence. (Elmore v. Kingscote, 5 B. & C. 583; Goodman v. Griffiths, 1 H. & N. 574 ; L. J. 26 Ex. 145.) But where no price was really agreed upon, the contract will be good, and a reasonable price will be presumed. (Hoadley v. McLain, 10 Bing. 482.)

Buyer against Seller of Goods for not delivering.

1. The plaintiff has suffered damage by breach of contract for sale and delivery by the defendant to the plaintiff of 100 tons of Scotch pig-iron at £5 per ton to be delivered on rail at Middlesborough on the 15th March, 1882.

It has been stated that a good memorandum within the statute can be made up of several documents, as where there is an unsigned memorandum containing the order, and then a letter (not necessarily addressed to the other party to the contract (Gibson v. Holland, L. R. 1 C. P. 1) Where the signed by the defendant, in which he refers to the memorandum. note is (Saunderson v. Jackson, 2 B. & P. 238; Burton v. Rust, L. R. 7 Ex. 1, made up 279, Ex. Ch.) And it has even been decided that where the vendec of several wrote a letter to the vendor, in which, after referring to all the essential documents. terms of the contract, he stated he had not received and declined to have the goods, because they had been damaged by the carriers, there was here a sufficient note in writing, notwithstanding the repudiation (Bailey v. Sweeting, 9 C. B. N. S. 843; L. J. 30 C. P. 150; Wilkinson v. Evans, L. R. 1 C. P. 407); but the plaintiff cannot avail himself of a subsequent letter from the defendant, in which, though he recognises the order, he disaffirms or adds to the terms of the memorandum. (Cooper v. Smith, 15 East, 103.)

As to the signature to the note, it is enough if it is signed by the As to sigdefendant (Laythoarp v. Bryant, 2 N. C. 735); and it makes no difference nature. that there is no remedy against the party who does not sign. (Allen v. Bennett, 3 Taunt. 169.) It is quite immaterial where the signature What sigis placed in the document, provided it is so introduced as to govern and nature to authenticate every material part. (Hubert v. Turner, 4 Scott, N. R. 486; the note is Caton v. Caton, L. R. 2 H. L. 127.) Durrell v. Evans, 1 H. & C. 174; sufficient. L. J. 31 Ex. 337, is a strong case. There the only signature of the defendant was his name written by the plaintiff's agent on the top of a sale note, the contents of which were known to the defendant at the time, and subsequently altered at his request, and it was held that this was a good signature within the statute. Where a person is in the habit of printing instead of writing his name, that will be a sufficient signature. (Saunderson v. Jackson, 2 B. & P. 238; Schneider v. Norris, 2 M. & S. 286.)

Signature by an agent.

A signature by a duly authorised agent is by the express words of the section enough. It is not necessary that the agent should have the authority of his principal by a written instrument (Graham v. Musson, 5 N. C. 603; 7 Scott, 769); but an agent, to bind the defendant by his signature, must be some third person, and not the other contracting party. (Furbrother v. Simmons, 5 B. & A. 333; Sharman v. Brandt, L. R. 6 Q. B. 720, Ex. Ch.) In the case of a sale by auction, which is Auctioneer within the section, the auctioneer becomes the vendee's agent after his the agent bid is accepted; and if he then, as will usually be the case, writes down of both the vendee's name in the catalogue opposite the lot, together with the parties at price bid, it is a good memorandum. (Emmerson v. Heelis, 2 Taunt. 38; a sale. Kenworthy. Schofield, 2 B. & C. 945 ; Pierce v. Corf, L. R. 9 Q. B. 210). But where the conditions of sale are not annexed or referred to in the catalogue, signing the buyer's name in the catalogue is not a compliance with the statute. (Hinde v. Whitehouse, 7 East, 558; Pierce v. Corf, L. R. 9 Q. B. 210.) Where the broker is the agent of both parties, as he generally is, he may bind them by signing the same contract on behalf of the buyer and seller, and his signature to the bought or sold

tons, as the

2. The defendant did not deliver any [or, case may be] of the said iron.

Particulars of damage:

Loss of profit at £1 per ton on 100 tons, £100.
The plaintiff claims £100.

How far a broker can

and seller.

note will constitute a sufficient memorandum within the statute. (Parton v. Crofts, 13 C. B. N. S. 11; L. J. 33 C. P. 189.) There has been some controversy as to whether the real contract is contained bind buyer in the bought and sold notes signed by the broker, and sent to the buyer and seller respectively, or in the entry which he makes in his book. (See Heyman v. Neal, 2 Camp. 337; Thornton v. Meux, M. & M. 43; Sievewright v. Archibald, 17 Q. B. 124; L. J. 20 Q. B. 538; Thompson v. Gardiner, 1 C. P. D. 777.) Where there is a material variance between the bought and sold notes, and the broker has not signed the contract in his book, there is no binding contract (Grant v. Fletcher, 5 B. & C. 436; Gregson v. Ruck, 4 Q. B. 737); and if the two principals agree in the broker's presence, and the broker's note does not correspond with the terms agreed upon, then there is no written contract by an agent lawfully authorised, and a party who did not assent to the alteration is not bound. (Pitts v. Beckett, 13 M. & W. 743.)

Acceptance and actual receipt required.

Acceptance and receipt within the statute.]—In the case of goods above the value of £10, failing a note in writing evidencing the contract. there must be part payment or a delivery of the goods by the vendor with the intention of vesting the right of possession in the vendee, and an actual receipt by the latter with the intention of taking to the possession as owner. (Phillips v. Bistelli, 2 B. & C. 513.) Acceptance without delivery or something tantamount to delivery of the goods, as delivery of the key of the warehouse where they are at the time (Chaplin v. Rogers, 1 East, 192, 195) is insufficient; but the acceptance may be prior to the actual receipt, and need not be contemporaneous with or subsequent to it. (Cusack v. Robinson, 1 B. & S. 299; L. J. 30 Q. B. When ac261: Kershaw v. Ogden, 3 H. & C. 717; L. J. 34 Ex. 159.) Where a ceptance of joint order for several classes of goods is given, the acceptance of one part is class is a part acceptance of the whole under this section (Elliot v. sufficient. Thomas, 3 M. & W. 170); and acceptance of part is sufficient, although the rest are not even made. (Scott v. Eastern Counties Rail. Co., 12 M. & W. 33.) The delivery of a sample, if considered to be part of the thing sold, is a sufficient acceptance (Hinde v. Whitehouse, 7 East, 588); but it is otherwise where it is a sample merely, and forms no part of the bulk. (Cooper v. Elston, 7 T. R. 14.)

There may

be an acceptance though buyer can still object to the quali ty, &c.

Construc

tive accept

ance by acquiescence.

After some discussion, it seems to be finally settled that there may be an acceptance and delivery of goods within the statute, although the buyer still has a right to object to the quantity or quality of the goods. (Kibble v. Gough, 38 L. T. N. S. 704; following Morton v. Tibbett, 15 Q. B. 429; L. J. 19 Q. B. 382.) There may be an acceptance, although the vendee has had no opportunity of examining all the goods; and equally there may be an acceptance, although it is open to the purchaser to dispute the terms of the contract as alleged by the vendor. (Tomkinson v. Straight, 17 C. B. 697; L. J. 25 C. P. 85.) There may also be a constructive acceptance by acquiescence. Thus, where goods were sent by a named carrier, and a letter of advice was forwarded to the vendee, stating that the credit was three months, and the goods after arrival were seen by him in the warehouse of the carrier, when he told the carrier that he refused to take them, Lut made no communication

Creditor against Principal Debtor and his Surety severally on a
Guarantee for Goods sold.

The plaintiff's claim is against the defendant X. as principal, and against the defendant Y. as surety, for the price of goods sold and delivered by the plaintiff to X. on the guarantee by Y. dated the 30th of October, 1883.

whatever to the vendor till after five months, it was held that this was evidence of acceptance and actual receipt (Bushel v. Wheeler, 15 Q. B. 442); so dealing with a bill of lading as if the person were owner of the property is evidence of the same thing. (Meredith v. Meigh, 2 E. & B. 364; L. J. 22 Q. B. 401.) As to what constitutes a good acceptance, see also Rotide v. Thwaites, 6 B. & C. 388; Rayner v. Grote, 15 M. & W. 359; Marvin v. Wallis, 6 E. & B. 726; L. J. 25 Q. B. 369; Elmore v. Stone, 1 Taunt. 458.) But there can be no acceptance and receipt by the purchaser while the vendor's lien remains, for the vendor's lien necessarily supposes that he retains possession of the goods (Morton v. Tibbett, ante; Carter v. Toussaint, 5 B. & A. 855); and delivery of goods to a wharfinger or agent who has been accustomed to forward goods from the plaintiff to defendant, and a delivery by him to the carrier, is not an acceptance, the carrier having no authority (though named by the vendee) to accept the goods for him, but only to receive them for the purpose of being carried. (Hanson v. Armitage, 5 B. & A. 557; Meredith v. Meigh, ante.) So where goods bought abroad were delivered at a foreign port on board a ship chartered by the purchaser, this was held to be no acceptance. (Acebal v. Lery, 10 Bing. 376; see also Baldey v. Parker, 2 B. & C. 37; Bentall v. Burn, 3 B. & C. 423; Mabberley v. Shepherd, 10 Bing. 99.)

But possession may be given up, and the vendor's lien extinguished, although the goods have not left the vendor's premises (Jacobs v. Latour, 2 Moo. & P. 205), as when the vendor begins to hold as the servant or agent of the purchaser (Castle v. Snowdon, 30 L. J. Ex. 310).

No accept

ance while vendor's

lien

remains.

To constitute a part

payment

money

must ac

Earnest or part payment.]—Where there is no note in writing of the contract, or no acceptance and receipt of the goods, there must be an actual payment of some amount or other, or some pledge given to make the bargain of sale binding. Customary forms of concluding bargains, as when the purchaser draws the edge of a shilling across the hand of the vendor and returns the money into his own pocket, are not tually pass. equivalent to earnest or part payment within the statute (Blenkinsopp v. Clayton, 7 Taunt. 597); and a bargain that the vendor shall take in part payment a debt due from him to the vendee is not in itself a sufficient part payment to dispense with writing, no money having in fact passed nor receipt for the debt been given by the vendee. (Walker v. Nussey, 16 M. & W. 302. But see Spargo's Case, L. R. 8 Ch. App. 407.)

Where the contract of sale is one within the Statute of Frauds, and the statute has not been complied with, the defendant must specially raise the defence of the statute in his statement of defence. (See Order XIX. r. 15; Clark v. Callow, 46 L. J. Q. B. 53).

not gene

Vendor's duty.]-In all contracts of sale it is the vendor's duty Vendor to hold the goods in readiness for delivery, but unless the contract itself provides that the vendor shall deliver, the buyer is bound to fetch the goods. (2 Kent Com. 505.) Where the contract provides that the vendor has to deliver, he is bound to do so on pain of being sued for

rally bound

to deliver.

But may be by agreement.

The time of delivery is not generally of the essence of

the contract.

When

delivery by

the vendor dispensed with.

For claim against a surety for price of goods, see pp. 302-3.

breach of contract. Where the contract fixes the place of delivery, the vendor is not bound to deliver elsewhere, nor indeed is the vendee bound to accept elsewhere; but if the vendor is to deliver and the contract does not specify where the delivery is to take place, he is not bound to deliver or offer to deliver till the place of delivery is notified by the vendee. (Armitage v. Insole, 14 Q. B. 728.) As to the time within which delivery must be made when the contract is silent, it has been said that time is not generally of the essence of a contract for the sale of goods, unless expressly made so by the contract (Martindale v. Smith. I Q. B. 839; Coddington v. Paleologo, L. R. 2 Ex. 193); but in several cases it has been held to be. (See Parker v. Rawlings, 4 Bing. 280; Wimshurst v. Deeley, 2 C. B. 253. Cf. Brandt v. Lawrence, 1 Q. B. Div. 344.)

Sometimes the necessity of delivery or further delivery by the vendor is dispensed with by reason of the vendee's refusal to accept, or declaration that he will not accept. In such a case it is said that the true question is whether the act or conduct of the party evinces an intention no longer to be bound by the contract. (Freeth v. Burr, L. R. 9 C. P. 208.) It has been held, however, that where goods are to be delivered by the defendant to the plaintiff in twelve equal monthly parcels, the omission of the plaintiff to send for the whole of the first parcel as agreed does not exonerate the defendant from delivering the remaining parcels (Simpson v. Crippin, L. R. 8 Q. B. 14); when the delivery was to be by two equal parcels, the defendant was held not to be released from the delivery of the second parcel by reason that the plaintiff had refused to pay for the first in accordance with the contract. (Freeth v. Burr, supra. But in that case the circumstances were very special.)

Effect of Where there is a contract for the sale of goods to be delivered by instalpurchaser's ments the price of each instalment being payable on delivery, and the insolvency. buyer does not pay for one instalment under such circumstances as to give the seller reasonable ground for believing that he will be unable to pay for the instalments to be delivered in future, and that he does not intend to go on with the contract, the seller is justified in repudiating the contract. (Bloomer v. Bernstein, L. R. 9 C. P. 588.) As to what amounts to such a declaration of insolvency by the purchaser as entitles the vendor to refuse further delivery, see The Phonix Bessemer Steel C., 4 Ch. D. 108.

Where goods are to be delivered at a future day, the damages for breach of contract are the difference between the contract price and the market price of the goods on the day when they ought to have been delivered. Gainsford v. Carroll, 2 B. &. C 624; Valpy v. Oakley, 16 Q. B. 941; L. J. 20 Q. B. 380.) If no difference is proved between the contract and market prices, the damages must be nominal. (Valpy v. Oakley, supra.)