CHAPTER XIII. CONTRACTS WHICH MUST BE IN WRITING. 1. CONTRACTS WITHIN SECTION 4 AND SECTION 17 OF THE STATUTE OF FRAUDS. (d) 1. Contracts to charge executors and administrators on any special promise to answer damages out of their own estate.(e) [Such a contract would be anyhow void as a "nudum pactum," unless there were some consideration to support it.] 2. Contracts to answer for the debt, default, or miscarriage of another.(e) These are contracts in the nature of a guarantie. (See post, Book II. Chap. VI.) 3. Contracts in consideration of marriage. (e) This does not apply to a promise to marry between principals. (f) (See post, Book II. Chap. VIII.) 4. Contracts for the sale of interests in land. (e) This means any contract (not operating as a transfer) which relates to the sale of any interest in land. For example. An agreement to assign, grant, or surrender a lease; an agreement for the sale of "fructus naturales" before severance from the soil. Illustration. Mrs. Cocking agreed with Ward, in consideration of £100, to surrender her tenancy of a farm to the landlord, and to prevail on him to accept Ward as his tenant in her place. This was held to be an agreement (d) 29 Carl. 2, c. 3. [See the statute at length in the Appendix.] (e) Sect. 4. (f) Cork v. Baker, 1 Str. 34. for the sale of an interest in land within the meaning of the statute. (a) 5. Contracts which are primâ facie not to be completed within a year. (b) Messrs. Boydell brought out an illustrated edition of Shakespeare in eighteen numbers, two of which, at least, were to come out annually. Blundell agreed to take in the numbers; received, and paid for the earlier numbers as they came out, and then refused to take any more. In an action by Boydell for breach of contract, it was held, that as nó agreement in writing was proved, Blundell was not bound to take the subsequent numbers.(c) 6. Contracts for the sale of goods of the value of £10 and upwards. (d) The contract must be in writing, whether the goods are in existence at the time of the making of the contract or not.(e) EXCEPT (i) In cases (1), (4), (5), and (6), where the consideration is executed. Illustration. Bluett had some illegitimate children by Knowlman, and agreed with her verbally to pay her £300 per annum, so long as she should maintain and educate them. At Michaelmas, 1870, he discontinued his payments, but she continued the maintenance and education of the children as before. In May, 1873, she sued Bluett for two-and-a-half years' arrears, and the Court (a) Cocking v. Ward, 15 L. J. C. P. 245. A right to shoot over land and to take away the game shot is an interest in land within the 4th section of the Statute of Frauds: Webber v. Lee, 9 Q. B. D. 315(C. A.). (b) Sect. 4, and per HAWKINS, J., in Davey v. Shannon, 4 Ex. D. 81. (c) Boydell v. Blundell, 11 East, 154. held, that as the consideration was executed, the statute did not apply, and she was entitled to recover.(ƒ) a part of the Goods. (g). [§ ACCEPTANCE MAY BE 1. Actual. That is with the intention of taking possession as owner. a. Illustration. Bistoli, a foreigner, bought at an auction some jewellery. When knocked down to him, he held it in his hands a few minutes, and handed it back to the auctioneer, saying he had been mistaken as to the value. In an action for not accepting the jewellery, the defendant pleaded the Statute of Frauds, and the above facts were put forward as evidence of an acceptance and receipt, sufficient to take the case out of the operation of the statute. The Court held, that it was a question for the jury, whether there had been an actual acceptance by Bistoli, with an intention of taking possession as owner.(h) 3. Gardner bought goods of Grout. After the sale he went to Grout's warehouse and got samples out of the bulk of the goods bought. The samples were weighed and entered against him in (f) Knowlman v. Bluett, L. R. 9, Ex. 307. (h) Phillips v. Bistoli, 2 B. & C. 511. Grout's book. Grout refused to complete the sale, and in an action by Gardner for not delivering the goods, the Court held the above facts to have been an acceptance of a part of the goods, sufficient to destroy Grout's defence under the statute.(a) 2. Constructive. Where the vendee has exercised some dominion over the goods. a. Illustration. Rogers bought a stack of hay of Chaplin, and then resold part of it. He was held to have done an act inconsistent with a right of property continuing in the vendor, and to have accepted the hay within the meaning of the statute.(b) 3 Brengeri bought a carriage of Beaumont a coachbuilder; he ordered certain alterations to be made, and then sent for and took a drive in it, saying he intended to take it out a few times, as he wanted it to pass for a second-hand carriage for purposes of exportation. He afterwards refused to take it; and, in an action by Beaumont, it was held that, by assuming to deal with it as his own, he had accepted it. (c) § ACTUAL RECEIPT. Where the vendor has parted with the possession of the goods, and placed them under the control of the vendee. (a) Gardner v. Grout, 2 C. B. N. S. 340. (b) Chaplin v. Rogers, 1 East, 192. § There is also what may be somewhat paradoxically called Constructive actual receipt." 1. Where the vendor retains the possession of the goods, but under an altered character, so that he has lost his right of lien over them. Illustration. Elmore, a livery stable keeper, sold to Stone a pair of horses. Stone told him he had no place to put them in, and Elmore must keep them at livery for him. Elmore transferred them from his sale stable to his livery stable. In an action by Elmore for the purchasemoney, it was held that, the above facts showed a delivery to, and a receipt by, Stone; and that Elmore had lost his lien on the horses, his character of vendor being changed to that of agent for the purchaser. (d) 2. Where the goods are in the possession of the vendor's agent, there will be a receipt by the vendee as soon as the agent has "attorned" to him; that is, recognised him as owner. Illustration. Burn bought a hogshead of wine of Baker and Farnley, which was lying in the London Docks, and received from them a delivery order and invoice. He lost the delivery order, and refused to pay for the wine. In an action by the assignees in bankruptcy of Baker (d) Elmore v. Stone, 1 Taunt. 158. |