5. Contracts which are primâ facie not to be completed within

a year. (a)
Illustration. 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 no agreement in
writing was proved, Blundell was not bound to take
the subsequent numbers. (b)

6. Contracts for the sale of goods of the value of £10 and upwards.

The contract must be in writing, whether the goods are in existence at the time of the making of the contract or not. (d)

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 held, that as the consideration was executed, the statute did not apply, and she was entitled to recover. (e)

(a) Sect. 4, and per HAWKINS, J., in Davey v. Shannon, 4 Ex. D., 81. (b) Boydell v. Blundell, 11 East, 154.

(c) Sect. 17.

(d) 9 Geo. 4, c. 14, s. 7. Lord Tenterden's Act.

(e) Knowlman v. Bluett, L. R. 9, Ex. 307.

(ii) In case (6) where the buyer

1.Accepts, and

2. Actually receives

a part of the Goods. (f)

[ACCEPTANCE MAY BE

1. Actual. That is with the intention of taking possession as owner.

(f) Sect. 17.

a. Illustration. Bistoli, a foreigner, bought
at an auction some jewelry. 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 jewelry, 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 ac-
ceptance by Bistoli, with an intention
of taking possession as owner. (g)
8. 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
Grout's book. Grout refused to com-
plete 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

(g) Phillips v. Bistoli, 2 B. & C. 511.

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)

B. 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.

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,

(a) Gardner v. Grout, 2 C. B. N. S. 340.

(b) Chaplin v. Rogers, 1 East, 192.
(c) Beaumont v. Brengeri, 5 C. B. 301.

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 purchase-
money, it was held that, the above facts
shewed a delivery to, and a receipt by,
Stone; and that Elmore had lost his
lien on the horses, his character of ven-
dor 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 and Farnley for the price, it was held, that there could be no actual receipt of the wine by Burn until the delivery order had been accepted by the dock company, or the latter had consented to hold the wine for him. (e)]

(iii) Also in case (6) where the vendee gives something in earnest to bind the bargain, or in part payment. (ƒ) [Any sum so paid however small will suffice.

(d) Elmore v. Stone, 1 Taunt. 158.
(e) Benthall v. Burn, 3 B. & C. 423.
(f) Sect. 17.

(iv) In all the cases where there is a memorandum in writing of the agreement or bargain. (a)

§ ESSENTIALS OF THE WRITTEN MEMORANDUM. 1. The names of the parties.

It must contain,—

Illustration. Williams undertook to build certain cottages for William Owens and John Thomas, who handed him a guarantie of Thomas Lake, in the following terms :— "Sir, I beg to inform you that I shall see you paid to the sum of £800 for the ensuing building, which you undertake to build for Messrs. Thomas and Owens of Caploch.

"I am, yours, &c.,

"THOMAS LAKE."

This, in an action on the guarantie, was held not to be an agreement, inasmuch as the name of Williams, the other party to the contract, did not appear therein. (b) 2. The subject matter.

3. All the material terms, so that the question is not left

in doubt.

Illustration.

Sir John Bailey was in treaty with the Hon. Mr. Fitzmaurice for a lease of a house and stables, which were held by Fitzmaurice for two different terms of years. Letters passed between the parties, embodying some of the terms of the contract, but no mention was made of the commencement or duration of the lease of the stables. In an action by Fitzmaurice for not completing, it was held that these were material points, the omission of which was fatal to the validity of the agreement. (c)

4. (a.) The consideration, under section 4, [except in the case of a guarantie; where; it is now made unnecessary by section 3 of the Mercantile Law Amendment Act,