A could not sue even in quasi-contract to recover the purchase price. He must permit the performance of the contract or lose.1

The same rule applies to personal service contracts. If A orally agrees to work two years for B, and voluntarily quits after six months, he may not recover for services rendered, so long as he has no excuse for stopping and so long as B is ready to have him work.2

91. Provisions of the seventeenth section.-The seventeenth section of the Statute of Frauds relates to the sale of goods. It has been copied substantially into the statute law of most of the states. Instead of "10 pounds sterling," the amount is usually "$50 or upwards."

The provisions of this section are as follows: "That no contract for the sale of any goods, wares, and merchandise for the price of 10 pounds sterling or upwards shall be allowed to be good, except: (1) the buyer shall accept part of the goods so sold and actually receive the same;

(2) or give something in earnest to bind the bargain, or in part of payment;

(3) 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 authorized."3

92.

Construction of the seventeenth section.There are, therefore, three methods to enforce a

1 Thomas v. Brown, L. R. 1 Q. B. 714 (Eng.).

2 Philbrook v. Belknap, 6 Vt. 383.

3 See subject, SALES; Bird v. Munroe, 66 Me. 337, LEADING ILLUSTRATIVE CASES.

contract for the sale of goods in order to take it out of the Statute. The first is to accept and receive a part of the goods; the second, to give part payment; and the third to write a memorandum.*

The greatest difficulty which arises under this section of the Statute is to determine what executory contracts for the sale of goods, wares or merchandise fall within its requirements. There are three lines of decisions called the English, the New York, and the Massachusetts rules, respectively.

English doctrine. This rule holds that all contracts which have as their purpose the sale of goods, whether those goods are made or in existence, or are to come into existence, fall within the scope of the Statute and must satisfy its requirements. This is the case even if the work and the labor in the making of the chattel are of the most importance.5 Thus, a contract for the manufacture of a special kind of carriage would be within the terms of the Statute.

New York doctrine. This rule holds that only such contracts as are made for the sale of goods which are in existence when the contract is made are within the Statute. Here, a contract to manufacture a spe

cial carriage would not be in the Statute.

Massachusetts doctrine. Here the rule is stated that "a contract for the sale of articles then existing, or such as the vendor in the ordinary course of his business manufactures or procures for the general market, whether on hand at the time or not, is a con

4 Browne, Statute of Frauds (5th ed.), chap. XIV.

5 Lee v. Griffin, 1 B. & S. 272 (Eng.); Brown v. Sanborn, 21 Minn. 402. 6 Cooke v. Millard, 65 N. Y. 352; Parsons v. Loucks, 48 N. Y. 17; Meincke v. Falk, 55 Wis. 427.

tract for the sale of goods, to which the Statute applies. But on the other hand, if the goods are to be manufactured especially for the purchaser, and upon his special order, and not for the general market, the case is not within the Statute." Here, the special order would not be in the Statute. But an order to make a carriage usually manufactured would be in the Statute.

In England choses in action are not in the Statute. But it is generally held otherwise in the United States. Even the sale of stocks, promissory notes, bonds and the like are regarded as sales of goods, wares and merchandise and fall within the Statute.R

93. Satisfaction of the requirements of the Statute of Frauds-Memorandum.-To create a memorandum which will satisfy the Statute of Frauds, either for the fourth or the seventeenth section, and thus make the contract enforcible, the parties, the subject matter, and usually the consideration must appear." If the writing is under seal, for the purposes of a court of law, the consideration need not appear.10 Moreover, where the memorandum is of a contract for the sale of goods, the consideration need not appear.11

The memorandum must be signed by the party to be charged or his agent authorized to sign for him.

7 Goddard v. Binney, 115 Mass. 450; see subject, SALES.

* Tisdale v. Harris, 20 Pick. 9 (Mass.); Greenwood v. Law, 55 N. J. L. 168.

9 Grafton v. Cummings, 99 U. S. 100.

10 This rule is further changed by statutes. In Illinois, for instance, the consideration need not appear in any case. Stimson, American Law,

Furthermore, the subject matter should be so described in the memorandum that it can be identified. Parol evidence is admissible, however, to assist in determining what is meant by any particular expression in the description of the subject matter.12

A letter beginning with the word "Sir" and signed by the party to be charged but not containing the name of the person to whom it is addressed is not a sufficient memorandum for the purposes of the Statute. It fails to state the name of the other party to the contract. But if, for instance, the envelope in which the letter came can be produced and it contains the name of the other party, as addressee, the letter and the envelope will be regarded as one document, and thus the Statute would be satisfied with reference to the rule that the parties must appear in the memorandum.13 This combination of papers is called "incorporation by reference."

The mem

orandum may consist of various letters, papers and documents, but they must be connected and complete. Likewise, extrinsic evidence is admissible to explain what is there, but never to supply what is not present in the collected papers constituting the memorandum.14

The memorandum may be made at any time subsequent to the formation of the contract and before any action is brought.15 One state, Illinois, seems to

have held otherwise.16

12 Anson, Contracts (Huffcut 's 2d ed.), § 105.

13 Pearce v. Gardner (1897), 1 Q. B. 688 (Eng.).

14 Beckwith v. Talbot, 95 U. S. 289; see subject, EVIDENCE.

15 Browne, Statute of Frauds (5th ed.), § 352a.

16 Richardson v. Richardson, 148 Ill. 563.

As stated, the memorandum must be signed by the party to be charged or his duly authorized agent, but one party to the contract may not act as the agent of the other party for the purpose of signing." Auctioneers and brokers, however, may be agents of both parties for this purpose. .18 The authority given to the agent to sign need not be in writing under the English Statute.1 This rule has been changed in some states by legislation, which requires the authority of the agent to be in writing.20 Moreover, the rule under the English Statute must be distinguished from the rule that to execute a deed under seal the authority of the agent to execute must be under seal and hence, in writing.21 It is only the authority of the agent to sign the contract, and not the authority to convey, about which the Statute is concerned, and which, under the English Statute, need not be in writing.

The signature need not be an actual subscription of the party's name. It may be a mark, or be printed or stamped, if such mark or printing is intended as a signature. Furthermore, the signature may appear at any place on the memorandum.22

There are two lines of authorities with reference to the necessity for the delivery of the memorandum. One requires that there be a delivery; the other

17 McElroy v. Seerey, 61 Md. 389.

18 Wright v. Dannah, 2 Camp. 203 (Eng.).

19 Horton v. McCarty, 53 Me. 394.

20 Illinois.

21 Statutory changes.

Although substantially adopted by most jurisdictions,

states have modified and amended the Statute of Frauds in different particulars. See also subject, AGENCY.

22 Clason v. Bailey, 14 Johns. 484 (N. Y.).