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CHAP. III.
Sect. VI.

Contract defeasible within the year.

Contract executed by one of the parties.

The fact that a contract, not to be performed within a year,

is defeasible within the year, will not take a case out of the statute. Thus it was held that a contract, whereby a coachmaker agreed to let a carriage for a term of five years, in consideration of receiving an annual payment for the use of it, but which, by the custom of the trade, was determinable at any time within that period, upon the payment of a year's hire, was an agreement not to be performed within a year, within the meaning of the statute, and must be in writing.(a)

The statute only applies to contracts which are not to be performed by either side within a year, and therefore where a contract has been completely performed on one side within the year, the case will not be within the statute. The meaning of the section is, that no action shall be brought to recover damages in respect of the non-performance of such contracts as are referred to in it; its design was to prevent the setting up, by means of fraud and perjury, of contracts or promises by parol, upon which parties might otherwise have been charged for their whole lives, and for that purpose it requires that certain contracts shall be evidenced only by the solemnity of writing, and has no application to actions founded upon an executed consideration.(6) Where a landlord who had demised premises for a term of years at £50 a year, agreed with his tenant to lay out £50 in making certain improvements upon them, the tenant undertaking to pay

(a) Birch v. Earl of Liver. pool, 9 B. & C. 392; S. C. nom. Burch v. Earl of Liverpool, 4 Man. & Ry. 380; and see Roberts v. Tucker, 3 Ex. 632 ; Dobson v. Collis, 1 H. & N. 81;

Re Pentreguinea Coal Co. 4 De
G. F. & J. 541.

(6) Souch v. Strawbridge, 2 C. B. 814, per Tindal, C.J.; and see Re Pentreguinea Coal Co. 4 De G. F. & J. 541.

CHAP. III.
Sect. VI.

him an increased rent of £5 a year during the remainder of the term, it was held that the landlord having done the work might recover arrears of the £5 a year, though the

agreement had not been signed by either party.(a) An agreement entered into by a contractor to share in Vendition

of right. the profits of an undertaking is not, although the contract is not capable of being performed within the year, such an agreement as is required by the Statute of Frauds to be in writing, and may, therefore, be proved by parol. The contract is merely one for the vendition of a right; it is performed as soon as the agreement is struck, and from that time the parties have all the mutual rights and liabilities of partners in the concern.(6)

(a) Donellan v. Read, 3 B. & Ad. 906; and see Mavor V. Pyne, 11 Moo. 2; 3 Bing. 285; Cherry v. Heming, 4 Exch. 631 ; see also ante, p. 156.

(6) McKay v. Rutherford, 6 Moo. P. C. 414: see also Essex v. Essex, 20 Beav. 449.

CHAPTER IT.

SALE OF GOODS.

(4. IV.

Contracta fox the sale of yrde, , of merchandizes,

HE seventeenth section of the Statute of Frauds provides that no contract for the sale of any goods, wares, or merchandizes, for the

price'a) of ten pounds 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 payment, 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. (6)

The general intention of the statute is that there should be a writing, (c) but it will be seen that the seventeenth section provides that the contracts mentioned in it shall not “be allowed to be good,” except the buyer shall

1. “Accept part of the goods so sold, and actually receive the same."

Exception contained in the evenWenth section,

(a) By Lord Tenterden's Act, 9 Geo. IV. c. 14, s. 7, the word * value" was substituted for "price."

(b) See ante, p. 147 as to shares in companies.

(C) Bushel v. Wheeler, 15 Q. B. 445, per Denman, C. J.

2. “Or give something in earnest to bind the bargain,

Chap. IV. or in part 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 lawfully authorized.” Before Lord Tenterden's Act(a) was passed, the de- What contracts

are within the cisions were conflicting as to whether or not an execu- statute. tory agreement was within the Statute of Frauds. (6) By the seventh section of Lord Tenterden's Act, after reciting that it had been held that the provisions of the seventeenth section of the Statute of Frauds “ do not extend to certain executory contracts for the sale of goods, which nevertheless are within the mischief thereby intended to be remedied,” it was enacted that the provisions of the seventeenth section “shall extend to all contracts for the sale of goods of the value of ten pounds sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, or rendering the same fit for delivery.”

These two sections must be construed as incorporated together, the word “value” being substituted for "price.”' (c) (a) 9 Geo. IV. c. 14.

Cooper v. Elston, 7 T. R. 14; (6) In Towers v. Osborne, 1 and Garbutt v. Watson, 5 B. & Str. 506; Clayton v. Andrews, Ald, 613, in which case Clayton 4 Burr. 2101 ; and Groves v. v. Andrews was expressly overBuck, 3 M, & Sel. 178, it was ruled, it was held that such held that such agreements were agreements were within the not within the statute. In statute. Rondeau v. Wyatt, 2 H. Bl. 63 ; (c) Scott v. Eastern Counties

Chap. Iy. It is often a question as to whether a contract is for the When contract sale of goods, wares, and merchandizes, or whether it is is for sale of

for work and labour done, and materials furnished.(a) goods, and when for work

The rule appears to be, that if the subject-matter of and labour done and the contract is such, that it will result in the sale of a materials furnished. chattel to be afterwards delivered, then the action

must be for goods sold and delivered ; if, however, the subject matter of the contract is such that when completed it will not result in anything which can properly be said to be the subject of a sale, then the action must be for work and labour done, and materials furnished.

A contract to print so many copies of a treatise at a certain price per sheet is not a contract for the sale of goods within the statute, but a contract for work, labour, and materials.()

The case which may be considered to have settled the law on this point is that of Lee v. Griffin.(c) There the action was brought against an executor to recover a sum of money for two sets of artificial teeth ordered by his testatrix. It was held that the contract was for the sale of goods, wares, or merchandizes, and that the plaintiff could not recover in an action for work and labour done, and materials provided. Crompton, J. said: “The

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