Baldwin v. Williams

44 Mass. 365 | Mass. | 1841

Wilde, J.

This action is founded on an oral contract, and the question is, whether it is a contract of sale within the statute of frauds.

The plaintiff’s counsel contends, in the first place, that the contract is not a contract for the sale of the notes mentioned in the declaration, but a mere agreement for the exchange of them ; and, in the second place, that if the agreement is to be considered as a contract of sale, yet it is not a contract within that statute.

As to the first point, the defendant’s counsel contends, that an agreement to exchange notes is a mutual contract of sale. But it is not necessary to decide this question, for the agreement of the defendant, as alleged in the declaration, was, to pay for the plaintiff’s two notes $2000 in cash, in addition to two other notes; and that this was a contract of sale is, we think, very clear.

The other question is more doubtful. But the better opinion seems to us to be, that this is a contract within the true meaning of the statute of frauds. It is certainly within the mischief thereby intended to be prevented ; and the words of the statute, “ goods ” and “ merchandize,” are sufficiently comprehensive to include promissory notes of hand. The word “ goods ” is a word of large signification ; and so is the word “ merchandize.” Merx est quicquid vendi potest.

In Tisdale v. Harris, 20 Pick. 9, it was decided that a contract for the sale of shares in a manufacturing corporation *s a contract for the sale of goods or merchandize within the statute ; and the reasons on which that decision was founded seem fully to authorize a similar decision as to promissory notes of hand. A different decision has recently been made in Eng land, in Humble v. Mitchell, 3 Perry & Davison, 141. S. C. 11 Adolph. & Ellis, 207. In that case it was decided that a contract for the sale of shares in a joint stock banking company was not within the statute of frauds. But it seems to us that the reasoning, in the case of Tisdale v. Harris, is very cogent and satisfactory ; and it is supported by several other cases. In Mills v. Gore, 20 Pick. 28, it was decided that a bill in equity might be maintained to compel the re-delivery of a deed and a promissory note of hand, on the provision in the Rev. Sts. c. 81, § 8, which gives the court jurisdiction in all suits to compel the re-delivery of any goods or chattels whatsoever, taken and detained from the owner thereof, and secreted nr withheld, so that the same cánnot be replevied. And the same point was decided in Clapp v. Shephard, 23 Pick. 228 In a former statute (St. 1823, c. 140), there was a similar prolistDtt which extended expressly-to “any goods or chattels, deed, bond, note, bill, specialty, writing or other personal property.” And the learned commissioners, in a note on the Rev. Sts. c. 81, § 8, say, that the words “ ‘ goods or chattels ’ are supposed to comprehend the several particulars immediately following them in St. 1823, c. 140, as well as many others that are not mentioned.”

The word “chattels” is not contained in the provision of the statute of frauds ; but personal chattels are moveable goods, and, so far as these words may relate to the question under consideration, they seem to have the same meaning. But however this may be, we think the present case cannot be distinguished in principle from Tisdale v. Harris; and upon the authority of that case, taking into consideration again the reasons and principles on which it was decided, we are of opinion that the contract in question is within the statute of frauds, and consequently that the motion to set aside the nonsuit must be overruled.