30 S.C.L. 199 | S.C. Ct. App. | 1845
Curia, per
The question to be determined in this case is, whether the contract between the parties falls within the seventeenth section of the Statute of Frauds. There was no earnest money paid, nor part delivery. The thing contracted for being incapable, at the time, of delivery ; nor was there such a memorandum, in writing, as would have been sufficient to bind both parties. So that if the statute embraces the contract, its requisites have not been complied with. The contract, to be good at all, must be so independently of this section of the statute. It is difficult to reconcile the English decisions on the section of the statute referred to. In many instances, they turn on exceedingly refined and unsatisfactory distinctions. At one time, it was held that executory contracts, that is, such as contemplated the future delivery of goods, in solido at the time of the contract, were entirely without the reach of the statute. But since the decision of Lord Loughborough, in the case of Rondeau vs. Wyatt, 2 H. Blac. 63, the distinction between executory and executed contracts has been wholly disregarded. Such a distinction, where the thing contracted for was in existence at the time, was too narrow to satisfy the provisions of the statute. But in the case referred to, a distinction is taken between mere contracts of sale, and those contracts for the sale of goods where work and labor is previously to be bestowed upon
There is another ground on which the decision below may stand, independently of that on which it rests. By the terms of the contract, I do not understand that plaintiff undertook absolutely to sell to the defendant the sashes, to be delivered in futuro^JVhe contract, as proved, was -that plaintiff was requested to order four sashes, (fec.\ The plaintiff undertook the agency, on the understanding that he was to be paid when he had procured the sashes under the order. If so, I do not think the case within the statute. It has been recently decided in England, “that an agreement by the master of a sloop, to convey corn, within a given time, from J to H, and having delivered it at H, to fetch from B, and deliver to the plaintiff, at J, a cargo of coals, at 29s. per chaldron, to be paid for on delivery, is not within the Statute of Frauds, and need not be in writing. The court thought there was no contract by the master to sell coals, but to procure and provide them for the plaintiff, at B, and afterwards to bring them to J; and that if the defendant had found it impossible to procure coals at B, no action would have lain against him, for a breach of contract to deliver coals.” 1 Bing. 399, as extracted by Chitty on Contracts. Now, reverse the situation of the parties in the ease under consideration, and how does the case standi? The plaintiff here did not undertake to sell to the defendant the articles, but undertook to order them from Germany. If he could not have procured them there, he would have been liable to no action for a
This decision of the English court has been made since an important amendment to the Statute of Frauds has been enacted by Parliament, which very much extends the provisions of that statute. The latter decisions, under the statute, as thus amended, must, therefore, be regarded as being very much controlled and modified by statutory regulation. By the statute 9th George 4th, ch. 14, S. 7, after a recital of what had been the tenor of judicial decisions on the statute of Charles, it is provided that the said enactments shall extend to all contracts for the sale of goods of the value of £10 sterling and upwards, notwithstanding the goods map 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 making or completing thereof, or rendering the same fit for delivery.
This enactment presupposes the doctrine of the decisions, in conformity with which this judgment has been made, to have been the prevailing law on the subject, and, therefore, must be regarded as a recognition of their authority at the time. Up to the time of the Act, I regard all the English adjudications as consistent, after they had taken their new direction by the judgment of Lord Lough-borough. The case of Smith vs. Surman, 17 Eng. C. L. R. 443, was mainly relied on to shew that the English doctrine had undergone a change.
That case seems to be this — A. being the owner of trees growing on his land, verbally agreed with B, while they were standing, to sell him the timber, at so much per foot. B afterwards offered-to sell the buts of the trees to a third person, and said he would convert the tops into building stuff. A afterwards required B to pay for the timber which he bought of him. B wrote a letter in answer, saying he had bought the timber, but that he had bought it as-sound, and that it was not so. Held, first, that the con
The great difficulty in the case, was whether the contract was one for the sale of lands; and when that was overcome by the court, it stood simply thus, that B had contracted for so much timber, in solido, by the foot. A had nothing more to do with it, by way of preparing it for delivery. What B was to do, was for his own advantage. The work and labor of A, formed no part of the contract, and, therefore, had nothing to do with the decision. If it had been incumbent on A, to fell and prepare this timber, then, according to our doctrine, he would have recovered. According to these views of the law, the decision below must be affirmed. Motion dismissed.