49 IMPLIED CONTRACT.-The assent of the parties to a sale may be inferred from their language, or from their conduct;50 as shipping goods ordered,51 in due time,52 and in quantities ordered;53 or accepting goods shipped but not ordered;54 or a nod or gesture;" and signed, but it is always a question of fact depending upon the circumstances. Wharton v. Stouten burgh, 35 N. J. Eq. 266. "When the contract is in writing, the question always is one of construction merely; that is, what the party has expressed by his words, and not what he intended to express. The actual intention as an independent fact can only be shown where the language of the writing is applicable indifferently to more than one object." Hotchkiss v. Higgins, 52 Conn. 205, 213. "In determining which view is entertained in any particular case, several circumstances may be helpful as: whether the contract is of that class which are usually found to be in writing; whether it is of such a nature as to need a formal writing for its full expression; whether it has few or many details; whether the amount involved is large or small; whether it is a common or an unusual contract; whether the negotiations themselves indicate that a written draft is contemplated as the final conclusion of the negotiations. If a written draft is proposed, suggested or referred to during the negotiations, it is some evidence that the parties intended it to be the final closing of the contract." Steamship Co. v. Swift, 86 Me. 248, 259. When a contract is made in duplicate, each is an original, and when the agreement contemplates a writ ing in duplicate, there is no contract until duplicate writings substantially alike are made and signed. Crane v. Partland, 9 Mich. 493. The subject matter of a written contract may be identified by parol. Watson v. Lamb, 75 Ohio St. 481. 49. Kendall Co. v. Bain, 46 Mo. App. 581; Joyce v. Swann, 17 C. B. (N. S.) 84. .55 50. Sanford v. Howard, 29 Ala. 684; Lauder v. Society, 71 Ill. App. 475; Muscatine Water Co. v. Lumber Co. 85 Iowa, 112; Kendall Co. v. Bain, 46 Mo. App. 581; Yancey v. Brown, 35 Tenn. (3 Sneed) 89; Brogden v. Met. Ry. Co., 2 App. Cas. 666; 1 Mechem on Sales, § 242; 1 Page on Contracts, § 50; Benjamin on Sales, § 38. 51. Kaufman Bros. v. Mfg. Co. 78 Iowa, 679; McCormick, etc., Co. v. Richardson, 89 Iowa, 525; McCormick, etc., Co. v. Markert, 107 Iowa, 340; Aultman, Miller Co. v. Nilson, 112 Iowa, 634; American, etc., Co. v. Klarquist, 47 Minn. 344; Crook v. Cowan, 64 N. C. 743. Taylor v. Jones, L. R. 1 C. P. D. 87. 52. See cases in preceding note. 53. Avery v. Willson, 81 N. Y. 341; Bruce v. Pearson, 3 Johns. (N. Y.) 534; Eckert v. Schoch, 155 Pa. St. 530; Oxendale v. Wetherell, 9 B. & C. 386; Richardson v. Dunn, 2 Q. B. 218, 222; Hart v. Mills, 15 M. & W. 85. 54. Cinn., etc., Gas Co. v. Western, etc., Co., 152 U. S. 200; U. S. v. Mfg. Co., 156 U. S. 552; Kinney v. R. R. Co., 82 Ala. 368; Davis v. Badders, 95 Ala. 348; Harris v. Lumber Co., 97 Ga. 465; Boyd v. Heine, 41 La. Ann. 393; Wheat v. Cross, 31 Md. 99 (accepting offer for horse by making draft); Hobbs v. Massasoit Whip Co., 158 Mass. 194; Garst v. Harris, 177 Mass. 72; Larkin v. Lumber Co., 42 Mich. 296; McClary v. Mich. Cent. R. R. Co., 102 Mich. 312; Deane v. Hodge, 35 Minn. 146; Batelle v. Pavement Co., 37 Minn. 89; Rosenfield v. Swenson, 45 Minn. 190; Kiser v. Holladay, 29 Ore. 338; Ind. Mfg. Co. v. Hayes, 155 Pa. St. 160; Watters v. Glendenning, 87 Wis. 250; Thompson v. Douglass, 35 W. Va. 337. 55. The fall of an auctioneer's 56 or from their silence, as taking away a tradesman's wares without anything being said, if there is a duty to speak,57 but not otherwise ;58 although the offer states that silence will imply consent.59 SUFFICIENCY.-The form of the contract for the purchase or sale of personalty is governed by the laws of the place where the contract is made. In jurisdictions where the form of contract is hammer. Payne v. Cave, 3 T. R. 148; Grotenkemper v. Achtermeyer, 74 Ky. (11 Bush.) 222; Fisher v. Seltzer, 23 Pa. St. 308 (the bidder may retract his bid at any time before). 56. Kendall Co. v. Bain, 46 Mo. App. 581; Mactier v. Frith, 6 Wend. (N. Y.) 103; Hoadly v. McLaine, 10 Bing. 483; Mavor v. Pyne, 3 Bing. 285; 1 Mechem on Sales, § 241; Benjamin on Sales, § 38; 2 Blackstone's Commentaries, § 443. 57. Gallup v. Smith, 24 Ill. 584; Hobbs v. Massasoit Whip Co., 158 Mass. 194; Emery v. Cobbey, 27 Neb. 621; Rubber Co. v. Rathery, 102 N. Y. 310; Nicholas v. Austin, 82 Va. 817. The relation of the parties arising out of previous dealings may impose such a duty. Hobbs v. Massasoit Whip Co., 158 Mass. 194. The vendee receiving goods different from good's ordered must notify seller within a reasonable time. Couston v. Chapman, L. R. 2 H. L. (Sc. App.) 250; Beverly v. Gas Light Co., 6 A. & E. 829; Hart v. Mills, 15 M. & W. 85; Richardson v. Dunn, 2 Q. B. 218, 222; Read v. Rann, 10 B. & C. 441. Retention of property by consignee after offer of sale and failure to reply implies an acceptance. House v. Beak, 141 Ill. 290. 58. Prescott v. Jones, 69 N. H. 305; Snyder v. Liebengood, 4 Pa. St. 305; Bieber v. Beck, 6 Pa. St. 198; Royal Ins. Co. v. Beatty, 119 Pa. St. 6; Raysor v. Berkley, etc., Co., 26 S. C. 610; Orcutt v. Roxbury, 17 Vt. 524. 59. Felthouse v. Brindley, 11 C. B. (N. S.) 869. 60. Pritchard v. Norton, 106 U. S. 126; Vrancx v. Ross, 98 Mass. 591; Roubicek v. Haddad, 67 N. J. L. 522; Galt v. Dibrell, 18 Tenn. (10 Yerg.) 146; 3 Page on Contracts, §§ 1722, 1723. Matters bearing upon the execution, the interpretation and the validity of contracts are determined by the law of the place where the contract was made. Matters connected with its performance are regulated by the law prevailing in the place of performance. Scudder V. Bank, 91 U. S. 406. Citing Ferguson v. Fyffe, 8 Cl. & F. 121; Bain v. R. R. Co., 3 H. L. Cas. 1; Lanusse v. Barker, 16 U. S. (3 Wheat.) 147; De Wolf v. Johnson, 23 U. S. (10 Wheat.) 368, 383; Andrews v. Pond, 38 U. S. (13 Peters) 65, 78; Miller v. Tiffany, 68 U. S. (1 Wall.) 310; Adams V. Robertson, 37 Ill. 59; Scott v. Pilkington, 15 Abb. Pr. (N. Y.) 280; Chapman v. Robertson, 6 Paige (N. Y.), 627, 634. "The sale having been made in New York, and being valid by the law of that State, it is valid in this State and the plaintiff is entitled to maintain this action unless the sale was made with an intent to enable someone to violate the laws of this State relative to the sale of intoxicating liquors . A foreign merchant selling goods to residents of this State is not bound to ascertain whether his purchaser has legally complied with the local license law." Eager Co. V. Burke, 74 Conn. 534, 537; Brogden v. Metropolitan Ry. Co. (1877), 2 App. Cas. 666 H. L. cf. Beverly v. Lincoln Gas Co. regarded as a rule of evidence, the law of the forum controls.61 In other jurisdictions, the prescribed form is held to be essential to the validity of the contract, and then the law of the place where the contract is made controls. 62 MISTAKES.—A mutual mistake of fact in making the contract prevents mutual consent, and there would be no contract or sale. Consequently the Act does not apply. 63 Section 4. Statute of Frauds.—(1.) A contract to sell or a sale of any goods or choses in action of the value of one hundred dollars or upwards shall not be enforceable by action unless the buyer shall accept part of the goods or choses in action so contracted to be sold or sold, and actually receive the same or give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged or his agent in that behalf. (2.) The provisions of this section apply to every such contract or sale, notwithstanding that the goods may be intended to be delivered at some future time, or may not at the time of such contract or sale 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; but if the goods are to be manufactured by the seller especially for the buyer and are not suitable for sale to others in the ordinary course of the seller's business, the provisions of this section shall not apply. (1837), 6 A. & E. 829; Cornish v. Abington, 28 L. J. Ex. 262, 4 H. & N. 549; Fishel v. Bennett, 56 Conn. 40; Sachs & Sons v. Garner, 111 Iowa, 424; Orcutt v. Nelson, 67 Mass. (1 Gray) 536; Abberger v. Marrin, 102 Mass. 70. "A voluntary conveyance of goods made by the owner at his domicile, in a form which is sufficient there and also at common law, is effectual to transfer the title, although they may at the time be in another State, unless the statutes or local policy of the State forbids." Ward v. Con necticut Pipe Mfg. Co., 71 Conn. 345, 355. 61. Kleeman v. Collins, 72 Ky. (9 Bush.) 460; Emery v. Burbank, 163 Mass, 326; 28 L. R. A. 57; Heaton v. Eldridge, 56 Ohio St. 87; 36 L. R. A. 817; Leroux v. Brown, 12 C. B. 801. 62. Scudder v. Bank, 91 U. S. 406; Hall v. Cordell, 142 U. S. 116; Miller v. Wilson, 146 Ill. 523; Kling v. Fries, 33 Mich. 275; Dacosta v. Davis, 24 N. J. L. 319; Wilson v. Mill Co. 150 N. Y. 314; Perry v. Iron Co. 15 R. I. 380. 63. Sec. 73. (3.) There is an acceptance of goods within the meaning of this section when the buyer, either before or after delivery of the goods, expresses by words or conduct his assent to becoming the owner of those specific goods. At common law, an oral contract for the sale of goods for any amount was valid and enforceable without acceptance and receipt, earnest, part payment or memorandum.1 The statute introduced a new rule of evidence. An entire contract cannot be within the statute as to part of it and without the statute as to the residue." American courts have uniformly held executory contracts within the statute, and the Act expressly applies to executory as well as executed contracts.5 1. Benjamin on Sales, § 90. 2. Hinchman v. Lincoln, 124 U. S. 38; Stone v. Dennison, 30 Mass. (13 Pick.) 1; Third Nat. Bank v. Steel, 129 Mich. 434; Shindler v. Houston, 1 N. Y. 261; Marsh v. Rouse, 44 N. Y. 643; Bailey v. Ogden, 3 Johns. (N. Y.) 399; Phillips v. Bistoli, 2 B. & C. 511; Baldey v. Parker, 2 B. & C. 37; 1 Mechem on Sales, § 291; 2 Page on Contracts, § 741. "The general effect of the statute in the cases to which it applies, will be seen to consist chiefly in the introduction of a new rule of evidence which requires a kind of proof that the common law did not deem necessary." 1 Mechem on Sales, § 291. The statute "has no effect of any kind upon the formation of the contract, but solely on the means whereby it is to be proved." 2 Page on Contracts, § 741. "I think it is now finally settled that the true construction of the Statute of Frauds, both the 4th and the 17th sections, is not to render contracts within them void, still less illegal, but is to render the kind of evidence required indispensable when it is sought to enforce the contract." Maddison v. Alderson, 8 App. Cas. 469, 488. See Taylor v. Great East. R. R. Co. (1901), 1 K. B. 774. A defendant may always waive the protection of the statute of frauds and the courts will not interpose the defense. Townsend v. Hargraves, 118 Mass. 325. Citing Middlesex Co. v. Osgood, 70 Mass. (4 Gray) 447. 3. Atwater v. Hough, 29 Conn. 508, 515; Loomis V. Newhall, 32 Mass. (15 Pick.) 159; Irvine v. Stone, 60 Mass. (6 Cush.) 508; Cooke v. Millard, 65 N. Y. 352, 357; Dows v. Ross, 23 Wend. (N. Y.) 270; Thayer v. Rock, 13 Wend. (N. Y.) 53; Crawford v. Morrell, 8 Johns. (N. Y.) 253; Cooke v. Tombs, 2 Anst. 420; Chater v. Beckett, 7 T. R. 201; Mechelen v. Wallace, 7 A. & E. 49; Thomas v. Williams, 10 B. & C. 664. 66 The contract to purchase was an entire contract, and if any part of it is within the statute of frauds it is invalid in toto." Johnson & Miller v. Buck, 35 N. J. L. (6 Vroom) 338, 341. Citing Irvine v. Stone, 60 Mass. (6 Cush.) 508; Biddell V. Leeder, 1 B. & C. 327. 4. Bowers v. Anderson, 49 Ga. 143; Over v. Greenfield, 107 Ind. 231; Weeks v. Crie, 94 Me. 458; Lamb v. Crafts, 53 Mass. (12 Met.) 353; Waterman v. Meigs. 58 Mass. (4 Cush.) 497; Gilman v. Hill, 36 N. H. 311; Crookshank v. Burrell, 18 Johns. (N. Y.) 58; Ide v. Stanton, 15 Vt. 685; Nichols v. Mitchell, 30 Wis. 329. CONTRACTS OF SALE OR MANUFACTURE.-The statute applies only to the contracts to sell and sales of goods and not to contracts to manufacture goods. In sales or contracts to sell existing goods, there is no difficulty in applying the statute, but in contracts to sell future goods, the question arises whether the contract is a contract to sell or a contract to manufacture the goods." ENGLISH RULE.-If the contract calls for expenditure of labor and material to result in a chattel, the title to which the manufacturer can transfer at the time of the delivery, there is a contract of sale; but if the result is not anything which would be a proper subject for sale, it is a contract for labor and material.8 "It seems now to be well settled in accordance with the rules of just interpretation as well as the dictates of reason and common sense that a contract for the sale of goods is not without the purview of the statute merely because it is executory." Atwater v. Hough, 29 Conn. 508, 513. Citing Rondeau v. Wyatt, 2 H. Bl. 67; Garbutt v. Watson, 5 B. & Ald. 612; Downs v. Ross, 23 Wend. N. Y.) 270. To the same effect are Hight v. Ripley, 19 Me. 137; Edwards v. Grand Trunk Ry. Co., 48 Me, 379, 54 Me. 105; Burrell v. Highleyman, 33 Mo. App. 183; Carman v. Smick, 15 N. J. L. 252; Finney v. Apgar, 31 N. J. L. 266; Pawelski v. Hargreaves, 47 N. J. L. 334; Mechanical Boiler Cleaner Co. v. Kellner, 62 N. J. L. 544; Bennett v. Hull, 10 Johns. (N. Y.) 364; Jackson v. Covert, 5 Wend. (N. Y.) 139; Hanson v. Rolter, 64 Wis. 622. "Lord Tenterden's Act" expressly extended the English statute to executory contracts. Benjamin on Sales, § 893. 5. 1 Mechem on Sales, § 293; Benjamin on Sales, § 93. English courts differed as to whether executory contracts were within the early statute. Towers v. Osborne, 1 Str. 506; Clayton v. Andrews, 4 Burr. 2101, and Groves v. Buck, 3 M. & S. 178, held they were not. Rondeau v. Wyatt, 2 H. Bl. 63; Cooper v. Ellston, 7 T. R. 14, and Garbutt v. Watson, 5 B. & Ald. 613, held they were. "A contract for the sale of goods which is purely executory is as much within the statute as is one to be executed in presenti." Finney v. Apgar, 31 N. J. L. (2 Vroom) 266, 270. 6. 1 Mechem on Sales, § 294; Benjamin on Sales, § 94. 7. Atwater v. Hough, 29 Conn. 508, 514; Cason v. Cheely, 6 Ga. 554; Higgins v. Murray, 73 N. Y. 252. 8. Cooke v. Millard, 65 N. Y. 352, 357; Lee v. Griffin, 30 L. J. R. Q. B. 252, 1 B. & S. 272; Howe v. Palmer, 3 B. & Ald, 321; Maberly v. Sheppard, 10 Bing. 99; Baldey v. Parker, 2 B. & C. 37; Atkinson v. Bell, 8 B. & C. 277; Cooper v. Elston, 7 T. R. 14; 1 Mechem on Sales, § 302; Benjamin on Sales, § 103. Connecticut.-If the contract calls for the expenditure of labor and material to produce a particular chattel, the title to which when completed and ready for delivery to the maker must then be transferred to the person ordering it and may be retained by the maker or otherwise disposed of by him, the contract is one of sale and within the statute, but if the expenditure of labor and materials benefits the employer only, it is a contract for labor and materials and not within the statute. This is substantially the English |