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or less similar facts. There is no need here for reference to particular cases which have, on their own facts, been held to show or not to show an entire contract.180

Many courts recognizing that the question is entirely one of fact—though, properly speaking, it is one of conclusion, rather than of actual fact-have shifted the burden of the conclusion to the jury. In Weeks v. Crie, the trial court had instructed the jury as a matter of law, that if the two contracts were made at the same interview they constituted a single agreement in this respect. The upper court said, “Whether such negotiations for separate articles result in one entire contract for the whole, or whether the contract for each remains separate and distinct, may depend upon many circumstances. It raises a question of fact properly to be passed upon by a jury. * If the circumstances are such as to lead to a reasonable supposition that the parties intended that the whole series of transactions should constitute one

*

130-By way of illustration, in Ford v. Howgate, 106 Me. 517, the contract was held to be entire although covering shares of stock and an interest in an automobile.

One keenly analytical textwriter, Williston, Contracts, Sec. 863, however, lays down this proposition:-"The essential test to determine whether a number of promises constitute one contract or more than one is simple. It can be nothing else than the answer to an inquiry whether the parties assented to all the promises as

a single whole, so that there would have been no bargain whatever, if any promise or set of promises were struck out." But as the writer himself states and as is obvious from the decisions discussed, this test is exceedingly Indefinite in its application.

A clear distinction should be kept in mind between this ques

tion of whether there is one single contract or several separate ones and the question whether one single contract is itself entire or is divisible, so that breach of one part is or is not breach of the whole contract. For instance, in Herbert v. Rhodes, etc. Co., 106 Ill. Ap. 579, a contract for the sale of twelve dozen pairs of pants was held to be divisible, so that the buyer could keep one dozen pairs and reject the other eleven dozen pairs. It seems impossible, however, that, had the question of the Statute been involved, the court would have held it to be twelve separate contracts. Cases involving only the entirety or divisibility of an admittedly single contract should not properly be treated as authority on the ques. tion whether there is one contract or more.

131–94 Me. 458, 80 Am. St. 410.

trade, they may be regarded as one entire contract; otherwise not.

Whether the negotiations constituted one contract or more was a question of fact, and should have been submitted to the jury.”

This shifting of the responsibility to the jury would seem undesirable. Inasmuch as the jury have no definition of the distinction between one contract and several contracts to work on, there can be no pretense of consistency in their decisions. Although the conclusion sought is in a sense a question of fact, it is at best a conclusion only. In reaching it the judge at least has the benefit of prior conclusions which may be analogous, even though they be not so frequent as to constitute a rule.

4. SATISFACTION OF THE STATUTE BY PAYMENT, OR GIVING

OF EARNEST MONEY

All that has just been said of receipt and acceptance as satisfying the Statute is true also—so far as it can be applied—of payment as a satisfaction of the Statute.

In addition to its reference to receipt and acceptance of goods the Statute also permits proof of an oral contract if the buyer has given “something in earnest to bind the bargain or in part payment.” The phrases “in earnest” and “in part payment” are treated by the courts as being synonymous.

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Time of Payment.—The payment need not be made at the time of the making of the contract, but may be at any time thereafter.188

132-Groomer v. McMilan, 143 Mo. Ap. 612; Howe v. Hayward, 108 Mass. 54; Hudnut v. Weir, 100 Ind. 501.

133—Driggs v. Bush, 152 Mich. 53. See also the cases cited in the following notes.

Where, however, a statute like that of New York expressly pro

vides that the buyer "shall at the time pay some part of the purchase money," the rule is other. wise. Effect is given to the requirement and it is held that while payment need not be concurrent with the original making of the agreement, at least, when it is made, “the parties must reaffirm or restate the terms of the con. tract." And this reaffirmance must be express and for the purpose. Koewing v. Wilder, N. Y., 128 Fed. 558; Colton v. Raymond, N. Y., 114 Fed. 863; Milos V. Covacevitch, 40 Ore. 239.

Medium of Payment. The payment need not be in money. As has already been pointed out, the Statute applies to contracts of barter and exchange as well as to technical sales. “Payment” is accordingly construed to cover the goods, services, or any other thing which forms the quid pro quo for the title.184

Since the cancellation of an existing debt is perfectly valid consideration for a promise, it follows that the payment may be in the form of canceling a debt. Thus, giving credit on notes of the seller is such a payment by the buyer as will take the matter out of the Statute.186

-Promise as Payment—However, just as in the case of alleged receipt of part of the goods, mere words are not sufficient of themselves to constitute payment. There must be payment. “The payment may be made in money or property, or in the discharge of an existing debt, in whole or in part, due from the vendor to the purchaser. Or the extinguishment of, or payment upon a promissory note held by the latter against the former. A mere agreement to apply the purchase money to either of these objects would not be enough, because the contract would still rest in words, and nothing more. The agreement to pay the note or satisfy the debt must be consummated and carried into effect by an act which shall be obligatory upon the purchaser and enable the vendor to enforce the contract of sale. The note should be delivered up and cancelled; or, if the purchase money falls short of complete payment, it should be extinguished by an indorsement made upon it in writing which shall operate effectually as an extinguishment pro tanto. And if the purchase money is to be applied to pay an open account, in whole or in part, the creditor and purchaser should part with some written evidence of such application which shall bind him and put it in the power of his debtor and vendor to enforce the contract."136

134—"The term “purchase money' as used in this statute, means simply the compensation or consideration which the seller is to receive for his property," Johnson V. Tabor, 101 Miss. 78, citing Devin v. Himer, 29 Ia. 297; Driggs v Bush, 152 Mich. 53; Bra

bin v. Hyde, 32 N. Y. 523; Koewing V. Wilder, N. Y., 128 Fed. 558; Bur. ton v. Gage, 85 Minn. 355, assignment of another contract as pay. ment.

Cf. Hewson v. Peterman Mfg. Co., 76 Wash. 600, in which it was held that the buyer's resignation from a company was not part pay. ment even though it might have been a valid “consideration" for the seller's promise.

135—Johnson v. Tabor, 101 Miss. 78; Diekman v. Young, 87 Mo. Ap. 530.

Mutuality Required.—The alleged payment, to be really such, must be not only delivered by the buyer, but also must be accepted by the seller. Thus, mere physical receipt of a draft by the seller, even though the buyer intended it as payment, is not payment if the seller has never accepted it as such.187 And, in general, the receipt and acceptance of a check, draft or other paper is not payment, unless it is received by the seller and agreed that it is an absolute payment; and this must be clearly established.” 138 A fortiori, mere tender of payment which is

" refused by the seller is not enough to take the case out of the Statute. 139

Conversely, a physical transfer by the buyer to the seller of things which he does not intend the seller to keep in payment, will not amount to a payment."

140

136-Brabin v. Hyde, 32 N. Y. 619; Accord, Gorman v. Brossard, 120 Mich. 611; Milos V. Covacewitch, 40 Ore. 239.

137—Johnson v. Morrison, 163 Mich. 322; Young v. Ingalsbe, 208 N. Y. 503; Driggs v. Bush, 152 Mich. 53.

138–Groomer v. McMillan, 143 Mo. Ap. 612, holding also that a draft, not so received in payment, is not even something given in earnest. Accord, Hessberg v. Welsh, 147 N. Y. S. 44; Bates v.

Dwinell, 101 Neb. 712, 164 N. W. 722; Knohn v. Bantz, 68 Ind. 277, note; Combs v. Bateman, 10 Barb. (N. Y.) 573, note.

A check which is received in payment is "payment" within the meaning of the Statute, Logan v. Carroll, 72 Mo. Ap. 613; McLure V. Sherman, 70 Fed. 190.

139—Hershey Lumber Co. v. St. Paul etc. Co., 66 Minn. 449.

140–Weir v. Hudnut, 115 Ind. 525.

Through Agents.—Payment need not be made directly to the seller, but may be received and accepted by an

agent. 141

5. EFFECT OF FAILURE TO SATISFY THE STATUTE,

If there be no memorandum, no part payment, nor receipt and acceptance of the goods, the original Statute provides that the contract shall not "be allowed to be good”. In the various states the phraseology differs. Some declare such contracts “invalid,” others make them "void.” Still others provide that they “shall not be binding." This variation of form of expression, however, seems to have little if any effect upon the judicial interpretation. To say that a contract “shall not be allowed to be good” seems obviously only a lengthier way of saying that it is “void,” or “invalid.” Except for sporadic instances, the courts do treat them as synonymous. The effect of the Statute depends upon the meaning given by the courts to these expressions.

Does Not Destroy the Contract.-As was indicated heretofore, there is considerable question whether the primary purpose of the Statute is to prevent perjury or to protect property.148 Whatever the answer to that may be, it may be said in general that the Statute is treated as being for the benefit of the parties to the contract, rather than for the benefit of the public. It is not applied to the prevention of perjury nearly so widely as its literal statement, that the contract shall not be allowed to be good, would admit.

As between the parties, if the parties to the suit do not themselves choose to take advantage of the Statute,

141-Case V. Cramer, 34 Mont. 142; Jones v. Wattles, 66 Neb. 533. But such alleged agent must at least have had authority to make a contract. City Drug Co. V. Am. Soda Co., 13 Ga. Ap. 435.

142-See ante, p. 238. The object of the law is to prevent false swearing and perjury, Michels v. West, 109 Ill. Ap. 418; Townsend V. Hargraves, 118 Mass. 325.

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