Hardell v. McClure

Hubbell J. This case turns upon the construction which this court gives to the statute of frauds. The act of 29 Charles H, though passed nearly two centuries ago, and long since adopted in most of the states of this Union, unfortunately remains yet a subject of litigation and of doubt, at least in the United States. The 17th section of the English act is as follows : “ And be it enacted, 'that after the said four. and twentieth day of June (1677) no contract for the sale of any goods, wares or merchandise, for the price of ¿610 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 something in earnest to bind the bargain, or in ]3art payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged with such contract, or their agents thereunto lawfully authorized.” The 3d section of the statute of frauds of this state is in substance the same. “Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void unless : ' ,1. A note or memorandum of such contract be made in writing and subscribed by the parties to be charged therewith : or 2. Unless the buyer shall, accept and receive part of such goods, or the evidences, or some of them, of such things in action: or 3. Unless the buyer shall, at the time, pay some part of the purchase money. Stat. Wis. 163. These acts have never received a judicial construction in the supreme court of Wisconsin. The question therefore remains to some extent open, and by its importance invites a careful scrutiny and a libei-al and sound determination. [293] The case below was decided upon the weight and authority of the cases which had been ruled in the courts of England, from Towers v. Osborne, in 1724, to Garbutt v. Watson, in 1822; and in tlfe American courts, from Eichenberger v. McCauley, decided in Maryland, inAttü, to Downs v. Ross, decided in New York in 1840. For that long period, embracing the palmy days of the courts of both countries, there seemed to be, if not an established construction, at least a concurrence in the principles upon which the decisions rested, whatever might be the diversity in cases arising in practice. The courts seemed disposed, for reasons perhaps more nice than wise, to give the' statute a strict construction, and not to hold any case within it, unless the property which was the subject of sale was in a shape or condition for delivery at the time of the making of the contract. Hence all contracts for a sale of property which had to be changed in form, or upon which work and labor had to be bestowed by the vendor to prepare it for the acceptance of the vendee, were treated as contracts for work and labor, and held not within the statute. Towers v. Osborne, 1 Strange 506, was the first and leading case in England on this subject. This was a contract for a chariot, which was to be made and delivered at a future day, and Peatt, C. J., ruled it not within the statute. The next case was Clayton v. Andrews, 4 Burr, 2101, which was a contract for wheat then unthreshed. Lord MaNSíteld here approved the principle decided in Towers v. Osborne, and held the contract for the sale of such wheat not within the statute upon the same principle, but assigned as a reason, that it was a contract to be performed in futuro. In Rondeau v. Wyatt, 2 H. Black, decided in 1792, the court disapproved of the reason assigned by Lord MaNS-field, and held that a contract to deliver goods at a future day was within the statute, and that the mere fact that a contract was executory did not save it from the statute. In this case, however, though the reason assigned by Lord [294] MaNSKIElu, in Clayton v. Andrews, was held erroneous, bis Lordship’s decision was review and sustained, upon the principle that the contract embraced work and labor. Graves v. Buck, 3 Maule and Sel. 178, followed in 1814, wherein the court of King’s Bench re-affirmed the former decisions, and held that a contract to deliver oak pins, which were then in the slab, and had to be cut out before delivery, was not within the statute. In the state of Maryland, as early as T7“66, in Eichenberger v. McCauley, 5 Har. & John. 213, Mr. Justice Yates held that a contract to deliver wheat, then unthreshed, was not within the statute ; herein anticipating by one year the ruling of Lord MaNSEield on a precisely similar contract in England. The same doctrine was adopted by the courts of New York. In Cruikshank v. Burrell, 18 Johns. 58, SpeNCER, C. J., reviews the English cases, and upon their authority holds a contract for a wagon, not yet made, not within the statute. The same court, in Sewall v. Fitch, 8 Cow. 215, held a contract for nails, which had to be cut out of the iron before delivery, without the statute; and in Bennett v. Hull, 10 Johns. 364, and Jackson v. Covert, 5 Wend. 139, the principle of Clayton v. Andrews 4 Burr, 2101, was considered and approved, though in these cases the contracts being for the mere delivery of articles at a future day, and no labor to be performed to prepare them for delivery, the contracts were held not within the statute. The same principle was asserted by the learned court of Massachusetts, in Mixer v. Haworth, in 21 Pick., where the purchase of a buggy-wagon, which was at the time nearly completed, but required lining and some trifling additions, was held not within the statute, on the strength of English cases. So far had the law on this important subject been settled, during a-period of a century and a half, when the court of King’s Bench, in Garbut v. Watson, 5 Barn. & Ald. 613, [295] asserted the doctrine that all contracts were within tbe scope and intent of the statute, where the result of the bargain was a sale and transfer of the chattels. That was a contract for Hour, which had to be manufactured or ground from the grain before delivery. The principle of the past cases was fully discussed and considered, and the decisions of Abbott, C. J., Lord MaNSíteld, and Lord Ellenbokough were, by a full bench, overruled. Atkinson v. Bell, 8 Barn. & Cress. 277, followed in 1828, and Smith v. Surnam, 9 B. & C., in 1829, both adopting the new construction, and in similar cases. In the state of New York, Downs v. Ross, 23 Wend. 271, was decided in 1840, which was a contract for the delivery of wheat, unthreshed at the time; and a majority of the court, in a poAverful argument by Justice BeoNsoN, sustained the new English doctrine, while Mr. Justice CoweN, with his usual learning and ability, dissented, holding that the weight of authority should govern. No other courts of the United-States are known to have departed from the original ground. In England the conflict between the older and more recent decisions was settled in-1830, by the statute of 9th Geo. IV, which enacts (chap. 14, § 71), that “ the provisions of the statute of frauds shall extend to all contracts for the sale of goods to the value of ¿610 or 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 fitfor delivery.'" Thus, this vexed question is set at rest in England. In this country, without further statutory provisions, it is impossible to foresee how the majority of courts will incline. Looking to the intent of the law, which was declared in the preamble to be “ for the prevention of frauds and perjuries,” and construing its provisions by the well-known meaning of the [296] language employed, it must be admitted that the earlier decisions confine it to a narrow and technical scope. If the policy of the act was not wholly misconceived, the courts were bound to give it a fair and liberal construction ; and for this reason, it seems to us that the rule of Garbut v. Watson should have been adopted in the first instance ; and although in England it has been deemed necessary to untrammel the bench from the binding force of precedents of long standing and high authority, by a solemn act of parliament, yet, in this young state, where the question is presented somewhat as a case of first impressions, this court is at liberty to adopt the rule which seems most in accordance with reason and sound public policy. We are all inclined to the opinion that the decision of the court below in the present case had the better authority, but not the better reason on its side, and we all believe we shall establish a more intelligible rule, better consult public policy, and more correctly expound and apply the law itself, by reversing that decision and adopting the rule of the English statute, than by attempting to enforce the earlier decisions. We regard the act of 9th Geo. IV, as laying down no new principle, covering no new ground, but as containing, in remarkably clear, simple and explicit language, the true construction of the original act. We desire to adopt that language as the construction which this court will give to the 3d section of the statute of frauds of this state. We deem it far more important that a general statute of pervading application to business transactions should be clearly defined and well understood, than that any series of decisions, however ancient or respectable, should be arbitrarily pursued. The judgment of the court below is reversed, with costs.