Greenwood v. Law

■The opinion of the court was delivered by Vast Syckel, J. Law, the plaintiff below, gave to Greenwood, the defendant, a mortgage upon lands in this state for the sum of $3,700. Law alleged that Greenwood entered into a parol agreement with him to assign him this mortgage for the sum of $3,000, and brought this suit to recover damages for the refusal of Greenwood to execute said parol agreement. [175] On the trial below, a motion was made to non-suit the •plaintiff, on the ground that the alleged agreement was within the statute of frauds. The,refusal of the trial court to grant this motion is assigned for error. Lord Chief Justice Denman, in Humble v. Mitchell, reported in 11 Ad. & E. 205, and decided in 1840, said that no case directly in point on this subject had been found, and he held that shares in an incorporated company were not goods, wares and merchandise within the seventeenth section of the statute of frauds. He overlooked the cases of Mussell v. Cooke, reported in Precedents in Chancery 533 (decided in 1720), and Crull v. Dodson, reported in Select Cases in Chancery 41 (decided in 1725), in which the contrary view was taken. In the case of Pickering v. Appleby, Com. 354, this question was fully argued before the twelve judges, who were equally divided upon it. The cases decided in the English courts since 1840 have followed Humble v. Mitchell. They will be found collected in Benjamin on Sales (ed. 1888), in a note on page 106. In this country a different rule prevails in most of the states. In Baldwin v. Williams, 3 Metc. 365, a parol contract for •the sale of a promissory note was held to be within the statute. In Connecticut and Maine a contract for the sale of shares in a joint stock company is required to be in writing. North v. Forest, 15 Conn. 400; Pray v. Mitchell, 60 Me. 430. Chief Justice Shaw, after a full discussion of the subject in Tisdale v. Harris, 20 Pick. 9, concludes that a contract for the sale of shares in a manufacturing corporation is a contract for the sale of goods or merchandise within the statute of frauds, and in the absence of the other requisites of the statute must be proved by some note or memorandum in writing signed by the party to be charged or his agent. He did not regard the • argument, that by necessary implication the statute applies only to goods of which part may be delivered as woi'thy of much • consideration. An animal is not susceptible of part delivery, yet undoubtedly the sale of a horse by parol is within the statute. The exception in the statute is, when part is deliv [176] ered; but if there cannot be a delivery in part, the exception cannot exist to take the case out of the general prohibition. Bonds and mortgages were expressly held to be goods and chattels in Terhune v. Executors of Bray, 1 Harr. 53. That was an action of trover for a bond and mortgage. Chief Justice Hornblower, in deciding the case, said that, although the attachment act and letters of administration seem to distinguish between rights and credits and goods and chattels, and although an execution against the latter will not reach bonds and notes, yet there is a sense in which upon sound legal principles such securities are goods and chattels. This sense ought to be applied to these words in this case. Reason and sound policy require that contracts in respect to securities for money should be subject to the reasonable restrictions provided by the statute to prevent frauds in the sale of other personal property. The words “ goods, wares and merchandise ” in the sixth section of the statute are equivalent to the term “personal property,” and are intended to include whatever is not embraced by the phrase “ lands, tenements and hereditaments ” in the preceding section. In my judgment, the contract sued upon is within the statute of frauds, and it was error in the court below to refuse to non-suit. For affirmance — None. For reversal — The Chancellor, Chief Justice, Depue, Garrison, Magie, Reed, Yán Syckel, Bogert, Brown, Clement, Smith. 11.