In Quebec the Statute of Frauds, as amended by Lord Tenterden's Act, is embodied in Article 1235 of the Civil Code. The article, however, does not adopt the principles of the Statute of Frauds without mak ing certain changes: for example, the Statute of Frauds fixes the limit at £10 sterling only in the case of the sale of merchandise, whereas Article 1235 ap plies the limit of fifty dollars to four different cases. Again, Lord Tenterden's Act apparently does not deny the right to prove by witness that some act has been done to interrupt the prescription which results from a partial payment, or payment on account; whereas Article 1235 lays down the opposite rule' Article 1235 reads as follows: In commercial matters in which the sum of money or value in question exceeds $50, no action or exception can be main tained against any party or his representatives, unless there is a writing signed by the former, in the following cases: (1) Upon any promise or acknowledgment whereby a debt is taken out of the operation of the law respecting the limi tation of actions; (2) upon any promise or ratification made by a person of the age of majority of any obligation con tracted during his minority; (3) upon any representation or assurance in favor of a person to enable him to obtain credit, money or goods thereupon ; (4) upon any contract for the sale of goods, unless the buyer has accepted or re ceived part of the goods, or given something in earnest to bind the bargain.
The foregoing rule applies altho the goods are in tended to be delivered at some future time, or are not ready for delivery at the time of the contract.
In so far as a contract of sale is concerned, how ever, the rules in the English law provinces and in the Province of Quebec are practically alike. In the United States, there is a conflict of decisions upon the question, whether or not the rule applies to goods which have to be manufactured to fulfil the contract. In the English law provinces and in Quebec this diffi culty does not arise. As we have just seen, the Civil Code provides that the rule is applicable altho the goods are intended to be delivered at some future time, or are not ready for delivery at the time of the contract; and the Sale of Goods Act provides that the rule applies to the sale of goods which may be in tended to be delivered at some future time, or which at the time of the contract may not be actually made, or fit for delivery, or for the making or completing of which some act may be necessary. Lord Tenterden's Act specially provides that the principles of the Statute of Frauds should apply as well to agreements of sale. Thus this principle is in force thruout Can ada either by virtue of Lord Tenterden's Act or by virtue of the Sale of Goods Act, accordingly as these are adopted by the various English law provinces, and in the Province of Quebec under Article 1235.
6. Satisfaction of the statute.—It is clear, there fore, that where there is a sale of goods of over fifty dollars (or over the minimum amount fixed by the laws of the particular province—see Section 92, supra), proof cannot be made by oral testimony, un less the statute can be satisfied by proof of at least one of the fojlowing circumstances: (a) That there has been part payment; (b) Acceptance and receipt by the buyer; (c) Some written note or memorandum of the con tract signed by the parties or their authorized agent.
What may be acceptance under the rule has been the subject of many decisions. The Sale of Goods
Act provides a rule which would be generally accept able, namely, that there is an acceptance of goods within the meaning of the act when the buyer does any act in relation to the goods, which recognizes a pre existing contract of sale, whether there be an accept ance in performance of the contract or not. This definition brings out the distinction between an ac ceptance of the goods and a recognition of the con tract. If there has been some act on the part of the alleged purchaser which shows that he recognized the fact that there was a contract, an action against him will be maintained without the necessity of written proof. He will be held to have accepted.
This does not mean, however, that he will be de prived of his right to show that he did not accept the goods, or that he will not be able to plead that the goods were not up to sample or otherwise. It means simply that one of two possible defences is not open to him. If he had not recognized the contract in any way, that is, accepted the fact of its existence, and he had not signed any written document, he could plead the fact and get the action dismissed, irrespective of the fact that he might have another plea that the goods were not up to sample, or were not what he ordered. But if it is held that there was not sufficient evidence of his having recognized the existence of the contract, then, whether he has signed a writing or not, the creditor may bring action, tho the debtor's right to raise the question of the proper fulfilment of the contract is still reserved to him.
Thus in an English case, the defendant, a miller, orally bought of the plaintiff by sample eighty-eight quarters of wheat. The wheat was shipped by the plaintiff's agent on a barge, which arrived at the de fendant's mill, and the next morning thirty-eight of the sacks were hoisted up into the mill and examined by the defendant, who then directed the bargemen to send up no more, as the wheat was not equal to sample. The same day he told the plaintiff's agent that the wheat was not equal to sample and that he would not take it. The defendant subsequently re turned the thirty-eight sacks to the barge. In an action for the price, or for damages for non-accept ance, the jury were directed that there was evidence of an acceptance sufficient to satisfy the Statute of Frauds, altho the defendant was not thereby pre eluded from rejecting the wheat if not equal to sample. As a matter of fact, in this case the jury found that the wheat was equal to sample, and that the defendant had accepted it within the meaning of the 17th section of the Statute of Frauds, and gave a verdict for the plaintiff. This decision was con firmed lYy the English Court of Appeals. It is not essential in every case that the buyer must have had actual physical delivery of the goods. He may have had a constructive possession or delivery of them. The parties may have agreed that the seller shall hold the goods as bailee of the buyer, in which case the buyer has the constructive possession of them. They may be in the possession of the buyer for some other purpose, and he and the seller may agree that hence forth he shall retain possession as owner. They may be in the possession of a third party, and it may be agreed that they shall remain in the possession of such third party as bailee for the buyer. In all these cases no actual physical delivery is necessary, because the buyer has the constructive possession.