The giving of earnest and the part payment of the price, as they are independent of the main bargain, may be proved by oral evidence. The part payment must be accepted as such, and on account of the price. There is authority for the view that the part payment or the something given in earnest to bind the contract "need not be made in money, but that any thing of value which by mutual agreement is given by the buyer and accepted by the seller on account, or in part satisfaction of the price, will be equivalent to part payment." 1 And it has been held in England that under the Statute of Limitations there is part payment of the debt where there is an agreement that the debtor should board and lodge the creditor at a fixed price per week, in deduction of the debt.
It is essential to have some idea of what the note or memorandum in writing must be. The parties need not reduce their contract as a whole to writing; they may make a contract of which only part is in writing. Thus A may agree to build a garage for B, and they may draft a simple writing to that effect, which B signs. This writing may not mention the price. Parol evidence may then be made to show what was the price agreed upon, as the writing is a sufficient note or memorandum to make possible the rounding out of the contract of the existence of which it is proof.
The difference between a mere memorandum and a written contract has been expressed as follows: 2 When a memorandum in writing is to be proved as a com pliance with the statute, it differs from a contract in writing in that it may be made at any time after the contract, if be fore action commences; and any number of memoranda may be made, all being equally originals; and it is sufficient if signed by one of the parties only, or his agent ; and if the terms of the bargain can be calculated from it, altho it be not expressed in the usual form of an agreement.
The note or memorandum need not be formal. It should contain the terms and subject matter of the agreement, and the names or descriptions of the parties, and need be signed only by the person who is sought to be charged. Generally speaking, if the note or memorandum consists of several separate papers, they must be attached to each other, so as to they are in reality but one instrument, or it must be clear from their contents that they relate to one another. Parol evidence must not be admitted to connect them.
What may be a note or memorandum has been well explained as follows : The court is not in quest of the intention of parties, but only of evidence under the hand of one of the parties to the contract that he has entered into it. Any document signed by him and containing the terms of the contract is sufficient for that purpose. A letter to a third party has been held enough; an affidavit made in a different matter has been held to suffice; and I should say that an entry in a man's own diary, if it were signed by him and its contents were sufficient, would do. The question is not, what is the inten tion of the person signing the memorandum, but is one of fact, viz., is there a note or memorandum?
7. Contracts for work and labor.—A, who is a maker of cabinets and desks, accepts an oral order from B to make a desk for him according to certain specifications. A makes the desk and tenders it to B, who refuses to accept it, and upon being sued takes refuge under the Statute of Frauds. What is the po sition of the parties? A, it is presumed, has supplied all the materials, as well as the work; the result of his work upon his materials is a desk—a chattel. Under the English law, it is held that such a contract is a contract of sale between A and B. Conversely, if A supplies no materials, but only the work and labor, the contract is one only of work and labor, in which case B would not be able to plead the Statute of Frauds.
In certain of the American states, A's contract would not be looked upon as a contract of sale, but as a contract for work and labor, and therefore B's plea would not be good. Thus in Massachusetts, it is held that since the contract is for a chattel made to a special order, it is for work and labor. In New York, the view is that since the contract is for a chattel not in existence when the contract is made, it is for work and labor. In Quebec, the tendency would be, under the decisions, to regard the contract as a mixed contract of sale and for labor, and to allow oral evidence, on the ground that the transaction is commercial in na ture, but is not a contract of sale. This is a very gen eral statement of the law, and fuller explanation would require a complete outline of the decisions to date.
8. When title passes.—It may be of the utmost im portance to determine when title in property which is sold passes from the seller to the buyer. The gen eral rule is that a contract is complete the moment the consent of the parties is expressed, altho delivery may not be then made. If the title does not pass to the purchaser at once, the seller bears the risk of the loss of the thing before delivery. His creditors may seize the property, and until the title passes, the sel ler is entitled to appropriate any gain or increase that may arise. If lie dies, the title to the property passes to his heirs or representatives. If the title passes to the purchaser at the moment of the contract by the mere consent of the parties, then the vendor's cred itors or heirs have no more right to it than he has. If the thing perishes while in his possession, if he is not at fault, the purchaser must suffer the loss. The English rule is to the effect that unless it is otherwise agreed, the goods remain at the seller's risk until the propertytherein is transferred to the buyer, but when the property therein is transferred to the buyer the goods are at the buyer's risk, whether delivery has been made or not. If delivery has been delayed by the fault of one or the other, the goods are said to be at the risk of the party in fault as regards any loss which might not have occurred but for such fault.