In part payment something having value must pass from the buyer to the seller; 16 M. & W. 302; Brand v. Brand, 49 Barb. (N. Y.) 348; an unaccepted tender to the vendor on a call for part payment by him will not suffice to bind him; as when a re mittance by mail of a check was returned to the sender ; Edgerton v. Hodge, 41 Vt. 676; nor the promissory note of the buyer; Combs v. Bateman, 10 Barb. (N. Y.) 573; Hooker v. Knab, 26 Wis. 511; Krohn v. Bantz, 68 Ind. 278 ; even if there were an express agreement that the note should be received as part payment, which in this instance there was not ; id.; in this case it was held that the note was not only ineffectual as part payment, but that 'it could not be. re garded as earnest, sufficient to bind the gain. After referring to the Massachusetts decision, supra, that, as used in the statute of frauds, earnest was regarded as part pay ment of the price, the court said: "But, conceding that it may be something distinct from payment, it is quite clear that it must have some value. The note has no value whatever, because it had no consideration to support it, and its payment could not, therefore, have been enforced. To say that such a note has value, is but grasping at a shadow, and losing sight of the substance. The contract for the sale of the hogs not being valid, the note given in consideration of the agreement therefor was based upon no valid consideration ;" id.; Ely v. Ormsby, 12 Barb. (N. Y.) 570. But see 13 M. & W. 58; Byles, Bills *386. But when the con tract was partly performed by compliance with a condition, and a note was tendered for the price, it was considered that the statute was satisfied ; Gray v. Payne, 16 Barb. (N. Y.) 277. A note of a third person accepted as payment is sufficient; Combs v. Bateman, 10 Barb. (N. Y.) 573; or a check if paid is a payment relating back to the time when given ; Hunter v. Wetsell, 17 Hun (N. Y.) 135; a stipulation that borrowed money owing from the seller to the buyer shall be treated as part payment will avail; Mattice v. Allen, 33 Barb. (N. Y.) 543; but not an agreement to credit an account due from the seller and send goods for the bal ance; Galbraith v. Holmes, 15' Ind. App. 34, 43 N. E. 575 ; or a promise to pay a part of the purchase money to a creditor of the vendor or credit it in the account against him ; Artcher v. Zeh, 5 Hill (N. Y.) 204;
but if such debt be actually paid it is good ; LI U. C. Q. B. 340; or if accepting the.prom ise the creditor discharge the vendor; Cot terill v. Stevens, 10 Wis. 425; but the pay ment must be made at the time of the agree ment; Paine v. Fulton, 34 Wis. 83; and if there was no entry in the account stating that the credit was given on account of the transactions in suit it was insufficient; Teed v. Teed, 44 Barb. (N. Y.) 96. A mere agree ment that the price shall go in settlement of an existing account is not sufficient with out more ; Brabin v. Hyde, 30 Barb. (N. Y.) 265; 16 M. & W. 302; 16 L. J. Ex. 120; nor is an agreement to sell one article and take another in part payment; Chapin v. Potter, 1•Hilt. (N. Y.) 366. Part payment may be by the actual delivery of anything of value, as a chattel; Dow v. Worthen, 37 Vt. 108 ; but a delivery of goods must be sufficient within the statute of frauds if they were in litigation; Walrath v. Ingles, 64 Barb. (N. Y.) 275.
With respect to the time at which part payment must be made, it is in some states required to be at the time of making the contract; Crosby Hardwood Co. v. Tester, 90 Wis. 412, 63 N. W. 1057. It was so held in New York ; Sprague v. Blake, 20 Wend. (N. Y.) 63; though in a later case the ques tion was raised and not determined; Haw ley v. Keeler, 53 N. Y. 119 ; the same day is sufficient; Brabin v. Hyde, 30 Barb. (N. Y.) 265; and so was a payment asked and re ceived on the following day, the contract be ing held to be then made for the first time; Bissell v. Balcom, 39 N. Y. 281. And when a check is given and paid upon presentation it is a payment at the time; Hunter v. Wet sell, 84 N. Y. 549, 38 Am. Reri. 544; so also a check upon a deposit in bank ; McLure v. Sherman, 70 Fed. 190. In some cases it has been held that payment is not so restricted; 7 U. C. C. P. 133; Thompson v. Alger, 12 Mete. (Mass.) 435; Davis v. Moore, 13 Me. 424; Gault v. Brown, 48 N. H. 189, 2 Am. Rep. 210. It is to be observed that this ques tion of time arises with more frequency un der the New York statute which does not provide for earnest eo nontine, but only for part payment "at the time," as does also the Wisconsin statute.
See Benjamin; Blackburn: Story, Sales; Browne; Reed, Statute of Frauds; FRAUDS, STATUTE OF; SALES ; GOD'S PENNY.