The writing need not be very formal. It need not specify the amount that is to be paid; in other words, it need not specify the consideration. Some courts say, however, that it must contain this fact or statement. It may be in pencil. I presume it would be sufficient if written on a blackboard with chalk. But it must be a writing of some kind signed by the party to be charged; that is the essential thing. The courts have also said that this writing need not be on a single piece of paper. If the two parties have made an agreement by a series of letters, an offer on the one side and an acceptance on the other, and the agreement can be fully shown from the series of letters, this is sufficient writing.
If a man buys a farm and pays a part of the price and goes away saying that he will pay the remainder within a week, expecting then to do so and receive a deed, the seller, if he chooses, can escape giving that deed and parting with his farm. The payment of a part of the money does not bind the bargain, nor will the courts, though knowing this, compel the seller to give such a deed. The reader may ask, if this is the law, cannot the farmer practise a fraud on the buyer by receiving his money and keeping it and the farm too? He cannot do both things. If he refuses to give the deed he must, on the other hand, return the money; if he refuses to do this the buyer can compel him by a proper legal proceeding to refund the amount. In this way the buyer gets his money back again, but not the farm that he bought.
It is said that this statute is as often used as a shield to protect men in doing wrong as in preventing frauds. In numberless cases persons, just like the farmer imagined, have used this statute as a means to protect them in not carrying out their agreements. This happens every day.
This statute also relates to other matters. One clause says that an executor or administrator cannot be required to pay anything at all out of his own pocket on any promise that he has made unless it be in writing. Every one knows about the duties of an executor or administrator. An executor is one who settles the estate of a person who has died leaving a will directing what shall be done with his wealth. An administrator is a person who settles the estate of a deceased person leaving no will. He is appointed by the law, which fully states his duties. Let us suppose that an executor is employed to settle an estate, and that he employs a carpenter to make some repairs on a house belonging to the estate. The contract is fairly enough made between the carpenter and the executor. Let us also suppose that he has no lien on the house for the work that he has done, or that he has lost his lien by reason of not having filed it in time, as the law requires. Afterward he goes to the executor and demands payment for the repairs that he has made. Let us suppose that the estate is insolvent and cannot pay all of its debts in full. At the time of making this contract neither party supposed this would happen. But, unhappily, debts have come to light so large and numerous that there is not property enough to pay all the creditors everything that is due them. The executor says to the carpenter: "There is not property enough to pay all of the creditors and you, unfortunately, must fare like all of the rest, and you cannot be paid a larger percentage on your share than the others." To the carpenter this would be unwelcome news, and he would doubtless say to the executor: "I made this contract with you expecting that you would pay me, and if the property of the estate is not sufficient you ought to pay me this. I am a poor man and cannot afford to lose any of my hard-earned money." The executor might say to him: "I am as poor as you and I cannot afford to pay you out of my own pocket, and in law you cannot compel me to do this." And, in truth, the carpenter could not do this unless the executor had made a contract in writing, agreeing in any event to pay whether there was money enough belonging to the estate or not.
Another clause says that a person cannot be required to pay the debt of another unless the agreement is in writing. If A went into a store to buy goods and B should be a little afraid to trust him, and C, a friend of A's, should happen to be present and say to the merchant, "Let A have these goods and if he does not pay you I will," this would be the promise to pay the debt of another; and if A should not pay it C could shield himself behind this statute and escape without paying anything.
There is another clause relating to the sale of ordinary merchandise. The law says that contracts for ordinary merchandise must be in writing if the amount is over $50. In some States the amount is $35. Long ago it was decided that this statute did not relate to contracts for work, and they therefore must be carried out or fulfilled in the same manner as though no statute existed, for work is not merchandise.
VIII. CONTRACTS FOR THE SALE OF MERCHANDISE
To make a contract of sale there must be, as we have seen, two or more parties, and a consideration must also be given. The sale is complete when the property, or title, or ownership in the thing bought passes from the seller to the buyer. It is not necessary in order to make a valid sale to deliver the thing bought. If the title or ownership in the thing is not transferred, the sale still remains incomplete.
The law supposes or assumes that a person will always pay for a thing purchased. If I should go into a store, inquire the price of a book, and, after learning the price, should say to the salesman, "I will take the book," and he should wrap it up and give it to me and I should then walk out with the book under my arm, he doubtless would come to me and say in his politest manner: "Why, sir, you have forgotten to pay me for it." Suppose I should say: "Oh, yes; but I will come in to-morrow and pay." But if I happened to be a stranger, and especially if there was a suspicious look about me, and he should say they did not give credit in that store, and I was still inclined to walk out with my book, he could insist that there had been no sale and that I must give the book to him. The law would protect him in taking it from me if he did not use undue force. The law assumes, unless some different rule exists, that the buyer will always pay for the thing purchased, yet in law there is no sale unless the purchase money is actually paid.
Of course, credit may be given in a store—that may be the practice; and if it is understood between buyer and seller that credit is to be given, then a sale is complete as soon as the bargain is struck. Indeed, so complete is the sale that if the buyer should say to the salesman, "I will leave this here and return and take it in a short time," and during his absence the store should be burned up and everything perish, the buyer would be obliged to pay for the book. In other words, after it had been sold, if still kept there the seller would be merely the keeper, or bailee, which is the legal term, and he would be obliged to use only ordinary care in keeping it. Suppose a thief should come in and take it away—would the seller be responsible for the loss? Not if he had used the same care in protecting it as in protecting his own property.