* The same observation may be made in respect to the clause of which we are now treating, that we have already had occasion * to make of other clauses in the fourth section, namely, that when a contract, originally within its provisions, has been entirely executed on one side, and nothing remains but the payment of the consideration, this may be recovered, notwithstanding the statute, (h) But whether a recovery can be had on the * original contract, or only on a quantum meruit, is not entirely clear upon the authorities, (i) Upon principle, however, we should say that a recovery in such case can be had only upon a quantum meruit. (J)

We now pass to the seventeenth section. Let us first inquire what satisfies the condition, that the buyer shall accept and actuof Tolley v. Greene, 2 Sandf. Ch. 91, the Assistant Vice-Chancellor intimated an opinion, that a contract which cannot be performed within a year, except upon a contingency which neither party, nor both together, can hasten or retard, such as the death of one of them or of a third person, is not within the statute. But we are not aware that such a distinction finds any support in the decided cases. See also Packet Co. v. Sickles, 5 Wallace, 580; Esty v. Aldrich, 46 N. H. 127; Emery v Smith, 46 N. H. 151; Thouvenin v. Lea, 26 Texas, 612; Updike v. Ten Broeck, 3 Vroom, 105.

(gg) Sheahy v. Adarene, 41 Vt. 541. (h) This point was adjudged in Don-ellan v. Read, 3 B. & Ad. 899. In that case a landlord who had demised premises for a term of years, at £50 a year, agreed with his tenant to lay out £50 in making certain improvements upon them, the tenant undertaking to pay him an increased rent of £5 a year during the remainder of the term (of which several years were unexpired), to commence from the quarter preceding the completion of the work. And it was held, that this was not within the statute of frauds, as an agreement "not to be performed within one year from the making thereof," no time being fixed for the performance on the part of the landlord During the argument, Parke, J., interrupted the counsel to say' "If goods are sold, to be delivered immediately, or work contracted for, to be done in less than a year, but to be paid for in fourteen months, or by more than four quarterly instalments, is that a case within the statute ? In Bracegirdle v.

Heald, 1 B. & Ald. 722, Abbott, J., takes the distinction, that in the case of an agreement for goods to be delivered by one party in six months, and to be paid for in eighteen, all that is to be performed on one side is to be done within a year; which was not so in the case then before the court." And Littledale, J, in delivering the judgment of the court, said. " As to the contract not being to be performed within a year, we think that as the contract was entirely executed on one side within a year, and as it was the intention of the parties, founded on a reasonable expectation, that it should be so, the statute of frauds does not extend to such a case. In case of a parol sale of goods, it often happens that they are not to be paid for in full, till after the expiration of a longer period of time than a year; and surely the law would not sanction a defence on that ground, when the buyer had had the full benefit of the goods on his part."For other cases illustrating this point, see Cherry v. Hening, 4 Exch. 631; Souch v. Strawbridge. 2 C. B. 808; Mayor v. Pyne, 3 Bing 285; Knowlman v. Bluett, L. R. 9 Ex. 307; Lockwood v. Barnes, 3 Hill, 128; Broad well v. Getman, 2 Denio, 87; Holbrook v. Armstrong, 1 Fairf. 31; Compton v. Martin, 5 Rich. 14; Bates v. Moore, 2 Bailey, 614; Johnson v. Watson, 1 Ga. 348; Hake v. Pope, 7 Ala. 161; Blanton v. Knox, 3 Mo. 342; Talmadge v. The Rensselaer & Saratoga R. R. Co. 13 Barb. 493; Stone v. Denison, 13 Pick. 1.

(i) See cases cited in preceding note.

(j) And see ante, p. *35, n. (d.) ally receive a part of the goods. Some confusion has arisen on this subject, from a want of discrimination between a sale at common law, a sale as effected by the statute of Elizabeth, of fraudulent conveyances, and the statute of Charles, of frauds and perjuries. At common law, if the seller makes a proposition and the buyer accepts, and the goods are in the immediate control and possession of the seller, and nothing remains to be done to identify them, or in any way prepare them for delivery, the sale is complete, and the property in the goods passes at once and perfectly; the buyer acquires not a mere jus ad rem, but an absolute jus in re; and he may demand delivery at once, on tender of the price, and sue for the goods as his own if delivery be refused; the seller having no right of property, but a mere right of possession, by way of lien on the goods for his price, (k) Then came the statute of Elizabeth, which, aided by construction, made the want of delivery, or of transfer of possession, evidence, more or less conclusive, of fraud, which vitiated the sale. Here, then, grew up many questions as to what constituted delivery, and what was its effect; and we have seen that a great diversity and conflict of adjudication has existed upon these questions. (l) But after the statute of Elizabeth came the statute of Charles, of frauds and perjuries; and this in express terms requires, in order to * sustain an action, both delivery and acceptance; and the questions which spring up under this statute must be considered as entirely distinct from the former questions. To illustrate this in the simplest form, let us suppose that A orally orders B to send him one hundred bales of cotton, of a certain quality and price; B sends the goods as directed; and here no question can exist, under the statute of Elizabeth, in respect to the possession, because that has been transferred by the delivery; but the case is still open to any inquiry as to fraud. At common law, A may say that the cotton is not of the kind or quality that he ordered, and if he can establish this, he has the right of sending it back and refusing to pay for it; if he cannot, the transaction is completed; the seller cannot reclaim the cotton, nor the buyer refuse the price. But, by the statute of frauds, the buyer may at once send the cotton back, and refuse payment for it, although precisely what he ordered, and no action can be brought against him for the price. Because, by this statute, both delivery and acceptance are requisite; and the delivery is to be made by one party, and the acceptance by another; and the consequence of this is, that while the seller is bound by his