(k) See preceding note. (l) In Baldwin v. Williams, 3 Met. 365, it was decided, that a contract for the sale of promissory notes is within the statute. But see contra, Whittemore v. Gibbs, 4 Foster, 484. So also in Beers v. Crowell, Dudley, Ga. 28, it was decided, that the sale of treasury checks on the bank of the United States was not within the statute.

1 That a sale of gold coin is within the statute, see Peabody v. Speyers, 56 N. Y. 230. - K.

The delivery required by the statute may be subsequent to the agreement of sale. (m)

If a bargain be made by a written contract which satisfies the statute, and before the time set for its execution an extension of time is agreed upon, it would seem that the oral agreement is invalid, and the original contract may be enforced; (mm) but not if the defendant has executed, or has offered to execute, the contract, within the extended time.(mn)

We will next inquire, what giving in earnest, or in part payment, satisfies the requirement of the statute. The statute borrows "earnest" from the common law, and does not greatly vary the law in relation to it.1 If one offers a watch to another for one hundred dollars, and the other accepts, and forthwith tenders the money, he acquires a property in the watch at common law; if he accepts, but does not pay or tender the price, * the property does not pass, and the vendor is not bound by the contract, which is presumed to have contemplated payment on the spot(n) But if the buyer, when he accepted the offer, gave something by way of earnest, and it was accepted as such, this bound the parties at common law. Neither could rescind the sale; but the buyer could tender the price at any time, and demand the goods, and the seller could tender the goods, and, after the time agreed on had expired, could sue for the price. This remains so under the statute, which does not seem to add anything to the force or effect of the earnest

The small value of the thing given as earnest, is no objection to it, but it would seem that it must have some value. A dime or a cent might suffice, but not a straw or a chip. And it must be actually given and received; merely touching or crossing the hand with it is not enough; (o) and it must be given and received as earnest

(m) McKnight v. Dunlop, 1 Seld. 537; Marsh v. Hyde, 3 Grav, 331.

(mm) Noble v . Ward, Law Rep. 2 Exch. 135. See Hickman v. Haynes, L.

R. 10 C. P. 598; Plevins v. Downing, 1 C. P. D. 220.

(mn) Whittier v. Dana, 10 Allen, 326.

(n) See ante, vol. i. pp. *519, * 520.

(o) Blenkinsop v. Clayton, 7 Taunt. 597.

1 "Earnest," in the statute, is regarded as a part payment of the price. Per Chapman, C. J., Howe v. Hayward, 108 Mass. 54. Money deposited as a forfeiture if either party to an oral contract failed to fulfil his part of it is not "earnest," within the statute. Howe v. Hayward, 108 Mass. 54; Noakes v. Morey, 30 Ind. 103. See Hunter v. Wetsell, 57 N. Y. 375; Organ v. Stewart, 60 N. Y. 413; Mitthiessen Co. v. McMahon, 9 Vroom, 536; Bates v. Chesebro, 32 Wis. 594; 36 Wis. 636; Paine v. Fulton, 34 Wis. 83; Gaddis v. Leeson, 55 111 83. - K.

Part payment has the same effect as earnest. But it must be an actual payment; and not a mere agreement that something shall be considered as a payment Thus, if the seller owes the buyer, and part of the contract of sale is that the debt shall be discharged and go as part payment of the price, nevertheless, the contract must be in writing, because this is not an actual part payment. (p)1

A question of considerable difficulty has been raised, as to whether, and how far, this section of the statute of frauds applies to executory contracts. If one agrees to buy at a future time, there are three forms which the contract may assume. One is to buy hereafter what is now existing; a second, to buy hereafter what is not now existing, but is to be supplied hereafter, for the sum agreed on, which is to be regarded only as the price of the article; the third is, to buy hereafter an article to be manufactured by the seller; and the bargain implies, that the money to be paid is for the manufacturing, as well as for the article.

In the earlier English decisions, it seems to have been held, *for some time, as a settled rule of law, that no executory contract of sale was within this section of the statute. (q) But this doctrine was overthrown by Lord Lough-borough, who, however, admitted, that where an executory contract of purchase and sale provided for work and labor upon the article previous to its delivery, and important materials to be furnished, the agreement was not within the statute.(r) The

(p) Walker v. Nasser, 16 M. & W. 302; Pena v. Vance. 21 Cal 142.

(q) See Towers v. Osborne, 1 Stra. 506; Clayton v. Andrews, 4 Burr. 2101; Alexander v. Comber, 1 H. Bl. 20.

(r) Rondeau v. Wyatt, 2 H. Bl. 63. In this case the plaintiff and defendant entered into a verbal agreement for the sale of 3,000 sacks of flour, to be delivered to the plaintiff at a future period; and this agreement was held, to be within the statute. Lord Loughborough, in delivering the judgment of the court, said: "It is singular that an idea could ever prevail, that this section of the statute was only applicable to cases where the bargain was immediate; for it seems plain, from the words made use of, that it was meant to regulate executory, as well as other contracts. The words are, 'No contract for the sale of any goods,' etc. And, indeed, it seems that this provision of the statute would not be of much use, unless it were to extend to executory contracts; for it is from bargains to be completed at a future period, that the uncertainty and confusion will probably arise, which the statute was designed to prevent. The case of Simon v. Motivos, 3 Burr. 1921, was decided on the ground, that the auctioneer was the agent as well for the defendant as the plaintiff, and therefore, that the contract was sufficiently reduced into writing. The case of Towers v. Sir John Osborne, 1 Stra. 506, was plainly out of the statute, not because it was an executory contract, as it has been said, but because it was for work and labor to be done, and materials and other necessary things to be found; which is different* from a mere contract of sale, to which species of contract alone the statute is applicable. In Clayton 0. Andrews, 4 Burr. 2101, which was on an agreement ruling of Lord Loughborough is, however, open to the objection that it conflicts with what seems to be a perfectly well-established principle; that if an entire and inseparable contract be in part within the statute and in part without, it must altogether comply with the terms of the statute, or no action can be brought upon it. And yet he holds, that an agreement for the purchase of corn, to be delivered hereafter, is not within the statute, if any threshing is to be done upon it in the mean time, because the price of the corn will pay for this threshing.