Judgement in the above action was delivered. Mr. F. J. Schuhl appeared for defendant and Mr. §S. Fessenden for plaintiff. His Honour said:—
Defendant demurs to a petition alleging "That on or about the 24th day of August, 1920, at Shanghai, China, the plaintiff and defendant entered into a verbal contract whereby plaintiff purchased of defendant, and defendant sold to plaintiff, 10,000 pounds sterling to Lo delivered by defendant to plaintiff in the month of December, 1920, at the rate of of six.chillings and fivepence, for one Shanghai tael (Sh. Tls, 1,00).""
The principal ground of the demurrer is that the contract appears by the averments just quoted to be within the Statute Ijof Frauds and the demurrant invokes that form of the said statute which appears in the Act of Congress of June 6,1900, declaring void "an agreement for the sale of personal property at a price not less than $50. unless the same or some note or memorandum thereof expressing the consideration be in writing." ete.
We are disposed! to agree with plaintiff's counsel that the form of the statute in force here is that contained in the later Act of March 3, 1901, which provides "No contract for the sale of any goods, wares, and merchandise for the price of 50 dollars or upward shall be allowed to be good except the buyer shall accept part of the goods so sold and actually receive the same or give something in earnest to bind the bargain or in part payment, or that some note or memorandum in writing of the stid bargain be made and signed by the parties to be charged by such a contract or their agent thereunto lawfully authorized.""
But we doubt if there is any real difference in the meaning of the two provisions for the phrase "goods, wares and merchandise' is merely the older equivalent, in English legal phraseology, of ' the more modern term "personal pro-
This Court has already held that contracts for the sale of shares are within the Statute of Frauds and there would seem to be even more reason for holding that contracts for delivery of money are within the Statute, for money is personal property and such. are the decisions in the few cases where the question has arisen.
Plaintiff's counsel cites authorities to the effect that-the subject matter of the contract must be in esse at the time of its formation in order that the Statute may apply. These were cases of shares not yet issued. But in the petition before us there is nothing to indicate that the money "to be delivered by defendant to plaintiff" has yet to be issued or coined. Presumably it is money already in existence and there is nothing in vho averment which would permit us to infer the contrary. That it
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