CONSTRUCTION OF THE 17TH SECTION. In this section several methods are pro vided in which the contract may be validly made aside from the written memorandum. The same requisites for the memorandum are applicable in this case, as tinder the 4th section, with the exception that the au thorities are unanimous that in this case the considera tion need not be stated, the promise to pay a reasonable price, in the absence of a specified consideration, being presumed. (Anson on Cont. p. 65.) There is some difficulty of determining just what constitutes goods, wares and merchandises under this section. In the contract of bargain and sale the prop erty in the thing sold passes to the purchaser. Hence there must be an ascertained and specific chattel con templated by the parties to which nothing remains to be done; when this is so it is an executed contract of sale. But there,,may be an executory agreement to sell, as where the goods are not specific, or something remains to be done to complete the article or ascertain and fix the price, as the purchase of hay in the stack, which is to be weighed to ascertain the price. In this case the property does not pass to the purchaser, but only a right to have the agreement carried into effect.
The early English cases held that executory con tracts of sale did not fall within the statute, and a sub sequent act (Lord Tenterden's Act, 9 Geo. IV.) was passed to extend the section to executory contracts of sale for goods intended to be delivered in the future, or which had to be made, procured, or completed after the agreement. And by Lee v. Griffin, i B. & S. 272, it is held that the contract is within the section, and for the sale of goods if it contemplates the ultimate de livery of a chattel, notwithstanding the work and labor in the making or constructing such chattel is the most important part. This rule is hardly approved in this country. (Finney v. Apgar, 31 N. J. L. 270; Cooks v. Milliard, 65 N. Y. 360; Meinicke v. Falk, 55 Wis. 427.) The decisions in New York distinguish between the sale of goods in existence, when the contract is made, which are held to be within the statute, and those for goods to be manufactured, which are not within the statute. (Parsons v. Loucks, 48 N. Y. 17; Deal v. Maxwell, 61 N. Y. 652.) The sale of bonds, stocks and promissory notes are held to be within the statute.
(Tisdale v. Harris, 20 Pick. 13; Boardman v. Cutter, 128 Mass. 388.)