statute of frauds. So, too, in Burhans v. Corey, 17 Mich. 282, the action was to recover damages for breach of an oral contract for the sale of wool. The plaintiffs, by their agent, sold each his several parcels of wool in a single sale, to defendant for the agreed price of $600. The defendant paid plaintiff's agent $30 in part payment of the price. It was held that the $30 paid as earnest would be regarded as belonging ratably to the plaintiffs, and would therefore constitute a sufficient part payment under the statute of frauds as to all of the plaintiffs. In Dow v. Worthen, 37 Vt. 108, plaintiff had bought from defendant a lot of poultry, the contract of sale was a verbal one. Plaintiff had previously sold to defendant a lot of apples. At the time of closing the poultry sale, it was agreed that the price of the apples sold by plaintiff to defendant, and which had not been paid for, should be $75, and this amount was to be as part payment on the poultry. It was held that the contract for the poultry was binding within the statute of frauds.

In Lilly v. Lilly, Bogardus & Co., 39 Wash. 337, 81 Pac. 852, the action was to recover damages for breach of contract in failing to ship and deliver fifty tons of hay and fifty tons of oats under an oral agreement between plaintiff and defendants. Plaintiff, who was a merchant in Dawson, Yukon Territory, in pursuance of the contract, paid defendants $1,769.68, it being then agreed that the sum of $1,075 of said amount was to be applied in an indebtedness due from plaintiff to defendant, and the remainder of said payment, $694.68, was to be applied and credited as part payment in advance on account of the hay and oats purchased as aforesaid. Defendants shipped five tons of the hay and oats and no more. It was held that for the reason that there was a part payment, and also a part delivery, the contract was not within the statute of frauds. And in Cooper v. Bay State Gas Co., 127 Fed. 482, the defendants had contracted to purchase all of the stock of a corporation for $160,000, and paid $25,000 of that sum, it being understood that the seller should hold the stock for the balance of the purchase price. It was held that the $25,000 paid would take the sale out of the statute of frauds.

In Organ v. Stewart, 60 N. Y. 413, the defendant was the owner of three lots of wool. He entered into an oral agreement with plaintiff for the sale of two of the lots, and a sale of the third upon certain conditions. Two of the lots were delivered, but a dispute arose over the conditions upon which the bargain as to the third lot depended, and defendant refused to deliver said lot and plaintiff declined to pay for those that had been delivered. They finally compromised, defendant agreeing to deliver the third lot, and plaintiff paid the price of the other two. The defendant failed to carry out his part of the compromise agreement, and refused to deliver the wool, and in an action therefor pleaded the statute of frauds. It was held that the payment made by the plaintiff on the compromise could not be deemed to have been made on the three lots so as to take the contract for the third lot out of the statute of frauds

(reversing 1 Hun, 411). And where the buyer, at the time of the contract of sale, agreed to pay, as part of the purchase price, a debt of the seller, and afterward did pay it, the creditor not knowing or consenting to the agreement, the sale was not taken out of the statute of frauds: Paine v. Fulton, 34 Wis. 83.

c. Payment Need not be in Money.-The part payment required by the statute of frauds as an act, in addition to the parol contract, need not be in money, but anything of value which by mutual agreement is given by the buyer and accepted by the seller on account of or in part satisfaction of the purchase price is a part payment. Thus, where the respective owners of a colt and a mare made an oral contract of exchange, whereby the owner of the mare was to take the colt and deliver the mare upon the payment of $40 by the owner of the colt, but the exchange not to be final until the consent of a third person had been obtained, and the colt was delivered in pursuance of the agreement, the delivery of the colt was sufficient part payment to take the bargain out of the statute of frauds: Kuhns v. Gates, 92 Ind. 66. So, also, in Weir v. Hudnut, 115 Ind. 525, 18 N. E. 24, the complaint alleged in substance that plaintiff sold five thousand bushels of corn to defendant under a verbal contract, whereby defendant agreed to pay for said corn fifty cents per bushel when delivered at a certain place, and in part payment, and in addition to said fifty cents per bushel, defendant further agreed to hire to plaintiff, and give him the use of, a sufficient number of sacks in which to sack said corn and deliver the same, and that such use of said sacks was a part of the purchase price of the corn, and that the purchase price would have been greater except for the payment and furnishing the use of the sacks by the defendant; that defendant furnished the sacks in pursuance of the contract and in part payment of the purchase price, and the use of the sack was worth the sum of $25. That plaintiff sacked and delivered the corn at the place agreed upon, but defendant refused to accept the same, to plaintiff's damage, etc. It was held that a demurrer to the complaint was improperly sustained, as the furnishing of the sacks to plaintiff by the defendant would constitute a part payment of the purchase price of the corn within the statute of frauds. It is well to note the distinction between this case and a former case between the same parties, over the same contract: Hudnut v. Weir, 100 Ind. 501. In the case last mentioned the complaint, after alleging that the defendant agreed to furnish the sacks as a part of the consideration of the sale, further averred that the sacks were furnished "in pursuance and part performance of said contract," and it was held on appeal that a demurrer to the complaint was improperly overruled. The distinction between the two cases, as emphasized by the court in Weir v. Hudnut, 115 Ind. 525, 18 N. E. 24, is, that in the one case the complaint alleged that the sacks were furnished in part payment, while in the other the averment was that they were furnished as part performance, and that proof of part performance

would "not be an earnest to bind the bargain," since the plaintiff must prove payment, as payment of part, at least, of the agreed price."

In Burton v. Gage, 85 Minn. 355, 88 N. W. 997, a logging contract between a lumber company and the contractor, or services to be performed by the latter, had been verbally transferred by the contractor to a firm of grocers as security for supplies to enable him to carry out the contract with the lumber company. The grocers furnished the contractor a considerable quantity of goods at the time of the transfer and subsequently furnished other supplies to the total of $2,000. The verbal transfer was held not void under the statute of frauds. The case of White v. Drew, 56 How. Pr. 53, affords an excellent illustration of the rule under discussion. The plaintiff being indebted to the defendant, and having become possessed of certain valuable information in regard to the probable rise of certain stock, offered to impart his information to the defendant upon condition that if the defendant acted upon it, he would hold and "carry" certain shares of stock for the plaintiff without margin for a specified time. Defendant agreed to the conditions and the transaction as proposed, and plaintiff imparted to defendant the information regarding the stock. It was held that the consideration for the agreement being of great value, "was just as effective to take the case out of the statute of frauds as if a cash payment had then been made." Another excellent illustration of this rule that the part payment required by the statute of frauds may be made in other things than money is afforded by the case of Driggs v. Bush, 152 Mich. 53, ante, p. 389, 115 N. W. 985, 15 L. R. A., N. S., 654. d. Agreement to Credit Seller's Account.-Though, as we have seen, the part payment need not be in money, it must be of valuemoney's worth—and it must be agreed by both parties at the time that the value is then actually passed from the buyer to the selleri. e., a present payment. Hence a mere agreement to pay is not sufficient. The payment must be actually made, and both parties must so understand it. Thus, where plaintiff orally contracted to buy a carload of wheat from defendant, and agreed, as payment, to credit an account due from defendant, and to send him goods to make up the balance, the agreement as to credit to be allowed on defendant's account was not such a part payment as would take the transaction out of the statute of frauds, there being no receipt for actual credit given at the time: Galbraith v. Holmes, 15 Ind. App. 34, 43 N. E. 575. So, too, where one purchases property under an oral contract of sale, and agrees to apply the purchase price in cancellation of a debt due him from the vendor, but fails to execute any written evidence that it has been so applied, the transaction does not amount to a payment within the meaning of the statute of frauds: Gorman v. Brossard, 120 Mich. 611, 79 N. W. 903; and to same effect is Artcher v. Zeh, 5 Hill, 200, and Clark v. Tucker, 2 Sand. 157; Mattice v. Allen, 3 Abb. Dec. 248. And where a seller, who kept a day-book and a ledger for the purposes of his business, only entered

a credit to the buyer, who was his debtor, upon a blank leaf of his account-book, it did not constitute payment under the statute of frauds: Brabin v. Hyde, 32 N. Y. 519.

In Teed v. Teed, 44 Barb. 96, the defendant by oral agreement had promised to deliver to plaintiff certain butter of the value of over $100. The defendant at the time was indebted to the plaintiff in the sum of $6.50 for a barrel of flour charged to him in account, and it was a part of the contract that this sum should apply as a part payment on the butter. An entry of sale was made by the plaintiff, in a memorandum-book; the entry also stating that defendant accepted the flour on the butter, but no entry was made on the plaintiff's account-book, to show that the flour was paid for by the butter or otherwise. It was held not a sufficient part payment to take the case out of the statute of frauds. In Matthiessen & Weichers R. Co. v. McMahon's Admr., 38 N. J. L. 536, is found another good illustration of the rule. The contract under consideration in this case was an agreement by the defendant to sell the plaintiff certain goods in payment of his indebtedness, and that the property in the goods should pass to the plaintiff immediately. No note or memorandum of the contract of sale was made; but it was contended by the defendant that the requirement of the statute of frauds had been complied with by payment of the contract price. The question presented, as stated by De Pue, J., speaking for the court, was, "whether an agreement in parol by the seller to sell, and the buyer to buy goods to the value of an existing debt, and thereby satisfy and pay the debt is a valid sale within the statute, though there be no delivery of the goods, and no receipt or voucher be given as evidence of the discharge of the indebtedness." The learned judge then reviewed at length many English and American authorities on the question stated and continued: "The principle which underlies the cases cited, and on which they rest is that, where no written evidence of the contract is made, and payment is relied on as the compliance with the statute, mere words are not sufficient; some act in part performance, or part execution of the contract, such as the surrender or cancellation of the evidence of the debt, or a receipt or discharge of the indebtedness, is necessary to make the contract valid." The ruling in this case is strongly indorsed in Milas v. Covacevich, 40 Or. 239, 66 Pac. 914. There it was orally agreed, on an accounting between plaintiff and defendant, that defendant's debt should be liquidated by the transfer of certain property to plaintiff, including a fish net of the value of over $50. A receipt was subsequently given by the plaintiff to the defendant reciting the transfer of certain property, not including the fish net, and further reciting that the transfer was in full payment of all claims. It was held that the parol agreement as for the sale of the fish net was not taken out of the statute of frauds by the giving of the receipt.

So, also, when a debtor sold his creditor some goods, and there was no proof that the price should be, or that it was, applied by receipt or otherwise to the debts, no sufficient payment was shown

to take the case out of the statute of frauds, although it appeared from the bill of parcels that the creditor was to give a note at ten months payable to his own order: Wylie v. Kelly, 41 Barb. 594. But where a buyer, as part of the consideration of the thing purchased, agreed to pay a debt due by the seller to a third person, and the seller's creditor accepted the promise, and thereupon discharged the seller, such transaction is a part payment of the price within the statute of frauds. And after acceptance of part of the property by the purchaser and part payment by the discharge of the seller, by his creditor, the buyer cannot repudiate the arrangement and refuse to pay the creditor on the ground that the sale was invalid: Cotterill v. Stevens, 10 Wis. 422. And where credit is at once given by the buyer to the seller for the value of goods sold on the seller's account, if made in good faith, it is as much payment as though money had actually been paid over to the seller: Norwegian Plow Co. v. Hawthorn, 71 Wis. 529, 37 N. W. 825. And to same effect is Dow v. Worthen, 37 Vt. 108.

e. Payment by Check.

1. In General.-The question whether a check possesses such money value as to constitute part payment sufficient to take a contract out of the statute of frauds does not seem to have been very often before the courts, but in Logan v. Carroll, 72 Mo. App. 13, the buyer of certain horses under an oral contract of sale gave the seller his check on a bank in St. Louis for $550 in payment. The horses were to remain in the seller's possession until the next day, when the buyer would take them away. On the next day the buyer countermanded the payment of the check and refused to take the horses. After notice to the buyer, the seller sold the horses at public auction for a much less price than that for which they had been sold under the oral contract above mentioned, and sought to recover under the contract the loss sustained by reason of the buyer's failure to accept the horses. It was held that, as the check was accepted as payment, the statute of frauds was satisfied, and a verdict in favor of the seller against the buyer under the oral contract of sale was upheld. The ruling in this case is based entirely upon the fact that the seller had accepted the check as payment, and that the statute of frauds was satisfied, although payment of the check was stopped. In McLure v. Sherman, 70 Fed. 190, it was held that a check drawn upon a deposit in the bank named as drawee has such money value as to make it a sufficient part payment of the price, upon a sale of personal property, within the statute of frauds. The ruling in this case is placed upon the doctrine that a check given in the ordinary course of business is of such value that the person who receives it cannot look to the drawer of the check for the amount named therein until he has presented the check to the drawer or payee for payment and payment refused.

2. Payment to Agent.-If a check has such money value that it satisfies the statute of frauds when given to the seller as part pay