16 



CONTRACTS CONCERNING HORSES, ETC. 



Symbolical. 



Pecuniary. 



Pecuniary 

 Earnest is a 

 part pay- 

 ment. 



Earnest 

 should be re- 

 tained by the 

 vendor. 



The old rule. 



mentiim" (/<•). It recognized two kinds of Earnest, — 

 symbolical and pecuniary ; the one being a transfer of 

 something by way of pledge or assiu-ance, and the other 

 being a payment of part of the purchase-money (/). A 

 similar distinction is made in the Statute of Frauds (ni). 

 Thus the buyer must " give something in Earnest to bind 

 the bargain," or " give something in part payment." 



A symbolical Earnest may be anything used by the 

 parties to bind the bargain. Therefore, a saddle, bridle, 

 horsewhip or currycomb may be used for the purpose. 



A pecuniary Earnest consists of a current coin or sum 

 of money given in part payment, and its efficacy does not 

 depend upon its value being proportioned to that of the 

 article contracted for. 



Accordingly inasmuch as a pecuniary Earnest is to be 

 considered as a part payment of the purchase-money, in 

 a case where there was, upon a sale by auction, the com- 

 mon condition for the forfeiture of the deposit, and for a 

 resale, and the condition that " aH>/ deficicnci/ upon such 

 resale, with all expenses, should be made good by the 

 defaulter, and should be recoverable as liquidated da- 

 mages;" and the purchaser did not pay the deposit, which 

 amounted to 24/., and upon a resale the property fetched 

 15/. less than upon the first sale, and the expenses of the 

 second sale were 9/. 5.s-. ; it was held that the seller could 

 not recover the 15/., the expenses, and the deposit besides ; 

 for although the deposit, if it had been paid, would have 

 been forfeited, yet it would have been a part payment of 

 the purchase-money. The seller was allowed, therefore, 

 to recover only 24/. 5.s\, to which sum the loss on the 

 resale and the expenses amounted, exclusive of the de- 

 posit {ii). 



Where the Earnest, whether symbolical or pecuniary, 

 is delivered to the vendor, it should be kept by him, and 

 not be returned to the purchaser. For where the pur- 

 chaser of a Horse or other goods draws the edge of a 

 shilling over the hand of the vendor, and returns the 

 money into his own pocket, which in the north of England 

 is called " striking olf a bargain," it is neither an Earnest 

 nor a part payment within the Statute of Frauds (o). 



Where an Earnest was given on a contract of sale, the 



{k) 2 Bla. Com. 447. 

 [l) Code Ci\dle, 1590; Vinnius, 

 Com. in Inst. 1. 3, tit. 324. 

 (;«) 29 Car. 2, c. 3, s. 17. 



(w) OcJcoiden v. Kcnhj, 27 L. J., 

 Q. B. 361. 



(o) Blenlcinsoj) v. Chx'jton, 7 Taunt. 

 597. 



