ENTIRE TIMBER CONTRACT. 129 



failed to establish the count on 'the special contract might recover 

 the value of trees taken by the defendant as goods sold and delivered, 

 as defendant by such taking had disaffirmed the entirety of the 

 contract. Holrotjd J., who tried the case, at first thought that the 

 plaintiffs could not recover on the counts for trees sold and delivered 

 by the testator in his lifetime, but observed that delivery might be 

 satisfied by the vendor's allowing part of the trees to be cut down and 

 carried away by the defendant, and that the contract being for a mere 

 chattel interest was not Avithin the 4th section of the Statute of Frauds 

 (6 B. Moore, 114). 



The question of an entire timber contract arose in Bigg v. ]\liisMng 

 (14 C.B. 195), where the plaintiff and defendant (who was exceedingly 

 illiterate) went to several places a few miles distant from each other in 

 one day, and agreed for the purchase and sale of several lots of timber. 

 At the last place, where they dined, the plaintiff, at the request of the 

 defendant, who said he should like him "■ to jnit down ivMt we have been 

 doing,'' drew out and signed a memorandum of the whole transaction. 

 The defendant received several consignments of timber in London, 

 advancing money for the carriage, which was to be allowed him by the 

 plaintiff. When the residue arrived at the London terminus, the defen- 

 dant objected that some portion of it was unsound, and the other portion 

 not the timber contracted for, and ultimately he refused to receive it. 

 For the plaintiff the after-dinner memorandum was relied on as binding 

 upon him by reason of his signature, and upon the defendant by reason 

 of his acceptance of part of the timber under it. Cressivell J. ruled, on 

 the authority of Elliot v. lliomas, that the whole transaction amounted 

 to one entire contract, and that as part of the timber had been 

 received by the defendant, and money paid on account, the provisions 

 of the statute 29 Car. II. c. 3, s. 17, were satisfied, and the Court 

 discharged a rule for a new trial. It was clearly one transaction, 

 regard being had to the peculiar nature and situation of the bulky 

 articles which formed the subject of the contract. And ^jer Willianis 

 J. : " Baldcg v. FarJrcr, and Elliot v. Thomas, govern this case. Tlie 

 transaction amounted to a joint contract for all the timber" (3 M. & W. 

 170). 



Acraman v. Morrice also turned upon what was a sufficient delivcrg 

 and acceptance under the statute. The defendant was a timber-merchant, 

 and the action was one of trover for oak timber, which had been pur- 

 chased of Swift (the bankrupt) by the defendant, and marked, measured, 

 and paid for before the date of the Jiat, but not actually delivered at the 

 appointed place. The first count alleged a conversion before, and the 

 second, one after the bankruptcy of Swift. To this defendant pleaded 



