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 FRAUDS (STATUTE or) putting the goods out of his hands and into the hands of the buyer. It may be an actual de- livery; or it may be constructive, as by the de- livery of the key of a warehouse, or making an entry in the books of the warehouse keeper, or the delivery of an indorsed bill of lading, or even pointing out as the buyer's own massy goods that are difficult of removal, as timber in a dock, or a large stack of hay. So a part may be delivered for the whole, and carry with it constructively the delivery of the whole. On the other hand, as to what constitutes accept- ance, we must look mainly at the intention of the party; for if he so acts as to manifest his assent to the delivery, and his intention to ac- cept and retain the goods, or so as to justify the seller in believing that the buyer so assents and intends, this will have the effect of fixing his liability for the price, whatever be the way in which he expresses this assent and intention. Hence, mere delay, or holding the goods for a considerable time in silence, is an assent and acceptance. But as he has a right to examine the goods and see whether he chooses to accept them, he must be allowed time enough for this purpose; and his silence during a period of time that is not more than sufficient for this is not evidence of acceptance. It has been much questioned whether the sale of shares or stocks in incorporated companies, as, for example, in corporations for manufacturing purposes, for railroads, and the like, is a sale of "goods, wares, and merchandises," within the meaning and operation of the statute. In England the prevailing authority is that these shares are not " goods, wares, or merchandises " within the statute, and therefore the bargain need not be in writing. Perhaps the prevailing rule in the United States is the other way. But the authorities are to some extent conflicting, and the question may not be considered settled. As to giving something by way of earnest (the exact words of the English statute are "in earnest"), almost anything which has an actual value, though a small one, may suffice. Thus, a dime, or even a cent, might be sufficient, but not a straw or a chip, though it were called "earnest money;" it would be safe, however, if earnest were relied upon as clinching the bargain (to use an old phrase), to give money of some real and considerable value. So, part payment has the same effect as earnest money; but it must be an actual part payment. There- fore, if the seller owes the buyer, and it is a part of the bargain that the debt shall be dis- charged and be considered as a part of the price to be paid, the contract must neverthe- less be in writing, because this is not a part payment within the meaning and requirement of the statute. If, however, the debt were certainly and irrevocably discharged, as by the giving up of a note of hand, the decision might be otherwise. The difficult question has been much considered whether a bargain that A should make and sell a certain article to B is a contract for the sale of the thing, which must 336 VOL. vii. 29 FRAUENSTADT 447 be in writing, or a mere bargain whereby B hires A to work for him in a certain way which need not be in writing. Perhaps no better rule or principle for deciding this ques- tion can be found than the following : A con- tract to buy a thing presently, which the seller has not now, is just as much within the require- ment of the statute as a bargain for a present sale; and if by the bargain the seller may him- self buy, or make, or procure in any way he likes, the thing he agrees to sell, this is only a contract for the sale of the goods, and must be in writing. But if the seller, and he alone, is by the bargain to manufacture these, and in a certain way, and of certain materials, or after a certain model, or if in any way it appears that the seller is to make certain things and charge therefor a price for his labor, skill, and material, although all these are included in the mere sale price of the article, then it is a con- tract for the manufacture of the goods, and not merely a contract for their sale, and it need not be in writing. The statute itself, both in Eng- land and the United States, speaks of part payment only; but courts of equity, both there and here, have strongly inclined to the rule that part performance of any of the contracts within the statute of frauds shall have the same effect that part payment has upon a contract of sale by the statute. Some doubt has been expressed as to the expediency of the rule; but it may now be considered settled that courts of equity, or courts of law having equity pow- ers (as most American courts of law now have), will enforce an oral contract which should have been in writing, provided there has been an actual and substantial part performance of it by the party sought to be charged. In regard to other sections of the English and some of the American statutes of frauds, or analogous statutes, see LEASE, TRUSTS, and WILL. FRAUENBURG, a town of Prussia, in the prov- ince of East Prussia, 41 in. S. W. of Konigs- berg, on the Frische Haff, and at the mouth of the Baude; pop. about 4,000. It * 9 the sea -t- of the Catholic bishop of Ermeland. The cathedral, which is on an elevation, has six towers, and with its surroundings constitutes a kind of fortress; it contains the tomb of Co- pernicus, who in 1543 died here. FRAUENFELD, a town of Switzerland, capital of the canton of Thurgau, on the Murg, an affluent of the Thur, 23 m. K E. of Zurich; pop. in 1870, 5,138, most of whom belong to the Reformed church. It has a cantonal school, which was founded in 1853, and consists of a gymnasium and an industrial establishment. FRAUENSTADT, Christian Martin Jnlins, a Ger- man philosopher, born at Bojanowo, in Posen, April IV, 1813. He studied in Berlin, was tutor in the family of Baron Meyendorff in 1841- '4, and next in that of Prince Sayn- Wittgen- stein in Russia till 1846. Since 1848 he has- resided in Berlin. He was at first to some ex- tent an adherent of Hegel, the influence of- whose doctrines is apparent in his works Ueber