(specially concurring) — This was an action for damages, tried to the court, for breach of an alleged contract of sale. Plaintiffs pleaded defendant orally agreed to sell them three carloads of lamb’s wool at seventy-six cents per pound and thereafter refused to deliver the same or any part thereof, to plaintiffs’ damage. Defendant’s answer denied any contract to sell wool to plaintiffs.
Plaintiffs sought to prove the alleged oral contract by interrogating plaintiff Herschel Carmichael relative to certain oral negotiations or conversations between him and defendant. To such questions defendant objected on the ground the testimony called for was incompetent under section 554.4, Code of Iowa 1950. This section is the Statute of Frauds in the Sales Law. It provides in part:
“A contract to sell or a sale of any goods * * * shall not be enforceable by action unless the buyer shall * * * give something in earnest to bind the contract, or in part payment, or unless some note or memorandum in writing of the contract or sale be signed by the party to be charged.”
The court sustained the objections and like objections to questions propounded another witness concerning defendant’s asserted later oral admissions of the contract. Plain tiffs predicate error upon these rulings and orders.
Code section 622.34 refers to the general Statute of Frauds, section 622.32, as “regulations, relating merely to the proof of contracts * * Code section 554.5 makes this applicable to section 554.4. Hence, section 554.4 is a rule of evidence rather than an invalidating statute. Thomas v. Peoples Gas & Electric Co., 220 Iowa 850, 263 N.W. 499. Therefore, the orders of the court excluding the testimony were correct.
Plaintiffs rely also upon a registered letter mailed by them to defendant referring to the alleged oral contract and stating, “T am enclosing my check to you in the amount of $100 as down payment of said transaction.” A notation on the face of the enclosed check recited: “As down payment on three carloads of *912bright lamb wool at 76c per pound.” The exact date defendant received this letter was not established because plaintiffs refused to produce the postal return receipt which showed such date. Defendant promptly returned the check with a letter in which he denied the alleged sale of the wool. Neither of these letters was sufficient to satisfy the Statute of Frauds because the first was signed by plaintiffs, not defendant, and defendant’s letter denied the alleged contract. Nor did the sending of the cheek constitute giving “something in earnest to bind the contract, or in part payment” within the meaning of the statute. It was merely a tender which was refused.
The text in 49 Am. Jur., Statute of Frauds, section 265, states: “The mere tender of payment or part payment of the price of goods bargained for by the buyer, if unaccepted by the seller, is not sufficient to satisfy the statute.” See also 37 C. J. S., Frauds, Statute of, section 165; Hershey Lumber Co. v. St. Paul Sash, Door & Lumber Co., 66 Minn. 449, 69 N.W. 215; Jones v. Taylor, 1 (G. Greene) Iowa 434.
There was no competent evidence in the record to sustain the allegations of plaintiffs’ petition. At the conclusion of plaintiffs’ ease defendant moved for judgment on that ground. This motion was properly sustained. I agree the judgment should be affirmed.
MulroNey, C. J., and Bliss, Garfield, Smith, and Thompson, JJ., join in this special concurrence.