^B tW-V««saiMia.iiii!)Ki»JssBiaff. %. KFeio.Rsr"'"""'"''"""'^''^ V.I ^iiMm.M,!™°" "^^ '^* °' "le Statute of 3 1924 018 824 585 Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY op JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter A. M. BOARDMAN and ELLEN D. WILLIAMS The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018824585 A TREATISE LAW OF THE STATUTE OF FRAUDS, OF OTHER LIKE ENACTMENTS IN FORCE UNITED STATES OF AMERICA, AND IN THE BRITISH EMPIRE. BY HENRY REED, OP THE PHILADELPHIA BAR. IN THREE VOLUMES. VOLUME I. PHILADELPHIA: KAY & BEOTHER, LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS 1884. Entered according to Act of Congress, in the year 1884, by HENRY REED, in the Office of the Librarian of Congress, at Washington. COLLINS, PRINTER. Non tibi, eheu !\ Sed carae memoriae tuae. PREFACE. The accumulation of reported cases is going forward so rapidly, that the question of making them available to the busy practitioner is one which grows more serious every year. As long as the careful opinion of one man has any weight with another, cited decisions will be of eft'ect in determining the fate of a litigation. The problem is then how to enable court and counsel, each in different ways closely pressed by work, to know what it is that other lawyers have done, and are doing in the same line of inquiry. Digests, themselves too numerous to be readily examined, and many of them most imperfectly constructed, are not enough. Still less so is the scientific treatise which, holding itself free from the entangling details of case-law, serves only to formulate leading doctrines. The need of the worker, both at the bar and in his library, has called into existence the modern text- book, which tries to combine, sometimes with great success, two almost contradictory purposes. For, if we put aside the exceptional instance of essays upon small subdivisions of the law, in which an exhaustive statement of the cases and a free discussion of theory are both possible, it is exceedingly difficult to give the searcher for precedents and the investi- gator of these wider considerations, without which mere de- cision has no solid basis, each the special material he seeks. There seems to be but one answer to the problem, and this by making the arrangement of the collated adjudications such that the place in which a case is ranged shall form a * V PREFACE . point in the logical statement of the determining principle. If this can be successfully done, all that is left over of the actual decisions can be grouped as being so many applications of the general rule, whatever it may be. The writer of the present work has thought his office to be neither that of a mere scribe, nor, on the other hand, that of a person speaking with authority ; the nearest illustration, perhaps, is to suppose him one who is charging a jury of judges called to decide a question of law, or as junior counsel instructing his senior. He begins with the foundation of doctrine ; he gives actual examples in order to make this quite clear; he gathers together the cases on each side, letting them generally speak for themselves ; he criticizes them when they appear to be opposed to each other or to some governing principle, and he gives his own opinion only when he can make his reader's task easier by so doing. If the "lawless science of our law" is ever to be made single and homogeneous, if the " myriad code of precedent" is to be reduced to a system, it must be through some such preliminary process. The number of decisions, and the physical difficulty alone of using them, as we are in the habit of doing, must at last bring about the adoption of some plan radically different from that in use. The contradictory, subtle, and yet practically important subject of the Statute of Frauds, gives as good a field for experiment as, perhaps, could be found ; and if the present work has been written as it should be, it will show how and where the courts, when unfettered by authority, and under any circumstances the legislature, can formulate such rules, that the only real occupation for a judicial tribunal will be the ascertainment of facts in the particular contro- versy. The writer has no hesitation in saying, that if skill and care are employed, a statute can be drawn which would vi PREFACE. set at rest three-fourths of the questions of law connected with the Statute of Frauds ; and as the trials of questions of fact will not he reported to he a later source of perplexity, the mass of precedents may be kept within a reasonable compass. The scope of this book is the consideration of the leading statutes, except that of Wills, which require written evidence; when without such statute, oral proof would have been enough. Such, for example, are the Statutes of Frauds, Lord Tenterden's Acts, the laws which require contracts stipulating for a high rate of interest to be in writing, and those regu- lating the transfer of the title in vessels, etc. etc. A closely logical arrangement would have excluded all questions in which the nature of the subject matter is at issue. For the point whether a certain thing is realty or personalty, or a cer- tain promise is a guaranty or an ordinary original promise, is not, except indirectly, one germane to a statute regulating evidence. Given land, or a guaranty, or a chattel, the ques- tion how far the agreement concerning it must be in writing, is strictly connected with the Statute of Frauds. But, were the whole field of jurisprudence properly divided and allotted, the writer upon the subject of land or guaranties or chattels would determine the preliminary point of the nature of the subject of the contract, and not a writer considering the law of evidence. It is impossible, however, to put aside the ordinary ar- rangement, though the employment of it makes the lines of demarcation hard to draw. These in the end have to be arbitrarily fixed, and at the place where the writer may take farewell of his reader, his thought has been to give the latter such a brief of authorities as will help him to a good start with the next subject of his inquiry. Cross-references have been given when possible, but in a voluminous manuscript not much in this way can be accom- vii PREFACE. plished. All those who use the book are asked therefore to put their main reliance upon the Index, where the scattered points will be brought together ; for this same purpose the Table of Cases will be useful, because the student knowing of one decision on the question before him can often find others in the same passage. The statements of fact are unusually full, though no slight pains have been taken in so grouping the cases that one such statement may answer for several citations. The ingenuity with which judges have employed the thinnest distinctions to evade a harsh application of the strict law makes the most seemingly inconsequent fact to be of weight; and as the present work, with the other treatises on the same subject, must for want of libraries answer in many instances as the only possible substitute for the reported cases, all facts bear- ing directly upon the issue of the decision have ordinarily been given. It is not possible to prevent repetitions at times and redun- dancy of citation, because the labor required to reduce the bulk of the book in this respect would have been very great. It is thought, however, that the over-fulness will not on the whole diminish the utility of the treatise as would an error in the other direction. The civil law, as it prevails modified by statute in Lou- isiana, in Scotland, and in Lower Canada, has been freely drawn upon because of its value in settling general principles. Of the case-law of the American and British courts the writer has sought to supply a thorough digest. The list of Statutes of Frauds given in an appendix has been prepared with a view to show the condition of the statute law in this matter in the past as well as at present ; because without a knowledge of the statute in force at the time, it is often impossible to know what weight to give to a viii PEBFACB. decision. This labor has been difficult, and it is not believed that the result is entirely free from error. Suggestions of mistake here, as at any part of the work, will, especially when accompanied like a plea in abatement with the correc- tion of the error, be welcomed and acknowledged. The number of slips discovered in time and corrected make only the more certain the existence of many which have escaped notice. In preparing a manuscript it will happen that the abstract of a case and the report of it become separated, and in copying a wrong reference is attached to a statement. Nothing has been taken at second hand, but even gross blun- ders are not always to be avoided in the details of analysis and collation. The writer has very sincere pleasure in saying what great indebtedness he is under to the gentlemen who have assisted him, Mr. W. Wilkins Carr, Mr. Ellis Ames Ballard, Mr. John M. Gest, Mr. Richard 8. Hunter, and Mr. Chas. H. Bannard, whose special work will in each instance be indicated in the later volumes. Mr. J. Douglass Brown and Mr. Ballard have made themselves responsible for the accuracy of the cita- tions ; and the fidelity and patience which they have brought to their tedious task are gratefully recognized. At the same time are to be remembered the attentive services of the students in the writer's office and of the assistant librarians of the Law Association of Philadelphia, as well as the cour- tesy of the gentlemen in charge of the Law Libraries of New York and of Nassau (New Providence). In the preface of a book of remarkable genius and learning, the one perhaps most conspicuous of late years for the mag- nitude of its erudite detail, the author telling how his long labflrs were coming to a close, says : " J'ajouterai qu'^ ce ierme pour lequel je me suis astreint k de longues veilles je serais ix PREFACE. arriv^ moins t6t si une collaboration domeatique aussi gra- eieuse que d^vou^e ue I'avait notablement avanc^." And the quotation of these words may serve lastly to acknowledge an obligation for other faithful and most intelligent help not less important than any of the rest. Philadelphia, June, 1884. CONTENTS. CHAPTER I. SBCTIOK The History op the Statute op Frauds and its Policy and Value ....... 1-15 CHAPTER II. Lex Fori and Lex Loci Contractus .... 16-24 CHAPTER III. Guaranties in General — The Promise — The Consid- eration 25-74 CHAPTER IV. The Parties to the Guaranty 75-&3 CHAPTER V. The Subject-Matter op the Guaranty — and Miscel- laneous Points 84-151 CHAPTER VI. Promises by Administrators or Executors to Answer out of their own Estates 152—171 CHAPTER VII. Promises in Consideration op Marriage . . . 172-186 CHAPTER VIII. Year 187-217 CHAPTER IX. Contracts relating to Chattels .... 218-257 xi CONTENTS. CHAPTER X. SECTION Delivery, etc., or Chattels 258-303 CHAPTEE XI. Public and Quasi-Public Sales ..... 304-320 CHAPTEE XII. The Memorandum in General — Various Kinds of Memoranda 321-340 CHAPTEE XIII. The Nature of the Memorandum — Memorandum on Separate Papers 341-354 CHAPTEE XIV. The Execution of the Memorandum — in General — BY the Parties 355-367 CHAPTEE XV. The Execution op the Memorandum by an Agent . 368-383 CHAPTER XVI. The Execution of the Memorandum — Signature and OTHER Details of Execution 384-391 CHAPTER XVII. The Contents op the Memorandum : The Contract IN General : Terms and Conditions : Description of the Parties 392-407 CHAPTER XVIII. The Contents of the Memorandum — The Subject- Matter of the Contract — The Price. . . . 408-419 CHAPTER XIX. The Contents of the Memorandum— The Considera- tion 420-439 xii THE LAW OF THE STATUTE OF FRAUDS. CHAPTER I. THE HISTORY OF THE STATUTE OF FRAUDS AND ITS POLICY AND VALUE. § 1. Authorship of the Statute. § 2. 29 Car. II. u. 3, as in force in the British colonies. § 3. English decisions as authority in America. § 4. Federal Statute of Frauds. § 5. Scottish law. § 6. Lower Canada law. § 7. Policy and value of the Statute of Frauds. § 8. The Statute generally commended. § 9. Exceptions to the Statute deplored. § 10. Qualified commendation. § 11. Statilte of Frauds condemned. § 12. The Statute of Frauds and the common law rule excluding oral evi- dence to affect a writing. §13. Oral contract valid before the Statute of Frauds. § 14. Oral evidence refused before the Statute of Frauds. § 15. The common law rule of evidence as affected by the Statute of Frauds. § 1. Owing to the infelicitous wording of the Statute of Frauds and to the stress which has been laid on ; 1 1 1 ■ Authorship the very terms ot the act, as, tor example, the dis- of the tinction between " promise "and " agreement," upon ^ ^ " ^• which the decision in Wain v. Warlters greatly hinged, it is an inquiry of interest to learn who wrote the statute and how fur its language received proper revision. Lord l^otting- ham, in Ash ?;. Abdy, said: "And I said that I had some reason to know the meaning of this law, for it had its first rise from me who brought in the bill into the Lords' House, though it afterwards received some additions and improve- ments from the judges and civilians. "(a) (a) 3 Swanst. 664 (June 13, 1678). popular conjectures concerning the liis- The reporter adds: "No one of the tory of this celebrated statute refers its VOL, I. — 1 1 § 1.] LAW OF THE STATUTE OP FEATJDS. [CHAP. I. Sir Geoffrey Gilbert, one of the commissioners of the Great Seal in the eleventh year of George I., said of the Statute of Frauds: " And in the making of this statute, which Avas con- trived by Lord Chief Justice Hale and the most learned men of that time, they went upon the foot of the old Roman law." The remark was with special reference to the Wills clause ; and in another report of the same case he said: "Sir Mat- thew Hale and Sir Leoline Jenkins, who prepared the statute, chose to take the plan from the Roman law. "(6) Francis ISTorth, speaking of his brother, Lord Guilford, says: "He had a great hand in the Statute of Frauds and Perjuries, of which Lord Nottingham said that every line was worth a subsidy. But at that time the Lord Chief Justice Hales had the pre-eminence, and was chief in fixing that law, although the urging part lay upon him, and I have reason to think it bad the first spring from his lordship's motion; for I find in some notes of his and hints of amendment in the law every one of these points which were there taken care of. "(e) Lord EUenborough, in Wain v. Warlters, says that the Statute of Frauds was drawn by Sir Matthew Hale, one of the greatest judges who ever sat in Westminster Hall.(('/) The Statute of Frauds was passed in the session of Parlia- ment beginning February 15, 1676, and Sir Matthew Hale had died the previous Christmas (December 25, 1674<<1 S.).(e) In a modern case it was said that the difference between origin to Lord Nottingham. . . . said: " It has been said that tliis act There may have been some foundation of 29 Car. II. c. 3, was drawn by Lord for the tradition that Sir Matthew Hale Cliief Justice Hale, but this is scarce and Sir Leoline Jenkins assisted in its probable. It was not passed till after preparation." his death, and it was brought in in the (6) Whitchurch v. Whitchurch, 1 common way and not upon any refer- Str. 621 ; Gilb. Rep. in Eq. (Fol.) 171. ence to the judges." (c) Lives ot the Norths, i. 224 (Ros- (e) Burnet's Life of Hale, 64, K9. The coe's ed.).- act received royal assent AprillG, 1677. (d) 5 East, 16. The reporter in a note See, generally, as to the history of the adds that Lord Mansfield in Wyndham Statute of Frauds, Wynn's Life of Sir V. Chetwynd (1 Burr. 418), doubted Leoline Jenkins, i. p. 3; Taylor on Lord Hale's authorship of the Statute Evid., 5th ed., 870 ; 2 Selw. N. P. 727 of Frauds to any greater extent than and u., 7th Am. ed., 840 ; Leigh N. P. his having left loose notes which were p. *1015, nn. unskilfully digested. Lord Mansfield 2 CHAP. I.] HISTORY OF THE STATUTE OF FRAUDS. [§2. the language of the fourth and seventeenth sections of the Statute of Frauds is accounted for by its various author8hip.(/) Before leaving this subject a reference to Sir Edward Sug- den's proposed bill upon the law of written evidence may not be without interest. The principal points of it were that the writing should be signed at the foot thereof in the usual manner of subscribing regular agreements ; that letters or cor- respondence should not be a compliance with the statute; that possession, part payment, and expenditures upon the land should not take the contract out of the Statute of Frauds ; that an action for compensation should lie for the benefits of part performance, when the statute has been set up ; and that there should be in this action certain rights of set-oft"; and that a deposit of deeds should not be a mortgage unless the agreement be in writing.((/') § 2. How far 29 Car. II. c. 3, has been in force in British colonies, then and since, is a point of some doubt. In an anonymous case, in 2 Peere Williams, it was said that : Where (/) Bird o. Munroe, 66 Me. 343 ; the awkward language of the statute has often been commented on ; see § 11. (g) 2 Leg. Obs. London, 1831, 250. A bill was brought into Parliament this year (1883) by Mr. Reid and others, under which one claiming, though an oral contract, could require the other party to answer under oath as to the contract, and which provided that the agreement as confessed should be en- forced, the bill was lost by four votes in a thin hpuse. The Solicitor-General seems to have been not adverse to the bill. The Solicitor's Journal and the Law Times of London were strongly op- posed to the bill as likely to be produc- tive of perj ury ; the Law Times think- ing that as a fact the plea of the Statute of Frauds was generally a meritorious one ; the New Jersey Law Journal, on the other hand, urges with much force that the bill merely enables one of the parties to an oral contract to wring a confession against interest from the other party to the agreement. It is true that divers defendants would doubtless perjure themselves to the injury of their morals, but the perjury does little hurt to any one but themselves, as, under the Statute of Frauds, the other party is without redress at any rate ; if under the proposed bill the party examined can bind the other by his statement of the agreement, an indiscreet interroga- tion may hurt the party making it ; but this risk he takes by putting the other upon oath, and indeed by suffer- ing a nonsuit, or in any other way discontinuing his suit the plaintiff can put himself in stain quo. On the other hand, an honest confession by the per- son interrogated would, in some in- stances, lead to the discovery of the truth. For statutes of an analogous character in the United States see the chapter on Pleading and the statutes collected at the end of this work. See, as to the Reid bill, 75 L. T. 141, 204 ; 27 Solic. Jour. 661 ; 6 N. J. L. J. 226 ; 17 West. Jur. 449, defending the bill, and instancing the Iowa experience. 3 § 2.] LAW OF THE STATUTE OF FRAUDS. [CHAP. I. a new and uninhabited country is talcen possession of by the English, the country becomes subject to the laws of 29 Car II ^ c. 3, as in' England, but if after such country is inhabited an act BriHsh'' of Parliament is made, not naming the foreign plan- coionies. tations, the latter are not bound. Hence, a provi- sion of the Statute of Frauds requiring three witnesses to a will was held not to apply to Barbadoes.(/i) The Statute of Frauds was extended to the island of Grenada by a local statute.(0 It is also in force in St. Kitts,0') and in Newfound- la nd.(/;) English statutes of the reign of Charles II. being sub- sequent to the settlement of Alabama, are not in force in that 8tate.(0 In Maryland the Statute of Frauds is of itself in force. (m) In a case in McLean, it was said that in 1787, Ken- tucky not being a state, no Statute of Frauds passed by it could apply, and that an oral contract of exchange of land was then valid under the law of Virginia. (/() In North Carolina, the statute was not in force till 1715, when parts of it were adopted. (o) Before March 21, 1772, the statute of 29 Car. II. c. 3, though enacted prior to Penti's charter and subsequent to the settlement of the colony, was held not to be in force in Penn- sylvania, on the ground that of such prior statutes (except those that expressly referred to the colony) none applied which were made during thelatter's existence as a British possession, and that at the time of the passage of this particular law, the authority of the British governor of New York extended in point of fact over Pennsylvania, being by virtue of the word territories used in the royal charter to him. Such seems to be the reason of the ruling in Anonymous, 1 Dall. 1. (See the (A) P. 75 ; before the Privy Council, (/) Matthews v. Ansley, 31 Ala. 22, citing cases. See Attorney-Gen. v. citing Parter v. Balfour, 19 Ala. 829. Stewart, 2 Mer. 156, n. (m) Sibley „. Williams, 3 Gill & J. ({) Attorney-Gen. i/. Stewart, supra. 62. See Green u. Drumraond, 31 Md. ij) Beckett D. Harden, 4 M. & S. 1; 79. But was not applied to a will as to the British colonies in general, made shortly after, 29 Car. 11. u. 3, be- see 8 Petersd. Abr. (p. 114, n.) ; Burge, cause the knowledge of it had not been Conf. Laws, ii. 520-7, 699, 722-723, communicated to the colony; Clnyland 787-9. V. Pearce,,l H. & MoH. 29. (i) Fitzgerald v. Dawe, Sel. Ca. Newf. {n) Carringtou v. Brents, 1 McLean, 177. 176. (o) fcmith V. Williams, 1 Murp. 431. CHAP, r.] HISTOKT OF THE STATUTE OF FRAUDS. [§2. note thereto questioning this position and putting the decision upon the broader basis of the inapplicability of such a statute to the circumstances of the colony. That this is the more correct view is confirmed by the fact that the statute was not re-enacted till 1772, and then only as to a small part of it.)()o) One of the members of the Supreme Court of Utah has given it as his opinion that there would be no Statute of Frauds in that territory until the act as such should be passed ; that as conquered land the law was the Mexican law, which was (jo) See Brack. Law Misc. p. 179 ; Sliarsw. Law Lect. 226 et seg. 1 Sm. & R. Laws, 389 and note ; as to the ability with which the Pennsylvania act, March 21, 1772, was drafted, see Murphy v. Hubert, 7 Pa. St. 423. See Bell u. Andrews, 4 Dall. 152. For an inaccurate statement of the adoption of the Statute of Frauds in Pennsylvania, see White u. Knapp, 47 Barb. 553. Speaking of Murphy v. Hubert, just cited, and referring to Chief Justice Gib- son's remarks therein, Mr. Binney, in a pamphlet reviewing the decision of Murphy v. Hubert, Phila. 1848, p. 14, note, says : — " The Chief Justice's liberal disposi- tion to- give praise' to every one who deserves it, has, in this instance, given to some unknown. person a degree of praise that is not merited by anybody. The first three sections of the 29 Car. II. 0. 3, are but one enactment as the printed statute shows, and the consoli- dation is effected solely by destroying the distinction of paragraphs, and striking out after the words which ex- cept leases not exceeding the term of three years, these words, 'thereupon the rent reserved to the landlord during such term shall amount unto two-third parts at least of the full improved value of the thing demised' — and also the words ' not being copyhold or cus- tomary interest.' " This is readily shown by placing the first section of the act of 1772, and the three paragraphs which constitute the first section of the statute, 29 Car. II. u. 3, in parallel columns. " As a guard against perjury in sus- taining a parol lease for three years, or under the clause in the second para- graph, the first section of the statute, omitted in the first section of tlie act, would have been useful, and ought to have been retained. The omission of copyhold tenure was a matter of course. The adoption of other sections of the Statute of Frauds, 29 Car. II. c. 3, and the omission of the rest required no otherskill, in either adopting or reject- ing, than such, as will be seen, an ordi- nary acquaintance with the law of Pennsylvania as it then stood must have shown to be expedient. This will appear by the subsequent remarks in the text. " The history of the Act of Frauds of 1772, is not otherwise to be obtained than from the 'Votes of Assembly,' and this journal gives but a very im- perfect account of the matter. The bill after being passed by the house in its present form, and presented to the governor for his approbation, appears to have been returned by him to the Assembly with amendments — 6Votes of Assembly, 358. The house did not con- cur, p. 367. In this last page it is called an amendment, and the gover- nor in his reply intimated to the As- 5 § 8.] LAW OF THE STATUTE OF FRAUDS. [CHAP. I. tacitlj' replaced by the common law as suited to the wants of the new community. (§') § 3. The weight of American authority is in favor of re- garding the English decisions made before the Eevo- cistonsas*^' lution of 1776, as adopted with the adoption of the fnAmerfca. Statute of Frauds itself.(r) An adoption of a statute involves the interpretation then put upon it by courts of law.(s) In another case, speaking of the Statute of Frauds, the court said : It is a doctrine of the American courts, very generally accepted, that when a statute enacts a British statute, which has received in the mother country a fixed and established judicial interpretation, the legislature will be supposed to adopt the statute with the interpretation put upon it. The principle has been several times recognized in this court, with respect to statutes borrowed from other states.(i) And it has been said that English decisions on the statute would be followed, as the law was enacted with the knowledge of them.(M) Speaking of the phrase, " party to be charged," it was said in a Minnesota case, that the legislature of that state must have intended to use tiie phrase in the established sense. (v) The decisions in equity upon the Statute of Frauds were also adopted, ami among the rest the doctrine of part performance. (?«) Whether conclusive or not, the Eng- lish decisions are certainly pertinent authority in America.(z) serably that he would waive it if the r. Peterman, 3 S. & R. 543 ; Farley v. Assembly should adhere to the bill as Stokes, 1 Pars. 420 ; Pugh i . Good, 3 it was sent to him. The bill being en- W. & S. 58 ; Reed u. Reed, 12 Pa. St. grossed by order of the house was again 120. presented to the governor and signed. (s) Tomson v. Ward, 1 N. H. 12. An ineffectual search has been made in (() Marqueze v. Caldwell, 48 Miss, the secretary of state's office to ascer- 31, citing many cases, tain what was the character of tlie (u) Yerby v. Grigsby, 9 Leigh, 390. amendment proposed by the governor, (u) Morin r. JMartz, 13 Minn. 192. but it appears that there is no record {w) Cox u. Cox, Peck (Tenn.), 457 ; of the governor's message remaining in Downey v. Hotohkiss, 2 Day, 225. the office." {x) Meach v. Perry, 1 Chip. 185; Piu- (?) First National Bank v. Kinner, 1 ney v. Fellows, 15 Vt. 539 ; Wilson i,. Utah, 102, citing some authorities. Ray, 13 Ind. 6; Vawter i'. Griffin, 40 (r) Allen c. Booker, 2 Stew. 24 ; Ind. 601 ; Fagan u. Faulkner, 5 Ark. Brock V. Cook, 3 Porter, 466 ; see, also, 164. Cathcart v. Robinson, 5 Pet. 280 ; Jones 6 CHAP. I.] HISTORY OP THE STATUTE OF FRAUDS. [§ 5, But it has been held that En2;lish rulings need not be followed unless they convince {y) § 4. Before taking a hasty view of that part of the civil law as in force in Ensjlish speakiiia; countries which Federal resembles the Statute of Frauds, it may be well to statute of say that the Federal act of June 2, 1862, requiring ^'''""^'• contracts with oflBcers of the United States Government to be in writing, has been decided to be a Statute of Frauds and generally binding as such. (2) § 5. The Statute of Frauds having, as already seen, been drawn at least in part from the civil law (see § 1), Scottish the law of Scotland has decided interest by way of ^^^' analogy. It confirms a view of the Statute of Frauds which is perhaps the wisest, that the latter, namely, should be lim- ited in its policy to the transfer of land and to only such con- tracts as are of a comparatively unusual nature,(a) such, for example, as guaranties, personal assumptions by fiduciaries, promises in consideration of marriage, or to pay debts from which the promissor had been discharged. "While the ten- dency of the Scotch law has from tiie first been in favor of requiring written evidence only in extraordinary transactions, there was at one time some hesitation in the matter. Thus it was said that innominate contracts regarding heritage, or even movables, especially such as are of an unusual character, cannot be constituted verbally ; where there are mutual ob- ligations flowing naturally from the contract, oral evidence is safe ; but otherwise the danger of mistake on the part of the witnesses is very gi'eat.(6) In a case in Maepherson,Lord Neaves (?/) Grant v. Craigmiles, 1 Bibb, 209 ; contract wliich deviates in any degree Patton u. McClure, Mart. & Yerg. 337, from the common right ought to be in citing cases; Garner v. Stubblefield, 5 writing,'' Tex. 558. (6) Edmonston v. Edmonston, Sess. {z) Clarku. The United States, 95 U. Cas. 23 D. 1001; 33 Scotch Jur. 514, S. 541; Danolds o. U. S., 5 Ct. of CI. citing Erskine iv. 2, 20. A nomi- 71, citing Lindsay's Case, 4 Ct. of CI. nate contract (see Bouvier Law Diet. 359 ; see in/ra the special sections which and Paterson's Compendium) is a spe- relate to this statute ; see Jones u. cial kind of contract, the terms and United States, 11 Ct. of CI. 740. effect of which are established by law, (a) In Mallet I'. BatemanL. R. 1 C. P. and which is always the same ; when, 169; Pollock, C. B., said that "every therefore, the parties state that they 7 § 5.J LAW OF THE STATUTE OP FBAUDS. [CHAP. I. said :(c) "The statements in some of the law books . . . are unsatisfactory. ' Innominate contracts,' it has been said, ' espe- cially such as are of an unusual character, cannot be proved by witnesses.' This appears to me a very indistinct statement of the law. A contract of so extraordinary or unusual nature may only be provable by writ or oath, but I do not think that innom- inate contracts can be proved only in that way. A plain con- tract like this, even though it were held to belong to the class of innominate contracts — which I doubt — may, in my opinion, be proved by parol. I do not think the case of Edmonston (Edmonston v. Edmonston) militates against this view. The contract there alleged was of a most extraordinary nature, and the decision w-as clearly sound. The agreement was to com- promise and make a payment to the plaintiff" in a suit for breach of promise of marriage brought by her against J. E., who was then living with the defendant, and who was (?) his relative." In another case it was said that the test as to the ad- missibility of parol evidence does not depend upon the fine distinction between nominate and innominate contracts, but upon whether the contract is usual or so unusual, as to give rise to stipulations which would not naturally flow from the general nature of the agreement ; many innominate contracts can he proved by parol. (rf) The peculiarity of the Scotch system in the eyes of a com- mon lawyer is that the judges in each case decide whether the particular contract is unusual or not, requiring or not requi- ring written evidence to establish it, instead of the legislature made a nominate contract, describing that an innkeeper allowed an omnibus it by its generic name, the law applies line free stabling on condition that the the certain rights and liabilities which line would start from the inn. And belong to that contract. An innomi- for an example of an unusual stipula- nate contract is any agreement which tion required to be proved by writing the parties choose to make and which or oath, Taylor v. Forbes, Sess. Cas. 4 may vary in every case. D. 19, was cited. For a view of the (c) Thomson v. Fraser, 7 Macph. 41 Scotch law requiring written evidence (Ct. of Sess.) ; see cases cited by of a guaranty, and as to contract of counsel. service, see infra. See, generally, as {d) Forbes v. Caird, 14 Scotch Law to Scotch law on the subject, Burge on Reporter, 672 (Ct. of Sess. First Div.). Confl,ofLaws,ii.517-8;andconsult Bell Oral evidence was admitted to show Com. ; see 19 and 20 Vict., o. 60, § 60. CHAP. I.] HISTORY OF THE STATUTE OF FRAUDS. [§ 6. settling in advance for the guidance of the community what agreements must be put in writing and what need not. There are several such cases to be found elsewhere in this work under appropriate heads; the following example will show the principle: Thus, an agreement by a lawj^er to do business gratuitously, expecting to get his costs from the other side, being contrary to the ordinary rule in agencies, must be proved by a writing or the oath of the part3'.(e) The rule is otherwise where the person is not acting in a professional capacity. (/) Contracts of a commercial nature are provable by parol in Scotland. (^) Though this rule did not at one time extend to such contracts, if one of its features was a guaranty. Thus it was said : " With regard to other commercial contracts you do not allow them to be proved by witnesses, but they may be proved in any other habile manner ; for instance, by the oath of the party. If a debtor says, I paid that debt, and offers to prove the payment by witnesses, you would not sustain that mode of proof, but you would allow a reference to oath, and thus wherever writing is not de essentia of the contract the obligation may be proved scripto vel juramento.'\h) But semble that now, however, a guaranty in re mercatoria can be proved by oral evidence ;(i) and that if the original contract is of a commercial nature the guaranty may be proved by parol. (J) A gratuitous promise, even for less than £100 Scotch, though once held provable orally, is no longer so.(/i:) § 6. The civil law as in force in Lower Canada, following the same principle as the Scotch jurisprudence, per- mits oral proof of business transactions. Thus, the nada'iaw!' sale of a wagon by a hotel-keeper to a " cultivateur et comme*rgant"is a commercial act, and can be orally proved.(^) (e) Taylor v. Forbes, Sess. Cas. 24 D. D. 875 ; 16 Scotch Jur. 376 ; S. C, sub 19, note. nom. Grant o. Johnston, 7 D. 390 ; 17 (/) Moscrip V. O'Hara, Sess. Cases, Scotch Jur. 141. 4th ser. vol. 8, p. 37. {j) Surge, Surety, p. 37. (g) Hamilton v. Struthers, 31 Scotch (Jc) Campbell v. McLauohlan, 29 Jur. 44. Morr. Diet. 12288. (A) Sinclair w. Sinclair, Bell Pol. Cas. (/) Vandal u. Grenier, 6 Low. Can. 142. Reports, 475. (J,) Johnston v. Grant, Sess. Cas. 6 9 § 8.] LAW OF THE STATUTE OP FRAUDS. [CIIAP. I. So the employment by a railroad of an enguieer.()n) But the payment of a debt in judgment must be shown by writing, though the original obligation was of a commercial character.(n) The 54th section of the law known as the " Ordonnance Du Moulins'' is to the same eiFect as the 17th section of the Statute of Frauds.(o) § 7. It is an instructive fact, that now, after two centuries of experience of the law, there is to be found among value of those best fitted to judge, an irreconcilable difier- Frauds.°*^ ence of opinion as to the utility of the Statute of Frauds. On the one hand, the strict letter of the act is commended, exceptions and modifications to it are frowned upon, and its extension by legislation aj)proved ; on the other, it has been said to be of more harm than good, that the exceptions to it are all that make it tolerable, and that it should lie limited to a small class of gratuitous promises and to protect the title to land ; between these extremes is the opinion that the statute is good, but the exceptions to it are good also, and that as interpreted by equity judges, but only as so inter- preted, is it a valuable law. The tendency of modern legisla- tion has certainly been to extend the principle of the Statute of Frauds to several new classes of subjects, as may be seen in another part of this work. If the expression of an individual opinion may be permitted, the present writer suggests that an examination of the adjudications contained in this book would show that a large proportion of snch immense litigation could in the future cases be done away with by careful legislation. § 8. The Statute of Frauds, to return to our immediate sub- Cm) Legge V. Lanrentian, E. W., 24 Evid. (14th ed.), I. § 2B2, p. 308, n. 1. Low. Can. Jur. 99 (Q. B.) ; the proof See Spence, Eq. Jur. I. 22, 33. See offered was of a promise by tlie plaintiff Gibb. Dec. andFall, c. xliv. As toproof to take his pay in tlie bonds of the by interrogation or oath, etc., see the company at a certain figure. chapter on Pleading ; as to commer- (n) Miller u. Kemp, 14 Low. Can. cial contracts, see that on Chattels ; and Jur. 76. as to the history of the Statute of Frauds (o) Fry V. Richelieu Co., 9 Low. Can. in Lower Canada, see those on Chattels Rep. 411. frenerally as to the civil law and on Pleading. See Morgan cYarbor- in its resemblance to the Statute of ough,5 La. Ann. 317, for some examples Frauds, sue Burge on Confl. of Laws, ii. of contracts good in Louisiana by parol. 517-8, 6S2-722, 775-785; Ureenl. on 10 CHAP. I.] HISTOEY OF THE STATUTE OF FRAUDS. rs». ject, has received no little commendation. (p) Thus « My Lord Chancellor" (Cowper) "said that he had always been tender inlaying open that wise and just pro- gra*^erany'* vision Parliament had made" {i. e., the Statute of ^eTded. Frauds).(^) In Higginson v. Clowes, Lord Alvanley (Pepper Arden) was said by counsel, Sir Samuel Romilly and Mr. Heald, to have been a judge much attached to the Statute of Frauds.(r) In Proctor v. Jones, Chief Justice Best said that the Statutes of Frauds and of Limitations were bothso much ob- jected to at the time when they were passed that the judges ap- peared anxious to get them oft' the statute- book, but in later times they have become desirous to give them their full eftect, " and added I think the Statute of Frauds is a good and wholesome (p) Simon o. Metiver, Wm. Black. 600 ; Chater v. Beckett, 7 T. R. 204 ; Howe V. Palmer, 3 B. & Aid. 323 ; Hu- bert c. Turner, 4 Scott, N. R. 505 ; Chaplin v. Rogers, 1 East, 194; Alder- son ) Gllmore v. Shuter, 2 Lev. 227 (see born V. Watson, 6 Harr. & John. 255, Table of Cases). per Buchanan, C. J. ; Allvriue u. Gar- (c) See2KentCora. 513, ii. (d); John- berich, 2 Pears. 28 ; see Will. Trust. 43. son t. Watson, 1 Kelly, 350; Downs (y) See Rawle's Smith on Contr. (p. u. Ross, 23 Wend. 270 (Bronson,J., say- 118), p. *47 jii. 1 ; 1 Sm. L. C. (5th lug that if the view he took was not Am. ed.) 389. On the other hand, adopted the statute would never be see, however, Jack u. Morrison, 48 Pa. explained) ; Macey i. Childress, 2 St. 113; Sidwell v. Evans, 1 P. & Tenu. Ch. 450 (the chancellor adding Watts, 385. that the remedy wag in legislation) ; (z) Morgan v. Worthington, 38 L. T., see Leigh N. P. p. *1015, n. N. S. 445. ((/) Macey v. Childress, 2 Tenn. Ch. 450. 16 CHAP. I.] HISTORY OP THE STATUTE OF FRAUDS. [§ 12. guage of the statute has been adverted to ; it is a mere patehwork.(f) In Passaic Man. Co. v. Hoft'man, Judge Daly cited Lord Campbell as advocating the abolition of the Statute of Frauds, and was himself so far of the same opinion as that the statute should not extend to contracts which are really for work and labor.(/) That there is a constant liability to new- points is noticed in an Indiana case, which calls attention to the fact that the question in Eastwood v. Kenyon(^) arose for the first time in 1840.(A) The " Chattels" clause of the Statute of Frauds has been the one the most criticized.(2') It has been said that this provision is universally disregarded by Man- chester traders.(J) The wisdom of the 17th section has been questioned by the Scotch lawj'ers also.(^) There is no such rule in Scotland, France, or Holland. (^) § 12. There is an important distinction between the exclusion of oral evidence because of the Statute of Frauds and xhe statute its exclusion at common law; the reason of the latter of Frauds 1-1 • • 1-11 ^""^ *''"' rule IS, that a writing entered into by the contract- commoa ing parties must be presumed to contain the entire exciudin-- agreement, and all oral stipulations, though proved ^g^gg^^o to be true, are supposed to have been waived, and to affect a , ,.,.. T-ri loi !• writing. be merged in the writing. Under the btatute ot Frauds, on the contrary, the oral evidence is rejected because it is the policy of that law to regard it as untrustworthy pe?- se. The difl:'erence between the two rules is best shown by the case of a written contract, on its face manifestly incom- plete ; here if the subject-matter is within the Statute of (e) Ellett V. Britton, 10 Tex. 209 ; see cided in Massachusetts in 1821, see Passaic Co. v. Hoffman, 3 Daly, 502; Colt v. Root, 17 Mass. 229. see Chance on Powers, No. 869 ; see (i) Marvin v. Wallis, 6 E. & B. 733 ; Bird V. Munroe, 66 Me. 343. The ex- S. C, sub. nom., Marvin u. Wallace, pression "allowed to be good" in § 25 L. J. Q.B. 369; Nicholson u. Bower, 17 of 29 Car. II. c. 3, is criticized by 1 E. & E. 172 ; 28 L. J. Q. B. 97 ; Hart Bramwell, B., in Noble v. Ward, L. R. v. Bush, E. B. & E. 496 ; 27 L. J. Q. B. 1 Exch. 121 ; see Fonbl. Eq. I. 198. 272; Ames u. ainty, 16 Can. L. J. (/) Passaic Man. Co. v. Hoffman, 3 36 ; Pinkham v. Mattox, 53 N. H. 602 ; Daly, 505. see Law Rev. (Eng.) vol. xxii. p. 17o, (g) 11 A. & E. 438. 419 (A. D. 1855). (A) Colter v. Frese, 45 Ind. 104, that (J) Shively v. Black, 45 Pa. St. 347. is to say, in England ; it had been de- (h) Bell on Contr. of Sales, 63. (/) Kent Com. 12th ed., p. 494 (n. a). VOL. I.— 2 17 § 13.] LAW OF THB STATUTE OF FRAUDS. [CHAP. I. Frauds, no oral evidence can be received to supply the defects of the writin,^; whereas the common law rule is no bar to such admission. (m) § 13. An oral contract before the Statute of Frauds was, as a general rule, enforceable.(n) A sale of personalty, frlctvaiTa '^vhich under statute is required to be in writing and before the recorded, is valid if before the act.(o) In a Louisiana case it was held that a promise made before the Statute of Frauds of that state, and admitted without objec- tion, was good.(p) As will be seen in a moment, there are some reported cases in chancery before 29 Car. II. c. 3, in which a writing was required; it may be well, therefore, to give ex- amples of oral contracts enforced at that date. In one case an oral purchase of a house for £290 was decreed in favor of the vendee, who had paid 205. in hand, and had tendered the rest at the day.(g) An oral contract made before the Statute of Frauds can be sued on after; that is to say, the act is pros- pective and not retrospective. (r) Retroactive operation cannot be given to an act making the possession of certain chattels, without the possession of a written title thereto, prima facie (m)Hutchinsi'. Lee, lAtk. 447; Simp- 5 Mon. 137; Wall v. Scales, 1 Dev. son tj. Kimberlin, 12 Kan. 584; Wi'is- Eq. 472; Rabassa i\ Orleans Nav. Co., ley f. Thomas, 6 H. &. J. 26 ; Lamb 5 La. 460 ; McDonald u. Stewart, 18 0. Crafts, 12 Mete. 355 ; WooUam u. La. Ann. 91 ; Williams v. Lewis, 5 Hearn, 7 Ves. .Jr. 211 ; Fenley v. Stew- Leigh, 694 ; Thornton v. Corbin, 3 Call, art, 5 Sandf. 105 ; Sale v. Darragh, 2 389. Hilton, 196 ; Erwin v. Saunders, 1 Cow. (o) Knoulton v. Redenbangh, 40 la. 250; McConnell o. Brillhart, 17 111. 114. 360; Smith .. Williams, 1 Murph. (p) Taylor «. Smith, 15 La. Ann. 416. 431-2; Ratcliffe ... Allison, 3 Rand. (?) VoUr.Smith, 3Rep. in Ch. (Fol.) 539 ; see Greenl. Evid. (14th ed.) I. 16 (21 Car. II.) ; see Hunt v. Cheese- § 262, p. 308, n. 1 ; Stark Ev. (10th man, Toth. (10 Jac. 1) subd. 48, p. Am. ed.) p. *644, n. ; 13 Leg. Obs. 65 (Holb. ed.). pp. 8 and 77 ; 2 Centr. Law Jour. p. (r) Ash v. Abdy, 3 Swanst. 664 ; Gil- 654 (an article copied from the Irish more v. Shuter, 2 Lev. 227 ; T. Jones, Law T.). 108 ; S. C, sub. nom., Gillmore v. Shoo- (n) Mobile Ins. Co. u. McMillan, 31 ter, 2 Mod. 810; S. C. sub. nom., Hel- Ala. 719 ; Allen ;■. Beal, 3 A. K. Marsh, more v. Shuter, 2 Show. 16 ; Dunn v. 555 ; Nelson v. Clay, 5 Litt. (Ky.) Tharp, 4 Ired. Eq. 7 ; Lingenfelter v. 153-4 ; Ball ;;. Ball, 2 Bibb, 66 ; Duvall Ritchey, 58 Pa. St. 487 ; BalleHtine v. V. Guthrie, 3 Bibb, 532; Searcey r. White, 77 Pa. St. 20; see Maffitt v. Morgan, 4 Bibb, 96 ; Barbonr v. Whit- Rynd, 69 Pa. St. 387 ; see Wade on lock, 4 Mon. 192 ; Fisher u. Cockerill, Retrospective Laws, § 45, § 233. 18 CHAP. I.j HISTORY OF THE STATUTE OF FRAUDS. [§ 13, evidence of theft; this would be an ex ■post facto law under the Constitution of the United State8.(.s) And in Louisiana it was held that the application of the Statute of Frauds to oral con- tracts, valid under the law prevailing when the contract was made, would cause the act to impair the obligation of these contracts, and on that ground be a violation of the Federal Constitution. (<) A parol contract for conveyance of lands made prior to the passage of the Statute of Frauds is enforceable, especially when acquiesced in for forty years ; when it averred that the contract was made in the period between certain dates, the court assumed the true date to be the middle one between the others, which put the contract before the local Statute of Frauds.(M) In an early Maryland case, a question arose as to a will under the Statute of Frauds, and the court said : " The matter of law insisted on the special verdict being only on the act of Parliament relating to frauds and perjuries of 29 Charles II., for that it seemed to the court, that the will was made within two years and a half after the making of the said statute, and before publication or notice thereof in this province, and before the making of the act of Assembly, directing the manner of pleading the laws of England in the Commissary's Court, and also in the infancy of the country, when evidences were harder to come by than now, the court were induced by these motives to overrule the argument on the said statute." The will was dated August 20, 1679, and proved by two witnesses August 30, 1680.(w) Lord Tenter- den's act, 9 G-eo. IV. c. 14, which did not go into eftect till some months after it was passed, has been held not to be affected by the rule laid down in Gilmore v. Shuter, and to apply to a suit brought after it went into eftect on promises made before.(i«) Where a law (Maine Statutes, 1848, c. 52, R. S. c. Ill, § 1) provided that no " action shall be brought and maintained" upon a special contract to pay a debt from which (s) Espy V. The State, 32 Tex. 375. (v) Clayland v. Pearoe, 1 H. & MoHen. (t) McDonald v. Stewart, 18 La. Ann. 29. 91. (!o) Towler v. Chatterton, 6 Bing. (u) Bell V. Breckenridge, 1 A. K. 264, citing two unreported rulings on Marsh, 564. cases brought before the act, but not tried till after. 19 § 14.J LAW OF THE STATUTE OF FRAUDS. [CHAP. I. the promissor has been discharged by bankruptcy ; it was held that tins was a good defence in a suit instituted after the passage of the law, but based on a verbal promise made before its passage.(a:) A verbal contract relating to land, made before the Statute of Frauds, is valid ; the action would be assumpsit, and would be barred by a statute of limitations, affecting the action of assumpsit.(y) A provision in a written contract re- quiring written proof of certain matters, has not the binding effect of a statute of Frauds; and the original written con- tract may itself be waived by subsequent parol. (e) An oral contract by a relative to pay for services, while requiring clear proof, does not require the strictness of the Statute of Frauds. (a) § 14. The principles of which the Statute of Frauds are an embodiment are those of a policy older than that Oral evi- ^ , t c^ • i n ■ , ■ii^7\ dencere- enactment, in bmith v. feurman it was said that(6) forethe" "the fourth Section applies to those verbal provi- statute of gions Or agreements which, before the passins: of the Frauds. ° , , , • r A Statute, were probably, in most instances, reduced into writing, though not necessarily so." And, as has been said, the principle of the act is as old as Constantine.(e) In Pennsylvania, before the adoption of any part of the fourth section of the Statute of Frauds, it was said that evidence of an oral guaranty must be "clear and explicit; that there should be no room to suspect mistake, misapprehension, or any unfairness in the transaction. "(f?) Before the Statute of Frauds, however, courts of equity were, upon general princi- ples, very cautious of giving relief upon parol contracts for lands, unless confessed by the answer, or in part performed. (e) In an early California case the court said that, even before the Statute of Frauds was in force, " we are unable to perceive how, under any system of laws, a verbal understanding be- (x) Kingley v. Cousins, 47 Me. 91. (c) Tufts v. Tufts, 3 W. & Min. 476 ; (y) Allen v. Beal, 3 A. K. Marsli. 555. 1 Spenoe Eq. Jur. 160. (z) Ford i: United States, 17 Ct. of CI. (rf) Petriken v. Baldy, 7 W. & S. 430 75, citing Hawkins v. U. S., 96 U. S. S. (A. D. 1844). C- 689- (e) Tilton u. Tilton, 9 N. H. 389 ; (a) Miller's Appeal, 39 Leg. Int. 479. citing Fonb. Eq., Book I. ch. 3, § 8 ; 2 (6) 4 M. & R. 463. Story's Eq. 55 ; Sugd. Vend. 86. 20 CHAP. I.] HISTORY OF THE STATUTE OF FRAUDS. [§ 14. tween an agent, unauthorized by any written paper, and a vendee, who neither takes possession nor pays any part of the purchase-money, can be enforced if repudiated by the vendor, and even if such a contract could be holden valid, it would seem to have been the duty of the vendee, under the circum- stances, to have immediately notified the vendor of his pur chase. The possession of the property was in the vendor, and before the vendee could claim the property as his by a valid purchase, he should have taken possession either by actual seizure under the contract, or by title-paper duly executed. "(/) In decreeing specific performance the chancellor, from the ear- liest times, has exercised a discretion as to the amount and nature of the evidence necessary to satisfy his conscietice.(^) And the unsatisfactory character of oral evidence is often the subject of judicial comment.(/i) The following are some chan- cery cases before 29 Oar. 11. : Thus a bill for the specific performance of a verbal promise to give the right of ingress and egress in a garden for the purpose of drying clothes was dismissed for triviality. (Anno. 20 and 21 Eliz.^)(i) A case in which a bill laying a promise to assure land for 10s. in hand, and £2100 at days, was demurred to, and the demurrer was allowed, because but a preparation for action upon case, is cited by Sugden, V. & P. (p. 152), as one showing that with- out part-performance oral contracts, even before the Statute of Frauds, were not enforced in chancery. (/) An oral contract in consideration of marriage, that the wife should have the sepa- rate use of certain property of her own, was held to be done away with by the marriage, and could not be enforced ; that to be valid it should have been by an assurance good at la\v.(^) (/) Harris v. Brown, 1 Cal. 100. 338 ; Shakespeare v. Markham, 72 N. Y. (j) Underwood K.Hitchcox, 1 Yes. Sr. 400; Paulinson «. Van Iderstine, IN. 279 ; Robeson i;. Hornbaker, 2 Green J. L. J. 235 ; Jones v. Knaus, 31 N. J. Ch. 63; Abbott v. L'Hommedieu, 10 Eq. 609. W. Va. 677 ; see Smith v. Howell, 3 (i) Hamby v. Northage, Carey, 109. Stockt. 349 ; written evidence of an (/) William v. Nevill, Toth. 135 express trust was required, though the (Holb. ed.), subd. 50, p. 72 ; as to the trustee failed to answer. slight value of Tothill's Reports, see (A) Barrow v. Ureenough, 9 Ves. Jr. Marvin'sLeg.Bib.,Wallace'sReporters. 154 ; Mercer v. Stark, 1 Sm. & M. Ch. (fc) Suffolk (Earl of) v. Greenvill, 3 487; Higgs v. Wilson, 3 Meto. (Ky.), Rep. in Ch. (Fol.), 17 Car. I. 50. 21 § 14.] LAW OF THE STATUTE OF FRAUDS. [CHAP. I. A demurrer to a bill for specific performance was allowed, be- cause the contract was not under hand and seal, and only 20s. paid as an earnest. (/) Before the Statute of Frauds it has also been held that chancery will not execute an oral agreement, unless it had been executed in part, or under hand and sea].{m) And oral promise as to a child's marriage portion {semble) not good, even before 29 Car. II., by custom of London. (w) When sued for the debt of another a defendant could at common law wage his ]aw.(o) In an early North Carolina case the court said : "It is not easy to arrive at a certain conclusion one way or the other, as to the practice in England before the Statute of Frauds and Perjuries. There are authorities both ways, and the more ancient ones are in favor of the jurisdiction. In 1467 it is said by a judge: 'That if I promise to build you a house, and do not jterform my promise, you have your subpoena;' and in 1505, Fineux, chief justice, speaking of the different remedies given in the courts for the non-per- formance of contracts, observes, 'that if a man bargain with another that he shall have his land for 10?., and that he will make him an estate therein by such a day, and he does not make the estate, an action upon the case lies; but in that he shall only recover damages ; but by subpoena the chancellor may compel him to execute the estate, or imprison him.' On principle, too, it would seem that such a jurisdiction might have been correctly exercised. Before the Statute of Frauds and Perjuries, in England, the only contracts and dispositions of property, real or personal, which were necessary to be piut in writing, were of property lying in grant, as rights and future interests, and that species of real property to which the name of incorporeal hereditaments applies. These were always au- thenticated by a deed ; and the Statute of 32 Hen. VIIL, ch. i., which gave to the owners of land a partial power of disposing of their estates by will, directed such will to be declared in (0 Simmons v. Cornelius, 1 Rep. in (o) Fish v. Richardson, Yel v. 55 ; Ch. (FoL), 15 Car. II. 128. citing Davis u. Rayner, 2 Keb. 758; (m)Normanby (Marquis of; K.Devon- Russel i-. Haddock, 1 Lev. 788; Scott shire (Duke of), Freem. Ch. 216. ,;. Stevens, Sid. 89. (n) Hall V. Luraley, Toth., subd. 44, p. 48 (Holb. ed.). 22 CHAP. I.] HISTORY OF THE STATUTE OF FRAUDS. [§ 15, writing ; some contracts were also required by customary laws to be in writing; but, as a general rule, no writing was neces- sary ; for even estates in land might be completely transferred by symbolical delivery in the presence of neighbors, however useful the precaution might be of recording the transaction by a charter of feoffment. It seems, indeed, that courts of equity were cautious in former times, as they ought always to be, of relieving bare parol agreements for lands, where the agree- ment has not been signed by parties, nor any money paid. And as this branch of their jurisdiction is governed in a pecu- liar degree by sound discretion, cases may be found where they have refused relief for the want of a part-performance. "(p) An oral contract, made before the Statute of Frauds in Ken- tucky, was not ordered to be specifically enforced after a lapse of several yea,rs.{q) In a case reported in 1 Dallas a curious diffei'ence, on common-law principles and in the absence of any provision of the Statute of Frauds in Pennsylvania upon the subject, was made between the oral and written evidence of a 'guaranty. It was held, that where there is doubt the jury must say whether the defendant was alone credited, or whether he was looked to collaterally ; in the former case the party interested may testify to his book ; in the latter case there must be a writing, or the testimony of a disinterested wit- ness. This on the theory that the interested testimony is only competent to prove the delivery, and is not allowed to charge any other person than him to whom the delivery is made. In this case the delivery was made to the party answered for, and the defendants w"ere also charged in the book ; the defendants were customers of the plaintiffs, and acknowledged at the trial that some, but not all of the articles, were for their use. Upon a charge as above the jury found for the defendants.(r) § 15. Where the subject matter of a written contract is within the Statute of Frauds, the latter furnishes an addi- tional reason for refusing the admission of oral evidence to (p) Dark v. Bagley, 3 Murph. 33 ; on Contracts ; Law Lib., vol. 67, p. 73 ; citing Tothill ; and 1 Madd. 287, and Story's Eq. Jur. § 753. Sugd. on Vend. See Smith i>. Williams, (?) Smith u. Carney, 1 Litt. 297. 1 Murph. 431 ; see Will. Eq. Jur. ; Catt. (r) Poultney v. Ross, 1 Dall. 239 , C P. Phila. 23 § 15.] LAW OF THE STATUTE OF FRAUDS. [CHAP. I. contradict or vary the writing.(A') The common law of exclu- Thecom- ^^0" '^^^ ^^^^ of t^G Statute of Frauds are equally mon law stringent, and the latter is no harsher than the rule of evi- '^ denceas former.(<) The rule at common law may indeed be affected by,. . ,ii •n\* i> the Statute Stricter, Since (as has been said) even performance of Frauds, .^^j]] ^^^^ j^^ ^^ ^^^^ evidence to supply the defect in a written agreement, though, had there been no writing, the evidence would have been admi8sible.(M) Under the common law alone oral evidence varying the writing is inadmissible. (z;) As has been said, oral evidence to supplement a manifestly imperfect writing, Avhile admissible at common law, is inad- missible when the subject matter of the contract is within the Statute of Frauds.(ii!) In a case not under the Statute of Frauds it was said that it might well be doubted whether the best rule as to admission of parol evidence to affect a writing should not in all cases be regulated by the policy and reason of the statute, though in some exceptional classes of cases parol evidence had been held admissible to establish in cases outside of the statute an oral contract different from the writ- ing. (z) In a case in New York the court even went so far as to admit oral evidence to show that the written promise was in reality a guaranty with a view to establishing that the writing was imperfect under the Statute of Frauds for not stating a consideration (y) Oral evidence may be, us has been said, inad- missible under both the common-law rule and the Statute of Frauds,(2r) Where one signs a contract of suretyship which (s) Williamson v. Hall, 1 Ohio St. 192; (w) Glass v. Hulbert, 102 Mass. 24 ; Robinson I). Frost, 14 Barb. 543 ; Harnor Musselman i^. Stoner, 31 Pa. St. 270 ; V. Groves, 15 C. B. 674 (Dictum per Moulding v. Prussing, 70 111. 151. Maule, J.) ; Lazear v. Nat. Uni. Bank, (x) M'Culloch u. Girard, 4 Wash. C. 52 iVId. 120. C. 293. (0 Clapp v. Lawton, 31 Conn. 100 ; (y) Clarke v. Richardson, 4 E. D. Sm. Jackson v. Barnes, 5 Phila. 33, per 174; see Sackett (.. Palmer, 25 Barb. Hare, J. See under the civil law in 179. Lower Canada, Fry v. Richelieu Co., 9 (z) Gordon (Lord) v. Hertford (Mar- Low. Can. Rep. 411. quisof), 2 Madd. 121 ; Kirk v. Bromley (u) Binstead i;. Coleman, Bunb. 65. Union, 2 Phil. Ch. 648; Preston u. (w) Northrop u. Speary, 1 Day, 23 ; Merceau, 2 W. Bl. 1250 ; Parteriche v. Riddick v. Glennon, 6 Ir. Jur. (cases) Powlet, 2 Atk. 383 ; Hart v. Clark, 5 p. 39 ; see Treatises on Evidence, pas- Mart. 614 ; First Nat. Bank v. Bennett, sim. 33 Mich. 523. 24 CHAP. I.] HISTORY OP THE STATUTE OF FRAUDS. [§ 15. purports to be intended to be executed by other persons also, he is not liable till the others have signed, and under the Statute of Frauds no oral evidence can be adduced to rebut this implication. (a) A verbal agreement by the sureties on an officer's bond that on his re-election after his first term had expired the old bond should continue, is within the Statute of Frauds.(6) The oral evidence may be admissible in spite of both rules: thus when it does not contradict the writing, which is an insufficient memorandum under the Statute of Frauds, but there has been delivery and acceptance of the chattels, oral evidence is admissible to show that the sale was on credit. (c) So an oral contract not within the land clause of the statute, and made after the deed of the land sold was prepared, is admis- sible iu evidence.(c?) Where one partner executed a note in the partnership name, and the defence was that it was not such a note but really given for the private debt of the partner exe- cuting it, a parol promise to pay it made Gy the defendants, the other partners, is admissible to prove it to be what it purports, and the Statute of Frauds (guaranty clause) does not make the evidence incompetent, the latter going only to the execution of the note.(e) So in Louisiana, if a memorandum of lease is so defective as to be of no efficacy of itself, parol evidence can be tai^en in connection with the writing to make out the agreement, no law requiring the latter to be in writiug.(/) As to the difficult and important question how far oral evidence is admissible to show that a memorandum under the Statute of Frauds is incorrect, a question which is affected both by the Statute of Frauds and the common-law prohibition, see the chapters on the Memorandum. (a) Johnston v. Kimball, 39 Mich. (c) Lockett v. Nicklin, 2 Exch. 92. 187 ; see First Nat. Bank v. Bennett, (rf) Remington v. Palmer, 62 N. Y. supra. 34. (6) German Vet. Soc. v. Finzer, 1 (e) McGill v. Dowdle, 33 Ark. 314. Kent. Law Rep. 57. (/) Rabassa v. Orleans Nav. Co., 5 La. 460. 25 § 16.] LAW OF THE STATUTE OF FRAUDS. [CHAP. II. CHArTER II. LEX FORI AND LEX LOCI CONTRACTUS. § 16. The general rule. § 17. Lex loci contractus. § 18. Lex loci, when held to be the only test. § 19. Presumption or proof of foreign law. § 20. Lex rei sitce. § 21. Contract made in one place to be performed in another. § 22. Contract made abroad to be per- formed in the forum. § 23. Contract made in the forum to be performed abroad. § 24. The lex fori. § 16. There is scarcelj^ a feature of the law of the Statute of Frauds of the same importance that is more un- si,ndiex]o,-i certain than is that which concerns the respective the general application to a given case of the Statute of Frauds of the forum, or that of the locus contractus. Every shade of opinion has been expressed upon the subject, and it is impossible to say, with any approach to positiveness, whether the statutes of both localities apply, or, if either, which. The text-writers are disposed, and, with some reason, to say that, first, the lex fori must rule, because the statute is one relating to evidence, but that, secondly, the lex loci must also apply, because the statute is one with a definite policy, which goes to the essence of the agreement in many ways, and which may be considered as incorporated into the contract by implica- tion. (a) By such a test a contract to be enforceable must be in writing, if within the Statute of Frauds of either the place where it was made, or of that where it is put in suit; and of this opinion is the present writer. Before taking the special cases bearing upon this question it may be well to quote some definition of the law which regulates such problems as that before us. From the case of Trimbey v. Vignier the following state- (a) See Whart. Confl. of Laws, § 689 ; applies; but see Redfield's Note, contra, see Story, Confl. of Laws ; see Story, u. 3 ; see Rorer, Inter-State Law, 60. 262 (a), implying that the lex loci only 26 CHAP. II.] LKX FORI AND LEX LOCI. [§16. ment of the question before us is taken. The Court of Com- mon Pleas of England said: "The rule which applies to the case of contracts made in one country, and put in suit in the courts of law of another country, appears to be this : that the interpretation of the contracts must be governed by the law of the country where the contract was made {lex loci con- tractus), the mode of suing, and the time within which the action must be brought, must be governed by the law of the country where the action is brought {in ordinandis judiciis, loci consuetude, ubi agitur). See Huberi Prcelectiones Civilis Juris, tit. 3 ; De Conflictu Legum, sect. 7. This distinction has been clearly laid down and adopted in the late case of De le Vega v. Vianna (1 B. & Adol. 284) ; see, also, the case of the British Linen Company v. Drummond (10 B. & C 908), where the difl'erent authorities are brought together."(6) In Huber v. Steiner, Tindal, C. J., said:(c) The distinction between that part of the law of the foreign country where a personal contract is made, which is adopted, and that which (b) Trimbey v. Vignier, 1 Bing. N. C. 159; the court adding: The question, therefore, is, whether the law of France, by which the endorsement in blank does not operate as a transfer of the note, is a rule which governs and regu- lates the interpretation of the contract, or only relates to the mode of instituting and conducting the suit ; for, in the former case, it must be adopted by our courts ; in the latter, it may be alto- gether disregarded, and the suit com- menced in the name of the present plaintiff. And we think the French law on the point above mentioned is the law by which tlie contract is governed, and not the law which regulates the mode of suing. If the endorsement has not operated as a transfer, that goes di- rectly to the point that there is no contract upon which the plaintiff can sue. ' Indeed, the difference in the consequences that would follow, if the plaintiff sues in his own name, or is compelled to use the name of the former endorser as the plaintiff byprocuration, would be very great in many respects, particularly in its bearing on the law of set-off ; and with reference to those consequences we think the law of France falls in with the distinction above laid down, that it is a law which governs the contract itself, not merely the mode of suing. We therefore think that our courts of law must take notice that the plain- tiff could have no right to sue in his own name upon the contract in the courts of the country where such con- tract was made ; and that such being the case there, we must hold in our courts that he can have no right of suing here. (c) 2 Scott, 326 ; see British Linen Co. a. Drummond, 10 B. & C. 908, a case as to the application of the Statute oi Limitations for learned citations upon the present question. 27 § 17.] liAW OF THE STATUTE OF FRAUDS. [CHAP. II. is not adopted by .our English courts of law, is well known and established, viz., that as much of the law as affects the rights and merits of the contract, all that relates '■'•ad litis de- eisionem" is adopted from the foreign country ; so much of the law as affects the remedy only, all that relates ^^ ad litis ordi- nationem" is taken from the " lex fori" of that country where the action is brought. And that in the interpretation of this rule the time of limitation of the action falls within the latter division, and is governed by the law of the country where the action is brought, and not by the lex loci contractus, is evident from many authorities. In Iluber's treatise, De Gonflictu Le- gum, § 7, he says, '■'■Ratio hoec est ; quod prcBseriptio (where observe the term ^ jircescrijMo^ is used generally for limitation) et ezecutio non pertinet ad valorem contractus, sed ad tempus et inodum actionis ijistituendce." The lex loci contractus determines the validity, obligatory force, and interpretation of contracts, the lex fori the remedy thereon, (of) In a case at the Rolls, Lord Langdale said : "As to contracts merely personal I apprehend it to be the general rule that questions relating to the validity and interpretation of a con- tract are to be governed by the law of the country where the contract was made, and that if a remedy for non-performance is sought for in another country, the mode of suing and the time within which the action must be brought are to be gov- erned by the law of the country in which the action is to be brought." And he held that the interest on a contract of acceptance in England of a foreign bill is to be regulated by the law of England, though semble the interest as against a foreign endorser or drawer of the same bill must be by the foreign law.(e) § 17. Upon the question of lex fori and lex loci, Shaw, C. J., has said that the lex loci determines the nature and contractus, legal quality of the act done, whether it constitutes a contract, the nature and validity, obligation and legal effect of such contract, and furnishes the rule of construc- (rf) Gibson II. Sublett, 1 Kent, L. R.& (e) Cooper i-. Waldegrave (Earl of ), J. 730, Supr. Ct. Ky. ; Labatt v. Smith, 3 Beav. 284. id. 422, Ct. App. Ky. 28 CHAP. II.] LEX FORI AND LEX LOCI. [§ 17. tion and interpretation. (/) Lord Mackenzie has said that the interpretation of personal contracts and their validity, as re- gards form and solemnity, are governed by the law of the country where they are made .... locus contractus regit actum.(g) In a Louisiana case it was said that " an instrument as to its form and the formalities attending its execution must be tested by the laws of the place where it is made; but the laws and usages of the place where the obligation of which it is the evidence is to be fulfilled, must regulate the perform- ance. "(A) In an early Vermont case the Supreme Court said that as to the requisitions of a valid contract, the mode of authen- tication, the form and ceremonies required and, in general, as to everything whicli is necessary to perfect or consummate the contract, the lex loci contractus governs, the court except- ing from their statement the lex rei sitse, as to land. Where a contract is made in OHe state to be performed in another, the law of the latter applies to matters of performance, and, to some extent, to those of validity, as a usury law for ex- ample. This is on the ground that the parties so intended. (t) In Maryland, it has been held that the character of a contract is to be ascertained by the lex loci, unless contra honos mores; the law of the place of contract governing as to the essence of the rights acquired, and the obligations created by it.(j) The lex loci contractus, whether exclusively or not, applies according to good authority. (A:) Lord Ellenborough held that an agree- ment invalid for want of a stamp under the law of the coun- try where it was made, could not be sued on in England. (^) In Louisiana it has been held that where a parol sale, void under the law of that state, took place elsewhere, proof that, by the (/) Carnegie v. Morrison, 2 Meto. {j) Baltimore and Ohio R. R. v (Mass.) 398. See Story's Confl. Law, § Glenn, 28 Md. .321 ; see Trasher v 260, citing Boullenois and other oivillaw Everhart, 3 G. & Johns, 245. writers to the effect that ihe lex loci con- (k) Anderson v. May, 10 Heisk. 89 tractus determines the writing, etc., and Soudder v. Union Nat. Bank, 1 Otto, 411 quoting several definitions of the rule, (semble) ; Story's Confl. L. § 260, and n See Whart. Confl. of Laws, § 639. 4 ; § 262 ; § 262, («) ; § 631 ; 3Burge (g) Roman Law, p. 191. Confl. L. 760. (A) Vidal u. Thompson, 11 Mart. 24. (?) Clegg v. Levy, 3 Camp. 166. (0 Pickering v. Fisk, 6 Vt. 107. 29 § 18.] LAW OF THE STATUTE OF FRAUDS. [CHAP. II. law of the latter locality, the parol sale is good is necessary, if the party is to recover under the sale.(m) § 18. There is authority for the extreme position that it is the lex loci alone which needs to be complied with. when held Thus, a contract made in ]S"ew Orleans, and good by oniyVeet. Louisiana law, as, for example, a memorandum of guaranty which does not express the consideration, may be sued upon in Arkansas. (n) So where, according to Louisiana law, sales required to be proved by writing may be proved by parol if the parties are willing, and in the case of a sale in Louisiana, in a suit in Mississippi, the courts of the latter state will follow the Louisiana rule.(o) So an oral gift of slaves made in South Carolina, and there valid, was upheld in Tennessee, though the law of the latter state required a writing. (p) In Alabama it was held that if the Statute of Frauds of the state of the donor of personal property is satis- fied, it is of no consequence if tliat of the forum is not; and this, though the donees from before the time of the gift until date are and were living in the state where suit was brought. (y) Judge Story seemed to have thought, though not without doubt, that the Statute of Frauds of the forum should not be applied to contracts made and intended to be fulfilled abroad. (r) In Gibson v. Holland,(s) Judge Willes said of Leroux v. Brown,(<) that the reason why it is hard to under- stand is that it enlarges the scope of the Statute of Frauds, and makes it apply outside of England. (m) Where the defendants, who resided at Toronto, sold by their agent oil (m) Gantt v. ftantt, 6 La. Ann. 674. Denny v. Williams, 5 Allen, 1. See, (n) Ringgold c. Newkirk, 3 Ark. 108 ; contra, Hunt v. Jones, 12 R. I. 2(36 ; see see Story's Confl. Law, § 262a and n. 3 ; 9 Am. L. Rev. 436. 3 Burge, Confl. Law, 760. See what is (s) L. R. 1 C. P. 1 ; 13 L. T., N. S. said in Whart. Confl. Laws, § 684, and Rep. 293. cases there cited. (() 12 C. B. 801. (o) Fox y. Matthews, 33 Miss. 444, (u) Leroux v. Brown is doubted in citing cases. Maxwell on Statutes for the same rea- (;j) Eaves v. Gillespie, 1 Swan, 130. son ; the author cites Williams u. (<;) Turner u. Fenner, 19 Ala. 360 (a Wheeler, 8 C. B. N. S. 299 ; Gibson v. case of a will). Holland, and Story Confl. L. p. 285, ob- (r) Low «. Andrews, 1 Story, 42; Van serving on Acebal iiTii made in lormed in another. In a Khode island case this tobeVer- distinction is set out with much precision ; it was formed in g^id that where a contract is entered into in one another. state to be performed in another, there are two loci contractu!^, the locus celebrati contractus, and the locus solu- tionis, and the law of the former governs the interpretation, nature, and validity of the contract, that of the latter its performance. And adding that though both of these might be complied with, yet a failure to satisfy the lex fori would be fatal, and, citing authorities for this, the court added: "There are cases which go farther and hold that a contract made in good faith in one state to be performed in another will be upheld if it conforms to the law of either state. In making such contracts, it is argued, the parties may have in view either the law of the state where the contract is made or the law of the state where it is to be performed ; and, there- fore, the contract, if made in good faith without any design to evade the law, ought to be allowed and enforced according to its presumable intent, ut res magis valeat quam pereat. This rule has been applied especially to stipulations for interest on contracts for the payment of money, and is commended by Pro- fessor Parsons as reasonable and just."(/t;) Chief Justice Shaw has said that a contract made in one country to be performed in another is governed by the law of the latter, as a deed of land in a foreign state, or as a bill drawn to be accepted abroad, (j) Scheibler (7n re) {Ex parte Rolt- Fislier v. Otis, 3 Chand. 83; Depau hauser), L. E. 9 Cli. 722. v. Humphreys, 8 Mart. N. S. 1 ; (j) Cood V. Coed, 33 Beav. 322 ; and Cromwell v. County of Sao, 96 U. S. 51 ; on the question generally of the Statute Bolton v. Street, 3 Cold. 31 ; 2 Parsons of Frauds and the doctrine of lex rei on Contracts, 583; Wharton, Conflict of sitce, see Westl. Priv. Inter. Law, §§ Laws, § 507; see, also, Kleemau v. 84, 98, 99. Collins, 9 Bush, 460, citing cases ; see (Jc) Hunt V. Jones, 12R. I. 266, citing West. Priv. Int. Law, §§ 171-183. 34 CHAP. II.] LEX FORI AND LEX LOCI. [§ 21. must be accepted in writing if the law of the latter country so require8.(^) "Where the lex fori and the lex loci contractus coincide in allowing oral evidence, the latter is admissible ; it was lately said, though against the lex loci solutionis, {m) because the /orm is regulated b}*^ the lex loci contractus and the evidence by the lex fori. Just how much weight should be allowed this dictum it is not easy to say. A firm doing business in Lousiana and elsewhere, dated certain notes in Louisiana ; it was held in a suit in Connecticut that the contract was to be performed in Louisiana ; the law of that state, requiring contracts for high interest to be in writing, applied. (n) A United States court will not be bound by a decision of a court of the state, where a contract was made, which passed upon the application of the Statute of Frauds to an engagement which the Federal court, regarding as commercial in its character, held to be of a class as to which the state decisions were not binding.(o) A guar- anty made in England of an obligation made in Scotland is an English contract.(p) The making of the contract and its per- formance were held in the following cases to be in the same state : Thus, where a contract of guaranty was made in New Jersey, where all the parties lived, to be fulfilled three months hence, and no place was named, the debtor was not obliged to follow his creditor to Pennsylvania, whither the latter had since moved before the three months were up, and consequently the Statute of Frauds of New Jersey applied even in an action in a court of Pennsylvania, where there was then no Statute of Frauds applicable to guaranties.(5') Where a hus- band prior to his marriage was a citizen of Illinois, married in Pennsylvania, and immediately afterwards returned to Illinois and there remained, it was held that an antenuptial contract was governed by the law of Illinois and not of Pennsylvania, and must be in writing.(r) An oral acceptance of a bill drawn (I) Carnegie u. Morrison, 2 Meto. (o) Bradley v. Richardson, 23 Vt. (Mass.) 398. 731 (U. S. D. C). (m) Pritohard v. Norton, 5 Morr. (p) Littlejohn (^a: joarte), 3 M., D., Trans. 126 (S. C. U. S.), citing Scudder and De G. 186. V. Union Nat. Bk., 91 U. S. 406. (?) AUshouse v. Ramsay, 6 Whart. (n) Tillotson v. Tillotson, 34 Conn. 331. 367. (r) Davenport v. Karnes, 70 111. 467. 35 § 22.] LAW OF THE STATUTE OF FRAUDS. [CHAP. 11. in Chicago on a firm in Missouri and accepted by one of the drawees then in Chicago is an Illinois contract, though the notes were to be paid in Missouri. Cs) Another instance of the difficulty of deterpnining as to which law shall apply to the contract arises when the latter comes within a prohibitive liquor law. The following are examples of contracts held to be performed where they were made : Thus, in a suit in Indiana it was held that where the contract was made in Iowa for the sale of liquors to the defendant, who lived in Iowa, by the plaintiff', who lived in Wisconsin, and the goods were shipped in Wisconsin to the defendant in Iowa and there accepted by him, the contract was an Iowa one, and void under the liquor law of that place.(<) So a contract in Indiana by the agent of an Ohio firm, the goods to come from Ohio, and the agent has power to conclude sales, is an Indiana contract. (m) An order for liquors given in Michigan to the seller followed by de- livery of the liquors to a carrier in Ohio to be brought to the buyers in Michigan, is invalid under the Michigan liquor law.(?;) § 22. In a Massachusetts case, where the agent of a Con- necticut firm solicited an order in Massachusetts for made liquors, and transmitted the order to his principals be'^pei^*" i*^ Connecticut, who shipped the goods by a carrier formed in ^0 the buycr, who paid the freisrht, the court left it the forum. j t r a ; to the jury to find whether the agent was a selling agent or a mere solicitor for orders, and whether he actually sold in Massachusetts or only solicited the order ; in the latter case the contract was a Connecticut one; if the agent made a final sale, the Massachusetts liquor law applied. (?t?) The fol- lowing are also examples of contracts made abroad to be per- formed in the forum : An oral contract made in Germany by which the plaintiff" was to work for the defendant in New York, is within the Statutes of Frauds of the latter state, even the "year" clause of that act. (a;) Where the plaintiff"'s (s) Scudder v. Nat. Bk., 91 U. S. S. see Wiloox Silver Plate Co. t;. Green, 72 C. 411. N.Y. 19. (/) Keiwert v. Meyer, 62 Ind. 587. («.•) Finch v. Mansfield, 97 Mass. 91. (u) Hausmau v. Nye, Id. 487. (x) Turnow u. Hoohstadter, 7 Hun, (v) Webber u. Howe, 36 Mich. 154 ; 80. 36 CHAP. 11.] LEX FORI AND LEX LOCI. [§ 23. agent took in Michi_s;an an order for liquors from the defendant residing there, and this order was approved by the plaintift' in Ohio, and the goods were sent to and received by the defen- dant, it was held in Michigan that this was an Ohio contract, and not invalid under the Michigan liquor law.(2/) -^n order for liquors sent by the defendant in Michigah to the plaintiff in Wisconsin to be upon approbation, is a Michigan contract, as there was no delivery and acceptance to satisfy the Statute of Frauds and pass the title in the goods till an approval in Michigan.(^) § 23. In another set of cases the contract was made in the forum, but was to be performed elsewhere. Thus, the sale of a slave in Alabama made in Tennessee mad^etn*^ must be proved by a writing in a suit in Tenne8see.(a) the forum A sale of chattels made and sued on in Rhode Island formed may be orally proved though they were to be de- livered in Ifew York, where the Statute of Frauds applied to sales of chattel8.(6) So, in New Jersey, a contract made and sued on in that state, relating to goods to be delivered in Philadelphia, must be proved by a writing under the New Jersey Statute of Frauds. (c) But where a written indemnity not expressing the consideration was given in Philadelphia to one who was surety for an administrator in Maryland, the District Court of Philadelphia said : The contract was within the Statute of Frauds, this being in force in Maryland, the next question is whether the law of Maryland or of Pennsyl- vania is to govern. It is said that the place of the contract is in this state, having been written here. To this it is properly answered, that the contract takes effect at its place of delivery as to a question of this kind, especially where, as upon its face is apparent, the subject matter of the contract existed. The laws of Maryland therefore govern the contract.((^) Where a contract was made in New York by the buyer's agent, the goods to be delivered to the buyer in Michigan, and there (j) Kling V. Fries, 33 Mich. 277. (6) Hunt v. Jones, 12 R. I. 266. (z) Rindskopff K. DeRuyter, 39 Mich. (c) DaCostai). Davis, 24 N. J. L. 1. 319, citing cases. (a) Dougherty v. Curie, 2 Humpli. (d) Carroll u. Nixon, 2 Miles, 432. 464. 37 § 24.J LAW OP THE STATUTE OF FRAUDS. [CHAP. II. was some evidence of a part delivery and acceptance iu Few York, and the jury finding the latter fact, the Supreme Court of the United States decided that the contract was a ~Sew York one, and not affected by the Michigan liquor law.(e) Where an order was given in Wales to the traveller of a . dealer iu London, and no mention was made of a carrier, and a carrier is selected by the seller, a cause of action arises in London.(/) The question of delivery and acceptance in these cases in relation to the Statute of Frauds is considered else- where. (^) § 24. The tendency of all or moat of the adjudications which have thus far been given, is to make the law of the place ot contract the important consideration. But there is a strong current of authority setting in the oppo- site direction, making the lex fori that which determines the admissibility of oral proof in cases arising under the Statute of Frauds. The leading case on this side of the question is Leroux v. Brown, which held that a contract made in France, and to be there performed, was governed, when sued upon in England, by the "year" clause of the Statute of Frauds; the Court of Common Pleas held the evidence to relate to the procedure upon and not to the solemnities belonging to the contract ; and the judges relied both upon the language of the statute that " no action shall be brought," and upon the doc- trine that oral contracts within the statute are not invalid, but only not provable, and that a subsequent memorandum was suflicient ; all these considerations showino- that the lack of writing was a question of evidence only. (A) In a case where no question of the Statute of Frauds arose, Lord Brougham (e) Garfield v. Paris, 96 TJ. S. S. C. went to the essence of an oral contract 566. and made it void. See Bates v. Cliese- (/) Copeland v. Lewis, 2 Stark, 31. boro, 32 Wis. 598.) See 9 Am. L. Rev. (g) See the Chapter on Delivery and 444, 457 ; see Corrigan v. Woods, 1 Ir. Acceptance. Eep. C. L. 75, citing Leroux a. Brown, (A) Leroux v. Brown, 12 Q. B. 801, as good law. See also Britain v. Ros- distinguishing Carrington u. Roots, 2 siter, 11 Q. B. D. 123, Ct. App. foUow- M. & W. 254, and Reade v. Lamb, 6 ing Leroux v. Brown, and Adams v. Exch. 130, as not having tbe pre- Clutterbuck, 10 Q. B. D. 406, saying sent point in view. (They were cited that tlie Statute of Frauds was of the to show that the Statute of Frauds lex fori. 38 CHAP. II.] LEX FORI AND LEX LOCI. [§ 24. said evidence was a matter of the lex fori ; and that evidence of the English judicial interpretation of an act of Parliament was not admissible in a Scotch case arising under a similar &ct.{i) But in another case, counsel arguing that a subsequent memorandum or delivery and acceptance of chattels sold had a retroactive effect, and made the oral contract valid, ab initio relied on Leroux v. Brown ; without deciding the point, the Court of Common Pleas expressed doubt as to the latter case, Judge Willes saying that it would take further argument to convince him of its correctness.(j) It has been held in England that a bill drawn in France in such a form that it could not there be sued upon, was nevertheless the subject of a recovery in England, but serahle that this was in absence of proof of the French revenue law.(/i;) An instrument executed in Scotland, and by the law of that country equivalent to a deed sealed, can be sued on in England by a stranger thereto, as in point of fact it was not sealed ; the benefit of the instrument was all reserved therein to the plaintiff.(^) A Connecticut case is fuller on the point than any other that can probably be found: it was held that the Statute of Frauds of the forum only applied, and that a contract was good in the absence of such a law, though there was a Statute of Frauds in the place of conti'act ; it was said that evidence was a question of proce- dure, and that in this respect there was(m) no difference between the Statute of Frauds and the Statute of Limitations. Speak- ing of the law of the place where the contract was made, and that of the place where it was to be performed, it was said by the Supreme Court of Rhode Island : A contract, however, may be valid by the law of both places, and yet fail practi- (i) Bain w. Whitehaven, etc., R'way, CI. & F. 544 ; Don v. Lippman, 5 CI. & 3 H. L. C. 18. F. 1 ; Story on Conilict of Laws, and (.j) Williams v. Wheeler, 8 C. B. N. Browne on Statute of Frauds It sliould S. 299, Erie, J., citing Carrington i>. be noted, Don u. Lippman was a case of Roots, and Reade v. Lambe, as contra the Statute of Limitations, and Yates to Leroux v. Brown. f . Tliomas one of wills and domicile ; (Jc) Wynne v. Jaolcson, 2 Russ. 352. Downer u. Cheseborough is approved (I) Carnegie v. Waugh, 2 D. & Ryl. by the Supreme Court of the United 279. States in Pritohard v. Norton, 5 Morr. (m)Downert'. Cheseborough, 36 Conn. Trans. 126. See Rorer on Interstate 45, citing Leroux v. Brown, Bain o. Law, 60, citing cases. Whitehaven Rw., Yates v. Thomson, 3 39 §24.] LAW OF THE STATUTE OP FRAUDS. [chap. II. cally, if the lex fori does not permit its enforcement. The rule thus laid down, considered as a rule for personal con- tracts, though it is at variance with many dicta and decisions, is well supported on authority. "(?i) In Kentucky, the Statute of Frauds of that state (the " year" clause) was held to apply to a contract sued on in Kentucky, but which had been made in Illinois to be performed in Louisiana ; there being such a law in Illinois but not in Louisiana.(o) In Louisiana it has been held that the standard as to the competency of witnesses is the lex fon.{p) (n) Hunt V. Jones, 12 R. I. 266, citing way Co., 3 H. L. C. 1 ; Van Reimsdyk v aeosta v. Davis. 24 N. It. Law. .^19: TCatift. 1 fiall. 371 : Wharton. Conflifv Dacosta v. Dayis, 24 N. J. Law, 319 ; Cooper (.. Waldegrave, 3 Bear. 282 ; Vidal u. Thompson, 11 Mart. La. 23; Aymar o. Sheldon, 12 Wend. 439; Chapman v. Robertson, 6 Paige, 627, 634 ; Bain u. Whitehaven, etc. Rail- 40 Kane, 1 Gall. 371 ; Wharton, Conflict of Laws, § 401, p. 676; Story, Conflict of Laws, § 234. (o) Kleeman v. Collins, 9 Bush, 460, citing cases. (p) Buckner v. Watt, 19 La. 215. CHAP. III.] GUARANTIBS. CHAPTER III. GUARANTIES IN GENERAL— THE PROMISE- THE CONSIDERATION. § 25. Arrangement of subject. I. The Peomise. § 26. Generally. § 27. Civil law as to guaranties. § 28. General points. Conditional guaranties. § 29. The terms "original" and "col- lateral." § 30. The language of a guaranty. § 31. Guaranty for a past, present, or future debt respectively, and the effect of reliance upon the oral promise. § 32. Fraud. § 33. Representations as to credit. § 34. Promise to give, or to obtain a guaranty. § 35. Special undertakings required by Statute. § 36. Guaranties by an attorney. § 37. Some miscellaneous points : and examples of invalid and valid oral guaranties. II. The Consideratioh of the Peomise. § 38. Consideration of forbearance. § 39. Guaranty in consideration of funds. Statements of the general rule. § 40. General points as to the "Funds" Rule. § 41. Whether the original claim must be given up. §42. Who can sue under the" Funds" Rule. § 43. Examples of the "Funds" Rule. § 44. Promise in consideration of re- ceipt of goods levied on. § 45. Examples under the last head. § 46. Further examples. § 47. Promise to pay the third person's debt as price of the property bought. § 48. Subject continued. § 49. Promise by holder of collateral security. § 50. Promise by debtor to pay credit- or's creditor. § .ll. Promise by holder of firm assets. § 52. Promise by assignee for beneiit of creditors. § 53. Promise by administrator, guar- dian, etc. § 54. Exceptions to the "Funds" Rule; generally. § 55. Funds not belonging to the guar- antor. § 56. Funds in guarantor's hands paid previous to the promise. § 57. Denial of the "Funds" Rule. § 58. The amount of the fund. § 59. Acceptance of a bill ; oral accept- ance good. § 60. Examples of sufBcient and of in- sufficient oral acceptance. § 61. Written acceptance required by Statute. § 62. Promise to accept. § 63. Promise to endorse. § 64. The fact of a consideration will not take guaranty out of the Statute of Frauds. § 65. A new consideration moving to the promissor. § 66. New Consideration Rule doubted. 41 §26.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. § 67. Consideration passing to the guar- antor. § 68. Leonard r. Vredenburg. § 69. History of the New Consideration Rule. § 70. Statements and general exam- ples of the New Consideration Rule. § 71. Qualifications to the New Con- sideration Rule. § 72. The Leading Purpose Rule ; gen- eral statement. § 73. Examples of the Leading Pur- pose Rule. § 74. Leading Purpose Rule ques- tioned. § 25. That great bulk of adjudicated law found necessary to Arrano-e- explain the provision of the Statute of Frauds which ment of subject. requires written evidence of a promise to answer for debt, default, or miscarriage of another, cannot be either simply or easily arranged; the distinction between the- classes of cases is so subtle and contradiction in the decisions is so common that no ordinary analysis will be found satisfactory. The following is suggested as fairly logical and practical : Di- viding the subject into the three heads of: the Promise in gen- eral; the Consideration ; the Parties thereto ; and the Subject- matter of the Promise, there will be found treated under the first head, or the Promise in general, the following : — § 26. Promisestoanswer for the debt, default, or miscarriage , „ of another are by the terms of the Statute of Frauds L The . ■' Promise required to be proved by a writing signed by the genera y. pg^j.j.y (-q j^g charged. (a) Even before the Statute of Frauds the defendant might have waged his law when sued on a guaranty. (6) In Pennsylvania, even prior to the act of (a) See the following as some general examples of this rule : Hollingsworth V. Martin, 23 Ala. 597 ; Townsend v. Jones, 47 Ala. 481 ; Johnson v. Morris, 21 Ga. 239 ; First Baptist Church v. Hyde, 40 HI. 150 ; Drnly v. Hunt, 35 Ind. 509 ; Mitchell v. Ray, 3 Kent. Law Reporter, 754 ; Hill t . Atwater, 24 La. Ann. 325 ; Baker v. Pagaud, 26 La. Ann. 221 ; Hamilton v. Hodges, 30 La. Ann. 1293 ; Wagner v. Egleston, 49 Mich. 222 ; Preston v. Young, 46 Mich. 103 ; Dufolt V. Gorman, 1 Minn. 309 ; Lombard v. Martin, 39 Missi. 151 ; Shy- mer i^. Westbrook, Pennington, 976 ; Ayres o. Herbert, Pennington, 662 ; 42 Youngs V. Shough, 3 Green, S. C. N.J. 28; Williams r. Doran, 8 C. E. Green, 387 ; Rose v. Johnson, 1 Pennington, 5 ; Erwin u. Waggoman, Cooke (Tenn.), 403; Davis c. Evans, 39 Vt. 188; Forbes i'. Temple, 3 Can. L. T. (S. C. N. B.) 457; Fitzgerald ... Dawe, Sel. Cas. Newf. 177. For a form of written guaranty, see Chitt. Commer. Law, pp. 4-5 ; Smith, Merc. Law (9th ed.), 460, n. (a). (6) Fish ('. Richardson, Yelv. 55 ; S. C. sub nom. Fisher, Cro. Jao. 47 ; see Davis v. Rayner, 2 Keb. 758 ; Rus- sel u. Haddock, 1 Lev. 788 ; Scott v. Stevens, Sid. 89. CHAP. III.] GUABANTIBS. [§ 27. 1855, requirino; written evidence of a guaranty, the oral proof was closely scrutinized.(c) § 27. The provision requiring written evidence of a guar- anty is also to be found in the law of Louisiana.fc^) „ /. , . ^ ,-,■,, N . , Civil law as and in that oi Lower CJanada.(e) A guaranty under toguaran- the Scotch law cannot, as a rule, be proved by wit- nesses, but can by the party's oath, or answer in the plead- ing8.(/) At an early day it was decided that, by the Scottish act of 1681, a guaranty must be a holograph, and have wit- nesses, and that a guarantor could not be called upon to say whether his signatui'e to an informal instrument was genuine or not.(^) At a later time an important distinction was taken, and the rule was relaxed in two respects, viz., in allowing a less formal writing, and in giving a validating eftect to any acts done in reliance upon the guaranty, providing the latter did not involve a feudal right (as, for example, a heritage, or what in English law are analogous to real interests); where, the promise is an ordinary guaranty, the writing not being of the essence of the contract, the signature may be acknowl- edged, or oral proof be admitted if there has been part perform- ance.(A) The general principle is that guaranties must be i)roved by a writing, except where the person relying upon the guar- anty has forborne any of his right8.(i) There is a further limi- tation to the rule, and while a guaranty made at the same time as the principal debt can be proved orally, secus as to a guar- anty of future obligations. If the guarantor had acted continu- ously under the guaranty the proof might have been suf- (c) Petrlken v. Baldey, 7 W. & S. Cases, 141-2 ; Edmondstone i>. Lang 430. being questioned. (rf) Acts 1858, No. 208 ; Merz v. La- (i) Chaplin c-. Allan, Court of Sess. buzan, 23 La. Ann. 747; Schmidt v. Cas. 4 D. 616; 18 Scot. Jur. 250, Zlegler, 34 La. Ann. 818. which see for interesting discussion of (e) Reeves u. Malhiot, 8 Low. Can. the subject ; see Lord Monorieff's opin- Jour. 84. ion, p. 618, note, for a citation of au- (/) Brown i.. Campbell, Bell Fol. thorities. See Dunmore Coal Co. v. Cas. 115. Young, 16 Fao. Dec. 171, as to the effect (g) Edmonstone v. Lang, 38 Mor. of rei interventus, or part performance as Dec. 17057 ; see Stewart v. Russell, 18 validating an oral guaranty. That Fac. Dec. 496. part performance has no such effect in (A) Sinclair v. Sinclair, Bell Fol. English law, see § 31, infra. 43 § 27.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. ficient.(_;') Where a guaranty was given for the price of certain yarn furnislied and to be furnished, all the court agreed that it was, as to the future supply, an obligation in re mercatoria and valid, though evidenced only by an informal writing ; holo- graphs or witnessed writings being inconvenient in the pressure of affairs; as to the past supplies two of the judges thought that there should have been a solemn instrument, there being no haste as to these, and so thought a third judge, who, how- ever, thinking the contract inseverable, held it all good, and voted with three others of the court, who held that the rule as to past supplies was the same as that applying to future ones ; one of the judges thought that but for the guaranty for the price of the goods previously delivered the future supply would not have been promised, and that, therefore, there was part performance.(Z;) It was questioned in another case whether the repayment of money advanced by a bank is an obligation in re mercatoria or not.(/) The following statement of the Scottish law is made by Baron Hume :(m) " In our law one may be effectually bound by a prior verbal engagement as a contract for the price of movable goods, and the engage- ment may be proved against the cautioner, as the sale may against the buyer by the testimony of witnesses (citing cases). But this seems only to be true where . . . the cautioner inter- poses his credit at the time of the sale, and thus induces the vendor to part with his commodity without immediate pay- ment. In that case by delivery, res non sunt integrcB, and the cautionary is construed as an incident in the contract of sale. The like latitude is not allowed when the cautioner does not engage till after the commodity has been sold and de- livered. In these circumstances the seller has not done any- (j) MacEwan u. Crawford, 18 Fac. (h) Paterson «. Wright, 15 Fao. Dec. Dec. Scotch, 78 ; (Ct. Sess.) ; see cases 548 ; see Part Performance and " Seve- cited by counsel ; see Gibb v. Walker, rability." Elch. "Cautioner," No. 19; Campbell [l) Johnson o. Grant, Ses. Cas. 6 D. V. McLauchlan, 29 Morr. Dec. 12288 ; 875 ; 16 Scotch Jur. 376 ; S. C. sub Burge on Surety. 37 ; {Re) Bell, 17 nom. Grant v. Johnston, Ses. Cas. 7 D. Fac. Dec. (Scotch) 1, (Ct. Sess.); 390 ; 17 Scotch Jur. 141. Rhind v. Mackenzie, 18 Fac. Dec. 99, (m) Campbell u. Monro, Hume, 106 ; First Div. Ct. Sess. see, as to English law, § 31. 44 CHAP. III.] GUARANTIES. [§ 28. thing in reliance on the cautioner's credit or promise, and the cautionary is not cou[)ledwith the principal bargain in that in- timate and plain way which obviates the view of misconception on the part of witnesses." There should, said Baron Hume, be at least the oath of the party. In a later case it was held that a guaranty of the price of goods sold was good, inter rasticos, when there was a delivery of the goods on the faith of the guaranty. (n) Gratuitous promises, it is said, require the guar- antor's oath as proof if_ there is no writing.(o) Lord Eldon considered that the principles of the law of guaranty were the same in Scotland as in England, but this is only generally true.(p) The law of the two countries has, however, been ap- proximating on this point, and the Statute of Frauds has by statute been extended to Scotland. (5) Under the Code of Justinian a married woman could give a guaranty by a public instrument, signed by two witnesse8.(r) § 28. As will be seen hereafter there are numerous excep- tions to the rule, that a guaranty must be proved by a writing, and the law on the whole subject is in points and many respects unsettled. It will be the aim, in the g°°^Iuto! following pages, to make a full exposition of the authorities, and it may be well to refer to other works where a like consideration is given to these important questions; in the note below such reference will be found. (s) A conditional guaranty is within the Statute of Fraud8.(<) It has been held in a case given elsewhere, that it was competent to show (n) Hardie'w. Maedonald, Ses. Cas. 49, App.; Brandt on Surety. § 37 ciscj.; 6 D. 72. 2 Dau. on Negot. Inst. 3d ed. § 1762 et (o) Surge Surety. 37. seq.; Civ. Code Gal. (1874), § 12794. (p) Burge Surety. 37 ; see Grant v. See Throop, Browne, and Agnew on the Campbell, 6 Dow, App. Cases, 239, Statute of Frauds, Burge on Surety., 252. Whart. Ev. § 878, and the treatises {q) See 19 and 20 Vict. c. 60, § 6, on Evidence and Contracts. In Ste- and see § 7. phen's Nisi Prlus, ii. 1963, it was (r) Mackenzie's Roman Law, 265. said that the "law respecting col- For an elaborate consideration of the lateral promises was settled." In 16 Scottish law of Guaranty, see 1 Bell American Jurist, 295-8, a contrary Comm. (McLaren's ed.), p. 402 et seq. statement of almost as exaggerated a (s) See Birkmyr c^. Darnell, 1 Sm. character will be found. L. C. (7th American ed.) 490; Pitman ou (0 Barry v. Law, 1 Cranch, C. C. Princ. and Sur. 4; Degolyar on Guar. 77 ; Dufolt v. Gorman, 1 Minn. 309. 45 § 30.] LAW OP THE STATUTE OF FRAUDS. [CHAP. III. that a written promise to pay the rent of a certain house was really a guaranty, and invalid for not stating a considera- tion; the proof being to the effect that the house was occupied by a certain third person, who was in arrears as to his rent; this doubtful conclusion will be considered more at length in another place.(M) So a promise to pay the debt if the creditor would prove it in a certain way.(w) Where a writing shows a guaranty with a condition implied from the language, oral evidence of an unqualified guaranty is not admissible.(?i;) § 29. Guaranties are usually spoken of as " collateral" con- tracts, and all others as " original." In a case in "original" 13th Gray the court said: "The terms "original" faterai'^"'" ^^^ "Collateral," as applied to undertakings in connection with the Statute of Frauds, though not found in the statute, are often used in applying it; and, being significant and intelligible, are convenient. (x) So it has been said that these terms are good, but must be carefully used;(?/) and, though much criticized, are correct. («) The circum- stances of the transaction, and not the mere words, deter- mine whether the Statute of Frauds applies. (a) § 30. But the phraseology of the guaranty itself is not _, , without interest ; and since it must be the subject of The Ian- ' _ _ -^ _ guageofa almost every part of this chapter, a passing notice guaranty. ., . „. , tiit 01 the point will be suincient here, in the leading case of Birkmyr v. Darnell, it was said that if two come to a shop, and one buys, and the other, to gain him credit, promises the seller, " If he does not pay you I will," this is a collateral understanding, etc. But if he says, " Let him have the goods, I will be your paymaster," or I will see you paid, (ji) Clark V. Richardson, 4 E. D. tute ; see D'Wolf v. Rabaud, 1 Peters Smith, 174; see Nat. Bank v. Bennett, (S. C), 501. 33 Mich. 524. (y) Mallory v. Gillett, 21 N. Y. 413. (v) Brown v. Barnes, 6 Ala. 694. (z) Gibbs v. Blanchard, 15 Mich. (w) Johnston o. Kimball, 39 Mich. 299 ; Nelson;;. Boynton, 3 Mete. (Mass.) 187. 400 ; see Bull. N. P. p. *281 a ; Selw. (x) Stone V. Walker, 13 Gray, 615, N. P. (7th Am. ed.) p. *847, criticizing citing Nelson r. Boynton, 3 Mete. 400, these phrases. saying that the terms though conve- (a) Blank ... Dreher, 25 111. 333 ; nient enough, are not used in the sta- see Reed v. Holcomb, 31 Conn. 363. 46 CHAP. III.j GUARANTIES. [§ 30. this is an undertaking as for him8elf.(6) It has been held that the words "will see you paid," without more, import a col- lateral undertaking within the Statute of Frauds.(c) So in a Maryland case the court said : We do not say that in every case where the words, " I will see the bill paid," are used, they necessarily import a collateral undertaking, and that in no such case could the plaintiiF recover ; but, that where they stand alone, as here, they must be so interpreted.{^) In the case already cited in 13th Gray, the court, after saying that an oral promise to pay for goods to be delivered to another, may be valid, added : " But if the language is, ' Let him have money, or goods, or service for him, and 1 will see you paid;' or ' I promise you that he will pay ;' or ' If he don't pay, I will ;' this is collateral; and, though made on good considera- tion, it.is void by the Statute of Frauds. These distinctions, though somewhat close, are plain." The following language was regarded as justifying a verdict in favor of the alleged guarantor: "We want you to go to Southbridge and take care of this case ; they are abusing Comfort, and I mean to stand by him ; I mean to assist him. "(e) The phrase " I will see you paid," has been regarded as not necessarily importing a collateral or an original promi8e.(/) Where the language was : " J. S. will apply to you for the rent, etc., of your building, etc., any arrangement he can make with you as regards renting the same, I will be responsible for," it was held that so far as necessity of demand or notice was con- cerned, this is to be treated as an original contract, and not a guaranty .(^) The word " guarantee" does not necessarily imply a guaranty.(A) Where a promise is in form absolute, (6) Salk. 27 (a) ; S. C, Burkmire v. (d) Cropper v. Pitman, 13 Md. 195. Darnell, Mod. Cas. 248 ; 1 Sm. L. C. (e) Stone v. Walker, 13 Gray, 615. (Am. ed.) 371* ; see Davis v. Caverly, (/) Mountstephen u. Lakeman, L. 120 Mass. 415. R. 5 Q. B. 613 ; 7 id. 196 ; 7 H. L. C. (c) Watkins v. Perkins, 1 Ld. Ray. 24; Bond v. Treahey, 37 U. C. Q. B. 224, making the distinction that the 365 ; .see Allen v. Scarff, 1 Hilt. 212. words "will be your paymaster" im- (j) Bates u. Starr, 6 Ala. 698; see port an original promise ; Wagner v. Copeland v. Wadleigh, 7 Me. 149. Hallack, 3 Col. 183, citing cases; see (A) Packer v. Benton, 35 Conn. 349; Thwaits v. Curl, 6 B. Mon. 472. Moorehouse v. Crangle, 36 Oh. St. 131. 47 §31.J LAW OF THE STATUTE OP FRAUDS. [CHAP. III. it must be held to be original, unless shown to be colla- teral. (z) § 31. After much doubt and some contradiction among the earlier English cases, it is now settled, that, so far for a™"ast, ^^ ^^^ Statute of Frauds is concerned, there is no present or distinction between a guaranty for respectively a respec- past, a present, or a future debt of another.(_;') Lord the^effectof Mansfield, who had been the one to make a dis- upin^the tinction between a guaranty of a past debt, and oral pro- a euarantv in reliance upon which the creditors mise. s J r • , , trusted the party answered for, treating the latter as not within the Statute of Frauds, afterwards admitted that, on authority, both the engagements were equally invalid if oral. He said in a case in 3d Douglas : " Before the case of Jones V. Cooper, I thought there was a solid distinction be- tween an undertaking after credit given, and an original undertaking to pay, and that in the latter case, the surety being the object of the confidence, was not within the statute. Eut, in Jones v. Cooper, the court was of opinion that wher- ever a man is to be called upon, only in the second instance, he is within the statute; otherwise, where he is to be called upon in the first instance. Here, by the words of the promise, Sylva was to be called on first, the defendant undertaking to pay if Sylva did not pay. The case is not distinguishable from Jones V. Cooper, and the words of the statute are very strong. Judge Buller said that Jones v. Cooper was fully as strong for the plaintift", for there the original debtor was known to be (t) Briggs v. Evans, 1 E. D. Smith, 195. (J) Mountstephen v. Lakeman, L. R. 5 Q. B. 613 ; Marshall u. Wilson, 18 Ir. Jur. N. S. 170 ; Wilson v. Marshall, 11 Jr. Rep. 360 ; D'Wolf v. Raband, 1 Peters, 499 ; Townsley i/. Sumrall, 2 Pet. 182; Emerson v. Slater, 22 How. U.S. 35 ; Kurtz K.Adams, 7 Eng,(Ark.) 177; Wagner u. Hallack, 3 Col. 183; Denton v. Jackson, 15 Chic. Leg. News, 309, S. C. 111. ; Steadman u. Guthrie, 4 Meto. (Ky.) 152 ; Doyle v. White, 26 48 Me. 341 ; Elder v. Warfield, 7 Harr. & J. 396; Gibbs u. Blanohard, 15 Mich. 299 ; Watkina v. Sands, 4 Bradw. 209 ; Holmes v. Knights, 10 N. H. 176 ; Wal- ker V. Richards, 39 N. H. 264 ; Hetfield V. Dow, 3 Dutch. 440 ; Chase u. Day, 17 John. 114 ; Rogers u. Kueelaud, 13 Wend. 121 ; Allshouse y. Ramsay, 6 Wh. 336 ; Mallory v. Gillett, 21 N. Y. 413 ; Mizner u. Spier, 13 Lane. Bar, 78 ; Brouson v. Stroud, 2 McMull. 372 ; Matthews v. Milton, 4 Yerg. 676 ; as to the Scottish law, see supra, § 27. CHAP. III.] GUARANTIES. [§ 31. worth nothing." In the principal case the person answered for would not have been trusted but for the guaranty. (/?:) The case cited by Lord Mansfield was as follows : The defendant, before certain goods were delivered to S., said to the plain- tiff, "I will pay you if S. does not." The plaintiff cited Mawbrey v. Cunningham, and Lord Mansfield arguendo sup- ported that case, but added that the conditional feature of the present promise might make a difference. The next day the whole court, by Lord Mansfield himself, held that the pro- mise was a plain guaranty.(^) Judge Buller, in a later case, said of Jones V. Cooper : "I was for the plaintiff, and cited the case of Mawbrey v. Cunningham, in which Lord Mansfield said ' this is a promise made before the debt accrues ; and what is the reason of the tradesman's requiring the promise? It is because he will not trust the person for whose use the goods are intended,' and the plaintiff obtained a verdict. But Nares, J, overruled this determination and nonsuited the plain- tiff; and this court afterwards refused to grant a new trial If this were a new question, the leaning of my mind would be the other way ; for Lord Mansfield's reasoning in the case o-f Mawbrey and Cunningham struck me forcibly. But the authorities are not now to be shaken ; the general line now taken is, that, if the person, for whose use the goods are fur- nished, is liable at all, any other promise by a third person to pay the debt must be in writing, otherwise it is void by the Statute of Frauds."(m) The law, as thus established, has been followed in America.(?i) The question is well resolved in a Missouri case, in which the court said : " It seems to be (h) Peokham v. Faria, 3 Dong. 13 ; (m) Matson v. Wh,aram, 2 T. R. 80 see Parsons v. Walter, reported in note (n) Leonard v. Vredenburg, 8 Johns, to the above, saying that Mawbrey t;. 37 (class first of Judge Kent's classiflca Cunningham, cited in Cowp. 228, is tion) ; Simpson v. Hall, 47 Conn. 425 overruled \)y Jones v. Cooper. Huntington v. Wellington, 12 Mich (I) Jones V. Cooper, 1 Cowp. 228 ; 11 ; Elder v. Warfield, 7 Harr. & Jolin seeS. C, Lofft. 769, somewhat differ- 396; Weyand v. Crichfield, 3 Grant ently reported ; the promise said to lay (Pa.), 113 ; Doolittle v. Naylor, 2 Bosw no ground for recovery because condi- 224 ; Wilson v. Roberts, 5 Bosw. 107 tional, and because the proper steps Hanford v. Higgins, 1 Bosw. 448 had not been taken against the person Bloom k.. McGrath, 53 Missi. 257. first liable. VOL. I.— 4 49 § 31.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. well settled, that whether a contract comes within the pro- visions of the statute or not, depends wholly on the agreement. If a party agrees to he originally bound, the contract need not he in writing; but if his agreement is collateral to that of a principal contractor, or is that of a guarantor or security for another, the agreement must be in writing. It makes no difference in such case, whether the promise is made prior to the passing or delivery of the consideration or afterwards. If it is made before, and is a part of the original contract, that the guaranty shall be given, then the original consideration for the contract will be sufBcient to uphold the guaranty ; but if the guaranty is made after the original contract has been fully executed, then the guaranty must have a new consideration to uphold it ; but in either case the contract must be in writ- ing."(o) There has been some tendency in the United States to revert to Lord Mansfield's first view. In a late California case it was said that " it is also the settled law in this state and elsewhere, that the promise of a guarantor is not within the Statute of Frauds if made before the delivery of the note, or if made at such time or under such circumstances that the note and guarantee constitute in fact one transaction. In these cases the guarantee is considered as an original contract, resting upon the consideration of the contract which is guar- anteed. "(2^) I'l fill early Calfornia case, in which the guaranty, written on a lease, did not in terms express a sufficient con- sideration, the Supreme Court of that state held that the Statute of Frauds did not apply because, although the consid- eration was not expressly stated in the writing, yet the com- plaint alleges that it was executed at the same time as the lease, and was the consideration upon which the plaintiff exe- cuted the lease to the person answered for.(9') It was said in a Federal decision, holding the principal case to be ruled by the Statute of Frauds, that " this was not a case where the (0) Glenn r. Lehnen, 54 Mo. 52. consideration of the lease might have (p) Crooks V. Sully, 50 Cal. 257 ; see been held to be that of the guaranty, Ford V. Hendricks, 34 Cal. 673, and the two being contemporaneous, but Howland v. Aitoh, 38 id. 135, citing the court did not rest the case on that California cases. ground ; see Mizner v. Spier, 96 Pa. (rj) Evoy V. Tewksbury, 5 Cal. 286 ; St. 533. gee chapter on the Memorandum ; the 50 CHAP. III.] GUARANTIES. [§ 31. guaranty or promise, which is collateral to the principal con- tract, is made at the same time, and hecomes an essential ground of the credit given to the principal or direct debtor. In this case the collateral undertaking of the bank was subse- quent to the creation of the debt, and was not the inducement to it, though the subsisting liability was the ground of the promiee."(?') Judge Story, in D'Wolfw. Eabaud, said, whether by the true intent of the statute it was to extend to cases where the collateral promise (so called) was a part of the original agreement, and founded on the same consideration, moving at the same time between the parties, or whether it was to be confined to cases where there was already a subsist- ing demand, and the promise was merely founded upon a subsequent and distinct understanding, might, if the point were entirely new, deserve very grave de]iberation.(s) In an early Massachusetts case the facts were, that on the back of a note made to the plaintiff' by C, the defendant endorsed a similar promise ; a declaration on the latter as an original promise was held to be correct, as the two being on the same paper did not make the latter a guaranty of the former.(<) In a case in 8 Gushing the court said, the exception is also taken that, as the guaranty was a contract collateral to the note, a distinct consideration should be proved. There would be force in this objection had the guaranty been made after the note had been made, delivered, and received as a complete coutract.(M) By an odd perversity in an early Michigan case, one of the judges of the Supreme Court, taking the distinc- tion made by Lord Mansfield, adopted the converse of his lord- ship's first view, and said that a subsequent guaranty of a previous debt was not within the Statute of Frauds, being necessarily, if a valid contract, on a new consideration, and that the statute only applied where the guaranty was previous to or contemporaneous with the other contract.(v) This view ()•) Morse v. Mass. Bank, 1 Holmes, (t) Carver v. Warren, 5 Mass. !J46 ; 213 ; see Mizner «. Spier, 96 Pa. St. see Wilson v. Ray, 13 Ind. 6. 533. (m) Biokford v. Gibbs, 8 Cash. 156. (s) D'Wolf V. Rabaud, 1 Peters (S. (v) Huntington v. Wellington, 12 C), 501 ; see Carville v. Crane, 5 Hill, Mich. 11. 484, denying this dictum ; see § 97 et sea. 61 § 32.] LAW OP THE STATUTE OF FRAUDS. [CHAP. III. is believed to be unique. The now established rule, that re- liance upon the guaranty does not, as in the Scotch law, make oral evidence admissible, is the one most loyal tothe Statute of Frauds; the opposite doctrine would make the statute merely a dead letter; as will be seen later, where the reliance upon the guaranty is exclusive in its character, and no credit at all is given to the person answered for, the Statute of Frauds does not apply ; the mere fact, however, that but for the guar- anty the creditor would not have entered into the contract, does not alone take the case out of the statute. (?(;) By statute in Missouri it is provided that, while a written acceptance of a bill is generall}' necessary, an oral one is valid, as to one who, on the faith thereof, has negotiated the bills.(a;) § 32. At this point it becomes important to note a few cases in which an oral collateral promise is so tainted with fraud that the promissor is held. Thus, where negroes were sold cheap to a third party on the defendant's verbal agreement that they should be kept in the neighbor- hood, and were for the vendee's own use, but in fact the defendant knew the vendee was a dealer, and the negroes were removed to another state, the defendant is liable in an action of fraud ; his engagement is not a guaranty protected by the Statute of Frauds, (y) And where one undertakes to manage the proceeding at law to recover a debt, he must do the best he can, and after taking better care of a claim of his own than of that of his principal, he cannot assert that his promise was a verbal guaranty — ^the statute has nothing to do with the case; the defendant here directed execution on his own judg- ment to be levied on a more valuable property than was that on which he had issued execution of the plaintiff's judgment ; both held judgments against the same debtor; the defendant was treated as a trustee ex maleJicio.{z) {w) Bloom t!. McGrrath, 53 Missi. Johns. 559 ; see §] 49. There was no 257; Day v. Elmore, 4 Wis. 190 : Wil- debt, default, or miscarriage of another son V. Roberts, 5 Bosw. 107. answered for. (r) Flato V. Mulhall, 72 Mo. 523 ; (j) Fairland v. Hempshire, 7 VS^. N. see Mo. Rev. Stat. ch. 10, § 533, § 537. C. 92 ; see Hale u. Stuart, 76 Mo. 21, As to the Scotch rule, see supra, § 27. § 137. (y) Adams u. Anderson, 4 Harr. & 52 CHAP. III.] GUARANTIES. [§ 33. § 33. The well-known distinction between guaranties and representations as to the credit of another was early taken. (a) Lord Erskine said that Pasley v. Freeman tious as to stood on the clearest principle of jurisprudence and '^"^ ' ' had no connection with the Statute of Frauds, which applies where one man undertakes for the debt of another.(6) While Lord Eldon said the guaranty clause of the Statute of Frauds had been considerably cut down by recovery, on the ground of fraud.(c) Where the promissor bought a horse, and in pay- ment gave the note of a certain third person, and warranted expressly the solvency of the maker, and said that the latter had property, etc., the court said, that " it will be observed that the complaint charges an express warranty made as part of the contract, and for the purpose of securing property from the appellee, and not for the purpose of obtaining credit for the maker of the note. We do not think the case made by this paragraph is within the Statute of Frauds. It is a count upon an express warranty of solvency, not an undertaking to answer for the debt, default, or miscarriage of another, l^or does the complaint charge a representation of the solvency of another for the purpose of obtaining credit for him. The warranty was part of the contract, and was made for the pur- pose of obtaining the appellee's property, and is not within the letter or spirit of any of the provisions of the statute. The warranty declared on is in no sense an undertaking for the maker of the note, it is simply a warranty of his financial ability to pay. It is the ability, not the liability, that is war- ranted, "(t?) Where there is both a representation as to credit (a) Pasley w. Freeman, 3 T. R. 51 ; (c) Carr (Exp.) 3 V. & B. 110 ; see Tapp V. Lee, 3 Bos. & P. 371. Cham- Upton u. Vail, 6 Johns. 183, in which bre, J., says that there should he an Pasley v. Freeman is said to have act of Parliament requiring written nothing to do with the Statute of evidence of such representations. As Frauds, notwithstanding Lord Eldon's there now is in Lord Tenterden's act, dicta ; and see Rickard v. Stanton, 19 and 20 Vict. u. 97 ; see Backhouse 16 Wend. 26 ; Huntington v. Welling- t/. Hall, 6 B. & S. 511 ; Schmidt v. ton, 12 Mich. 11. Ziegler, 34 La. Ann. 818 ; see 18 Can. (d) Hassinger o. Newman, 83 Ind. L. .J. 431, suggesting that a warranty 125 ; citing Huntington v. Welling- of a horse should be in writing. ton, 12 Mich. 10. (b) Clifford v. Brooke, 13 Ves. 134. 53 § 83.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. and a guaranty given, some conflict of decision prevails. In a case in 24 Barbour it was held, that a declaration that the party answered for is solvent, falsely made, makes the person so declaring liable, though at the same time he gave a parol guaranty invalid under the Statute of Frauds; he declined to give a writing, because forbidden by his partnership arti- cles.(e) On the other hand, in an earlier New York case, where there was a declaration alleging that the defendant fraudu- lently promised to endorse the note of C. and H., and thereby induced the plaintiff to furnish goods to C. and H., and that the defendant, when making the pi-omise, did not intend to fulfil it, and also alleging that the defendant knew C. and H. to be in bad credit, and in order to defraud the plaintiffs, and enable C. and H. to get the goods, promised to endorse, etc., it was held, that this was a guaranty under the Statute of Frauds, there being no other fraud than the breach of the parol guaranty, and that no action for deceit lay.(/) And in a case in 2 Starkie there was an action on the case against the defendant for a fraudulent representation that one Holling- wood was a trustworthy man, and a man of property, and that his wife had an annuity of £50, in consequence of which the plaintiff was induced to give Hollingwood credit, whereas he was in insolvent circumstances. Hollingwood stated that the defendant had told the plaintiff' that he might lend him (Hollingwood) £20 or £30, and that he would be perfectly safe; and that he (the defendant) would see the plaintiff' paid. And Lord Ellenborough said, these cases came out almost always according to the truth. A promise having been made to guarantee the plaintiff which is within the statute, there being no note in writing, he brings an action for the misrep- resentation. This is nothing more than a guaranty within the Statute of Frauds. (^) Where a firm of bankers adver- tised tliat they were the owners of, and personally liable for cer- tain notes of a banking corporation, it was held that the Statute of Frauds did not apply, and that they were liable to (e) Sweet o. Bradley, 24 Barb. 552 ; (/) Gallager v. Brunei, 6 Cow. 350. see Overton v. Tracey, 14 S. & R. 323. (g) Smith v. Harris, 2 Stark. 43. Oral guaranties were then, however, valid in Penn.sylvania. 54 CHAP. III.] GUARANTIES. [§ 33. any one who relying upon their representations took the notes. This case appears(A) to be open to a good deal of doubt- A promise that on a certain sale of a chattel by a third person the promissor will be liable for the title is either a guaranty or representation as to credit, and must be in writing. (z) The following case has features which distinguish it from an ordinary guaranty : The defendant was sought to be held on an assurance which he had given as to the promissory note of one Haydeu, who proved to have been a minor when he gave the note, and the defence of the Statute of Frauds was relied on, the court, in an Indiana case, noting that inasmuch as the person answered for was not liable, the defendant's engage- ment would at any rate be original, added : " The second assign- ment presents the question whether or not a verbal guaranty that a note is a genuine and valid one, and its maker liable to pay it, made by the assignor to the assignee at the time of its assignment and delivery, based upon a sufficient consideration, is a valid and bindiug oblisjation. It will be observed that this guaranty is not in terms a special promise to answer for the debt, etc., of another ; nor can it be construed, as we be- lieve, to embrace such an undertaking. It does not purport to be a promise to pay the debt for which the note was given, nor a promise that liayden himself should pay it, but is sim- ply a guaranty that the note is genuine, and that Hayden is bound by it. It differs entirely from a promise to pay the debt. In such case, if the promise is valid, nothing short of payment amounts to a compliance; whereas, in this case, if the note is genuine, and Hayden had capacity to make it, the obligation is fulfilled without any payment at all; indeed, it is not broken. The promise to answer for the debt of another is an undertaking to do something in the future, whereas a guar- anty that a third person is liable upon a note signed by him is no promise at all, but is rather an assurance that a certain condition of things exists. A breach of such undertaking does not depend upon the failure of the guarantor to do some- thing in the future, but if the condition does not exist the (A) Tarbell u. Stevens, 1 Iowa, 166. CO (Re) Tozer, 46 Mich. 300 ; Com- piled Laws Mich. §§ 4698, 4701. 55 § 35.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. undertaking is broken as soon as made, and a cause of action at once accrues, whether the note has or has not matured. "(j) § 31. A promise to give a guaranty is as much within the Statute of Frauds as the guaranty itself, and an oral give or ob- pi'omise by one to guarantee a note which he refused tain a ^q endorse, and which the plaintiff took in reliance guaranty. ' '^ upon the guaranty, is invalid. (/;;) In a case in the Exchequer Chamber, Pollock, C. B., said : " My brother Black- burn has, in the course of the argument, stated that which appears to me to dispose of this case, viz., that a contract to give a guaranty is required to be in writing as much as a guarant}' itself. If we were to hold that a contract of guar- anty must be in writing, but that a contract to give a guar- anty need not, we should, I think, be committing the same mistake our predecessors did with reference to the Statute of U8e8."(?) A promise, therefore, to endorse a note is within the Statute of Frauds.(m) So a promise to go security for the de- livery of property. (n) A promise to procure a guaranty is not within the Statute of Frauds, because no one but the promissor is liable thereon. (o) § 85. Special guaranties required by statute, such as a re- cognizance, or security for costs on an appeal, are derukin™'' ""'^ within the Statute of Frauds, and, though not required by signed Or statino; a consideration, are unaiFected statute. ^ by the latter statute.(p) There has been some ex- pression of an opposite opinion on this point: thus, in an early New York case, speaking of security required by statute from a defendant, asking for adjournment of suit, the court says : The (j) King o. Summitt, 73 Ind. 314. (n) Martin v. England, 5 Yerg. 317 See further, as to representations as to (o) Bushell i . Beavau, 1 Bingli. N ■credit, the closing chapter of this work. C. 122 ; Berryhill v. Jones, 35 la. 339 (A:) Wanibold«.Foote,20nt.App.5Sl. (p) Thompsons. Blanchard, 3 Comst, (I) Mallett V. Bateman, L. R. 1 C. P. 335, Bronson, .J., diss. ; Doolittle v. Di 170 ; IB C. B. N. S. 543 ; 10 L. T. N. S. ninny, 31 N. Y. 352 ; Bildersee v. Aden, 869 ; 10 Jur. N. S. 865. 62 Barb. 179 ; 12 Abb. Pr. N. S. 324 (m) Gallager o. Brunei, 6 Cow. 350; citing Johnson ti. Ackerson, 40 How. Pr Carville u. Crane, 5 Hill, 484 ; Smith 222 ; Johnson v. Noouan, 16 Wis. 695 <,. Easton, 54 Md. 138 ; Wills v. Shinn, Cody v. Filley, 4 Col. 343 ; Griuestaflf 42 N. J. Law, 138 ; see § 63 ; Rayne v. v. The State, 53 Ind. 240. Terrell, 33 La. Ann. 815. 56 CHAP. III.] GUARANTIES. [§ 37. particular kind of security is not designated, but it must be either a recognizance taken by a justice, or at least a written engagement ; otherwise it comes directly within the Statute of Frauds ; here there appears to have been neither.(5') And it has been decided in Alabama that security for costs is a guaranty within the Statute of Frauds.(?') § 36. Where an attorney promises to pay the debt of his client, or costs due by the latter, the Statute of Frauds is not applied. (s) This is because, in a matter relat- by'anaUor- ing to its own officers, the court is satisfied with oral ^^y- proof. § 87. Before closing this branch of our subject, a few mis- cellaneous points may be noticed. Thus, a guaranty . ■' 111 Some mis- to be performed within a year must be evidenced by ceiianeous a writing.(<) In the cases in the note will be found exampfe" dicta classifying such promises as are within the °n^"y^M guaranty clause of the Statute of Frauds, and such oral guar- a.iiti6B as are not.(M) The following are a few examples of guaranties within the Statute of Frauds : a promise to pay the subscription of another to a church ■,{v) a promise to be respon- sible for the wages which a third person owes the plaintiff". (w) In a late New Jersey case in which one Shinn was the plain- tiff, and George, William, and Moses Wills and others were defendants, the court said : " The case then against William Wills and Moses Wills is that they promised to go on a note to help refund to Shinn the amount he had paid for George Wills. Their promise therefore amounted to a promise to assist in refunding to Shinn a portion of the debt which George Wills owed Shinn by reason of his payment of the sum already men- (?) MoNutt V. Johnson, 7 Johns. 19. (0 Gordon u. Boss, 2 Cal. 156. (r) BuUard v. Johns, 50 Ala. 383 ; (u) Skelton v. Brewster, 8 Johns, see Bloomingtou v. Heiland, 67 111. 280; 376 ; Hodgkins ■/. Heaney, 15 Minn. Chaplin I. Allan, Court Sess. Gas. 4 D. 194; Harrington v. Rich, 6 Vt. 666; 616 ; 18 Scot. Jur. 250. Jepherson v. Hunt, 2 Allen, 421 ; Fur- (s) Payne v. Johnson, cited in 1 Tyr. bish v. Goodnow, 98 Mass. 297. 283 ; Senior v. Butt, id. ; Evans u. (u) Catlett v. M. E. Church, 62 Ind. Duncan, id. See chap, on Validity. 366. See Files a. McLeod, 14 Ala. 611; (w) Miller v. Neihaus, 51 Ind. 403. Hedges v. Strong, 3 Oreg. 18. 57 § 37.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. tionedwith no benefit and consideration moving to the promis- sors. The promise was within thetermsofthe Statute of Frauds, and is therefore unenforceable. "(j;) "Where 11. applied for goods to the plaintiff, and gave the defendant as a reference, and the defendant upon the plaintiff applying to him wrote the latter, " In reply to yours respecting Mr. H., ... I will answer for the payment of goods sent him," Lord Ellenborough said, " The goods were cei'tainly sold to Hicks ; the defendant's undertaking is collateral, and ought to have been declared on specially. "(y) The following is an example of a plain guaranty : Where a subcontractor, who engaged that the owner of land would employ W. to build for him, that he, the subcontractor, would be responsible for the performance of the contract, and that W. should discharge his obligation and build the houses, so that no bills should be made to charge the buildings with liens, and that no liens should be allowed to be filed against the building if the work was let to W., it was held that the Statute of Frauds applied.(^) In the note will be found examples of guaranties within the Statute of Frauds. («) In an early Ohio ease a doubtful ruling was made: A written acknowledgment that the defendant's claim against one S. M. shall be offset and applied to the plaintiffs claim against the defendant is good evidence to establish a set-off", though the writing shows no con- sideration ; the Statute of Frauds does not apply, it not being a guaranty, but the mere acknowledgment of a pre-existing liability.(6) In the note will be found examples of promises not within the guaranty clause of the Statute of Frauds.(c) {x) Wills V. SMnn, 42 N. J. Law, Dearborn v. Parkes, 5 Greenl. 81 ; Grlf- 138. fln u. Derby, 5 Greenl. 476 ; Pike a. ()/) Mines D.Soulthorpe, 2 Camp. 217. Brown, 7Cqs1i. 136 ; Towne v. Grover, 9 (z) Abham v. Boyd, 7 Daly, 31. Pick. 306 ; Gardiner t/. Hopkins, 5 (a) Steele u. Towne, 28 Vt. 771 ; Wend. 23 ; Brown u. Curtis, 2 Comst. Yonngs c Sliough, 3 Green (S. C), N. 225 ; .Johnson c. Gilbert, 4 Hill, 178 ; J. 28 ; Durant v. Rogers, 71 111. 124 ; Qniutard v. De Wolf, 34 Barb. 97 ; Belknap v. Bender, 4 Hun, Sup. Ct. Cardell u. McNiel, 21 N. Y. 336 ; Jef- 414; Bell eio^.v.Bruen, 17 Peter's Rep. ferson Co. o. Slagle, 66 Pa. St. 202; 168 ; Walker v. McDonald, 5 Minn. Landis «. Rogers, 59 Pa. St. 98 ; Ran- 461. die u. Harris, 6 Yerger, 509 ; Peck v. (b) Hoover v. Morris, 3 Hamm. 56. Thompson, 15 Vt. 637 ; Walker ik Nor (c) Reed u. Holoomb, 31 Conn. 363; ton, 29 Vt. 226. 58 CHAP. III.] GUARANTIES. [§38. § 38. The second general division of the present subject is the consideration of the promise, and how far it is adeternaining element in the question whether or not Conside- the Statute of Frauds applies in a given case. The the Pkom^ mere fact that the consideration of the guaranty is e-d;ration a forbearance on the part of the promisee to proceed of forbear- against the party answered for, will not make an exception to the statute.((i) " Where the object of the promise is to obtain the release of the person or property of the debtor, or other forbearance or benefit," the Statute of Frauds, said Chief Justice Shaw, applies. (e) In a case in 43 l^ew Hamp- shire, the court said that, to except a promise from the sta- tute, it is never sufficient that the promisee has agreed to allow time to the debtor ;(/) or to forbear to bring a suit against him for a time;(^) or has discharged a suit against (rf) Fish V. Hutohinson, 2 Wils. 34 ; King V. Wilson, 2 Stra. S73 (but see note); Lee ;;. Bashpole, Bull N. P. 281 ; Rothery v. Curry, cited in Williams v. Leper, Burrow, 1886, 2 Wilson K. B. 308; Buller's Nisi Prius, 281; Kirk- ham V. Marter, 2 B. & Aid. 613 ; Lee V. Mitchell, 23 U. C. Q. B. 315 ; Bo- hannon v. Jones, 30 Ga. 488 ; Krutz V. Stewart, 54 Ind. 181 ; Westheimer u. Peacock, 2 Iowa, 531 ; Jones v. Wal- ker, 13 B. Mou. 359 ; Walker v. Jones, 10 West. L. Jour. (Ky.) 319 ; Lieber v. Levy, 3 Meto. (Ky.) 292 ; Russell u. Babcock, 14 Me. 138 ; Hilton v. Dins- more, 21 Me. 410 ; Doyle v. White, 26 Me. 349 ; Stewart ... Campbell, 58 Me. 439 ; Thomas u. Delphy, 33 Md. 379 ; Frank v. Miller, 38 Md. 458; Hodg- kins V. Heaney, 15 Minn. 194 ; Tiles- ton o. Nettleton, 6 Pick. 509 ; Stones v. Symmes, 18 Pick. 467; Price w. Wearer, 13 Gray, 273; Nelson c. Boynton, 3 Meto. 401 ; Musiok v. Muaiok, 7 Mo. 496 ; Allen v. Thompson, 10 N. H. 33 ; Lang!!. Henry, 54 N. H.59 ; Watson v. Randall, 20 Wend. 284 (distinguishing Simpson v. Patten, 4 Johns. 422 ; Jack- son V. Raynor, 12 Johns. 291 ; Smith u. lyes, 15 Wend. 182) ; Bennett w. Pratt, 4 Denio, 275; Doolittle u. Naylor, 2 Bosw. 224; Malloryu. Gillett, 21 N. Y. 413 ; Duffy v. Wunch, 42 N. Y. 245 ; 8 Abb. Pr. N. S. 113 ; Hearing v. Ditt- man, 8 Phil. 307 ; Britton v. Thrailkill, 5 Jones Law, 330; Durham v. Arledge, 1 Strob. 5 ; Caston v. Moss, 1 Bailey, 14 ; Caperton v. Gray, 4 Yerg. 563. (e) Nelsonw.Boynton, 3Metc.(Mass.) 400 ; see Saxton v. Landis, 1 Harr. (N. J.) 304; Stewart u. Campbell, 58 Me. 441 ; Thomas v. Welles, 1 Root, 57. (/) Robinson v. Gilman, 43 N. H. 490; citing Jackson I'. Raynor, 12Johns. 291; Smith ^. Ives, 15 Wend. 182; Parker v. Wilson, id. 343 ; Watson v. Randall, 20 id. 201. {g) Id., citing Simpson v. Patten, 4 Johns. 422 ; Smith v. Ives, 15 Wend. 182; Watson «. Randall, 20 id. 201; King V. Wilson, 2 Stra. 873 ; Fish u. Hutchinson, 2 Wils. 94 ; Kirkham v. Marter, 2 B. & Aid. 613; 1 Saund. 211, a: ION. H. 32. 59 § 38.] LAW OF THE STATUTE OP FRAUDS. [OHAP. III. liim;(A) or has released to the debtor any lien;(i) or pledge, attachment, or levy.(y) And the same is true of any con- sideration which passes merely between the original debtor and the promisee, though at the request and for the accom- modation of the promissor. A promise to pay a debt of a third person is not taken out of the Statute of Frauds because of the fact that the person answered for had property, which in reliance upon the guaranty the plaintiff allowed him to take out of the state, and though the promise was made in bad faith. (^) The abandonment of a levy by a judgment creditor on the goods of his debtor does not take out of the Statute of Frauds a promise of a third person to pay the debt.(^) When the benefit of the lieu accrues to the promissor, the rule is different, as will be seen hereafter.(m) The following are a few examples of the present rule. Thus, where the defendant promises the sheriff that if he would not proceed with an execution against one S. he, the defendant, would pay the costs, the Statute of Fi'auds was held to apply, as the con- tract did not affect the plaintiff as to his lien, or delay him.(?i) Where an attorney, holding certain funds, was served with an attachment by a creditor of the person to whom he was bound to account for the funds, and promised to pay the debt which was the foundation of the attachment, if the lattei* was withdrawn, it was held that the Statute of Frauds did not apply, as he might have been put to expense and trouble by the attach- ment, and might even have had a judgment entered against him personally. (o) Where there was a promise to answer for the rent of another for a quarter due, and a second quarter accru- ing, even if made on theconsiderationof forbearance to distrain for that due, is within the Statute of Frauds, as the contract is (h) Id,, citing Nelson v. Boynton, 3 (I) Stern v. Drinker, 2 E. D. Sm. Met. 396 ; Tonilinson i. Gill, 6 A. & E. 406, citing and distinguishing several 664; Rowe i: Wliittier, 21 Me. 545. cases. (i) Id., citing Mallory v. ftillett, 21 (m) Vide § 133. N. Y. 412 ; Fay v. Bell, Lalor, 251. (n) M'Kinney v. Quitter, 4 McCord, (/) Id., citing Clancey f. Piggott, 2 410 ; distinguishing Williams v. Leper, A. & E. 473 ; 20 Wend. 184 ; Mercum and Read a. Nash, and relying on Fish I). Mack, 10 Wend. 461 ; Chater v. v. Hutchinson. Becket, 7 T. R. 201. (o) Hedges y. Strong, 3 Or. 18. (i) Gillfillau u. ^now, 51 Ind. 308. 60 CHAP. III.] GUARANTIES. [§ 38. an entire one.(p) In a Scottish case, it was held that an oral promise that a debtor shall appear to an action, and that if he does not the promissor will answer for the debt, must be in writing, though the promisee stayed his suit in reliance upon the promise ; the court seemed to have thought the engagement equivalent to bail. (5) There has been some authority for making the existence of a new consideration of forbearance a, reason for taking a guaranty out of the Statute of Frauds. Thus, in an early English case, a promise in consideration of forbearance of action against A. that A. shall not leave the kingdom without paying the debt is serable not a guaranty within the Statute of Frauds, as there is new consideration. The breach laid was that A. had left the kingdom without paying.(r) So a promise by a debtor and the defendant that if the plaintiff would forbear his debt for a certain period, the debtor and the defendant would give their joint and several note therefor, was held to be an original promise and not a guaranty; the promise being in writing, no question of the Statute of Frauds aro8e.(s) Under the Scotch law, in cases where for informal contracts a writing is only necessary to pre- vent the obligee from disavowing the contract ("resiling") and to deprive him of his locus posnitentim, sueli a part-performance ("?■£«' interventus") as forbearance to the third person will allow the admission of oral evidence of the contract.(0 So where the sheriff delivered to the defendant in an execution the goods levied on, which one of the guarantors claimed, and the latter agreed to pay the sheriff, the plaintiff, a certain sum on account of the judgment in the suit in question, the Statute of Frauds was held not to apply.(M) So where the promisee surrendered the lien of an execution, though it did not appear that the lien enured to the promissor.(?;) Where the corpora- ip) Hall V. Denholm, 11 U. C. Q. B. («) Lightle v. Berning, 15 Nev. 391. 356 ; see Thomas v. Williams, 10 B. & (i>) Mercein v. Andrus, 10 Wend. C. 668 ; § 54. 461 ; and see generally, Stewart u. (q) Chaplin «. Allan, Court Sess. Campbell, 58 Me. 443 ; Russell t). Bab- Cas. 4 D. 616 ; 14 Scot. Jur. 250. cock, 14 Me. 138 ; Goolsby v. Bush, 53 (r) Elkins v. Heart, Fitzg. 202. Ga. 355 ; Stewart v. Hinkle, 1 Bond, (s) Ferris v. Barlow, 2 Aik. 108. 506. See §§ 131, 132, 133. (() Burge, Surety. 37; see supra, § 2. 61 § 39.J LAW OF THE STATUTE OF FRAUDS, [CHAP. III. tion of which the defendant was president got the benefit of a relinquishment of a lien by the plaintiff", the Supreme Court of Indiana held that the Statute of Frauds did not apply, on the broad ground that there had been forbearance given to the person answered ior.{w) § 39. Where the forbearance is shown to a promissor who has an interest in the property against which the pro- ki^MnSdCT- ^isee forbears to proceed, another principle applies, ation of yj^,^ that a promise to pay a debt which attaches to Statements the promissor's own property, is not a guaranty, era! rule" though the debt iu the first instance is that of a third person. It is not always easy to distinguish cases of this class, which will be considered hereafter, from those of a somewhat different category, which will be treated of now, viz., those in which the guarantor's promise is not within the Statute of Erauds, because he has been put in funds in order to meet it; it is often difficult to ascertain from a reported decision whether the property held by the guarantor is his own property threatened with a proceeding for the debt of another, or whether he happened to have property of the third party in his hands, and in consideration thereof promised to pay a debt of such third party, or whether he was specially put in funds in order to answer such debt. It may, however, be stated as a broad rule, that a guaranty in consideration of funds of the third person in the hands of the guarantor is not within the Statute of Frauds. (a;) It has been thought that (w) Spooner v. Dunn, 7 Ind. 81. v. Murphy, 23 Minn. 6 ; Stariha v. (x) Walker ^. Taylor, 6 Car. & P. Greenwood, 28 Minn. 522 ; Dilts < . 753; Goddard «. Mockbee, 5 Cranch Parke, 1 South, 219 ; Hetfield «. Dow, 3 C. C. 666 ; McKenzie y. Jackson, 4 Ala. Dutch. 446; Skelton v. Brewster, 8 230 ; Drakely v. DeForest, 3 Conn. 272 ; Johns. 376; Olnistead i,. Greene, 18 Morgan v. Overman Mining Co., 37 Cal. Johns. 12 ; EUwood v. Monk, 5 Wend. 537 ; Eddy v. Roberts, 17 111. 505 ; 235 ; Watson ,:. Randall, 20 Wend. Williams i,. Corbet, 28 111. 263 ; Wal- 204 (distinguishing Simpson p. Patten, den V. Karr, 88 111. 51 ; Nelson D.Hardy, 4 Johns. 422 ; Jackson v. Raynor 12 7 Ind. 367 ; Woodward u. Wilcox, 27 Johns. 291, as being within the present Ind.214 ; Raymeru. Sim, 2IIen. & McH. category; and also Smith v. Ives); 454; Steadman u. Guthrie, 4 Mete, Tisdale t). Morgan, 7 Hun, 585 ; Mallory (Ky.) 152 ; Hilton v. Dinsmore, 21 Me. c . Gillett, 21 N. Y. 413 ; Hicks <-. Crit- 410 ; Todd u. Tobey, 29 Me. 219 ; Stew- cher, PhiU. (N. C.) 353 ; Draughan v. art V. Campbell, 58 Me. 439 ; Sullivan Bunting, 9 Ired. 10 ; Jenkins v. Peace, 62 CHAP. III.] GUARANTIES. [§ 39. the fact of a new consideration moving to the promissor deter- mines the validity of the oral guaranty, and that this rule includes the " Funds" rule, and is more comprehen8ive.(2/) As will be seen in a later section, there prevails a atill unsettled controversy as to this wider doctrine. The following are some statements of the "Funds" rule: Thus it has been said that the result of the cases would seem to be that if the defendant had received a valuable consideration for the purpose from either party, distinct from and independent of that of the original debt, and thereupon had promised payment, it would be an original undertaking, and not necessarily to be evi- denced by writing, as in the case of being furnished with funds for the purpose of paying the debt ; or where the plain- tiff having a lien upon property to secure his debt relinquished it to the benefit of the person promising to pay it.(^) In this case what the fund was does not appear; but the guarantor gave as his reason for making the guaranty that he had pro- perty of the third person in his hands. In the case in 43 New Hampshire there will be found the following excellent classi- fication of the cases arising under the " Funds" rule, and rules cognate to it. The court said, in the following cases, the promise has been held binding without writing: (1) Where the debtor has put into the hands of the promissor the amount of the debt ;(a) or transferred to him property equivalent ;(6) 1 Jones's Law, N. C. 416 ; Jack v. Mor- as a " funds" case, and denying the rison, 48 Pa. St. 113 ; Stoudt v. Hine, rule there laid down by Judge Emery, 45 Pa. St. 31 ; Whitcomb v. Kephart, viz., that a guaranty in consideration 50 Pa. St. 85 ; Clymer v. DeYoung, 54 of forbearance is not within the Statute Pa. St. 118 ; Justice v. Tallman, 86 Pa. of Frauds. St. 149 ; 5 W. N. C. 90 ; Madden o. (a) Robinson v. Gilman, 43 N. H. McCray (or McCray, adm. v. Mad- 491 ; citing Hilton v. Dinsmore, 21 Me. den),lMcCord, 487; Hindmani). Lang- 413; Lawrence c. Fox, 20 N. Y. 268; ford, 3 Strob. 207 ; Hilton v. Duncan, Blunt v. Boyd, 3 Barb. 209, Harris, J. 1 Cold. 313 ; Hall v. Rodgera, 7 Hump. (6) Id., citing Skelton v. Brewster, 536 ; National Bank v. Kinner, 1 Utah, 8 Johns. 376 ; Gold v. Phillips, 10 102 ; Wait v. Wait, 28 Vt. 350. See § Johns. 412 ; Farley v. Cleareland, 4 140. Cow. 432; S. C, 9 Cow. 639; El wood (j) See Mason v. W'lson, 84 No. Car. u. Monk, 5 Wend. 235 ; Barker v. Buck- Si. lin, 2 Denio, 45; Pike v. Brown, 7 (z) Hilton u. Dinsmore, 21 Me. 413 ; Cush. 136 ; Alger v. Scoville, 1 Gray, citino- Russell v. Babcock, 14 Me. 138, 396 ; Preble v. Baldwin, 6 Cush. 552 ; 63 § 40.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. or something of equivalent advantage to himself, as a license to keep a public house ;(c) or where the promisee has transferred or released to the promissor some interest in the property of the debtor,(c?) as a lien given by law to the seller for the price of goods sold, but not delivered ;(e) or to a landlord upon the goods of jjis tenant for rent ;(/) or a bailee for services ■,{g) or of an insurance agent on policies in his hands ;(A) or where the promisee has released to the promissor and holder of the property an attachment ;(z) or where he has released to the promissor the right to attach the property of the debtor ;{] ) or to bring a suit in the admiralty to enforce a lien ;(/«) or to bring a trustee suit against a party having funds of the debtor in his hand8.(^) § 40. Where the guarantor has a fund he is regarded as agent of the third person to pay the debt.(m) It has been General said that the "Funds" exception rests on the theory to the of purchase, so that the promise is to pay the price r'uie'"'^^" °^ property, acquired by the promissor, the pay- ment of promisee's debt being only incidental. (n) But it has been thought that the goods in the hands of the Todd V. Tobey, 29 Me. 224; Dearborn {g) Id., citing Houlditch o. Milne, 3 u. Parks, 5 Me. 83; Bird v. Gammon, Esp. 86; Mallory v. Gillett, 7 Smith, 3 Bing. (N. C.) 883; Browning r. Stal- 412. lard, 5 Taunt. 450; Wait u. Wait, 28 (S) Id., citing Castling v. Aubert, 2 Vt. 350 ; Olmstead u. Greenley, 18 East, 325. Johns. 12; Meech v. Smith, 7 Wend. (i) Id., citing Cross v. Richardson, 317 ; Gardner v. Hopkins, 5 Wend. 30 Vt. 642. 23; King u. Deapard, 5 Wend. 277; (j) Id., citing Lampson v. Hobart, Whitbeck v. Whitbeok, 9 Cow. 266. 28 Vt. 697. (c) Id., citing Walker v. Taylor, 6 (k) Id., citing Fish v. Thomas, 5 C. & P. 752. Gray, 45. (rf) Id., citing Barrett v. Trussell, 4 (Z) Id., citing Cross u. Richardson, Taunt. 17; Tomlinson v. Gill, Am- 30 Vt. 642 ; and saying " the last seem- bler, 330. ing to us to stand on the same grounds (e) Id., citing Fitzgerald v. Dressier, as the cases of Lampson v. Hobart and 5 C. B. (N. S.) 893. Fish y. Thomas." . . . (/) Id., citing Williams u. Leper, 3 (m) Stoudt v. Hine, 45 Pa. St. 31 ; Burr. 1886; Slingerland o. Morse, 7 Watson u. Gray, 4 Keyes, 395. Johns. 463; Thomas v. Williams, 10 (n) State Bank u. Mettler, 2 Bosw. B. & C. 679 ; Edwards u. Kelly, 6 M. & 396 ; citing Jackson v. Raynor, Farley S. 204 ; Hampton c Paulin, 4 Bing. v. Cleveland, Ellwood u. Monk, John- 264; Stephens v. Pell, 2 C. & M. 710. son v. Gilbert, Barker v. Bucklin. 64 CHAP. III.] GUARANTIES. [§ 41. guarantor must become the property of the latter, and that a mere consignment subject to draft is not alone sufficient to take the consignee's guaranty out of the Statute of Frauds. See, infra, § 55, etc.(o) In a New York case, where the plaintiff and defendant were both creditors of the same person, it was said that merely buying a claim against a third party will not make the contract &uy the less a guaranty if the original debtor continues liable; but where the defendant is put in funds by the debtor, and under the agreement the latter is to be discharged, then defendant's promise to pay the plaintiff the debt due him is not a guaranty within the Statute of Frauds.(jo) It has been thought, too, that the receipt by the defendant, from the debtor answered for, of a consideration sufficient to cover the debt guaranteed, will not alone take the promise out of the statute ; but that this consideration must have been especially made a fund out of which the guar- anty was to be met, and to which the liability was to be con- fined ; but see infra.{q) Whether the fund comes from the plaintiff or the original debtor seems immaterial. (r) § 41. On the point whether the promisee must give up his original claim on the person answered for, there is some contradiction in the cases. It may be said theoriginai that if he must do so there is no value in the be given "Funds" rule, because if the original debtor is dis- "P' charged it is clear that the Statute of Frauds is satisfied at any rate, because in such a contract there are but two parties, the promissor and the promisee ; and there is no collateral feature in the matter. It has been decided expressly that the original debtor may remain liable, and yet the oral guaranty be valid if the guarantor has a fund,(s) and this is implied in most of the cases cited above, § 39. It will, however, be seen later that the tendency of a strong current of authority is to (o) Id. (r) Clymer v. De Young, 54 Pa. St. (p) Tisdale v. Morgan, 7 Hun, 585 ; 119. citing oases. (s) Maule r. Buoknell, 50 Pa. St. 50 ; (5) Furtish u. Goodnow, 98 Mass. Dock v. Boyd, 93 Pa. St. 93 ; 8 W. N. 297; relying upon Jackson v. Raynor, C. 139 ; Small y. Schaefer, 24 Md. 156. and denying the late law of New York, See Sweatman v, Parker, 49 Miss. 26. Maine, and Vermont. See § 57. VOL. I. — 5 65 § 42.] LAW OF THE STATUTE OE FRAUDS. [CHAP. III. make the non-liability of the party answered for the exclusive test.{i) § 42. Under a rule to be treated of later, viz., that a promise of guaranty made to the original debtor and not to Who can b J o _ sue under the latter's creditor, it is an important question ■" Funds" whether or not the creditor can sue, or whether this rule. right belongs exclusively to the debtor (see § 81). It would seem that where the guarantor has funds it is imma- terial to whom the promise is made, and that the creditor can sue, the promise being for his benefit, and the funds being held in a quasi tru3t.(M) In a Connecticut case, however, it has been denied that the creditor can sue ; and it has been said that it was only between the guarantor and the party answered for, who had given the latter funds, that the Statute of Frauds did not apply. {'^) In a liTorth Carolina case it was said that the creditor could not sue unless there had been a novation. («;) Where the fund was assigned by the maker of a note, and in consideration thereof the first and second endorsers agreed to pay the note, the new agreement was held to alter the relations of the latter, and the second endorser could not recover from the first what he had been obliged to pay on the note, their positions under the new contract being equal. (a;) Where X. held a note given bj' the plaintiff and one Y., and held certain cotton as collateral security, and these persons agree that the defendant shall substitute his note for the original one, and shall have the cotton, the defendant took the cotton but would not give his note; it was held that the plaintiff having (0 SeeFurbishi;. Goodnow, 98Mass. Stariha v. Greenwood, 28 Minn. 522 ; 297; and see Jackson i;. Raynor, 12 Kirtland u. Hoole, 8 N. Y. Week. Dig. Johns. 291, and Stone v. Justice, 9 274 (N. Y. S. C.) ; Schindler v. Ewell, Phila. 22. See Turner >.. Hubbell, 2 45 How. Pr. 34 ; Stilwell w. Otis, 2HiIt. Day, 459, explaining Williams r. he- 149 ; State Bank i,. Mettler, 2 Bosw. per. Burr. 1886 ; as going on the ground 396; Claflin u. Ostrom, 64 N. Y. 584; that the person answered for was dis- Burkham v. Mastin, 54 Ala. 125. See charged; Simpson t;. Nance, 1 Spear, 7 ; Tomlinson v. Gill, 1 Ambl. 330. See Langford c. Freeman, 60 Ind. 50. infra, § 116. (u) Townsend u. Long, 77 Pa. St. (r) Clapp v. Lawton, 31 Conn. 100. 146, and this though' in Pennsylvania (w) Styron v. Bell, 8 Jones, 225. the creditor cannot sue on au oral {x) We.stfall v. Parsons, 16 Barb. promise of guaranty made to the debtor. 648. See Goodwin v. Bowden, 54 Me. 425 ; 66 CHAP. III.] GUARANTIES. [§43. paid the first note, could obtain the amount from the defen- dant.(2/) § 43. The examples of guaranties given in consideration of funds are very numerous, and not easy to classify. It will be well to arrange them, for the sake of con- ^^l^J"^"^^ venience, in several arbitrary divisions, which will, "I'uuds" ' . •' ' ' rule. at least, serve to assist the memory of the reader. The following are a few general examples : Thus, where a per- son to whom funds have been remitted to be paid the plaintiff, promises to pay the amount due the latter by the person re- mitting the money, the Statute of Frauds does not apply.^z) So where cattle in charge of W., the agent of an undisclosed owner, were transported by the plaintiff, who only gave them up to the defendant upon his agreeing to pay the freight due, and the defendant, by an arrangement with W. sold some of the cattle and held the proceeds, the Statute of Frauds did not apply ;(a) and so where an agent, holding funds of a debtor and liable to account to him therefor, agrees, under the direction (y) Hindman u. Langford, 3 Strob. Law, 209. (z) Wyman v. Smith, 2 Sandf. 335. Another example will be found in Mills V. Mills, and Young v. Roberson, 3 Head, 710, where the facts were as fol- lows : One James T. Mills having a cer- tain claim of a thousand dollars, con- veyed it by deed to Wilkinson. Mills afterwards assigned the same claim to Young, the plaintiff, who paid cash and gave notes for it. Mills endorsed the notes to Martha A. Roberson, the defen- dant. To induce Young to pay the notes, which, owing to the previous as- signment were possibly valid, or possi- bly invalid, and were then in litigation, and were without consideration, Mar- tha A. Roberson surrendered the notes to him, and guaranteed that he should realize out of the claim above described the sum of $920 ; in consideration of this he paid her $325. The court re- lied upon the "new consideration" rule, but also acknowledged that it came rather under that of a promise upon the inducement of receipt of funds, saying : " Here Young was not bound to pay these notes, the consideration having entirely failed, by means of the superior title of Wilkinson, the trus- tee. He had a perfect legal right to withhold the money, which was as much his own as if the trade had never been made, or the notes given. He is induced to yield this right in consider- ation of the guarantee. It is in prin- ciple like Williams v. Leper." It will have been noticed that the funds in this case consisted merely of a sum of money paid by the plaintiff to the defendant ; there is room for doubt as to whether the rule allowing such a con- sideration to be ground for sustaining an oral guaranty will not give a wide opening for an evasion of the statute. (a) New York R. R. v. (Jilchrist, 16 How. Pr. 564. 67 § 43.] LAW OP THE STATUTE OF FRAUDS. [CHAP. III. of the latter, to pay the latter's debts to the plaintiff ;(6) so where goods were supplied to a third party, who settled with the defendant therefor, and the latter undertook that the plaintiti' should be paid for thera.(e) So where a debtor con- veys his land as a gift or advancement to his sons, and they assume the debts, the Statute of Frauds does not apply : it is the same to piay the father, or, at his request, his creditors. (f?) Where the defendant promised the plaintift' to pay for goods supplied by the latter to defendant's cropper (or tenant), and afterwards, having received the crop, promised plaintiff di- rectly to pay him, it was held that the Statute of Frauds did not apply. (e) Where a third person represented that he had in his hands sufficient property of a debtor, which he intended to sell, in consideration that the creditor would extend the time of payment, promised the latter by parol that he would sell the debtor's property and pay him, and that it would sell for enough, it was held, that neither promise was to pay a debt of another, or within the Statute of Frauds. (/) Where the plaintiff agreed to board a clergyman upon a promise by the defendant to pay for the board, the latter assuring the plaintiff that he had funds in his hands belonging to the so- ciety whose minister the clergyman was, the Statute of Frauds did not apply : it also appeared that the plaintiff looked solely to the defendant.(^) So where the defendants out of a fund in their control promised to pay for the board of their em- ployes, and with the latter the plaintiff made no contract. (A) So where the defendant was owner, and a third person the prin- cipal contractor, building for the defendant, and the plaintiff was a sub-contractor, and the defendant assured the plaintiff that he had funds due the principal contractor, and would thereout pay the plaintiff's claim.(2) (6) Goodwin v. Bowden, 54 Me. 425. (/) Lippincott v. Ashfield, 4 Sandf. (c) Watkins v. Sands, 4 Bradw. 209. (Law) 614. (rf) Swihart v. Shaum, 24 0. St. 436; (g) Bushee v. Allen, 31 Vt. 634. see Lucas v. Payne, 7 Cal. 96. (h) Chicago, etc., Co. u. Liddell, 69 (e) Threadgill v. McLeudon, 76 No. 111. 640. Car. 26. (0 Hiltz v. Scully, 1 Cine. 557 ; but 68 see Weyer v. Beach, 14 Hun, 237. CHAP. III.] GUARANTIES. [§ 44. § 44. The first, and perhaps most important category of guaranties in consideration of property held by the guarantor, is tliat which contains such" promises considera" made under the fear of an execution at law. That t'o° of Re- ceipt of forbearance alone of the third party will not take goods l6ViG(i OUt the promise out of the Statute of Frauds has already been seen (see § 38) ; and that the benefit accruing to the pro- missor of a lien surrendered by the promisee will make an exception to the statute, will be seen later. Where the pro- missor holds the property and gives the guaranty to obtain a forbearance, which enures to his own advantage, the rule is well established that the Statute does not apply ; and in Wil- liams V. Leper, the leading case on this point, the law was first clearly announced. It was there held that where the de- fendant, a broker, selling the goods of a debtor for the benefit of the latter's creditors, promised the debtor's landlord, the plaintift", that if he will not distrain, he, the defendant, will pay the tenant's debt to the plaintift", the Statute of Frauds does not apply. (^') So where the defendant as agent of the tenants of land was employed by them to sell goods thereon, promised the landlord, who was about to distrain on their goods, which were distrainable, that if he would not do so, he, the defendant, would pay the rent due, it was held that the Statute of Frauds did not apply. (i) A threat of execu- tion may be enough to make an oral guaranty in considera- tion of the forbearance thereof valid. Thus where the pro- missor was threatened with a suit by the promisee, who proposed showing that the former had no right to the pro- perty held by him, and was not a creditor of the real owner, while he, the promisee, was such a creditor, the Statute of Frauds did not apply to an engagement to answer for the debt with which it was sought to charge the property .(^) So the (j) Williams v. Leper, 2 Wils. 308 ; to relinquishment of the opportunity- Burr. 1886 ; see Bird u. Gammon, 3 for a lien. Bingh. N. C. 888 ; Houlditch v. Milne, (?) Smith v. Rogers, 35 Vt. 145 ; see 3 Esp. 87. Williams v. Leper, cited to a like effect (_k) Bampton z;. Paulin, 12 Moore, in Selw. N. P. (7th Am. ed.) p. 853 ; 499 ; 4 Bingh. 264 ; and see § 135, as see Robinson v. Gilman, 43 N. H. 490 ; Mitchell V. Griffin, 58 Ind. 560. 69 § 45.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. Statute of Frauds did not apply where the plaintiff, as land- lord, had distrained on goods of one T. B., whereupon the de- fendant by a writing, which showed no consideration, agreed to pay him all the rent due him, the plaintiff, from T. E., and parol evidence was offered that the consideration was the surrender of the distress to the defendant.(m) Where the plaintiff, who had distrained on the goods of A., delivered them to tlie defendant, who signed on the back of an inventory of them the following statement: "We do hereby promise to deliver to Peter Slingerland all the goods contained in the within, etc., or pay the said Peter $450," it was held that the promise not being within the Statute of Frauds, the consideration did not require to be stated. (?i) Where the plaintiff, relying on the defendant's guaranty, discharged one IL, whom he had arrested, and the de- fendant had received from H. goods out of which he prom- ised to pay the debt due the plaintiff, the Statute does not apply.(o) § 45. So where the plaintiff", under a judgment against D., having levied on, sold, and bought in hay, etc., on a under the farm of which D. was the tenant and the defendant lasthead. ^^iq owncr, the latter's promise to pay the judgment if the plaintiff would not remove the hay, is not within the Statute of Frauds.(p) So a promise by one whose goods were levied on to pay the execution creditor the proceeds of the goods when sold by the promissor if the levy be released, is not (m) Edwards v. Kelly, 6 M. & S. 208 ; 463 ; see Mercein v. Andrus, 10 Wend, it was held that the caSe was ruled by 461 ; semble, that a complaint which Williams v. Leper and Read u. Nash, sets out the fact that the defendant I Wils. 305. Bayly, J., thought this a knew of and assisted in the removal stronger case than Williams v. Leper, of certain property levied upon by the inasmuch as here was an actual de- plaintiff, and that the defendant after- livery which suspended the tenant's wards promised to pay to the plaintiff debt, so that there was no outstanding the third person's debt for which the liability. Abbott, J., said that Williams levy had been made, discloses an agree- V. Leper was recognized in Houlditch v. ment not within the Statute of Frauds; Milne and Castling u. Anbert, 2 East. Billiard v. Austin, 17 Barb. 141. 330. Holroyd, J., regarded the tenant's (o) Colwell u. Harison, Livings. Jud. debt suspended. See Hall v. Denholm, Opin. 40 (Mayor's Ct. N. Y.). II U. C. Q. B. 356. (;)) Cooper v. Wait, 8 N. Y., W. Dig. (n) Slingerland u. Morse, 7 Johns. (S. C. N. Y.), 367. 70 CHAP. III.] GUARANTIES. [§ 46. within the Statute, the levy bein^sj valid, otherwise the levy being invalid.(5') Where the defendant, Robinson, having had an attachment by other parties issued against him, and having been unwilling to answer fully the interrogatories, promised the plaintiff, Gilman, who was about to issue an attachment, to pay the debt which was the subject of the attachment, the court held that the Statute of Frauds did not apply, and said that " Rollins, the debtor, was no party to the negotiation, and the benefit to be derived from Gilman's omission to sue was wholly Robinson's. He was assumed by Gilman to have in his hands property or funds for which he might be charged as the trustee of Rollins. If he had such funds, or property and of sufficient amount to pay Gilman's debt, the waiver of Gilman of his right to commence a trustee suit would form such a consideration of his promise as would make it valid without writing, according to the principles adopted by the authorities. The promise to pay the debt was an admission, or might be regarded as an admission by the jury, that he had property for which he might be chargeable to the amount of these notes. "(r) § 46. Where the plaintiff', a court officer, delivered to the defendant certain articles, which he had attached, the defendant gave a signed memorandum, reciting Examples the fact and describing the goods, and promising to return them, it was held that whether the memorandum was sufficient or not, the Statute of Frauds did not apply.(s) (7) Rogers v. Collier, 2 Bailey, 583. had levied upon a horse helonging to (r) Robinson l: Gilman, 43 N. H. one Slappy, and being about to sell, 490, citing Jackson v. Raynor. was induced by Shiver, whose admin- (s) Marion v. Faxon, 20 Conn. 494. istrator the defendant is, not to do so, Where one Thos. McCray, the defend- promising that if the plaintiff would ant, stated thathehadeffectsof J. McC, leave the horse with Slappy, and not as his security, and for the payment of sell, he. Shiver, would pay the amount J. McC.'s debts, and promised the due on the Ji. fa., and the plaintiff plaintiff's agent that if he would for- paid the execution-debt and let Slappy bear for a certain time to attach these have the horse, who delivered it to effects, he, the defendant, would pay Shiver, who sold it ; the plaintiff then the debt (a note), the Statute of Frauds called upon Shiver to pay, which he did not apply; MoCray u. Madden, 1 promised to do. It was held that while McCord, 487. the original promise was within the Where the plaintiff, a sheriff, who Statute of Frauds, the second one was 71 § 47.] LAW OP THE STATUTE OF FRAUDS. [CHAP. III. Where the promissor held goods of the party answered for, and was interested in them, his guaranty on consideration of forbearance by the promisee to attach these goods, is not within the statute. (;;) It sometimes occurs that the guarantor, who is threatened with an execution, or who, without waiting for this, makes the guaranty, has been chosen by the original debtor as assignee to settle some or all of the obligations of such debtor: this class of eases will be found in § 52. § 47. In many cases the guaranty of the debt is by way of payment for property bought by the guarantor from payttir*" ^^^^ person to whom the guaranty is given ; and thii-dper- ^his principle is treated in a later section (§ 115). son's debt "^ ^ . ,. • • i - i as price of Some instances of its application to promises, wtuch erty'bought in another aspect are those in consideration of funds, may here be given. Thus where a plaintiff who held policies of insurance as security for debts due him by G., the defendant's principal, surrendered these policies to the defendant, who promised to take care of certain bills, drawn on the plaintiff by G. and accepted by the plaintiff, the Statute of Frauds was held not to apply, the " Funds" rule and the "Purchase" rule being relied on.(ii) And so where the defendant bought the stock in trade of one H., for whom the plaintiff had given a written guaranty, and promised the plaintiff to pay this guaranty, and the plaintiff had to pay H., he can, notwithstanding the Statute of Frauds, recover from the defendant. (z)) Where the defendant signed a receipt to a levying officer conditioned to deliver up the goods or pay the execution, parol evidence is admissible of a declaration of the defendant, made when refusing to comply with a demand for the goods, that he would keep them and pay the execution, the Statute of Frauds does not apply ; the evidence was only not, as the defendant had been put in (!■) Todd v. Tobey, 29 Me. 222 ; it funds to pay the debt which Slappy will be noticed that the promise was owed the plaintiff, who had on his be- really made to the debtor, and thus half paid it to the execution creditor ; anoHier exception, as laid down in Bohannon v. Jones, 30 Ga. 488. Eastwood v. Kenyou, applies ; see infra, (0 Mitchell V. ftriffin, 58 Ind. 560. § 76. (u) Castling v. Aubert, 2 East, 330 ; Borchsenius v. Canutson, 100 111. 92. 72 CHAP. III.] GUARANTIES. [§ 49. to show which alternative given by the receipt he chose to adopt.(i«) § 48. Where the defendant received a conveyance of prop- erty' belonging to the party answered for, and prom- ised to pay for a barn erected thereon by the plain- gont'fjfued tiff, the Statute of Frauds was held not to apply, and the " Funds" exception was relied on. (a;) Where the guarantor becomes the owner of property of the party answered for, his guaranty is to some extent one coming within the "Funds" rule, and is valid, though oral. Thus the promise, by a buyer of property to pay a workman's claim.(y) Where the guarantor receives the goods for the price of which the notes guaranteed by him were given, the Statute does not apply.(e) § 49. The property held by the guarantor may be in the nature of collateral security, or commercial paper, or other evidences of liability, and for the proceeds holder of of which the guarantor must account. Thus where ggcurity^^ the defendant, having received from a creditor the securities held by the latter for the debt, promises the creditor to pay the debt, the Statute of Frauds does not apply. (a) Where the plaintiff, one of the makers of a note, had to pay it, and claimed reimbursement from the defendant into whose hands the proceeds of the note went, and to the benefit- of whose property they were applied, a promise by the defendant to sign the note and pay it can be orally proved, and the 0«) Bowen v. Gulp, 36 Mich. 225. 6 ; Clymer u. De Young, 54 Pa. St. (x) Wait V. Wait, 28 Vt. 351 ; see 119 ; Hedges v. Strong, 3 Oreg. 18. Huber v. Ely, 45 Barb. 170 ; see Lucas See as further examples of a guaranty V. Payne, 7 Cal. 96 ; Hoile v. Bailey & assumed by the guarantor as the price McCullooh, 17 N. W. Eep. 322 (S. C. of property bought by him, § 115 et Wis.). seq. ; and see Earle v. Crane, 6 Duer, (y) Rhodes v. Matthews, 67 Ind. , 569 ; Wilson v. Bevans, 58 111. 234 ; 131 ; Landis v. Royer, 59 Pa. St. 98 ; Browning u. Stallard, 5 Taunt. 450 ; McKeenan v. Thissel, 33 Me. 368 ; Griffin v. Derby, 5 Greenl. 476 ; Lucas M'Donnell v. Cook, 1 U. C. Q. B. 544 ; v. Payne, 7 Cal. 96 ; Bishop v. Stewart, McDonald v. Glass, 8 U. C. a. B. 245 ; 13 Nev. 35 ; Cohen v. Hart, 2 Hill (So. Tumblay v. Meyers, 16 U. C. Q. B. Car.), 306; Cameron a. Clarke, 11 145 ; see § 115 et seq. Ala. 263. (z) McCreary v. Van Hook, 35 Tex. (a) Gerow v. Clark, 9 U. C. Q. B. 639 ; see Cailleux v. Hall, 1 E. D. Sm. 223, citing cases. 73 § 51.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. plaintiff can recover, notwithstanding the Statute of Fraud8.(6) So a promise by one who receives a bond and mortgage of land, that as a consideration therefor he will pay a certain promissory note, is not within the Statute of Frauds.(e) So a promise to collect the amount of notes left by a third per- son with the promissor under a direction to pay the proceeds to the pronn8ee.(«?) § 50. And where the guarantor is indebted to or holds a Promise by ^^"*^ belonging to the plaintiff's debtor, and prom- debtor to iges to make the payment directly to the plaintiff, creditor's the Statute of Frauds does not apply. Thus a guaranty given by the owner of a building to a workman employed by the guarantor's contractor is valid, though by parol, the owner not yet having paid the contractor what he owed the latter ;(e) especially where the workman or other creditor of the contractor trusted the latter, in the first instance, in reliance upon the guaranty. (/) g 51. Another category of cases arising under the "Funds" rule, and which, like others already noticed, may Promiee by ^e considered to come within the principle that a holder of . . i, , firm assets, promise to pay a debt which ;s really the guar- (6) Potter V. Brown, 35 Mich. 279. authorities of Newark to pay to the (c) Kirtland y. Hoole, 8N. Y. Week, defendants what was due him, S. B., Dig. 274 (N. Y. S. C). by the city under a certain contract : (c/) Prather v. Vineyard, 9 111. 48. parol evidence that these funds were So where T. & H., owing a note to the agreed to go in payment of the three plaintiffs, sent to the defendants a note notes was admissible, notwithstanding of their own endorsed for a larger the Statute of Frauds ; Price v. Trus- amount, and this note was discounted dell, 28 N. J. Eq. 201 ; see Winfield v. by the defendants, it was held that the Potter, 10 Boaw. 230 ; 24 How. Pr. Statute of Frauds did not applj' to a 446 ; Pennell v. Pentz, 4 E. D. Sm. promise by the defendants, in conside- 642 ; Hayward u. Gunn, 82 111. 390 ; ration of the above, to pay the note see VPestfall v. Parsons, 16 Barb. 648. which T. &H. owed the plaintiffs ; May (e) Nelson v. Hardy, 7 Ind. 367; u. National Bank of Malone, 9 Hun, Cock u. Moore, 18 Hun, 32 ; Booth v. Ill ; see Meyer o. Hartmau, 72 111. Heist, 94 Pa. St. 177 ; VThitoomb v. 444. So where the complainant and Kephart, 50 Pa. St. 85 ; see also Balliet the defendant were endorsers of three v. Scott, 32 Wis. 176 ; see § 140 et seq. notes of S. B., the primary liability on (/) Andrews v. Smith, 2 Or. M. & two of them being in the defendant, E.. 631 ; Estabrook v. Gebhart, 32 Ohio and on the third in the complainant, St. 420. S. B. gave written orders on the city 74 CHAP. III.] GUARANTIES. [§ 52. antor'fi own, though in form a guaranty, is not within the Statute of Frauds, is that of a guaranty of a firm debt given by one who has become owner or holder of the partnership assets.(5') (See § 121.) Where it was claimed that a partner's promise was to answer for the debts of third persons to the firm, the court said : " If, on a close of partnership aft'airs, one partner is allowed to take for his own use a part of the assets, w^hether choses in action, or anything else, on an agreement with his co-partners to account to them for a definite share, it is a separate and direct agreement on a new consideration. It becomes to the other partners then a matter of indift'erence whether the debts are collected or not. They belong to the partner taking them, and he maj' collect them or use them in trade or to satisfy his own individual debts, or he may release them wholly. It amounts to nothing more or less than a purchase of the interest of others in property belonging to them jointly. The Statute of Frauds has no application. "(/^) § 52. Another category of cases is that in which the guar- antor is an assignee of the property of the person answered for under a trust to pay the debts of the asssgneefor latter. The promise under these circumstances is benefltof ' creditors. not within the Statute of Frauds.(z) Especially where it had been agreed that without the plaintifi''s assent the assignment should not be recorded, and the promise was in consideration of such assent given. (j) So a promise by pre- ferred creditors in consideration of receiving all the assets to pay the expense of drawing the assignment, and this though the assignee remained liable for this charge.(^) Where the (£r) Townsend u. Long, 77 Pa. St. 223 (S. C.Ia.) ; see Wagner n. Egleston, 146; Vanners v. Dubois, 64 Ind. 338 49 Mich. 222. (the defendant in these cases was a (i) Haghes u. Stringfellow, 15 Ala. partner who had bought out his part- 327. ner) ; Clapp v, Lawton, 31 Conn. 100 ; (j) Jones w. Hardesty, lOG. & J. 405. Lee V. Fontaine, 10 Ala. 764 ; Raymond (i) Stilwell o. Otis, 2 Hilt. 149. So u. MoCabe, 9 Chic. Leg. News, 215 (S. a promise by one receiving an assign- C. 111.) (the plaintiff also forbore to ment of the goods from the assignee for attach) ; see Hayward v. Guun, 82 111. the benefit of creditors to pay the debts 390. of the assignor is not within the Statute (A) Conger D.Cotton, 37 Ark. 297; of Frauds; Fisher i;. Wilmoth, 68 Ind. Poole V. Hintrager, 14 N. West. Eep. 450 ; see Drakely v. Deforest, 3 Conn. 277. 75 § 53.] LAW OF THE STATUTE OP FRAUDS. [CHAP. III. plaintiff sued as assignee of the certificate of stock in the Greenwich Company, an incorporated association, and averred that the assets of the company had been sold, and the proceeds delivered to the defendant as treasurer of the company, and that defendant had promised to pay over the fund to the shareholders at the rate of $189.96 per share, it was held an original promise by the defendant and one enuring to every shareholder and creditor, entitling them to 8ue.(/) Where an assignee agreed with his co-assignee, the plaintiff, to convey certain property to the defendant, if the latter would pay to the plaintiff a certain sum previously collected by one H. for the assigned estate, the Statute of Frauds does not apply.(m) And so, where the defendant, who was a creditor of one R., agreed to take control of the latter's plantation and get in the crops and pay debts of his, contracted with the working of the plantation, and pay himself from the profits, and on this promise a creditor of R. may sue.(n) Where the promise is in favor of one special creditor, the rule under the principle now under consideration is the same.(o) § -53. A promise by an administrator, etc., or guardian, who holds assets, if not within the special clause of Promise by . ,.. adminis- the Statute of fi rauds, relating to administrators, s'uardian exccutors, etc., is Valid under the "Funds" excep- ^^'^- tion to the guaranty clause. Thus a promise to the widow of an intestate, that if she would permit the defendant to become administrator he would make up any deficiency of (I) Therasson r. McSpedon, 2 Hilt, assignees for the benefit of the credi- 3. Where one bought the claim due an tors of L., that if they would defend insolvent, a promise to pay a certain the replevin suits, they, the defen- dividend to the creditors of the latter dants, would pay all the costs and is not a guaranty within the Statute of otherwise hold the plaintiff harmless Frauds ; Gray i'. Pearson, 2 Vict. L. therefor, this was a promise to pay R. Law, 81. their own debt and not a guaranty (m) Perkins c Hitchcock, 49 Me. within the Statute of Frauds ; Carley 474. Where the defendants, certain u. Wheaton, 14 N. Y. Week. Dig. 165, creditors of L. an insolvent, agreed to S. C. N. Y. take his goods and pay his creditors a (n) Burkham v. Mastin, 54 Ala. 125. certain per cent., and wishing to get (o) Bird v. Gammon, 3 Bingh. N. C. possession of certain of the goods, 888 ; Skelton ti. Brewster, 8 .Johns, which had been replevied, promised 376 ; MoCray v. Madden, 1 McCord, the plaintiff and one C, who were 487. 76 CHAP. III.] GUARANTIES. [§ 54. assets, is not within t?ie Statute of Frauds.(^) But a receipt by a mother of the effects of her deceased son has been held in Indiana not sufficient to take her promise to answer his debt out of the Statute of Frauds.(5') A promise made to an administrator that if the latter will give the promissor the assets he will pay the debts is not within the statute.(r) So a promise of an heir that if the plaintiffs would forbear their claim against the decedent's estate he would pay it. is not a guaranty but an original debt, since the plaintiffs might have raised administration and sued the estate. The promissor was heir, not administrator or executor, and forbearance was treated as a new consideration to take the promise out of the Statute of Frauds : semble, that the defendant's interest in the estate made the latter a fund.(s) Where the plaintiff', a guardian, having funds of H. in his hands, and being a creditor of H., gave up his guardianship and handed over the estate of H. to the defendant, upon the latter promising to be personally liable for H.'s debt to the plaintiff, the Statute of Frauds does not apply. (<) § 54. The following are examples of cases which do not come within the "Funds" exception, and in which „ 1 T 1 . -i Exceptions therefore an oral guaranty would not be enforced, to the In a case which in some respects resembles that of rule gene- Williams V. Leper, an auctioneer promised to pay rent ™^'y' due if the landlord would not distrain upon goods of the tenant which he, the auctioneer, was then about to sell : it was held that part of the promise related to future rent, as to which the landlord had no present right of distress, and that, as the promise was inseverable, the whole was within the Statute of Fraud8.(M) The mere prospect of receiving funds from the person answered for will not without actual receipt satisfy the Statute of Fraud8.(?;) So it has ever been held that the re- (p) Tomliiison v. Gill, Ambl. 330. the above ground, and Edwards k. Kelly (7) Langfordu. Freeman, 60 Ind. 50. and Castling a. Aubert, as cases of (r) Randall v. Kelsey, 46 Vt. 163 ; funds, and to the same effect see Hall see Locke v. Humphries, 60 Ala. 120. c. Denholm, 11 U. C. Q. B. 356. (s) Templeton;;. Bascom, 33Vt. 133. (w) Westheimer u. Peacock, 2 la. (0 French v. Thompson, 6 Vt. 60. 531 ; Beerkle v. Edwards, 8 No. West, (w) Thomas v. Williams, 10 B. & C. Rep. 341 (S. C. la.) ; see Abel u. Wil- 668, distinguishes Williams v. Leper on der, 9 Lea, 453. 77 § 56.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. ceipt of notes not yet due will not be funds to take an oral guaranty out of the statute.(M)) It has even been said that the rule is settled, that the mere possession of property' belonging to the original debtor, not deposited with the defendant for the purpose of paj'ing the debt, will not withdraw his verbal promise to pay it from the operation of the Statute of Frauds. (a;) § 55. It is not enough to show that the guarantor held the property of the original debtor; it must be shown belonging how he held it.(y) Transfer of stock merely to guarantor qualify the recipient to become a director in a cor- poration will not take a guaranty out of the Statute of Frauds.(^) So the assignment by the plaintiffs of their in- terest in a certain mine to a corporation of which the defend- ants were large stockholders is insufficient. (a) A fund held by the defendant, as executor, either under the will or de son tort, is not such a one as will take a guaranty out of the Statute of Frauds.(i) The mere receipt by a mother of the effects of her son will not be a sufficient fund ; the property may be hers by right. (c) Mere receipt of aconsignment, against which the usage of the parties was that drafts should be drawn, it has been held, will not take out of the Statute of Frauds a promise to pay a certain draft in consideration that the drawer should not discontinue his consignments ; it being thought that the goods consigned were not sufficiently the property of the consignee to bring his promise within the " Funds" excep- tion. (li) Where the defendants said that they had taken their father's farm, and promised to pay his debt to the plaintiff, the Statute of Frauds applied. (e) § 56. So, where the funds were in the guarantor's hands (w) Beasten v. Hendrickson, 44 Md. principle, but admitting it ou autho- 616. rity. (x) Hughes V. Lawson, 31 Ark. 614. (A) Chandler v. Davidson, 6 Blackf. (i/) GoweT V. Stuart, 40 Mich. 747. 368. (z) Maule v. Bucknell, 50 Pa. St. 50. (c) Langford v. Freeman, 60 Ind. 50. (a) People's Bank v. Adams, 43 Vt. (d) State Bank v. Mettler, 2 Bosw. 198. As an example of absence of a 396. fund, see Durham y. Arledge, 1 Strob. (e) Bundy u. Parkins, 14 N. Y. 5, doubting the " Funds" rule in Week. Dig. 416, N. Y. S. C. 78 CHAP. III.] GUARANTIES. [§ 57. before the guaranty, and were not specifically dedicated to the purpose in question. (/) A previous condition of in- debtedness by the guarantor to the person answered guaran- for, is not equivalent to a fund.(^) That a promis- p°evious°to sor is the trustee of a married woman, the person tiiepro- . . mise. answered for, and has her property in his posses- sion, will not be a good consideration even for a written guar- anty of her debt.(A) § 57. Before leaving the discussion of the general rule that the possession of funds by the guarantor will make an oral guaranty valid, it is necessary to give some the"^ few instances in which the principle has been almost ^,1^"°*^^" entirely denied. Thus it has been said that the per- son answered for must be discharged of liability, which will of itself take the promise out of the Statute of Frauds, thus making the fact of the possession of funds of no value whatever, see supra, % 41, and infra.{i) The "Funds" rule has indeed been denied. (J) Where B. & B. made a mortgage to the plaintiffs, the principal of which should become due when the interest was unpaid; the mortgage became so due, and the plaintiffs also held a note of B. & B. ; the defendant, who was assignee of the effects of B. & B., promised the plaintiffs that if they would not press their claim on the mortgage, but take interest when he could pay it, he would pay the note ; the Statute of Frauds was held to apply, B. & B. remaining liable, and there being no connection between the note and the mortgage.(A) So where a purchaser of the property of a (/) Simpson v. Nance, 1 Spear, 7, Phila. 22 ; but see supra that this is one judge diss. ; see Frame v. August, not now the law either of New York or 88 111. 425 ; Tyler v. Stevens, 11 Barb. Pennsylvania. 486. (_j) Murphy v. Renkert, 12 Heisk. {g) Stanley v. Hendricks, 13 Ired. 398 ; Emerick v. Sanders, 1 "Wis. 92, re- 86. lying on Fish v. Hutchinson ; see, also, (A) Crane v. Bullock, R. M. Charl. Durham v. Arledge, 1 Strob. 7 ; Hal- 319 (saying that the case of an admin- stead v. Francis, 31 Mich. 113 ; see Law istrator's promise was not analogous). Mag. and Rev., vol. xxxii., 3d ser., 96 (i) Jackson v. Raynor, 12 Johns. (Prof. Parsons of the Univ. of Penn.). 291 (see Durhamu. Arledge, 1 Strob. (i) Lee v. Mitchell, 23 U. C. Q. B. 5, questioning it).; Stone v. Justice, 9 315. 79 § 59.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. testator promised to pay certain debts of the latter the Statute of Frauds was held to apply. (^) § 58. While there is not a great deal of direct authority on the point, the very silence of the decisions would amount of establish that the amount of the fund is not of im- portance in determining whether or not the Statute of Frauds applies to an oral guaranty given in consideration of such fund. Thus, where the defendant, who was interested in another business with one of the firm of M. & Co., asked the plaintifi" not to sne M. & Co. on a certain protested draft, and the plaintiff made a memorandum on the draft itself to the effect that he would not do so, it was held that, inasmuch as the defendant represented to the plaintiffs that he had funds of M. & Co. in his hands, the contract was taken out of the Statute of Frauds, and this though M. & Co. continued liable ; and that the defendant was, moreover, estopped from showing that this statement as to the funds was not true.(m) And it has been held that the liability for the guaranty is not confined to the fund.(n) Where one received part of a loan the Statute of Frauds was held to be no defence to an action on his promise to be surety for such loan.(o) And where the plaintiff gave up an accepted and endorsed bill of exchange to an attorney acting for the acceptor and for the defendant, con- fiding in the latter's promise to pay half the bill in cash, and gave a new security, endorsed also by the defendant for the other half, the defendant's promise was held not to be within the Statute of Frauds. It appears to be too late to argue that, on principle, the liability should be confined to the fund.(j3) § 59. A branch of the " Funds" doctrine is the rule that an acceptance of a bill or order is not within the Statute of (0 Styron v. Bell, 8 Jones, 225. amount of the funds, see EUwood r. (m) Dock V. Boyd, 93 Pa. St. 93. Monk, 5 Wend. 235 ; Olmstead v. Green- (n) Vi^hitcomb v. Kephart, 50 Pa. St. ly, 18 Johns. 12 ; Jack v. Morrison, 48 85; but see conim Furbish i,'. Goodnow, Pa. St. 113. In Williams r. Leper, Burr. 98 Mass. 297 ; supra, § 40 ; see Ardern 1886, 2 Wils. 308, Wilmot, J., thought V. Rowney, 5 Esp. 257 ; see § 59. that the guarantor's liability sbouldbe (o) Dee t). Downs, 50 la. 312. confined to the fund ; see Law Mag. and (/)) Barrett . Bramble, 3 Ind. 429. Lemmon o. Box, 20 Tex. 332 ; Nelson v. (s) National Bank of Wheeling u. Nat. Bank Chic, 48 111. 40; Sturges v. Merchants' Nat. Bank, 7 W. Va. 548. Fourth Nat. Bank, 75 111. 596 ; Scud- (0 Mead v. Merchants' Bank of Al- der V. Union Nat. Bank, 91 U. S. 411 hany, 25 N. Y. 149j citing Farmers' (passing on Illinois law) ; McCutchen Bank v. Butchers' Bank, 16 N. Y. 125. V. Rice, 56 Miss. 458 (Code, § 2230, not (u) Lafiin, etc., Powder Co. v. Sins- applying) ; Carville v. Crane, 5 Hill, heijner, 48 Md. 418. VOL. I. — 6 81 § 59.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. writing, the Statute of Frauds was held not to apply under the following circumstances, viz : where there was an attach- ment by the St. Louis Insurance Co. against Curie, under an execution against A., and Curie admitted that, being indebted to 0., he verbally promised A., who presented to him an order in his (A.'s) favor, given by 0., to pay him (A.); the court say- ing that the proceeding was an equitable one, and taking a distinction between a bill of exchange and a mere order.(!;) It seems that where credit has been given to the person answered for without reliance upon a promise to accept a bill of ex- change, the latter may be within the Statute of Frauds. (?/?) In a case in 1 Holmes, the court said : " A verbal acceptance of, or a verbal promise to accept, a check, when the acceptor has funds of the drawer in his hands, is entirely without the operation of the Statute, from the consideration that the drawee's engagement is, in fact, to pay his own debt to the drawer, the owner of the funds. But it is not perceived how any sound reason can be given why a verbal acceptance, or promise to accept, for the mere accommodation of the drawer, without funds or value received, should not be treated as within the Statute. Courts have frequently expressed their dissatisfaction that the rule with regard to implied as well as parol acceptances of bills has been carried as far as it has, and their regret (as stated in Boyce v. Edwards, 4 Pet. 122) ' that any other act than a written acceptance of the bill had ever been deemed an acceptance.' "(x) The court added that the case of a check was dift'erent from that of a bill. So in an Iowa case the court said : " The plaintiff's argument is that a verbal acceptance is equivalent to a written acceptance; that the validity of a written acceptance does not depend upon the existence of funds of the drawer in the hands of the acceptor, therefore the validity of a verbal acceptance does not. But we cannot accept this reasoning as sound. It is true that no consideration is necessary to bind an acceptor who has become (v) Curie f. St. Louis Ins. Co., 12 213, citing numerous cases, and dis- Mo. 580; see § 60. tinguishing Townsley v. Sumrallouthe (to) Strohecker v. Cohen, 1 Spear, ground that there the money was paid 353. on the strength of the acceptance. {x} Morse o. Mass. Bank, 1 Holm. 82 CHAP. III.] GUARANTIES. [§ 59. such bywritten acceptance. But then he becomes a party to the paper. His liability, we apprehend, rests strictly upon this ground. An acceptor by verbal acceptance does not be- come a party to the paper, certainly not in any such sense as he would by written acceptance. "(?/) Before a statute expressly requiring a writing, an oral acceptance was formerly good in England ;(e) and so in New York;(a) and so in Minne80ta.(6) What constitutes the acceptance is a wide subject, and one in its nature belonging rather to a treatise on bills and notes. The acceptance may be inferred from the conduct or the words of the drawee,(c) such as detaining a bill a long time so as to give credit to it.(^) Semhle, that an oral prom- ise to accept a bill cannot be treated as an actual acceptance so as to make it valid in absence of proof of consideration ; though taking the bill on the faith of such promise would be (y) Walton t. Mandeville, 56 la. 599 ; the court adding : "A verbal pro- mise to pay the debt of another can be enforced where the promissor by the payment would pay his own debt as well as of the person in whose behalf the promise was made. And such is precisely the case where there is a, verbal acceptance of an order by a person who has funds of the drawer. Indeed, it is not necessary that the request should be made in writing. If A., having funds belonging to B., promises C, at B.'s verbal request to pay C. from such funds a debt due him from B., A. is holden. This doc- trine is elementary. The validity of a verbal acceptance of an order must, we think, rest upon the same ground. We see no other. The view which we have expressed appears to us to be the only safe view, and the only one which can be sustained upon principle. The de- fendants have been adjudged to pay another person's debt, in the absence of any consideration, upon an alleged verbal promise of their agent, such promise being expressly denied by the agent, and proven by no evidence ex- cept the testimony of the plaintiflF, and that of a very weak and unsatisfactory character. We are unwilling to sanc- tion a rule which shall make a recovery possible in such a case." As to the validity of the oral acceptance, the court cited Dan. Negot. Ins., § 566; and for the other view cited Browne, S. of F. 174; Robin. Prac, vol. ii. 152; Quin v. Hanford, 1 Hill (N. Y.), 84; Pike u. Irwin, 1 Sand. (N. Y.) 121 ; Manley D. Geagan, 105 Mass. 445 ; Plummer v. Lyman, 49 Me. 229 ; Wake- field V. Greenhood, 29 Cal. 600. [z) Lumley v. Palmer, Hardw. 74 ; 2 Str. 1000 (an inland bill) ; Clarke v. Cock, 4 East, 71 ; Johnson v. CoUings, 1 id. 103 (Lord Kenyon regretting that such was the law). (a) Ontario Bank n. Worthington, 12 Wend. 593. (6) Heenan v. Nash, 8 Minn. 410; and in South Carolina, Strohecker v. Cohen, 1 Spear, 353. (c) McCutchen v. Rice, 56 Miss. 458. (d) Dunavau v. Flynn, 118 Mass. 538. 83 § 60. J LAW OF THE STATUTE OF FRAUDS. [CHAP. III. sufficient consideration. (e) (See § 62.) Tor examples (jf suffi- cient acceptance, see the cases in the note.(/). § 60. The following are a few exanaples of acceptance not within the Statute of Frauds. Thus, where the de- ofsufflcieut fendant's intestate had rented the plaintiff"'s land for suffic/en't' two balcs of cottoH, and the plaintiff made advances oraiaocep- ^q ^j^g former for which he, the plaintiff, was to have the crop, the defendant's intestate agreed with O. for supplies upon the plaintiff's promise to pay 0. ; it was held that the promise of the defendant's intestate to 0. need not be in writing, because the arrangement was regarded as a verbal order on the plaintiff, and verbally accepted by him in favor of 0. to be paid out of the share in the crop to which the defendant's intestate was entitled, and when such share was handed over to the latter.(^) Where a third person, MeC, gave the plaintiff, to whom he was indebted, an order on the defendant, who had goods belonging to McC, and the defendants agreed to sell the goods and apply the proceeds to a debt due them by McC, and also to McC.'s debt to the plaintiff, the Statute of Frauds did not apply. (/i) A draft to the drawer's order on the defendant, and recited to be an ad- vance on the drawer's cotton crop consigned to the defendant, may be verbally accepted. (f) The following are some ex- amples of a want of sufficient acceptance. Thus, where the defendant, a creditor of one L., drew an order in favor of the plaintiffs on L.,but which was never presented for acceptance by the plaintiffs, who had lent the defendant money for which they sue ; it was held that a promise by the plaintiffs, who (e) Strohecker z'. Cohen, 1 Spear, 353. named, and valid, notwithstanding the (/) Ardern i\ Rowney, 5 Esp. 255, Statute of Frauds ; and it being sliown where one A. drew a cliecls for £100 in that Rowney only owed A. really £80, his own favor on Rowney, the defend- the verdict for the plaintiff was reduced ant, and asked Ardern, the plaintiff, to to that amount. See, also, Jones i;. discount it. Ardern sent to Rowney, Ellis, 4 Luz. Reg. 276, C. P. Luz. Co., who said that he would pay it, as he Penna. owed A. £200, and, when his attention (,g) Neal o. Bellamy, 73 No. Car. was called to the fact that the check 389. was post-dated and invalid, he said (//) Clark v. Hall, 6 Halst. 84. that it still should be paid. Lord (i) Sorrell i-. Jackson, 30 Ga. 901 EUenborough regarded this promise as (^semble). a specific appropriation of a sum 84 CHAP. III.] GUARANTIES. [§ 61. held gqpds of L. to pay the defendant his debt to him out of the surplus which might remain in the sale of the goods over their, the plaintiffs', advancement to L., is semble a guaranty within the Statute of Frauds, and is without consideration ; L. was never discharged. (_;') "Where one C. promised by a sealed writing to make a certain payment to the plaintiff's assignor in notes of the defendant, and gave a written order to the defendant to deliver the notes to B., the defendant is not liable (under the guaranty clause), unless he executes a sufficient writing. It did not appear that he was indebted to C. or to the defendant, or until he had executed an acceptance of C.'s, that he was in any way bound; the paper he signed was a memorandum insufficient under the Statute of Frauds? because not stating a consideration (k) The doctrine that an oral acceptance is good does not extend to such an acceptance on accommodation of a bank check. (^) § 61. 'Now by statute the acceptance of a bill of exchange must, in England and in many of the United States, be in writing.(m,) A promise by a widow to pay a acce|)tance bill accepted by her husband and herself cannot, gj^"^^'^''^ however, be proved by oral evidence under the Scotch ]aw.(K) An oral agreement to take a draft on himself as payment is invalid under a statute enacting that no person shall be charged as acceptor, unless his acceptance be in writing.(o) The acceptance may in New York be either by cipher or written charaeter3.(p) Retaining a bill of exchange is not negotiating it within the meaning of the exception to the (j) Chilcote V. Kile, 47 111. 89. N. Y.) ; 1 R. S. 768, § 6 ; Loonie v. (k) Wilson V. Roberts, 5 Bosw. 108. Hogan, 5 Seld. 441 ; Bank of Low- (Z) Morse v. Mass. Bank, 1 Holmes, ville v. Edwards, 11 How. Pr. 216 ; 217. Blakiston c. Dudley, 5 Duer, 377 ; (m) Chalie v. Belshaw, 6 Bingh. Rousoli v. Duff, 35 Mo. 314. 529; land2Geo. IV.,c. 78; Walkeri'. (n) Walker v. Home, Court Sess. McKinley, Court of Sess. 6 R. 1132 Cas. 6 S. 205; see Hay v. Boyd, 3 (Scotch), S. C. inDom. Proc. sub. nom., Mur. (Sc.) 19. Steele v. McKinlay, 5 App. Cas. 754; (o) Elliott v. Miller, 8 Mich. 135. 19 and 20 Vict., u. 60, § 11 ; 41 Vict., (p) Oneida Bank v. Hurlbut, 1 Am. u. 13, § 1 ; Oneida Bank v. Hurlbut, Law Reg. 221 (S. C. N. Y.) ; see oliap- 1 American Law Register, 221 (S. C. ters on the memorandum. 85 § 62.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. 'Hew York statute.(^) An acceptance written and signed by the defendant, and then telegraphed and delivered to the plaintiff, is sufficient under the JSTew York 8tatute.(r) An- oral acceptance, under a proviso in the statute requiring written acceptance, is good when the bill has been negotiated on the faith of the promise. (s) In California, by statute, acceptance of a bill must be in writing, but such an invalid bill may be good as an assignment of the claim held by the drawer of the bill.(<) In a late Missouri case it was said " that the only point of objection to the judgment is, that the order given the defendant by a creditor of the plaintift", not having been accepted in writing by the plaintifl", was not binding, but it appeared in this case that all three of the parties, plaintiff, defendant, and the plaintiff's creditor, met together, and that it was agreed between them that the plaintiff could pay to defendant the debt he owed to the third person, who was a debtor of defendant to the same amount. Such an agreement, though verbal, is not within the Statute of Frauds. The order in this case was not the foundation of the action, but merely admitted to show the exact amount assumed by the plaintiff.(?z) § 62. A promise to accept is also not within the Statute of !Frauds.(?;) So it has been said that a promise to accept, dif- (q) Blakiston v. Dudley, 5 Duer, stranger must add words of acceptance; 377. Steele y. McKinlay, supra, n. (m.), (r) Molson's Bank r. Howard, 40 doubting Matthews v. Bloxsome, 33 L. N. Y. Super. 20 ; see as to sufficient J. Q. B. 209. Under 41 "Vict. e. 13, the acceptance, Bank of Mich. u. Ely, 17 rule is now otherwise. See Vall^ r. Wend. 511. Writing one's name across Cerre, 36 Mo. 590, as to the Missouri the bill is sufficient acceptance ; Spear statutes. V. Pratt, 2 Hill, 582. Where the (s) Flato v. Mulhall, 72 Mo. 523; drawee of a bill of exchange on pre- see Mo. Stat., § 537. sentation made a small payment, and (t) Wlieatley v. Strobe, 12 Cal. 97. wrote a receipt therefor on the bill, (t() Wright v. McCully, 67 Mo. 134, which receipt the payee of the bill citing Black v. Paul, 10 Mo. 104 ; see signed, it was held not to satisfy a Curie u. St. Louis Ins. Co., 12 Mo. statute requiring acceptance to be in 580, § 59. writing signed by the acceptor; Bas- (n) Spaulding y. Andrews, 48 Pa. St. sett u. Haines, 9 Cal. 261. Under 19 412 ; Strohecker v. Cohen, 1 Spear, and 20 Vict. c. 60, a drawee could accept 353; Light v. Powers, 13 Kan. 98; by merely writing his name, but a Kohn v. Nat. Bank, 15 Kan. 434. 86 CHAP. III.J GUARANTIES. [§ 62. fering from a promise to endorse, is not within the Statute of Frauds, because the acceptor is quoad, the funds in his hands, the principal debtor, and the bill is a accept^* '" mere transfer of such funds; in promising to accept the drawee engages to put himself in a position where he will be obliged to pay his own debt.(M)) An oral promise to accept a bill is an engagement rather to pay the defendant's debt due the drawer than to pay the drawer's debt to the plaintiff'; since the acceptor is supposed to hold funds.(a;) An agreement by which the guarantor undertakes to accept a bill drawn for goods supplied to the party answered for is original, and not within the Statute of Frauds.(2/) A promise to ac- cept in some English cases has been treated as equivalent to an acceptance ;(2) at least as to an existing bill ;(a) or even, it is said, to a non-existing bill. (6) But the English rule was otherwise as to this last :(c) where the plaintiff rendered one B. a bill, and B. wrote on the bill a request to the defendant to pay it ; it was held that this was a bill of exchange, and the defendant's oral promise to pay it was a good guaranty.(<;?) Where the plaintift", upon promise of reimbursement by the defendant, cashed orders which the latter had promised to pay, the Statute of Frauds does not apply.(e) The vendee of land is liable on an order drawn on him for the price by the vendor; the promise to accept would here seem to be im- plied. (/) The following are examples of oral promises to accept held invalid : Thus, where one G-. ordered goods of the plaintiff, who agreed to let him have them upon the defendant's agreeing to accept a bill drawn on him by G., the Statute of (w) Carville u. Crane, 5 Hill, 484 ; (c) Johnson ». Collings, 1 East, 103 ; see Pike ti. Irwin, 1 Sandf. 15. and seePlummer v. Lyman, 49 Me. 232. (:i;) Fisher v. Beokwith, 19 Vt. 34. (rf) Shields ^. Middleton, 2 Cranch (y) Taylor v. Hilary, 1 C. M. & E. C. C. 205. 742. (e) Comstook a. Norton, 36 Mich. {z) Clarke v. Cock, 4 East, 71. 279. The drawer of the order was a (a) Hatcher u. Stalworth, 25 Miss, contractor employed by the defendant, 376 ; Jones v. Council Bluffs Bank, 34 and the drawees were the contractor's 111. 319. employes. (5) Nelson v. Nat. Bank of Chicago, (/) Lucas v. Payne, 7 Cal. 96. 48 Ills. 40, citing cases ; and see Stro- heoker v. Cohen, 1 Spear, 353. 87 § 63.] LAW OF THE STATUTE OF FRAUDS. [OHAP. III. Frauds applied. (^) Where the plaintiff had a lien on a vessel, and the defendant, holding it as security for another claim, agreed to accept an order in favor of the plaintiff drawn by S., the person who was building the ship, and who was the defendant's debtor, the Statute of Frauds applied, the plaintiff not having released his lien nor his claim against S.(A.) Where the defendant had employed the plaintiff to transport goods of B., and promised to pay any order B. might draw on him for the cost of transportation, the Statute of Frauds was held to apply. (e) A promise by the drawee of a bill to pa}' it is not sufficient as an acceptance under the law of New York, and is a guaranty within the Statute of Frauds.(J) A parol promise to accept ca.nnot, semble, he treated as an actual accep- tance, so as to make it valid in absence of proof of considera- tion. (A) It was thought that, though, previous to the Revised Statutes, an oral acceptance was valid, the rule was other- wise where the bill had not as yet been drawn. (^) A written promise to accept a bill, whereby the bill was taken, binds as an acceptance.(m) But an oral promise to accept a bill of exchange is not an actual acceptance.(?i) The party primarily liable on a bill is the acceptor, and a promise by one of several drawers to answer to the acceptor for the other drawer is a guaranty within the Statute of Frauds. (o) § 63. This really comes within the rule that a promise to endorse as distinguished from a promise to accept is rnZ-le!*° within the Statute of Frauds.(f») A verbal promise (ffj Williams u. Caldwell, 4 Rich., (m) Coolidge v. Payson, 2 Wheat. N. S. 104 ; see Benson v. Walker, 5 70, citing cases. Har. (Del.) 115 ; Cohrell. „. Hatfield, («) Bank of Ireland u. Archer, 11 Stev. N. B. Dig. 691. M. & W. 383. {It) Plummer v. Lyman, 49 Me. 232. (o) Suydam v. Westfall, 4 Hill (N. ({) Wakefield o. Greenhood, 29 Cal. Y.),217; see Phimmer i'. Lyman, 49 599. Me. 229 ; see Mallett v. Bateman, L. (j) Matteson «. Moulton, 79 N. Y. R., 1 C. P. 170; 16 C. B. N. S. 543; 628 ; see Watson v. Gray, 4 Keyes, 10 L. T. N. S. 869 ; 10 Jur. N. S. 865. 395. (p) Smith u. Easton, 54 Md. 138; (k) Strohecker v. Cohen, 1 Spear, Willis v. Shinn, 42 N. J. 139 ; see Drake 353. ^. Markle, 21 Ind. 435 ; Taylor v. Drake, (I) Ontario Bank v. Worthington, 12 4 Strob. (Law), 436 ; Macdonald v. The Wend. 593 ; see, also, in Alabama, Bank, Sess. Cas. 2 M. 976 ; approved Kennedy v. Geddes, 8 Porter, 266. in Steele v. MoKinlay, § 61, n. (m) ; 88 CHAP. III.J GUARANTIES. [§ 63. for a valuable consideration by the payee of a note, to give an extension of time to one maker, must be in writing.(g') It has, however, been held that a promise to endorse a new- note, by one liable on a previous one to the same party, is not within the Statute of Fraud8.(r) It has been said that the endorsement of a note is not a guaranty in the sense of the Statute of Frauds, but is a new contract between the endorser and the endorsee.(s) So an endorsement as follows on a pro- missory note, " I guarantee the payment of the within note," is an endorsement, and not a guaranty, or a collateral pro- mi8e.(<) But the opposite rule is probably the sounder.(M) Where the promise was by one, liable as endorser of the note of A., to pay the holders of that note a certain proportion of the loss they might suffer as the holders of other notes of A., if they would forbear to sue him, it was said that the Statute of Frauds did not -apply ; but the plaintiff could not recover, because no consideration — as that the maker of the first note was insolvent, etc.: — was shown. (?;) In a New York case it was held that evidence to alter the legal liability of the en- dorsers of a note may be admissible, notwithstanding the Statute of Frauds, where the legal character of the contract remained the same, although promissory notes given for the accommodation of the maker were used as collateral security for a credit given the maker, and the endorsers thereby be- came sureties. (iz;) Where the plaintiffs, the persons to whom a guaranty was given, took a bill and endorsed it to the guarantor, the defendant, who endorsed it to the plaintiffs, there was admitted, in order to show a liability on the part of the former towards the latter, evidence of the oral guaranty, to sustain the suit, which would otherwise, under the rule Rayne v. Terrell, 33 La. Ann. 815; considering and distinguishing Carville Nelson v. Richardson, 4 Sneed, 311 ; v. Crane, fiallager v. Brunei. Potter V. Brown, 35 Mich. 279 ; Lines (s) Spann v. Baltzell, 1 Flor. 313. V. Smith, 4 Flor. 47. See Chitt. on (() Walker w. O'Eeilly, 7 U. C. L. J., Bills, 83, n. (o). See § 34. 0. S., 300, County Court, Frontinac. (j) Benedict v. Cox, 52 Vt. 250 ; Gen. (u) Mizner v. Spier, 96 Pa. St. 533. Stat. Vt. c. 66, § 4; see German Vet. (u) Myers v. Morse, 15 .Johns. 425. Soc. V. Finzer, 1 Kent. Law Rep. 57. (w) Zellweger i>. Caffe, 5 Duer, 91. (r) Westcott v. Keeler, 4 Bosw. 572, 89 §64.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. against circuity of action, have been unsu8tainable.(a;) "Where under an oral agreement that the defendant should become surety for his son, the plaintiff drew a bill on the son payable to the defendant's order, and the latter endorsed it, and so endorsed delivered it to the plaintiff, the latter may recover, because the writing shows the agreement contended for as having been orally made ; and the ordinary rule that the drawer of a bill cannot sue an endorser does not apply here, because that rule is directed against the circuity of action which would arise, if the endorser having paid could at once turn round and sue the drawer; but here the endorser could not have sued the drawer.(y) § 64. The plain implication of all that has been said above in discussing the consideration of a guaranty, is that the fact that the guaranty has a consideration does not take it out of the Statute of Frauds. It now becomes necessary to take up this point explicitly, because it has been held on high authority that the existence of a new consideration moving between the parties may take an oral guaranty out of the Statute of Frauds. It may be said, therefore, that the mere fact that a guaranty has a consideration, without which, even at common law it would have no validity, does not make the Statute of Frauds to cease to apply ; an enactment prohibiting oral proof of a contract invalid per se would have been irrational. (2:) This The fact of a considera- tion will not take guaranty out of the Statute of Frauds. (t) Wilkinson v. Unwin, 46 L. T. 123; Bagallay, J., dubit. (j) Holmes v. Durkee, 1 Cab. & Ell. 24, citing Steele v. McKinlay, 5 App. Cas., as a case of an endorsement made by one who had no right to endorse, not being the acceptor of the bill. See note considering this and other cases, and saying that under all the cases the bill or note should create a liability regular under the law merchant, and that this liability appearing from the paper should agree with that assumed by the guarantor, and with that which is the ground of the suit. See Mac- donald v. Whitfield, 49 L. T. N. S. 90 446 (Priy. Coun.), digested in the ap- pendix, infra. (2) Fennell v. Mulcahy, 8 Ir. L. R. 434; Kite v. Wells, 17 111. 90 ; Smith V. Stevens, 3 lud. 332 ; Mundy (Adm. Terry.) v. Ross, 3 Green, N. J. 468; Bumford i\ Purcell, 4 G. Green (la.), 489 ; Waggoner u. Bells, 4 Mon. 9 ; Simpson v. Patten, 4 Johns. 422; State Bank v. Mettler, 2 Bosw. 396 ; Belknap D.Bender, 6 Th. & Cook, 613; 4 Hun, 414; McCafferty u. Decker, 5 N. Y. Weekly Dig. 379 ; Simpson v. Nance, 1 Spear, 7 ; First National Bank v. Kinner, 1 Utah, 100 ; Cross v. Richardson, 30 Vt. 647-8-9. CHAP. III.J GUARANTIES. [§ 65. very plain doctrine is thus stated in an Illinois decision: " The promise is to answer for the debt of another, and is, there- fore, within the Statute. But it is insisted that the under- taking of Wells to procure the order, and the procuring the same, constituted a new consideration, and that upon this is based an original and independent contract. The plain answer to this position is, that the Statute requires the promise to be in writing, and the common law makes a consideration neces- sary to the legal obligation of the promise. Though the guarantor had promised in writing, a consideration would have been necessary to sustain the promise. 'So promise or agree- ment, except under seal (which imports a consideration), not founded upon a consideration good in law, can be enforced."(a) No promise is binding in law, unless founded on a considera- tion, and to hold that a consideration alone would render valid a promise to pay the debt of another, would be to hold that the promise need not be in writing in any case. (6) A written guaranty must have a consideration to be valid at common law.(c) The consideration of the debt answered for will not enure to support the guaranty.(c?) The mere fact that the consideration is a new one, and not that on which the debt answered for is founded, will not make an exception to the Statute ; the person answered for remaining liable.(e) § 65. There is, however, a very strong current of authority in favor of the view that a new, not before enioyed, , superadded, sufficient, and beneficial consideration smeration , , . , , movine to passing between the parties to the guaranty, and thepromis- moving to the guarantor, will take the ease out of ^°'^' the Statute of Fraud8.(/) The Supreme Court of the United (a) Hite v. "Wells, 17 111. 90. (e) Combs v. Harshaw, 63 No. Car. (5) Martin v. Black, 21 Ala. 729 ; 198 ; James v. Balfour, 7 Out. App. Combs V. Harshaw, 63 No. Car. 198. 461. (c) Beers v. Spooner, 9 Leigh, 156 ; (/) Carothers v, Connolly, 1 Mont. Cutler u. Everett, 33 Me. 201 ; Hay- Rep. 436 ; Townsley v. Sumrall, 2 Pet. den V. Weldon, 43 N. J. Law, 130; 182; Tompkins w. Smith, 3 Stew. & Port. Crane v. Bullock, R. M. Charlt. 319. 55 ; McKenzie v. Jackson, 4 Ala. 232, (rf) Crane v. Bullock, R. M. Charlt. citing cases ; Blount u. Hawkins, 19 319 ; Bingham v. Kimball, 17 Ind. 398; Ala. 100 ; Graves v. Shulman, 59 Ala. (though secus when the two arise out 407, citing cases ; Locke v. Humphries, of a common transaction) . 60 Ala. 120 ; Kurtz ^. Adams, 7 Eng. 91 § 65.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. States has said that " cases in which the guaranty or promise is collateral to the principal contract, but is made at the same time, and becomes an essential ground of the credit given to the principal debtor, are in general within the Statute of Frauds. Other eases arise which also fall within the Statute, where the collateral agreement is subsequent to the execution of the debt, and was not the inducement to it, on the ground that the subsisting liability was the foundation of the promise on the part of the defendant, without any other direct and separate consideration moving between the parties. "(^} This view, as will be seen hereafter, is in many cases quite unneces- sary to justify the enforcement of the oral promise, the latter being saved from the Statute for other and undisputed reasons. In a Minnesota case, for example, which really came within a principle to be discussed hereafter (§ 127) the court chose to rest the decision on the new consideration rule, and said that " while the authorities disagree as to the reason for the rule, 3'et they agree in holding that where the holder of a contract of a third person transfers it to another upon a consideration moving to himself, his guaranty hereof, made simultaneously with the transfer, and as a part of the transaction, is not a (Ark.) 177 ; Comstock v. Breed, 12 Gal. Myers v. Morse, 15 Johns. 425 ; Leonard 288 ; Thatcher v. Rockwell, 4 Col. 409 ; v. Vredenburg, 8 Johns. 37 (the lead- Brown V. Curtiss, 2 Comst. 231 ; Spann ing case) ; Farley v. Cleveland, 4 Cow. V. Baltzell, 1 Flor. 313 ; Lines v. Smith, 492 ; 9 Cow. 630 ; New York and Erie 4 Flor. 47 ; Scott v. Thomas, 1 Scamm. R. R. u. Gilchrist, 16 How. Pr. 564 ; 58 ; Drake u. Markle, 21 Ind. 435 ; Allen v. Eighmie, 14 Him, 559 ; Cook Johnson v. Knapp, 36 Iowa, 617 ; Dear- u. Moore, IS Hun, 32 ; Cooper v. Cliam- born V. Parks, 5 Greenleaf, 84 ; Griffin bers, 4 Dev. 261 ; Hedges <•■. Strong, 3 V. Derby, 5 Greenl. 476 (Dictum) ; Oreg. 18 ; Rowland v. Rorke, 4 Jones, Doyle V. White, 26 Me. 349 ; Todd v. SSg ; Arnold .,. Stedman, 45 Pa. St. Tobey, 29 Me. 222 ; Maxwell v. Haynes, 188-9 ; Hindman v. Langford, 3 Strob. 41 Me. 559 ; Elder v. Warfield, 7 Harr. 207 ; Aikin v. Cheeseborough, 1 Hill & J. 396; Brooks v. Dent, 1 Md. Ch. (So. Car.), 173; Hall u. Rodgers, 7 Dec. 526 ; Alger u. Scoville, 1 Gray, 391 ; Humph. 536; French v. Thompson, 6 Calkins v. Chandler, 36 Mich. 325; Vt. 60 (Dictum); Osborne v. Far- Nichols u. Allen, 22 Minn. 283 ; Shel- mers, etc., Co., 16 Wis. 39 ; Houghton don o. Butler, 24 Minn. 615; Allen d. «. Ely, 26 Wis. 185, citing cases ; Young Thompson, 10 N. H. 34 ; Britton v. An- v. French, 35 Wis. 116. gier, 48 N. H. 422, citing many cases ; (j) Emerson v. Slater, 22 How. (CJ. Kutzmeyer v. Ennis, 3 Dutch. 374; S.) 35. 92 CHAP. III.] GUARANTIES. [§68. promise to answer for the debt or default of another within the meaning of the Statute.(A) § 66. But as an unqualified rule this principle has New consi- deration rule doubted. Considera- tion pass- ing to the guarantor. in other cases been denied or questioned.(i) § 67. Such new consideration has been styled an important but not controlling feature.(2') As will be seen later (§ 71), a distinction has been made be- tween a consideration passing generally between the parties and one passing only to the promissor: it has been thought that the latter qualification is essential, and that Chancellor Kent was too broad in his statement when he in- cluded any new consideration passing between the parties.(J) § 68. As Leonard v. Vredeuburg is the leading case on the point now before us, it is well to give Chancellor * • 1 TT mi Leonard v, Kent s precise words. He says: " i here are, then, Vreden- three distinct classes of cases on this subject, which ^''^' require to be discriminated : 1. Cases in which the guaranty or promise is collateral to the principal contract; but is made at the same time, and becomes an essential ground of the credit given to the principal or direct debtor. liere, as we have already seen, is not nor need be any other consideration, (A) Wilson V. Hentges, 29 Minn. 103. (0 Mason v. Hall, 30 Ala. 601 ; Davis V. Banks, 45 Ga. 140 ; Eddy v. Roberts, 17 111. 505 ; Holderbaugh v. Turpin, 75 Ind. 86, citing cases ; Hassinger v. New- man, 83 Ind. 125 ; Stewart u. Camp- bell, 58 Me. 439 ; Ames v. Foster, 106 Mass. 402 ; Loomis v. Newhall, 15 Pier. 166 ; Nichols v. Allen, 22 Minn. 283 ; Garner v. Hudgins, 46 Mo. 399 ; Het- field V. Dow, 3 Dutch. 447 ; Price v. Trusdell, 28 N. J. Eq. 201 ; Brewster v. Silence, 4 Seld. 207 ; Kingsley v. Bal- come, 4 Barb. 135 ; Spicerr. Norton, 13 Barb. 645 ; Barker v. Bucklin, 2 Denio 69 ; Mallory v. Gillett, 21 N. Y. 413 Maule ^. Bucknell, 60 Pa. St. 39 Townsend v. Long, 77 Pa. St. 146 Durham v. Arledge, 1 Strob. 5 ; Ma- cey V. Childress, 2 Tenn. Oh. 442; Lemmon v. Box, 20 Tex. 332 ; Harring- ton V. Rich, 6 Vt. 673; Fullam o. Adams, 4 Am. L. Reg. N. S. 465 ; 37 Vt. 391 ; Emerick o. Sanders, 1 W^is. 101 ; Putney v. Farnham, 27 Wis. 189 ; Wyman v. Goodrich, 26 Wis. 22. [The following oases are non-com- mittal.] Macey v. Childress, 2 Tenn. Ch. (Cooper), 424 ; Blackford v. Plainfield Gaslight Co., 43 N. J. Law, 441; McCoskey v. Deming, 3 Blackf. 146; McCoy V. Williams, 6 111. 589 ; Sweat- man V. Power, 49 Miss. 26. {i' ) Holderbaugh v. Turpin, 75 Ind. 85. (y) See Leonard u. Vredenburg, 8 Johns. 37 ; and see Mallery v. Gillett, 21 N. Y. 424; see Steward o. Camp- bell, 58 Me. 441, commenting thereon. See 1 Sm. L. C. (7th Am. ed.) 515, etc. ; Smith on Contr. 102 n. (6th Am. ed.). 93 § 70.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. than that moving between the creditor and original debtor. 2. Cases in which the collateral undertaking is subsequent to the creation of the debt, and was not the inducement to it, though the subsisting liability is the ground of the promise, without any distinct and unconnected inducement. Here must be some further consideration shown, having an imme- diate respect to such liability, for the consideration for the original debt will not attach to this subsequent promise. The cases of Fish v. Hutchinson (2 Wils. 94), of Chater v. Beckett (7 Term Rep. 201), and of Wain v. Warlters, are samples of this class of cases. 3. A third class of cases, and to which I have already alluded, is when the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties. The first two classes of cases are within the Statute of Frauds, but the last is not."(^) § 69. The new consideration rule was first, perhaps, sug- gested by Lord Hardwicke.(^) In a later case it was the^new Said that if there be a new consideration moving tkm ru!™' fi"o™ the plaintiff to the defendant, though it is a promise to pay the debt of another person, it need not be in writing.(m) And in an Irish case this principle was urged by counsel and adopted by part of the court. (n) Yet it plays but a slight part in the English law of the Statute of Frauds ; such cases as in America have been often classed under it are in England considered as belonging to certain special heads, such as the " Funds" rule, etc. § 70. In the United States the principle has been stated in a ereat variety of ways, which can be best shown statements , '^ . . •; . ,. . , . . _,, . , andgenerai by Citations irom judicial opinions. Ihus it has of'^new'^^ been said that " if the promise be not reduced to considera- -vpriting, then, before it can be enforced as a valid tion rule. . contract, it must be shown that the consideration was beneficial to the promissor. The reason of this distinction (k) 8 Johns. 37 ; see Graves v. Scott, (»i) Clancy v. Piggott, 4 N. & M. 23 La. Ann. 690, affirming the rules 502 ; 2 A. & Ell. 473. laid down in Leonard v. Vredenburg. (n) Fennell v. Mulcahy, 8 Ir. L. R. . Q) Tomlinson v. Gill, Ambl. 330. 434. See opinions of Pennefather and Lefroy, BB., citing Tomlinson v. Gill. 94 CHAP. III.] GUARANTIES. [§ 70. is plain, for to enforce a promise (not reduced to writing) to pay the debt of another, when the consideration is not bene- ficial to the promissor, would be wholly to disregard the Statute of Frauds. On the other hand, if the consideration of the promise was beneficial to the promissor, and we should refuse to enforce it because it was not reduced to writing, we should allow the promissor to retain the benefit, and yet refuse to comply with his promise. This would be to enable him to commit a fraud. "(o) Speaking of a guaranty, the court, in a New Jersey case, said: " In such transaction, the simple fact that a good consideration for the assumption exists is not sufficient, but superadded to this, such considera- tion must be apparently beneficial to the party undertaking to pay the debt and assume the obligation ;" and added that, if the primary purpose of the guarantor was to serve himself, the Statute of Frauds did not apply. (p) In a Pennsylvania case, the earlier statemetjts of Kent and Chief Justice Savage were quoted with approbation as follows : " Where the promise arises out of some new consideration of benefit or harm mov- ing between the newly contracting parties, or, as expressed by Mr. Roberts (Rob. on Frauds, 232), if it spring out of any new transaction, or move to the party promising upon some fresh and substantive ground of a personal concern to himself. . . . The marginal note, to Farley v. Cleveland, expresses the deci- sion and the principle in the following clear terms : ' Where a promise to pay the debt of a third person arises out of some new consideration of benefit to the promissor or harm to the promisee, moving to the promissor either from the promisee or the original debtor, such promise is not within the Statute of Frauds, though the original del)t still subsists and remains entirely unaftected by the new agreement.' "(5) It has been (o) Martin v. Black, 21 Ala. 729. a forbearance to sue him, a release of (/)) CoweuhOTjen v. Howell, 36 N. J. some security to him or harm to his 325. creditor, or any benefit to the debtor, (g) Arnold v. Stedman, 45 Pa. St. in -which the promissor has no interest 188. See Connor v. Williams, 2 Eob- or concern, are void because within erts. 49, in which it was said that " it the Statute. But where the promise is is well settled, upon authority, that all founded upon a consideration (what- promises founded upon a consideration ever its nature), in the language of which moves to the primary debtor as Chief Justice Savage, ' moving to the 95 § 70.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. said that, where the consideration moves to the promissor, it may consist either of benefit to him or harm to the prom- isee ;(?-) but how the latter kind of consideration can move to the promissor it is not easy to see.(5) And it has been said, " by force of the Statute, an unwritten promise to pay the debt of another is inefficacious ; the new assumption consequently, if it is to have any legal obligation, must not have such an object in view as its primary purpose, but the primary pur- pose must be to promote the interest of him who takes the burthen upon himself. Hence it is that, in such transactions, a mere detriment to the promisee, the original obligation re- maining unextinguished, will not support a promise of this character. Such a consideration would be good at common law, independently of the effect of the Statute, because, be- fore the passage of the act, any legal agreement to pay the debt of another was valid, but now such an agreement must be in writing. The consequence is that agreements which will have the effect to discharge the debt of another must be founded in a motive of interest, selfish in the promissor. The distinction is between a promise the object of which is to pro- mote the interest of another, and one in which the object is to promote the interest of the party making the promise. The former is within the operation of the Statute, the latter is unaffected by it.'\t) And where the guarantor is himself to receive the benefit for which his promise is exchanged, it is not usually material whether the original debtor remains liable or not.(M) Where the promissor has for his object a party making the promise,' it is not in the case of Mallery d. Gillet, 21 N. within the Statute, and the subsisting Y. Rep. 412." liability of the primary debtor is no (r) Connor v. Williams, 2 Roberts. objection to a recovery. (Farley v. 50, citing Mallory v. Gillett and Farley Cleveland, 4 Cowen, 432, 439.) Where v. Cleveland ; see Ludwick v. Watson, the promise to pay the debt of another 3 Or. 256. arises out of some new and orginal (s) See State Bank w. Mettler, 2 consideration of benefit or harm, mov- Bosw. 397, § 71. ing between the newly contracting (() Cowenhoven c. Howell, 36 N. J. parties, it Is not within the Statute. 325. (Leonard v. Vredenburg, 8 John. 39.) (w) Calkins o. Chandler, 36 Mich. These two cases, and the principles 324, citing eases. there laid down, have been approved 96 CHAP.. III.] GUARANTIES. [§ 70. benefit accruing to himself, in which the origitial debtor has no interest, and from which the latter derives no advantage, the Statute of Frauds does not apply. (z;) It has been said that a new consideration even only that of harm to the plaintiff, if moving to the guarantor, will render oral evi- dence adraissible.(M)) It is immaterial whether the considera- tion moves to the promissor from the plaintiff or the original debtor.(a;) It is immaterial, also, to whom the promise is made, whether to the party answered for or his creditor, if the consideration moves to a promissor who has a leading purpose in making the promise.(!/) That the new considera- tion is coextensive with the promise and moved not to the original debtor but to the promissor, has been considered a reason for making an exception to the Statute of Frauds.(^) It has also been said that a "promise by a third person to pay the pre-existing debt of another, having immediate respect to and founded upon the original liability, and without a.t\y new consideration moving him to pay or answer for such debt," is a collateral undertaking, and unless in writing is within the prohibition of the statute.(a) So it has been said " that high authority might be found to sustain the doctrinf, that under no circumstances can a promise to pay the debt of another be enforced, where the original debtor is not discharged ; but that there are numerous modern cases in which such promises have been held to be enforceable. The ground upon which the cases go seems to be that there must be a consideration for the promise, personal to the promissor other or different from that which exists or passes between the debtor or creditor, of a substantial character, which of itself is a suffi- cient consideration for the promise, and which may be assumed (k) Dyer v. Gribson, 16 Wis. 560, Sanders, 1 Wis. 92, citing Farley v. distinguishing and explaining Emerick Cleveland. V. Sanders. (i/) Connor v. Williams, 2 Roberts. (w) Ludwick V. Watson, 3 Or. 256. 50, citing Mallory v. GiUett, and other (x) Mallory v. Gillett, 21 N. Y. 424 ; cases. Cailleux v. Hall, 1 E. D. Sm. 6 ; Meech (z) Hindman v. Langford, 3 Strob. V. Smith, 1 Wend. 318; McLaren v. 207. Hutchinson, 22 Cal. 190 ; Emerick v. (a) Hughes v. Lawson, 31 Ark. 614. VOL. I. — 7 97 § 70.j LAW OF THE STATUTE OF FRAUDS. [CH.AP. III. to be the real and principal inducement to its being made."(^) A most unqualified statement of the effect to be given to the receipt of a consideration is to be found in a Maryland case, in which it was said that there must be a valid promise to pay, sustained by a sufficient consideration which would be good whether it related to paying the debt of another or an equal sum of money on any other account. The defendant need not realize any benefit ; it is enough that he expected to do 80, and that a separate consideration moved to him.(c) Before taking up the various modifications which have from time to time been made to the new consideration rule, or noticing those authorities whicli deny it altogether, it may be well to instance some actual applications of it. Thus where S., whose surety the defendant was, had officially as sheriff been administering the estate of one M. W., of whcise unadministered goods the plaintiff' was administrator, and it was agreed between the plaintiff" and the defendant that if the former would allow S. a certain credit in his account for an amount overpaid, the defendant would pay the plaintiff' a certain item of costs taxable against S., which had been over- looked, the Statute of Frauds was held not to apply, because there was a new consideration beneficial to the proraissor.(c/) In an Alabama case it was said that " if the claimant had rendered himself liable to a suit for damages, for enticing away a servant, and had agreed with the phiintiff to subject his lien as landlord to tlie other's lien, note, or mortgage, in consideration of not being sued for damages, the consideration would be sufficient to support the agreement which need not have been in writing.(e) Another example of a resort to the principle now before us will be found in a late Pennsylvania case, where one Thomas, the defendant who had taken real estate "■ under and subject to a mortgage," moved to set aside a sheriff's sale of this property made under the mortgage, and it was claimed that tlie sheriff's vendee, wlio was the mort- gagee, had agreed to allow the rule to be made absolute, so as (/)) Walker v. Jones, 10 West. L. ,T. (d) Eaglaiid v. Wynn, 37 Ala. 34. 319 (Ky.). (e) Wells v. Thompson, 50 Ala. 85. (c) Thomas !•. Delphy, 33 Mil. 370. 98 CHAP. III.] GUARANTIES. [§ 70. to admit Thomas to bid for the property at a second sale, upon Tliomas agreeing to personally assume the mortgage debt; the following point was offered by the defendant, viz., that "even if the jury believe that the defendant, after the first sale by the sheriff, agreed to assume the responsibility of this mortgage, it is a promise to pay the debt of another not in writing, and, under the Statute of Frauds, the plaintiff cannot recover." This was refused because the consideration, i. e., the opportunity to buy at a second sale, moved directly to the defendant, and, on error, the ruling was held to be cor- rect.(/) Where there was a promise by a friend of the wife, that if the husband will sign certain articles of separation, he, the friend, will pay the husband for the board of the wife's children by a former marriage, and the children boarded with the plaintiff; the court thought the signing by the latter of the separation-agreement took the case out of the Statute of Frauds ; but, query, was there any one else liable for the debt, and should not the decision have gone on this ground ?(^) In another case, the defendant claimed as a set-off" a parol guaranty, made by the plaintiff' who contracted to transport the defendant's goods, that the freight should be partly paid by the plaintiff' accepting as a credit a debt which H. M. and J. T. owed the defendant; it was held that there was a new consideration moving to the plaintiff' in having employment for the boats, and that, therefore, the Statute of Frauds did not apply. (A) A promise by the director of a bank to answer for a deposit made therein at the time of a run, and to pay therefor by paying directly to the depositor a debt which he, the director, owed the bank, was held valid, though by parol, because made on a new consideration. (z) In the note will be found cases in which the "new consideration" rule was relied on, but which really came under better settled exceptions to the Statute of Frauds. (7) There is no sufficient new considera- (/) Thomas u. Wiltbank, 6 W. N. 0') Emerick u. Sanders, 1 Wis. 92 ; Cas. 479. Lyde v. Higgins, 1 Smith (English;, (g) Hughes t-. Creyon, 2 Constit. 305 ; Eexford v. Brunell, 1 N. Y. Leg. (So. Car.) 259. Obs. 398 (N. Y. C. P.) ; Beaty v. (A) Meech v. Smith, 7 Wend. 318. Grim, 18 Ind. 132 ; Tyler c. Stevens, (0 Creel v. Bell, 2 J. J. Marsh. 311. 11 Barb. 486. 99 § 71. J LAW OF THE STATUTE OF FRAUDS. [CHAP. Ill, tion where a bank which had no funds belonging to the drawer of a check promised to pay if the check was sent through the clearing house. (A) The mere discontinuance of a suit is not such a new consideration as will take a case out of the Statute, the court saying that the security must be something given up by the promisee and acquired by the promi8sor.(^) § 71. Not only, as we have seen, is the principle of the ^ ,.^ " new consideration" exception denied in a number Quanfica- . .'. tions to the of well- considered authorities (§ 66), but it has been sideration SO qualified and defined in others, that it is difficult ™''^- to say just how far it exists at all as an independent doctrine. Thus, in a late Massachusetts case, the court said that " the fact that the defendant derives benefit from the transac- tion is not alone enough to make i t an original promise, for there must always be some consideration to support a mere collateral undertaking. "(m) And that an engagement is " new," does not make it " original. "(?i) In an early Connecticut case the phrase " new consideration" was used in contradistincion to a promise to pay the original debt, and on the foot of the original con- tract. (o) Speaking of a guaranty, the court, in a decision in 2nd Bosworth said: "It is not enough to take such a verbal promise out of the Statute, that it is founded upon some con- sideration of the value received by the defendant ; for, in all cases in which the creditor is not a party to the contract, tlie consideration must consist of something beneficial to the promissor, or of damage, to which the promisee submits. I do not think there is any such established distinction as that, if the consideration consists of harm to the promisee (the one owing the debt to be paid), the agreement, to be valid, must be in writing, but need not be, if it consists of something beneficial to, and received by the promissor, no matter what (k) Morse v. Mass. Bank, 1 Holmes, 189; 24 How. Pr. 311 ; Olive v. Lewis, 213. 45 Miss. 203. (I) Tomlinsoii v. Gell, 6 A. & Ell. (n) Brown v. Weber, supra. 569. (o) Turner o. Hubbell, 2 Day, 457, (m) Davis v. Caverly, 120 Mass. distinguishing Tomliuson i;. Gill, Ambl. 415 ; see Brown v. Weber, 38 N. Y. 330, and otlier cases. 100 CHAP, in.] GUARANTIES. [g 71. such consideration may be."(p) The principle is less satisfac- torily stated, as follows, in a Missouri case, in which it was said that the "rule laid down in the Massachusetts cases seems to be this: That where the main object of the promise is a benefit accruing directly to the promissor, and which he did not before enjoy, and the promise to pay the debt of another is a mere incident, then the accidental or incidental fact that the promise includes the answering for the debt of another will not bring it within the Statute ; but where the main object is to obtain the release of the person or property of the debtor, or other forbearance or other benefit to him, then it is within the Statute-, though a new consideration moves directly to the promissor. "(g-) Another statement, more elabo- rate, but not of much more value, is given in an Illinois decision, the court, speaking of a new and original contract to answer for another's debt, said " it must be founded upon a new and independent or original consideration of benefit to the defendant or harm to the plaintiff moving to the party making the promise, either from the plaintiff or some other person ; and the debt or liability of the original debtor must not be the moving cause, or the consideration of the promise, nor the promise, incidental and collateral, to the debt or lia- bility of such original or principal debtor. "(?') In a case in 4th Barbour it was said that the eftect of the new contract must be such as to shift the actual indebtedness to the new promissor; so that, as between him and the original debtor, he must be bound to pay the debt as his own, and the original debtor become a mere surety. (s) In Vermont, the rule of Leonard v. Vredenburg has been adopted with little change, as the fol- lowing statement of the law will show: "The promise must not only be based on a valuable consideration, but it must be a consideration moving between the promissor and the prom- isee, and from which the promissor is to derive some actual or anticipated benefit, in view of which the promise is made. {p) State Bank v. Mettler, 2 Bosw. "leading purpose" rule, which will 397. be considered in a moment. (?) Walther «. Merrell, 6 Mo. App. (r) Kite i;. Wells, 17 111. 91. 376, citing cases. The Massachusetts (s) Kingsley v. Balcome, 4 Barb. 132. cases referred to are those under the 101 § 72.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. When this is the case, it becomes a new and independent contract, existincr entirely between the parties to it, and with which the original debtor has no other connection or interest, except that he may be benefitted by its performance. It is then a promise to pay the debt of another person not collate- ral to the debt, or for the benefit of that other person, but in view and in consideration of the benefit to be derived by the promissor therefrom. "(?;) In Mallory v. Gillett it was thought that if the rule of Leonard v. Vredenburg was so far modified as to require that the consideration should move to the new promissor, instead of mei'ely passing between the parties to the new contract, the principle was sound, and would cover the case of a receipt of funds.(M) § 72. The doctrine that a new consideration moving to the The"iead- pi'omissor will take the promise out of the Statute ingpnr- gf Frauds, merges insensibly in a rule presently to pose" rule; ; a .; r ./ general be Considered, namely, that where the promissor has etatement. i i- p i i , • i - a leading purpose ot personal advantage in making the promise, the latter is not a mere guaranty. The following statement in a Kentucky case seems to blend both views : the court said, " That if there be something substantial in the transaction besides the debt and the stipulations with respect to it, which is itself a suflicient consideration for the promise, and which may be assumed to be the real and principal in- ducement to its being made, then the promise being founded on some new consideration arising between the creditor and the party promising, and collateral to the original debt, may, perhaps, be i-egarded as not being a mere promise to pay the debt of another, and as not being within the interdict of the statute, although it be in terms a promise to pay the debt of another, and although its performance will discharge that debt." v) The latest and best supported of all the attempts that have been made to validate an oral guaranty on the ground of its new and independent consideration, is the one just referred to, viz., that where the promissor lias a leading (i) Cross V. Richardson, 30 Vt. 647. v. Hibbs, 13 Oh. St. 302 ; see Stewart (u) Mallory v. Gillett, 21 N. Y. 413, v. Campbell, 58 Me. 441 ; see § 67. citing Farley v. Cleveland ; see Kelsey (w) Lieber n. Levy, 3 Mete. (Ky.) 292. 102 CHAP. III.] GUARANTIES. [§ 72. pui'pose of his own to accomplish by the guaranty, the latter becomes a personal obligation of his, to which the respon- sibility for the person whose debt is guaranteed is a mere incident.(«)) This doctrine can be most fairly stated in the language of its own advocates, and from these statements it will be seen in several instances how little the application of it differs from the other undisputed exceptions to the Statute of Frauds, such as the "Funds" rule; the "discharge of the original debtor" rule, etc. But there are undoubtedly a number of cases which do not come within these latter categories, and can only be supported on the theory that the promissor under the circumstances, regarded the guaranty as his own promise in substance, and merely in form an undertaking for the third person. The decisions of the Supreme Court of Massachusetts are the most emphatic in their approval of the doctrine of the "leading purpose," and as we have seen, go to a further extent than any other court in supporting the sufficiency of a mere new consideration if it passes directly to the promissor. Thus, Chief Justice Shaw said: "The rule to be derived from the decisions seems to be this: the cases are not considered as coming within the Statute, when the party promising has for his object a benefit which he did not before enjoy, accruing immediately to himself; but where the object of the promise is to obtain the release of the person or property of the debtor, or other forbearance or benefit, it is within the Statute."(a;) The later authorities do not go as far as this, and in a deci- sion in 106th Massachusetts, the court said : " We think the authorities in the state have gone no further than to decide that a case is not within the Statute, where, upon the whole transaction, the fair inference is, that the leading object, or purpose, and the eifect of the transaction was the purcliase or acquisition by the promissor from the promisee of some pro- (ro) Turner ji. Hubbell, 2 Day, Lawison, 31 Ark. 613; Fitzgerald w. Mor- 459 (explaining Tomlinson u. Gill) ; risey, 15 N. W. Rep. 353 (S. C. Neb.) ; National Bank u, Kinner, 1 Utah, Lee c. Newman, 55 Miss. 370 ; see 102 ; Rarey v. Cornell, 2 West. L. M. § 93. 415 (Franklin Dist. Ct. Wis.); Shel- (a;) Nelson «. Boynton,3Meto.(Mass.) don u. Butler, 24 Minn. 515 ; Connor 400; in fact the promisee surrendered V. Williams, 2 Roberts. 49 ; Hughes v. a lien. 103 § 72 ] LAW OP THE STATUTE OF FRAUDS, [CUAP. III. perty, lien, or benefit which he did not before possess, but which enured to him by reason of his promise, so that the debt for which he is liable may fairly be deemed to be a debt of his own, contracted in such purchase, or acquisition. "(?/) In a Texas case, the law is thus stated : " Where the promis- sor intends not only to pay the debt of another, but his object is to subserve some purpose of his own, his promise does not lie within the Statute of Frauds, although it maybe in forma promise to pay, and its performance may incidentally discharge the liability of another. "(^) The rule has also been laid down as follows: " The distinction is between cases where the person promising has for his object a benefit accruing to himself, in which the original debtor has no interest, and from which he derives no advantage, and when his primary and leading object is to become surety for the debt of another, without benefit to himself, but for the exclusive advantage of the other parties to the contract. The former is regarded as an undertaking by the promissor to answer upon his own contract or to pay his own debt, being a guaranty in form merely, and not within the intent of the statute; the latter as a purely collateral agreement, and void, unless the requirements of the statute are complied with. "(a) The Supreme Court of the United States has said : " Whenever the main purpose and object of the promissor is not to answer for another, but to subserve some pecuniary or business purpose of his own, involving either a benefit to himself or damage to the other contracting party, his promise is not within the Statute, although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extin- guishing that liability. "(6) (y) Ames v. Foster, 106 Mass. 402, also, Carothers i'. Connolly, 1 Montana, citing cases. Hee Draper v. Putnam, 7 436 (the case of a surrender of a lien). Allen, 174; Jepherson v. Hunt, 2 id, (a) Dyer v. Gibson, 16 Wis. 560. 421; Connor „. Williams, 20 Roberts. (6) Emerson v. Slater, 22 How. 35, 50 ; see, also, Arnold v. Stedman, 45 citing several cases, and giving the Pa. St. 188. facts as follows : — (z) McCreary v. Van Hook, 35 Tex. " By the terms of the instrument, the 639, citing cases. See Mills v. Brown, plaintiff covenanted and agreed with 11 la. 317, to the same effect, dee, the defendant in consideration of the 104 CHAP. III.] GUARANTIES. [§73. § 73. "Where a note was given for certain work done upon the shop of one A., and the defendant had an in- Examples terest in the latter's business, thoutrh it did not of the . leading appear what that interest was, or whether it couul purpose have been made liable for the work in question, the District Court of Philadelphia held, that a guaranty of A.'s note given in consideration of a forbearance of suit thereupon, was not within the Statute of Frauds, Hare, J., saying : " The weight of authority would seem to be, that when a promise to be answerable for the debt of another is based not only upon a new consideration, but upon a consideration which moves to and benefits the promissor by inducing delay in the institu- agreements of the latter therein con- tained, and of one dollar to him paid, that he, the plaintitf, would complete all the bridge work to be done by him for the Boston and New York Central Rail- road Company, ready for laying down the rails for one track, by the first day of December next after the date of the contract. In consideration whereof the defendant agreed that he would pay the plaintiff, within two days from the date of the agreement, the sum of forty- four hundred dollars in cash ; and also give to the plaintiff, on the completion of the bridges, and when the rails for one track were laid from Dedham to the foot of Summer Street, in Boston, his, the defendant's, five notes for two thousand dollars each, dated when given as provided, and made payable to the plaintiff or order in six months from their date. Another stipulation of the agreement was that the notes, when paid, were to be applied towards the indebtedness of the railroad com- pany to the plaintiff, and that the agreement was in no way to affect any contract of the plaintiff with the rail- road, or any action then pending be- tween them. " On its face it purports to be a con- tract between the parties for their own benefit ; one agreeing to do certain work and furnish certain materials, and the other agreeing to pay therefor a stipu- lated compensation. Their promises are miitual, and in one respect depend- ent. In consideration that the plain- tiff engaged to do the work and furnish the materials by a given day, the de- fendant on his part agreed among other things when the work was completed to give the plaintiff the five notes therein described. Reference was made to the contract of the plaintiff with the rail- road company in the first instance as descriptive of the work to be done, and of the materials to be furnished ; and in the second instance doubtless for the reason that as a part of the trans- action the company had placed, or agreed to place, securities in the hands of the defendant to indemnify him for the liability he thereby assumed to the plaintiff. Part of these securities were delivered over to the defendant at the time, and the residue as soon there- after as the conveyances could con- veniently be made. But when we con- sider the attending circumstances, the presumption is much stronger that the arrangement was one mainly, if not entirely, for the individual benefit of the defendant." 105 § 73.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. tion of proceedings, that might otherwise sweep away his property, or break up a business in which he is interested, the obligation is in fact his own debt, notwithstanding its form, and consequently not within the Statute of Frauds."(c) The following also are examples of the "leading purpose" rule: "Where a landowner promised an occupier of land in the parish to indemnify him for resisting a vicar's suit for tithes, the Statute of Frauds was held not to apidy, as the promissor wished the question of the tithes to be settled ; there was, it is true, another ground for the decision, and an irrefragable one — viz., that there was no one else liable to the promisee for the costs and expenses of the suit, and therefore the defen- dant's promise was collateral to nothing.(^) Thus, where the defendant, the first endorser of a note (the protest of which was informal and invalid, thereby discharging the party so endorsing), promised the plaintiff, a bank, whose rule it was to refuse credit to any person whose paper held by them was protested, that if they would not enforce this rule, but give him credit in other transactions, he would waive the infor- mality of the protest, and pay the note, it was held that the promise was original, and not a guarant}- within the Statute of Frauds, the court taking the view that though his liability had been discharged, yet he continued to be obnoxious to the rule of the bank, in that he was on paper which he refused to honor, and in consideration of being relieved of this he en- gaged to pay the debt which he had formerly contracted. (e) So the Statute of Frauds has been held not to apply where the object of the promise was to get hold of funds which should be security to the promissors as to a liability under- taken by them for the person answered for.(/) The common (c) Hopkinsont). Davis, 5 Phila. 147, on the latter, and the defendant held citing cases. on it a third mortgage, it was agreed (d) Adams v. Dansey, 6 Bingh. 506. that the loan should be transferred to (e) Uhler v. Farmers' Nat. Bank, 64 the defendant, who wanted the money Pa. St. 40ft, distinguishing Maule v. in order to buy in the property under Buoknell ; see U.S. Bank v. Southard, a foreclosure sale made upon a prior 2 Harr. (N. .J.) 474. encumbrance, and that the defendant (/) State Bank c. Mettler, 2 Bosw. should pay the expenses of raising the 397. Thus, where one S. owned land, loan, the examination into the title, and had negotiated a loan to be secured etc. The defendant afterwards bought 106 CHAP. III.] GUARANTIES. [§ 73. instance of a " leading purpose," is tiie inducement to give the guaranty which comes from a desire to obtain possession of property, either real or personal, to which the promissor has strictly no claim, but which it is his interest to hold. Thus, where one McG-., a broker, who received money from the defendant to be invested in bonds, and who also owed money to the plaintift", gave the latter a check post dated, and told him that he would secure him by deposit of bonds ; these bonds, which were transferable by delivery, and which he de- posited, were bought with the defendant's money, but had not been delivered, being only marked with the defendant's initials in pencil; McG. told the latter of this transaction, and he proposed if McG. would give him an order to get the bonds from the bank, he would pay over-drafts of McG. due the bank, and also the plaintitf's check ; he paid the bank's debt and got the bonds, but refused to pay the plaintiff. The "leading purpose" was made the reason of a decision hold- ing the oral promise valid. (^) A promise to answer for the amount of checks drawn by G. S. & Co., in consideration of the promissor's contract with G. S. & Co. being completed by means of the amount thus obtained, is not within the Statute of Frauds. (/i) And where the defendant, in order to get his house speedily finished, promised to pay the plaintiff, a plas- terer, the latter having received no pay from the defendant's contractor, the Statute of Frauds was held not to apply. (Z) ill the land, but refused to pay the infra. The following not altogether plaintiffs their bill for services, etc., satisfactory ruling can be, perhaps, incurred in getting the loan for S. ; it better supported on the " leading pur- was held that the Statute of Frauds pose" principle than any other : The was no defence ; Benedict v. Dunning, defendant was informed by the plaintiff 1 Daly, 242. that he, the latter, would no longer {g) Small o. Schaefer, 24 Md. 156 ; trust one R., then in debt to him ; and the desire to obtain a person's services the defendant told him to furnish R. may be a sufficient object ; Goolsby v. with goods ; that R. was working with Bush, 53 Ga. 355. or for him, the defendant, and that he, (A) Lefevre o. Farmers' Bank of the latter, would pay for the goods if Shippensburg, 2 W. N. Cas. 174; see R. did not ; thereupon the plaintiff sold this case below, 29 Leg. Int. 276. to R. ; the Statute of Frauds was held (i) Clifford c/. Luhring, 69 111. 401, not to apply ; Hartley u. Varner, 88 distinguishing Hite v. Wells ; but see 111. 562, citing Williams v. Corbet, 107 § 73.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. Where the defendant's promise to pay the deht due to the plaintiffs by a certain third person, in order to obtain posses- sion of security, such as a ship, to cover their own claim against the third person, the Statute of Frauds does not apply.(J) Where the plaintiff — who having under a judgment against D., levied on, sold, and bought in hay, etc., on a farm, of which D. was the tenant and defendant the owner — agreed not to remove the hay if the defendant would pay the judgment, the Statute of Frauds does not apply.(^) A promise to pay the expenses of a suit to test the liability of one who was on a note assigned by the defendant to the plaintiff", is not within the Statute of Frauds, as the defendant's object was to get his note paid, and this the plaintiff', by his suit, undertook to attempt ; but the case also comes better(^) within another head, viz., that a guar- anty of a claim assigned in payment is not within the Statute (see § 114). And so often does it happen that there exists some reason for taking a given contract out of the Statute of Frauds other than the fact of a new consideration or a leading pur- pose that all cases cited for these theories should be closely looked at. Under another head will be discussed the question of how far a guaranty in consideration of a lien surrendered by the promisee to the promissor is taken out of the Statute of Hughes u. Atkins ; this case is criticized 71111.288. So where the decl.iration as being one of plain guaranty in 11 stated that I. A. had made a bill of Chic. Leg. News, 196. sale of goods to the plaintiff (whether (7) Connor i;. Williams, 2 Roberts, absolutelyor byway of mortgagedidnot 50. Where the owner of a vessel, which clearly appear), and the plaintiff being was to carry certain goods for the de- about to sell the goods, the defendant fendant, gave the plaintiff — who there- promised, if he would forbear, to pay upon became surety in an attachment I. A.'s debt; it was held that under against the vessel — an order on the de- the declaration and the imperfect evi- fendant for the amount of freight to be dence in the case, the court would not earned, and the defendant agreed to say that the case was one within the satisfy the claim which was the ground Statute of Frauds ; in this instance of the attachment, and the vessel was there seems to have been what is more released, the goods carried, and the definite than a mere leading purpose, freight earned, the defendant was lia- i. e., the surrender of a lien ; Barrell ble, notwithstanding the Statute of u. Trussell, 4 Taunt. 120. Frauds ; Doane v. Newman, 10 Mo. 69. (0 Brantley v. Carter, 26 Missi. 285 ; (k) Cooper ... Wait, 8 N. Y. W. Dig. see Whitesell v. Heiney, 58 Ind, 112. 367 (S. C, N. Y.) ; see Scott v. White, 108 CHAP. III.] GUARANTIES. [§ 74. Frauds, and there will there be found instances where the bene- fit which was relinquished by the promisee and obtained by the pi'omissor, while not strictly a lien, was a tangible advan- tage of some sort. These latter instances might come, perhaps, within the "leading purpose" rule also. Thus, where there was a claim upon which an attachment against certain logs had been issued, and the defendant agreed to pay this in con- sideration of a release of the attachment, it was held that the Statute of Frauds did not apply, because the original debtor had taken no part in the arrangement, and because the defen- dant, who was desirous of buying the goods, had in view the removal of the plaintiff's competition, and wanted the goods completed, which could not be done while the levy held.(?i) The strongest case of this class was as follows: The plaintiff had a claim against H. & D., which he was about to secure by an attachment of their property, when the defendant, who had against H. & D. a larger claim than the plaintiff, promised that if the plaintiff would not attach and make costs, he, the defendant, would pay to the plaintiff the debt of H. & D. The plaintiff forbore, and assisted the defendant in securing the latter's debt by an attachment. The court, per Redfield, J., comparing this case to that of the surrender of a lien, held it a new contract, the interest of which was chiefly to the defen- dant, and though H. & D. remained liable to the plaintiff, the defendant's promise was an original one, and not within the Statute of Frauds; the point being made that the original debtor was not interested in the new arrangement. It is to be noted that the defendant's engagement seems to have been absolute in form, yet as there can be no doubt that if the plain- tiff' had got the amount from H. & D. the defendant would have been discharged, the latter substantially answering for H. & D.'s failure to pay.(o) § 74. The "leading purpose" rule has not met with uni- versal approval, and the cases where it has been applied may, in the greater number of instances, be purpose shown to come within other exceptions to the Sta- tkined^"^ tute of Frauds.(p) There is, moreover, a plain con- (n) Cross V. Richardson, 30 Vt. 647. (p) Throop on Verb. Agr.; Browne (o) Lampson v. Hobart, 28 Vt. 697. on S. of F. ; Law Mag. and Rev. vol. 109 § 74.J LAW OF THE STATUTE OF FRAUDS. [CHAP. III. flict on the point, and decisions are to be found which cannot be reconciled with such rulings as that, for example, of Lamp- son V. Hobart, just cited. Thus, where a plaintiff was en2:aged in bu^'ing wool with one W., on the latter's account, and pending this, the plaintiff let W. have on a certain draft |900 ; the draft turned out a forgery, and W. absconded ; the defendants were employed by the plaintiff', W., to buy wool for the latter; part of the $900 was used to pay for the wool, and for the rest of the wool bought by the defendants, they , the latter, were liable ; the wool remained in their possession, and it was agreed between them and the plaintiff" that the latter should not attach the wool, and that both should act together in securing themselves out of the wool for what they had paid out and for what they were liable ; the defendants thereupon verbally promised to pay the plaintiff' so much of the amount of the $900 lent by the plaintiff' to W., as had been spent upon the wool. It was held that W.'s liability subsisting, the Statute of Frauds applied. (9) So where the defendant retained the plaintiff" as his counsel, and in con- sideration that be would so act, promised to pay a debt due him, the plaintiff", by the defendant's brother; the latter's liability' continuing the Statute was held by the court to apply in this case.(r) In a Maine decision it was said that the fact that the defendant promised to pay the plaintiff for materials required in a building erected by the person answered for, xxxii. 3d series, 96, see Lang v. Henry, Rarey v. Cornell, 2 West. L. Monthly 54 N. H. 59, a non-committal case; (Wis. Franklin Distr. Court), see Wilson r. Hentges, 29 Minn. 103. (q) Waldo v. SimonsoTi, 18 Mich. 345. In Maule v. Bucknell, 50 Pa. St. 50, (r) Fullamii. Adams, 37 Vt. 391; the speaking of the "Funds" rule, the courtdiscussingthelawofguarantywitli court said that "except in such oases, great elaboration, thought apparently and others perhaps of a kindred na- that the " Funds" exception included ture, in which the contract shows an all the sound cases. So a promise hy intention of the parties that the new a mother to pay her son's debt if the promissor shall become the principal attorney who was collecting it would debtor, and the old debtor become but act as her counsel and get her ap- secondarily liable, the rule," etc., is pointed administratrix of her son, was that while the old debt remains the a guaranty within the Statute of promise is within the Statute. See Na- Frauds. She had paid the lawyer tional Bank v. Kinner, 1 Utah, 102 ; separately for his service. Marton < . Black, 21 Ala. 729. 110 CHAP. III.] GUARANTIES. [§ 74. because he, the defendant, wanted to sell goods to such third person, was no reason why the Statute of Frauds should not apply. (s) Where a tenant assigned his lease, the assignee promised the landlord that if he would assent to the assign- ment, he, the assignee, would pay the assignor's arrears, it was held that the Statute of Frauds applied.(<) Where one had sold a boat, for the repairs of which suit had been brought, and had no property therein, but in his promise to pay for the repairs he had stated that he wanted the boat finished as soon as possible, tlie Statute of Frauds was held to apply. (m) There is an important category of eases to be treated of presently which are quite inconsistent with the " leading purpose" rule; those namely where the Statute of Frauds has been held to be a good defence to the owner of land, who, in order to procure completion of a building to be put thereon, has prom- ised to pay debts due by his contractor to workmen employed in the erection of it.(?;) A parol promise to pay to the plain- tiff the board bills of certain third persons, in consideration that they should work for the defendant, is within the Sta- tute of Frauds. (w) Where the plaintiff was required to supply C. & Co. with articles necessary to finish a bridge ; and the defendant had made advances to C. & Co., and taken as security an assignment of their interest in the bridge, so that he was interested to have the bridge finished ; the defendant promised that if tlie plaintiff would give C. & Co. credit, and allow him, the defendant, three per cent., he would pay, in (s) Doyle v. White, 26 Me. 349. facilitate Eltien in collecting the claims Where one Edwards and one Eltien which he had been employed to col- were sued for the price of meat sold to leot. But that certainly did not give Edwards, who kept a boarding-house, Eltien such interest in the meat as to the court said "the only pretence, so make himjointpurchaser." Beerkle v. far as we can discover, for saying that Edwards, 8 N. W. Rep. 342 (S. C. la.). Eltien acquired the use of, or a bene- (t) Fowler v. MoUer, 4 Bosw. 154. fioial interest in the meat, is based (w) Larson y.Wyman, 14 Wend. 246. upon the ground that Eltien, as an (u) McDonell v. Dodge, 10 Wis. 110 ; attorney-at-law, held certain claims Payne v. Baldwin, 14 Barb. 571 ; Clay against Edwards, which he had been v. Walton, 9 Cal. 333 (in which, how- employed to collect, and it was talked ever, the "leading purpose" rule was and understood between him and the said to be sound) ; Ellison v. .Jackson plaintiffs, that the furnishing of meat Water Co., 12 Cal. 553. by tliem to Edwards, so as to enable (,w) Reynolds v. Carpenter, 3 Chand. him to run his boarding-house, would 31 ; 3 Finn. 34. Ill §74.] LAW OF THE STATUTE OF FRAUDS. [CHAP. III. cash, the debt of C. & Co. ; it was agreed that he, the defend- ant, was to get the bill of the plaintifi", as accepted by C. & Co. The Statute of Frauds was held to apply, as the promise was a mere guaranty. (x) Where W., owing the plaintiff money, agreed to work it out for him; and when the plaintiff called upon W. to work, he was working for the defendant, who promised to pay the debt and kept W., it was held that as W. was not discharged from the original debt, the defend- ant's promise was within the Statute of Frauds.(y) A promise to pay for supplies furnished a third person who boarded the promissor's laborers, is an ordinary guaranty within the Sta- tute of Frauds.(2:) Even in Massachusetts, the " leading pur- pose" rule does not apply to a guaranty in consideration of a promise not to attach property which was not subject to attachment.(a) A count that W. was indebted to the plaintiff, and that the defendant having hands at work for him, prom- ised in consideration that the plaintiff would advance to them goods on the defendant's account to pay for these goods and pay W.'s debt, and the plaintiff so advanced, shows a contract within the Statute of Frauds.(6) So where the defendant, a (x) Mallett I. Bateman, 16 C. B. N. S. 543 ; 10 Jur. N. S. 860 ; 10 L. T. N. S. 869. So where a promise was made by the defendant to the plaintiff, that if he, the plaintiff, would hasten to finish work he was doing for B., he, the defendant, would settle for what would be due on the account ; the plain- tiff, who had previously charged the goods to B., now charged them to B. & Co., meaning to include the defendant ; the Statute of Frauds was held to ap- ply ; the defendant was lending money to B. to make horse-rakes, for which the plaintiff was making castings. The defendant was to be paid all the profits till the loan was repaid, and was, therefore, interested to have the rakes finished and sold ; Eshelman o. Har- nish, 76 Pa. St. 97. Oj) Stone V. Synimes, 18 Pick. 469. (j) Cahill V. Bigelow, 18 Pick. 370. (a) Ames u. Foster, 106 Mass. 402 ; see as another example of a guaranty Hi! not within this rule, Davis v. Caverly, 120 Mass. 415. (6) Eddy v. Roberts, 17 111. 505. Where one Steele, who, with Crosby and others, were sued by the plaintiff, bought lands of C, and gave him notes therefor ; the other defendants formed with Steele a partnership, and bought from him an interest in his purchase from C. C. was debtor to the plaintiff on a note and mortgage on other land {semble, because the plaintiff might have used his claim against C, so as to create an encumbrance on the lands bought by Steele from C), that the plaintiff should cancel his claim on C, and take an assignment of Steele's notes given to C, and these notes the defendants guaranteed. The plaintiff carried out his part and took the notes guaranteed ; it was held that the Sta- tute of Frauds applied, as Steele con- tinued liable ; Crosby u. Jerolman, 37 Ind. 270. CHAP. III.] GUARANTEES. [§74. widow, promised to pay her husband's debt, and, at the same time, the plaintift" agreed to sell to her goods on credit, it was held that the Statute of Frauds applied, as the defendant had no interest to subserve by paying her husband's debt, and as her own credit was good.(c) (c) Pfeiffer v. Adler, 37 N. Y. 164. So where C. was working for the de- fendant and needed pay, D. said to a messenger whom C. sent the defendant telling him of his need : ' ' you can tell C, or any one that will supply him with hay, that I will accept C.'s note, payable in the spring." This was com- municated to the plaintilF, who sup- plied C. It was either a, contract re- lating to chattels or a guaranty Qsembte VOL. I. — 8 the latter) and was within the Statute of Frauds ; Cohrell v. Hatfield, Stev. N. E. Dig. 691. A promise by a bank president to a depositor, to guarantee the latter's deposit if he will not draw it out, is within the Statute of Frauds ; the incidental advantage to the defen- dant as officer and stockholder in the bank is too slight ; the advantage all accrued to the bank ; Walther v. Mer- rell, 6 Mo. App. 576. 113 §75.1 LAW OF THE STATUTE OF FRAUDS. [CHAP. IV. CHAPTER IV. THE PARTIES TO THE GUARANTY. III. The Parties to the Gdaranty. § 75. Del credere agency. § 76. Promise to the debtor. § 77. Examples of promise to debtor. § 78. Promise to debtor, the guarantor having funds, or being indebted to the promisee. § 79. " Promise to debtor" rule denied. § 80. The creditor cannot sue on the promise made to the debtor. § 81. Cases holding that a creditor cannot sue 'even when the guarantor has funds, and this applied where the promise was made to the debtor. § 82. The rule that the creditor can sue under these circumstances. § 83. Creditor can sue, it lias been held, though there are no funds, if the promise has been made to the debtor. § 75. The next of the principal heads of the division of the subject of guaranties, as laid out in the beginning ?*'enc'^'^^'^'^ of chapter III., is that of the parties to the contract. The first of the points relating to this branch which may be considered is that of the agreement of a del credere agent. After doubt and some contrariety of decision it is now settled that such a promise is not within the Statute of Frauds.(a) In an early case in England it was held that the del credere commission is absolute ; that to the broker the credit is given, not to the third party, and that he is liable in the first instance. (6) Lord Ellenborough, however, took a different view of the subject, and said that a del credere agent was one who was paid for giving a guaranty, but that he was still a factor and not a principal, and that the practice of look- ing only to the agent must have prevailed only in the case of a foreign principal, and that even as to him the law was the (a) See (i-all f. Comber, 7 Taunt. 558 ; IJ. B. Moore, 279, as to how far a del credere agent's promise differs from a guaranty ; see Thompson v. Per- lU kins, 3 Mason, 232 ; see, however. Law Mag. & Rev. vol. xxxii., 3d ser., 108. (b) Groves v. Dubois, 1 T. R. 115; see Bize v Dickason, 1 T. R. 285. CHAP. IV.] THE PARTIES TO THE GUARANTY. [§ 75. 8ame.(e) The del credere agent, while at first sight a mere guarantor, is not really so ; the persons answered for are not known to the employer, and the agent's liability does not arise from a specific promise in each case, but from a general status, which results from the nature of the continuing rela- tion between himself and his principal, and on the ground of which he may receive fixed pay ; he is a fiduciary, and not a promissor. The law on this point was first established in America, and then followed in the leading case in England ; the court of exchequer, speaking of the defendants, said : " Doubtless, if they had for a percentage guaranteed the debt owing, or performance of the contract by the vendee, being totally unconnected with the sale, they would not be liable without a note in writing signed by them ; but being the agents to negotiate the saile, the commission is paid in respect of that employment ; a higher reward is paid in consideration of their taking greater care in sales to their customers, and precluding all question whether the loss arose from negligence or not, and also for assuming a greater share of responsibility than ordinary agents, mainly responsibility for the solvency and performance of their contracts by their vendees. This is the main object of the reward beii^g given to them, and though it may terminate in a liability to pay the debt of another, that is not the immediate object for which the consideration is given, and the case resembles, in this respect, those of Williams V. Leper, 3 Burr. 1806, and Castling v. Aubert, 2 East, 325. We entirely adopt the reasoning of an American judge (Mr. Jus- tice Cowen), in a very able judgment on this very point in Wolff V. Koppel."(rf) Page Wood, V. C, considered this doc- trine in a case where the facts were as follows : There was a contract, by which F. & Sons sold iron as agents for the plain- tift''8 company, giving the invoice in the name of the company, and on the understanding that the buyers of the iron were (c) Morris v. Cleasby, 4 M. & S. 575, (d) Couturier v. Hastie, 8 Exch. 56 ; criticizing Lord Mansfield's and Judge 22 L. J. Exch. 97 ; see 49 Law Mag. 370. Buller's remarks in Grove o. Dubois, See opinion of Willes, J., in Mallett v. 1 T. R. 112 ; citing Houghton v. Mat- Bateman, 16 C. B., N. S., 54.3 ; L. R. 1 thews, 3 B. & Pull. 489 ; see Peele v. C. P. 170. Northoote, 7 Taunt. 478. 115 § 75.] LAW OF THE STATUTE OF FRAUDS. [CHAP. IV. debtors of the company (in the books of F. & Sons the iron sold on behalf of the company was only distinguished from other iron sold by F. & Sons themselves by being designated "Low Moor Iron," the kind produced by the company), and by which contract F. & Sons became liable for the price of the iron ; it was held to be neither a guaranty, nor a del credere engagement, but a direct and primary liability .(e) The law in America may be said to begin with Judge Cowen's decision already cited ; in that case it was held "that the engagement is one not to sell to any but solvent persons; that a del credere agent can be sued as for goods sold, though the usual way was on the special engagement, and that if a factor were to engage to sell for cash, and yet actually sold on credit, his engagement would not be within the Statute of Frauds. The debt of the third party comes in incidentally as a measure of damages. "(/) In the Massachusetts decision, cited by Judge Cowen, the con- tract was that the agents were liable for the price when sale was made, if for cash ; when the price was due, if on credit; and the vendor, if the agent is insolvent, could notify the ven- dees not to paj' the agent, but to pay him, the vendor ; this, under these circumstances, would make the agent's agreement collateral, but the rule has never been applied to a del credere agent.(^) In a decision in New York, made after "Wolff v. Kop- pel had been decided, but before its adoption in England, the court said : " The different and contrary results are produced by the diftei'ent views of the contract in the two countries. In England they understand the guaranty to be a contract to pay, if the money cannot be collected of the purchaser. Here it is understood to be a contract directly with the principal to pay him on the expiration of the time of credit, whether the purchaser be solvent or not; that is the whole contract between the factor and his principal, and is an original undertaking without any relation to the debt or liability of another. The law (not the contract of the parties) then adds (c) Wickhani c: Wickham, 2 K. & (/) Wolfif .. Koppel, 5 Hill, 458, J. 486, considering that Couturier v. questioning Morris v. Cleasby, noticing Hastie held a contract with a del ere- Gall v. Comber, and relying on Swan dere agent to be a new and primary v. Nesmith. engagement. (g) Swan v. Nesmith, 7 Pick. 223. 116 CHAP. IV.] THE PAETIES TO THE GUARANTY. [§ 75. a quality to such a transaction, that although the factor may sue the purchaser in his own name, the principal has, also, his right to sue. This, however, does not convert an express original undertaking of the factor with his principal abso- lutely to pay the debt at maturity into a collateral and con- ditional agreement to pay it if the purchaser does not. A guaranty by a factor differs very especially from a promise to pay the debt of another in another particular: the principal transfers a right, although not the exclusive right, to the factor to sue for and recover the money in his own name, and to collect the debt and hold the money, accounting only for the net balance of account between the parties. Thus, the debt of the purchaser is, to some extent, made the property of the factor, and he, to that extent, becomes the purchaser of it, and so far substitutes his liability in place of that of the pur- chaser. The effect of this generally is to make the factor practically the owner of the debt, and this is almost invariably so if he remains solvent, and on just terms with his principal. Then the principal is unknown to the purchaser. "(A) It has been said, also, that the del credere agent is not a guarantor of the remittance of the money. (/) In a Federal decision, holding a del credere engagement as an absolute promise not within the Statute of Frauds, the court, though assuming that the law of Massachusetts was the same, said that this was a question of commercial law, and that the United States court was not bound by a state decision, even that of the place where the contract was made.(j) In a late Missouri case it was said that the factor's promise arises from his own duty and responsibility, and that the liability to pay athird person's debt is a mere incident, and saying the principal case would tend to show that rule impolitic.(A) So, it has been held,- that where an auctioneer was alone trusted, a verbal warranty (h) Sherwood I/, stone, 14 N. Y. 269, 17, citing Leverick v. Meigs, 1 Cow. citing Groves a. Dubois and Bize u. 646. Dickason, 1 T. R. 285, as favoring the ij) Bradley v. Richardson, 23 Vt. rule of Wolff v. Koppel, and Morris v. 731 (U. S. D. C). Cleasby ; and Peele u. Northcote, 7 W Suman a. Inman, 6 Mo. App. Taunt. 478, as contra. 385, citing Wolff v. Koppel and other (i) Cartwright u. Greene, 47 Barb, cases, and denying Morris r. Cleasby. 117 § 75.] LAW OF THE STATUTE OF FRAUDS. [CHAP. IV. of title by him is not within the Statute of Fraud6.(;) Where the defendants were selling goods for the plaintiff on commis- sion, and were bound by their mutual arrangement to sell to none but responsible persons, and to endorse or otherwise make secure all notes taken by them from persons considered irresponsible by the plaintiff; they had taken certain notes which the plaintiff refused to receive ; then, in order to induce the plaintiff to take the notes and to credit the amount of the latter on their debt to the plaintiff', they guaranteed the notes : the Statute of Frauds was held not to apply. This really depends on another principle (see § 127), but it has some of the features of a del credere contract. (/ft) Where the plaintiff" sued for services as salesman and collector of the debts of persons to whom he made sales, and the defence was that the plaintiff was to be liable for debts not collected, it was held that the agreement in question, if the verdict of the jury had found it was made even orally, was clearly an original con- tract between the parties to the action. It was a substantial and essential fact of the consideration ; in no sense a collateral undertaking ; but, on the part of the employe, direct and inimediate, and founded upon a consideration, i. e., the em- ployment moving between the parties themselves. (n) Every commission contract is not, as we have seen, a del credere agency, thus a veriml undertaking by a broker selling on commission to guarantee all sales is a collateral undertaking, and within the Statute of Frauds. (p) So, where a commission merchant verbally guarantees the proceeds of a sale made by him, the promise is within the Statute of Frauds. (§■) Where {I) Schell u. Stephens, 50 Mo. 380, cash, or to be responsible personally- citing cases. when he sold on credit, it was held • (m) Sheldon u. Butler, 24 Minn, that the real party in interest was 0. P. 515. &Co., and that the plaintiff, under In- (n) Schwab v. Elias, 2 N. Y. Cod. diana statutes, 2R. S. 1876, §§ 3 and 4, Proc. Rep. 341. could not sue, that the verbal contract (p) Canmann o. Brunswick, 3 Mo. was semfe/c invalid under the statutes App. 586. of Indiana ; at any rate, it could not (?) Rowland u. Bull, 5 B. Mon. 149. operate to vest the right to the debt in So, where the plaintiff was a broker, the plaintiff; Smock v. Brush, 62 Ind. acting for 0. P. & Co., under an ar- 156, 176. See Nichols ii. Allen, 22 rangement by which he was to sell for Minn. 283. 118 CHAP. IV.] THE PARTIES TO THE GUARANTY. [§76. a non-professional person agrees to collect debts, and it is ver- bally stipulated that he shall get his pay out of the debtor, oral evidence is admissible under the Scotch law.(r) § 76. Another important exception to the Statute of Frauds is the case of a promise to pay another's debt, made not to the creditor, but to that other ; this engage- fh°"eb^tor. ment, both in England and America, is, with little dissent, regarded as not being a guaranty with the terms of the Statute. (s) In Kentucky the plaintiff's petition must state that the promise was made to the debtor.(i) It has been said that in order that the Statute of Frauds shall apply, there must be a debt due by the third person to the promisee. (m) Besides the authorities cited in the last note, the English case of Thomas v. Cook is always relied upon as supporting the same rule.(v) This comes rather within the rule to be dis- cussed later, viz., that where one bound, or about to be bound in an indebtedness, asks the plaintiff to share the obligation, and promises to indemnify him, it is a promise to pay the promissor's own debt; and, therefore, not within the Statute (r) Moserip v. O'Hara, Court. Sess. Cas. 4th series, vol. viii. p. 37, distin- guishing Taylor u. Forbes (see § 5) as the case of a professional person. (s) Eastwood v. Kenyon, 11 A. & E. 445 ; see Phelps v. Clasen, 3 Nat. Bank Reg. 22 ; 2 West. Jur. 224 ; Pratt ^. Humphreys, 22 Conn. 325 ; Mathers V. Carter, 7 Bradw. 226; Eddy .■. Roberts, 17 111. 505 (dictum); Wil- son u. Bevans, 58 111. 234 ; Colter v. Frese, 45 Ind. 104 ; Hardy v. Blazer, 29 Ind. 227 ; Crim v. Fitch, 53 Ind. 215 ; Kauffman u, Harstock, 31 la. 473 ; Center v. MoQuesten, 18 Kan. 479 ; Spadone v. Reed, 7 Bush, 457 ; Williams v. Rogers, 14 Bush, 781 ; North V. Robinson, 1 Duval (Ky.), 71 ; Davis ii. Wiley, 3 Kent, L. Reporter, 755; Tarr v. Northey, 17 Me. 113: Jones u. Hardesty, 10 Gill & J. 404; Colt V. Root, 17 Mass. 229 (A. D. 1821; Eastwood V. Kenyon, was only decided in 1840) ; Weld v. Nichols, 17 Pick. 538 ; Preble u. Baldwin, 6 Cush. 552 ; Alger V. Scoville, 1 Gray, 391 ; Aldrich c. Ames, 9 Gray, 76 ; Hubon v. Park, 116 Mass. 542 ; Pratt v. Bates, 40 Mich. 38 ; Goetz u. Foos, 14 Minn. 267 ; Flemm v. Whitmore, 23 Mo. 430 ; Howard v. Coshow, 33 Mo. 123; Tib- betts )-. Flanders, 18 N. H. 290 ; Fiske u. McGregory, 34 N. H. 418 ; Apgar v. Hiler, 4 Zab. 816 ; Allaire v. Ouland, 2 John. Cases, 56 ; Barker v. Bucklin, 2 Denio, 59; Doolittle o. Naylor, 2 Bosw. 224; .Mersereau v. Lewis, 25 Wend. 247 ; Westfall .,. Parsons, 16 Barb. 645 ; Hockaday u. Parker, 8 Jon. (No. Car.) 18 ; Oliphant v. Patter- son, 56 Pa. St. 368 ; Peck v. Thompson, 15 Vt. 637. (0 Davis V. Wiley, 3 Kent, L. Re- porter, 755. (u) Hargreaves u. Parsons, 13 M. & W. 570 ; see Poucher v. Treahey, 37 U.C. Q. B. 370. (v) 3 Man. & R. 448 ; 8 B. & C. 732. 119 § 76.] LAW OE THE STATUTE OF FRAUDS. [CHAP. IV. of Frauds; and the fact that a third person is to be surety jointly with the proraissor and the plaintiff, and that the indemnity covers such person's obligation also, does not make it a guaranty ; and it is important that this should be stated, because that case is sometimes cited as going on still another ground, viz., that a promise to indemnify one for becoming a surety is not within the Statute of Frauds. Now while the rule upholding the validity of an oral promise to a debtor to pay his debt is almost unquestionable; the other doctrine, holding valid an oral promise to indemnify one for becoming surety is probably, as will be seen hereafter, not good law. The distinction between these principles is best shown by a case in 13 Vesey, in which the facts were as follows: One Crosbie, ancestor of the plaintiff, negotiated for the i)urchase of a house from B., stating his intention to give it to Mrs. Carmichael, one of the defendants; at Crosbie's re- quest, and upon his promise to pay the price, Mrs. Carmichael gave a written agreement to take the property, and pay un- paid instalments of the price. Part of the price was paid at the time by Crosbie, who, after writing to Mrs. Carmichael to inquire when certain other instalments were due, paid them, but died before paying all. jNIrs. Carmichael took possession with approval of Crosbie, who gave directions at different times about the repairing of the house. The Statute was held not to apply to her claim to have the whole price paid by Crosbie's estate, since she had assumed liabilities upon Cros- bie's promise to indemnify her.[io) (w) Crosbie I.'. M'Doual, 13 Ves. 159. demuity is given becomes surety for Here it will be seen tliat Mrs. Carrai- some third person. Tlie reason why cliael had a direct promise of indemnity in tlxis latter case the Statute of Frauds from Crosbie that certain payments to applies, is that such third person be incurred by the former should be should ultimately exonerate the su- repaid by the latter ; the indemnity, it rety ; and, therefore, the indemnitor's will be noticed, was not against a lia- promise is in effect that if the third bility to be assumed as surety by Cros- person does not exonerate the surety, bie, but merely that he would reimburse he, the indemnitor, will, which en- Mrs. Carmichael as to certain obliga- gagement is of course a guaranty. A. tions to be entered into by her. The says to B., become surety for C. to D. ; word "indemnity" is not the proper C. should hold B. harmless ; and if he one to be used in any case except that does not, A. promises to do so. In the in which the person to whom the in- case of Crosbie w. M'Doual, cited above, 120 CHAP. IV.] THE PARTIES TO THE GUARANTY. [§77. § 77. The following are some examples of the rule now un- der consideration: thus Root, the defendant, on con- dition that Colt, the plaintiff, should deposit with a of the pro- certain third party a note which he held against a "ebto*""^" corporation of which Root was a member, until Root should take up a note given by Colt to one J., and with the proceeds pay the note given by H. to Colt, promised to save Colt harmless on the note to J. The note to J. was, however, sued on by J., Root not having taken it up, and execution was issued against Colt whereby the latter was subjected to costs and other damages: Parker, C. J., said the promise was that of a debtor giving money to another to pay his debt, and that other failing to do so, and held that the Statute of Frauds there was no third person bound to exonerate the plaintiff; and the prom- ise was to the debtor ; in the case of an indemnity" to one for becoming su- rety, the promise is made to the one who in the end is the creditor ; that is to say, C. becoming bound to save B. harmless, A. promises B., who ulti- mately will be the creditor to whom C. is indebted, that if C. does not pay he. A., will. Thomas v. Cook would be this last case, but that there the promise was by A., that if B. would with him. A., and with C, becomS jointly answerable for a debt due by A. and C. to D., A. would save him harmless ; this was a promise by A. to indemnify another for paying his, A.'s, debt, an engagement, as will be seen hereafter, to which the Statute of Frauds does not apply. In a case in Kentucky, closely resembling Thomas c. Cook, the Statute of Frauds was held not to apply, on both the grounds, viz., that it was a promise to answer for the promissor's own debt, and be- cause an oral promise to indemnify one for becoming surety is valid. Lucas l: Chamberlain, 8 B. Mon. 276 (the present principle does not, however, seem to apply) ; see, also, Westfall v. Parsons, 16 Barb. 684 ; where a debtor, unable to pay his note on which the defendant was payee and first endorser, and the plaintiff was second endorser, assigned his property to them, and they agreed to take up the note, and look for reimbursement to the assigned prop- erty, it was held that the defendant, though formerly, as first endorser, had been liable to ultimately reimburse the plaintiff, yet by the new agreement the original debtor became surety both to the plaintiff and defendant, and that the latter were liable, each for a half, to a holder of the note, and that the defendant's obligation to exonerate was discharged. See, also, Reader v. Kingham, 13 C. B. N. S. 352, in which it was held that the Statute of Frauds did not apply to a promise made to the plaintiff by the defendant to answer for a debt which one H. A. owned one M. H. A. did not owe the plaintiff, nor did the de- fendant owe M. ; the contract was ex- clusively, therefore, between the plain- tiff and the defendant, and M. could not sue upon it. 121 § 77.] LAW or THE STATUTE OF FRAUDS. [CHAP. IV. did not a}iply.(3:) The guaranty clause cannot be set up when the plaintift"sued on a promise to help him as to certain land which under the promise he was induced to buy: had the suit been by the vendor, the rule might have been other- wise. (?/) Where A. bought real estate and had the agreement made out in his nephew's name, which he got his nephew to sign, and paid part of the purchase-money and died, it was held that the remainder of the purchase-mone}' was to be paid by his estate, and the Statute of Frauds does not apply, on the ground that to involve the nephew in the liability of the transaction and then to leave him in the lurch would be a fraud. (2) In the leading case in New York it was decided that a promise to hold one indemnified against a subscription which he had given to a church is not within the Statute of Frauds, because the promissor is not liable to the church. (a) A promise by A. to B. to build a fence, which B. (semble) is under an obligation to A. and to the whole world to build, is not a guaranty. (6) Where the plaintift", at the defendant's request, paid a debt which the latter owed to a third party, it was held that it was immaterial that the defendant was not perhaps indebted to such third party, and the court said that "in the case at the bar the defendant made no promise to pay the debt to the persons to whom it was due, but he made a new, distinct, and independent agreement with the plaintiff that if he would advance money for a certain specific object he would repay him that sum. This is clearly an ori- ginal and not a collateral promise. It is wholly immaterial to inquire whether the plaintifit' paid at his request. It is suJEcient that it appears that the plaintifi' has expended his money at the instance of the defendant and on his promise to repay it. "(c) A promise of indemni-ty made by an attorney, on ix) Colt V. Root, 17 Mass. 235. (c) Perkins v. Littlefield, 5 Allen, {y) Hil) V. Smith, 12 Rich. 701 ; see 370. Where in an action of trover for supra, Crosbie v. McDoual. certain furniture the facts were shown (z) Skidmore v. Bradford, L. R. 8 to be as follows : that B. being in- Eq. 184. debted to Tibbetts, the defendant pro- (a) Cankey v. Hopkins, 17 Johns, posed to hand him over the furniture, 113. which he declined to take ; the plain- (6) Talmadge v. Rensselaer R. R., 13 tiff, Flanders, agreed to guarantee the Barb. 498. note, and upon payment of the note 122 CHAP. IV. THE PARTIES TO THE GUARANTY. [§79. behalf of himself and hia client, to a deputy sheriff for making a levy and execution is notvvitliin the Statute of Frauds. (c^) Where B.'s laud was sold at sheriff's sale to C, and C.'s interest by other sales became vested in the defendant : B. seeking to redeem it, the defendant induced C. to defend the title and promised him to pay a debt he, C, owed the plaintiff; C. suc- cessfully defended the title : the Statute of Frauds did not apply. (ci) A promise to accept a bill on condition that the promisee will buy it is not within the Statute of Frauds. (e) § 78. When the promissor owes the promisee money, and agrees with him to pay it by guar- debtor^h" anteeing the latter's debt to another, the principle guarantor ■= ' jr 1 having of Eastwood v. Kenyon applies all the more funds, or strongly. (/) So, where the promise is not only made to the debtor, but in consideration of funds received by the promissor, the oral guaranty is on both grounds valid. (^) § 79. There are a few cases in which the principle now under consideration seems to have been overlooked and the Statute of Frauds held to apply. Thus, t'o^d^btor" where the defendant, who held funds of a partner- ™ie ^ . denied. ship, promised one of the partners to pay a certain debt of the latter to the plaintiff, and afterwards, by direction of a majority of the other partners, he pays it to one of their number, it was held that the latter payment was proper, the being in- debted to the promisee. the furniture was to be his ; the plain- tiff did pay the note and demanded the furniture of the defendant, into whose possession it had come : it was held that the promise came under the rule of Eastwood v. Kenyon ; Tibbetts i'. Flanders, 18 N. H. 289 ; the principle of voluntary performance also applies in this case. See chap, on that subject. (c') Heidenheimer v. Johnston, 17 Alb. L. J. 114 (Ct. App. Tex.) ; see § 100. (rf) Whitesellij. Heiney, 58 Ind. 112. (e) Townsley u. Sumrall, 2 Peters (S. C), 182. (/) Holt r. DoUarhide, 61 Mo. 433 ; Gleason i. Briggs, 28 Vt. 139 ; Good- win V. Bowdeu, 54 Me. 425 ; Shaver v. Adams, 10 Ired. 14 ; Wilson v. Bevans, 58 111. 234 ; Eddy i\ Roberts, 17 111. 505 ; Connor c. Williams, 2 Roberts. 49 ; Gold v. Phillips, 10 Johns. 414 ; Amenn o. Crosby, 19 Law Reporter (Lowell), S. C. N. Y., 447; Pike v. Brown, 7 Gushing, 136 ; Alger v. Sco- ville, 1 Gray, 391 ; Ruhling v. Hackett, 1 Nev. 369. ig) Fisher v. Wilmoth, 68 Ind. 450 ; Todd V. Tobey, 29 Me. 222. 123 § 80.] LAW OF THE STATUTE OP FRAUDS. [CHAP. IV, first promise being invalid under the Statute of Frauds.(A) So it has been said that a request to one liable on a note to defend a suit thereon is not within the Statute; the plaintiff', but for the alleged promise of the defendant, would iiave paid and saved costs; but this statement was dictum, as the court held that there was at any rate no contract. (z) And m a Michigan csise an oral promise by a railway to its contractor to pay his obligations, one of which was with the plaintiff, was held to be invalid under the Statute of Frauds. (_;■) § 80. The most important question which comes up under the rule of Eastwood v. Kenyon, is whether the to/camiot creditor can sue on the promise made to the debtor sue oil the ^q answer for his debt, and there is certainly great promise ' _ . . made to conflict of authority On the point. On principle it the debtor. . „ , ^ p -n i would seem an evasion ot the btatute or l^rauds to make the validity of an oral guarant}^ depend upon the mere fact of the promise being given to the debtor on the one hand, or the creditor on the other. And while it may be true that as between the debtor and the guarantor the contract is not collateral, and the benefit thereby accruing to the creditor an accident, it ceases to be a private matter between these parties if the creditor can intervene and bring suit on the guaranty. On authority the law is probably in favor of the view that the creditor cannot sue unless, at least, the guarantor has been put in funds with which to meet the guaranty. (A) In a case in Kentucky it was said " that altiiough the general rule, as stated by Mr. Chitty in his treatise on Pleading, seems to import that a verbal promise to one to pay to another, may, under all circumstances, be enforced by an action in the name of the payee, whenever, as between the contracting parties, there is a legal obligation ; j'et we think that both authority and principle require that the plaintiff' should not be a stranger (/i) Steele c. First Nat. Bank, 60 (Ic) The common law rule forbidding 111. 2(J. suit by a stranger to the promise pre- (i) Wells V. Mann, 52 Barb. '265. vented this point from arising in Eng- ij) Bottomley u. Port Huron, etc. land. As to how far the beneficiary, R. Co., 44 Mich. 542; see Ludlow ». not a party to the promise, can sue, see Hatch, 75 III. 11 ; see, also, Kauffman Seaman r. Whitney, 24 Wend. 260 ; see u. Harstock, 31 la. 473. 18 Fed. Rep. 523, note by Dr. Wharton. 124 CHAP. IV.] THE PARTIES TO THE GUARANTY. [§ 81. to the consideration. "(^) Even in New York, where the autho- rities go very far in supporting the creditor's right to sue, it was held in an early case that a promise to hold one indemni- fied against a subscription be had given to a church was not within the Statute of Frauds, on the ground that the pro- missor was in no way liable to the church (see § 77). (m) § 81. While, as will be seen in a moment, the law gene- rally is that a promise made to a debtor and en- caseshoid- ffaeinff, in consideration of funds received, to pay ingthata & J? &5 T r J creditor the promisee's debt, may be sued on by the creditor: cannot sue yet even this modification of the strict rule is not the guaran- tor has funds, and this applied universally accepted. (m) In a case in Connecticut the decision was based on the common law rule that a stranofer to the consideration cannot sue: and this though the promissor had received firm assets and had agreed to pay the firm debts, a case closely ap- proaching the category of promises by an a-ssignee, generally to take assets and pay creditors.(o) And even in New York a where a promise was made to the debtor. (I) Clark V. MoFarland, 5 Dana, 46 ; citing 1 Comyn on Contracts, 26 ; Dut- ton and Wife v. Poole, 2 Levinz, 210 ; 1 Ventris, 318, argued and same, p. 332, reconsidered and decided ; 1 Strange, 592 ; 1 Bosanquet & Puller, 101 n. (c) ; Pigott I.. Thompson, 3 ib. 149, and notes, and Scliemerhorn <.. Vander- heyden, 1 Johnson's Rep. 140. See North H. Robinson, 1 Duv. 71 ; see, also. People's Bank c. Adams, 43 Vt. 198 ; Lang v. Henry, 54 N. H. 59 ; see Throop on Verbal Agreements. (m) Conkey v. Hopkins, 17 Johns. 113, and a distinction was drawn in another decision, which held that a promise given to a debtor though not within the Statute of Frauds cannot be sued on by the debtor's surety, Lawrence v. Fox, 20 N. Y. 268, was. distinguished as a case where the plaintiff was the creditor of the pro- misee ; here the plaintiff had no claim against the promisee while the debt. was unpaid, and had only a general interest in the fulfilment of the pro- mise. Hoffman v. Schwaebe, 33 Barb. 195 ; see Roe v. Barker, 82 N. Y. 435. (;i) Shoemaker t,. King, 40 Pa. St. 109, citing cases and reversing King v. Shoemaker, 1 Pears. 212, also citing cases. Stone v. Justice, 9 Phil. 22, holding with Shoemaker v. King, that the original debtor must be discharged of liability, and saying that the differ- ence between an assignee for creditors and such «. promissor, is that the one incurs no obligation beyond the fund, and cannot return the surplus ; whereas the latter must pay even if he loses his fund and can keep any sur- plus. In Styvon v. Bell, 8 Jones, 225, it was said that there must be a nova- tion. As to Funds, see supra, § 42. (o) Clapp V. Lawton, 31 Conn. 100 ; see Stone «. Justice, just cited ; see, also, Pratt I'. Bates, 40 Mich. 38. 125 § 81.J LAW OF THE STATUTE OF FRAUDS. [CHAP. IV. distinction was made, and it was said in a case where the pro- missor had funds that the original creditor may sue if he has been informed of and assented to the arrangement. (p) In a Michigan case it was said that the debtor might assign his claim upon the defendant to the plaintiff and thus give hira the right to sue. (5') In an early Pennsylvania case it was said that in case of funds a promise to pay as far as the funds would go can be sued on by the creditor.(r) It has further been sug- gested that even in the case of funds the promise must be shown to have been one to pay from the funds. (s) In another instance though the promise was by the vendee of a vendee of land to pay part of the price due by the promisee, the original vendee to the original vendor, the action was brought by the original vendee to tVie use of the original vendor, and recovery was had ; it was evidently thought by counsel safer to bring suit in this way.(/!) Where, by writing, the defendant assumed to pay the debts of a partnership, parol evidence is admissi- ble to show that the plaintiff's claim is one of these debts. (m) In Pennsylvania the utmost extent of the creditor's right to sue would seem to be where the promissor has promised to pay from the fund, and where there is property in tlie fund to meet the plaintiff's claim. Whether having gone thus far the courts of that state have not in going no further taken an inconsistent position may be open to question, and it is not easy to see why one creditor who has received a promise from a guarantor in possession of funds should recover beyond the fund, and another creditor should be confined to the fund be- cause in the latter case the promise has been made to the debtor. The Statute of Frauds does not apply in a case of funds, and the objection of want of privity is no greater when (p) State Bank v. Mettler, 2 Bosw. (r) Beers v. Robinson, 9 Pa. St. 229. 396 ; see Fleming c. Easter, 60 Ind. (s) Towuseud u. Long, 77. Pa. St. •402, where the plaintiff knew of and 146, distinguisliing on this ground assented to the arrangement. See, Shoemaker v. King and Maule v. Buck- also, Schindler v. Ewell, 45 How. Pr. nell. 34. (() Taylor v. Preston, 79 Pa. St. (-/) Pratt V. Bates, 40 Mioh. 38 ; but 441 ; see Brown v. Brown, 47 Mo. 131. as a general rule the creditor cannot («) Goldbeck v. Eisele, 8 W.N. Gas. sue; Brown v. Hazeu, 11 id. 221. 512 (S. C. Pa.). 126 CHAP. IV ] THE PARTIES TO THE GUARANTY. [§82. recovery is sought beyond the fund, than when the claim does not extend beyond the latter. § 82. In spite of the cases just cited, which each to a dif- ferent degree denies or limits the principle, yet the ,j,^^ ^^^^ general rule is well established that where the pro- that the - ..11--1 •• f • creditor missor has funds he is in the position of a quasi- can sue trustee or agent, and is bound to all who may be con- cteum- ^^* cerned.(w) This distinction was sharply made by stances. Lord Hardwicke in a case where there had been a promise to the widow of an intestate, that if she would permit the pro- missor to be administrator with her he would make up any deficiency of assets, and his lordship said that the creditor could not sue at law, as the promise was made to the widow, but can sue in chancery as the widow is trustee for creditors.(«;) The cases in the note below are all instances of a promise made by one holding funds.(a:) The commoner instance of the creditor's right to sue being sustained is where the guarantor has bought property of the debtor, and in payment of the price has engaged to assume the debt ; this obligation, as will be seen later, is not within the Statute of Frauds, being a promise to pay the promissor's own debt, the recipient of the payment being the promissor's creditor instead of the pro- missor himself; a preponderance of very respectable authority authorizes the creditor to sue directly. (y) And in one case, (,v) See Townsend v. Long, 77 Pa. St. 146. (w) Tomlinsou v. Gill, Ambl. 330. (x) State Bank i . Mettler, 2 Bosw. 396 ; Claplin v. Ostrom, 54 N. Y. 584 (dictum) ; Mersereau v. Lewis, 25 Wend. 247; Connor ^. Williams, 2 Roberts. 51 ; Sohindler u. Ewell, 45 How. Pr. 34; Hayward o. Gunn, 82 111. 390 ; Bishop v. Stewart, 13 Nev. 35 ; Rhodes v. Matthews, 67 Ind. 131 ; Woodward o. Wilcox, 27 Ind. 214; Goodwin o. Bowden, 54 Me. 425 ; see Carr v. National Sec. Bank, 107 Mass. 47. (y) Earle v. Crane, 6 Duer. 569 ; Kirtland u. Hoole, 8 N. Y. W. Dig. 275 (N. Y. S. C.) ; Eddy v. Roberts, 17 111. 505 ; Wilson v. Bevans, 58 111. 234 Mathers u. Carter, 7 Bradw. 226 Ruhling ■/. Hackett, 1 Nev. 369 Rhodes u. Matthews, 67 Ind. 131 Woodward v. Wilcox, 27 id. 214 ; Hag- gerty v. Johnson, 48 id. 43 ; Gariisey v. Rogers, 47 N. Y. 241 (the promise was the formal assumption of a mortgage) ; Shaver v. Adams, 10 Ired. 14 ; Gleason 0. Briggs, 28 Vt. 139 ; Hoile v. Bailey, 17 N. W. Rep. 322, S. C. Wis. ; Foster V. Atwater, 42 Conn. 250 ; Flanagan 1. Hutchinson, 47 Mo. 238 ; Beardslee LI. Morgner, 4 Mo. App. 142 ; Cushman V. Garrison, 2 Cincin. 146 ; see Stewart u. Campbell, 58 Me. 441 ; Todd v. Tobey, 29 Me. 222 ; see Maxwell v. Haynes, 41 Me. 559 (dubltatum). 127 § 83.] LAW OF THE STATUTE OF FRAUDS. [CHAP. IV. even in Pennsylvania, the recovery under these circumstances has been allowed.(2:) Where the promise is a general one to pay all of the seller's debts or an entire class, the proraissor is in a position analogous to that of an assignee for the benefit of creditors and as quasi-trustee, for the latter he is in privity with them.(a) At this point it may be well to note that while the right of the creditor to sue has in New York been very broadly conceded, there is authority for confining this right to the case of promise made in consideration of funds received by the proraissor. Thus it has been said that "an examination of the conflicting cases in which suits have been brought by a person not a party to the contract, but for whose benefit the contract was made, will show that the ques- tion whether the defendant had received money or property as a consideration for the promise has in general been regarded as the controlling circumstance."(6) § 83. There remain now to be considered those cases, and Creditor ^hey are not a few, in which the right of the creditor can sue, it ^q recover on an oral promise of guaranty made has been ^ ° ,.^ . held, to his debtor is liiid down without qualification, thenfare Among Others are those in the note below. (c) And (c) Taylor v. Preston, 79 Pa. St. 441. Ind. 43, citing oases, and defining Shoe- (a) Mcalda u. Morales, 3 Nev. 137 ; maker r. King, 40 Pa. St. 109 ; White- Bishop ". Stewart, 13 Nev. 35 ; Rhodes sell u. Heiney, 58 Ind. 112 ; Fisher v. r. Matthews, 67 Ind. 131; Haggerty r. Wilmoth, 68 Ind. 450; see Farlow v. Johnson, 48 id. 43 ; Fisher !■. Wilmoth, Kemp, 7 Blackf. 044; Johnson v. 68 id. 450; Fleming c. Kaster, 60 id. Knapp, 36 Iowa, 617 ; Robbinsi'. Ayres, 402; Burkham v. Mastin, 54 Ala. 125. 10 Mo. 542; Brown ,-. Brown, 47 Mo. (6) Blunt w. Boyd, 3 Barb. 212, add- 131, citing cases ; Delaware Canal Co. ... ing that these oases are collected and Westchester Bank, 4 Den. 97 ; Seaman compared in Barker u. Bucklin; in r. Hasbrouck, 35 Barb. 163 (dictum) ; Farley r. Cleveland, 4 Cowen'a R. 434; see Hale r. Boardman, 27 Barb. S4 ; and see Mallory v. Gillett, 21 N. Y. Mersereau r. Lewis, 25 Wend. 247 ; 413, putting the leading case of Law- Barker i'. Bradley, 42 N. Y. 319 ; rence v. Fox, 20 N. Y. 268, on this Amenn v. Crosby, 19 Law Rep. (Low- ground, ell) (S. C. N. Y.) 447; Cushraan u. (c) Hitchcock v. Lukens, 8 Porter, Garrison, 2 Cincin. 147; Urquhart v. 338 ; Huckabee v. May, 14 Ala. 265 ; Brayton, 12 R. I. 170, citing cases ; see Mathers 1'. Carter, 7 Bradw. 226 ; Brown Farmers' Bank v. Brown, 1 Harring. V. Strait, 19 111. 89 ; Day ;;. Patterson, 330 ; see Hall v. Marston, 17 Mass. 578 ; 18 Ind. 117; Haggerty v. Johnson, 48 see Ellis v. Clark, 110 id. 391. VZ8 CHAP. IV.] THE PARTIES TO THE GUARANTY. [§ 83. it has been thought that the weight of American ^° funds, . ? . . if the pro- anthority is this way .(a) And it was said in a mise has, Missouri decision "that one for whose benefit a pro- to the raise has been made for a good and sufficient con- ^^^^°-'^- sideration may sue upon it, though not privy to the contract in which the promise was made, is perfectly settled in this state ; and when one undertakes to pay the debt of another, and by the same act pays his own debt, which was the motive of the promise, the undertaking is not within the Statue of Frauds, and need not be in writing. "(e) So it has been said that, if the plaintiff is the party in interest, it i-s immaterial to whom the promise wits made.(/) The following statement of the law as it is in New York is not without interest, as showing how difficult it has been to justify the creditor's right to sue ; the case in question, like Lawrence v. Fox, which it followed, was one where the promissor had funds, and the court said : " It may be considered as finally settled in this state by the court of last resort, in the case of Lawrence V. Fox (20 N. Y. E,ep. 268), that whoever, in consideration of a benefit to himself or prejudice to another, promises to paj- the debt of a third party, is liable directly to the creditor to whom such debt is due, even when the consideration proceeds from and the promise is made to the debtor alone. That de- cision bears strongly on the question whether such a promise be within the Statute of Frauds, for if it be in every aspect legally equivalent to a promise directly to the creditor, it is, in fact, an undertaking to answer for the debt of another, although he is still to remain liable. Had it been left simply as an express promise to the debtor to relieve him of a burden or indemnify him against a liability, which is not within the Statute,(^) the debtor, if he were afterwards compelled to pay the debt, could recover the same anaount as the measure of his damages in an action brought by him against such pro- missor. It seems to be a little incongruous, if both actions (d) Alcalda v. Morales, 3 Nev. 137. {g) Connor u. Williams, 2 Roberts, (e) Beardslee v. Morgner, 4 Mo. App. 51, citing Conkey v. Hopkins, 17 Johns. 142, citing cases. 113. (/) Hodson V. Carter, 3 Cband. 234 ; 3 Finn. 213. VOL. I.— 9. 129 § 83.] LAW OF THE STATUTE OF FRAUDS. [CHAP. IV. were brought on the same promise, that creditor and debtor could sue separately, equally well, upon an undertaking created by the same words, but only in terras directed to one of them. This difficulty is sought to be got rid of in the opinion of two of the learned judges in the case first referred to, by suppos- ing the promise to be to the debtor as the creditor's agent. That supposes an agency without the consent of the agent, and should exclude the debtor from any right of action. Though he had paid the consideration, the promise was made to him, and he was to receive the benefit of it, and it makes the promises purely collateral. The only reasonable ground of sustaining the liability of the p'omissor directly to the creditor seems to be that laid down by Chief Justice Shaw, in Brewer v. Dyer (7 Gush. 337), quoted with approbation in the leading opinion in the case first referred to (Lawrence v. Fox). By that the law is made to presume a general dutj^ to pay the debt, growing out of the form of the promise. By that means a privity between the creditor and the promissor is created ; warranting the implication of another promise in law directly from the latter to the former, and its acceptance by the former. Such reasoning, however artificial, is necessai'y to keep a pro- mise to a debtor to pay his debt out of the reach of the Statute of Frauds, if it is to be construed as creating any pro- mise on which an action can be maintained directly by the creditor."(A) The rule has been applied to a promise by a bank, made to the drawer of a check on it, before the check was drawn, that it would pay the check to the plaintiff', knowing that the check was to be given for a debt due by the drawer to the plaintiff", and the plaintiff relied on the bank's promise, (i) (A) Id., citingBerly r. Taylor, 5H111, (i) Harrison v. Simpson, 17 Kan. 577. 512. 130 CHAP. V.J THE SUBJECT MATTER OF THE GUARANTY. CHAPTEE V. THE SUBJECT MATTER OF THE GUARANTY- AND MISCELLANEOUS POINTS. in. The Subject Mattek of the Gauk- ANTT — VIZ., THE OBLIGATION WHICH IS ANSWEEED FOK. § 84. The Statute of Frauds does not apply where no credit is given to the person answered for. § 85. Reliance on both parties. § 86. Reliance on the guarantor solely. § 87. Where sole credit is given guar- antor, the Statute does not apply, though all benefit of contract ac- crued to person answered for. § 88. Examples under the last rule. § 89. The question who was trusted is for the jury. § 90. The manner in which the debt is charged as determining the liability. § 91. Examples of manner of charging disregarded as test of liability. § 92. Continuance of work in reliance upon the guaranty. § 93. Claim for work, etc., done before the guaranty, and that for work, etc., done thereafter. § 94. The test by the continuance of liability in the person answered for. § 95. Examples of the continuing lia- bility test.- § 96. Modifications of the last rule. § 97. The " trilateral liability" theory of D'Wolf V. Rabaud. § 98. D'Wolf V. Rabaud doubted. § 99. Continuing liability test not con- clusive. § 100. Where no liability in third person. Statute does not apply. 101. Where the person answered for is non sui juris, 102. Where the liability for the person answered for has been dis- charged. 103. Examples of the last rule. 104. The question of discharge is for the jury. 105. Cases where there was no dis- charge. 106. The "non-liability" rule Sf?n- ble denied. 107. Novation. 108. Examples of a novation. 109. Cases held not to show a nova- tion. 110. Discharge by arrest of the per- son answered for. 111. Promise to pay the promissor's own debt. 112. Cases where the promise was not one to pay the promissor's own debt. 113. Purchase theory. 114. Promise to assignee of the debt. 115. The guaranty really the pay- ment of price of property bought by guarantor. 116. Who can sue. 117. What is the promissor's own debt. 118. Agency. 119. Official connection between tlie guarantor and the person auswered for. 120. Cases of application of the Statute, even where guarantor was 131 §84.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. officially connected with person an- swered for. § 121. Partnership. § 122. Husband and wife. § 123. A promise by a guarantor al- ready liable. § 124. Indemnity for becoming a guar- antor : see § 144. § 125. Where guarantor and person answered for are parties to same commercial paper, and where guar- antor has been discharged from liability on the paper. § 12(j. Joint contractors. § 127. Guaranty of a debt assigned. § 12S. The rule disregarded. § 129. Guaranty of debt resting on guarantor's property. § 130. Cases doubting the rule. § 131. Surrender of a lien. § 132. Promise to pay debt resting on promissor's property and guaranty in consideration of surrender of lien treated together. § 133. Lien must enure to promissor. § 134. Cases contra. § 135. Relinquishment of the oppor- tunity for a lien. ) 136. The Statute of Frauds some- times applied in the instances under the last rule. i 137. Promise to pay a debt resting on the promissor's land. j 138. Assumption of a mortgage. ! 139. Assumption of mortgage pro- vided for in a deed poll, etc. etc. I 140. Promise to pay for labor or material which has benefited the defendant's property. ! 141. Doubtfal application of the principle. I 142. The rule doubted. ! 143. Promise by debtor to pay a debt resting ou his personal property. I 144. Indemnity to one for becoming guarantor. 145. Indemnities held valid. 146. Cases supporting an oral indem- nity distinguished. 147. Bail generally ; criminal bail. 148. The meaning of the word "in- demnity." 149. What is debt, default, or mis- carriage. 150. Miscellaneous points. 151. Pleading and practice. § 84. Where no credit is given to the person answered for, the Statute of Frauds does not ajiply •,{a) and where the third (a) Mountstephen r. Lakeman, L. R. 7 H. L. 24 ; Grassett v. Hutchinson, 10 U. C. C. P. 269 ; Rhodes v. Leeds, 3 St. & P. 212 ; Oliver v. Hire, 14 Ala. 592 ; Sanford v. Howard, 29 Alabama, 691 ; Boyldn v. Dohlonde, 37 Ala. 581 ; Ware u. Morgan, 67 Ala. 467 ; Kurtz v. Adams, 7 Eng. (Ark.) 174 ; McLen- don V. Frost, 57 Ga. 450 ; McCoy v. Williams, 6 111. 589 ; Williams v. Cor- bet, 28 111. 263; Hughes v. Atkins, 41 111. 214; Cox (.. Straisser, 62 111. 384; Schoenfeld u. Brown, 78 111. 489 ; Nelson v. Hardy, 7 Ind. 367 ; Wills v. Ross, 77 Ind. 1 ; Rhodes v. McKean, 55 la. 548 ; Langdon v. Richardson, 58 la. 132 610; Waggener u. Bells, 4 Mon. 9 Porter v. Langhoru, 2 Bibb, 63 Graves i.. Scott, 23 La. , Ann. 692 Homans c Lombard, 8 Shep. 308 Sanborn v. Merrill, 41 Me. 468 ; Elli- cott (/. Peterson, 4 Md. 476 ; Cropper r. Pitman, 13 Md. 195; Myer v. Graf- fiin, 31 Md. 354 ; see Loomis < . New- hall, 15 Pick. 166 (passing on Read v. Nash and Williams v. Leper) ; Chapin c. Lapham, 20 Pick. 467 ; Perkins u. Hinsdale, 97 Mass. 159 ; Furbish v. Goodnow, 98 Mass. 296 ; Dean v. Tall- man, 105 Mass. 443 ; Wallace v. Wort- ham, 25 Miss. 119 ; see Rose v. O'Linn, 10 Neb. 364 ; Proprietors v. Abbott, 14 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§84. party gave no promise.(6) This principle was laid down not long after the passage of the Statute of Frauds. Chief Justice Holt said : " If A. promise B., being iii. The a surgeon, that, if B. cure D. of a wound, he will matter. see him paid, this is only a promise to pay if D. Jf'^pfauds'* does not, and, therefore, it ought to be in writing does not by the Statute of Frauds. But if A. promise in where no such case that he will be B.'s paymaster whatever given to he shall deserve, it is immediately the debt of A., ^^"^ person ' ■' ' answered and he is liable without writing. "(c) And ill the for. leading case of Birkmyr v. Darnell, it was said that where the " whole credit is given to the undertaker, so that the other party is but as his servant, and there is no remedy against him, this is not a collateral undertaking; both parties were liable in the principal case, and the Statute of Frauds applied. If two come to a shop and one buys, and the other, to gain him credit, promises the seller if he does not ■pay you I will., this is a collateral undertaking, and void, with- out writing, by the Statute of Frauds. But if he says let him have the goods, Iioill be your paymaster, or I will see you paid, this is an undertaking as for himself, and he shall be intended to be the very buyer, and the other to act but as his servant. "((Z) Where one Simpson sued Pentou for money paid to his use. N. H. 157 ; Hetfield v. Dow, 3 Dutch. 455-6 ; Price i.. Combs, 7 Halst. 189 ; Chase v. Day, 17 .Johns. 114 ; Bi-iggs v. Evans, 1 E. D. Smith, 195 ; Quintard v. De Wolf, 34 Barb. 97; Graham v. O'Niel, 2 Hall, 474; Allen v. Scarff, 1 Hilt. 213 (citing oases) ; Brady v. Sackrider, 1 Sand. 515 ; Lathrop v. Hopkins, 17 N. Y. W. Dig. 191 (S. C. N. Y.) ; Hassinger u. Hardy, 19 Pitts. L. J. 65 ; Patton v. Hassinger, 69 Pa. St. 314 ; Smith u. Montgomery, 3 Tex. 204; Clark u. Waterman, 7 Vt. 77; Arbuckle v. Hawks, 20 Vt. 538; Hodges c. Hall, 29 Vt. 209 ; Blodgett V. Lowell, 33 Vt. 176 ; Bagley v. Moul- ton, 42 Vt. 188 ; Waggoner v. Gray, 2 Hen. & Mun. 603 ; Hall v. Wood, 4 Chand. (Wis.) 38 ; Vogel v. Melms, 31 Wis. 310; West u. O'Hara, 55 Wis. 647. As to what amount of credit must be given the guarantor to take the case out of the Statute of Frauds, see Rains o. Storry, 3 C. & P. 130 ; Smith v. Rud- hall, 3 F. & F. 143. (6) Whitman v. Bryant, 49 Vt. 514 ; and see cases just cited. (c) Watkins v. Perkins, 1 Ld. Ray. 224. (rf) Salk., 27 (a) ; S. C, S. N., Bour Kamire v. Darnell, Mod. Cas. 248 ; 1 Sm. L. C. (Am. ed.) p. *371, note ; see the note in the latter book denying the value of the distinctive phrases used in the text. 133 § 84.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. Penton's defence was that the payment was voluntary. Simp- son had introduced Peuton to one 0., and asked the latter to let Penton have some goods, and that he,' Simpson, would be answerable. 0. asked Simpson how long credit he wanted, and the latter replied six months. Penton seems to have said nothing, but indicated where the goods were to be sent. 0. charged the goods in his books as follows : " Mr. Penton per Mr. Simpson." This was held to be sufficient evidence of an original promise so as to prevent his subsequent payment to 0. from being a mere voluntary one.(e) In a ISTew York case it was said that it is not necessary that a party promising absolutely to pay for goods to be sold, or services rendered to another, should be under an obligation to pay at the time he makes such promise. The question is whether the goods are sold or services rendered on the sole credit of the party so promising ; if they are, the promise is not to pay the debt of another, but an original undertaking, and, therefore, not within the Statute of Frauds requiring it to be evidenced by a writing. (/) Where the court told the jury that, if goods were furnished McIST. (the party answered for) on his credit, the defendant was not liable ; but if on the defendant's credit only, then the defendant is liable ; but if on the credit of both, then the defendant is not liable: this was held to be correct. (^) Where semhle there was no credit given to the person answered for, the court said, in a late IS'orth Carolina case, that "the contract between P. & Co. (to whose claim the plaintiff succeeds as sole assignee of the firm) and the defend- ant was the sole contract in the case, and is not collateral to any entered into by K., the goods were supplied to him (e) Simpson v. Penton, 2 Cr. & M. was to the defendant, not to S. ; that 433 ; 4 Tyr. 317. Where the plaiutiflF S. was not liable for its repayment ; had been asked by S. for a loan of and that it was an original promise money and had refused it, and where on the defendant's part ; Pearce u. the defendant soon after, not in the Blagrave, 30 Eng. L. & Eq. 511 ; 3 presence of S., said to the plaintiff, Common Law, 338. " Well, pay it for me, and I will repay (/) Hanford v. Higgins, 1 Bosw. you," and the plaintiff paid the 448. sheriff's officer, it being the object of (3) Brown v. Bradshaw, 1 Duer, the proposed loan to S. to get rid of an 199. execution, it was held that the loan 134 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 85. under an absolute and unconditional promise of defendant, not to see them paid, or to guarantee the payment by K., but to pay for them himself.(A) To validate an oral guaranty the jury must find, it is said, not merely that the goods were furnished at the request of the defendant, but also on his sole credit.(i) Where there was evidence of credit given solely to tlie defendant, and on which a verdict for the plaintiff might have been sustained, but there was also evidence the other way, a refusal to charge that, if the defendant was not solely trusted, the Statute of Frauds applied was held in a New York case to have been error.(j) § 85. Where the action is brought against both the defend- ant and the person answered for, it would indicate _ ,. ^ _ ' Reliance that credit had been given to both.(^) So where no on both claim is set up against the defendant until after the third party had failed to pay.(?) Though if the defendant's promise was really not collateral, it makes no difference that the third person was first called on. (?n) "When an action is brought against one, charging him with the value of goods delivered to another, and on his promise to pay, and it is set up in de- fence that the promise was to pay the debt of another, and was not in writing, the decisive question is, to whom was the credit given. If the credit was given solely to the defendant — that is, if the goods were really sold to him, though delivered to another — the Statute is then out of the case. But if the whole credit was not given to the defendant, that is to say, if any credit at all was given to the party receiving the goods, the promise of the defendant is collateral, and within the Statute. For, in that case, the plaintiff" would have a remedy against the party receiving the goods. And all the cases show that it does not matter upon which of the two parties the plaintiff principally depends for payment, so long as the per- (A) Morrison v. Baker, 81 No. Car. (;) Burgdorf v. Odell, 17 N. Y. W. 80. Dig. 542 (N. Y. S. C). (i) North. Cent. R. R. v. Prentiss, (Jc) MoUaughey o. Latham, 63 Ga. 11 Md. 127; see Mines c. Sculthorpe, 68. 2 Campb. 217. (0 Bloom v. McGrath, 53 Miss. 257. (ffi) Norris v. Graham, 33 Md. 58. 135 § 85.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. son for whose use the goods are furnished is at all liable to hini."(n) That but for the guaranty the plaintiff would not have trusted the person answered for is, of course, no reason for making an exception to the Statute of Frauds.(o) This point was well brought out in a recent Massachusetts case, in which the court said: "The defendant requested the judge to instruct the jury that, if any credit was given to the firm, the promise of the defendant was collateral, and must be in writing to be binding. But this instruction the judge failed to give. The instruction given upon this point was, that ' if the credit was given to Tully Brothers & Walker alone, the statute is a defence, but the plaintiffs say they would not agree to deliver unless the defendant promised to pay.' But this does not cover the defendant's request; for the plaintiffs may have refused to deliver without the defendant's promise to pay, and at the same time have given credit to the firm, and lodked to it for payment as well as to the defendant. The jury were not instructed that the defendant's promise might be collateral in case any credit was given to the firm, although the plaintiffs also gave credit to the defendant. "(jd) That the goods whose price is sued for were furnished a third party on the "credit and responsibility" of the defendant does not ne- cessarily make the latter's promise original, and instructions to that eft'ect are iraproper.(5') Where there is no evidence of a joint-contract, and the third party is credited, a promise to pay if he does not, for goods delivered and charged him is a guaranty within the Statute of Frauds, and this though the plaintiff refused to deliver the goods till the defendant gave the guaranty. (r) But evidence that the promisee refused to deliver goods to a third party unless the promissor would be- come guarantor will support, it was said in a Pennsylvania case, a verdict holding the promise an original one, though there was only tliis direct evidence, and the circumstances (n) Boykin v. Dolilonde, 3V Ala. OSS, {p} Bugbee ;;. Kendrioken, 130 Mass. citing cases. 438. (o) Wilson V. Roberts, 5 Bosw. 107 ; (7) Norris !'. Graham, 33 Md. 58. Bloom V. McGrath, 53 Miss. 258; as (r) Conolly v. Kettlewell, 1 Gill, to the Scotch rule, see supra, § 26. litiS. 136 CHAP, v.] THE SUBJECT MATTER OP THE STJARANTT. [§ 85. indicated a relation of mere snretyship.(s) An intention of the creditor to rely upon the guarantor will not, if the party answered for is already indebted to the creditor, take the case out of the Statute of Frauds, if the guarantor had done nothing to induce the creditor to rely solely upon him ; the fact that the creditor relied solely on the guarantor's promise, and refrained from getting his pay from the person answered for, does not make the latter's promise original. (<) Where one C. bought horses from the plaintiff, and gave his note, but the horses were not delivered till Ide had guaranteed the debt, it was held to be a plain case of guaranty, though the horses were not to be delivered till the guaranty was procured, and of this the defendant was informed. (m) The following are examples of a reliance upon both parties : Thus where the defendant and S. came to the plaintiff's warehouse, and agreed on a parcel of goods for S. ; the plaintiff said he did not know S., and asked if the defendant would answer for him ; the defendant said he would guaranty the payment. S. came afterwards and ordered other goods, and the plaintiff sent to the defendant to know if he would engage for S. Tiie de- fendant answered that the plaintiff might ship a certain amount of goods, and that the defendant would pay him, if S. did not. It was held that tlie Statute of Frauds applied. (v) Where the plaintiff delivered a horse to A. in the defendant's presence, who said to A., "any agreement you and Billingsley make about the horse I will make good," it was held to be a question of fact for the jury as to whom credit was given, and a iinding for the defendant was not disturbed. (w) Where the defendant signed a note as president of a certain company, and the payees of the note gave credit to the company also, the Statute of Frauds applied. (a;) Where the goods were sold (s) Weyand v. Criohfleld, 3 Grrant, plaintiff having taken a note from the 113. person answered for showed that the (t) Tileston f. Nettleton, 6 Pick. 509. contract was collateral; Babcock u. («) Smith V. Ide, 3 Vt. 295. Bryant, 12 Pick. 134. (y) Peokham u. Faria, 3 Doug. 13, (w) Billingsley v. Dempewolf, 11 citing Jones v. Cooper ; see Cropper v. Ind. 416. Pittman, 13 Md. 195. In a Massachu- (a:) Wyman v. Gray, 7 Harr. & J. setts case, where no qnestion of the 415. Where the respondent was present Statute arose, it was held that the as M.'s attorney when the application " 137 §86.] LAW OP THE STATUTE OF FRAUDS. [chap. V. to a third person, and the defendant agreed to be responsible for the price, the Statute of Frauds, as a general rule, ap- plies.(y) § 86. The following are some examples in which no credit having been given to the third party, the Statute of Reliance oa iit., i mi i .ii theguaran- ^ rauds was held not to apply, ihus where the de- tor solely. feiKJant had sent for a farrier and said "I will see 3'ou paid:" where the plaintiff knew the owners of the horses and dehited these owners, but where he did not know he deb- ited the defendant: in the latter case the promise was original, but in the former collateral. (2) A son having no credit, ob- tained goods from the plaintiffs, asking them to charge them to the defendant, his father. The defendant upon being in- formed of this, said he would pay, and was lield to be bound. (a) was made, and to induce Allen to make tEe loan, said to him, in M.'s presence and at his request, that he would see him (Allen) all right, and would pay the money it M. did not repay it ; that Allen thereupon advanced $2000 to W. and took his note therefor ; that when the note became due M. paid to Allen $1000 thereon, but failed to pay tlie residue. Allen afterwards, on several occasions, reqiiested the respondent to pay the sum remaining unpaid ; and on the 5th of October, 1876, the re- spondent, in compliance with Allen's requests, paid to him the money, amounting to $1100. The court said that no doubt can be entertained, upon these facts, that the respondent's promise to Allen was within the pro- visions of the Statute of Frauds, and created no obligation which Allen could have enforced ; Simpson ;;. Hall, 47 Conn. 425. (^) Kinloch v. Brown, 1 Richards. 2125. (z) Oldham i-. Allen, cited in Simp- son r. Penton, 2 Cr, & llecs. 433. See Houlditch u. Milne, 3 Esp. 87. (a) Booker v. Taly, 2 Humphr. 309. 138 In a Texas case it was testified that Durland came to appellees' lumber yard, then in witness's charge, and or- dered bills of lumber for the purpose of constructing the house of appellant ; that witness refused to let Durland have the lumber, and afterwards met the appellant and told him that Dur- land wanted to purchase lumber, etc., from him to build his (appellant's) new house, but that he refused to let him have it unless he (appellant) would agree to pay for it. The ap- pellant at first refused to pay for the lumber, saying that he had made a contract with Durland to build his house and furnish everything for $1800 specie ; but when witness told him that he would not let Durland have the lum- ber and material unless he agreed to pay for it, the appellant told him to furnish the lumber, etc., to Durland, and that he would pay for it ; and with this understanding witness furnished the lumber, etc., to Durland to build appellant's house. Under the testi- mony the agreement of defendant Green was not collateral to that of Durland, the contractor, but an original one, and CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§86. A contractor bought goods of the plaintiff, who refused to trust him; the defendants, the owners, then gave a written guaranty: it was held that an action lay thereon as on an original and not a collateral proraise.(6) Where the plaintiff boarded the preacher of a Methodist society, relying upon the promise by the defendant to pay him, and he did not know that the latter was steward of the society, whose duty it was to provide for the preacher, the Statute of Frauds was held not to apply. (c) After three visits liy the plaintiff", a physician, to the defendant's son-in-law, the defendant said that he would be responsible, and as to visits thereafter made the Statute of Frauds did not apply.(':^) A promise to indemnify one for en- dorsing a promissory note is not within the Statute of Frauds if the promisee relied solely upon the indemnity and not at all upon any promise or liability of the maker of the note, who was in point of fact insolvent(e). Where the credit is given was not of that character required to be in writing by the Statute of Frauds; Green v. Dallahan, 54 Tex. 283. (6) Glidden v. Child, 122 Mass. 437. (c) Bushee v. Allen, 31 Vt. 634. (d) King V. Edmiston, 88 111. 257. See Clark v. Waterman, 7 Vt. 77; Buchanan v. Sterling, 63 Ga. 227 ; Rose V. O'Linn, 10 Neb. 364. Where the defendant ordered goods for the funeral of his brother, and made all the ar- rangements, a nonsuit was taken off, though the widow was present and though the plaintiff had frequently been employed before by the widow's family, and never by the defendant's family, and though the defendant wrote the plaintiff a letter in which, denying his liability and asserting the widow's, went on to say that the bill should be paid, and that the family all felt that such a debt should not continue unpaid; Schuyler v. Mershon, 2W. N. Cas. 703, C. P. No. 4, Phila. In a case not in- volving the Statute of Frauds there was a writing reciting that Colter, the plain- tiff, is about to employ B. as his agent to purchase, and that it will be neces- sary for the plaintiff to advance money for the purchases, and agreeing on the defendant's part to pay the plaintiff all the money he may advance to B., and that may be due to him, Colter, from B. ; it was held to show an original and not a collateral agreement, so as to de- termine the proper form of action ; Dickinson v. Colter, 45 Ind. 446. (e) Vogel V. Melras, 31 Wis. 310. The defendant took a note from F. & Co. and had it drawn to the plaintiff's order ; the plaintiff, however, refused to endorse, and would not do so till the defendant promised to indemnify him ; the plaintiff did not look to F. & Co., as he considered them, so he told the defendant, not responsible people : it was held that the Statute of Frauds did not apply, as the plaintiff did not look to F. & Co., and as they did not request the plaintiff's endorsement, and received no benefit therefrom, F. & Co. were of course liable on the note to the plaintiff; Reed v. Holcomb, 31 Conn. 368. 139 § 87.] LAW OF THE STATUTE OP FRAUDS. [CHAP. V. exclusively to the guarantor the Statute of Frauds does not apply : one who received orders issued by a sub-contractor to his employes on the exclusive faith of an ol'al guaranty by the principal contractor that they would pay the orders, can recover(/). Where the defendant, who was interested in hav- ing a certain contract made by G. S. & Co. fulfilled, promised a bank to which G. S. & Co. were liable on an overdrawn ac- count to pay the latter if the bank would honor certain checks to be drawn by (x. S. & Co., the court rightly instructed the jury if they found that the promise was not collateral to Q. S. & Co.'s liability, but was a distinct understanding, on the faith of which alone the checks were cashed, the Statute of Frauds did not apply. (^) Where there was evidence of the insolvency of the person guaranteed and circumstances showed that no credit was given him, the promise on the defendant's part may be found to be original. (A) An open letter of credit is so far an original undertaking as not to require preliminary steps to charge tlie person answered for.(i) An acknowledgment by the defendant of the correctness of claim for certain goods delivered him and a promise to pay it, constitute a mere guar- anty where the evidence showed that when the goods were sold no credit whatever was given him, but that the seller looked solely to a certain third part}' ; and this though by an errone- ous ruling a suit against the third party had failed. (j') § 87. If tlie credit is given solelj' to the defendant, the fact that the goods were delivered, or the benefit ^en- Where . sole credit erally of the transaction accrued, to the third party guarantor ^^^^^ ^^'^^ cause the Statute of Frauds to apply. (/.;) In (./■) West V. O'Hara, 55 Wis. 647. v. O'Neil, 73 111. 595 ; Johnson <■. Hoo- (;/) Lefevre v. Farmers', etc., Bank of ver, 7i Ind. 397 ; Langdon v. Riohard- Sliippensburg, 2 W. N. Cas. 174. son, 58 Iowa, 610 ; Backus c'. Clark, 1 (/i) Locke y. Brown, 14 Me. 111. Kan. 308; Leismau c. Otto, 1 Bush, (0 Duvall ,. Trask, 12 Mass. 156. 225 ; Sanborn u. Merrill, 41 Me. 468; (j) Hendricks v. Robinson, 56 Miss. Stone v. Walker, 13 Gray, 615 ; Lyon 697 ; 2 Memphis L. Jour. 199. v. Chamberlain, 8 American Law Reo. (A:) Faires i.. Lodance, 10 Ala. 52; 331 (S. C. Mich.); Watson c. Par- Oliver a. Hire, 14 Ala. 592; Boy- ker, 1 Hun, 618; Pierson i'. Werhan, kin u. Dohlonde, 37 Ala. 582 (not de- 14 Hun, 626 ; Flanders u. Crolius, 1 ciding the question) ; Davis v. Tift, Due]', 207 ; Dyer v. Forest, 2 Abb. Pr. 11 Am. L. Rec. 701 (S. C. Ga.) ; Geary 285. 140 CHAP. V.} THE SUBJECT MATTER OF THE GUARANTY. [§ 88. an early case in England the court spoke of the pur- ^^^ statute 1 11 PI 1 does not chase of goods by one man for another as being apply, everyday's practice, and intimated that the Statute benefit of of Frauds did not apply.(0 Chief Justice Holt, in ^°°*ued to another case, said : " If B. desire A. to deliver goods person ~ T . , . -11 • answered to C, and pr omise to s ee him_ _QadPi the assumpsit for. lies against B.(?n) It is not even material that the person answered for arranged to repay the defendant. (n) The fact that one promissor is to receive the whole consideration will not make a joint-promise a guaranty, just as it would not make a several promise by A. to pay for goods delivered to B. a guaranty. (o) It makes no difference under the Statute who is to reap the benejfit of the transaction, and it has been held, that " the parol promise of the beneficiary to pay the debt of him who by his credit has procured the goods, is as invalid as a like promise by the surety where the. primary obligation rests upon the beneficiary. The object and intent of the Statute is to deny the imposition of a liability, by parol, upon two persons to pay the debt of one. And it is wholly imma- terial whether the person sought to be charged is he who got the benefit of the contract, or he who procured it to be made for the benefit of another."(p) § 88. The following are some examples of credit given to the defendant, and the benefit accruina; to the per- „ 1 1 r> r? -n 1 Examples son answered for, and yet the Statute of Frauds not under the applying: Thus, where F. applied to the plaintiff, a tailor, for clothes which the plaintift', not trusting F., refused to sell him ; but upon the defendant's agreeing to pay for them, he agreed to sell them to F. Evidence showed that plaintifl" delivered clothes to F., but upon F.'s failure to pay took them back again ; but redelivered them upon a second (Z) Stevens v. Squire, Comb. 362 ; S. ments between the creditor and the C, S. N., Stephens v. Squire, 5 Mod. person answered for not concerning 20.5. tlie guarantor ; see Gibbs v. Blanchard, (m) Austen v. Baker, 12 Mod. 250. 15 Mich. 299. (n) Eddy «. Davidson, 42 Vt. 60; (o) Gibbs <,. Blanchard, 15 Mich, see Hacker v. Ferrill, 3 Th. & Cooke, 299. 780; see Merriman v. Liggett, IW. N. (p) Hendricks v. Robinson, 56 Miss. Cas. 379 (S. C. Pa.), as to arrange- 697. 141 •■] LAW OF THE STATUTE OF FRAUDS. .[CHAP. V. promise by the defendant ; the defendant acknowledged the promise, and asked for time. The Statute of Frauds was held not to apply, as no credit was given to F.{q) Where the de- fendant went with one C. to the plaintiff's store and asked them to sell him, C, any goods he wanted, and he, the defend- ant, would be responsible ; the evidence showed that the goods were sent to C. by the defendant's own direction, and other cir- cumstances not mentioned are said to indicate that the defend- ant only was trusted ; the word " sell" the court had difficulty with, as that indicated that C. was to be liable; but the point ■wets not considered as final. (r) Where Ha. buys goods, orders them charged to R.&Co.,the defendants, and marked with their name ; the defendants upon being informed said "it was all right for this time," and then the plaintiff shipped as marked. It was held, that it was for the jury to say whether the goods had been sold on the defendant's credit, and that if they had, the Statute of Frauds did not apply, as the contract would not then be a guaranty. (s) A promise to pay for work to be done for the benefit of one, not a party to the contract, is not a guaranty within the Statute of Frauds.(i;) Where one M. bid for chattels sold by the plaintiff", but could not give security, and the defendant said he would take M.'s bid as his own. (.7) Croft «. Smallwood, 1 Esp. 121. Where the defendant wrote : " Let Mr. T. B. have what goods he wants, and charge yours, M. Hutchinson," shows an original engagement, and not a guaranty ; and a count as for a guar- anty will not be sustained; Grassett v. Hutchinson, 10 U. C. C. P. 269 ; see Ford V. Rockwell, 2 Col. Terr. 377. (r) Post V. Greoghegan, 5 Daly, 217. Where one Porter telegraphed Dunning & Co., the plaiutiils, for goods, which not trusting Porter they did not send ; the next day the plaintiffs received the following telegram : "Dunning & Co., I will be responsible for Porter's bill of goods ordered yesterday, A. Roberts." Whereupon the plaintiffs let Porter have the goods. It was found aa a fact by the referee that this telegram was sent by 142 one Edwin S. Roberts, after a discussion of the subject between himself, A. Rob- erts, the defendant, and Porter ; and that it was with A. Roberts's authority and knowledge. It was held to be a suffi- cient memorandum witliin the Statute of Frauds, as being sufficiently exe- cuted, and that it showed an adequate consideration ; the court said that the facts showed that it was on the faith of this telegram that the goods were de- livered to Porter ; that the meaning of the telegram was that if the plaintiff would deliver the goods the defend- ant would pay for them ; Dunning v, Roberts, 35 Barb. 4(58. (s) McCaffil u. Radcliff, 3 Roberts. (N. Y.) 446. (0 Sinclair v. Bradley, 52 Mo. 180. CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 88. and that if M. got the articles, he, the defendant, would see that the plaintiff got his pay; it was held that if no credit ■was given M., the oral guaranty was good, but secus, secus.(u) Where the evidence showed that the defendant procured the plaintiff to furnish goods to D., a stranger to the plaintiff, by guaranteeing the payment, there was enough proof to justify a finding for the plaintiff though the books of the latter showed the charges as against D.(z;) Services performed upon the land of the mother of the party sought to be charged, but upon the latter's request and promise to pay for them, can be recovered for notwithstanding the Statute of rraud8.(w) In a New York case it was said that " while a person may become liable upon a parol promise for goods purchased which are delivered to and are intended for the use of another, in order to make him so the debt must be his only, he must be exclusively liable therefor. To determine the question as to whether the transaction is a sale to the promissor or a parol guaranty upon his part of payment by another, the language of the promise is to be construed in the light of the acts of the parties and the surrounding circum- stances, and the question is one of facts. "(j;) Evidence that the defendant got the goods and sold them is pertinent on the issue as to whom the credit was given.(?/) In a case in JSTew (u) Pettit V. Bradeii, 55 Ind. 204. (w) Black v. White, 13 Shand, 38. (f) Barrett v. MoHugh, 128 Mass. Evidence that the promisee refused to 166, citing Heywood v. Stiles. In an deliver goods to a third party unless Illinois case the court said " this was the promissor would become paymaster an action of assumpsit, brought by will support a verdict holding the Liddell, against the Chicago and Wil- promise an original one, though there mington Coal Company, on a contract was only this evidence to that elfect, to furnish boarding for certain work- and the circumstances indicated a men employed by the company in relation of mere suretyship ; Weyand mining coal, the evidence shows the u. Grichfield, 3 Grant, 113. undertaking was not collateral, but (x) Cowdin o. Gottgetreu, 55 N. Y. primary. No contract was made with 650. any one of the miners for board, but (y) Turton v. Burke, 4 Wis. 121. defendant undertook, in the first in- In an Alabama case which did not stance, to pay their boafd, at the rate raise any question of the Statute of of five dollars per week, the company Frauds, the defendant wrote : " Please having control of the fund out of which let Mr. Orr, etc. , have any little things it was to be paid ;" Chicago, etc. Co. v. he may stand in need of, and I shall be Liddell, 69 111. 648. good for the same ;" this was held an 143 § 89.J LAW OF THE STATUTE OF FRAUDS. [CHAP. V. York wbere the suit wa,s for goods ordered by and for the benefit of one M. A. 1^., and the proof offered was that the defendant had arranged that these goods were to be charged to him (being a gift or loan by him to M. A. IST.), it was held that the complaint aaust aver that M. A. N". was agent to receive them, and did receive them so as to bind defendant. This case was said to be within the mischief of the Statute of Frauds.(2) A written direction to the plaintiff to let a third party have goods, and charge the same to the defendant, is evidence for the jury of an original promise on the defendant's part, and even if a guaranty is sufficiently evidenced under the Statute of Frauds, the question to whom the credit was given was properly left to the jury. (a) Where there was conflicting evidence as to who was trusted, a refusal to charge that if the defendant was not solely looked to, the Statute applied was held in a ISTew York case to be error ; the de- fendant when he made the promise, said he would come and choose the goods; he did not do so, but the person for whom he said he was guarantor did come and choose the articles.(6) § 89. The question as to who was trusted is always for the The ues J'^'"y-('^) Thus it has been said that, when there is tion who any conflict of evidence upon the subject, the weight was trusted , . . J - => is for the to be given to any particular circumstances should ^"'^^' be left to the jury, who, in deciding the question to whom the credit was given, should take into consideration the extent of the undertaking, the expression used, the situa- original promise and not collateral, Central R. R. v. Prentiss, 11 Md. 127 ; and no notice of acceptance or demand Myer r. Graffliu, 31 Md. 354 ; Perkins v. of payment was necessary ; Orr was a Hinsdale, 97 Mass. 159 ; Dean v. Tall- stranger to the plaintiff, but the goods man, 105 Mass. 444; see Lee v. Wheeler, were charged to him and he paid for 11 Gray, 236 ; Holmes u. Knights, 10 part ; Scott v. Myatt, 24 Ala. 493. N. H. 176 ; Scudder v. Wade, 1 South. (z) Smith u. Leland, 2 Duer, 508. 249 ; Quintard v. De Wolf, 34 Barb. (a) Scudder v. Wade, 1 South. 249. 97 ; MeCaffil v. Radcliff, 2 Roberts. (N. (6) Burgdorf 1-. Odell, 17 N. Y. W. Y.), 446; Cowdiu a. Gottgetreu, 55 Dig. 542, S. C. N. Y. N. Y. 650; Estabrook v. Gebhart, 32 (c) Darnell v. Tratt, 2 C. & P. 82; Ob. St. 420; Merriman ,.. Liggett, 1 Ruggles u. Gatton, 50 111. 414; Bil- W. N. Gas. 379 (Pa.); Schuyler v. lingsley c. Dempewolf, 11 Ind. 416 ; Mershon, 2 id. 703 ; Antonio v. Clissey, Locke V. Brown, 14 Me. Ill ; Elder v. 3 Richards., 203; Sinclair v. Richard- Warfield, 7 Harr. & J. 396 ; Northern son, 12 Vt. 38. 144 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. r§9o. tion of the parties, and all the circurastauees of the ca.ae.(d) A court which thinks the verdict against the weight of the evidence in such a case may, of course, set the verdict aside, and in a clear case this has been done by a court of error.(e) § 90. The manner in which the creditor charges the debt is evidence as to whom he had trusted ; the entries in his book of original entries are admissible tor this nerin purpose.(/) Said Chief Justice Holt : " If B. desire debt is ^ A. to deliver goods to C, and promise to see him ^ete™?n^* paid, then assumpsit lies against B." Though, in ingtheiia- that case, he said that, at Guildhall, he always re- quired the tradesman to produce his books to see to whom cred- it was given. (^) In a New Jersey case the manner of charg- ing the debt in the creditor's books is evidence of more or less weigh t.(A) It is strong, but not conclusive evidence.(z) That the goods were charged to the person answered for is, as far as that one fact goes, evidence, that the promise was a guaranty. (_;■) It is the construction which the plaintiff" him- (rf) Boykin v. Dohlonde, 37 Ala. 581, citing oases. Thus, in a Massachusetts case the court said : " The evidence was very strong that the contract of the de- fendants was a collateral undertaking, and so within the Statute of Frauds, and would have fully warranted such a finding by the jury. But the plain- tiff, in one part of his testimony, ex- pressly stated that the sole credit was given by him to the defendants, and none to Charles F. Hinsdale, and the letter written by one of the defendants to Mr. Beach, the attorney, has some semblance of an admission of an origi- nal and direct responsibility. Consid- ering, therefore, that the evidence was chiefly oral, not absolutely distinct in its terms, or consistent in its different parts, and that its effect depends partly upon inferences to be drawn from it, we think, on the whole, that it should have been submitted to the jury, under proper instructions, to determine the VOL. I. — 10 question what the contract was, as a question of fact, and that the court should so have tried it ;" Perkins v. Hinsdale, 97 Mass. 159. (e) Brown v. Bradshaw, 1 Duer, 199. (/) Downer u. Morrison, 2 Gratt. 237 ; see Payne v. Baldwin, 14 Barb. 571 ; Lee v. Wheeler, 11 Gray, 231 ; Langdon v. Richardson, 58 la. 610 ; Green v. Dallahan, 54 Tex. 283. (S) Austen v. Baker, 12 Mod. 250. (h) Hetfleld v. Dow, 3 Dutch. 446. (i) Burkhalter u. Farmer, 5 Kan. 479 ; Lyons v. Thompson, 16 la. 66. (j) Ruggles V. Gatton, 50 111. 414 ; Kuhn u. Brown, 4 Th. & C. 29 ; Pen- nell M. Pentz, 4E. D. Sm. 642 ; Allen ;-. Scarff, 1 Hilt. 212 ; Cutler v. Hinton, 6 Rand. 509 ; see Beerkle v. Edwards, 8 No. West. Rep. 342 ; Cropper «. Pit- man, 13 Md. l95 ; Hendricks v. Robin- son, 56 Miss. 697 ; Richardson v. Rich- ardson, 1 MoMull. 280. 145 § 90.] LAW OF THE STATUTE OF FRAUDS. [CEAP. V. self has put upon the transaction. (/,-) The manner of charging is a circumstance of strong character, to be submitted with the other evidence to the jurj.(^) So the fact that the plaintiff presented his account to the person answered for.(m) That the defendant is charged does not, on the other hand, help the plaintiff's case.(n,) It is certainly not conclusive.(o) "The entry in the hooks of the seller is often of great importance in determining to whom credit was given. Being made by the seller, it is, of course, of much greater weight when against him than when it sustains his claim. If, on production of plaintiff^s books, it appears that the defendant was not origi- nally debited there, but that the goods were charged against the person receiving them, this fact, if unexplained by other circumstances, would be very strong, if not conclusive evi- dence that credit was given to the person receiving the goods. "(p) That the goods were charged to the defendant may, with other circumstances showing that be alone was relied upon, take the case out of the Statute of Erauds.(^) The following are some examples of guaranties shown to be such by evidence of the plaintiff's books. Thus, where the promisee agreed to pay for goods to be delivered to C. P. D., and the latter was charged with them, and the bills made out to him, the evidence showed a guaranty. (r) Where both par- (7c) Dixon V. Frazee, 1 E. D. Sm. 34, such person as the defendant was in the court saying: "The construction being." which the parties themselves put upon (I) Myer v. Grafflin, 31 Md. 354. agreements of this kind has long been (m) Homans v. Lombard, 8 Shep. regarded as important, and oftentimes 313. conclusive of its true character, and (n) Cutler v. Hinton, 6 Rand. 509 ; the important inquiry is, therefore, see Farwell v. Dewey, 12 Mich. 442. said to be to whom was the credit given ? (o) Cowdiu v. Gottgetreu, 55 N. Y. In this case the plaintiff has put his 650. own construction upon the agreement. (p) Boykin v. Dohlonde, 37 Ala. 583, He charged the goods not to the de- citing cases. fendant, in reliance upon the assur- (q) Dunning !■. Roberts, 35 Barb, ance he received from him, but to 468. Frazee and Sickles (a firm consisting (r) Beebe u. Dudley, 26 N. H. 252. of the defendants and Isaac and an- And where the plaintiff, one Leland, other person), and afterwards to Isaac upon the defendant, Creyon, verbally Frazee, and he persisted in that con- promising to be responsible for the struction for nearly four years, settling payment thereof, sold, delivered, and the account, taking notes, as if no charged to L. certain goods in his 146 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 91. ties were trusted, and the party answered for was the only one charged on the plaiutifi''s book, though the defendant's name was added at an obviously later time, the Statute of Frauds applies, (s) § 91. There are examples of a guarantor being held liable on his oral promise, though the plaintiff's books , , , . * , , Examples showed a charge against the person guaranteed, of manner Thus, it has been said that the fact that the goods disregafd"-^ whose payment is guaranteed are charged to the ed attest of party answered for is not conclusive, nor the fact that such person became afterwards liable to pay the price ; the question is, to whom was the credit originally given ?(<) So it has been said, that " as the question to whom credit was given, must depend upon the intention of the parties, the fact that the goods are charged to the person receiving them, is not conclusive, but may be explained, and made consistent with the assumption of the defendant's primary liability. Other circumstances in the case may show that the account was so kept for convenience, and to avoid confusion and misunder- standing ; and that in point of fact the credit was given to the defendant, and he alone considered liable for the goods. On the other hand, if the defendant has been treated by the person selling the goods, and has himself acted as if he were the sole party liable, that, if not explained by other evidence, would be a circumstance conducing to show that his promise books ; Leland wrote, " the above arti- (s) Duuning u. Donahue, 12 Chic, cles were delivered to L., who was in- Leg. News, 204 (Wells Co., 111.). So, troduced by J. M. Creyon, who agreed in an Illinois case, it was held that, to be responsible for what Mr. L. may where there was a claim against an- want in merchandise ; credit was given other, and the plaintiff kept books, it on Creyon's becoming responsible." It would require strong evidence to show was held that the Statute of Frauds that an entry was made by mistake, applied, the goods in the first instance and ought to have been made against being charged only to the principal, another man, and besides, if long after- Leland v. Creyon, 1 McC. 100. In the wards, another name is added as debtor, following oases, also, the third person this is evidence that the creditor did was in the first instance the only one not consider this one primarily liable ; charged : Elder v. Warfield, 7 Harr. & Hardman v. Bradley, 85 111. 162. J. 396 ; Smith v. Montgomery, 3 Tex. (0 Elder v. Warfield, 7 Harr. & J. 204 ; Taylor i'. Drake, 4 Strobh. (Law), 396. See Barrett v. MoHugh, 128 Mass. 436 ; Brady v. Sackrider, 1 Sandf. 515. 166 ; Scott v. Myatt, 24 Ala. 493. 147 § 91.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. was not collateral. ''(?i) That goods were charged to the party answered for, and not to the guarantors, is j)Tirna facie evidence of guaranty, but may be explained by proof that the gua- rantor had also bought goods on his own account, and this method of charging was to prevent confusion ; that the plaintiff presented his account for payment to the party answered for is also strong evidence that credit was given such person, and that the defendant's promise was a guaranty, but even this can be explained by proof that the account was so presented at the defendant's request ; a verdict for the plaintiff, on the above evidence, will be sustained. (d) It was said in a JSTew York case that, where credit {semble the whole credit) wasgiveu the defendant for goods supplied X., it does not bring the case within the Statute of Frauds, that the goods were charged to X., or that there was an agreement in tlie matter between the plaintiff and X.(i(;) The bill being in the name of the per- son first answered for may be explained, as where the plaintiff was the assignee of another, and the latter had expected the third party to pay, but in fact the plaintiff gave the third party no credit at all. (a;) Where the entries in the books showed a charge against the third party, but the other evi- dence in the case an original liability on the defendant's part, it is a question for the jury.(y) The evidence of the books is admissible even where the other proof tended to show an original promise by the defendant.(^) It is always a question of intention whether charging the goods to the person receiv- («) Boykin v. Dohlonde, 37 Ala. 584, Goods maybe furnished to and charged citing Sanford w. Howard, 29 id. 684, in books against a third party, and yet and Hazen v. Bearden, and other be on exclnsiTe credit of the defendant; cases. if so found by the jury the defendant (u) Hazen .;. Bearden, 4 Sneed, 50. is liable on an oral promise to pay for See King u. Despard, 5 Wend. 279, them ; Lyon v. Chamberlain, 8 Anier. wliere the Statute of Frauds was held Law Rec. 331, S. C. Mich. See Dean u. not to apply, though the plaintiff drew Tallman, 105 Mass. 444; Brown r. drafts upon the party answered for, George, 17 N. H. 129 ; Lefevre v. Bank this being only to gWe the defendant a of Shippensburg, 2 W. N. Gas. 174, S. voucher. C. Pa. (ic) Hacker v. Ferrill, 3 Th. & C. (i/) Merriman v. Liggett, 1 W. N. 780. Gas. 379, S. G. Pa. (x) Briggsw. Evans, 1 E. D. Sm. 195. (z) Lcisman v. Otto, 1 Bush, 225. 148 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 92. ing them proves that the credit was given him. (a) An appli- cation of a payment may indicate who was charged. (6) Where the suit is brought against both, the presumption of course is that both were trusted, but a suit against the third party at the defendant's request will not prejudice the plaintiff.(c) § 92. The cases are numerous in which the sole reliance by the plaintiff upon the defendant's promise is shown ■, n \ , n T . , Continu- in the fact that the former discontinues work ance of done for a third person until assured by the guar- il'aice'up'^n anty. It not unfrequently happens, even in these thesruar- cases, that the third person is still trusted to a degree, and that, therefore, the defendant's promise is within the Statute of Frauds ; but in perhaps a majority of instances the promise, though oral, is original and valid ; because the promissor has a leading purpose of his own in view, or because the debt has become substantially his o\v\\.{d) Thus, in a Texas case, it was said that " if the tes- timony should show that the interveners, as sub-contrac- tors, were about to abandon the worli because they were apprehensive that the principal contractor would not pay them, or for other good and sufficient reason, and that to prevent this they were induced by the owner. Pool, to con- tinue and complete their part of the work in consideration that he would pay them therefor, this would be a sufficient original understanding to take the contract without the Statute of Frauds, and to bind Pool ;" the contractor, semble, remained liable.(e) That the third person remains liable is immaterial. (/) Where semble no credit is given to the person answered for, a promise to pay for services rendered such person is good, though it cover both services rendered before and those rendered after such promise.(^) Where the defendant, owner of a house, promised the plaintiti" working (o) Sanfordv. Howard, 29 Ala. 691, N. West. Rep. 233 (S. C. Neb.). See citing oases. § 72. C6) Whitman v. Bryant, 49 Vt. 514. (c) Pool i. Sanford, 52 Tex. 637. (c) Leisman v. Otto, 1 Bush, 225. (/) Walker o. Hill, 119 Mass. 249 ; See Richardson u. Richardson, 1 Mo- see Pool v. Sanford, 52 Tex. 637, but Mull, 280. qucere. (d) See Jefferson Co. v. Slagle, 66 (g) Bagley v. Moulton, 42 Vt. 188. Pa. St. 208 ; Fitzgerald v. Morissey, 15 149 § 92.] LAW OF THE STATUTE OP FRAUDS. [CHAP. V. under C, a contractor upon the house, but who had aban- doned the work, and was thereby without remedy on his origi- nal contract with C, that he, the defendant, would pay the whole amount due him, the plaintiff, if the latter would resume work, the Statute of Frauds was held not to apply. (A) Where the defendant had a personal object to gain in having the plaintiff finish his work, the case is all the 8tronger.(2) And 80 where the defendant had funds, out of which he can with- out loss to himself fulfil the promise, as, for example, where he owes money to his contractor, for whom the plaintiff' had been working, and out of this money can stop the amount due the plaintiff' ;(,;') and so where the defendant assured the plaintiff" that he would have such funds, though he afterwards denied having had them.(^) Where the plaintiff' furnished lumber to one M., and charged it to the defendant, who was advanc- ing money to M. to build on land conveyed by the defendant to M., and the defendant said that if he got a deed of a cer- tain house on the land he agreed to have the lumber charged to him, the Statute of Frauds did not apply, as M. was not credited and the defendant was, and as the latter had funds. (/) But, on the other hand, where the old contract continued, the fact that the defendant promised to retain in his own hands enough of the money he owed the third person to pay the plaintiff, and though under his contract with the third person he had the right to do so, it has been held in ISTew York that the Statute of Frauds applied, the right in the defendant to retain the funds being permissible merely, and not obligatory upon him.(m) So in Ohio it was said that unless the third (A) Douglass V. Eoberts, 1 City Ct. promise ; Rounds v. May, 35 U. C. Q. Eep. 454; see, also, Petrie i-. Hunter, B. 3(58. 3 Can. L. Times, 33 Ch. Div. Ont. (j) Kutzmeyer y. Ennis, 3 Dutch. (t) Clifford i>. Luhring, 69 111. 401 ; 374 ; Estabrook o. Gebhart, 32 Ohio see Walker v. Hill, 119 Mass. 249, St. 420 ; Cock i.. Moore, 18 Hun, 32; citing cases. Where the plaintiff, who see MoKeenan v. Thissel, 33 Me. 368 ; had been cutting timber for one A., to see, however. Ware v. Stephenson, 10 be used upon boats which A. was build- Leigh, 155. ing for the defendant, refused to supply (/,;) Hiltz ?;. Scully, 1 Cine. 557. more until the defendant promised to (l) Booth j'. Heist, 37 Leg. Int. 300 ; pay him, the defendant was liable for 94 Pa. St. 177. all the timber out in reliance upon tlie (m) Weyer v. Beach, 14 Hun, 237. 150 CHAP. V.J THE SUBJECT MATTER OF THE GUARANTY. [§ 93. person assented to the new arrangement the Statute of Frauds applied.(w) Where the plaintiff had refused to be employed at all by the third person the case is clear, and the defend- ant is liable.(o) In Pennsylvania the promise is regarded as one to pay the defendant's own debt, though the goods were furnished and charged to the contractor, and though the debt apart from the promise would not have been the defend- ant's personal obligation, the claim giving rise, however, to a lien on the defendant's land.(p) Mere forbearance to assert a lien, and continuing to work for the party, guaranteed on the faith of the guaranty, will not take the latter out of the Statute of Frauds, even on the ground of part performance.(5') § 93. The important distinction is between the claim of the plaintiff for work done or materials furnished after the defendant's promise, and that which was before ^o^i!™etc. such promise: the former promise when severable ^°^^ 111111 m before the being valid though oral, the latter not.(r) Thus guaranty, where a subcontractor threatened to leave work work, etc., because he could get no money from the contractor, t^^reafter and the owner of the building promised to pay him, it was held that for all work done after the promise, the latter was original and valid though oral.(s) In an important case in Massachusetts where the plaintiff contracted to do certain work for W., but stopped his labor because of W.'s failure to pay under contract, and the defendant told him to finish the contract and he would pay him in full, the plaintiff recov- ered for the work done after such promi8e.(<) And the rule applies though the third person was also charged. (m) And evi- dence will be received to ascertain how much of the claim accrued after the defendant's promise.(?;) Where the defendant promised (n) Birohell v. Neaster, 36 Ohio St. (r) Solioeiifeld .;. Brown, 78 111. 337. 489 ; Bonine v. Denniston, 41 Mich. (o) Alger V. Johnson, 6 Th. & C. 294; Warwick u. Grosholz,. 3 Grant 632; 4 Hun, 412. (Pa.), 235. (p) Landis «. Royer, 59 Pa. St. 98; (s) Chesterman v. McCostlin, 6 N. but seeHaverly v. Mercur, below ; see Y. Leg. Obs. 112, N. Y. S. C. Devlin v. Woodgate, 34 Barb. 252. (() Rand v. Mather, 11 Gushing, 1 ; (q) Brightman v. Hicks, 108 Mass. see Allen v. Leonard, 16 Gray, 202. 246 ;■ Darlington o. McCunn, 2 E. D. (m) Owen v. Stevens, 78 HI. 463. Sm. 412. (w) Luce v. Zeile, 53 Cal. 54. §93.] LAW OP THE STATUTE OF FRAUDS. [chap. V. the plaintiiF that if he would not refuse to deal with one E.., but would let him have goods, he would see that they were paid f(ir, and the plaintiff who had told the defendant that he would give no further credit to E,., induced by this pro- mise supplied R. : it was held as to the subsequent supply of goods that the promise was original and not within the Stat- ute of Fraud8.(i/;) Where the debt owed by the third person is entire and covers both the matter before and that after the promise, and the latter was not severable the Statute applies to both.(a;) In a case in the Queen's Bench of Upper Canada this rule appears to have been violated, though the ruling may be perhaps sustained on the principle that the defendant was paying his own debt, or one connected with his property, the facts were that an employe getting out timber for one j\I., continues to do so for the defendant, M.'s assignee, rely- ing on a promise by the latter to pay him as well for that work as for what M. owed, the Statute of Frauds was held not to apply.(y) By usage of the country such contracts are regarded (w) Hartley v. Varner, 88 111. 562. Where " it was proved that the plain- tiff, with other laborers, had worked on section ninety-seven of the Illinois Central Railroad for Styles & Co., who were sub-contractors under the defend- ants ; that one month's pay was due them and unpaid, and that they re- fused to work longer on that account ; that the defendant then told them to go to work for them and open a new pit so the defendants could measure their work and distinguish it from their work done for Stiles & Co. ; that the plaintiff's labor was worth $125. The court held that there was evidence for a jury of an original promise on the defendant's part ;" Smith v. Kahili, 17 111. 68. {x) Bonine v. Denniston, 41 Mich. 294. Thus the syllabus of a modern New York case reads that : " W. & V. being indebted to the plaintiff for sawing lumber at their mill, conveyed their property to the defendant, who hired 152 the plaintiff to continue the running of the mill, saying that he would pay him the same that W. &V. had paid him, and saying further, that he had made arrangements with W. & V. to pay their debt to the plaintiff, and would pay him the back pay that was coming to him; it was held, that the agreement to pay W. & V.'s debt was void under the Statute of Frauds." And the court said, " But the con- tinuance by the plaintiff of the work of manufacturing said logs for the same price he had previously re- ceived of Ward & Van Vicker was no more a good consideration for such a promise than was the promise of a party to sell goods for their full value to a solvent debtor a good considera- tion for a promise to pay the debt of a third person ;" Belknap v. Bender, 4 Hun, 414; 6 Th. & C. 613. iy) Tumblay v. Meyers, 16 U. C. Q. B. 145. See, however, Boucher v. Trea- hey, below. CHAP, v.] THE SUBJECT MATTER OP THE GUARANTY. [§ 93. when assigned as carrying all the rights and liabilities in the matter of wages. The rule generally is that the two parts of the defendant's promise must be severable, and that only is valid under the Statute of Frauds which relates to the work done or materials furnished in reliance upon the promise. Thus, in a case already cited, where the plaintiff had agreed to furnish goods to M., who was building a house for the defen- dant, and had charged them to M., but had also afterwards agreed with the defendant to deal directly with him, it was a question for the jury whether the contract was new and original, or only in the furtherance of the first contract with M. ; if the latter, the Statute of Frauds applied ; secus^ seeus.{z) Where the buildings for which the plaintiff furnished ma- terials were to be the defendant's property when finished, and the plaintiff refused to trust the contractor, and would not go on till the defendants made themselves responsible, and the suit was, semble, both for the materials furnished before and some furnished after the promise, the court, in a New York case, held that if any liability remained in the contractor, the Statute of Frauds applied. («) "Where the plaintift" was em- ployed by A., the defendant's building contractor, who gave him orders on the architects, who paid a small sura thereon, and afterwards A. failed, and the plaintiff stopped work for several weeks, but resumed work upon the defendant's telling him that it would be all right, it was held that the Statute of Frauds applied, A. being still liable.(6) Where the defendant (z) Bonine u. Deiiniston, 41 Mich, out of the sales of the water, if he 294 ; see also IngersoU v. Baker, 39 id. wotild go on ; it was held that this 158 ; 41 id. 50. should be ill writing as a guaranty ; (a) Payne v. Baldwin, 14 Barh. 571, Ellison v. Jackson, 12 Cal. 553. distinguishing King u. Despard as a (6) Poucher v. Treahey, 37 U. C. Q. case where the whole credit was given B. 370. So where the plaiutiflf did to the defendant. Where the plaintiff brick-work for A., who was building contracted with a water company to con- for the defendant ; the latter promised struct for them a ditch, to be paid out the plaintiff, who had refused to con- of the sales of the water ; B., a co- tinue work, that if he would do so he defendant, held a mortgage upon the wouldpay if A. did not ; the plaintiff did ditch, which, after the work was done not discharge A., and it was held that by the plaintiff, fell due ; the plaintiff A. continuing liable, and the defendant refused to go on with the work ; and not being liable except under the parol B. agreed with the plaintiff to pay him promise, that the latter was a guaranty 153 § 9B.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. had become purchaser at sheriff's sale of a tailoring business of one A., who was indebted to the plaintiff, and this debt the defendant promised to pay the plaintiff before he would go on with the work in the establishment, the Statute of Frauds was held to apply.(c) Where the plaintiff, a sub-contractor, feeling uneasy as to getting his pay from the contractor over him, expressed his doubts to the defendant, who was president of a company for which the work was being done, and the de- fendant persuaded him to go on by a promise to see the debt paid ; it was held that as there was no abandonment of the original sub-contract, but the plaintiff continued to work as before, there was not enough to make the case an exception to the Statute of Frauds, which was held to apply. (t?) The fol- lowing cases illustrate this principle: Where H., a third per- son, was a contractor building on the defendant's property, and to whom the defendant was advancing money, and the latter promised the plaintiff that if he would continue his work he should be paid ; it was held that the Statute of Frauds applied, H. remaining liable.(e) Where the plaintiff showed that when about to complete the work, he had said to the defen- dant, I want you to agree to pay me for the building of the house, or I can do no more to it, and tliat the defendant said in reply, do you go on and finish the house, and I ivill pay you for it, or see you paid, and that thereupon the plaintiff went on and finished the house ; the court said " when an agreement is auxiliary to a subsisting agreement, which remains in force for the party now claiming on the new con tract, then the new contract is collateral to the other, and must be in writing. It is within the Statute. But when the first contract is rescinded, superseded, or aban- doned, so as not to be in force in the plaintiff's favor, then the new contract is independent, and is not within the Statute. But if the terms be uncertain, equivocal, or ambiguous, then it must always be left to the jury to find whether, in fact, the invalid within the Statute of Frauds ; (d) Haverley v. Mercur, 78 Pa. St. and that A. was insolvent does not of 257 ; 1 W. N. Cas. 348 ; see Bresler v. itself end his liability ; Bond r. Trea- Pendell, 12 Mich. 227. hey, 37 U. C. Q. B. 360. (e) Gill .■. Herrick, 111 Mass. 503. (c) James u. Balfour, 7 Ont. App. 462. 154 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§94. former contract was to continue, or whether the whole was abandoned, and the new contract and credit substituted in its place. In this case there was nothing in the terms used which shows as matter of law whether the prior contract was to continue or not. That was a question of fact for the jury to find."(/) To induce the plaintiff to trust his contractor, the defendant promised to answer for material furnished by the plaintiff to the contractor, to be put in the defendant's house: the Statute of Frauds was held to apply. (^) A promise by the defendant to pay W. for lime previously sold by him to K., who was putting up a building for the defendant, should be in writing and express a consideration. (A) § 94. The authorities just discussed suggest a test to ascertain whether the Statute of Frauds applies, which is very commonly resorted to, and which, while undoubtedly (/) Sinolaii' v. Richardson, 12 Vt. 38 ; see Tompkins v. Smith, 3 St. & For. 55. Where the plaintiff continues work which he had been doing for K., who had left the state, upon a promise by the defendant to pay, the Statute of Frauds applies, the defendant having no interest in the matter, and K. re- maining liable ; Puckett v. Bates, 4 Ala. 391. {g) Clay v. Walton, 9 Cal. 333, cit- ing Puckett V. Bates. Where a declara- tion alleged that the plaintiff had been in the employment of L., and that money was due him from L. on account of such employment ; that L. being in failing circumstances, he, on account thereof, refused to continue in such employment ; that defendant there- upon, in consideration that the plaintiff would go on and continue in such em- ployment, undertook and promised to pay the plaintiff what was due and should become due him, by reason of such employment, from L. ; that the plaintiff did, in consideration there- of, go on and perform work and labor for L. : that there was due him for such work and labor done and performed, before and after said promise and un- dertaking, the sum of $208.75, and that the defendant refused to pay the same. The court said : " It is insisted that the plaintiff may recover at least for work done for L. after the making of the promise of the defendant. To this position we reply, that the promise alleged is to pay the debt due and to become due from L., for which L. is answerable to the plaintiff, and is wholly dependent upon, and collateral to, such debt and liability. We understand both counts as based upon the debt and liability of L. , and not upon an original promise from the defendant to the plaintiff, founded upon a consideration moving from the promissor to the promisee, and such is the fair construction of the counts taking the allegations in them most strongly against the pleader. We hold the promises as stated in both counts within the Statute, and the plea there- fore a good answer to them ;" Hite v. Wells, 17 111. 90. (A) McDonellw. Dodge, 10 Wis. 110.- 155 §94.] LAW OP THE STATUTE OF FRAUDS. [chap. V. sound as far as it goes, has not the exclusive virtue some- times claimed for it. ISTo one will deny, however, that if the person whose debt is assumed by a guarantor remains still liable to his creditor, a prima facie case of a guaranty within the Statute of Frauds is shown, and for this plain proposition there is abundance of authority.(z) But to say that whenever the third person is liable the Statute neces- sarily applies, would be to deny well-settled exceptions to the latter, those, viz : of the promise made in consideration of funds ; the promise made to the debtor ; the promise to pay a debt which is also that of the promissor or one resting on The test by the con- tinuance of liability in the person answered for. (i) Fisli I'. Hutchinson, 2 Wilson, 94; Matson u. Wharam, 2 T. R. 80 ; Old- ham V. Allen, cited in 2 Cro. & Mees. 433 ; Rounce ^. Woodyard, 8 L. T. 18i; ; Poucher v. Treahey, 37 U. C. Q. B. 370 ; James v. Balfour, 18 Can. Law Journ. 366 ; 2 Can. L. T. 366 ; 7 Ont. App. 461 ; Mason v. Hall, 30 Ala. 601 ; Boykin v. Dohlonde, 37 Ala. 582 ; Marx V. Bell, 48 Ala. 499 ; Kurtz t. Adams, 7 Eng. (Ark.) 177 ; Peabody r. Harvey, 4 Conn. 119 ; McGaughey v. Latham, 63 Ga. 68 ; Everett a. Morri- son, Breese, 49 ; Chilcote v. Kile, 47 111. 89 ; Dunning c. Donahue, 12 Chic. Leg. News, 204 (Wills Co., 111.) ; Nel- son V. Hardy, 7 Ind. 367 ; Ellison v Wisehart, 29 Ind. 34 ; Westheimer v Peacock, 2 Iowa, 531 ; Waggener u Bells, 4 Mon. 9 ; Smith o. Fah, 15 B Mon. 443 ; Day v. Cloe, 4 Bush, 563 Graves v. Scott, 23 La. Ann. 692 ; Rich- ardson c. Williams, 49 Me. 558 ; Rowe V. Whittier, 21 id. 550 ; Blake c. Par- lin, 22 id. 397; Moses ... Norton, 36 id. 113 ; Hill o. Raymond, 3 Allen, 540; Tileston v. Nettleton, 6 Pick. 509 ; Stone v. Symmes, 18 id. 469 ; Caliill V. Bigelow, id. 369 ; Richardson V. Robhins, 124 Mass. 107 ; Brown u. Hazen, 11 Mich. 221 ; Bresler v. Pen- dell, 12 id. 227 ; Farwell v. Dewey, Id. 156 442 ; Waldo c. Simonson, 18 id. 345 ; Baker v. Ingersoll, 39 id. 158 ; Gower f. Stuart, 4U id. 747 ; Wilson Sewing Machine Co. v. Schuell, 20 Minn. 40 ; Nichols V. Allen, 22 id. 283 ; Wallace V. Wortham, 25 Mi.ss. 119 ; Hendricks V. Robinson, 56 id. 697; Deegan o. Conzelman, 31 Mo. 427 : Glenn v. Leh- nen, 54 id. 52; Holmes v. Knights, 10 N. H. 176 ; Hetfield c. Dow, 3 Dutch. 446 (citing Leonard t. Vredenburg) ; Dixon V. Frazee, 1 E. D. Smith, 35 ; Wilt I . Piatt, 3 City Hall Record (N. Y.), 71 ; Read r. Ladd, 1 Edmon. Sel. Gas. 102 ; Knox v. Nutt, 1 Daly, 213 ; Doolittle V. Naylor, 2 Bosw. 224 ; Wil- son o. Roberts, 5 id. 107 ; Larson v. Wyman, 14 Wend. 240 ; Payne k. Baldwin, 14 Barb. 570 ; Rogers v. Rogers, 6 Jones, 303 ; Haverly v. Mer- cur, 78 Pa. St. 257 ; 1 W. N. Cas. 348 ; Wood ( . Patch, 11 R. I. 446 ; Simpson t. Nance, 1 Spear, 7 ; Matthews u. Mil- ton, 4 Yerger, 576 ; Skinner v. Conant, 2 Vt. 453 ; Whitman v. Bryant, 49 Vt. 514 ; Waggoner v. Gray, 2 Hrn. & Mun. 611 ; Noyes v. Humphreys, 11 Gratt. 636 ; Ware u. Stephenson, 10 Leigh, 155 ; Emerick v. Sanders, 1 Wis. 92 ; Taylor < . Pratt, 3 id. 692 ; see Smith's Contr. (6tli Am. ed.), 96. CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 94. his property ; and the more doubtful exception of a promise made upon a new consideration moving to the promissor, and of a promise made under a leading purpose which the prom- issor had in view. Some authorities would appear to go to this length :(_;■) The general rule has been stated in various ways. Thus it has been said that, where both parties are looked to, the guaranty is within the Statute of Frauds ;{k) and that the Statute of Frauds applies to " an undertaking b}' a person not before liable, for the purpose of securing or performing the same duty for which the party for whom the undertaking is made continues liable."(^) So if the persons who procured the goods are liable, then, under a rule long established, the promise would be collateral. (7n) Or where the promise is founded upon the original 1 lability. (ti) It has been said that the whole credit must be given to the defend- ant, or the Statute of Frauds app]ies.(o) And that the rule un- doubtedly is that, if the credit is not given to the person who undertakes to be responsible for goods delivered to another, his undertaking is collateral, and must be in writing ; it is, in such case, in aid of the liability of such other.(^) So in a Massachusetts case it was said that a direction to the jury, that the defendants would be guarantors only if the sole credit was given to H. (the person answered for), was held to be incorrect; the court below should have added that defend- ants would have been guarantors unless the whole credit was given to them, and that, if any credit (not merely the sole credit) were given to H., the defendants would have been only guarantors; the court, however, expresslj' excepted the case of a joint contract.(5') So it has been said that the gen- (j) See many of the cases cited in debt was a collateral engagement the last note. within the Statute, required a writing (k) Birkmyer v. Darnell, Salk. 27 ; to prove it, and a new consideration to S. C, S. N., Bour Kamire v. Dar- support it ; Hayden u. Weldon, 43 N. nell. Mod. Cas. 248; 1 Sm. L. C. (Am. J. Law, 130. ed.) *37], notes. (n) Hughes v. Lawson, 31 Ark. 613. (J.) Packer v. Benton, 35 Conn. 349. (o) Brady v. Sackrider, 1 Sand. 515 ; (m) Sanford v. Howard, 29 Ala. Smith c. Montgomery, 3 Tex. 204; 691, citing cases. Where the contract Norris v. Graham, 33 Md. 58. creating the debt was fully oonsum- (p) Dixon v. Frazee, 1 E. D. Sm. 34. mated, the alleged promise of the de- (?) Swift v. Pierce, 13 Allen, 136. fendant to pay or further secure the 157 § 95.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. eral current of all the more recent decisions is, that if the party to whom the goods are delivered, or for whose benefit a service ia performed, incurs thereby a debt so that he is liable in any way for it, then the undertaking of another, in aid of his liability and collateral to it, must be in writing, notwithstanding the collateral undertaking may have been in fact the principal inducement to the delivery of the goods or the performance of the service. In other words, if any credit is given to the party who receives the benefit, the undertaking of the other is collateral, and voidable unless in writing.(r) That both the contract — i. e., the original con- tract — and the guaranty are contemporaneous makes no dif- ference if the former continue3.(s) In a New Hampshire case the continuing liability rule was laid down, but an extreme application of it was defjrecated.(<) § 95. The following are examples of promises held to be E m 1 within the Statute of Frauds, because the person of the eon- answered for remained liable: Thus, in a Massa- liability chusetts case, the court said: " Ihe promise or the *^^*' defendant was to pay for work already done by the intestate for B., without any previous contract with or em- ployment by the defendant. The defendant owed B. nothing, and received no consideration either from B. or from the in- testate for his promise. The intestate neither did any work nor paid anj' money upon the faith of this promise, nor gave up any right or security against B. Their original liabilitj' to him was not altered or affected by the defendant's promise. This promise was therefore clearly a promise to answer for the debt of another; and not being in writing was within the Statute of Frauds."(M) Where the old contract continues, and the contract of sruar- ()•) Walker v. Richards, 39 N. H. (u) Manley c. Geagan, 105 Mass. 264, citing cases. 447. Where a tenant assigned his (s) Bloom I'. McGrath, 53 Miss. 257; lease, and the assignee promised the see § 96 etseq.; see § 31. landlord that if he would assent to (0 Holmes v. Knights, 10 N. H. 176, the assignment he, the assignee, would acknowledged as authority, but re- pay the assignor's arrears, it was held luctantly in Proprietors u. Abbott, 14 to be a guaranty within the Statute of N. H. 159. Frauds ; Fowler r. MoUer, 4 Bosw. 154. 158 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 95. atity contains no new terms or conditions except the guaranty itself, the Statute of Frauds applies.(i;) As has been seen in an early part of the present discussion, a guaranty on consid- eration of forbearance is within the Statute if the original lia- bility subsists. (m)) Thus, where the defendant, a creditor of a tenant whose goods have been distrained for rent, promises to pay the plaintiff for taking care of the goods, etc. (the plaintiff acting on the defendant's behalf and in his interest), the court thought the landlord also liable for these as necessary expenses of the distress, and that the defendant's promise was a guar- anty, and being verbal was invalid under the Statute of Frauds.(a;) An early case in 'Sew York went to great length in this direction ; the facts were that the defendant below in- duced the plaintiff not to proceed in execution upon his claim against one M. J., and that he, the defendant, had taken M. J.'s property and meant to pay his debts; although the (Tourt thought that the defendant was trustee for M. J.'s creditors, and that his absolute promise was evidence that the fund was sufficient, yet held, as the original debt subsisted, that the Statute of Frauds applied.(?/) Where one L. transferred to the defendant a contract he had to carry mails, and the de- fendant asked the plaintiff' who had done the actual carry- ing for L. to continue doing so for him, the defendant, and promised to pay him, it was held that the contract between L. and the plaintiff remaining in force, the defendant's promise was within the Statute of Frauds.(2) A contract of retainer (t)) Weyer v. Beach, 14 Hun, 237. fendant, when he made the promise, (w) Watson V. Randall, 20 Wend, said that he would come and choose 204; Krutzu. Steward, 54 Ind. 181. the goods ; he did not do so, but the (x) Colman v. Eyles, 2 Stark. 62. person for whom the defendant said he (j) Jackson v. Eaynor, 12 Johns, was guarantor came and chose the 291. In a recent decision of the Su- articles ; Burgdorf v. Odell, 17 N. Y. preme Court of New Y^ork, where there Week. Dig. .542. was evidence that the sole credit was (z) Newell t. Ingraham, 15 Vt. 422. given the defendant, and on this a ver- Where the defendant was indebted to diet for the plaintiff might have been one V., who was to a less amount in- sustained ; but there was also evidence debted to the plaintiff, a promise by the other way, a refusal to charge that the defendant to the plaintiff to pay if the defendant was not solely trusted V.'s debt is within the Statute, V. not the Statute of Frauds applied caused being discharged; Stanley t>. Hendricks, the decision to be reversed ; the de- 13 Ired. 86. 159 § 96.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. by a third person of counsel cannot be implied from circum- stances where there has been a contract between such attorneys and the real clients that the attorneys shall act as counsel ; for there would be a collateral agreement proved by parol. (a) In a Vermont case the continuing liability rule was laid down unqualifiedly, but the facts did not really raise any question of the Statute of Frauds, and was moreover a plain guaranty for other reasons. (6) Most of the authorities cited in support of the unqualified rule that if there is any liability in the person answered for the Statute of Frauds applies are, as has been seen, examples of bald guaranties without a circumstance in the case to furnish a reason for making an exception to the Statute of Frauds. The following note shows some further examples in the same direction. (c) § 96. Between the rigid rule that if any liability subsists in the person answered for the Statute of Frauds tiousofthe applies, and the more liberal view that this is only a prima facie test, authority for every shade of distinction and difference can be found. (^i) Serjeant Wil- liams said that the application of the Statute depends on the fact of the original party remaining liable, coupled with the absence of any liability on the part of the defendant or his property, except such as arises from the express promise.(i;) In a Pennsylvania case it was said that if the original debt remains the Statute of Frauds applies, unless the promissor is put in funds, or in such cases "of perhaps a kindred nature in which the contract shows an intention of the parties that the new promissor shall become the principal debtor, and the old debtor become bu-t secondarily liable.(/) (a) Moshier w. Kitohell, 87 111. 20. contradictory dicta, but which tend, (b) Smith 11. Hyde, 19 Vt. 56 ; citing on the whole, to the later and hetter Barber v. Fox, 2 Saund. 136 ; which rule. does not sustain this ruling. (e) Forth i-. Stanton, 1 Saund. 211 (c) Rhodes v. Leeds, 3 Stew. & Port, (e); (notes by Serjeant Williams and 213; Eddy ;;. Roberts, 17111. .-iOS; Hoi- Sir E. V. Williams); and see Fennel lingsworth u. Martin, 23 Ala. 597; r. Mulcahey, 8 Ir. L. R. 434 ; Furbish Soott V. Thomas, 1 Scam. 68 ; Cahill v. Goodnow, 98 Mass. 297, citing and V. Bigelow, 18 Pick. 369 ; Aldrich u. considering a number of cases. -Jewell, 12 Vt. 126. (/) Maule v. Bucknell, 50 Pa. St. (d) See Sweatman v. Parker, 49 50, and citing Serjeant Williams's rule Miss. 26, containing confused and given above. 160 CHAP, v.] THE SUBJECT MATTER OP THE GUARANTY. [§ 97. § 97. A singular view of the" subsisting liability" test was laid down by Judge Story, and one which was so . . The "tri- subversive of that principle that even those, who lateral deny that this liability is anything but one test of []j\''oJ.y of many to ascertain the validity of an oral guaranty, P'^°^^"- would join with those who support the old rule in its entirety in repudiating Judge Story's distinction. Ac- cording to his idea, there may be such a thing as a liability by one person to a certain creditor, and a promise to the same creditor in the same matter by another person, and yet the engagement of the latter be not connected with the first promise, so as to make the latter a guaranty. Thus, Judge Story says that " if A. agrees to advance B. a sum of mone^, for which B. is to be answerable, but, at the same time, it is expressed to be upon the undertaking that C. will do some act for the security of A., and enter into an agreement with A. for that purpose, it would scarcely seem a case of mere collateral undertaking, but rather, if one might use the phrase, a tri- lateral contract. The contract of B. to repay the money is not coincident with, nor the same contract with C. to do the act. Each is an original promise, though the one may be deemed subsidiary or secondary to the other. The original consideration flows from A., not solely upon the promise of B. or C, but upon the promise of both diverse intuitu, and each becomes liable to A., not upon a joint but a several original undertaking. Each is a direct original promise founded upon the same consideration. The credit is not given solely to either, but to both, not as joint-contractors oti the same contract, but as separate contractors upon coexist- ing contracts, forming part of the same general transaction." The facts of the case whiih brought it, in Judge Story's ■opinion,(^) within the theory just stated were as follows: Rabaud & Co. sued James D'Wolf, Jr., for damages, for not selling them certain sugar. B., one of the plaintifls, and a partner of Eabaud & Co., agreed with James D'Wolf, Jr., and (g) D'Wolf K. Rabaud, 1 Pet. (S. C.) the original promise formed but one 501, S. C. below, before Thompson, J., 1 transaction, 1 Sm. L. C. (7th Am. ed.) Pai. C. C. 689 ; the latter thought the 503 ; Smith, Contr. (6th Am. ed.) 96, contract good because the guaranty and inclining to Story's theory, VOL. I. — 11 161 § 97.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. one George D'Wolf, that in consideration of Eabaud & Co. allowing George to draw on them for a hundred thousand francs, he, James D'Wolf, would ship Eabaud & Co., on George's account, certain sugars. The following writing was put in evidence : " Mr. James D'Wolf, Jr., you will please ship for my account . . . five hundred boxes white sugar con- signed to Messrs. Eabaud . . . George D'Wolf (sgd). Agreed to. James D'Wolf, Jr. (sgd)." And it will be seen, therefore, that there was written evidence to. prove all the contract except the consideration, and as the court held that this under the Statute of Frauds could be orally proved no question really came up as to whether the arrangement before them was a guaranty or not. In a later ease Judge Story seems still to cling to his theory, and added the further still more doubtful statement, that " if A. says to B., pay so much money to C. and I will repay you," the promise is not a guaranty.(/i) In this case Judge Story said:(t) " In cases not absolutely closed by authority, this court has already expressed a strong incli- nation not to extend the operation of the Statute of Frauds, so as to embrace original and distinct promises made by different persons at the same time upon the same general consideration." "If," he continued, "A. says to B., pay so much money to C, and I will repay you, it is an original, independent promise." There are certainly some cases which so far look towards the D'Wolf V. Eabaud theory, in that they sa}' that where the defendant undertook unqualifiedly to pay the plaintiff a certain sum, the fact that such a sum was due the plaintift" by a third person, will not make the defendant's promise a guaranty, if the defendant in making his promise paid no attention to the third person ; these cases, which, as will be seen, are doubtful in themselves, do not, perhaps, go the length of D'Wolf v. Eabaud, though their tendency is the same. Thus, where on the back of a promissory note made to a third person the de- fendant wrote and signed, " I will pay the above at maturity ;" the promise was held to be original. (_;') In contracts not in (A) Townsley v. Sumrall, 2 Pet. 182 ; (i') Id. if the payment to C. is not a gift, it is (j) Fowler v. McDonald, 4 Cr. C. C. certainly prima /acie a guaranty. See 297; see Leisman v. Otto, 1 Bush, 225. §6. 162 CHAP, v.] THE SUBJECT MATTER OF THE GUAKANTY. [§ 97. writing, although the undertaking is for the benefit of another and the party may expect and be entitled to indemnity from such other person ; still, if such other person be not holden directly to the same person to whom the contract in question is made, and for the same thing, so that the one is collateral to the other, the contract is not within the Statute of Frauds, but is an independent original contract between the parties to it, and will stand or fall by its own terms.(A:) There is a New Hampshire decision which goes far to support the theory of D'Wolf V. Rabaud ; it was a promise of indemnity for be- coming bail, and the court said : " The fact that the prisoner (for whom the plaintiff went bail at the defendant's request, and upon the latter's promise to indemnify him, the plaintiff) must, or may have assented to the arrangement, does not create any liability in the prisoner, to which the defendant's promise could have been collateral ; nor if the prisoner had requested the plaintiff to go his bail would it have made him liable, if the plaintiff acted upon this request, but upon the defendant's promise to indemnify him. If the prisoner werei liable to the plaintiff' on an implied assumpsit as having re- quested him to go bail the defendant's promise might still be collateral, and the implied liability of the prisoner and express liability of the defendant would be independent of each other, and indeed, the liability of the prisoner is, if any, the collateral (h) Robinson v. Potter, 21 Law Re- condition tliat R. redeemed : if R. failed port., N. S. 554, S. C. Vt. The follow- to do this, then the plaintiff should ing case is a good deal like the theory have the use of the mill for a certain of D'Wolf V. Rabaud : R. owned a mill sum for one year after the time the de- and property upon which the defend- fendant would be entitled to it. R. ant had a mortgage which was fore- also agreed to repay the plaintiff for his closed, and the defendant became the outlays. In pursuance of the contract purchaser and got the sheriff's certifi- the plaintiff made repairs ; R. failed to cate : R. had a year to redeem the pro- redeem, and the defendant took the perty. Just after the sale, machinery conveyance and now denies his con- in the mill was destroyed, and the tract. The plaintiff then sued for his plaintiff was willing to make repairs if outlays and the mill. The court held he could get the defendant to protect that the contract was not to answer for him, if R. did not pay. The plaintiff the debt of another, the contract with and the defendant then made a certain R. being for one thing, the contract arrangement, i.e., that the plaintiff with the defendant being entirely dif- was to look to R. for his money, on the ferent ; Beach v. Jones, 50 Ind. 531. 163 § 98.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. agreement.(^) Where the agent of persons selling a machine guaranteed its usefulness in a different way, and on different terms from the liability which the law would imply on the part of the principals, and he has interest in the sale for a commis- sion, his promise is not a guaranty within the Statute of Frauds, but an independent contract. (jk) It has been said that the endorsement of a note is not a guaranty in the sense of the Statute of Frauds, it is a new contract between the endorser and the endorsee. (ji). § 98. The theory as to an oral guaranty being valid when contemporaneous with the contract answered for has Raiiaud ' been already discussed, and the distinction long since oubte . ^,^g decided to be of no value ; it may be doubted whether D'Wolf v. Rabaud is not the same doctrine but slightly changed in the manner of statement. (o) This case, or rather the dictum contained in it, has been frequently criti- cized and denied. (p) In a Michigan case the trilateral theory is met with some force. One Welch was sued as responsible for a debt for which C. was also res])onsible; the court said : "Under no theory of this case could Cook and Welch both be responsible to plaintiff severally, at his option. If Cook was liable for the meats furnished after the arrangement with Welch was made, then clearly Welch's liability could not be an original one. It is equally clear, that if Welch's promise was an original promise, and the debt his debt, then Cook could not be held liable thereon. The parties might have made an agreement under which they would have been jointly liable, which is not claimed in this case. But they could not under the circumstances be severally liable at the plaintiff's (/) Holmes r. Knights, 10 N. H. 176 ; (o) See § 31 ; see Bloom .-. McGratli, seeMaceyy. Childress, 2Teiin. Ch.44.'i, 53 Miss. 25V ; Morse v. Mass. Bank, 1 considering Holmes r. Knights, as sup- Holmes, 213 ; see dictum ot Sharswood, porting D'Wolf r. Rabaud ; see Reader J., in Merriman u. Liggett, 1 W. N. u. Kingham, 13 C. B. N. S. 352 ; 7 L. Cas. 379 (S. C. Pa.), favoring (sctk- T. N. S. 789 (§ 100), which superflcl- We) D'Wolf r. Rabaud. ally resembles D'Wolf u. Rabaud, but (p) Carville v. Crane, 5 Hill, 484 ; which goes on another principle. lletfleld c. Dow, 3 Dutch. 445 ; Macey (m) Hull V. Brown, 35 Wis. 657, c. Childress, 2 Tenn. C'h. 442, admit- citing cases. ting that Holmes v. Knights favors (?!) Spann v. Baltzell, 1 Flor. 313. D'Wolf v. Rabaud. 164 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 99. option. We know of no better test than this in a case like the present. "(9) § 99. According to modern law (as has been said a number of times) the fact of a subsisting liability is only one of many tests whereby to learn whether the Statute nabnuy'"^ of Frauds applies, and where there is such liability test not 7. , 1^-1 conclusive. on the part oi the person answered for, the engage- ment of a third person for the same debt or obligation is prima fade a guaranty ; nevertheless should the case come within any of the exceptions to the Statute, the fact of the subsisting liability amounts to nothing (r) In a well-known Vermont case it is said that while the authorities do not agree as to what exceptions take a promise out of the Statute of Frauds, they all agree that there may be circumstances which will do so, although the person answered for remains liable.(s) And in the case of an exception to the Statute it has also beew said that " the existing relations between the original debtor and creditor need not necessarily be changed, or the debt cancelled, or in any manner affected by such promise : whether they are or not, must depend upon the terms of the new contract, but in either event it can make no difference with the operation of the Statute. But in cases where the consideration for the promise affects only the original debtor or creditor, and the promissor derives no advantage from it, then it is necessary that the original debt should be affected so as to change or discharge the liability of the original debtor."(;) So it has been said that in all cases founded upon a new and original consideration of benefit to the defendant or harm to the plain- tiff moving to the party making the promise, the subsisting liability of theoriginal debtor is no objection to the recovery .(m) Where the promissor is put in funds the continuing lia- bility of the third person makes no difference.(2;) Or where (?) Welcli V. Marvin, 36 Mich. 61. (s) FuUam v. Adams, 37 Vt. 394. (r) McKenzie v. Jackson, 4 Ala. 232 ; (() Cross v. Richardson, 30 Vt. 647 ; Helms V. Kearns, 40 Ind. 129 ; Walker see Calkins v. Chandler, 36 Mich. 324. V. Jones 10 West. L. J. 319 (Ky.) ; (u) Ludwick v. Watson, 3 Or. 256. Stewart v. Campbell, 58 Me. 443 ; {v) Stilwell u. Otis, 2 Hill, 149, Smallw. Shaeffer, 24 Md. 156 ; Tallman citing several cases ; Dock v. Boyd, 93 V. Bressler, 65 Barb. 378 ; Robinson v. Pa. St. 92 ; Rupp v. Teihl, 29 Leg. Gilman, 43 N. H. 490 ; Beaman v. Rus- Int. 245 (C. P. Cumberland Co. Pa.). sell, 20 Vt. 216. 165 § 100.] LAW OF THE STATUTE OP FRAUDS. [chap. V. the guarantor in makina; the guaranty is really paying his own debt.(w) As in fulfilling a stipulation in a deed poll, of which he is the grantee.(a;) Or where the plaintiff surren- dered an advantage to the defendant. (2/) Or where the pro- mise is not made to the creditor of the person answered for.(^) Or there has been a new consideration moving to the guar- antor.(a) Or where the sole credit has been given to the guar- antor after the date of the guaranty. (&) Or where the pro- mise was to one already liable for the debt guaranteed. (c) Where the guaranty is entirely disconnected from the debt answered for, as where to get rid of alien upon their property the promissors agreed to pay the debt which was the founda- tion of the lien, it has been thought the engagement, though a guaranty in form, was really a separate promise, and that there was no outstanding debt to which it was collateral. (c?) § 100. The next point in logical order is one clear of all dispute, and none will claim that the Statute of Frauds can apply if there is no liability on the part of the person answered for.(('') The following are a variety of examples of oral promises valid, because there was no liability in the third person. Thus a promise to procure a guaranty. (/) Where the promise is not Where no liability in third per- son, Statute does not apply. (w) Oldfleld u. Loive, 9 B. & C. 77 ; Lee V. Newman, 55 Miss. 373. (x) Goodwin v. Gilbert, 9 Mass. 510. (y) Fears v. Story, 11 Report. 638 (S. C. Mass.), and see generally the different exceptions to the guaranty clause of the Statute of Frauds. (z) Reader v. Klngham, 13 C. B. N. S. 352. (a) Arnold v. Stedman, 45 Pa. St. 188 ; Spann ,.. Baltzell, 1 Flor. 313 ; Creel v. Bell, 2 J. J. Marsh. 311. (6) See Pool u. Sandford, 52 Tex. 637 ; Walker v. Hill, 119 Mass. 249. (c) Taylor v. Savage, 12 Mass. 102. (d) Cross V. Richafdson, 30 Vt. 649 ; see as to the various exceptions the sections where they are specially treated. (c) Andrews v. Smith, 2 Or. M. & R. 166 631 ; Drake v. Flewellen, 33 Ala. 109 ; Marx V. Bell, 48 id. 499; Turner e. Hubbell,2Da.y, 459 ; Downey u. Hiucli- man, 25 lud. 455 ; Shaffer i^. Ryan, 84 Ind. 141 ; Thomas v. Delphy, 33 Md. 379 ; Adams v. Hill, 16 Me. 218 ; Wal- lace V. Wortham, 25 Miss. 119 ; Under- bill c. Gibson, 2 N. H. 358 ; Prentice V. Wilkinson, 5 Abb. Pr. N. S. 51 ; Mallory v. Gillett, 21 N. Y. 413 ; Wil- cox Silver Plate Co. «. Green, 72 N. Y. 19 ; Vaudegrift v. Cassidy, 1 W. N. Cas. 319, S. C. Pa. ; Mease v. Wagner, 1 McCord, 396, 397 ; Ayer r. Hay, 2 Constit. (So. Car.) 365 ; Hughes c. Creyon, id. 259. (/) Bushell <). Beavan, 1 Bing. N. C. 122 ; see Berrybill u. Jones, 35 la. 339 ; see § 34. CHAP, v.] THE SUBJECT MATTER OP THE GUARANTY. [§ 100. for the same duty {g) "Where the agent of a certain shipping firm agreed to pay the plaintiff's claim if he would not take certain steps, the eftect of which would be to charge the firm, and the plaintiff" did not do so, and never therefore established a claim against the firm in question, the agent was liable on his promise. (A) Where the plaintiff' paid over to the defendant certain funds upon a promise of indemnity, and these funds were recovered by a certain third person, the indemnity not being collateral to any other obligation, was not within the Statute of Frauds.(t) In an English case, which in some respects is not unlike D'Wolf v. Rabaud, will be found a curious example of an apparent guaranty having no other contract to which it is collateral, the facts wei"e as follows: The plaintiff', Reader, a bailiff", directed to arrest for contempt one H. A., a defaulting judgment debtor, and authorized by M., the creditor, to take half the debt in satisfaction, pro- ceeded to arrest H. A., and Kingham, a relation of H. A., promised Reader that he would either pay the debt or produce H. A. by a certain time ; this agreement was held to be exclu- sively between Reader and Kingham ; M. could not have sued upon it, and though H. A. would not have been discharged by arrest under the process in question, and his debt to M. survived: yet the promise not having been made to the creditor M. it is not a guarantj', and Reader was not M.'s agent to make such an arrangement. (j') To summarize this case, it may be said that H. A. owed M., and Kingham owed Reader ; that H. A. did not owe Reader, nor Kingham owe M., therefore the promise of Kingham to answer to Reader for H. A. was collateral to nothing. A promise by an admin- istrator to abide the decision of arbitrators as to a matter arising after the intestate's death or to pay costs, is one on which no one else is liable but himself, and therefore is not a guaranty.(^') So a promise to pay money if the promisee will (j) Turner v. Hubbell, 2 Day, 459 ; (/) Stocking v. Sage, 1 Conn. 519. see Robinson v. Potter, 21 Law Rep. {j) Reader «. Kingham, 13 C. B. N. N. S. 554 (S. C. Vt.) ; Beach v. Jones, S. 352 ; 7 L. T. N. S. 789 ; distinguish- 50 Ind. 531 ; see § 97. ing Cripps v. HartnoU, and Green v. (A) Travis v. Allen, 1 Stew. & Port. Cresswell. 193. (i) Holderbaugh v. Turpin, 75 Ind. 167 § 100.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. withdraw a suit for assault and battery against J.{1) Where attorneys for both parties to a suit personally agreed that the record should be withdrawn, and made an agreement as to payment of costs, it was held that the latter attorney was liable ; that he was not a surety, because his client was not bound. ()?i) Where the plaintiff, a constable, had attached a horse belonging to one J., the defendant promised that if the plaintiff would let J. have the horse, he, the defendant, would stand security ; that the horse should, the next day, be de- livered to the plaintitf ; it was held that the promise was 85. In Baker v. Fuller, 69 Me. 152, where the defendant's Intestate liad a mail contract with the United States for four years, and sab-let part of it to the plaintiffs, and died early in the fieriod : the defendant promised the plaintiffs that if they would continue the work he would continue the same pay, the court said "it is claimed by the de- fendant that his promise was to pay the debt of another, and not being in writing, is within the Statute of Frauds and Toid. If it was to pay a debt against the estate of his intestate, it is not binding upon him. Was it to pay the debt of the estate ? The contract between the plaintiffs and the de- fendant's intestate was for services not to be performed within a year If it was not in writing, as the evidence tends to prove, it was within the Statute of Frauds, and could not be enforced. The plaintiffs might main- tain an action against his estate for services rendered under it prior to his death, but not for services rendered after it. Ills death put an end to the employment. The defendant could not create a legal liability against the estate by any undertaking on his part in his capacity as administrator. There was then no debt against the estate which he represented, to which his promise was collateral. If he pro- mised the plaintiffs, in his representa- 168 tive capacity, to pay them for their ser- vices if they would render them, inas- much as ho could not thereby create a legal liability against the estate, he ren- dered himself personally liable. We think the evidence is sufficient to au- thorize the jury to find a promise by the defendant in his own right to pay the plaintiffs for their services." (0 Read u. Nash, 1 Wils. 305 ; Ld. Eaym. 1083. (?ft) Iveson f. Conington, 1 B. & C. 160. Where the court entered a rule that a' party pay an amercement if he wishes to go on with his suit, and his solicitor promised to pay the amerce- ment if the other solicitor would enter upon the docket that the terms of the rule had been complied with, in order that the suit might go on, it was lield that the promise was original, there being under the rule no liability in the party ami:rced who might elect not to go on ; Sampson u. Swift, 11 Vt. 316. Where an attorney authorized by his client to discontinue a suit against S., in which S. had been arrested, and held to bail, and in which the defendant was one of S.'s sureties, agreed with the defendant to discontinue if the latter would pay him part of the costs, it was held that the Statute of Frauds did not apply ; Morgan v. Woodruff, 18 N. Y. Week. Dig. 59 (N. Y. C. P.). CHAP, v.] THE SUBJECT MATTER OP THE GtUARANTT. [§ 100. original, and not within the Statute of Frauds, as there was no liability in J., or any promise from him to deliver the horse.(n) A promise to indemnify one from the consequences of committing a trespass is not within the Statute of Frauds.(o) A promise by an attorney to charge no fee in case of failure to recover in a suit is not a guaranty within the Statute of Frauds. (p) So, a promise to indemnify an officer for seizing property claimed by the defendant in the execution to be exempt."(^) In a similar case the court said " the promise was an original, and not a collateral engagement. There was no ele- ment of debt, default, or miscarriage of any third person in the agreement. The act against which the indemnity was promised was for the benefit of the promissor, and involved a liability to loss on the promisee, and was not within the Statute of Frauds. "(?") Where the defendant had, or thought he had, an interest in a controversy, and promised the plain- tiff, who also had an interest, that if he would carry on the suit, he, the defendant, would reimburse him half his ex- penses, the Statute did not apply. (<) So a promise by the defendant to the plaintiff that if the latter, who was sued in another matter, would not settle such suit, but let his name be used as defendant, and let him, the present defendant, manage such suit, he, the latter, would indemnify him, the present plaintiff, against all liability for costs.(M) A promise by a real party in an action to a nominal (re) Tindal v. Touoliberry, 3 Strobh. might recover against S. P. C. ; it was 178. held to be an original promise of in- (o) Allaire v. Ouland, 2 Johns. Cas. demnity, and not a guaranty within 56. the Statute of Frauds, as there was no (/)) Fitchi). Gardenier, 2 Keyes, 516 ; debt or default on S. P. C.'s part; 2 Abb. Deo. 153. Marcy v. Crawford, 16 Conn. 553. (?) McCartney v. Shepard, 21 Mo. (<) Dorwin «. Smith, 35 Vt. 75, citing 576 ; see Heidenheimer v. .Johnson, 17 cases. But a request by one supposed Alb. L. J. 114 (Ct. App. Tex.). to be liable on a note, but not really (r) Mays v. Joseph, 34 Oh. St. 24. so, to one really liable to defend the So, where the plaintiff agreed with the note in a suit, will give rise to no defendant that if S. P. C. should go on liability in the one making the re- J. C.'s land and commit a trespass, quest; for if it is a contract at all, it with a view of having a claim of title is a guaranty, and within the Statute of settled; that each should pay half of Frauds ; Wells v. Mann, 52 Barb. 265. the amount and costs which J. C. {u) Goodspeed v Fuller, 46 Me. 146. 169 § 100.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. party to indemnify him against all damages is good by parol. (?;) So where the person who had carried on the suit was an acceptor for the accommodation of the person who promised to indemnify him.(w) Where a land-owner pro- mised an occupier of land in the same parish to indemnify him for resisting a vicar's suit for tithes, the Statute of Frauds did not apply. The reason given was that the de- fendant wanted the question of the tithes settled ; but it will be seen that no one else except the defendant was under any obligation to the plaintiff.(a;) Where the defendant, a lieutenant in the navy, said to the plaintiff, who furnished clothing to the men, " I will see you paid at the pay-table ;" this he tried to do, but was not permitted ; the sailors who had not bought the clothes were not liable, and therefore the defendant's oral promise was not within the Statute of Frauds. (y) So a promise by a person getting up an entertain- ment which was' to be paid for by subscriptions, to pay certain of the expenses, is valid though there were subscriptions and these were collected. (z) Where the defendant falsely repre- sented himself as empowered to act for a certain third party Where one B. sued Albee and attached (i?) Knight v. Sawin, 6 Me. 363. the debt which A. G. S. owed Albee, (lo) Howes v. Martin, 1 Esp. 162. J. Soule & Sous, the plaintiffs, agreed (a-) Adams i\ Dansey, 6 Bingh. 506. to indemnify A. G. S. against B.'s suit So where one L. authorized the plaintiff if he, A. G. S., would pay Albee ; and to sue for an infringement of his, L.'s, upon this agreement solely A. G. S. patent, and that his pay should be paid Albee. Later Albee made a bond part of what he should recover, L. and mortgage to J. Soule & Sons, the assigned the patent and claim to the plaintiffs, as security to them for their defendant, who instructed the plaintiff above liability, and also to protect not to go on with the suit, and pro- them in another liability to one F. mised him $25 for his services ; this B.got a judgment against A. G. S., and the plaintiff agreed to, and dropped he, A. G. S., demanded and got repay- the suit; under the original contract ment from J. Soule & Sons : it was held L. had owed the plaintiff nothing, and that the agreement of the latter to in- therefore the defendant's promise was demnify A. G. S. was original and not not a guaranty within the Statute of a guaranty, as under the agreement Frauds ; the plaintiff was to get his there was no liability in Albee, or any pay not from L., but from the proceeds one else, except J. Soule & Sons, to of the suit; Call v. Calef, 4 Gushing, repay A. G. S. The payment, there- 390. fore, was voluntary and the mortgage (j,) Keate v. Temple, 1 B. & P. 158. valid ; Soule v. Albee, 31 Vt. 146. (z) Walker v. Norton, 29 Vt. 229. 170 CHAP, v.] THE SUBJECT MATTER OF THR QUARANTT, [§ 100. and 80 that the third party having given no such authority could not be charged, the promise of the defendant to see the plaintiff paid was not a guaranty within the Statute of Frauds. The defendant may be liable in an action of deceit, but not on his contract if he was not credited. (a) So, where the defendant, a silent partner in a firm, promised the plain- tiff, who was about to become a clerk of the firm, that if the latter did not pay him a certain amount, he, the defendant, wouid make it up.(6) In an English case which passed from the Queen's Bench into the Exchequer Chamber, and thence to the House of Lords, this question of non-liability in a third person was much discussed ;(c) the facts were, that the plaintiff, who had been laying down a sewer under orders from a local health board, refused to go on with his work and lay down certain additional junction pipes, and said to the defendant, the chairman of the board, that if he or the board would give the order, he, the plaintiff, would do the work. The board refused to pay because they had given no order, and the Court of Queeji's Bench entered a nonsuit because of the Statute of Frauds, the court saying that a guaranty of a debt to be incurred was as much within the Statute of Frauds as a guaranty of a debt already incurred. The Exchequer Chamber reversed this because they thought that the court had assumed that the plaintiff' thought he had the order of the board, whereas the fact was that he thought he had not, and for that very reason had asked for the defendant's pro- mise. This was affirmed in the House of Lords, their lordships, saying expressly that in order to give rise to a guaranty there must be a liability in some one answered for. A verbal pro- mise by the president, who was also a large stockholder, of a corporation, that if the plaintiff would buy stock, he should receive fifteen per cent, within one year, is not within the guaranty clause of the Statute of Frauds, there being no debt due by any third party, as the corporation for example.((Z) (a) Thompson v. Bond, 1 Camp. 4. L. R. 5 Q. B. 613 ; 7 id. 196 (Scaco. (6) Douglass V. Jones, 3 E. D. Sm. Cam.) ; 7 H. L. 24 (Dom. Proc). 551. (d) Mooreliouse v. Crangle, 36 Oh. (c) Mountstephen u. Lakeman, St. 130; see Hill v. Smith, 21 How. 171 § 100.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. where one P. being bound to deliver on call certain shares to the defendant, and the latter having sold his "call" to the plaintift" and guaranteed its performance, and the plaintiff having called for the shares, it was agreed between the plain- tiff, the defendant, and P., that further tinae should be given P. ; it was held that as there was no liability on the part of P. to the plaintiff (P. being liable only to the defendant), the defendant's promise was not within the Statute of Frauds. (e) A promise by an assignee for the benefit of creditors to hold the assigned property, real and personal, for the security of sureties of the assignor, is not collateral and within the Statute of Frauds, because it is a new and original under- taking ; and there is no subsisting liability to which it is collateral. (/) Where the defendants, out of a fund which they controlled, undertake to pay board for their employes, and uo contract {semble) was made with the latter by the plaintiff, the Statute of Frauds does not apply. (^) Where the defendant, a widow, before the grant of administration on the husband's estate, verbally instructed the plaintiff, to let S., a man in the employment of the estate, have out of the plaintiff's store wliatever he wanted and that the estate would pay for it, U. S. 286 ; see § 120. A promise tliat such bills, is not a guaranty ; Smith if the plaintiff will take shares in a ( . Spies, 2 Hall Super. 4S0. The de- company about to be organized, the fendant's promise to pay the plaintiff defendant will find some one to take interest on certain damages assessed these shares off his hands and pay for in his favor against a railroad, who them, is not within the Statute of had taken his land, is not within the Frauds ; Green u. Brookins, 23 Mich. Statute of Frauds, if the arrangement 52. So a promise by a defendant, is such that the railroad does not owe whom the court regarded as identical such interest to him, the plaintiff; with a certain company, to repay the Jepherson v. Hunt, 2 Allen, 421. plaintiff whatever advances he might (/) Merrill t. Englesby, 28 Vt. 157, make the foreman of the company: passing upon Mussey !'. Noyes, and though this was rather a promise to iS'oyes v. llussey. pay one's own debt ; Gradwohl v. (g) Chicago Co. u. Liddell, 69 111. Harris, 29 Cal. 155. G-ld. A promise to pay the boarding, (c) Hargreaves v. Parsons, 13 M. & lodging, etc., of the plaintiff's sou, W. 570. An agreement that if the though the latter was sui juris, is not plaintiff would obtain the notes of a a guaranty when the son was ill and certain bank, and bring them to the unable to pay, and there was no sug- defendant and give him a discount on gestion that he was liable ; Patton v. them, he, the defendant, would cash Hassinger, 69 Penn. St. 314. 172 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 100. the promise was original, and not within the Statute of Frauds, and was binding on the defendant personally upon proof that the goods were furnished on the faith of it, although charged in the plaintiff's books against the estate ; it was not pretended that the estate was liable for the goods sold, and a promise cannot be collateral unless some one owes directly.(A) A promise by the citizen of a town to another citizen in time of threatened invasion that the former would pay the latter for working on the city defences is an original promise, and not within the Statute of Frauds ; no one else is liable.(z) One Ross having received a devise of a mill-seat, upon con- dition of making a payment to Chapman, was about to decline the devise on the ground that one S. might erect a dam fur- ther down, which by backing would make a mill valueless, when Chapman, in consideration of the payment to him, agreed to indemnify Ross against such injury on the part of 8. ; whereupon Ross paid the money and built his mill, and S. built his dam, and, as Ross had feared, made the new mill valueless ; it was held that Chapman was liable on his promise, notwithstanding the Statute of Frauds, inasmuch as the lia- bility was for the lawful act of S., not a tortious one, but that Ross, the plaintift', must show that S.'s building of the dam was lawful. Ross's recovery for an unlawful act of S. was against S. himself; S. was not liable to any one for a lawful act, hence Chapman's indemnity for such lawful act was not collat- eral. (j) The plaintiiFs, the proprietors of certain canal locks, re- fused to let certain lumber which S. was freighting pass through unless the tolls were paid ; S. thereupon procured the defendant to guarantee these tolls ; this promise was held to be original, as there was no obligation in S. to pay the tolls ; he was never charged with them by the plaintift's, and not having passed (/i) Ledlow V. Becton, 36 Ala. 598. stances, and there "being no evidence of (i) Smith u. McKenna, 53 Pa. St. any contract with the pauper, that tlie 152. A pauper injured by an accident promise was original and not within was left at the plaintiffs house; the the Statute of Frauds, and that it bound overseer of Lowell sent word, in his the town ; Blodgett u. Lowell, 33 Vt. ofScial capacity, that if the pauper did 176 ; see Clark v. Waterman, 7 Vt. 77 ; not pay the plaintiff he, the defendant, see Rose v. O'Liun, 10 Neb. 364; see would see that the plaintiff got his Ayer v. Hay, 2 Const. (S. C.) 365. pay ; it was held under the circum- 0) Chapman v. Ross, 12 Leigh, 572. 173 § lOl.J LAW OP THE STATUTE OF FRAUDS. [CHAP. V. the lumber through the locks until the contract was made between the defendant and the plaintiffs, was never liable for them; the fact that under his contract with the plaintiffs S. was bound to pay the tolls, so that the defendant's promise was for the benefit of him, S., did not affect the relations between the plaintiffs and the defendants. (A) § 101. Where the person answered for is a minor, and not Where the liable, the defendant's promise is not within the person aa- Statute of Frauds.(Z) Where the next friend of an infant litigant employed a solicitor, he is liable for 16 non sta htris. the fee and costs, if he was the one trusted, though the benefit of the suit was for the infant.(??i) A promise by a husband to pay his wife's debt is good by parol, she being incompetent to contract.(n) So an assumption by a third person to pay the debt of a married woman, or, to be more precise, to answer for that promise, which, in a person sui juris, would give rise to a legal obligation.(o) If the promise was to answer for the infant's failure to pay after he should come of age the Statute of Frauds applies.(29) It has, in some instances, been decided that the Statute of Frauds applies to all guaranties for a minor, and in a Massachusetts case it was said that the minor's debt is only voidable, he may not set up the defence of infancy ; if this rule were to prevail, the guar- anty of any claim to which a defence would be made would be taken out of the Statute of Frauds.(g) So it has been held (7c) Proprietors u. Abbott, 14 N. H. 292 ; Nelson u. Dubois, 13 Johns. 175, 159. The defendant in another case citing cases ; EllicotttJ. Peterson, 4 Md. assigned to the plaintiff a note which 487 ; Thompson r. Dorsey, 4 Md. Ch. he held payable by L., under an agree- 151 (the promise was by the minor's ment that if in a suit by L. against the father); Roche v. Chaplin, 1 Bail, plaintiff the note should be sustained 420 ; King v. Summitt, 73 Ind. 314 ; as a set-off, the plaintiff should ac- Evans v. Mason, 1 Lea, 27 ; Looniis v. count to the defendant, but that if the Smith, 17 Conn. 115 (the promise was plaintiff should lose his suit, the de- by the guardian), fendant should pay the cost and ex- (m) Sanborn v. Merrill, 41 Me. 468. penses thereof; the plaintiff lost his («) Catron t>. "VVarren, 1 Coldw. 368. suit with L. ; it was held that the de- (o) Lanier v. Harwell, 6 Munf. 80. fendant's promise was not a guaranty ; (p) Merner t. Klein, 17 D. C. C. P. Brantley v. Carter, 26 Miss. 285. 292. (/) Harris v. Huntbach, 1 Burr. (7) Dexter v. Blanchard, 11 Allen, 375 ; Merner «. Klein, 17 U. C. C. P. 366. 174 CHAP, v.] THE SUBJECT MATTER OP THE GUARANTY. [§ 102. that a promise by a father and guardian to pay a debt of the ward is a guaranty within the Statute of Frauds, even though it was to pay out of the estate of the ward ; the infant's promise was voidable, not void.(r) In the Common Pleas of New York City it was held the guaranty of an infant's promise is within the Statute of Frauds being clearly collateral.(s) § 102. Where, though there has been liability on the part of the person answered for, that liability has been ^fherethe dischars;ed, as under the new contract the Statute Hawiityof -n T rm *^^ person of Frauds does not apply.(<) Thus, it has been said answered of a guaranty: If its efiect is to discharge the beeudls- original liability, then it is not a promise to pay '^^^'^s<>^- the debt of another, but it is a promise by which the debt of another is in fact paid. All the authorities agree that such a case does not come within the Statute.(M) Though in a Ken- tucky case it was thought that this rule arose from a very nice construction of the Statute. (w) In Texas this discharge must be averred, or the complaint is demurrable. (w) But the com- mon law rule is less rigorous ; thus, in a case in Salkeld, though a declaration stated that the defendant promised to . (r) Scott V. Bryan, 73 N. C. 584. (s) Clark t). Levi, 10 N. Y. Leg. Obs. 184, distinguishing Harris u. Hunt- "bach, on the ground that in that case there was no actual contract with the infant. (0 Puckett V. Bates, 4 Ala. 391; Travis v. Allen, 1 Stew. & Port. 193 ; JoUey V. Walker, 26 Ala. 701 ; Locke V. Humphries, 60 Ala. 120 ; Hughes v. Lawson, 31 Ark. 613 ; McLaren u. Hutchinson, 22 Cal. 190 ; Harris v. Young, 40 Ga. 65 ; Schoenfeld v. Brown, 78 HI. 489 ; Krutz v. Stewart, 59 Ind. 181 ; Smith v. Coleman, 1 Bibb, 488; Lieber v. Levy, 3 Meto. (Ky.) 292 ; Armstrong v. Flora, 3 T. B. Mon. 44; Day w. Cloe, 4 Bush. 563; Hilton V. Dinsmore, 21 Me. 410 ; Andre n. Bodman, 13 Md. 255 ; White u. Solo- monaky, 30 Md. 590 ; Walker v. Penni- man, 8 Gray, 233 ; Wood o. Corcoran, 1 Allen, 405 ; Langdon v. Hughes, 107 Mass. 274 ; Yale v. Edgerton, 14 Minn. 202; Olive v. Lewis, 45 Miss. 203; Lang V. Henry, 54 N. H. 59 ; Belknap V. Bender, 6 Th. & Cook, 613 ; 4 Hun, 414; Tisdale v. Morgan, 7 Hun, 585 ; Griswold v. Griswold, 7 Lans. 72 ; Mallory u. Gillett, 21 N. Y. 413 ; Me- riden Co. v. Zingsen, 48 id. 250 ; Cor- bett V. Cochran, 3 Hill, S. C. 41 ; War- ren V. Smith, 24 Tex. 486; First Nat. Bank v. Kinner, 1 Utah, 100 ; Ander- son V. Davis, 4 Vt. 136 ; Sinclair v. Richardson, 12 id. 100 ; Watson v. Jacobs, 39 id. 169 ; Cross v. Richard- son, 30 id. 647-8-9 ; Cole v. Shurtleft', 41 id. 315. (m) Cross V. Richardson, 30 Vt. 647. (i') Jones V. Walker, 13 B. Mon. 359. (w) Bason v. Hughart, 2 Tex. 480. 175 § 103.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. pay B.'s debt to the plaintiff", and did not state that B. was discharged, it will be assumed after verdict for the plaintiff" on the general issue of non-assumpsit, that under the promise B. was to be discharged. Otherwise the promise would have been invalid. S. C. (1 Salk. 29) shows the declaration to have been that the plaintiff^ agreed to accept the defendant as his debtor instead of B. (or A., as 1 Salk. puts it), the court held after verdict that this meant not merelj' that the plaintiff" accepted the defendant as his debtor in the place of A., but that A. was discharged. (x) § 103. The following are a variety of examples of this doc- trine : Thus, in the adiustment of liabilities arising Examples • ■' . , , , .. of the last Under a change m a commercial firm the question may arise. Where one claimed in the bankruptcy of the firm that a certain debt due the claimant by her father had at the formation of the firm been assumed as a firm debt, the Statute of Frauds was held not to apply as the original lia- bility of the father had been discharged. (y) H. & E.. were indebted to Freeman for merchandise furnished the firm ; "Wallace, becoming a member of the firm in E.'s place, promised to pay E.'s debt to Freeman, and the latter was discharged. It was held that the Statute of Frauds did not apply. (z) Where an agent owed the plaintiff" and wished to give up his place, the defendant, who wished to succeed him, promised the plaintiff" that, if appointed, he would allow the latter to deduct, from his, the defendant's, salary the amount of the previous agent's debt ; the Statute of Frauds was held not to apply .(a) Where McC. and M., third parties, were (a-) Roe I.-. Haugh, 3 Salk. 14. previoiisly incurred ; Rupp v. Teihl, 29 (^) Lane (Exp.) Lendon (Re.) ; 1 Leg. Int. 245 (Cumberland Co. C. P. DeGr. 300; 10 Jur. 382; see Lacy u. Pa.). Where it is mutually agreed that M'Neile, 4 D. & R. 7. Duffy, one of the defendant partners, (z) Wallace v. Freeman, 25 Tex. shall be charged on the partnership supp. 92. Where in the beginning of books with a debt due the plaintiff, and a business it is agreed that two part- this sum was credited on the books to ners should retire and the defendant the plaintiff, leaving a balance due him assume their share of losses and re- after deducting a smaller debt he owed ceive their share of profits, it was held the firm, it was held that the Statute that the retiring partners were en- of Frauds did not apply ; Corbin u. tirely discharged, and the defendant McChesney, 26 111. 231. liable originally for a partnership loss (a) Walker v. Hill, 5 H. & N. 419. 176 CHAP, v.] THE SUBJECT MATTER OF THE GTJAKANTY. [§ 103. furnished with goods by the plaintiff, but Sands, the defend- ant, undertook to pay for them, and discharge Mc. and M. of any liability, and M. settled with Sands for the amount, the Statute of Frauds did not apply ; M. got some of the goods, representing them to be on the defendant's credit, and the latter ratified this. (6) Where the plaintiff supplied one Or., who was a sub-contractor under the defendants, and the de- fendants asked the plaintiff to give G. credit, and they would stop the amount due by him to the plaintiff out of the amount they, the defendants, owed him, G. ; it was said that G.'s debt was extinguished, and that the Statute of Frauds did not apply. (c) "Where one L. owed the plaintiff, who as deputy sheriff held certain executions, and the latter were sold by L. to the defendant, who as part of the price promised to pay L.'s debt to the plaintiff, the Statute of Frauds did not apply, be- cause, among other reasons, L. was no longer liable to the plaintiff.(rf) Where the plaintiff, having a claim against certain ship-owners, because they brought his goods shipped through them in a damaged condition, agreed not to abandon the goods or have them surveyed with a view of charging the (i) Watkins d. Sands, 4 Bradw. 209. Where the appellant promised that if the appellee would enter satis- faction on a judgment which he had against the appellant's son, she, the appellant, would transfer to the ap- pellee certain chattels, and give him a promissory note for $100 ; this she gave ; it was held in an action on the note that it was a valid contract, good between the parties, on good considera- tions, mutually, and as it was not, on the part of appellant, a promise to pay the debt of another, it was valid as to her, though not in writing. The debt of the third person, being extinguished upon a valid promise, in this case could not be enforced in the future ; Palmer v. Blain, 55 Ind. 13. (c) Nelson u. Hardy, 7 Ind. 367. Where the defendants contracted to build a road for a railroad company, VOL. I. — 12 and to pay their own employfe, the railroad to stop back the wages, if not paid, out of the amount due the de- fendants ; and the latter made a simi- lar agreement with D., a sub-contrac- tor, reserving the right to stop back ; D., failing to pay his laborers, the de- fendants agreed with D., to ascertain from the plaintiff the amount the labo- rers owed him for supplies, and agreed to, and did pay the laborers, and in their settlements with D. held back the amount of the plaintiff's claim which they, the defendants, agreed to pay the plaintiff. It was held that tliis arrangement discharged the labor- ers from their liability to the plaintiff, and that, therefore, the Statute of Frauds did not apply ; Beach v. Hun- gerford, 19 Barb. 261. (rf) Gleasou v. Briggs, 28 Vt. 139. 177 § 103.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. ship-owners, if the defendant, the agent of the latter, would pay the difierence between the invoice price and what they might bring at an auction sale, the Statute of Frauds did not apply, because, for lack of a survey or abandonment, the ship- owners were not liable to the plaintifF.(e) So where the de- fendant receives a fund and agrees, upon the plaintiifs giving up their claim against the third person, to pay the latter's debt.(/) Where the plaintiff made a machine for S., for which D. & Co. were to pay by accepting S.'s draft; but afterwards they refused to do this, and the defendant agreed to pay the plaintiff, if he would finish the machine, by a note or an acceptance of S 's paper; S. refused to take the machine or give his paper; the jury having been instructed that if the machine was not made for the defendant, or if D. & Co. or S. remained liable, their verdict must be for the defendant, the court refused to disturb a verdict for the plaintifF.(^) Where the defendants promised to pay a debt due by the building- contractor to the plaintiff', and the latter in consideration thereof extinguished the contractor's liability, the Statute of Frauds was held not to apply, the transaction being regarded as a purchase. (A) Where there was a promise by a third person to an attorney for the complainant in a divorce to pay his fee, and the proceedings were settled by agreement, it was held that there was no subsisting liability in the complainant, and the inchoate right to allowance for counsel fee was lost by the discontinuance of the suit under the agreement, and that the oral promise was good.(i) Where the plaintiffs, (c) Travis v. Allen, 1 Sk'W. & Port, intended as a mortgage, Mrs. C. being 1!'3. desirous of paying said indebtedness, (/) Skelton v. Brewster, 8 .Johns, and obtaining a conveyance of the 376. land, at the request of the defendant (g) Quintard v. Be Wolf, 34 Barb, the plaintitf conveyed the land to Jlrs. 97. C, in consideration of which the de- (7i) Consoc. Presb. Soc. of Green's fendant deposited and delivered in Farms u. Staples, 23 Conn. 557 ; see pledge to secure the indebtedness Paclier v. Benton, 35 Conn. 349. certain railroad bonds, which he (i) Prentice v. Wilkinson, 5 Abb. agreed, within one year thereafter, to Pr. N. S. 51. Where one iWrs. C. was redeem at par by paying the principal a debtor to the plaintiff, the debt being and interest which they represented, secured by a deed of certain real estate The action was to foreclose the equity absolute upon its face, but actually of redemption in the railway bonds, 178 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 105. having sent away for collection notes they held on which "W". E. K. was liable, accepted a new note from the defendant, and gave him a receipt acknowledging the note to be in full satis- faction of W. E. K.'s debt, and gave the defendant an order in favor of W. E. K., directing their, the plaintiffs', agent to deliver up the original notes, the defendant's note is a suffi- cient memorandum, though it states no consideration, as re- quired by the Statute of Frauds.(j) § 104. The question of discharge is usually one of fact for the jury, thus where one L. a witness swore " that Theques- he bought a gig from defendant for $140, and the Hon ofdis- ciiEir^G is understanding was that the defendant was to be forthe paid by Antonio. Antonio agreed to it. Antonio ^^'^^' was in debt to him ; he could not have bought the gig, but by paying for it in this way, Antonio said he would credit the amount on a note given by defendant to him in 1829 ;" on these facts it was for the jury to say whether L. had been discharged, and if so, the Statute of Frauds did not apply -.{k) the claim was by way of set-off in a suit on the note. § 105. The following are some examples in which the third party was not discharged, and the Statute of Frauds was held to apply. Thus where the plaintiff pro- there was"^ mised the defendant that if he would get an order gharee from one 8. on him, the defendant, he would accept it and pay it ; the court said the conversation between the defendant and the plaintifi" did not amount to a contract. S. was not a party to it, nor present; he was not discharged from his indebtedness to the plaintiff, nor the defendant from his indebtedness to him ; the plaintiff so treated it, for he afterwards called on S. for the money.(?) A parol promise by and to hold the defendant personally lutely to pay the note and discharges liable for any deficiency on their sale ; the maker as against the endorsee, recovery was allowed, as the debt of the Statute of Frauds does not apply ; Mrs. C. was extinguished ; Booth v. Spann v. Baltsell, 1 Flor. 313. Eighmie, 60 N. Y. 239. (tj Antonio v. Clissy, 3 Richards. (j) Mead v. Keyes, 4 E. D. Sm. 512. 203. Where there is a new agreement be- (I) Benson' v. Walker, 5 Harring. tween an endorser and his endorsee, 115 ; see, also, Laidlow v. Hatch, 75 by which the former undertakes abso- 111. 13 ; Hazeltine u. Page, 4 Vt. 49 ; 179 § 107.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. a third party to pay the defendant's debt, and an acceptance of this promise by the plaintiff" (the creditor), will not with- out more discharge the debtor; such a promise is a mere guaranty. (?n) § 106. There is some authority for a denial of the principle Thenon- that a discharge under the contract of guaranty of liability ^j^g obliffor of the contract guaranteed, will take rule semole c5 ^ denied. the former contract out of the Statute of Frauds.(w) § 107. An ordinary instance of the discharge of the debtor by the new agreement is a novation by which the original creditor, the original debtor, and the new promissor agree that the original debtor shall be discharged of his liability, and that the new promissor shall take his jilace, the consideration of the promise being the release of the one person and the substitution of the other ; to this arrangement the Statute of Frauds does not app]y.(o) The special kind of novation thus described is more properly per- haps called a delegation. (p) Even under the common law rule that a chose in action was not assignable, a novation was good. (5') Whei-e A. owes B , and B. owes C, there must, to Andre ;;. Bodman, 13 Md. 255 ; Stew- 67 id. 134 ; Clark v. Hall, 6 Halst. 84 art V. Campbell, 58 Me. 443 ; Langford Slingerland v. Morse, 7 Johns, 463 c. Freeman, 60 Ind. 50 ; Lomax u. Stoddard i . Graham, 23 How. Pr. 532 McKinney, 61 id. 378. Van Epps u. McGill, Hill & Denio (.!«) Buchanan v. Paddleford, 43 Vt. (Lalor's Supp.), 109 ; Styron v. Bell, 8 64 ; see Saxton v. Landis, 1 Harrison, Jones, 225 ; Bacon u. Daniels, 37 Oh. 304. St. 281 ; Scott r. Atchison, 36 Tex. 78 (n) Tompkins u. Smith, 3 Stew. & (discussing the subject) ; Williams v. Port. 55 ; see .Jones f. Walker, 13 B. Little, 35 Vt. 324 ; Waggoner v. Gray, Mon. 359 ; Hoppock V. Wilson, 1 South. 2 Hen. & Mun. 603 ; Cook v. Barrett, 149 ; Eowe v. Whittier, 21 Me. 549. 15 Wis. 597; Kissock c. Woodward, 1 (o) Carpenter v. Mvirphree,49 Ala. U. C. K. B. 345. On the general sub- 85 ; Welch v. Kenny, 49 Cal.49 ; Karrv. ject of novation, see Meister v. Birney, Porter, 4 Houst. (Del.) 297 ; Anderson 24 Mich. 438 ; Edgell v. Tucker, 40 0. Whitehead, 55 Ga. 278 ; Sapp v. Mo. 523 ; Mather u. Butler Co., 28 la. Faircloth,28Alb. L.J. 17(Ga.); Runde 253; Dever u. Akin, 40 Ga. 423; I'. Runde, 59 111. 98 ; Decker v. Shaf- McRae v. Creditors, 16 La. Ann. 306 ; fer, 3 Ind. 187 ; Hopkins v. Carr, 31 Hennen's La. Dig. 11. 993 et seg.; Hill id. 260 ; Porter v. Dearinger, 33 id. Amer. Law, i. 252 et n. ; De Gol. on 156; Nichols u. Glover, 41 id. 24; Guar. (Am. ed.) 108 n. Lester v. Bowman, 39 la. 614 ; Lord c'. (p) Stewart v. Campbell, 58 Me. 441 ; Davison, 3 Allen, 131 ; Doane u. New- Adams v. Power, 52 Miss. 837. man, 10 Mo. 269 ; Wright v. McCuUy, (7) Fairlie v. Denton, 8 B. & C. 400. 180 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 108. make A. liable for C.'s debt, be a promise in writing or a novation. (r) A novation will be enforced between the new party no matter what were the equities between the primary contractors.fs) It is an essential feature of a novation that the original indebtedness should be extinguished, and a new debtor substituted for the old one.{t) The third party must be com- pletely discharged ; if the plaiptifF who holds such a person's note does not give it up, and merely says that the third party is discharged, it is not enough, and the Statute of Frauds applies.(M) If there is no discharge of the first debtor, not only does the Statute of Frauds apply, but the new promise has no consideration, the promissor gaining nothing, and the promisee losing nothing by the arrangement. (i;) It has been said that in the substitution of a new debt or obligation for an old one, which is denominated in the civil law a novation, the intention of the effect should be positively declared, or at least in whatever manner expressed, it should be so evident as not to admit of a doubt ; in other woi'ds, a novation is not to be presumed unless the intention to that effect evidently ap- pears. (w) So in Louisiana it has been held that a delegation does not operate as a novation, unless the creditor expressly declares his intention to discharge the old debtor and accept the new one.(a;) But as adopted into the common law, the rule is not so strict ; it has been held that where three meet, and one is substituted as debtor in the place of another, the presumption of law is that the former debtor is discharged -,(2/) and that the jury can infer from the transaction that the original debtor was to be discharged even if it was not ex- pressly stipulated.(2) § 108. The following are some examples of novations : Thus, where the defendant was upon the brink of a bank- (r) Decker v. Shaffer, 3 Ind. 187. (v) Jones i>. Ballard, 2 Const. (So. (s) Edenfleld v. Canady, 60 Ga. 456. Car.) 114. (0 Jaudon v. Randall, 47 N. Y. (w) Cookrillti. Johnson, 28 Ark. 195. Super. Ct. 375 ; Hogsett u. Ellis, 17 (a:) Ghoppin y. Gobbold, 13 La. Ann. Mich. 362 ; Benson v. Shjpp, 5 Martin 238. N. S. 157 ; Adams u. Power, 52 Miss. (y) Grover v. Sims, 5 Blackf. 502. 837. (j) Haydon u. Christopher, 1 J. J. (m) Gunnels v. Stewart, 3 Brev. 53. Marsh. 382. 181 § 108.] LAW OF THE STATUTE OF FKAUD3. [CHAP. V. ruptcy, some of his creditors met to consider what should be done, and his effects beino- found only suiBcient to Examples J „ , . , -, , ,. n . of a nova- pay 7s. 6(2. in the pound, the creditors agreed to accept *'°°' 10s. in the pound from W., the defendant's agent, in full satisfaction of their debts, and undertook to assign their debts to him. The only object of the deed was the assign- ment of the debts, and W. wjs to pay 10s. in the pound as the price of those debts. After this the plaintiff went out of town, and some of the creditors accepted 10s. in the pound, and assigned their debts to W. It was held that to a suit for the plaintiff's whole debt the above agreement could be orally proved as a defence, the defendant having paid in the amount for which he had bound himself under the verbal contract. (a) Where a suret}', who has paid a debt, sues the principal, the original debt being discharged, the Statute of Frauds does not apply to the new one. (6) Where there is an oral promise to assume a mortgage on land, if the mortgagor is discharged, the contract is a novation, and the Statute of Frauds does not apply. (c) McC, being indebted to the plaintiff, gave him an order on the defendant for certain goods ; as the defendant also had a claim against McC, it was agreed between the de- fendant and the plaintiff that the defendant should sell the goods, and apply the proceeds to the paj-ment of both claims ; the Statute of Frauds did not ai}p]y.{d) (a) Anstey v. Harden, 1 B. & P. N. Witcherly, 17 N. W. Rep. 364, S. C. Rep. 131. A promise by A., who is Neb. debtor to B., that upon being released (c) Bowen v. Kurts, 37 la. 241. by B., he will pay the amount of the (rf) Clark v. Hall, 6 Halst. 84. Where debt to C, is not within the Statute of there was an agreement in the nature Frauds ; Barringer t'. Warden, 12 <_'al. of a novation, the defendant verbally 314. accepting an order on himself, drawn (b) Madden i.-. Floyd, 69 Ala. 225, by one B., whose debt in the presence citing Brandt on Surety. ; Beal v. of tlie parties was marked discharged Brown, 13 Allen, 114. Where a wife by the plaintiff, the defendant cannot bought a stove, left her husband and resist on the ground that, in fact, he the stove with him, and asked the owed B. nothing ; Jones r. Ellis, 4 plaintiff to take the stove back, pro- Luz. Leg. Reg. 276, C. P. Luz. Co. Pa. mising to pay for its use; and the Where the plaintiff held notes payable husband, needing the stove, agreed to to B., which had been made by 11., as pay for it, his promise is not one to principal, and S., who was the defend- auswer for his wife's debt; Palmer «>. ant's agent, as surety; these were 182 CHAP. V.j THE SUBJECT MATTER OF THE GUARANTY. [§ 109. § 109. The following are some examples of cases held not to come within the novation principle: Thus the cases heu defendant agreed verballv to pay a debt which K., not to show .,,..,,., a novation. a corporation, owed the planititr, the money the de- fendant paid to his own agent, and charged to the account of K. The agent did not pay over the money, as the plaintiff did not give up his claim against K., and K. did not assent to the arrangement ; it was held to be a guaranty within the Statute of Frauds.(e) A parol agreement, by which the de- fendant, the plaintiff', and a third person meet and agree that the plaintiff' shall credit the defendant with the amount of a debt due by a third person to the defendant, and take the amount out in services by the third person. Semble, that as the due-bills which evidenced the third person's debt to the defendant were not delivered up to the plaintiff', and there was no affirmative promise by the third person to pay the plaintiff, the amount of the defendant's debt to the plaintiff was not to be credited with the amount of the third person's debt to the defendant.(/) Where the defendants formed a given for goods supplied M. individu- ally. These goods were assigned M. & Co., of wliicli firm the defendant was a dormant partner, and M. & Co. agreed to pay the note, the Statute of Frauds was held not to apply, the court say- ing : " Nor was it a promise to pay the debt of another, which the law required to be in writing. If the defendant was a member of the firm, the firm, in con- sideration of the goods, promised to be- come paymaster to B., and the transac- tion was simply in the nature of a nova- tion, M., in consideration of his release from the original debt, giving the firm of M. & Co., as a new obligor, with B.'s assent;" McCreary o. Van Hook, 35 Tex. 639. (e) Richardson o. Williams, 49 Me. 558 ; see Birchell v. Neaster, 36 Ohio St. 337. (/) Weeks v. Elliott, 33 Maine, 491. "A. rented a house to B., and he un- derlet to C, and C. left, indebted to B., while B. was also indebted to A. for the rent. B. sued out an attachment against C. , which was placed in the hands of D., a constable. The property attached was sold by order of a justice of the peace. Before the sale, it was agreed between A., B., and C, that C. should pay to A. his debt, and A. dis- charged B. of his liability. D. sold the goods and received the money, and paid it to the justice of the peace pre- vious to the judgment rendered in favor of B. A. demanded the money of D., which he refused to pay over, the money being in the hands of the jus- tice. An attachment was sued out from another justice of the peace by other creditors of B., and the first justice of the peace was garnisheed, etc. ; A. sued D., the constable ; it was held that he could not recover, and that the promise, not being in writing, was within the Statute of Frauds ;" Chad- wick V. Brown, Mor. (la.) 492. 183 § no.] LAW OP THE STATUTE OF FRAUDS. [CHAP. V. partnersliip with A. J. S., a debtor of the plaintiff; and cer- tain banking accounts (A. J. S. being a banker and land aijent) were transferred to the new firm, the latter are not liable unless they expressly assumed A. J. S.'s debts, and had him discharged. A promise by A. J. S. alone was a mere guaranty, and within the Statute of Frauds, A. J. S. remain- ing liable.(^) Where one, employed l)y T. & W., certain mill- owners, to haul timber to their mill, was promised by the de- fendants, for whom T. & W. were manufacturing the timber, that, if he brought orders from the latter, the orders would be paid, there was held to be no novation except as to the orders actually given. (z) § 110. If the original debtor is arrested and his liability _. , thereby discharged a new engagement by the de- Discharge •' ° a c -^ by arrest fendant to pay the debt is not collateral or within person an- the Statute of Frauds.(_;') Where the discharge of swered or ^-^q original debtor from arrest was not an absolute one, which would have satisfied the Statute of Frauds, but was upon a condition that if the plaintiffs would discharge P. and take the acceptance of the latter, the defendant, without becoming a party to this acceptance itself, would pay if P. did not, the Statute of Frauds applies. (^) Where it was proved that by a new agreement, B., the arrested debtor, kept the debt alive, notwithstanding the arrest, the defend- ant's liability for B.'s debt was held to be a guaranty, and ig) Sternburg i> Callanan, 14 la. (7) Goodman r. Cliase, 1 B. & Aid 209. Where James Chadley, the de- 303; Butcher u. Stuart, 11 M. & W fendant, was creditor of R. C. and 873 ; Maxwell v. Haynes, 41 Me. 559 debtor of S., the plaintiff's assignor; Richardson w. Williams, 49 id. 558 S. was debtor to R. C, an arrangement Mallory 1 . Gillett, 21 N. Y. 413; La to which James was not a party, and tlirop v. Briggs, 8 Cow. 171 ; Ranson by which James was not discharged, is v. Keyes, 9 Cow. 128 ; Colwell v. Hari- invalid (semble) by parol ; the agree- son, Living. Jud. Opin. 40 (Mayor's ment being between R. C. and S. that Court, N. Y.) ; Cooper v. Chambers, 4 James's debt should be carried by S. Dev. 261; Palethorpe!,'.Lesher,2Rawle, to R. C.'s account ; the account was so 274 ; Sharpe v. Speckeuagle, 3 Serg. & entered, but not in language which ne- R. 463 ; French r. Thompson, 6 Vt. 60. cessarily showed James's discharge ; {k) Maggs v. Ames, 4 Bingh. 470 ; 1 Guxonr. Chadley, 1 C.& P. 174; 3 B. M. & P. 294; see Marks u. Scott, 2 & C. 591 ; 5 D. & R. 417. Kerr, N. B. 640. (i) Preston v. Young, 46 Mich. 103. 184 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 111. not provable under the Bankrupt Act. (6 Geo. IV. c. 16, § 51, 56.)(A. Where the liability was discharged under bank- rupt's proceediiigs, it was held, in an Indiana case, to be in- sufficient, as the court might upon cause shown vacate the discharge. (m) § 111. It will have been observed in many of the cases already cited that the oral agreement was sustained because it was regarded as being not a guaranty, pay™ef '° but a promise to pay the promissor's own debt. pTOmiesor's Such an engagement is certainly not within the Statute of Frauds, though it be in form an obligation to answer for the liability of a third person. (??) The promissor, it has been said, must have received an adequate considera- tion from the original debtor or creditor.(o) The rule laid down by Serjeant Williams, and already given, to the eiFect that where the original debtor remains liable, and there is an absence of any liability on the part of the promissor or his property, the Statute of Frauds prevails, implies that if the promissor had(p) been previously liable, and the new promise was to discbarge such liability, the later promise might be oral. It has been said that, to render the promise .valid when not in writing, it must be founded upon a consideration, and arise out of a transaction, by the terms, or by the force, of which the promissor becomes substantially the debtor of the promisee, in respect of the sum, and to the amount which he thus agrees to pay, so that making payment according to the (Z) Lane v. Burghart, 1 A. & Ell. N. hide, 61 Mo. 433 ; Robinson v. Gilman, S. 937 ; 1 Gtale & Davison, 312. 43 N. H. 490 ; Jenkins v. Peace, 1 (m) Berkshire II. Young, 45 Ind. 467. Jones's Law, N. C. 416; Arnold v. (n) Reynolds v. Doyle, 1 M. & G. Stedman, 45 Pa. St. 188-9 ; Maoey v. 753 ; Fitzgerald ... Dressier, 7 C. B. N. Childress, 2 Tenn. Ch. (Cooper) 442- S. 391 ; 5 id. 892 ; 27 L. J. C. P. 113 ; 6-7-9, 454 ; Dorwin ^. Smith, 35 Vt. Ware o. Morgan, 67 Ala. 467 ; Baker 75. V. Cornwall, 4 Cal. 16 ; Daniel .■. Mer- (o) Robinson v. Gilman, 43 N. H. cer, 63 Ga. 444; Runde v. Runde, 59 490; Blunt v. Boyd, 3 Barb. 210. 111. 98 ; Darst v. Bates, 95 id. 512 ; (p) Forth u. Stanton, Will. Saund. Lucas 0. Chamberlin, 8 B. Mon. 276 ; (Sit E. V. Williams's ed.) 233, note : Smith V. Sayward, 5 Greenl. 504 ; see Merner v. Klein, 17 U. C. C. P. Rowe V. Whittier, 21 Me. 549 ; Doane 292 ; see Allen i'. Prior, 3 A. K. Marsh. a. Newman, 10 Me. 69 ; HoU v. Dollar- 306. 185 § 112.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. terms of the promise will be a eatisfaction of his own debt, or the discharge of an obligation resting upon him as a prin- cipal. (g) The distinction is fully recognized between a prom- ise to pay one's own debt to a third person instead of paying it to his own creditor — the latter agreeing that the payment shall be so made in order to discharge his debt to such third person — and an agreement to pay the debt of another person to the creditor of such person upon some other consideration. The first was held not to be within the Statute of Frauds ; but the rule is otherwise as to the latter.(?") § 112. Before considering the many varieties of this kind of promise, it may be well to note a few cases in theinomise which it has been held that the promise was not to^Davthe"^ one to pay the promissor's own debt, and was there- promissor's fore within the Statute of Frauds. Thus a promise own debt. , . to pay a debt to be transferred from the promissor s account to that of one B.(s) And in an analogous case, even though the defendant has become partner with the person answered for.(<) And where a note, executed by the plaintiff and defendant, was given for land bought by the latter, who afterwards agreed to give up the land to the former, if he, the plaintiff, would pay the note and hold the defendant indem- nified. (m) There is a dictum in a Massachusetts case to the effect that a promise to guarantee notes which are to be paid as the price of land bought by the guarantor is within the Statute of Frauds, but qucere.{v) That the guarantor owned a hotel, and the third party was his lessee, is not enough to make the obligation of the latter the own debt of the former, so as to take a guaranty thereof out of the Statute of Frauds.(w) Where one T. employed the defendant, and had agreed to board him, but afterwards agreed with the plaintiff that the latter should board him and his men, it was said in (7) state Bank v. Metier, 2 Bosw. (<) Sternburg v. Callanan, 14 la. 398. 259. (r) Blunt V. Boyd, 3 Barb. 210. («) Bumford u. Puroell, 4 Green, (s) Brunton v. DuUens, 1 F. & F. (Iowa) 490. 451. See as to promises of this class (11) Root v. Burt, 118 Mass. 523. within the Statute of Frauds, Styron (w) Langdoni;. Richardson, 58 Iowa, V. Bell, 8 Jones, 225. 610. 186 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 113. a New York case that the Statute applied to a promise by the defendant to pay if T. did not. (a:) A subsequent oral promise to pay a debt will not make the promissor liable if the original agreement was a guaranty within the Statute of Frauds. (y) A promise to pay one's own debt occurs in many shapes, which makes a division of the cases into categories or heads manifestly convenient ; the difference in principle in the fol- lowing classes is, however, really slight and sometimes non- existent. § 118. The transaction by which the principal liability comes to rest on the guarantor has been occasionally re- garded as a purchase bj^ the defendant of the plain- tiieoi>^^ tiff's claim against the third person. (2) Thus where W. E. K., brother to the defendant, owed the plaintiffs on cer- tain promissory notes which they had sent away for collection ; the defendant gave the plaintiffs new promissory notes, and gave him a receipt acknowledging the notes to be in full satisfaction of the indebtedness of W. E. K.,and gave at the same time an order to the defendant in favor of "W. E. K., directing their agent to deliver the original notes, the court held that the Statute of Frauds did not apply, as the defendant had bought the plaintiffs' claim against W. E. K., and had given them the notes therefor.(a) Where one C. made his note to the defen- dant, and the latter who wished to establish a set-off', said that the plaintiff had promised to pay C.'s note, and that rely- ing upon the plaintiff's promise, he, the defendant, took it ; the court inferred that the plaintiff owed C, and took this means of paying his debt, and that non constat, that C. owed the defendant, as the latter may merely have bought C.'s claim against the plaintiff; the plaintiff's objection of the Statute of Frauds was therefore overruIed.(6) Where the creditors of the defendant, a bankrupt, agreed to accept a composition and (x) Rawson v. Springsteen, 2 Th. & theory is discussed, and regarded as C. 417, citing Brown •;. Weber, 38 N. not sound. Y. 189. („) Mead v. Keyes, 4E. D. Sni. 512, (i/) Allen V. ScarflF, 1 Hilt. 212. the notes were not a sufficient compli- (z) SeeLawMag. &Rev.,vol. xxxii., ance with the Statute, because semlle 3d ser. 98; in which the purchase the consideration was not expressed. (6) Lemmon v. Box, 20 Tex. 332. 187 § 113.] LAW OF THE STATUTE OF FRAUDS. [CIIAP. V, discharge their claim, in consideration that W., the defendant's agent, should pay them 10s. in the pound in full satisfaction of their claims, which they were to assign W. ; it was held that the defendant having complied with his agreement could prove it by oral evidence in defence to a suit for the entire debt.(c) And so, where the defendant, who has bought a claim agrees to pay for it, the Statute of Frauds does not apply; the plaintiff had released the original debtors from any liability to herself (rf) It has been said, that where the contract is such as to substantially transfer the debt to the promissor, the rule of a new consideration, moving to the latter, applies, and the oral guaranty is valid. (e) In these cases it will be noted that the original debt to the plaintiff was extinguished, and for that reason alone the Statute of Frauds would not have applied, and where this extinguishment does not take place the Statute does apply. Thus, a promise to the plaintiff, that if he would go on with certain contract-work, the defendant would pay him a certain sum for his claim, and get it out of the person for whom the plaintiff was doing the work, was thought to be a guaranty, and without consideration. If not a guaranty it was the purchase of a chose in action, and so within the Statute of Frauds of 'Sew York.(/) The purchase theory, though strenuously pressed in a decision in the Ex- chequer Chamber, and on a state of facts which would have sustained it, if it were ever sustainable, was regarded as a mere cloak to cover a plain guaranty ; the case was as follows : The defendants who held in pledge the rights of C. & Co., under a contract to build a bridge, having advanced money to C. & Co., to induce the plaintiff to furnish the latter with materials to finish the bridge, and in consideration of a three per cent, discount, agreed to cash a bill drawn by the plaintiff on C. & Co., and endorsed by the plain tifl"; one such bill the defendants paid, but on being tendered a later bill in the same shape, and being asked for a payment of 97 per cent, of the amount, re- (c) Anstey v. Harden, 1 B. & P. N. (e) Cross v. Richardson, 30 Vt. 648. Rep. 131. (/) Talmadge v. Spoflford, 41 N. Y., (d) Lord V. Davison, 3 Allen, 131; Super. Ct., 431. see Lacy v. M'Neile, 4 D. & R. 7. 188 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 114. fused to take tlie one or give tlie other, and the defence of the Statute of Frauds was upheld. (^) § 114. A distinction has been made to the effect that where the original debtor promises the assignee of the claim p^^mj^g ^^ to pay it, the Statute of Frauds does not apply, assignee of , , , • 1 1 -, • , . •' the debt. though the assignor had guaranteed it; this was called a purchase(/i) of the debt, but a promise bj' the original debtor to pay his own debt to whomsoever made, is different from a promise made by one not previously indebted ; in neither case has the purchase feature any eifect. So in an- other case such a transaction has been called the assignment of a fund, when the defendant has money in his hands ready to pay his contractor who gave an order on the defendant to the plaintiff, an employe of his, the contractor ; the defendant having promised to pay the plaintiff is liable notwithstanding the Statute of Frauds (t) It may be said broadly that a pro- mise by a debtor to pay the debt to the assignee of the creditor is not within the Statute of Frauds, being a promise to pay one's own debt ; {J) especially when the creditor had been a debtor to the assignee and was discharged, and the obligor of the assigned agreement substituted for him.(/i:) So where upon the joint application of one C. and the defendant to the plain- tiff for lumber, and on the plaintiff's refusal to deliver it upon the credit of C, the defendant stated that he owed C. money enough, and if the plaintiff would deliver the lumber and procure G.'s order, which would serve as a voucher to him for making the payment, he would pay the money to the plaintiff. This was a promise by a debtor to pay money (g) Mallett v. Bateman, 16 C. B. N. 27 Wis. 189 ; and see cases in tlie next S. 543 ; 10 Jur. N. S. 'S65 ; 10 L. T. N. note. S. 869. (j) Indiana Man. Co. u. Porter, 75 (/() Mount Olivet Cemetery Co. v. Ind. 429 ; Putney v. Farnham, 27 Wis. Shubert, 2 Head, 120 ; see Rider v. 189 ; Beardslee ;;. Morgner, 4 Mo. App. Riely, 2 Md. Ch. ] 6 ; 22 Md. 540. 142 ; see, also. Curie v. Ins. Co., 12 Mo. (0 Andrews v. Smith, 2 Cr. M. & R. 580 ; Creel v. Bell, 2 J. J. M.irsh., 311. 631 ; see Nelson o. Hardy, 7 Ind. See supra, § 113. 367; as to assent of the debtor to the (k) Carpenter v. Murpliree, 49 Ala. assignment, see, also. Rider v. Riely, 85 ; See Decuir i'. Ferrier, 1 McGl. 207 just cited, and Putney c. Farnham, (La.). 189 § 115-] LAW OF THE STATUTE OF FRAUDS. [chap. V. which he owed a creditor of his creditor, with the assent of the latter and in discharge of his own pre-existing liability. It was not a mere promise to pay the debt of a third person, but a promise to pay his own debt; the transaction was in the nature of a transfer of the claim held by C. against the defendant from C. to the plaintiff upon a consideration en- tirely 8ufHcient.(^) § 115. A common example of this class of apparent guaran- ties is where the purchaser of property agrees in anty really payment of its pricc to discharge a debt due by mlnt^f ^^® seller. This category does not in principle priceof diifer much from promises in consideration of a property ■*■ bought by fund.(m) The subject matter of the sale may be guaran oi. Yealty.{n) Or personalty. (o) So a promise to pay taxes as part of price of land.(p) A deed to the defendants in consideration of their paying the vendor's debts is not (0 Phillips V. Gray, 3 E. D. Sm. 69. (m) Grant v. Pendery, 15 Kan. 236 ; Clopper u. Poland, 12 Nebraska, 69 ; FuUam v. Adams, 37 Vt. 391. (n) Lucas c. Payne, 7 Cal. 96 ; McLaren u. Hutchinson, 22 id. 190; Ford 0. Finney, 35 Ga. 260 ; Brashear V. Moran, 1 Kent, L. Reporter, 417 (S. C. Ky.) ; Hardy v. Blazer, 29 Ind. 227 ; Carter v. Zemblin, 68 id. 439 ; Chain- berlin v. Ingalls, 38 la. 300 ; Morrison V. Hogue, 49 Iowa, 574 ; Perkins i-. Hitchcock, 49 Mo. 474 ; Wagner v. Egleston, 49 Mich. 222; Lee v. New- man, 55 Miss. 373 ; Britton v. Angier, 48 N. H. 422 ; Berry v. Doremus, 30 N. J. Law, 402; Gold «. Phillips, 10 Johns. 414; Whitbeck v. Whitbeck, 9 Cow. 269 ; Seaman u. Hasbrouck, 35 Barb. 153 ; Bethel v. Woodworth, 11 Oh. St. 395 ; Cushman v. Garrison, 2 Cine. 147 ; Miller v. Turnbach, 7 Luz. Leg. Reg. 5 (C. P. Luz. Co. Pa.) ; Story r. Menzies, 3 Pinn. (Wis.) 330 ; Hoile u. Bailey, 17 N. W. Rep. 322, S. C. Wis., citing Young w. French, 35 Wis. 116 ; Putney v. Farnham, id. 190 187; and denying a dictum of Dixon, C. J., in Dyer v. Gibson, 16 id. 557; McCarthy c. Oliver, 14 U. C. C. P. 292. (o) Cameron v. Clarke, 11 Ala. 263 ; Mason v. Hall, 30 Ala. 601 ; Rabber- man v. Wiskamp, 54 111. 179 ; Wilson o. Bevans, 58 id. 234 ; Johnson v. Knapp, 36 la. 617 ; Morrison;'. Hogue, 49 Iowa 574; Griffin r. Derby, 5 Greenl. 476 ; Brown v. Attwood, 7 Me. 360 ; Todd v. Tobey, 29 id. 222 ; Calkins ... Chandler, 36 Mich. 321 ; New York, etc. R. R. y. Gilchrist, 16 How. Pr. 564 ; Cox v. Weller, 6 Th. & C. 310; 3 Hun, 612; Cailleux u. Hall, 1 E. D. Sm. 6 ; State Bank o. Mettler, 2 Bosw. 397 ; Quintard v. De Wolf, 34 Barb. 97 ; see Sanders v. Gil- fespie, 59 N. Y. 250 ; Clymer u. De Young, 54 Pa. St. 119 ; Gleason v. Briggs, 28 Vt. 139 ; Cotterill v. Stevens, 10 Wis. 423 ; Fergusson v. Kerr, 5 U. C. Q. B. 261 ; DoUard v. Potts, 6 All. N. B. 447. (p) Preble v. Baldwin, 6 Cush. 549 ; Brackett v. Evans, 1 id. 79. CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 116. within the Statute of Frauds; the promise is not a guaranty, but to pay the guarantor's own debt ; and the liability is not confined to the amount of the consideration for the ]and.(§') A common example is the purchase of a partnership or busi- ness interest or a stock of goods or the like.(r) Where the plaintiff who had bought a horse from H., for which he was to give his note for $300, resold the horse to the defendant for $250, who took the note to li. and got the horse; H. endorsed the note which was to his order, and had it discounted, and the defendant and H. negotiated without result for a rescis- sion of the sale as between themselves ; it was held that the de- fendant's promise was not a guaranty within the Statute of Frauds, and that he was liable.(s) Where B. & E,. sold to the defendant the exclusive right to sell certain scales in a par- ticular locality and took his notes therefor, and at the same time transferred to him a contract under which E. and others were bound to make the scales for them, B. & E.. B. & R. also verbally guaranteed to the defendant that E. and others would furnish the scales under the contract. B. & R. transferred the notes to the plaintiffs who had notice however. It was held that a breach of the verbal guaranty was a good defence in a suit upon the notes. The Statute of Frauds did not apply, the guaranty being in substance one to answer for the guaran- tor's own obligation. (<) § 116. In a North Carolina case, however, it was said that a promise whereby a purchaser of property of a testator agrees (?) Kingsbury v. Earle, 14 N. Y. (s) Ball v. Eastburii, 3 Houst. 403. Week. Dig. 386, N. Y. S. C. (0 Wilson v. Hentges, 29 Minn. 103. (r) Lee u. Fontaine, 10 Ala. 764; So where L. & Co., being indebted to the Bracken v. Dillon, 64 Ga. 251 ; Eddy plaintiff, assigned to the defendant a V. Roberts, 17 111. 505 ; Haggerty u. contract they had with a certain rail- Johuston, 48 Ind. 43 ; Vanners v. Du- road, and that in consideration thereof bois, 64 id. 338 ; Rhodes v. Matthews, the defendant guaranteed to L. & Co. 67 id. 131 ; Todd v. Tobey, 29 Me. 222 ; the performance of the contract, and Lord V. Davison, 3 Allen, 131 ; Bone- agreed with L. & Co. to pay the latter, bright u. Pease, 3 Mich. 321 ; Schind- to the plaintiff, the Statute of Frauds ler V. Ewell, 45 How. Pr. 34 ; Shaver v. does not apply, and the plaintiff may Adams, 10 Ired. 14 ; Townsenda. Long, sue ; Laws v. Scales, 1 Cine. Law Bull. 77 Pa. St. 146 ; Wynn v. Wood, 10 W. 314, Super. Ct. Cincin. N. Cas. 346 (S. C. Pa.). 191 § 118.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. to pay certain debts of the latter is within the Statute of Frauds ; and that even if it were not it could not in Who can absence of a novation be sued upon by a creditor of the testator.(ii) And as to the right to sue the Con- necticut rule is the same wa,y.{v) But the weight is clearly however in favor of the right of the creditor to sue when the promissor has funds of the debtor in his hands or owes the latter under an obligation which by the guaranty he proposes to discharge (see § 42).(w) And the rule is the same even in Pennsylvania, where it is held that an oral promise made by the guarantor to the person answered for cannot be sued on by the latter's creditor.(x) § 117. An important and somewhat difficult question in this connection is to ascertain what is the promis- Whatisthe i i mi i t promissor's sor s own debt. J he "leading purpose rule, and own e . j.j^^^ ^£ ^j,jg u ^^^^^ consideration moving to the pro- missor" already so fully considered, raise doubts of a similar kind.(?y) § 118. The point of most significance is the relation which the guarantor has borne to the person guaranteed. Thus where the latter is the agent of the former, the promise as a rule is original, and is valid by parol. Where money paid to a third party is sought to be recovered as money paid to the defendant's use, it is not necessary that the evi- dence should be in writing; if the money was paid to the de- fendant's use he is liable whether the promise is proved by parol or writing ; if not paid to his use but to that of the third person he would not be liable even though tliere was a writ- ing.(^) Where the plaintiti", an agent of ship-owners, paid (u) Styron v. Bell, 8 Jones, 225. (x) Townsend r. Long, 77 Pa. St. (f) Clapp V. Lawton, 31 Conn. 100. 146. (w) Mathers ik Carter, 7 Bradw. 22IJ ; {>/) See Ilopkinson v. Davis, 5 Haggerty u. Johnston, 48 Ind. 43 ; Phila. 147. Hardy v. Blazer, 29 Ind. 227 ; Rhodes (z) Thurston <•. James, 6 R. I. 111. t-. Matthews, 67 id. 131 ; Seaman i;. So where G. & Co. had imported for the Hasbrouck, 35 Barb. 153 ; see Gold «. defendant various artioles, which arti- Phillips, 10 Johns. 414 ; Ford v. Fin- cles they had bought of the plaintiffs, ney, 35 Ga. 260 ; Laws v. Scales, 1 The plaintiffs had charged G. & Co. Cine. Law Bull. 314, Super. Ct. Cine. ; with the goods, and G. & Co. had Lee V. Newman, 55 Miss. 373. charged the defendant. Afterwards, 192 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 118. over to them under a promise of indemnity funds claimed, and ultimately recovered at law from the agent by certain freight- ers of the ship, the promise of indemnity was held not to be a guaranty. (a) The Statute of Frauds does not apply where the plaintiff, as accommodation acceptor having defended an ac- tion, sought to recover the amount paid and costs from the defendant, for whose benefit she had accepted, and at whose direction she defended the first suit.(6) A promise by the de- fendants whom the court regarded as identical with a certain company to repay the plaintiff whatever advances he might make the foreman of the company, is not within the Statute as a guaranty. (e) Where the defendant told the plaintiff", a bank, that T. L. & Co. were to receive shipments from him, and that if his, the plaintiff's, agent R., who was to attend to the business, drew drafts upon it, it was to pay to them. E. drew a draft upon T. L. & Co., which the bank cashed, but which T. L. & Co. dishonored. The court held that the defendant was bound to reimburse the bank, the debt being his through E-. his agent. (ci) The plaintiff' buying stock in his own name for a principal, the defendant, and holding it subject to the latter's direction, can charge the latter with any loss on the transaction, and the Statute of Frauds does not apply ; secus, if the broker had acted as a principal, and as such c&n- tracted with the defendant.(e) Where the plaintiff' became G. by a cross entry in Ms books, made Perman v, Inglis, 1 Rice Dig. (So. Car.) the defendant debtor to the plaintiffs, 360. instead of to himself; and at no great (a) Stocking v. Sage, 1 Coiui. 519. distance of time failed. The plaintiffs (6) Howes v. Martin, 1 Esj>. 162 ; see applied to defendant for payment, Knight v. Sawin, 6 Me. 363. So, where showing him the cross entry in G.'s a sheriff, who had only a technical in- books, etc. The defendant aoknowl- terest in a suit, carried it on on behalf edged the justness of the demand, and of an execution-creditor,, who was the promised to pay the plaintiffs the real party in interest, a promise by amount. It was held that this was not the latter to the former to bear the a promise to pay the debt of another charges of the suit is not within the within the Statute of Frauds, but Statute of Frauds ; Noel ^. Hart, S viewed in the most favorable light for C. & P. 230 ; see supra, ^ 113. the defendant, was a, promise to pay (c) Gradwahl v. Harris, 29 Cal. 155. his own debt to another than the per- Crf) Kohn v. Nat. Bank, 15 Kan. 434. sontowhomit was originally due, with (e) Geniu w.. Isaacson, 6, N. Y. Leg. the consent of all parties, and that de- Obs. 215. fendant was bound by his promise. VOL. I.— 13 193. § 119.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. surety for one D. S. on a note for price of land which the defendants had bonght, and' the title to which they took in the name of D. S., an oral promise by the defendant to indem- nify the plaintifi'as to his suretyship is valid. (/) § 119. The connection between the guarantor and the per- son answered for may be an official one, and yet sufficiently close to make the obligation guaranteed the promissor's own debt. Thus, where the plain- tiff lent a corporation certain stock wherewith to raise money, and the president and other directors of the corporation guaranteed the fulfilment of the contract, and promised to return the stock, the contract was said to be original. (_9) Where the promissors represented themselves to be owners of, and personally liable for, certain bank-notes, they are liable to one who took the notes in reli- ance upon their representation. (A) Where the 0. & P. R. E. agreed by writing to pay the plaintiff an annuity in lieu of other damages for their negligence in causing her husband's OfBcial connection between the guar- antor and the person answered for. (/) Smith n. Say ward, 5 Greenl. 504. Where the vendees of land at- tempted, upon failure of the title, to hold the agent of the vendors liable for the price paid, the Statute of Frauds was held to apply under the following circumstances, and the court said; "The report states that the defendant (Little) when the deed was delivered, inasmuch as the plaintiff's agent expressed fears as to the validity of the title of the Pejepscot proprietors, ' promised that if the deed did not have the effect to pass and secure the said land to the plaintiff, he would make it good;' and that the plaintiff, relying on this assurance and promise, was induced to pay his money. The meaning of the expression, "he would make it good," could not have been that he would make that deed good, nor the land good ; but that if that deed was not sufficient to convey the title to the land, he would "make it good;" that is, that the title should 194 be perfected and legally conveyed ; for it must be remembered at that time no doubt existed on the part of Little, or the proprietors, as to the soundness of the proprietary title. It seems to the court that such is the legal import of Little's promise, but if it be considered as extending further, and amounting to a promise to indemnify the plaintiff by way of damages for the loss of the title, we apprehend the legal ground will not be changed. Considering the promise in either point of view, it is within the Statute of Frauds ; it is either a contract respecting real estate and the conveyance of the same, and then it is void, or else it is a promise to pay the debt or answer for the de- fault of another, and then also it is void ; Bishop r. Little, 5 Greenl. 366. (g) Simons c. Steele, 36 N. H. 82 ; see Spooner v. Dunn, 7 Ind. 81. (70 Tarbell v. Stephens, 7 la. 166, sed qucsre. CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 120. death, and the Pittsburgh, etc., Railroad bought the 0. & P. R. R., and were authorized by act of assembly to assume the debts of the latter, and afterwards were reorganized as the Pittsburgh, etc., 'Ra.Wway, under a foreclosure of the mortgage against the Pittsburgh, etc., Railroac?, and paid both aBrailroad and railway the annuity as it accrued, it was held that there was evidence for a jury that the railway promised to pay the annuity, and the Statute of Frauds did not apply. («) In a case not affected by the Statute of Frauds, an obligation in which the directors of a bank acknowledged that they had made a mistake in lending the bank's funds, and that they consi- dered the debt their own, shows an original indebtedness, not a guaranty. (j) The promise of an overseer of the poor to pay for medical attendance furnished a pauper is not within the Statute of Frauds ; but here no one else was liable.{/;) § 120. In most instances, however, where the connection between the parties is only official, the promise by one to answer for the other is a mere guaranty, cases of Thus a contract of reinsurance has been held an ^PPl,''^^'i°° of the Stat- ordinary guaranty, and not provable by parol. The ute even . . , Ti I wheregua- remsuring company issued no policy, and took up rantorwas the policies of the first company to assist in liqui- conneeted dating its afFairs.(?) So a promise by a stockholder with person ^- ^ -' ^ •' answered and officer to pay for goods furnished to a corpora- for. tion.(m) A promise by a corporation to pay a debt due by a partnership with the same name, and who trans- acted the same business, and had the same agent, is a guar- anty, and invalid by parol. (?i) A note given by a member of a vestry for the debt of a church is a mere guaranty.(o) A contract by the president of a company to pay the plaintiff's claim contracted with third parties prior to the incorporation of the company is a guaranty within the Statute of Fraud8.(jo) (t) Pittsburgh, etc., R.W. t. stokes, (m) Searight u. Payne, 2 Tenn. CIi. 4 W. N. C. 552. 178 ; see Trustees of Andover v. Flint, (j) Bank of Tennessee;;. Barksdale, 13 Meto. (Mass.) 543. 5 Sneed, 76. (n) Georgia Co. v. Castleberry, 43 (k) Lyde ;;. Higgins, 1 Smith (Eng.), Ga. 189. 305. (o) Rogers v. Waters, 2 Gill & J. 70. (?) Ellis V. Fireman's Ins. Co., 27 (p) Little Rock, etc., R. R. c^. Perry, La. Ann. 369. 37 Ark. 178, 194. 195 § 121.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. Where a school district board lent money to Bailey, the de- fendant, and Gibson, another defendant, and his co-trustee of the district, verbally acknowledged a joint liability with Bailey for the repayment of the sum, and it did not appear that Gribson got any of the money, it was held that his verbal acknowledgment was a guaranty within the Statute of Frauds. (g) A personal guaranty of the president of a bank cannot be orally shown to be a guaranty by the bank, both on the Statute of Frauds and because oral evidence is not admissible to contradict a writing. (r) § 121. In the affairs of a partnership the relation may be so intimate as to make what would otherwise be a Thip."'^'^ guaranty an original promise. Thus where a cred- itor of one partner on a note bought goods of the firm, an agreement in which all joined that the price of the goods should be credited on the note, is not within the Statute of Fraud8.(s) Where a travelling partner is authorized by the firm to obtain money by drawing on D. C. & Sons, it is not a guaranty, but an original debt of the firm, who are bound to reimburse D. C. & Sons.(i!) In a Louisiana case, where one Arick was sought to be held, parol evidence was introduced to show that, in the first place, the due bill was given for a purchase made by the partnership with the know- (7) Bailey u. Trustees Scliool Dis- instruction numbered as the serenth, trict, 14 Mo. 499. said : " The seventh would have been (?■) National Bank of Sturgis v. misleading, perhaps, although literally Bennett, 33 Mich. 524. See § 100. correct, as an abstract proposition. In Little Rock, etc., R. R. i-. Perry, Under the circumstances, it might 37 Ark. 178, the following instruction have diverted the attention of the jury was requested: "That if the jury from the possible implied contract by believe from the evidence that the conduct, and by the use of the benefits defendant company, by its president of a contract. The refusal was not or other ofBcer, did verbally agree to error. It would have been better, pay the plaintiff's claim contracted however, to have qualified it by the with other parties prior to the incor- insertion of ' if there had been no other poration of said company, such verbal sufficient evidence of an implied or agreement or promise is void by the express promise,' or words to that Statute of Frauds, as an undertaking effect." to pay the debt of a third person, and (s) Rhodes v. McKean, 55 la. 548. the jury must find accordingly." {t) Van Reimsdyk v. Kane, 1 Gallis. The court, speaking of the above 638. 196 CHAP. V,] THE SUBJECT MATTER OP THE GUARANTY. [§ 122, ledge of Arick, and for the advantage of his firm ; and, sec- ondly, that he promised, as commercial partner, to pay the debt. Such a promise can hardly be called a promise to pay the debt of a third person, and the above was held provable by parol, and not a guaranty.(M) A promise by a partner to pay his copartner's debt, on consideration of forbearance of execu- tion on a judgment against the latter, is not a guaranty within the Statute of Frauds, but a promise to pay one's own debt.(?;) So it has been held that a promise to pay a debt due by a firm to which the promissor belonged is not within the Statute of Frauds.(w) So the Statute has been held not to apply to a promise made by the defendant's copartner in the partnership name to pay a partnership debt, though part of the debt was that of a former firm of which the defendant was not a member, but to which the existing firm was the successor.(x) On the other hand, there are several instances of promises of this general character being held to come within the Statute of Frauds. Thus, in Louisiana, a new firm is not liable on a verbal promise to pay debts of the old firm. Semble the change was in adding a new partner to the old firm.(2/) ITor for a note given by the former firm for the rent of a store, though the new firm used the store.(2) An oral promise by one of a firm to pay a partnership note which another of the firm had given for his private debt is within the Statute of Frauds. (a) Where the creditor of a firm took the individual note of one of the partners in satisfaction, a subsequent promise by the other partner to pay the note is a guaranty within the Statute of Frauds.(^)) § 122. A promise by a wife or husband to answer for the debt of the other is a guaranty within the Statute „ " *' Husband or i rauds.(c) A promise by a husband before and wife. (li) Succession of Arick, 22 La. Ann. (5) Greenleaf v. Burbank, 13 N. H. 503. 458 ; see Davis c Caverly, 120 Mass. (u) Rice V. Barry, 2 Cr. C. C. 447. 415. (w) Files V. McLeod, 14 Ala. 611. (c) Eastwood v. Kenyon, 11 A. & Ell. (jc) Wilson V. Dosier, 58 Ga. 602. 438 ; Beasten o. Hendrickson, 44 Md. (y) Paradise v. Gerson, 32 La. Ann. 616 ; Connerat v. Goldsmith, 6 Ga. 20 ; 534. Thwaites v. Curl, 6 B. Mon. 472; Rol- (2)Silliman!). Short, 26La. Ann.512. lins v. Crocker, 62 Me. 245 ; Grover v. (a) Taylor v. Hillyer, .S Blaokf. 433. Buck, 34 Mich. 522. 197 § 122.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. marriage to pay the debt of the intended wife is a guaranty within the Statute of Frauds if the wife is not discharged, and a renewal of the promise after marriage creates no new liability. (di) An oral promise by a husband to pay for land conveyed to his wife is within the Statute of Frauds. (e) The promise is equally a guaranty though the person answered for is dead.(/) Where the plaintiff had a claim against a man, a promise by the latter's widow in consideration of forbear- ance to pay the claim is within the Statute of Frauds, where there was no property of the husband liable to pay the debt, the whole being assigned to the widow in satisfaction of her rights. (§') A direction by a man to his wife to sign a note in her own name, a refusal by him to execute the note him- self, and a promise by him to see it paid constitute a case of ordinary guaranty to which the Statute of Frauds applies. (A) Where a husband bought goods which were for the benefit of the wife's separate estate, a subsequent promise to pay is a mere guaranty witliin the Statute of Frauds if the husband bought for himself and not as her agent; if he had acted as her agent, her parol ratification would have been good.(2) It has, however, been said that a promise by a wife to charge her separate estate witli the amount of a sum dishonestly spent by her husband as agent for the plaintiff is not a guar- anty. (_/) Where lumber was furnished to a contractor to be put into a certain house and was charged to him, it was held that though the property was that of the defendant's wife, yet the lumber having been used, and the defendant with his wife and family enjoying the house, he was liable on his sub- sequent promise to pay for the lumber, notwithstanding the (rf) Cole V. Sluirtleff, 41 Vt. 315. and herself, though made after his (e) Bagley o. Sasser, 2 Jones's Eq. death, and though she was adminis- 351. tratrix, does not hind her personally, (/) Waul V. Kirkman, 27 Miss, being by parol and for the debt of 825; Pfeiffer «. Adler, 37 N. Y. 164; another, the bond as to her being void ; Lennox v. Eldred, 65 Barb. 412 ; Bost- Guishaber i'. Hairman, 2 Bush, 321. wick ;;. Eldred, 8 Alb. L. J. 221 ; Hoef- (h) Miller v. Long, 45 Peun. St. 352. linger v. Stafford, 38 Wis. 344. (i) Travis v. Soriba, 12 Hun, 393. (g) Durant ... Allen, 48 Vt. 60. A (j) Whitmore u. Farley, 28 W. R. verbal promise by a wife to pay a sum 910. due on the joint bond of her husband 198 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 124. Statute of Frauds.(i) The promise by a reputed father to pay for the board of his illegitimate child has been considered a guaranty, the mother having in the first instance contracted to pay such board. (^) Where a tax collector had lost his list aud could not tell who had paid him and who not, and his father at a town meeting promised orally to pay up any defi- ciency in the tax bills, if the town authorities would give a list and would pay the expenses of litigation connected there- with, this was held to be a mere guaranty and within the Statute of Frauds. (m) § 123. "Where the defendant, already liable with the person answered for, undertakes to fulfil the latter's liability, j^ promise the Statute of Frauds does not apply.(n) "Where byagua- the plaintiff had a former action against the de- ready fendant and two others, and the defendant promised that if that suit were discontinued he would pay, the Statute of Frauds does not apply.(o) "Where the defendant, one of several trustees and executors, renounced probate and dis- claimed, it was, nevertheless, held that the defendant's show of liability for the acts of his co-trustees, etc., was enough to make a promise by him to pay a certain sum in settlement of claims against the estate original and binding. (p) § 124. This distinction is an important one in its bearing upon the vexed question of the validity of an oral indemnity to one for becoming a guarantor; many forbecom- of the authorities cited to show that such an in- i°gieia- rancor. demnity is not within the Statute of Frauds(^) (k) Carey v. Albert, 2 Pears. 300. 46 Mo. 399 ; Perkins ■ 1 • X 1 ^ • in Guaranty ther evidenced by note or otherwise) due him, the de- of a debt fendant, and agrees with the plaintiff to answer for ''^^'sned. its fulfilment by the obligor, the Statute of Frauds does not apply.(s) Thus it has been held, that a guaranty of a note sold for a valuable or any sufficient consideration is not within the (r) Stidham v. Sanford, 36 N. Y. Sup. 343. Where the undertaking of the surety is not for a direct performance by him- self, but that his principal shall per- form, and that he will be bound in case of non-performance by the principal, the undertaking is collateral. It is a promise distinct and separate from the original contract, to which it is colla- teral, and must be in writing and ex- press the consideration ; Perkins u. Goodman, 21 Barb. 220. So said the court in a North Carolina case : " Now the liability to creditors of the defendants and their sister, as next of kin, was not joint, but arose, if at all, by reason of that portion of the assets of their father, which came to their respective hands as their seve- ral shares of the estate. Each was, therefore, liable for only an equal pro- portion of the money ; at all events, in the first instance, and while the others were able to pay their parts, which is not questioned here. Hence, it is ob- vious, if one of the defendants had verbally promised to pay the whole of this demand, that the promise would not have been binding, under the Statute of Frauds, beyond his own one- third ; for, beyond that, the liability was not his own, but that of another. It seems clear that an undertaking by the defendants in a joint form to pay the whole debt cannot alter the rule of law, or the legal effect of the promise as to each, in that respect. For if two persons owe another separate debts, their joint oral promise to pay both debts cannot sustain a joint action, since it is a promise by each to answer for another in respect to all but his own original debt;" Hill v. Doughty, 11 Ired. Law, 197. (s) McLaren f, Hutchinson, 22 Cal. 190 ; Mobile R. R. v. Jones, 57 Ga. 200 ; Danst V. Bates, 9.5 111. 512 ; Jennings v. Crider, 2 Bush, 325 ; Jones v. Palmer, 1 Doug. (Mich) 380 ; Thomas u. Dodge, 8 Mich. 54 ; Barker v. Scudder, 56 Mo. 275 ; Lessee v. Williams, 6 Lans. 228 ; Garden v. McNiel, 21 N. Y. 339 ; Fow- ler V. Clearwater, 35 Barb. 149 ; Sea- man V. Hasbrouck, 35 Barb. 153 ; Milk V. Rich, 22 N. Y. Supreme, 179, 80 N. Y. 269 ; Dauber v. Blackney, 38 Barb. 434 ; Bruce v. Burr, 67 N. Y. 241 ; Ash- ford !;. Robinson, 8 Ired. 116 ; Rowland V. Rorke, 4 Jones', 339 ; Adcock v. Flem- ing, 2 Dev. & Bat. 227 ; Malone v. Keener, 44 Pa. St. 107 ; Taylor v. Pres- ton, 79 id. 441 ; Peck v, Thompson, 15 Vt. 639 ; Story v. Menzies, 3 Pinn. (Wis.) 330; Eagle Mowing Machine Co. V. Shattuck, 53 Wis. 455 ; Wyman <,. Goodrich, 26 Wis. 22 ; Rarey v. Cor- nell, Franklin Dis. Court (Wis.), 2 West. L. M. ; see, also, Boehm v. Camp- bell, 8 Taunt. 681 ; How u. Kemball, 2 McLean, 107. 205 127.] LAW OP THE STATUTE OF FRAUDS. [chap. V. Statute.(<) The Statute of Frauds has been held not to apply, " or as the same thing is sometimes expressed, a guaranty is not within the Statute where the debt or contract guaranteed was transferred from the guarantor to the guarantee at the time of making the contract of guaranty upon a consideration moving wholly between the parties to the guaranty. "(v) Where the payee of a note endorsed it to the plaintiffs as follows: "I sell, assign, and guarantee payment of the within note," etc., this was held to be an absolute engagement, and no notice of non-payment, etc., was necessary. (t<;) In a much disputed New York decision, where the contest waged mostly about the sufficiency as a memorandum of a certain endorsement upon a promissory note, two of the judges thought that the Statute of Frauds did not apply, because the note in suit was taken as payment for the guarantor's debt, evidenced by a note for which the new note was substituted. (x) This same principle has been applied to an endorsement on a check that it is good, the check being passed into the exchange account ; (0 Nichols V. Allen, 22 Minn. 283; Mallory <•. Gillett, 21 N. Y. 412; 23 Barb. 610. In a case in 5th Philadelphia Judge Hare said : "A promise to pay for goods bought by another is within the Statute of Frauds, although imposing a direct and primary obligation, because the consideration moves to the purchaser ; and the di-bt is his, and not that of the party who makes the promise. But a promise that another sliall pay a debt due by us, is really a promise for the payment of our own debt, although by an indirect and circuitous means. And the case is even stronger in ap- pearance, if not in fact, when the note or bond of a third person is given by a debtor to his creditor as satisfaction, with an oral guaranty that it shall be paid, when due, by the maker or ob- ligor, because the object of the trans- action appears on its face, and is plainly not within the meaning of the Statute. 206 The law was so held in Johnson v. Gil- bert (4 Hill, 178), and in several other cases, which are equally convincing by their authority and the force of their arguments;" Stewart (,. Malone, 5 Phila. 440. (i>) Wilson V. Hentges, 29 Minn. 103. (w) Allen u. Rightmere, 20 Johns. 366. Where S., the agent of the defendant, sold a patent-right belonging to the latter to A., who gave S. a note pay- able to the defendant or bearer, this note S. assigned to the plaintiff in pay- ment for goods sold him, S., and guar- anteed it, it was held that the defend- ant who assented to the entire trans- action was bound by the guaranty, which was not within the Statute of Frauds; Lessee c. Williams, 6 Lans. 228. (x) Brown v. Curtiss, 2 Comst. 233 ; see Lessee i\ Williams, 6 Lans. 228; see, contra, below. CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 127. the certificate is a promise by the bank to see paid a debt due by them ;(?/) the bank, moreover, is supposed to have funds of the maker of the check out of which to pay the ]atter.{z) So, where the defendants assignedto the plaintifi" a bond in which they were obligees, and guaranteed its payment, the Statute of Frauds does not apply, because there is a new and beneficial con- sideration accruing to the defendants ; the assignment was not apparently in payment of any previous debt. (a) Where the defendant assigned to the plaintifi:' a note, which he, the de- fendant, held, payable by L., under the agreement that if in a suit by L. against the plaintiff the note should be sustained as a set-off, the plaintiff should account to the defendant, but that if the plaintiff should lose his suit, the defendant should pay the costs and expenses thereof. The plaintiff lost his suit with L., it was held that the defendant's promise was not a guaranty within the Statute of Frauds, the consideration to the defendant being the chance of getting his note paid.(6) (y) Mead v. Merchants' Bank of Al- bany, 25 N. Y. Eep. 149. (z) In a case in 57 Georgia, speaking of the obligation of the defendant, a, railroad company, the court said : " It was to pay its own debt ; it was to guarantee certain papers that the de- fendant had turned over to him" (the plaintiff's assignor) " in lieu of money, and which it agreed to make equal to money. We do not think it comes within the Statute of Frauds. We think, therefore, that no error was com- mitted by the court in refusing to inter- fere with the verdict on these points ;" Mobile R. K. v. Jones, 67 6a. 200. (a) Aikin v. Cheeseborough, 1 Hill (So. Car.), 173. So, where the defendant assigned to one K. a bond made to him, the de- fendant, by one G. to enable K. to get credit for purchases, K. bought from the plaintifif, who relied on the bond endorsed in blank by the defendant, it was lield that the Statute of Frauds did not apply, the new consideration rule being relied on ; Hopkins v. Rich- ardson, 9 Gratt. 490. (b) Brantley v. Carter, 26 Miss. 285. In a Minnesota case the court said that an arrangement as follows would not, even if it had been oral, have been within the Statute of Frauds : " The de- fendants had received from the plaintiflF certain threshing machines to sell on commission, and upon certain terras and conditions, by which, among other things, they were obligated to sell to none but responsible parties, and to endorse or make secure to the plaintiff 's satisfaction all notes taken on sales made to persons considered irresponsi- ble by the plaintiff. " The notes in question were received by the defendants, in part payment of one of the machines sold by them to the makers under this agreement. Deem- ing the makers irresponsible, the plain- tiff refused to accept the notes. Where- upon, to induce him to take them, 207 § 127.] LAW OF THE STATUTE OE FRAUDS. [CHAP. V. A representation and warranty that a promissory note, secured by a mortgage of land, was good, that the debtor was able to pay, and that the mortgaged premises were sufBcient security, and were otherwise unencumbered, is not within the Statute of Frauds. (c) So it was said in another case, that the promise was not a guaranty, but was really in fact a conditional pay- ment. The defendant paid the plaintiff with a non-negotiable note of C.'s. which he, the defendant, held. He further prom- ised, by parol, that if C. did not pay the amount of the note he would. C. proved insolvent, and the defendant was held on the verbal promise.(c?) Where the defendants, the sellers and credit their amount on their in- debtedness to him under the agree- ment, the plaintiff took them witli such guaranty in satisfaction and discharge of the obligation of the defendants, under said written agreements, and their indebtedness to him thereunder, to the amount of the notes for thresh- ing machines theretofore delivered. It thus appears that the contract of guaranty endorsed upon both notes, was supported by a valid consideration beneficial to the defendants, and pro- ceeding to them directly from the plaintiff. The leading purpose of the defendants in making it was to promote their own interest by obtaining a dis- charge from a then existing liability to the plaintiff, and not simply to become sureties upon the notes for the benefit of the makers, or at their re- quest. Their promise in each case was an original one, as distinguished from a purely collateral undertaking, founded upon a valid consideration, moving solely from the plaintiff to them, and wholly distinct and independent of the notes to which the guaranty related." The defendants agreed, in writing, in consideration thereof, to procure the makers of the notes to give security fo]' their payment, or, in default there- of, to endorse them personally to the 208 plaintiff. Failing to obtain such secu- rity the defendants guaranteed their collection ; Sheldon v, Butler, 24 Minn. 515. (c) Huntington u. Wellington, 12 Mich. 15. A verbal guaranty of a note that it was valid and good by one who assigned it in part payment of a debt, will bind him, notwithstanding the Statute of Frauds, the note being in fact usurious and void ; White u. Webster, 68 Ind. 236. (rf) Hall V. Rodgers, 7 Huraphr. 536. In an action founded on the guaranty of certain railroad bonds, it appeared that the defendant owed the plaintiff, and offered three railroad bonds in payment, the plaintiff hesitated, but the defendant said he would guarantee tliem, so that there would be no loss to her. The court said that while the plaintiff's guaranty in this case was of the debt of another, it was much more. So far as originality is concerned, it is the same as it he owned the bonds themselves. It is not necessary that the seller should be owner of the goods in order to make him liable on a gua- ranty of them ; and as the defendant induced the plaintiff to purchase them, he is liable, notwithstanding the Sta- tute of Frauds ; Allen u. Eighmie, 14 Hun, 559. CHAP, v.] TUB SUBJKCT MATTER OF THE GUARANTY. [§ 128. of a contract to deliver chattels agreed by parol with the buyers, that if the original promissors in the contract did not fulfil it, they, the sellers of the contract, would, the Statute of Frauds was held not to apply, there being a new considera- tion arising to the defendants, from the price for which they sold the contract.(f) Where the purchaser of a chattel paid for it with the note of a third person, whose solvency he war- ranted, the Statute of Frauds was regarded as not applying, because the engagement was rather a warranty than a gua- ranty. (/) A promise by the assignee of the vendee of land, under written articles, made to such vendee, to pay the ven- dor certain unpaid purchase-money, is an original promise, and not within the Statute of Frauds ; the vendee as holder to juse of the vendor, brought an action against the assignee of the contract. (^) § 128. Tiiere are two or three instances of promises in which the principle now under consideration has, perhaps, been disregarded. Thus, where a buyer of diere- goods paid for them with the note of a third party, ^^"^ ^ ' which he refused to endorse, but which he said was good, it was held to be no promise, but, query, if it were, whether it was not a guaranty, and within the Statute of Frauds.(A) In two New York cases the same view was taken. Thus it was held, that an endorsement of a note assigned was insufficient for not showing a consideration.(i) And in a later decision, there being such an endorsement, it was held that it was not competent in such a case to show by oral evidence that the defendant was paying his debt to the plaintift" by assigning the note guaranteed.(7") Where a debtor upon a due-bill, when the latter became due, gave some cash and a note of B.'s, which he guaranteed, and when in the suit the creditor elected to go to trial on a count on this guaranty, and to have a count on the due-bill stricken out, the Statute of Frauds (the (e) Beaty v. Grim, 18 Ind. 132. (h) Carpenter v. Wall, 4 Dev. & Bat,. (/) Hassinger i;. Newman, 83 Ind. 145. 125. (i) Johnson v. Gilbert, 4 Hill, 178. (g) Taylor v. Preston, 79 Pa. St. (j) Wood v. Wheelock, 25 Barb. 441. 626. VOL. I.— 14 209 § 128.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. guaranty clause) applies, the due-bill being extingui8hed.(A) The distinction upon which this case goes is certainly a fine (t) Dows V. Swett, 134 Mass. 145 ; 16 Am. L. Reg., N. S., 473, with a long note by Edmund H. Bennett, Esq. The same case on previous ap- peals, 120 Mass., 323, and 127 Mass., 364, citing cases ; see a criticism on this case in 27 Alb. L. J., 323. The following extracts from the opinion of the court in the last appeal show the course of reasoning on which the deci- sion rested: — "Where a note of a third party is taken by a creditor from his debtor for or on account of a pre-existing debt, or as a consideration then first accruing, it may be received either in absolute payment, conditional payment, or as collateral security. And in every case it may be shown by evidence what was the actual transaction, and on what terms the note was received ; Butts .;. Dean, 2 Met. 76 ; Parham Sewing Machine Co. v. Brock, 113 Mass. 195. Where such note is taken in absolute payment of a pre-existing debt, or of a liability for money lent, service rendered, or other considera- tion accruing at the time of taking it, the effect, of course, is to extinguish the liability of the person who trans- fers the note, and to substitute there- for the liability of the parties to the note, as the sole subsisting obligation. But where the note is taken as col- lateral security, or in conditional pay- ment, the right of action against him who makes the transfer is not defeated altogether, but is at most only sus- pended during the time the note has to run, and revives again upon the non-payment of the note at its ma- turity. The original indebtedness in such case is not discharged, unless the note is paid ; The Kimball, 3 Wall. 45 ; Byles on Bills (6th Am. ed.), 236, 210 380, 385 ; 2 Am. Lead. Cas. (4th ed.), 250, 251, and cases cited ; Belshaw v. Bush, 11 C. B. 206, 207 ; Valpy v. Oake- ley, 16 Q. B. 949; Miles v. Gorton, 2 Cr. & M. 512. In the latter class of cases the transaction is as if the debtor said, ' I owe you a debt ; take this note and collect it if you can. If you get the money on it, that will pay you. If you do not, I will myself pay you what I owe.' In all such cases the defendant's promise is in effect to pay his own debt ; and it is not necessary that such promise should be in writing, though incidentally the debt of a third person is guaranteed. And many of the decisions of courts which at first sight may appear to hold that an oral guaranty of the note of another, which is transferred on account of a debt due from the guarantor, is not within the Statute of Fravids, on careful examina- tion will be found not to rest on that principle, and not to be necessarily in- consistent with our own conclusion in the present case The above suggestions will not reconcile all the cases, but in our opinion they are sufficient to show the just grounds on which the application of this clause of the Statute of Frauds, now under consideration, depends. When the present case was first before this court the decision was put expressly on the ground that the defendant's previous liability had been settled and dis- charged, so that the only existing direct liability was that of Robinson upon his note ; and under this state of things the defendant's oral promise to pay the note, if Robinson did not, could not be treated as a promise to pay Robin- son's debt, and as such was within the Statute of Frauds. Upon further con- sideration we adhere to that decision CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 129. one, and the decision itself should not be followed without full deliberation. It may be well to consider whether the principle laid down therein has any virtue beyond the pecu- liar facts of the special controversy. § 129. The obligation answered for by the guarantor may, though oral, be valid, because the guarantor's own, , ^ , . . , . , , . Guaranty in the sense that it is a hen or encumbrance upon his of debt property, or, which is less certain, that the considera- guaian-°° tion thereof has enured to the improvement or benefit tor's prop- ' erty. of such property.(?) Serjeant Williams's rule, already cited, notices this exception in saying that, if the person answered for remained liable, the Statute of Frauds applied, in absence of any liability on the part of the defendant or his property, except such as arises from the express promise.(m) as a correct exposition of the law. When the case came a second time before the court (127 Mass., 364) the point determined was, that the plain- tifl's were not precluded by what had happened before from relying on the second and third counts, and for this reason a new trial was properly granted. An additional statement in the opinion may have led to the inference that in the view of the court, if the leading and chief object of the defendant's promise was in effect to pay his own debt, it is to be considered in sub- stance that the defendant guaranteed his own debt, and that, therefore, his promise to pay Robinson's note, if Eobinson should not, was not within the Statute of Frauds ; and the learned judge of the superior court upon the new trial so ruled. But we think this ruling cannot be supported as appli- cable to the case as it comes before us. If Eobinson's note was not taken in absolute payment, and if the due-bill was still an existing liability, then the defendant's promise might, perhaps, be found as a matter of fact to have been intended and accepted as a promise to pay the due-bill. But ifthe note was taken in absolute payment, then the liability of the defendant was, of course, extinguished, and it follows that the only remaining direct liability was that of Robinson on his note, and the promise of the defendant could be treated only as collateral. " The question, therefore, is now dis- tinctly presented whether the defend- ant can be held liable on an oral promise to guarantee the note of a third person, transferred by him to his cred- itor, when that promise cannot by any construction be enforced as iu reality a recognition of, or promise to pay, his own pre-existing debt. To hold him liable, under such circumstances, would be to hold him to a greater liability than if he had put his name upon the back of the note, and would be incon- sistent with the Statute." (0 Barren v. Trnssell, 4 Taunt. 120 ; Helms V. Kearns, 40 Ind. 129 ; Beach c;. Jones, 50 Ind. 531 ; Chamberlin v. Ingalls, 38 la. 300 ; see Blair Township Co. V. Walker, 39 id. 406 ; Bethel v. Woodworth, 11 Ohio St. 395 ; Tallmaii V. Bressler, 65 Barb. 378 ; see Spooner V. Dunn, 7 Ind. 81. (m) Forth v. Stanton, 1 Will. Sauud. (Sir E. V. Will, ed.) 233, note ; see Furbish v. Goodnow, 98 Mass. 297. 211 § 130.J LAW OF THE STATUTE OF FRAUDS. [CHAP. V. § 130. There are a few cases which in appearance and some whicli in reality' impugn this rule. Thus where Cases the plaintift' held notes of E., secured by a chattel- theruief mortgage, and E. could not sell without the plain- tiff's consent ; E., with such assent, sold to S. at the defendant's inducement, and the latter promised to pay the pla,intiff so much of E.'s debt as S. did not pay ; the defend- ant's reason for the promise was a promise by E. to answer for a debt which E. owed the defendant : it was held that the defendant was entitled to the defence of the Statute of Frauds; but here it will be noticed that the defendant had no interest in the goods, and a guaranty is not the less within the Statute because it was given in consideration of another guaranty. (71) In another Massachusetts case it was held that, in absence of a direct promise to either the debtor or the creditor, the assignee of pro[ierty subject to a lieu is not (personall}' ?) liable to pay the latter.(o) So it is no defence by way of set-off to a note that it was a lien upon certain land, that the vendee of the latter, who originally gave the note, mortgaged it without consideration to one C, who transferred the mortgage to the plaintiff, because the only personal liability was in C, and that the plaintiff was not liable even at common law unless he promised to pay, nor under the Statute of Frauds unless he promised in writino", his land was still subject to the lien, but he was not bound in any way.(p) These rulings are not inconsistent with the principle now under discussion ; but it would be difficult to justify the following: Tlie plaintiff bound himself in writing to deliver to a constable goods belonging to the father of the defendant; the latter claimed the goods, and prevented the plaintiff' from delivering them to the constable, who sued him and got judgment ; the defendant went on the plaintift''s certiorari bond, and also orally promised to indemnify him against all the damages; the judgment against the plaintiff" was reversed, and then the constable got a new judgment (n) Richardsoni'.Eobbins, 124 Mass. (0) Brightman v. Hicks, 108 Mass. 107 ; see the facts more fully stated, 247. § 133, 11. (c). See as to the last point, (p) Brake v. King, 54 Ind. 296. Danforth v. Pratt, 42 Me. 52. 212 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 131. against him ; for indemnity against this latter this suit was brought ; the defendant's promise was held to be a guaranty, and within the Statute of Frauds, because semble the default hero was in not paying the original debt. But it would seem that the decision should have been otherwise, because the plaintiff involved himself in the first obligation in order to release to the defendant goods owned or claimed by the latter.(g') So where H., a vendee, under articles from the plaintiff, assigned his contract to the defendants, his credit- ors, who extinguished his debt, and gave him credit in trade besides, to make the debt and the credit together equal the first instalment due under the contract, which H. had paid; n. reserved the right, upon repaying the defendants, to re- deem ; the defendants promised H. to pay up the subsequent instalments: the Statute of Frauds was held to be a good defence, the agreement being a guaranty. (r) § 181. As the promise by one interested in property subject to a lien is usually made upon a surrender of the lien for which the promise of guaranty is substituted; o" "f^Q^"^ it is pertinent to say here, that where the promisee relinquishes a lien which enui'es to the promissor, the lien is as it were purchased, and the Statute of Frauds does not apply.(s) Thus, it has been said that the Statute of Frauds does not apply where the plaintiff in consideration of the promise has relinquished some lien, benefit, or advantage, for securing or recovering his debt, when by means of such re- linquishment the same interest or advantage has enured to the benefit of the defendant. In such cases, although the result is that the payment of the debt of the third person is effected, it is so incidentally and indirectly; and the sub- stance of the contract is the purchase by the defendant of the plaintiff of the lien right, or benefit in question.(<) As to the purchase of the lien, see note below.(it) Where by giving (9) Nixon V. Vanhise, 2 South. 492. ditch v. Milne, 3 Esp. 86 ; Belknap v. ()•) Roe V. Barker, 82 N. Y. 435. Bender, 6 Th. & C. 613 ; 4 Hun, 414 ; (s Alger V. Scovill, 13 Gray, 391 ; Small v. Schaefer, 24 Md. 156. Furbish v. Goodnow, 98 Mass. 297 ; (<) Curtis v. Brown, 5 Cush. 491. Hilton V. Dinsmore, 21 Me. 410 ; Houl- (u) Castling v. Aubert, 2 East, 330. 213 § 133.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. the guaranty the proraissor gains possession of certain goods, and the promisee gives up the latter, which he held as security, the Statute of Frauds does not apply.(i;) Promise t § ^^^' -^™'^ ^^'^ point forward the subject of pay a debt promises to answer for a debt resting on the promis- resting on . ,.,,.,. promissor's sor 8 property, and that in which a claim or lien and'guaran- thcrcon is Surrendered to him in consideration of a eration^of*^" Promise to answer for the debt -which the lien^ etc., surrenderof represents, will be treated together. lien treated -.nnmii- i i -i together. § 133. ihe iieu, as has been said, must enure to the promissor.Cw) In a Wisconsin case, the court Lien must '■ ^ r t enuretothe said: "The mere fact that an advantage may result promissor. },^(.i(jgjj(;ally to the promissor is not alone sufficient to take the agreement out of the statute. The resulting ad- vantage to him must be the object of his promise — the con- sideration upon which it was made. We are not aware of the existence of any rule of law which authorizes the inference that, merely because the promissor may be incidentally bene- fited by his promise, his object in making it, and the con- sideration therefor, is such incidental benefit."(x) Giving up a lien on the plaintifi''s part will not take a case out of the Statute of Frauds, where the defendant had no interest in the matter.(y) Where the plaintiff forbore an action by which he had a lien upon the property of his debtor, the Statute of Frauds applied, though the defendant was the debtor's son, it not appearing that he had any interest in his father's property.(2) The abandonment of a levy by a judgment credi- tor on the goods of his debtor, does not take an agreement by a third person to pay the debt out of the Statute of Frauds, the (w) Hindraan i-. Langford, 3 Strob. Pulver, Hill & Denio, 47; Mallory w. Law, 209 ; see Borchsenius ij. Canutson, GlUett, 21 N. Y. 413 ; Boyce v. Owens, 100 111. 92. 2 McCord, 208 ; but see Stewart u. (w) Clancy v. Piggott, 4 N. & M. Hinkle, 1 Bond, 506. 502 ; 2 A. & Ell. 473 ; Fennell u. Mul- (x) Clapp i-. Webb, 52 Wis. 641. cahy, 8 Ir. L. R. 434 ; Luark v. Ma- (y) Cowlienhoveu i. Howell, 36 N. lone, 34 Ind. 444 ; Nelson v. Boynton, J. Law, 325 ; see Pennell v. Mulcahy, 3 Mete. (Mass.) 400 ; Dexter u. Blan- 8 Ir. L. R. 434. chard, 11 Allen, 361 ; Dufolt v. Gor- {z) Nelson u. Boynton, 3 Meto. man, 1 Minn. 309; Robinson u. Gil- (Mass.) 400; see Cowenlioven v. How- man, 43 N. H. 490; Van Slyck v. ell, 36 N. J. Law, 325. 214 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 133. abandonment does not appear to have enured in any way to the promi88or.(a) Where an auctioneer, who was about to sell goods of a tenant on the premises of the latter, was served by the landlord with a notice of rent due, and promised the landlord to pay such rent, it was held that the part of the promise relating to the future rent, for which the landlord had no right of distress, being within the Statute of Frauds, and the promise being entire, the whole was within the Statute.(6) "Where the defendant was the mortgagee of a part interest in a vessel, and the plaintiffs had a claim against the owners of the vessel, but no lien as to the vessel, and as the owners of the interest mortgaged to the defendant were in bankruptcy, this interest could not be attached by the plaintiff; under these circumstances a promise by the defendant to the plantitfs to pay their claim in consideration of their not attaching the interest of the other owners, was held to be within the Statute of Frauds, and the forbearance of the plaintiffs was held not to enure to the defendant.(c) In another Massachusetts case, it was said that "the law is well settled in this commonwealth that, when property subject to lien is transferred by the debtor to a third person, the latter is not liable to an action by the creditor, unless he has made a direct promise, either to the debtor or the creditor to pay the debt ; and that such a promise to a creditor, who neither gives up his claim against the original debtor nor any lien upon the property, is a promise to (a) stern v. Drinker, 2 E. D. Sm. the mortgage, and notes S. did not pay ; 404. the consideration for tlie defendant's (6) Thomas v. Williams, 10 B. & C. promise was S. guaranteeing a debt 668, distinguishing Williams v. Leper, which E. owed the defendant. This was on the above ground, and Edwards u. held to be a, guaranty, as E.'s debt to Kelly, and Castling v. Aubert, as oases the plaintiff was not discharged ; as the of a fund. plaintiff gave up no right (as the notes (c) Ames v. Foster, 106 Mass. 402. being due his right of action against Where the plaintiff held notes overdue E. was ripe), and as no advantage of E. secured by a chattel mortgage ; was surrendered to the defendant, E. could not sell the chattels without and as there was no purchase or acqui- the plaintiff's consent ; the plaintiff sition by the defendant of property or allowed E. to sell to S. who became benefit from the plaintiff which would liable under the mortgage at the defend- make the new promisee one to pay a ant's inducement, who promised to pay debt of the defendant's own ; Riohard- the plaintiff whatever amount under gon v. Robbins, 124 Mass. 107. 215 § 135. J LAW OF THE STATUTE OF FRAUDS. [CHAP. V. answer for the debt of another, and must be in writing in order to satisfy the Statute of Frauds. (. Grunn, 43 lud. 320 ; Lamb v. Stedman, 45 Penn. St. 188 ; as to a Tucker, 42 la. 118 ; Pike o. Brown, 7 mechanic's lien coming within the Cush. 136 ; Fiske v. McGregory, 39 N. guaranty clause of the Statute of H. 414 ; Hoysradt v. Holland, 50 id. Frauds when the owner promises to 434 ; Huyler i,. Atwood, 26 N. J. answer for his contractor, see Phill. Eq. 605 ; Ketcham c. Brooks, 27 N. J. Mech. Liens, § 213. Eq. 347 ; Ely v. McNight, 30 How. Pr. (6) Fleming u. Easter, 60 lud. 402. 101 ; Burke ,■. Gummey, 49 Pa. St. Where an attorney for an executrix 519 ; McClellan v. Sandford, 26 Wis. gave up to her some deeds on which he 609. had alien for his bill, the executrix was (rf) Bowen y. Kurtz, 37 la. 241. liable on a promise to pay the attor- (e) Verner v. Johns, 15 Shand, 613. ney's full bill as well for services for 222 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY, [§ 138. pay his own debt to a third party, to whom his creditor is indebted, or where he purchases property subject to an encum- brance, and as a part of the purchase-money agrees to pay the mortgage debt, he will be liable, and the promise is not within the Statute.(/) The promise may be made after a deed for the land has been accepted.(^) A grantee who took under a (/) Berkshire v. Young, 45 Ind. 467, citing cases. So where the plain- tiff sold land to S., and took his notes for the price, secured by mortgages of the land, and S. sold to the defendant on condition that the latter would pay the notes which he agreed to do by parol ; Helms d. Kearns, 40 Ind. 129. (g) In Murray v. Smith, 1 Duer, 429, it was said that "the defendant, upon the conveyance to him, did not assume the payment of the mortgage. The mortgage was a lien upon the land, and his grantor was personally liable upon his bond for the mortgage debt, but the defendant did not become personally bound to pay the mortgage. After the defendant had taken the conveyance default was made in the payment of interest, the principal sum by the terms of the mortgage became due at the option of the mortgagees. The defendant thereupon verbally agreed with the mortgagees that if they would not exact payment of the principal, or foreclose the mortgage, and would give time for the payment of the interest then due, he would, when the next instalment of interest became due, pay the interest then iu arrear, together with that which should accrue to that time. The mortgagees assented to this arrangement, and took no proceedings to collect the mortgage debt or interest during the time specified in the agree- ment. This action is brought upon the defendant's promise to pay the two instalments of interest ; and the only question is whether the undertaking on the part of the defendant was to answer for the debt, default, or miscar- riage of another. "But the defendant's promise was not a promise to answer for the debt of another, within the meaning of the Statute. When it was made, he had the legal title to, and possession of the mortgaged premises. The mortgage had been reduced several thousand dollars by payments, and the defend- ant, by virtue of bis ownership of the land, presumptively had an interest to protect it from sale or foreclosure. He was enabled by virtue of the agreement to take and control the rents and pro- fits of the land during the time specified therein, and the plaintiffs meanwhile forbore to enforce their rights as mort- gagees. The consideration of the de- fendant's promise was one running directly to him from the promisees. The agreement was entered into by the defendant for his own benefit, for the purpose of protecting his interest in the property covered by the mortgage. It was an arrangement with the lienors, for delay in enforcing their lien on the defendant's land. "And when the purpose of the prom- ise is to secure a benefit to the promis- sor, by relieving his property from a lien, or securing and confirming his pos- session, the promise is original and not collateral, although a third person may be personally liable for. the debt, and the promise may be in form a promise to pay such debt, and although the performance of the promise may result in discharging the debt;" Prime v. Koehler, 77 N. Y. 93. 223 § 138 ] LAW OF THE STATUTE OP FRAUDS. [CHAP. V. deed, subject to a certain mortgage on the land, orally prom- ised to pay it, the language of the deed did not make him liable, but the oral agreement did, the latter was held to be no contradiction of the deed. (A) An oral promise by the vendor of land subject to a mortgage which was an apparent encum- brance thereon, that if the vendee would procure a decree declaring the mortgage paid and cancelled the vendor would reimburse him his outla}' in so doing, is not within the Statute of Frauds.(z) Where the defendant, the mortgagee of land, took the possession of it surrendered to him by D., the mort- gagor, and he, the defendant, sold it to the plaintift', and promised to relieve the latter from the encumbrance, the note secured by the mortgage having already been assigned to a third party. D., the mortgagor, made a conveyance to the plaintiff under this arrangement; it was held that neither the land nor the guaranty clause of the Statute of Frauds ap- plied ; the encumbrance was not land, and taking up th'e mortgage did not involve paying D.'s note.(_;') The grantee of land " under and subject" to a mortgage cannot set up the Statute of Frauds as a defence, because the promise is made to the debtor.(X:) Where the defendant desiring to buy land, which could not be sold without a mortgagee's assent, promised the plaintiff, who was assignee of the note secured by the mort- gage to pay the note, and the plaintiff in consideration thereof assented to the sale, the court said: "The promise alleged was not a mere promise to pay the debt of another, but it was a new and original promise for a valuable consideration to pny certain specilic sums of money for which another person was also liable. This was not a collateral promise, and for that reason invalid. The leading purpose of the promise was to secure to the party making tlie promise a benefit, which he did not before enjoy, accruing immediately to himself. Such a promise is not within the Statute. "(/j An oral promise by a (A) Taintorw. Hemmingway, 18 Hun, {k) Pike v. Brown, 7 Cush. 136 ; see 460. Moore's Appeal, 88 Pa. St. 450. (0 Ely V. Bardin, 12 N. Y. W. Dig. (0 Draper v. Putnam, 7 Allen, 174. 206 (N. Y. S. C). Where the plaintifiF was the vendee {j) Green v. Randall, 51 Vt. 71. from J. J. of forty acres, part of a 224 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 139. vendee to pay a mortgage on land is good, though the vendor covenanted that the property was free of encumbrance. (m) § 139. The acceptance of a deed-poll which stipulates for the assumption of a mortgage on the land by the . vendee may bind the latter personally, notwith- tiouof o-r-i i/NAii mortgage standing the Statute oi i* rauds.(ri) And though provided there may be a subsisting liability for the same deed"poii matter in a third person.(o) So accepting a deed etc. etc. with a clause assuming payment of a note secured by a mort- gage on the land, makes the vendee liable to a holder of the note.(p) The promise is an implied one, and should be enforced by an action of as8ump8it,(j) and the obligee of the engagement answered for, though a stranger to the guaranty, may 8ue.(r) And it has been said, that " especially will this right to bring suit in his own name exist in be- half of him for whose benefit the promise was made, where the consideration of it was money or property simultane- ously delivered or sold to the promissor. In such case the property is received under a trust, which will itself form a good consideration, enuring to the benefit of him larger tract of a hundred and sixty acres, the mortgage on the whole tract was foreclosed by N. L., the mortgagee ; pending the period of redemption J. J. sold one hundred and twenty acres (t. e., 160-40 = 120) to the defendant, who verbally agreed as part of the consideration to relieve the forty-acre tract of the lien of the N. L. mortgage, it was held that the verbal agreement was valid, the agreement on the de- fendant's part was to do what J. J. was hound to do, i.e., protect Austin J. Jordan, the plaintiff, against a mort- gage in ignorance of which he had bought ; no reference, however, was made to the Statute of Frauds ; Jordan V. White, 20 Minn. 99. (m) Wilson v. King, 23 N. J. Eq. 152. Where W. and P. agreed to exchange lands, W.'s being encumbered, P. bor- rowed on mortgage from L. enough to VOL. I. — 15 make the encumbrance on his estate equal to that on W.'s. In the deed from P. to W. it was stipulated that W. should pay off the debt to L. It was held that this was a claim superior to W.'s homestead right, and that the Statute of Frauds was no defence ; that W. had accepted a deed binding him to pay the amount, and that the suit was to follow this trust ; the mortgage to L. was by a sort of deed of trust; Mon- roe V. Buchanan, 27 Tex. 247. (n) Goodwin v. Gilbert, 9 Mass. 510 ; Murray u. Smith, 1 Duer, 429, citing cases. (o) Goodwin v, Gilbert, supra. (ji) Fitzgerald c/. Barker, 70 Mo. 687. (y) Urquhart v, Brayton, 12 R. I. 170, citing cases. (r) lb., saying there had been some conflict of authority. 225 § 139.] LAW OF THE STATUTE OF FKAUDS. [CHAP. V. to whom the payment is due ; and if the purchaser has re- ceived credit for the sum thus contracted to be paid to such other person, the law will treat it as money had and received to his use."(s) So it has been held that the acceptance of a deed, which in terms provides that the grantee shall pay off a certain encumbrance, is an undertaking by the grantee to pay the encumbrance, and an undertaking which may be appropriated by the holder of the encumbrance, and upou which he may maintain an action. (<) So it has been said that the grantee of a deed-poll, which imposes upon him the obligation to pay a mortgage on the land, and to save the grantor harmless therefrom, can be sued by the mortgagees, and the Statute of Frauds is no defence, though he had never signed the deed-poll, and that the Statute does not apply to deeds-poll. (m) A mortgagee can sue on an oral promise made by the vendee to the vendor to pay the mortgage as part of the price.(t;) Where the plaintiff sold land to E. S., and took notes for the price, and E. S. sold to the defendant, and in the deed it was recited that the notes had been given the plaintiff', and also in the deed it was stipulated that the defen- dant should pay the notes, the superior court of Cincinnati said that it was true that the plaintiff was " named in the clause of the deed, stating the assumption to pay the notes and mortgage; but it is stated that they were made to her by name, so that it is substantially a covenant to pay to her ; and under our code all difficulty on the ground of the plaiutift''s right to maintain the action growing out of the terms of the instrument, would seem to be at an end ; the covenant is for her benefit. "(m)) In a New York case it was said that an oral agreement between the mortgagor and the defendant, the mortgagee of land, that the .mortgagee shall pay off" other mortgages on the premises, does not pass to the plaintiff' who afterwards, without the knowledge of this agreement, received a conveyance of the land subject to the defendant's mortgage.(x) (s) Lee r. Nenman, 55 Miss. 373. (w) Cushman c^. Garrison, 2 Cine, (t) Schmucker o. Sibert, 18 Kan. Sup. Ct. Rep. 146 ; see Garnsey v. 104. Rogers, 47 N. Y. 241. («) Foster v. Atwater, 42 Conn. 250. (x) Miller .;. Winchell, 70 N. Y. (i) Ruhling V. Hackett, 1 Nev. 369. 439. 226 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 140. Where A., owner of mortgaged premises, but not the person who had created the mortgage, nor, as far as the evidence showed, in any way personally liable for the moitgage debt, conveys to B. and C. the premises in question, subject to the mortgage reciting in the deed that B. and C. were to assume the payment of the mortgages, and pay them as part of the consideration of the conveyance; it was held there was no writing signed by the vendees under which they could be made liable for the deficiency on a failure to obtain on a fore- closure of the mortgaged premises the full amount of the mortgage debt.(2/) § 140. The next question for consideration is the difiicult one as to how far a contract to pay for labor or materials furnished by the plaintiff, the benefit of pay^of*" which has accrued to the defendant's property, is a labor or promise to pay for a debt resting on such property, which ha^ There is a line of decisions which go far to estab- the defend- lish that such a promise is not within the Statute ?;°'!f, P™" of Frauds. Thus, where the defendant purchased the property, with all the advantages and avails of the plain- tiffs labor, before the term of his labor had half expired, and agreed with the vendor in consideration to pay the plaintift" for that portion of his work which he had already performed, the plaintiff to continue and complete the term of his labor; this is not a case affected by the Statute of Frauds. It is the promise of one deriving a benefit by means of the under- taking, and having funds placed in his hands for the payment of the indebtedness, which he promises, in consideration (j) King V. Whitely, 10 Paige, Ch. of forbearance to pay the debt secured 465. In another New York case it was by the first mortgage, the Statute of held that the assignee of a lease is not Frauds was held to apply ; but where bound by a verbal promise to person- the purchaser procured by this ar- ally assume a mortgage on the pre- rangement the mortgage to be assigned, mises, because the Statute of Frauds to a third person and himself,, bought applies ; the mortgage was, semble, of in under a foreclosure, it was held that the fee, and was made by a third party in favor of the second mortgagee, one and already on the premises ; Goelet of the parties to the original assign- iK Forley, 57 How. Pr. 174. Where a ment, the first mortgage will be re- purchaser of chattels, subject to two garded as extinguished ; Doolittle u^ mortgages, promised in consideration Naylor, 2 Bosw. 224. 227 § 140.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. thereof, to discharge.(£) Where the plaintift' at the de- fendant's request, continued to carry out a contract which he had with one T., the defendant having bought T.'s interest and having promised to pa^' the plaintiff according to T.'s contract (not to pay T.'s debt); this was held to be a new contract on a new consideration. (a) Where the defendant, who was interested in a work to which the money raised by a certain note was to go, promised to sign a note and pay it, but defended on the ground that the promise was a guaranty being for the debt of S., who was carrying on the work in question ; it was held that as the money so raised was to go (z) Huber v. Ely, 46 Barb. 170, citing cases. Where the defendant employed one C. to dig a cellar on his, the defendant's, premises, and C. hired the plaintiff to do the work, after doing one day's work the plaintiff went to the defendant and declined going on unless the latter would promise to pay him ; the defendant told him to go on and that he should be paid ; it was held that the work being on the de- fendant's property, and for its benefit, the defendant's promii5e was an original one, and not collateral to his liability to pay the plaintiff, and that, there- fore, the Statute of Frauds did not apply ; Devlin u. Woodgate, 34 Barb. 257. (a) King c. Despard, 5 Wend. 279. Where one S. was, semble, the owner of land and the defendant a third mort- gagee, who had wanted money to buy in the property at the foreclosure sale under the prior encumbrance, and did so buy, but afterward refused to take the loan or pay the plaintiffs for their services in obtaining it, and in inves- tigating the title, the court said in this case the evidence shows that the de- fendant agreed to take a loan which had been negotiated for one S., and to pay the expenses incurred by the plaintiffs in searching the title to the 228 premises on which the loan was to be made, and also to pay for the services rendered by the plaintiffs. It is true that S. was liable to the plaintiffs, but the defendant assumed the responsi- bility which had accrued in considera- tion of the transfer to him of the sub- ject matter of such liability, and was, by his arrangement with the plaintiffs, to receive the entire benefit of such expenditure as had been made, and such services as had been performed for S. The consideration of the pro- mise by S. was the loan, and such was also the consideration of the promise by the defendant. It was a new pro- mise to the effect that if the plaintiffs would transfer the loan to him he would pay them the same charge that they would receive from S. had the loan been made to him. Not only was that the agreement, but the defendant also promised to pay 825 for such ser- vices in addition as would be necessary to make the transfer in due form to secure the mortgagee. The money was ready and was kept in abeyance awaiting the convenience of the de- fendant and subject to his order. This was a further consideration for the promise, and it was held that the Statute of Frauds did not apply ; Benedict v. Dunning, 1 Daly, 242. CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 140. to the defendant, who was to disburse it for the worlc for which he was to have security, the Statute of Frauds was no defence, though the defendant was to pay the money to S.(6) Where the defendant was owner, and a third f)er8on principal contractor, and the plaintifi' a sub-contractor, the defendant also assuring the plaintiff that he would be owing the princi- pal contractor and would retain these funds to pay the plain- tiff, the Statute of Frauds did not apply, though the defendant denied having the fund8.(e) Where the plaintiff, under a writte'Vi order of the defendant to deliver to S., to be used on the defendant's house, a hundred dollars' worth of lumber, delivered by mistake a hundred and sixty dollars' worth, and the defendant knowing of this promised to pay for it, the Statute of Frauds does not apply.((^) Where the defendant, owner of property, who employed a housewright to build for him a house upon it promises the plaintiff that if he will furnish material to the housewright he, the defendant, will not settle with the latter without giving notice to the plaintiff so that he may secure his debt by attachment, it was held that the promise was not a guaranty within the Statute of Fraud8.(e) Where the original debtors were not looked to at all after the new agreement, and where the promissor got the benefit of the work and material on his property-, there was all the more reason for the Statute of Frauds not applying; the promisees had worked for the defendant's contractor, and afterwards directly for the defendant.(/) Where the owner of a build- ing promised to pay for material furnished and charged to his contractor it was held that if the promise was on a considera- tion moving to the promissor, and the plaintiff's claim was a lien on the defendant's building, the promise was not within (b) Potter o. Brown, 35 Mich. 279 ; being relied on ; Wait v. Wait, 28 Vt. see Pool V. Wedemeyer, 56 Tex. 299. 351. (c) Hiltz V. Scully, 1 Cine. 557. (d) Smith v. Mayo, 1 Allen, 160. Where the defendant received a con- (e) Towne v. Grover, 9 Pick. 307 ; Teyance of the property of the person see Lomax v. MoKinney, 61 Ind. 378 ; answered for, and promised to pay for see, however, Curtis v. Brown, 5 Cush. a barn thereon put up by the plaintiff, 491. the Statute of Frauds was held not to (/) Sohoenfeld v. Brown, 78 111. apply, the "funds" rule (see § 39) 489. 229 § 141, J LAW OF THE STATUTE OF FRAUDS. [CHAP. V. the Statute of Frauds, though the debt previously had not been the defendant's personal deht.{g) Where there was a con- tract between the plaintiff", a mechanic, and the defendant, the owner of the premises, for the repair, etc., of the latter, with the permission of a tenant in possession, was held original, and not a guaranty within the Statute of Frauds, though other work was done for the tenant and by him paid for.(A) The defendant, an owner of land, S., his contractor, making a house for him, and the plaintiff", who was furnishing S. with labor and material, agree that the defendant shall pay the plaintiff" directly out of what he, the defendant, should owe S., it was held that the Statute of Frauds did not apply. (i) § 141. The following cases are based on other principles than the one now under consideration. Thus, where application H. & S. before finishing certain machinery' for the principle defendant, assigned their contract and materials to the plaintiff, it was held that a promise to pay the price to the plaintiff" was not within the Statute of Frauds, because the defendant, and not H. &S., was primarily liable.(j') Where the defendant ordered U. L. to do certain work on the property of A. B. and promised to be accountable, and U. L. employed the plaintiff", A. B. was charged in the plaintiff's books; it was held, nevertheless, that A. B. was not liable, and that the defendant was, his promise not being a guar- (g) Landis o. Royer, 59 Pa. St. 98 ; (0 Estabrook v. Gebhart, 32 Oh. St. see as to mechanic's lien, Phill. on 420 ; see Consoc. Presb. Soc. of Green's Mech. Lien, § 213, and index " Statute Farms v. Staples, 23 Conn. 557 ; Packer of Frauds." v. Benton, 35 Conn. 349. Where a (A) Vandegrift c Cassidy, 1 W. N. vendor conveys, reserving a lien for Cas. 319, S. C. Pa. Where the sub- the price, and the vendee improves contractor refused to go on, and the and gives his mechanics a note for the principal contractor was confessedly cost of the latter, and reconveys to the insolvent, a verdict holding the prin- vendor, who promises to pay the note, cipal owners of houses on which the the mechanic can enforce his claim plaintiffs had been at work, liable on against the vendor by a lien, not merely their oral promise to the plaintiffs to againsttheenhanced value of the land, pay them all that was due if they but, notwithstanding the vendor's would continue work, was sustained ; lien, against the whole value ; Adams Merriman v. McManus, 13 W. N. Cas. o. Russell, 85 111. 287. 157, S. C. Pa., relying on Jefferson Co. (j) Oldfield v. Lowe, 9 B. & C. 77. V. Slagle, 66 Pa. St. 202. 230 CHAP, v.] THE SUBJECT MATTER OP THE GUARANTY. [§ 142. anty.(A;) Where the plaintiff refused to furnish further mate- rial to one A., who was building boats for the defendant, and the latter promised that if the plaintiff would furnish timber sufficient for the boats, and get an order from A., he, the defendant, would pay for the timber, the Statute of Frauds was held not to apply. (?) Where a contractor agreed to do a prescribed work for L., and employed laborers to work upon it at his own credit ; that the work might not stop, L., with the consent of the contractor, promised the laborers, that if they would continue to labor, he would pay their wages for the past as well as for the future ; provided, the funds in his hands, belonging to the contractor, should be sufficient ; it was held, the promise was not within the Statute of Frauds, or without legal consideration. (m) Where the de- fendant's contractor employed the plaintiff and abandoned the contract with the defendant's consent, leaving money enough with the latter to pay the plaintift"'s claim; the de- fendant promised the contractor and afterwards the plaintiff to pay the claim ; it was held that the Statute of Frauds did not apply, as there was an implied obligation upon the defendant, as well as an express one, and as there was a new considera- tion. (n) § 142. The following cases raise some doubt as to the rule itself, that a promise to pay for goods furnished to the promissor's property is not a guaranty. Thus Jo^bted where the defendants agreed with one C, who was building houses for them, that he should release them from the contract, assign them the material on the premises, and they would pay the bills for the work and material, it was held that the Statute of Frauds applied. Whether the land on which the unfinished houses stood were, with the houses (i) Brown a. George, 17 N. H. 129. as a guaranty, there being a new and (I) Rounds V. May, 35 U. C. Q. B. original consideration of benefit to the 368. Where an employe getting out promissor ; Tumblay v. Meyers, 16 U. timber for one M. continues to do so for C. Q. B. 145 ; see Laing v. Henry, 54 the defendant, M.'s assignee, relying on N. H. 59. a promise of the latter to pay him as (m) McKeenan u. Tliissel, 33 Me. well for that work as for what M. owed 368. (The report only gives a sylla- him ; it was held that the Statute of bus.) Frauds does not apply to either promise (n) Cock k. Moore, 18 Hun, 32. 231 § 142.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. themselves, the property of the defendants, does not appear; the defendants under the agreement finished the houses. The court also said that the original liability of C. was not extinguished, and there was no surrender by the plaintiff of a lien.(o) Where the owner of a lot of ground orally promised to pay for materials furnished to M., who was building a house on it, which lot and house he, M., agreed to buy from the de- fendant, the Statute of Frauds was held to apply. (p) It has been held that a parol promise by the owner of a building to pay a debt due by the contractors, who built it, to a mechanic, if the latter will obtain an order from the contractors to whom, however, the promissor owed nothing, is within the Statute of Erauds.(9') Where the jury found that a sub-contractor was not an agent of the defendant, that agreements between his employes and himself were made with him personally, that the debts in suit were incurred on his credit and engage- ment, and not on account of the defendant, a promise by the latter to pay such debts would be a guaranty, and within the Statute of Frauds. (r) Where a sub-contractor, not paid by the principal contractor, gives up work, but resumes it on a guaranty of the owner, and still looks to the contractor,. the owner's liability is that of a guarantor, and within the Statute of Frauds.(s) Where the defendant promised to pay the (0) Curtis V. Brown, 5 Gushing, 491, and undertook to pay him therefor, or citing and considering many cases. whether his promise really was that (p) Loonie v. Hogan, 5 Seld. 441. he would become surety that H. should (1) Pike V. Irwin, 1 Saudf. 15. pay the plaintiff for the work ; Brown Where the owner of land was sued v. Wt-ber, 38 N. Y. 191. by an employe of H., his building con- Where one S. contracted to build for tractor, the court, citing a dissenting the defendant a house, and the plaintiff opinion below, said that it proceeded furnished S. with brick ; when it was upon the ground that, because the delivered the defendant promised the mill was built upon the land of the plaintiff to retain enough money due defendant and became his property to S. to pay for the brick, and upon when built, he received the oonsidera- this arrangement, repeated several tion for the promise ; and that, there- times, the defendant relied ; it was, fore, it is not within the Statute. We nevertheless, held that the Statute have already seen that this does not of Frauds was a good defence in the determine the question. It must fur- case; Weyer v. Beach, 14 Hun, 237. ther be ascertained whether the de- (r) Barden v. Briscoe, 36 Mich. 256. fendaut made a contract with the (s) Bresler v. Pendell, 12 Mich. 227. plaintiff to complete the mill for him 232 CHAP. V.J THE SUBJECT MATTER OF THE GUARANTY, [§ 143. plaintiff out of moneys vvhicli he, the defendant, might owe V. on a house which V. was building for him, the defendant; it was held that the Statute of Frauds applied, as V. was looked to, and as the defendant was only to pay as he might owe V.(0 L. had a contract for carrying the mail, and con- tracted with ]S^ewell to carry it. L. transferred to Ingraham the right to receive a part of the money from the post-office due him, reserving to Newell a portion. Ingraham requested I^ewell to carry the mail for him, and promised to see him paid. The contract between L. and l*fewell remained uncan- celled. The promise of Ingraham to Newell was held to be within the Statute of Frauds, as it was collateral and ancil- lary to L.'s, and as there was no new or independent consid- eration. (m) See on this subject the previous sections indicated in the note below.(z') § 143. The lien or other charge may be on personalty, as where a vessel is released in consideration of the promise bv guaranty being given.(w) So a promise by the debtor to mortgagee of a chattel to pay for its repairs, under resting on which promise the mechanic gives up his lien, is ^onai pro- not within the Statute of Frauds, as the promissor P^''*^y- has an interest in the propert3'.(a;) So where the plaintiff for- bears to foreclose a chattel mortgage against M., thereby ena- bling him to prepare and deliver the goods which he, M., had sold the defendants, a promise of the latter to answer for M.'s debt assented to by both the other parties is not within the Statute of Frauds.(?/) "Where a purchaser, in order to get (i) Ware v. Stephenson, 10 Leigh, 321 ; see Richardson v. Robbins, 124 155, relying broadly on the "oontinu- Mass. 107, where the Statute of Frauds ous liability of the third party," test, applied because the defendant had no (m) Newell v. Ingraham, 15 Vt. 422. interest in the goods. In a Kentucky (ti) See §§ 48, 72 and n. (6), 73 and case, one Lucas was defendant and n. (i), 74 and nu. (», x-, and b), 87 and Chamberlain plaintiff, and Lucas was n. (/), 92, 93. surety on a replevin-bond in a judg- (w) Doane t;. Newman, 10 Mo. 69; ment against S., and execution on Monroe o. Hart, 3 N. Y. Week. Dig. the bond had gone against Lxicas's (N. Y. S. C.) 34 (the promissor was property; Chamberlain, at the latter's mortgagee of the vessel) ; Barker v. request, became surety on an injunc- Guilliam, 5 la. (Clarke) 512. tion bond, whereby Lucas's property (x) Conradt W.Sullivan, 45 Ind. 181. was released, and Lucas promised to (j) Calkins v. Chandler, 36 Mich, indemnify him. Chamberlain had to 233 § 143.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. goods bought b3' him, promises, as part of their price, to pay the plaintiff's debt, the Statute of Frauds does not apply. (^) A lien acquired by an execution, and surrendered in conside- ration of the guaranty, is a very common case.(rt) A promise by one whose goods were levied on to pay the proceeds of the goods when sold, made by the promissor to the one making the levy, and upon condition that the levy should be released, is not within the Statute of Frauds if the levy was valid, but secus secus.{b) It is enough that the promissor desires the dis- charge of the lien, in order to become the purchaser of the goods. (c) There are other kinds of liens, the surrender of which by the promisee will take a guaranty out of the Stat- ute of Frauds: the lien of a laborer, as a lumberman, on lumber brought down by him ;(c?) the lieu of an artificer or pay the original debt under proceed- ings under the Injunction bond (Lucas had thouglit that his property levied on was liable for S.'s debt). Cham- berlain, by becoming surety on the injunction bond, had ultimately to pay this debt. Lucas's promise was, therefore, to indemnify Chamberlain for becoming surety for a debt for which his, Lucas's, property was lia- ble, and his promise was held not to be within the Statute of Frauds ; Lucas !'. Chamberlain, 8 B. Mon. 276. (z) Fergusson v. Kerr, 5 U. C. Q. B. 261, citing McDonnell v. Cook. (a) Bird c. Gammon, 3 Bingh. N. C. 888 ; Adkinson v. Barfield, 1 McC. 575 ; Handle v. Harris, 6 Yerg. 508 ; Black- ford V. Plainfield Gaslight Co., 43 N. J. Law, 439; 4 N. J. Law Journ. 115 ; Lightle v. Berning, 15 Nev. 391. (b) Rogers t. Collier, 2 Bail. 583. The validity of the levy is an impor- tant point as shown by the following case : — Jacob Gheen's estate was sought to be charged by McBiirney & Co. with a claim as follows : McBurney & Co. were 234 creditors of one C. G., and he having left town, tliey attached his property on the ground that he was an abscond- ing debtor. Jacob Gheen, in conside- ration of the surrender to him of the goods attached, promised to pay the debt. McBurney & Co. released the ' goods, and C. G., shortly after return- ing, took possession of them, and con- tinued his business. The claim was disallowed because of the doubt that the attachment was valid, and whe- ther, therefore, McBurney & Co. gave up, or Jacob Gheen received anything, either had a right to hold Jacob Gheen's promise was a guaranty, C. G. 'sdebt continuing; and it was said that whatever right McBurney & Co. had by virtue of their attachment, they lost by the transfer to Jacob Gheen, who, however, took nothing ; Gheen's Estate, 7 W. N. Cas. 66; S. C. Pa. (c) Cross V. Richardson, 30 Vt. 647. (d) McDonnell v. Cook, 1 U. C. Q. B. 544 ; McDonald v. Glass, 8 id. 245 ; see Noble V. Edes, 51 Me. 34 ; see Young v. French, 35 Wis. 116. CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 144. mechanic ;(«) of a carrier for freight. (/) Where a husband is present and assents to his wife's pledging her trunk for the fare of a child who is travelling with her, and then promises to pay the fare if the trunk is forwarded, the Statute of Frauds does not apply. (^) So the lien of the 8eller,(A) or the lien of a pledgee of securitie8,(«) as policies of insurance,(_;) or gov- ernment voucher8.(^) So the lien of a court clerk upon papers of record, allowed him to secure his fee8.(0 A promise by an attorney-at-law to pay a debt of his principal, if the plaintiff would not attach certain money in his, the attorney's, hands, is good by parol, as the attachment might have put the latter to expense, and even have caused a personal judgment to go against him.(m) So the waiver by a creditor of his right to administer upon his debtor's estate, is such a surrender of a claim or lien as will take the guaranty out of the Statute of Frauds.(?7,) The acceptance of a draft in consideration that the payee should release a lien claimed on the personal prop- erty of the drawer, is not a guaranty within the Statute of Frauds.(o) § 144. There is no more vexed question under the law of guaranty than that of the application of the Statute of Frauds to an indemnity to one for becoming toon?fo7 surety for another. The point to be ascertained is becoming ■' ... guarantor. whether the principle discussed above to the effect that if there is a subsisting liability in a third person any promise answering for such liability is a guaranty applies or not. The subject would have come^more properly under the "subsisting liability" head, but was postponed to this place (e) Houlditch v. Milne, 3 Esp. 87; Shook u. Vanmater, 22 Wis. 535 ; Budd Fears v. Story, 131 Mass. 49 ; Siau i;. v. Thurber, 61 How. Pr. 214. Pigott, 1 N. & McC. 124. (j) Castling v. Aubert, 2 East, 330 ; (/) New York R. R. v. Gilchrist, Borchsenius v. Caniitson, 100 111. 92. 16 How. Pr. 564; Wills v. Brown, 118 (k) Winfield w. Potter, lOBosw. 230; Mass. 137. 24 How. Pr. 446. (g) Coquard v. Union Depot Co., 13 (Q O'Bannon v. Chumasero, 3 Mon- Chic. Leg. News, 266; St. Louis Ct. tan. 422. App. (m) Hedges v. Strong, 3 Or. 18. (A) Fitzgerald v. Dressier, 7 C. B. N. (n) Crawford l-. King, 54 Ind. 11. S. 391 ; 5 id. 892 ; 29 L. J. C. P. 113. (o) Dunbar o. Smith, 66 Alabama, (0 Walker v. Taylor, 6 C. & P. 753 ; 490. 235 § 144.] LAW OP THE STATUTE OF FRAUDS. [CHAP. V. in order not to interrupt the continuity of treatment which took up successively the promise made upon the sole credit of the defendant, the promise which guaranteed a subsisting lia- bility ; and, lastly, the promise to pay one's own debt. It was better that those cases which came under more than one of these heads, and thus led the discussion insensibly from one branch to the next, should be first considered. The promise of indem- nity comes only under the "subsisting liability rule," and may now be discussed. As a general principle it would seem, if A. says to B. : " Become surety for C. to D. and I will in- demnify you ;" that the duty of C. is clearly to answer to B. for any payment B. may have had to make to D., and if C. fails to do this, that A., under his promise of indemnity, must do so: the promise, therefore, resolves itself into an engage- ment on A.'s part to answer for C. to B., and there is good authority for saying that an indemnity to one for becoming guarantor is within the Statute of Frauds, because the person answered for owes it to the guarantor to repay him,(p) if he the guarantor has been called upon, and it is this liability that the indemnitor answers for, and therefore the latter's promise is a guaranty. See § 26, supra.{q) The English cases, as has been said by Judge Byles, are not easy to reconcile. (r) And unfortunately they are all affected by certain differences, so that no two are precisely in the same plane. In the leading and much disputed case of Thomas v. C'-ook the ruling that an indemnity for a guaranty is not within the Statute of Frauds, while explicitly laid down, is in reality only dictum, (p) See 3 South. L. Rev. 438. ter v. White, 12 Oh. St. 219 ; Carroll u. (?) See Brown u. Adams, 1 Stew. Nixon, 2 Miles, 432 (D. C. Philad'a) ; (Ala.) 51 ; Jones i>. Shorter, 1 Kelly, the plaintiff was already liable when 294; First National Bank of Sturgis !). the indemnity was given. SeeMaceyi'. Bennett, 33 Mich. 524; S. C, S. N., Childress, 2 Tenn. Ch. (Cooper) 453; Buck, 14 Alb. L. J. 203; Bissig v. see 3 South. L. Rev., N. S., 431 ; 1 Sm. Britton, 59 Mo. 206; Wills v. Shinn, L. C. (7thAm. ed.) 510; Smith, Contr. 42N. J. Law, 139 (promise of indemnity (6th Am. ed.), 98 ; Will, Saund. (Sir was given after plaintiff's liability had E. V. W. ed.) i. 234, n. ; XXXII. Law accrued) ; Kingsley v. Balcome, 4 Mag. and Rev., 3d ser., 315 ; see, also, Barb. 131 ; Staats r. Howlett, 4 Denio, §§ 862 and n. (e), 124. 569 ; Baker v. Dillman, 12 Abb. Pr. 0. (r) Mallett v. Bateman, 16 C. B. N. S. 314; 21 How. Pr., 445, overruling S. 543 ; 10 L. T. N. S., 869 ; 10 Jur. N. Chapin i;. Merrill; and citing cases; S., 865. Draughan v. Bunting, 9 Ired. 10 ; Eas- 236 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY, f§ 144. and the decision of the case is correct on another ground, namely, that an oral promise to pay a debt for which the guarantor, as well as the person answered for, is liable, is un- doubtedly valid ; the defendant had promised to indemnify the plaintiff against all loss if he, with the defendant and W. C, would go on a bond to save N. D. M. harmless from the pay- ment of debts due by W. C. and N. D. M.(s) So that, admit- ting that later decisions, which undertook to reverse Thomas V. Cook, were wrong, and the latter case is now good law, it by no means follows that the statement therein sustaining an oral indemnity for a guaranty is anything but an erroneous dictum, given as a reason for a sound decision. The weight of the American decisions is perhaps in favor of applying the Statute of Frauds to these indemnities.(<) A recent and im- portant decision on this subject was made in Missouri, and, while correct in denying the dictum of Thomas v. Cook, erred with it in ignoring the fact that the indemnitor was bound with the guarantor, but unlike it arrived at an erroneous conclusion, and held that tiie Statute of Frauds applied. The defendant, who had signed a replevin bond, and was, it would seem, bound, asked the plaintiff to become surety on this bond, and promised to indemnify him therefor.(M) (s) Thomas v. Cook, 3 M. & R. 448, ruled in Kingsley v. Balcome, and, and note ; 8 B. & C. 732. See opinion above all, denying Thomas o. Cook, of Williams, J., in Cripps v. HartnoU, which was said to be overruled in 4 B. & S. 419, in which he says that Green v. Cresswell. See Draughan v. the doubtful ruling in Thomas v. Cook Bunting, 9 Ired. 10, on all fours with was dictum of Bayley, J., in which Bissig u. Britton and Cripps u. Hart- Lord Wensleydale, the other judge, did noil, not join. ' The following note (7 Leg. Gaz., (0 Marshall v. Cobleigh, 18 N. H. 165), written when the decision of 492. Vice-Chancellor Malins in Wildes u. («) Bissig V. Britton, 59 Mo. 206, re- Dudlow, 23 W. R. 435, and that of the lying on Winckworth v. Mills, Easter v. Supreme Court of Missouri in Bissig White, Farley i'. Cleveland, Carville v. v. Britton were first published, may be Crane, Barker v. Buoklin, Draughan v. of interest. Speaking of the contra- Bunting, Simpson v. Nance, Brown v. riety of view shown in the two cases, Adams, and denying Chapin v. Merrill, the writer says : " This inconsistency Smith c. Sayward, Jones v. Shorter, is a most striking feature of the two Dunn V, West, Lucas v. Chamberlain, decisions. But tlie fact that they are Jones V. Letcher, Holmes n. Knight, probably both wrong is more to the holding Chapin!'. Merrill to be over- purpose. It is fortunate that the source 237 § 144.] LAW OF THE STATUTE OF FRAUDS. [chap. V. If there is a last word on this subject, it will be found in Chancellor Cooper's decision in the recent case of Macey v. of mistake is not only simple, but one common to tlie two cases, for to ana- lyze the authorities on this point within the compass of the present note would be out of the question. Wildes v. Dud- low, and Bissig v. Britton, irreconcila- ble in everything else, agree in ignor- ing a distinction which, sound or not, is perfectly well established in English law, and with remarkable unanimity apply to their purpose decisions pre- dicated on what, in the authorities themselves, is regarded as an entirely different state of facts. To come to the point, Wildes v. Dudlow decides that an indemnity to a person for becoming a guarantor in an ordinary case is with- out the Statute of Frauds, and relies upon Thomas v. Cook, 8 B. & C. 728, and Reader v. Kingham, 13 C. B. N. S. 344, to support the position. Now as a matter of abstract reasoning, when A. says to B. ' become a guarantor for C. as to his debt to X., and I will indem- nify you,' C. assenting to the contract, and B. pays upon C.'s failure to do so, the first person to exonerate B. should be C. A.'s promise of indemnity amounts, therefore, to an engagement to reimburse B. if C. does not, as typi- cal a guaranty as can be imagined. The principle being so plain, one natu- rally scrutinizing with unusual nicety authorities wliich are invoked to sanc- tion an opposite result, comes to find that the decisions, with a few excep- tions, perhaps (see Throop on Validity of Verbal Agreements, § 438 et seq.) (among which latter, Thomas v. Cook, and Reader v. Kingliam are not), are distinguishable substantially on three grounds, either that they were cases where the promise held to be without the Statute was an engagement by a person to pay a debt which was really 238 his own, or were oases of promises made not to the creditor that a certain debt should be answered for, but to the debtor himself (E. saying to P. " if you have to pay that debt of yours to G., I will repay you ;" a contract in no way collateral), or lastly were cases of bail. And here we come to the distinc- tion to which Vice-Cliancellor Malins and Judge Wagner agree in giving the go-by. To take first the former's de- cision, we see that he relies mainly on Thomas u. Cook, and saying, that though Green u. Cresswell, 10 A. & E. 453, overruled it. Reader v. Kingham overruled Green v. Cresswell, and tliat Thomas u. Cook remains law. The history of these three cases can be suc- cinctly given thus : in Thomas ';. Cook, the promise was made by A., a surety to B., the promisee, that if the latter would assume and share the surety- ship, he, the promissor, would make him whole, and the contract was held not to be within the Statute. The reason being that A., though incident- ally guaranteeing that the principal would do his duty, and not allow either surety to be called upon, yet that A., being liable for the whole debt, in get- ting B. to divide this liability on con- sideration of indemnifying him, was really promising to pay his, A.'s, own debt. Gieen v. Cresswell, though it said that the reasoning of Thomas v. Cook was not satisfactory, did not, in fact, overrule the decision itself (see, however. Brown on Statute of Frauds, 145, and Throop, ut supra), for the two cases were entirely different. In Green V. Cresswell, A., the promissor, asked the promisee, B., to become surety in civil bail for C, a third person, and promised to keep him safe. Here the question of bail before alluded to comes CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 144. Childress. The statement of the law given by this judge is almost exhaustive, and is entirely fair and accurate. He finds that the English authorities leave the subject in doubt, and that the American are equally divided, standing eight states to eight. He notes that no two decisions are rested on the same reason ; and he quotes Chief Justice Shaw as saying that to be within the Statute of Frauds the promise must be to the creditor, whereas the indemnity is to the debtor; and Carter, C. J., as saying that the indemnity is what the surety relies on for safety, not the outstanding liability of the priii- up, and the problem wa3 whether there was any liability in the third person to indemnify his surety in a case of civil bail. The court held that there was, and therefore that the promise of indemnity was collateral. This lia- bility of C.'s was much doubted (see Leake on Contracts, page 129), and Reader v. Kingham, in overruling Green v. Cresswell, denied it, and did not, as Vice-Chancellor Malins seems to have supposed, decide that an in- demnity for becoming a mere guarantor was without the Statute of Frauds. It is apparently settled in England (see cases already cited, and Leake, ut supra) that promises to indemnify one for becoming a bailsman, either in a criminal or a civil proceeding, are not within the Statute, there being no lia- bility on the party bailed to keep his bailsman whole, and, therefore, the in- demnitor's promise to the latter being collateral to no other subsisting lia- bility is not a guaranty. Whether this doctrine of the non- liability of a party bailed is correct or not (see Throop, § 448,' n.) is of no im- portance in this connection. It has been established in England, and, therefore, to apply to contracts of in- demnification against an ordinary guar- anty decisions based upon the assump- tion that, in the party answered for, there was no liability to which the promise to indemnify could be collate- ral, so as to argue thai, because the latter are without the statute, the former must be, is absolute perversion of authority. We have seen that Green V. Cresswell and Reader v. Kingham leave the original position of Thomas o. Cook untouched ; and, therefore, must conclude that the principal case, Bissig 0. Britton, which is identical with it, is wrong in relying on Green v. Cress- well, which, besides being overruled itself, never in reality overruled Thomas v. Cook, owing, as has been said once already, to the fact that being a case of bail it was not in the same plane with the latter decision. See 13 American Law Register, 721, December, 1874, for a collection of American cases support- ing Thomas v. Cook, and as distin- guishing those cited in favor of the view taken by the vice-chancellor in Wildes V. Dudlow, above. It is fair to say that Mr. Throop (Validity of Ver- bal Agreements, § 474) regards the weight of authority as being rather to the effect that an indemnity against loss sustained by the promisee's hav- ing become a guarantor, is without the Statute of Frauds. See, also, Byles on Bills, *246, and 3 Pars. Con. (5th ed.), 22 n. ; contra, 1 Sm. Lead. Cases, 477-8 ; Browne on Stat, of Frauds, § 158 et seq.; Smith on Contr., p. *49, Mr. Rawle's note. 239 § 144.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. cipal ; and the Kentucky courts as going on the ground that the right against the principal arises from the payment of the debt, and does not exist when the indemnity was made ; and adds that Vice-Chancellor Malins's remark, that the principle is plain, is as good a reason as atiy of the others. Finding the question open the chancellor of Tennessee decides that the Statute of Frauds applies; on a real difficulty of the case, which he had apprehended from the outset, he had his doubts, and as the principal not having requested the surety to be- come such; the chancellor was not sure whether the liability of the principal to reimburse the surety did not first arise after the debt was paid, and so overruled a demurrer setting up the Statute of Frauds, and decided to hear proof; but finally (2 Tenn. Ch., p. 453) decided the proof to be insufficient to hold the indemnitor, saying that, " as it seems to me, where one person becomes surety for another at the latter's request, and for his beneQt, the request necessarily implies a promise of indemnity ; and if another person unites with the first in the request, and makes an express promise to indemnify the surety, his promise must necessarily be within the Statute, because collateral to the implied promise of the principal. And as it also seems to me, this result is not changed by the fact that the promise of the principal does not result from a request by him that the surety should become bound as such, but results by operation of law from the existence of the relation of principal and surety. The obligation of a principal to indemnify his surety, like the obligation of co-sureties to each other, stands upon a principle of equity, and dates from the creation of the relation." The facts of the case were as follows: The alleged promise was by the maker of a trust assignment for creditors, that if the promisee would become surety for the trustee's faith- ful performance of his duties, he, the promissor, would hold him, the promisee, the surety for the trustee, harmless.(?') In Ohio it has been held that, though perhaps once uncertain, the English law is now that a promise to indemnify one for becoming a guarantor is within the Statute of Frauds ; the court admitted that the law was otherwise in Maine, Georgia, and Kentucky, but made a strong answer to the sophism that, (y) Macey v. Childress, 2 Tenn. Ch. (Coop.) 442. 240 CHAP, v.] THE SUBJECT MATTER OF THE GUARANTY. [§ 144. as the guaranteed person was under no liability when the indemnity was given, the latter is not collateral. (lo) In Vir- ginia it was held that oral proof of a promise that, if the plaintiff would become surety on a bond, the defendant, the obligee in the bond, would give the plaintiff a written indem- nity to save him harmless, was inadmissible in a suit on the bond.(a;) So where the defendant, who held a draft to whi-ch he was not a party, asked the plaintiff to endorse it, and promised to save him harmless, and the plaintiff did so en- dorse, the Statute of Frauds is a good defeuce.(?/) Where the defendant, who held land, mills, and other property of M., procured the plaintiff to endorse a note of M.'s drawn to the plaintiff's order, by agreeing to guarantee it, this was held not to be original, but to be a guaranty within the Statute of (w) Easter v. White, 12 Ohio St. 224, citing Winokworth «. Mills, Green v. Cresswell, and Cresswell u. Wood, and saying that Thomas v. Cook, contra, was questioned in Green ii. Cresswell ; and that Kingsley v. Bal- come overrules Chapin !•. Merrill ; and citing Carville v. Crane, Farley v. Cleveland, Barker v. Buoklin as the same as Kingsley v. Baloome. There is a decision of Lord Kenyon which has been said to rule that an indemnity to one for becoming a guar- •antor is within the Statute of Frauds, viz : Winokworth v. Mills, 2 Esp. 484 ; it does not do so, however, and is, moreover, very doubtful on principle ; it held that a promise by a second en- dorser, made to a third endorser and the latter's endorsee, that, if they would sue the first endorser and maker of a promissory note, he, the second endorser, would pay the costs, was within the Statute ; though the word "indemnity" was used, this case had nothing to do with an indemnity of a guaranty ; and as the promissor had a direct pecuniary interest in having the endorsees get their money out of the- VOL. I. — 16 maker of the note or the first endorser, it is doubtful whether the promise is within the Statute of Frauds at all. (i) Towner u. Lucas, 13 Gratt. 710; (.y) Kelsey v. Hibbs, 13 Ohio St, 352, citing Easter y. White and Green (J. Cresswell ; see Ferrell i. Maxwell, 28 Ohio St. 386 (dictum). In Kentucky it has been held that where a vendor of land who had re- ceived a bill of exchange for the price, drawn by the vendee on U. T. in favor of him, the vendor, and had endorsed it and passed it away, and afterwards, by agreement of the vendee, conveyed the laud to the latter's assignee, he cannot, unden the Statute of Frauds, hold the latter on a promise to indem- nify him, the vendor, from liability on the hill of exchange ; it will be seen that on the bill the original vendee as the maker and U. T. as the drawee and senible acceptor were both liable to the vendor, who was drawee and first endorser, and, therefore, that the pro- mise of' indemnity given by the second vendee was collateral to the liability of the first vendee and of U. T. ; Floyd V. Harrison, 4 Bibb, 77. 241 § 145.] LAW OF THE STATUTE OF FRAUDS. [CHAP. V. Frauds, because M. remained liable.(^) In a case in 20th Vermont the rule is noticed, but not passed upon. (a) § 145. It would be idle to deny that there is much authority for the opposite proposition, that an indemnity to ties held one for becoming a guarantor is not within the Statute of Frauds. In a case already referred to Vice- Chancellor Malins said, that a promise to indemnify one for be- coming a guarantor is not within the Statute of Frauds ; to hold otherwise would be to make the statute a cover for fraud. (6) In a case in the chancery of Ireland, where, however, as in Thomas v. Cook, the indemnitor was himself liable for the debt as well as the promisee, the same view is taken. (c) The case of Reader v. Kingham, which is often cited as holding an indemnity for assuming a guaranty to be valid by parol is not a question of indemnity at all ; the defendant promised the plaintift", a bailiff, who had arrested one H. A., that he would pay the debt or produce the body of H. A. by a certain time.(rf) A decision in 10 New Hampshire, which resembles Header v. Kingham, really was a promise of indemnity, and to the latter the Statute of Frauds was held not to apply, be- cause adopting the theory of D'Wolf v. Rabaud (see § 97) ; the court held, that the two engagements, that of the in- demnitor and that of the person bailed, were separate, though each made to the plaintiif.(e) This continues to be the New (:) Simpson r. Nance, 1 Spear, 7. Eastwood v. Kenyon, and doubting (a) Beaman o. Russell, 20 Vt. 216, Giefn v. Cresswell. noticing the authorities. (rf) Reader v. Kingham, 13 C. B. N. Qi) Wildes o. Dudlow, L. R. 19 Eq. S. 352; 7 L. T. N. S., 789 ; see supra, 200 ; 44 L. J- Ch. 341 ; 23 W. R. 435, § 100, for a consideration of this case. 11 Moali:, 7,91 y testator in his lifetime against 368. a claim arising since would disturb the (e) Crane v. Bullock, R. M. Chart- course of distribution), ton, 319 (considering Rann v. Hughes, (A) Guishaber v. Hairman, 2 Bush, Eeech c. Kennegal, 1 Ves. Sr. 123; S. 321. C, S. N., Kennigate, Ambl. 67, and {i) Pratt v. Humphreys, 22 Conn. other cases. 317 (reiving on Stebbins v. Smith) ; 260 CHAP. VI.J PROMISE BY ADMINISTRATOR, ETC. [§ 156. The reason being given in one case tliat though the damages in the first instance came out of the administrator's estate, the intestate estate was ultimately liable. (,/) But the adminis- trator in such case agrees to take the risk of the sufficiency of the assets, and to such agreement the Statute of Frauds should apply. Where the promise, as has already been seen, is to pay out of the assets, and assets are proved on the trial, the theory of the liability of the administrator being only primary, and of the real liability being in the estate, is probably well founded, certainly if he still has assets when judgment is ob- tained against him ; whether, if having had assets, he volun- tarily exhausts them, as by paying debts of the same degree, and failing to pay that for which he has given the oral pro- mise, he is liable on such promise, notwithstanding the Statute of Frauds, is a diiferent and more difficult question(/;) (vide supra). Where the assets of the estate have been left in an administrator's hands, with a direction from all of the next of kin to apply them to funeral expenses of the decedent incurred by the plaintiff, the administrator is liable to the plaintiff, notwithstanding the Statute of Frauds.(^) Here the assets were diverted from their general purpose, and by the direction of those entitled to them converted into a fund devoted to a particular debt ; and the objection, therefore, against regard- see dictum in Sidle v. Anderson, 45 Pa. debt of the testator ; the majority of the St. 464 ; Collins v. Rowe, 10 Leigh, 114 court — citing Banes's Case (9 Co. Rep., (the promise was to pay out of testa- 91) and Cleverley v. Brett, cited in 5 tor's estate; see Throop, § 48, treating T. R. 8 — thought that-the executor was this case as probably that of an attempt liable rfe bonis propriis if at the time of his to defend on the guaranty clause of promise therewere assets to give the lat- the Statute of Frauds and not the ad- ter a good consideration. Judge Seawell ministrator clause, and showing that thought, however, that failure of assets the promise as a guaranty was not even at the time of the trial, as by pay- within the Statute of Frauds); see, ment of other debts, of higher degree, or however, above. of equal degree without notice, would (j) Pratt V. Humphreys, supra. make the promise nudum pactum. Judge (i) Collins V. Rowe, Sanford v. How- Seawell thought the promise made a ard, supra; seeReechw.Kennigal, IVes. difference only of form, and that the Sr. p. 126. This point was raised in administrator was personally liable Sleighter v. Harrington, 2 Taylor, 249 ; only because he was already liable as where an executor, in consideration of administrator, assets, promised in writing to pay a (/) Meert v. Moessard 1 M. & P. 11. 261 § 157.] LAW OF THE STATUTE OF FRAUDS, [CHAP. VI. ing assets in his hands as a fund to pay the administrator's per- sonal promise does not prevail in this case. In a Canada decision, where, however, there was written evidence of the executor's promise (a promissory note), it was said, upon proof that the transaction was entirely after the testator's death : "As goods cannot be sold or services rendered to a person in a representative character, the law, from the delivery of the goods or the rendering the services at the request of the defendants, implies a personal contract on their part to pay"('/(i) (vide supra). In an early case in Vermont, passing upon a promise given a few months before the passage of their Statute of Frauds, it was held that an executor was personally liable on a promise to pay a debt of the testator, which had been duly approved by the commissioner of the insolvent testator, and had been assigned to the plaintifi" by the creditor, with notice to tlie defendant, who had assets in his hands. (j?) The question con- sidered in this decision was one of the sufficiencj' of the con- sideration as determining the validity of the promise; and the court thought that there was a further consideration than merely that of the original debt; the court seemed to have thought that where the executor was liable because of assets, to further insist upon a personal liability arising out of his express promise was a mere difference of form ; that an ad- ministrator so paying a debt had yet his remedy over against the estate, even though the creditor had discharged the estate; and that if the estate was not discharged, and the executor died or was removed, the removal of the assets from his hands made his promise invalid for failure of consideration, so that no injustice would be done by treating the administrator as personally liable (vide sup^a). § 157. Assets are a good consideration for an ad- good con- ministrator's promise,(o) a contract to pay which by (m) Kerr v. Parsons, 11 U. C. C. P. 70 ; see Horsley c. Chaloner, 2 Ves 514. Sr. 83 ; Turner c. Brown, 3 S. & W (n) Moar v. Wright, 1 Vt. 63 (deny- 438 ; Bank of Troy v. Topping, 9 Wend ing Deeks v. Strntt, and distinguishing 273, 13 Wend. 557 ; Chambers i'. Lev Forth i;. Stanton as a case where it did ersage, Cro. Eliz. 644; Trewinian not appear that the defendants had Howell, Cro. Eliz. 91 ; Fisher p. Rich- assets applicable to the debt.) ardson, YeU-, 55, Cro. S&a. ¥1 ; Sidle (o) Barnard v. Pumfrett, 5 M. & C. i... Anderson, 45 Pa. St. 464; Williams 262 CHAP. VT.J PROMISE BY ADMrNISTRATOR, ETC, [§ 159. its terms shows that the liability is confined to the eideration assets, is not within the Statute of Fraud8.(p) promise. § 158. So likewise is forbearance by the promisee to press his claim against the decedent's estate. But this ° Forbear- is SO, perhaps, only to the extent of assets.(g') In a ancegood ... . 1 1 ■ • i_ j_ i considera- written promise by an administrator to pay a uonforthe mortgage on the intestate's property, principal and P''°™'^^- interest, upon a month's notice, the consideration is suffi- ciently shown in the writing, i.e., a month's forbearance; he is liable d. b. p., and it is immaterial whether the promise was made before or after he became administrator.(r) A written promise by an administrator, like all other promises under the Statute of Frauds, must be supported by proof of a consideration ; the writing raises uo presumption of con- sideration. (s) (Vide infra.) § 159. The fact of forbearance of his original claim by the promisee will not take the administrator's promise out of the Statute of Frauds, and this though by fhe*"o"ns°de- such forbearance such original claim has been ration. For- . 1 -11 f^T ■ ■ bearanee. barred by the statute ot limuations.u) Apart from the Statute of Frauds, the forbearance must be by ex- press stipulation, and not a mere neglect to sue, relying 1^. Chaffin, 2 Dev. 333 ; Guishaber v. Stat, of Frauds, p. 60 et seq. ; Williams Hairman, 2 Bush, 321 ; Agnew on on Exec. (6th Am. ed.), p. 1777. Statute of Frauds, p. 66 e< sey. (r) Wilson v. Luth, 6 Vict. L. R. (p) Martini'. Black, 20 Ala. 313. Law, 79, citing Tomlinson o. Gill, and (9) Ordinary v. Bonner, 2 Hill, S. C. e3pecially Childs t. Monins, 2 B. & B. 469 ; Mosely v. Taylor, 4 Dana (Ky.), 460 ; Goring v. Goring, Yelv. 11. 542; Turners. Brown, 3 S. & M. 438; (.!> Hester v. Wesson, 6 Ala. 415 ; Bank of Troy v. Topping, 9 Wend. Rann u. Hughes, 7 T. R. 350, n. (a), 273 ; 13 Wend., 557 ; Van Orden v. denying dicta to the contrary in Pil- Van Orden, 10 Johnson, 30 ; Johnsen lans w. Van Mierop, 3 Burr. 16S3 ; Rob- u. Whitchcott, 1 Roll. Abr. 24, pi. 33 : inson «. Lane, 14 Sm.& M. 161; Byrd ... Hamilton v. Terry, 21 L. J., N. S., C. Holloway,6 Sm. & M. 203; Walfordon P. 134 ; Gardener u. Fenner, 1 RoUe Actions, p. 1467 ; Toller on Executors Abr. 15, pi. 3; Fisher 0. Richardson, (Ingraham's ed.), p. 464, note; Wil- Cro. Jac. 47 (S. C, sub nom.. Fish v. liams on Executors (6th Am. ed.), p. Richardson, Yelv. 55) ; Hawesw. Smith, 1776; Agnew on Stat, of Frauds, p. 2 Lev. 122 ; Stebbins v. Smith, 4 Pick. 66 et seq. ; 1 Wms. Saund., p. 226. 97 ; Pratt v. Humphreys, 22 Conn. 317 ; (0 Silsbee ^. Ingalls, 10 Pick. 526 ; Walford on Actions, p. 1468 ; Agnew on Harrington i'. Rich, 6 Vt. 666. 2t)3 § 159.] LAW OF THE STATUTE OF FKAUDS. [CHAP. VI. upon the promise ; and where the consideration was assets, and there were no assets, a forbearance not stipulated for will not malce the executor liable. (wj And the forbearance must be for a definite time.(t;) On the contrary, it has been held that where an attorney acted for an executrix, and, in order that suits which she was bringing might be carried on, gave up to her some deeds on which he had a lien for his bill, the executrix was liable to pay the attorney's whole bill both for services for the intestate as for those for herself ; and this though there were no assets (the whole transaction was by parol). (zo) So also a promise by an executor to pay rent due by the testator in consideration of the release of a distress. (x) Here it will be noticed that the debt due by the testator was discharged as by the release of the distress; whether such discliarge is a ground for taking the promise of the executor out of the Statute will be considered in a moment. In a case already cited,(2/) the creditor gave up securities which he held upon the testator's estate, but the promise was with- drawn from the Statute on another ground. In another case a legatee obtained a decree in chancery against an executor, directing tliat of lands devised by the testator for the pay- ment of debts and legacies, such as were sold should be accounted for and the legacy paid, and that if the latter were not paid then that other portions of the land be sold to pay the legacy ; the executor having promised by parol to pay the legacy failed to do so, died, and devised the land as part of his own property ; under these circumstances recovery of the legacy was allowed against the executor's executor, the case being taken out of the Statute of Frauds by the legatee's forbearance to proceed under the original decree, relying upon the executor's promise.(2:) The proceeding seems rather to be one following specific land bound by a judgment than a re- covery on a parol promise. Under a statute of Massachusetts (m) Williams v. Chaffin, 2 Dev. 333. don, 4 Bro. P. C. 4 ; 5 Vin. Abr. 279, («) Turner ;.. Brown, 3 Sm. & M. pi. 53. 438. (a-) Kershaw v. Whitaker, 1 Brev. 9. (w) Hamilton (Duchess of) v. Incle- (y) Stabbing v. Smith, supra. (z) Patton ,. Williams, 3 Munf. 59. 264 CHAP. VI.] PROMISE BY ADMINISTRATOR, ETC. [§ 161. requiring written evidence to personally ehar2;e an assignee in insolvency, oral evidence was admitted of a promise by an assignee to procure the plaintiff's discharge from certain debts, make over to him certain accounts, and to pay him a sum of money, the amount of an allowance made him out of his estate by the commissioners in insolvency ; and the reason for taking the case out of the Statute was the performance by tlie plain- tiff of the consideration of the promise which was to procure the settlement of an action brought by a third party against the promissor ;(«) no reasons were given for the decision. § 160. To a statute analogous to the Statute of Frauds, the consideration of forbearance was therefore regarded T 1 - ^ , r" Further as creating an exception, it seems plain that, or distussion the two conflicting lines of decision just indicated, enceb7-" the latter assumes that a promise by an adminis- tween a '^ •' guaranty trator possesses two characteristics of a guaranty and the which have been denied to it not without reason,(6) promise of viz: that both promises, if on the consideration of ti^^ato"^" a lien surrendered by promisee to promissor, or if thereunder the original debt is discharged, are taken out of the Statute of Frauds ; these exceptions, in the case of a guaranty, can be defended (vide supra); but while a promise to pay a debt which was or has become the promissor's own, or which has been extinguished, cannot be regarded as a promise to answer for the debt, default, etc., of another, it is difficult to see how the surrender of a lien on his (decedent's) property, or the extinguishment of the decedent's debt as against the latter's estate, makes the administrator's promise to answer for such liability any the less " a special promise to answer damages out of his own estate." § 161. It is to be considered that there is difference of opinion among the writers on this point, one main- taining that administrators' promises and guaranties disliussion arealike in this respect,(c)and that another, though oftheeffeet ■^ '^ -^ ' ^ of the non- insisting strongly on this point(c?) of difference, lays liability of (a) Holbrook v. Dow, 12 Gray, 357. (c) Browne, Statute of Frauds, §193, (6) Throop on Validity of Verbal 153. Agreements, § 13 ei sey. ; Smith wick k. (a) Throop, Val. Verb. Agreem., Shepherd, 4 Jones, Law, 197. § 13 et seg. 265 § 161.] LAW OF THE STATUTE OF FRAUDS. [CHAP. VI. thedeoe- down a rule wlncl), as has been seen, would appear dent's , , , ' . , , , V estate. to lead to the conclusion that where there is no debt of the estate, the Statute does not apply to the administrator's promise. (e) The cases cited for the rule that the discharge of the estate took the administrator's promise out of the Statute are distinguishable ; see below. (/) Two of the authorities suggesting that the discharge of the decedent's estate ^\'i]l take the administrator's promise out of the Statute, or that the receipt of new Consideration by the administrator will have this efiect,f^) ai'e mere dicta. Another of the cases has already been distinguished. (A) The others, however, seem positively to place an administrator's promise and a guaranty in the same category in regard to the two points which have just been considered. (i) The greatest length, per- haps, to wliicli this tendency' has been carried was in a de- oision(J) where an administrator was held liable on an oral promise to pay a note of his intestate's, whereby the plaintiff had been induced to take the note; the administrator also represented the note as good. Generally as to what forbearance will as a consideration enure to make the administrator liable d. b. p., see 2 Will. Saund., p. 423 et seq. A promise by an executor to make cer- (e) Tliroop, Val. Verb. Agrecra., § 39, sayint; that the Statute of Frauds incluiles "all liabilities resting upon the executor or administrator strictly in his representative cliaracter, and which, but for the promise, he ivould liave been liable to discharge only in the due course of the administratiaid, and this was marked "admitted and allowed," and signed by the probate judge ; the holder of this account wish- ing to sell it to the plaintiff the latter consulted the adminis- trators, and they said that the account would be paid, and named the probable source of payment, and had no objection to pay it to the plaintifi:'; on this assurance the plaintiiF bought the account. Sernble that Swenson was endeavoring to get his claim, not out of the administrators personally, but from the estate of W.(w) Where the plaintift' presented to the administrator an account, and the latter endorsed it, " accepted and will be paid when means sufiicient come to my hands," assets being admitted, the evidence was suiBcient to make him liable personally. (a;) Where an executor paid interest on a bond due by his testator, this, though not an admission of assets, puts upon the executor the burden of showing that he has no assets.(y) § 165. The submission to arbitration by an administrator as such, of the question of what was due on a bond given by his intestate, is an admission of assets, and will render him per- (0 Colwell V. Alger, 5 Gray, 68. (y) Cleverley ?'. Brett, cited in Pear- (w) Trueman i: Tilden, 6 N. H. 203. son o. Henry, 5 T. R. 8, note (a). But ((■) Turner v. Brown, 3 S. & M. 438. see Throop, Val. Verb. Agreem., § 34 (_w) Swenson v. Walker, 3 Tex. 97. et seq. {x) McWliirter v. Jackson, 10 Hnmphr. 209. 268 CHAP. VI.] PROMISE BY ADMINISTRATOR. ETC. [§ 165. sonally liable for the amount of the award.(2r) Lord Eldoti said, if an executor or administrator think fit to 11 11 • T 1 • • Submission reter generally ail matters in dispute to arbitration, toarMtra- without protesting against the reference being '™' taken, as an admission of assets, it will amount to such ad- mission, and added, "I see no distinction in the case of the as- signee of a bankrupt. "(a) It had been held, however, that such a submission was not an admission of assets.(6) It has been ques- tioned as to whether by parol an executor by submitting to arbitration can make himself liable for a debt of the testator's, though there be no assets unadministered, as he should not have put the parties to the expense of an arbitration when he knew he had no assets; he was estopped to deny that he had assets.(c) A submission to arbitration by an administrator of a cause of action which arose in the intestate's lifetime, will preclude him from pleading ^^^ene administravit and thus make him personally liable ; but the submission does not transfer the liability from the estate to the administrator.((i) On the other hand, it has been held that a promissory note given by an executor which showed that it was a mode of submission to arbitration, was no confession of assets, and was nudum pactum.{e) A mere submission revoked by the administrator, defendant, will not bind him.(/) An award, therefore, seems necessary to fix the administrator's liability.(^) (z) Barry u. Rush, 1 T. R. 69]; (c) Sohoonmaker t). Roosa, 17 Johns. Worthiugton v. Barlow, 7 T. R. 453 ; 304, and see Ailing i). Munson, 2 Conn, see Holderbaugh v. Turpin, 75 Ind . 85 ; 691. Toller on Executors (Ingraham's ed.), (/) Harrington v. Rich, 6 Vt. 673. p. 464 ; Walford on Actions, p. 1466. (g) Worthington u. Barlow, 7 T. R. (a) Robson v. , 2 Rose, 50, 453 ; distinguishing Pearson v. Henry, citing Barry!). Rush ; Pearson v. Henry; as a case where the arbitrator did not Worthiugton v. Barlow ; see Riddell u. order the administrator to pay the debt, Sutton, 5 Bingh. 200. but merely ascertained the damages, (6) Pearson v. Henry, 5 T. R. 8, citing and deciding in the principal case itself Cleverley u. Brett, and distinguish- that the award which directed pay- ing Barry v. Rush, as a case where the ment raised a conclusive presumption effect of the language was, apart from of assets. Walford on Actions, p. 1467; the question of assets, to bind the ad- see Throop, Val. Verb. Agreem., § 36, ministrator personally, the words " as note, saying, that a submission is never administrator" not being regarded. within the Statute of Frauds, not being (c) Riddell u. Sutton, 5 Bingh. 200. a promise. {d) Reid v. Reid, 16 U. C. C. P. 250. 269 § 167.] LAW OF THE STATUTE OF FRAUDS. [CHAP. VI. § 166. Upon an account drawn up by a tradesman showing the debt to him due by the testator, and which, ingbyad- though not dniwing interest, contained a charge for mimstra- interest as well as principal, the executors, as such, wrote and signed an agreement to pay the creditor if he would wait for his interest until "the same is settled." The executors were held personally liable, not merely for the interest, but for the principal, since the account contained the charge therefor :(A) as the estate was not chargeable with interest, the executors must have intended to bind themselves personally, and the acknowledgment of the account and the promise to pay interest, implied a like undertaking to pay the principal. In a ca8e(z) arising before the Statute of Frauds, it was held that while an executor was not bound de bonis propriis merely because he accounted with his testator's credi- tors, yet an accounting upon an express request, and upon consideration of forbearance, shows both the promise and the consideration, and establishes the executor's liability. § 167. Making or endorsing a promissory note is a suiBcient Promissory admission of assets to bind the administrator per- notes, etc., sonally.f/) It has been held that a promissory given by ./ w / ^ r j admiDis- note binds the administrator personally, because, having no power to bind the estate, he must have meant to bind himself.(/i:) Promissory notes or other com- mercial paper, given by an executor, though for the debt of the decedent, will bind him personal ly.(^) A promissory note payable on demand, executed jointly and severally by exe- (A) Bradley v. Heath, 3 Sim. 557. cutors as such) ; Dow v. Worthen, 37 (0 Hawes !'. Smith, 2 Lev. 122. An Vt. 112; Davidson i. Rothschild, 49 oral promise by an administrator, etc., ALi. 109 ; Walford on Action, p. 1466; may be valid to prevent the bar of Agnew on Stat, of Frauds, p. 66 e( sey.; statute of limitations ; see 17 Am. L. see Bigel. Bills, 48, citing Cliristian r. Rev., 529. Morris, 50 Ala. 585; Toller on Execu- (j) Thompson v. Waugh, 3 Green tors (Am. ed.), p. 464. (Iowa), 342; Ciples o. Alexander, 2 (k) Winter v. Hite, 3 Coles (Iowa), Constit. Rep. 768 ; Bank of Troy v. 142 ; Greening u. SheiEeld, Minor Topping, 9 Wend. 273 ; 13 Wend. 557 ; (Ala.), 276. Turner v. Brown, 3 S. & M. 438 ; Cur- (0 East Tenn. Co. c. Gaskell, 2 Lea, tis V. The Bank, 7 Harr. & J. 25 744. (though the suit was against the exe- 270 CHAP. VI.] PROMISE BY ADMINISTKATOR, ETC. [§ 167. eutors as such, imports assets, and binds the executors personally. (m) A promissory note is on consideration of forbearance, and implies assets; and therefore binds the ad- ministrator giving it for the debt of his testator.(n) A prom- issory note signed by the guardian of one non compos mentis, in his own name as guardian, and in his ward's name, is sufficient under the Statute of Frauds, as importing a con- sideration, namely, of assets ; this between the original parties to the note is only ■prima facie.{o) A draft accepted by an administrator as such, "to be paid when funds are received for the estate," binds the administrator personally ;(p) there was proof of assets. A promissory note stating the consider- ation, to have been "value received by my late husband," binds the maker whether administratrix or not.(^) The as- signment of a note with a written guaranty of it by an administrator, in consideration of the holder not seeking to charge the intestate will create a personal liability. (r) Where an administrator signed, as such, the following memorandum: "Due McK. $90, account against J. S., deceased," judgment was entered de bonis propriis, and the defendant having de- murred, because no consideration was averred, no question of proof of consideration arose, (s) the court holding such agreement unnecessary. An executor is personally liable on a bond signed as such.(i) Semble, that executors who endorse as such a note drawn to their order as executors, are per- sonally liable, and not de bonis tesiatoris.{u) A note given by executors in the firm name, who under the will were carrying on the business, and which was for a debt of the testator, binds them personally, though they did not intend so to be (m) CMIds u. Monins, 2 Br. & B. (/)) Carter a. Thomas, 3 lud. 214 460; 5 Moo. 282. see Bowerbank u. Monteiro, 4 Taunt (n) Kerr v. Parsons, 11 U. C. C. P. 844 (citing cases). 514 (citing Childs v. Monins, Ridout v. (?) Ridout t'. Bristow, I Cr. & J, Bristow, King u. Thorn, I T. R. 4S9 ; 231. Wigley V. Ashton, 3 B. & A. 101 ; Cor- (r) Robinson o. Lane, 14 Sm. & M ner v. Shew, 3 M. & W. 350 ; Nelson v. 161. Serle, 4 M. & W. 795 ; Barnard ... Pum- (s) Ellis v. Merriman, 5 B. Mon. 296 frett, 5 M. & Cr. 63). (0 Geyer u. Smith, 1 Dallas, 347 (o) Davidson u. Rothschild, 49 Ala. see supra. 109. (u) King V. Thom, 1 T. R. 489. 271 * § 168.] LAW OP THE STATUTE OF FRAUDS. [CHAP. VI. bound, and though they did not know the estate to be in- solvent.(?;) A promissory note signed "administrator," but not saying of what estate, binds the maker personal ly.(M;) Where the contract under whicli the note was given origi- nated with the administrator, and there is no evidence that the entire matter has not done so, he only is liable and not the estate.(a;) § 168. The liability of an administrator on his promissory note has been placed on the ground that he cannot Powers and , . , , , i ^ i liabilities bind the estate, and must, theretore, be presumed ofadmin- to have intended to bind himself.(2/) In Pennsyl- ii-trators, vania the broad doctrine has been laid down, that etc., and _ ^ ^ ^ ' the form of in all cases of promise, express or implied, made to against Or by an administrator after the death of an intes- *^^''™' tate, and the same rule holds as to executors, the action lies by and against the administrator personally. (^) But where, in such action, the recovery is limited to the assets, no question of personal liability arises. A method of pro- cedure to be followed where it is desirable to prove an admin- istrator's promise, in order to hold not himself but the estate he represents, was suggested in a Tennessee case, under a de- claration containing counts both on the intestate's p^romise, and also on that of the administrator's, and which alleged an accounting by the defendant ; a demurrer to the evidence was filed, and the court said: "Then let it be inquired does the evidence stated in the demurrer conduce to the establishment of the fact of an insimul computassent and promise on the part of the administrator ? If he promise payment or admit the debt from whence a promise is inferred, the action must be against himself personally and for satisfaction de bonis propriis, and the promise must be supported by a sufScient considera- (!■) Lucas V. Williams, 3 Gifif. 150. 142 (citing Childs v. Monins and other (w) Tryon v. Oxley, 3 Greene (Iowa), cases). 289 (citing many cases, and giving the (;) Vide supra; Solliday v. Bissey, 12 analogy of signature as ag«ut) ; Woods Pa. St. 347 ; see, also, Grier v. Huston, V. Ridley, 27 Miss. 148 (citing Sims v. 8 S. & R. 402 ; VVolfersberger v. Bucher Stilwell, 3 How. (Miss.) 181). 10 S. & R. 10 ; Kline v. Gathart, 2 P. (x) Davis V. French, 20 Me. 23. & W. 490; Morrow v. Brenizer, 2Rawle, (I/) Winter v. Hite, 3 Coles (Iowa), 192; Masterson v. Masterson, 5 Rawle, 137. 272 CHAP. VI.] PROMISE BY ADMINISTRATOR, ETC. [§ 169. tion, as having assets and forbearance and the like. If you sue upon the assumpsit of the intestate, and prove a promise by the administrator after the death of the intestate, that is irrelevant testimony, which does not support the declaration. The right way in such a case is to declare on an insimul com- putassent, which does not subject the administrator personally, being only an ascertainment of a preexisting demand due from the intestate, and to be satisfied out of his assets. If you sue the administrator, and he plead the act of limita- tions, you cannot reply he, the administrator, promised in three years, for that is a departure from the declaration, which is founded upon a promise of the intestate.(a) There- fore you must sue the administrator himself upon his own promise, and must allege an insimul eomputassent and promise thereon, in order to recover against the assets of the intestate, and not charge the administrator de bonis ■propriis. The law from an acknowledgment cannot imply a promise having the latter etfect, but will imply an insimul eomputassent and promise, therefore aiFecting only the assets of the deceased. (a') To prove, tlierefore, an admission of the demand is to offer evidence of a circumstance from which the jury may legally infer the insimul eomputassent and promise, and, therefore, the demurrant ought distinctly and unequivocally to admit, in his demurrer to such circumstantial evidence, that the defendant did account with the plaintiff, and promise to pay as stated in the declaration or ought to withdraw his demurrer, and leave it to the jury to decide whether the facts were so or not."(6) § 169. There has been a tendenc}' in certain cases to treat written promises made by administrators as given in an official and not in a personal capacity, as tratoi"not where a note was given by au administrator parol i'^'?i'r"' evidence was admitted to show that it was given caBeeonhis 1 • p 1 T 1 1 • 1 • writing. for the price of land belonging to the intestate estate, so as to establish the consideration of the promise.(c) (a) See 2 Haywood, 282, 283, where (6) Bedford v. Ingram, 5 Hayw. 162. are cited 4Term Rep., 347 ; H.Blaokst., (c) Matlock v. Livingston, 9 Sm. & 104, 108, 110. M. 502. (ai) See 1 Hen. Bl., 104, 105. VOL. I.— 18 273 § 170.] LAW OF THE STATUTE OF FKAUDS. [CHAP. VI. And where the declaration averred that the intestate was indebted to the plaintiff, and that in consideration thereof the defendant promised, the inference is that the promise was given officially, and of this parol evidence may be offered aTid judgment had against the estate.((^) A written acknow- ledgment accompanied by a confession of judgment, both being given qtid administrator, was held not to bind personally.(e) An endorsement by an administrator of the intestate's writ- ten promise will not bind, the executor denying assets, and none being proved. (/) The reason for this decision is to be found in the failure of proof of consideration. Intervention in a judicial proceeding will bind the administrator person- ally.(^) After verdict on a promise by an administrator it will be taken that the promise was in writing, and that there were assets. (A) § 170. The doctrine of part performance having the effect in equity of taking a promise out of the Statute of foTmance Frauds has been held to apply to that of an admin- istrator ; but the case seems to stand on its peculiar circumstances, and to be an attempt to hold the estate of the decedent, and not that of his representative; there was a peti- tion by a creditor to be allowed a lien on the crops of the testator's estate, the petitioners having, under a promise from the executor to give such lien, advanced moneys to the execu- tor ; though the advance of the money was regarded as a part performance, the defendant in the court had failed to set up the Statute of Fi'auds, and on this latter ground the deci- sion mainly went.(2) The part performance was not regarded as effective in a not dissimilar case in Missouri, when the ven- dee, under a parol contract of sale, sought a special statutory recovery against the vendor's executor, and it was held that a writing was absolutely essential to this particular procedure; (d) Piper V. Goodwin, 23 Me. 251. Marsh. 238, citing Lair v. Miller, 2 Litt. (e) Dickey v. Trainer, 43 Pa. St. 66. 511. (jr) Mumford v. Bowman, 26 La. See, generally, as to confession of Ann. 415. judgment by executors. Toller on (/i) Hawkes v. Saunders, Cowp. 289. Executors (Ingraham's ed.), p. 464. (i) Daniel v. Trotman, 1 Moore, P. (J) Rucker v. Wadlington, 5 J. J. C. C. 149. 274 CHAP. VI.] PROMISE BY ADMINISTRATOR, ETC. [§ 171. that if the vendee was to recover it must be in an action join- ing the heirs and all the parties.(^') A promise by an executrix, that if the co-executors would give her the assets she would pay the testator's debts, is binding when performed by her, and her representative cannot claim to have the debts so paid allowed them as a credit in another transaction between the parties.(^) A part payment by an executrix of a debt of the testator has no eiFect to bind her personally, the Statute of Frauds re- quiring a writing.(?) § 171. In Indiana it has been said that the consideration of an administrator's promise to answer out of his own estate need not appear in the memorandum. (m) As J^Jfgo^g to how far an executor can voluntarily fulfil an oral invalid contract of his decedent, see the chapter on Voluntary Performance. Generally as to promises by executors to answer out of their own property, see Comstock on Executors, p. 384 ; Ram on Assets, p. 504 et seq. ; Alexander's British Statutes in Maryland, p. 524. As to the liability of an executor for the debts of his decedent, see 1 Williams, Saund., p. 220 et seq., and generally so as to bring the case within the Statute of Frauds, see Williams on Exec. (6th Am. ed.), p. 1776 et seq. As to personal liability generally of persons acting en auter droit, see 1 Amer. Lead. Gas., p. 609 ; see Holbrook v. Dow, supra. As to the liability of an executor on the parol contracts, etc., of his decedent, see Toller on Executors, p. 460. An administra- tor can by parol submit to arbitration a claim of his intestate relating to promissory note8.(7i) By statute in Connecticut (Rev. Stat. 1866, p. 85, § 168) written memoranda made by the decedent are admissible in suits by or against his repre- sentatives.(o) Under the Maine act of 1872, c. 85, a claim against an executor for a debt due by the testator must be stated in writing, but need not be signed, and the demand of payment (j) Schulter v. Bockwinkle, 19 Mo. (n) Ailing ti. Munson, 2 Conn. 694. 649. (o) Craft's Appeal, 42 Conn. 153; (k) Lamport v. Beeman, 34 Barb, see, also, Penn. Act Feb. 24, 1834, P. 248. L. 75, and Marcli 10, 1818, § 2, 7 Sm. (0 Starke v. Wilson, 65 Ala. 580. 79. (m) Gregory v. Logan, 7 Blackf. 112. 275 § 171.] LAW OF THE STATUTE OF FRAUDS. [CHAP. VI. may be om].(p) Under this act a claim must be specially stated in writing, and a presentation of the original evidence of debt, though in writing, as, for example, a promissory note, is not sufficient/^') As to executor's right of retainer, see Index ad verbum. Such a right is not within the Statute of Frauds, hence an executor can pay himself a debt due him by his testator, though such debt is within the Statute ; so of an administrator ;(r) and an executor can retain a debt due him by the testator, though barred by the statute of limita- tions. (s) In ah English case it was suggested that a right of retainer of an administratrix's debt must be supported by written evidence of the debt, but the point was not directly raised. (<) The following propositions, which are not, however, undis- puted law, may throw light on the difficult subject of this chapter : — I. An administrator's promise differs from that of a guar- antor — First. In the fact that the existence of a fund in the latter's hands, out of which the guaranty may be met, takes the promise out of the Statute of Frauds; while the adminis- trator's oral promise is not made valid by the possession of assets — the latter are not applicable to the payment of the ad- ministrator's special promise to pay out of his own estate. § 153, § 160, § 161. Secondly. The two engagements differ, also, in this, that the liability of the person answered for ceasing, the Statute of Frauds does not apply to a guaranty, while the non-liability of the estate he represents does not take an administrator's promise out of the Statute. § 154. Thirdly. The same difference occurs in the case of a promise made in consideration of a lien surrendered by the promisee. § 160-1. (p) Millett t>. Millett, 72 Me. 117; (r) Berry v. Grady, 1 Meto. (Ky.), gee Stevens u. Haskell, id. 2A5. 556 (citing Roberts v. Terrell). (9) Marshall r. Perkins, 72 Me. 344. (s) Crooks i-. Crooks, 4Grant (U. C.) Apart from statutory regulation this 616. rule does not obtain ; Little v. Little, (() Harry i'. Jones, 4 Price, 97. 36 N. H. 229. 276 CHAP. VI.] PROMISE BY ADMINISTRATOR, ETC. [§ 171. II. All engagements by an administrator, etc., for the benefit of the estate he represents, are within the Statute of Frauds. Except for liabilities incurred fraudulently or carelessly by the administrator, etc. : for matters arising since the death of the decedent: or generally where he is only primarily liable, having a right to ultimate reimbursement out of the estate. §154. III. A promise to pay a legacy does not personally bind the administrator, etc., unless in writing. § 155. IV. The administrator, etc., so far as the assets go, is per- sonally liable, and if he admits the possession of these, he is bound, though in fact he did not get them. § 156. As to the manner of admission of assets, see § 162-7. V. Assets are a good consideration for a personal promise by the administrator. § 157. VI. So forbearance by the promisee to sue. VII. But the surrender of a lien or the discharge of the de- cedent's estate by the promisee, will not take the adminis- trator's promise out of the Statute. § 160. VIII. As to how far the administrator may be liable in the first instance, but be entitled to reimbursement from the estate, see § 15i and § 168-9. 277 172.] LAW OF THE STATUTE OF FRAUDS. [CHAP. VII. CHAPTER VII. PROMISES m CONSIDERATION OF MARRIAGE. § 172. Generally. Before and since the Statute ; application of other clauses of Statute ; contracts of sepa- ration. § 173. General examples : Wife the creditor of husband ; wife's separate estate. § 174. Some examples of such oral promises being sustained. § 175. Representations generally ; as to facts. § 176. Encouragement of marriage. § 177. Eepresentation as to intentions. 178. Oral representation as to future intentions not binding. 179. Further examples. 180. Part performance generally. 181. Full performance. 182. Marriage itself not a part per- formance of a promise in considera- tion thereof. 183. Post-nuptial settlement in ful- filment of an antenuptial agreement. 184. The history of the law as to such settlements. IS.*). Memoranda of contract. 186. Mutual promises to marry. § 172. A PROMISE as to pay money, etc., in consideration of a marriage, is within the Statute of Frauds.(a) Before and ^vcn before the Statute of Frauds, if we may trust since the ^n entry in Tothill, an oral promise as to a child's application marriage portion was, semble, not good by custom of (a) Symondson v. Tweed, Free. Ch. 374 ; Brownsmith c. Gilborn, 2 Stra. 738; Re Gulliver, 2 Jur., N. S., 700; 27 L. T. 258; Williams o. Williams, 37 L. J. Ch. 854; Andrews v. Jones, 10 Ala. 400 ; Galbreath v. Cook, 30 Ark. 422 ; Cochran v. McBeath, 1 Del. Ch. 188 ; Chase v. Fitz, 132 Mass. 360 ; In the Matter of Willoughby, 11 Paige, 257 ; Brown u. Conger, 8 Hun, 626 ; Hair v. Hair, 10 Rich. Eq 163. On the general subject of this chap- ter, see 3 Bac. Abr., p. 574; see 1 Bish. Law of Marr. Worn., § 806-7, 810-1 ; Schoul. H. and W., § 354, 347, 278 370 et seq. ; Davids. Free, iii. pt. ii. p. 534, n. As to oral ante-nuptial promises, see Tyl. Inf. and Gov. (2d ed.), § 484 ; Mc- Qu. H. & W., pp. 232-40; 1 McVey Dig., p. 346 ; see Saunders v. Ferrill, 1 Ired. 97, as to No. Car. Act, 1785, Rev. ch. 238 (1 Rev. St. Ch., 37, § 29- 30), requiring registration of mar- riage contracts to validate them as against creditors. In Texas every matrimonial contract must, by statute (Pasch. Dig., art. 4633, note 1041), be made by an act before a notary public and two witnesses. CHAP. VII.] IN CONSIDERATION OF MARRIAGE. [§ 172. London.(6) This feature of the Statute of Frauds of other had been to some extent anticipated by previous statute; rulings in chancery; besides the case in Tothill, it oTelpara- had been decided, as early as the seventeenth year *'°"- of Charles I., that an oral contract in consideration of the marriage by which a wife should have the separate use of cer- tain property of lier own was done away with by the marriage itself, and could not be enforced, and that to be valid it should have been evidenced by an assurance good at law.(c) An oral antenuptial promise by the husband, in consideration of the marriage to convey land to the wife, is within the Statute of Frauds. (c?) A contract of separation not reduced to writing will not save the husband from liability for the wife's debts; none of the money agreed to be paid by the husband to the wife was shown to have been paid.(e) Where an oral contract with a view to a separation was fully carried out by the parties it will be sustained, the contract being a fair and just one.(f) An antenuptial parol promise made to the intended wife and her parents by the husband that he will not take her away from the parent's neighborhood, cannot be considered in any way in a suit for alimony brought by the wife against the husband based on his desertion. (p') An antenuptial contract, in Massachusetts, is void unless recorded ; and semble in South Carolina, Kentucky, and Iowa. (A) A contract, in considera- tion of marriage, otherwise valid, may fall within the "year" clause of the Statute of Frauds. (?) A promise to marry not being within the marriage clause of the Statute of Frauds, (6) Hall u. Liimley, Toth., pi. 44 in South Carolina, see 2 Ril. Dig., (Holb. ed.), p. 48. 91 ; in Kentucky, see Harris o. Dale, (c) Suffolk (Earl of) v. Greenvill, 3 5 Bush, 62 ; in Iowa, Hatch v. Gray, Rep. in Oh. (Pol.) 50. 21 la. 31. As to marriage settlements (rf) Elwell V. Walker, 52 la. 262. heing in writing, see Civ. Cod. Cal. (c) Baker v. Barney, 8 Johns. 73. (1874), § 178 ; as to a married woman (/) Dutton V, Dutton, 30 Ind. 454 ; charging her estate by a writing, see see § 180 et seq. Baker v. Lamb, 11 Hun, 420 ; Cohen (g) Hair v. Hair, 10 Rich. Eq. 163. v. O'Connor, 5 Daly, 28 ; Meiley v. (h) Ingham u. White, 4 Allen, 412; Butler, 26 Ohio St. 536. Stat. 1845, c. 208, § 2 ; Gen. Stat., o. (i) Houghton „. Houghton, 14 Ind. 108, § 27 ; Stat. 1869, c. 292 ; Crook. 605 ; see Derby v. Phelps, 2 N. H. 516 ; Annot. Stat. Mass., 2d ed., pp. 291-2 ; see Soh. H. & W. § 44 ; see infra, § 186. 279 § 173.] LAW OF THE STATUTE OE FRAUDS. [CHAP. VII. such a promise, not performable within a year, is within the year clause.(y) ; a promise, in consideration of marriage, may fall within the land clause. (/«) An oral antenuptial agree- ment between husband and wife, each agreeing to claim nothing out of the estate of the otlier, is good as against them- selves and volunteers claiming under them.(Z) Se.mble, a con- tract before marriage that the offspring thereof shall be brought up in a certain religious belief is within the mar- riage clause of the Statute of Frauds. (m) Oral contracts, in consideration of marriage, made before the Statute of Frauds, are valid. (h) It was said that, in South Carolina, a parol antenuptial agreement to make a settlement, in consideration of marriage, would be enforced in equity as against parties and volunteers, though semble the Statute of Frauds was in force then (1850) ; the point, however, was dictum. (o) In Connec- ticut it vvas held that an invalid parol antenuptial contract is admissible as evidence to show that the husband, by his con- duct, meant to give up to his wife his marital rights in her property.(/)) § 173. The following are some examples of promises coming within the scope of the present subject. Thus a Muimpies- promise to forgive a debt in consideration of a mar- wife the riage to be had between the debtor and creditor is husband; within the Statute of Frauds. (9') On the other rate estate.' hand, where the wife, several years before her mar- riage, lent the husband some money, for which she took his promissory note ; just before her marriage, she agreed not to sue on it before the marriage upon liis promising that if she did not, he would agree that the right of action on the (j) UUmau V. Meyer, 10 Fed. Rep. Corbin, 3 Call, 389 (before Va. Stat. 241, U. S. C. C. S. D. N. Y., citing 1785) ; Wall v. Scales, 1 Dev. Eq. 472, Derby v. Phelps. before No. Car. Act 1819 ; Gacken- (k) Rainbolt v. East, 56 Ind. 538. bach v. Brouse, 4 W. & S. 547, before (I) Southerland v. Southerland, 5 Pa. Act 1855. Bush, 593 ; see, as to the effect of vol- (o) Hatcher u. Robertson, 4 Strob. untary execution. Button u. Dutton, Eq. 182. 30 Ind. 454, supra and in/ra. (p) Sanford v. Atwood, 44 Conn. (m) Browne (Re), 2 Ir. Ch. 158. 143. (n) Otway's Case, cited in Gell v. (q) Flenner w. Flenner, 29 lud. 569; Vermeduu,Freem.Ch. 199; Thornton v. Henry n. Henry, 27 Ohio St. 128. 280 CHAP. VII.] IN CONSIDERATION OF MARRIAGE. [§ 173. notes should not be taken away by the marriage, and that the notes should be good against his estate, it was held, in an action by the wife against her husband's heirs on the note, that the promise to keep alive the notes was not one in con- sideration of marriage, and so within the Statute of Frauds, the marriage having been agreed upon independently, but upon the consideration of forbearance by the wife to sue on the notes before the marriage, and it was held, therefore, that the Statute of Frauds did not apply.(r) Where a feme sole, designing to marry, gave a bond to her intended husband, engaging in case of their marriage to give him the lands in fee, and afterwards the parties married, it was held that the bond was a sufficient memorandum of the agreement, and could be enforced after the wife's death against her heirs.(s) A promise to give a woman a certain sum of money if she will marry the promissor is within the Statute of Frauds, and the promise to marry is not severable from the rest of the en- gagement.(<) An oral promise by a husband before marriage to settle the wife's property upon herself is within the Stat- ute.(M) So a promise by the husband, in consideration of his wife renouncing her dower, that she should enjoy her estate as if 8ole.(t)) So, in Kentuckj', a promise that the wife should retain her title in her slaves and have full control over them.{w) Where an intended husband and wife had, it was claimed, made a certain agreement relating to slaves, but the understanding between them was not reduced to writing, so the pleading showed, because the parties believed that the provision of the will of a certain relative would be operative at law to carry out their purpose, it was held that the Statute of Frauds applied, and that, apart from the Statute, the case showed that the parties had not made a contract, believing (r) Eiley v. Riley, 25 Conn. 154. Bradley v. Saddler, 54 Ga. 682 ; Bean- (s) Cannel v. Buckle, 2 P. Wins, mont v. Carter, 32 Beav. 586. 243. (w) Finoli v. Finch, 10 Ohio St. 505. (0 Cushman v. Burritt, 14 N. Y. (w) Potts v. Merritt, 14 B. Mon. 406 ; Week. Dig., 59, S. C. N. Y. Ky. Stat, of 1796, p. 734; Rev. Stat., (u) Spioer o. Spicer, 24 Beav. 367 ; chap. 22, § 1 ; see semble contra, South- erlaud v, Southerland, 5 Bush, 593. 281 § 174.J LAW OF THE STATUTE OP FRAUDS. [CHAP. VII. none to be necessary. (x) An oral promise before marriage to settle tbe wife's property upon herself, being within the Statute of Frauds, and one after marriage being without considera- tion, a deed fulfilling the promise is a voluntary one.{y) § 174. But such promises as the above have, under slightly different circumstances, been sustained. Thus, in examples Indiana, a pi-omise between betrothed persons not of such to claim le^al rights of a survivor in tlie estate of oral ^ ° promises each other was held not to be an agreement in con- ta/nfd?'^^' sideration of, nor in contemplation of, marriage, for the question of the marriage had been already set- tled. («) It would seem that a fundamental distinction has been ignored ; no one should doubt that an agreement in con- sideration of marriage within the meaning of the Statute can be made by betrothed persons, and this attempt to limit the Statute to promises where the contract in consideration of the marriage and the contract to marry are consentaneous is with- out justification. But the court probably had in mind those cases where an oral promise is sustained because in reliance thereon a marriage is had, the promise being held to be a representation ; the corollary of this is, of course, that where the contract to marry, or certainly where the marriage itself is entered upon before the representation is made, it cannot be said that there was any reliance upon the latter. Pushing the doctrine of representation (see § 175 et seq.), a doubtful one at best, to its furthest limits, it will not cover the case in ques- tion. Indeed, it may be argued that the fact that the con- tract to marry having been previously made, if of any efiect, would rebut the idea of the promise not to claim the marital rights being a representation relied on in the marriage, and thus take away the only possible ground for supporting the latter promise ; in the Indiana case the promise covered cer- tain real estate, and being held inseverable, the " land" clause of the Statute of Frauds was held to apply ; we may, perhaps, (x) Montgomery «. Henderson, 3 (y) Lloyd u. Fulton, 91 U. S. S. C. Jones, Eq. (No. Car.) 114, citing Dunn 483 ; see Borst v. Corey, 16 Barb. 136. u. Tharp, 4 Ired. Eq. 7 ; 1 Eev. Stat., (z) Rainbolt v. East, 56 Ind. 538, 0. 50, § 8. citing Riley v. Riley, 25 Conn. 154. 282 CHAP. VII.] IN CONSIDERATION OF MARRIAGE. [§ 174. therefore regard the ruling first given above as being dictum. An example of a promise which was not in consideration of marriage, but really upon another consideration, will help to show the error of the Indiana decision. In a case before the House of Lords, where the plaintiff, whose bond was held by the defendant, who also held land under a conveyance from the plaintiff's father, which it was claimed was to a great extent merely voluntary, and who stated, upon being threat- ened by the plaintifl^'s father that he would attack the con- veyance, that she would not enforce the bond— the plaintiff' during the negotiation of whose marriage much discussion about the defendant's bond had taken place married thereafter — it was agreed by the court, Lords Cranworth, Brougham, and St. Leonards, that, while they differed on the point whether the defendant's declaration of intention bound her as a repre- sentation, the contract not to enforce the bond, if it were a contract, M'as not on consideration of marriage.(a) Personal property given to the wife by the husband before marriage is not taken under a contract in consideration of marriage.(6) The case which comes nearest to Rainbolt v. East is one in New York, in which the court thought the following contract rather one relating to land than in consideration of marriage, viz : where a woman in contemplation of her marriage, and of her husband conveying her certain land, paid his debts, and after marriage he conveyed to her, and this conveyance was upheld as against his subsequent creditors.(c) A parol antenuptial agreement that the wife's personal property should remain to her separate use is good so far as to make the property the wife's after the husband's death, though he had taken it into possession and put it out at security in the wife's name.{d) Where a contract to settle the wife's prop- erty upon herself is after marriage carried out, it may be sustained. (e) (a) Jordan v. Money, 5 H. L. C. 216, (i) Child v. Pearl, 43 Vt. 224. citing a number of cases of representa- (c) Dygert v, Remersolinider, 32 N. tions ; Lords Cranworth and Brougham Y. 629. thought the representation one of in- (d) Flowers v. Kent, Brayt. 238. tention, not of fact ; Lord St. Leonards (e) Luders v. Anstey, 4 Ves. Jr. 501 ; thought it binding. see infra, § 180 et seq. 283 § L75.J LAW OP THE STATUTE OP PRAUDS. [CHAP. VII. § 175. The branch of our subject next in logical order is the perplexed and unsatisfactory one of those pro- Monsgeue- "^i^es in consideration of marriage, which have been rally: as to withdrawn from the operation of the Statute of Frauds because they were regarded as representa- tions which had been so acted upon by at least one of the parties thereto, as to make a refusal to complete the contract inequitable. This is, indeed, an application of the doctrine of part performance to the contracts now under discussion, but the propriety of such an application as this has been so often questioned, that it will be better to dispose of this sub- head of " representations" before taking the general subject of part performance as relating to contracts in consideration of marriage. It may be said then it is generally true that re- presentations on which a marriage is had are upheld in equity on the ground of fraud ;(/) and where there is no fraud, the rule does not apply. In Bawdes v. Amhurst, " my lord chan- cellor" (Cowper) said that he " had always been tender in laying open that wise and just provision parliament had made" [i. e., the Statute of Frauds), and he distinguished Mallet V. Halfpenny as a case of fraud, adding that he " remembered Halfpenny walking up and down the court, bidding the master of the rolls (Sir John Trevor) mind the Statute, to which the latter answered him humorously, I do, Ido!"(^) There are three classes of cases which come within the limits of this exception : First, misrepresentations or concealment of facts ; secondly, the active encouragement of the marriage by the defendant; and thirdly, mere representations as to inten- tion. The first class gives rise to little doubt ; actual fraud will in equity break through any law that is not penal or political in character, through any law written or unwritten which goes only to the right of the parties, and has no public object to serve apart from doing justice between man and man. The various phases of the early case of Montacute v. Maxwell, illustrate the effect of fraud upon contracts in con- (/) Andrews «. Jones, 10 Ala. 400 ; see generally as to represeutations, 3 Ogden r. Ogden, 1 Bland, 287 ; Wil- Davids. Con., 534, n. liams «. Williams, 37 L. .1. Ch. 854; (g) Free. Ch., 402. Warden u. Jones, 2 De Gex k J. 76 ; 284 CHAP. VII.] IN CONSIDERATION OF MARRIAGE. [§ 176. sideration of marriage. In this case, as reported in Peere Williams, the chancellor said that fraud(/(,) was an exception to the Statute of Frauds, mere breach of the oral contract not being such fraud, and added that there were circumstances to indicate that the contract before the court had not been signed, owing to direct fraud. In the report in Precedents in Chancery, it was said that the wife was fraudulently induced to marry before the settlements were ready. (z) In the report in the Equity Cases Abridged, it was added that the husband privately countermanded the marriage articles. (j) As will be seen hereafter, mere haste, however unseemly, in making the marriage, will not, without more, take an oral contract out of the Statute of Frauds.(^) The commonest instance of direct fraud is, as has been said, the misrepresentation or conceal- ment of a fact. Thus, where a mortgagee stands by and allows a marriage settlement to be made without disclosing that he has the encumbrances on the lands, he is estopped to set up the mortgage, and will in chancery be ordered to convey the mortgage in trust to carry out the 8ettlement.(^) Where a parent, having an interest in property of her son, repre- sented in a marriage treaty the property to be her son's, and that he was not indebted to any one, she was not allowed to enforce a bond which the son gave her for her interest in the property. (m) Where a husband misrepresented the tenor and legal eft'ect of a marriage settlement, and the lady, relying upon this, married, the settlement was in a Georgia case in equity afterwards corrected. (n) § 176. The second class of cases is that in which the de- fendant, who has been active in brino-inff about the < . ^ a Encourage- marnage, and who nas induced the parties to enter mentofthe into it, refuses to fulfil the promise which forms an ""^'"*^®- inducement thereto. In a case in Viner the facts were as fol- (A) 1 P. Wins., 618. man, 1 Vera. 348; Neville ;•. Wilkinson, (O Free. Ch., 526. 1 Bro. C. C. 543, and cases cited in notes (j) Eq. Ca. Abr., 19. thereto; see § 174, Jordan v. Money, (k) See infra ; see Beaumont i-. where the law lords differed as to Carter, 32 Beau. 586. whether a certain promise was such (Z) Berrisford i'. Milward, 2 Atk. 49, a representation as would bind, (m) Scott V. Scott, 1 Cox Ch. 366; (n) Durham v. Taylor, 29 Ga. 176. see cases cited ; see Redman v. Red- 285 § 176.] LAW OP THB STATUTE OF FRAUDS. [OHAP. VII. lows:(o) A father encourages the courtship of his son with another's daughter, who proposes by letter to give her £500, if the father would settle £100 per annum on the son, which is refused. The son and daughter marry privately, and after this the letter was written, then he that refused consented, and he that consented refused. On a bill for performance of this agreement, it was objected, that these promises were within the Statute of Frauds, and that the letter being after the marriage should not bind; but decreed contra, on circum- stances of the father's privity and consent to the match and of marriage, by afterwards approving of it. That it was out of the Statute, if no letter for the agreement is admitted by the answer, but this case does not depend on parol evidence or admission ; for the letter after marriage considering the trans- action before, is suificient. The case of Halfpenny v. Ballet, already spoken of, was as follows :(^) The plaintifi', before his marriage with the defendant's daughter, signed a settlement, and delivered it to Ballet, but he, according to his answer, never signed, but tore it up, his objections not being to ma- terial parts of the settlement, and having permitted the court- ship and the marriage to be had, and not expressing any dislike till payment of his daughter's portion was asked for, and having permitted the young couple to live with him, the payment of the portion was decreed (according to this the defendant was Ballet). S. C, sub nom. Mallet v. Halfpenny, cited in (Bawdes v. Amhurst) Prec. in Chanc. 404, the facts are given difterently ; there it is that the defendant (here called Halfpenny) had signed the settlement, but had after- wards persuaded his daughter to wheedle the plaintiff out of it, and connived at the marriage. In another case, where the defendant wrote a letter stating what he would settle on his daughter, and a settlement was afterwards drawn by an attorney, but not signed, but there was evidence that both parties agreed to its terms, the court, inclining to dismiss the bill, gave the plaintiff leave to try it at law, and after- wards further resort to be had to chancery. Upon a new bill (o) Hodgaon ... Hutohenson, 5 Vin. (p) 2 Vern., 373 ; Prec. in Ch., 404 Abr. 522, pi. 34. 286 CHAP. VII.] IN CONSIDERATION OF MARRIAGE. [§ 177. brought by Cookes et ux. against Cookes's father, and Mas- call, the wife's father, Cookes's father ofiered in answer to perform; the facts being the same as in the former case, and it also appearing that the defendant had assisted his daughter to marry the plaintiff, it was decreed that the settlement drawn by the solicitor to be executed by the defendant, though it was not signed, and though it was said there was no other agreement reduced to writing (query, the letter spoken of above being done away with by subsequent negotiations).(5') Where the plaintiff proposing to marry the defendant's daughter, a third person, by the defendant's consent, and with his subsequent knowledge, writes the plaintiff, propos- ing a certain marriage, and a negotiation for a settlement is then begun, but being delayed, the plaintiff married the de- fendant's daughter ; the lord keeper held that the Statute of Frauds did not apply. Shortly before the marriage, the de- fendant said he would give nothing ; but the lord keeper said that when the couple's affections were engaged, and they were ready to go to church, it was too late to give a refusal. (r) An uncle wrote promising £1000 with his niece, but dis- suading her in the same letter from marrying the plaintiff ; he, however, gave her away at the ceremony, the husband could not recover the money in equity, but was left to his action at law.(s) § 177. The two cases last cited might perhaps better be ranged with those belonging to the third class „ " . . Repreeen- already defined, that, namely, which comprises repre- tation as to , , . , . -rx 11 iutentions. sentations merely as to intention. HoM'ever doubt- ful on principle, the law of England has certainly declared the validity of an oral representation as to future intentions, though they amount to no more than, if indeed to as much as, an ordinary promise. Nor is the evidence as to reliance thereupon always satisfactory, unless we admit, what is everywhere denied, that tlie fact of marriage itself is such reli- ance. The following are the most extreme cases, and are those (j) Cookes or Cokes v. Mascall, 2 201, citing Hart v. Moore, 2 Ch. Rep. Vern. 34 ; S. C, id. 201. 284 ; 1 Vern. 110 ; Cookes v. Mascall, 2 (r) Wanchford v. Fotherley, 1 Kq. Vern. 34; 1 Eq. Ca. Ab., 22. Ca. Abr. 22 ; 2 Vera., 322 ; Freem. Ch., (s) Douglas v. Vincent, 2 Vern. 202. 287 § 177.] LAW OF THE STATUTE OF FRAUDS. [CHAP. VII. which are strictly examples of mere representations or promises without any feature of estoppel or fraud. It will be noted, however, there are writings more or less full in every instance. Thus, where the plaintifl's father contemphiting a marriage about to be made by him, the plaintiff's father, tells the lady's father that he understood that she has a certain interest in her parents' property, subject to a power of appointment pos- sessed by the defendant, and the latter assures the plaintiff's father that he will not exercise the power of appointment, and the attorney for the lady and her father writes the attorney of the plaintiff''8 father that the lady's interest in her parents' property is a certain amount subject to a power of apjiointment in her parents which they do not propose to exercise, and a settlement was executed by the plaintiff and the lady reciting her interest as subject to the power, and the instrument is stamped as being for an amount which must have included tbe above described interest; it was held that even as against the plaintiff", his grandparents, the parents of the mother, could not exercise the power to his disadvantage.(^) Where a representation is actually made as shown by clear proof, and under circumstances to show that it was this that influenced the conduct of the contracting parties, and there is reasonable certainty as to the amount and nature of the pro- perty to which the representation is applied, it was held that a settlement verbally promised in consideration of marriage (which latter was proved by parol evidence, as well as by letters of the benefactor, to have been in consideration of the settlement), would, after the lapse of many years, be decreed to be performed. There were acts done by the promiasor in regard to the estate indicating that in spite of the pro- mise he still considered himself the owner, but following Hamersley v. Do Biel, where the same thing appeared, it was held that this was not necessarily inconsistent with a promise to will the property in a certain way; a representa- tion such as the above, though it were to do a certain act by a revocable instrument, is binding. (m) Where a niece who was (/) Walford r. Gray, 13 W. R. 335, Hamersley v. De Biel, and Luders v. 761 ; 11 Jur., N. S., 106, 473. Anstey, in the latter case a mere sug- (u) Prole V. Soady, 2 Giff. 20, citing gestiou for consideration followed by a. 288 CHAP. VII.] IN CONSIDERATION OP MAKRIAGB. [§ 177. taking care of her uncle learned that his will gave her but a small legacy threatened to go unless he was more liberal, he then made and showed her a codicil, which satisfied her, and she stayed ; it was held that he could not revoke the codicil, a representation had been made to which he was bound, she having acted on it.(v) Where during the negotiations relating to a m arriage, proposals in writing, and signed, are sent by the proposed bridegroom's uncle to the representatives of the in- tended bride and the request made that the nephew shall be received as a suitor, to which no answer is returned, but the nephew is received and the proposed marriage takes place, it was held that this in equity amounted to an agreement executed, and ought to be performed on all sides. (jc) In Hamersley v. De Biel,(a:) Bold v. Hutchinson,(a;') and Laver v. Fielder,(a:^) there were written memoranda sufficient to satisfy the Statute of Frauds. The English rule supporting these oral representations does not apparently extend to those made by the husband or wife to the other, or the family of the other. Thus A., on Tuesday, writes B., the trustee of C, that he is about to marry C, and that the wedding takes place on Saturday, and using in the letter thesevvords: " I especially wishit(C.'sproperty)entirely settled on herself." No settlement was executed, and A. married C, on Wednesday, the next day. It was held that this letter did not bind either A. or C, and that its utmost effect would be in justi- fying the trustee waiting for an opinion of the court, C, being still a mmor.{y) But a late case is to a somewhat different effect, and where the first of the letters given below in the note, was written by C. M., the lady's relative and trustee, to the intend^ ing husband ; the second was written by the latter to the marriage, was held to "be binding, see (x') 5 DeGr. M. & G. 558, before L. Laut's Appeal, 95 Pa. St. 279. C, affirming M. K., 20 Beav., 250, citing («) Loffus V. Maw, 3 Giff. 604 ; see cases. Coles o. Pilkingtou; Lofifus o. Maw (x^) 32 Beav., 1, and soin Crofton !-. was much criticized in Humphreys v. Ormsby, 2 Sch. & Lef. 590, and Alt v. Green, 10 Q. B. D. Alt, 4 Giff. 84, where the evidence (w) Parker v. Sergeant, Ca. Temp, showed a marriage had in reliance Finch, 147. upon the contract. (x) 12 C. & F., 73 (Dom. Proc.) (j/) Beaumont v. Carter, 32 Beav affirming S. 0. below, before M. R., 3 586. Beav., 469, and before L. C, 12 CI, &, Fin., 63 n. VOL. I.— 19 389 § 177.] LAW OF THE STATUTE OF FRAUDS. [cHAP. VII. solicitor of the former, Malins, V. C, who said that " these cases, with regard to contracts made before marriage are always cases which savor of difficulty," held that the memoranda were sufficient, inasmuch as C. M. must be supposed to have relied upon the husband's letter in permitting the mar- riage.(2) In a comparatively recent Massachusetts case, there is a dictum in which the court, referring to agreements of marriage settlements, says : " In such cases, the marriage, although not regarded as a part performance of the agreement for a marriage settlement, is such an irretrievable change of situation, that, if procured by artifice, upon the faith that the settlement had been, or the assurance that it would be exe- cuted, the other party is held to make good the agreement, and not permitted to defeat it by pleading the statute.(a) Where a husband before marriage promised to make a certain settlement on his wife, but failed to do so, and instead con- veyed his property to the children of his previous marriage, reserving a life estate to himself, oral evidence was in a Ken- tucky case admitted on the ground of fraud. (6) In a modern English case, Vice-Chancellor Stuart said, that this doctrine was the most difficult and important, and the most perplexed by authority of any of the heads of equity. He thought the weight of authority to be with Hamersley v. De Biel .... a representation clearly proved and relied on should bind. The marriage was contracted, said the Vice-Chancellor, on the faith of the representation, and the present case taken out of the (z) Viret V. Viret, 43 L. T. N. S. in accordance with the Rev. C. Mac- 494 ; the notes were as follows : — kenzie's wish. In the event of my Dear Mr. Viret : Thanks for your marriage with Miss Wright taking note, bnt it has made me anxious. I place before the settlements are ready, cannot understand the delay, but I I agree to Miss Wright's fortune being trust to you that all will be done as we settled on herself, subject of course to should desire ; and if from any cause certain conditions, chiefly relating to you are tempted to marry before the myself and the children of our marri- settlements are signed, you will before age (if any, or otherwise in case Miss the wedding write a letter to our solici- Wright should predecease me), tors contracting to settle on Constance (a) Glass u. Hulbert, 102 Mass. 38, all her fortune coming to her eventu- citing Montacute v. Maxwell, Browne ally. on S. of P. § 441 et seq. The second letter was : — (6) Petty v. Petty, 4 B. Mon. 217. Dear Sir : I write the following letter 290 CHAP. VII.] IN CONSIDERATION OF MARRIAGE. [§ 178. Statute of Frauds by part perforniance.(c) It is to be remarked that in this case one parent paid all that he promised to the young couple, and that the other who was sought to be charged made his son his executor ; it was held that the latter could retain out of the assets in his hands the unpaid residue of the amount agreed to be paid by the testator. As will be seen else- where, an executor's right of retainer is not within the Statute of Frauds at all. § 178. Not only has it been decided that mere representa- tions as to future intention are within the Statute, ... iiT 11 Oral repre- but some ot the authorities so holding would appear sentationa to be opposed to allowing the fact of reliance, upon fntention'^* the representation being made, a reason for limiting P"' t''°. De Biel ; and saying that (m) Ogden v. Ogden, 1 Bland, 287. Wankford v. Fotherly is better reported (n) Bradley v. Saddler, 54 Ga. 682. in Freem. Ch., 200, than in 2 Vern., (o) Surcome o. Pinninger, 3 De G. 322. M. & G. 571; 22 L. J. Ch. 421, citing (/) Kirwan v. Burchell, 10 Ir. Ch. Hamersley u. De Biel and Taylor v. Eep. 63 ; as another example of an Beech, 1 Ves. Sr. 297, and distinguish- insullicient promise, see Quinlan u. ing Lassence v. Tierney as a case where Quinlan, H. & Jones Ir. Rep. 792, cit- there viss no part-performance except ing cases. See M'Askie v. M'Cay, Ir. the marriage. See Part Performance. Eep. 2 Eq. 451 ; 16 W. R. 1188, infra, (p) Dygert v. Remerschnider, 32 doubting whether under Jorden v, N. Y. 829 {semble) ; Coles v. Pilkington, L. R. 19 Eq. 178. 295 § 180.] LAW OF THE STATUTE OF FEATJDS. [CHAP. VII. woman promised a man that if he would marry her and enter upon and improve the laud, she would convey it to him. The husband improved the land, but the improvements were held to be insufficient part- performance, because bis possession was that of husband and not that of vendee.(y) Giving instruc- tions for drawing settlements is insufficient, even when title- papers are given to a solicitor for the purpose, and though the direction is partly carried out.(r) Payment of interest on a marriage portion is not sufficient part-performance.(s) It was held that where, in consideration of a particular marriage, a person promised by parol in an informal discussion to pay the interest on a certain sum of money to his daughter during her life, and after her death that the principal should go to her husband, and several payments of the interest were made, but at iri'egular intervals, it has been held that, being by parol, this contract was within the Statute of Frauds, and that the payment of interest was not part performance under the circumstanees.(<) On the contrary, the payment of money seems in the following case to have been regarded as sufficient part performance. When the claimant and his wife, contem- plating marriage, the lady's father agreed to settle on her £200, on condition the claimant's father will settle on him the same amount, and the lady's father paid over the £200, and the claimant's father paid over £50 and died, leaving the claimant his executor, it was held that the contract, being partly performed, the claimant could retain £150 out of the assets of his father's estate.(i6) Where, under an oral ante- nuptial contract, a wife is permitted by her husband to use her property as if sole on consideration of giving up her dower, the fact that she did enjoy her property uncontrolled, and made gifts of some of it (serable personalty), is no part (?) Henry v. Henry, 27 Ohio St. 128, Gulliver, 2 Jur. N. S. 700, distinguish- citing Pinch v. Finch, 10 Ohio St. 505. ing Haineraley v. De Biel on the first (r) Montacute v. Maxwell, 1 P. Wms. point, and Clinan u. Cook, 1 Sch. & 618; Redding o. Wilkes, 3 Br. C. C. Lef. 22; and Bond u. Hopkins, id. 433, 401 ; Bawdes i;. Amherst, Preo. Ch. on the second. 402. («) Williams c. Williams, 37 L. J. (s) Barter (ex parte), Mont. Cas. in Ch. 854; 18 L. T. N. S., 785. See § Bank. 135. 177 and n. (c). (t) Gulliver {Re), Stroughill v 296 CHAP. VII.J IN CONSIDERATION OF MARRIAGE. [§ 181. performance to sustain the contract as against her claim for dower, her possession was not exclusive of that of her hus- band. (w) The manual delivery by a wife to her husband, of notes payable to herself, though he did not collect the amount of them, or have them endorsed to him, was considered a suffi- cient performance of an antenuptial promise to give them to him ; one judge dissenting as to this. The husband would, jure mariti, have had the right to these choses in action apart from the contract, but he would, at law, have had to reduce them to possession, otherwise they would go to the wife's representatives ; under the contract he was to pay the wife certain pin money. (w) Where a widow put the shares of the husband's estate, which he had devised to their daughters, into trade, and married a second time, and she and her second husband continued to use the money in trade, and the second husband orally promised the suitor of one of the daughters that the latter's portion should amount to a certain figure, and ai'terwards paid a large part of the amount,. this, so far as paid, was good against the step-father's creditors. The con- tract within the Statute of Frauds, binding in conscience, could be carried out ; but a bond, executed long after the first promise, but not delivered to the daughter or her hus- band for the unpaid balance, was not binding, as it appeared not to have been delivered, nor to have been asked for by the daughter or her husband.(a;) § 181. The doctrine that voluntary or full performance takes a contract out of the Statute of Frauds, ap- plies to agreements in consideration of marriage ; an fo^^Jja'nce administrator is not obliged to set up the Statute to a claim on such a con t ract.(2/) The want of a writing does not make a contract in consideration of marriage void or illegal, it is only a matter of evidence.(2;) In Indiana an (u) Finch v. Finch, 10 Ohio St. 505, {w) Crane u. Gough, 4 Md. 322, re- distinguishing Crane u. Gough, 4 Md. versing 3 Md. Ch. Dec, 119. 322, as a case of fully executed con- (a;) Loeffes v. Lewen, Prec. Ch. 371. tract. But Houghton v. Houghton, 14 {y) {Re) Garratt's Trust, 18 W. R. Ind. 505, is directly to the contrary, 684 ; see Williams v. Williams, 18 L. the contract being held to be fuUy'per- T. N. S. 785 ; in both these oases there formed. was also a part payment. (z) Child V. Pearl, 43 Vt. 224. 297 § 182.] LAW OF THE STATUTE OF FRAUDS. [OHAP. VII. agreement before marriage, by which the intended husband and wife surrendered their mutual rights in the property of the other, and under which the husband gave his wife tlie control of her own property, and paid a certain sura yearly, is a bar to an action by the wife, when a widow, for her legal right to $300 ; the contract, though by parol, is good, having been fully performed. (a) Where two persons about to marry agree to relinquish to the wife's mother, who was also her guardian, and in possession of the property, all the daughter's estate, it was held in Alabama that the contract requiring no further act, was fully performed, as against a creditor of the husband. (6) The following instruction was held to be correct law : " That a parol agreement made between husband and wife, in view of separation, and fully executed on the part of the husband, wholly for a consideration, which, in the light of all the circumstances of the parties at the time the con- tract is made, is fair, reasonable, and just, the contract will be upheld. (c) § 182. Marriage itself is no part performance of a contract in consideration thereof.(e^) In a case in the reign of Charles I., it was held that an oral contract, in consideration of marriage, that the wife should have the separate use of certain property of her own, was done away with by the very fact of mar- riage. (fZ) Lassence v. Tierney was a curious case, there a surviving husband, whose wife had only a life- interest in certain real and personal estate, and also property Marriage itself not a part per- formance of a pro- mise in considera- tion ttiereof. (a) Uougliton r. Houghton, 14 Ind. 505 ; see, contra, Finch i . Finch, 10 Ohio St. 505, supra. (6) Andrew u. Jones, 10 Ala. 400 ; see supra, § 179. (c) Button u. Button, 30 Ind. 454. For examples of voluntary performance of oral contracts in consideration of marriage, see Goodell 'j. Blumer, 41 Wis. 443 ; Credle v. Carrawan, 64 No. Car. 422 ; Jeston v. Key, L. R. 6 Ch. App . 612. (c') Taylor v. Beech, 1 Ves. Sr. 297 ; 298 Redding o. Wilkes, 3 Bro. C. C. 401 ; Barter, ex parte, Mont. Cas. in Bank. 135 ; Lassence o. Tierney, 1 Mac. & G. 551 ; Warden v. Jones, 2 Be Gex & J. 76 ; Crofton c. Ormsby, 2 Sch. & Lef. 590 ; Bradley <.-. Saddler, 54 Ga. 682 ; but see Durham u. Taylor, 29 Ga. 176 ; sernhle, contra, Flenner v. Flenner, 29 Ind. 569 ; Ogden u. Ogden, 1 Bland, 287; Brown o. Conger, 8 Hun, 626; Finch V. Finch, 10 Ohio St. 505. id) Suffolk (Earl of) u. Greenvill, 3 Rep. in Ch. (Fol.) 50. CHAP. VII.] IN CONSIDERATION OF MARRIAGE. [§ 183. of her own absolutely, claimed under a devise from her ; the power to will was given her by a deed, executed by the hus- band and wife, but not properly acknowledged by her. It was held that she had no power to will, although after mar- riage a bill had been brought by her against her husband, claiming specific enforcement of an oral antenuptial contract, and although the husband in his answer acknowledged the contract, and thereafter the deed above mentioned, which was in accordance with the oral trust, was executed. (e) A mar- riage entered into upon receipt of a memorandum containing certain promises is proof of the acceptance of and reliance upon the memorandum. (/) It has been suggested in one or two cases that marriage ought to be considered sufficient part performance.(5') ^^^ what is probably meant is, that when the marriage is had in reliance and trust upon the oral promise, the latter shall be sustained on the principle of fraud (see supra, § 181). In the case of Andrew v. Jones, 10 Ala. 400 (see § 175), the only real performance seems to have been the fact of marriage, for the contract was to relinquish certain property to a person who had possession, and the court said that no further act of performance was called for under the contract. In Scotland the marriage itself has the effect of validating an informal contract in consideration thereof.(A) § 183. Another phase of the doctrine of part or full per- formance of a contract, in consideration of marriage, is that of a post-nuptial settlement in fulfilment of ti°fe"ettre- an ante-nuptial promise, except as being violative mentin 01 the rule which lorbids voluntary conveyances in of an ante- fraud of creditors as under the statutes of Elizabeth agreement. such post-nuptial settlements are entirely valid.(i) (e) 1 Mao. &G., 570, citing auddis- see Jeston v. Key, L. R., 6 Ch. App. tinguishing Hamersley v. De Biel and 612 ; Durham o. Taylor, 29 Ga. 176. Dundaa v. Dutens. (A) Falconar v. M'Leod, Sess. Cas., (/) Saunders v. Cramer, 3 Dr. & W. 8 S. 312 ; but noj; a forged contract ; see 87; 5 Ir. Eq. 12 ; S. C, S. N., Greene Kibblesu.Stevenson, Sess.Cas., 9S. 237. V. Cramer, 2 C. & L. 54. (i) Taylor v. Beech, 1 Ves. Sr. 297 (g) Coles u. Pilkington, L. R., 19 Montacnte v. Maxwell, 1 P. Wms. 618 Eq. 178 (Malins, V. C), and by Story Free, in Ch., 526 ; 1 Eq. Ca. Ab. 19 in Eldredge u. Jenkins, 3 Story, 286 ; Luders v. Anstey, 4 Ves. Jr. 501 299 § 183.] LAW OF THE STATUTE OF FRAUDS. [CHAP. VII. This rule applies to the caae of chattel s,(j/') and a pur- chaser with notice cannot claim the ris;hts of a creditor ;(A') an oral contract not to claim marital rights in the estate of each other entered into by two persons about to marry will be sustained in Kentucky as against themselves and volunteers claiming under them, but see supra, § 172. (?) It has been decided in California that a post-nuptial execution of an ante- nuptial contract cannot be assailed by creditors because the latter was oral.(?n) A post-nuptial settlement if otherwise void as against creditors will not be saved by the fact that it ■was made in fulfilment of an oral antenuptial contract ; the latter has no effect in removing the voluntary character of the settlement. (?i) An uncle having verbally promised M'Askie, the plaintiff, the proposed husband of his niece, that he would make a suitable provision for her at his death, executed after the marriage a bond to M'Askie; tiie uncle afterwards assigned a certain policy of insurance to M'Cay, the defendant. After discussing the effect of a letter written before the marriage by the uncle to his niece, stating that he would not assign to her or her husband, but would do the same thing in another way, which letter was written in confidence and not communicated to the husband, the master of the rolls (Walsh) said that the antenuptial promises were too vague to make the subsequent bond other than voluntary, that they were not even representations, and that under Jordan v. Money it was doubtful whether as parol representations they would have any effect, and that the antenuptial contract being non- enforceable under the Statute of Frauds made the suljsequent bond voluntary. It makes no difference that the agreement Argenbright v. Campbell, 3 H. & Mnn. (Jc) Argenbriglit v. Campbell, 3 H. 159, citing cases Brooks v. Dent, 1 Md. & Mun. 159. Ch., Dec. 526 ; Davidson u. Graves, (I) Southerland o. Southerland, 5 Riley's Eq. Rep. 331, citing oases ; Bush, 593. Albert v. Winn, 5 Md. 74, citing autho- (jn) Hussey v. Castle, 41 Cal. 242. rities ; Saunders v. Fefrill, 1 Ired. 97. (n) Lloyd u. Fulton, 91 U. S. 4S3 ; ij) Koonce v. Bryan, 1 Dev. & Bat. Wood v. Savage, 2 Doug. (Mich.) 319, Eq. 233, and as between the parties the citing authorities ; Izard . Farrington,! Swans. 302 113 ; see Cooper v. Wormald, 7 W. R. 402 ; L'Estrange v. Robinson, 1 Hogan, 202 ; Davidson o. Graves, Eiley's Eq. Rep. 231, citing cases ; Smith v. Green, 3 Humph. 121 ; Albert v. Winn, 5 Md. 74; Reade v. Livingston, 3 Johns. Ch. 481 ; Borst v. Corey, 16 Barb. 136 (the husband was insolvent when the alleged oral contract was made) ; Satterth- waite V. Emley, 3 Green Ch. N. J. 491 (saying that if properly proved, how- ever, a post-nuptial settlement under an antenuptial contract was good). (s) Caines v. Marley, 2 Yerg. 588 ; but see Smith r. Green, supra. (() Spurgeon v. Collier, 1 Eden, 61 ; see p. 62 n. (a), citing cases. (m) 3 Johns. Ch., 481 ; citing Jason u. Jervis, 1 Vern. 284 ; Ramsden v. Hylton, 2 Ves. 304. The chancellor said that Griffin y. Stanhope (Cro. Jac. 454), and Sir Ralph Bovy's Case, and Lavender v. Blackstone (2 Lev. 146), holding that a parol antenuptial contract was a sufficient foundation for CHAP. VII.] IN CONSIDERATION OP MARRIAGE. [§ 184. years after marriage, voluntary on its face, and reciting no antenuptial agreement on the part of the settlor, the husband, supported only by proof of a parol agreement, differing from the terms of the settlement, and inconsistent in some respects with the sworn answer of the settlor in the particular case, was held invalid as against creditors. The chancellor said that a post-nuptial 'settlement, made in persuance of a written antenuptial contract, was good. In North Carolina, whereby statute marriage settlements must be registered within a cer- tain time or be void, a settlement cannot be corrected even in equity on oral evidence of the antenu[itial contract, at least as to creditors ; semble seeus as to' the husband and volun- teers under him.('i!;) § 184. The conclusions which have been set forth were not settled without conflict of decision ; as late as 12 ' The history Vesey, Sir William Grant, though evidently inclined of the law to the modern view, acknowledges the difficulty of settle- overcoming previous authority : after saying that ™™''^- to support a post-nuptial writing by the fact of an antenup- tial oral contract would be to ignore the difference between the fourth and seventh sections of the Statute of Frauds, the seventh section requiring a writing only to evidence not to create a trust, he adds: "There are dicta that a settlement after marriage, reciting a parol agreement before marriage is not fraudulent against creditors; provided the parol agree- such post-nuptial settlement, were \)e- Thurlow apparently regarded such a fore the Statute of Frauds. settlement as good. Kent argued that, That Montacute v. Maxwell (1 Str. as reported, Dundas u. Dutens was of 236), 1 P. Wms. 618, decided that a pa- very little use as an authority. In rol promise to make a settlement in con- Randall v. Morgan Sir Wm. Grant, re- sideration of marriage was invalid, but ferring to Dundas u, Dutens, thought that a written admission after marriage post-nuptial memoranda, would not would have been sufficiently supported support an antenuptial parol contract, by such previous parol promise, the Kent refers to Prec. Chan., p. 101, as chancellor remarked, that Dundas v. contra to Randall v. Morgan, but looks Dutens, as reported in 1 Vesey, Jr. 196, upon it as a loose note; Atherley on seemed to discountenance a poat-nup- Marr. Sett, being cited, and Roberts on tial settlement supported as to cred- Frauds, p. 243, criticized, itors, by a parol antenuptial promise, (w) Saunders v. Ferrill, 1 Ired. 97 ; but that in the same case, as reported Act 1785, u. 238 ; Rev. Stat., u. 37, § 29. in 2 Cox Ch., 235, the Lord Chancellor 303 § 184.] LAW OF THE STATUTE OF FRAUDS. [CHAP. VIT. ment had actual existence. But I do not know that the point has been directly decided. It was discussed in Dundas V. Dutens, but Lord Thurlow, though inclined that it should stand good, said it was a mere miitter of curiosity, if the first point was against the plaintiff, as it was. A case in Levinz is there referred to, a dictum, not a decision, that the settle- ment was void; for, although a parol promise before marriage was proved, and a settlement made after the marriage, yet it was not made with such a correspondence to the parol pro- mise, as to appear to have been made in the execution of it.''(»;) The two decisions which conflict most with what is now admitted to be law are Dundas v. Dutens, and Shaw v. Jakenian. In the former case, as reported in 2 Cox, Lord Chancellor Thurlow said that he could not conceive that a settlement made after marriage, in pursuance of an agreement before marriage, though only in parol, could ever be con- sidered a fraudulent settlement ; that the cases, though they had gone a great way in treating settlements after marriage as fraudulent, have never gone to such length as that, and he was, therefore, clearly of the opinion that the settlement was in itself valid. (x) To make another quotation. Lord Thurlow, as reported in 1 Ves. Jr., said,(?/) speaking of a post-nuptial settlement, reciting that it was in pursuance of a parol ante- nuptial agreement, " if the husband made an agreement that he would settle, and then in fraud of that atrreement got married, would not he be bound by it? I thought there was a case in point for that. What the settlement might be if made upon himself after marriage is another question. But in Eq. Ca. Ab., where there was an agreement before marriage without any execution, and then refused to execute, (w) Randall r. Morgan, 12 Ves. Jr. being done away with by De Beil v. 71. It is said in the notes to Dundas Thomson and Hodgson <,-. Hutohin- V. Dutens, that Sir William Grant, in son. In Barkworth r. Young the con- speaking of the latter case, did not tract was between a son-in-law and his know the report of it as given in 2 Cox. father-in-law, and the memorandum In Barkworth u. Young, 4 Drew, 9, was an affidavit stating the antenup- 26 L. J. Ch. 153, it was said that the tial promise made by the father-in- memorandum was sufficient, though law. made after marriage, Sir William {x) Dundas v. Dutens, 2 Cox, 240. Grant's doubt in Randall v. Morgan (y) Id. 1 Ves. Jr., 196. 304 CHAP. VII.J IN CONSIDERATION OF MARRIA8E. [§ 184. relief was given. If in this case there was an agreement before marriage, and afterwards he drew her in to be married, and then refused to perform it, it appears to me to be that kind of fraud against which this court will relieve. If there is a parol agreement for a settlement upon marriage, after marriage a suit upon the ground of part performance would not do, because the statute is expressed in that manner, but is there any case where in the settlement the parties recite an agreement before in which it has been considered as within the Statute ?"(^) Shaw w. Jakeman was as follows: There was an antenuptial written article of settlement naming a sum agreed to be settled by the husband after marriage; there was a formal deed reciting the previous promise, and correcting the sum named therein, which was £340, in the public funds, and which should have been £450, which was then actually worth £340 ; in an action at law the deed was held to be good for £340, though in equity semble it would have been good for the £450. Lord Ellenborough said that the post-nuptial settlement, in pursuance of an antenuptial contract, was, not- withstanding the Statute of Frauds, valid under Dundas v. Dutens and Tyrrell v. Hope, 2 Atkins, 558, and would not in equity be affected by the alterations in the articles or the deed as against the married woman ; for her, in spite of the husband's bankruptcy, to defend for the difference between the £340 as in the original agreement, and £450 as in the altered agreement, on the ground of mistake, was for equity solely, and therefore there was a verdict for plaintiff", a creditor of the husband, for (z) Mr. Sumner, in his notes to Dnn- antenuptial contract, the postnuptial das V. Dutens, in 1 Ves., answers to one may probably be sustained. Mr. Lord Thurlow's question, that if a Sumner, citing Shaw v. Jakeman, 4 husband was guilty of fraud beyond East, 206, and other cases, says that mere breach of honor, he is bound. Lord Thurlow was undoubtedly in favor citing Suffolk (Earl of) v. Greenvill. of supporting settlements like that in To the second question the annotator Dundas v. Dutens, and closes with the answers that as against himself or remark, if a post-nuptial settlement volunteers under him, the husband is recites to have been in consideration of bound, citing cases ; but not as against a marriage portion, it is immaterial creditors, citing Spurgen v. Collier and whether there was any antenuptial Battersbee v. Farrington. The vague contract or not ; cases being cited. See statement is added, where there is Cooper u. Wormald, 7 W.. R, 402, aliunde satisfactory evidence of the infra, VOL. I.— 20 305 § 184.J LAW OF THE STATUTE OF FRAUDS. [CHAP. VII. the diflerence.(a) In a New Jersey case the law is stated with qualifiaations ; the court said that a post-nuptial settlement, in pursuance of an antenuptial agreement is apparently good if the latter is properly proved ; such agreenjent is for a valuable consideration, and not voluntary ; but where the only proof is a recital in the deed of settlement, and the declarations of the husband, made during coverture and shortly before the settlement, it was held that the latter, though good against him, was not good as against debts which were in existence at the date of the deed. (6) In a Virginia case, it was said that a post-nuptial settlement, in considera- tion of an antenuptial parol agreement, was within the Stat- ute of Frauds when the agreement related to land, and would be on other grounds closely scrutinized to see if there was any fraud and any discrepancy between the two contracts, or any doubt of the latter contract having been made iu pursu- ance of the former.(c) In an early Kentucky case the question was asked whether an antenuptial contract will in any case support as against creditors a post-nuptial settlement. (cf) Before the Statute of Frauds post-nuptial settlements could be supported by an oral antenuptial agreement, that is to say, the Statutes of Elizabeth could not, without the aid of that of Charles II., invalidate such transactions. In a case in Ventris, it was said that " this settlement being in pursuance of articles made precedent to marriage, had not the least color of fraud, etc., and if there had been but a verbal agreement for such a settlement it would have served the turn" (dictum). A verbal agreement before marriage would support as against creditors a post-nuptial settlement.(6) Where, before marriage, money under an oral contract of settlement is delivered to trustees it is good, though they do not execute the declara- tion of trust till after the marriage. (/) A reference to the (a) 4 East, 201 ; 1 Smith, 14 (see (e) Sir Ralph Bovey's Case, 1 Ventr. note as to Dundas v. Dnteus). 194. (6) Satterthwaite v. Emely, 3 Green, (/) Cooper u. Wormald, 27 Beav. Ch. N. J. 491, citing authorities. 266; 7 W. R., 402; distinguishing (r) Blow V. Maynard ; Lawrence v. Hamersley v. De Biel, and the class of Blow, 2 Leigh, 50, citing Lavender v. cases where a post-nuptial settlement Blackstone ; Reade v. Livingstone. reciting an antenuptial agreement is (d) Jones v. Henry, 3 Litt. 433. sought to be upheld on such good ante- 306 CHAP. VII.J IN CONSIDERATION OF MARRIAGE. [§ 185. chapter on trusts will show the difference between a trust and a contract in this relation. Sir Wm. Grant said, in Randall v. Morgan, that a distinction should be made between a trust validly created by word of mouth, but requiring for its evi- dence a subsequent writing, and an ordinary invalid oral con- tract, which would support as against creditors a deed made in fulfilment of it. In an equity case in Ifew York, it was held that money belonging to a wife, which the husband never reduced to possession, and which, by his consent and under an oral antenuptial agreement, she retained after marriage, could not be reached by his creditors any more than by himself.(^) In a Mississippi case, a post-nuptial settlement was sustained, the settlor not then being indebted ; if there had been a bill for specific performance, the Statute of Frauds could have been set up, but the conveyance having been made for a valuable consideration and from honest motives, it ought to be sustained. (/i) On the subject of post-nuptial settlements, made in accordance with an antenuptial promise, see the refer- ences in the note.(i) § 185. The following are some examples of memoranda of marriage contracts regarded as sufiicient to satisfy t^^^^ the Statute of Frauds; thus a letter addressed to a randaof 1 ■ 1 • rr- ■ / -s A 1 1 • coutract. third person is suincient.y) A letter under the cir- cumstances of the particular case showing the consent on the part of the lady's mother to be conditional upon the pro- mised settlement was held to be 8ufficient.(A) So an aflidavit signed stating that the affiant said on the marriage of his daughter that there would be no money for #ie daughter's hus- band at the time of the marriage, but that on the affiant's death the daughter should have her share as child. (?) Where an nuptial agreement, see "Trust;" see ser. p. 87; Williams on Pers. Prop., Dundas v. Dutens, supra, and Randall p. 272, n. ; Hunt on Fraud. Convey., p. V. Morgan, supra. 31 ; Will, on Exec. (6th Am. ed.) [p. (g) Smith v. Kane, 2 Paige, Ch. 303. 756]. (A) Bntterfield o. Stanton, 44 Miss. (j) Ogden v. Ogden, 1 Bland, 287. 33 ; see also Dygert v. Remerschnider, (k) Alt v. Alt, 4 Gifif. 84 ; see Croftou 32 N. y. 629. V. Ormsby, 2 Sch. & Lef. 590. (j) May on Volunt. Alien., p. 350 et (Z) Scott v. Avery (Dom. Proc), 20 seq., p. 366; Story's Eq. Jur., § 374 Monthly Law Reporter ; Fell on Guar., (p. 364) and u. ; IX. Law Rev., first p. 61, n; see as to sufficient memo- 307 § 186.] LAW OF THE STATUTE OF FRAUDS. [CHAP. VII. antenuptial contract by which a husband gives up his marital rights in her property, and which enabled her to devise, etc., her property clear of such rights on his part, was evidenced by a will which was mistakenly drawn instead of a deed, and the will was revoked by the subsequent marriage of the parties, the mistake will be corrected in equity.(m) § 186. Mutual promises to marry are not within the Statute of Frauds.(?i) In a case in Lord Raymond it was misesto ruled at Norfolk summer assizes then last past by marry. "Ward, L. C. B., that this promise, i. e., to marry, had no need to be in writing by the Statute of Frauds, and Mr. Northey said at the bar that the statute intended only agreements to pay marriage portions, and that it had often been ruled so by Holt, C. J. Quod Holt, non ne.ga.vit.{o) The rule had formerly been otherwise. (j9) It has been held in ITew Hampshire that a promise to marry in five years is within the "year" clause of the Statute of Frauds, and the fact that such contracts were not suable at law when that act was passed does not prevent it applying to them. (5) As to forms of marriage settlements, see Peachey on Marriage Set- tlements, p. 65. randnm, Chicester u. Vass, 1 Munf. Bland, 287 ; George <•. Bartoner, 7 99. Watts, 532. (m) Lant's Appeal, 95 Pa. St. 279. (0) Harrison v. Cage, 1 Ld. Rayra. (n) Anon., Skin. 142, pi. 14, per 387. Jeffries, L. C. J. ; Atkins v. Farr, 2 (p) Cocke or Cork t. Baker, 1 Str. Cas. Eq. Ab. 248 ; Clark v. Pendleton, 34, cited in Bull. N. P., 280 ; citing 20 Conn. 495 ; Witlieia i'. Richardson, Anon. Salk., 280; see, also, Philpot v. 5 Mon. 94; Blackburn v. Mann, 85 111. Walcot, Skin. 24, 3 Lev. 65. 222;Sliort!).Stotts,58Ind. 36; Morgan (7) Derby r. Phelps, 2 N. H. 516; i). Yarborough, 5 La. Ann. 316 ; Cranev. see Sch. on H. & W., §44; see supra, Gough, 4 Md. 322 ; Ogden u. Ogden, 1 § 172. 308 CHAP. VIII.] YEAR. [§ 187. CHAPTER VIII. YEAR. § 187. Extra annum contracts within the Statute of Frauds ; generally. § 188. How far the impossihility of per- formance infra annum is an actnal one, or only the intention of the parties that the performance should extend over a longer period. § 189. The option of one party to bring the contract to complete performance within the year. § 190. Entire and continuing contracts generally. § 191. Partnership and service con- tracts. § 192. Contracts determinable l)y death or by the action of either party. § 193. Contracts for a year beginning at a future date. § 194. General examples of contracts within and of those not within the year clause. § 195. The year clause in relation to other clausKS of Statute of Frauds ; generally. § 196. Leases. § 197. Exceptions to the year rule. The contingency rule. § 198. Contract left incomplete by a contingency ; one capable of perform- ance within the year but not so per- formed, and one whose performance within the year is improbable. § 199. When no time is fixed. § 200. Contract terminable at any time by either party. 201. Contract for a fixed period ter- minable by either party is not within the Statute. 202. Contra. 203. The eflfect of death as a con- tingency to terminate a contract for fixed period. 204. Death as a contingency aifecting a contract whether for a fixed period or not. 205. Defence. 206. One side rule. 2CI7. New York cases under the one side rule. 208. One side rule modified, doubted, or denied. 209. Distinction between actual and only possible execution of one side of the contract. 210. Examples under the entire per- formance of one side rule. 211. Compensation on a quantum meruit for entire performance of one side. 212. Land contracts entirely per- formed on one aide. 213. The effect of full performance of one side when the contract is within the year clause, and also within the land or leases clause. 214. Year clause and chattels clause. 215. Contra to the last rule. 216. Part performance generally. 217. Complete execution of both sides. § 187. Contracts incapable of being performed within a year must by the terms of the Statute of Frauds be proved by 309 § 188.] LAW OF THE STATUTE OF FRAUDS. [CHAP. VIII. a writing.(a) In an early Connecticut case, briefly reported, Extra oTi- ^* ^'^^ claimed by counsel that the fact of the lapse num con- of three years between the promise and the suit tracts within the thereon was a reason for applying the Statute of Frauds "'^ Frauds, but the court held the contract to be an ex- generaiiy. ecuted one, and therefore not within the Statute.(6) In Scotland a contract for services for three years semble re- quires a formal instrument, witnessed, etc., and semble is not good even for a year.(c) Where there is no averment or evi- dence that the agreement was not to be performed within a year, the Statute does not apply. (f?) The impossibility of performance within the year must appear in the contract itself,(e) and in Wisconsin it has been held if the contract does not by its terms show impossibility of performance infra annum, that oral proof of such impossibility will not cause the Statute to apply. (/) § 188. An important and much disputed distinction is met with at an early stage of this subject, and that is theTmpossi- the question whether the impossibility of perform- perform f-nce means the actual impossibility or only the in- ancein/ra tcntion of the parties that the contract shall not be qnnnm is p i i • i r\ • • i an actual performed within the year. Ot course, it the per- oniy the formance within the year is actually impossible, the of'the'"" parties cannot be supposed to have meant to so per- tiesthat form it; but it may well be that a contract readily the per- ,,.,., formance periormable within the year may not have been in- tend over tended to be completed till after a longer lapse of a longer time. The weio;ht of authority is decidedly in favor period. _ ^ -^ _ _ •' of treating either of these contingencies as being sufficient to bring the case within the Statute. Thus it has been said that the Statute of Frauds plainly means an agree- (a) See Boydell v. Drummond, 11 (d) Rabsuhl u. Lack, 35 Mo. 322; East, 142, the leading case on the sub- see Fenton v. Emblers, 1 Wm. Bl. 352 ; ject for a consideration of the reason 3 Burr. 1278. and policy of this clause of the statute. (e) Russell u. Slade, 12 Conn. 460 ; (i) Chittington u. Fowler, 2 Root, see Railroad Co. v. Staub, 7 Lea, 399. 387. (/) Rogers v. Brightman, 10 Wis. (c) Paterson v. Edington, Sess. Caa. 65. 8 S. 931 ; 5 Fao. (Oct.) Dec. 757. 310 CHAP. VIII.] YEAR. [§ 188. ment not to be performed within a year, and expressly and specifically so agreed.(^) The mere possibilitj'^ that the con- tract may be performed within the year is not sufficient to make an exception to the Statute, if the parties did not in- tend to perform within that time. (A) On the other hand, a promise to marry in four years is not within the Statute of Frauds, if it did not appear that the parties understood that the promise was not to be performed infra annum.{i) An im- possibility of performance means not " a natural or physical impossibility, but an impossibility by the terms of the con- tract itself, or by the understanding and intention of the par- ties. "(J) Thus, an engagement to provide a widow with the supplies she needed till her youngest child came of age, and herself until her death, is within the year clause of the Stat- ute of Frauds. That all might die within a year will not affect the case. Where the manifest intent of the parties is that the contract shall not be executed within the year, the mere fact that it is possible that the thing agreed to be done may be done within the year will not prevent the Statute from applying, physical possibility alone is not what is meant. " It is not enough that the thing stipulated may be accom- plished in less time, but such an accomplishment must be an execution of the contract according to the understanding of the parties. "(A) The Statute of Frauds, it was said in another case, applies to those contracts " in which, by the express appointment of the parties, the thing is not to be performed within a year;"(?) or, again, it was said that the performance beyond the year must arise from the stipulation of the con- tract or the understanding of the parties ;(m) or, again, that the Statute of Frauds applies when the understanding of the parties, as evidenced by the contract, is that the performance (g) Fenton v. Emblers, 1 W. Bl. 352 ; 428 ; Railroad Co. u. Straub, 7 Lea, 3 Burr. 1278 ; see Knowlman v. Bluett 399. (Blacklnirn, J., in argument), L. R., (t) Lawrence v. Cooke, 56 Me. 187. 9 Ex. 307; 43 L. J. Exoh. 151; 10 0') Jilson u. Gilbert, 26 Wis. 637. Moak, n. 467; see Cowles ^. Warner, (i) Deaton u. Tenn.R. R.,12 Heisk. 22 Minn. 456 ; Herrin u. Butters, 20 653. Me. 121 ; Foote v. Emerson, 10 Vt. 342. (/) Leinau v. Smart, 11 Humph. 310. (A) Hinckley ii. Southgate, 11 Vt. (mj Peters v. Westborough, 19 Pick. 365. 311 § 188.] LAW OP THE STATUTE OF FRAUDS. [CHAP. VIII. of the latter is to extend beyond a 3'ear.(7i) It need not ex- pressly appear that the parties intended a performance ex^ra annum, it is sufficient that this is implied. (o) In two cases it has been said that the expectation of the parties, that the con- tract would require more than a year for its performance, is of no consequence, even tViough performance within the year is not probable, if no time is fixed, and performance infra annum is possible. (p) Of the two cases just cited, the former showed a contract com[iletely performable in the event of certain deaths, which might also occur presently ; and the other, a con- tract which called for performance immediately upon the sale of a large number of pieces of real estate, which, however unlikely, might indeed happen within a year. The great case of Boydell v. Drummond(5') gave the best test ever sug- gested in this connection, when it decided that if by a mira- culous effort the plaintiff should within a year do his part of the contract, which was to furnish the defendant with a large number of engravings of scenes from Shakespeare, the Statute of Frauds nevertheless applied, because the defendant, who was to pay by instalments, would not be required to pay at such unreasonably short intervals as a completion of the work within a year would involve. Accepting this rule as a guide, the question in every instance will be not alone, what is the shortest period of possible performance physically, nor what is the shortest period which the parties supposed would be required, (r) but whether the contract can actually be per- formed within a year, and, if so, whether under the terms of the contract either party performing within that time can justly require the other party to do his part, the latter per- formance also being as a fact possible. Thus where the pro- mise of the defendant was to answer for the possible loss to be incurred on certain bonds which were not to be sold until sixteen months, it is clear that he cannot be called upon to (n) Wilson v. Ray, 13 Ind. 6. Blair Town Lot Co. v. Walker, 39 Iowa, (o) Hearne v. Cliadbourne, 65 Me. 406. 306. (g) 11 East, 142; 2 Camp., 15Y. (jo) EUicottK. Peterson, 4 Md. 487 ; (r) Gault v. Brown, 48 N. H. 185; Miles V. Bough, 3 Q. B. 845. 312 CHAP. VIII.] YEAR. [§ 189. perform his part at any time short of the sixteen months.(s) A promise to marry is within the Statute of Frauds, though no precise time of performance is agreed upon, if the jury specially find that the time agreed upon, though indefinite, was remote and beyond a year.(<) When the parties agree upon certain payments which are to be yearly, and a continu- ous arrangement is contemplated the Statute applies. (m) § 189. A class of cases which are not so clear in their character, are those which may be said to be the „^ ' •' . The option converse of Boydell v. Drummond, viz., where the of one party defendant might under the contract be called upon contracftto to perform, and it is the plaintift" who is not to be pe^fjjj.^! hurried. In Boydell v. Drummond it would have ance within . . the year. been unreasonable to have required either party to perform ivfra annum. But the case is certainly different where the defendant holds himself ready to perform at any time, and it is only the plaintiff who can take more than a 3'ear if he chooses. Thus in a Kentucky case, a negro purchas- ing the freedom of his wife agreed to pay for her $400 in instal- ments of at least $4 a month, and it was stipulated that while he need not pay more than $8 a month, he could, if he pleased, pay any amount not less than $4. Here it would seem that performance within the year was reasonably possible, but the court held the Statute of Frauds to apply, considering that a performance infra annum was not contemplated by the par- ties. (w) In a case in 6 Otto it was held that because the plain- tiff was not obliged to finish his work till after the year was up, 71071 constat but that he might have finished it within the year and required the other party to perform.(7y) In a Texas (s) Wilson 1/. Ray, 13 Ind. 6, citing burn v. Mann, 85 111. 222, decided cases. that the Statute of Frauds did not (0 Nichols V. Weaver, 7 Kan. 373 ; apply to a general promise to marry, see, also, Wheeler v. Cowan, 25 Me. (u) Roberts v. Tucker, 3 Exch. 632 285. In Nichols u. Weaver, which Smith u. Bowler, 2 Disn. 156 ; 1 id. 520 was a case of a promise to marry, the McElroy u. Ludlum, 32 N. J. Eq. 828 court said that apart from the special 2 N. J. L. J., 177. finding of the jury, a general promise (w) Saunders v. Kastenbine, 6 B. to marry meant a promise to marry Mon. 17. within a reasonable time, and that a (w) Walker v. Johnson, 96 U. S. S. year or less might be a reasonable C. 427 ; see, also, Plimpton i/. Curtis, time. On this latter reasoning, Black- 15 Wend. 336. 313 § 189.] LAW OP THE STATUTE OF FRAUDS. [CHAP. VIII. decision much the same view was taken ; the court saiil : '*By the contract the appellant agreed if there was a failure to complete the contract, or for any reason it was abandoned, he would pa}' for the improvements made upon the land. There is nothing from which it can be inferred that the failure to complete the contract (by reducing it to writing, for instance, as was stipulated, should be done), or its abandonment might not occur within a year from the time it was consummated. The purchaser, it is true, was entitled by the agreement to a credit of five years for the payment of the purchase-money, if the contract had been reduced to writing. But the appel- lant might have sold to another, or the contract might have been abandoned by the purchaser at any time, and upon this alone depended the appellant's liability for the improvement, citing cases. (a;) Where the plaintifi" was for two years to sell for the defendants, it was held in a Federal case that as the evidence showed that this proviso was made for the plaintiffs benefit, and was at his option, the main gist of the contract consisting of the plaintiff's promise to introduce the defend- ant's goods t<>\his custoniers, and this having been performed at once, the Statute of Frauds did not apply. (y) In an Irish case, which belongs to the category of Boydell v. Drummond, is illustrated the rule of which Saunders v. Kastenbine fur- nishes the converse ; the agreement was between a landlord and his bailiff to whom he owed arrears of salary, that the latter should become tenant to the former, and that the arrears should be credited to the rent account, and that nothing should be claimed on this till the arrears were discharged; it was held that the Statute of Frauds applied, because it would take more than one year's rent to pay the salary. Here obviously the landlord could not be compelled to pay the arrears, except in the way of yearly credits against the rent, and the tenant could not be compelled to pay his rent till it accrued due, so that it was not possible for either party to presently perform, and then hold the other, without a viola- (x) Thouvenin v. Lea, 26 Tex. 612. (y) Norton u. American Ring Co., 1 Fed. Rep. 686, C. C. S. D. N. Y. 314 CHAP. VIII.] TEAR. [g 191. tion of the contract.(^) Where the facts indicate that a per- formance infra annum is physically impossible, it need hardly be said that an intention to perform within the year will not be imputed to the parties.(a) § 190. Entire contracts extending over a year are within the Statute of Fi'auds.(6) Thus, a promise to make four annual deposits in a saving fund, though two continuing deposits had been made ;(e) or to sell and deliver the ™uerany ' crops raised in successive years. (. Singerly, 17 Cent. L. J. Dig. 348 (N. Y. C. P.) citing cases. 19a, S. C. Md. (;>) Sanborn v. Fireman's Ins. Co.. (i/) Russell v. Slade, 12 Conn. 460. lU Cirray,.454; see Cawtliorn v. Cawdrey, {:) Catling v. Perry, 2 F. & F. 141. 32 L. J. C. P. 1.^2. (a Collis o. Botthamley, 7 W. R. 87. (ui) Dickson v. Frisbee, 62 Ala. 105. 318 CHAP. VIII.J TEAR, [§ 194. § 194. Contracts unilateral as well as mutual are within the present clause of the Statute of Frauds.(6) That one of the terms of the contract was that it should ex^m'pies be put into writing, which might have been done °^™"" within the year, will not take the case out of the within the Statute.(c) It is believed that almost every case y**""^^"^- cited as being within the year clause of the Statute is impli- citly inconsistent with the singular view taken in the case of Sheehy v. Adarene, in 41 Vermont ; there it seems to have been thought that the refusal of the defendant and the con- sequent breach of contract infra anvum gave the plaintili', whose part was not to be performed within the year, a right of suit even on the contract itself.(f') The court thought that the defendant, whose duty accruing forthwith was violated through his refusal to perform, thereby absolved the plaintiff, whose obligation was not to be performed till extra annum, from all duty in the matter, and that a good cause of action not affected by the Statute of I'rauds then arose. The follow- ing are some examples of contracts not to be perfornjed within a year: Thus, a contract to keep a mare and the colt which should be born of the latter till the colt could be weaned, and then to sell the colt for a certain price, the period of gestation would be eleven months, and that of suckling four to six months more.(e) So to pay certain money out of the profits of a farm, which profits were to be got from certain nut-bear- ing trees not yet planted. (/) So a contract in the spring of one year for the potato crop of the next.(^) So a contract to de- liver timber at a saw-mill and for the profits of the lumber, the capacity of the mill not being sufficient to saw the timber in a year's time.(/i) So to canvass for a book through certain districts, which the plaintiff acknowledged would have taken two years.(i) So an agreement to sell a certain article found, (6) Cabot V. Haskins, 3 Pick. 94. (c) Lockwood v. Barnes, 3 Hill, 128 ; (c) Amhurger v. Marvin, 4 E. D. Anon., 11 Pac. C. L. J. 452, S. C. Ind. Sm. 393 ; see, semble contra, Thouvenin (/) Swift v. Swift, 46 Cal. 269. V. Lea, 26 Tex. 612. ('. Stone, 13 Mich. 72. (i) Patten «. Hicks, 43 Cal. 511. {I) Tiernau o. Granger, liS 111. 354. (m) Ray v. Young, 13 Tex. 552 ; see Buckley v. Buckley, 9 Nev. 381. (n) Weir v. Hill, 2 Lans. 281. (o) Parka r. Francis, 50 Vt. 626. (p) Mills u. Todd, 83 Ind. 27 ; see, however, Dougherty u. Rosenburg, 10 Pao. C. L. J. 423, S. C. Cal. (/)!) "WkIz v. Rhodius, 87 Ind. 12. (g) Bolton v. Terpenny, 14 N. Y. Week. Dig. 533, S. C. N. Y. (j-) Derby o. Phelps, 2 N. H. 516 ; see infra and supra § 188; and see Paris V. Strong, 51 Ind. 342, iii/'ra. (s) Gothard r. Flynn, 25 Miss. 58. (0 Kelly V. Terrell, 26 Ga. 552; 320 Comstock r. Ward, 22 111. 248 ; Butcher Steel Works v. Atchinson, 68 111. 423 ; Wilson v. Ray, 13 Ind. 1 ; Shipley r. Patton, 21 Ind. 169 ; Roberts .-. Ten- nell, 3 T. B. Monroe, 247 ; Hollo- way !■. Hampton, 4 B. Mon. 415 ; Tut- tle V. Swett, 31 Me. 555 ; Trowbridge t . Wetherbee, 11 Allen, 361 ; Delano v. Montague, 4 Cash. 42 ; Frary r. Stir- ling, 99 Mass. 461 ; Pitcher v. Wilson, 5 Mo. 47 ; Esty v. Aldrich, 46 N. H. 127 ; Wilson V. Martin, 1 Denio, 602 ; Law- rence I. Woods, 4 Bosw. 354; Lower r. Winters, 7 Cow. 265 ; Kellogg i . Clark, 23 Hun, 396 ; Drake v. Seaman, 14 N. Y. W. Dig. 375, S. C. N. Y.; Reinheimer v. Carter, 31 Ohio St. 587 ; Squire v. Whipple, 1 Vt. 69. CHAP. VIII.] YEAR. [§ 195. § 195. Before taking up the subject of the exceptions, real and apparent, to the rule that a contract requirina; a n . r ■ • 1 • , <^ *. The year year tor its periorraance is within the fetatute, it clause in may be well to consider the relation of other clauses otiier°" '° of the Statute to the clause of which this chapter ^1'^°!,?°*^, ^ the Statute treats. It is to be observed, in the first place, that a of Frauds; contract may be within more than one clause of the Statute. Thus, it may be within the year clause and the guaranty clause (see § 213),(m) or the year clause and the chattel clause. (v) Where a contract ot sale of goods does not require payment until after a year, delivery and acceptance will satisfy the Statute of Frauds both as to the " year " and the " chattel " clause.(w) But a contract within the year clause and the chattel clause is not saved, it has been held in New York, by part performance as to the year clause.(a;) Or within the year clause and the land clause.(?/) In Indiana it has been decided that a contract within the land clause is not affected by the year clause.(^) An equitable mortgage for three j'ears, by deposit of title papers, is within the year clause of the Statute of Frauds.(a) A contract to marrj' after five years is not the less within the Statute of Frauds that such contracts were not suable at law when 29 Car. 11., c. 3, was passed. (6) A promise to marry is not within the Statute of (m) See Jones v. Hardesty, 10 G. & J. 406, where it was suggested that the payment of a fund into the guarantor's hands might take an oral guaranty, not performable within a year, as well out of the "year" as out of the "guar- anty " clause of the Statute of Frauds. («) Pitkin u. Noyes, 48 N. H. 297; Jones V. McMichael, 12 Rich. S. Car. Law, 181 ; Lawrence v. Woods, 4 Bosw. 362 ; see Watts u. Friend, 10 B. & C. 448 and infra. (w) Suggett V. Cason, 26 Mo. 225. (x) Childs V. Warren Chem. Co., 13 N. Y. Weekly Dig. 59, N. Y. S. C. VOL. I. — 21 (y) Wheeler v. Cowan, 25 Me. 283 ; Comstock V. Ward, 22 111. 248. (,z) Fall V. Hazelrigg, 45 Ind. 576, citing cases ; the court argued that while part performance satisfied the former, nothing but full performance would satisfy the latter, and that this sliowed that tlie two clauses could not consistently bo applied to the same contract. See also Baynes u. Chastain, 68 Ind. 380 ; Cole t-. Wright, 70 Ind. 197. ■ (a) Gothard v. Flynn, 25 Miss. 58. (6) Derby v. Phelps, 2 N. H. 516 ; see Paris v. Strong, 51 Ind. 342. 321 § 196.] LAW OF THE STATUTE OF FRAUDS. [CHAP. VIII. Frauds ; a promise to marry not performable infra annum is therefore within the year clau9e.(c) § 196. But the question of leases for more than a year stands on a different basis, and, notwithstanding some con- Leases, trary decisions, it is certainly the law that a lease for more than a year, or for a year beginning at a future date, being within the exception of that clause of the Statute of Frauds which saves oral leases for less than three years, cannot be made invalid by bringing them within the year clause. (rf) The same result has been reached in New York, though not without some conflict of decision. (e) A case in fourth Bosworth Avould appear to be doubtful law under the decisions just cited : it was held that the Statute of Frauds (the year clause) applied to an agreement by landlord and tenant under a seven years' lease, two years of which had expired, that if the tenant would not tear down certain build- ings on the premises the landlord would forgive him the rent for the year beginning the first of the month following the agree- ment. (/) And in a recent case it was held that a contract between partners to assume the liability to pay rent for the remainder of a term which had two years to run is within the year clause :(^) but here the defendant was not a lessee, and therefore his promise did not come within the exception in the Statute of Frauds as to leases. The application of the year clause to leases has been asserted in a number of cases.(/i) (c) UUman c. Meyer, 10 Fed. Rep. C. P. 551 ; Himeswortli v. Edwards, 5 241, C. C. S. D. N. Y., citing cases, and Hairing. 377 ; Eaton v. Whitaker, 18 saying tliat tlie third clause of the Conn. 224 (^semhle overruling Janes r. Statute of Frauds of New York does not Finney, 1 Root, 549) ; Sobey c. Brishee, make the rule otherwise ; this excep- 20 la. lOti (but the efifect of the Iowa tiou is merely declaratory of the pre- act is not so clear as that of 29 Car. IL, vious law. or of the New York statute). (d) Bolton (Lord) v. Tomlin, 5 A. & (e) Young v. Dake, 1 Seld. 465 ; Tag- E. 864, denying Inman u. Stamp, 1 gard v. Roosevelt, 2 E. D. Sm. 103; Stark. 10, and Edge v. Strafford, 1 C. Ciilsey r. Wild, 1 Hill, 306 ; and Cros- & J. 3M ; Marley ... Noblett, 42 Ind. well v. Crane, 7 Barb. 194, contra, is no 86; Huffman v. Starks, 31 Ind. 475, longer law. citing cases, and denying Edge v. Straf- (/) Lawrence u. Woods, 4Bosw. 362. ford, and Inman i-. Stamp; Sears u. {g) Durand d. Curtis, 57 N. Y. 11. Smith, 2 Col. 288 ; Anderson v. May, 10 (A) See Inman r. Stamp, 1 Stark. 10 ; Heisk. 89 ; Christie v. Clarke, 16 U. C. Edge v. Strafford, 1 C. & J. 391, which 322 CHAP, VIII.] TEAR. [§ 197. § 197. The next branch of the subject under consideration is the exceptions to the rule of this chapter. In the ^ . , „ Exception first place, contracts capable even contingently of to the year being performed within a year, are not within the contin- terms of the Statute of Frauds.(0 In a case where it s«'«=y t-iie- was doubtful whether the value of certain chattels sold would be more or less than the value excepted from the 17th section of 29 Car. 11., c. 3, it was held in an English case that the Statute applied ; upon this case the reporter remarks, that the doubt or contingency which makes an exception to the " year" clause, does not do so to the 17th section.(7) The following are some general examples of such cases : To pay one a certain sum upon marriage; (A) a promise to marry within three years ;{l) a promise to marry, at first general in point of time, and then when the promissor returned from a certain voyage which might be at any point thereof, though the voyage semble if completed would have required more than a year ;(m) do not, however, speak of the " year," but only of the "land" clause ; they semble are overruled by Bolton (Lord) i: Tomlin, 5 A. & Ell. 864; Crommelln u. Theiss, 31 Ala. 418 ; Warner v. Hale, 65 111. 396 ; Wheeler d. Frankenthal, 78 111. 126, citing Olt v. Lohnas, 19 111. 576 ; Illinois, etc., R. R. u. Indiana, etc., Ry., 85 111. 214, saying that under the Statute of Frauds of Illinois "a contract to pass an interest in land for more than one year must be in writing;" Atwood • ^1 n,^ r. T 1 Part per- sideration 01 the effect ot the latter upon contracts formance generally not performable within a year. Part per- genera y. formance must be distinguished from entire performance of one side of the contract, which is rather in the nature of full performance of that part of the contract to which the Statute of Frauds applies, leaving executory onlj' such part of the contract as is not within the Statute. Whether the entire performance of the side of a contract, which is to be performed within a year, should be considered as coming within the principle of full performance, may be doubted ; unless the contract is to convey an interest in land within the year, to be paid for extra annum, in which case the performance being sufficient to satisfy the " land" clause, may perhaps be treated as sufficient to satisfy the " year" clause also. Part perform- that the rule of entire performance of a year. See Pitkin v. Long Island R. one side on executed consideration as R., 2 Barb. Ch. 230. laid down in Souch v. Strawbridge was (. Wood, 2 M. & W.468. Allen, 3 Abb. App. Deo. 248. (a) Hooper v. Stephens, 4 A. & Ell. («) Bowers v. Anderson, 49 Ga. 145. 71. (w) White V. Drew, 56 How. Pr. 58, (5) Walrath v. Ingles, 64 Barb. 275. N. Y. S. C. 863 § 230.] LAW OF THE STATUTE OF FRAUDS. [CHAP. IX. upon a mode of payment to be completed afterwards, would let in the very mischief which the Statute intended to avoid. An agreement, however, to sell one article, and to take another in part payment of it, is not affected by delivery of the first article as part payment, so as to sustain suit by the party delivering or paying. (c) A promissory note of a third person, taken as payment, may be earnest. (o?) The weight of autho- rity is against treating a promissory note as being, under ordinary circumstances, a good earnest. (e) In a 'New York (c) Chapin u. Potter, 1 Hilt, 366, Daly, J., diss. See Teed ;•. Teed, 44 Barb. 96. (d) Combs V, Bateman, 10 Barb. 573. See Ames, Cases on Bills, ii. 573 (e) Id. ; Wylie u. Kelly, 41 Barb. 590 ; Ireland u. Johnson, 28 How. Pr. 465 ; 18 Abb. Pr. 395 ; Indem. Com. Law (Benn. ed.), p. 88, n. 5, citing Griffiths V. Owen ; see, however, Grif- fiths ... Owen, 13 M. & W. 58, 64 ; Chitt. Con. (11th Am. ed.), 865; Pars. Notes, ii. 206 ; Byles on Bills, p. *386. In Krohn u. Bantz, 68 Ind. 278, the complaint contained the following aver- ment, " as an earnest to bind said con- tract, and as part of the purchase- money of and for said hogs under said contract, plaintiff at the time and place of making said contract, executed and delivered his promissory note for one hundred dollars to defendant, due in thirty days from the day of date thereof, and drawing ten per cent, in- terest from date, and defendant ac- cepted and received said note aforesaid as earnest upon said contract." The court said : The note, we think, cannot be regarded as part payment within the meaning of the Statute. It was but the plaintiff's agreement to pay, in the future, a part of the pur- chase-money for the hogs, before the arrival of the time for delivery. It was no more effective for the purpose 864 of taking the contract out of the Stat- ute, as part payment, than would have been the plaintiff's parol promise to do the same thing. Had the note been of such a character as to be gov- erned by the law merchant, and, there- fore, to legally operate, prima facie, as payment, the question presented might have been different. But it was not shown that the note was such as to be governed by the law merchant. A debtor's promissory note not governed by the law merchant, does not legally operate as payment of the debt ; but it may be made so to operate by the ex- press agreement of the parties. Max- well V. Day, 45 Ind. 509 ; Alford v. Baker, 53 Ind. 279. It is not averred in the complaint that there was any express agreement between the parties that the note should be received as part payment of the hogs. But, if there had been, it would seem to be quite doubtful whether such .an .agree- ment would make the note operate as part payment within the Statute. It would be but an agreement that a promise of future payment should ope- rate as part payment, while the Stat- ute requires something more than words ; it requires part payment, and not a promise of part payment to be received in payment. See, on this point, Brabin v. Hyde, 32 N. Y. 519 ; Artcher v. Zeh, 5 Hill, 200 ; Mattice v. Allen, 3 Keyes, 492 ; Matthiesseu, etc., CHAP. IX.] CONTRACTS RELATING TO CHATTELS. [§ 231. case it was said, that where one of the conditions of a contract is complied with, and a note tendered for the price, the Statute of Frauds was satisfied.(/) Where a call was made for part- payment, and a check sent was refused, there was held to be no earnest. (^) § 231. An agreement that the price shall go in settlement of an existing account is not without more sufficient earnest ;(A) something must be done.(i) Money bor- ^ credit.**'^ rowed by the seller of chattels from the buyer and stipulated to go as part payment for goods to be sold is not a sufficient earnest paid at the time under the Revised Statutes of New York.(7) It has been doubted in New York whether an agreement to endorse on a mortgage held by the vendee, the price of chattels sold is an earnest till endorsement.(A:) And the crediting of an amount in an account is not a part payment to take a case out of the Statute of Frauds under the Eevised Statutes of New York.(Q An entry in his books Co. V. McMahon's Admr., 9 Vroom, 536 ; Walrath v. Rioliie, 5 Lans. 362; Walker v. Nussey, 16 M. & W. 302 ; Ireland u. Johnson, 28 How. Pr. 463. We come to the inquiry whether the note can be regarded as earnest, suf- ficient to bind the bargain, and are clearly of the opinion that it cannot. It was said in the case of Howe v. Hay- ward, 108 Mass. 54, that " as used in the Statute of Frauds, ' earnest' is re- garded as a part payment of the price." But, conceding that it may be some- thing distinct from part payment, it is quite clear that it must have some value. Brown's Stat, of Frauds, sec. 841 ; Benjamin, Sales, sec. 189, and note c. The note has no value what- ever, because it had no consideration to support it, and its payment could not, therefore, have been enforced. To say that such a note has value, is but grasping at a shadow, and losing sight of the substance. The contract for the sale of the hogs not being valid. the note given in consideration of the agreement therefor was based upon no valid consideration. That the note was void, for want of consideration, is sustained by the following authorities : Combs u. Bateman, 10 Barb. 573 ; Hooker v. Knab, 26 Wis. 511 ; see, also, the case of Scott t. Bush, 26 Mich. 418. (/) Gray v. Payne, 16 Barb. 277. (g) Edgerton v. Hodge, 31 Vt. 676. (A) Brabin u. Hyde, 30 Barb. 265 ; Brand u. Brand, 49 Barb. 348 ; Mor- ton V. Johnson, 14 N. Y. W. Dig. 378, S. C. N! y. ; Walker v. Nussey, 16 M. & W. 304 ; Sawyer v. Ware, 36 Ala. 681. (i) Mattice v. Allen, 3 Abb. App. Deo. 248, 3 Keyes, 492, considering oases ; see Walrath u. Richie, 5 Lans. 364 ; Gibbs v. Nash, 4 Barb. 452. (J) Mattice v. Allen, 3 Abb. App. Dec. 248; 33 Barb., 543. (k) Ely V. Ormsby, 12 Barb. 570. (0 Artoher v. Zeh, 5 Hill, 204. 365 § 231.] LAW OF THE STATUTE OF FEAUDS. [CHAP. IX. by the buyer, the plaintiff, is insuflBcient.(m) In a New Jersey case the following question was decided in the negative. The evidence in the cause, the request to charge, and the charge as given, present the question 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 to be given as evidence of the discharge of the indebtedness.(?i) But semble that a receipt or actual credit given may be good, and in an English case it was suggested that if the agreement as to the part pay- ment had been subsequent to and separate from the oral con- tract, it might be good.(o) And semble even in New York an actual credit given has been thought sufficient.(p) And in a case in Howard's Practice Reports, as an incidental point, there came up for decision the question whether an oral agree- ment that a debt due by the defendants to the plaintiff's brother Horace should be assumed by the plaintiff with Horace's assent as a payment of earnest in another transac- tion was such payment of earnest, and it was held that by the arrangement between the three the defendants' debt was extin- guished, and the plaintiff's assumption of the debt, which,, under the arrangement Horace charged against him, was a payment of it and not a guaranty of it within the Statute of Frauds, the payment was good earnest.(g) There are some authorities which appear to treat the mere agreement to give a credit as a sufficient earnest. (r) And in an Indiana case it was suggested that an agreement that the amount of a note (m) Id. ; Teed v. Teed, 44 Barb. 96, Teed r. Teed, 44 Barb. 96; Artoher v. the entry not stating that the credit Zeh, 5 Hill, 200 ; Gilman c. Hill, 36 N. was given on account of the transac- H. 311. lion in suit. (p) Napier v. French, 40 N. Y. (h) Matthiessen o. McMahon. 38 N. Super. 122. J. L. Rep. 638, citing and considering (7) Stoddard v. Graham, 23 How. a number of cases. Pr. 532 ; see Cotterill v. Stevens, 10 (0) Walker v. Nussey, 16 M. & W. Wis. 425 ; see, however, Paine v. Ful- 304 ; and see Dow v. Worthen, 37 Vt. ton, 34 Wis. 85. 112 ; Brand v. Brand, 49 Barb. 348 ; (r) Brown v. Wade, 42 la. 649. 366 CHAP. IX.] CONTRACTS RELATING TO CHATTELS. [§ 233. owed by the vendor to the vendee should be part of the price, is sufficient earnest though the note was not delivered.(s) § 232. The next subject for consideration is what are the chattels or personal property which come within the ^^^^ ^^^ meaninpr of the present clause. First it may be said goods, . -_ ^_ , ^ wares, etc., that "chattels as used in the JNew York otatute within the of Frauds is synonymous with the words " goods, y'-au'ds ° wares, and merchandise" of 29 Car. 11.(0 Crops or f?"';™^'^' frudus industriales when not land within the fourth indm- section of 29 Car. II. may be chattels within the seventeenth. As a contract to cut and deliver growing tim- ber.(M) Or a promise by the vendee of growing timber, who has cut some, to resell the residue to the vendor.(w) In Arkan- sas a lien on crops cannot be created by parol, with possession given. (?i)) So a sale of a crop of growing potatoes to be raised by the vendee and delivered on maturity to the buyer.(a:-) So a sale of growing grass.(y) Under the bills of sale Act (17 and 18 Vict., c. 36, s. 1) growing crops are not " personal chattels," which in the act are detined to mean " goods, furniture, fixtures, and other articles capable of complete transfer by delivery;" growing crops are not capable of such delivery.(2:) Nor are crops yet to be raised within the exception of the stamp act (23 Geo. III., c. 58, s. 1), reserving contracts for goods, wares, and merchandise ;(a) growing crops are not such goods and chattels as are susceptible of manual delivery till harvested, and are consequently not within the statutes forbidding conveyances fraudulent as against creditors. (6) § 283. An agreement that a tenant about to tear down some temporary buildings should not do so, and that the (s) Sloan «. Scott, 4 West. L. .Tour, see Watts u. Friend, 10 B. & C. 448 5 (Fountain Ind. C. C); see Web- (the article when ready for delivery ster V. Bailey, 40 Mich. 642. would be a personal chattel). (t) Passaic Co. v. Hoii'man, 3 Daly, (^) Crosby v. Wadsworth, 6 East, 502, citing many dictionaries. 609. («) Sherry v. Picken, 10 Ind. 376; (z) Brantom t. Griffits, 2 C. P. D. Edwards v. R. R., 54 Me. 110. 214; 36 L. T., N. S. 4. (v) Smith V. Bryan, 5 Md. 141. (a) Waddington v. Bristow, 2 B. & (to) Alexander v. Pardue, 30 Ark. P. 454. 361. (6) Bernal v. Hovious, 17 Cal. 545. (x) Evans v. Roberts, 5 B. & C. 831 ; 367 § 234.] LAW OF THE STATUTE OP FEAUDS. [CHAP. IX. lessor should have them when the term should expire, and should remit a part of the rent, is an agreement for fixtures; personalty, and within the Statute of rrauds.(c) givei^by Though sembk an agreement as to a tenant's fixtures public offi. ia not, in England, within the 17th section of the Statute of rraud8.((^) Gravel for repair of roads is "goods, wares, and merchandise" within an English statute regulating toll on canals.(e) Treasury checks {i. e., checks drawn by the United States Treasurer on the United States Bank) are neither " goods, wares, nor merchandise" within the meaning of the Statute of Eraud8.(/) § 234. Though there is conflict of decision, partly owing to a difference of phraseology in the various Statutes stock. of Erauds, yet the weight of authority treats shares of stock as being mere choses in action, and not within the Statute of Erauds. (^) In an early case this con- clusion was reached. (A) Shares in a lead mine worked on the cost-book principle are semhle not within the Statute of Erauds.(i) Railway shares are not chattels, goods, etc., and an agreement concerning them must have an agreement stamp, as the exception to 55 Geo. III., c. 138, sched. pt. 3, tit. " agree- ment," covering goods, etc., does not apply to them.(j) Shares in a proposed railway are not within the Statute of Erauds,(/i;) (c) Lawrence;;. Woods, 4 Bosw. 362; Ch. D. 368; Worth w. Ashe Co., 82 N. so a contract as to improvement on Car. 42U ; Baker o. Wasson, 53 Tex. Lands ; Sutton c Sears, 10 Ind. 224. 151. id) Hallen i'. Runder, 3 Tyr. 965 ; 1 (A) Colt u. Netterville, 2 P. Wms. Cr. M. & R. 274. 306. Seville that a share of stock is (e) Coulton u. Ambler, 13 M. & W. not goods, wages, etc., within the 416. Statute of Frauds, a point on which (/) Beers v. Crowell, Dudley, 29. in Pickering v. Appleby, Com. Rep. {g) King r. Capper, 5 Price, 262; 354, the judges of England were six Heseltine v. Siggers, 18 L. J. N. S. against six. See CruU v. Dodson, Sel. Exch. 166 ; 1 Exch. 856; Hibblewhite Ca. Temp. King (Fol.) 41. V. McMorine, 6 M. & W. 214 ; see 7 (0 Walker v. Bartlett, 18 C. B. 845 ; South Law Rev. 434; Moraw. Priv. 2 Jur. N. S., 645 ; 17 C. B., 446 ; 2 Jur. Corp., § 343 ; Ang. & Am. Corp., 11th N. S., 261. ed., §563; Dos Passes on Stock Broker, (j) Knight v. Barber, 16 M. & W. pp. 107, 587, 758 ; Biddle on Stock Br., 69 ; 3 Car. & K. N. P., 335 ; see Amer. Index "chattels;" Lindl. Part. (Ew. notes. ed.) pp.*661, 673-4; Pierce on R. R. {k) Tempest o. Kilner, 3 C. B. 110 ; see, also, Ashworth u. Munn, 15 253. 368 CHAP. IX.] CONTRACTS KELATINfl TO CHATTELS. [§ 234. nor those an actual one.{l) Certificates of railway stock are not " goods" within 5 and 6 Vict., c. 39, giving factors and agents power to bind the goods deposited with them with the lien for advances made thereon.(m) Shares in a joint- stock bank are not chattels within the 17th section, but choses in action incapable of delivery and decisions on 6 Geo. IV., c. 16, sec. 72 (bankrupt act), are not applicable under the Statute of Frauds.(n) As has just been seen, shares of a corporation not yet in existence are not within the Statute of Frauds, and the point that the shares were yet to be issued, ahd were not in esse when the contract was made, has been in some cases a good deal rested upon.(o) A contract to buy shares of stock is not within the Statute of Frauds.(p) There are several cases in which either a doubt or no opinion has been expressed as to whether shares of stock are within the Statute of Frauds or not,(g') and in one English case, the 17th section of the Statute was made to apply, and it was held that an oral con- tract of sale of South Sea stock is invalid if no earnest is paid, such agreements being, nuda pacta ;{r) and shares of stock are within a bankrupt's order and disposition within the meaning of the bankrupt act, and are not choses in action within the meaning of the exception thereto.(s) There is, however, no inconsiderable reason for holding that the American rule differs from the English, and that contracts relating to stock are in this country within the Statute of Frauds.(^) The Massa- chusetts rule is well settled.(M) In Tisdale v. Harris, it was (/) Duncuft u. Albreoht, 12 Sim. Green v. Brookins, 23 Mich. 52 ; Vau- 198, see cases cited in note thereto ; pell v. Woodward, 2 Sandf. Ch. 143. Bowlby V. Bell, 3 C. B. 291. (r) Crull u. Dodson, Sel. Ca. Temp. (m) Freeman v. Appleyard, 32 L. J. King (folio), 41 ; .5 Vin. Abr. 524, pi. Exch. 175. 4S, n. (n) Humble v. Mitchell, 11 A. & Ell. (s) Jackson (iJe) ; Union Bank {Ex 205. parte) L. R. 12 Eq. 357. (o) Gadsden v. Lance, IMcMull. Eq. (0 Tisdale v. Harris, 20 Pick, 13; 87 ; Green v. Brookins, 23 Mich. 52. Colvin u. Williams, 3 Harr. & .7. 42 (jo) Washburn v. Franklin, 28 Barb, (bank stock) ; North v. Forest, 15 27. Conn. 404; Gadsden u. Lance, 1 Mc- (q) See Pawle v. Gunn, 4 Bingh. N. Mull, Eq. (So. Car.) 90 ; Fine v. Hornby, C. 448 ; Pickering v. Appleby, 1 Comyn. 2 Mo. App. 64. 354, the court divided in opinion ; the (u) Boardman v. Gutter, 128 Mass. shares were in a mining company ; 390, citing Tisdale v. Harris and Bald- VOL. I.— 24 869 § 234.] LAW OF THE STATUTE OF FRAUDS. [CHAP. IX. said that the fact that there could be no part delivery of the stock, did not take the case ont of the Statute of Frauds, and was an additional reason for requiring a writing.(i;) In New York the law seems to be the same ; and United States bonds have been held to be within the Statute of Frauds.(y;) Where one of a firm promised plaintifls if they would take certain rail- road securities for a debt owed them by the firm, he, the defen- dant, would thereafter, etc., buy the securitiesof the plaintiff at the price of the debt for which they were taken, the promise was held to be invalid within the chattels clause of the Statute of Frauds.(a[;) The phrase " things in action," used in the JSTew York statute (R. S. 136, § 32), is a reason for treating the law as more comprehensive than 29 Car. II. (y) The rule in Maine also treats shares of stock as within the Statute of Frauds, the Statute of that state using the words " goods and merchan- dise, "(z) Contract for mining stock must under the law of California be in writing.(a) In Missouri shares of stock are within the Statute of Frauds. (6) A sale of an interest in a railroad is within the Statute. (c) In Florida shares of stock are within the Statute of Frauds, the words used being "per- sonal property. "(rf) win V. Williams, 3 Mete. 365, and re- ferring to Somerby c. Bunting, 118 Mass. 279, as showing that there is conflict of decision on the point. In Somerby u. Buntin, the court said : " It was held by the Court of Chancery in England, before the American Revo- lution, that shares in a corporation were goods ; wares and merchandise within the Statute of Frauds; Mussel u. Cooke, Pre. Ch. 533 ; Crull ,: Dod- son, Sel. Cas. in Ch. 41. And it has been held by this court that such shares, and even promissory notes are full within the Statute ; Tisdale u. Harris, 20 Ficlt. 9 ; Baldwin v. Wil- liams, 3 Met. 365. But the modern de- cisions in England are the other way, and the decisions in otlier states are at variance ; Brown on St. Frauds, §§ 296, 298; 6 Chit. Con. (11th Am. ed.), 541, note." 370 (iO 20 Pick., 13. (tv) Brownson v. Chapman, 63 N. Y. 625 ; Sherwood v. Tradesman's N. Bk., 16 N. Y. Week. Dig. 522, N. Y. S. C. ; see on the subject generally, Passaic Man. Co. v. Hoffman, 3 Daly, 495 ; but see Genin u. Isaacson, 6 N. Y. Leg. Obs. 215. (:r) Hagar v. King, 38 Barb. 205. (!/) Tomlinson u. Miller, 7 Abb. Pr. N. S. 368. (=) Pray r. Mitchell, 60 Me. 434, citing several cases, and denying Hum- ble I'. Mitchell. (a) Mayer v. Child, 47 Cal. 144. (6) Fine <•. Hornby, 2 Mo. App. 64. (c) Kauffman v. Harstock, 31 la. 473. (rf) Southern Life Ins. Co. v. Cole, 4 Flor. 378; see Vawter „. Griffin, 40 Ind. 601. CHAP. IX.] CONTRACTS RELATING TO CHATTELS. [§ 235. § 235. The law as to whether the assignment of a chose in ac- tion must be in writing is greatly at variance, and while it is not possible to give the subject other than ^ent of a passing: notice, a few eases which have a more or chose in r !^ ' action. less direct bearing upon the Statute of Irauds may be of interest. In Maryland by statute an assignee of a chose in action must have a written assignment if he is to sue in his own name.(e) In ITew York such an assignment must be evidenced by a writing, the delivery of the evidence of the debt, or of part thereof, or by a part payment.(/) As early as a case in 12 Coke a recognizance, though only a chose in action, was treated as forfeitable as " goods" under statute of 29 Elizabeth. (^'j A demand for a balance due on an account stated is a " chose in action," and within the New York Statute of Fiaud8.(A) So an oral executory agreement for the sale of a judgment above f 50.(i) A judgment in Louisiana is a chattel so as to require written evidence of its sale in furtherance of certain proceedings had in settlement of an insolvent estate.(/) The purchase of the right and title of a person in a certain contract of work is of a chose in action, and within the Stat- ute. (A) So a money interest in the proceeds of sale of certain goods.(Q An account held against a third person being trans- ferable by Georgia law is within the Statute of Fi-auils of that state.(m) There need not be a writing if there is delivery of the evidence of the claim. (n) So in Maine.(o) An oral assignment of a claim for the price of goods sold and delivered is not void by the Statute of Frauds; so it has been held in Eew York.(;5) In New Hampshire it has been said that under the authority of Whittemore v. G-ibbs, 24 JST. H. 48-4, the contract for an assignment of a judgment would not (e) Union Bank .,. Tillard, 26 Md. (k) Talmadge v. Spofiford, 41 N. Y. 451. Super. 431. (/) Artoher v. Zeh, 5 Hill, 204. (I) Von Keller u. Schulting, 50 N. (•. Patterson, 5 Or. 123; Mart. 650; Crawford w. Puckett, 14 Russell r. Swift, id. 234; see Davis v. La. Ann. 640; Babcock v. Stanley, 11 Mason, 3 id. 154. Johns. 178. (/;) Moore c. New Orleans, 17 La. (m) Marion ^. Faxon, 20 Conn. 494. Ann. 314. 374 CHAP. IX.] CONTRACTS RELATING TO CHATTELS. [§ 240. waive his claim if he, Clark, would take up the note for the price which he, DuiFey, had given B. ; Clark took up this note, tendered it to Duffey, and demanded fulfilment of the latter's promise to waive his claim, and let him, Clark, have the goods ; Duffey refusing, this action was brought, and the Stat- ute of Frauds was held not to be a defence, the transaction not being a sale but the waiver of a claim.(?i) As to how far a price is essential to make a contract relating to chattels one of sale and within the Statute of Frauds, see Mari^ v. Garrison, Report of Referee, T "W". Dwight, p. 64. § 240. An oral mortgage, in absence of any statute requiring a writing, is good, at least between the partie3.(o) But the evidence must be clear and convincing ;(p) ^"chattels. nor need there be a specialty .(^) A verbal pledge of goods is valid under the Statute of Frauds, when the goods have been delivered and accepted ; the goods were afterwards wrongfully taken from the plaintiff, the pledgee, and sold the defendant, with notice: the plaintiff could recover.(r) Under the general statutes of Connecticut, a sale, etc., by a husband of his wife's personalty, or his interest therein, must be by a written conveyance, in which she joins, and it was held that (n) Clark v. Dnffey, 24 Ind. 272. dence is admissible under the Statute (o) Brown v. Coats, 56 Ala. 439 ; of Frauds to show that the parties Alabama Warehouse Co. v. Lewis, 56 afterwards agreed that the plaintiifs Ala. 514; Stearns o. Saflford, 56 Ala. might have one of the chattels (an en- 544 ; MoKeithen v. Pratt, 53 Ala. 119 ; gine) on trial, and that if they were see Rev. Code Ala. (§ 1565), § 2174; not satisfied they might return it, and see, also, VII. U. S. Dig. N. S., 577 et the defendant would deduct or refund seq.; Herm. Chatt. Mort., 39, 296; see the one thousand dollars. The suit Taylor v. Eckersley, 2 Ch. Div. 302. was for the one thousand dollars, the (p) Shelburne v. Letsinger, 52 Ala. plaintiffs having rejected the engine. 96, citing cases. The court thought the engine having (?) Flory !). Denny, 7 Exch. 581 ; 21 been taken only on condition, that L. J. Exoh., 223; Gibson v. Warden, there was no sale, and, hence, that 14 Wall. 244. Where by a written the Statute of Frauds did not apply ; contract certain chattels were sold to the White v. Knapp, 47 Barb. 557; see, plaintiffs by the defendant for twelve however, Lanning u. Carpenter, 48 N. thousand dollars, and one thousand Y. 413, in which senible a mortgage of dollars as part of the price was paid chattels was thought to be within the by the plaintiffs for the refusal, and Statute of Frauds, the plaintiffs paid later the remaining (r) Bardwell i. Roberts, 66 Barb, eleven thousand dollars, parol evi- 435. 375 § 241.] LAW OF THE STATUTE OF FRAUDS. [OHAP. IX. this does not apply to a mere pledge of personal ty.(s) The law is not uniform on this point; in a Maryland case it was said that an oral contract for the mortgage of chattels will be enforced in equity if the Statute of Frauds does not apply. (<) In Iowa a conditional sale of personalty must be in writing and recorded. (m) § 241. A distinction was formerly taken between contracts on an executed and those on an executory considera- tion, and it was said that where anything remained to be done before the contract could be carried out the Statute of Frauds did not apply. Thus, an oral contract to deliver wheat at a future date was held to be valid ; and it was said that the Statute(w) only applied to executed contracts. But this is no longer law.(!o) And in the English cases which first laid down the law as it now is the earlier cases are distinguished as being The dis- tinction between executed and exe- cutory con- tracts. (s) Padbury u. Gorlick, 36 Conn. 426, citing cases. Where one Gleason brought replevin for a boat whicli had been attached by Drew, as the property of H., and Gleason had sold to H., who paid half the price, but who being afterwards unable to pay the rest, gave up to the plaintiff the bill of sale, the boat was left in the care of the de- fendant ; afterwards the sale by Glea- son to H. was rescinded ; it was held that by the resale H. paid his debt to Gleason, and that this payment took the case out of the Statute of Frauds, and judgment was given for the plain- tiff, as the contract was looked on as a mortgage, and a mortgage of chattels is not within the Statute of Frauds ; Gleason v. Drew, 9 Greenl. 80. (0 Triebert v. Burgess, 11' Md. 4G4, citing Alexander v. Ghiselin, 5 GUI, 138, and other cases. (m) See Knoulton v. Redenbaugh, 40 la. 114 ; see Brown v. Allen, 35 la. 309 ; a contract to give a lien on chat- tels is as much within the Statute of Frauds as a sale. See De Blois v. 376 Reiss, 32 La. Ann. 586 ; and see Shaw (.. Wilshire, 65 Me. 491 ; 2 Henn. La. Dig., 1189 ; Vn. U. S. Dig. N. S., 577 et seq.; Herman on Chattel Mortg., 39, 296, as to the necessity of a chattel mortgage being in writing. (i>) Clayton v. Andrews, 4 Burr. 2101 (the wheat was to be threshed); and see Towers o. Osborne, 1 Stra. 506 (an order for a chariot). («') Atwater v. Hough, 29 Conn. 513 ; Eight u. Ripley, 19 Me. 319 ; Edwards v. Grand Trunk R. R., 48 Me. 380 ; Newman u. Morris, 4 Harr. & McH. 421 ; Eichelberger v. McCauley, 5 H. & J. 213 ; Gilman o. Hill, 36 N. H. 317 ; Pitkin v. Noyes, 48 N. H. 297 ; Carman u. Smick, 3 Green, N. J. 253 ; Bennett v. Hull, 10 Johns. 364; Crook- shank V. Burrell, 18 Johns. 58 ; Jackson V. Covert, 5 Wend. 141 ; Downs v. Ross, 23 Wend. 270 ; Sewall v. Fitch, 8 Cow. 215 ; Gadsden ;•. Lance, 1 McMuU. Eq. 87 ; Ide v. Stanton, 15 Vt. 689 ; Meincke i. Falk, 13 No. West. Rep. 545 ; 55 Wis., 429 ; see 16 Amer. Jur., 295 ; Stor. Contr. (5th ed.), p. 158, n. CHAP. IX.] CONTRACTS RELATING TO CHATTELS. [§ 242. rather those of contracts for labor than mere executory agree- ments for the sale of chattels. (a;) In a case in the Upper Canadian Common Pleas it was said that a composition with creditors which does not involve & future assignment of goods is valid by parol. (y) § 242. The next subject for discussion is the difference between contracts of sale and contracts for labor, „ , Contracts the former being within the Statute of Frauds, the for labor or latter not.(2) Thus, where the object of the con- Labor gene- tract was the services of a person employed, and ''^''^^ not the result of his work, the employ^ can recover for such work, and should not sue for goods sold. (a) The question being whether a writing should be stamped or not, it was held where the memorandum showed that much work was to be done before the article referred to was ready, that at least, in absence of further evidence, it was not for the sale of a chattel, but was a contract for labor, and that a stamp was {x) Rondeau ;;. Wyatt, 2 H. Bl. 63 ; Cooper V. Elston,7 T. R. 16, distinguish- ing Towers v. Osborne as the case of a special order involving labor ; and Clay- ton J'. Andrews as one in which the wheat was to be threshed ; see Alex- ander u. Comber, 1 H. Bl. 20 ; Smith ^. Surman, 4 M. & R. 455 ; 9 B. & C, 561 ; Ellison v. Brigham, 38 Vt. 66 ; Finney v. Apgar, 2 Vroom, 268. As will be seen later, the fact that prepara- tion of the chattels is necessary iu order to complete their sale has, in many cases, been made a reason for making an exception to the Statute of Frauds ; and in others the point relied upon has been the fact that the con- _ tract was not an ordinary sale, but the fulfilment of a special order ; therefore the threshing of the wheat in Clayton V. Andrews, and the execution of the special order for a certain kind of chariot, in Towers v. Osborne, have been given as the reason for following these authorities in this particular re- spect, while the theory they lay down as to executed and executory contracts has been denied ; see Crooksliank v. Burrell, 18 Johns. 58; Groves v. Buck, 3 M. & S. 179 ; Garbutt v. Watson, 5 B. & Aid. 613 ; Pitkin u. Noyes, 48 N. H. 297 ; Courtright r. Stewart, 19 Earb. 455 ; Cason v. Cheely, 6 Ga. 556 ; Ferren v. O'Hara, 62 Barb. 527 ; Mead ... Case, 33 Barb. 204 ; Allen v. .Jarvis, 20 Conn. 53 ; Partridge u. Wilsey, 8 la. 461 ; Jackson v. Covert, 5 Wend. 141. {y) Brunskill «. Metcalf, 2 U. C. C. P. 450. (z) See on this subject Pars. Cont., iii. p. 54 ; 3 Amer. L. Rev., 542 ; Edw. Bailm., 2d ed., § 413. In Scotland the rule is otherwise, and semble the Act Aug. 29, 1681, applies ; Napier u. Dick, Hume, 388 ; Paterson v. Edring- ton, Sess. Cas., 8 S. 931 ; 5 Fac. (Octavo) Dec, 757. (a) Grafton v. Armitage, 2 C. B. 336 ; 15 L. J. C. P., 20, 377 § 242.] LAW OF THE STATUTE OF FRAUDS. [CHAP. IX. necessary. (6) "Where the defendant employed one H. to make certain chattels, and wished to pay him in lumber, H. pre- ferred to be paid in goods from the plaintiiF's store, it was then ;io;reed between the plaintiff', defendant, and H., that the plaintiff should pay H. in goods for what the defendant owed H., and that the defendant should pay the plaintiff' in lumber. H. did tbe work and plaintiff asked for pay. It was held to be a contract for work and labor, and not for chattels, etc. It did not appear whether the plaintiff' had paid H. or not ; H. was regarded as the plaintift"'s servant to do the work.(c) In a case since Lord Tenterden's act (9 Geo. IV., c. 14, § 7), it was held that a printer may recover under a count for work done and materials furnished on a contract by which he was to furnish the paper and print a book for the defendant, and the seventeenth section does not apply ; and the Court of Exchequer said that before Lord Tenterden's act the Statute of Frauds did not apply where the contract required any preparation upon the goods, hence this particular question can only arise since that act, i. e., where there is both labor and material furnished. (c^) In an Indiana case an agreement to assist in driving hogs to market, and to have a share in the profits of their sale, was held not to be within the Statute of Frauds, but this may have been because of the contract being a part- nership, and so not within the Statute. (e) As will be seen later the necessity of putting work and labor upon a chattel will take a contract of sale put of the Statute. (/) Where the plaintiff:" agreed to buy a mill on the defendant's land, and run it at his own expense, and the defendant agreed to deliver lumber from his own land at his own cost at the mill, and both were to share the profits of the sale of the sawed timber, (6) Chanter v. Dickinson, 5 M. & G. against Grafton v. Armitage (opinion 259. of Maule and Erie, JJ.). (c) Mather v. Perry, 2 Den. 163. (e) Kelsey u. Henry, 48 Ind. 37. (d) Clay o. Yates, 1 H. & N. 77. But see contra, Barbour v. Disler, 11 Martin, B., said the test was what Rich. Law, 349, and infra, where the should the plaintiflf receive if the work necessity of the transportation of the had been delivered, the value of the chattels sold does not make the con- book which might be nothing, or the tract one of labor rather than sale, value of the labor. »Atkinson u. Bell (/) Cason v. Cheely, 6 G-a. 554 ; (opinion of Bayley, J.), was set off Watts v. Friend, 10 B. & C. 448. 378 CHAP. IX.] CONTRACTS RELATING TO CHATTELS. [§ 243. it was held t.hat the Statute of Frauds did not apply. (^) A promise that if the plaintiff would take shares in a corpora- tion about to be organized the defendant would either pay for them or find some one to take them off the plaintiff's hands, is rather a contract to find a purchaser, than one to buy the 8hare8.(A) A contract for performing work and furnish- ing materials is good by parol. (z) § 243. A promise to procure certain goods and sell them has, in a number of cases, been regarded as valid ,',,.,. ' ° . Promise to though oral.(_;) A contract for a certain compensa- procure tion to obtain and deliver certain goods is not ^°° ^' within the Statute of Frauds.(^) In a briefly reported and doubtful case in New York, it was held, perhaps on this ground, that a contract to suppl}' a milkman with milk for a year, is not within the Statute.(^) It was held, however, in Wisconsin, that a promise to buy a chattel and then sell part of it, is invalid if oral.(m) In an Iowa case, it was held that the fact that the plaintiffs being in New York, and the de- fendants being in Iowa, will not take a sale of chattels out of the Statute of Frauds merely because the plaintiffs, the vendors, would have to go to trouble and expense in procur- ing for and despatching to the defendants, the vendees, the goods in question. (w) And the rule adopted in some states, that the Statute of Frauds applies to all cases except where the seller, out of the usual course of his business, undertakes to procure or make a certain article, or to make under a special order such an article as he would not make for the general market, is clearly a different undertaking from the one above given, and is quite inconsistent with it.(o) (g) Jones v. McMichael, 12 Rich. Matthison v. Westcott, 13 Vt. 262 ; Deal (So. Car.) Law, 181. c. Maxwell, 51 N. Y. 652 ; Spencer v. (A) Green v. Brookins, 23 Mich. 52. Cone, 1 Mete. (Mass.) 283. (0 Dutch u. Mead, 36 N. Y. Super. (k) VFebster v. Zielly, 52 Barb. 482. 431. (I) Baumgartner u. Fowler, 19 Law (j) In the following there was also Reporter (Low.) (S. C. N. Y.), 381. a stipulation to manufacture the mate- (m) Brown v. Slauson, 23 Wis. 248. rial so procured : Phipps v. McFarlan, (n) Partridge v. Wilsey, 8 la. 461. 3Min. 100; Seymour o. Davis, 2 Sandf. (o) Goddard u. Binney, 115 Mass. 239 ; Abbott v. Gilchrist, 38 Me. 260 ; 454, citing cases. 379 § 244.J LAW OF THE STATUTE OP FRAUDS. [CHAP. IX. § 244. This diff'erence of opinion brings us to the considera- tion of those cases in which the procurement of goodsnot goods not then in esse was given as the reason of yet t«,ess«. nialtincf an exception to the Statute, and next in Promise to - "^ . . procure Order, those cases in which the contract was to make and sell the goods in question. However strict in other decisions, the test has been that a contract is within the Statute of Frauds, unless it was for a special order involving peculiar skill, or was one not in the line of the seller's business, yet there remains a long list of cases in which a lower standard was chosen, and the fact of the non-existence of the goods sold at the time of the contract of sale was con- sidered of sufficient force to take the agreement out of the Statute. The following are some examples : Thus, where the defendant promised the plaiutifl" that if he, the latter, would ship certain corn by the defendant's vessel, he, the defendant, would take it at once to B., and thence bring back coals, and deliver the coals at J. to the defendant at a certain price, it was held that the Statute of Frauds was no bar. The contract was to get the coals if there were any at B. ; and when the con- tract was made the defendant had no coals, and hence the con- tract was executory, and not within the Statute. Giftbrd,L. C. J., thought it not a contract of sale, but a contract to provide coals for the plaintiff at B., and to carry them for him, and de- liver them to him at J.(^) So Judge Story decided that a contract to deliver goods not then in existence was not within the Statute of Fraud8.(^) So a contract to procure certain goods, the court saying, that if the party could not get tliem he would not be liable, whereas, if the agreement had been a sale he would have been.(r) So a contract of sale of shares of stock, intended to be issued by a corporation increasing its stock; the court saying, that the distinction between goods in existence and those intended to be made, though violative of the Statute of Frauds, is well settled. (s) In Iowa the question (/i) Cobbold u. Caston, 8 Moo. 460 ; (s) Gadsden v. Lance, 1 McMull. Eq. 1 Bingh., 400. 90, citing cases ; see Green y. Brookius, (?) Low V. Andrews, 1 Story, 38. 23 Mich. 52. (r) Bird v. Mulilinbrinl^, 1 Ricli. 201 ; see Pitkin v. Noyes, 48 N. H. 297. 380 CHAP. IX.] CONTRACTS RELATING TO CHATTELS. [g 245. is settled by statute,(<) and it was said in an early case that the fact which removes a parol contract from the operation of the Statute of Frauds under this contract can well exist outside of the contract. The party should have been per- mitted to prove his contract and the facts which would take it out of the Statute. If the plaintiff could prove that at the time the contract was made the hogs were not owned by the defendant— jiot ready for delivery ; that labor, skill, or money would necessarily have to be expended before they could be produced or delivered, then he would have taken the case out of the Statute.(M) The early and dubious case of Clayton v. Andrews rests partly on this view, and a promise to sell cer tain wheat was said not to be within the Statute of Frauds, because not being threshed the wheat could not be delivered. (y) And in another decision, distinguishing and doubting this ruling, a point of distinction was made in that the goods in the later case existed in solido at the time of the contract made.(w) § 245. These cases lead directly to that second category in which the promise is to furnish goods not in esse when contract to the contract of sale was made ; impossible as it is to supply "• goods not reconcile the rule with the great body of modern de- yet m esse, cisions, there is certainly authority for holding that within the a promise to furnish a chattel not then in existence ®'^'''^*^- is not within the Statute of Frauds. Thus, a contract for the sale of oak pins not then made, but to be cut out of slabs, was held not to be within the Statute of Frauds, as the goods were not in rerum naturd at time of the contract, and were therefore incapable of acceptance and deli very. (:c) So a contract to make and put up in the defendant's premises certain spindles was held to be for labor, not for goods, and one requiring a (t) Rev. St., § 4008 ; Code, § 2411 ; (x) Groves v. Buck, 3 M. & S. 179, Brown v. Allen, 35 la. 309, citing Part- distinguishing Rondeau v. Wyatt, as a ridge v. Wilsey, 8 la. 459. case where there might have lieen de- (m) Bennett v. Nye, 4 Ureene, la. 410. livery. See, however, Garbutt v. Wat- (v) Clayton v. Andrews, 4 Burr, son, 5 B. & Aid. 613 ; and Smith v. 2101 ; see Rentch v. Long, 27 Md. 197, Surman, 9 B. & C. 561 ; overruling . a contract to deliver corn not yet gath- Groves v. Buck ; see, also, Cason u. ered. Cheely, 6 Ga. 556. (w) Cooper v. Elston, 7 T. R. 16. 381 § 245.] LAW OF THE STATUTE OF FRAUDS. [OHAP. IX. stamp. (y) So, where there was an order to have a chattel manu- factured, and the question was whether till completion any title passed so as to be liable for vendee's debt, it was held that no title passed. Judge Heath saying this is the species of contract, which, in the civil law, is described by the term, do ut facias. It comes within the cases which have been held to be executory contracts, and as such not within the Statute of Frauds, as contracts for the sale of goods. (2) So, an order for clothes to be made is not within the Statute, as the articles were not in existence when the promise was made ; and this though the sellers were tailors.(a) So, in a New Jersey case, it was said that an order for a chattel not in solido., and to be made out of the seller's usual line of business, and under a special order, is not within the Statute of Frauds. (6) A contract for the manufacture and delivery of certain staves from a particular lot of timber is not within the Statute of Frauds. (c) In the Supreme Court of New York it was said that when the thing bargained for is not in esse at the time of the contract, and could not then be delivered or accepted, but is to be afterwards constructed or manufactured, the contract is held to be one for work and labor ; as for a wagon, there- after to be constructed, and the like. This class of cases does not fall within the Statute ; and an action may be maintained for the contract price, counting on the agreement as a con- tract for work, labor, and material. (c?) So, in another New York case, certain earlier decisions, holding oral sales of (y) Buxton I). Bedall, 3 East, 305, at the time of sale that the Statute of citing Towers I'. Osborne, distinguishing Frauds applies. Curry v. Edensor, 3 T. R. 524, as a sale {d) Bates v. Coster, 1 Hun, 402 ; see of goods then made. Ferren v. O'Hara, &2 Barb. 527 (a con- (z) Muoklow V. Mangles, 1 Taunt, tract to deliver malt) ; Donovan u. 319. Wilson, 2a Barb. 138 (to make beer- (a) Lane ;;. Melville, 3 U. C. Q. B. barrels) ; Sewall u. Fitch, 8 Cow. 219 0. H. 127. (to make nails) ; and see Robertson c. (b) Finney v. Apgar, 2 Vroom, 268. Vaughn, 5 Sandf. 1, reluctantly foUow- (c) Crockett I'. Scribner, 64 Me. 449, ing Sewall f. Fitch; see Bronson u. citing cases, and in Cummings v. Den- Wiman, 10 Barb. 427 ; see Goddard v. nett, 26 Me. 399, it was suggested that Binney, 115 Mass. 454, stating the New it was when the goods are in existence York law to be as above. 88ii CHAP. IX.] CONTRACTS RELATING TO CHATTELS. [§ 246. chattels good were distinguished as sales of chattels not in esse.{e) § 246. The test of the existence or non-existence of the goods contracted for is inconsistent, as will be later seen, with much modern adjudication, and it has within the been expressly repudiated. (/) And it has been held that where the contracting parties contemplate a sale of goods, although the subject-matter at the time of making the con- tract does not exist in goods, but is to be converted into that state by the vendor's bestowing labor on his own raw ma- terials, that is a case of a contract for sale within the Statute of Frauds.(^) So a contract, by one owning rape-seed, to de- liver a certain amount of the oil does not require a stamp, but as "goods, wares, and merchandise" comes within the exception of 48 Geo. III., c. 149 (sched., Part l.).{h) (e) Cooke v. Millard, 5 Lans. 245, distinguishing, on this ground, Sewall u. Fitch, Groves i/. Buck, Mead u. Case, Stephens v. Santee. So Parsons !J. Loucks, 4 Roberts. 217, distinguish- ing Downs V. Ross and Seymour v. Da- vis ; see, also, Pitkin u. Noyes, 48 N. H. 297 ; distinguishing, on this ground, Crookshank v. Burrell, Sewall v. Fitch, Robertson v. Vaughn, Brown u.Wiman, Donovan v. Wilson, Parker v. Schenk, Mead v. Case. See Parker o. Schenk, 28 Barb. 38, citing Judge Bronson in Downs V. Ross ; see Downs v. Ross. 23 VTend. 270. (/) Groddard v. Binney, 115 Mass. 454 ; Gilman v. Hill, 36 N. H. 317, no- ticing Groves v. Buck, Sewall v. Fitch, and Lower «. Winters, 7 Cow. 263 ; Frear u. Hardenburgh, 5 Johns. 275 ;■ and citing as contra Garbutt v. Watson, and also, by way of analogy, Parker u. Staniland ; Warwick u. Bruce ; Carter o. Jarvis, ; see, also, Meincke II. Falk, 13 No.West. Rep. 545 : 55 Wis., 427; Ide u. Stanton, 15 Vt. 689; Pit- kin V. Noyes, 48 N. H. 297, relying on Garbutt v. Watson, Smith u. Surman, and Lee v. Griffin ; Gardner u. Joy, 9 Mete. 179 ; Smith v. New York R. R., 4 Keyes, 198. ((/) Prescott V. Locke, 51 N. H. 96, citing Garbutt c. Watson, 5 B. & A. 612, and Smith v. Surmati. (A) Wilks V. Atkinson, 6 Taunt. 11 ; 1 Marsh. 412; Gibbs, C. J., quoting the case of a butcher or baker. The stamp act is broader in its lan- guage than the Statute of Frauds, and excepts by its proviso all contracts which relate to "goods, wares," etc. ; see Warrington v. Furbor, 8 East, 242 ; Watkins v. Vince, 2 Stark. 368 ; Curry V. Edensor, 3 T. R. 524; Skrine u. Elmore, 2 Campb. 407 ; Venning v. Lec- kie, 13 East, 7 ; Whitworth v. Crockett, 2 Stark. 431 ; Heron v. Granger, 5 Esp. 269 ; Pinner u. Arnold, 2 Cr. M. & R. 613 ; 1 G. & D., 271 ; 1 T. & G., 1 ; Leigh V. Banner, 1 Esp. 403 ; 6 Peters. Ab. (Am. ed.), p. 192-5; 4 Chitt. Stat. (3d ed.), p. 485, u., col. 2, p. 456, n., col. 1 ; Chitt. & Forst. Dig. of Con- vey., 689 ; Long, Sales (Rand's ed.), p. 96. 383 § 247.] LAW OF THE STATUTE OF FRAUDS. [CHAP. IX. Goods made on special order. General principles ; cases not within the Statute. § 247. Another test, and one well approved in modern law, is the stricter one which excepts from the Statute of Frauds only those sales of chattels in which the work and labor involved are under a special order given by the buyer. (z) Thus, it has been said that where the contract is for the manufacture of an article by the seller, and his skill is what is stipu- lated for, the Statute does not apply.(y) And it has been said that a contract for labor is where the article agreed for would never have been made but for the order.(/<;) In another case it was said that "the person ordering the article to be made is under no obligation to receive as good, or even a better one of the like kind purchased from another for him. It is the peculiar skill and labor of the other party combined with the materials for which he, the purchaser, con- tracted, and to which he is entitled. "(^) And in a Massachu- setts case it was said that " in this commonwealth a rule avoid- ing both of these extremes was established in Mixer v. How- arth, 21 Pick. 20.5, and has been recognized and afErmed in repeated decisions of more recent date. The etfect of these decisions we understand to be this, namely, that a contract for the sale of articles then existing, or such as the vendor in the ordinary course of his business manufactures or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods to which the Statute ap- plies ; but, on the other hand, if the goods are to be manufac- tured especially for the purcliaser and upon his special order, and not for the general market, the case is not vrithin the Stat- ute."(m) Again it has been said, ''That where a contract is made for an article not existing at the time in solido, to use (i) Parker v. Schenck, 28 Barb. 39 ; Edwards v. Grand Trunk R. W., 48 Me. 380 ; Phipps v. MoFarlan, 3 Minn. 100 ; and see below ; see, however, Benj. Sales, 11. (j) Pitkin o. Noyes, 43 N. H. 297 ; Passaic Man. Co. a, Hoifman, 3 Daly, 502 ; 11 Am. Law Reg., N. S. 105. (k) Prescott o. Locke, 51 N. H. 96 ; Kassaic Man. Co. v. Hoffman. 384 . (0 Higbt u. Ripley, 19 Me. 139, distinguishing Garbutt v. Watson, as a case where any article of the kind sold would have answered, and saying that Towers v. Osborne was rightly decided, but for wrong reasons ; see Pitkin v. Noyes, 48 N. H. 297. (m) Goddard u. Binney, 115 Mass. 454, citing cases. CHAP. IX.] CONTRACTS RELATING TO CHATTELS. [§ 247. the expression of the old cases, and when such article is to be made according to order, and as a thing distinguished from the general business of the maker, then such contract is in substance and effect not for a sale, but for work and mate- rials. "(«) In a late "Wisconsin case the court said : " While an executory contract for the sale of an article for the price of §50 or more, may be within the Statute notwithstanding such article does not at the time exist in solido, yet where such con- tract is to furnish materials and manufacture the article ac- cording to specifications furnished or a model selected, and when without the contract the thing would never have been manufactured in the particular manner, shape, or condition it was, then the contract is essentially for special skill, labor, or workmanship, and is not within the Statute. "(o) The Statute of Frauds was not applied to an oral contract by a mechanic to furnish materials and do carpenter work according to a specific plan.(^) The order for a chariot to be made under special directions is not within the Statute of Fraud8.(g') So a contract for a sideboard to be made after a particular order, and in which the buyer from time to time directed changes to be made.(r) So, where the purchaser chose the material and the place of work ;(s) or where the order was for articles made oply upon order,(<) as portable houses of a specified 8ize.(M) Where the articles ordered were of a peculiar kind, and were to be furnished as called for, they were presumably manufactured after the order given for them, and they were (n) Finney v. Apgar, 2 Vroom, 268, (q) Towers o. Osborne, 1 Stra. 506 ; denying Lee v. GriiSn, infra. Alexander u. Comber, 1 H. Bl. 20 ; (o) Melnoke o. Falk, 13 No. West. Goddard u. Binney, 115 Mass. 454 Rep. 545 ; 55 Wis., 427 ; Hardell v. Mo- (where the carriage so made was to be Clure was distinguished as a mere con- marked with the buyer's initials) ; see tract to sell and deliver a certain quau- Mixer v. Howarth, infra. tityofwheat. Lee «. Griffin was thought (r) Donegani u. Molinelli, 14 Low. to rest only on Lord Tenterden's act Can. Jur. 106, citing cases, and saying (but that act was semble merely declara- that Civ. Code, § 1235, made no differ- tory, and did not apply to such a case ence in regard to this point ; the court as Lee v. Griffin); many cases were relied upon the " usual business" test, cited and considered, one judge dis- (s) O'Neil «. Mining Co., 3 Nev. 145. sented. See ^ 251, n. (r). (0 Prescott v. Locke, 51 N. H. 96. (/)) Courtright v. Stewart, 19 Barb. (m) Phipps v. McFarlan, 2 Minn. 455. 112. VOL. I.— 25 385 § 247.] LAW OF THE STATUTE OF FRAUDS. [CHAP. IX. ordered because of their special quality. ("Finding your warps uniform we shall be faithful to you," was the language of a letter of the defendant, and there was a presumption, owing to a great fall in the price of the article, that but for the defendant's order the articles would never have been made.) For all these reasons the court held the contract to be one of labor and not of Bale.(w) So a contract to procure and deliver one-half of a frame for a vessel to be hewn accordino; to certain moulds is a contract for manufacture and not for sale of goods, and is not within the Statute of Frauds ;(r<)) or to make hoes according to a pattern left by a purchaser ■,{x) or to make a certain stave machine.(?/) So where a buyer, not satisfied with the seller's pumps, ordered a jiump made spe- cially for himself in a particular wa}^ the price depending upon the amount of material required. (^) In a case in 5 Daly the court said :(a) "This was not a contract for the sale and delivery of goods, wares, and merchandise, in which both delivery and acceptance are essential to the validity of the contract under the Statute of Frauds. It was the employment of an artist to copy in crayons a photograph, for which he was to be paid a specified sum ; an agreement for the perform- ance of work and labor, in which almost the sole ingredient was his labor and skill ; the materials, which consisted of the canvass upon which the work was executed and the crayon pencils with which it was done being unimportant, and merely ancillary to the contract for skill, work, and labor. It was an article moreover (a portrait of the plaintiff's child) which could be of little value to any but the plaintiff himself, and was never intended to be the subject of sale and purchase. So a contract to procure the materials and make two grave- stones.(6) (y) Passaic Man. Co. v. Hoffman, 3 {y) Spencer v. Cone, 1 Mete. (Mass.) Daly, 502; 14 Am. Law Reg., N. S., 283. 105, citing and considering many oases, (c) Parker v. Sclienck, 28 Barb. 38. and holding Downs v. Ross and Sewall (a) Wright v. O'Brien, 5 Daly, 55 ; V. Fitch, overruled by Smith t . R. R. see, also, Passaic Man. Co. c. Hoffman, Co. ; see Prescott u. Locke, 51 N. H. 3 id. 502 ; 11 Am. Law Reg., N. S., 105. 96, distinguishing Gardner v. Joy. (t) Matthison ;,. Westcott, 13 Vt. (•«) Abbott v. Gilchrist, 38 Me. 260. 2(J1 ; so Mead «. Case, 33 Barb. 204, (x) Hight V. Ripley, 19 Me. 139. the court saving that the monument 386 CHAP. IX.] CONTRACTS RELATING TO CHATTELS. [§ 250. § 248. In the following cases also the Statute of Frauds was held not to apply, but their correctness is, perhaps, open to doubt. Thus, in the well known case of JJi^^gl"^ Mixer v. Howarth, the order was for a carriage already made, and all that was done was to line it with a stuff chosen by the buyer.(c) So, a recovery, notwithstanding the Statute of Frauds, was allowed for making certain surgical instruments, though the evidence showed that the parts of the instrument were procured in a finished condition, and the seller's labor was only in putting them together.(d^) And in a ITew York case, it was said that the work of finishing a certain monument involved additional skill, different from, and of a higher character than the original work thereupon. (e) In suit upon a contract for the manufacture of a cotton-gin made under a general order, a nonsuit was set aside in order that the question, whether the contract was for a sale or for work and labor, might be determined as a fact by the jury.(/) § 249. The following are New York cases in which the Statute of Frauds was held not to apply, but which are not sustained by the decision of any other state : yorkcaees Thus, a contract to procure cider, refine it and sell it.{g) So, a promise to procure materials and manufacture certain stutf.(A) So, a contract to manufacture paper by the seller in his usual course of business, the paper to be of the same kind and quality as other paper previously ordered by the buyer according to particular sizes and weights.(i) § 250. The following are examples of contracts held not to be special orders, but ordinary sales, and within the Statute of could not he sold to any one tiit the (/) Wiuship u. Buzzard, 9 Rich, first purchaser, one judge dissenting; 105. see, contra, Wolfenden v. Wilson, 33 XJ. (<;) Seymour v. Davis, 2 Sandf. 242. C. Q. B. 445. (A) Deal v. Maxwell, 51 N. Y. 052. (c) 21 Pick., 207 ; see Cummings v. (i) Parsons v. Loucks, 4 Roberts, Dermott, 26 Me. 401, and Flint v. Cor- 217, citing very many cases, and deny- bitt, 6 Daly, 430, contra. ing Gardner ;;. Joy and Lambf. Crafts; (rf) Allen V. Jarvis, 20 Conn. 53, G-ray (commissioner) dissented, rely- citing cases. ing on Downs v. Ross ; see Higgins u. (c) Mead v. Case, 33 Barb. 204. Murray, 73 N. Y. 254. 387 § 250.] LAW OF THE STATUTE OF FRAUDS. [CHAP. IX. Frauds: A purchase of certain chandelier8.(j') And where the plaintiffs gave the defendants, who were commis- wtthi-nthe sion merchants, a written order for certain goods, Statute of ^[jgy must prove the contract to have been one of manufacture, and not, as the writing would indi- cate, of mere sale, if they want to escape the Statute of Frauds.(A') And where the contract, as proved, was that the plaintifi' should have the manufactured iron as fast as it was made, until he was paid for advances in money and provi- sions to the amount of eight or twelve hundred dollars, and also for a certain proportion of rent. The court said " this was a contract of sale, within our Statute of Frauds. "With- out going into a collation of the authorities, we think we may safely decide, that the contract in this case was for the sale of manufactured iron, and not for the work and labor bestowed on manufacturing it."(0 I" ^ suit for bending-stufi" and planks, the plaintitf testified, that bending-stufi" was the butts of trees, sawed so as to render them suitable to be manufac- tured into wagon shafts, and that " the defendant was to saw all the logs not suitable for bending-stufi' into plank of various dimensions, under the direction of the plaintiff. And the court held that the Statute of Frauds applied. (m) Even in New York, where the disposition to uphold oral sales of chattels was so strong, it has been held that a purchase of chairs for which the buyer chose a covering, and which were to be covered and varnished by the seller, is within the Statute of Frauds, though the covering was of an unusual pattern, and might make the chairs less saleable.(?i) So, the Statute was held to apply to a contract to deliver to the plaintiff certain sewing machines not then finished, the machines to be com- pleted by a third person who worked for tiie defendant, the contract between the two latter being that the defendant was to provide a shop and its fittings, and the third person to (i) United States Reflector Co. i;. the court saying that the case came Rushton, 7 Daly, 412. within the category of Gardner i'. Joy, (/c) Miller u. Fitzgibbon, 12 N. Y. 9 Mete. 177, and Lamb o. Crafts, 12 W. Dig. 237. Meto. 13, and not within that of Mixer {I) Sawyer v. Ware, 36 Ala. 681. v. Howarth, and Spencer v. Cone. (m) Clark v. Nichols, 107 Mass. 548; (n) Flint v. Cor bit, 6 Daly, 430. 388 CHAP. IX.J CONTRACTS RELATING TO CHATTELS. [§ 252. make the machines to be paid for at so much each.(o) So, a contract for a certain number of spokes to be made and de- livered. (p) So, a contract for a tomb-stone, in absence of evi- dence that it was to be of a peculiar sort, is for a chattel and within the Statute ; that it is to be put up at the grave will not make any difference. (5') § 251. In an extreme and perhaps doubtful case in the Queen's Bench, the Statute of Frauds was held to apply to a contract to make a set of false teeth which English should fit the buyer's mouth. (r) So the preparation ™^'^- of stone work under a plan furnished by the buyer, and in- tended for the latter's portico, was regarded as a contract for chattels, and within the Statute of Fraud8.(s) It has been held that if the goods when completed are wares and mer- chandise the Statute of Frauds applies. (<) Thus, a contract to make certain apparatus which, when finished, will result in a chattel worth more than £10, cannot be sued on as for work and labor.(M) But this rule, unless subject to exceptions, is not consistent with other views expressed in this chapter, and has indeed been denied. (w) § 252. A valuable test for ascertaining whether the Statute of Frauds applies or not, is that which asks whether usuaibusi- the contract for goods to be sold (whether in esse or ^'^^^ rule. not, or whether requiring to be first procured or made), is one (0) Atwater v. Hough, 29 Conn. 513. doubted Clay «. Yates, but of this case (p) Prescott V. Locke, 51 N. H. 96. Hill, J., approved ; Atkinson v. Bell, (q) Wolfenden v. Wilson,' 33 TJ. C. except as to a dictum repudiated in Q. B., 445, citing Lord Tenterden's act Grafton v. Armitage, was approved. (Consol. Stat. U. C. C, 44, § 11) ; Lee (s) Cameron r. Pettigrew, Arm. Mao. V. Griffin, relied on, and Clay v. Yates & 0. (Irish N. P.) 128. considered ; Pollock's test in Clay v. (0 Smith v. Surman, 4 M. & R. 465, Yates, rather than that expressed by denying Groves v. Back and Towers v. Blackburn in Lee v. Griffin, followed. Osborne ; see Lord Blackburn's dictum (r) Lee v. Griffin, 1 B. & S. 276 ; 30 in Lee v. Griffin, and Judge Little- L. J. Q. B. 252. Blackburn, J., thought dale's in Smith v. Surman, 9 B. & C. that test was whether the work and 561. labor were to result in the production (m) Lyons v. Hughes, 1 Vict. L. Rep. of a chattel, if so, the Statute of Frauds Law, 41. applied, even where a sculptor agreed («) Phipps v. McParlan, 3 Minn. to deliver a statue ; this rule was said 100 ; see Passaic Man. Co. v. Hoffman, to reconcile the above cases. He also 3 Daly, 502; 11 Am. L.Reg. N. S. 105. 389 § 252.] LAW OF THE STATUTE OP FRAUDS. [CHAP. IX. in the usual line of the seller's business, in which case the Statute applies, or is one of a special and particular character, when the Statute may not apply.(w) In a ISTew Jersey case the various tests ordinarily applied were fused into a single rule to the effect that where a contract is made for an article not existing at the time in solido — to use the expression of the old cases — and when such article is to be made according to order, and as a thing distinguished from the genei'al business of the maker, then such contract is in substance and effect, not for a sale, but for work and materia]s.(a;) In ITew York, with the tendency always shown there to relax the require- ments of the present clause of the Statute of Frauds, the rule under consideration has been so far extended as to include a contract, which not in kind but in quantity differs from those ordinarily made by the seller in his usual course of business. Thus it has been said that it may be stated as a conclusion to be derived from the cases, that if an order is given to a manu- facturer for a certain quantity, at a certain price, of an article which he is habitually manufacturing, and keeps on hand to supply orders, it is, in general terms, to be regarded as a con- tract of sale, and should be in writing to make it binding; for the party giving such an order is not called upon to in- quire what quantity the manufacturer has on hand, or whether it will or will not be necessary to manufacture it, in whole or in part, to fulfil the order. But if, with the knowledge that the manufacturer is not supplied with the article ready made, the party orders a certain quantity to be manufactured at a certain price, then it is an agreement for the production of the article, and not for the sale of it after it is produced, for it may be that but for the order, the manufacturer would not at that time, in the ordinary prosecution of his business, manufacture such a quantity for the reason that it may, by the time it is manufactured and ready for delivery, depreciate in value in the market, as was the fact in the case before (u') O'Neil v.N.Y., etc., Milling Co., H. 297, citing Lamb v. Crafts, or, to 3 Nev. 145; Bird v. Muhlinbrink, 1 the same effect, Flint u. Corbitt, 6 "Daly, Rich. 201 ; Partridge v. Wilsey, 8 la. 430; see, however, Benj. Sales, 11. 461 ; Donegani o. Molinelli, 14 Low. (x) Finney v. Apgar, 2 Vroom, 268. Can. Jur. 106 ; Pitkin ... Noyes, 48 N. 390 CHAP. IX.] CONTRACTS RELATING TO CHATTELS, [§ 253. us."(2/) A contract for the sale of flour is within the Statute of Frauds, as the sellers were proceeding to grind it for the purposes of general sale, and sold it as part of their 8tock;.(^) A contract by a tallow-chandler to furnish one with refined tallow, was held to be within the Statute of Frauds, Shaw, C. J., saying that " when a person stipulates for the future sale of articles which he is habitually making, and which at the time are not made or finished, it is essentially a contract of sale and not a contract for labor; otherwise where the article is made pursuant to the agreement." The chandler's business was to procure rough tallow, refine, and sell it.(a) But it has been said that it is very clear that if application is made to a mechanic or manufacturer for articles in his line of busi- ness, and he undertakes to prepare and finish them in a given time, such a contract, though not in writing, is not aft'ected by the Statute. (6) There are, it need not be again said, many other decisions in which the " usual business" rule has been entirely discarded. (c) A contract for goods easily procurable, and, if rejected by the buyer, readily saleable is within the Statute of Frauds.(c?) § 253. Insufficient on principle as would seem the doctrine, yet there has been, both in England and America, p^g^o^^g much authority for making an oral contract of sale preparation p 1 1 T ^ -1 T in p rule; cases or chattels valid notwithstanding the Statute ot within the Frauds, if some labor was necessary in the mere '^'''^''^• previous preparation of the goods. By the provisions of Lord Tenterden's act this point is now set at rest;(e) and such pre- paration is declared to be of no effect in dispensing with the Statute of Frauds, and it may be said that, notwithstanding irreconcilable conflict of decision, such is the weight of autho- (y) Passaic Man. Co. i/. Hoffman, 3 (6) Cummings v. Dennett, 26 Me. Daly, 502; 11 Am. Law Eeg. N. S. 401. 105. (c) See Lane u. Melville, 3 U. C. K. (z) Garbutt v. Watson, 5 B. & Aid. B. 0. S. 127. '613, overruling Clayton u. Andrews, (d) Cason v. Cheely, 6 Ga. 554 ; see, and distinguishing Towers v. Osborne however, Flint v. Corbitt, 6 Daly, 430. as a special order, and considering it (c) 4 Geo. IV., u. 14, § 7. This stat- an extreme case. ute has been considered as merely de- (a) Lamb v. Crafts, 12 Mete. (Mass.) claratory ; Story, Contr., 5th ed. 198, 356. n. ; Smith on Contr., 6th Am. ed. 391 § 253.] LAW OF THE STATUTE OP FRAUDS. [CHAP. IX. rity apart frora this and like enactments. In a case in 38th Vermont the law was summed up as follows : " That the fact that work and labor is to be performed upon the subject matter of the contract before it is to be delivered, in accord- ance with the terms of the contract, does not necessarily take it out of the Statute. Whether it is to have such an effect or not depends upon the nature and character of the labor to he performed, and its effect upon the subject matter. The fact that labor is to be bestowed upon the propert}' to remove it from the place where it is at the time of the contract to the place of delivery is not suflicient, although the value of the property at the place of delivery may consist principally in the expense of removing it to such place. The contract must require the performance of such work and labor upon the property as shall materially and essentially change the char- acter of the property itself, so that the property as it is to be when delivered, must he substantially different from what it is at the time the contract is entered into, in order to take the contract out of the Statute. In short, it must be of such a character as to bring the contract within the rule that ex- cepts from the operation of the Statute contracts for the manu- facture of property, or convert it substantially into a contract for work and labor. "(/) That an oral contract of sale of goods contains a stipulation as to transportation, and the cost of the latter is included in the price, is not a reason for holding the agreement valid. (^) So a contract to drive certain cattle from Florida to Charleston, and there deliver them at so much per pound, is within the seventeenth section of the Statute of Frauds. The transportation is not a contract for work and labor.(A) Boxing up and transporting chattels sold does not take the case out of the Statute of Frauds. (z) A contract which included the sale of one mare and foal, and the agist- ment of another mare and foal, if entire, is within the Statute (/) Ellison V. Brigham, 38 Vt. 66. Frauds : Atwater v. Hough, 29 Conn. (g) Astey v. Emery, 4 M. & S. 264 ; 513 ; see Irvine v. Stone, 6 Cusli. 501. and see the chapter on Severability to (A) Barbour v. Disler, II Rich. Law, the effect that a contract, including the 349, citing Winship v. Buzzard, sale and transportation of goods being (/) Atwater v. Hough, 29 Conn. 513. partly is wholly within the Statute of 392 CHAP. IX.] CONTRACTS RELATING TO CHATTELS. [§ 254. of Frauds, even as to the agistment, and a quantum meruit is the only remedy for the latter.(y ) So where there was a con- tract for a colt, to be delivered at a future time, gelded and well, at the price of $1000. The animal was present before the contracting parties, and was the precise property agreed to be delivered. True, an operation was to be performed of great hazard, involving however little labor and trifling ex- pense. The plaintiffs assumed the expense and risk, for they were to deliver the colt gelded and well. It was the animal that was contracted for, not the incident of castration. The labor, expense, and risk of the operation were for the plain- tiffs. The animal was the subject of the purchase and sale, to be gelded before delivery. (A-) The court saying also, again, when the subject of the contract exists at the time in solido, but something is agreed to be done to it to put it in condition for use, or to make it marketable, the contract is held to be one of sale, and void within the Statute, yet the rule thus laid down has perhaps some exceptions. The following memo- randum was held to show a contract for "goods, wares, and merchandise," and not therefore to require a stamp under 9 Geo. IV., c. 14, § 7 : "I dou aggree to take all the mannure at four pence each horse a week for 45 horses by the year, and to keep it cleard away every week ; and likewise to let the few G-ardeners have a few loads at the same price, and serve them ; and to let me have during the year 60 loads of straw at £1 9.S. pr. load : began the year 23 July 1853 and ends 23 July 1855. "(i) So a contract by one who has rape-seed to de- liver a certain amount of the oil therefrom. (m) § 254. The following are some further examples of contracts of sales of goods requiring preparation previous to „ delivery, yet within the Statute of Frauds. Thus, examples a sale of wheat in existence, but not yet threshed.(n) under this (j) Harman v. Reeve, 18 C. B. 595 ; act 48 Geo. III., c. 149, Sched., Part I., 25 L. J., C. P., 257. title Agreem. (k) Bates v. Coster, 1 Hun, 402, con- (n) Hardell i-. McClure, 1 Chaud. 275, sidering Mead v. Case. citing Garbutt v. Watson, Atkinson (0 Gurr V. Scndss, 1 Exch. 190. v. Bell, Smith v. Surman, and Downs (m) Wilks V, Atkinson, 6 Taunt, v. Ross ; and saying that the law had 11 ; 1 Marsh., 412, citing the stamp heeu the other way, in England, from 393 § 254.] LAW OF THE STATUTE OF FRAUDS. [CHAP. IX. rule, and gg a contract to buy flax straw to be raised from within the •' Statute of forty-five bushels of flaxseed, the straw to be deliv- crops; ' ered in a dry condition free from weed8.(o) So a timber. contract to sell and deliver, at a fixed price per quantity, all the broomcorn on a certain tract of land is within the Statute. (p) So a promise to deliver a hundred barrels of apples.(2') So a contract for the sale and delivery of a quantity of wood, then standing timber.(r) So where lum- ber ordered b}' the defendants of the plaintiffs, was to be examined by the defendants to be taken to the plaintiff's' planing-mill, dressed by them, put on their wharf, and deliv- ered to P. ; the defendants' purchase was of dressed lumber; this was held to be a contract of sale of goods, and not one for work aud labor.fs) A contract for boards, at so much per foot, board measure, to be sawed from logs at the plaintifl"'s expense, but under the defendant's direction, is within the Statute of Frauds.(<) So a contract for the sale of wool-pelts to be taken oft" during a certain season. (m) The purchase of certain marble chimney-pieces described, the vendor agreeing to finish them in a workmanlike manner, is a contract re- lating to goods sold and not to labor, and requires no stamp.(i;) Towers v. Osborne (1724) to Garbutt v. (o) Brown v. Sanborn, 21 Minn. 402. Watson (1822), and, in America, from (p) Bowman c. Conn, 8 lud. 58, Eiolielberger v. McCauley (1766) to citing Watts !■. Friend, and distiuguish.- Downs V. Ross (1840) ; but saying, also, ing the work to be bestowed from the that Lord Teuterden's act was only crop from the skill required in, making declaratory of the previous law ; see, a wagon, for example, as to this last point, Cason u. Cheely, (7) Bennett v. Hull, 10 Johns. 364 ; 6 Ga. 554 ; also Downs v. Ross, 23 see O'Neil v. New York, etc., R. R., 3 Wend. 370, citing Astey v. Emery. Roberts. 403. Judge Bronson, after saying how much (r) Smith v. New York, etc., R. R., it had cost to explain the Statute of 4 Keyes, 180, citing Downs c. Ross, Frauds (a million or so of pounds ster- Garbutt u. Watson, Smith c. Surman ; ling), went on to remark that it never Edwards v. Grand Trunk R. R., 48 would be explained "so long as it is Me. 380; Ellison c. Brigham, 38 Vt. held that a promise by a seller to 66, citing Smith v. Surman, and many thresh his grain, or to blow the chaff other oases. out of a bin of wheat before sending it (s) Cooke v. Millard, 5 Lans. 245. to market, changes a contract of sale (() Gorham v. Fisher, 30 Vt. 428. into an agreement for work and labor ;" (h) Gilman v. Hill, 36 N. H. 317. Cason V. Cheely, 6 Ga. 554 (a contract (v) Hughes w. Breed, 2 C. & P. 159. to sell growing cotton). 394 CHAP. IX.] CONTRACTS RELATING TO CHATTELS. [§ 255. So a general contract for tlie delivery of a quantity of planks for ship-building at a future time, and for a specified price, is within the Statute of Fraud8.(M;) § 255. Though, as will be seen presently, the effect of prep- aration of the chattels in making an exception to the Statute of Frauds has always been considered york^ases very potent in New York, there are some late cases which tend to make the law of that State more in accordance with the decisions elsewhere. Thus, in a case in 6 N. Y. Su- preme Court, the court said : " This was a contract for sale, not for work and labor. The plaintiffs were not to make the hams ; they were to smoke them. Before the articles were put into the smoke-house they were hams unsmoked ; when taken away, they were hams smoked. The case of Bates v. Coster, 3 'N. Y. Sup. 580, clearly states the doctrine, and is analogous to the present. It is unnecessary to repeat what is there said so well, or to cite the cases there collected."(x) And in another case in the Common Pleas of ITew York it was said that where the understanding of the parties at the time of the agreement is that the article is to be produced in whole, or in a material degree by work and labor, it may be regarded as a contract for work and labor ;(?/) but if the thing con- tracted for is then in existence, but something remains to be done to iinish it, or put it in the condition required by the contract when it is to be delivered, then it is a contract of sale.(2r) When the contract is for the purchase of an article which the vendor usually has for sale in the course of his business, which he keeps in his warehouse substantially made, but not entirely finished, that the taste or wish of the pur- chaser may be consulted as to the final finish, the finishing of it in the way that the purchaser prefers does not change it from a contract of sale into a contract for work and labor. What is in contemplation of the parties is the purchase and (w) Waterman v. Meigs, 4 Cush. (y) Flint v. Corbitt, 6 Daly, 430, 498. citing cases. (x) Kellogg K. Witherhead, 6 N. Y. (z) Citing Atwater u. Hough, Smith Supreme Ct. 526 ; and see Cooke v. v. New York, etc., R. R. Millard, Smith v. New York R. R., Downs V. Ross. 395 § 257.] LAW OF THE STATUTE OF FRAUDS. [CHAP. IX. sale of an article which is examined and selected, but upon which something more is to be done, which, as a matter of taste, choice, or expense, is left to the purchaser, and being determined by him, is included in the price, and is done there- after by the vendor, that he may deliver the article sold and receive the price.(a) So a contract, by which the sellers were to finish a sleigh chosen at their shop by the buyer and deliver it to him, does not give title to the latter till the article is actually finished and delivered; before the sleigh was delivered, the sellers, who were semhle sleigh-makers, failed, and it was held that the sleigh passed to the assignee. (6) § 256. However strong is the modern tendency against making an exception to the Statute of Frauds be- cause of previous preparation of chattels being neces- sary before their delivery under a sale, the law was at one time almost as clear the other way. In New Hampshire the court evaded the responsibility of the question by leaving the whole matter as one of fact to the jury.(c) The well-known, but now overruled, case of Clayton v. Andrews is the fans et origo mali,{d) and has been followed in a number of instances in America,(e)and specially so in ISTew York.(/) § 257. A distinction has been made that where the prepa- ration is for the seller, the contract is merely one of sale, but if for the buyer, that then it may be an agreement for work Cases un- der the pre- vious prep- aration rule, and not within the Statute of Frauds. (a) Flint v. Corbitt, citing Downs v. Ross, Cason u. Cheely, Bates v. Coster, Cooke V. Millard. (6) Halterline v. Rice, 62 Barb. 598, citing Mixer v. Hawortli, Atkinson r. Bell, 8 B. & C. 277 ; Maberly v. Shep- pard, 10 Bingli. 99 ; see, however, Fer- ren v. O'Hara, 62 Barh. 527. (c) Pitkin u. Noyes, 48 N. H. 297 ; and see Winsliip v. Buzzard, 9 Rich. 105. (rf) 4 Burr. 2101, overruled as to the " executory" distinction by Rondeau r. Wyatt, and as to the "preparation" one by G-arbutt v. Watson. (e) Bird v. Muhlinbriuk, 1 Rich. 201 ; 396 Gadsden v. Lance, 1 MoMull. Eq. 90 ; Eichelberger v. McCauley ; Rentch o. Long, 27 Md. 197 (a contract to deliver wheat then ungathered). (/) Jackson v. Covert, 5 Wend. 141, citing Sewall v. Fitch, Crookshank v, Burrell, Ferren v. O'Hara, 62 Barb. 527 ; the court felt bound by Donovan v. Wilson, 26 Barb. 138, though approving of the opposite rule ; the contract was to deliver malt to be manufactured by the seller, and to be paid for by the quantity on delivery ; and see Goddard o. Binney, 115 Mass. 454, for a dictum stating the New York law. CHAP. IX.] CONTRACTS RELATING TO CHATTELS. [§ 257. and labor, and not within the Statute of Frauds.(^) Thus in a case in 19 Barb, the court, after quoting Shaw's rule in Mixer v. liowarth, added: "A still more ration^^^ accurate criterion is to inquire whether the work J^Mhuylr"^ and labor required in order to prepare the subject- or the matter of the contract, for delivery, is to be done for the vendor himself or for the vendee. In the former case the contract is really a contract of sale, while in the latter it is a contract of hiring. "(A) And this rule was applied where one D. agreed to cut ties from his own land and deliver them to Santee, at so much per tie ; Santee furnished the money as the work progressed, and the timber was to be his as soon as cut. The ties were cut and hauled to the land of a third person, and there verbally turned over to Santee as his prop- erty : and it was held that they could not be levied on as D.'s property, and that the Statute of Frauds did not apply to such a contract. The rule was declared to be that where work upon the subject-matter of the sale is to be done for the ven- dee, the case is taken out of the Statute.(2) However excel- lent theoretically, it is to be feared that this test will often prove illusory, when actually applied, for there is usually nothing to show for whom the labor is done.(j) The utility of the chattels clause of the Statute of Frauds has been often questioned. (/c) (,g) See Presoott v. Locke, 51 N. H. Fitoh. See, by way of analogy, Atkin- 96 ; Bird v. Muhlinbrink, 1 Rich. 201 ; son y. Bell, 8 B. & C. 277 ; Maberly Smith V. Surman, 4 M. & R. 463 ; Cason v. Sheppard, 10 Bingh. 99. V. Cheely, 6 Ga. 556 ; Flint v. Corbitt, (i) Stephens v. Santee, 51 Barb. 545. 6 Daly, 430, citing Bates v. Coster, (j) Cooke v. Millard, 5 Lans. 245 ; Mead u. Case ; see Smith v. New York Phipps v. McFarlan, 3 Minn. 100. E. R., 4Keyes, 198. (i) See chapter on the Statute of (A) Courtright v. Stewart, 19 Barb. Frauds, § 11 ; see Law Rev. (English), 455, doubting by this rule Sewall c. vol. xxii. p. 175, 419 (A. D. 1855). 397 LAW OF THE STATUTE OF FRAUDS. [chap. X. CHAPTER X. DELIVERY AND ACCEPTANCE OF CHATTELS. § 258. The delivery and acceptance, ex- ception of tlie Statute of Frauds gen- erally, and applied to what subjects. § 259. Effect of acceptance. Where there is written evidence of the con- tract. § 260. Delivery and acceptance must be by some act. Promise to accept ; conditional acceptance, etc. § 261. Acceptance, etc., sufficient by a joint act to put property under con- trol of buyer, and with intent to vest right of possession ; some general con- siderations. § 2(J2. Delivery and acceptance, both essential. § 263. Buyer may refuse unreasona- bly ; the effect of mere delivery, though to buyer's place, or one in- dicated by him. § 264. Examples of mere delivery in- sufficient to satisfy the Statute of Frauds. § 265. There must be delivery as well as acceptance. § 266. Other examples of necessity of both delivery and acceptance. § 267. Delivery sufficient at common law to pass title not necessarily suf- ficient under the Statute of Frauds. § 268. Acceptance, etc., sufficient to lay ground for action for goods sold and delivered. § 269. Refusal to accept, how soon to be made. § 270. Examples of sufficient compli- ance with the Statute of Frauds. Seller holding as bailee for the buyer. 398 § 271. Resale. § 272. Special examples of insufficient delivery and acceptance. § 273. Further examples of insufficient delivery and acceptance. § 274. General examples of sufficient delivery and acceptance. § 275. Wliat acts insufficient to make a good delivery and acceptance. § 276. No delivery and acceptance while anything remains to be done to ascertain the goods. Weight, meas- urement, and separation. § 277. Price must be fixed. § 278. The examination of the quality of the goods. § 279. Examples of acceptance and re- fusal on account of quality. § 2H1. Right to reject for defect of quality how far consistent with a sufficient acceptance under the Stat- ute of Frauds. , § 281. The continuance of the vendor's lien for the price, and right of stop- page in transitu, § 282. Delivery and acceptance by an agent. Who may be agent. § 283. Examples of acceptance by an agent ; sufficient and insufficient. § 284. Delivery to common carrier. § 285. Carrier habitually employed. Examples of carrier's acceptance be- ing sufficient. § 286. Carrier designated by the buyer. § 287. Contra to the last rule. § 288. Delivery must be under the con- tract. § 289. Delivery and acceptance must be with the assent of the other party. CHAP. X.] DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 258. § 290. Subsequent delivery and accept- ance. § 291. Precedent delivery and accept- ance. § 292. Past delivery and acceptance. § 293. Sales by sample. § 294. Examples of insufficient part de- livery and acceptance. § 295. Part delivery, etc., where sev- eral lots are sold together. Examples of entire contract. § 296. Examples of transactions de- cided to be separate. § 297. Symbolic delivery and accept- ance. § 298. Examples of sufficient symbolic delivery, etc. § 299. Examples of insufficient sym bolic delivery, etc. § 300. Delivery, etc., by orders gener- ally and examples. § 301. Examples of orders accepted. § 302. Examples of orders not accepted. § 303. The question of delivery, etc., is for the jury. § 258. By the terms of the 17th section of 29 Car. II., c. 3, the delivery and acceptance of chattels will make an oral sale of them as effectual as a written one.(a) Jr'JffnJ'ac- Delivery of the goods is complete performance under ceptanee exec ntion the Statute.(6) The Supreme Court of the United oftiieStat^ States said : " The party relies upon a purchase and Frauds sale at which, so far as the evidence shows, she paid g™eraiiy, ' _ _ , ^ f and applied no money, relinquished no rights, released no debts, to what assumed no responsibility, and acquired no posses- sion. The intent of the parties was not evidenced by the pay- ment of the purchase-money, nor by the ascertainment of the price, . . . nor by a written memorandum between the parties, nor by any formal or decisive declaration before wit- nesses, nor by the delivery of the thing sold. "(c) Where the evidence tended to prove an oral contract of sale of chattels, and a delivery thereunder, the Statute of Frauds is satisfied if (o) Alexander v. Comber, 1 H. Bl. 20 ; Groves v. Buck, 3 M. & S. 179 ; Kelly!). Brooks, 25 Ala. 527; Sawyer v. Ware, 36 Ala. 681 ; Mayer v. Child, 47 Cal. 144 ; McTaggart u. Rose, 14 Ind. 231 ; Buckman c. Nash, 3 Fairf. 474 ; Donaldson v. Newman, 9 Mo. App. 242 ; Vincent v. Germond, 11 Johns. 283 ; Dennison u. Carnahan, 1 E. D. Smith, 144; Gray v. Payne, 16 Barb. 277; Van Woert v. Albany R. R., 1 N. Y. S. C. 256 ; Baumgartner ;;. Fowler, 19 Law Reports (Lowell), 381, S. C. N. Y. ; Cot- terall v. Stevens, 10 VPis. 425 ; Nichols u. Mitchell, 30 Wis. 331 ; see 5 Wait, Act. and Def. 579. (6) Pinchon c. Chilcott, 3 C. & P. 236 ; Bowie v. Bowie, 1 Md. 94 ; Bur- chiel's Case, 4 Ct. of 01. 550 ; Choat v. VTright, 2 Dev. Law, 289 ; Scouler v. Haley, 8 U. C. Q. B. 257. (c) Mahan r. United States, 16 Wall. 143 ; 6 N. & H., 331 ; 8 N. & H., 143. 399 § 259.] LAW OF THE STATUTE OF FRAUDS. [chap. X. the case was made ont.{d) In a Louisiana decision it was said that, in a common-law state, slaves being personal property can be given by parol if delivered, and a good title will vest.(e) In Lower Canada, where one has possession of a chattel, he can show orally in what character he holds ; his possession is equivalent to a writing.(/) The effect of delivery and accept- ance extends to a mortgage or pledge of chattels •,{g) and is of special value in the case of an oral gift.(/i) In a late Georgia case it was said that a statute of Georgia (Code, § 1593), pro- viding that cotton and other products shall not be considered as the property of the buyer, or the ownership given up till fully paid for, although it may have been delivered into the possession of the buyer, does not affect the delivery and ac- ceptance exception to the Statute of Frauds ; it was passed merely as an additional protection to sellers of cotton, etc.(i) Where a contract of a sale of goods does not require payment until after a year, delivery and acceptance will satisfy the Statute of Frauds as regards both the " year" and the " chat- tels " sections. (J) § 259. But if there is a memorandum in existence its terms cannot be varied by oral evidence, though there have been delivery and acceptance. (^') If the effect of the oral evidence is not to contradict the writing, it is, however, admissible.(0 Where there is a writing, no delivery and acceptance or earnest is necessary. (//i) An instruction to a jury that there must be an actual delivery of possession of chattels, or a bill Effect of acceptance, etc., where there is written evi- dence of the contract. id) Whaley v. Gale, 12 No. West. Rep. 33, H. C. Mich. ' (e) Crawford v, Puckett, 14 La. Ann. 639. (/■) Lefebvre u, Bruneau, 14 Low. Can. Jnr. 2IJ8 ; see Garfield v. Paris, 96 U. s. fj(;3. (g) Bank of Rochester v. Jones, 4 Comst. 506; Bardwell u. Roberts, 66 Barb. 435. (/i) Bowie r. Bowie, 1 ild. 94 ; Cor- nell c: Cornell, 12 Hun, 313 ; Maillot V. Wesley, 11 La. Ann. 467 ; Bogan v. Fill ley, 19 La. Ann. 96. 400 (i) Groover v. Warfield, 50 Ga. 651. (j) Suggett v. Cason, 26 Mo. 225. (t) Lamb v. Crafts, 12 Mete. 355 ; see Moore v. Campbell, 23 L. J. Ex. 310. (/) Lockett V. Nicklin, 2 Exoh. 92 ; and see, Jefifoott c. North British Co., Ir. Rep. 8C. L. 19. (m) Franklin v. Long, 7 G. & J. 407; but see Sloan v. Scott, 4 West. L. Jour. 5 (Fountain C. C. Ind.) See, how- ever, Smith u. Spackman, 55 Miss. 653. CHAP. X.] DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 260. of sale is incorrect, as unqualified ; as between the parties there may both at common law and under the 17th section of the Statute of Frauds be such a valid sale, without either actual delivery of possession or a bill of sale.(n) § 260. Acceptance and delivery must be by some act, and not by mere words.(o) In a Vermont case, it was ^ ,. •' ^ ' ' Delivery said that " no acts of the party sought to be charged and aci^ept- are proved. We are presented with a naked verbal be by some agreement. In order to satisfy the Statute, where miseto°ac- the property is not in the purchaser's possession, ^ept; con- there must- be something more than mere words, ceptance, The purpose of the Statute was to prevent frauds and perjuries; but if nothing more is required than mere words, how is that purpose to be effectuated ? Declarations as to acceptance and receipt in this case constituted a part of the contract, and are obnoxious to all the evils and every objection that it was the policy of the Statute to provide against. "(p) A promise to accept is nothing.(5') There must be some un- equivocal acts of acceptance, and actual receipt of the pro- perty. (r) Conduct, acts, and declarations are admissible to establish and determine the character of what is claimed to be delivery and acceptance. (s) A mere conversation about the storage of the goods with the seller is insufiicient.(<) The acts of acceptance must be something more than merely what is involved in the contract it8elf.(M) A promise to accept is not an acceptance.(?;) And though followed by delivery, if the (77) Gough V. Edelen, 5 Gill, 102. Kellogg v. Witherhead, 6 N. Y. supra, (o) Marvin v. Wallis, 6 E. & B. 733 ; 526 ; Duplex Co. u. McGinness, 1 City S. C, sub nom. Marvin v. Wallace, 25 Ct. Rep. 438 (N. Y.). L. J. Q. B. 369 ; Kaufman v. Stone, 25 (p) Bassett v. Camp, 54 Vt. 235. Ark. 346; Gardet ;;. Belknap, 1 Cal. (7) Blanchard w. Trim, 38 N. Y. (11 399; Malone v. Plato, 22 Gal. 103; Tiff.) 227. Bowers v. Anderson, 49 Ga. 145 ; Ed- (r) Harvey v. St. Louis Butch. Ass., wards u. Grand Trunk Railway, 54 39 Mo. 217. Maine, 111 ; Sootten 1;. Sutler, 37 Mich. (s) Garfield u. Paris, 96 U. S. 563 ; 530 ; Taylor v. Mueller, 15 N. W. Rep. See Lefebre v. Bruneau, 14 Low. Can. 413 ; 30 Minn., 343 ; Bass v. Walsh, 39 Jur. 268. Mo. 198 ; Shepherd v. Pressey, 32 N. H. (() Bailey v. Freeman, 11 Johns. 223. 55; Finney v. Apgar, 2 Vroom, 272 ; (ti) Shindler v. Houston, 1 Comst. Pitney v. Glens Falls Ins. Co., 61 Barb. 264 ; Alderton v. Buchoz, 3 Mich. 326. 343-4 ; Good v. Curtiss, 31 How. Pr. 10 ; (v) Shepherd v. Pressey, 32 N. H. 49. VOL. I.— 26 401 § 261.] LAW OF THE STATUTE OF FRAUDS. [chap. X. goods when delivered are refused. (z«) An offer to deliver upon a condition which is refused is nu]l.(x) So a conditional ac- ceptance.(y) When the vendee had inquired of a third person if he had certain goods, and added that he, the vendee, had bought them, there is no acceptance. (2) In a New York case, it was said in a suit by a principal against his agent that, whether an oral permission to a vendee to retain possession of choses in action (previously in his hands for sale as an agent), as part of an oral contract by the owner to sell them to him, is a de- livery of them within the Statute of Frauds, it is not neces- sary to decide. Such a sale would at least operate to revoke any power of selling previously given to such vendee as an agent, so as to destroy any previous fiduciary relation between him and the vendor, and leave the plaintiffs to whatever other remedy they might have. (a) § 261. The acceptance and delivery must be sufficient to place the property under the control of the vendee ; and there must be delivery with intent to vest the right of possession as owner. (6) As has been said, " there must be a delivery of the goods by the vendor with an intention of vesting the right of possession in the vendee, and there must be an actual accept- with intent aucc bv the hitter with an intention of taking to to vest right *' . . ° the possession as owner.''(c) The vendor must de- liver to the vendee with the intention of vesting the right of possession in him, and to establish the Accept- ance, etc., eufficieut by a joint act to put property under con trol of buyer, and of poBses- 6ion. Some general considera- tions. (w) Ham V. Van Orden, 4 Huii, 710. (.r) Bailey u. Ogden, 3 Johns. 420 ; Messer v. Woodman, 22 N. H. ISl. (i/) Cammeyer v. The Churches, 2 Sandf. Ch. 24(j ; Messer u. Woodman, siijnru U) Alderton u. Buchoz, 3 Mich. 322. («) Swift V. Wylie, 5 Roberts. 686; see Means v. Williamson, 37 Me. 557; an acceptance by mere word of mouth was upheld. (h) SafiFord v. McDonough, 120 Mass. 291 ; Carver v. Lane, 4 E. D. Sm. 170 ; Brand v. Fooht, 1 Abb. App. Dec. 185 ; 402 Edwards v. Grand Trunk R. W. Co., 54 Me. Ill ; Washington Ice Co. l'. Web- ster, 62 Me. 355 ; Gardet v. Belknap, 1 Cal. 399 ; Johnson u. Watson, 1 Ga. 351 ; Daley i/. Marks, Bertou (N. B.), 346. (c) Phillips V. Bistolli, 2 B. & C. 613; Messer v. Woodman, 22 N. H. 181 ; Baker v. Guyler, 12 Barb. 66S ; Jones V. Mech. Bank, 29 Md. 293 ; Hewes v. Jordan, 39 Md. 479 ; Taylor «. Mueller, 15 N. W. Rep. 413; 30 Minn., 343. CHAP. X.] DELIVERY AND ACCEPTANCE OP CHATTELS. [§ 261. further acceptance, the vendee must take possession with the intention thereby of becoming owner.(d) In a "Missouri decision it was said that this provision of the Statute im- plies, it is said, a delivery of the thing sold on the part of the debtor, and an acceptance of it by the buyer, with an intention on the one side to part with, and on the other to accept the ownership of it ; and it is not enough that the mere •natural, actual, corporeal possession should be changed, but there must be a change of the civil possession, which is a hold- ing of the thing with the design of keeping it as o"wner.(e) So there must be a delivery by the sellers, and some unequivo- cal acts of ownership or control of the goods on the part of the purchaser.(/) The delivery must be accompanied by an ac- ceptance by the buyer with a view to the immediate posses- sion as owner.{g) There must be such acceptance by him as to show that he considers himself owner, and bound to take the goods. (A) The word " accept" means some act or conduct on the part of the buyer indicating an intention to retain the goods, or such as reasonably to lead the seller to suppose 30.{i) To satisfy the Statute of Frauds the goods must be delivered and accepted, and intended to become the buyer's property .(j) The acts of the parties must have been of a character as to unequivocally place the property within the power and under the exclusive dominion of the buyer.(/i;) The buyer must receive and retain the articles delivered, intending thereby to assume the title to them to constitute the acceptance men- tioned in the Statute of Frauds.(^ The mere receipt is not a compliance with the Statute of Frauds. There must be some act or conduct on the part of the buyer, indicating and mani- (d) Fawcett v. Glossop, 69 L. T. (h) Barnett v. Farley, 11 L. T. N. S. (Wakefield C. C.) 287. 107 ; 12 W. R. 748. (e) Cunningham o. Ashbrook, 20 (i) Bowes v. Pontifex, 3 F. & F. Mo. 558. 743. (/) Safford v. McDonough, 120 (j) Phillips v. Ocmulgee Mills, 55 Mass. 291. Ga. 636. ((?) Maberly r. Sheppard, 10 Bing. (t) Marsh v. Rouse, 44 N. Y. 646. 100 ; Phillips v. BistoUi, 2 B. & C. 513 Brand v. Focht, 1 Abb. App. Deo. 185 Jones V. Meoh. Bank, 29 Md. 293 Hewes v. Jordan, 39 id. 478. (0 Rodgers v. Phillips, 40 N. Y. (1 Hand) 523. 403 § 262.] LAW or THE STATUTE OF FRAUDS. [CHAP. X. festinghis intention on receivingthem toacceptthemabsoiutely and unconditionally in execution and full performance of the contract of sale. (m) The acceptance must be with intention to perform the whole contract, and assert the buyer's ownership under it.(>i) Delivery and acceptance may be sufficient if goods are taken with the intention of keeping them if up to sample, and they are in fact up to sample. (o) It is a question of inten- tion to be gathered from the facts, whether there has been delivery and acceptance. (p) It is a question for the jury whether the buyer has dealt with the property as his own. (9) Acts of ownership are evidence of acceptance, but acceptance is a fact, and can be shown by other evidonce.(7") Putting goods at the point of delivery on the seller's land is insufficient. (s) § 262. There must be both delivery and acceptance ;(<) and both parties must partake in the same act.(M) Though and accep- some doubt was perhaps at one time felt on the IsseDtS'' P*^'"*' i" England, the rule now is that there must be both delivery and acceptance. (t;) And it has been said that certainly unless accept means no more than received, as surely it must, for otherwise the word deliver would of itself have sufficed, acceptance must mean some act or conduct on the part of the buyer indicating an intention to retain the goods, or such as reasonably to lead the seller to suppose so.(w) To constitute acceptance two acts are neces- (m) Stone w. Browning, 68 N.Y. 600, Mech. Bank, 29 Md. 293; Knight c. citing cases. Mann, 118 Mass. 143 ; S. C, ]2U Mass. (n) Townsend i\ Hargraves, 118 219 ; Messer r. Woodman, 22 N. H. Mass. 332; Atherton .. Newhall, 123 181; Gilman o. Hill, 36 N. H. 317; Mass. 142. Baker v. Cuyler, 12 Barb. 668 ; Pitney (o) Bacon o. Eccles, 43 Wis. 233, c. Glens Falls Ins. Co., 61 id. 343 ; citing Smith v. Stoller, 26 Wis. 671 ; Marcus v. Barnard, 4 Rob. Sup. Ct. see Remick r. Sandford, 120 Mass. 315 ; 219 ; Brand v. Focht, 1 Abb. App. Dec. 118 id. 107. 186 ; Smith v. New York Cent. R. R., 4 (p) Phillips V. Ocmulgee Mills, 55 Abb. App. Dec. 266 ; 4 Keyes, 180 ; Ga. 636. Rodgers v. Phillips, 40 N. Y. (1 Hand) ((/) Baines v. Jevons, 7 C. & P. 289. 523 ; Caulkins i'. Hillman, 47 id. 449 ; (r) Pinkham v. Mattox, 53 N. H. Hawley ;■. Keeler, 53 id. 119 ; Stone v. Browning, 68 id. 600. 602. (s) Pike V. Vaughn, 39 Wis. 503. («) SafFord v. McDonough, 120 Mass. (0 Maberly <•. Sheppard, 10 Biug- 291. ham, 100; Tempest v. Fitzgerald, 3 (v) Baldey r. Parker, 2 B. & C. 40. Barnwell & Alderson, 682; Jones v. (w) Bowes t;. Pontifex, 3 F. & F. 743. 404 CHAP. X.] DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 263. sary, the goods must be accepted and actually received.(a;) No act of the seller will amount to acceptance. (?/) In a New York case it was said that a mere delivery of the property contracted to be sold by the terms of the void contract has been held to be insufficient to vest the title to it in or place it at the risk of the vendee. But beyond that it became neces- sary, under the rule adopted by the statute, that some part of the property should not only be delivered and received by the vendee, but that it should also be accepted by him. This acceptance of it involved something more than the act of the vendor in the delivery. It required that the vendee should also act, and that his act should be of such a nature as to indicate that he received and accepted the goods delivered as his property. He must receive and retain the articles delivered, intending thereby to assume the title to them to constitute the acceptance mentioned in the Statute. (2) The Statute of Frauds of Iowa has the word " deliver" only, and not the word " accept."(a) § 263. Mere delivery without acceptance is insufficient.(6) That the buyer refuses unreasonably to accept makes no difierence.(c) As will be seen later, the fjfuseun-^ right to refuse to accept remains though the goods i'J'''^°2.'^'l^^' i are sent to the buyer or to a place named by merede- livGrv him.(c?) " Acceptance is taking to the goods and though to {x} Kaufman v. Stone, 25 Ark. 346 ; tance without receipt, the sale of a see Strong v. Dodds, 47 Vt. 354. specific lot of goods identified by the (y) Shepherd 11. Pressey, 32 N. H. 49. bargain itself, citing Cusack «. Robin- (z) Rodgers a. Phillips, 40 N. Y. (1 son, and Cross, v. O'Donnell as to this Hand) 523. last ; it may be questioned whether (a) Bullock V. Tsohergi, 13 Fed. there is any real value in the points Rep. 345, C. C. D. la., saying that ac- thus made. ceptance was a mental act, and that (i) Caulkins v. Hellman, 47 N. Y. the danger of fraud was sufficiently 449 ; Heermanoe v. Taylor, 14 Hun, guarded against by the word " de- 149; Gorham d. Fisher, 30 Vt. 428. liver." In Simpson v. Krumdick, 28 (c) Gribbs v. Benjamin, 45 Vt. 130; Minn. 353, it was said that there might Cunlifi'e v. Harrison, 6 Exch. 905; be receipt without any acceptance, Remick v. Sandford, 120 Mass. 315 ; and acceptance without any receipt, 118 id. 107 ; Stone v. Browning, 68 N. citing Blackb. Sales, 22, and giving Y. 600. as an instance of the former a sale by (d) Hart v. Bush, E. B. & E. 498 ; 27 sample, and as an instance of accep- L. J. Q. B., 272; Grover v. Cameron, 6 405 § 264.] LAW OF THE STATUTE OF FRAUDS. [CHAP. X. buyer's approving them," said Judge Patteson.(e) Delivery indicated to a buyer when non compos mentis is insuffi- byhi.n. cieut.(/) A promise to accept goods followed by a delivery at vendee's house, is not an acceptance if the vendee when he knows that the goods were so delivered, refuses to take them.(^) § 264. Mere delivery at the buyer's premises is not suffi- cient ; where the goods by the buyer's order were of'mere'* prepared, measured, and put on the seller's wharf insuffl-^ for a third person to take away, who, however, re- cientto ceived no advices from the buyer.(/i) Where the satisfy the ,, , , , ^ ■,,,,, i Statute of seller, at the buyers order, surveyed the boards sold and marked them with the buyer's name, and gave orders to have them shipped as the buyer had directed, and the buyer had procured no one to receive or ship the goods, there was no sufficient deliveiy and acceptance.(i) Putting the goods in the buyer's shed is insufficient.(/) So where wood was ordered by the buyer's agent, and the seller hauled it to a place on the buyer's property, but nothing was done by the buyer.(A) Where barley was sold by sample, and was sent to an elevator; the defendant procured from the plaintiff a delivery order, and the cai's with the grain were sent to the defendants' warehouse, and the grain examined by the defendants and sent back as not up to sample, the jury found that the place of delivery was the defendants' ware- house and not the elevator ; the cars were left on the ti'ack, and the grain in them. There was held to be no delivery and acceptance to satisfy the Statute of Frauds.(?) So where the seller deposited the goods in the highway at a place desig- U. C. K. B. 0. S. 197 ; Edwards c. (h) Cooke v. Millard, 5 Lans. 245. Grand Trunk R. W., 54 Me. Ill; (i) Howard u. Borden, 13 Allen, 299 ; Delventhal v. Jones, 53 Mo. 462 ; Fin- see Jackson v. Covert, 5 Wend. 141. ney v. Apgar, 2 Vroom. 270 ; Oilman (j) Oilman v. Hill, 36 N. H. 317. u. Hill, 36 N. H. 317 ; Jackson u. (ifc) Edwards v. Grand Trunk R. W., Covert, 5 Wend. 141. 54 Me. 111. (e) Sadler v. Whitmore, 5 Jur. 315. (I) Taylor ;;. Mueller, 15 N. W. Rep. (/) Matthieson v. McMahon, 38 N. 413 ; 30 Minn., 343 ; distinguishing J. Law, 540. Morton v. Tibbett as a case of sale. (g) Ham v. Van Orden, 4 Hun, 710, citing cases. 406 CHAP. X.] DELIVERY AND ACOEPTANCB OF CHATTELS. [§ 265. nated by the buyer, and the latter was informed of the fact, and promised to pay for the artTcles.(m) Merely bringing the goods to a place indicated in the agreement of sale is insuf- ficient.(w.) But it has been held that while such a delivery as a general rule is not sufficient, yet if, as actually made, it complied with the contract between the parties, the Statute of Frauds would be satisfied. (o)/ So if it was agreed that the goods were to be taken by the vendor to a place specified, it does not necessarily follow that the title did not pass so far as the Statute of Frauds is concerned; the intention of the parties was a fact for the jury.(/5)/ But it would seem that these two decisions are open to the criticism that, instead of finding the contract from the nature of the acceptance, they first determine the nature of the acceptance from the oral proof of the contract, and then having proved the acceptance from the contract, proceed to prove the contract from the acceptance.(23') § 265. There must be delivery as well as acceptance,(5) and with the seller's assent. (?■) Where there has been no delivery, there is no opportunity to the buyer to be deUvery, exercise his right of exami nation. (s) Where the aeceptance (m) Finney v. Apgar, 2 Vroom, 268 ; to the buyer, this being the course of see NichoUs i . Plume, 1 C. & P. 272 ; dealing between the parties ; the seller Montgomery v. Ricker, 43 Vt. 167. became bankrupt, and the buyer sent (n) Hart v. Bush, E. B. & E. 496 ; his agent to the seller's land to dress Shepherd v. Pressey, 32 N. H. 55 ; Del- the marked timber and deliver it to venthal u. Jones, 53 Mo. 462 ; see him, the buyer ; it was held that this Grover v. Cameron, 6 U. C. K. B. 0. S. latter act had no effect in transferring 197 ; Harvey v. St. Louis Butchers' the title in the trees, that there was Asso., 39 Mo. 217. not delivery and acceptance, and that (o) Anderson ;;. Hodgson, 5 Price, the trees passed to the seller's assignee 630. in bankruptcy ; Acraman v. Morrioe, 8 ^{f) Dyer v. Libby, 61 Me. 45 ; see C. B. 449. It would seem that this Fipney v. Apgar, 2 Vroom, 272. case did not depend upon a question of (pi) See Grimes v. Van Vechteu, 20 the Statute of Frauds, because there Mich. 413. was a payment which should have (?) Clark V. Tucker, 2 Sandf. 157, as satisfied the latter ; but that there was to acceptance before delivery see § 291. not the preparation on the seller's part (r) And thus where the buyer of which was necessary even at common certain felled timber sent Jiis agent to law to pass the title. mark the portions he intended to buy, (s) Knight v. Mann, 120 Mass. 219 ; i. e., the trunks ; the seller then cut 118 id. 143. off the branches and sent the trunks 407 § 267.] LAW OP THE STATUTE OF FRAUDS. [CHAP. X. goods had already been in the hands of the buyer before the sale, as where he was the tenant of the seller, or where there was a resale between the parties,(<) there may be ac- ceptance or taking to the goods on the part of the buyer, so as to satisfy the Statute of Frauds, though the act of delivery can scarcely be said to have taken place. (m) Thus, where a sale of a house as personal propertj' was made to the person then living in it, it was held in a Wisconsin case that the contract was good, though there was no writing or part pay- ment, as there was acceptance and delivery, the law not re- quiring the ceremony of a moving out and in again on the part of the vendee ; but this ruling is not to be accepted with- out much consideration. (w) § 266. The necessity of delivery, as well as of acceptance, comes up in a somewhat curious way in those cases amples'' of which are affected both by the Statute of Frauds neceesityof and a prohibitory Hquor law. Thus, where the law both dehv- '^ . . . . ery and of lowa prohibited the sale of intoxicating liquors, "^"^ "" ' and the Statute of Frauds of Iowa made a verbal sale of goods non-enforceable, and the goods were shipped in Wis- consin by rail to the defendant in Iowa, who accepted them, it was held that the acceptance did not relate back to validate the delivery in Wisconsin so as to make the contract a Wis- consin contract; and this, though the contract was invalid, and only made valid by the delivery and acceptance, and the only act in Iowa was the acceptance, the delivery was no- thing; the contract was originally made in Iowa, and there the acceptance took place. (?<;) § 267. Delivery sufficient to pass title at common law is not sufficient without acceptance to satisfy the Statute of Frauds. (a;) (() See Salter c . Woollams, 2 M. & manual possession of the goods, which G. 655, see notes ; and Mayfield a. he resold to the original seller. Wadsley, 3 B. & C. 361 ; 5 D. & R., (u) Snider v. Thrall, 56 Wis. 6V6. 224; see § 270 u. (g) ; Taylor i;. Wake- [w) Keiwert ,-. Meyer, 62 Ind. 587; field, 6 E. & B. 769 ; § 270 n. (if. see GarBeld v. Paris, 96 U. S. 563. (u) Couillard o. Jolinson, 24 Wis. (x) Lloyd v. Wright, 25 Ga. 217 ; 540; see Smith v. Bryan, 5 Md. 141, Audenreid v. Randall, 3 Cliff. 103; for the converse case, where under the Bass v. Walsh, 39 Mo. 198 ; Rodgers original sale the buyer had never taken u. Phillips, 40 N. Y. (1 Hand) 523. 408 CHAP. X.J DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 268. Statute of Frauds. In order to constitute an acceptance and receipt under the Statute of Frauds, it is not enough that the title „ i- ' » Delivery in the goods has vested in the buyer, but he must sufflcientat , Till • ci , T coramou have assumed the legal possession ot tnem.(y) in a law to pass Missouri decision it was said that although at com- neees'sariiy mon law consent alone was sufficient to constitute suffi"™j; under the a valid sale, the Statute of Frauds has now inter- vened, and other formalities are prescribed which must be observed, or what was before a valid transfer of pro- perty is now of no validity'. The Statute beginning where the common law stopped requires some one of these solemni- ties to be added to the transaction before it shall be considered as complete, so as to efiect a change of ownership; and the matter here relied upon, as the Statute evidence of the com- pletion of the contract was the change of possession. (2) In a case in 3 Clifford the court said : " The proposition of the defendant is where manual possession of the goods is not taken by the buyer, there must be something more than would be sufficient to constitute a delivery and to change the property at common law, and if by that it is only meant that a sale may be valid at common law as between the parties, and the contract still be within the Statute of Frauds, the proposition may well be admitted."(a) § 268. The acceptance necessary to lay ground for an action for goods sold and delivered and that required by Aecept- the Statute of Frauds are the same.C^) ; though a ^nce, etc ^ J ' n suineient to part delivery and acceptance may satisfy the Statute lay ground ir-rni T . r 111TT f"'" action ot J^ rauas, and yet no action tor goods sold and de- for goods livered lie.(c) Where the case was taken out of deUvered. (y) Rodgers v. Jones, 129 Mass. 420. {z) Cunningham u. Ashbrook, 20 Mo. 658. In Mississippi it was held that delivery of chattels was not neces- sary to pass title as the 17th section of the Statute of Frauds was not in force in that state ; Ingersoll v. Kendall, 13 Sm. & M. 617 ; see Kaufman v. Stone, 25 Ark. 346; Hurlbut -,. Simpson, 3 Ired. 236. But as to necessity of de- livery to pass title at common law, see Kane v. Drake, 27 Ind. 31 ; Haydou u. Crawford, 3 U. C. K. B. 0. S. 588. (a) Audenreid v. Randall, 3 Cliff. 100; see Safford {Ex p.), Downing (Re), 2 Low. 564. (6) Clark v. Wright, 11 Ir. C. L. 405, citing oases ; see Cunliffe v. Harrison, 6 Erch. 905 ; 3 Wait, Act. and Def., 526. (e) Elliott r. Heginbotham, 2 C. & K. 546 ; and so Patteson, J., observed 409 § 270.] LAW OF THE STATUTE OP FRAUDS. [CHAP. X the Statute of Frauds by part payment, and though the vendor refused to deliver without payment, it was held that the price having been agreed upon, and the vendee having nothing against the chattel except the price, an action lay for goods bargained and sold.(rf) § 269. The refusal to accept goods which have been deliv- ered should be promptly made.(e) The buyer has acSpT\io°w ^ reasonable time in which to examine his pur- soon to be cbase.(/) And so where the delivery has been by bill of lading.(^) The non-communication to the seller by the buyer of his refusal is a point against the latter.(/i) Though a refusal to accept should be prompt, a usage allow- ing a testing which would occupy some time was recognized. (i) For examples of a delay considered as not working as an ac- ceptance, see the note.{j) Whether delay in sending back a bill of lading taken with other circumstances, such as negotiations between the parties, amounts to delivery and acceptance, so as to satisfy the Statute of Frauds, is a question of fact for the jury. (A) The retention of goods bought at auction for seven days will justify a jury in finding an acceptance. (f) For ex- amples of such delay as will cause the buyer's acts to amount to an acceptance, see the note.(ra) § 270. That the buyer may accept so as to satisfy the Statute of Frauds, and yet leave the goods bought in the possession of in Curtis v. Piigh, 10 A. & Ell., N. S. {g) Rodgers l\ Phillips, 40 N. Y. 113 ; see Anderson v. Scott, 1 Campb. (1 Hand) 523, citing cases. 235, n. (A) Norman v. Phillips, 14 M. & W. (rf) Elliott V. Pybus, 10 Bingh. 516, 277. citing cases. (i) Coleman v. G-ibson, 1 M. & Rob. (e) Smith -,.. Hudson, 6 B. & S. 445 ; 169. 34 L. J. a. B., 145 ; Currie o. Ander- (j) Rickard v. Moore, 38 L. T. Rep., son, 2 E. & E. 599 ; 29 L. J. Q. B., 90 ; N. S. 841 ; NichoUs v. Plume, 1 C. & Treadwell v. Reynolds, 39 Conn. 34 ; P. 272 ; Cunliffe c. Harrison, 6 Exch. Gaslin v. Pinney, 24 Minn. 323 ; Hay- 905. man v. American Sponge Co., 6 N. Y. (k) Borrowscale f. Boswortli,99 Mass. Weekly Dig. 358 ; Spencer v. Hale, 30 381. Vt. 317. (0 Service v. Walker, 3 Vict. L. R. (/) Bowes ,,. Pontifex, 3 P. & F. Law, 185. 743 ; see Curtis v. Pugh, 10 A. & Ell., (m) Baylis v. Lundy, 4 L. T., N. S. N. S. 113. 176 (K. B.) ; O'Brien v. Barker, 4 New 410 Zeal. Jur., N. S. 64. CHAP. X,J DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 270. the seller, is possible ; but in such a case it is generally very difficult to establish the line of demarcation which „ , . , , ,. Examples separates those transactions, in which the delivery ofsufflcient and acceptance is considered sufficient, and those in with tbe which it is not. It has been said that to make the l^^'uds-^ seller bailee for the buyer there must be a new ^e""^'' I'oi'J- " , ing:as bailee agreement.(/i) The following examples show a suf- for the ficient delivery and acceptance. Thus, it has been held that the seller may become bailee for the buyer.(o) And it has been said that it is true there may be cases in which the goods remain in the possession of the vendor, and yet may have been accepted and received by the vendee. But in such cases the vendor holds possession of the goods, not by virtue of his lien as vendor, but under some new contract by which the relations of the parties are changed. (2?) Where there was evidence of the sale of a horse, and that immediately upon the bargain being made the vendee lent the horse to the ven- dor, it was held to be correct to leave it to the jury to say whether the sale had been completed, though the vendor re- mained in possession all the time.(5') In an English decision, given not long after that just referred to, the court said : " In the present case the defendant purchases goods of the plain- tiffs, and hearing from them that they had before consigned goods to Messrs. Hanson & Co., at Constantinople, desires the plaintiffs to make out the bill of lading to that firm. The defendant also sent goods of his own to the plaintiffs' ware- house, which were, by his direction, sent down to the same ship with the goods purchased by him of the plaintiffs. All the goods were put on board together, and in the bill of lading those other goods of the defendant were included with the goods the subject of the piresent action. The plaintiffs paid the freight in the first instance, and the defendant repaid them, and thereupon received from them the bill of lading. "(r) Where by the custom of trade goods sold remain with the (re) Smith v. Bouck, 33 Wis. 25, S. C, sub nom. Wallace, 25 L. J. Q. B. citing cases. 369, relying on Elmore f. Stone. See (o) Janvrin v. Maxwell, 23 Wis. 53. n. {t). (p) Safifordu. MoDonough, 120 Mass. (r) Currie v. Anderson, 2 E. & E. 291, citing cases. 599 ; 29 L. J. Q. B., 90. (?) Marvin v. Wallis, 6 E. & B. 733 ; 411 § 270.] LAW OF THE STATUTE OF FRAUDS. [CHAP. X. seller, by way of pledge for the price, the Statute of Frauds may be satisfied ; in the particular case there was a part payment. (s) There is a distinction to be made where the seller, though retaining the goods, put them in a place separate from his other property, and upon this ground went the much-criticized case of Elmore v. Stone. There the plaintiff having sold a horse by parol moved him, at the defendant's direction, from his sales-stable to his livery stable, and it was held sufficient delivery and acceptance to satisfy the Statute of Frauds.(<) So where the defendant by his agent bought a billiard-table from the plaintiff, which table was then standing in a room of the plaintiff's premises, it was held that taking the table down, and putting it away in another room of the same build- ing till defendant should call for it, was sufficient acceptance and deliver3'.(M) In a decision in the Exchequer Chamber reversing the Exchequer, it was jjeld that, under the following circumstances, there was evidence for the jury of acceptance and delivery : the sellers had a bonded warehouse to which both the plaintiffs, the sellers, and the customs officers had .keys, and where the sellers kept goods belonging to third per- sons as well as their own ; the goods in suit had been sold to the defendant by the plaintiffs' traveller.(i') Where goods were orally sold by the plaintiff to the defendant, and were removed to a warehouse belonging to a third person, and which was used by the defendant, and the goods were wrapped in coverings belonging to the latter, there was sufficient de- livery and acceptance. (u;) The following are some further examples of sufficient acceptance : Thus, where the goods sold were moved to another part of the seller's store, and stored for the buyer's use.(x) So where this was done, and an entry of the sale was made by the seller in his book, and the buyer had sold to a third person. (y) So where the seller entered (s) Mofifatt {Ex p.), Tate (Re), 2 M. (y) Castle v. Sworder, 4 L. T., N. S., D. & De G. 176. SC.s ; S. C. below, 5 H. & N., 285 ; 29 (0 1 Taunt., 460; see BuUard v. L. J. Exoh., 237. Walte, 16 Gray, 57; Shepherd v. Pres- (ui) Dodsley v. Varley, 12 A. & Ell. sey, 32 N. H. 49. 633. («) Stewart u. Laborde, 1 Ril. (S. (x) Janvrin v. Maxwell, 23 Wis. 51. Car.) Dig. 360. (y) Wylie v. Kelly, 41 Barb. 598. 412 CHAP. X.] DELIVERY AND ACCEPTANCE OP CHATTELS. [§ 270. the sale in his account with the buyer, the latter went through the seller's store calling off the goods, and the seller offered to the buyer the key of his store where the goods were, who de- clined it because the store was not insured, and the seller then directed his clerk to keep the key for the vendee, it was held that there was enough evidence of delivery and acceptance to go to the jury.(2) So where the seller held the goods at his store at the buyer's risk, and the latter removed some which he returned.(a) In a Maine case the rule was pushed to an extreme, and a sale held sufficient where the vendor kept the chaise sold till a vendee could build a shed for it, as the ven- dee could at any time take possession of it ; the property was delivered, though the vendor kept it as a favor to the vendee. The only loop on which the theory of delivery could be hung was that the chaise was in a stable attached to the plaintiff's house, where the defendant could get it whenever he might want it ; nothing was done, though by words the sale was concluded. (6) Where, in a replevin, the evidence showed an (z) Gray v. Davis, 10 N. Y. 285. (a) Jackson v. Watts, 1 McCord, 298. In a case in 2 Lowell it was said, that " the single question in this case is, whether the goods had been accepted and received by Downing within the meaning of the Statute of Frauds. They had been weighed in his presence, and the precise hides agreed on, and the shrinkage ascertained. At his request, though whether in his presence or not is not quite clear, they had been set apart from all other goods, and marked with his name, and he was to take them when he pleased to send his car- rier for them. No delivery could be more complete unless they had come into his personal possession, and I do not understand it to be denied that, at common law, the property would have passed. " The cases are many where a sale, or a mere offer to sell, or a request by the vendee to the vendor to sell on his ac- count, and various other acts of own- ership, have been held sufficient for that purpose, though the goods re- mained in the actual possession of the vendor or of a middle-man." In this case the seller's general in- surance was agreed to cover these goods for the buyer's benefit, the goods re- maining with the seller ; this was evi- dence for the jury of acceptance ; {Ex parte) Saiford, (He) Downing, 2 Low. 564. (6) Means v. Williamson, 37 Me. 557. The two following cases, while like this last, have a better support on their facts. Thus, in Wright c. Percival, 8 L. J. Q. B. 258, it was held that (to quote the syllabus) "the defendant having agreed to buy a carriage of the plaintiffs, came after it was finished to the plaintiffs' manufactory, bring- ing with her a cover for the hind seat and a set of traces which the carriage had been previously made to fit. One of the plaintiffs said the carriage was complete ; the defendant got into it, 413 § 270.] LAW OF THE STATUTE OF FEAUDS. [chap. X. agreement on Saturday, whereby two horses were exchanged, and as part of the consideration a debt of fifteen dollars owed by the defendant to the plaintiff was discharged ; the defend- ant was authorized to take the horse in suit which was at the plaintiff's stable; the next day, Sunday, the defendant took the horse ; the discharge of the debt was held to have taken place on Saturday ; and even if the delivery and acceptance did not occur till Sunday, the latter was not invalid, because occurring on Sunday. (c) Where the cattle sold were separated from those of the vendor, marked with the vendee's mark, and put into a separate inclosure, a question of sufficient accep- and said it was a very nice one. The defendant then desired the plaintiff to order post horses to take it home, stat- ing tliat she would call at half-past four in the afternoon ; she added that she had brought a cover to put over the hind seat, and directed that it should be put over twice doubled. The cover was accordingly put over the seat in her presence and agreeably to her direction. The afternoon having proved wet, at five o'clock the defendant came to the plaintiffs, and stated her inten- tion, owing to the badness of weather, not to take tlie carriage home that evening. The defendant afterward re- fused to pay the price demanded by the plaintiffs, and did not take the carriage away." It was held that these facts constituted a sufficient acceptance to satisfy the Statute of Frauds. In Beau- mont V. Brengeri, 5 C. B. 315, Colt- man, J., said, "that under the evi- dence, the seller held the chattel sold as warehouse-keeper for the buyer ; it was proved," he said, "that the de- fendant had seen the carriage, and had had alterations made in it, and had expressed his intention to use it a few times before embarking it, so that it might pass as a second-hand carriage ; and that, at his request, it was placed 414 by the plaintiff in his back shop, where it stood at the disposal of the defend- ant. It was further proved that, on Saturday, the 14th of November, the defendant called at the plaintiff's shop, and desired that a horse might be hired for him, and that the carriage should be sent to his house on the fol- lowing day (Sunday), which was ac- cordingly done. In considering whether the plaintiff had at this time agreed to hold the carriage as the defendant's agent, we may look at what took place on the Sunday. Is it reasonable to suppose that the plaintiff would have allowed the carriage to be used, which would have reduced it to the condition of a second-hand article if it had not been well understood between the par- ties that he had ceased to be the own- er." .Judge Maule also thought that the alteration made in the carriage and the use of it by the buyer showed an acceptance. See 'Webster v. Bailey, 40 Mich. 642, where the owner of the carriage borrowed it to drive home, and sevible the delivery and acceptance was sufficient. (c) Peake u. Conlan, 43 la. 298 ; see opinion of Maule, J., in Beaumont o. Brengeri, 5 C. B. 315. CHAP. X.] DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 270. tance arose for the jury.(rf) Semhle, that under the following circumstances there was evidence of sufficient delivery and acceptance, it having been agreed that the buyer should take the cattle from seller's land as he needed them, and seller having at the buyer's request twice moved the cattle to a particular point, on his, seller's, land.(e) Where the buyer of goods had them examined, put into good order, and indicated those which were in a worthless condition (which the seller took away) the delivery and acceptance was held to be suffici- ent ; there was, however, perhaps, a transfer into the buyer's possession of part which might validate the sale of the rest.(/) Where hay was sold for rent, and the tenant gave a written acknowledgment that the hay was the landlord's and agreed that it should remain on the land a certain time, this as be- tween the landlord who sold and the purchaser, was held a complete delivery, notwithstanding that afterwards the tenant would not give up the hay. Semble the vendee could have trover against the tenant and the Statute of Frauds was satis- fied. (^) Where the seller permitted the buyer, the defendant, to make certain trees into timber, it was held in the Common Pleas of Upper Canada, that the Statute of Frauds was satis- fied, though the timber was not removed from the seller's ground. (A) So, where the seller permitted the buyer to measure (rf) Rappleye a. Adee, 1 Th. & C. week, and Hall so fed them. And it was 126. thought that Hall under this arrange- (e) Bissell c. Balcom, 39 N. Y. (12 ment became Brown's bailee, and his Tiff.) 281, reversing 40 Barb. 98, citing possession Brown's possession. In Elmore u. Stone and Marvin c. Wal- Kealy u. Tenant, 13 Ir. C. L. 394, lace. See, also. Green v. Merriam, 28 the conrt refused to nonsuit where the Vt. 801. The following are some further buyer left certain heifers bought by examples of the sufficient delivery and him in possession of his own man, acceptance of cattle sold ; Thus in though at the same place where they Brown u. Hall, 5 Lans. 179, Hall, the had stood before the sale ; the cattle defendant, sold cattle to one Kinney, had also been branded with the buy- and on the following Monday, Kinney er's initial by a third person who stood and Brown went to Hall's, and Kinney helping the sale, droveaway ten cows, and paid for their (/) Chase w. Willard, 57 Me. 161. keeping, and Brown agreed to be re- (g) Salter v. Woollams, 2 M. & G. sponsible to Hall for the keeping of the 655, see note. See Mayfield r. Wads- two; and Brown contracted with Hall ley, 3 B. & C. 361 ; 5 D. & R., 224. to further feed the two for him for a (A) McCarthy u. Oliver, 14 U. C. C. few weeks, at seventy -five cents per P. 292. 415 § 270.] LAW OP THE STATUTE OF FRAUDS. [chap. X. timber, mark it with his initials, and expend money in having it squared. (z) Where the buyer brought a third person to look at the goods in suit, and offered to sell him, it is a ques- tion for the jury whether there was or not sufficient aceept- anee.Q) In a case in 6 Ellis & Blackburn, Erie, J., said that "wherever goods in the hands of a person as lessee or bailee, with a parol contract for the purchase of those goods, which is not yet binding, if the purchaser takes to the goods as such, and changes the character in whicli he holds them, it is an acceptance as against him :" Crompton, J., said, " when goods are sold by parol and nothing remains to be done before the delivery, if the goods are already in tlie hands of the ven- dee, he may take to them under the contract, and it is an ac- ceptance and receipt by the authority of both parties." (^) (0 Cooper r. Bill, 3 H. & C. 729. (J) Blenkinsop v. Clayton, 7 Taunt. 598. Though such a mere offer with- out more is not enough, it was held in the Upper Canadian Queen's Bench, Clarkson v. Noble, 2 U. C. Q. B. 364, citing cases. (k) Taylor v. Wakefield, 6 E. & B. 769, citing Edan v. Dudfield and Marvin r. Wallis. Where as in tlie case last given, the two parties reside on the same land, or where, as in Salter c. Woolham, supra, the buyer or seller is tenant of the other's land, the question is, perhaps, not so much whether there has been an acceptance as whether there has been a delivery, and it may be well to look at that head of this subject (§ 265) ; in another case, Web- ster V. Anderson, 42 Mich. 555, belong- ing to this category, Judge Cooley of the Supreme Court of Micliigan gave the following decision : — " The facts as found by the Circuit Judge, are that in October, 1877, Anderson was at work in Hooper's em- ploy on a farm ; that Hooper then owed him $100; that Anderson requested Hooper to pay him ; and it was agreed "between them, that the latter should 416 transfer to him twenty hogs then on his place, with others, at the price of $96, and that Anderson should receive them at that price ; that the parties went where the hogs were, and those to be taken by Anderson were pointed out and specified, and Hooper charged Anderson the purchase price on ac- count ; that it was a part of the arrangemant that the hogs should re- main in the same pasture as before with the other hogs, and be fed and cared for by Anderson with the others, until the opportunity should be found for selling them. The whole agree- ment between the parties was oral. "The circuit judge was of opinion that there was a sufficient transfer of possession of the property to constitute a delivery under the circumstances. We agree in this view. It was all delivery that could well have been made under the circumstances, without requiring Anderson to remove the hogs from the farm where he was employed, to some other place, where they would have been less in his possession than where they were ; and for this there could have been no sufficient reason. The case is within the reason of Adams CHAP. X.] DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 271. Where the plaintiff having sold goods to F. and M.,and being engaged in getting them ready, the goods came into the possession of the defendant; F. and M., in order to avoid a suit with the latter, resold by parol the goods to the plaintiff; it was held that the defendant could not object that this re- sale was within the Statute of Frauds, inasmuch as there was a doubt whether the goods had been separated and delivered so as to give a good title to F. and M., and that even if their title thereto was good, yet as the plaintiff was engaged in delivering the goods (logs) when the defendants took them, the possession as between the plaintiff' and F. and AL was in the former, and therefore no further delivery to satisfy the Statute of Frauds was necessary or possible.(i) § 271. The case of a resale by the buyer to the sellec givea rise to special doubts. Thus, where the defendant had goods of the plaintiff in his hands, and it was agreed that he should sell them to pay a debt due by the plaintiff to the defendant, it was afterwards agreed that the latter should buy them himself at a price named, and he sold the goods, and delivered an account to the plaintiff^ in which he debited himself with the sale, describing the goods, and adding " sold " and the price, but not saying to whom, it was held that this was suiBcient evidence of delivery and accept- ance to take the case to the jury.(m) The defendant sold to the plaintiffs a quantity of tea, and agreed that if the plain- tiffs, after trying to dispose of the same, had any left upon their hands at a certain date, he, the defendant, would repur- chase it at an advance of ten cents per pound. The tea was delivered, and upon the defendant's refusal, to buy back what was left on the plaintiffs' hands at the date named this action was brought for the breach. It was held that the whole agreement consisted of one conditional contract of sale and not of two contracts, and that the delivery of the tea by the defendant, therefore, satisfied the Statute of Frauds.(n) Mining Co. u. Seuter, 26 Mich. 73. (m) Edan !•. Dudfield, 1 A. & EU., N, The delivery was held to be good as S., 305 ; 5 .Jur., 317, citing Elmore v. against a suhsequent levy by tlie em- Stone and otlier oases, ployer's creditor. (n) tumsden v. Davis, 1 Can. Law (0 Couillardy. Johnson, 24 Wis. 540. Times, 200 ; 46 U. C. Q. B. 1. VOL, I.— 27 417 § 272.] LAW OF THE STATUTE OF FRAUDS. [CHAP. X. § 272. So much is the nature of an acceptance, one depending upon the inference to be drawn from facts generally am les of doubtful, that it ia scarcely a matter for surprise that insuffl. the adjudicated cases should show every degree of cient de- . . -^ . i r ^ livery and apparent inconsistency. -No rule can be tramed acceptaDce. ^^^j^j^j^ ^^r^]] ^^i \,q dependent for all its value upon the mode in which it is applied. It seems best, therefore, a category having been given of transactions which were held to show a compliance with the Statute of Frauds, that the reader should have before him examples of such as do not amount to sufficient delivery and acceptance. No mere act of the seller, such as setting the goods aside, will alone be suffi- cieiit.(o) So where a buyer agreed to take all the sides of ileather of a certain thickness, which were not then set apart, (but formed part of a large pile from which they were after- iwards to be selected by the seller.(p) So where one K. was to ^iirry skins for defendants, which the latter had bought from t'ihe ,plaintifFs ; and these were put in a separate place in the wa.rehouse of the latter, and were to be sorted, and a different price paid for the different qualities, and K. sorted part, but not all; before the skins could be delivered two or three days' test- ing by the plaintiff's was necessary. K. came again, and was told thaft the skins were ready, and was asked as to when he would taJse them ; before he sent his team a fire in the plain- tiffs' premises destroyed the skins. (5') Where the defendant bought sevieral articles, each separately agreed on, and some were measuired in the defendant's presence, some he marked with a pencil, and others he assisted in cutting from a larger bulk, the Statute of Frauds was held to a])ply.(r) Where the agent of the plaintiff, the buyer, went to the residence of the seller, the defendant, and orally bought certain cotton not weighed at an estimated weight, to be corrected by actual weighing, the «otton was to remain with the seller at the buyer's risk, th« seller was to deliver the cotton, and in a certain event to receive pay for his hauling, the delivery and (0) Shepherd u. pressey, 32 N. H. 49. (7) Rodgera v. Jones, 129 Mass. 420. (/)) Atherton v. Newhall, 123 Mass. (r) Baldey v. Parker, 2 B. & C. 40. 140. 418 CHAP. X.] DELIVERY AND ACCBPTANOE OE CHATTELS. [§ 272. acceptance were held in8ufficient.(s) So where the gooda were not delivered when sold, because the vendee said that he did not want them so soon ; and the seller kept possession, but his agent separated and measured them.{t) Where the plain- tiff made a wagon for the defendant, and the latter, while the wagon was in the possession of the former, employed a third person to put some iron work on it, and the vehicle, after this work was done, remained in the plaintiff's possession to be (s) Bowers v. Anderson, 49 ffa. 145. (0 Howe V. Palmer, 3 B. & Aid. 323, distinguishing .Chaplin v. Rogers and Elmore v. Stone. Where an insurer defended on the ground tftat the plaintiff, Pitney, had no insurable interest in the chattels in- sured, because before they were burned he had sold them to T., through the latter's agent B., the Supreme Court of New York said: "No more was shown on that subject than that the farm on which the wool was stored was rented to B. from the 1st of April pre- ceding the fire, and he took possession on that day, jointly occupying the house with the plaintiff, however, un- til after the fire had happened. He was to look after the wool for T. ; and it appears that on the afternoon before the fire he procured the key of the wool-room from Mrs. Pitney, who re- tained possession of it, proceeded with it to the room, unlocked the door, went in and looked at the wool, then locked the door again and returned the key to the person from whom he had obtained it. This was all he had to do with the wool, as the agent or representative of the purchaser ; and it was obviously insuificient to constitute the acceptance of it, which is required by the authori- ties to satisfy the words of the Statute of Frauds. He did not, according to his own evidence, go to the wool-room to take possession of it for T., who had verbally promised to buy it, but sim- ply to look at it. And the fact that he returned the key of the room to the plaintiff's wife, after he had looked at it, very satisfactorily shows that he did not regard himself as having it in his possession, or as having accepted it on account of the purchaser ;" Pitney V. Glen Falls Ins. Co., 61 Barb. 343. The following example of insufficient delivery and acceptance is not without interest : In Lillywhite v. Devereux, 15 M. & W. 291, Lillywhite, the plaintiff, being yearly tenant to K., underlet house and furniture at a weekly rent to D. Lillywhite, anxious to get rid of the house at the end of the year, offered to sell his furniture to D. for £50 ; but D. said it was too much, and verbally agreed to take it at a valuation if K. would accept him as tenant instead of Lillywhite. The furniture was val- ued at £80, and D. refused to give it, and then offered £50. Before the expiration of the year Lillywhite's agent gave Devereux, executrix de son tort of D., the key, and told her ho must settle with Lillywhite about the furniture. K. refused to accept D. as tenant. D. afterwards used the house and furniture, continually notifying Lillywhite to take the latter away ; but D. finally sent it to a broker to be sold. This is an action by Lillywhite against the defendant, as executrix de son tort of D., to get the rent and the value of the furniture. 419 § 273.] LAW OF THE STATUTE OF FRAUDS. [CHAP. X. finished by him, it was held that the Statute of Frauds was not satisfied. (m) § 273. The following are further examples of insufficient delivery and acceptance. Thus, where the buyer of Further ex- <-i -ii ii ampies of oxen put his arm over one ot them, said he would delivery"" V^Y the price, and then lent them to the seller.(?;) So, and accept- -p^^ere the defendant agreed by parol to buy certain cattle of the plaintiff standing in the latter's field ; it was understood that the plaintiff should keep them till paid for ; the plaintiff allowed the defendant's servant to feed the cattle with his, plaintiff's, hay.(?o) So, where a horse was orally sold, and some time afterwards the defendant, the buyer, called on the seller, tried the horse's paces, directed a change in its outfit, and asked the seller's son if he would keep the horse a little longer, and promised to send for it at a certain time, but before he did so the horse died. (a;) So, where a horse was orally sold, and by the agreement the plaintiff, the seller, kept it, had it medically treated, and at the end of twenty days it was put to grass with a third person in the seller's name, because the buyer did not wish to be known as owning a race-horse.(2/) So, the buyer of horses left them in the seller's field, stables, etc., till the former should send for them, and it had been agreed that they should be kept at his, the buyer's, expense and ri8k.(^) So, sevible, where the cattle sold were left with the seller, while the buyer made up his drove.(a) So, where the buyer left certain pigs in the possession of the seller, and asked the latter's servant not to feed them for two days, at which time he Avould take them, which he never did. (6) That the seller, at the buyer's direction, takes the goods sold to another locality to sell for the buyer is not of itself a delivery and acceptance.(c) («) Maberly v. Sheppard, 10 Biiig. (y) Carter c. Toussaint, 5 B. & Aid. 100. 858. (!)) Phillips V. Hunnewell, 4 Greenl. (z) Malone v. Plato, 22 Cal. 103 ; 376. Kirby v. Johnson, 22 Mo. 354. (w) Holmes v. Hoskins, 9 Exch. 755, (a) Vincent u. Germoud, 11 Johns, distinguishing Elmore v. Stone. 283. (x) Tempest v. Fitzgerald, 3 B. & (J) Falls v. Miller, 2 Cr. & Dix, 417 ; Aid. 682. Ir. Cir. C. Rep., 606. 420 (c) Ely V. Ormsby, 12 Barb. 571. CHAP. X.J DELIVEKY AND ACCEPTANCE OF CHATTELS. [§ 274. § 274. The following are some general examples of such a taking: to and dealing; with the chattels on the buy- * * , ,. J •' General ex- er 8 part as amount to a deliver}' and acceptance ampies of sufficient to satisfy the Statute of Frauds. Thus, delivery where the defendant received and partly {semble) and accept- paid for goods ; then thinking them below sample he stored them at the sellers' risk, and wrote to the sellers, and, finally, after correspondence, said, unless instructed to the con- trary, he would sell them at their risk ; this he did, the sellers declining to take any action, and claiming the price; it was held that the defendant had no authority to sell the goods, and selling them in his own name, he was bound as by an acceptance.(f/) Where R., a debtor to both Jennings, the defendant, and Webster, the plaintiff, agreed with them to sell to Jennings certain staves for $75, and that the latter should sell these, and out of the returns should pay Webster the amount of $25 which R. owed him ; E., under this agreement, said to Jennings " I deliver you the staves," which were ten miles off; Jennings took them and sold them. It was held that the delivery was sufficient, possession having been taken by the vendee.(e) Where per- sons having a right to have goods sold, inspected, took and resold them, the delivery and acceptance is suffieient.(/) (d) Chapman v. Morton, 11 IT. & W. 534. (e) Jennings v. Webster, 7 Cow. 260. For an example of a new sale by the buyer making an acceptance, see Thornton v. Charles, 9 M. & W. 802. (/) Hill V. McDonald, 17 Wis. 100 ; and, as to reselling, see Wylie r. Kelly, 41 Barb. 598 ; Robinson v. Gordon, 23 U. C. Q. B. 147 ; see, also, M'Master v. Gordon, 20 U. C. C. P. 19, in which the court said: "I have no hesitation in saying that I think a very strong case was made out at the trial against de- fendants, as having both received and accepted the goods, at all events, so as to let in evidence of the oral contract, and satisfy the Statute of Frauds. " They received notice of the arrival at the station, in Toronto, and an in- voice describing all the pieces, and giving the price and number of yards. They contracted with parties for the sale of different portions. They leave them over three weeks at the station, and then take them to their warehouse and open them. " Next day they write to Harvey, certainly not refusing to take them, but, on the contrary, saying they would give something handsome to be out of them ; but there was one thing that they must have, that is the measure- ment allowance ; and that some twelve or fourteen pieces or ends were sent which they did not buy, and could not accept. I cannot possibly read that letter, except as the declaration of par- 421 § 274] LAW OF THE STATUTE OF FRAUDS. [CIIAP. X. Where the buyer resold to a third person, who took away part of the goods, though against the direction and without the knowledge of the former, the original sale is taken out of the Statute of Frauds.(.9') And where the plaintiffs, commission merchants of Paris, receiving from the defendants at Boston orders for silk and silk cravats, which the defendants ordered sent to W. & Co., at Havre, their, the defendants', agents; the plaintiffs ordered the goods of the manufacturers in Germany, who did not know the defendants in the matter ; the manu- facturers, at the plaintiffs' orders, sent the goods to W. at Havre, and sent the plaintiffs the invoices. Before the goods arrived at Havre the defendants directed the plaintiffs to in- struct W. to change the marks on the boxes, which W. did, and shipped the goods, and sent the defendants the bills of lading ; the defendants expecting both cases by one ship failed to inquire for the other case, which arrived in Boston, and was destroyed by the burning of the warehouse where it was stored. It was held that the plaintiff might recover the price of the goods. (/i) If the buyer so deal with the goods as to change their character he is liable for their price, as directing barley to be malted. (i) It is a sufficient delivery and accept- ties that they had to take them, and lost, the buyers were held as by a suf- were sorry for it, and claiming a trade ficient delivery and acceptance ; Tower allowance on the measurement. v. Tudhope, 37 U. C. Q. B. 207. "Then, after some correspondence (A) Low v. Andrews, 1 Story, 38. ■with Harvey, on the 28th of January, Where a buyer has received and sawed the defendant wrote : ' I decline these certain timber orally sold him he is tweeds now altogether.' liable for the consideration, which was "All these circumstances put to- to pay a certain sum to a creditor of gether would be fit to submit to a jury the seller ; DoUard v. Potts, 6 All. N. as evidence of acceptance." B. 447. ((/) Chaplin u. Rogers, 1 East, 194. (;) Fawcett t: Glossop, 69 L. T. 287 Where the buyers carelessly failed to (Wakefield C. C). take the goods which were afterwards In a case in 7 Carrington & Payne lost or destroyed, they may be liable the following charge was given the for the price as where goods were, jury: "We find that the defendant through the negligence of the buyers, takes a person to look at it, and say seized and sold by the customs au- who is likely to want it. You will say thorities, when, if the buyers had in- whether that is not a, dealing with it formed the sellers, the apparent fraud as his own ; and when another witness upon the customs laws could have been asks him wliat he is going to do with explained ; and the goods were thus it, the defendant does not say that it 422 CHAP. X.] BELIVERY AND ACCEPTANCE OF CHATTELS. [§ 275. ance where a grave-stone is made and put over a grave in accordance with the defendant's directions, and is repeatedly approved by him after it is put up.(_;') For further examples of sufficient delivery and acceptance, see the cases in the note below. (A) § 275. The following are some general examples of delivery and acceptance held to be insufficient, as where the parties to the contract did no more than make prep- arations for moving the goods sold.(^) Mere prepara- tion by the seller, as in smoking hams, is insufficient, though iu the case in question more smoking was had, and a special kind of wood used at the suggestion of the buyer.(m) It is a question for the jury whether the buyer's act in spreading out to dry certain seed bought was an act of acceptance, or merely one of kindness to the vendor to save his seed.(n) Taking samples of wines and writing prices on labels is not a sufficient aceeptance.(o) Where the driver, who was delivering a chattel to the defendants, broke it while en- tering their yard, there was no delivery and acceptance to What acts insufficient to make a good deliv- ery and acceptance. is not his ; but he replies, ' I know what I am going to do with it.' And, in his observations to Mr. Meal, he speaks as if it were his own. You will consider whether tliis convinces you that the defendant treated this fire engine as his own, and dealt with it as such ; for, if so, the plaintiff is enti- tled to a verdict ; Baines v. Jevons, 7 C. & P. 289. Cj) Barkalow a. Pfeiffer, 38 Ind. 221. (/;) U. S. Reflector Co. v. Rushton, 7 Daly, 412; O'Brien o. Credit Valley R. W., 25 U. C. C. P. 288; Mushat v. Brevard, 4 Dev. 76 ; Gray v. Payne, 16 Barb. 277. (0 Dole V. Stimpson, 21 Pick. 384. (m) Kellogg V. Witherhead, 6 N. Y. S. C. 526. But as to the latter-point quaere, see § 256-7, § 247. (n) Parker u. Wallis, 5 E. & Bl. 26. (o) Simonds v. Fisher, cited in Gard- ner V. Grout, 2 C. B., N. S. 342. Where A. wrote B. offering to sell twelve firkins of butter at a certain price. B. replied saying that he would take ten at a lower price. A. sent twelve firkins by a carrier who refused, according to the custom of his business, to break a parcel and deliver ten fir- kins. B. tested the butter and found it inferior. The carrier carried the butter back to A. B. subsequently wrote A., returning the invoices sent, and saying that the butter was inferior. A. wrote, and B. wrote again, saying that the butter was not according to A.'s original offer, and on this ground, and because there were two firkins too many, he refused to take the butter. A. wrote again off'ering to take back the two firkins, but insisting that B. should take the ten. Held, that there was no acceptance to satisfy the Statute of Frauds, the memoranda apparently not being claimed to be sufficient ; Gorman v. Boddy, 2 C. & K. 145. 423 § 276.J LAW OP THE STATUTE OF FRAUDS. [CHAP. X. satisfy the Statute of Frauds ; the article was to be paid for on delivery. (i?) Where a tender of raerchaudise was refused, the vendee saying that he had not time to attend to the matter, but would send for the goods as soon as he needed them, there is not a sufficient delivery and acceptance to satisfy the Statute of Fraud8.(^) Merely offering the goods for sale will not bind a buyer who states that he has not accepted them, and that the new sale must depend upon the assent of the original seller. Lord Justice Thesiger remarked that(r) while the buyer's con- duct might have been wrongful, it did not show an acceptance. Where the vendee examined the goods and told the ware- houseman, the seller's agent, to do nothing for the present, and he, the vendee, was in an insolvent condition, and the court thought that he did not mean to accept unless he could arrange with his other creditors, there was held to be no ac- ceptance. (s) For other examples of insufficient delivery and acceptance, see the cases in the note.(/) § 276. There is no acceptance and delivery while anything \ d li r i"Gmains to be done by either party to ascertain the and accept- goods.fif) The buyer's risht to examine is inviola- ance while 7, 1,, i , anything ble. ihus, wlicre by the terms of a verbal contract beToneto of Sale of goods the vendees were to examine the ascertain goods at their own store before givino; a note for the goods ; ° o s weight, the price, receipt at the store is no acceptance : that measure- . , i i i i i • n ment, and the goous werc what they should have been in all separation. pggpg^.|^g jg immaterial.(^;) The quantity of the goods must be first ascertained ;(w) though this may not always be necessary, as where a certain drove of cattle is sold irre- {p) Grey c . Cary, 11 Reporter, 104 (() Flintoft v. Blmore, 18 U. C. C. P. (C. P. N. Y.). 281 ; Wegg v. Drake, Itl U. C. Q. B. (7) Scotten c: Sutter, 37 Mich. 530, 2hZ. distinguishing Elmore v. Stone, Marvin («) Prescott r. Locke, 51 N. H. 96. !•. Wallis, Turley v. Bates, Lingham i.. (v) Stone v. Browning, 68 N. Y. 600 ; Eggleston, Young v. Matthews, Rohde 51 N. Y., 211; see Sadler d. Whitmore, o. Thwaites. 5 Jur. 315. (r) Rickard v. Moore, 38 L. T. Rep., (w) Saunders v. Topp, 4 Exch. 393 ; N. S. 841, distinguishing Kibble i'. Matthiessen v. McMahon, 38 N. J. L. Gough. Rep. 538 ; Gilman v. Hill, 36 N. H. (s) Nicholson v. Bower, 1 E. & E. 317-8 ; Messer Woodman, 22 N. H. 172; 28 L.J. a. B. 97. 181. 424 CHAP. X.] DELIVERY AND ACCEPTANCE OP CHATTELS. [§ 276. spective of its number, and see infra.{x) Measurement is gen- erally necessary, especially when it is a term of the contract that there should \)C;{y) while the measuring is taking place, the buyer may refuse to take.(^) Where weight and total price were not finally established the buyer is not bound, though the article sold was barrelled iu his presence, the bar- rels headed up, and marked with his name, and the price per pound agreed on. (a) Where, in a sale of calfskins, the buyer directed the seller to count the skins sold, and set them apart, which was done; then, according to usage, every twen- tieth skin was opened and dried, and weighed before and after drying ; these skins are called " weighing trials," and upon their weight depends the estimate of the weight of the whole mass; the drying and weighing process being com- pleted, the goods were placed in the seller's doorway, ready to be removed; the defendant then called upon the seller, and said that he would take the goods away ; the goods were then destroyed by a fire; it was held that until after the weighing, etc., there could be no acceptance, and that whatever was in the nature of a sufficient acceptance took place before and not after this.(6) Where a quantity of cotton was bought at an esti- mated weight, to be corrected by actual weighing, it was held that there was no delivery and acceptance, though it was agreed that the goods should remain with the seller at the buyer's risk.(e) The goods sold must be separated from the general mass of which they happened to be a part.((i) Separation and identification to constitute delivery must be unequivocal.(e) Where timber is sold as boards per foot board measure, there is no acceptance till measurement. (/) So, where a buyer agreed to take certain goods to be selected by him from a larger bulk, and authorized a wharfinger to receive the entire bulk, but upon examination refused to accept any, the delivery and (x) Cunningham w. Ashbrook, 20 Mo. (6) Kniglit v. Mann, 120 Mass. 219; 558. 118 id. 143. (jl) Smith V. New York R. R., 4 (c) Bowers v. Anderson, 49 Ga. 145. Keyes, 198 ; Pike v. Vaughn, 39 Wis. (.d) Gilman v. Hill, 36 N. H. 317-8; 503. Messer v. Woodman, 22 N. H. 181 ; (z) Gribbs V. Benjamin, 45 Vt. 130. Presoott v. Locke, 51 N. H. 96. (a) Walrath v. Ingles, 64 Barb. 275. (c) Prescott v. Locke, 51 N. H. 96. (/) Gorham v. Fisher, 30 Vt. 428. 425 § 278.] LAW OF THE STATUTE OF FRAUDS. [CHAP. X. acceptance was insufficient. (^) Weighing and measuring may be waived ;(A) and the buyer by his negligence may preclude himself from the right to require weighing and mea8uring.(i) Measuring, it has been said, is incidental not essential. (J) So, weighing ;(A:) and it has been also said that weighing and measuring are not absolutely necessary even when the goods are sold by weight and measure ; for when the property sold is in a condition for delivery, and payment of money is not a condition precedent to the transfer, it may be the understand- ing of the parties that the title should pass at once.(^) § 277. The price of the goods must be fixed. (?n) In a de- cision in 20th Missouri a rule somewhat more lax was be paid. laid down, and the court said: " Nor is there any objection to the validity of this transaction as a present sale, growing out of the supposed uncertainty as to the price, although there is no sale until the price is settled be- tween the parties, yet it is settled within the meaning of this rule when the terms of it are so fixed that the sum to be paid can be ascertained without further reference to the parties themselves; and, indeed, by the common law, the price is fixed within this rule, even when it appears that the parties have agreed that it shall be the reasonable worth of the thing sold, leaving it to the tribunals to ascertain the amount, if they cannot agree upon it themselves. (?i) § 278. Only less important than the ascertainment of the identity and quantity of the goods sold is the exami- Theexami- nation of their quality. Subject to a qualification, to nation oi _ l ^ j -i ■> the quality be Considered in a moment, the general rule is that goods. there is no delivery and acceptance as long as the buyer has a right to object to the quantity or qual- (g) Hunt V. Heclit, 8 Excli. 817 ; 22 (j ) Kelsea v. Haines, 41 N. H. 251 ; L. J. Exch., 293. see Wliite v. Halichett, 21 Wis. 415. (h) Bass V. Walsh, 39 Mo. 198 ; Max- ' (k) Kaufman v. Stone, 25 Ark. 346. well V. Brown, 39 Me. 101; GriUiat v. (I) Denny v. Williams, 5 Allen, 3. Roberts, 19 L. J., N.S., Exch. 410, hold- (m) Gilraan v. Hill, 36 N. H. 317; ing a part acceptance, though the goods Messer v. Woodman, 22 N. H. 181 ; were not weighed and dressed as re- Walrath v. Ingles, 64 Barb. 275. quired by the contract. (n) Cunningham v. Ashbrook, 20 Mo. (0 Castle !'. Sworder, 5 H.& N. 285; 29 558. L. J. Exch. 237, opinion of Bramwell, B. 426 CHAP. X.J DELIVERY AND ACCEPTANCE OE CHATTELS. [§ 278. ity.(o) The defendant must have a chance of examining the goods he buys.(p) Where tl*e buyers of one hundred tons of alkali shipped ninety-two casks, refused thirty-five casks be- cause damaged, and offered to take the fifty-seven left if they could take them to their establishment and examine the casks; this the sellers refused ; there was no writing or other de- livery and acceptance ; the Statute of Frauds applies.(^) The buyer can depute his right of examination. (r) Weighing b}' the buyer's servant may be a sufficient compliance w^ith the Statute of Frauds. (s) The right of examination may be waived; in a case in 35 Arkansas the court, speaking of the buyer, said: "That he accepted, and that unconditionally, is shown by the evidence. Whatever may have been the gen- eral custom as to reserving the privilege of sampling ; and whatever the law may presume in case of such purchase by samples, as to the reserved right of testing the bulk, it is, nevertheless, very clear that parties may agree to an imme- diate transfer of property with or without samples. They may be used only to influence the judgment of the purchaser ; who may act upon his confidence in the seller, and make a positive purchase on the 8pot."(<) (o) Norman v. Phillips, 14 M. & W. plaintiff, and a further approval by 277 ; Hanson p. Armitage, 5 B. & Aid. both parties, it was held that there 559 ; Smith v. Surman, 4 M. & R. 465 ; was no sufficient delivery and accept- 9 B. & C, 561 ; Lloyd v. Wright, 25 ance to enable the defendant, who was Ga. 215 ; Shepherd u. Pressey, 32 N. sued in trover, to keep the timber, H. 55. which he considered satisfactory; Mont- (/)) Saunders v. Topp, 4 Erch. 393 ; gomery v. Ricker, 43 Vt. 167. Aoebal v. Levy, 10 Bingh. 380 ; John- (?) Hill ... Heller, 27 Hun, 417. son V. Cuttle, 105 Mass. 449. (r) Bushell v. Wheeler, 15 A. & EIL, Where the plaintiff was the vendor N. S., cited in Morton v. Tibbett, note, of certain timber, which was to be p. 445 ; see Mead o. Southeastern R. sawed in a particular manner by the W., 18 W. R. 735. plaintiff; and the timber when sawed (s) Simon v. Metiver, Wm. Bl. 599. was dumped on a common near the de- {i) King v. Jarman, 35 Ark. 196. fendant's house, and the defendant's Where, there was evidence for the servant helped to unload ; tlie defend- jury that the defendant by parol agreed ant objected to part of the timber as to manufacture at the mill of one II. not properly sawed, and the plaintiff certain lath, and deposit it on M.'s wrote rescinding the contract ; as there dock ; that the title was not to pass was, under the circumstances, to be an till the defendants had had the lath examination and measurement by the inspected, but that the defendant 427 § 279.] LAW OF THE STATDTE OF FRAUDS. [CHAP. X. § 279. The following are some examples of refusal on the score of defect ofquality : Thus, where there of accept- was ail order for a bale of sponges at lid. per lb., reftfsaron^ and the buyers, after examination, declined to take aecouutof them, because they were only worth 6d. per lb. ; as there was no evidence as to what quality had been agreed upon, it was held that this showed no compliance with the Statute of Frauds.(M) A delay of several days in making an examination has not been considered too much. In the special case the article sold was wool.(i;) For other examples of a refusal, showing that there was no acceptance, see the note below. (w) The extent of the right of refusal is shown by a case in the Common Pleas of Upper Canada : It was held that where a machine was bought, and received, and tried, and found not to be up to warranty, and then returned, the Statute of Frauds is no defence to a suit on the warranty for the expense which the plaintiff had been at in trying and in transporting the machine ; the oral contract was executed, and therefore the Statute of Frauds did not apply. (a;) The following are examples of an acceptance after examination made : Thus, where hops were sold by sample, and sent by the vendor to his factor's warehouseman, at whose place the warehouseman, on behalf of the vendor, and an agent of the vendee, weighed the hops, compared them with the samples (all this strictly according to the usage of the trade) ; the parties also adjusted certain allowances as to weight and waived the inspection and accepted the latter, sold them for what they the lath unqualifiedly; the jury hav- would bring ; it was held that no point ing found acceptance ; instructions could be made as to the Statute of leaving it to them to say whether there Frauds, as the latter was not pleaded, had been unqualified acceptance were and as the pleadings showed a delivery affirmed in error ; Mason v. Whitbeck, of the goods ; Graff v. Foster, 67 Mo. 35 Wis. 167. 521, citing cases. (u) Kent V. Huskinson, 3 B. & P. 233. (t) Rickard v. Moore, 38 L. T. Rep., But where the defendants acknowl- N. S. 841. edged receiving the goods in suit, but (w) Fitzsimmous v. Woodruff, 1 N. alleged that they were of bad quality, Y. Supreme Ct. 3 ; Heermance v. Tay- and that defendants had paid the plain- lor, 14 Hun, 149 ; Grover v. Cameron, tiffs all that the goods were worth ; and 6 U. C. Q. B., 0. S. 197. that the plaintiffs having refused them (r) Northwood v. Ronnie, 28 U. C. when rejected by the defendants, they, C. P. 209. 428 CHAP. X.] DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 280. qualitj', and the usage of the trade was that after this no ob- jection could be heard ; it was held that there was enough evidence of delivery and acceptance to go to a jury. (3/) Where the buyer chose silver dishes by the examination of one as a sample, and directed his name and his crest to be put on them all, and that thej' should be delivered to a carrier, it was held that the Statute of Frauds was satisfied, the buyer having fully enjoyed his right of examination. (2) Where goods hav- ing been delivered to the defendant, he sent a specimen to be analyzed, and during the analysis sold a small quantity of the goods ; the report of the analysis being unfavorable, he refused to accept more ; the question of acceptance was left to the jury, who found for him; this was held to be correct, but judgment for the goods sold was entered for the plaintift', the jury having found their value. There was also a question for the jury whether the goods were sold on sample, or on sale or return.(a) For other examples of suflScient acceptance after examination see the note below. (6) § 280. As was said in § 278, there is to the doctrine, that before he is bound the buyer has a right to examine gigjjttg the goods, an important qualification now well estab- reject for 1- 1 1 1111 !■ defect of lished, namely, that the buyer may have so far ac- quality, cepted the goods as to do away with the objection co^sjs^ent of the Statute of Frauds, and yet may retain therio-ht witii^suf- '•'_■' 1^ flcient ac- to examine the goods and to reject them if not of ceptance proper quality; so that it does not follow because statute of the buyer can later examine and reject the goods if ^''*"'^^- of inferior quality ; that he has not so far accepted them as to preclude himself from raising the objection that the con- tract was oral. The law was supposed formerly to be other- wise.(t') But the rule is now well settled. (rf) Lord Campbell, in Morton v. Tibbett, said that " It would be very difficult to (y) Simmonds v. Humble, 13 C. B., 277; see, sembte, Bacon o. Eocles, 43 N. S., 261. Wis. 233 ; and see Hewes v. Jordan, 39 (z) Walker n. Boulton, 3 U. C. K. B., Md. 478 ; see, also, Barkalow v. Pfeiffer, 0. S. 254. 38 Ind. 221, in which it was said if the (o) Clark v. Wright, 11 Ir. C. L. 405. goods were below quality the buyer (6) Hill V. McDonald, 17 Wis. 100. would be entitled to a deduction. (c) Howe V. Palmer, 2 B. & Aid. 323 ; (rf) Morton ... Tibbett, 15 A. & Ell., see Norman v. Phillips, 14 M. & W. N. S., 431. 429 § 281.] LAW OF THE STATUTE OF FRAUDS. [CHAP. X. reconcile the cases on this subject, and the difference between them may be accounted for by the exact words of the seven- teenth section of the Statute of Frauds not having been always had in recollection. Judges as well as counsel have supposed that to dispense with a written memorandum of the bargain there must first have been a receipt of the goods by the buyer, and, after that, an actual acceptance of the same. Hence, perhaps, has arisen the notion that there must have been such an ac- ceptance as would preclude the buyer from questioning the Cjuantity or quality of the goods, or in any way disputing that the contract has been fully performed by the vendor. As part payment, however minute the sum may be, is sufficient, so part delivery, however minute the portion may be, is sufBcient. This shows conclusively that the condition imposed was not the complete fulfilment of the contract to the satisfaction of the buyer. In truth, the effect of fulfilling the condition is merely to waive written evidence of the contract, and to allow the contract to be established by parol as before the Statute of Frauds passed. The question may then arise whether it has been performed either on the one side or the other. "(e) § 281. Another important element in the question of de- livery and acceptance is that of the continuance of tinuaTce ^^^ Vendor's lien for the price, and there is much of the Ten- authority for the general rule that if the vendor's dor's lien •' " for the lien subsist there is no delivery and acceptance suf- (e) 15 A. & Ell., N. S., 431, distin- by Kibble c: Gougli, 38 L. T. Eep., guishing Tempest ('.Fitzgerald, Carter w. N. S., 204; Castle v. Sworder, 4 id. Toussaint, Smith v. Surman, and Howe 868 ; 5 H. & N., 285 ; Currie v. Ander- V. Palmer, as cases where the goods son, 2 E. & E. 599 ; 29 L. J. Q. B., 90; remained in the seller's possession ; Parker v. Wallig, 5 E. & B. 26 ; Bar- and Hanson v. Armitage and Norman v. nett v. Farley, 11 L. T., N. S., 107 ; 12 Phillips on tlie ground that the deliv- W. R. 748 ; Grimoldsby v. Wells, L. R., ery to a carrier in these was the final 10 C. P. 393 ; 44 L. J. C. P., 203 ; Smith act of the transaction ; Abbott's dictum v. Hudson, 6 B. & S. 445 ; 34 L. J. Q. in Howe v. Palmer and Alderson's die- B., 145 ; M'Master v. Gordon, 20 U. C. turn in Norman v. Phillips denied ; C. P. 19 ; Tower v. Tudhope, 37 U. C. Hart V. Sattley, Chaplin l,. Rogers, Q. B. 207 ; Robinson u. Gordon, 23 Blenkinsop v. Clayton, and Bushell v. id. 147 ; Garfield v. Paris, 96 U. S. 563 ; Wheeler relied on ; for a corrected state- Saiford {Jix parte), Downing {Ee), 2 ment of the last case see the principal Low. 564 ; Remick u. Sandford, 120 case. Morton v. Tibbett is supported Mass. 315 ; 118 id. 107. 430 CHAP. X,] DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 281. ficient to satisfy the Statute of Frauds.ff) In a pnce; ana „, -r ,, , , .1 , . , right of case in 2d Lowell, already cited, the court said: stoppage " It has often been decided that there can be no suf- »"■«""««• ficient receipt by the vendee so long as the vendor holds as vendor, and insists on his lien for the price. The reason is given by Abbot, C. J., in an early case, that if the vendee had actually received the goods, it would necessarily follow that he could maintain trover for them, and the vendor would be left to his action for the price. In this case there is no doubt that the vendor's lien is gone ; for the vendee usually removed the goods within the sixty days for which credit was given, and had an undoubted right so to do."(^) In a late Massachu- setts decision it was said that in the case at bar there was no actual acceptance and receipt of the goods by the defendant. They were never in his possession or control, but remained in the possession and control of the plaintitts, who refused to allow him to take them, claiming a lien for the price. If they had asserted a lien as vendors, this is inconsistent with the delivery of possession and control, necessary to constitute an acceptance and receipt by the vendee.(A) In a case in the Exchequer Chaipber Cockburn, C. J., said that the vendor's lien was incompatible with a title in the defendant, but that where the sale was on credit there was no lien.(i) Where a small part of the goods is taken, but until payment the buyer was not entitled to the rest, and the seller continues to hold, there is no acceptance to satisfy the Statute of Frauds.(J) Under a verbal contract to pay for it in monthly instalments, and subject to the stipulation that it should remain the pro- perty of the plaintiff till the price was paid, the plaintiff de- (/) Smith V. Hudson, 6 B. & S. 445 ; Cross v. O'Donnell, 44 N. Y. 665 ; Bis- 34 L. J. Q. B., 145 ; Smith v. Surman, sell v. Bissell, 4 N. Y. W. D. 338. 4 M. & R. 465; 9 B. & C, 561; Ma- {g) Safford (Ex p.), Downing (Re), herly v. Sheppard, 10 Bing. 100 ; Gar- 2 Low. 565, citing Baldey v. Parker, 2 det V. Belknap, 1 Cal. 399 ; Edwards v. B. & C. 37. Grand Trunk E. W. Co., 54 Maine, (h) Safford «. McDonough, 120 Mass. Ill ; Rodgers v. Jones, 129 Mass. 420; 291. Shepherd K.Pressey, 32 N.H.49 (saying (i) Castle ,,. Sworder, 4 L. T., N. S. that unless the seller's lien is gone no 868 ; 6 H. & N., 285. act of the vendee has any effect) ; (j) Thompson v. Macirone, 4 D. & R. 620. 431 § 281.] LAW OP THE STATUTE OF FRAUDS. [CHAP. X. livered a sewing machine to the defendant ; the latter having let several periods of payment go by and having paid nothing, it was held that there was sufficient acceptance to satisfy the Statute of Frauds, and that the defendant was liable for the instalments at time of action brought. (Zs) In a Minnesota case a refusal of the following instruction was affirmed, viz : that " Delivery of the wheat, in expectation of payment as soon as the same was cleaned and weighed, vested no title in the defendant until the price should be paid." The court did charge that " Where nothing is said or done indicating a different intention a sale is presumed to be for cash, and when for cash payment is to precede or be con- temporaneous with the delivery of the goods to the buyer, and until payment is made the title and control are still with the seller. This lien on the part of the seller for the purchase- money may be abandoned, and is abandoned, by absolute de- livery of the property by the seller to the buyer." Also, "If you believe that he (Simj^son) abandoned bis lien by giving absolute control to Krumdick, so that Krumdick had the right to take it away and dispose of it as he pileased without first paying for it, why then you may find that there was an acceptance of the property, within the meaning of the Statute, by Krumdick by his subsequent exercise of acts of owner- ship. But if you believe that Simpson did not surrender ab- solute control and right of disposition of the property, so as to abandon his lien for the purchase-money, but simply gave Krumdick the right of cleaning and weighing p)reparatory to a delivery of it upon the p'aymeut of the purchase-money, then there never was in law a consummated sale of the wheat by Simpson and a purchase by Krumdick." The request was erroneous, for Simpson may have made delivery of the wheat for the purpose of passing the title, although it was to be paid for as soon as cleaned and weighed, and before removal from the warehouse.(0 The right of stoppage in transitu is con- nected with the present point, but this is of little value as a test of the sufficiency of the buyer's acceptance, because the (t) Pinkham v. Mattox, Wi K. H. (/) Simpson c. Krumdick, 28 Minn. 602. 353. 432 CHAP. X.] DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 281. right to stop may remain, yet the acceptance to satisfy the Statute of Frauds be complete.(m) Indeed, the right to stop continues even where there is a memorandum.(?i) And, on the other hand, the transitus may be at an end, and yet there be no sufficient acceptance.(o) In a late Massachusetts case, speaking of the acceptance required by the Statute of Frauds, the court said that the acceptance referred to is that which the Statute requires to give validity to the contract. It must be with intention to perform the whole contract, and assert the buyer's ownership under it, but it is sufficient if it be of part of the goods only. Such an acceptance implies the existence of a completed contract, sufficient to pass the title, which is not to be confounded with that actual transfer of possession neces- sary to defeat the vendor's lien or his right of stoppage in transitu, or to show an actual receipt under the Statute.(p) In u decision in 3 Hurlston and Coltman, the court said: "This is one of those cases in which the use of the term stoppage in transitu is calculated to mislead. The question is not one of stoppage in transitu, but whether the lien of the defendants as unpaid vendors had ceased so as to prevent them from taking possession of the timber which was not in their cus- tody, or in that of the vendees, but in the custody of a third person, viz., a wharfinger. It appears to me more a matter of fact than of law, the question being whether the vendee had taken actual possession. "(5') It has, indeed, been said that both the seller's lien and the right to stop in transitu must be gone.(r') There are a number of decisions in which the "seller's lien" test is regarded as being of little value. Thus, where chattels were sold by parol by the plaintiff to the de- fendant, and were removed to a warehouse belonging to a third party, and used by the defendant: the chattels were (m) Cross tj. O'Donnell, 44 N. Y. (/j) Townsend t-. Hargreaves, US 665 ; (Ex parte) Safiford, {Re) Downing, Mass. 332. 2 Low. 564. (9) Cooper v. Bill, 3 H. & C. 729. (n) Bushell V. Wheeler, 15 A. & Ell., (r) Fawoett , . Glossop, 69 L. T. 287 N. S., 445. (Wakefield, C. C.) ; see Mart. Ld. Tent. (0) Smith V. Hudson, 6 B. & S. 445 ; Act, 153. 34 L. J. Q,. B., 145 ; i. e., there may be delivery without acceptance. VOL. I.— 28 433 § 281.J LAW OF THE STATUTE OF FRAUDS. [CHAP. X. here wrapped in coverings belonging to the defendant. The course of trade was that the chattels should not be taken from the warehouse till paid for ; it was held that whatever might be the plaintift''B interest for the unpaid price, this was not inconsistent with the possession being had by the defendant, and the Statute of Frauds was satisfied by sufficient delivery and acceptance, and an action lay for goods sold and de- livered.(s) The continuance of the vendor's lien is only one test.(<) So where it was proved to be the custom of the tea- trade for the buyer to make a part payment, and then to leave the goods with the seller as a pledge for the payment of the rest of the price, the Statute of Frauds would be complied with.(?/) In a case in the Upper Canadian Queen's Bench the " lien" test theory was said to be no longer respected. (f) In the note are some examples of the seller's lien not being gone, and, therefore, no sufficient acceptance established. (w) Where an agent is instructed not to deliver unless the price of the goods is paid, there is no compliance with the Statute of Frauds until such payment ;(a:) and generally where it is un- derstood that the seller will not part with the goods until payment, acts doubtful in character will not be assumed to be a compliance with the Statute.(?/) The following are some examples of the lien gone ; where the goods are delivered to the buyer's warehouse -,(2:) or even a delivery on public land near the buyer's premises ;(a) or where by the contract the delivery was to be immediate.(6) (s) Dodsley ,'. Yarley, 12 A. & Ell. «58 ; Flintoft v. Elmore, 18 U. C. C. P. 633 ; see Pinkham v. Mattox, 53 N. H. 281. 602, citing Morton v. Tibbett and Mc- (x) Bill v. Bament, 9 M. & W. 40. Knight V. Dunlop. (^) Phillips v. Bistolli, 2 B. & C. (0 Wright c. Percival, 8 L. J., N. 513; Tempest y. Fitzgerald, 3 B. & Aid. S., Q. B. 258, citing Elmore r. Stone as a 682, distinguishing Bleukinsop c Clay- case where the vendor's lien subsisted, ton as a sale not for ready money. («) Moffatt {Ex parte), Tate {Re), 2 (-) Cusack v. Robinson, 1 B. & S. M. D. &DeG. 176; lid., 283. 306; 4 L. T., N. S., 505 ; 30L.J.Q.B., (f) Wegg c. Drake, 16 U. C. Q. B. 261. 253. (a) McNeil v. Keleher, 15 U. C. C. P. {w) Harvey !'. St. Louis Butch. Ass., 473. 39 Mo. 217 ; Maberly v. Sheppard, 10 (6) Bissell c. Bissell, 4 N. Y. W. D. Bing. 100 ; Baldey v. Parker, 2 B. & C. 338, N. Y. S. C. 40; Carter i'. Toussaint, 3 B. & Aid. 434 CHAP. X.] DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 282. § 282. Delivery to and acceptance by an agent is an ade- quate compliance with the Statute of Frauds.(c) The buyer may accept goods by "taking them into toVn^ac- the control of himself or of his authorized agent, or ceptanceby ~ ^ ' an agent; by making the seller or a third person his bailee to who may hold them for him, so as to terminate the sellers possession. (<:?) And an agent's unauthorized acceptance may be ratified by a subsequent adoption by the principal. (e) The same factor cannot act as seller and as agent of the vendee to accept. (/) The seller is not an agent of the buyer to accept the goods sold, and such agency must be proved outside of the contract itself.(^) To make the seller bailee to hold for the buyer there must be a new agreement. (/;) Where the buyer of goods has procured them for a third person, it has been held in a New York case that the complaint must aver that such third person was agent for the buyer, the defendant, to receive them, and did receive them, so as to bind the defend- ant. (z) Acceptance by such third person satisfies the 17th section of the Statute of Frauds.(j) A husband may lose his marital right to chattels left out of his wife's marriage settle- ment by putting them in the custody of the wife's trustees.(/t) Sheep pastured by the seller's agent and afterwards sold by the principal and kept by the agent for the buyer, being selected and marked by the latter, cannot be levied upon as the property of the seller.(^) Where the plaintiif by writing sold goods to C. H., an infant, and sent them to the defendant to be prepared for C. H., and afterwards the plaintiff and C. (c) Snow V. Warner, 10 Meto. 137 ; v. Palmer, 3 B. & Aid. 323 ; the seller's Cross V. O'Donnell, 44 N. Y. 661 ; Out- agent, even if he had measured the water v. Dodge, 6 Wend. 400 ; Descord goods at the buyer's request, is not his V. Bond, 2 Stark. Ef. (Gerh. Ed.), p. agent 'to accept. *488 (note n) ; Lord Hardwicke, 7 Geo, II. ; Dodsley v. Varley, 12 A. & Ell. 633 (d) Rodgers ;;. Jones, 129 Mass. 420, (e) Hankins v. Baker, 46 N. Y. 670, (/) Clark V. Tucker, 2 Sandf. 165 (g) Smith ,). Bouck, 33 Wis. 25; see Lewin ;;. Stewart, 17 How. Pr. 6. (A) Smith V. Bouck, 33 Wis. 25. (0 Smith V. Leland, 2 Duer, 508; see Dyer v. Forest, 2 Abb. Pr. 285. Caulkins v. Hellman, 47 N. Y. 449 ; 14 (j) Dean v. Tallman, 105 Mass. 444. Hun, 330 ; the vendor's agent to nego- (k) Simmons v. Simmons, 12 Jur. 8 ; tiate the sale cannot be the buyer's 6 Hare, 352. agent to accept the goods sold ; Howe (l) Barney v. Brown, 2 Vt. 377. 435 § 283.] LAW OF THE STATUTE OF FRAUDS. [CHAP. X. H. went to see the defendant and requested him to send the goods back to the plaintiff, and the defendant said he would return them or pay for them, it was held that the 17th section of the Statute of Frauds did not apply to the new contract, and the verbal rescission of the sale from the plaintiff to C. H. was valid.(-m) Sending goods to a warehouseman, desig- nated by the vendee, and who accepts them, complies with the Statute of Frauds.(n) § 283. The following are some further examples of accept- ance by an agent: Thus, where wheat was taken to an elevator belonging to B., a third p>arty, at the request of the defendant and for his account, and B., as agent for the defendant, the buyer com- pared the wheat with the samples, and according to usage receipted to the seller for the same.(o) And where the defendant, a buyer, examined certain specific goods at Liver- pool, and ordered them sent to Fennings's wharf, London; they were so sent ; and Fennings kept a warehouse at his wharf which the defendant habitually used ; it was held that there was evidence for the jury of a delivery and acceptance.(p) It has been held that a delivery of chattels to a wharfinger to be valid must be to the wharfinger himself, his proved agent, or the goods must be booked and a receipt taken. (§') One who gives a verbal order to his broker to purchase certain stock, in pursuance of which the broker purchases the stock, and the same is on the following day delivered to and paid Examples of accept- ance by an agent ; sulficient and insuffi- cient. (m) Douglas t;. Watson, 17 C. B. 695. (n) Safford {Exp.), Downing (i?e), 2 Low. ,564 ; see Dyer v. Forest, 2 Abb. Pr. 285 ; Moore v. Campbell, 23 L. J. Exc. 310 ; Townsend v. Hargreaves, 118 Mass. 332. (o) Dows V. Montgomery, 5 Roberta. 453. (p) Cusack u. Robinson, 1 B. & S. 306 ; 4 L. T., N. S., 506 ; 30 L. .J. Q,- B., 261 ; in the opinion of Blackburn, J., Nicholson v. Bower was distinguished as a case where no specific selection was made, and before any acceptance 436 there must have been an examination by sample ; and Meredith u. Meigh, following Hanson u. Armitage, distin- guished as a case where the selection was made by the seller, and where the carrier, though named by the buyer, had been given no authority to accept. Baldey r. Parker distinguished as going on the ground of the vendor's lien not Vieing given up. Vendor may give up his lien and hold as warehouseman ; Marvin c. Wallis, Beaumont v. Bren- geri, and Saunders v. Topp, were cited. (5) Buckmau v. Levi, 3 Camp. 415. CHAP. X.] DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 283. for by him, cannot insist that the contract is void, on the ground that no part of the stock was delivered and no money paid at the time of giving the order. The delivery by the seller, and the acceptance by the broker, acting as the agent of the buyer, renders the contract valid and binding.(c) Where goods were packed by the buyer's men, and were taken with a delivery order by his packer and carter, a jury may find the fact of a sufficient acceptance. (s) The following are some examples of a transaction not constituting a suffi- cient acceptance : Thus, where there was a receipt of a bill of lading by the buyer's clerk, and there was no evidence that the clerk had authority to accept, and before the buyer knew the bill had been left, he had notified the seller that he would not accept.(<) In a case in Ellis, Blackburn & Ellis, Lord Campbell said : " The legislature continues to maintain sec- tion 17 of the Statute of Frauds ; and I do not think that the enactment is satisfied by the facts of this ease. All that can be said is that the purchaser here named the wharf, and that there was a delivery at that wharf. But in the present case there was a delivery at the wharf only; the wharfinger had only to see that the goods were properly put on the wharf and hoisted on board ship." Judge Coleridge said : " I am of the same opinion. It is impossible to say that the mere naniing of the wharf makes the wharfinger the agent to accept. Mr. Lush seems to assume that the wharfinger was placed in the situation of the vendee ; but the facts do not bear that out," (r) Rogers v. Gould, 6 Hun, 229. price in consideration of L.'s carrying (s) Kershaw i-. Ogden, 3 H. & C. 717 ; the goods ; the defendant asked T., at see Kibble v. Gough, 38 L. T., N. S. Nottingham, who had the wheat, to see 204. it delivered, measured, and put up (0 Quintard v. Bacon, 99 Mass. 186 ; properly ; it was held a contract for see Sherman W.Williams (S. C. N. Y.), the sale of goods, and within the Stat- 4 N. Y. Week. Dig. 415, where the ute of Frauds, notwithstanding the agent was a teamster and the goods price included the carriage, and that barrels of flour ; see, also, Bill u. Ba- the acts of T. were not an acceptance ment, 9 M. & W. 40. And where L., to bind defendant, inasmuch as the a factor, sold the plaintiff's wheat to delivery was to be at Derby, not Not- defendant, and agreed to carry it from tingham, and the inspection by T. did Nottingham to Derby and place it at his not involve necessarily the idea of an (L.'s) warehouse at Derby ; the price acceptance ; Astey v. Emery, 4 M. & S. agreed was higher than the market 264. 437 S 283.J LAW OF THE STATUTE OF FRAUDS. [CHAP. X. Judge Erie said : " I agree that the sending to the wharf and the putting on the wharf does not satisfy the words accept and actually receive, however absurd the words of the Statute may he."{u) Where there was a sale of railroad ties, some placed on the defendant's land and some on land adjoining ; and their engineer in clearing a road moved some of the latter on their land, and their servants used some of the ties in making the road (this was contrary to their orders) ; it was held that there was no sufficient delivery and acceptance. (w) An ac- ceptance by one of several joint-purchasers is sufficient ;(w) or by one partner.(2:) In a Michigan decision a distinction was made between a joint-purchase and a partnership purchase, and it was said that where two jointly bought by parol goods («) Hart V. Bush, E. B. & E. 496 ; 27 L. J. Q. B., 272. (v) Wade V. New York R. R., 52 N, Y. 627. So piling up wood at a railroad sta- tion where the defendants were in the habit of receiving their wood, and a railroad employ^ directed where the wood was to be placed. There was no evidence of acceptance, the employ^ having general orders where to put the wood, but no special authority to accept; Smith t. New York R. R., 4 Keyes, 198. Where one Eastman was indebted to the plaintiff, who had attached the goods in question, which were on East- man's land; the goods were sold by auction and bought by the plaintiff, who went to Eastman's to take them, and Eastman asked him not to take them, and that he, Eastman, would get the defendant to become responsible for them, and the plaintiff thereupon left the goods, and upon asking the defendant afterwards if he would take tliem, he, the latter, said he would. The court said: "At the time of the sale to defendant the property was in the actual possession of Eastman, wliere plaintiff had permitted it to remain 438 from the time he purchased it at sheriff's sale. There was testimony tending to show that at the time de- fendant bought it he owned the stock on the farm where Eastman lived, and that at about that time he became the owner of the farm, and that the pro- perty was used on the premises ; but it does not appear what the relations were between the defendant and East- man, nor by whose authority the pro- perty was used up. There is nothing to show that Eastman was in any sense the defendant's agent, so that his pos- session could be said to be the defend- ant's possession. For the purposes of this case Eastman must be taken to be plaintiff's bailee, and his possession plaintiff's possession. Now, where the goods are in the possession of a third person at the time of sale, there must be an agreement by sucli third person to hold, as the bailee of the buyer, an attornment, so to speak, to him ;" Bas- sett V. Camp, 54 Vt. 2:J4. (w) Smith K. Milliken, 7 Lans. 336; Wilcox Plate Co. ,-. Green, 72 N. Y. 19 (the one who accepted was one of several' directors of a fair). (a;) Lewinw. Stewart, 17 How. Pr. 6. CHAP, X.] DELIVERY AND ACCEPTANCE OP CHATTELS, [§ 284. within the Statute of Frauds, and one afterwards accepted the goods, the other was held not bound, as one joint-purchaser cannot accept for the other ; and if it was a partnership pur- chase, the firm was dissolved before the acceptance.(z/) § 284. How fur receipt by a carrier is acceptance to bind the buyer is a point involved in no inconsiderable T • mi f> 1 • Delivery to contradiction. 1 he preponderance oi authority now common is, that unless the carrier is one specially designated '^^''"'^''• by the buyer, the carrier's receipt of the goods is no accept- ance.(2) Where the consignor sends goods by a carrier ; the consignee having giveu no direction as to how the goods were to be sent ; the consignors sent the invoice to the consignees ; the carriers are held to be liable to the consignors for loss of the goods; there was no title in the consignees; and the in- voice was a mere memorandum. (a) In a 'Sew York decision, not dealing with any question connected with the Statute of Frauds, the court said : ''In absence of some order, agreement, or usage delivery to a common carrier is no delivery to the defendant, so as to lay ground for goods sold and delivered. (6) A carrier is an agent to receive, not to accept ; the latter fanc- (y) Chamberlain v. Dow, 10 Mioh. on the question as to the application to 324. the contract of the liquor laws of a par- (;) Norman v. Phillips, 14 M. & W. ticular state ; see, also, Rindskop o. 277 ; Bushell v. Wheeler, 15 A. & Ell., De Ruyter, 39 Mich. 1 ; Keiwert v. N. S. 445, note ; Acebal v. Levy, 10 Meyer, 62 Ind. 587 ; Hausman u, Nye, Bing. 380 ; Smith v. Hudson, 6 B. & S. 62 Ind. 487 ; Everett v. Parks, 62 Barb. 445; 34 L. J. Q. B. 145, considering 15 ; Marsh i. Bouse, 44 N. Y. 646; Hart V. Bush and Hunt «. Heclit ; Mere- Stevens v. Langeman, 5 N. Y. Leg. Obs. dith V. Meigh, 2 E. & Bl. 370; Hop- 19; Rodgers v. Phillips, 40 N. Y. (1 ton u. M'Carthy, L. R;, 10 Irel. 271; Hand) 523; Shermanu. Williams, 4 N. Tower v. Tudhope, 37 U. C. Q. B. 210, Y. Week. Dig. 415 (S. C. N. Y.) ; Caul- citing cases ; Daley u. Marks, Berton, kins I-. Hellraan, 47 N. Y. 449 ; 14 Hun, N. B. 346; Bullock v. Tschergi, 13 330 ; Audenreid y. Randall, 3 Cliff. 99. Fed. Rep. 344 (C. C D., la.); Den- (a) Coats v. Chaplin, 3 Q. B. 489; mead v. Glass, 30 Ga. 638 ; Maxwell v. see Coombes i/. Bristol R. R. Co., 3 H. Brown, 39 Me. 101 ; Jones r. Mechanics' & N. 511; 27 L.J. Ex. 401, citing Bank, 29 Md. 293, overruling Hart v. cases ; O'Neill v. New York R. R., 3 Sattley ; Johnson v. Cuttle, 105 Mass. Roberts. 403 ; Law v. Hatcher, 4 Blackf. 449 ; Atherton v. Newhall, 123 Mass. 364 ; see semble, contra, Dutton v. Solo- 142 ; see Suit i. Woodhall, 113 Mass. monson, 3 B. & P. 584, a case not 394; Webber u. Howe, 36 Mich. 154, affected by the Statute of Frauds, which, with the following oases, turned (6) Everett v. Parks, 62 Barb. 15. 439 § 285.] LAW OP THE STATUTE OF FRAUDS. [CHAP. X. tion does not belono; to him. "(c) He cannot make a contract for the buyer. (rf) Even where the usage of the parties is to send the goods in a particular way, a general order by the buyer will not authorize the carrier to accept. (e) Where goods are shipped in a way generally indicated by the buyer, and upon the vessel being wrecked and a portion only of the cargo saved, the buyer takes and sells that portion, the delivery and acceptance is suiB.cient.(/) In a Michigan case it was said: " Where the delivery to the carrier is merely in pursuance of the same verbal contract under which the goods were pur- chased, and the carrier has no independent and separate authority to act for the purchaser, his reception of the goods could only be valid because the contract itself was valid ; and if the delivery and acceptance was the first transaction which gave force to the contract in the case before us, it is clear that it must have been a delivery to the party, and to no one else. It involves a sophism to hold that a void contract can furnish authority to a third person to ratify it. If it was good to create the agency, the agency was entirely unnecessary. "(^) Under the Iowa Statute of Frauds, which uses the word "de- liver," and not the word "accept," a delivery to a common carrier, though, not designated by the vendee, satisfies the Statute.(A) § 285. The rule was at one time believed to be that the car- rier, when especially he habitually carried for the parties to the contract, could bind the buyer by his acceptance. (i) Delivery and acceptance by a wharf- of carrier's inger will not bind the vendee, though the g-oods acceptance ■- ? o » being had been ordered by the latter, and the custom be- eufficient. , ,, ^. , _, ,,.,„ tween tlie parties was to send them by this wharf- inger, (j) It has been held that where an order was given in Carrier habitually employed. Examples (o) Allard v. Greasert, 61 N. Y. 5. id) Tower v. Tudhope, 37 U. C. Q. B. 210 ; Atherton u. Newhall, 123 Mass. 142. (e) Meredith v. Meigh, 2 E. & Bl. 370. (/) Goddard v. Demerritt, 48 Me. 211. (jr) Grimes v. Van Vechten, 20 Mich. 413. 440 (A) Bullock V. Tschergi, 13 Fed. Rep. 344 (C. C. D., Iowa). (0 Hart u. Sattley. 3 Camp. 528, overruled in Meredith u. Meigh, 2 E. & Bl. 370 ; see Hausraau v. Nye, 62 Ind. 489, citing oases. (j) Hanson v. Armitage, 5 B. & Aid. 559. CHAP. X.J DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 286. Wales to the traveller of a dealer in London, and no mention was made of a carrier, and a carrier in London was selected by the seller, a cause of action arises in London. (^) In a N"ova Scotiandecisionit was held that deli very to the "care of" a rail- road would be sufficient to hold the buyer defendant under an oral contract, if he had been advised by letter or invoice from the plaintifl"; but such a sending is not an acceptance by the railroad as agent for the defendant where no such notice is given by the plaintiff; though the defendant heard of the arrival of the goods from another source of information, and did not notifiy the plaintiff till five months after the arrival of the goods, when the plaintiff drew on him for the price.(Z) § 286. If the carrier is designated by the buyer, there is much authority for saying that the former's receipt is equivalent to acceptance. (m) Delivery to a car- designated rier by the consignor at the consignee's order vests ^iyl^-^ the title in the goods in the latter at common law.(?i) So where there is delivery of the goods to a carrier, and a delivery order is taken, which the seller transfers to the buyer, who gives the carrier directions as to the delivery, the title in the goods, notwithstanding the Statute of Frauds, is in the buyer, and cannot be attached as the seller's property. (o) Where there is delivery at the place indicated by the buyer's agent to another agent of the seller, and by him shipped to the place indicated by the buyer, under a general direction as to shipping such goods, it has been held that the Statute of (i) Copeland v. Lewis, 2 Stark. 31. N. S. 442 (note) ; Currie v. Anderson, 2 (0 Ames V. Ginty, 16 Can. Law E. & E. 598 ; 29 L. J. Q. B. 90 ; Moore v. Jour. 36 (County C, Annapolis, N. Campbell, 23 L. J. Ex. 310; Ex parte S.), distingiiishing Bushell i\ Wheeler. Safford, Downing (iJe) 2Low. 564, citing Query, whether a delivery of hay on cases ; Denmead u. Glass, 30 Ga. 638 ; hoard a barge, owned by defendant, is Hausman u. Nye, 62 Ind. 487; Grimes a sufEicient acceptance where the cap- v. Van Vechten, 20 Mich. 413 ; Out- tain was requested (by whom ?) to go to water v. Dodge, 6 Wend. 400 ; Thomp- a certain place for hay, and went and son v. Menok, 4 Abb. Dec. 403 ; 2 Keyes, took the hay, not knowing that it was 82 ; 22 How. Pr., 431 ; Dyer r. Forest, for the defendant ; he receipted for it ; 2 Abb. Pr. 283 ; AUard v. Greasert, 61 the barge was lost ; semiZe the delivery N. Y. 5 ; Spencer v. Hale, 30 Vt. 314. and acceptance were sufficient ; Silver (n) Dawes v. Peck, 8 T. R. 332 ; Al- c. Bowne, 55 N. Y. 660. lard v. Greasert, 61 N. Y. 5. (m) Bushellu. Wheeler, 15 A. &EU., (o) Hatch ti. Lincoln, 12 Gushing, 33 441 § 287.] LAW OE THE STATUTE OF FRAUDS. [CUAP. X. Frauds was complied with,(p) and it has been thought that the delivery of chattels by the agreement of both parties to a common carrier would satisfy the Statute of Frauds. (§') Where the defendant writes the plaintiff: " I had a letter from Mr. Wagner to-day, informing nie that he would bring down the bones which I bought of you at ten shillings, etc., and I wrote him to bring them ; you will, therefore, please deliver them to him, as also the tine black, etc. ;" the goods were de- livered to a carrier indicated by Wagner ; this was held to satisfy the Statute of Fraud8.(r) Where the buyer when ordering the goods has examined them, and they are then de- livered to an agent named by him, there can be little doubt but that the Statute of Frauds is satisfied. (s) Where the Statute of Frauds has been complied with by a writing, de- livery of chattels to a particular or to even any carrier, if done by the order of the vendee, vests title in the latter, subject to his right of examination and rejection for cause. This rule ex- tended to the case of a verbal contract, if the delivery is to a carrier named by vendee.(^) § 287. It has, however, been questioned whether the mere designation of a carrier makes his receipt of goods Contra to i • n i i • n • p i i j_j the last acceptance to bind the buyer, especially it the latter ™''^' has not chosen and examined the particular articles, and the preponderance of authority is to this eflect. In a case {p) Snow V. Warner, 10 Meto. 133. Railway, paying the carriage, and, in (7) Ullman v. Barnard, 7 Gray, 557. accordan'ce witli a habit between all (r) Thompson u. Menck, 4 Abb. Deo. these parties, the Great Eastern lianded 403 ; 2 Keyes, 82 ; 22 How. Pr., 431. over tlie flour to the defendants, who Delivery to a carrier named by the were paid by the plaintiff, it was quea- vendee is such receipt and acceptance, tioned whether under the 17th section though the defendant never actually of the Statute of Frauds the title vested got the goods ; the defendant could at in the plaintiif (Brett, J., thinking it any time have taken the goods out of did, as the direction to B. to select took the possession of the railroad, subject away from the plaintiff all right to re- ouly to a possible right of stoppage in ject), but, in any event, the defendants transitu; Strong v. Dodds, 47 Vt. 354. were liable to the plaintiff for injury to (s) Walker v. Boulton, 3U. C. K. B., the flour during its carriage over their 0. S. 254. So where the plaintiff gave line ; Mead o. South. East Ry., 18 W. one B., a dealer in flour, the authority R. 735. to select certain amounts from the bulk (t) Glen o. Whitaker, 51 Barb. 451, in his (B.'s) possession, and sent the citing People ?;. Haynes, 14 Wend. 546, amount so selected to the Great Eastern and denying Oatwater v. Dodge. 442 CHAP. X.] DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 287. in the 44th New York the court said: " It is not necessary to determine in this case that a mere carrier, designated by the buyer, can both accept and receive for him, so as to make a compliance with the Statute; but I can find no reason, founded upon principle or authority, to doubt that after the buyer has accepted the article purchased, a carrier designated by him to take and transport it can bind him as his agent by receiving it. While there is not upon this question entire harmony in the views of judges, and while the authorities cannot all be reconciled, the general drift of them is toward the conclusion I have reached. "(m) In another New York case it was said, that "it has been held, that when the goods have been accepted by the buyer so as to answer that portion of the Statute which requires acceptance, a delivery to a carrier selected by the buyer will answer that portion of the Statute which requires the buyer to receive. So far as I can discover, it has never yet been decided in any case that is entitled to respect as authority that a mere carrier, designated by the buyer, can both accept and receive the goods so as to answer the Statute.(v) The authorities are very clear that the accept- ance and receipt, which the Statute requires, may be made by an agent of the.buyer empowered for that purpose, but the decided weight of authority, both English and American, is, that the agency to accept and receive cannot be inferred from the mere fact that the buyer has designated a particular vessel or person as carrier of the goods. "(w) In Acebal v. Levy it was held that delivery abroad on a ship chartered by the defendant was not delivery and acceptance, as the defendant must have a chance of examining the goods, and seeing whether they are merchantable; but that the point of acceptance cantiot be made by a plaintiff who has a count for non-acceptance ;(x) and the point was met fully in a case in 105 Massacliusetts, in which the court said: "Mere delivery is not sufficient; there must be unequivocal proof of an acceptance and receipt 00 Cross a. 0'Donuell,44N. Y. 665, Hand), 523, for a divison of opinion citing several cases. on this point. (v) AUard v. Greasert, 51 N. Y. 5; (w) Jones u. Mech. Bank, 29 lid. see Rodgers u. Phillips, 40 N. Y. (1 293. (x) Acebal v. Levy, 10 Bing. 380. 443 § 288.] LAW OF THE STATUTE OF FRAUDS. [CHAP. X. by him. Such acceptance and receipt may indeed be through an authorized agent, but a common carrier (whether selected by the seller or by the buyer), to whom the goods are intrusted with- out express instructions to do anything but to carry and deliver them to the buyer, is no more than an agent to carry and de- liver the goods, and has no implied authority to do the acts required to constitute an acceptance and receipt on the part of the buyer, and to take the case out of the Statute of Frauds. The steamboat company having no authority to receive and accept the goods so as to bind the buyer, and there being no evidence that the buyer, in person, or by any authorized agent, ever had actual possession of the goods, or opportunity to see them, or ascertain whether they conformed to his order, or ever exercised any control over tliem by sale or otherwise, or even received any bill of lading of the goods, the case is within the Statute of Frauds, and the action cannot be maintained. (y) Delivery to a carrier selected by the seller is of no efficacy when the order as to delivery, which was given by the buyer, was void by the liquor laws of the buyer's state where his, the buyer's, order was given. (^r) g 288. Acceptance and delivery must be under the contract and referable to it.(a) It has been said that delivery mustbT ^'^^ acceptance, which complies with the contract under the (though semble otherwise insufficient), satisfies the contract. -, Statute of Frauds. (6) Where the contract was un- derstood diti'erently by the parties, delivery will not validate iy) Jolinson a. Cuttle, 105 Mass. One judge dissenting, thought the dif- 44!l. ference immaterial, and that acceptance (i) Webber v. Howe, 36 Mich. 154. by the railroad as common carrier was Where a proposed purchaser of a sufficient ; .Mitchell c. Watson, 6 Vict. chattel wrote the owner, introducing L. R. Law, 499. the purchaser's agent to the latter, say- (a) Townsend v. Hargreaves, 118 ing, " He will use his judgment as to Mass. 332 ; Sloan Saw-mill Co. i\Gutts- one (i.e., chattel) for Barfold " (the hall,3 Col. 14; Matthiesonw. McMahon, defendant's farm), it was held that the 38 N. .J. Law, 538; Field v. Runk, 2 agent to bind the defendant should Zab. 525 ; Garfield ('. Paris, 96 U. S. either have signed a writing or ordered S. C. 563; Proctor v. Ambler, 1 Can. delivery to Barfold. A delivery to a Law Times, 608 (Ct. App., Ont.). railway to deliver at another place is (6) Anderson v. Hodgson, 5 Price, no acceptance to bind the defendant. 630. 444 CHAP. X.] DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 288. it and lay ground for an action for goods sold and delivered.(c) A delivery and acceptance has no eifeet when the terms of the contract itself are not made out.(d) Where the plaintiif de- livered and the defendant received certain goods ; in a suit for the price the defendant said that the goods were to be held by him as security for certain acceptances discounted for him; and said that there was no sufficient acceptance to satisfy the Statute of Frauds ; it was held that a delivery and acceptance being admitted by both parties, the terms of the transaction could be shown by parol, and a verdict for the plaintiff would not be disturbed. (e) The rule which establishes that equit- able part performance, in the case of a sale of land, is without effect where the contract is not clearly proved, or is a mere ne- gotiation, applies to a contract as to personalty ; see the chapter on Part Performauce.(/) Where the buyer, in his letter, re- quired a warranty that a horse was quiet, and the seller, in his (c) Gregson v. Ruck, 4 A. & EU., N. S. 747. (d) Fagan v. Faulkner, 5 Ark. 164. (c) Tomkinsou v. Straight, 17 C. B. 703 ; 25 L. J. (N. S.) C. P. 88. Williams and Crowder, .JJ., thought that the acceptance need not show anything more than the relation of vendor and vendee, all the rest could he shown by parol. In argument Phil- lips p. Bistolli was distinguished by Creswell, J., as a case where the goods were returned. Creswell, J., in argu- ment, and Jervis, C. J., in the opinion, said the words in the 17th section, "so sold," mean sold for £10 and upwards ; S. C, 25 L. J. C. P., N. S. 87 (fuller report of argument). Creswell, in argument, said : " If the debtor could claim the price to be less than £10, and if the jury found the price was more than £10, and if he could then say that he did not accept them at the higher price, and so defeat the action, a great fraud could be per- petrated on creditors." Williams, J., in argument, said that the acceptance is not a badge of the truth of the terms of the contract, but of the fact only that there is a con- tract. Jervis, J., In argument and opinion, said that this was like a sale claimed by the plaintiflF to be for cash, and by the defendant to be on credit ; if there was an acceptance parol evidence could settle this point. (/) In Congdon v. Darcy, 46 Vt. 484, said the court : " The referee has found that the bills of timber and plank of the house, though they were made out by the plaintiff, were delivered to the defendant by Kent while the negotia- tions were pending for the contract with the plaintiff and Kent for building the house. They, therefore, cannot con- stitute a part performance of the con- tract between the plaintiff and the defendant, if it should be conceded that such a contract had been com- pleted. Although they were made and delivered at the request of tlie defend- ant, they were made and delivered as a part performance of an anticipated contract to which Kent afterward re- fused to become a party." 445 § 288.] LAW OF THE STATUTE OF FRAUDS. [CHAP. X. letter, promised to warrant that the horse was quiet in double harness, it was held there was no concluded contract shown by the writing; and a delivery of the horse to buyer's son was not a delivery and acceptance to bind the buyer, unless the son's authority was to accept on the terms made by the seller, of which there was no evidence.(^) The necessity of clearly establishing the contract is shown in the following case: In a correspondence between the plaintiiF and defendants it did not clearly appear whether the parties agreed upon ten hogs- heads or fifteen of wine. The plaintiff shipped fifteen ; the defendants wrote they would keep ten if proved to be satis- factory, and refused the five ; further correspondence showed, on both sides, an intention that the defendants should have .till spring to try the wine; the defendants put the wine in a bonded warehouse, in their own name, till spring; tasted the wine, and i-efused it all ; it was held that the Statute of Frauds applied ; that the case should not have been left to the jury to ascertain whether the defendants' delay in trying the wine had been unreasonable. There was no acceptance, because the delivery was not under the contract, being for fifteen instead of ten. (A) Delivery of unsound goods when the contract called for sound ones is without efiect.(i) Where the goods were shipped, but, as the bill of lading varied from the original contract, tliey were sent back by the buyer, there was no sufficient delivery and acceptance, though the custom was that the goods on board were at the buyer's risk, who, however, refused the goods tendered. (_;') A delivery and accept- ((/) Jordan i-. iS'orton, 4 M. & W. ing it to the defendant the plaintiff sent 160. the carriage as it was to the stable (h) Ciinliffe v. Harrison, 6 Exch. first named ; it was held without more 905. to be no delivery and acceptance ; So where the defendant saw and Brewster v. Taylor, 63 N. Y. 587 ; 39 agreed to buy a wagon of the plaintiff, N. Y. Sup. 164. and directed it delivered at a certain (i) Lawton r. Keil, 61 Barb. 558. stable ; but the defendant required (j) Frostburg Mining Co. v. New that a pole should be substituted for England Glass Co., 9 Cushing, 117.' shafts, and thistheplaintiffagreedtodo In a case in 10 Adolphus & Ellis, if the defendant would send a pole that new series, Denman, C. J., had left it could be fitted at a moderate expense ; to the jury to say whether the goods tlie defendant sent the pole, which were of the quality represented, and could not be fitted, and without report- whether the buyer had so dealt with 446 CHAP. X.J DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 288. ance of goods similar to but less in quantity than a certain lot orally sold must, to take the latter contract out of the Statute of Frauds, be shown to be a part of them, and delivered in fulfilment of an agreement covering both ; a judgment in a suit relating to the former charging them at a different price from that of the oral agreement, is conclusive against such a con- tention.(/i:) Where the defendant bought glass from the plain- tiff, and three sheets were taken out for his inspection, and the goods by an oversight were packed without the sheets, and the defendant upon their delivery refused to pay unless an allowance was made for the three sheets ; the goods were left with the defendant, and the next day the plaintiff's agent called on the defendant, and agreed to make the allowance. Three days later the defendant rescinded and sent back the goods, which the plaintiff declined to receive; the delivery and acceptance was held to be sufficient. (Q It has been said in New York that there were a double set of cases, the one regarding transactions subsequent to an invalid parol contract, as to be presumed if in accordance with its terms to have been done thereunder ; tlie other holding the presumption to be the other way.(m) In a case arising under the act of Congress of June 2,1862, requiring contracts with Federal officers to be in writing, it appeared that the claimant had orally sold horses to General Stoneman,and there had been this oral contract in the fall, and the claimant had been directed by General Stone- them as to make them his own hy (m) Boutwell v. O'Keefe, 32 Barb, doing more than was necessary to ex- 437, saying that the latter cases are in amine their quality ; the jury answered the Superior Court of Nhw York City, the first question in the negative ; the and are as follows : Seymour v. Davis, second in the affirmative ; a rule for 2 Sandf. Sup. C. Eep. 239 ; Deming ;;. nonsuit was made absolute, the Lord Kemp, 4 id. 147. The former cases are Chief Justice agreeing to this decision ; in the Supreme Court and Court of Ap- Curtis 0. Pugh, 10 A. & Ell., N. S. peals, and are as follows : Sprague !>. 113. Blake, 20 Wend. 61 ; Baker v. Cuyler, (k) Davis v. Eastman, 1 Allen, 422; 12 Barb. 667 ; McKnight ;■. Dunlop, 1 see, also, Deming u. Kemp, 4 Sandf. Selden, 537, which, the principal case S. C. 152 ; Saunders v. Topp, 4 Exch. itself, follows. In Boutwell v. O'Keefe 392 ; Elliott u. Thomas, 3 M. & W. there was no question of a presump- 176. tion, as the referee found as a, fact that (J.) Angel V, Ritch, 4 W. N. (Eng.) the delivery was under the contract. 241. 447 § 289.'] LAW OF THE STATUTE OF FRAUDS. [CHAP. X. man to keep the horses all winter; in the spring the govern- ment took them. This suit is for their winter keep, and, as there seems to have been a doubt whether the government did not make a new contract at a higher price, the burden of proof being on the claimant to show that there was no new contract in the spring, the case was remanded to allow this point of fact to be settled, and the court said : "If in this case there was a faithful performance on the part of the contractor, and a benefit received on the part of the government, there is no reason why it should not operate as a legal ratification by the defendant of the agreement, therefore the whole case turns on this subsequent transaction. If the defendants did accept the horses in the spring under the agreement made in the fall, at the same price, and in their improved condition, they must be deemed to have taken them with the burden of their win- ter's keeping, and, by reaping the advantages, to have ratified the obligation of their agent's agreements. On the contrary, if the claimant in the spring ignored his unbinding bargain of the fall before, selling to the defendants by a new agree- ment, and receiving a better price, there can be no propriety in the court aflirming a transaction which the claimant has himself ignored. "(?() A tortious taking possession of goods sold is not a good acceptance.(o) § 289. The delivery or acceptance must be with the assent Delivery or ^^ *^® Other party.(p) Where Cochrane, an agent, acceptance a defendant, acting under oral authority, delivers, must be i with the without a written sale, goods to another defendant, the other ^-i and before the delivery the owner of them or- party. jgj,g ^.j^g agent to sell only under his, the seller's, direction, the Statute of Frauds applies; and when the de- livery took place the goods were the [iroperty of the original owner, the sale to IT. being invalid. (y) So where the buyer took a bill of lading without the seller's consent.(r) Where (n) Danolds i\ United States, 5 Ct. (q) Lynn v. Cochrane, 23 Low. Can. of CI. 71. Jur. 238 (Q. B.). (o) Taylor u. Wakefield, 6 E. & B. (i) Brand ... Focht, 1 Abb. App. 768. Dec. 185. (p) Washington Ice Co. v. Webster, In a case in Maine it was said that 62 Me. 355. " the taking possession of the ice with- 448 CHAP. X.J DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 290. the buyer, contrary to the contract, took his goods prema- turely, and the seller ordered them returned, but the latter afterwards adopted the contract and directed the buyer to keep the goods, there is no compliance with the Statute.(s) So where the delivery was by the seller's servant to the buyer, who refused to pay cash as the contract required, but kept the goods.(f) § 290. A delivery and acceptance subsequent to the contract itself is good.(?^) If the contract is unrevoked(?;) a subsequent acceptance of other goods than those ^envery™' destroyed will not, however, enable the buyer to sue a ^^^ accept- , , , ance. common carrier in whose hands the first goods were destroyed. (w) N"or under such circumstances would an insurer be liable on a fire policy. (x) It can be shown that the delivery and acceptance is under the contract, though part was carried out at one time and part at another.(2/) It must out, or against, his consent is not a receipt or acceptance binding him. The forcible seizure of property sold, when the sale is void by the Statute of Frauds, cannot be deemed an acceptance or re- ceipt within its provisions. If it were so, it would be to affirm judicially the rule that might makes right. Nor does the seizure of the ice by this writ of re- plevin, and a, delivery of the same by an offer to the plaintiff, constitute a statutory receipt and an acceptance by the purchaser. The defendant not having signed the memorandum of sale transmitted for his signature is not bound thereby. A seizure of the ice by force, or under color of legal process without payment therefor, is not a receipt or acceptance thereof within the Statute of Frauds ; Washington Ice Co. u. Webster, 62 Me. 360. (s) Baker v. Cuyler, 12 Barb. 667. (<) Leven v. Smith, 1 Denio, 571. (m) Morse v. Chisholm, 7 U. C. C. P. VOL. I. — 29 133; Sloan Saw-mill Co. «. Guttshall, 3 Col. 14 ; Marsh v. Hyde, 3 Gray, 331 ; Davis V. Moore, 13 Me. 427 ; Bush c. Holmes, .53 Me. 417 ; Hewes v. Jordan, 39 Md. 481 ; McCarthy u. Nash, 14 Minn. 127 ; Pinkham v. Mattox, 53 N. H. (;02 ; Petrie v. Dorwin, 4 Tliomp. & Cook, 695 ; 1 Hun, 617 ; Passaic Co. u. Hoffman, 3 Daly, 504, 505 ; Chapin v. Potter, 1 Hilton, 368; Van Woert k. Albany R. R., 1 N. Y. Suprem. Ct. 256 ; Sprague v. Blake, 20 Wend. 64 ; Sale r. Darragh, 2 Hilt. 200, following Spragiie I,'. Blake, denying Seymour u. Davis ; see Baker v. Cuyler, 12 Barb. 668 (doubting and citing Seymour v. Da- vis) ; Amson v. Dreher, 35 Wis. 618. (f) Good V. Curtiss, 31 How. Pr. 10 ; see Taylor v. Wakefield, 6 E. & B. 768. {w) O'Neill v. New York R. R., 3 N. Y. S. C. 403 ; see infra, § 294. (x) Pitney ii. Glens Falls Ins. Co., 61 Barb. 343. ( y) Davis v. Eastman, 1 Allen, 422. 449 § 290.] LAW OF THE STATUTE OF FRAUDS. [CHAP. X. be before action brought ■,{z) delivery nine days after the con- tract is good. (a) So a delivery of grain in August and Septem- ber, under a contract made in the preceding June.(6) A series of deliveries of goods will be assumed in absence of evidence to be independent, and not under a previous oral contract.(c) The acceptance and delivery need not be together. (fZ) Subse- quent performance is sufficient, even though the time fixed in the contract has f)assed.(e) The effect of a subsequent accept- ance and delivery in consummating a negotiation gives rise to questions of interest. It has been said that the effect is to make a legal contract of a mere proposition, but not to make a new contract. (/) A part delivery takes a case out of the Statute, even when made after the time fixed for the perform- ance of a prior invalid parol contract had passed, if by the facts of the case the new contract, under which the part de- livery took place, sufficiently referred to the old contract to incorporate the terms. (^) In a case in the English Common Pleas the point, under the Statute of Frauds, stated to be a nice one, but not decided, was whether, where an oral contract for the delivery of the goods at a certain price is made, disavowed, or broken, and afterwards fulfilled, the vendee, who has suifered loss by the delay in fulfilment, has any remedy against the vendor; in other words, whether there was any contract until the delivery and acceptance of the goods, or whether such delivery took the original oral con- tract out of the Statute. To determine this question, the coun- sel for the plaintiff, arguing that the writing was merely a rule of procedure, and could, therefore, be made at any time (hence a later delivery and acceptance would satisfy just as a later writing), cited Leroux v. Brown, as deciding that an oral con- (z) Fricker o. Tomlinson, 1 M. & (d) Cross i'. O'Donnell, 44 N. Y. 661. (t. 772 [dubitatum) ; Morgan f. Sykes, (c) Damon v. Osborn, 1 Pick. 480. cited in Coats c. Chaplin, 3 A. & Ell., (/) Lawton u. Keil, 61 Barb. 558 ; N. S. 486 ; Tisdale c. Harris, 20 Pick. Marsh v. Hyde, 3 Gray, 331 ; Rickey v. 13. Tenbroeck, 63 iMo. 569 ; McKnight e. (a) Whitwell v. Wyer, 11 Mass. 9 ; Dunlop, 1 Seld. 542. see Barney v. Brown, 2 Vt. 377. (g) Damon v. Osborn, 1 Pick. 480, (6) McKnight v. Dunlop, 1 Seld. 642. citing Cooper v. Elston, as being by in- (c) Deming u. Kemp, 4 Sandf. Sup. ference an authority to support a sub- Ct. 152. sequent delivery. 450 CHAP. X.J DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 290. tract made in France and good there could be sued on in Eng- land, though within 29 Car. II. (A) A verbal sale of chattels was made on Sunday, and delivery on Tuesday following ; there was no completed contract till Tuesday, therefore the Sunday statutes did not prevent recovery. (i) It has heen held in Maine that, where there is subsequent part acceptance of chattels, the contract is valid from the time it was made, and not merely from the part acceptance. The court cited a number of in- stances, supported by authorities given, of the principle that the oral contract when made is valid, and if afterwards proved by a writiiig is enforceable.(_;') And it has been said that a subsequent delivery and acceptance has the same effect as if made at the time of the contract.(/c) In a late Massachusetts case it was said that "the memorandum required is the memorandum of only one of the parties ; the alternative acts of the seventeenth section proceed from one only ; they pre- suppose a contract, and are in affirmance or partial execution of it ; they are not essential to its existence, need not be con- temporaneous, and are not prescribed elements in its forma- tion ;" and the court added that the question presented to them was, " whether the date of the acceptance or the date of the agreement will be treated, as between the parties, as the time when the contract was made, and the risk of loss of the goods was cast on the buyer. No direct adjudication of this precise point is cited, if we except a New York case in which it seems to be held, in a fer curiam opinion, that a loss which happened after the original agreement, and before the accept- ance required by the Statute, must fall on the purchaser," and they held that the loss fell on the buyer.(?) Where a sale was made in Michigan of liquors, to be sent from Wiscon- sin to the buyers in Michigan, who were to examine them when received, delivery of the goods to common carrier in Wisconsin will not establish a contract there, and under the {h) Williams v. Wheeler, 8 C. B. N. (i) Buckingham u. Oaborne, 44 S. 299. Conn. 139. («) Bloxsome v. Williams, 3 B. & C. {I) Townsend v. Hargraves, 118 233. Mass. 332. ( J ) Bird V. Munroe, 66 Me. 341, cit- ing cases. 461 § 291.] LAW OF THE STATUTE OP FRAUDS. [CHAP. X. Michigan liquor law any transaction in the latter state could have no elFect in creating a coiitraet.(??2) § 291. It has been held that acceptance may precede de- livery. (??) Thus it has been said that " there may be deUvCTj"* ^ receipt without any acceptance, and an acceptance and accept- without any receipt: Blackburn on Sales, 22. Of ance. . . the former a familiar instance is a sale by sample, in which ease the bnyer may receive the goods to ascertain, before he accepts, that they agree with the samples. An in- stance of acce[)tance without receipt is where the sale is of a specific lot of goods, where the bargain itself identifies the goods as those sold, and as of the quality which the buyer agrees to buy." The court, after citing some authorities, English and American, added that: "In such case the buyer accepts when the bargain is made, though he may not receive the goods at that time."(o) But the value of this distinction is open to doubt. In a Wisconsin case the validity of a pre- cedent acceptance has been pushed ver}' far; it was held that where a sale of a house as personal property was made to one then living in it, the delivery is sufficient, and satisfies the Statute of Frauds, though there was no payment or writing, the law did not require the ceremony of a moving out and in again. (p) It is better said in a late iSTew York case that the Statute of Frauds applied where " there was no change of cir- cumstances, either in the parties or the goods ; no change of possession or of the character of the possession, and the defen- dant has done no act which can be construed into an accept- ance of the boiler. He has not changed its location or condi- tion ; never claimed it as his own; never refused to give it up; and,.in short, has neither exercised any act of ownership over it, nor has he done anything inconsistent with his rights under his prior possession. '\g) As has already been seen, if the buyer has examined and identified the goods he buys, a de- (m) Rindskop v. De Ruyter, 39 (o) Simpson u. Krumdick, 28 Miun. Mich. 5. 353. (n) Cusack o. Robinson, 1 B. & S. (/,) Snider «. Thrall, 56 Wis. 676. 299 ; 4 L. T. N. S. 506 ; 30 L. J. a. B. (ry) Duplex, etc., Co. c. McUinness,. 261, citing Morton v. Tibbett ; Taylort.. 1 City Ct. Rep. 439 ; (i4 How. Pr., 99. Wakefield, 6 E. & B. 768 ; (E:r parte) Safford; Downing (Re), 2 Low. 564. 452 ' CHAP. X.J DELIVERY AND ACCEPTANCE OP CHATTELS. [§291. livery to a carrier will work acceptance when under ordinary circumstances it would not. See supra, § 286. Where to make a stockholder liable to calls, an act of parliament required a written acceptance on his part of the share, it was held that a letter asking for shares and agreeing to accept them and pay calls was good, the analogy of an acceptance before de- livery of goods under the Statute of Frauds being instanced. (?-) In a case in the Common Pleas Division, which turned princi- pally on the validit}^ of the subsequent oral alteration of a written contract, the facts were as follows : 100 tons of iron were to be all delivered before the end of July ; and at the end of July but 75 tons were delivered ; and in October the buj'ers, the defendants, requested a delivery of the 25 remain- ing, and it was forwarded but not to the defendant's works, and he wrote, refusing to receive it. It was held that there was no sufficient delivery and acceptance ; that the request made a new contract, if it had any effect at all ; that, there- fore, there could not be any suit on the old contract, and that the new contract was within the Statute of Frauds.(5) It has, however, been said that acceptance must follow, not precede the delivery.(<) There has been a slight show of denial of the rule, that a subsequent delivery and acceptance is sufficient. In a New York case it was said : " That delivery by the seller is as essential as acceptance by the buj-er. The buyer wrote to his agent, and some time afterwards the seller wrote to the agent. Held that as the seller did not participate in the act of delivery sought to be inferred from the letter, nor the buyer in that of the second, there was no delivery to com- ply with the Statute. Held, also, that the act of delivery with notice to the factor must be concurrent with the con- tract. (m) And, in another case. Judge Sandford argued with much pains to prove that a delivery to take a case out of the Statute must be contemporaneous, and that each part perform- ance is a separate contract. (w) (r) Bog Lead Co. u. Montague, 10 (m) Clark v. Tucker, 2 Sandf. Sup. C. B. N. S. 489. Ct. 157. (s) Plevinsu. Downing, 1 C. P. D. 225. (u) Seymour «. Davis, 2 Sandf. Sup. (0 Acraman v. Morrice, 8C. B. 449 ; Ct. 242; see Cross v. O'Donnell, 44 N. Saunders v. Topp, 4 Exoh. 392. Y. 6fil. 453 § 292.] LAW OF THE STATUTE OF FRAUDS. [CHAP. X. § 292. The delivery and acceptance of part of the goods is a compliance with the Statute of Frauds as to the Part de- i i / \ a n • • i i ■ i livery and vvhole.(ii;) An allegation in the complaiot that part acceptance. ^^ ^j^^ goods were delivered, not denied in the an- swer, takes the case out of the Statute of Frauds ; any part performance of a contract of sale of goods by either party takes the case out of the Statute.(x) Part delivery and ac- ceptance is good, though thereby the seller is enabled by perjury to impose upon the buyer more than the latter has bought. (j/) Part acceptance is sufficient, even though a part of the goods is lost. (2) Part delivery and acceptance is good, even though an action for goods sold and delivered might not lie.(«) A decision in the King's Bench seems to have gone the length of supporting an action for goods sold and deliv- ered on the fact of a part acceptance: There was a bargain, whereby the defendant agreed to buy twenty hogsheads of sugar, to be prepared or filled up by the plaintiffs. Four of the twenty hogsheads were actually delivered to the defend- ant and accepted by him ; so, as to them, there is no ques- tion. The plaintiffs did, in point of fact, appropriate sixteen hogsheads for the benefit of the defendant ; that they com- municated to the defendant that they had so appropriated (lo) Descard i;. Bond, 2 Stark. Ev. saic Man. Co. c. Hoffman, 3 Daly, 519 ; (Gerhard) *488 (note n). Lord Hard- Van Woert v. Albany, etc., R. R., 1 wicke, 7 Geo. II. 132 ; Thomas (Ex p.), N. Y. S. C. 256 ; Richardson v. Squires, Thorp (Re), 11 .Jur., N. S. 49 ; Furniss 37 Vt. (340 ; Dauforth v. Walker, 40 Vt. V. Sawers, 3 U. C. Q. B. 77 ; Robinson «. 257 ; Amson v. Dreher, 35 Wis. 618. Gordon, 23 U. C. Q. B. 147 ; McNeil i-. (x) Dennison «. Carnahan, 1 E. D. Kelleher, 15 U. C. C. P. 473 ; Jackson Smith, 146. V. Fraser, 12 Low. Can. 112 ; Fagan v. (y) Davis v. Moore, 13 Me. 427. Faulkner, 5 Ark. 164 ; Swigart „. Mc- (z) O'Neill v. New York, etc., R. R., Gee, 19 Ark. 473 ; Sloan Saw-mill Co. 3 N. Y. S. C. 403. u. Guttshall, 3 Col. 14; Bryan v. South- Thus, where goods were shipped in western R. R., 37 Ga. 31 ; Baker u. the way generally indicated by the Farmborough, 43 Ind. 243 ; Townsend buyer, and upon the vessel which oar- V. Hargraves, 118 Mass. Rep. 332-3-4- ried the goods being wrecked, aportion 5-6 ; Davis v. Moore, 13 Me. 427 ; At- of the cargo was saved, and the buyer wood u. Lucas, 53 Me. 508 ; Rickey v. took and sold that portion, the oral Tenbroeck, 63 Mo. 569 ; Kelsea v. contract was taken out of the Statute Haines, 41 N. H. 251 ; Marcus .. Bar- of Frauds ; Goddard . . Demerritt, 48 nard, 4 Roberts. Sup. Ct. 219 ; Dennison Me. 211. V. Carnahan, 1 E. D. Smith, 146 ; Pas- (a) Atwood o. Lucas, 53 Me. 508. 454 CHAP, X.] DELIVERY AND ACCEPTANCE OF CHATTELS, [§ 292. them, and requested him to fetch them away, and that he adopted that act of the plaintifls, and said that he would fetch them away as soon as he could. (6) In an action for the non-delivery of goods sold : The plaintiff was to arrange as to their delivery; part were unloaded and accepted before he received a notice from the defendants that if not un- loaded by a certain day the contract was rescinded ; on that day part had been accepted by the plaintiff; the part deliv- ery and acceptance satisfied the Statute of Frauds, and the title in goods having passed before the receipt of the notice the latter had no effect. (c) The delivery and acceptance of goods similar to, but less in amount than a certain lot sold by parol, to take the case, as to the latter, out of the Statute of Frauds must be shown to be a part of them, and delivered in fulfilment of a contract covering both ; a judgment in a suit relating to the former, charging them at a different price from that of the parol agreement, is conclusive against such a con- tention. (li) A part acceptance of certain casks under a bill of parcels averaging ninety-seven gallons, will take the entire contract under which they are received out of the Statute of Frauds ; but the number of gallons in each cask is to be taken as that in the lot accepted, the contract being silent on this point, and this though the customary hogshead was larger.(e) Where cattle sold were left with the vendor while the vendee made up his drove is semble not of itself sufiicient delivery under the Statute of Frauds ; but where the vendee took away some of the lot the delivery was sufiicient to take the whole contract out of the Statute, the taking of these away in- dicating a dominion on the buyer's part over all of them. (/) In a New Hampshire case it was said that "acceptance of part of the property sold is by the Statute made sufiicient. Can it be contended that acceptance of part is good as to the rest only when the property is so situated that the legal title to the whole passes upon acceptance of the part delivered ? We (6) Rohde v. Thwaites, 9 D. & R. (rf) Davis v. Eastman, 1 Allen, 422. 296 (K. B.). (e) VPhitWBll v. Wyer, 11 Mass. 9. (c) Harteau v. Gardner, 51 N. Y. (/) Vincent v. Germond, 11 Johns-. 678 ; see Danforth v. Walker, 40 Vt. 283. 257. 455 § 293.] LAW OP THE STATUTE OF FRAUDS. [CHAP. X. think not."(^) Even where a small part of the goods being taken the buyer is not entitled to the rest, which the seller continues to hold until full payment, the Statute of Frauds is satisfied. (/i) A buyer cannot select a portion and reject the residue, and then claim that the Statute of Frauds was not satisiied.(i) Where the purchaser of barrelled fish paid for some, had the barrels examined and put into good order, indi- cated those in worthless condition (which -the seller took away), then paid for more, then a quantity were stolen from the warehouse of the seller's agent, and then the buyer took the rest, it was held that the title in all, including those stolen, vested in the buj^er; and that even without a receipt signed b^- the plaintifii''s agent for the first payment, stating the goods to be at buyer's risk, they were so.(j') § 293. Sales by sample have given rise to some difificulties peculiar to themselves ; the question generally being sample^ whether the sample delivered was accepted as part of the whole body of the goods sold. In an early English case it was said that the delivery of a sample which is no part of the commodity will not take the case out of the Statute ; but if the sample delivered is to be considered as a part of the thing sold it then binds the contract. It is then an execution of the bargain. The sale in this was complete when the invoice was delivered, and the defendant afterwards took samples. He took them for his own use ; they were de- livered as part of the bulk, not as an ordinary sample to guide his judgment previous to a purchase, but in order to give him possession of the thing itself.(/i:) So it has been said, where ■part of the goods have been taken as a sample, there is a sufli- 'Cient delivery and acceptance if the part so taken is to be esti- mated as part of the goods sold and to be paid for ; that it was taken alio intuitu, i. e., for a sample, does not affect this.(?) It is for tlie jury to say whether the sample was delivered and (<7) Phikham o. Mattox, 53 N. H. (,/) Chase v. Willard, 57 Me. 161. 602. (k) Talver v. West, 1 Holt, 179 ; see (A) Thompson v. Macirone, 4 D. & R. Moore v. Love, 57 Miss. 766. 6211. (0 Hinde v. Whitehouse, 7 East, (i) Hayman?;. American Sponge Co., 568. ■6 N. Y. Week. Di^. 358 (N. Y. S. C). 456 CHAP. X.] DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 294. accepted as part of the goods or not.(?n) Where the samples are taken from the bulk of the goods purchased after the pur- chase, they form a part delivery ami acceptance to satisfy the Statute of Fraud8.(n) Where the vendee received part of the bulk of certain wheat, which was to weigh a certain amount, but which could not without including the portion so taken ; this was held a good acceptance. (o) Where the sample forms no part of the goods sold, its transfer does not comply with the Statute of Frauds.(;?) It is not the mere taking of a sample that will amount to a delivery. A mere taking a sample in his hand without any express understanding that such taking was to be a delivery will amount to nothing.(g) Where samples are treated by the parties as specimens only of the goods sold, a delivery of them to the buyer does not satisfy the Statute of Frauds. (?■) § 294. The following are some examples of insufficient part delivery and acceptance. Thus an acceptance which J t- f Example of was not with an intention to perform the whole iusuffleient contract and to assert the buyer's ownership under iiveiy and it, but, on the contrary, he immediately informed acceptance. the seller's clerk that he would be responsible only for the part received(s), and so, where the part taken was not a part of that contracted for, the latter being for so many bushels after the part aforesaid had been taken. (0 In a New York case it was said that part delivery was good where the contract is of a quantity capable of division. But secus of a sale of a " cargo" or "load." Therefore, the plaintiffs having accepted a cargo of much less than the amount described in the contract as "about 9000 bushels," cannot sue for non-delivery of the rest.(M) Where the plaintiff, the owner of wood, carried it to a certain point at the suggestion of the defendant ; when (m) Klinitz v. Surry, 5 Esp. 267 ; (p) Cooper v. Elston, V T. R. 16 ; Moore v. Love, 57 Miss. 766. Johnson v. Smith, Anth. N. P. 81. (m) Gardner v. Grout, 2 C. B., N. S., (q) Carver v. Lane, 4 E. D. Sm. 170. 343, distinguishing Simonds v. Fisher (r) Moore v. Love, 57 Miss. 766. as a case where the sample in fact (s) Atherton v. Newhall, 123 Mass. formed no part of the goods sold. 142. (o) Gilliat V. Roberts, 19 L. J., N. S., (t) Baker v. Cuyler, 12 Barb. 668. Exoh. 410. (m) Flanagan v. Demarest, 3 Roberts. 181. 457 § 295.] LAW OF THE STATUTE OF FRAUDS. [CHAP. X. there, the latter examined it and agreed to take such aa was good but rejected the rest. The plaintiff alleged a contract to take all, but the defendant showed that the usage was to ex- amine and take only the good, and for the part accepted the defendant tendered payment. A verdict against him for more was set aside, his acceptance for part did not bind him for all when qualilied by a rejection, the contract itself was at issue between the parties, and was the very case that the Statute of Frauds was aimed at.(?;) In a suit by the buyer of certain cider against a common carrier in whose hands the latter had been destroyed, it was held that the plaintiff failed under the Statute of Frauds to show his title to the goods, and that the subsequent acceptance of other cider than that destroyed, and paj'ment for that destroyed, did not relate back so as to place the title in him at the time of its loss so as to make the rail- road liable to him.(w) So in an action on a fire policy, it was held in a New York case, that the subsequent acceptance by the purchaser of that part of the wool which was saved from the fire had no eft'ect upon the rights of the assured under the policy. For, although a partial acceptance of the property will ordinarily take the sale of the entire quantity out of the operation of the Statute of Frauds, it cannot have that eft'ect upon that which may have previously been wholly destroyed by fire. As to that the obligations and rights of the parties become fixed whenever the destruction may take place, and the right of action arising out of the loss can afterwards only be divested by a release, payment, or satisfaction. (a;) § 295. A question of some delicacy arises in the not unfre- quent case of a sale of several lots of goods and the eiT*etc^'^ acceptance of the whole or the part of one lot ; in where sev- some instances the transaction covering several par- eral lots . =■ '- are sold eels has been considered entire, and the whole con- exampies tract taken out of the Statute of Frauds by a de- contracts livery and acceptance ; in others each portion has been considered as an independent matter, and the ((•) Grover v. Cameron, 6 U. C. Q. B. (w) O'Neill u. New York, etc., R. R., 0. S. 197 ; see, also, Hayman v. Ameri- 3 N. Y. S. C. 403. can Sponge Co., 6 N. Y. Week. Dig. (x) Pitney v. Glen Falls Ins. Co., 61 358 (N. Y. S. C). Barb. 343. 458 CHAP. X.J DELIVERY AND ACCEPTANCE OF CHATTELS. [§ 295. aceeptaiice of one as of no effect in regard to the others. The following are examples of entire contracts : Thus it was held, there being no memorandum or delivery and acceptance, that the price or value of the goods sold amounted to more than £10 under the following circumstances: the defendant bought several articles, each separately agreed upon, and no one more than £10, the whole being £70 ; some were measured in his presence; some he marked with a pencil, and others he as- sisted in cutting from a larger bulk ; upon being delivered he refused to accept them ; the contract was entire, and the Stat- ute of Frauds applied. (?/) Thus, where the plaintiff sold the defendant a mare for £20, received the price, and delivered the mare; it was part of the contract that if the mare proved with foal the defendant was to return it upon the plaintiff's paying him £12 ; it was held that this was all one contract, and was taken out of the Statute of Frauds by the delivery. (z) On a joint order for common and cast steel, acceptance of the former will take the whole contract out of the Statute of Frauds. In absence of other evidence, it will be assumed that one article would not have been sold at the stipulated price unless the other was taken at its stipulated price. (a) Inal^ew Hampshire case a contract for all the wood on a certain tract, estimated at a certain number of cords, to be taken off at a certain time, was held to be an entire contract; so that the delivery and acceptance of a part took the whole case out of the Statute of Frauds, and it was said that this was the rule even where the lot consists of different articles each with its own price.(6) Several properties sold jointly may form an entire transaction, so as to make a part acceptance effective as to the whole.(c) A part acceptance under an entire contract by an auctioneer of goods, belonging to several undisclosed owners, is sufficient even as to owners none of whose goods were delivered.(rf) So, where goods, as bales of hay, are capable ()/) Baldey v. Parker, 2 B. & C. 40. (6) Gault v. Brown, 48 N. H. 1S5, (z) Williams v. Burgess, 10 A. & Ell. citing cases ; see Bigg v. Whisking, 14 5.02, distinguishing Watts v. Friend as C. B. 198 ; Van Woert v. Albany R. R., a case of two distinct contracts. 1 Th. & C. 256. (a) Elliot V. Thomas, 3 M. & W. 176; (c) Field v. Runk, 2 Zab. 523. Hodgson i\ Le Bret was thought to have (rf) Mills v. Hunt, 17 Wend. 333. been shaken by Baldey v. Parker. 459 § 295.] LAW OP THE STATUTE OF FRAUDS. [CHAP. X. of division, a delivery of part, the weight, quality, etc., being marked on them, and the parties agreeing to abide by these marks, will transfer the title, under the Statute of Frauds, in the whole of the goods to the buyer, and the whole is then at his risk ; the transfer was going on under the buyer's superin- tenJence when the goods were destroyed by fire.(e) In a case in 12th Meeson & Welsby, Lord Abinger said: "I think the order for the i-eady-made lamps and that given for the trian- gular one amounted but to one contract. Can it be said that, if a man goes to a tailor's shop, and buys a suit of clothes which are ready made, and at the same time orders another suit to be made for him, and the former are sent home to and are accepted by him, he is not bound to pay for the latter? The two stat- utes that have been referred to must be construed as incorpo- rated together, and then it is plain that, where an order for goods made and for others to be made, forms one entire con- tract, acceptance of the former goods will take the case out of the Statute as regards the latter also."(/) In the Supreme Court of the United States it was said that " where goods are purchased in several parcels, to be paid for at a future day, the whole, within the meaning of the Statute of Frauds, constitutes but one contract, and the delivery of part to the purchaser is sufSeient to take the case out of the opera- tion of the Statute of Frauds." Said the court: "Apply the finding of the jury, in this case, to the conceded facts, and it shows that the defendants were in the situation of a purchaser who goes to a store and buys different articles, at separate prices for each article, under an agreement for a credit, as in this case, accepting a part, but leaving the bulk to be for- warded by public conveyance. Frequent cases of the kind occur; and it is well-settled law that the delivery of a part of the articles so purchnsed, without any objection at the time, as to the delivery, is sufficient to take the case out of the Statute of Frauds as to the whole amount of the goods. "(^) So where a purchase is made at an auction sale, at one time (e) Bradley v. Wheeler, 4 Roberts. (. Trustees of R. C. Church, R. M. Charlton Rep. 552. (u) King V. Gunnison, 4 Penn. St. 171, the court saying that by custom in Pennsylvania in an administrator's sale, there was no other writing than the return of the administrator to the order of sale and its confirmation by the court. " A written contract be- tween the administrator and the, pur- chaser would be without value before the sale was confirmed, and totally use- less when it was confirmed." Cash v. Tozer, 1 W. & S. 519, was relied on as deciding that sheriff's sales are not within the Statute of Frauds, which it does not do ; see Rorer on Jud. Sales, 2d ed. § 138. (w) Brooks u. Walker, 3 La. Ann. 152 ; Bushnell v. Brown, 8 Martin, N. S. 158. 475 § 807.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XI. Frauds. (a;) But the rule is otherwise when the trustee sells under a decree in chancery. (y) A written advertisement or notice of his sale signed by the trustee is not sufficient under the Statute of Frauds, because it is intended to show not a sale, but a purpose to sell, and the memorandum under the sale must be made at once ; see § 312.(2) § 307. That it is because a judicial sale is under the control of the court the Statute of Frauds does not apply, is How far clear, but whether the master's memorandum satis- connrma- _ ' tion by ties the Statute, or whether a confirmation by the necessary, court is essential, is not so clear. It will not be contended that the Statute of Frauds requires that a master's sale should be confirmed by the court, but it is said that such confirmation is the reason for excepting this species of sale from the general rule, and no one will now probal)ly deny that a confirmation should have that etfect. The ques- tion, however, that remains is, whether a confirmation by the court is essential ; whether the master has power to make the memorandum under the Statute, and whether, if such memo- randum is part of the record, it is not sufficient even if not signed by him ; what should be the nature of the memo- randum made by him is a further consideration. The con- firmation by the court will, without there being a memoran- dum signed by the master, take the sale out of the Statute of Frauds.(a) That the confirmation was the only cflicacious circumstance was strongly urged in an Alabama case.(6) There {x) Ingram v. Dowdle, 8 Ired. (N. (J) Hutton u. Williams, 35 Ala. 515 ; C.) 456 ; White v. Watkins, 23 Mo. citing Attorney-General v. Day, Blag- 426. den v. Bradbear, Smith v. Arnold, Gor- (y) Harrison v. Harrison, 1 Md. Ch. don v, Sims, Brent v. Green ; Sngden Dec. 335 (citing oases). on Vendors, p. 135, and Browne on S. (z) White <•. Watkins, 23 Mo. 426 of F., § 265, and observing that in (denying Hobby v. Finch, Kirby, 14). Simonds v. Catlin, Kent passed by the (a) Attorney- General v. Day, 1 Ves. question of confirmation ; see .Jenkins Sr. 22(1 ; in Simonds r. Catlin, 2Caines, v. Hogg, 2 Constit. Rep. 834 ; Bozza v. 61, Chancellor Kent thonght that Eowe, 30 111. 200, and Smith w. Arnold, the assent by the parties in the former supra. In a bankruptcy case in Eng- case, being made part of the record, land the importance of the confirma- was the fact which satisfied the Stat- tion of a master's sale was made the ute, and that masters', etc., sales are ground of distinction between such sale always consummated by a conveyance, and the one before the court, it was 476 CHAP. XI."] PUBLIC AND QUASI-PUBLIC SALES. [§ 307. is a difference between the proof of an equitable title and that of the full legal title, the latter requiring a decree of the court, while the former does not necessarily do so. Thus it was held that where one bought land at a judicial sale, and was let into possession, he could not defend himself at law when sued upon notes given for the purchase-money, upon the ground that till a decree of the court directing title to be made to the vendee was made, the title was still in the former owners.(c) And where a decree in divorce transfers real estate from one party to another, the judgment roll should contain a descrip- tion of the \a.nd.{d) In Louisiana, where the judge conducts said that : "Now, in judicial sales be- fore the master the purchase is com- pleted before him, not at the chambers of the solicitors ; and the court alone, and not the vendors, can annul the sale or decree interest to be charged, and in case of errors or misdescription the master, under the direction of the court, makes an allowance, and not the vendor. The consequence of these circumstances is that, even if I thought the court of review had jurisdiction by analogy to the jurisdiction of this court, still I should say such analog- ous jurisdiction could be exercised only by borrowing the forms used on such occasions by this court, which has not been done. On sales before the master there is no binding contract till the master's report is confirmed ; here the parties were bound by sign- ing the agreement of sale. In chancery the proceeding is not concluded till the master's report is confirmed, which is proved by the fact that till then the biddings may be opened on a proper case made ; in the present case the agreement was conclusive. Sales be- fore the master are not within the Statute of Frauds, which is not the case under such sales as the present." Ex parte Cutts ; Re Goren, 3 M. & Ayr. 675. (c) Worthiugton v. McRoberts, 7 Ala. 816, the court said : " We under- stand the objection to the proceeding in the Orphans' Court to be, that there was no order made by the court direct- ing the title of the land sold under its order to be made to the purchasers ; it is doubtless correct that until such order is made the title of the heirs is not divested, as was held in Lightfoot V. Lewis's Heir, 1 Ala. Rep. 475, and again in Bonner i. Greenlee's Heir, 6 Ala. Rep. 411 ; but that would be no defence to an action on notes. In Rhodes, Adm'r, o. Storr, at the present term, we held that a recovery could be had upon a promissory note given for the purchase of land, although the land had not been conveyed, and there was no memorandum or note, in writ- ing, by tile vendor of the terms of the contract. That case is certainly as strong as the present. Here the land was sold by order of the Orphans' Court, the notes executed for the purchase-money, the sale approved by the court, and the purchaser let into possession." See White v. Beard, 5 Porter, 100, as to liability of vendee on notes given for price of land sold by parol. (d) Bamford v. Bamford, 4 Or. 35. 477 § 307.1 LAW OF THE STATUTE OF FRAUDS. [CHAP. XI. the entire proceeding, his memorandnm is plainly sufficient.(e) The memorandum made by the officer selling, as, e.g., a master in equity, is sufficient semhle without more ;(/) or, again, a cer- tificate is sufficient given by the referee who sold under the foreclosure of a mortgage.(^) When a sale of school lands is made in Wisconsin the statute authorizes and directs the commissioners to give a certificate of sale. (A) So in an analo- (e) Faulk i. Piimell, 6 Robin. 26, where it was held t)ie proces-verbal of adjudication, annexed to the plaintiff's petition, is only signed by the parish judge ; and although this court has several times held that the procfes- verbal of the adjudication of property sold by the court of probates is evi- dence of the sale, and that no act under the signature of the parties is neces- sary to perfect it (6 Mart. 372) ; and that the proces-verbal of a sale, made by the parish judge, in which a mort- gage is retained and duly recorded, is full evidence of the mortgage (2 La. 460) ; still such evidence, for the pur- pose for which it was used, in our opin- ion, must be of the nature required by law for the issuing of executory pro- cess thereon, as if it were of a different character it would not import a con- fession of judgment (Code of Practice, art. 733) ; and Freret v. Meux, 9 Robin. 416, where, speaking of art. 2.586 of the Civil Code, the court said this article provides that " the adjudication is the completion of the sale, the purchaser becomes the owner of the object ad- judged, and the contract is from that time subjected to the same rules which govern the ordinary contract of sale." In judicial sales the adjudication is, of itself, a complete title, and need not be followed by an act passed before a no- tary (ib. art. 2601); although, in auc- tion sales of real estate, an act of sale is to be passed, yet the procfes-verbal or certificate of adjudication, drawn up by the aiictioneer, is as binding on the 478 parties as would be an agreement to sell in writing. The signed declara- tion of that officer is made by law to supply the written assent of the pur- chaser, while that of the seller must be given previous to the exposure of the property for sale ; and Brooks u. Walker, 3 La. Ann. 165, holding that as the proces-verbal of an administra- tor's sale stated that the land sold was to be held as mortgaged for the price, and this is sufficient to create the mortgage, the proces-verlial being signed by the purchaser and the parish judge, though not signed by the admin- istrator or his agent. So a procfes-verbal of a sale by the register of wills in New Orleans is evi- dence of title ; Bushnell c. Brown, 8 Martin, N. S., 158. A parish judge, selling real estate of a decedent, per- fects his sale by signing the procfes- verbal, until then the evidence is in- complete ; Jackson v. Williams, 12 Martin, 347 ; see Daquiu v. Coirow, 6 Martin, N. S., 679. A sale of chattels by the probate court must be evi- denced by a private signature or an authentic act, and the latter need not be signed. (_/") National Fire Ins. Co. i\ Loomis, 11 Paige, 431 (dictum). (: Crew, 16 Ga.421 ; Burke v. Haley, 2 Gilm. 614 ; Lake u. Camphell, 18 111. 109 ; Ennis I. Waller, 3 Blaokf. 476 ; Norris u Blair, 39 Ind. 94; see Leavittu. Watson 37 la. 93 ; Martin v. McFadin, 4 Littell 242; Pike u. Baich, 38 Me. 302 O'Donnell v. Leeman, 43 Me. 160 Horton v. McCarty, 58 Me. 394 ; Spen cer r. Pearce, 10 G. & J. 299 ; Davis v. Howell, 2 Pick. 64 ; Morton v. Dean 13 Mete. 387 ; Jelks v. Barrett, 52 Miss 322 ; Johnson u. Buck, 35 N. J. L. 340 Davis (•. Robertson, 1 Const. Rep. 71 Cochran v. Roundtree, 3 Strob. 219 Id., 233 ; Brent r. Green, 6 Leigh, 23 Smith u. Jones, 7 Leigh, 170 ; see 16 Amer. Jur., 295 ; see Ross on Vend., p. 25 ; 10 Leg. Obs., 240 ; 1 Cent. L. J., 380 ; Irish Law Times (July 4, 1874) ; 22 Amer. L. Reg., N. S. 9 and 12; 8 South. L. Rev., N. S., 594; Amer. L. Rev., Feb., 1883 ; as to oral biddings, see 1 Coop. Eq. Dig. (Can.), 84. (/) Wm. Black, 600 ; 3 Burr., 1921. CHAP. XI.] PUBLIC AND QUASI-PUBLIC SALES. [§ 314. had said that the Statute did not apply to such sales ; and it was not till after the case had been distinguished Auction and explained in a variety of modes, that the die- ^*^''^- turn therein was finally overruled. (^) Thus, in one decision, while Lord Ellenborough(A) expressly denied the dictum in Simon v. Metivier, the rest of the court declined passing upon the point. Lord Ellenborough thought that it would be dan- gerous and uncertain to go outside of the Statute of Frauds to ascertain what degree of publicity in a sale would be an adequate safeguard against frauds and perjury. The plea for making this exception has generally been that auction sales are so public that there is no need of a writing,(z) but this has, on the other hand, been denied to be a fact, and the litigated cases as to public sales are instanced. (J) It was held, in some of the earlier cases, that Simon v. Motives applied only to goods and not to land. (A) But later authority has taken away all value from the distinction by regarding both classes of sales as within the Statute.(^) In Louisiana a sale at auction is complete by the adjudication, but the law requires an act of sale or other written evidence of the contract ; the pur- chaser, too, has a right to a conveyance.(m) (j) There is also dictum of Le Blanc, case of lands, they do not notice the J., at nisi priusm Bradshawt). Fletcher, dictum that auction sales of goods are cited in Fell on Guaranty (Amer. ed.), not within the Statute. p. 375, following the dictum in Simon {I) Mason v. Armitage, 13 Ves. 36 u. Motives ; see Fell's remarks thereon, (saying that the 4th and 17th sections (A) Hinder. Whitehouse, 7East, 568. are alike on this point); Buckmaster (i) See Gill v. Bicknell, 2 Gushing, c. Harrop, supra, criticizing Walker v. 358, where it is said that auction sales Constable, supra, and Stansfield v. being open and notorious, there is less Johnson, supra; Sanderlin c. Trustees danger of perjury as to the contract of of R. C. Church, R. M. Charlton, 552 sale. (citing Buckmaster v. Harrop, supra, (j) Blagden «. Bradbear, 12 Ves. Jr. and Coles u. Trecothick, and other 471 (distinguishing Simon ». Metivier cases, and denying the dictum in Simon as a case where there was a sufftcient o. Motives, and doubting whether it de- naemorandum). cided more than that the auctioneer (k) "Walker v. Constable, 2 Esp. 661 ; was the agent of both parties to make 1 B. & P. 306; Stansfield v. Johnson, the memorandum) ; Hunt v. Gregg, 8 1 Esp. 102 (which, while admitting Blackf. 108 (citing cases) ; and see that under Simon v. Motives the auc- infra. tioneer may make the memorandum in (;n) Canal Bank i/. Copeland, 6 La. a sale of goods, deny this power in the 550. 489 § 315.] LAW OF THE STATUTE OF FRAUDS. [CIIAP. XI. § 315. The auctioneer is agent for both parties to make a memorandum binding them to the contract.(H) It agent*of*"" ^^^ '^^^u said that this is so if the entries are legally both parties niade.(o) The auctioneer must make a memoran- to make ^ •' _ memoran- duni, and till he has done so no one is bound ; and though the hammer has fallen he may reopen the sale and take a higher bid.(p) The auctioneer is the vendor's agent till the knocking down of the hammer, which makes him the vendee's agent. (g) It has been said that a buyer at an auction sale may revoke the auctioneer's authority after the land has been knocked down to him, if before his name has been signed to the contract by the auctioneer.(r) The vendor employs the auctioneer to make the memorandum, and the buj^er bj' bidding sanctions the authority of the oflBcer to (n) Simon v. Metirier, Wm. Black. 600 ; White '.•. Proctor, 4 Taunt. 212 ; Emmerson u. Heelis, 2 Taunton, 38; Buckmaster v. Harrop,7Ves.341 ; War- low V. Harrison, 1 E. & E. 306 ; Glen- gal (Earl of) V. Barnard, 1 Keen, 788 ; Kemeys v. Proctor, 1 Jac. & W. 350 ; 3 V. & B. 57 ; Shelton . . Livius, 2 Cr. & J. 414 ; 2 Tyrw. 432 ; Wood v. Mldgley, 2 Sm. & G. 115 ; Arden r. Brown, 4 Cranch, C. C. 121; Button u. Williams, 35 Ala. 514; see Ala. Code, §§ 1798- 2122 (1876) ; see Cal. C. C, § 17ri8 (1873) ; Doty v. Wilder, 15 111. 407 ; Lake .-. Campbell, 18 111. 109 ; Yourt u. Hopkins, 24 111. 326 ; Ennis v. Wal- ler, 3 Bl'ackf. 476 ; Hart v. Woods, 7 id. 568 ; Hunt v. Gregg, 8 id. 109 ; Gill v. Hewett, 7 Bush, 10; Thomas i,. Trus- tees of Harrodsburg, 3 Marsh. 299 ; Singstack's Ex. v. Harding, 4 H. & J. 186; Ijams u. Hoffman, 1 Md. 423; Gill l: Bicknell, 2 Cush. 358 ; Morton V. Dean, 13 Meto. 387 ; Cleaves v. Foss, 4 Greenl. 1 ; Inhabitants of Alna u. Plummer, id. 263 ; Pike l-. Baleh, 38 Me. 302 ; O'Donnell r. Leeman, 43 Me. 160; Jelks o. Barrett, 52 Miss. 322; Johnson v. Buck, 35 N. J. L. 340 ; Mo- 490 Comb V. Wright, 4 Johns. Ch. 659 Cozine v. Graham, 2 Paige Ch. 179 Miller u. Pelletier, 4 Edw. Ch. 104 Hegeman c. Johnson, 35 Barb. 203 Price u. Durin, 56 Barb. 648 ; Earl v. CampbeU, 14 How. Pr. 333 ; Bleecker c. Franklin, 2 E. D. Smith, 94; Tall- man V. Franklin, 14 N. Y. 584 ; Gwath- ney v. Cason, 74 N. Car. 7 ; Davis v. Robertson, 1 Constitut. Rep., N. S. (Mill.) 71 ; Anderson v. Chick, Bailey's Eq. 118 ; Wolfe v. Sharp, 10 Rich. (So. Car.) 63; Brock v. .Jones, 8 Tex. 79; Dawson ,j. Miller, 20 Tex. 173 ; Smith I'. Joues, 7 Leigh, 170 ; Bamber r. Sav- age, 8 Nor. W. Rep. 610 ; 52 Wis. 113 (citing cases). (o) Jacheus v. Nicolson, 28 Alb. L. J. 17 (S. C. Ga.) (p) Pike V. Balch, 38 Me. 302. (j) Payne t . Cave, 3 T, R. 149 ; Simon u. Metivier or Motives, Wm. Black. 690 ; 3 Burr. 1921 ; Warlow v. Harrison, E. & E,; Uwathney v. Cason, 74 N. Car. 7 ; Jelks v. Barrett, 52 Miss. 322. (r) Eckroyd v. Davis, 3 Vict. Law Rep. 228, as cited in 30 Moak, 670. CHAP. XI.] PUBLIC AND QUASI-PUBLIC SALES. [§ 315. do so.(s) The auctioneer must be a public one, and not a mere agent of the vendor.(<) In an English chancery case, before Stuart, V. C, a memorandum made at a private sale, carried through by an auctioneer entrusted with the public sale of it, was held sufficient to bind the buyer, but on appeal this was reversed, and as tlie defendant had refused to sign, specific performance was refused.(M) An auctioneer is not ex vi termini agent for both parties, but the extent of his authority may be modified by the circumstances of the particular case; therefore, where a buyer bid under a previous agreement as to a particular mode of payment, she was not bound to the con- ditions of the sale merely by the auctioneer's putting down her name.(?;) The earlier authorities which raised the question, whether or not an auction sale is within the Statute or not, found a further difficulty in the point that there was a difiEer- ence between a sale of goods and one of land, as regards the auctioneer's power to make the memorandum. (!<;) In Coles v. (s) Bird V. Boulter, 1 N. & M. 316 ; 4 B. & Adol. 446 ; Emmerson i'. Heelis, 2 Taunt. 38; Walker v. Herring, 31 Gratt. 683 ; Gill v. Bioknell, 2 Gush- ing, 258. («) Anderson !;. Chick, Bailey'sEq. 118. Bamber v. Savage, 52 Wis. 113. " In this case, as we have said, the auc- tioneer made no memorandum. The person who did make it was Mr. Con- nolly, who was acting exclusively as the agent of the plaintiff in the trans- action. He had no authority to act for the defendant, and did not assume to act for her in making the contract. And it seems to us it would be an ex- traordinary position to hold that he, acting as agent of the vendor after the sale was made by the auctioneer, could draw up a memorandum of the con- tract, sign it on behalf of his principal, and bind the vendee, who never saw it, nor assented to its terms. It needs no argument to show the unsoundness of such a position. There are cases which hold that where aeon- tract for the sale of land has been signed by the vendor, and delivered to and accepted by the vendee, the latter is bound by its terms, though he never executed it; Vilas c. Dickinson, 13 Wis. 488; Lowber v. Connit, 36 Wis. 177 ; Hutchinson i-. C. & N. W. R'y, 37 Wis. 582. But the doctrine of those cases does not aid the plaintiffs, because here tliere was no acceptance of, or even assent to, the terms of the memo- randum on the part of the defendant." (u) Wood V. Midgley, 2 Sm. & G. 115; 5 DeG. M. & G., 44. (v) Bartlett v. Purnell, 4 A. & Ell. 793 ; and see infra. (w) See Walker c. Constable, 2 Esp. 661 ; 1 B. & P., 306, and Stansfield v. Johnson, 1 Esp. 102 ; holding that in the case of a sale of land, the auc- tioneer could not make the memoran- dum, and these authorities were on principle approved by the Lord Chan- cellor and the Master of the Rolls, in Kemeys v. Proctor, 1 J. & W. 350; 3 V. & B. 57; which, how- 491 315.] LAW OP THE STATUTE OP FRAUDS. [CHAP. XI. Trecothick, however, Lord Elden denied the distinction, and said that the auctioneer could make a memorandum of the sale of land as well as that of the sale of goods ;(a;) and the authority of the auctioneer, to make the memorandum in the case of land, is now settled. (;;/) The right of the auctioneer to make the memorandum has been regarded with some doubt, even in the later authorities, but there is not enough dissent, however, to shake the rule.(^) In Kentucky it was formerly said, that the memorandum by the auctioneer, in his book, would not bind unless signed by the defendant, or by some one authorized by him. (a) The change in the law of New York, made by the revised statutes, has been described as follows : " Before the revised statutes it was settled that the auctioneer, in these public sales, is the agent of both the buyer and the seller, and that his entry of the name of the purchaser in his sales book, immediately on striking oiF the property to him, was a sufficient signing of the contract to bind the purchaser. The revised statutes require the note, or memoran- dum, of the contract to be subscribed by the party making the sale, or his authorized agent (E. S., Pt. II. c. 7, t. 2, § 4.). Here ever, followed on authority the com- mon law case of Emmerson lU Heelis, overruling the above decisions. In Walker a. Constable there does not appear to have been any memorandum at all made. (x) 9 Ves. Jr. 242, denying ruling of Eyre, C. J., in Walker a. Constable; see Buckmaster v. Hai;rop, and Stans- fleld u. Johnson, supra. (y) Kenworthy v. Schofield, 2 B. & C. 945, remarking, that in this connec- tion the 4th and 17th sections of 29 Car. II. c. 3, are the same ; Kemeys v. Proc- tor, 1 Jao. & W. 350 ; 3 V. & B., 57 ; Gordon v. Sims, 2 McCord, Ch. 164, citing English cases ; Doty v. Wilder, 15 111. 410, citing a number of English and American decisions, q. v. ; Cleaves V. Foss, 4 Me. 9 ; see Anderson v. Chick, Bailey's Eq. 118, considering the cases elaborately, but not deciding the point ; 492 but see S. C. on appeal, id. 125, follow- ing the later English rule ; Singstaok v. Harding, 4 Harr. & Johns. 192; see Sanderlin v. Trustees of R. C. Church, R. M. Charlton Rep. 652, citing the English cases, but not deciding whether the auctioneer can make the memoran- dum. (z) In Sanderlin v. Trustees, supra, the court, as has been said, would not decide the point. In Cleaves v. Foss, 4 Me. 9, supra, though admitted to be settled, the rule was doubted on prin- ciple ; so in Anderson v. Chick, Bai- ley's Eq. 118, supra; so in Smith v. Arnold, 5 Mason C. C. 414. (o) Martin u. McFadin, 4 Littell, 242 ; but see Gill v. Hewett, 7 Bush, 10, distinguishing Thomas v. Trustees of Harrodsburg, and denying dictum in Martin v. McFadin. CHAP. XI.] PUBLIC AND QUASI-PUBLIC SALES, [§ 317. the entry is subscribed by the auctioneer with his own name, without any reference to his character as agent." This was a sale of land, and the auctioneer may be made the agent spoken of in the revised statutes.(6) But, in the case of a sale of goods, the old rule continues, and the auctioneer can make the memorandum.(e) § 316. The auctioneer may be authorized by parol.(c?) The eftect of bidding is, as has been seen, to make the auctioneer an agent to bind the buyer by a memo- thorityto randum properly drawn, vide supra. This implied authority to an agent to make the memorandum is peculiar to auction sales. (e) Parol authority given by the defendant in an execution to the sheriff to sell in gross, instead of sepa- rately, is good ; it is a mere waiver of an irregularity, and the sheriff's authority comes from the law and not from the exe- cution defendant; see above as to judicial 8ales.(/) Eut au- thority to sell more than is necessary to satisfy an execution cannot be orally given. (^) In Louisiana, the vendor's au- thority to the auctioneer must be in writing.(A) A title to real estate in Louisiana does not pass by the adjudication of an auctioneer unless the latter was authorized in writing.(z) § 317. The auctioneer's memorandum must be made at the time, for his authority to do so ceases with the sale.(7) This (6) Pinckney v. Hagadorn, 1 Duer, (e) Grlengal v. Barnard, 1 Keen, 789. 95, citing McComb v. Wright, 4 Johns. (/) Williamson v. Logan, 1 B. Mon. Ch. 359 ; Emmerson v. Heelis, 2 Taunt. 241. 38 ; Kemeys v. Proctor, 3 Ves. & B. (y) Isaacs a. Gearheart, 12 B. Mon. 57 ; First Baptist Church v. Bigelow, 233. 16 Wend. 28 ; Champlin i-. Parish, 11 (A) Macarty t. New Orleans Canal Paige, 408. Co., 8 Eobin. 104 ; Bonner u. Baker, 8 (c) Champlin v. Parish, 1 Paige Ch. La. Ann. 284 (citing cases) ; see Pew 408 ; Coles u. Bowne, 10 Paige Ch. v. Livaudais, 3 La. 460. 535. (0 Cronau u. Succession of McDon- (rf) Lake v. Campbell, 18 Illinois, ogh, 12 La. Ann. 269. 109 ; Church (Trustees of Episcopal) {]) Mews v. Carr, 1 H. & N. 488 ; V. Wiley, Riley's Chancery Cases, 160 ; Gwathney k. Cason, 74N. Car. 7 ; Smith Emmerson v. Heelis, 2 Taunton, 38; i. Arnold, 5 Mason's C. C. 414; Hortou Sewall u. Fitch, 8 Cowen, 218 ; Alna v. McCarty, 53 Me. 396 ; Walker u. u. Plummer, 4 Maine, 258 ; Yourt v. Herring, 21 Gratt. 680 (citing cases); Hopkins, 24 111. 326 ; Doty v. Wilder, Fessenden v. Mussey, 11 Cush. 127 ; 15 111. 407. Howe v. Dewing, 2 Gray, 477 (dictum) ; 493 § 317.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XI. was said by Judge Story to be a judicial addition to the re- (juirements of the Statute.!/;) The memorandum When . memoran- Hiust be made in the defendant's presence says one auction authority ;(^) " immediately on the fall of the ham- saiemust nier," says another.(?n) A month later is too late.(7i) As to the rule in sheriff's sales see above. It was said in one decision that it would be safer to call the auctioneer as a witness than to let him make the memorandum long after the sale.(o) The exact duration of the period during which the auctioneer's authority continues is not altogether easy to determine ; it has been held that if he puts the price and the purchaser's name on a loose paper, and returning to his office enters it in a book, it is enough. (p) A delay of a few hours may be fatal. (g) An alteration in one of the conditions of sale, made at the time in lead pencil and afterwards written over with ink, is sufScient.(?') That the memorandum may be made the same day, though not at the precise time of sale, see above.(s) In South Carolina it was held that the memo- randum need not be at the time of the 8ale.(!!) Under 2 H. S. 136, § 4, of New York, the memorandum must be made by the auctioneer at the very instant of the sale, the statute on this point being strictly construed. (v/) Where an auctioneer liad at the time and place of the sale made a memorandum, and immediately after the sale had copied the note into a sales book in his own office in a different building in the same street, the statute was not complied with.(t;) As to how far an entry in a book by the auctioneer is necessary, see § 320. Where McComb V. Wriglit, 4 John. Ch. 659 ; (n) White v. Watkins, 2.3 Mo. 426. Goelet r. Cowdrey, 1 Dner, 1S2 ; Bam- (o) Id. ber V. Savage, 52 Wis. 113. (p) Church (Trustees of Episcopal) {!c) Smith v. Arnold, 5 Mason C. C. v. Wiley, Riley's C. C. 160. 417. (7) .Jelks v. Barrett, 52 Miss. 322. (I) Gwathney v. Cason, 74 N. Car. 7 ()■) Crooks v. Davis, 6 Grant. (U. (where the auctioneer, immediately C), 319. after the sale, went a short distance to (s) Barclay r. Bates, 2 Mo. App. his office, and began drawing a deed in 145. pursuance of the contract). (() Daniel i'. Harley, 3 Strobh. 233. (m) Hunt u. Gregg, 8 Blackf. 109 ; (u) Goelet v. Cowdrey, 1 Duer, 140. see, contra, Barclay v. Bates, 2 Mo. App. (v) Hicks v. Whitmore, 12 Wend. 145, see infra. 548. 494 CHAP. XI.J PUBLIC AND QUASI-PTJBLIO SALES. [§ 318. ati auctioneer made an insufficient entry at the time of sale, and com'pleted it in his sales book about an hour afterwards, though he failed to hold the purchaser under 2 R. S. of New York, 136, § 4, he is not liable to the seller in an action for negligence ; for the act was new, not yet judicially interpreted, and the auctioneer used ordinary care.(w) So in California, under a statute similar to that of New York, it was held that the memorandum must be made at the time of the sale, and that the day was not a unit in this connection. (a;) As to when the memorandum in the case of a sheriff's sale must be made see above. § 318. The auctioneer's clerk can make the memorandum,(j/) especially where the clerk writes at the auctioneer's dictation. (z) A memorandum made by the auc- dum by tioneer's brother and partner is sufficient.(a) It has ew's^derk been said that where an auctioneer employs his clerk as an amanuensis to write down the purchaser's name, the clerk should call out each name before making the entry. (6) This privilege is peculiar to the clerk of one selling at public sale ; it does not belong to the clerk of a private person. (c) As to sheriff's clerk, see supra. If done openly, the clerk of the owner of goods sold at auction may, it has been said, act as clerk. (of) In South Carolina the clerk must be specially au- thorized,(e) but see Cathcart v. Keirnaghan, infra. The clerk must make the memorandum in presence of the auctioneer and of the parties. (/) The assent of the bidders to the clerk's act- (w) Hicks V. MiBturn, 19 Wend. (a) McMuUen v. Helberg, L. R. 6 552. Irel. 463. (2:) Craig V. Godfrey, 1 Cal. 415. (6) Moss v. Cohen, 3 Vict. L. Rep. (!/) Pennimani'. Hartshorn, 13 Mass. 205, as cited in 30 Moak, 670. 87; (Inhabitants of ) Alnat). Plnmmer, (c) Hope v. Dixon, 22 Grant (C C), 4 Greenl. 263 ; Briggs v. Munchon, 56 442. Missouri, 470 ; Hart w. Woods, 7 Blackf. (d) Sandford v. O'Donolioe, 1 Rob. & 568 ; Simmons v. Anderson, 7 Rich. 71 ; Jos., U. C. Dig. 342. Sandfordu.O'Donohoe, IRob. & Jos. U. (e) Entz v. Mills, 1 McMull. Law C. Dig. 342-3 ; Coate v. Terry, 24 D. C. Rep. 455. C. P. 573 ; Ryan v. Salt, 3 U. C. C. P. (/) (Inhabitants oO Alna u. Plum- 87; Elder u. McEwen, 2 New Zeal. Jur. mer, 4 Me. 258; Jelks u. Barrett, 52 122. Miss. 322; Smith v. Jones, 7 Leigh, (z) Cherry v. Long, Phill. Law, 467. 170 ; Hunt v. Gregg, 8 Blackf. 109. 495 § 818.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XI ing is sufficient. (^) The memorandum being made under the direction of the auctioneer, is regarded as his act. (A) The auctioneer having before the sale written out the description of the lands sold and name of vendor, and the clerk at the sale entered the price and purchaser's name, this is sufficient. (2) Where the auctioneer, as he was going out, was applied to by the principal, and told the latter that a clerk could make the memorandum of sale, and the principal did not object, the assent was sufficient.(j) The buyer by bidding sanctions the clerk's authority to make the memorandum •,{k) as has been said, authority in the auctioneer's clerk is implied, when in view of all the bidders such a clerk is employed to whom all the bids are announced. (/) A receipt drawn by the clerk of the auctioneer at a different time and place from that of the sale, at which it did not appear that the auctioneer was present, is an insufficient memorandum. (m) An unsigned order by the clerk is insufficient. (??) A signature by the clerk as a witness is insufficient if it does not appear from the writing that he knew its contents.(o) The buyer at an auction sale is not bound by an entry made by the clerk, unless he knew of and acquiesced in the clerk's so acting.(p) The power of the clerk ((/) Ijams V. Hoffman, 1 Md. 423; appearthatthepurchaserknewthatthe Hand v. Grant, 5 Sm. & M. 508 ; Harvey clerk was acting for the auctioneer, and V. Stevens, 43 Vt. 653 ; Brent v. Green, distinguishing Coles i\ Trecothick as a 6 Leigh, 16 ; Smith t . Jones, 7 Leigh, case where the final sale was private. 165 ; Doty v. Wilder, 15 HI. 407 ; John- (m) McQuade v. Warren, 12 N. Y. son V. Buck, 35 N. J. L. 338; Fessen- Leg. Obs. 251. den V. Mussey, 11 Gush. 127. (n) Fiske u. McGregory, 34 N. H. (A) Doty V. Wilder, 15 111. 410 ; see 414 ; Evans v. Ashley, 8 Mo. 177. Cherry u. Long, supra (citing oases, (o) Gosbell v. Archer, 2 A. & Ell. q. v.). 500; 4 N. & M. 494; distinguishing (j") Price V. Durin, 56 Barb. 64S. Coles v. Trecothick as a case where (_/■) Coles V. Tregothick, 9 Ves. Jr. the signature showed the witness knew 242. the contents. (yfc) Bird B. Boulter, 4 B. & Adol. 446 ; (p) Peirce u. Corf, L. R. 9 Q. B. 1 Nev. & Man. 316 ; see MeQuade v. 216 ; Hill v. Willis, 6 Vict. Law Rep. Warren, 12 N. Y. Leg. Obs. 251. 193, as cited in 30 Moak, 670 ; see 8 Jr. (I) Cathcartw.Keirnaghan, 5Strobh. L. T., 357, regretting that Peirce f. Corf 130, distinguishing Meadows u. Mea- extends the harsh rule of Farebrother dows, 3 McCord, 458, as a case where «. Simmons rather than that of Bird v. the memorandum was insufBcient, and Boulter, saying that in Entz v. Mills it does not 496 CHAP. XI.] PUBLIC AND QUASI-PUBLIC SALES. [§ 319. to make the memorandum was denied in one case, and this in another case in South Carolina(5') has been positively stated of a vendue-raaster, and giving as a reason that his book is made by law the evidence of the contract.(r) § 319. The party seeking to charge cannot act as auctioneer to make the memorandum ;(s) as to judicial and ^jj^^ sheriff's sales see above. The auctioneer, as has act as aiic- already been said, must be a public one, and not a who may mere agent of the vendor. (<) It has been suggested memoran- by Lord Erskine, that the vendor could be auc- ^"'°- tioneer and make the memorandum ; sed qucere,(u) a trustee cannot act as auctioneer so as to bind by his memorandum at his own sale.(w) So, where the trustee employed another to cry for him, but himself made the memorandum. (w) i^or can an administrator so act as auctioneer.(x) The point was raised in a Louisiana case, but not decided. (y) The rule is the same even though the administrator professed to act as clerk of the auctioneer, unless he be regularly appointed clerk by the latter.(2) The general rule as to administrators applies to guardians.(a) But it was held that a member of a vestry might be auctioneer to sell a pew and make the memo- rand um.(6) The party seeking to charge cannot authorize a (g) Meadows v. Meadows, 3 MoCord, 458 ; but see Cattcart v. Keirnaghan, distinguishing it on the ground that there was no sufficient memorandum made by any one ; see Peirce v. Corf, L. R. 9 a. B. 216. (r) Wolfe V. Sharpe, 10 Rich. 63, citing Entz v. Mills, and distinguishing the case of an administrator's sale. In Entz V. Mills (1 McMuU. 453) the clerk stood a short distance from the auction- eer, and at his dictation made the entries, and there is no reason to sup- pose that the purchaser did not know that tlie clerk was acting, yet the memorandum was held insufficient. (s) Smith V. Arnold, 5 Mason, 434 ; Farebrother u. Simmons, 5 B. & Aid. 334 (citing Wright v. Dannah) ; An- derson V. Chick, Bailey's Eq. 118. VOL. I, — 32 (<) Anderson v. Chick, Bailey's Eq. Rep. 118. (u) Buokmaster v, Harrop, 7 Ves. 344; 13 Ves., 473 (see notes to Amer. ed.). (u) Tnll V. David, 45 Mo. 445. (w) Adams v. Scales, 1 Baxt. 339 ; so a commissioner in partition ; Hutton V. Williams, 35 Ala. 515. (a;) Smith v. Arnold, 5 Mason, C. C. 414 ; Wingate v, Herschaner, 42 la. 507. (i/) Lafiton u. Doiron, 12 La. Ann. 165. (j) Carroll v. Powell, 48 Ala. 302. (a) Bent v. Cobb, 9 Gray, 397. (6) Stoddert u. Vestry of Port To- bacco, 2 G. & J. 229. 497 § 319.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XI. clerk to make the memorandum.(c) The rule has been broadly laid down, that an auctioneer seeking to charge cannot rely on a memorandum made by hini8e]f.(f/) Nor where he is sought to be charged, will it be presumed that he did his duty, and made the memorandum where he pleads the Statute of Frauds.(e) At this point it will be well to bear in mind the distinction between one interested previous to the sale, and after acting as auctioneer seeking to bind by his memo- randum then made, and the case of a mere auctioneer who has no interest in the matter beyond what he acquired by the particular exercise of his profession, and who sues only for his fees, or because the law directs him to lend his name in suits to enforce the contracts made with him in his official character.(/) An auctioneer may sue in his own name for goods sold.(^) The authorities now under consideration be- long to the category of those relating to auctioneers only as such. Where the auctioneer sues, he can rely upon a memo- randum made by his clerk ; see supra, § 318, as to memo- randum by the party interested. (A) "It should be remarked that it is questionable whether an action at common law can be sustained by the sheriff on a contract of sale on execution effected through his own agency in the capacity of an auc- tioneer. It was held in "Wright v. Dannah, 2 Camp. 203, and Farebrother v. Simmons, 5 B. & Aid. 333, that an auctioneer could not sue on a contract evidenced by his own memo- randum of the sale, on the ground that the agent, whose signature can bind the purchaser, must be some third party, and not the other contracting party on the record. But the (c) Carmack v. Masterson, 3 Stew. & ( i -i i r^ ■ i in equity; by which evidence ottered under the Statute is to be dencr'to tried, and none of the equitable exceptions, which supplement ];iave been so prodigally made to the strict letter of not admis- the written law, touch upon this point. (6) Before taking up the question as to the nature of the memorandum required, it will be well to dispose of the col- lateral point of the admissibility of oral evidence to supple- fa) The distinction between suffi- said by Pollock, C. B., in Matthews v. cient and insufficient memoranda, is Baxter, 21 W. R. 741, to be fine. (6) Morison v. Turnour, 18 Ves. 175. 502 CHAP. XII.] THE NATURE OF THE MEMORANDUM. [§ 321. ment the writing. The doctrine of the inadmissibility of parol evidence, to add to the memorandum required by the Statute of Frauds, forms the subject of some discussion in another part of the present work, and will, therefore, be only partially treated of here ; the point is of less importance, because of the more frequent exclusion of such evidence by the common law rule, older than the Statute of Frauds, which presumes the writing to contain the whole agreement of the parties. There are, however, a number of decisions which, as examples of the various applications and modifications of the general rule, are not without interest. In the first place, as has been said, oral evidence is not competent to supply defects in or in any way to add to the note in writing required by the Statute of Frauds.(c) It has been said that oral evidence can no more supply defects, in the agreement, than it can supply the want of an SLgveement.{d) While memoranda, manifestly imperfect, may at common law be supplemented by verbal evidence, this rule does not apply under the Statute of Frauds.(e) So oral proof of such portions of a writing, as had been read to the complainant, will not be admitted to lay ground for thespecitic performance of such portions.(/) In the case of a sales-note, materially altered by the broker after sale made, verbal evi- dence of how much of the memorandum is good, and how much is not, is inadmi88ible.(^) Where an endorser of a promissory note has been discharged, a subsequent oral promise to pay the note on consideration of forbearance to the maker, cannot be tacked to the endorsement, so as to cause the latter (c) Hales v. Van Berohem, 2 Vern. Brown v. Whipple, 68 N. H. 229 ; 619 ; Loeffes v. Lewen, Free, in Ch. McConnell v. Brillhart, 17 111. 360 ; 372 ; Blair v. Snodgrass, 1 Sneed, Scarritt v. St. John's Church, 7 Mo. 25 ; Clarke u. Russell, 3 Dallas, App. 178 ; Johnson v. Granger, 51 Tex. 424 ; Vaughn a. Smith 58 Iowa, 43, citing cases. 557 ; Bell v. Bruen, 17 Peters, 168 ; {d) Godwin u. Collins, 4 Houst. 55 ; Williams v. Morris, 95 U. S. 454; Parrish u. Koons, 1 Parson's Eq. 84, Stocker t>. Partridge, 2 Robert. 202 ; citing Blagden v. Bradbear ; Ripley v. Wright V. Weeks, 25 N. Y. 155 ; 3 Page, 12 Vt. 355. Bosw., 373 ; Sale u. Darragh, 2 Hil- (e) Musselman u. Stoner, 31 Pa. St. ton, 196; Waterman v. Van Every, 3 270; Potter u. Hopkins, 25 Wend. 417. Alb. L.J. 304; HalU'. Soule, 11 Mich. (/) Brodie w. St. Paul, 1 Ves, Jr. 494; Williams v. Robinson, 73 Me. 333. 195 ; Guy v. Barnes, 29 Ind. 104 ; {g) Powell v. Divett, 15 East, 31. 503 § 322.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XII. to evidence the subsequent promise.(A) The following proposi- tion has been held not to be true: That a promise by an endorser to pay a note, from which he had been discharged by a failure to make due presentment and notice, is nudum factum, and therefore void. This is because it rests upon the unfounded assumption that it is the new promise, and not the original note, which is the cause of action. The new promise does not constitute the cause of action ; it only operates as a waiver of the necessity of proving facts — demand and no- tice — which, but for such promise, would be necessary to sus- tain an action on the original note, which is the real cause of action, and the contract evidenced by the note cannot be said to be nudum pactum, nor is it within the Statute of Frauds.(z) On the other hand, a verbal agreement by the sureties on an officer's bond that, on his reelection after his first term had ex- pired, the old bond should continue is void under the Statute of Frauds.fj*") Parol evidence of the declarations of an auc- tioner is not competent to explain an ambiguity arising from the collocation of two of the instruments of the sale ;(A) or generally to eke out the memorandum.(?) An oral declaration of the auctioneer at the time of sale was admitted to show that the purchasers knew that the goods were of a kind in- ferior to that set out in the catalogue.(?') "Where a sales-note is silent as to a warranty, the latter cannot be proved by parol, it would contradict the writing.(m) § 322. In ISTew York, however, it was held, where the sheriff stated that a smaller tract was taken out of Exceptions , i i t t i to the last the larger tract sold, and did not pass with it, and the purchaser heard this, that the oral evidence of the sheriffs declaration was admissible, the sheriff's vendee, (A) Peabodyi'. Haryey, 4Conn. 122; (j) German Vet. Soo. v. Fisher, 1 see, however, Uhler v. Farmers' Bank, Kent Law Reporter, 57 (S. C. Ky.). 64 Pa. St. 409, where such a promise {k) Higginson u. Clowes, 15 Ves. was regarded as not within the Statute 521. of Frauds', the promissor, for the credit (/) Jenkinson v. Pepys, cited in Hig- of his name, engaging to pay the debt ; ginson v. Clowes, 15 Ves. 521. see § 353 and § 357. (/i) Shelton v. Livius, 2 Tyrw. 432 ; (i) Fell V. Dial, 14 Shand. 251, cit- 2 Cr. & J. 414. ing 2 Dan. Negot. Inst., § 1147 ; I. ib., (m) Meyer v. Everth, 4 Campb. 22. § 557, N. S. 504 CHAP. XII.] THE NATURE OF THE MEMORANDUM, [§ 322. the plaintiff, having lain by for fourteen years without assert- ing his claim to the smaller tract.(n) Where the value of the goods is less than £10, an oral explanation by an auctioneer, given at the sale, is admissible, the exclusion of such proof is due entirely to the Statute.(o) In an English Exchequer case a remark of Baron Martin's is open to the construction, that by reference a verbal contract can be incorporated into the memorandum under the Statute of Fraud8.(2J) Where a memorandum is insufficient, and, though there is no proof of fraud, verbal evidence of the true and entire contract may be given, notwithstanding the Statute of Fraud8.(9) A decision under the act of Congress, which requires contracts with cer- tain officers of the Federal government to be in writing, throws light on the question before us ; the facts were that, in a written transportation contract, it was provided that all orders by the government officer stopping the trains should be in writing ; a quartermaster wrote an order in which he stopped the supply train, and ordered the goods stored, reciting that, " in consequence of the bad condition of the transporta- tion and the lateness of the season, I judge it unsafe and detri- mental to the interests of the government for the train to pro- ceed further this season," and it was held that the government was not bound by this so as to exclude parol evidence that it was the contractor's fault that he was not ready to go on, and that the contractor's petition to have allowance for lay-days, stipulated for in the first contract, should be dismissed. The court said that in three classes oral evidence was refused : where the law required writing ; where parties made the writing, and where there is a material writing whose existence is disputed. The quartermaster's memorandum comes under none of these heads.(r) Oral evidence was admitted to show that "£50 more of premium" in one letter and " £300" in another meant the same thing.(s) In a case where the variance between bought and sold notes was shown to be immaterial, (n) Bartlett v. Judd, 21 N. Y. 203. (r) Bulkley v. United States, 8 Ct. (o) Eden v. Blake, 13 M. & W. 617. of CI. 195. (p) Catling V. Perry, 2 F. & F. 141. (s) Skinner v. McDouall, 2 De G. & (q) Fiske V. MoGregory, 39 N. H. Sm. 265 ; 17 L. J., N. S., Ch., 347. 414. 505 § 322.] LAW OP THE STATUTE OF FRAUDS. [CHAP. XII. Martin, B.,said that parol evidence was admissible to explain the circumstance of this kind of contract.(<) Evidence to alter the liability of the endorsers of a note is inadmissible, as, for example, to show a liability only as special guarantors, and an endorsement of a negotiable instrument is a compliance with the Statute of Frauds.(M) But evidence of usage is ad- missible to explain the terras of a written contract.(w) A memorandum referring for the identification of the subject matter to a parol contract, then subsisting or thereafter to be made, is insufficient. (w) Where a verbal offer by the vendor of land is accepted in writing by the vendees, and afterwards the vendor tenders an executed deed, but in the interval the vendees have modified their acceptance, the Statute of Frauds was held not to be complied with. (a:) And where a memo- randum, which related to the negotiation of lands about to be taken for a railway, referred to the question of compensation, as to be settled either bj"^ an arbitration or a jury, at the option of the owner, it is insufficient.(2/) In a Scotch case an informal (0 Kempson v. Boyle, 3 H. & C. 763 ; 34 L. J. Exoh., 191 (citing Rogers u. Hadley). Where a memorandum of terms was proposed by each party, and the de- fendant company made certain altera- tions which were accepted by the plain- tiff, and these were correctly stated in the latter's draft, which was presented to the defendant at a meeting of their company and accepted by them, and a minute to that effect was entered and signed by the chairman, it was held that this was sufficient, and was the true evidence, though the defendant's solicitor, in altering his draft, stated the terms differently from the plain- tiff's draft, and the latter was endorsed with a resolution accepting it, and a minute of the acceptance was endorsed on tlie draft by the chairman ; .Jones f. Victoria Graving Dock Co., 2 Q. B. D. 321 ; 46 L. J. Q. B., 219 ; 36 L. T., N. S., 144. 506 («) Zellweger i\ Caffe, 5 Duer, 91, citing Parlis v. Brinkerhoff. (w) Dana v. Fiedler, 2 Kern, 40 ; but evidence to show the trade in which the parties wore engaged, has been held not to make up an inherent defi- ciency in the memorandum ; Drake v. Seaman, 27 Hun, 63. (w) Hyde o. Cooper, 13 Rich. Eq. 250; see Whelau ^^ Sullivan, 102 Mass. 206 ; see Uliler v. Farmers' Bank, supra. (x) Gummere v. Trustees, etc., of Omro, 45 Wis. 386. (i/) Morgan v. Milman, 3 De G., M. & G. 24; 22 L. J. Ch., 897 ; distinguish- ing Gregory v. Mighell. In an Alabama decision the follow- ing views were expressed as to the admissibility of parol evidence to sup- plement the writing ; said the court : It is to be observed that this is not a contract which is required by law to be in writing, yet even in regard to CHAP. XII.] THE NATURE OF THE MEMORANDUM. [§ 323. memorandum of lease was held to be made valid by possession taken by the tenant. (2) It has been said that a contempora- neous modification of a writing need not be alleged in a plea to have been written, it will be so assumed.(a) § 323. Parol evidence has in a few cases been admitted to show that a written contract, apparently valid, is „ .,.,-, ,. Ti 1 ■, . , How far really within tlie statute ot rrauds, and incomplete ©raievi- thereunder ; as to show that a promise was really for n^ssibfe to the debt of another.(6) And where the promise was show that a ^ ' _ ^ ^ memorau- to pay the rent of certain premises on a certain date dum is in- 1 • 1 1 ■ 1 1 1 1 II sufiScient. arol evidence was admitted to show that the house was occupied by a third person, and that the promise was to answer for his rent, and therefore within the Statute of Frauds; semble, however, that the substance of these extrinsic facts appeared in admissions in the pleadings.(c) As to the suoli contracts, as, for example, a de- vise, it is well settled, that when the subject of a devise is described by ref- erence to some extrinsic fact, parol proof of such fact may be made. The law is the same in respect to deeds and other instruments, as held in this court in Ellis v. Burden, and fully ex- pounded by Sir William Grant in Ogil- vie V. Foljambe, 3 Mer. 62, and see the long train of authorities printed by Cowen. We consider it therefore clear that the contract is not void because it refers to the terms of another contract existing between other parties, as one of the stipulations then agreed upon, but that proof may be made what those terms thus referred to were and en- forced as part of the contract ; Casey V. Holmes, 10 Ala. 786. Generally as to how far oral evidence is admissible to interpret memoranda under the Statute of Frauds, see Sugden, Vend. I. (p. 134), et seq. (2) Ross u. Eoss, Hume, 775 ; see chapters on Part Performance. (a) Waxman v. Barnard, 2 Vict. L. Rep. Law, 240. [b) Sackett v. Palmer, 25 Barb. 179 ; semble, contra, Union Bank v. Corcoran, 5 Cranch, C. C. 513. (c) Clark u. Richardson, 4 E. D. Sm. 174; see Vaughn v. Smith, 58 Iowa, 557. Where the plaintiffs drew bills upon the defendant's son, the person answered for, and who accepted the bills, and the plain- tiff endorsed them to the defendant, who re-endorsed them to the plain- tiffs ; it was held that while, under ordinary circumstances, tlie plaintiffs could not sue the defendant, because the latter could thereupon immedi- ately sue them, and a circuity of action would be established, that this did not apply where the defendant, as here, had given no consideration and had orally agreed to become surety ; Bag- ally, L. J., doubted the admissibility of the oral promise, even for this pur- pose ; Wilkinson u. Unwin, 46 L. T. 123 (C. A.) ; see Holmes u. Durkee, 1 Cab. & Ell. 24. In Eggleston u. Wag- ner, 46 Mich. 610, it was said that the sufficiency of the contract depended upon the writing, and not upon the doubts raised extrinsically. See S. C, 49 id. 222. 507 § 323.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XII. admissibility of oral proof of the existence of a price, in order to show that the memorandum not stating such price is de- fective, see § 410.(o?) It may appear strange that, on a point of so much importance as that which decides whether or not oral evidence is admissible to show that the memorandum purport- ing to comply with the Statute of Frauds does not truly state the actual contract, there should be so few authorities as those which will presently be given. But it should be remem- bered that the admission of such evidence has seldom been allowed, except as a matter of defence, or to prove an agent's contract to be unauthorized ;(e) or to establish fraud or mis- take. These three subjects being treated separately elsewhere, there remain for consideration only those cases in which, though the memorandum stated a seemingly entire contract, the court received parol evidence to show that it was imper- fect in leaving out one or more of the terms of the real agree- ment made orally by the parties. It is true that in most, if not all, of the cases the parol evidence is offered as a defence to a recovery on the memorandum, but this distinction has not been expressly made in the decisions, and therefore modern English law must be considered as settling broadly the admis- sibility of parol evidence to show that a memorandum under the Statute apparently containing the whole agreement con- tains only a part. "Where, therefore, a memorandum offered consisted of an invoice, and a letter of the defendant's ac- knowledging its receipt and finding fault with the articles, certain glass, named in it other than those whose value was sued for, parol evidence was admitted to show that the glass was to have been of the best quality ; and for not containing this stipulation the memorandum was held insufficient ; there was no evidence that the glass was not, in fact, of the best quality. Channell, B., said: "I think that when we inquire whether a verbal contract corresponded to the writing, we may be letting in the very evils which the Statute was meant (rf) Jeffcott V. North British, etc., of) Ely; see as to memoranda, not Co., Jr. Rep., 8 C. L. 19. giving the terms and conditions of the (e) Clinan v. Cooke, 1 Soh. & Lef. contract, § 402 et seq., § 409 et seq., and 31 ; and see Chinnock v. (Marchioness § 429. 508 CHAP. XII.] THE NATURE OF THE MEMORANDUM. [§ .323. to avoid, but it is too late to dispute the cases on this sub- ject. "(/) In an Irish case which went off' on another point it was said where the pleadings set out a contract reserving a price, and no price appeared in the memorandum, there was a fatal variance; but the court went on to announce the un- qualified doctrine that an apparently sufficient memorandum might be shown by parol to be imperfect, in not stating the price actually stipulated for.(^) In a recent Irish case oral evidence of the defect of a memorandum, in not mentioning that goods were sold under a warranty, was received. (A) In a case arising under 9 Geo. IV., c. 14, s. 7, which uses the word "value" instead of "price," it was held that if no price was stipulated for, the seller might recover on parol evidence of the value of the article sold; but that if the parol evidence showed that a price had been agreed upon, then the memoran- dum would be insufficient in not stating it.(i) In a Wisconsin case, it was held that a writing to bind must represent the real contract between the parties, and where a writing signed in blank is incorrectly filled up, the writing is not evidence, and the contract remains in parol.(j) In a recent case in Wisconsin it was said that oral evidence to show a memorandum to be incorrect was only admissible when the party to be charged has not assented to the memo- randum.(A) Where a memorandum by its silence on the point gave rise to the implication of a cash sale, certain con- ditions of sale inadmissible as not being connected with the (/) MoClean v. NicoUe, 4 L. T., N. first class, and this warranty the plain- S. 863 ; 7 Jur., N. S., 999 (considering tiff did not deny ; the defendant is not Bailey v. Sweeting) ; and see Clinan v. liable when he was refused permission Cooke, 1 Sch. & Lef. 31 ; Rogers v. Had- by the plaintiff to try the quality of ley, 2 H. & C. 247 ; Tindal v. Touch- the flour ; the bought notes tendered berry, 3 Strobh. 178 ; Stoutenburgh v. him left out the words " first class ;" Tompkins, 1 Stockt. 336 ; see Jacheus Pratt v. Rush, 5 Vict. L. R. Law, 423. «. Nicolson, 28Alb. L.J. 17{S. C. Ga.). (i) Hoadly u. M'Laine, 10 Bingh. (g) Jeffcott V. North British, etc. , Co. , 486. Ir. Rep., 8 C. L. 191 ; see Holman ;;. (j) Eounsarell v. Pease, 45 Wis. Bank, 12 Ala. 369, § 402. 508. (A) M'Mullen ^. Helberg, L. R. 6 (4) Wiener v. Whipple, 10 No. West. Irel. 463 ; 4 Irel., 94. Rep. 434 ; 24 Alb. L. J. 509 (S. C. Where flour was sold at auction un- Wis.) ; see London and Birmingham der a warranty {senAle oral) that it was R. W. v. Winter, Cr. & Ph. 61. 509 § 323.] LAW OF THE STATUTE OF FRACDS. [CHAP. XII. memorandum can be used to show that the latter is imperfect because not stating a sale on credit.(^) To help out a memo- randum defective among other things in not stating a price, the court will not necessarily infer that the payment was to be forthwith. (m) "Where the memorandum relied on was a deed delivered in escrow, parol proof was admitted to show that the condition of this delivery differed from those stated in the deed.(n) Where the defendant accepted a written con- tract of sale of land executed by the vendor, it was held that he was bound and could not, except on the ground of fraud or mistake, claim that the plaintiff' had orally warranted that the land should contain a given amount of timber, and that the plaintiff had promised to pay at a certain rate for the shortage, the memorandum was apparently sufficient, and oral evidence to alter it was inadmissible.(o) Oral evidence that part of the contract was contained in a conditional acceptance of the writing is admis8ible.(^) In another case it was said that the defendant might set up an oral variation of the written contract, and put it to the plaintitt''s election whether he would accept the change or have his bill dismissed. (y) As has been said, all this amounts to saying that while a plaintiff cannot recover but on written evidence, the defendant can defeat recovery by oral proof of a contract different from that contained in the writing. In another place the whole ques- tion will be considered, and an effort made to ascertain the precise force of the axiom that the Statute is a shield and not a sword. The second class of cases is that where oral evidence is held sufficient to show that a memorandum made by an agent is incorrect, and therefore unauthorized. If the au- thority, generally of an agent, to make the writing may be given by parol, it seems consistent to allow the same kind of (l) Hinde u. Whitehouse, 7 East, real consideration of a deed, see chap- 568 ; see, also, Mahalen v. Dublin Dis- ter on Voluntary Performance, tillery Co., Ir. Rep. 11 C. L. 88 (citing (o) Hubbard v. Marshall, 50 Wis. cases) ; Flintoft „. Elmore, 18 U. C. C. 327. P- 281. (p) Boys V. Ayerst, 6 Madd. 324. (m) Hopkins v. Roberts, 54 Md. 316. (g) London and Birmingham R. W. (n) Campbell u. Thomas, 42 Wis. v. Winter, 1 Or. & Ph. 61. 441 ; as to oral evidence to show the 510 CHAP. XII.] THE NATURE OF THE MEMORANDUM. [§ 323. evidence to show the extent of that authority, i. e., to formu- late a certain contract and no other.(r) In a New Jersey case it was said that a defendant cannot resist a specific perfor- mance, on the ground that the agreement entered into difi'ers from that which was reduced to writing, without showing that the difference was the result of fraud, mistake, accident, or 8urprise.(s) This last class, were they not common law decisions, might be ranged under the head of the equitable defences of fraud or mistake, and so, perhaps, the cases first given ; and whether the measure of proof required to establish a parol defence against a suit on a memorandum sufficient on its face, should not have been the same as that which a chan- cellor calls for to establish fraud or mistake, as alleged to defeat a writing, might be strongly argued were the question open. Where the evidence is offered to show that the memo- randum is invalid in not stating the price, a good reason can be given for the rule, viz., that if the memorandum sued on is taken to be complete, there never was a price reserved ; and either the transaction was a gift, or the payment was made at the time the writing was executed, so that the plaintiff by setting out in his pleading an unfulfilled contract, under which a price was agreed to be paid, is met at once by a variance between his allegations and his proofs, and he admits that the memorandum he relies on is defective. But this suggestion is of value only where the plaintiff' attempts himself to enforce a parol term, and does not apply where recovery is sought on the memorandum as it stands, and the defendant's otter to show by verbal testimony that the real contract was differ- ent.(i) And, apart from authority, it would be difficult to maintain that a memorandum under the Statute of Frauds is more open to oral contradiction than a common law writing. The disproof may be admitted in support of an equitable de- (r) See Pitts v. Becket, 13 M. & W. (s) Stoutenburgh v. Tompkins, 1 751 ; Chinnook v. Ely (Marchioness of), Stockt. 335, and saying that the case 11 Jur. N. S. 329 ; 13 W. R. 597 (and of Legal v. Miller, 2 Ves. 299, does not see table of cases for other citations of on careful examination establish a oon- this case), and Remick v. Sandford, 118 trary doctrine. Mass. 107, where the rule in the text (J.) See JefFoott v. North British, is plainly laid down; see Campbell v. etc., Co., supra. Thomas, 42 Wis. 441. 511 § 323.] LAW OF THE STATUTE OF FRAUDS. [OHAP. XII. fence in the nature of fraud or mistake in either case ; but the Statute having merely required that the parties should enter into a written contract, the latter once made does not difter from the same contract voluntarily put into writing. It is just here that the divergence, which is a real and radi- cal one, takes place ; there are those who contend, as Professor Langdell does, unqualifiedly ,(m) that the writing, not being the contract, is only sufficient if it states the latter fully and truly, and that, if it does not do so in a given case, this may be shown by parol ; which either means that the memorandum under the Statute of Frauds can only be varied, or contra- dicted when a common law writing might, in which case there is no ground of dispute ; or, as is more probable, and as the English cases certainly appear to hold, the contract itself, and the note being taken as distinct, oral evidence can be brought to show that the original contract is not merged and fully stated in the note, as is presumed in the case of a common law writing. E^o one will contend that a memorandum, sufficient to satisfy the Statute of Frauds, would not be sufficient evi- dence of a contract in absence of the Statute ; and the memo- randum, under the Statute of Frauds, being the act of the par- ties and the statement which they choose to make of their agreement, why should we not suppose that, apart from fraud or mistake, all previous negotiations, or even concluded agree- ments, are merged in the writing which shall, as at com- mon law, stand instar omnium. It is not meant to be said that in any of the decided cases the admission of the oral evi- dence was not right ; as to this no opinion is here expressed, but it is meant to be said that the unqualified statement that the written note, under the Statute of Frauds, can be orally shown to be incorrect, is not (the equitable exceptions apart) the principle on which these decisions should have gone. Whether the memorandum follows the contract or not is a ques- tion of fact for the jury.(v) Where the parties contemplated a (u) Sales. Index, §§ 60, 62,70,71; force and clearness, so that tlie Harvard the writer has a letter from Professor Law School seems at one on the point. Thayer pleading the same view with (u) Hawkins v. Chase, 19 Pick. 502. CHAP. XII.] THE NATURE OF THE MEMORANDUM. [§ 324. writing, there is no contract till the writing is made.(w) The decision in Jervis v. Berridge, which will be cited in several places in the present work, may receive perhaps some explana- tion from the principle that oral evidence is admissible to show that a memorandum does not contain the whole con- tract. Vice-Chancellor Malins, whose ruling was affirmed above, placed his decision frankly on the ground of fraud ; the facts were these : the plaintiffs, who had a written con- tract of sale of land from the L. S., sold their interest to the defendant upon certain terms, and gave him such written evi- dence of their agreement with him as would enable him to get a conveyance from the L. S. ; having so got his deed from the L. S., he refused to perform his promise to the plaintiffs, who thereupon came in not to have the oral contract with him performed, but to have it cancelled, in order that they might carry out the first contract with the L. S. ; and it was so ordered. (a;) The Supreme Court of Maine, in a recent case, expresses itself on this subject with no uncertainty ; the court said : " When a memorandum is made, etc., as, etc., a complete memorandum of the essential terms of a contract, and it is capable of a clear and intelligible exposition . . . parol evidence is incompetent to contradict or vary its terms ; and if, in fact, some of the conditions actually made be omitted from it, the party defendant cannot avail himself of them. . . . Such is the general rule governing written contracts, and the Statute of Frauds leaves it, together with its excep- tions, as it found them."(2/) § 324. We come now to the direct question, whether the writing itself complies with the rule of the law? The principles to be settled are, primarily, those reqiusitee which relate to the general characteristics of a valid I'^j^L^^ memorandum under the Statute of Frauds. First, dum; no then, no special form is needed ; any writing pro- form perly executed, of however crude a character, is ''®'=^^^'"7- (to) Methudy v. Ross, 10 Mo. App. (y) Williams v. Robinson, 73 Me. 101 ; see Liverpool Bank u. Eooles, 4 H. 195, citing Benj. Sales, § 205, and & N. 143 ; Hipp v. Huohett, 4 Tex. 25, many cases. See Hubbard v. Marshall, § 359. 50 Wis. 327, cited just above. {x) Jervis v. Berridge, L. R. 8 Ch. App. 359. VOL, I.— 33 613 § 324.] LAW OF THE STATUTE OF FRAUDS. [OHAP. XII. enough. (^) Anything, Lord Ellenborough said, was sufficient that was " under the hand of the party expressing that he had entered into the agreeraeiit" set out therein. (a) In the Supreme Court of the United States it was said that the Statute does not prescribe the form of a binding agreerrient, it is sufficient that the natural parts §f it appear, either expressed, or clearly to be implied. (?)) That the Statute requires only a memoran- dum is shown by the fact that only one party need sign, and that the consideration need not be expressed. (c) This rule was applied in New Yori< to the difficult question as to the lia- bility which the law shall affix to the act of a stranger to the principal contract, who puts his name to the paper evidencing it ; and no form being required by the Statute of Frauds, the court relied upon the relations of the parties and the circum- stances of the case in arriving at their conclusion. (rf) A wider application of this principle was made in Alabama, where, after stating that an agent of the parties had made a memo- randum of the contract on a piece of paper, the court said: " True, this does not appear in totidem verbis, hut it is the infer- ence of reason and law from the statement of the witness, that he was acting as deputy for the plaintiff on that day, and he then made a memorandum in writing of the sale. If this pre- sumption is opposed to truth it would have been very easy for the defendant, by a single inquiry addressed to the witness, to have caused a more full disclosure of the facts to be made.(e) Whether an informal writing will answer in Scotland has (z) Moore D. Hart, 1 Vern. 114 ; Boys 425; Shoofstall v. Adams, 2 Grant o. Ayerst, 6 Madd. 323; Hurley e glad to 181 ; 2 B. & Pull., 239 ; see Schneider know what deduction you feel inclined V. Norris, 2 M. & S. 286, criticizing this to make for my monthly payment if I case, and doubting whether without agree to give you your carriage on the letter the printed memorandum Saturday next." The reference to the would have been enough. written offer of December 1, 1879, was (w) Ridgway o. Wharton, 6 H. L. sufficient, and the memoranda were C. 255 ; 27 L. J. Ch., 46 (considering sustained. The defendant admitted Tawney v. Crowther, 3 Bro. C. C. 161. that he meant to refer to the offer, and (x) Lerned v. Wannemacher, 9 Al- it was proved that there was no other *en, 416. arrangement ; Cave v. Hastings (Q. B. The plaintiff, on December 1, 1879, D.), 7 Q. B. D. 125 ; 50 L. J. Q. B. 575, signed a written order to supply the citing Ridgway u. Wharton, Bauman defendant for a year from January 1, u. James, and Long v. Miller. 1880, with a, horse and carriage ; the (t/) Norman v. Molett, 8 Ala. 546. parties had an interview on the subject (z) Bluck v. Gompertz, 7 Exch. 867, in January, 1880, and in February, where the defendant gave a written 1880, the defendant wrote the plaintiff promise that upon being handed by the as follows : "You no doubt remember plaintiff the latter's two drafts upon that it was agreed at our interview on O'C, for £200 and £146, he, the de- 28th of January that our arrangement fendant, would get them accepted, and 541 § 343.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XIII. be reconciled by oral evidence the memoranda do not satisfy the Statute of Frauds, as where there were unsigned terms of sale taken, and the defendant wrote a letter recognizing the sale, but refusing to carry it out because the goods had not been delivered within a certain time, the plaintiff was not allowed to show by parol that it was no part of the contract that the goods should be delivered within a certain time.(a) § 343. The following may serve as examples of memoranda which, though taken together, are not enough to satisfy the Statute of Frauds. In an English case the defendant, who, proposing to buy a certain lease, read a draft of the assignment and approved, made a part payment and took a receipt therefor, signed by the vendor's agent, which said, " the terms to be expressed in an agreement to be signed as soon as prepared," but never signed himself, though he promised to do so ; the vice-chancellor, on a demurrer to a bill for specific performance, held the Statute of Frauds to be satisfied, but on appeal this was reserved as the defendant had signed nothing. (6) In Boydell v. Drum- Examples of memo- randa not sufficiently connected. see that they were paid. The defend- ant afterwards wrote across the above receipt for the two drafts, one for £200 and one for £150 (the £146 being a mistake), and both accepted by O'C, and this he procured the plaintiif to sign. It was held that the endorse- ment was to be incorporated with the original memorandum, so as to make the latter read for £200 and £150 in- stead of £140, and that the defendant's original signatirres sufficed under the Statute of Frauds ; no new signature being necessary ; the memorandum is not tlie contract, but only evidence of it. (a) Cooper o. Smith, 15 East, 107; for example of connected memoranda see Greenham v. Watt, 25 U. C. Q. B. 365. (6) Wood V. Midgely, 2 Sm. & G. 115 ; 5 De G., M. & G., 44 ; 23 L. J. Ch., 553 ; for the converse case, where the defendant signed, see Powell v. 542 Lovegrove, 8 De G., M. & G. 363. In Knox I,. Haralson, 2 Tenn. Ch. 236, there were four writings, wliich the complainant souglitthehelpofcliancery to be released from : First, a certificate of October 25th, given by the complain- ant to the defendant, certifying that he, the complainant, had contracted for 1000 cords of wood from the defendant, etc., at 75 cts. per cord ; secondly, the complainant's order on the defendant, requesting him to let one N. have 2000 cords of wood, which he, the complain- ant, had bought of the defendant, etc., and " I will pay you 75 c. per cord as per our agreement;" third, a certifi- cate of the complainant that he had contracted with N. to out and deliver 2000 cords, etc., and to pay N. there- for, etc. ; fourth, a certificate from the defendant that N. was authorized to cut 2000 cords ; it was held that the words, " our agreement," in one of the last three memoranda could not refer CHAP. XIII.] THE NATURE OP THE MEMORANDUM. [§ 343. morid(c) there was a memorandum and a prospectus, but there being no reference in the one to the other, the prospectus could not be considered a part of the memorandum. A pro- posed amendment to a complaint suggesting that the sheriff signed a memorandum is not sufficient when it does not state that the memorandum was incorporated in the return to the execution. (ci) The following somewhat remarkable statement of law is taken from the report of the case made by a judge who dissented from the decision : A written memorandum, made by the plaintiff in his daybook, not signed by either party, or by any person for either of them, and proved by oral testimony only to have been made in the presence and with the consent of the defendant, and corroborated by the defend- ant's letters not referring particularly to that memorandum, nor stating the terms and consideration of the contract, is a sufficient compliance with the Statute of Frauds.(e) Where the defendant wrote a letter beginning, "after considering your proposition," etc., and accepting the offer conditionally, the acceptance did not state all the contract, and it was held that the words " your proposition" did not connect the de- fendant's letter with a certain alleged letter of the plaintiff's which stated the rest of the contract. (/) Where a letter re- ferred to an agreement in "Mr. C.'s hands," and Mr. C, in fact, had two agreements, it was held that neither could be connected with the letter.(^) Where the clerk of the vendor's to the agreement of October 25th, as up in an Irish chancery case, but the the earlier note spoke of 1000 and the decision went off on another and less later of 2000 cords ; see McCaul <^. satisfactory ground ; the sellers wrote, Strauss, 1 Cab. & Ell. 106. but did not sign a memorandum of (c) 11 East, 142. sale, and afterwards, when applied to (rf) Linn Boyd Co. v. Terrill, 13 by the plaintiffs for compensation for Bush, 464; see Blair v. Snodgrass, 1 breach of contract, wrote, speaking of Sueed, 1, for two writings regarded as the subject of the agreement, as fol- not making a sufficient memorandum, lows: "The wheat in question was (e) Dodge v. Van Lear, 5 Cranch C. sold, etc., in Liverpool ; we undertook C 278. to charter a vessel, . . . and deliver (/) Carter v. Shorter, 57 Ala. 257. the wheat on arrival here" (in Dub- (g) Price u. Griffith, 1 De G., M. & lin), "... now this wheat can never Gr. 83. arrive, seeing both ship and it are The question of how far two memo- at the bottom of the sea, and neither randa are sufficiently connected came sense nor law can require of us the 643 § 344.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XIII. agent wrote the plaintiffs, the vendees, stating that the vendor, the defendant, naming him, would not take less than a certain price, etc., naming terms, and the plaintiffs wrote accepting these terras, and making new ones, but not mentioning the vendor, and the clerk replied accepting the stipulations, and adding new ones, but mq,king no further reference to the vendor, it was thought that, semble, the correspondence did not sufficiently show who was vendor, the wi-itings not being connected. (A) After a negotiation and examination of the sub- ject of the contract, the defendant wrote, " you will please execute the order my son will give you," is not sufficient, there being then no order given by the Bon.(j) A different question arises when a post-nuptial settlement is attempted to be sup- ported by an antenuptial oral contract, there the sufficiency of the memorandum, which usually consists in a recital in the post-nuptial settlement, is not the test, but whether sufficient or insufficient as a memorandum, the later writing is refused credit, because of the danger of fraud upon creditors of the husband. (_;■) § 344. As has been said, the two papers to make one memo- randum must contain a reference in one of them to the other.(^) performance of an impossibility. Had the plaintiff if offered other wheat could the market declined instead of having have refused it, is no argument that advanced under similar circumstances, the plaintiff is not entitled to compen- you very properly would have . . . sation from the sellers for their failure refused to have delivery of the other to do their part ; Haughton v. Morton, wheat than the particular lot bought, 5 Ir. C. L. 339. of which you had a sample." The true (A) Hope u. Dixon, 22 Grant, 442, question arising here is, whether the but query as it was held that the clerk letter discussing the sale, but not de- could not make the memorandum, and scribing the contract nor referring to that the latter did not properly describe the unsigned memorandum, can be the land. connected together, but a majority of (i) Lyons v. Hughes, 1 Vict. Rep. the court thought the memorandum Law, 4. and the letter inconsistent, the latter {j) See Caines v. Marley, 2 Yerg. stipulating that the goods were to be 588 ; Smith v. Greer, 3 Humphr. 121 ; at the vendee's risk, while the former Davidson v. Graves, Ril. Eq. Rep. 231, made no such provision ; but the two and see "Marriage." grounds of defence taken in the defend- (/c) Jones {Re), 4 Not. Ca. (Eoo. & ant's letter are altogether different Mart.) 532 ; Waldron u. Jacob, 5 Ir. from this one ; the excuse of impossi- R. Eq. 132. bility is no defence, and the plea that 544 CHAP. XIII.] THE NATURE OP THE MEMORANDUM. [§ 344. But physical annexation will answer the same purpose.(?) A contract written on a plan of the property sold, ^^ ^^^^^ and which refers to the plan as showing what was annexation sold, is evidenced under the Statute by both the and memo- writing and the plan.(m) And a map under which ™"'i"™- sales were made can be resorted to_ to establish the title.(?i) And the plan referred to in a memorandum may be identified by oral evidence.(o) Where the advertisement of sale referred to certain plats, the court assumed that those circulated at the sale were the same.(p) Where a memorandum described by its name a tavern sold, and on the paper endorsed a direction that it should be put on the number in the plan, and there were two plans on which it was by diflerent numbers, one right and the other wrong, it was held that parol evidence could explain the discrepancy.(5') But the mere exhibition of a plan of improvement of a neighborhood will not bind the vendor, some of the points of improvement not being under the control of the latter.(?') And it was held in another case that plats of the land made by the vendee showing the land, (Z) Fisher v. Kuhn, 54 Miss. 483; .Jelks V. Barrett, 52 Miss. 322; Ken- worthy V. Schofield, 2 B. & C. 945. An advertisement of sale of land pasted on the memoraudnm is incorporated with the latter ; Hutcheon i'. .Johnson, 33 Barb. 395 ;■ see Mayer v. Adrian, 77 Nor. C. 84. So two papers attached which contained the conditions of sale ; McComb u. Wright, 4 .Johns. Cb. 661. So a letter containing the terms of sale as required by the vendor and pinned by the auctioneer in the memorandum of sale signed by him ; TaUman v. Franklin, 14 N. Y. 584; see Gill v. Bicknell, 2 Gushing, 358. Where a guaranty did not mention the name of one of the parties, but was folded by the corners with the invoice, which contained the contract guaranteed, and which stated the party's name omitted in the other, the Statute of Frauds is satisfied ; M'Ewan v. Dynon, 3 Vict. L. R. Law, 273. The following are VOL. I. — 35 examples of memoranda physically annexed : HoUingsworth v. Martin, 23 Ala. 597 ; Hope „. Dixon, 22 Grant, 442 ; Jacob v. Kirk, 2 Moo. & Rob. 223 ; Croome !■. Lediard, 2 M. & K. 259. (m) Nene Valley, etc.. Commission- ers c. Dunkler, 4 Ch. D. 1 ; see Powell <,. Dillon, 2 Ball. & B. 420. (n) Harmer v. Morris, 1 McLean, 47; Scarlett i'. Stein, 40 Md. 528; Jelks V. Barrett, 52 Miss. 322. (o) Hodges !/. Horsfall, 1 Russ. & M. 125. (/)) Briggs V. Munchon, 56 Mo. 470 ; see Lee v. Mahoney, 9 Iowa, 344, which goes to a doubtful length in making out the contract from a defective memo- randum and a map. (?) Naylor v. Goodall, 26 W. R. 162 ; 37 L. T. N. S. 422 ; 47 L. J. Ch. 55. (r) (Feoffees of) Heriot's Hospital c. Gibson, 2 Dow, 312 ; see for reference to a map held insufficient, Stretton v^ Stretton, 24 Grant, 20. 545 § 345.J LAW OF THE STATUTE OF FRAUDS. [CHAP. XIII. and returned into court, will not aid an imperfect description in the return to a fi. fa.(s) Where a right of common was sued upon, it was held that while a plat might be referred to to identify property passing by a deed, to give it the efl'ect of enlaro-ing or restrictina; the deed, or of creating a right in land, would be subversive of the Statute of Frauds. If the deed conveys the right in an appurtenance to the land, the plat may show what the existing appurtenances are, but if the deed does not do so, the plat cannot be resorted to.{t) § 345. One deed may refer to the description in another, and the two will be treated as 0Y\e.(u) A written assiffn- connected ment endorsed on a deed of the assignor's interest oge er. under the deed, and reciting that it is for value re- ceived, is sutBcient ; the deed and writing are construed to- gether.(2;) "Where a memorandum recited that deeds, in fuMl- ment of the contract had been deposited in escrow, a reference may be had to them to ascertain the subject matter of the con- tract. (w) Where the lessor executed a written promise to give a certain lease, and stipulating that "the lease shall be subject to such covenants as are usual in leases granted by the said obli- (s) Thomas v. Turvey, 1 H. & G. performance, as by taking possession 438 ; as to contract with reference to a of and fencing the land), map, see Andrew v. Andrew, 8 De G. (() Kenyon v. Nichols, 1 R. I. 419. M. & G. 349 ; Adams u. Scales, 1 («) Powers v. Jackson, 50 Cal. 432. Baxt. 339. Where the vendor fur- (v) Jarboe v, McAtee, 7 J3. Monroe, nished the vendee with a form of pro- 281, relying on Fugate v. Hansford, posal of purchase of land addressed to Where, at once, after a sale of land him, the vendor, and describing the the vendor and vendee went to a scriv- property, the price, and the manner of ener who drew up a deed which the payment, this the vendee signed. The vendor executed, and the vendee vendor kept this, and gave the vendee signed a note for the price, and both a copy endorsed by the former as fol- note and deed were left with the scriv- lows : " Copy certificate, April 20, etc., ener who was to hand over each when the within is a copy signed by James the vendee, by the terms of the sale, Fagan" (the vendee) "and left with procured security for the payment of the subscriber." This the vendor tlie note. It was held that there was signed. This was the manner in a sufficient memorandum under the •which the vendor habitually sold his Statute of Frauds ; Work u. Cowhick, land. In an action of ejectment the 81 111. 318. vendee defending under the above (w) Schmeling v. Kriesel, 45 Wis. contract prevailed ; Colt o. Selden, 5 328 ; see Jenkins u. Harrison, 66 Ala. Watts, 526 (there were acts of part 346. 546 CHAP. XIII.] THE NATURE OF THE MEMORANDUM. [§ 345. gor," it was held that he was bound to give such lease, there having been equitable part-performance.(x) In a sale under a mortgage, a memorandum by the seller, written on the mort- gage, "the within property was sold," and giving the terms, etc., of the sale, was held to be connected with the mortgage, and the latter by reference to a deed, so that all three could be taken together to make a memorandum of sale. (y) A general reference in a writing to the encumbrances on certain land, was held sufficient as referring to the writings which evi- denced the encumbrances.(a:) A receipt, referring to the " re- demption" of certain land, is sufficient as referring to a mort- gage wherein the land was described. (a) A will not properly executed becomes, by being referred to in a deed, a part of the latter.(6) Letters from the reversioner to a proposed tenant, referring to the " extension of lease," were held good evidence of an agreement to give a lease of the property when a sub- sisting lease held by a third person should have expired. (c) Where a party to a deed sealed but did not sign it, and after- wards wrote reciting the deed and claiming certain benefits thereunder, it was held that, whether or not, a signature was necessary as well as sealing; the writer of the letter made him- self, by the latter, liable on the covenants in the deed.{d) Where, by marriage articles, the husband binds himself to make a settlement, but dies before signing the settlement, which was prepared for his signature, the two together con- stitute a valid settlement. (e) (x) Butler v. Powis, 2 Coll. 161. who then, on behalf of his principal, (y) Lewis v. Wells, 50 Ala. 205. refused to carry out the contract, it (z) Ives V. Hazard, 4 R. I. 14. was held the memoranda were suffi- (a) Hatcher o. Hatcher, 1 McMul. oient, and if the correspondence was Eq. 311. not enough the deed could be tised for (b) Izard u. Montgomery, 1 Nott. & that purpose (the deed was mentioned McC. 386. in one of the letters as prepared and (c) Verlander v. Codd, Turn. & ready for execution) ; Wood v. Davis, Russ. 356. 82 HI. 312, citing cases. Where a proposing purchaser sent (d) Cherry v. Homing, 4 Exch. 636. an offer, stating all the terms of the (e) Coventry v. Coventry, 9 Mod. 19. contract to the vendor's agent, who Where there were marriage articles answered by letter that the vendor ac- assented to by the wife's father, but cepted the offer, and the vendor exe- which were not signed by him, and cuted a deed and left it with his agent which contained a guaranty by the 547 § 346.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XIII. § 346. Tlie memorandum under the Statute of Frauds may Letters consist of the letters of a correspondence.(/) A connected, ggries of letters are, however, not liable either singly or collectively to the stamp duty put upon agreements, because no one of them is the agreement, and neither party has control of them al].(^) The Statute of Frauds is satisfied by a letter inclosing and referring to an invoice and bill of ]ading.(/i) A contract for the sale of land made by corres- father that the daughter's fortune was a certain amount, and the deed of mar- riage settlement recited the portions as represented, and contained a clause stipulating that the money should he settled on the wife, and while in this deed the father did not covenant to pay any such amount, he signed the deed as a witness, it was held that though, semble, the deed did not accord with the articles and might he corrected in favor of the son-in-law, the father-in-law was hound by the two papers togetVier, the articles containing a stipulation that he should pay the fortune to the daughter as represented ; Bold v. Hut- chinson, 5 De G. M. & G. 564; S. C, below, 20 Beav. 250. (_/■) Newell r. Radford, L. K. 3 C. P. 54; Forster c. Hale, 5 Ves., Jr., 314; Cooke V. Tombs, 2 Anst. 424 ; Stratford V. Bosworth, 2 Ves. & B. 344; Thomas u. Dering, 1 Keen, 740 ; 1 Jur., 211 ; 6 L. .J. Ch., 2U7; Wynne r. Hughes, 21 W. R. 628 (Exch.) ; Verlander „. Codd, Tur. & Russ. 356 ; Huddelstone u. Briscoe, 11 Ves., Jr., 591 ; see Gamb. & Bar., Ir. Eq. Dif;. p. 1193 ; Rob. & Jos U. C. Dig., 709; Bell ... Bruen, 17 Peters, lUS ; Norton u. American Ring Co., 1 Fed. Rep. 686, C. C. S. D. N. Y. ; Neufville i. Stuart, 1 Hill Ch. (So. Car.) 166 ; Matteson u. Scofleld, 27 Wis. 677 ; see Law Journal (Eng.), Dec. 16, 1882; Dilworth n. Bostwick, 1 Sweeny, 582; see Bell's Comm., McLar. ed., vol. i. p. 343, where col- 548 lecting a contract from a long corre- spondence was thought dangerous, and where it was said that an obligor should be able to put his finger on a specific engagement and be able to say " here is my engagement." (ff) Benziger v. Miller, 50 Ala. 208 ; see, however, Ramsbottom v. Mortley, 2 M. & S. 445. (h) Draper v. Pattina, 2 Spears, 296. Where the seller had sent cer- tain candles and cheeses with an in- voice, and on the latter the buyer wrote : " The cheese came to-day, but I did not take them in, for they were badly crushed ; so the candles and cheese is returned. " The memorandum was considered sufficient, " the cheese" meaning "these cheeses;" Wilkinson <.. Evans, L. R. 1 C. P. 410 ; 35 L. J. C. P. 224. So a letter by way of answer sent upon the receipt of an invoice in the usual form, and in which letter the buyer objects to the quality and condition of the goods, is, together with the invoice, sufficient ; Hicks v. Cocks, 67 L. Times, 386 (Tredegar County Court). So a bill, giving the parties, price, and subject matter, and headed with a printed signature, followed by a letter from the sel- lers asking where the goods are to be delivered, and asking for further time for delivery of part, constitute a suffi- cient writing under the Statute ; San- derson V. Jackson, 3 Esp. 181 ; 2 B. & Pull. 239 (the fuller report). CHAP. XIIl.] TUB NATURE OF THE MEMORANDUM. [§ 346; pondence is valid, and will be enforced if the terms appear with sufficient certainty to enable the court to decree specific performance ; and a letter written on the 1st of the month proposing a purchase, and calling for an immediate answer with an answer dated the 4th, makes a sufficient memo- randum. (?) Where the plaintiff and the defendant's sons signed an agreement, agreeing to buy cattle from the defen- dant, who did not sign ; the defendant wrote, referring to the agreement, and kejit the latter in his own possession, the Stutute of Frauds was held to be complied with.(j) In another case it was said, that the only question there was whether the guaranty was by the defendant to the plaintiifs in considera- tion of their forebearance to Wilson. By the first letter, the defendant proposed certain terms to the plaintiffs, which appear to have been accepted by tliem, in consequence of wliich the guaranty was given and recognized by the defen- dant more than a year and a half afterwards. The corres- pondence and guaranty, therefore, must be taken as constitut- ing one agreement or transaction; and more particularly so, as the last letter of the defendant adopts the terms of the guaranty, and recognizes those of the tormer letter on which it was founded.(A:) Where a letter asked the price of land, (0 Neufville v. Stuart, 1 Hill Ch. (i-) Coe u. Diiffield, 7 Moore, 255, (So. Car.) 166. citing .Jackson u. Lowe. A draft of the {j) Beckwith i . Talbot, 95 U. S. contract signed by one party, and ac- 292. Where the plaintiff, one Camp- cepted in a letter signed by the other, bell, subscribed a memorandum, viz: satisfies the Statute of Fraads, though "I, John Campbell, agree to pnr- the letter made some modiflcation of the chase from Messrs. Deiniistou & Hud- agreement ; Western Union Tel. Co. i;. speth" (the defendants) "Lot 8, Chicago & P. R. Co., 86 111. 252 (there 2d Concession Verulam, for the sum was, however, part performance) ; see of $750, payable as follows : $100 Powell v. Lovegrove, 8 De G. M. & down, and the balance secured by G. 363 (where the letter stated that it mortgage,'' etc., and this memorandum was to be the memorandum till the was written by Hudspeth, one of the agreement could be prepared). Where defendants, who also wrote to Dennis- the defendant's (the vendor's) plead- ton, the other defendant, that he had ings showed that on a certain date the sold the lot to Campbell, the memo- plaintiff had offered to buy certain randa were held to be sufficient ; land from him, and that he had re- Campbell V. Denniston, 23 U. C. C. P. fused, and where the defendant in 343, citing cases. declining the offer, made in writing 549 § 347.1 LAW OF THE STATUTE OF FRAUDS. [CHAP. XIII. and the reply stated this and stated the vendor's intention to draw on the vendee as the latter had proposed in his letter, and the draft is made upon a third person and accepted, the papers all taken together make out the contract. (/) In a modern English equity case, the vice-chancellor (Gifibrd) said he thought sufficient appeared on the face of the correspond- ence and the telegrams taken together to constitute a binding contract. The defendant several times referred to what he considered "an obligation" and "an engagement," which could only have referred to the terms of an agreement as elucidated by the correspondence. (m) § 347. The two following cases are examples of a correspond- -I, , ence which failed as proof of the contract: iu the Examples r of letters first the contract being sought to be proved by let- not SUffi- - - , , / 1*" 1 *" 1 •! ' 1 1 • i_ cientiy ters and a sold note (the latter describing the subject conBccte . jjja^);|-e|.-)^ [i -^yj^g jjgjj ^\^g^i ^}^g evidence was insuffi- cient to connect the bill with the letters, where the defendant anothur proposal whicli the plaintiff agreed to, the contract was regarded as sufficiently proved ; Washburn o. Fletcher, 42 Wis. 170. (0 P.attou a. Rucker, 29 Tex. 407. To an action for services the defendant set up a counter claim that tlie plain- tiff was to take a certain sum in stock, and by the sale of the stock he was paid, and that a balance was due the defendant. This was considered sufii- ciently proved by an account by the plaintiff charging himself with the stock sent in reply to an account stated by the defendant, and preceded by a letter of the plaintiff's asking for the account, stating that he held the ac- count, and promising to pay the bal- ance ; Napier v. French, 40 N. Y. Superior, 122. In a suit for the spe- ciflo performance of a lease by a tenant against the alleged landlord, the facts were, that during a negotiation, the defendant's solicitor had a surveyor report what repairs the property re- quired ; the surveyor made a written 550 report on this point, and recommended a lease of 14 years. The plaintiff would not agree to less than twenty-one years, which the defendant refused. The defendant afterwards, March 20, wrote that he was willing to give a 14 years' lease "at the rent and time agreed on, such lease to commence," etc. It was held that the memorandum of March 20th could be connected with the sur- veyor's report to make a sufficient memoi'andum under the Statute of Frauds, there being no evidence that there were ever any other terms agreed on ; Bauraan v. James, L. R. 3 Ch. App. 511, citing Ridgway v. Wharton, etc. (m) Coupland v. Arrowsmith, 18 L. T. N. S. 756, tlie court saying of Harnett V. Yeilding, 2 Sch. & Lef. 549, the case cited by the defendant was a different one. That had reference to a public advertisement, which was considered not to be incorporated in the agree- ment. This was a different case ; he must, therefore, overrule the de- murrer. CHAP. Xiri.] THE NATURE OF THE MEMORANDUM. [§348. wrote "on bills rendered you say cash," etc., and the plaintiff replied, speaking of " my bill sent you," and " paying the oil bill," but where none of the letters referred to the sold note.(n) Where a receipt not signed by the defendant, the purchaser, had been given for part of the price of a house sold, and the only paper executed by the defendant was a letter, as follows; "Please ask the captain if he will let the rest go this year on the payment of the house. If he will, I can make the pay- ment this year. . . . Tell him I can send him all the money I have made," . . . etc. It was held that the Statute of Frauds was not satisfied, there being no reference to the receipt.(o) Where the proof was a memorandum of sale of some fifteen thousand oaks, no vendor's name was given, the defendant wrote the plaintiff, saying, " when I ordered the few oaks I requested that they might not be sent until. ... I am much surprised at receiving an invoice and advice ... of your having shipped a quantity for me." It was held that the letter did not make sufficient reference to the memorandum.(p) Sir George Jessel thought that making out a contract from informal letters, where the parties contemplated a formal con- tract, had gone too far.(^) Where a purchaser at auction wrote, " I return the gray mare, lot 49, bought at your sale to-day, as not being steady in harness," it was held that this letter must refer to the catalogue, and not to the sales-ledger, which is not shown purchasers, and, therefore, the contract could not be made out by taking together the letter and the ledger.(/') § 348. An auctioneer's memorandum, referring to a writ of ' fieri facias, under which the sale was made, makes pubiic a good memorandum, the writ helping: out the in- ^^i"^; ^"*'- '^ t » floieut con- complete note.(s) The conditions of sale, if not nectionof signed or referred to in another writing, must be an- Suda. (re) Stooker I'. Partridge, 2 Roberts. 716; 51 L. J. Ch., 917; 47 L. T., 202. 295 ; see for insufficient memoranda. (o) Smith t'. Jones, 11 Reporter, 769; (r) Peirce v. Corf, L. R. 9 Q. B. 66 Ga. 342. 214. See for correspondence held to (p) Smith V. Dixon, 3 Jur. 771, dis- show no contract McPherson u. Came- tinguishing and critcizing Saunderson ron,15U.C.Q. B. 53; Taylor w.KnowIes, c. Jackson. 30 id. 205 ; Kinghorne v. Montreal (?) May V. Thomson, 20 Ch. D. Telegraph Co., 18 id. 66. (s) lElfe V. Gadsden, 2 Rich. 373. 551 § 348.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XIII. iiexed to the latter if both are to be treated as one writ- ing.(i) Conditions of sale, with the memorandum of the purchase endorsed tliereon, are sufficiently connected. (m) So where a sale was made under a map, indicating the lots of land by numbers, and on the advertisement were written the numbers of the lots, and opposite each number the purchaser's uame.(u) So where the auctioneer entered the initials of the buyer's agent in the catalogue of chattels for sale, and the buyer wrote a letter recognizing the sa]e.(w) So a levy en- dorsed on an execution against land, and an entry in the same words in the sheriff's book.(x) So au imperfect memorandum made by the sheriff at the time of the sale in a sales-book, and a memorandum made later in the proper book.(y) A sheriff's memorandum, viz., "Partition-land, Louis Robert v. B. T. Adams, etc., lot 11, IIA^t^^ a., Louis Hubert $10.50 per a., $2S85.40, was held to be sufficiently connected with the parti- tion-suit by the title recited, and that the Statute of Frauds was complied with. (2) But an amendment to a complaint is insuffi- cient if it does not state that a sherift''8 memorandum was not incorporated with the return to the execution ;(«) and an im- perfect return cannot be supplemented by the private memo- randum book of the auctioneer.(6) A memorandum of a sale (() Sandford v. O'Donohoe, I Rob. contain at least in one of them a refer- & Jos. Upper Canada Dig., pp. .342—3 ; ence to the otlier : On the order of sale see supra. issued on a judgment, the sheriff en- (m) Sale ( . Lambert, L. R. 18 Eq. dorsed the following memorandum, ' 3 ; Dobell v. Hutchinson, 3 A. & Ell. viz :— 371. " Sold to Asa J. Ridgway for twenty- (w) .lelks V. Barrett, 52 Miss. 323. four hundred dollars, October 16, 18a9. (ui) Phillimore o. Barry, 1 Campb. "J. D. Phelps, sheriff L.C. 513. "By Wm. H. H. Whitehead, Dep'y." (x) Secrist v. Twitty, 1 McMul. 255. The above memorandum is all the (y) Christie v. Simpson, 1 Rich. (0. evidence there was, except such as was S.), 408. oral, that Ridgway purchased the land (2) Wiley V. Robert, 27 Mo. 388. at the slierifif's sale. (a) Linn Boyd Co. v. Terrill, 13 It appears to us that the memoran- Bush, 464. dum is clearly insufBcient. A memo- [h) Remington i'. Linthicum, 14 Pet. randum, in order to be sufficient within 84. the Statute, must state the contract The following case is an example of with such reasonable certainty that its the strict application to public sales of terms may be understood from the the rule requiring the memoranda to writing itself without recourse to parol 552 CHAP. XIII.] THE NATURE OP THE MEMORANDUM. [§ 348. of goods at a certain price per pound, but not giving the weight, and a later raemoriindum giving the weight, is suiS- cient under the Statute of Frauds.(c) So a notice specifying the terms and conditions of the sale of land, the plat of the property upon which was entered the name of the purchaser and the price, and a letter of the purchaser relating to the sale.(£^) proof. It is impossible to ascertain from the memorandum what it was that was " sold to Asa J. Ridgway for twenty four hundred dollars." It may be supposed, from the fact that the memorandum was endorsed on the order of the sale, that the sheriff meant that the land therein ordered to be sold was sold to Kidgway for the sum named. But this would rest upon mere in- ference, and not upon anything ap- pearing on the face of the memoran- dum. It may be conceded that, if the memorandum had in any way referred to the order of sale for the purpose of identifying the thing sold, so as to make it a part of the memorandum, or so that the two papers — the order of sale and the memorandum — could be taken together as constituting the con- tract, it would have been sufBcient. The memorandum endorsed upon the order of sale, but without any refer- ence to it, for the ascertainment of the thing sold, is no better that if it had been made on any other piece of paper ; Ridgway v. Ingram, 50 Ind. 149 (citing cases.) (c) Clarkson v. Noble, 2 U. C. Q. B. 364. (d ) Lee u. Mahony, 9 la. 344 ; though the letter did not refer to the plat, and neither the letters nor the plat showed the vendor nor the terms of sale. The purchasers, at an auction, signed a paper agreeing to take lots set oppo- site their names, "according to the terms made known at the time of sale" '■ having made the payment according to the conditions of sale." The only conditions of sale were in a handbill circulated at the time of sale; this was held sufficient reference to satisfy the Statute of Frauds ; Dal- toni). McBride, 7 Grant's Ch. U. C. 293, citing Western u. Russell, Saunderson u. Jackson, Ridgway ji. Wharton. The court thought that while Lord Cran- worth's statement of the law made below was too restrictive, his statement in the House of Lords was too loose. The court, referring to Boydell i\ Drum- mond, Hinde u, Whitehouse, Coles v. Trecothiek, Kenworthy v. Schofield, had some doubt, but followed recent authority. Where there was a memorandum made by an auctioneer, as follows : "I hereby acknowledge that I have this day purchased from Mr. Stafford, the vendor, by public auction, subject to his approval, the premises mentioned in annexed particulars, etc. ; " signed by the plaintiff, the vendee, and by the auctioneer's clerk as witness, the particulars gave the full name, "John Stafford, the vendor," and on the memorandum was a printed endorse- ment, signed by the auctioneer, by a printed signature containing the an- nouncement and particulars of the sale, the Statute of Frauds was held to be satisfied; Dyas v. Stafford, L. R. 7 Irel. 599, citing Saunderson v. Jackson, Schneider v. Norris. At an auction sale of land the con- ditions of sale, and the formal contract would have sufficiently shown the con- 553 § 349.] LAW OF THE STATUTE OP FRAUDS. [CHAP. XIII. Where the rlefendant, an auctioneer and house agent, showed the ])laintitf'a description entered in the former's book of land for sale, and the plaintiff" afterwards wrote, "I hereby agree to purchiise the three plats, etc., of land at Hammersmith, etc.," and the defendant gave the plaintiff a receipt, " Received of Mr. G-eorge Long the sum of, etc., as a deposit on the purchase of three plats, etc., at Hammersmith," it was held that the memoranda were sufficiently coiinected.(e) It was thought, in a Scotch case, that a lease defective in not giving the length of the term, might be supplemented by the advertisement of sale which did.(/) § 349. Where the diff"erent memoranda are contradictory, not only is no contract made out, but neither memo- saies-^ randum can be solely relied on, as where an auc- memo- tionccr's memorandum by its silence raised an im- randa not ■' suflicientiy plication that the price was to be cash, it was held connected. , ,, t . c i i i ,. i • that the conditions or sale, though not rererred to in the writing, were admissible to show that the contract was for a payment on credit.(^) And where an ambiguity arose from collocation of diff'erent writings containing the terms of sale, parol evidence to explain is inadmissible. (A) But the ruling of Hinde v. Whitehouse has, in Virginia, been limited to the case where the vendee insists upon the credit, and it was held that if he chose to treat the sale as for cash he could tract if the price per acre had been in- and at the head of the sales-sheet spe- serted ; on the back of the document cial terms were written, and there also was the entry : "Conditions of sale, to was contained the entry of the jjartiou- Thos.Maher, 201. an acre," and signed lar sale made ; the connection is suffi- by the auctioneer ; Maher was the ciently established between all these buyer. This satisfied the Statute of stipulations ; Coate v. Terry, 24 U. C. Frauds ; Cloohesy v. Maher, 6 Vict. L. C. P. 573. R, Law, 559. (_/') Russell c. Freen, Sess. Cas., 13 (e) Long V. Miller, 48 L. J. Q. B. S. 752 ; 10 Fac. Dec. (Octav.) 486, 596 ; 27 W. R. 720, before the Lords there was part performance. .Justices. ((/) Hinde t. Whitehouse, 7 East, Where an auctioneer's book was 5GS ; see, as to contradictory writings, made up of files of sales-memoranda Jones v. Victoria Graving Dock, etc. ; fastened together before the sales, the see § 348, n., Ridgway v. Ingram, terms of sale were written in the book (h) Higginson u. Clowes, 15 Ves. and reference was made in tliese to 521 ; S. C, sub nom. Clowes v, Hig- special terms contained in the sheets, ginson, 1 V. & B. 524. 654 OHAP. XIII.] THE NATURE OP THE MEMORANDUM. [§ 350. do so.(z) In Louisiana it is held that the condition of sale must be in writing.(j') And the name of the purchaser, if not connected at least by a caption with the memorandum, can- not form a part of the latter.(/(;) It has been held tliat the advertisement, in order to be proof of essential terms of the contract, must be referred to in the other writings. (?) § 350. Conditions of sale, if not referred to in the memo- (t) Smith V. Jones, 7 Leigh, 170. (/) Maoarty v. New Orleans Canal Co., 8 Robins. 104. Where the catalogue of an auction sale described a horse as "Lot 49, gray mare, six years old, steady to ride and drive," and the entry in the sales-book was "Lot 49, gray mare, age;" and the seller wrote, "I return the gray mare, lot 49, bought at your sale to- day, as not being steady in harness ;" it was held that the letter was not sulficient, as not stating the price ; that it referred by the words "Lot 49" to the catalogue, and not to the sales-led- ger not shown the purchaser ; and as the catalogue did not give the price there was no compliance with the Stat- ute of Frauds ; Peirce v. Corf, L. R. 9 Q. B. 214. {k) Gill V. Bioknell, 2 Gushing, 358. In a Canadian case, where one of the conditions of sale was, viz., " the ven- dor shall have tlie option of a reserved bid in the hands of the auctioneer," which bid was in fact as follows : " Re- sale Allan Wilmot's farm ; reserved bid $105 per acre;" it was held that, though the two were read together, they did not identify the vendor so as to satisfy the Statute of Frauds ; Wil- mot V. Stalker, 18 Can. Law Jour. 178 ; 2 Can. L. Times, 254; U. C. Ch. Div., citing Shardlow v. Cotterill below (since reversed) ; Vandenburgh u. Spoon er. In a case at the Common Pleas of Upper Canada the facts of the case were as follows : There was an auction of the defendant's property, consisting of farming stock and other articles. The printed bill advertising the sale contained the terms and conditions of sale, which were announced at the sale by the auctioneer. The plaintiff was the highest bidder for some of the articles to the value of $52 ; and they were knocked down to him, and his name entered by the auctioneer's clerk on one of several sheets of paper used by him at the time to make the entries of the sales, namely, the names of the purchasers, etc. ; but these sheets of paper were not attached to the paper containing the conditions of sale, nor was any reference made to them. And, said the judge, who delivered the opinion of the court : " The cases cited by my brother Gait seem to be recognized as good law to the present day, though it may not to some minds appear reasonable that where the con- ditions appear in the printed bill of sale, and they are announced at the sale and the auctioneer, as the recog- nized agent of vendor and purchaser, signs the name of the vendee to a list of names of other purchasers of the articles mentioned in the printed bill, that the latter should necessarily be annexed to the list of name.s ; Kaitling V. Parkin, 23 U. C. C. P. 569. (0 Ashoom o. Smith, 2 Penr. & W. 218. 555 § 350.1 LAW OF THE STATUTE OF FRATJDS. [CHAP. XIII. randum, do not form part of the contract merely because read aloud, or exhibited at tlie sale.(ni) Even thous^h signed by the defendant, if signed and published before the oHhe'sak ^'^'®' '^"*^ ""^'' afterwards referred to by the memo- randum. (??) While the cases are not all agreed on the point, tiie preponderance of authority denies to an adver- tisement of sale, luindbills, etc., though signed by the vendor, any efficacy to bind him under the Statute of Frauds to com- ply with a parol sale made in accordance with these papers. (o) And it has been held that the advertisement is not proof of the contract unless referred to in a writing; that its office is to give notice of a sale in future, not to prove its terms.( p) Au early case in Kentucky takes an opposite view of tliis point. ((/) Where the defendant, a vendor, sold a certain house, etc., and at the foot of the conditions of sale the auc- (?«) O'Domiell o. Leeman, 43 Me. 160 ; Kenworthy v. Schofleld, 2 B. & C. 945 ; Ciinan u. Cooke, 1 Sch. & Lef. 31 ; Megaw «. Molloy, L. R. 2 Ircl. .540 ; RlsUton v. Whatmore, 8 Ch. D. 4GS ; 2(j W. R. 827 ; 47 L. J. Ch., 631 ; Johnson c. Buck, 35 N. J. L. 340; Thomas v. Ross, 19 Up. Can. ft. B. 372; Burke c. Haley, 2 Gilm. 614; Morton r. Dean, 13 Meto. (Mass.) 38S ; Baptist Church /'. Bigelow, 16 Wend. 28 ; Knox i>. Khig, 36 Ala. 367 ; Davia V. Robertson, 1 Const. Rep. 71; Mayer V. Adrian, 77 Nor. (,'. 84. (n) O'Donnell v. Leeman, 43 Me. 160. See Kaitling v. Parker, supra. In Ken- worthy V. Schofleld, 2 B. & C. 948, Holroyd, Judge, said, "upon the au- thority of Hinde w. Whitehouse, I both think that auctions of goods are within till' Statute of Frauds, and that there has not been a signature to a memo- randum of the bargain sufficient to sat- isfy the seventeenth section of that act. It appears to me that you cannot call that a memorandum of a bargain which does not contains the terras of it. The argument for the plaintiff is, that the 556 conditions being in the room were vir- tually attached to the catalogue. But I think that as they were not actually attached or clearly referred to, they formed no part of the thing signed. In the case put of a separation of the con- ditions from the catalogue, during the progress of the sale, I should say that the signatures to the latter, made after tlie .si'paration, were unavailing. It occurred tii me at first, that this might be likeni'd to the case of a will, con- sisting of several detached sheets, when a signature of the last, the whole being on the table at the time, would be considered a signing of the whole ; but there the sheet signed is a part of the whole. Here the catalogue was altogether independent of the condi- tions. I agree, therefore, that this rule for a nonsuit must be made absolute.'" (o) Kurtz e. Cummings, 24 Pa. St. 35. (/)) Ashcom V. Smith, 2 Pen. & W. 218. iq) Hobby u. Finch, Kirby, 15 (one judge diss.) ; see White v. Watkins, 23 Mo. 426, denying Hobby v. Finch. CHAP. XIII.] THE NATURE OF THE MEMORANDUM. [§ 351. tioneer signed the following : " The property duly sold to Mr, Arthur Shardlow, etc., deposit paid," etc., and gave the fol- lowing reteipt : " Received of Mr. Arthur Shardlow the sum of, etc., as deposit on property purchased, at four hundred and twenty pounds, at the Sun Inn, Pinxton, etc., Mr. George Cotterill, owner ;" and previously to the sale a poster was ex- hibited in the neighborhood describing the land; it was held by Kay, J., that the Statute of Frauds was not satisfied, because the property was not described ; the poster w^as not referred to, and the description in the receipt, " property pur- chased at four hundred and twenty pounds at the Sun Inn," etc., was not suflBcient. The Court of Appeals, however, re- versed this decision, and held the word "property" as above, was a sufficient description. (r) § 351. An exception has in a few decisions been made to the general rule requiring several writings to con- tain a mutual reference, in order that they may Contempo- make an entire memorandum; and this where the writings, papers are contemporaneous. In a New York case it was said that the note sued upon, and the agreement given in evidence by the defendant, are contemporaneous writings between the same parties upon the same subject-matter, and the action being between the same parties or their representa- tives, they may be read and construed as one paper.(s) So three deeds, not referring to each other, but relating to the same subject-matter, and contemporaneous, were treated as one.{t) Another decision in the same state lays down the law as follows: "It is undoubtedly true that several deeds or other writings executed between the same parties at the same time, and relating to the same subject-matter and so constituting parts of one transaction, should be read and construed to- gether as forming parts of one assurance or agreement. It is not necessary that the instruments should in terms refer to each other, if in point of fact they are parts of a single trans- (r) Shardlow v. Cotterill, per Kay, (s) Rogera u. Smith, 47 N. Y. 327 J., 44 L. T. Rep., N. S. 549 ; 50 L. J. (citing Hunt v. Livermore, 5 Pick. 395 ; Ch., 613 ; 18 Ch. D., 280 ; Court of Draper v. Snow, 20 N. Y. 331). Appeals, 20 Ch. D. 90 ; 51 L. J. Ch. (0 Jackson d. Trowbridge . Matthews, (i East, 308; Seton v. Slade, 7 Ves., Jr., 275; (Jliampion u. Plummer, 1 B. & P. N. Rep. 254; 5 Esp., 254 (syllabus semble wrong) ; Liverpool Borough Bank v. Eooles, 4 H. & N. 143 ; DoweU ... Dew, 1 Yo. & Coll. 345 ; Bank of British America u. Simpson, 24 U. C. C. P. 357, citing cases ; Norman r. Molett, S Ala. 546 ; Kizer u. Locke, 9 Ala. 269 ; Vassault c. Edwards, 43 Cal. 458 ; Weldin o. Porter, 4 Houst. 239 ; Lin- ton V. Williams, 25 Ga. 391 ; Esmay V. Gorton, 18 111. 483 ; Farwell ,.. Low- ther, as 111. 252 ; Perkins i-. Hadsell, 50 111. 220 ; Shirley v. Shirley, 7 Blackf. 452 ; Smith v. Smith, 8 Blackf. 209 ; Cook V. Anderson, 20 Ind. 15 ; Joseph u. Moreno, 2 La. 461 ; Balch u. Young, 576 23 La. Ann. 272 ; Barstow v. Gray, 3 Greenlf. 409 ; Getchell u. Jewett, 4 Greenlf. 366 (citing cases) ; Cummings u. Dennett, 26 Me. 397 ; Williams v. Robinson, 73 Me. 195 ; Hanson c. Barnes, 3 Gill & J. 368 ; Old Colony R. R. V. Evans, 6 Gray, 25 ; Dresel v. Jordan, 104 Mass. 407 ; Scott v. Bush, 26 Mich. 420 ; Morin i-. Martz, 13 Minn. 191 ; Wemple v. Knopf, 15 Minn. 444; Williams v. Tucker, 47 Miss. 678 (query) ; Marqueze u, Caldwell, 48 Miss. 30 ; McGowen u. West, 7 Mo. 570 ; Luckett v. Williamson, 37 Mo. 395 ; Gartrell v. Stafford, 11 No. West, 732 ; 12 Neb. 546 ; Young ,■. Paul, 2 Stock. Ch. 406 ; Brooklyn Oil Refinery V. Brown, 38 How. Pr. 444; Russell V. Nicoll, 3 AVend. 112; MeCrea ... Purmort, 16 Wend. 460; Ballard ,,. Walker, 3 John. Cases, 60 ; Fenly c. Stewart, 5 Sand. 101 ; Newton v. Bron- son, 3 Kern. 593 ; More v. Smedburgh, 8 Paige, 607 ; National Fire Ins. Co. V. Loomis, 11 Paige, 431 ; Miller ti. Pelletier, 4 Edwards Ch. 102 ; Reynolds V R. R., 17 Barb. 613 ; Mirzell r. Bur- nett, 4 Jones (N. Car.), 249; Lowry v. Mehaffy, 10 Watts, 387; McFarson's Appeal, 11 Peun. St. 503 ; Tripp .■. Bishop, 56 Penn. St. 424 ; Johnston c. Cowan, 59 Peun. St. 275; Kinloeh o. Savage, 1 Spear's Ch. 470 ; Douglass / . Spears, 2 Nott & McC. 209 ; Sheid f. Stamps, 2 Sneed, 172 ; Patchin i-. Swift, 21 Vt. 297; Brandon Co. v. Morse, 48 Vt. 326 ; Capehart u. Hale, 6 W. Va. 550. (o) Martin u. Roberts, 57 Tex, 567. CHAP. XIV.J THE EXECUTION OF THE MEMORANDUM. [§ 359. equity. (p) If it is part of the agreement that both should sign, there is no contract till this is done.(9) This is a question for the jury.(r) When one signs a contract of suretyship which purports to be intended to be executed by others also, he is not liable till the others have signed, and under the Statute of Frauds no oral evidence can be adduced to rebut this im- plication. (s) In New York by statute a memorandum of the sale of goods must be signed by both parties.(<) It was, how- ever, said in New York, that where the purchaser signs an agreement to buy, and delivers this to the seller, who agrees verbally to sell upon the terms mentioned in the paper sigtied by the purchaser, the latter is bound. (w) But the signature of the party to be charged is sufficient, under the 17th section of the Statute of Frauds, in the absence of such special enact- ment as has just been spoken of, there being no difference between the word "parties" in that section and the word " party" in the fourth.(?;) Under an act of Congress prescribing written evidence of certain contracts with the United States it was held that an order for transportation stating that the subscriber had bought a certain amount of goods from the claimant (not, however, statiug the price), signed by the United States assistant quartermaster, and approved and signed by the quartermaster, is not a sufficient memorandum, because not signed by the parties. (li?) In Louisiana the assent of the party sought to be charged under an auction sale of (p) Bowen u. Morris, 2 Taunt. 387, Johnson v. Mulry, 4 Roberts. 403; and the chancery decisions in tlie list Marcus v. Barnard, id. 219 ; Dykers u.. of authorities just given ; Creigh c. Townsend, 24 N. Y. 59 ; Champlin c. Boggs, 19 W. Va. 251. Parish, 11 Paige Ch. 408 ; Justice v. (?) Liverpool Borough Bank v. Lang, 2 Roberts. 344 ; West w. Newton, Eooles, 4 H. & N. 143 (a dictum), 1 Daer, 283. where a mortgage is drawn to be exe- (m) Mason v^ Deeker, 72 N. Y. 598 cuted by both parties, and the mort- (citing Justice v. Lang) ; the subject ot gagor the only one who has duties to ' the sale was shares of stock, perform signs, it is enough ; Hipp i. [v) Morin u. Martz, 13 Minn. 192 ;. Huchett, 4 Tex. 25. even in. New York before the Rev. Stat^ (r) Moore i>. Campbell, 23 L. J. Exch. 1830; Mactier o. Frith, 6 Wend. 112 ; 310. so in, Louisiana, see Leeseps v. Wick, 12 (s) Johnston v. Kimball, 39 Mich. La. Ann. 740; but see Code Napoleon, 187. § 1235. (0 R. S. Pt. IL c. vii. tit. ii. § 3;. (w), Adams's Case, 7 Ct. of CI. 440. VOL. I.— 37 5,77 § 359.] LAW OF THE STATUTE OP FRAUDS. [CHAP. XIV. real estate, must be in writing; and where such party is the purchaser, there must also he written evidence of the assent of theowner.(x) A memorandum set forth tie contract, and began, "I do sell" etc.; it was objected that "this instrument is nothing but a pollicitation, as it wants the consent and signa- ture of the vendee. This consent may be shown by evidence aliunde, and the present case abounds in proof that the pur- chaser accepted the sale. He had it recorded ; he entered into possession, and his heirs paid the price. It is contended this payment was made to a person not duly authorized to receive it ; admitting the fact, it is still not less evidence of the assent of the purchaser to the sale."(2/) In Scotland it has been thought that a written unilateral con- tract, binding one side to furnish goo ' s, but leaving to the other an option to take them or not, is not a written obligation within a certain statute of limitations.(z) The party to be charged means the defendant. (a) In an early ITew York case it was said that the Statute of Frauds requires in certain contracts a memo- randum to be signed by the parties to be charged, and if there are acts to be done by both parties, and the onewho is to perform a principal part (as here, the delivery of the flour), sign, and it is accepted by the other party, there can exist no doubt but that such a contract would be mutually obligatory. (6) And whether he be vendor or vendee is immaterial ; the vendee, if defendant, must sign.(c) So the vendor, if defendant, must sign.(c/) The vendee, if plaintifl", does not have to sign.(e) A beneficiary under a trust need not be a party to the declara- tion thereof(/) So the wife the beneficiary in a marriage (x) Macarty c. New Orleans Canal (A. D. 1684) ; Capehart r. Hale, 6 W. Co., 8 Robins. 104 (citing Civil Code Va. 550; O'Donnell v. Brehan, 36 N. and Cases). J. L. 257; Newby u. Rogers, 40 Ind. ()/) Crocker v. Nelly, 3 Martin, N. 11. S. 583. (d) Smith's Appeal, 69 Pa. St. 474; (z) North British R. W. Co. v. Sligo, Martin v. Weyman, 26 Tex. 466. Sess. Cas. 4th ser., vol. i. p. 315, re- (e) Austin v. Wacks, 30 Minn. 338; ferring to Statute, A. D. 1579, c. 83. Smith's Appeal, 69 Pa. St. 480,- Fowle (a) Brumfleld v. Carson, 33 Ind. 95 ; i;. Freeman, 9 Ves. 354 ; Phillips v. Ed- Lewis V. Gray, 1 Mass. 304; Smith o. wards, 33 Beavan, 441 ; see, however, Smith, 8 Blackf. 210. semble, contra, Mix v. Balduc, 78 111. 217 ; (h) Roget V. Merritt, 2 Caines, 120. Madison o. Zahriskie, 11 La. 251. (c) Hatton u. Gray, 2 Ch. Ca. 164 {f) Dale v. Hamilton, 2 PhilL 274. 578 CHAP. XIV.J THE EXECUTION OF THE MEMORANDUM. [§ 360. contract.(^) In Louisiana an act of subrogation (assign- ment) passing a claim does not have to be signed by the as8ignee.(/t) A bill of lading accepted by the consignor, the plaintiff, though prepared by the agent of the consignee, the defendant, binds the former, though not signed by him.(i) The vendor, if plaintiff, need not sign.(j') And a purchaser has been held liable on a bond for the price, though the ven- dor's agreement to sell, which he is ready to fulfil, is only verbal ; and it was even said that the vendee should prepare the conveyance and tender it for execution.(A) But a plea that the consideration of a promissory note in suit was the oral promise by one W., the plaintiff's assignor, to convey land to the defendant, and that W. would neither convey the land nor give a memorandum of the agreement, was held good.(0 § 360. A defendant may be liable by the acceptance, as ven- dee, of a deed which he has not signed, see infra, § 387, and SM2?ra.(m) The next point in logical order doctrineof is that of the application to cases arising under the ^le'i'nNew Statute of Frauds of the equitable doctrine of mu- York re- ^ quiring sig- tuality of remedy ; but before entering upon this nature by involved subject, it will be as well to dispose of a maWng toe class of decisions made under the statute of New ^'^^^' York (2 R. S., 1S5, § 8), which requires the memorandum of the sale of land to be executed by the party by whom the sale is to be made. The vendor, therefore, must under such a law sign, whether plaintiff or defendant.(7i) Where the de- (j) Cochran v. McBeath, 1 Del. Ch. Smith i;. Dublin, etc., E. W., 3 Ir. Ch. 188. 230. (A) Brusle v. Thomas, 7 La. Ann. (k) Byers v. Aiken, supi-a. 350. (l) Clark v. Harrison, 5 Blackf. 303. (i) Cine, etc., R. R. %,. Pontius, 19 (m) Kershaw u. Kershaw, 102 111. Ohio St. 237. 311. (;') Byera v. Aiken, 5 Ark. 421; (n) New York, etc., R. R. ... Pixley, Tatum V. Brooker, 51 Mo. 150. ^9 Barb. 428 ; McWhorter v. McMahan, Where a notice to treat is signed by 10 Paige, 393 ; Johnson v. Mulry, 4 the secretary of a corporation about to Roberts. 403 {dictum) ; Dykersi;. Town- take land under eminent domain and send, 24 N. Y. 59 {dictum) ; Justice p. is sent to the land owner, who alone Lang, 2 Roberts. 344 (dictum) ; Ed- executes a later writing fixing the wards o. Farmers' Ins. Co., 21 Wend. price, the memorandum is sufficient; 492; Burrell t). Root, 40 N.Y. (1 Hand) 579 § 360.] LAW OF THE STATUTE OP FRAUDS. [CHAP. XIV. fendant, who had sold land to the plaintiff, and had signed and sealed a written promise to bny it back at a certain price, at a certain future date, and the plaintiff wrote a letter accepting this contract and asking its fulfilment, it was held that the Statute was satisfied, and that the defendant's contract was not for the sale of land, nor, indeed, the jalaintiff's, because the latter had an option in the matter (o) The Wisconsin statute is the same as that of New York.(p) The defendant's acceptance may be shown by parol. (§') And a title-bond binds the vendee when he accepts it, though it is executed only by the vendor.(r) The law of Michigan is the same as that of Wisconsin and New Y()rk.(s) In Tennessee it has been held as matter of decision that the party to be charged means the seller of the land.(<) The vendee signing is not liable, though lie is the party sued.((i) Under the law of New York, prior to the Revised Statutes, the party to be charged was the one whose signature was necessary. (t;) It has been said in Eng- land that, semble, a signature by the vendor of land is sufficient, 496 ; De Beerski r. Paige, 47 Barb. 174, citing cases ; Earl v. Campbell, 14 How. Pr. 333 ; see Capehart r. Hale, 6 W. Va. 549, distinguishing National Fire Insurance Co. u. Loomis, as being under the special statute of New York ; see Marifi v. Garrison, Report of T. W. Dwight, Referee, p. 53. (o) Burrell . . Root, 40 N. Y. (1 Hand) 4.96, distinguishing Townsend V. Hubbard, 4 Hill, 351, and McWhor- ter u. McMahan, as cases where the intention was that the contract should be made mutually binding. (p) Dodge c. Hopkins, 14 Wis. 63.9 ; see, also, Hubbard i'. Marshall, 50 Wis. 327. (f) Lowber v. Connit, 36 Wis. 182. (r) Vilas r. Dickinson, 13 Wis. 488. (s) Maynard v. Brown, 41 Mich. 298 (the vendor had an option to con- vey or not, and the non-mutuality of the contract was given as a reason for 580 dismissing his bill for specific per- formance). (() Frazer u. Ford, 2 Head, 464; see, also, in Virginia, Parrill u. McKinley, 9 Graft. 6 ; see, also, in Pennsylvania, where the 4th section of the Statute of Frauds is not in force, while with some changes the first three are, Jolmston v. Cowan, 59 Pa. St. 275 ; Cadwalader v. App, 81 Pa. St. 210 ; Tripp i-. Bishop, 56 Pa. St. 428 ; but see Sands c. Ar- thur, 84 Pa. St. 481, and see § 367 ; see, semble, Gartrell u. Stafford, 11 No. West. Rep. 732; 12 Neb., 546. («) Champlin v. Parish, 11 Paige, Ch. 408 ; McWhorter u. McMahan, 10 Paige, 393 ; Earl i . Campbell, 14 How. Pr. 333; Miller v. Pelletier, 4 Edw. Ch. 104 ; Haydock v. Stow, 40 N. Y. (1 Hand) 370. (zO Earl c. Campbell, supra; Mc- Whorter V. McMahan, 10 Paige, 393; Newton v. Bronson, 3 Kern. 593; More u. Smedburgh, 8 Paige, 607. CHAP. XIV.J THE EXECUTION OP THE MEMORANDUM. [§ 361. but not so in the case of a seller of goods. (w) But for the contradiction and confusion shown in the Pennsylvania de- cisions one would have said that under such a statute as that of New York, Wisconsin, and Pennsylvania no question could ever arise as to the application of the doctrine of mutuality of remedy. (a;) § 361. But under the Statute of Frauds in force in England and in most of the United States such difficulty has been encountered, and no little discordance of de- Theeene- ' ral rule cision has been the result. The weight of authority under the . , , . „ ,. , . , , - Statute of IS however strongly in lavor oi the view that this Fraudsasto doctrine, i. e., that equitable relief will not be given ^"emedy. in favor of a complainant if for any reason corre- sponding relief could not have been given against him in favor of the respondent, does not apply in cases under the Statute of Frauds, if the only reason why the complainant could not be held is because he has not complied with the re- quirements of the Statute. The reason of this is that the Statute requires a memorandum signed by the party to be charged, and therefore by implication makes the plaintiff's signature unnecessary ;(?/) and the party not signing can charge (ic) Champion u. Plummer, 1 B. & P. N. E. 252. [x) McWhorter c. McMahan, supra; Burrell «. Root, 40 N. Y. (1 Hand) 496 ; Lowber v. Connit, supra ; Dodge v. Hop- kins, supra; see post, (y) Stadt V. hill, 9 East, 348 ; S. C. , sub nom. Stapp v. LiU, 1 Camp. 242 ; Ormond V. Anderson, 2 Ball. & B. 370 ; Allen v. Bennet, 3 Taunt, 175 ; Owen v. Davies, 1 Vesey, Jr., 82; Childs v. Comb, 3 Swanst. 426 ; Butler v. Powis, 2 Coll. 161 ; Newbery u. Armstrong, Moo. & M. 389 ; 4 C. & P., 60 ; 6 Bing., 201 ; Field V. BoHand, 1 Dr. & Wa. 48 (de- nying dictum in Lawrenson v. Butler and Martin v. Mitchell, and relying on Allen V. Bennet and Ormond v. Ander- son) ; Flight V. Bolland, 4 Russ. 301 ; Bank of British America v. Simpson, 24 U. C. C. P. 357, citing cases ; Norman V. Molett, 8 Ala. 546 ; Gillespie v. Bat- tle, 15 Ala. 279 ; Vassault v. Edwards, 43 Cal. 458 ; Cal. C. C. (1874), § 3388 ; Eaton V. Whitaker, IS Conn. 229; Groover v. Warfield, 50 Ga. 651 ; Far- well V. Lowlher, 18 111. 252 ; Esmay v. Gorton, 18 111. 483; Shirley v. Shir- ley, 7 Blackf. 4.'j2 ; Smith u. Smith, 8 Blackf. 209 ; Cook v. Anderson, 20 Ind. 15 ; Straughan u. R. R. Co. , 38 Ind. 1 85 ; Barstow u. Gray, 3 Greenl. 415 ; Get- chell V. Jewett, 4 Greenl. 366 (citing cases); Rogers v. Saunders, 16 Me. 97; Cummings c. Dennett, 26 Me. 397 ; Penniman v. Hartshorn, 13 Mass. 87 ; Old Colony R. R. v. Evans, 6 Gray, 31 ; Hunter v. Giddings, 97 Mass. 41 ; Dre- sel V. Jordan, 104 Mass. 407 ; Scott v. Bush, 26 Mich. 420 ; Morin u. Martz, 13 Minn. 191 (with oases cited) ; Wil- liams ■;. Tucker, 47 Miss. 678 ; Mar- 581 § 361.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XIV. the party signing. (^) The state of the law on the present point has been well stated in a Texas decision, as follows: "There can be no question," said the court, " that, according to the current of authority, the agreement or memorandnra thereof required by the Statute need not be signed by both the parties, but only by him who is to be charged by it. "(a) The objections to this construction of the Statute, as stated by Lord Redesdale in Lawrenson v. Butler, 1 Sch. & Lef. 13, are certainly forcible, and have led some courts, and at least one recent author, to reject it as unreasonable, notwithstand- ing the length of time it has been established by authority. (6) But seventy years have passed since Chancellor Kent said that the "weight of argument was in favor of the construction, that the agreement concerning lands to be enforced in equity should be mutually binding," but added: 'It appears, from the review of the cases, that the point is too well settled to be now questioned' (Clason v. Bailey, 14 Johns. 489). Surely this might be repeated now with increased force and emphasis." And it was held that a vendee is liable on a promissory note queze v. Caldwell, 48 Miss. 23 ; Rey- nolds V. O'Neill, 11 C. E. Greeu, 225 ; Youug V. Paul, 2 Stock. Ch. 406; Ballard v. Walker, 3 John. Cases, 60 ; Clason V. Bailey, 14 Johns. 486 ; Wor- rall r. Mnnn, 1 Seld. 239 (citing cases) ; Russell r. NicoU, 3 Wend. 112; M'Crea V. Purmont, 16 Wend. 460 ; Davis V. Shields, 26 Wend. 347 ; Reynolds v. R. R., 17 Barb. 613 ; Woodward r. As- pinwall, 3 Sandf. 275 ; Fenly r. Stew- art, 5 Sandf. 105 ; National Fire Ins. Co. V. Loomis, 11 Paige, 431 ; Hunter's Case, 1 Edw. Ch. 5 ; Brooklyn Oil Re- finery 0. Brown, 38 How. Pr. 444 ; Steele v. Taft, 22 Hun, 454 ; Mirzell v. Burnett, 4 Jones (N. Car.), 249 ; Lowry a. Mehaffy, 10 Watts, 387 ; McFarsou's Appeal, 11 Pa. St. 503 ; Tripp v. Bishop, 56 Pa. St. 424 ; Johnston v. Cowan, 59 Pa. St. 275 ; Smith's Appeal, 69 Pa. St. 474; Cadwalader o. App, 81 Pa. St. 210; but seepost ; Douglass v. Spears, 2 582 Nott & McC. 409 ; Kinloch u. Savage, 1 Speer's Ch. 470 ; Sheid ;•. Stamps, 3 Sneed, 172 ; Patchin ;;. Swift, 21 Vt. 297; Brandon Co. ^. Morse, 48 Vt. 326; Creigh i'. Boggs, 19 W. Va. 251 ; Cheney I'. Cook, 7 Wis. 423; Hilliard on Vend, ii. ISS ; Sug. Vend. i. 217 n. (x) ; Wats. Eq., 87 ; Fry, Spec. Perf., 137 ; Waterm. Spec. Perf., § 196, etc.; 2 Lead. Ca. Eq. (4th Am. ed.), 1091-9. (z) Nesham u. Selby, 41 L. J. Ch. 551 ; 7 L. R. Ch., 407 ; Palmer v. Scott, 1 Russ. & M. 394; Bailey ... Ogden 3 Johns. 418; Worrall u. Munn, 1 Seld. 239 ; Brooklyn Oil Refinery v. Brown, 3 How. Pr. 446. (a) Crutchfield v. Donathon, 49 Tex. 694, citing many authorities. (6) Citing Bing. on Sales of Real Prop., p. 434 et seij ; Thomas's Execu- trix ['. Trustees of Harrodsburg, 3 Marsh. 299 ; Frazer v. Ford, 2 Head, 464. CHAP. XIV ] THE EXECUTION OF THE MEMORANDUM. [§ 361. given for the price of land when the vendor shows a good con- sideration for the note by tendering a deed. It has also been said that where the contract itself is mutual, the fact that one party has secured evidence of a more conclusive character is not material, and as to this distinction see infra, § 363. (c) The general rule prevails as well under the 17th section of the Statute of Frauds as under the 4th, though the phrase in the former is " parties" and in the latter " party. "((^) This doctrine is, as has been suggested, peculiar to the Statute of Frauds, and is owing to the express wording of the latter. Apart from the Statute, the plaintiff must show that he is bound if he wishes to bind the defendant (e) It has, however, been held that where under a verbal sale of land the vendee, a married woman, partly performed, the vendor cannot refuse to specifically perform on the ground of want of mutuality, because a married woman's disability can only be set up by her- self.(/) So it has been held that in the ease of a contract with an infant, the latter's claim cannot be resisted on the ground of a want of mutuality. (^) These decisions rest, however, on the pecaliar care which both law and equity show to persons not sui juris, allowing them to repudiate their obligations, but at the same time holding the other party if sui juris to his promise. The fact that the plaintiff attempts to execute the memorandum but fails to do so effectually, does not re- lieve the defendant who has properly executed. (A) It has been urged as a reason for denying the conclusion reached in Wain V. Warlters, and the long line of decisions which follow it, holding that the memorandum must show the considera- tion of the contract, that logically it would seem that then both parties should be required to execute the memorandum.(i) (c) Cook u. Anderson, 20 lud. 17 ; allowed to recover, though the defen- see below. dant had executed the deed). (d) Clarke v. Gardiner, 12 Ir. C. L. (/) Chamberlin a. Eobertson, 31 477. Iowa, 412. (e) Flight V. Holland, 4 Russ. 301 ; (g) Mirzell v. Burnett, 4 Jones (N. Gage V. Jaquette, 1 Lans. 210; Mayor Car.), 252. of Kidderminster v. Hardwiok, L. E. 9 (A) Dresel v. Jordan, 104 Mass. 412. Ex. 19 ; 43 L. J. Ex., 9 (the plaintiff (i) Smith v. Ide, 3 Vt. 295. It was, was a corporation who had not pro- said in Laythoarp v. Bryant, 2 Bingh. perly executed the deed, and was not N. C. 735, that the objection of nou- 583 § 361.J LAAY OF THE STATUTE OF FRAUDS. [CHAP. XIV. The question of non-mutuality being a bar to recovery, has been introduced as a further disturbing element in a problem much complicated already: whetber, namely, a parol express contract invalid within the Statute of Frauds can be used as a defence to an implied contract as to the same subject arising from the relations of the parties, as where the defendant agreed to convey land to the plaintifl" in consideration of services, and the latter having served for less than the agreed time, sued on a quantum meruit, it was held that the defen- dants not being bound by the oral contract, the plaintiff was not, and could leave at any time and recover for services actu- ally rendered. (j) It has been held, however, that there is no inconsistency between these two doctrines, the court saj'ing that the mutuality is complete, and if not, it was the plaintiff himself who had impaired it, the defendant being ready to carry out the parol contract. (Z;) The following are some ex- amples of the application of that exception to the doctrine of mutuality which occurs under the Statute of Frauds : Where a plaintiff assented to a certain oral term being added to a writing, of which specific performance was sought, the defen- dant cannot object, though he could not have enforced the term as against the plaintiff, and the latter indeed admitted that the defendant's version of the agreement was correct.(^) Where the buyer at auction signs a memorandum binding himself, he is bound to the auctioneer for the latter's fees, though neither the auctioneer nor the owner signed, but the defendant took in pursuance of the contract a conveyance from the owner.(m) Where W. and J., the defendants, wrote the plaintiff that they had credited him with a certain sura in con- sideration of a contract to convey certain property ; the plain- tiff signed no writing to bind himself to convey. He, semhle, furnished an abstract and a draft of conveyance, and after- wards sued for specific performance. It was held that the mutuality was not raised, as it might {I) Martin u. Pyoroft, 2 De Gr. M. & have been in Wain I!. VVarlters. G. 794; 22 L. J. Ch., 95 (overruling (j) Crawford o. Parsons, 18 N. H. Parker, V. C, 21 L. J. Ch. 448, who 295. rested his decision on the ground of (k) Mitchell u. McNab, 1 Bradw. the want of mutuality. 300. {m) MuUer v. Maxwell, 2 Bosw. 359. 584 CHAP. XIV.] THE EXECUTION OF THE MEMORANDUM. [§ 362. want of mutuality was no bar, but that under the facts there had been too long a delay in bringing the bi]l.(n) A memo- randum, signed by the plaintiff and the defendant, but not by the plaintiff's wife, is sufficient, though the suit was brought by both the plaintiff and his wife.(o) Where the memorandum was signed by the vendor, a stipulation con- tained in the writing that if the title was unsatisfactory, the money paid by the vendee was to be returned, does not cause the memorandum to be invalid because of non-mutuality of remedy. (p) A memorandum signed by one partner on behalf of a firm of vendors, plaintiffs, is sufficient, the defendant hav- ing signed. (y) A memorandum in the first person is not in- valid for want of mutuality.(r) So a memorandum, " John Bleakley agrees with J. R. Bridges" (the defendant's testator) "to take the property. "(s) § 362. The assent of the party charging is shown by the action brought.(/) An optional or unilateral con- tract is made mutual by the filing of a bill for spe- ^"wn by' cific performance.(it) A plaintiff, seeking the aid fj''°\j of a court of equity to enforce an entire agreement, signed only by the party sought to be charged with it, is not put to prove that he accepted it, the filing of the bill prma /acj'e sufficiently shows his acceptance, but the defend- ant is at liberty to repel the claim of the plaintiff' by showing that at the time he declined to accept it.(D) The grounds upon (n) Williams v. Williams, 17 Beav. Walk. 427 Coitiug Gaskarth v. Low- 215. ther); Williams w. Williams, 17 Beav. (o) Slater v. Smith, 117 Mass. 98. 215 ; Keys u. Astley, 3 N. R. 19 ; 12 (p) Reynolds v. O'Neill, 11 C. E. W. R., 9 L. T., N. S., 356 ; Sams v. Green, 225. Fripp, 10 Rich. Eq. 459 ; Ives w. Ha- {q) More c. Smedburgh, 8 Paige, zard, 4 R. I. 27 (citing cases) ; Ivory «. 607 ; see McConnell v. Brillhart, 17 111. Murphy, 36 Mo. 534 (citing cases) ; 362. Evans v. Williamson, 79 N. Car. 90 ; (r) Coles u. Treoothiok, 9 Ves., Jr., Estes v. Furlong, 59 111. 300 ; Brusle v. 242. Thomas, 7 La. Ann. 350; Vassault u. (s) Bleakley V. Smith, n Sim. 150 ; Edwards, 43 Cal. 463 (citing many see Cadwalader v. App, 81 Pa. St. cases) ; Worrall v. Munn, 1 Seld. 239 ; 210 ; Corson v. Mulvany, 49 Pa. St. Steele v. Taft, 22 Han, 454. 98. (a) Cooper v. Carlisle, 2 C. E. Green, {t) Coleman v. Upcot, 5 Vin. Abr. p. 530. 628, pi. 17; Martin v. Mitchell, 2 J. & (v) Boys v. Ayerst, 6 Madd. 324. 585 § 362.] LAAT OF THE STATUTE OF FRAUDS. [CHAP. XIV. which courts of equity have proceeded appear to be, that the Statute of Frauds, as decided in the courts of law, requires only the signature of the party to be charged to be legally binding upon him ; and equity, finding a contract legally bind- ing, will decree its performance. Where the contract is bind- ing at law, therefore, the want of mutuality is no objection. (w) In a Louisiana case it was said that while a retrocession {semhle a surrender or dedication) signed by the purchaser did not bind the seller till accepted by him, semftfe a suit might be such an acceptance if it went to enforce the contract. (a;) And in another case it was said," the parties in whose favor the stipu- lations were made so far from considering that they are not obligatory invoked the aid of the agreement in the suit, and found their claims in part upon it."(?/) Apart from the Statute of Frauds, the decided weight of authority seems to establish that, where the complainant in suing binds himself in any way to the satisfaction of the chancellor for the performance of his part of the contract, the defendant cannot raise the dif- ficulty of want of mutuality. (z) Where there have been cir- cumstances of equitable part performance the courts have, in some instances, taken hold of these to evade the question of the application of the mutuality rule to the Statute of Frauds. Thus, where the plaintiff has performed his part of the con- tract, it was held that the other party signing was bound. (a) And where one before marriage executes a bond, making a certain marriage settlement, and both the husband and wife act under it, and after his death she continues to carry it out, it was held that her heir could not attack the bond on the ground that she had not signed it, because one party having signed, both parties have acted thereunder, and the Statute of Frauds does not apply. (6) Where the plaintiff" performs his part, the defendant signing is bound, whether the mutuality rule applies or not.(c) The party to an agreement within the (w) Rogers v. Saunders, 16 Me. 97. ed.), n. 2 ; see Adams's Eq. (7tli ed.), (x) Municipality No. One v. Barnett, p. *82, n. 3 ; Bisp. Eq., § 377. 13 La. Rep. 347. (a) Lauiug u. Cole, 3 Green, Ch. (jr) Counolly u. Autenrieth, 4 La. 229. Ann. 163. (6) Archer v. Pope, 2 Ves., Sr., 523. (^j See Story's Eq. Jur.,p. 729 (12th (c) Straughan v. R. R., 38 Ind. 185. 586 CHAP, XIV.] THE EXECUTION OF THE MEMORANDUM. [§ 363. Statute of Frauds, who has not signed the memorandum, but who under it is bound by certain stipulations, may, if ready to perform the latter, have reformation of the instrument in a proper case.(rf) In a case where the point of non-mutuality was raised the court said: Whatever weight there might have been in this objection at first, it vanished the moment the house was built, and Collins took possession. It could be enforced as well by the vendor as by the vendee. It was as well an agreement to buy as to sell.(e) "Where the defendants signed an agreement to build a dam and partly performed it, and were partly paid, the objection that the defendants only had executed the memorandum was held not to prevail. (/) In other cases the rule has been laid down that both parties must sign, but that equitable part performance by a vendee plaintiff, for example, will supply the place of the hitter's sig- nature.(^) And where, under an agreement for the sale of goods claimed to be invalid, because not signed by the party seeking to charge, one party who had signed the agreement gave and the other party accepted certain promissory notes as provided in the agreement, it was not error for the court to leave it to the jury to say whether there had not been such an execution of the agreement as would take it out of the Statute of Frauds, the suit being on one of the notes. (A) § 363. There is a distinction which is important, and the disregard of which has helped to further involve the disputed doctrine now under consideration, and ^utuamy that is the difference between the want of mutualitv °^ remedy, ■' or want of of remedy, which arises solely from the failure of the mutuality plaintiff to sign the memorandum required by the Statute of Frauds, and a non-mutuality inherent in the con- tract itself, one party binding himself and the other promising nothing. Where both sides of the proposed agreement are executory and only one party is bound, there is, all other con- (d) Thompson v. Marshall, 36 Ala. (/) Reedy v. Smith, 42 Cal. 245. 513. (g) Mix p. Balduc, 78 111. 217 ; and (e) Collins v. Vandeyer, 1 Iowa see Cox v. Cox, 26 Gratt. 311. (Clarke), 576; see Willetts i>.Sun,etc., (A) Weiglitmanw. Caldwell, 4 Wheat. Ins. Co., 45 N. Y. 45. 85. 587 § 363.] LAW OP THE STATUTE OF FRAUDS. [CHAP. XIV. siderations apart, no contract at all; where the contract is unilateral the question is whether the acceptance can be proved by [larol; and, lastly, where the contract itself, though fully mutual, is within the Statute of Fi'auds, and the writing shows a promise only by one party, it is because there is no written evidence signed by any one, even the defendant, of a promise made by the plaintiff, and not because the latter has not signed that he cannot recover. All contracts, apart from the Statute of Frauds, must be mutual as a rule.fz) The exceptions to this doctrine, not depending upon the Statute of Frauds, need not be considered further than above suggested. In an In- diana case already cited,(j) it was said that the contract in suit was mutual in itself, but that one party had secured evi- dence of a more conclusive character than the other. Where the memorandum read, " I, Samuel Kisson, certify that I sell to Peter Gilmore," and Gilmore accepted the memorandum and made a part payment, the evidence was sufBcient.(/i:) A written promise signed by the defendant to pay rent, but con- taining no promise on the plaintiff's part, satisfies the Statute of Frauds, but cannot be sued on as a lease.{l) Where the defendant by a sufficient memorandum made an offer of pur- chase of land, no question of mutualitj- was considered to have arisen, as the defendant took a conveyance of the land, and this though on oral proof a larger pi'ice was sought to be re- covered than that reserved in the deed.()-)i) In a Kentucky decision it was said that " this case is within the rule recog- nized by this court repeatedly; that to enable either party to compel a specific execution the contract must be mutually binding on each. (Boucher i'. Van Buskirk, 2 Marsh. 345; Allen V. Roberts, 2 Bibb, 98 ; New. on Contracts, 154.)"(m) Iu a Vermont case the non-mutuality was made a ground of de- (t) Lewallen v. Overton, 9 Humph. 146 ; see Bleakley v. Smith, 11 Sim. 76; see Hopkins v. Roberts, 54 Md. 150, sujira, and Coles u. Trecothick, 9 316 ; see Davis r. Flagstaff Co., 2 Utah, Ves., .Jr. 242, supra. 92, for a contract not binding, bi'uaiise (/) Browning c. Walbrun, 45 Mo. not mutual in its terms. 478. {j) Cook o. Anderson, 20 Ind. 18 (jn) Rochleau v. Bidvvell, Dra. Rep. (citing cases). U. C. 366. (Jc) Simonson o. Kissick, 4 Daly, (n) Jones v. Noble, 3 Bush, 695. 588 CHAP. XIV.] THE EXECUTION OP THE MEMORANDUM. [§ 363. fence, but with an obscured perception of the real difficulty counsel urged the defect as being a want of consideration ; the defendant had promised plaintift" by letter that if he would continue as counsel for the defendant's brother be, the de- fendant, would guarantee the fee. The court going directly to the point said: "But it is claimed again that the considera- tion should appear in writing in order to give validity to the guaranty. This must either mean that the acceptance of the defendant's proposition must be in writing, or a correlative undertaking on the part of the plaintiff to render future ser- vices must have been in writing. We can readily understand that this might be required in some cases, as when the guar- anty itself did not embody substantially the material and effective terms of the contract, and where resort to parol evi- dence should be necessary in order to show what the contract was in its terms and effect. But we do not understand that this has ever been required, when all that is to be done by the other party is merely to accept the proposition in the terms in which it is made, and to perform the consideration either by paying or doing the thing proposed. In the present case the services thereafter to be rendered constitute the consideration, and this is clearly indicated on the face of the defendant's proposition. "(o) Where the action is upon a promissory note given by the vendee, although it may not be such a memo- randum as satisfies the Statute of Frauds, the maker cannot avoid the note he has given, because he has omitted to bind the vendor, who is ready to do his part.(p) But where the consideration of a promissory note was the conveyance by a third party of certain land to the maker of the note, and the third party would neither convey nor put into writing his oral promise to do so, the defence of want of mutuality and failure of consideration will be sustained. (§') It has even been (o) Roberts «. Griswold, 35 Vt. 496. (?) Clark v. Harrison, 5 Blackf. (p) Crutchfleld v. Donathon, 49 Tex. 303 ; see Martin v. Mitchell, 2 Jac. & W. 694, citing Rhodes v. Storr, 7 Ala. 347, 426 ; where Sir Thomas Plumer asked and McGowen v. West, 7 Mo, 569 ; see whether the party having signed might Weightman v. Caldwell, 4 Wheaton, not recede if the other would not sign, 87, supra. or otherwise bind himself. 589 § 364.J LAW OF THE STATUTE OF FRAUDS. [CHAP. XIV. held that the mutuality of the contract can be shown dehors the memorandum. (»•) § 364. The next class of cases are those where the evidence itself shows that there was no mutuality of agree- ing want of rne'it, a defect, as has been said, altogether different mutuality from non-mutualitv merely of remedy. Thus, where or contract. . one W. B. signed an agreement to work for the plaintiff, and for no one else, etc., the plaintiff not having signed the memorandum, and not having agreed, semble, even by parol, to retain W". B. as his servant, the defendant is not liable for enticing the latter away.(s) So, where the defen- dants agreed between themselves by a written contract to employ the plaintiff, and the latter was not a party even to the oral contract evidenced by the writing, the defendants are, for want of mutuality, not liable. (<) A written contract to sell land at a certain price does not bind the vendor be- cause the other party did not agree [semble even by parol) to take the land.(M) Nor is the vendee bound under such cir- cumstances, having promised nothing.(?;) As may be seen in the chapter on "Validity," an invalid contract within the Statute has, as a general rule, been held to furnish no con- sideration for a promise; and this in one instance was rested on the ground of the lack of mutualitj' in the agreement.(M)) An optional or unilateral contract is made mutual, as has already been said, by bringing suit;(a;) but, perhaps, accept- ance is enough. There are some decisions which have sus- tained a defence on the ground of non-mutuality, where the memorandum under the Statute of Frauds showed an obliga- (r) Ives V. Hazard, 4 R. I. 26. covenant on the ground of non-mutual- (s) Sykes o. Dixon, 1 P. & D. 468 ; ity, the covenantee being bound to no- 9 A. & Ell., 693. thing (but see Reporter's note) ; see, (0 Briggs V. Smith, 4 Daly, 113. also, Vassault v. Edwards, 43 Cal.463, (m) Beau v. Burbank, 16 Me. 460. distinguishing Cooper v. Pena, 21 Cal. (v) Stetson v. Patten, 2 Me. 360. 403, as a case where the non-mutuality As another example of a non-mutual did not arise from the failure to sign, contract, see the case cited below ; but was inherent in the contract itself. Knox V. Haralson, 2 Tenn. Ch. 236; (w) Krohn u. Bantz, 68 Ind. 278. and see Bromley i. Jefferies, where (x) Cooper v. Carlisle, 2 C. E. Green, specific performance was refused of a 530. 590 CHAP. XIV.] THE EXECUTION OP THE MEMORANDUM. [§ 365 tion merely in the defendant8.(?/) Where the vendors signed a memorandum of sale of land, which expressed that the vendees were " to have the refusal ten days from date," it was held that the vendor's signature was enough ; that the vendee's option to take might be proved by parol, and that the doc- trine of mutuality did not apply.(e) In Michigan, it has been decided that a memorandum which showed that the vendor had an option to convey or not, showed a non-mutuality of contract, and could not avail under the Statute of Frauds.(a) In a prior case, it has been said that, where the remedy was not mutual, specific performance would not be decreed ; but the point decided was that the memorandum, though reciting an obligation on the part of one only, being signed by both parties, bound both ; and it would seem that the acceptance by the grantee of a deed executed only by the grantor, bound the latter to the covenants therein. (6) § 365. Before taking up those cases which doubt or deny the statement of law contained in the last few pages, it „ may be well to recapitulate what has been said. We pioposi- have then the following propositions : I. Apart from the Statute of Frauds, the rule in equity is that recovery against the defendant will not be given when the court would not be able to hold the plaintiff to his part of the contract. 11. That even in equity, when the plaintiff' performs or satisfies the chancellor of his readiness to perform, he may recover.(c) III. That the defect is one relating to the remedy solely, and is of importance only when a chancellor is asked by one party for a strong measure peculiar to equity, and the doubt which arises is whether the same grace can equally be accorded to (y) Corliitt v. Salem Co., 6 Or. 405 ; 299. The memorandum was, however, Butler u. Thomson, 11 Blatch. C. C. ill for another reason, in lacking the 535, reversed in 92 U. S. 412, on the signature of the vendor, who is the one ground that the memorandum did to execute the writing under the Michi- show an agreement by both parties. gan statute. (z) Smith's Appeal, 69 Penn. St. (6) Corson v. Mulvany, 49 Penn. St. 474, citing cases ; see Bisp. Eq., § 377, 98 ; see Cadwalader v. App, 81 Penn. citing Smith's Appeal and Corson v. St. 210, and see § 367. Mulvany. (c) Grove v. Hodges, 55 Pa. St. 515. (a) Maynard v. Brown, 41 Mich, 591 § 365.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XIV. the other party should the latter need \t.{d) IV. That the question of mutuality of remedy does not arise in law at all, and while the non-mutuality of remedy in equity may be plain, yet the mutuality of ri2;ht and the recovery thereon at law may remain clearly undisturbed in both partie8.(e) V. That under the Statute of Frauds, which only requires a sig- nature by the party to be charged, the equitable rule of mutu- ality of remedy does not prevail. (/) VI. But the non-mutu- ality must merely relate to the remedy, and arise solely from the plaintiff's failure to sign, so that, even under the Statute of Frauds, the contract in itself must be mutual. (^) VII. That the memorandum signed by the defendant must show the plaintiff's obligation as well as that of the defendant.(/t) VIII. Except where the memorandum shows a unilateral contract, and there is no extrinsic evidence that the plaintiff was under any obligation other than to accept the defendant's promise. No practical injustice results from the want of mutuality of remedy, because neither party will be compelled to per- form his part till the other has performed or has satisfied the court that he will perform: thus, if the vendor sues at law for the purchase-money without having conveyed, there is failure of consideration, and this will be allowed as an equit- able defence in the comraon-law action, or the execution will be stayed or enjoined until the plaintiff's performance; if the vendor proceeds in equity it will be for a decree compelling the vendee to take the land and pay for it. On the other hand, if the vendor is sued for the land in ejectment, or specific per- formance is sought against him, either payment of the price will be held a prerequisite, or the vendor will have his action at law for the money, and, under the law of some states, his vendor's lien ; and while it is easily to be imagined how a suitor might fail between these various remedies, yet the cases seldom or never show such a result. (rf) Young V. Paul, 2 Stock. Chan. National Savings Bank, Brady's Case, 406, denying Martin c. Mitchell. 15 W. R. 753 ; Geiger v. Green, 4 Gill, (c) Young V. Paul, supra. 476 ; see German o. Machin, 6 Paige, (/) See above. 292 ; Lees u. Whitcomb, 5 Bing. 34 ; (j) McConnell v. Brillhart, 17 111. 3 C. & P., 289 ; 2 M. & P., 86 (per Bur- 360; Mix i.. Balduc, 78 111. 218; roughs,.!.). Springle v. Morrison, 3 Litt. 53 ; (Re) (/i) Burnet v. Bisoo, 4 Johns. 236. 69a CHAP. XIV.] THE EXECUTION OF THE MEMORANDUM. [§ 866. § 366. As might be expected, where there has been 8o much difference of opinion, the law, even when set- „ The rule tied, has been accepted with expressions of doubt, that under In a modern case, for example, it was said that the o/prauds^ allowance of specific performance upon the evidence Jj?^*^"^ of letters, which bound one partj' and not the other, mutuality had gone far enough .(i) In an older case Sir Thomas prevail, Plumer thought that the party signing might recede, ^""^ ' if the other would not sign or otherwise bind himself.(^') It has been said that the non-mutuality arising from the plaintiff's not si-gning was not a defence in itself; it might be a circum- stance with other objeetion8.(^) And Lord Redesdale's dictum, in Lawrenson v. Butler,(i) was referred to in one of the Veseys, and not passed upon.(m) So Lord Chancellor Manners said that an eminent judge of the Irish Chancery shared the doubt expressed in Lawrenson v. Butler.(>i) In a Wisconsin case the general rule was followed reluctantly, and on authority.(o) Chancellor Kent, who was, perhaps, the one most instrumental in settling the course of American decision in favor of the now established English view, said, in Benedict v. Lynch,(p) that at that time the recent cases did not favor decreeing specific performance of a contract signed only by the party to be charged, but he admitted that the prior authorities were the other way ; and in a later case he still approved of Lord Redesdale's view, but finally he adopted, on authority ,(^) the doctrine that the failure of the plaintiff to sign the memo- randum, under the Statute of Frauds, will not prevent his recovery on the ground of want of mutuality.(?-) Lord Eedes- (t) Nesham v. Selby, L. K. 7 Ch. (o) Hodsou v. Carter, 3 Chand. 234 ; 407 ; 41 L. J. Ch., 551. 3 Finn., 213. 0') Martin o. Mitchell, 2 J. & Walk. (p) 1 Johns. Ch., 373, citing for the 427. old view Seton v. Slade, and Fowle u. (Jc) Backhouse v. Mohun, cited in 3 Freeman, and- instancing for the op- Swanst. 434, u. ; as delay iti bringing posite opinion Lawrenson u. Butler, suit, Francis v. Love, 3 Jones's Eq. Champion k. Plummer, and Huddles- 322. ton V. Briscoe. (t) See infra. (g) Bailey v. Ogden, 3 Johnson, 418 ; (m) Huddlestou u. Briscoe, 11 Ves., and see s. dictum in Parkhurst u. Van Jr. 691. Cortlandt, 1 Johns. Ch. 280 (citing (n) Ormond v. Anderson, 2 B. & several cases). Bea. 370. (r) Clason v. Bailey, 14 Johns. 486. VOL. I, — 38 593 § 367.] LAW OF THE STATUTE OP FRAUDS. [CHAP. XIV. dale, by a dictum already referred to, and which has received great consideration in later decisions, said that the equitable rule of mutuality should apply under the Statute of Frauds to as great a degree as in other cases.(s) The earliest authority is a doubtfully reported case in Bunbury.(<) Besides the ex- pressions of Chancellor Kent's opinion. Lord Redesdale has been followed in some other American cases. (?<) § 367. While the law of Pennsylvania on the present sub- Th m t J^°'' '^ now entirely unsettled, the latest decisions aiity and dicta appear to follow Lord Redesdale rather rule in ri i i a • t t-i Peiinsyi- than the preponderance ot both American and-iLng- vania. ligh authority. Five case8(?;) have been already given as supporting the general opinion, and one of them decided the point so directly and so recently(w) that it is remarkable that still later rulings should have again opened the whole subjeet.(a;) Before taking up the earlier cases in their chrono- logical order, we may now consider more in detail the four latest authorities just referred to. The first in importance is Tripp V. Bishop, for it is full upon the point, incapable of being explained away, and a ruling which has never been questioned, (s) Lawrenaon ti. Butler, 1 Sch. & randum professed to bind several ven- Lef. 13 (see authorities cited in the dors, but one only signed ; and that reporter's note) ; the agreement was therefore the vendee, defendant, gave mistakingly executed ; it had been In- his assent only to a contract binding tended to be mutual. all the vendors, and that if they all (t) Armiger v. Clark, Bunb. 111. did not sign he was not bound ; nor (u) Thomas o. Trustees of Harrods- would their subsequent signing bind burg, 3 Marsh. 299 ; Boucher v. Van him, if in the interval he withdrew Buskirk, 2 A. K. Marsh. 346, where his assent) ; so In Louisiana; Milten- the contract seems to have been uni- berger f. Canon, 10 Martin, 87 ; and, lateral ; sembte, also, Linn Boyd Co. v. semble, in one decision in New York ; Terrill, 13 Bush, 461 ; Sutherland «. Calkins v. Falk, 1 Abb. App. Dec. 292. Parkins, 75 111. 340 ; Geiger v. Green, (v) Lowry v. Mehaffy, 10 Watts, 387 ; 4 Gill, 476 (citing cases) ; but here the McFarson's Appeal, 11 Pa. St. 503 ; contract itself was not mutual ; Duvall Johnston v. Cowan, 59 Id. 275 ; Tripp V. Myers, 2 Md. Ch. 406, distinguish- „. Bishop, 56 Id. 424; and Smith's ing Moale v. Buchanan, as a case of Appeal, 69 Id. 474. part performance (the contract related (mi) Tripp v. Bishop, 56 Pa. St. 424. to personal property); De Cordova u. (x) Meason v. Kane, 67 id. 126; Smith, 9 Tex. 144 ; Frazer o. Ford, 2 Sausser v. Steinmetz, 88 id. 324 ; Sands Head, 464 (a case distinguishable, per- v. Arthur, 84 id. 481 ; 4 W. N. Cas. haps, on the ground that the memo- (Phila.), 501. 594 CHAP. XIV.] THE EXECUTION OP THE MEMORANDUM. [§ 367. even in the later opinions, whose dicta are inconsistent with it. The facts were that the vendor, who sued for an unpaid balance of the price of land sold, had executed a memorandum of sale and delivered it to one of the defendants, who took it as requested by the vendor to the latter's agent, with instruc- tions to the agent to prepare a deed to be delivered when the full price was paid; the vendor afterwards executed this deed, which was approved by the vendees, and left it with the ven- dor's agent to be held till full payment ; and the court held that the vendor, the party making or creating the estate, having executed the memorandum which had been accepted by the vendee, the mutuality rule did not apply, and that the vendee was bound. This it will be seen agrees with the law as laid down in New York and Wisconsin, wliere, as in Penn- sylvania, the memorandum is to be the act of the party making or creating the estate, and was supposed to have settled a dispute of many years' standing. Grove v. Hodges(y) was a decision scarcely less emphatic in its language, though, owing to the fact that the deed therein tendered was actually ac- cepted, thereby creating a new relation between the parties, which, even apart from the Statute of Frauds, bound them both, the case is less decisive than Tri{ip v. Bishop, where the deed being in escrow, the parties were bound only as having complied with the Statute. In Grove v. Hodges it was said that a person who accepts a written contract is bound without signing, even though the contract was mutually executory, and though the remedy of each party is different, the one being on the deed, the other on the parol contract. It was not long, however, before the decisions of the Supreme Court of Pennsylvania began to exhibit a tendency to revert to the old rule of mutuality which, once threatening to become the law, had been overruled in the series of cases, beginning with Lowry V. Mehaffy and ending with Tripp v. Bishop, so that Wilson V. Clarke (y') and Parrish v. Koons seem now about to be reestablished. A late and most pointed expression of opinion is to be found in Sands v. Arthur, where the successful de- fence of the case was rested on the want of mutuality, and (y) 55 Pa. St., 515. (yi) 1 W. & S., 554. 595 § 367.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XIV. "Wilson V. Clarke and Meason v. Kane were cited; and the facts on which the decision might have been rested, viz., that the memorandum was never accepted by the vendee, being ex- pressly disavowed by him as not stating the contract truly, was not alluded to by the court; as will be seen hereafter, the memorandum even when required to be made only by the party to be charged, or by the party making or creating the estate, must be accepted by the other party and acknowledged by him to contain a full and true statement of the agreement. Arthur, the plaintiff, sued for his wages, and the defence set up was a parol agreement that he should take his pay in part payment of certain lands sold by parol by the defendant to him, and the only evidence of the agreement was a deed executed by the defendant, tendered by him to the plaintiff, and refused by the latter because not conveying all the land agreed to be given. A dictum in Meason v. Kane gives support to the view afterwards more distinctly stated in Sands v. Arthur. The early decisions on this point, as has already been stated, favor the same contention. The first case is Wilson v. Clarke, in which Judge Gibson, speaking in what he acknowledges to be a dictum, enters into a discussion of the subject, alludes to Chancellor Kent's then recently expressed doubts, criticizes the cases overruling the dictum in Lawrenson v. Butler, ex- presses his sympathy with the latter ruling, and maintains the opinion that the absence of the 4th section of 29 Car. II., c. 3, from the Pennsylvania statute takes away the only reason for making the exception to the general rule of mutuality. It is hard to understand how any one can reason that the first sec- tion of the statute which requires an execution of the memo- randum by the party making or creating the estate should neces- sitate an execution by both parties, while the fourth section, which requires an execution by the party to he charged, may be satisfied without both parties signing, and though it would appear to some(2) that such phraseology as that of the first sec- tion should prevent any doubt arising on this point, yet the views expressed in Wilson v. Clarke were followed in Parrish (z) See atove ; see § 400. 596 CHAP. XIV.] THE EXECUTION OF THE MEMORANDUM. [§ 367. V. Koons,(a) which followed the dictum of the Supreme Court by an actual decision. Dicta follow the same current in other cases,(6) and two cases exhibit the difficulties peculiar to uni- lateral contract8.(e) In the very latest case on the subject the pendulum seems to have swung back to Tripp v. Bishop ; and it is said that " it is clear that the defendant accepted the con- tract in parol, and this was competent, for the Statute does not require the vendee's signature to make the agreement mu- tually binding, "(ci) (o) 1 Parsons, Eq. Ca. 84 (District (c) Smitli's Appeal, 69 Pa. St. 474 ; Court of Philadelphia), (distinguish- Corson v. Mulvany, 49 id. 98. ing Lowry v. Mehaffy as a case of part {d) Swisshelm v. Swissvale Laundry performance). Co., 11 Pitts. L. J., N. S., 84 ; 95 Pa. St., (6) Patton !>. Develin, 2 Phila. 103 ; 367, citing Tripp w. Bishop and Smith's Dodds V. Dodds, 9 Pa. St. 315 ; Mo- Appeal. Dowell V. Oyer, 21 Pa. St. 422 (semble). 597 § 368.1 LAW OF THE STATUTE OF FRAUDS. [CHAP. XV. CHAPTEE XV. THE EXECUTION OF THE MEMORANDUM BY AN AGENT. § 368. Memorandum by an agent. § 369. Who may and who may not be agent. One of the parties. § 370. One agent for both parties ; brokers. § 371. Nature and requisites of an agent's authority ; generally. § 372. In whose name the memoran- dum shall be. § 373. Brokers' memoranda ; bought and sold notes. § 374. Broker's memorandum gen- erally. § 375. Entry in broker's book. § 376. Bought and sold notes differing from the book, or from each other. § 877. Oral authority to an agent gen- erally ; authority by deed generally and to convey land. § 378. Unsealed authority when good as to land, etc. ; agent making deed when parol writing would have been enough. § 379. Oral authority to contract. § 380. The rule denied. § 381. Oral authority to make various contracts ; dower ; chattels ; guar- anties ; marriage ; partnership. § 382. Ratification. § 383. Ratification by deed generally ; partnership-transaction . § 368. The memorandum under the Statute of Frauds may be made by an assent. (a) The memorandum exe- Memoran- i i i it i i ■ dum by an cuted by the agent may be done under such eircum- ^^^'^ ' stances as to make it the principal's own act; thus, where a proposal of marriage-settlement is drawn and signed by the intended husband's solicitor, addressed to the intended wife, and is handed to the latter by the intended husband himself, the Statute of Frauds is complied with. (6) In Ken- tucky, by General Statute, ch. 22, § 20, it is provided that the authority of an agent to bind his principal as surety must be in writing, and execution by the agent in the presence of the principal is not sufficient.(c) (a) McComb o. Wright, 4 Johns. Mich. 382; Creigh i". Boggs, 19 W. Va. Ch. 661 ; New Haven Co. v. Quintard, 2.'il. 1 Sweeny, 102 ; McMillen v. Terrell, 23 (6) Gillespie v. Grover, 3 Grant (U. Ind. 165 ; McConnell c. Brillhart, 17 C), 571. 111. 360; Hammond v. Harrison, 21 (c) Billington o. Commonwealth, 79 Ky. 400. 698 CHAP. XV.] EXECUTION OF MEMORANDUM — BY AGENT. [§ 369. § 369. One of the contracting parties cannot be the agent to make the memorandum. (fif) A grantor convey- ing subject to a lease cannot make a memorandum and'who^ of the lease to bind the grantee.(e) A bill of goods may not ^ ^ ' "be agent. made out by the plaintiff's agent, who sold them One of the linn- m ■ ^ parties. to the defendant, is not a sumcient memorandum dum under the Statute of Frauds.(/) Where, however, the memorandum was made by the clerk of one party, and the other party claimed under this writing as against a stranger, the evidence was considered 8uffieient.(^) But if the memo- randum is signed by the defendant it is sutficient, though written by the plaintiff'.(^) -^ memorandum of the sale of goods written in the seller's book, and signed by him only, is not good as against the buyer, but sufficient if signed also by the buyer's agent.(i) This rule has even been extended to the converse case, where the memorandum is written by the party to be charged, and signed only by the party charging.(J) The defendant, Crockford, wrote a memorandum beginning: "I, James Crockford," etc. ; and this only the plaintiff signed ; the memorandum was, however, sufficient ; see Chapter XVII., that Crockford's name was a signature.(A) A memorandum giving the defendant's name as buyer at the beginning, written by himself and subscribed by the plaintiff as vendor, is8ufficient.(^) A written memorandum — it has, however, been held — made by the plaintiff in his day-book, not signed by either party, (rf) Wright V. Dannah, 2 Camp. 203 ; (t) Wiener v. Whipple, 10 No. West. Bailey u. Ogden, 3 Johnson, 418 ; Mar- Rep. 434; 24 Alb. L. J., 609 (S. C. tin V. Dutfey, 4 Phila. 75 {dubita- Wis.). turn) ; Hazard v. Day, 14 Allen, 494 ; (j) Johnson v. Dodgson, 2 M. & W. Eayner v. Linthorne, 2 Car. & P. 124 ; 653 (wliere, however, the defendant's Ey. & Moo., 326 ; see generally on tliis name appeared at the top of the point. Sales;" Johnson ». Buclt, 35 writing); Higdon u. Thomas, 1 H. & N. J. L. 340 ; Marx v. Bell, 48 Ala. Gill. 145 ; but see, contra, Graham u. 499. Fretwell, 4 So. N. R. 25 ; 3 M. & G., (e) Hodges v. Howard, 5 R. 1. 149. 368, where a memorandum in the de- (/) Strong V. Dodds, 47 Vt. 354; fendant's handwriting, but not giving see Graham v. Mnsson, 7 Scott, 776 ; 5 his name, and signed by agent of the Bingh. N. R., 696. plaintiflF, was held insufficient. (g) Frost v. Hill, 3 Wend. 386. (4) Knight v. Crockford, 1 Esp. 190. (A) Owen v. Thomas, 3 M. & Keene, (/) Wise v. Ray, 3 Iowa, 431, citing 353. cases. 699 § 369.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XV. or by any person for either of them, and proved only by oral testimony to have been made in the presence and with the consent of the defendant, is suffieient.(m) In a Michigan case it was said : " It is true that the mechanical act of signing was the act of another ; but it is equally true that it was the im- mediate dictate of the will of Eggleston, and was performed under his actual personal supervision. The penman was as much his instrument in respect to the act of signing as the pen itself would have been had he actually held it."(n) A memorandum written by plaintift''s clerk, in the presence and with the assent of the defendant, has been held insufficient. (o) "Where a Roman Catholic prelate held lots of land, and let them on easy terms, but becoming unable to continue this, sold the lands to B., his agent ; and after having done so met the tenants, and in B.'s presence gave them a memorandum, signed by himself, of terras under which they might hold or buy ; it was held that B. was not bound by this memoran- dum.(p) Terms of sale taken down by the plaintiff's agent do not bind the defendant, though read to and approved by him.(y) A memorandum having the defendant's name as buyer at the beginning of it, and drawn by the defendant's agent and signed by the plaintift", was held insufficient; the agent afterwards, and not in the presence of the parties, signed the defendant's name to the memorandum, but still later struck this out ;(r) the agent's conduct showed that the original inser- tion of the defendant's name was not intended as a signature. The insertion of the defendant's name in a deed as the bar- gainee, at her own request, by the plaintiff's agent, is not a sufficient memorandum. (s) But, on the other hand, a deed left with vendor's agent, acting by parol authority, in accord- ance with which he filled in the blanks with the price and the (m) Dodge v. Van Lear, 5 Cranoh, 295 ; see, however, Clason v. Bailey, C. C. 278. (Crancli, J., dissented, and 14 Johns, 486. as reporter wrote the syllabus from (p) Bickett v. White, 27 Ohio St. which the above is taken.) 405 ; 1 Cine. Sup. Ct. Reporter, WO. (n) Eggleston v. Wagner, 10 North (y) Cooper v. Smith, 15 East, 107. West. Rep. 41 ; 46 Mich. 610. (r) McMillan v. Terrill, 23 Ind. 165. (o) Dixon d. Broomfield, 2 Chitt. (s) Reeves o. Pye, 1 Cranch, C. C. 205 ; see Irvin v. Thompson, 4 Bibb, 220, citing cases. (This was not done 600 in defendant's presence.) CHAP. XV.] EXECUTION OF MEMORANDUM — BY AGENT. [§ 369. purchaser's name, is good as a memorandum to bind the ven- dor, though bad as a deed.(<) Where the complainant claimed under an acceptance by him of the defendant's offer of sale of certain land, it is good reason for dismissing the bill for specific performance that the land had been previously sold to one E"., and that the proof of the latter's purchase was a letter written by the vendor's agent, made such by word of mouth, addressed to the vendor, and approved by 1^., who said that the vendor's agent was his also. The parties had a right to perform the contract even if the Statute of Frauds had applied, and, more- over, the vendee made the vendor's agent his.(M) A bill of par- cels containing the buyer's name written by the seller's agent, and accepted together with the goods by the buyer, is suffi- cient •,{v) the acceptance of the goods would satisfy the Stat- ute without any regard to the memorandum. It has been said that a bill of parcels written by the direction of the seller, but not actually signed, is a good memorandum.(w) That the memorandum consists of two writings, one executed by the agent and the other by the principal, is immaterial. (a:) A memorandum drawn by the vendees and procured by them, to be signed by the vendors' agent after the vendors had rejected the contract made by the agent and had terminated his autho- rity, will not bind.(!/) The plaintiff's agent has no authority to bind the defendant, as by executing a bill of lading of goods claimed to have been bought by the defendant.(2) Where the plaintiff's agent got an order for goods from the defendant, and in his presence wrote a memorandum of the purchase and kept a copy and gave one to the defendant, it was held that D. was not the defendant's agent to make the memorandum, and that making it in the defendant's presence and leaving a (0 Blacknall v. Parish, 6 Jones's Eq. (w) Fall River Whaling Co. u. Bor- 70. (The blanks were filled up in the den, 10 Gushing, 471. defendant's absence.) See as to the (x) Saunders v. Cramer, 5 Jr. Eq. 12 ; execution of the memorandum by an 2 C. & Laws. 54 ; 3 Dr. & War. 87 agent in the presence of the principal, (sub nam. Greene v. Cramer). Packard v. Putnam, 57 N. H. 50. [y) Reed v. Latham, 40 Conn. 455 ; (u) McMillan v. Bentley, 16 Grant, see Williams v. Woods, 16 Md. 246. 387. (2) Strong v. Dodds, 47 Vt. 354. (k) Batturs v. Sellers, 5 Harr. & J. 118. 601 § 370.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XV. copy did not bind the defendant. (a) Where the parties met at the office of the plaintiff's factor, who wrote a bought note and delivered it to the defendant, the buyer, and wrote a counterpart and kept it, it being a custom to give a credit till the Saturday week after the contract, the date of the contract was at the defendant's request changed from Friday to Satur- day, and the memorandum so altered the defendant took away with him ; it was held, in view of the alteration thus made at the defendant's request, that there was enough evidence under the Statute of Frauds to go to the jury. (6) Where the parties themselves undertake to prepare or to supervise the preparation of the memorandum, a note made by an agent, even a broker, in the absence of either party, will not avail. (c) Semble, that a solicitor to bind his client must write as if making a contract as solicitor, and terms used b}' liira in a letter will not bind the client, though, if used by the latter, they would have been sufficient. ((i) The solicitor of one of the parties to a contract of marriage-settlement is not an agent who has implied autho- rity to bind the parties by his memorandum ; the case of an auctioneer is a peculiar one. The general rule being undoubt- edly that one agent cannot act for both parties to make the memorandum. (e) § 370. A broker, though in the first instance employed spe- cially by one only of the parties, has an authority to for both make a memorandum binding both when treated brokers! with in his quasi-official character by the other party to the contract. This exception and the reason there- for is the next subject for consideration. As a general rule, and apart from the Statute of B'rauds, the same person cannot be (a) Murphy u. Boese, L. R. 10 Ex. (c) Lawrence c Gallagher, 42 N. Y. 128; Durrell v. Evans, 1 H. & C. 185, Superior, 318 ; 73 N. Y., 613. being criticized and distinguished on (rf) Donnison u. People's Cafe Co., the ground that there the party to be 45 L. T. N. S., 189. charged had the memorandum cor- (e) Glengal (Earl of) v, Barnard, 1 rected by the agent after it had been Keen, 788, distinguishing Emmerson written, thereby, sem6Zc, adopting it. v. Heelis on this ground, and saying (6) Durrell v. Evans, 1 H. & C. 185 ; that it was contra to Stansfield v, John- 7 L. T., N. S., 97 : 31 L. J. Exch. 337 ; son and Walker v. Constable. Scacc. Cam. reversing Exch. 4 L. T., N. S., 255; SOL. J. Exch., 255. 602 CHAP. XV.] EXECUTION OF MEMORANDUM — BY AQRNT. [§ 370. ageut for both parties to bind them in a contract ; to this the professional broker is an exception,(/) and the broker can make the memorandum necessary to bind the parties under the Stat- ute.(^) Lord Ellenborough expressed himself as of the opinion that this privilege of brokers rested rather on usage than on principle.(/i) "The rule that a broker is to be considered the ageut of both parties rests upon a mere presumption of fact, which may be rebutted by the particular circumstances of the case. He is not ex vi termini agent for both parties." There are brokers whose business it is to merely find a pur- chaser, and not to make a binding contract.(i) Retention by the alleged principal of the note made by the broker is evi- dence of the latter's authority'. (_;') The broker's clerk can make the memorandum when the latter is assented to, if even only verbally, by the party to be bound. (^•) And if an em- ploye of a broker is directly deputed by the parties to make the memorandum, he alone can do it; and he cannot delegate this power even to his employer ; and a regular entry made by the latter will not suffice.(^) The broker must be known to both parties to be acting as agent. (»i) In an Irish case the plain- (/) Hinckley «. Arey, 27 Me. 363 ; & Ell. 792, and text-books on Agency ; see Chapman v. Partridge, 5 Esp. 257, Rutenberg v. Main, 47 Cal. 219. where a special agent chosen by the ij) Lusk v. Hope, 17 Low. Can. Jur. parties was treated as a broker; see 20 Merritt v. Clason, 12 Johns. 107 ; Pip- (k) Johnson i/. Mulry, 4 Robertson, kin V. James, 1 Humphr. 326 ; see Mc- 401. Millan v. Bentley, supra; Sewall v. (/) Henderson v. Barnewall, 1 Y. & Fitch, 8 Cow. 218. Jerv. 393 ; a broker's clerk acting in a (g) Lusk 0. Hope, 17 Low. Can. merely ministerial capacity, and in the Jur. 19 ; Colvin u. Williams, 3 Harr. presence of the broker, who finishes & J. 38; Sale K. Darragh, 2 Hilton, 196 ; the memorandum himself, can bind Hinckley v. Arey, 27 Me. 363 ; Spyer v. the parties by his action ; Williams v. Fisher, 37 N. Y. Super. 100 ; Pringle Woods, 16 Md. 246. V. Spaulding, 53 Barb. 17; Hicks u. (m) Shaw y. Finney, 13 Mete. (Mass.) Hankin, 4 Esp. 114 ; Glengal (Earl 456 ; Lawrence v. Gallagher, 73 N. Y. of) V. Barnard, 1 Keen, 788 ; Rucker 613 ; 42 N. Y. Super. 318 (where a u. Cammeyer, 1 Esp. 105 ; Butler u. doubt was raised whether the broker Thompson, 92 U. S. 412. was sufficiently known by the parties (A) Hinde v. Whitehouse, 7 East, to be acting as such ; he managed the 568. sale with some of the defendants and (i) Dilworth v. Bostwick, 1 Sweeny, one of the plaintiffs, and received a 587 (citing Bartlett v. Purnell, 4 A. commission from the latter). 603 § 371.J LAW OF THE STATUTE OF FRAUDS. fCHAP. XV. tiff had depoaited with Glenny, his agent, a sample of meal for the purpose of sale, and G-lenny was authorized by the de- fendant to purchase the meal for him ; it is plain, therefore, that Glenny was agent of both parties, and was authorized to bind them by any agreement made within the scope of his authority.(?i) His authority is not general, but is limited to the particular transaction. (o) In England, as a broker is not by law permitted to act as principal, he must be regarded as representing some principal in his transac- tion. (;j) Thus, where the plaintiff was employed by the defendant to buy goods, made a note stating the sale, giving defendant's name, and signed it "W. W. Simpson & Co., brokers," and it was proved that there were no "W. W. Simpson & Co.," but that this was a name under which the plaintiff" traded, it was held that the latter being a principal, and not a broker, he could not execute a valid memorandum to bind the defendant. (g') Where the memorandum was exe- cuted by the plaintiff", giving the seller's, the defendant's, name, and signing himself as broker, he cannot recover as principal, for if principal he could not make a valid memo- randum; and if a broker he cannot sue at all.(r) As to the requisites of the broker's memorandum, see § 373 ef seq. % 371. The memorandum need not be under seal ; see § 377.(s) A letter of attorney, signed in the donor's requisiteB"^ presence by an attorney, is a sufficient memorandum "f ^", of authority to him to make a written contract re- agent's mi authority; lating to land.(<) Though a power of attorney is genera y. ^^^ generally regarded as intended as evidence of a contract made thereunder.(M) Query, whether the draft of an agreement signed by the defendant's solicitor and sent by him to the plaintiff's solicitor will bind.(t;) The defendant, the (n) Eichey v. Garvey, 10 Ir. L. Rep. Payne, 124 ; Ey. & Moo. 326 (distin- 544. guishing Atkyns r. Amber, 2 Esp. (o) Remick v. Sanford, 118 Mass. 493, as a case of actual delivery). 107. (s) Rutenberg v. Main, 47 Cal. 219. (p) Tetley v. Shand, 20 W. R. 206 ; (0 Irvin v. Thompson, 4 Bibb, 295. Shaw V. Finney, 13 Mete. (Mass.) 456. (u) Haydook u. Stow, 40 N. Y. (1 {q) Sharman v. Brandt, L. R. 6 Q. Hand) 370. B. 720. (v) Thornbury v. Bevill, 1 Y. & C. (r) Rayner v. Linthorne, 2 Car. & 562; 6 Jur., 407. 604 CHAP. XV.] EXECUTION OF MEMORANDUM — BT AGENT. [§ 372. owner, wrote the plaintiff, who proposed to become his lessee, that H. & Co. were authorized by him to prepare a draft of the lease. The plaintiff had the draft prepared by his own solici- tor and sent it to H. & Co., who signed it, and wrote that they had altered it to conform to their client's wishes ; the plaintiff endeavored to get changes made in the draft, but the defendant not agreeing to do so acceded to the draft as altered ; the draft was held to be a memorandum sufficient under the Statute to bind the defendant. (iw) A memorandum, as fbllows, was held sufficient: "I have this day sold, etc. etc., for account of J. H. Rutenberg, etc. Charles Meinecke, attorney-in-fact for J. H. Iiutenberg."(x) A memorandum made in the rent-book of the owner by his general agent's sub-agent, reciting a lease to the plaintiff, was considered a sufficient memorandum. (y) Where the plaintiff made a verbal offer to the defendant to buy his lease; defendant wrote to McK. accepting the offer with a condition ; on this letter McK. endorsed and signed a statement, that the plaintiff had deposited with him the price of the lease until settlement had with the defendant, and that he, McK., considered the price high, in view of the con- dition annexed by the defendant; the memorandum was held to satisfy the Statute of Fiauds.(2) Where the plaintiff's agent sold certain stock to the defendant, and sent the latter a bought note with a blank for the number of shares, and the defendant filled in the number of shares and the total sum that number of shares would come to at the price already named in the memorandum, and kept the latter, the Statute of Frauds is satisfied ; the plaintiff's agent being also the defendant's.(a) A general memorandum of lease mentioning no terms, made by an agent authorized to contract for a particular lease, is insufficient.(6) Oral agency to charge realty must be clearly proved.(6') § 372. A memorandum signed by an agent in his own name is (ui) Jolliffe V. Blumberg, 18 W. R. (z) Field v. Holland, 1 Drew. & Wal. 784. 48. (,x) Rutenberg v. Main, 47 Cal. 219. (a) Colvin v. Vi^illiama, 3 H. & J. 39. (y) Rice v. O'Connor, 12 Jr. Ch. 433 ; (6) Clinan v. Cooke, 1 Sch. & Lef. 31. but see Charlewood v. Bedford (Duke (6') Challoner v. Bouck, 14 No. West. of;, 1 Atk. 497. Rep. 811 ; 56 Wis., 652, citing Lauer i: Bandon, 43 Wis. 556. 605 § 372.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XV. In whose Dame the memoran- dum shall be. sufficient ; but see, contra, Morgan v. Bergen, 3 N'eb. 213, and see below ;(c) and the principal's name need not ap- pear ill the memorandum, or be known to the other part3'.(c?) In a comparatively recent case it has been said: "The plaintiff invf)kes in his behalf the doctrine that must now be deemed to be the settled law of this court, and which is supported by liigh authority else- where, that a principal may be charged upon a written parol executory contract entered into by an agent in his own name, within his authority, although the name of the jirincipal does not appear in the instrument and was not disclosed, and the party dealing with the agent supposed that he was acting for himself, and this doctrine obtains as well in respect to con- tracts which are required to be in writing as to those where a writing is not essential to their validity. It is doubtless some- what difficult to reconcile the doctrine here stated with the rule, that parol evidence is inadmissible to change, enlarge, or vary a written contract, and the argument upon which it is supported savors of subtlety and refinement. In s^ome of the earlier cj^ses the doctrine that a written contract of the agent could be enforced against the principal was stated, with the qualification, that it applied, when it could be collected from the whole instrument, that the intention was to bind the principal. But it will appear, from an examination of the (c) Williams v. Bacon, 2 Gray, 391 ; Hunter v. Giddings, 97 Mass. 41 ; Gowen v. Klous, 101 Mass. 454; Dykers V. Townsend, 24 N. Y. 57 (see below) ; Brooklyn Oil Refinery c. Brown, 38 How. Pr. 444 ; Batturs o. Sellers, 5 Harr. & John. 117 ; Yerby i'. Grigsby, 9 Leigh, 389 ; Wiener u. Whipple, 10 No. West. Rep. 434 ; 24 Alb. L. J. 809, S. C, Wis. ; semble, contra, Dodds v. Dodds, 9 Pa. St. 315 (in Pennsylvania, see § 380, the agent must be authorized by writing), and Pinokney v. Haga- dorn, 1 Duer, 95, wliicli lays down the rule given above in the text, and ad- mits that it is otherwise in the case of deeds. In McCaleb v. Pradat, 25 Miss. 267, it is said that a conveyance exe- 606 cuted by an agent who signs his own name, however defective in law, is good to pass an equitable title. (f/) Kenworthy u. Scofield, 2 B. & C. 945 ; Yerby v. Grigsby, 9 Leigh, 389 ; Hunter v. Giddings, 97 Mass. 41; Williams v. Bacon, 2 Gray, 391 ; Gowen i;. Klous, 101 Mass. 454 ; Dykers c. Townsend, 24 N. Y. 57 ; Brooklyn Oil Refinery v. Brown, 38 How. Pr. 444; Batturs u. Sellers, 5 Harr. & John. 117 ; Weston v. McMillan, 42 Wis. 669, citing Higgins v. Senior ; Washburn v. Washburn, 4 Ired. Eq. N. Car. 309 ; Oliver v. Dix, I Dev. & Bat. Eq. 165 ; Curtis V. Blair, 26 Miss. 324; Walsh v. Barton, 24 Ohio St. 39. CHAP. XV.] EXECUTION OF MEMORANDUM — BY AGENT. [§ 372. cases cited, that this qualification is no longer regarded as an essential part of the doctrine. Whatever ground there may have been originally to question the legal soundness of the doctrine referred to, it is now too firmly established to be overthrown, and I am of opinion that the practical eiFect of the rule, as now declared, is to promote justice and fair deal- ing."(e) This rule applied to contracts relating to land.(/) The unnamed principal can sue on the memorandum(5') or be sued. (A) But in a New York case it was held that to charge the principal his name must appear in the writing.(i) Where a vendee took a memorandum executed by the agent in his own name, and entered and improved the land, he can show by parol, in defence to an ejectment by the principal, that the latter was party to the parol contract of which the memoran- dum was evidence.(_;') Parol proof is admissible to show the relation of principal and agent, when the latter has made the memorandum in his own name ;(/i;) this on behalf of the princi- pal.(^) " The reason of the rule, which excludes parol testimony, tending to vary or contradict a written contract, applies with greater force to those contracts which are required by the (e) Briggg v. Partridge, 64 N. Y. 362 (A) Lerned v. Johns, 9 Allen, 421, (citing, as to cases within the Statuta citing several cases, and denying the of Frauds, Lawrence u. Taylor, Worrall dictum contra in Stackpole v. Arnold; r. Munn, McCrea u. Purmort, and ad- see, also, Coleman v. First National mitting that the rule did not apply to Bank, 53 N. Y. 393, citing cases ; Wil- honds or commercial paper, and citing, son v. Hart, 7 Taunton, 295 ; McWil- also, Higgins v. Senior, 8 M. & W. 844 ; liams u. Lawless, 17 N. W. Rep. 349, Trueman u. Loder, 11 Ad. & Ellis, 594 ; S. C, Neb. Dykers v. Townsend, 24 N. Y. 61; Cole- (i) Squier v. Norris, 1 Lansing, 284 man v. First Nat. Bank of Elmira, 53 (citing and analyzing Pinckney i:. Hag- N. Y. 393 ; Ford v. Williams, 21 How. adorn, Tallman u. Franklin, Bush u. 289 ; Huntington v. Knox, 7 Cush. Cole, and Townsend v. Corning). 371 ; The Eastern R. R. Co. v. Bene- 0') Butler v. Kanlback, 8 Kan. 675. diet, 5 Gray, 566 ; Hubbert v. Borden, (k) Morris v. Wilson, 5 Jur., N. S. 6 Wharton, 91 ; Browning v. Provin- 169 ; Fenly i.. Stewart, 5 Sandf. 101 ; eial Ins. Co., 5 L. R. P. C. 263 ; Calder Lerned o. Johns, 9 Allen, 421 ; see c. Uobell, L. R. 6 C. P. 486 ; Story on Porter v. McGrath, 41 N. Y. Superior, Agency, §§ 148, 160). 105. (/) Central, etc., R. R. v. Wilcox, (/) Cave u. Mackenzie, 46 L. J. Ch. 14 Kan. 271. 565 ; 37 L. T., N. S. 218 ; vide infra. (g) Briggs v. Munchon, 56 Mo. 470 (citing several cases). 607 § 372.] LAW OF THE STATUTE OP FRAUDS. [CHAP. XV. Statute to be reduced to writing than to others. The dis- tinction appears to be this: where a contract is reduced to writing, whether in compliance with the requisitions of the Statute of Frauds or not, and it is necessary to sue upon the writing itself, there you cannot go out of the writing, or contradict or alter it by parol proof, and consequently can- not recover against a party not named in the writing; but where the contract of sale has been executed so that an action may be maintained for the price of the goods, irrespective of the writing, there the party who has had the benefit of the sale may be held liable, unless the vendor, knowing who the principal is, has elected to consider the agent his debtor."(m) In a Pennsylvania decision it was said by the court " that there is no statute that indirectly requires that an agent shall be constituted by writing, except when he is to con- vey an estate in land for a longer period than three years. It is plain enough, therefore, that it needs no writing to con- stitute an agent to make an entry upon land so as to toll the Statute of Limitations, and of course it may be proved orally. It is one of the most common of all events to call the agent to give evidence of his authority ; and we can imagine no reason for regarding this sort of an agent as incompetent to testify to such facts. "(n) But oral proof of the agency is not admissible on behalf of the agent seeking to discharge himself from the liability under the writing. (o) In California an agent or broker buying or selling land cannot recover his commissions unless there is an agreement in writing showing his employ- ment ; and no action will lie on an implied promise.(p) The difficulty in reconciling with the requirements of the Statute (m) Fenly v. Stewart, 5 Sandf. 105 sible, and did not advert to the qiies- (denying dictum of Parke, B., in Hig- tion of the Statute ; Wilson v. Hart, 7 gins V. Senior). Taunt. 295 ; in the S. C, 1 Moore, 50, The admission of parol evidence, to Parke, J., said that to admit the evi- show that the party liable on a written denoe did infringe theStatuteof Frauds, contract for the purchase of goods was (n) Miles v. Cook, 1 Gr. (Pa.) 59, really the agent of the defendant, citing cases. was resisted in an English case on (o) Higgins v. Senior, 8 M. & W. other grounds, as being in violation of 844; Lang n. Henry, 54 N. H. 59. section 17 of the Statute of Frauds ; (p) McCarthy u. Loupe, 10 Pao. C. the court thought the evidence admia- L. J. 562 (S. C. Cal.). 608 CHAP. XV.] EXECUTION OF MEMORANDUM — BY AGENT. [§ 372. of Frauds the admission of parol evidence, to show liability of' parties whose names do not appear in the writing, is well illustrated by a case, in the Exchequer Chamber, in which the plaintiff", the owner of goods, had authorized his brokers, T. & M., to sell them ; and T. & M. met the defendants, the brokers of one S., and made a sale ; the defendants as as brokers signed a memorandum : " Sold for T. & M. to our principal," not naming him, and delivered this note to T. & M., who, also as brokers, signed and delivered to the plaintiff a memorandum : " Sold to Dale, Morgan & Co. (the defendants) for account of Mr. Charles Humfrey" (the plaintiff). It was held that parol evidence was admissible to show that by usage of trade the defendants were liable if they did not disclose their principal ; and notwithstanding the Statute of Frauds the plaintiff was allowed to recover.(^) Where the defendant claimed to have been acting in a sale of land only as agent for a third party, H., it was said that while, if the memoran- dum had been in his name, H. could have ratified it by parol, the evidence is not admissible to relieve the defendant from liability on a memorandum drawn in his own name.(r) Parol evidence that the defendant, who signed a memorandum as vendee, was acting for the plaintiff as well as for himself, is admi88ible.(s) A lease not under seal may be shown by the lessor to have been executed by him only as agent. (<) That towns in New England have by long usage conveyed their lands in the name of agents validates such conveyances, which would otherwise be void.(w) The following memorandum is an example of a valid contract by an agent to bind his princi- (9) Dale r. Humfrey, E. B. & Ell. (r) Love f. Cobb, 63 N. Car. 327 ; see 1009 (affirming S. 0. below, in Q. B. 1 Smith v. Strasburger, 4 N. Y. Monthl. E. & Bl. 266, subnom., Humfrey u. Dale). L. Bull. 46 (N. Y. Swper. Ct.). Willes, J., dissenting, thought that the (s) Thayer ti. L\ice, 22 Ohio St. 74; memorandum showed the defendants see McCaul v. Strauss, 1 Cab. & Ell. 106. to be the plaintiff's agents, and that, (t) Porter v, McGrath, 41 N. Y. Su- therefore, to hold them as principals per. 106 ; and as to contracts under was to contradict the writing ; Martin, seal not be^ng within the rule, see B., thought the same, and suggested Lerned v. Johns, 9 Allen, 421, supra. that to recover the plaintiff must by (m) Cofrau v. Cochran, 5 N. H. 461 oral evidence, in violation of the Statute (citing afld considering cases), of Frauds, show the parties to the con^ tract. VOL. I.— 39 609 § 373] LAW OF THE STATUTE OF FRAUDS. [CHAP. XV. pal: the cashier of a bank, the defendant, addressed a letter to the plaintiff's, " Forward me the past due note of, etc., and I will pay it."(w) In New York, under the Revised Statutes, the name of the principal must appear in the memorandum. (;«) It is sufficient, however, to give the name of a factor having from the real owner power to sell. (a;) SemMe, also in Penn- sylvania, that under the Statute of Frauds an attorney in fact must sign the name of his principal to the memorandum.(?/) Semhle, aho in North Carolina •,(2') also in Nebraska by stat- ute.(a) A memorandum prepared by the defendant's secretary under a resolution of its directors, beginning as follows: "Ar- ticles of agreement between Hubert, etc., and Treherne, etc., the directors of the Equitable Gaslight Co., etc., whereas the said Hubert has agreed with the said Treherne, etc. etc., as witness our hands," was insufficient, as not a proper signa- ture by the agent, and because a formal signing was contem- plated. (6) An agent may sign his principal's name.(c) § 873. The memorandum made by the broker, though giv- B k ' '"S ^^'® names of both parties, is invalid if not merao- signed by him.((^) But, in an earlier case in New randa ; _, , , • » i i i • i bought and York, a memorandum written by the broker in the 80 110 ee. presence of both parties was considered sufficient, though not signed ;(e) and it has been held that the entry by the broker in his book need not be signed ;(/) this was in an English ruling confined to the case where sufficient memo- randa had been delivered to the parties.(^) The bought and (v) May V. National Bank of Ma- (6) Hubert t. Treherne, 3 M. & Cr. lone, 9 Hun, 111. 7.53; S. C, sub nom., Turner, 4 Scott, (ai) Moody v. Smith, 70 N. Y. 599 ; N. R. 50.5. Williams u. Christie, 4 Duer. 36 ; (c) Jackson v. Murray, 5 T. B. Mon. Squier v, Norris, 1 Lansing, 284 (citing 53. cases). (d) Dennisoii v. Carnahan, 1 E. D. (x) Hicks I'. Whitmore, 12 Wend. Smith, 146. 561. (e) Merritt v. Claaon, 12 Johns. 102. (y) Dodds V. Dodds, 9 Pa. St. 315 (a (/) Coddington i.. Goddard, 16 Gray, case of the confession by an attorney of 436 (the entry was in the regular judgment in ejectment). course of the broker's business, gave (z) Phillips V. Hooker, Phill. Eq. tlie names of the parties connected by 193. tlie word " to," etc. etc.). (a) Morgan v. Bergen, 3 Neb. 213. (j) Goom v. Aflalo, 6 B. & C. 121. 610 CHAP. XV.] EXECUTION OF MEMORANDUM — BY AGENT. [§ 373. sold notes signed by the broker are eufBcient memoranda.(A) The civil law as modified by statute in Lower Canada recognizes the validity of the broker's bought and sold notes. (i) The rule holds where there is no entry in the broker's book.(_;') If there are bought and sold notes, any memorandum (not in the broker's book?) is inadniissible.(A;) The sale note is given to the seller, and the bought note to the buyer ;(i) each party being thus informed, not of what the other has agreed to, but of the engagement he has himself entered into through the broker.(m) In Sievewright v. Archibald(?i) it was said that this was the usage, and that often no entry was made ; that the practice was a bad one, because, while each party had a memo randum of what he had agreed to, he has no knowledge of the contract of the other party ; and it was said that the legisla- ture should compel the broker to make the entry. It may be safe even to say that the sold note delivered to the seller is the memorandum which binds the buyer, and vice versa.{o) The rule has been laid down that the broker is bound to enter in his own books the contract signed by him, to bind them both, or deliver to each a note of it, as of purchase or sale, as the case might be. By the deliver}- of the sold note he only bound the seller and not the defendant.(p) Either bought note or sold note alone is sufficient.(5) This, in absence of any proof, (A) Rucker i'. Cammeyer, 1 Esp. 10.^ ; (m) Butler v. Thomson, 92 U. S. Trueman v. Loder, 11 A. & Ell. 594; 412. Henderson v. Barnewall, 1 Y. & Jerv. (n) 17 A. & Ell., N. S., 114. 393; Sievewright v. Archibald, 17 A. (o) Thompson t>. Gardiner, 1 C. P. & Ell., N. S., 114, doubting the rule D. 777; 18 Moak, 331 (n.) ; see, how- on principle, but considered it settled ever, Sievewright v. Archibald, 17 Ad. on authority. & Ell., N. S'., 114. (i) Lusk V. Hope, 17 Low. Can. Jur. (;>) Stocker v. Partridge, 2 Roberts. 20 ; C. C, art. 1235 (corresponding to 202 (citing Roget v. Merritt, 2 Caines, sec. 17 of 29 Car. II., u. 3) ; Tourville v. 117 ; Waring v. Mason, 18 Wend. 425 ; Essex, 8 Low. Can. Jur. 314. Merritt v. Clason, 12 John. 102 ; Wor- (j) Henderson v. Barnewall, supra rail v. Munn, 5 N. Y. Rep. 229 ; Fenly (citing Goom v. Aflalo) ; Dickenson u. v. Stewart, 5 Sandf. 101 ; Bailey o. Og- Lilwal, 1 Stark. 129 ; Thornton v. den, 3 Johns. 399. Charles, 9 M. & W. 802 (considering (y) Parton v. Crofts, 16 C. B., N. S., Hawes v, Forster). 21 (a sold note) ; Hawes v. Forster, 1 (/<-) Richey v. Garvey, 10 Ir. L. Rep. Moo. & Rob. 373 (a bought note) ; 428. Hankins v. Baker, 46 N. Y. 670 (a (/) Rucker v. Cammeyer, supra. bought note) ; Green v. Lewis, 26 U. C. 611 § 373.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XV. that the other note or semble the broker's book contained dif- ferent terms.(r) Baron Parke, in Moore v. Campbell,(s) ex- pressed himself as being of the opinion that if the broker had been agent of both parties instead of the plaintiffonly, or if the defendant had understood the memorandum which he, the de- fendant, signed to be the evidence of the contract, he would have been bound though the notes differed, and that it was a question for the jury whether it was part of the agreement that the plaintiff also should sign : but otherwise if the de- fendant did not intend to be bound until the plaintiff bound himself by signing ; and that these wei'e questions for the jury. "Where the broker, after the sale at the plaintiffs in- stance and without the defendant's knowledge, made a mate- rial alteration in the plaintiff's sold note, and the defendant's bought note not having been produced, the Statute of Frauds was held to apply. (<) But a sold note of chattels drawn by the agent of both and delivered to the buyers, and accepted in writing by them, binds the latter.(M) A broker made one note and sent it signed to the seller, the plaintiff, and sent another not signed to the defendant, the buyer, and entered and signed both notes in his book; the buyer kept the note some time, and, in refusing to take the goods, only made the objection that the note sent him had not been signed by the broker; it was held that the buyer having kept the note, and not denying the broker's authority, there was sufficient evi- dence of authority in the broker to make the memorandum for both parties, and that the signed memorandum sent the seller was the proper one to bind the buyer, and that, apart from this, the entry in the book was sufficient, the broker's authority being proved. Groves, J., thought the keeping of the note was not sufficient proof of authority, but thought that the buyer's not having denied the broker's authority, Q. B. 625 (bought note) ; see Lang- to deliver bought and sold notes, and dell's Sel. Gas. in Sales L, p. 412, call- to show the entry to either party upon ing attention with the view of its effect request. upon Hawes v. Forster of the regnla- (r) Parton v. Crofts, supra. tion of the board of aldermen of the (s) 23 L. J. Ek., 310. city of London, A.D. 1815, requiring (t) Powell u. Divett, 15 East, 31. the brokers to make at the time of (m) Cabot v. Winsor, 1 Allen, 549. the transaction an entry in their book, 612 CHAP. XV.] EXECUTION OF MEMORANDUM — BY AGENT. [§ 374. was, under the circumstances, sufficient proof of the latter.(w) Where the buyer's broker prepared a bought note and retained it, and there was no evidence that any memorandum was de- livered to the sellers, the latter, after the delivery and accept- ance of part of the goods, were allowed to proceed in bank- ruptcy against the buyers for the difference between the contract price and the amount realized by the sale which they, the sellers, made of the undelivered goods, and though there was delivery and acceptance to satisfy the Statute of Frauds, yet the court appeared to have regarded the memorandum as sufficient.(2o) Where there was a sold note drawn by the broker and deliv- ered to the seller, the plaintiif, the Statute of Frauds is not satisfied.(a;) A memorandum drawn by a broker, beginning as follows: "Sold for Messrs. Butler, etc., to Messrs. Thom- son," etc., and signed as brokers, and this with a copy precisely identical delivered respectively to each party, is sufficient to hold the buyers, though there are no words of purchase, the selling implying a buying.(?/) For an example of memoranda regarded as bought and sold notes perhaps, and as being not mere invoices, but a sufficient note under the Statute of Frauds, see Durrell v. Evans.(^) § 374. Where a paper was signed by the defendant, the seller, it was in one case said that non constat^ but that the defendant might have a note signed by me°mo-^ the plaintiff evidencing the sale as a "bought note" '"gjjg^^g^u (the court, semble, regarding the note held by the seller to be the "bought note").(a) Where the defendant's agent, conducting the former's business, in which she, the agent, had a part interest, and the plaintiff' agrees during a negotiation that A. should act as broker, and A., under the (u) Thompson v, Gardiner, 1 C. P. of the words of purchase fatal, and dis- D. 778 ; 18 Moak, 331 (n.). tinguished Salmon Falls Co.i-. Goddard (w) (Ex parte) Thomas, Re Thorp, as a case where the word "purchase" 11 Jur., N. S., 49. was used). (x) Newberry v. Wall, 65 N. Y. 488. (z) In Scacc. Cam., 1 H. & C. 185 ; 7 (y) Butler i^. Thomson, 92 U. S. 412 L. T., N. S., 97 ; 31 L. J. Esch., 337 ; (citing several cases, and reversing the in Exch. 4 L. T., N. S., 255; 30 L. same case below in the United States J. Exch., 254. District Court for the Eastern District (a) Spear v. Hart, 3 Roberts. 424. of New York, which held the omission 613 § 374.J LAW OF THE STATUTE OF FRAUDS. [CHAP. XV. plaintiff's instructions, afterwards enters in his book the sale as stated by the plaintiff, and sends a note of it to the de- fendant's agent, who keeps it, and who, later, expresses her regret at having made the bargain, it was held that the Stat- ute of Frauds was satisfied if the jury found the agency.(6) The plaintiff, the seller, and defendant, the buyer's agent, were membei-s of a gold exchange bank, and each of them wrote a memorandum of a sale of gold, and addressed it to the cashier of the Exchange Bank; these, with a letter ad- dressed by the defendant to his principals, were held sufficient memoranda to satisfy the Statute of Frauds ; tiie cashier, as an officer of the bank, had power under its by-laws to act as agent for the consummation of a contract between members.(c) A broker, upon the defendant's orally agreeing to take cer- tain goods, executed a memorandum of the sale, and signed as broker, generally; this memorandum he delivered to the plaintiff', who endorsed and delivered to him a warehouse de- livery order; it was held that the memorandum and the delivery order were sufficient to satisfy the Statute of Frauds.((i) A memorandum made by the broker in his ow^n name, and for his own convenience, is sufficient.(e) In another case the court used the following language: "But then it is said that this memorandum was made after the sale, merely for the use of the agent, and retained in his possession ; but it was made while his authority continued, and though for his own use, not therefore the less a document coming within the meaning of the Statute. If it contain the terms of the contract, it does not signify with what other ol>ject the agent made it, and being in his possession, it must be held to be constructively in the possession of both parties, he being the common agent.(/) Broker's memoranda, like others, must contain the entire contract. (^) (6) Chapman <,. Partridge, 5 Esp. (citing, as to agents' authority, Law- 257 (Mansfield, C. J., in his cliarge to rence v. Taylor and Maclean v. Dunn), the jury seems to have thought that (e) Noakes v. Morey, 30 Ind. 103. the defendant was the manager of the (_/') Richey n. Garvey, 10 Ir. L. Rep. business, but semhle secus). 544 (per Blackburne, C. J.). (c) Peabody u. Speyers, 56 N. Y. (rj) Boardman v. Spooner, 13 Allen, 233. 358. (J) Hankins i. Baker, 46 N. Y. 670 614 CHAP. XV.] EXECUTION OF MEMORANDUM — BY AGENT. [§ 375. § 375. In an early case in chancery, in England, the usage of brokers to make the memorandum in a book is noticed ; in that case the book was a pocket-book. (A) broker's The entry in the book is sufficient without any ^°°^' bought and sold note8.(?;) In a case in 1 Starkie Lord Ellen- borough said : In the case of Hinde v. "Whitehouse the entry in the book was considered as the contract, and the bought and sold notes were merely evidence of it. That case does not go the length of deciding that where no entry is made in the broker's book the bought and sold notes may not be suf- ficient to satisfy the Statute. . . . Any memorandum is sufficient to save the Statute of Frauds, although each party may not have the producible benefit of it. (J) A note entered by the broker in his book, and signed by him, is sufficient under the Statute of Fraud8.(/t) An entry made in his book by a broker at the dictation of the plaintiff, and in the presence of the defendant, is 8ufficient.(^ Lord EUenborough, in an- other case, said : "After the broker has entered the contract in his book I am of opinion that neither party can recede from it. The bought and sold note is not sent on approba- tion, nor does it constitute the contract. The entry made and signed by the broker, who is the agent of both parties, is alone the binding contract. What is called the bought and sold note is only a copy of the other, which would be valid and binding,' although no bought and sold note was ever sent to the vendor or purchaser. The defendant is equally liable in this case as if he had signed the entry in the broker's book with his own hand."(m) Apart from the fact there are bought and sold notes, the entry in the book may be sufficient.(n) The rule is otherwise when the notes delivered are incon- sistent; see § 377. Under such circumstances the entry in (A) Mussell V. Cooke, Preo. Ch. 533. that there it was the impression that (i) Henderson . Kempster, 5 Taunt. K. 22 ; Curaming v. Roebuck, Holt, N. 788 ; Gregson v. Ruck, 4 Ad. & Ell., N. P. C. 173 (Gibhs, C. J., saying that S., 747 ; Cowie v. Renfrey, 5 Moore, P. there was a case, since contradicted, C. C. 251 ; Townend o. Drakeford, 1 holding the broker's book to be origi- C. & K. 22 ; Grant v. Fletcher, 5 B. & nal) ; Grant v. Fletcher, 5 B. & C. 437, C. 437. holding the book to be the original, (r) 17 A. & Ell., N. S., 114 (dis- except when the notes differed. tinguishing Hawes v. Forster and Gooni (p) Pitts V. Beckett, 13 M. & W. v. Aflalo as cases where the notes and 751. the book agreed). 616 CHAP. XV.] EXECUTION OP MEMORANDUM — BT AGENT, [§ 376. to be the efficacious fact, and thought that such memorandum was good by itself, and notwithstanding the sold note showed that seller's contract was different. An earlier case gives sup- port even to this extreme contention, for where the plaintiff's note was silent as to a certain stipulation contained in the de- fendant's bought note, the latter was held to bind.(s) Where the discrepancies between the notes are in fact on immaterial points, parol evidence is admissible to show thi8.(<) And proof of mercantile usage is admissible for this purpose.(M) In a Maryland case, where the memoranda delivered by the broker differed from the entry in his books they were separately treated, and the plaintiff allowed to recover on any one of them, upon evidence of usage to supply such terms to each as would make them substantially agree ; one memorandum men- tioned six months' credit ; another that the commercial paper should be satisfactory to the seller; but the evidence of usage was that both the terms were in the contract, unless there'was something said or written to the contrary. It was questioned whether there could be any recovery if the proof of usage failed, and that while the terms of the actual contract, though contained in all the memoranda taken together, yet were not contained in any one writing, and there being no reference by one memorandum to the other.(?;) The rule as to discrepancy applied where the memoranda are made by each party respec- tively.(Mj) Where the entry in the plaintiff's book and the note delivered by the broker to the defendant differed, it was held that the Statute was not complied with, and this though the point of difference was a warranty omitted from the mem- orandum made by the plaintiffs, and though the latter con- ceded that they had sold under a warranty as stated in the (s) Rowe V. Osborne, 1 Stark. 113 by usage of trade in London, the notes (per Lord Ellenborough) ; but see Pel- rather than the broker's book were the tier V. Collins, 3 Wend. 465. evidence, and the jury found for the (<) Kemp^on v. Boyle, 3 H. & C. 765 ; usage. 34 L. J. Exch., 191. (v) Williams v. Woods, 16 Md. 246. (u) Bold V. Rayner, 1 M. & W. 343 ; (w) Vandenbergh v. Spooner, L. R. see Williams v. Woods, 16 Md. 246, as 1 Exch. 319 ; but sembU that the note to proof of usage to supplement a executed by the defendant might have broker's memorandum ; in Hawes v. bound him if it had been properly Forster, 1 Moo. & Rob. 373, Lord Den- drawn. man left it to the jury to find whether, 617 § 376.] LAW OF THE STATUTK OF FRAUDS. [CHAP. XV. defendant's memorandum ;{x) nor, as has been said, can the broker's book be resorted to where the notes difl:er.(y) Tfiere is a dictum in Sievewright v. Archibald to the opposite effect ; in this case there was in fact no entry in the book.(^) Benja- min on Sales adopts the dicium of the majority in Sievewright V. Archibald as being the present English law. (a) While un- doubtedly the case of Sievewright v. Archibald contains a very clear statement of opinion, as does also Heyman v. ITeale, it must be remembered that the former case is dictum only, and that the latter authority has had many cases later in time which do not follow it ; the current of opposite opinion is cer- tainly strong, and it is difficult to say what is really the law. See the remarks on this subject in Blackburn on Sales, p. 107. It is suggested in Benjamin on Sales that if the bought and sold notes agree with each other, and differ from the broker's book, the jury can find in them a new contract doing away with that evidenced by the book. In Brown on the Statute of Frauds the law is regarded as quite unsettled. This hope- less inconsistency of authority, together with the absence of any broad determining principle which might apply, make considerations of expediency to be of more than usual import- ance ; and there can be little doubt as to the answer which a man of business would give to such a question as the follow- ing: Shall one be bound to a different contract than that which appears in the memorandum delivered to him by his broker, because the contract sought to be enforced has been duly entered in the broker's book, to which book there has been no invariable habit on the part of the traders to refer, (x) Peltier v. Collins, 3 Wend. 465 ; and distinguishing Hawes v. Forster as see Rowe v. Osborne, supra. a case where the jury found a custom {y) Townend o. Drakeford, supra; of trade by which the notes controlled Thornton ;;. Meux, Moo. & Mai. 44 the entry in the book, and denying the (Lord Tenterden saying that his former dictum of Lord Tenterden in Thornton doubts on the subject were removed) ; v. Meux). Grant v. Fletcher, 5 B. & C. 437 (wliere (a) Benjamin, § 299, relying on Hey- however the broker's book was not man i/. Neale, Sievewright u. Archi- signed by him) ; Gumming v. Roebuck, bald, and Thornton u. Charles ; see, Holt's N. P. C. 173 ; Hawes v. Forster, also, 10 Chic. Legal News, 152, con- 1 Mood. & Rob. 373. taining an article from the Lond. Law (z) 17 A. & Ell., N. S. 114 (citing Times endorsing Mr. Benjamin's views. Thornton v. Charles, Pitts v. Becket, 618 CHAP. XV.] EXECUTION OF MEMORANDUM — BY AGENT. [§ 377. their reliance under the sanction of many decided cases having generally been placed, instead upon the bought and sold notes of the broker ? Lord Blackburn denies (Blackburn on Sales, p. 107) that there' is any rule of commercial law which gives the broker's book the rank which has been claimed for it, and even in Sievewright v. Archibald it is admitted that addi- tional legislation is necessary before the broker can be com- pelled to make the entry in his book. Where the broker gave by mistake bought notes to each party, so that the buyer's name did not appear, but made the proper entry in his book, it was good, because the seller could not complain, as he could not assume that the broker in violation of the law was acting for himself, and could have asked who the buyer was ; that is to say, the entry in the book satisfies the court, and the note delivered could not have misled the defendant, the seller, who was put upon notice, and who could have asked for the entry on the broker's book, or have asked who the buj'er was.(i) In a case which went oft" on a point as to the acceptance of the goods sold, there was a dictum of Baron Parke, concurred in by Alderson, B., which said that, where the notes dift'ered, the broker's book might be resorted to, but Lord Abinger would only agree to this when the broker's book was not known to the parties.(c) § 377. In the absence of statutory requirement calling for a writing, authority can, as a general rule, be given to Qrai au- an agent by parol. ((/) It was said in one case that thority to authority to do a thing which may be doTie by parol geoeraiiy. may itself be by parol ; but perhaps the word " parol" by ueed (6) Gale v. Wells, 1 C. & P. 390 (dis- Paley's Agency, p. 315, u. (4th Am. tlngnishing Champion u. Plummer as ed.) ; Laugdell's Sel. Cas. on Contr. i., a case where one party had refused to pp. 1005-B (index). For forms of these sign). notes see Blackb. on Sales, p. *89. (c) Thornton v. Charles, 9 M. & W. (d) Gilmer u. Gorham, 4 McLean, 802. On the subject of differing sales- 417 ; McConnell u. Brillhart, 17 111. notes see Wharton on Agency, §§ 720- 360 ; Ledbetter v. Walker, 31 Ala. 175 ; 1 ; 9 Chic. Leg. News, p. 22 (an article Humphreys «, Wilson, 43 Miss. 336 ; taken from the Law Times of London), and see, generally, below Lake v. On the general subject of bought and Campbell, 18 111. 109 (citing cases) ; sold notes see the citations in the note. Hammond v. Hanson, 21 Mich. 374. Ewell's Evans's Agency, pp. *193-207; 619 § 377.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XV. generally jg used in its technical sense -ie) and as to written or and to con- ,, ,.,. ' , ,, vey land. Sealed authority being necessary to make a deed, see infra. Such parol agency must be clearly shown to emanate from the principal, otherwise this doctrine would be- come a most mischievous evasion of the Statute of Frauds.(/) Where a broker sent a buyer, the defendant, a bought note not signed, it was held that the circumstances of having kept the note, and not having denied the broker's authority, were a sufficient proof of the latter.(^) Under a statute requiring the proof of agency to be in writing, it was held that where the party sought to be charged directs another to sign for him, which is in the presence of such party, the rule does not apply, and the Statute of Frauds is satistied, but secus if the signature is done out of the presence of such party.(A) The rule requiring even an unsealed writing has been relaxed in the case of a deed executed on his behalf, in the presence and at the request of the grantor.(i) On this, in a case in South Carolina, the court was equally divided. (./) Where the engagement of the agent was one requiring a certain measure of statutory proof (as by one credible witness and corroborating circumstances), the authority to make such an engagement, though by the same code permitted to be verbal, must have the same proof as the engagement itself.(^) In Scotland a written contract as to land must on both sides be holographic and attested, whether the sale is between the principals or is by an agent. (/) Where a special statute required a commissioner selling land to make a formal official statement, an informal memorandum (e) Pickard v. Brewer, 2 Dev. & Bat. aathoritj, see Mutual Life, etc., Ins. Co. Eq. 435. V. Brown, 30 N. J. Eq. 202, witli report- (/) Mortlock i7. Buller, 10 Ves., Jr. er's note). 311. (0 Hanson a. Rowe, 26 N. H. 328; (jr) Thompson v. Gardiner, 1 C. P. Gardner v. Gardner, 5 Gushing, 483 ; D. 778; 18 Moak, 331 (note); see Videau u. Griffin, 21 Cal. 391. Albertson v. Ashton, 102 111. 56, for {j) Wallace v. McCuUough, 1 Rich, example of insufficient written au- Eq. 426. thority. (/c) Gardes v. Schoeder, 17 La. Ann. (A) Rockford, etc., R. R. v. Shuniok, 143. 65 111. 228 ; and a discussion of the (/) Littlejohn v. Hadwen, 20 Scotch point, how such signing in the presence L. Reporter, 6; see Gavine v. Lee, id. of the principal is equivalent to written 303 ; Bell o. Goodall, id. 600. 620 CHAP. XV.] EXECUTION OF MEMORANDUM — BY AGENT. [§ 377. by an agent is in8ufficient.(m) The authority to make a spe- cialty must be under 8eal.(n) While, as will be seen, authority to make a binding contract for the sale of land may, as a gen- eral rule, be given by parol, power to convey the land must be evidenced by a deed.(o) As to authority by a private writing, without the necessity for any authentic act, being sufficient in Louisiana, see the cases in the uoteJ^p) A warrant of attorney to convey land must, under a Kentucky statute saying that no estate in land, etc., shall pass unless the con- veyance be declared by writing sealed, be iinder seal. (5') So an authority to till the blanks of a mortgage.(r) So to exe- cute a lease.(s) So authority by one partner to another to make a deed ;{{) but see conira.{u) But where a mortgagor knew of the equitable assignment of a mortgage, he cannot pay the assignor to the detriment of the assignee ; and though (m) Krets v. Dodge, 9 Wis. 14. (n) It is scarcely worth while to col- lect cases on this point, but the follow- ing are a few authorities in point : Cummins v. Cassily, 5 B. Mon. 75 ; Clark V. Courser, 29 N. H. 176 ; Hum- phreys V. Wilson, 43 Miss. 336 ; Pickard V. Brewer, 2 Dev. & Bat. Eq. 435 ; Boyd V. Dodson, 5 Humphr. 37 ; Rhode V. Louthain, 8 Blackf. 413 ; Lake v. Campbell, 18 111. 109 ; Purcell ... Pot- ter, Anth. N. P. 311. (o) Wedderbnrne i;. Carr, cited in Burge on Conflict of Laws, vol. ii. 520 ; Steiglitz V. Egginton, 1 Holt, 141 ; Cal- laghan u. Pepper, 2 Irish Eq. 401 ; Herbert v. Hanrick, 16 Ala. 589 ; John- son u. Dodge, 17 111. 440 ; Peabody r. Hoard, 46 111. 245 ; Rhode v. Louthain, 8 Blackf. 413 ; Talbot ^. Bowen, 1 A. K. Marsh. 436; Curtis u. Blair, 26 Miss. 309 ; Johnson v. MeGrruder, 15 Mo. 365 ; Sohuetze ;;. Bailey, 40 Mo. 74 Tappan v. Redfield, 5 N. J. Eq. 339 Force v. Dutcher, 18 N. J. Eq. 405 Hayes t>. Skidmore, 27 Ohio St. 333 Mortimer v. Cornwell, 1 Hoff. Ch. 351 McWhorter v. McMahan, 10 Paige, 386 Champlin v. Parish, 11 Paige, 405 Coleman v. Garrigues, 18 Barb. 66 Pringle v. Spaulding, 53 Barb. 17 Van Ostrand o. Reed, 1 Wend. 431 Worrall v. Munn, 1 Seld. 239 ; Snively V. Luce, 1 Watts, 69 ; Lewis v. Brad- ford, 10 Watts, 67 ; Smith u. Dickin- son, 6 Humph. 261; Farris u. Martin, 10 Humph. 498 ; Yerby «. Grigsby, 9 Leigh, 387 ; MoNutt v. McMahan, 1 Head, 101 ; Dodge v. Hopkins, 14 Wis. 639. (jo) Smith i;. Kinney, 30 La. Ann. 334 ; see Kearney v. Dacote, 23 La. Ann. 191. (q) Plummer v. Russell, 2 Bibb, 174 ; IBrad. 286. ()■) Ayres ;;. Probasco, 14 Kan. 187 ; see Gratz v. Phillips, 1 Pen. & W. 333 ; Jackson d. Lloyd o. Titus, 2 Johns. 432. (s) Post V. Martens, 2 Roberts. 439 ; Folsom V. Perrin, 2 Cal. 603. (0 Turbeville v. Ryan, 1 Humphr. 119 ; Fisher ... Tuke, 1 McCord Ch. 171. (u) Wilson V. Hunter, 14 Wis. 686, infra. 621 § 378.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XV. there appears no written assignment, the court will assume the existence of a sealed power from the assignor to the as- signee authorizing the latter to act for the former.(z7) And, in Alabama, it has been held that authority to make a bond may be given by parol. (w) So, in the same state, an authority by one partner to another to make a deed of land ; and a parol ratification was also held good. (a;) Even in Pennsylvania, where an agency to contract for the sale or purchase of land must be proved by a writing, it was held that where the hold- ers of an equitable title had assigned it by a sealed writing, a direction by one of the equitable owners with the verbal assent of the other, given to the holder of the legal title, to make a deed thereof directly to the assignee of the equitable title, who had paid the price to the assignors, is good, though oral, the original sealed contract having complied with the Statute of Frauds.(y) The vendor's agent cannot bind the bargainee by inserting the latter's name in his deed. (2) Nor can an attorney bind his client by a confession of judgment in eject- ment, especially when the consideration of the defendant's promise was a parol promise of the plaintiff to convey to the defendant other land.(«) § 378. An unsealed writing has, however, been considered sufficient in some states. (6) So to execute the de- Uuseaied feasance of an absolute conveyance.(c) Authority authority ^ j \ j j when good to transfer personalty need not be by deed.((Z) A etc. ; agent deed executed by an agent can be sustained by parol deed'wiien proof of agency if an unsealed writing would have parol writ- douc as wcU as the deed.(e) This principle applied ing would ^ ■' *■ '^ ^ '^ have been to the caso of a partner who making a sale, within the line of the partnership business, added unneces- (!)) Cutler V. Haven, 8 Pick. 490. Videau ,j. Griffin, 21 Cal. 391 ; Brown (to) Gibbs V. Frost, 4 Ala. 728. , . Eaton, 21 Minn. 410. (x) Herbert v. Hanriok, 16 Ala. 589. (c) Gratzu. Phillips, 1 P. & W. 3S3; ()/) Bonner u. Campbell, 48 Pa. St. see Snively r. Luce, 1 Watts, 69. 289. (d) Van Ostrand v. Reed, 1 Wend. (2) Reeves v. Pye, 1 Cranoh, C. 0. 431. 220. (e) Lyon <;. Pollock, 99 U. S. 673; (a) Dodds V. Dodds, 9 Pa. St. 315. Ledbetter v. Walker, 31 Ala. 17(; ; (b) Sliamburger v. Kennedy, 1 Dev. White v. Fox, 29 Conn. 575 ; semble 2; Gardner t>. Gardner, 5 Cush. 483; Graham <,. Dixon, 4 III. 117; Minor c. 622 CHAP. XV.] EXECUTION OF MEMORANDUM — BY AGENT. [§ 378. sarily a seal to the writing.(/) Applied also to a deed in- valid as such treated as binding in tiie character of an admission ;(^) or as a memorandum under the Statute of Frauds.(A) In a case in Espinasse a sailor was allowed to bring assumpsit on an instrument sealed inadvertently.(2) It has, however, been said, that the principal is not ordinarily liable in covenant on a deed executed by an agent authorized by parol merely, because the subject matter being personalty the seal was unnecessary. (j) The doctrine now under conside- ration has been less broadly laid down as where it was said, the general rule of the common law is, that an agent cannot bind his principal by a sealed instrument, unless he has been ap- pointed by a writing under seal. But the rule seems in this country to have been so far relaxed as to allow a subsequent ratification by acts of a contract under seal, if the law does not require such instruments to be sealed.(^) Even this special point of ratification has been limited as, for example, where an agent contracted to sell, the only written proof of his authority being an insufficient power of attorney and autho- rizing him not to sell, but to convey, and the principal ver- ballj' directed the agent to convey, and also by word of mouth ratified the sale and accepted the price, it was held that an action under a warranty of this title lay against one who had received and assigned it with the warranty, on the part of the warrantee, evicted under the title of the principal. (?) Where an Willoughby, 3 Minn. 233; Groff i>. (/) Schmertz d. Shreeve, 62 Pa. St. Eamsay, 19 Minn. 50; Dickerman u. 460; so, also, Tapley v. ButterfieW, 1 Ashton, 2] Minn. 538 ; Thomas v. Jos- Mete. (Mass.) 517 ; so also in the case lin, 30 Minn. 388 ; Schuetze o. Bailey, of a deed of trust of a chattel ; Crozier 40 Mo. 74 ; Long v. Hartwell, 5 Vroom, v. Carr, 11 Tex. 381. 121; Skinner ti. Dayton, 19 Johns. 546; (jr) Morrell u. Cawley, 17 Abb. Pr. Worrall v. Munn, 1 Seld. 239 ; Law- 82. rence c. Taylor, 5 Hill (N. Y.), 112; (A) Morrow v. Higgins, 29 Ala. 450 Wood V. Auburn R. R., 8 N. Y. 167 ; (only in chancery however). Congregation Beth-Elohin v. Central («') Clement v. Gunhouse, 5 Esp. 83. Presbyterian Church, 10 Abb. Pr., N. (j) Hanford v. McNair, 9 Wend. 54. S.,487; Sherman f. New York Central (4) Adams v. Power, 52 Miss. 531 R. R., 22 Barb. 248; Baum v. Dubois, (citing several cases) ; Powell v. Gos- 43 Pa. St. 265 ; Swisshelm v. Swissvale son, 18 B. Mon. 193. Co., 11 Pittsb. L. J., 84; 95 Pa. St. (0 Allis '«. Goldsmith, 22 Minn. 367 ; Farris v. Martin, 10 Humph. 498 ; 127. Bledsoe v. Cains, 10 Tex. 460. 623 § 379.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XV. agent authorized to contract, but not to sell, conveys, there is a good equitable title after payment of the price and twenty years' possession of the land.(m) But it has been decided that to make a contract of sale of land under seal, there must be an authority evidenced by deed or simple written contract.(n) The general rule would appear to have been denied in a Penn- sylvania case, holding that an agent under a parol authority cannot bind the principal as surety by a specialty. (o) But these decisions suggest an obvious exception, namely, that an agent authorized by parol cannot bind by a specialty, even if an unsealed writing would have been enough, if there is any attempt made to take advantage of the points of difference between a simple contract and the specialty, as, for example, a reliance upon the seal to prove consideration, or to take the contract out of the statute of limitations. § 379. Parol authority is sufficient to enable an agent to make a contract for the sale of land binding under the Statute of Frauds. (p) Under the civil law, in Lower Canada, the (m) Jones v. Marks, 47 Cal. 248. (n) Van Hornfi v. Fricke, 6 S. & R. 90; Blood c. Hardy, 15 Me. 63; Wor- rall V. Munn, 1 Selden, 239. (o) Gordon !'.Bulkeley,14S.&R. 332; see, also, Stetson v. Patten, 2 Me. 360. (p) Coles u. Trecothick, 9 Ves., Jr. 242 ; Deverell v. (Lord) Bolton, 18 Ves. Jr. 509 ; Waller v. Hendon, 5 Vin. Abr. 524, pi. 45 ; Clinan v. Cooke, 1 Soh. & Lef. 31 ; Wedderbarne v. Carr, cited in Burge on Conllict of Laws, vol. ii. 520 ; Norris p. Cooke, 7 Ir. C. L. Rep. 41 ; Ledbetter v. Walker, 31 Ala. 175 (bat changed now by statute, vide infra) ; Rulenberg „. Main, 47 Cal. 219 ; Ed- wards V. Johnson, 3 Houst. 438 (Del.) ; Doty V. Wilder, 15 111. 417 ; Johnson v. Dodge, 17 111. 440 ; Collins v. Smith, 18 111. 162 ; Peabody v. Hoard, 46 111. 245 ; Taylor v. Merrill, 55 111. 58 ; Cossitt v. Hobbs, 56 111. 233 ; Proudfoot c. Wight- man, 78 111. 553 ; Renwick v. Ban- croft, 9 Nor. W. Rep. 368 (S. C. la.) ; 624 Rottman v. Wasson, 5 Kans. 556 ; Butler V. Kaulback, 8 Kans. 675 ; Ayres v, Probasco, 14 Kans. 189; Talbot t,. Bowen, 1 A. K. Marsh. 436; Irvin V. Thompson, 4 Bibb, 295 ; Jack- son V. Murray, 5 T. B. Mon. 53 ; Baker V. Wainwright, 36 Md. 347 ; Groff v. Ramsey, 19 Minn. 50-53 ; Dickerman V. Ashton, 21 Minn. 538 ; Brown v. Eaton, 21 Minn. 410 ; AUis .;. Gold- smith, 22 Minn. 127 ; Curtis c. Blair, 26 Miss. 309 ; Johnson v. McGruder, 15 Mo. 365 ; Riley v. Minor, 29 Mo. 439 ; Doughaday ... Crowell, 3 Stockt. 202; Long V. Hartwell, 5 Vroom, 121 ; Rob inson v. Hathaway, 4 West. L. Monthly, 107 (Union Co., Ohio) ; Turnbull v. Trout, 1 Hall, 340 (citing numerous cases) ; Mortimer a. Cornwell, 1 Hoff. Ch. 351 ; McWhorter v. McMahan, 10 Paige, 386 ; Champliu u. Parish, 11 Paige, 405 ; Pringle a. Spaulding, 53 Barb. 17 ; Coleman v. Garrigues, 18 Barb. 66 ; Squier v. Norris, 1 Lansing, CHAP. XV.] EXECUTION OF MEMORANDUM — BY AGENT. [§ 379. agent's authority may be proved by parol i^q) and in Louisiana to act at least as intermediary. (?') A verbal au- thority is sufficient to authorize the raakina; of the Oraiau- , , . , . * thority to entry, and the preparing the notice necessary to contract as establish a mining claim ;(s) also to execute a written Land! sale of a mining claim. (<) So authority to make ten- der of money to redeem land sold for taxes, the case being no exception to the ordinary common law rule.(M) So, even in Pennsylvania, vide § 380, authority to make an entry upon land to toll the statute of limitations. (v) There has been a distinction taken between an authority to make a contract and that to formulate such contract when made. In a Ifew Hampshire case, semble, a distinction was taken between a parol authority to an agent to sign a contract already written, and one to make a contract and reduce it to writing; the for- mer being good and the latter not, unless the authority should be a confirmation of the writing.(w) The words "to sell" only authorize an agent to find a purchaser, and not to sign the memorandum ; the latter authority may be given by parol, but should be by express word8.(a;) On the other hand, it has been held that an agent authorized to sell is authorized to make the memorandum. (y) Verbal authority to the vice- president of a corporation to sell lands will be good where there is acquieBcence.(2) Parol evidence is admissible on 284 ; Newton v. Bronson, 3 Kern. 593 ; to effect the extinguishment of a mort- Worrall v. Munn, 1 Seld. 239 ; Moody v. gage, Reed v. Marble, 10 Paige, 410. Smith, 70 N. Y. 599; Dykers v. Town- (() Patterson u. Keystone Co., 30 send, 24 N. Y. 59 ; Blaoknall v. Parish, Cal. 363. 6 Jones's Eq. 73 ; Fisher v. Bowser, 41 (u) Gracie v. V7hite, 18 Ark. IS. Tex. 223; Huffman v. Cartwright, 44 (y) Miles «. Cook, 1 Grant (Pa.), 59. Tex. 299 ; Yerby v. Grigsby, 9 Leigh, (w) Hodgkins v. Bond, 1 N. H. ^4. 387; Dodge v. Hopkins, 14 Wis. 639; (r) Duffy u. Hobson, 40 Cal. 244; Smith V, Armstrong, 24 Wis. 449. Coleman v. Garrigues, 18 Barb. 68 ; see (q) Lusk V. Hope, 17 Low. Can. Jur. Rutenberg v. Main, 47 Cal. 219. 20 ; Lynn v. Cochrane, 23 Low. Can. (y) Yerby v, Grigsby, 9 Leigh, 387. Jur. 238(Cl. B.). This result is affected, (z) Chicago, etc., R. R. Co. y. James, however, by the existence there of a 22 Wis. 199 ; see Dominion Bank t/. Statute of Frauds. Knowlton, 25 Grant, 131, citing Lon- (r) Smith v. Taylor, 10 Robins. 135. don Dock Co. v. Sinnott. (s) Goret). MoBrayer, 18 Cal. 589 ; so VOL. I.— 40 625 § 380.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XV. behalf of the principal to prove that land bought by the de- fendant was bought as agent ; and there being a conveyance no question of trust arose, and the 7th section of 29 Car. II., c. 3, did not apply. (a) As to purchase by an agent creating a trust, see chapter on Trusts ; and see McDonald v. Fithian, 6 111. 295. Verbal authority to the agent to contract, and a verbal contract by him, are taken out of the Statute of Frauds by part performance. (6) The parol evidence of authority to contract for the sale of land must be clear and exp]icit.(c) The agent is a competent witness to prove his agency as between his prin- cipal and a third person. (c?) In a Pennsylvania case it was said that " it is one of the most common of all events to call the agent to give evidence of his authority. "(e) Where the contract to be executed was not within the Statute of Frauds the agent can himself prove his authority.(/) § 380. Authority to contract for sale, etc., of land must now, by statute in Alabama, be proved by written evi- d?Died^^ dence.(^) So in Illinois,(A) Michigan,(i) ]Srebraska,(j) New Hampshire.(/;) Parol proof of authority to contract for the sale or purchase of land has been rejected, even in the absence of any statute expressly requiring written evidence of it.(^) The assent of the owner of land to its (a) Cave v. McKenzie, 46 L. J. Ch. security for the costs of an appeal) ; f)65 ; 37 L. T., N. S. 218. Jenkins v. Harrison, 66 Ala. 353. (6) Rutherford v. Sargent, 71 111. (A) McDonald v. Fithian, 6 111. 295 ; 342; Bayer u. Cockerill, 3 Kans. 293; Rockford R. R. u. Shunick, 65 111. 223 ; see infra, § 382. Bissell v. Terry, 69 lU. 190 ; Albertsou ((■) Proudfoot V. Wightman, 78 111. v. Ashton, 102 111. 66. 553. (0 Holland v. Hoyt, 14 Mich. 238 ; (f/) Collins r. Smith, 18 111. 162. Hanchett u. McQueen, 32 Mich. 24; (e) Miles v. Cook, 1 Grant (Pa.), 59 Colgrove v. Solomon, 34 Mich. 499. (citing cases) ; see, however, Nichol- (J) Morgan i\ Berger, 3 Neb. 213 son V. Mifflin, 2 Yeates, 38, where the (denying McWhorter v. McMahan). rule was said to be one of mercantile (t) Grafton o. Cummings, 99 TJ. S. law, and not to extend to land. 106. (/) McGunnagle v. Thornton, 10 S. (/) Marshall «. Haney, 9 Gill, 259 & R. 252. (query) ; Mumford v. McKinnie, 21 {g) Hutton V. Williams, 35 Ala. 515 La. Ann. 547 ; Seaton v. Sharkey, 3 (distinguishing Ledbetter v. Walker as La. Ann. 332 ; Breed v. Guay, 10 Robin- being before the Statute) ; Bullard u. son, 36 ; see, however, svpra. Johns, 50 Ala. 383 (applied to going 626 CHAP. XV.] EXECUTION OF MBMOKANDUM — BY AGENT. [§ 380. being publicly sold must be evidenced by a writing, or be ad- mitted.(m) In an early decision in the Irish King's Bench there were dicta that the authority of an agent to make a binding contract under the Statute of Frauds should be in ■writing.(n) In Pennsylvania, where the 3d section of 29 Car. II., c. 3, which requires the agency to be in writing, is in force, and where that clause of the fourth section relating to land is not, it has been held that in order to establish even an equitable title in the land the agency must be proved by a writing.(o) Where, however, damages only under the pecu- liar Pennsylvania rule,and not specific performance, are sought, the agency can be proved by parol. (p) It was, however, said in a Pennsylvania case that " there is no statute that directly or indirectly requires that an agent shall be constituted-- by writing, except when he is to convey an estate for a longer period than three years. "(9') One partner can, semble, authorize verbally his fellow-partner in a matter relating to the sale of land.(r) And where the authority is reduced to writing by the principal it is enough, though not signed by the ]atter.(s) Parol authority to make agreement of lease is sufficient ■,{t) the provision of the 1st and 3d sections of 29 Car. II., c. 8, applying only to actual leases ;(u) this provision being omitted from the Statute of Frauds of Tennessee, authority to execute a lease can in that state be given by parol ;(w) so in Illinois.(w7) So in case of leases for less than three years in Pennsylvania, being excepted from the Statute.(a;) (m) Pewjj. Livaudais, 3La. An.460 ; Twitohell v. Pliiladelphia, supra; see see Pepper v. The Commonwealth, 6 ' ' Land. ' ' Mon. 30. (y) Miles v. Cook, 1 Grant (Pa.), 59. (n) Jack V. Alexander, Howe, 501. (r) Bonner v. Campbell, 48 Pa. St. (o) Nicholson v. Mifflin, 2 Yeates, 38 289 ; McUill v. Dowdle, 33 Ark. 314. (citing Girard v. Krehs and Meredith v. (s) Nicholson v. Mifflin, 2 Yeates, 38. Macoss) ; Parrish v. Koons, 1 Pars. Eq. (t) Rice ii. O'Connor, 12 Jr. Ch. 433 ; 79 (citing cases) ; Twitchell v. Phila- Callaghan v. Pepper, 2 Ir. Eq. 401. delphia, 33 Pa. St. 220 (citing cases) ; (u) Callaghan v. Pepper, supra. Van Home v. Fricke, 6 S. & R. 90. (w) Johnson v. Somers, 1 Humph. (p) Grayson v. Bannon, 8 JVatts, 269. 528 (citing cases) ; Ewing v. Tees, 1 (i«) Lake v. Campbell, 18 111. 109. Binn. 450 (distinguished on this ground (x) McGuunagle ) Hunter v. Bales, 24 Ind. 299 ; sub mm. B. u. F., 8 E. & B. 675 Roby V. Cossitt, 78 111. 642. (Scaoc. Cam.) ; 6 E. & B., 873 ; 3 Jur., (x) Soames v. Spencer, 1 D. & R. 32. N. S., 264; 4 Jur., N. S., 506 (Q. B.). (y) Snyder v. Neefus, 53 Barb. 66. This case raises some difficult points (z) McGill V. Dowdle, 33 Ark. 314. as to what constituted a ratification (a) Chaney v. Flynn, 2 Kent, Law under the circumstances. The plain- Reporter (Ct. of App. Ky.), 417. tiff, Fitzmaurice, owned a lease of a (6) Fitzmaurice v. Bayley, 9 H. of L. house, Hamilton Lodge, expiring in Cases, 78 ; 3 L. T., N. S., 69 ; 6 Jur. five years, and of certain stables (in 631 § 382.] LAW OF THE STATUTE OP FRAUDS. [CHAP. XV. tract by three, viz., two and the wife of one of them, and the evidence showed a written agreement by an agent who had Gore Street) from a different landlord, expiring in seven years from the date of the transaction in dispute. One Eearden, agent for the defendant, Bay- ley, negotiated with the plaintiff for an assignment of the lease of the house, and a memorandum in the shape of a letter from the plaintiff, not dated, but made August 30th, gave certain par- ticulars as to the house, but did not mention the stables. Rearden made a part payment, and got a written receipt therefor. Afterwards, August 31st, the plaintiff by a letter agreed to let the defendant have the stables for the same rent and subject to the same "condi- tions" (or " condition," thewritingnot being clear) " as I hold them myself." On September 14th the plaintiff, hav- ing been told by Rearden that the de- fendant had never received the letter of August 31st, inclosed a copy of it to him, and, among other things, said, " as it was proposed taking the stables for five years only, I cannot give you an assignment of my lease for seven ;" the defendant, in reply, September 15th, wrote, saying that he had never thought of taking the stables, that the only letter he had seen seemed to be that of August 30th, but added " what- ever it is, it will speak for itself, and I am fully prepared to carry it out." On September 18th the defendant wrote the plaintiff, reiterating his opinion, that the only letter shown him was that of August 30th, but added, "the agreement however, whatever it is or whatever its date, Mr. Rearden has, and, as I observed in my former letter, whatever it is, I shall carry it out ;" added that if taking the stables was part of the agreement to take the house he would stand by this ; but if 632 not, he wished to examine the stables before agreeing to take them. In the Queen's Bench the court hav- ing ruled that Rearden had had no prior authority to contract for the stables, but that, if Rearden's contract as actually made included the stables, there was sufficient evidence of ratifica- tion to bind defendant, and the jury having found that the contract made by Rearden included the stables. The court, Campbell, Wightman, and Erie, refused a nonsuit; Crompton, J., dis- senting. The ground was that there was a general ratification by defend- ant with knowledge of the facts. In the Exchequer Chamber the Queen's Bench was reversed, and a nonsuit ordered, on the ground that, apart from the question of ratification, there was no memorandum describing the duration of the lease of the stables ; that the term could not have been plain- tiff's entire interest for seven years, for his letter disavows such an idea ; that if the agreement was for a lesser period, the point of beginning of the term was not shown, and that the memorandum did not indicate in any way a lease from year to year, and that therefore there was no good in allowing an amendment ; that this point of the failure of the memorandum to indicate the duration of the term could be taken for the first time in error, for it was only a new detail of what was substan- tially the defence from the outset, i. e., the want of a sufiicient memorandum under the Statute of Frauds. The House of Lords, the judges being sum- moned, affirmed the Exchequer Cham- ber, Wightman, J., and Campbell, L. C, diss. That the memoranda, especially CHAP. XV.J EXECUTION OP MEMORANDUM — BY AGENT. [§ 382. authority from one and from the wife, but not from the lat- ter's husband, who however received part of the consideration due under the contract, there was held to be a fatal variance.(c) Where a vendee of land agreed to pay for it by a note endorsed by three people, two of whom signed, and the vendee without authority promised that the third would sign, the latter sub- sequently did so, and, having to pay the note, sued the vendor, who was the payee of the note, to recover the amount on the ground that the vendee's promise was invalid, and that the plaintiff's ratification of it was without consideration, it was held that the endorsement of the note was a sufficient ratifica- tion, and that the Statute of Frauds did not apply. (c?) /it is a question of fact for the jury, whether the vendor has accepted the plaintiff's letter of August 31st, were invalid under the Statute of Frauds, as not showing the duration of the lease of the stables, per Hill, J., Byles, J., Crompton, J. ; Pollock, C. B. ; Lord Cranworth, Lord Chelmsford, and Bramwell, B. That the length of the term might be all the rest of plain- tiff's term, i. e., seven years, or five years, or a lease from year to year. Bramwell, B., and Lord Chelmsford. That there was no concluded contract even by parol made by the plaintiff and Rearden, per Bramwell, B., Pol- lock, C. B., andLord Chelmsford. That a written ratification of a parol contract must show all the terms, per Byles, J. That the defendant's letters of Sep- tember 15th and 18th, referred to the plaintiff's letter August 30th, and not to that of August 31st. Crompton, J., Pollock, C. B., Lord Cranworth, Lord Chelmsford; semWe, also, Byles, J. That the ratification meant that the defend- ant was willing to be bound by what- ever was in the memoranda which he had seen, per Bramwell, B., Pollock, C. B., and Crompton, J. That the defend- ant's ratification was meant only as far as Rearden had bound himself, per Lord Chelmsford. Query : One memorandum is for the purpose of the Statute of Frauds, suffi- ciently referred to in another memoran- dum ; if the latter adopts the former only upou a condition which is prov- able solely by parol evidence, the con- dition in this case being that, if Rear- den really agreed by a certain paper to take the property, the defendant would adopt his contract, per Cromp- ton, J. That the part payment was under the agreement of August 30th, not under that of August 31st. Wightman, J., dissenting : thought that the term for the stables agreed on was for five years, beginning at the same time with the lease for the house, and that the memoranda and the cir- cumstances together showed this suffi- ciently to satisfy the Statute of Frauds. Lord Campbell, L. C, adopted these reasons, and thought that under the circumstances, and after giving his general ratification, the defendant could not defend on the ground that the evidence of the duration of the term was not such as to satisfy the Statute. (c) Saunderson v. Griffiths, 6 B. & C. 915. (rf) Berryhill v. Jones, 35 Iowa, 339. 633 § 383.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XV. a memoranclum made by one professing to be his agent, (e) and ratification generally is a question of fact for the jury. (/)y § 388. The ratification of an agent's deed must be by deed.(^) Ratiflca- "'-" another case, in Tennessee, it was said that the tion by j-uje laid down in Turbeville v. Ryan, 1 Humph. 113, deed o-en- ./ ' i. ' eraii/; and followed by this court in Smith v. Dickinson, 6 transac- ^^' Humph. 261, is that to authorize the execution of a tions. deed in the name of another the authority must be by deed, and no previous parol assent or subsequent adoption will bind the party, unless it be acknowledged and redelivered.(A) Where a demise under seal was void because made by an agent not authorized by a specialty, an oral demise followed by occupancy will be good because of the part performance.(2) The general rule is applied to sealed contracts to sell land, and vide supra.{j) Where a deed is accepted, though not signed, by the principal, he is bound in assumpsit, but not in cove- nant.(/i;) Verbal ratification is a corroboratory circumstance when an agent has made a deed, when a simple contract would have been sufficient, vide supra.{l) In a South Carolina case the court was equally divided on the main contention of this section. (m) In a Scotch case where the memorandum Avas written by another, and the party to be charged wrote, " I hereby adopt the above holograph," it was held that the law was complied with.(n) But whei'e a written agreement to give a lease signed by procuration and not properly witnessed, and there is no letter of authority to the agent signing, is insuffi- ■^ {e.) Hawkins v. Chace, 19 Pick, 504; 304 ; and see Sohuetze v. Bailey, below, agency generally is for the jury ; Nor- and ride supra. ris V. Cooke, 7 Ir. C. L. 41. (Jc) Swisshelm r. Swissvalc Laundry (/) Lawrence o. Gallagher, 73 N. Co., 11 Pittsb. Leg. Journ., N. S. 184; Y. 613 ; 42 N. Y. Superior, 318. 95 Pa. St. 367. ((/) Smith V. Dickinson, 6 Humphr. (J,) Schuetze v. Bailey, 4 Mo. 74. 261. (m) Wallace v. McCullough, 1 Rich. (A) McNutt V. McMahan, 1 Head, Eq. 438. 101 ; citing, also, Mosby v. State of Ar- (n) Gavine v. Lee, 20 Sc. L. Report, kansas, 4 Sneed, 324. 302, citing M'Intyre v. M'Farlane, P. (0 Purcell V. Potter, Anthon. N. P. C, March 1, 1821; Christie's Trustee 311. r. Muirhead, 8 Macph. 461 ; Maitland's (_;■) Paine o. Tucker, 21 Me. 146 Trustees v. MaitKind, 9 Maoph. 79, and (criticizing Blood v. Goodrich) ; but other cases, see, contra, Grady v. Robinson, 28 Ala. 634 CHAP. XV.J EXECUTION OF MEMORANDUM — BY AGENT. [§ 383. cient, though the principal signed as a witness to his agent's 8ignature.(o) In Massachusetts the deed of a partner is an es- tablished exception to this view ; said the court in a recent case, speaking of Merrifield v. Parritt, 11 Gushing, 590 : In that case the agreement was not under seal ; and the defendant contends that a sealed instrument, executed without previous authority, can be ratified only by an instrument under seal. However this may be elsewhere, by the law of Massachusetts such instrument may be ratified by parol. The cases in which this doctrine has been adjudged were those in which owe part- ner, without the previous authority of his co-partners, executed a deed in the name of the firm. But we do not perceive any reason for confining the doctrine to that class of cases.(^) This exception is extended to a deed by an individual(5') As to memorandum by sheriff, or auctioneer, etc., acting as agent, see " Public Sales" ; as to fraud of agent in buying tor him- self, see " Trusts." (o) Bell V. Groodall, 20 So. Law Re- also, in Alabama, Herbert v. Hanrick, port. 600. • 16 Ala. 589 ; Gunter o. "Williams, 40 (p) Molntyre w. Park, 11 Gray, 106 Ala. 572; see, also, Haynes v. Sea- (citing several cases); Holbrook u. chrest, 13 la. 458, citing Story on Part., Chamberlin, 116 Mass. 161 ; Swan u. § 122, and n. 2. Stedman, 4 Mete. (Mass.) 551 ; so, (j) Holbrook v. Chamberlin, supra. 635 § 384.J LAW OF THE STATUTE OF FRAUDS. [CHAP. XVI, CHAPTER XVI. THE EXECUTION OF THE MEMORANDUM-SIGNATURE AND OTHER DETAILS OF EXECUTION. ! 384. Signature generally; place of signature. I 385. Signature in any part of the instrument ; subscription. I 386. Lead-pencil ; initials ; mark ; printing. 387. Acceptance of the memorandum : deed. § 388. Delivery of deed in escrow. § 389. Undelivered deed, how far a valid memorandum. § 390. Acceptance of the memorandum generally ; to whom the memoran- dum is addressed. § 391. Further considerations as to ac- ceptance of memorandum. § 384. The memorandum to satisfy the Statute of Frauds must, as has been repeatedly said, be siojned ; a Signature . . . , . i / % i T j • generally; Writing Without more IS not enough ;(a) alterations signature. ^^ ^^^ draft of a Contract of sale of land, though in the defendant's handwriting, are not equivalent to a signature.(6) A letter beginning " My dear Robert," and signed " believe me the most affectionate of mothers," is not signed so as to comply with the Statute of Frauds.(c) The rule as to the signature required is the same both under the 4th and 17th sections of the Statute.(rf) Sealing is not a suf- ficient signing of a will.(e) The fact of signature may be proved by parol.(/) Whether the name of the party sought to be charged, written by himself or by his agent, is to be (a) Bawdes v. Amhurst, Free. Ch. 402 ; a memorandum to comply with 6 Geo. IV., c. 16, § 131, must be signed ; Hubert v. Moreau, 12 Moo. 216. (6) Hawkins o. Holmes, 1 P. Wms. 771 ; see for writing sufficient without signature, Lemayne v. Stanley, 3 Lev. 1 ; Fall River Whaling Co. v, Borden, 10 Gushing, 471 ; and see supra. (c) Selby v. Selby, 3 Mer. 4, Sir Wm. 636 Grant saying that otherwise "I" and "me" would be a sufficient signature if you could identify the writer. (d) Higdon v. Thomas, 1 H. & G. 145 ; McComb u. VTright, 4 Johns. Ch. 661. (c) Smith V. Evans, 1 Wils. 313. (f) Pignatel u. Drouet, 6 Martin, 440. CHAP. XVI.J THE EXECUTION OF THE MEMORANDUM. [§ 384. treated as a signature is often a point of much doubt. The principles by which a signature is to be tested were discussed at length in the House of Lords on the appeal in the case of Caton V. Caton, and it was held that a memorandum was not sufficiently signed which was only a draft of a marriage set- tlement, written by the intended husband, giving the names, and in other places the initials, of himself and the lady who afterwards became his wife, and beginning with the words " in the event of a marriage between the undermentioned parties." It was said that the signature must be intended to govern the whole agreement which it should authenticate, and that in the particular case the names of the parties could not be connected with. the phrase "in the event of a mar- riage," etc., so as to make the names signatures.(y) The sig- nature, if inserted in such a manner as to authenticate the writing, may be in any part of the latter.(A) Where the de- fendant Moore, a lessor, wrote to his solicitor instructions as to the lease, and said " the lease renewed, Mrs. Stokes to pay, etc., and also to pay Moore £24 a year," etc., it was held that the word " Moore" here was not a sufficient signature, and that the agreement was not final. (i) Where a person signs as a witness, the signature must show that he knew the contents of the writing, and this fact can be proved by parol. (_;') Lord Hardwicke had said generally that the signa- ture as a witness was 8ufficient.(A;) In a late case where the chairman of a corporation signed the draft of a contract ac- cepted at a meeting, it was held that the fact that the signature was made with a view of complying with the company's act, (g) L. R. 2 H. L. 135 ; 36 L. J. generally to authenticate the agree- Ch., 886 : 16 W. R., 1 (in Dom. Proc), ment). affirming Cranworth, L. C, 35 L. J. Ch. (j) Goshellt). Archer, 2A. &E11. 503 ; 292 ; L. R. 1 Ch. App. 146, reversing 4 N. & M. 494, distinguishing Coles v. Stuart, v. C, L. R. 1 Ch. App. 140; Trecothick on the ground just stated. 34 L. J. Ch. 564. (7c) Welford v. Bezely, 3 Atk. 503 ; (h) Ogilvie v. Foljamhe, 3 Meriv. 60. 1 Wils. 118, distinguishing Bawdes o. (i) Stokes V. Moore, 1 Cox, Ch. 221 Amhurst as an incompleted contract ; (.said in Higdonu. Thomas, 1 H. & Gill, see Lang v. Nevill, 6 Jur. 217 (where to have heen doubted by Lord Eldon, a signature, semble, as witness, was held and the signature said to have been Insufficient). made for a particular purpose, and not 637 § 384.] LAW OF THE STATUTE OP FRAUDS, [CHAP. XVI. and not especially to identify the contract, did not make the signing less bindiug.(?) The vendor's broker wrote a memo- randum and sent it to the vendee; the latter made an inter- lineation in red ink and signed it ; the vendor's broker refused to agree and struck out the interlineation ; this was assented to by the vendors, who made further alterations ; and parol evi- dence to show that the vendee assented to it in its final state was admitted ; and it was said that there was no agreement till the vendee finally assented; that his signature took effect at that date, and that the evidence was not inadmissible for impeaching a writing, because there was no writing. (m) The place in the writing in which the name is found and its immediate con- text are of importance in determining whether the name should be treated as signature. A signature at the top is suf- ficient. (n) A memorandum beginning, "I., J. S., promise," etc., is well signed. (o) The defendant, Cripps, wrote a letter which he did not sign, but, as the letter was headed with " From Richard Cripps," in print, with his address, the signa- ture was held sufficient.(p) A letter beginning " Mr. Stan- ley" (the defendant) " begs to inform Mr. Lobb" (the plaintift"), etc., complies with 6 Geo. IV., c. 16, § 131 (requiring written evidence of promise to pay debts discharged by bankruptcy.(5) The defendant's testator authorized his son to make a memo- randum, and the latter wrote, " Mr. J. P. Thomson" (the de- fendant's testator) " proposes to pay down the sum of, etc.," and this was regarded as sufficiently executed, and with a letter from J. P. Thomson recognizing it, was certainly enough. (r) (0 Jones u. Victoria Graving Dock S. C. sub nom. Tourret v. Cripps, 48 L. Co., 2 Q. B. D. 321; 46 L. J. Q. B., J., N. S. Cli. 567, citing Scliueider c. 219 ; 36 L. T., N. S. 144. Norris. (m) Stewart u. Eddowes, L. R. 9 C. (y) Lobb v. Stanley, 5 Q. B. 581 ; see P. 313; 43 L. J. C. P., 204 (a fuller Morrison v. Turnour, 18 Ves. 175, and report). Propert i,. Parker, 1 R. & Myl. 625 ; (n) Pennimanw. Hartshorn, 13 Mass. treating letters in tlie third person as 87 ; Sayers v. Patterson, 2 W. N. Cas. sufficient under the Statute of Frauds. 334; Johnson v. Dodgson, 2 M. & W. (r) Hamersley v. De Biel, 12 C. & 653 ; Bleakley v. Smith, 11 Sim. 150; F. 73 (Dom. Proc), affirming S. C. be- Knight V. Crawford, 1 Esp. 190. low before the L. C, 12 CI. & F. 63, (o) Taylor v. Dobbins, 1 Str. 399 ; note, and before the M. R., 3 Bear. Sayers v. Patterson, 2 Yf. N. Cas. 334. 469. (p) Torret v. Cripps, 27 W. R. 706; 638 CHAP. XVI.] THE EXECUTION OF THE MEMORANDUM. [§ 384. In an Indiana case a memorandum drawn by an agent had the defendant's name at the beginning, and was subscribed by the defendant's agent and by the plaintiff; the agent after- wards signed the defendant's name, but this not having been done in the presence of the defendant struck it out, and it was held that there is no inference when the signature is at the beginning of an instrument that it was put there at the final execution of the paper, and that the circumstances just stated showed that the name at the beginning had not been intended for a sigiiature.(s) Where a third person made out for the parties an inventory of sale beginning, " Invoice of articles purchased by Pipkin, etc., of, etc., James" (these being the names of the parties), and the inventory was not otherwise signed, it was held insufficient as not having been intended as a memorandum.(<) Durreli, the plaintiff, the seller, met the buyer at the office of iN"., the plaintiff's factor, and, upon a bargain being agreed upon, N". signed in the presence of the parties the following memoranda : — " Messrs. Evans " Bought of D. T., etc., Noakes (and giving goods and price). "Oct. 20, 1860." And on a stub of the book on which the above was written, IT. wrote the following; — " Sold to Messrs. Evans, " T. Durreli (giving goods and price). " Oct. 20, 1860." The first of these was delivered to Evans, the defendant, the buyer, and the other retained by N. The memoranda were held to be properly signed, the place of the signature being immaterial. (m) The entry of sale made by a sheriff, contain- ing the name of the purchaser is as effectual a signing as if he had written the purchaser's name to a formal contract to huy.(v) But to make the name at the beginning of the instru- (s) MoMillen v. Terrell, 23 Ind. 165. chequer, 4 L. T., N. S., 255 ; 30 L. J. (0 Pipkin V. James, 1 Humphr. 326. Exch., 254. (m) Durreli v. Evans, 1 H. &C. 185 ; {v) Secrist v. Twitty, 1 McMul. 255. 7 L. T., N. S., 97 ; 31 L. J. Exch. 337 A memorandum of agreement in the (Scaoc. Cam.), reversing S. C. in Ex- form of articles, began "Articles of 639 § 384.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XA'I. ment a good signature, the writing must have been executed by the party or his a.gent.{io) Where a promissory note is averred to be in the defendant's handwriting, it need not be said to have been signed. (a;) And where the bill stated that the agreement in which the defendant's name occurred was in the handwriting of the latter, a general demurrer was over- ruled, because the statements in the bill were quite consistent with there having been a sufficient signature under the Statute of Frauds.(y) A memorandum however not signed, and in which the defendant's name is not mentioned, does not comply with 6 Geo. IV., c. 16, § 131 {svpra, n. (q)), though written by the defendant.(2) The name at the top has been regarded as sufficient even when printed and not written, as where the defendants delivered to the plaintiff a bill headed, " Bought of Jackson & Hawkins," etc., and wrote inquiring when they were to deliver the goods and asking for time. (a) Where the defendant, the vendor, took a printed memorandum headed with his own name and with blanks for the purchaser's name, etc., and wrote the latter iu the blanks in his own bandwrit- agreement, etc., between Hubert, etc. (the plaintiff), and E. Treherne, etc., directors of the Equitable Gaslight Com- pany (the defendants), etc. ; whereas, the said T. Hubert has agreed with the said E. Treherne, etc., as witness our hands," but was not signed ; the mem- orandum was prepared by the defend- ants' secretary under resolution of its board of directors ; this was held to be insufficiently signed under the Statute of Frauds ; Hubert v. Turner, 4 Scott, N. R. 605 ; S. C, sub nom. Treherne, 3 M. & Gr. 753, distinguishing Saunderson V. Jackson as a case where the memo- randum was made by the defendant himself (but see 4 Scott, N. R. 506, note) ; the true points on which the principal case rests are the right of an agent to bind by merely reciting the defendant's name and the intention of making a further signature. 640 (w) Barry v. Coombe, 1 Pet. (U. S. S. C), 650; Cabot v. Haskins, 3 Pick. 95 ; People v. Murray, 6 Hill, 470 (a certificate of a justice held good with signature at the beginning ; the cases under the Statutes of Frauds and of Wills being cited). (r) Taylor v. Dobbins, 1 Stra. 399. (t/) Field u. Hutchinson, 1 Bear. 599. (z) Hubert v. Moreau, 12 Moore, 218 2 C. & P., 528. (a) Saunderson v. Jackson, 3 Esp 181 ; 2 B. & Pull 239. (the fuller re- port) ; Lord Eldon went so far as to say that a memorandum beginning " I, A B., agree, etc." might be sufficient though there was an intention to sign below, which was never carried out see however the next case ; Hawkins r. Chace, 19 Pick. 502 ; Lerned v. Wan- nemacher, 9 Allen, 416. CHAP. XVI.] THE EXECUTION OP THE MEMORANDUM. [§ 385. ing, the printed signature was considered as sufficiently brought home to the defendant.(6) § 385. The signature may be in the caption, body, subscrip- tion, or, indeed, in any part of the instrument.(c) A purchaser's name in the body of the memoran- dum, put there by himself or his agent is a sufficient signature.(rf) A bond signed by the parties in dif- ferent places, one of them being wrong, was held to be good.(e) In an Illinois case, scantily reported and not re- lating to the Statute of Frauds, it was held that the defendant's name in the body of the instrument was not a sufficient signa- ture to a bond.(/) Under the ITew York statute a subscription is necessary .(^) The word "subscribe" in the Colorado Statute Signature in any part of the ia- strument ; subscrip- tion. (6) Schneider v. Norris, 2 M. & Sel. 288, noting that in Saunder- son V. Jackson, there was, besides the printed name, a letter signed by the defendant ; see Torret v. Crlpps, where a written contract, between H. Young & ()o. and John Abrahams & Co., contained this clause: "Now it Is distinctly understood between all parties to the contract that the aforesaid J. Otto Schuler guarantees the payment of all moneys due H. Young & Co., etc. etc., and this was signed by H. Young & Co., and their signature was witnessed by Charles Till ; then came the following : — P. P. A. John Abrahams. J. Otto Schuler. Signed and delivered by the said John Abrahams & Co. in the presence of Charles Till. The P. P. A. signature was made by Schuler, who at the time orally de- clared that he signed both for himself and for Abrahams & Co. The court held that it must be assumed that he signed in both capacities, and was, therefore, personally bound, and that oral evidence of his declaration to that effect did not contradict the writing, VOL. I. — 41 and was admissible ; Young v. Schuler, 11 Q. B. D. 653. (c) Merritt v. Clason, 12 Johns. 102 ; Newton v. Bronson, 3 Kern. 593 ; see Champlin v. Parish, 1 1 Paige, 408 ; Evansw. Ashley, 8 Mo. 181; Argenbright V. Campbell, 3 Hen. & Munn. 159 ; Wise V. Ray, 3 Iowa, 430; Higdon v. Thomas, 1 Harr. & G. 139 : Drury v. Young, 58 Md 547 ; Penniman v. Hartshorn, 13 Mass. 87 ; Hawkins v. Chace, 19 Pick. 504 ; Nichols v. Johnson, 10 Conn. 198 ; Barry v. Coombe, 1 Peters, 650 (Sup. Ct.) ; Cabot o. Haskins, 3 Pick. 95 ; Anderson v. Harold, 10 Ohio, 399 ; McConnell ... Brillhart, 17 HI. 360 ; McFarson's Appeal, 11 Pa. St. 509 ; Durrell v. Evans, 1 H. & C. 185 ; 7 L. T., N. S., 97 ; 31 L. J. Ex., 337 ; 4 L. T., N. S., 255 ; 30 L. J. Ex. Ch., 254. (d) MoComb v. Wright, 4 Johns. Ch. 661. (e) Argenbright v. Campbell, 3 H. & Mun. 159. (/) Thomas v. Caldwell, 50 111. 140. (g) Newton v. Bronson, 3 Kern. 593 ; Viele V. Osgood, 8 Barb. 132 ; Champ- lin V. Parish, 11 Paige, Ch. 408 ; Coles V. Bowne, 10 Paige, Ch. 535 ; Davis u. Shields, 26 Wend. 347 ; James v. Pat- ton, 2 Seld. 9 ; Spear «. Hart, 3 Rob. 641 § 386.1 LAW OF THE STATUTE OF FRAUDS. [CIIAP. XVI. of Frauds means, as distinguished from the word " sign" in 29 Car. II., e. 3, that the signature shall be at the end of the written or printed instrument. (A) Writing the name of the party in the body of the paper was held in one case to be a sufficient " subscription ;"(z) but qucere whether an invoice with a printed billhead giving the name of the party is " sub- scribed. "(j) It is sufficient under the Wisconsin statute (R. S., § 2302, § 2308, etc.) for the complaint to state a conti-act to have been " executed" without stating it to have been "subscribed. "(A) § 386. A lead-pencil signature is enough. (^) If not intended to be merely deliberative,(/n) a lead-pencil endorse- ment of a promissory note has been held good.(n) So a will.(o) So an application for insurance. (p) In the case of a deposition written in lead-pencil the court, while not passing upon the point, declared that they must not be understood as necessarily following, under such circumstances, the cases under the Statute of Frauds.(9) Initials are a sufficient signature.(r) Where the Lead- pencil ; iuitials ; mark; printing. 420 ; Kuhn v. Brown, 1 Hun, 246 ; see Mutual Ins. Co. v. Eoss, 10 Abb. Pr. 260 (note), discussing the word "sub- scription;" so In Alabama, Eiokley !'. Keenan, (iO Ala. 295. (A) Coon V. Rigden, 4 Col. 282, citing cases. {i) Hubbell v. Livingston, 1 Code Rep. (N. Y.) 63 (N. Y. Supr. C.) ; see, also, Roberts u. Phillips, 4 E. & B. 450. (j) Bacon v. Eccles, 43 Wis. 233. {Ic) Cheney v. Cook, 7 Wis. 423. (/) Lucas (,'. .James, 7 Hare, 418 ; Bailey v. Ogden, 3 Johns. 418 ; Clasou t'. Bailey, 14 Johns. 486 ; Pinckney )-. Hagadorn, 1 Duer, 95 ; Merritt v. Cla- son, 12 Johns. 102; Jenkins v. Hogg, 2 Const. (So. Car.) 835 ; McDowel r. Chambers, 1 Strob. Eq. 347 ; so the memorandum generally, Sherburne i'. Shaw, 1 N. H. 159 ; Hill r. Scott, 12 Pa. St. 169 ; Geary v. Physic, 5 B. & 642 C. 234 ; 7 D. & R., 653 ; Case of Simson and Others, 20 Scotch L. Report. 831 ; Ryan u. Salt, 3 U. C. C. P. 87; see 10 West. Law Jour., 147; 12 Alb. L. J., 195. (m) HiU u. Scott, 12 Pa. St. 169; Clason u. Bailey, 14 Johns. 486 ; Merritt v. Clason, 12 Johns. 102; Jen- kins ,j. Hogg, 2 Const. (So. Car.) 835; McDowel V. Chambers, 1 Strob. Eq. 347. (n) Closson V. Stearns, 4 Vt. 11; Brown v. Butcher's Bank, 6 Hill, 443. (o) Myers v. Vanderbilt, 84 Pa. St. 455, citing many cases ; Philbrick V. Spaugler, 15 La. Ann. 46. (/)) City Ins. Co. v. Bricker, 91 Pa. St. 490. (r/) People V. White, 22 Wend. 174. (r) Sauborn c. Flagler, 9 Allen, 474 (even by one partner to bind the other I ; Palmer v. Stephens, 1 Denio, 478. CHAP. XVI.] THE EXECUTION OF THE MEMORANDUM, [§ 386. defendant signed his initials to a written promise, addressed to "M. A.," whom the declaration stated to be Mary Ann "Wil- liams, the memorandum was held sufficient under a demurrer to the declaration, as Mary Ann Williams might be proved to be the plaintiff.(s) In a case in Campbell's Reports Lord Ellen- borough held that the initials of the defendant's agent written by the auctioneer in the catalogue, coupled with the letter recognizing the sale, constituted a sufficient memorandum in writing to satisfy the Statute of Frauds ;{t) a mark is a suffi- cient signature ;(m) or any figure or designation intended to bind.(?;) So in the case of a will,(?c) even when the marks- man can write his name.(a;) But by statute in Michigan the mark is only good when the party cannot write ;(?/) and so in Alabama. (0) A printed signature is good. (a) Any mode of writing or printing a signature is sufficient if adopted as such.(6) £emble, that a printed name of the defendant is suffi- cient in a memorandum delivered by the plaintiff and accepted by an agent of the defendant.(c) A statute requiring that notice of certain objections should be " signed by the person objecting" is satisfied by a stamped signature affixed by the person himself.(ci) A summons issued by an attorney with his name printed at the end is "subscribed" within the meaning (s) Chifcester v. Cobb, 14 L. T., N. (x) Taylor v. Deming, 3 N. & Per. S. 433. 230. (t) Phillimore v. Barry, 1 Campb. (y) Brown v. McCormick, 28 Miob. 613 ; see, however. Sweet v. Lee, 3 M. 215. & a. 453 ; 4 Scott, N. R. 77 (semble (z) Bickley v. Keenan, 60 Ala. 295. doubting the validity of a signature by (a) Commonwealth v. Ray, 3 Gray, initials). 447 (dictum) ; Weston v. Myers, 33 111. (u) MoFarson's Appeal, 11 Pa. St. 432 ; People «. Mortier, 8 Pac. Co.L J.. 503; Madison v. Zabriskie, 11 La. 142; Druryu.Young, 58Md. 547 ; Saun- 251 ; this applied where the signer derson v. Jackson, 3 Esp. 181 ; 2 B. & held the top of the pen while another Pull. 239 ; Schneider v. Norris, 2 M. & wrote the name ; Helshaw v. Langley, Sel. 288 ; Torret v. Cripps, 27 W. R. 11 L. J. Oh. 17. 706 ; S. C, sub nom. Tourret, 48 L. J. (d) Palmer v. Stephens, 1 Denio, Ch. 567. 478 (citing cases) ; Brown i-. Butcher's (b) Weston v. Myers, 33 111. 432 Bank, 6 Hill, 443; Weston i>. Myers, (citing cases). 33 111. 432. (c) Lerned <■. Wannemacher, 9 Al- (w) Addy V. Grir, 8 Ves., Jr., 604; len, 416. Baker v. Dening, 8 A. & Ell. 94. (d) Bennett v. Brumfitt, L. R. 3 C. P. 30. 643 § 387.] LAW OF THE STATUTK OF FRAUDS. [CilAP. XVI. of the ITew York Statute requiring such subscription. (g) But a printed signature was held insufficient in another New York case.(/) In a Massachusetts case it was held that a vendor's bill of sale produced by the vendees, the defendants, with their names stamped tbereon, does not, without further evidence as to the stamping, constitute a memorandum to bind them. The court thought that if the stamping of the defendant's name on the memorandum had been intended for a signature, the paper would have been left with the plaintiff, the purpose of the stamping, and the circumstances under which it was done, should be shown before the stamping can be regarded as a signature.(^) § 387. The next question for consideration is the necessity Acce tance ^^^ ^^® delivery and acceptance of the memorandum. of the A writing under the Statute of Frauds, as at com- dum: mon law, must be accepted, and the evidence must '^'"^'^' prove this distinctly. (A) A mere offer, though in writing, will not bind even the party making it.(z) The ac- ceptance must be manifested in some way; mere mental assent is not enough. (j) Where F., one of two parties, ordered goods by writing, exceeding $50 in value, on January 21st, and on February 13th the firm was dissolved, and on February 15th part of the goods were shipped to F. and the rest later, it was held that Goodspeed, the other partner, was not liable, because the Wizard Plow Company, the plaintiff, did not ac- cept the order in writing, and were therefore not liable, and the act done on the faith of the order was not till after the dissolution of the firm. F.'s order was not binding till accepted, and before acceptance it was revoked by notice of the dissolu- tion of the firm.(A) As deeds often serve as memoranda under the Statute of Frauds, it will be well to note the effect of (e) Barnard i\ Heydrick, 49 Barb. (g) Boardman i\ Spooner, 13 Allen, 65 ; 2 Abb. Pr., N. S., 49; S. C, sub 358. nom. Erainerd, 32 How. Pr. 98 ; see, (A) Elwell v. Walker, 52 la. 262. also. Mutual Ins. Co. o. Ross, 10 Abb. (j) Dominion Bank v. Knowlton, 25 Pr. 260 (note), discussing the word Grant, 131. "subscription." (j) White v. Corlies, 46 N. Y. 467. (/) Vielev. Osgood, 8 Barb. 132. (k) Goodspeed v. Wizard Plow Co., 45 Mich. 323. 644 CHAP. XVI.] THE EXECUTION OF THE MEMORANDUM. [§ 387. delivery in their case before taking up the general topic. A deed, to be valid as such, must, of course, be delivered, and this applies to points arising under the Statute.(^) The ques- tion was suggested, but not decided, in a Massachusetts case, whethera deed undelivered could be a memorandum sufficient to satisfy the Statute of Frauds.(m) A tender of an executed deed is no compliance with the Statute of Frauds. (n) "Where the defendants tendered a deed which the plaintiffs sent back to be properly acknowledged, and which the defendants re- tained, there was no sufficient memorandum. (o) Where the tendered deed is refused because not conforming to the pre- vious parol contract the Statute applies.(p) The weight of authority is in favor of treating an undelivered deed as no compliance with the Statute of Frauds, in the absence of spe- cial circumstances showing that it was so intended by the parties.(g') For there is no reason for requiring less in the case of a deed than in that of a simple contract, and a delivery and acceptance of the latter sufficient to show the recognition of it by at least the party to be charged is necessary, as will be seen hereafter ; and it is believed that every example of a memo- randum made and retained by the party to be charged, and yet decided to be binding, can be explained by facts which left no doubt as to the intent of the party to charge himself by the writing. Now, while it may happen that a deed wiiich is not delivered so as to be valid as such may have passed be- tween the parties as a memorandum, the burden of proof is upon the one who maintains this to establish it. Where the vendor is the plaintiff, a deed executed and tendered by him will, as a memorandum of the agreement, no more bind the defendant than would an unsealed contract so made.(r) A con- (/) King V. Smith, 33 Vt. 22 ; Parker giving the want of mutuality as the V. Parker, 1 Gray, 409 ; Johnsou o. reason for their decision) . Brooks, 31 Miss. 19 ; Stephens v. Buf- (g) Miller v. Pelletier, 4 Edw. Ch. falo, etc., R. R., 20 Barb. 337. 104. (m) Slack V. Black, 109 Mass. 499. (r) Adams v. Scales, 1 Baxt. 339 ; (n) Miller v. Pelletier, 4 Edw. Ch. Parker v. Parker, 1 Gray, 409 ; Comer 104; Adams v. Scales, 1 Baxt. 339. u. Baldwin, 16 Minn. 172 ; Graham v. (o) Steel V. Fife, 48 Iowa, 100. Theis, 47 Ga. 483 ; Lester v. Bartlett, (;;) Sands M. Arthur, 84 Pa. St. 481; 2 Ind. 628; Gwathney «. Cason, 74 4W. N. Cas., 501 (the court however N. Car. 7; King v. Smith, 33 Vt. 22 645 § 387.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XVI. veyance signed and sealed in the presence of witnesses, but not delivered, is not a sufficient memorandum under the Statute of Frauds ; the grantor at the time declared that he retained it for further consideration. (s) A deed or memorandum retained by the party making it cannot charge the other party, as the former might ofler it or conceal it as best suited his pur- ■ pose.(i;) Where the deed shows that it was not intended to be inter partes, or to be delivered, it is no evidence of a contract.(M) A memorandum signed by the lessor, but not by the lessee, and not delivered, was, in a Maryland case, considered, under the circumstances, as an inchoate instrument. (?;) A deed of gift of land, sealed and signed by the donor, but not deliv- ered, is not a good memorandum, tViough a deed afterwards delivered, which was void as against creditors, was drawn from the first one.(w) Where the deed was given by the vendor to the vendee for examination, and the vendee having approved it, tiiere remained to perfect it only the signature of the vendor's wife ; and the deed not having been so signed, there was no delivery to make the latter valid, and it was not good even as a memorandum, {x) Indeed, a deed executed only by the vendor does not evidence a contract for a deed from husband and wife.(z/) So even where the deed signed only by the vendor, and without his wife's joinder, has been actually delivered. (2) That a deed has been acknowledged as well as signed, will not avail where there lias been no de- livery. («) The defendant, a lessee, did not sign the lease, say- ing that it was unnecessary; but he put it upon record, and took and held possession thereunder, and his name occurring in the lease, which he wrote himself, the Statute of Frauds was held to be satisfied. (i) Where one Josepli Kershaw conveyed to (holding that action will not lie for (ip) Davis jj. Lumpkin, 57 Miss. 524. price of land where a deed tendered (j) Coiner v. Baldwin, 16 Minn, has not been accepted) ; see Freeland 172 ; see, however, Gillatley !•. White, V. Charnley, 80 Ind. 134. 18 Grant, 3. (s) Brown v. Brown, 33 N. J. Eq. {ij) Johnson ;>. Brooks, 31 Miss. 19. Bng. (z) Parker v. Parker, 1 Gray, 411. [t) .Johnson v. Brooks, 31 Miss. 19. (a) Polhemus v. Hodsou, 4 C. E. (m) Allen V. Allen, 45 Pa. St. 472. Green, 64. (i) Howard v. Carpenter, 11 Md. (6) Traylor t,-. Cabanne, 8 Mo. App. 276. 133. 646 CHAP. XVI.] THE EXECUTION OF THE MEMORANDUM. [§ 388. his son, John W. Kershaw, a tract of land, inserting in the deed therefor the following clause: "Said land is deeded as an advancement to said John W. Kershaw out of the estate of said Joseph Kershaw, and the deed is accepted by said John as his full and entire share of his father's estate." John "W". Kershaw accepted this deed and placed it upon record, entered into possession of the property conveyed by it, and has ever since retained the same. The Supreme Court of Illinois said that " the acceptance of the deed by John W. Kershaw, and the enjoyment by him of the estate thereby conveyed, estops him from denying that the seal attached to the deed is his, as well as that of Joseph Kershaw. The seal being in presump- tion of law the seal of John W. Kershaw, as well as that of Joseph Kershaw, there is no ground for the contention of counsel for appellant that the case is affected by the Statute of Frauds."(c) It would seem that assumpsit, or case, but not covenant, will lie on a lease signed by the lessor, but not by the lessee.(£i) § 388. A delivery of a deed in escrow is not sufficient to make it a valid memorandum. (e) A deed delivered , -IT , n ^ T,. • Deliveryof in escrow can be withdrawn beiore the condition is deBdin performed, and the Statute of Frauds is not satis- ^^"°'"- fied.(/) "Where the plaintiff under a parol contract, invalid under the Statute of Frauds, received from the defendant a part payment of the purchase-money, and executed a deed which he delivered in escrow to be delivered absolutely upon full payment, it was held that in an action for the rest of the price the Statute was a bar,(^) The effect of a delivery of a deed in escrow, as being or not a compliance with the Statute of Frauds, has been more fully discussed in a later case in Wisconsin, which held that the transfer of a deed by the ven- dor under a verbal contract to a third person, to be delivered upon the fulfilment of certain conditions to the vendee, does not bind the vendor, though the vendee seeking specific per- formance offers to perform the conditions, because a delivery in (c) KershawD.Kershaw, 102111. 311. (/) Patterson d. Underwood, 29 Ind. {d} Hinsdale v. Humphrey, 15 Conn. 610. 431. ig) Cagger v. Lansing, 43 N. Y. 550 . (e) Thomas v. Sowards, 25 Wis. 635. 647 § 388.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XVI. escrow must be under a contract in writing to satisfy the Stat- ute.(A) The Supreme Court of Indiana, in the case just cited, said : "We cannot assent to the doctrine that a deed which has not been delivered is a sufficient writing to take a ease out of the Statute of Frauds. Until delivery there is no valid contract for any purpose. Delivery is absolutely essential to the exist- ence of a deed, for until delivery there is not a spark of vitality in the instrument ; it is no more than a mere piece of paper covered with written or printed characters, and possesses no more force than a poem, or a historical essay, locked in the desk of the person described as grantor. It is unquestion- ably the law that a deed is destitute of force until delivered, and cannot be made available for any purposes. "(i) Where the (A) Campbell o. Thomas, 42 Wis. 441, saying that where a deed is con- ditionally deposited it can be with- drawn at any time before the conditions are fulfilled, and that where the ver- bal contract called for a payment of the price through a mortgage, though the deed reserved the price in cash, if the mortgage had been deposited with the deed, the two might, perhaps, have been taken together to satisfy the Statute. In Freeland u. Charnley, 80 Ind. 139, the court, following Campbell v. Thomas, said : We heartily assent to the doctrine that the conditions upon which a deed is placed in the bauds of a depositary, as an escrow, may be proved by parol. In the present case the condition upon which the deed was placed in Gavin's hands might have been proved by parol, but the contract itself must be in writing. The deed, as we have seen, is, in legal contemplation, no contract at all, for delivery ia an essen- tial part of a, deed, as Chief Justice Coke long since demonstrated. It is clear to our mind that a deed placed in the hands of a depositary, with directions to deliver it upon the 648 performance of a designated condition by the grantee, may be recalled before performance. Until the grantee has in some manner assented to such de- posit, there cannot be the semblance of a delivery, for every delivery implies an acceptance. Of course, if there is, back of the deposit of the deed, an en- forceable contract, relief might be had ; but in such a case the deposit of the deed would not supply the right of ac- tion — that would be supplied by the executory contract. In the case at bar the deed was recalled before the per- formance of the condition, and there was no enforceable executory contract. (j) Freeland v. Charnley, SO Ind. 139, the court adding that it is true that Professor Washburn says of a deed not delivered, but placed in the hands of a third person, that ' it may be used as evidence of the contract to sell and purchase the land, and in that way have effect given to it, under the Statute of Frauds, as a writing signed by the parties ;' 3 Washb. Real Prop., 303. We look upon this statement as radi- cally wrong. We find upon investiga- tion that the only case cited in support of his text, by the author quoted, is CHAP. XVI.] THE EXECUTION OF THE MEMORANDUM. [§ 389. complainant agreed to convey land to the defendant, and the latter to transfer certain stock, etc., to him, and the com- plainant executed a deed for the land and deposited it in escrow with his attorney, and the defendant prepared, but did not execute his transfers, and made a written memorandum of the contract, which he deposited with the attorney just spoken of, the Statute of Frauds was regarded as 8atisfied.(_;") Put- ting a deed into a solicitor's hands, in order that he may prepare a conveyance, does not comply with the Statute of Frauds.(A;) Where, under a verbal bargain, a mortgage de- posited in escrow is improperly delivered, it is not valid.(^) For examples of deeds good neither as such nor as memoranda under the statute, see note.(m) § 389. While the rule as to the necessity of a deed being de- livered, if it is to serve as a memorandum under the unaeiir- Statute.of Frauds, has thus peremptorily been laid ereddeed down, there are several decisions which either fail to valid mem- positively assert the doctrine or even deny it alto- gether. In Massachusetts it has been suggested that a deed never delivered is not a good memorandum, (n) and the ques- tion has been asked whether a deed executed and tendered upon certain conditions of payment was upon the fulfilment of these conditions a sufficient memorandum. (o) In a Pennsyl- vania case, where the ground laid for the specific enforcement of the contract was equitable part performance, the court said of a deed which had been executed by one of the parties : " Not having been delivered, it conferred no title, and having been retained exclusively in the vendor's bands, it could not serve that of Cagger u. Lansing, 57 Barb. (J,) Powell v. Conant, 33 Micli. 397. 421, and that this case has been directly (m) Sanborn v, Sanborn, 7 Gray, overruled in Cagger v. Lansing, 43 N. 142; Underwood v. Campbell, 14 N. H. Y. 550. 393. See Tripp v. Bishop, 56 Pa. St. 428, (n) Sanborn j;. Chamberlin, 101 Mass. where both a deed was delivered in 416; the sheriff sued the vendee, who escrow and also a memorandum, and bought at the sheriff's sale, and there where the vendee was held to pay the was a memorandum, and the action purchase-money. was sustained, but semble the undeliv- (j) Bissell V. Farmers' Bank, 5 Mc- ered deed was of no effect. Lean, 502. (o) Potter u. Jacobs, 111 Mass. 36 ; (k) Redding v. Wilkes, 3 Bro. C. C. see Parker v, Parker, 1 Gray, supra. 401. 649 § 389.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XVI. the purpose of averting the operation of the statute. But its execution was a fact bearing upon the question of the existence of the contract. It was a deliberate admission that the land had been sold and an explicit declaration of the terms of the sale of the quantity and boundaries of the land and of the amount of the purchase-money. Its production in evidence could have been enforced for the purpose to which it would extend; not to establish title, and not to avoid the Statute, but to show a carefully considered acknowledgment and recog- nition by Carroll of Hart's contract rights. Can it be doubted that verbal testimony of declarations by the plaintiff, made in December, 1867, of the precise facts related in the deed, would have been admissible in aid of the grounds on which the de- fence rested? And how, in view of such clear and definite evidence as would be thus aftbrded, would a chancellor find embarrassment in decreeing specific performance V'{.p) An undelivered deed, it has been decided, may be a sufficient memorandum,(5') if handed over for such a purpose.(r) (/)) Hart V. Carroll, 85 Pa. St. 510 ; 5 W. N. Cas., 376. (?) Bowles V. Woodson, 6 Gratt. 78 ; in Jenkins u. Harrison, 66 Ala. 356, the court said : " It is certainly true, as is insisted by the appellant's counsel, tliat delivery is essential to give effect to a deed ; as essential as signing, or the attestation of witnesses, or a legal acknowledgment of execution. And it is true that, though signed, attested, or acknowledged, so long as the grantor retains control or dominion over it, so long as he does not part with it, with the purpose that it shall enure to the grantee, title will not pass from him. The concession does not meet the point upon which judgment is to be pronounced. We are not in search of a conveyance of the legal estate in the lands ; we are not inquiring whether the grantor has parted with the title to them, and the grantee has become invested with the title. The gravamen of the complaint, the necessity for a resort to a court of equity,' consists in the fact that the grantor has not, as he was bound to do by the contract ex- isting between him and the grantee, parted with the legal title; and it is performance of that contract which is claimed, and is the primary object of suit. It is written evidence of the contract, binding the vendor to per- formance for which we are inquiring, and that, according to the authorities, may be obtained from any document or instrument signed by the vendor ; and it is not necessary that it should have been written, as were these deeds, with the view of furnishing evidence of the contract, and looking to its final con- summation. Wherever a note or memorandum of the substance of the contract — not a sig- nification or expression, or detail of all 650 (r) Thayer v. Luce, 22 Ohio St. 74. CHAP. XVI.] THE EXECUTION OF THE MEMORANDUM. [§ 389. The moat extreme case sustainiag a deed as a memorandum, and which can scarcely, unlike the ones just cited, be recon- ciled to the weight of authority, is a chancery ruling in Canada, which held the deed to be a sufficient note in writing where the vendor signed and sealed a deed and took it away to have his wife sign it, and to have it registered, though neither of these two things was done.(s) And it has been held in Vir- ginia that the execution of a deed by the party to be charged is sufficient in a suit on a contract for the exchange of land.(/) The precise part which the delivery of the deed plays when the deed is relied upon as the writing which shall satisfy the Statute becomes an important matter to determine under the law of Pennsylvania, where, as to land, the first three sec- tions only of 29 Car. II. have been adopted. A writing executed by tlie party making or creating the estate is neces- sary to pass any interest greater than that of an estate at will ; while, on the other hand, the purchaser is not within the Statute at all, which deals only with the transfer of the title, an equitable one passing by a simple contract executed by the vendor, a legal one by a deed sealed and delivered. The case of Sands v. Arthur, already cited, decided that where a vendor tendered a deed refused by the vendee, the latter was not compelled to take the property, and the court gave as a its particulars, signed by the party to "both parties, with a view to the con- be charged, is produced, whatever may summation of the contract of sale, be its form or character, or whatever which, in itself and of itself, embodies may be its operation or validity in the substance, though not all the de- courts of law — the words and purposes tails or particulars, of the contract ; of the statute are satisfied. The party naming the parties, expressing the is shielded from the peril and mischief consideration, and describing the lands springing from the frailty and unoer- though not delivered, and its delivery tainty of mere oral evidence, resting in postponed until the happening of a the fleeting memory of witnesses ; and future event, is a note or memorandum the court has, over his own signature, of the contract, sufficient to satisfy the clear and satisfactory evidence of the words, the spirit, and purposes of the contract it is to enforce. Atwood u. Statute of Frauds ;" see supra. Cobb, 16 Pick. 227. (s) Gillatley v. White, 18 Grant, 3. Without passing beyond the facts of (() Parrill v. McKinley, 9 Graft. 6 ; this case, we hold that a deed, drawn in this case there were acts of part and executed with the knowledge of performance. 651 § 389.] LAW OF THB STATUTE OF FRAUDS. [CHAP. XVI. reason for their decision that there was no mutuality of remedy. The previous decision of the same court, in Tripp V. Bishop, had declared that this doctrine did not apply in CHses under the Statute. Now Tripp v. Bishop, which was not referred to in Sands v. Arthur, dift'ered from it in that in the former case there had been a memorandum delivered and accepted, and a deed delivered in escrow, while in Sands v. Arthur,(M) the only memorandum was the tendered and re- jected deed. It would reconcile this conflict of ruling to say that even under the Pennsylvania statute the deed or writing must be delivered and accepted in order to be the memo- randum. Because, while a purchaser's contractual obligations under the Statute may be evidenced by parol, no such obliga- tions accrue till the title legal or equitable in the land is vested in him. To vest the title he must join, at least verbally, in a valid transfer, and such transfer must be by a writing executed by the vendor. Being a party to a previous invalid oral agreement, will, it may be argued, have no such eflfect, and if, under the oral agreement, the vendor executes the memorandum, the previous promise of the vendee to buy can be revoked by him, and he can refuse to accept the mem- orandum. Verbally agreeing to take land is not a purchase of it even in equity; and a written promise to sell on the vendor's part is not effective as a contract, because the vendee makes no promise, and a deed tendered does not bind a vendee under no valid obligation to take, because no man can be made owner of land against his will by an act, inter partes, and this seems the better view, though the other side of the question is not incapable of defence, and it may be said that the oral sale is valid, and o\\\y not provable, and that after the vendor has bound himself by a writing signed, both parties being bound from the first, and the evidence required by the Statute of Frauds being in existence, the case at law is com- plete, though the vendor never delivered his memorandum. This question can only arise where the Statute, as in Penn- sylvania, ITew York, etc. (see § 367), requires a memorandum («) 84 Pa. St. 481 ; Tripp v. Bishop, 66 id. 428. 652 CHAP. XVI.] THE EXECUTION OF THE MEMORANDUM. [§ 390. signed, not by the party to be charged, but by the party making, transferring, or assigning the e8tate.(t)) § 390. Leaving the subject of deeds as memoranda and passing to the consideration of delivery generally of Acceptance the writing required by the Statute of Frauds, it of theme- may be said that the note executed by the party to "enmaiiy"' be charged, or by the party making or creating the ^g^^*^ estate as the law may read, must be delivered to randum is and accepted by the other party to the contract or transfer.(io) It has been doubted whether the memorandum evidencing a previous parol contract raising a trust need be delivered to be valid.(a;) An undelivered memorandum has been allowed the force of corroborative evidence.(y) A mem- orandum made by the bookkeeper of the defendants, and placed in their safe, is a good memorandum, though never delivered, and not shown to have been known by the other party. The court said that a memorandum coming from the defendant's custody is as good a proof as if coming from the custody of the other 8ide.(^) Where a lessor countermanded a written contract of lease executed by him before it was sent the lessee, there is no binding memorandum. (a) A memorandum as (f) See Reynolds u. Dunkirk R. R., 17 Barb. 615 ; see 18 Amer. Law Reg., 359, a note to Sausser ) A letter saying, . ..." I wish you to make the title to the land I bought of, etc. ; you would get the particulars of the land and the value, etc., to be made free from Mr. Bracebridge, does not show the terms of a contract.(a;) A vendee's letter in answer to one from the vendor, which said, "previously to paying the amount, etc., it would be ad- visable to have some information as to the title, the identity to the lands, etc.," was insufficient, as not showing a concluded contract.(2/) In a recent case of some interest the vendor's agents authorized to sell only on certain terms so instructed by writing their sub-agent. To a purchaser procured by the latter to make an offer in ignorance of the special terms, the original agents wrote, " We have been instructed by the Marchioness of Ely" (the defendant) "to proceed with the sale to you, etc., the draft contract is being prepared, and will be forwarded for approval," and it was held that ".proceeding with the sale" meant proceeding with the negotiation, and that even if the agents meant to close the contract they had no power to do so except upon the special term8.(2) Where the written ac- (!') Patton V. Develin, 2 Philada. 103; meaning of the letter and the inclosed Ball V. Bridges, 22 W. R. 552 ; Stanley engrossment, it seems to amount to 0. Dowdeswell, L. R. 10 C. P. 105 ; Lu- this, ' we believe that there is either cas V. James, 7 Hare, 418. a contract to sell this land, or that (w) Parkhurst v. Van Cortlandt, 14 there will be such a contract at the Johns. 15. time when the conveyance is executed (x) Rose II. Cunynghame, 11 Ves. and the purchase-money paid by the 551 ; see Donnison v. People's Cafe Co., purchaser.' The Statute requires that 45 L. T., N. S., 189. a concluded agreement, existing at the In a modern English case the facts time when the memorandum is signed, were as follows : The defendant's so- should be proved by the plaintiff, licitors sent an engrossment of a con- whereas the document, as I have said, veyance of the land containing the fol- shows no actual existing agreement ;" lowing recital : "Whereas the vendor Munday r. Asprey, L. R. 13 Ch. Div. has contracted with the purchaser for 857 ; 42 L. T. Rep., N. S., 144 ; 49 L. the absolute sale to him of the said J. Ch., 216 ; 28 V7. R., 347. lands and hereditaments at or for the (y) Savile o. Kinnaird, 11 Jur., N. price or sum of £360;" and the court S., 198. said " this engrossment bears no date («) Chinnock v. Ely (Marohionesi and is unsigned. If I develop the of), 11 Jur., N. S., 329 ; 12 L. T., N. 675 § 396.] LAW OF THE STATUTE OP FRAUDS. [CHAP. XVII. ceptance of an offer makes a new term or condition there is no concluded contract shown, but qu. Bos- worth, 2 V. & B. 344 ; Clarke v. Fuller, 16 C. B., N. S., 36 ; Pulbrook v. Lawes, L. R. 1 Q. B. D. 288 ; 45 L. J. Q. B., 179 ; Sands r. Soden, 10 W. R. 765 ; Wagner v. Egleston, 49 Mich. 222; Hunt V. Reynolds, 9 R. I. 305 ; Nelson c. Hagerstown Bank, 27 Md. 72 ; How- ard I'. Carpenter, 11 Md. 276 ; Rey- nolds V. Dunkirk R. R., 17 Barb. 615; Hough V. Brown, 19 N. Y. Ill ; Allen t: Roberts, 2 Bibb, 98 ; Springle o. Morrison, 3 Litt. 53 ; Freeport u. Bar- tol, 3 Greenl. 345 ; Lincoln v. Erie CHAP. XVII.] CONTESTS OF MEMORANDUM — PARTIES. [§ 397. § 397. If the memorandum sufficiently sets out the agree- ment, it is not the less a compliance with the Stat- The rule ute that the parties aairee that a more formal instru- ^^'^'^ f , . , more tor- ment to the same eft'ect shall be executed by them.(/) mai eubse- There was an oft'er and acceptance as follows: You ilJ^^s eon- may make Mr. Eadie an offer of the Tweeddale tempiited. Arms Hotel at, etc., from Lady-day, 1881 ; a proper lease to be drawn up, with all proper clauses, and approved of by me and my solicitor, and executed before the commencement of ten- ancy, and if not, this offer to be void. I am in receipt of your letter of yesterday, containing Mr. Addison's offer of the Tweeddale Arms Hotel, Tamworth. I consider the rent very high, and the terms somewhat stringent ; but as the house stands well, and is respectable, I accept the offer. Please pre- pare and send me draft lease in due course. The court held that the contract was complete, notwithstanding the approval clause, and the defendant, the owner, could not insist upon a clause against sub-letting.(_9) "Where the parties contemplated Preserv. Co., 132 Mass. 130 ; Stagg v. Comptou, 81 Ind. 171. For examples of insufficient acknowledgment of in- debtedness to take a promise out of the statute of limitations see tke chapter on Limitations and the following cases : Eowe I). Hopwood, L. R. 4 Q. B. 1 ; Hale V. Gerrish, 8 N. H. 374 ; Ford o. Phillips, 1 Pick. 202 ; Wilcox v. Roath, 12 Conn. 550 ; Harris v. Wall, 1 Exoh. 122 ; 1 Minor, Instit., 540 ; Tyler, Inf. and Gov., 2d edit., pp. 96 et seq. (/) Fowle o. Freeman, 9 Ves. 354 ; Western v. Russell, 3 V. & B. 187: Thomas v, Bering, 1 Keen, 740 ; 1 Jur., 211 ; 6 L. J. Oh., 267 ; Hamersly V. DeBiel, 12 C. & F. 73 (Dom. Proc.) ; id. 63 n. ; 3 Beav. 469 ; Catling v. Perry, 2 F. & F. 141 ; Jones v. Victoria Grav- ing Dock Co., L. R. 2 a. B. D., 321 ; 46 L. J. Q. B., 219; 36 L. T., N. S., 144; Bonnewell u. Jenkins, 26 W. R. 294; 47 L. J. Ch., 758; MoFarson's Appeal, 11 Pa. St. 610; Caborne . Cobb, 16 Pick. 230. 688 CHAP. XVII.] CONTENTS OF MEMORANDUM — GENERALLY. [§ 400 show the time of payment of the mortgage.(n) In Maryland a lax rule seems to have been adopted, for it has been held that, in the ease of a written contract of sale of land, the time and manner of payment can be shown by oral evidence ;(o) as to show a usage of six months' credit, the memorandum making no provision on the point ;(p) and in a New York case there is a suggestion that an uncertain statement, as to time of payment, could be made precise by proof of an oral stipulation. (^) For the purpose of contradicting the memorandum, and showing, by way of defence, that it is incorrect, oral evidence of a sale on credit is admissible to overcome the presumption of a cash sale.(r) There is authority for the proposition that a memo- randum must positively say whether the payment is for cash or on credit ;(s) and if, in fact, credit was stipulated for, the memorandum must so show ;(<) but it is believed that there is no decision which makes it necessary for the memorandum of a cash sale to state that it is for cash. It has, however, been said in Pennsylvania that a memorandum not stating the price and manner of payment is insufficient. (m) Under another head has been considered the question how far a memorandum, which contains an unqualified promise, is defective in not stating the terms and conditions of the contract, and, while it it is doubtful whether certain authorities heretofore given(?;) can be sustained on principle, it may be said that there is no rule of law requiring us to assume that a contract contained anything more than a bare promise and a consideration (nor (n) Devine i>. Griffin, 4 Grant Ch. 568 ; Flintoft v. Elmore, 18 U. C. C. P. 606. 281. (o) Paul V. Owings, 32 Md. 406 ; but (s) Carroll v. Powell, 48 Ala, 302 ;. in Hopkins u. Roberts, 54 Md. 316, it Wright c. Weeks, 25 N. Y. 155 ; see- was held that, under the circumstances, Ash I'. Daggy, 6 Porter, 259. the court would not presume a cash (t) Davis v. Shields, 26 Wend. 347 ;. sale, and that the memorandum was and see above Eargood's Estate, 1 Peai;- defeetive in not giving the terms of son, 400, payment. (m) Ward u. Orr, 13 Pitts. L. J., N. (p) Williams v. Woods, 16 Md. 246. S, 417, S. C. Pa. ; see Gault u. Stor-- (g) Foot V. Webb, 69 Barb. 53, dis- mont, 17 N. W. Rep. 215 ; McCaul c. tinguishing Wright v. Weeks as being Strauss, 1 Cab. & Ell. 106. a case where there was parol evidence (i>) Holmau v. The Bank of Nor- to show the time of payment. folk ; Phinkett v. Methodist Episcapal (r) Hinde v. Whitehouse, 7 East, Soc. VOL. X.— 44 689 § 401.] LAW OP THE STATUTE OP FRAUDS. [CHAP. XVII. even the latter when the evidence is a bond) ; in absence of proof of further stipulations a memorandum showing no terms or conditions would be therefore sufficient, if it showed a general promise, and there is no evidence that this was not the whole agreement. § 401. The memorandum must show the names of both the parties to the contract.(i/;) Though the memoran- Thepartiee. ^j^j,^ ^f,gg ^q^ expresslv name the parties as such. Examples r j t ! ofsufflcient yet if from it, or from the nature of the transac- randa. tion, thej' are disclosed it is enough. (x) In a Mary- land case it was said that if the memorandum does not state the name of the plaintiff, it cannot be specifically enforced because of the want of mutuality ;{y) though this may be looked upon as employing a bad argument to support a good decision. The following are some examples of memo- randa sufficiently showing the parties: Where goods were ordered by the defendant of the plaintiff', and a list of them was entered in a book with the words " Order-book" printed on the outside, and " Sari & Son" (the plaintiffs) on the fly-leaf, and the name and address of tlie defendant were written by himself at the foot of the list, the Statute of Frauds was held to be satisfied. (2) The following memorandum, "W. W. Goddard" (the defendant) " 12 Mos., 7^ ; 300 bales," signed "S. M. M." (the plaintiff), " W. W. G." (the defendant), was re- garded as sufficiently indicating the parties.(a) In a modern (w) Champion c. Plummer, 1 B. & kins, 12 B. Mon. 604 ; Horton u. Mc- P. N. Rep. 254 ; 5 Esp., 254 ; Jacob v. Carty, 53 Me. 394 ; Williams v. Robin- Kirk, 2 Moo. & Rob. 223 ; Skelton u. son, 73 Me. 195 ; Sherburne v. Shaw, Cole, 1 De G. & J. 595 ; .Jones v. Nan- 1 N. H. 157 ; Lang v. Henry, 54 N. H. ney, McClel. 39 ; Boyce v. Green, Batty, 59 ; Haydock v. Stow, 40 N. Y. (1 Hand) 616; Palyi;. Coghlan, 3 Ir. .Jur., N. S. 370; Christie v. Simpson, 1 Rich (0. 151; Hoiick V. Whitby (Town of), 14 S.), 408; Brock r. Jones, 8 Tex. 79; Grant (Ch.) 672; Archer v. Scott, 17 Brent v. Green, 6 Leigh, 16. id. 249 ; Cameron t. Spiking, 25 id. (x) Webster ^. Ela, 5 N. H. 540 117 ; Smith V. Arnold, 5 Mason, C. C. (this was a case outside 'of the Statute 414; Barry v. Law, 1 Cranch (C. C), of Piauds). 47 ; Knox V. King, 36 Ala. 367 ; Hoi- (y) Duvall v. Myers, 2 Md. Ch. 406. lingsworth .;. Martin, 23 Ala. 597 ; (z) Sari v. Bourdillon, 1 C. B., N. S. Mobs u. Atkinson, 44 Cal. 3; Cossitt 194; 26 L. J. C. P., 78. V. Hobbs, 56 111. 231 ; Doty v. Wilder, (a) Salmon Falls Co. y. Goddard, 14 15 111. 407; Barickman w. Kuyken- How. (U. S.) 454 (two judges dissent- dall, 6 Blackf. 21 ; Madeira i^. Hop- ing). So a memorandum as follows: 690 CHAP. XVir.] CONTENTS OF MEMORANDUM — QENEEALLY. [§ 401. English case it was said, speaking of a memorandum objected to as not describing the parties: " In the first place, the defen- dant's name appears on the contract, for the memorandum was signed by Mr. George Smith, as agent for Charles Collins. Then the abstract of title is headed thus: "Abstract of title of Messrs. Bourdillon and Faulkner to" (naming the lot which had been knocked down to Mr. Smith as agent for Mr. Col- lins) ; and the defendant having accepted an abstract of title and sent in requisitions, it was held that he could not sustain his objection. (6) An entry of a credit in an account stated : "By my purchase of, etc., as agreed on between us," was thought to sufiiciently describe the parties. (c) And the sig- "Agreed witli A. M. Carter for . . . the undersigned, agreeing to deliver the same to William Hudson," and signed by Carter, shows the parties by naming them and using the word "agree ;" Hodson v. Carter, 3 Chand. 234 ; 3 Finn., 213. (6) Bourdillon v. Collins, 24 L. T. Rep., N. S. 345. So a memorandum, " I hereby agree to sell to John Kelly," etc., " and hereby acknowledge the re- ceipt of ten dollars on account," signed by both the parties, shows by the word "agree" that the signers were the parties, and by the context that Kelly was the purchaser ; Thornton v. Kelly, 11 R. I. 499. (c) Barry v. Coombe, 1 Peters, 651 ; The court said : " The memorandum set up is in the form of a stated account wholly in the handwriting of . . . Barry, the defendant below, and ac- knowledged to be a copy made by him, of another also made out in his hand- writing, actually signed by Coombe (the plaintiff below), . . . and now in the bands of Barry. So that Barry's name is in the caption, . . . and Coombe's at the foot of the memorandum. The item of the account which relates to . . . the land is in these words, let- ters, and figures : ' By my purchase of your J E. B. wharf and premises this day, as agreed on between us,' and the credit is carried out in figures, $7578.63, and deducted the amount charged to Barry. Then follows this memorandum, ' Balance due, G. Coombe fifteen hundred dollars, payable in . . . G. Coombe.' The statement of account in which the items appeared was headed, ' Robert Barry to G. Coombe, Dr.'" The court added : "Brief as it is, this memorandum contains a condensed summary of all the essen- tials to a complete contract. By the use of the present tense it speaks of a thing final and concluded. . . . By the use of the pronouns ' your' and ' us' the parties are distinctly intro- duced." An agreement for sale of land did not state the name of the vendor, nor was it signed by him ; but on the back of the agreement appeared these words, written by the auctioneer, " 0. D. & H. property, near Newmarket, 81^^ acres. S. J. Stammers." It was proved that the defendant, 0. D., owned the land in question, and that there was but one sale to the plaintiff. Several letters also were put in evidence, signed by the defendants, referring to the " Stammers purchase," urging the plaintiff "to close," and threatening suit to compel specific performance. It 691 § 402.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XVII. nature may itself show that the signer is a party, and evidence his part of the contract : as where a contract read as being be- tween the plaintiff and one of the defendants, was not signed by the plaintiff, but was signed by both defendants, it was held that the signer not named in the contract was bound either as principal or surety. (c?) A memorandum guarantee- ing the payment of a certain sum due by J. M. V. to Mordecai, the plaintiff, and signed by them and by the defendant, is suf- ficent.(e) So where the defendant signs with the plaintiff a paper, in which the former says: "I do hereby agree to take the lot.(/) Where the pleadings admit that the plaintiffs were the vendors, a memorandum omitting to describe the latter is made sufficient.(^) A memorandum of part of a con- tract insufficient under the Statute of Frauds, because not naming one of the parties, requires a stamp as an agreement.(/i) § 402. Several writings, as has already been seen, may be taken together to constitute the memorandum re- shown^by quired by the Statute of Frauds,(z) and the follow- sever'S'"^^ ing cases show an application of the rule to the memo- present point. Where the memorandum having failed to state the vendor's name, the vendee wrote a letter to the solicitors of the latter in which he mentioned the latter's name, the two papers together are enough. (^■) So where the vendor directed his agent to "close the sale," and was held that the Statute of Frauds land at," etc. ; the defendant's, the was satisfied ; Stammers «. O'Donohoe, vendor's, name did not appear in 1 Can. Law Times, 128 (U. G. Ch.). either, except as his signature to the In Young v. Sehuler, 11 Q. B. D. 653 receipt; the Statute of Frauds was held (C. App.) (see § 384 a. (b) ), Grove, to be satisfied; Long v. Miller, 48 L. J. J., below, thought the phrase, "now Q. B. 596; 27 W. R., 720 (before the it is distinctly understood between Lords Justices). all parties to this contract that J. Otto (e) Mordecai o. Gadsden, 2 Speer, Sehuler should guarantee, " etc. , might 571. imply that Sehuler was not a party (/) Cadwalader v. App, 81 Pa. St. to the contract, but this doubt was 210. removed by Schuler's signature. {g) Clarkson v. Noble, 2 U. C. Q. B. (d) Clark v. Rawson, 2 Denio, 135. 364. The plaintiff signed an agreement to (A) Ramsbottom v. Mortley, 2 M. & purchase land, and the defendant gave S. 445. a receipt as follows : " Received of Mr. (_i) See Chap. XIII. George Long the sum of, etc., as a de- {j) Irvine v. Dane, 2 Ir. Jur. 210. posit on the purchase of three plats of 692 CHAP. XVir.J CONTENTS OP MEMORANDUM — GENERALLY. [§ 402. on the same paper the vendee wrote and signed an acceptance of the terra8.(A) So a memorandum signed by the plaintiffs was accompanied by a counterpart signed by the agents of the defendants, but which did not contain the plaintiff's name.(^) So where the vendors wrote: "will take for, etc., 160 acres, etc., $300," etc., and signed this, and on the same paper the vendee wrote and signed: "Your terms are accepted. "(m) But, on the other hand, a memorandum addressed to a broker, authorizing a sale on certain terms signed by the vendor, but naming no vendee, and afterwards written across by the vendee accepting these terms, was held in N'ew York to be in8uiEcient.(?i) Where a guaranty was not addressed to the plaintiffs, and did not mention their name, a letter from the guarantor stating that the guaranty was intended to be given them, the evidence is suflicient.(o) A memorandum written before the sale, and not naming any vendee, being a request to a master making the sale not to let the property go below a certain price, is insufficient in not showing the parties.(^) (i) Forbis v. Shattler, 2 Cinn. Rep. 95. (/) Lerned v. Wannemaolier, 9 Allen, 416. (m) Cossitt V. Hobbs, 56 111. 231. (n) Haydook u. Stow, 40 N. Y. (1 Hand) 363. (o) Brettel v. Williams, 4 Excb. 628. (p) Kinloch v. Savage, 1 Spear's Ch. 471. The following case shows with how much pains the parties will be ascertained, if it is possible, from the writing. The agent of the defendant, the seller, wrote an order for rice in a memorandum of the plaintiff's. The order did not give the buyer's name further than the following note to the order: "This order is to be executed if Mr. Allen" (the plaintiff, the buyer) "does not hear from Bennet" (the defendant, the seller) "from Liverpool by Saturday." The order was signed by W., as the defendant's agent, and the defendant wrote a letter to W., affirming the transaction, and mention- ing the plaintiff as the buyer. Two other separate orders for tobacco were given in the same form, except that there was no note as above, and the defendant as to them wrote no letter. As to the latter's orders, the plaintiff wrote affirming them. It was held that the Statute of Frauds was satis- fied, citing Champion u. Plummer, semble even as to the two orders for tobacco ; the agent's signature, taken with the plaintiff's letter, being, semble, sufficient. Semble, also, that as the orders were all given and entered in the book at the same time as the defen- dant's letter, the latter, though it spoke specifically only Of the rice, might be deemed to refer to the whole sale ; Allen u. Bennet, 3 Taunt. 175. Where S. conveyed land to the plain- tiff, the defendant, and Ba. in conside- ration of their paying a debt, he, S., owed H. on a note made by S. and endorsed by the plaintiff, and this note was renewed by another note, on which were the plaintiff, the defendant, and Ba., it was held that on paying the 693 § 403.1 I-AW OF THE STATUTE OP FRAUDS. [CHAP. XVII. The following memoranda were together held to be sufficient : "Fifty-eight acres, etc., lives of Isaac Finnamore, aged, etc. etc., at 12s. per acre from first of May, etc.," written by the defendant who wrote a letter as follows: " I request you to give Mr. Powell" (the plaintiff claiming under the Finna- mores) " the article from me to Thomas Finnamore, about the Quarry Hill Farm, that he may get the leases drawn. "(§') § 403. Among the examples already given are one or two General cases in which the memorandum was executed by pointBasto an agent, and it is proper to call attention to this statement " . . . of the par- feature of the writing. Without again opening in«noran- the discussion had elsewhere of the general law of dum ; agency as aiiected by the Statute of Frauds, a few memoran- ^ J ^ J ' dum by decisions touching the proof of the parties to the public ' contract will now be referred to, where, for instance, '*^®'- a broker drew a sold note : " Sold for Mr. Edward Higginbotham to my principal," and Higginbotham was the defendant's agent, who had no business or capital of his own, and though the defendant traded, the latter was held liable.(r) So where the defendant addressed a letter to G., acknowledg- ing his liability for the debt of one W., the plaintiffs were allowed to show that the debt due by "W. was due to them, and that the defendant's letter was addressed to G-. in the lat- ter's character as their solicitor.(s) So where the plaintiff, owner of goods, authorized T. & M., brokers, to sell them for him, and T. & M. negotiated a sale with the defendants (whose undisclosed principal was one S.) ; the latter signed, as brokers, a note, "■ Sold for" T. & M. " to our principal" (not naming him), and delivered this to T. & M., who also, as brokers, signed a note, " sold to Dale, etc." (the defendant), " for account of, etc., Humphrey" (the plaintiff), it was held that evidence latter note the plaintiff could have taken together ; and infra, Newell «. contribution from the defendant, the Radford. Statute of Frauds being satisfied by {q) Powell o. Dillon, 2 B. & Beatt. the first note, to which the defendant 420. was a party ; Bonlden v. Scircle, 34 (r) Trueman u. Loder, 11 A. & Ell. Ind. 64; see, above, Sarla. Bourdillon, 594. as a case where two writings were (s) Bateman v. Phillips, 15 East, 272. 694 CHAP. XVII.] CONTENTS OP MEMORANDUM — GENERALLY. [§ 404. of usage that the defendants were liable as they did not dis- close their principal, was admissible, notwithstanding the Stat- ute of Frauds.(<) Memoranda which show the defendants, the vendors, to be solicitors, have been held sufficient to charge them.(M) Where an agent of the defendant wrote in the plaintiff Newell's book, "Mr. N"e\vell, 32 sacks, etc., culasses, at," etc., and signed this, parol evidence of usage was admitted to explain the items which described the subject-matter, and it was held that the parties sufficiently appeared. (i;) So an entry by a broker, in the regular course of his business, giving, among other things, the names of both parties connected by the word " to" is 8ufficient.(M)) The memoranda made at public sales being, as has been seen, sustained when even so meagre as scarcely to show the contract require to be noticed while deal- ing with the present point. Two or three examples will speak for themselves. "Where a memorandum stated a purchase as " through ' so and so, " auctioneers," the vendors are suffi- ciently shown, as the principals need not be disclosed. (.-r) Where the auctioneer made the following entry: "Hagadorn" (the defendant); "terms of sale" (giving them): "On St. Marks Place, price and buildings" (describing them) ; then " 1 lot cor. Ave. A, etc. etc.; 1 lot next adjoining . . . Pinck- ney" (the plaintiff, "$1410;" it was held that the parties sufficiently appeared. (y) A sheriffs memorandum as follows was sufficient, viz., "Partition lands, Louis Roberts v. B. T. Adams; lot 11, etc. etc., Louis Roberts," and giving the price.(2) § 404. There is a well established exception to the rule that the memorandum under the Statute must open guar- show the parties, and that is the case of open guar- ''""^s- antics, such as recommendations of financial responsibility, (<) Dale V. Hnmfrey, E. B. & Ell. ence which also showed the names of 1004 (Exch. Chamb. affirming the the parties). Queen's Bench by a divided court, (w) Coddington v. Gray, 16 Gray, three judges dissenting). 436. (u) Dobell V. Hutchinson, 3 A. & Ell. (a;) Walsh v. Barton, 24 Ohio St. 39. 371. ' [y) Pinckney v. Hagadorn, 1 Duer, («) Newell V. Radford, L. R. 3 C. P. 95. 52 (there was a subsequent correspond- («) Wiley v. Roberts, 27 Mo. 390. 695 § 405. J LAW OF THE STATUTE OF FRAUDS. [CHAP. XVII. letters of credit, etc. etc.(a) TJie defendant, being debtor to the plaintiii', delivered the latter a note for $100, made by one J. McG., payable to the defendant or the bearer; on the back of this the defendant wrote, " In consideration of one hundred dollars I guarantee the payment of the within note ;" it was held that the omission to name the person to whom guaranty was addressed was not fatal, semble, that the guar- anty being to bearer meant to any bearer.(5) And even an order for goods addressed to no one in particular was held to become a sufficient memorandum by being delivered and ac- cepted by a particular person. (c) But it may be questioned whether the rule should be extended beyond the class of cases first given when usage and necessity prevent the obligee from being named. The following ofier passed by the board of commissioners of the defendant county, viz. : " The board also orders that said county auditors issue to each volunteer sworn, enlisted, etc., into the service of the United States, etc. etc., to the extent of Marion County's quota, and for which Marion County shall have all and full credit, an order for the sura of one hundred dollars out of the county treasury," etc., is not in writing under the Statute relating to the limitation of ac- tions because only one of the parties thereto appears therein. (c?) § 405. The following are some examples of memoranda held Examples ^^ ^^ insufficient because not describing the parties ofinsufli- to the Contract. Thus, an instrument of trust is cient mem- . _ ' _ oranda;not fatally defective in not naming the cestui que trust.{e) the pa"rties, A memorandum which does not show whether the auy^"^ defendant takes as vendee, or as agent, mortgagee, (a) Brettelt). Williams, 4 Exch. 628; (c) Darby u. Pettee, 2 Duer, 149, cit- Griffin v. Rembert, 2 Rich., N. S. 414; ing Union Bank v. Goster ; see § 416. Thomas o. Dodge, 8 Mich. H ; Duval (rf) Marion Co. v. Shipley, 14 Cent. V. Trask, 12 Mass. 156 : Birokhead u. L. .T. 112, S. C. Ind., citing Grafton v. Brown, 5 Hill, 634 ; Tarbell v. Stevens, Cummings ; Kalamazoo, etc., Manufact. 7 Iowa, 166 ; see below ; see, however. Works v. Macallister, 40 Mich. 84; Ba- in Williams v. Byrnes, 1 Moo. P. C, ker u. Johnson Co., 33 Iowa, 151 ; Kiu- N. S. 154, the opinion by Stephen, C. sey v. Louisa Co., 37 la. 438; Over- J. ; Pollock's Princ. Cont. (1st Am. ed.) shiner v. Jones, 66 Ind. 452; Sithin p. 186. .,. Board of Comm., 66 Ind. 109, over- (6) Palmer v. Baker, 23 U. C. C. P. ruled. 306, citing cases ; see Manning v. Mills, (e) Dillaye u. Greenough, 45 N. Y. 12 U. C. Q. B. 578. 445. 696 CHAP. XVII.] CONTENTS OF MEMORANDUM — GENERALLY. [§ 405. etc., is in8ufficient.(/) So a memorandum certifying that the defendant became security, and in what amount,(_9') but not stating to whom. An offer to take a lease by the intending lessee, and attested by the lessor's agent, but not naming the lessor otherwise than as " Sir," was followed by an acceptance in the handwriting of the agent, addressed to and received by the intending lessees, but not naming the lessor, and not signed by the lessees, is not a sufficient memorandum, so as to allow the lessor to compel specific performance. The Master of the Rolls reluctantly allowed the objection of the Statute of Frauds.(A) The following are some examples of memoranda made to evidence a public sale, but held insufficient because not indicating the parties to the agreement. Thus an entry by the sheriff to the effect that he had sold the lands of the defendant in the execution to the amount of the demand.(i) So where the name of the purchaser is not connected, even by a caption with the memorandum.(y) A sale of land was had (/) James v. Muir, 33 Midi. 226. Where one memorandum was, " I agree to pay, etc., Abram Falk," and was signed Abram Falk, and the other gave Falleok as the name of the payee, and was signed by Sutphin, and there were other contradictions and blunders, it was held that the Statute of Frauds was not complied with. Calkins v. Falk, 1 Abb. App. Deo. 292. ig) Hoflfman v. Larue, Penning. 685 ; (County of) Huron v. Kerr, 3 Grant, Ch. 267. A memorandum as follows : ' ' By this present I give ample and sufficient power to Don Jose de Jesus Noe to use or dispose of my lot, which I hold or have granted, as may seem best to him," does not show the parties to the contract ; Stafford o. Lick, 10 Cal. 16 ; see Backhouse v. Hall, 6 B. & S., for a memorandum held insuffi- cient under an act which required that where a guaranty is given to a firm, and that firm changes, the intention to be bound to the new firm, should ap- pear in writing. (h) Williams v. Jordan, 6 Ch. D. 517 ; 46 L. J. Ch. 681 ; 26 W. R., 230. (i) Jackson d. Gratz v. Catlin, 2 Johns. 259. • 0') Gill V. Bicknell, 2 Cush. 358; where Warrin, the defendant, em- ployed N., auctioneer, as agent, to sell his land, and in the auctioneer's book called "diary," was an entry that the sale of the land was to be made on a certain day on account, "J. War- rin," etc., while in a salesbook was the advertisement, the bids, and pur- chasers' names, together with the en- try, "5251, Chas. Meauade, 190,380" (nothing in this was said as to the seller), and the terms did not give the vendor's or auctioneer's names ; a mem- orandum at the foot of the terms, signed by the plaintiff, stated the purchaes to be from N., the auctioneer. It was held that the Statute was not complied with, though there was a receipt of the deposit of ten per cent., which desig- nated the lots by their numbers, ex- pressed the purchase-money, and stated that " the title is to be given by J. 697 § 405.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XVII. under the following circumstances: the only reference to any Vendor was that the sale was " to close the estate of the late J. M. Thompson," and directing persons wishing, to make in- quiries to " J. W. Weeks, administrator," or "S. H. Cum- mings." Endorsed on the advertisement was "A. E.. Walker, auctioneer, and agent for both parties," and the defendant signed a paper acknowledging the sale, but in this no vendor was mentioned. The defendant's attorney wrote the plaintiff: "I find Mrs. Thompson is much attached to the place;" the purchase-money to be made in this way, . . S. H. Cummings, ^\: $27,000; Mrs. Thompson, j\: .$9000," etc. etc., giving other names. And these were held insufficient memoranda under the Statute of Frauds as not showing a vendor. Walker's endorsement was insufficient, and showed that he was not vendor; the allusion in the advertisement to Weeks and Cum- mings did not indicate that either of them was vendor, and the attorney's letters showed Cummings as a vendee, not a vendor.(/i;) Where on the cover of plaintiff's (NichoUs) book was written " James Nicholls' memorandum of Philo Baldwin's property received by assignment," and where inside was "a list of property charged on schedule as Philo Baldwin's," and on another page was a list of auction sales described as such, following which was " Philo Baldwin's right in Donald Bald- win's estate, John Johnson, $60." It was held that the vendor not being named, the plaintiff could not hold Johnson to his purchase. (?) Where the defendant executed a memorandum as follows, "D. Spooner agrees to buy the, etc., lots of marble purchased by Mr. Vanderbergh (the seller and plaintiff), now lying, at, etc., at Is. per foot," and the plaintiff executed the Warrin and others." This was signed succeeding, and because, as to some " Albert H. Nicolay, auctioneer, by J. lots, no names at all of purchasers were McLoughlin," who was proved to have attached. " No. II, $142.35 ; No. 54, been a clerk, but who was not present $133 per acre, John Springer ; No. II, at the sale; McQuade v. Warrin, 12 $100. 6J, Daniel Wilcoxon ; No. 13, N. Y. Leg. Obs. 251. $176^, Col. Masterson ; No. 14, $11, (it) Grafton v. Cummings, 99 U. S. etc., Col. Masterson ; No. 54, $2.26 per 106. The following memoranda were acre. Carmaok u. Masterson, 3 Stew, held insuf&cient, because it was impos- & Porter, 413. sible to say which lot was sold to which (Z) Nicholls v. Johnson, 10 Conn. 198. man, whether the preceding or the 698 CHAP. XVII.] CONTENTS OF MEMORANDUM — GENERALLY. [§ 406. following: "Mr. J. Vandenbergh agrees to sell to Mr. D. Spooner his several lots of marble purchased by him, now lying at Lynne, at Is. the cubic foot, and a bill at one month." The first writing said nothing as to this last stipulation, and semble because the notes differed, the question came up whether the first was sufficient, and it was held not to be, because Vandenbergh was spoken of only in describing the goods, and it was not said that the defendant agreed to buy from him.(m) A memorandum made by an auctioneer, stating that certain real estate once belonging to a certain person (naming him) had been sold to one Parish, was insufficient for not stating the vendor's name at all, and that of the vendee imperfectly.(n) § 406. The following are examples of broker's raemoranda insufficient as not giving the parties: "Of North & Co., 30 mats, etc.," signed by the agent of North ampks^of & Co., the plaintiff8.(o) Some examples have already insufficient been given of open written contracts, addressed to randa; all the world, regarded as valid under the Statute memo- of Frauds, though of course they did not name the etc^^de-*^' obligee, but there has been some diiference of opinion scription of . . . the parties. on the point, and the Privy Council of Great Britain doubted whether an advertisement addressed to the public, as one offering a reward, was sufficient under the Statute of (m) Vandenbergh' v, Spooner, L. R. 1 Exch. 319, thought by Willes, J., in Newell V. Radford, infra, to be an ex- treme case, and one difficult to under- stand. The following memorandum showed neither the vendor nor the ven- dee nor the price : — " Sale at the Court-house. "Mayer Property" (describing <» it) $6000 ^ " Bal. in 6 mos., * * * b " Possession, etc., Oct. 1, etc. ; note to bear interest." Adrian & VoUers were sought to be charged as purchasers. Mayer v. Adrian, 77 N. Car. 84. (n) Champlin v. Parish, 11 Paige, 408. (o) Graham v. Musson, 7 Scott, 776 ; 5 Bingh. N. R., 606 ; so even, though the memorandum was in the handwrit- ing of the defendant ; Graham v. Pret- well, 4 Sc. N. R. 25 ; 3 M. & G., 368. Where a broker bought for the defend- ant two lots out of a cargo, each lot belonging to different owners, one of the owners being the plaintiff, and the broker delivered each owner a sold note, executed in his, the broker's, name, and not naming the buyer, and to the buyer a bought note, not naming the seller ; the notes were held to be insuffi- cient under the Statute of Frauds ; the court seemed to have thought the notes variant ; Fisenden v. Levy, 11 W. R. 258. 699 § 406.] LAW OF THE STATUTE OP FRAUDS. [CHAP. XVII. Frauds.(2)) The case before the court was that of a written promise addressed to H., and by him handed over to the plaintiff, who carried out the contract.(5') The authority fol- lowed in the case last given was more in the nature of an open ofler, for the paper read, " Sir, I beg to inform you," etc., and was addressed to no one; the memorandum was, however, never intended for the public, but was handed to one to be given another, though in fact it was delivered to W. 0., who gave it to the plaintiff; the Statute of Frauds was held to apply. (r) An order by a board of county commissioners, offer- ing bounty to volunteers for the military reserve of the United States, was held insufficient, because one party only, i. e., the board, appeared in the memorandum. (s) Where a guaranty intended for one is delivered by mistake to another, the latter cannot sue ;{t) nor can two sue on a written guaranty addressed to one of them.(M) Where the plaintiff forbore his claim, as a workman, against one L., because of the following promise made L. by the defendant: "In relation to your workmen's pay have no fear, they shall be paid for all their labor in shoes sent to, yours truly, J. J. Henry." It was held that the memorandum could not be sued upon by the plaintiff, as it does not evidence any contract in which he is concerned. (y) It is sometimes a question how fully the name of a party to the contract must be given. Thus, it was doubted whether it was sufficient description to say " one Parish ;"(w) and the misstatement of the Christian name is ordinarily fatal. («) Omitting the second initial of a name is not material how- ever.(2/) The name entered in his own order book by the agent ( p) Williams a. Byrnes, infra (the (s) IMarion Co. v. Shipley, 14 Cent, judges saying that none of the decided L. J. 112, S. C. Ind., citing analogous cases of advertisement of a reward raise eases. the question of the Statute) ; see Kurtz (t) Grant v. Naylor, 4 Cranoh (U. S. „. Cummings, 24 Pa. St. 37 ; see § 404. S. C), 224. (r/) Williams v. Byrnes, 1 Moore, P. (u) Allison v. Rutlldge, 5 Yerg. 194. C, N. S. 193; 8 L. T., N. S. 69 ; 11 (w) Lang v. Henry, 54 N. H. 59. W. R., 487 ; 9 Jur., N. S. 363, citing (w) Champliu v. Parish, 11 Paige, Williams v. Lake. Oh. 408. (r) Williams v. Lake, 2 E. & E. 354 ; (x) McGavney v. The State, 20 Ohio, 1 L. T., N. S. 57 (Mellish, J., in Cat- 98, citing Grant v. Naylor. ling V. King, infra, said that this case (y) Fessenden v. Mussey, 11 Cusli- Bhould never have been reported). ing, 127. 700 CHAP. XVII.] CONTENTS OF MEMORANDUM — GENERALLY. [§ 407. of the other party, as " Mr. Newell," is sufficient.(2) A memo- randum signed " E. C," and addressed to " M. A.," is sufficient, the pleadings admitting the identity of the parties.(a) § 407. The last point to be discussed under the subject of the parties to be named in the memorandum is how far ^ ^. ■^ . . , . The parties a designation or description will answer as a substi- described tute for a name. Where the principals to a sale made naWontaf' by brokers are named in the bought note, though only ^^""5°™- described in the sold note, it is sufficient.(6) Certain agents, on behalf of Lord Barrington, the defendant, signed a memoran- dum, endorsed on a printed particular of sale, whereby Lord Barrington acknowledged himself to have bought the property described in such particular for a certain sum, and that he had paid so much, and bound himself to complete the pur- chase according to the within conditions; certain other per- sons, auctioneers, subjoined to this memorandum the following: "As agents for the vendors we confirm this sale and acknow- lege the receipt of the deposit." The printed particular of sale described the property, and stated that it belonged to the late Admiral F., and that the sale was by direction of the executors. Romilly, M. E,., held the Statute of Frauds to be satisfied. (c) In a later case, also at the Rolls, a memorandum of sale, written on the conditions of sale and referring to these described the land, and referred to certain particulars contained in another document. The vendees' names were given, but not the vendors' ; the vendees were described as " We, S. N. Scott and E, D. Warne, do hereby acknowledge that I have, etc., purchased," etc., signed by Scott, acting for himself and Warne; one E. C, signed "as agent for vendors, I hereby confirm this sale." The conditions of sale showed that the vendors were in possession, and were a company ; and Jessel, M. E., held that it appearing that the plaintitFs were a company, and were in possession of the land, and that E. C. was their agent, they could recover on above memorandum, being sufficiently described therein for the Statute of Frauds (z) Newell v. Radford, L. R. 3 C. P. (5) Cropper v. Cook, L. R. 3 C. P. 54. 200. (a) Chichester v. Cobb, 1^ L. T., N. (c) Hood v. Lord Barrington, L. R. S. 433. 6 Eq. 221. 701 407.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XVII. to be satisfied. ((Z) In another case the conditions of sale stated the vendors to be " trustees," but their names were not given in the conditions or the memorandum of sale endorsed thereon; vendors' names, however, appeared at the head of the abstract of title, and the purchaser's requisitions were headed, "Bour- dillon to Collins" (the names of the parties), and specific per- formance was decreed.(e) Where the memorandum described (d) Commins v. Scott, L. R. 20 Eq. 16, citing Potter v. Duifield, and Morris V. Wilson. In an equity case on the present point there was a demurrer to a bill for specific performance, which showed the following facts, namely, that the plaintiff, Beer, being desirous of buy- ing certain leaseholds from the defen- dant, the Hotel Company, P., his agent, wrote to the secretary of the company making an offer of £2000 for the interest of the latter; he afterwards made a. new offer of £2500 in a letter to the defendant's solicitors ; the latter sent for P.'s signature a memorandum written on back of conditions of sale ; this provided for the delivery by ven- dors of an abstract of title, including an agreement between Beer of the one part, and company of the other. The bill stated that the word "vendors" in the conditions, etc., of sale meant the London etc.. Hotel, Company, who were in fact the vendors ; that P., for plain- tiff, signed the memorandum ; that the defendants' solicitors afterwards sent P. the conditions of sale with the memo- randum thereon. B. was the author- ized agent of the defendants ; that the contract was a fair one ; that at a pre- vious auction £2500 had been the de- fendants' reserve price ; that the defen- dants' business was buying and selling and dealing with hotels, houses, etc. It was held that the memorandum was sufficient under the Statute of Frauds ; and that, taken with the allegation, it appeared from the memorandum who 702 were the vendors, namely, the defen- dants ; and that their authorized agent was B., who signed ; that the signature of B. was sufficient under 37th section, sub-section 2, of act 1867, relating to companies ; semble, that an auctioneer can make a memorandum for an undis- closed vendor to satisfy the Statute of Frauds ; Beer v. London and Paris Hotel Co., L. R. 20 Eq. 420. Morgan, the plaintiff, to whom a lease of a quarry was about to be made, signed a memorandum, signed by both parties, agreeing, "on behalf of him- self and all parties interested," to sell, etc., the stone quarry, etc., and Worth- ington to buy, "the lease agreed by the lessor to be granted as said R. Worthington" (the defendant) "may direct." It was held that this was suf- ficient to pass whatever interest Mor- gan had, as he undertook to ascertain the title ; Morgan v. Worthington, 38 L. T., N. S. 445. (e) Bourdillon v. Collins, 24 L. T., N. S. 345. Where the complainant in a suit for specific performance had signed a con- tract of purchase written on the con- ditions of sale, and the only descrip- tion of the vendor was in one of the conditions which described him as a trustee acting under a trust for sale, it was held sufficient, as the trust must be created by some instrument in writing that would show it ; James, L. J., thought that " a trustee," " master of such an estate," " possessor of such a title," enough. But Mellish, L. J., CHAP. XVII.J CONTENTS OF MEMORAKDUM — GENERALLY. [§ 407. the vendor as "legal personal representative" of L. T>., and in fact he was not so at the time of the sale, though the first per- son entitled to become so, and became afterwards what he had claimed to be, the memorandum was sufficient; the doubt raised by parol could be explained by parol. (/) In a case in the United States where a plaintiff, the executor of one An- derson, acting as clerk at his own sale, made this memoran- dum, "Sale-bill of the estate of John Anderson, deceased, etc. etc., bought by A. Carroll" (the defendant), " it was held that the writing did not show the vendor, nor even that the sale was on the plaintiff's account as executor.(^) Thus far the rulings seem plain ; but there remains for consideration some cases of greater difficulty which leave the law in an altogether contradictory state. The dicta just quoted, from Catling V. King, show the dispute. In the first of the cases which has given rise to this variety of views the conditions of sale of land stated that it was by " direction of the proprietor;" and the agreement of purchase, giving the price and terms, was endorsed on the conditions of sale, and signed by the purchaser and auctioneer; the condi- tions and particulars of sale described the property, and Jessel, M. R., said, " The question is, can you find out from the mem- orandum who the vendor is ? The property is stated to be put up for sale ' by direction of the proprietor,' therefore the proprietor is the vendor, and is referred to as being the person who employs the auctioneer to sell. What more do you want? It is said that the term proprietor is not a sufficient descrip- tion ; I think that it is an excellent description ; certainly in acts of Parliament the proprietor or owner is frequently men- tioned as the person on whom notices are to be served, and the like."(A) In another decision by the same judge in the • thought "vendor" or " my client" in- (g) Carroll v. Powell, 48 Ala. 302. sufficient. If there were two trustees (A) Sale v. Lambert, L. R. 18 Eq. 3 ; authorized by dififerent Instruments to in Catling i. King Sir George Jessel sell the same land, it would be a case said, that he thought the report of Sale of latent ambiguity ; Catling ». King, i'. Lambert incorrect, inasmuch as the 5 Ch. D. 660; 46 L. J., N. S., Ch. papers sent in showed the vendor as de- 384; 36 L. T., N. S. 526 ; 25 W. R., 551. scribed to be the " owner in fee simple (/) Towle w. Topham, 37 L. T., N. in possession free from encumbrance," S. 309. etc. 703 § 407.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XVII. same volume, the particulars of sale of land at auction spoke of " vendor" sometimes, or " vendors," not naming them ; and the vendee signed an agreement reciting a part payment to the auctioneer, and binding himself to pay the balance but not saying to whom ; the auctioneer wrote and signed "confirmed on behalf of vendor ;" the defendant denied that he was the vendor ; the memorandum was held insufiicient as not show- ing the vendor. Jessel, M. E.., said that he had lately decided that " proprietor" was enough, but that he now held that " vendor" was not ; the evidence left it in great doubt whether the defendant was vendor or not, and a bill by the vendee for specific performance was dismissed. (i) In a late case Sir George Jessel, the Master of the Rolls, said : " The auctioneer only says, ' "We are instructed to dispose of property ; our in- structions are to sell.' That does not show that the person who is selling is the owner or proprietor, which is the same thing. He may be a person having a power to dispose of the property, or what is sometimes called a power simply collate- ral, without any interest in the piroperty. The most familiar case is the case of a trustee with a power of sale. He may be a mortgagee or any person having a power; in fact, he may be a commissioner under an Inclosure Act, having power to sell the land to pay for the inclosure, or a commissioner under the Drainage Act, having power to sell the lands for payment of the waste. He does not show by anything who he is or what he is, therefore there is no description given at all. The mere word ' vendor' will not do, because that is the somebody who sells. When you come to ' proprietor,' there is something to show it, and I do not know why ' proprietor' in many cases is not as good and better than the name of the person. An auctioneer might say, ' We will sell on behalf of John Smith.' _That is not such a good description as, ' We sell on behalf of the owner of Blackaere, situate so and so.' In some cases the description is better than the name. Would any body doubt that the words, ' the queen,' or ' the prime minister,' or ' the president of the council,' would not in- (0 Potter V. Daffield, L. R. 18 Eq. 7 ; 43 L. J. Ch., 472 ; 22 W. E., 585. 704 CHAP. XVII.] CONTENTS OF MEMORANDUM — GENERALLY. [§ 407. dicate known persons? You do not want the actual baptismal and surnames; you only want a sufficient description. In every case the question of what is sufficient may be discussed, but where there is no description, as in the case before us, it is difi'erent. Here it is alleged that we must get that by re- ferring to a letter which was written in which some reference was made to the license, and it is said if the party had looked at the license he would have found the person named who was the person selling. Even the license does not state it as the vendor ; it says it is Mrs. Donnison, but it does not say she is the vendor. "(j) The House of Lords has sustained the Master of the Rolls in his estimate of the meaning of the word " pro- prietors," and held it a sufficient description of a party to a contract to satisfy the Statute of Frauds.(ft) In a common law case which went off on another point, Mellor, J., and Quain, J., doubted whether either "vendor" or "proprietor" was 8ufficient.(^) In a recent case in chancery Judge Fry thought the descriptions, " owner, mortgagee, or proprietor," were suf- ficient ; but not those of " my client, my friend, my princi- pal. "(m) In California it has been decided that the broker may recover his commissions, though the memorandum of agreement describes the defendant as " owner. "(n) To sum up this controversy, it may be said that where a description points directly to one set of persons and but one, and their identity can be shown from the writing or from other written evidence, or by parol evidence which can indi- cate the persons described in the writing without involving ij) Donnison v. People's Catt Co., D. 720; 45 L. J. Q. B., 814; 35 L. J., 45 L. T., N. S. 189 ; see a criticism of N. S. 237 ; 18 Moak, 152 (note), say- Ihis case, 16 Ir. L. T., 41 ; 69 Law ing that Sale v. Lambert and Potter v. Times, 224 ; see Wilmot v. Stalker, 2 Duffield were inconsistent. Can. Law Times, 254; 18 Can. L. J., (ni) Shardlow v. Cotterill, 44 L. T., 178, Ch. D. U. 0. ; Buxton v. Bellin, N. S. Rep. 549, citing Kossiter v. Miller 3 Vict. L. R. Eq. 243, to the effect that (especially Lord Cairns's opinion in "vendor" is an insufficient descrip- Dom. Proc), Sale w. Lambert, and Pot- tion. ter v. Duffield; see as to Shardlow u. (k) Rossiter v. Miller, L. R. 3 App. Cotterill, 69 L. T. 224; 16 Ir. L. T., 41. Cases, 1129 ; 48 L. J. Ch., 10; 39 L. T., (n) Condee v. Barton, 10 Pac. C. L. N. S. Rep., 173; 24 Moak, 712 (note). J. 333, 62 Cal. 1; see McCarthy v. (See Table of Cases.) Loupe, id. 562. (/) Thomas v. Brown, L. R. 1 Q. B. VOL. I. — 45 705 § 407.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XVII. inadmissible oral proof of anything in the contract itself, the writing is sufficient under the Statute of Frauds. It is agreed that the word "vendor" is not such a description, because to ascertain him there must be parol evidence to show not only that there exists a certain person, but also that he entered upon a certain contract which is that set forth in the writing; since, without proof that he made the contract, he is not shown to be the vendor. To say in a contract of sale that a rule requiring both parties to be designated is satisfied by describ- ing one of them only as seller, would be an absurdity, since in such a contract where one buys, the other party must be a seller, whether he is called so or not. So far there can scarcely be disagreement, but whether " owner" or " proprietor," is the same as " vendor" or not has been the difficulty. If no one but the owner or proprietor can be the vendor. Judge Mellor and Judge Quain were right in their doubts. One may, however, contract with an agent, who as yet unauthorized relies upon a ratification, or with one who contracts to sell what he hopes to get, as is done every day in the Stock or the Corn Ex- change, and it is the purpose of such laws as the Statute of Frauds to leave no opening for a doubt whether the vendee is agreeing for property or moonshine. Where, further, the vendor can himself only have obtained what, as " owner," he under- takes to sell, through possessing in his own favor such evidence of title as the Statute of Frauds permits, or by being invested with the property by an act of law, such as descent, etc., then in endeavoring to learn who is meant by the " owner," we must go to other evidence equally valid as the writing* we start with, or fail altogether to identify who is meant by "owner;" in the latter case the memorandum fails to estab- lish a contract, and no violation of the Statute takes place. The reasoning in Catling v. King, as to the force in this con- nection of the word " trustee," applies equally well to the word " owner," and might perhaps be safely extended, for one can as little become owner of property, except by a writing, by oral evidence as sanctioned by the Statute, or by an act of the law, as one can become trustee in any other way. So far as the Statute is concerned, oral evidence permitted by it, as, for example, parol proof of earnest paid or of the delivery 706 CHAP. XVII.] CONTENTS OF MEMORANDUM — GENERALLY. [§ 407. and acceptance of chattels, or parol proof of such contracts as those to which it makes no reference, is of equal force with a writing. And, therefore — to put an imaginary case — under a memorandum in which the unnamed owner of a chattel con- tracts as " owner," in, say, a contract signed by his agent to sell it, it would appear to be no violation of the Statute of Frauds for the plaintiff to produce evidence that A. B., under a verbal contract of previous sale, accepted the chattel in ques- tion, which was delivered to him by his vendor, and that, therefore, he, A. B., is the " owner" referred to in the memoran- dum. No proof is adduced but 8u«h as is either required or allowed by the Statute of Frauds. Whether it is expedient to extend the rule of Sale v. Lambert to contracts relating to personalty is a different question,. and as to it no opinion is here intended to be expressed. Before leaving the subject of what is such a sufficient description of the parties as that it is not neces- sary to have given their names, there are two or three Ameri- can cases to be noted. A promise to one to pay his " work- men" was held an insufficient designation, and parol evidence offered by the plaintiff" to show that he was one of the prom- isee's workmen was rejected. (o) But under a statute similar to the Statute of Frauds, a promissory note drawn to the order of those persons who should be appointed trustees by a certain convention was sustained. (p) So a memorandum written by the cashier of a bank which said, " Forward me the past due note, etc., of, etc., and I will pay it," was held to bind the bank.(^) In the note will be found authorities which furnish examples of memoranda regarded as sufficient or insufficient in their description of the parties to the contract.(r) (o) Lang V. Henry, 64 N. H. 59. let, 5 Lans. 385 ; Barry u. Law, 1 ip) Caples V. Brariham, 20 Mo. 247. Cranoh, C. C. 77 ; Dilworth u. Bost- (?) May V. National Bank of Malone, wick, 1 Sweeny, 582 ; Hope v. Dixon, 22 9 Hun, 111. Grant, 442 ; Kllnitz u. Surry, 5 Esp. (r) Sufficient : Linton u. Williams, -267 ; Wheeler v. Collier, M. & Malk. 25 Ga. 391 ; McConnell v. Brillhart, 123 ; Wilmot v. Stalker, 2 Can. Law 17 111. 360; Brown v. Whipple, 58 N. Times, 254, Ch. D. U. C. H. 229. Insufficient; Stowell u. Has- 707 § 408.] LAW OF TBE STATUTE OF FRAUDS. [CHAP. XVIII. CHAPTER XVIII. THE CONTENTS OF THE MEMORANDUM— THE SUBJECT- MATTER OF THE CONTRACT— THE PRICE. § 408. Subject-matter of the contract generally ; oral evidence to apply description. § 409. General examples of sufftcient description of the subject-matter (land) ; description by the nature of the interest. § 410. Subject-matter ascertained by reference to other writings ; descrip- tion by name of land, by situation, etc. etc. § 411. Insufficient memorandum gen- erally ; description by the interest in the laud. § 412. Description of land by name or situation. § 413. Memoranda sufficiently describ- ing the subject-matter (personalty). § 414. Memoranda insufficiently de- scribing the subject-matter (person- alty). § 415. Memoranda sufficiently describ- ing the subject-matter (choses in action) ; insufficient description. § 416. Oral evidence to apply the writ- ing to its subject. § 417. The price. § 418. Examples. § 419. The general rule questioned. §408. Subject- matter of the cou- tract gen- erally ; oral evi- dence to apply de- scription. must in The memorandum to comply with the Statute must indicate the subject-matter of the contract,(a) which must so clearly be shown as to admit of identifica- tion and separation. (6) In order to justify a decree for specific performance the memorandum must de- scribe and identify the particular lot or tract of land, or must with certainty furnish the means of identify- ing it ;(c) or, as was said in another case, the writing itself identify its subject by reference to something (a) Noyes i). StaufiF, 5 Oregon, 458 ; Mead v. Lawson, 1 How. App. Cas. 397 ; McGuire v. Stevens, 42 Miss. 730 ; Enos V. Hunter, 4 Gilm. 218 ; Wright c. Weeks, 25 N. Y. 155: 3 Bosw., 272; Blair v. Snodgrass, 1 Sneed, 25 ; Dode- man u, Barrow, 11 La. Ann. 87 ; Fer- guson V. Staver, 33 Pa. St. 413 ; Lewis a. Wells, 50 Ala. 205 ; Hyde v. Cooper, 708 13 Rich. Eq. 250 ; Wheelan v. Sullivan, 102 Mass. 206 ; Ayres o. Gallup, 44 Mich. 13 ; see 11 U. S. Dig. F. S., p. 845 et seq. ; see § 426. (6) Madeira v. Hopkins, 12 B. Mon. 604 ; Pulse v. Miller, 81 Ind. 190. (c) Parrish v. Koons, 1 Pars. Eq. Cases, 94, citing a number of oases. CHAP. XVIII.] CONTENTS OF MEMORANDUM — SUBJECT. [§ 408. outside of it, by resorting to which certainty may be at- tained ;(c?) and even if the Statute of Frauds is not set up, the court may refuse specific performance, because unable to discover the contract sufficiently to make a decree. (e) The identification must be, it has been said, without recourse to oral evidence ;(/) but this broad statement needs to be quali- fied by the distinction that " where a sufficient description is given parol evidence must be resorted to in order to fit the description to the thing ; but where an insufficient description is given, or where there is no description, such evidence is inadmis8ible."(^) The evidence is admissible to construe and apply a description, not to show what was intended to be expressed. (A) Speaking of the cases on the subject the Su- preme Court of Michigan in a recent case said they agreed in this, that it is not essential that the description have such particulars and tokens of identification as to render a resort to extrinsic aid needless when the writing comes to be ap- plied to the subject-matter. The terms may be abstract and of a general nature, but they must be sufficient to fit and com- prehend the property which is the subject of the transaction ; so that with the assistance of external evidence, the description, without being contracted or added to, can be connected with and applied to the very property intended, and to the exclu- sion of all other property. The circumstance that in any case a conflict arises in the outside evidence cannot be allowed the force of proof that the written description is in itself insufficient to satisfy the Stat- ute. Whether the description answers the requirement of the Statute is a question which occurs on the face of the papers, and is naturally preliminary to the introduction of testimony to connect the contract with the property, and the decision of it would regularly seem to be required on an inspection of the documents, and before the arrival of opportunity for any con- (d) Fisher v. Kulm, 54 Miss. 483. (h) McGuiret). Steveiis,>42Miss. 724; (e) Hudson v. King, 2 Heisk. 571. Scarritt v. St. John's M. E. Church, 7 (/) Miller v. Campbell, 52 Ind. 127. Mo. App. 178; see Skinner v. M'Doual, ig) Murdock u. Anderson, 4 Jones's 2 De G. & Sm. 264 ; 17 L. J. Ch. 347 ; Eq. 77 ; see Pulse u. Miller, 81 Ind. Wills v. Ross, 77 Ind. 1 ; MoCorry v. 190. King, 3 Humphr. 267. 709 § 408.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XVIII. fliet of the kind referred to. Moreover, it would hardly be deemed reasonable to allow the validity of the written descrip- tion to depend on the ability of a par'-y to bring about a con- flict in the outside testimony. (j) Sir George Jessel, in a recent case, said that no memoranda or maps or the like will prevent the necessity of recurring to oral evidence to ascertain the subject-matter of the contract. (J) It has been held that the mis-description or non-description must begross.(A:) The omis- sion from a deed of a descri})tion of the land is fatal, and can- not be helped by parol ;{l) nor is oral evidence admissible to supply a defect in the statement of the subject-matter in a written contract relating to land.(m) In one or two cases equitable part performance has been given great force in ex- cusing defective descriptions of the subject-matter. Thus, where the defendant wrote, "Whereas William Pattison and John Allan have been at very large expenses in both their farms, .... I desire that they may not be raised in their rents, etc. etc., as I have promised this order should be given by me as not willing to grant them leases, .... as I know full well the rent would not be paid for some years. I hope this will be duly observed by those in possession." The Lord Chancellor Thurlow said that this was manifestly an agree- ment to grant some kind of interest which is not expressed, in consideration of certain improvements to be made upon the farm, and he directed that a master ascertain wliat lease would be equivalent to the value of the imjirovements less the enjoyment which the defendant had already had.(n) It (0 Eggleston c. Wagner, 46 Mich. Samuel Romilly to Lord Colchester) ; 610, citing cases. see Lord Redesdale's criticism upon (j) Shardlow v. Cotterill, L. R. 20 this case in Clinan v. Cooke. Where Ch. Div. 90; 51 L. J. Ch., 353, C. A., Miller, the owner of the legal title, reversing Kay, J., 18 Ch. Div. 280 ; 50 gave Antlo, an alleged cestui que trust, L. J. Ch., 613. who occupied the land, a receipt for the (i) Hooper v. Laney, 39 Ala. 338. purchase-money, " paid for land," the (I) Pargond v. Pace, 10 La. Ann. court said that if the Statute of Frauds 615; so of a mortgage ; Keiffer k. Starn, applied to the case, "the receipts for 27 id. 282. money ' for land,' shown to be the land (m) Ripley v. Page, 12 Vt. 355 ; see in contest, fortified by the admission Brown v. Berry, 6 Coldw. 102. by the personal representative of the (n) Allan v. Bower, 3 Bro. C. C. 150 knowledge and personal duties of Mil- (the note of a case supplied by Sir ler, constitute a sufficient memorial," 710 CHAP. XVIII.] CONTENTS OF MEMORANDUM — SUBJECT. [§ 409. was suggested in a Massachusetts case that the words " the land" were sufficient, and this though the case showed no part performance. The suit was for use and occupation, and the defence was that the land had heen sold to the defendant, who relied on a promissory note given by the plaintiff to him, and on which was endorsed, "N. B. This note to be given up when I give him a deed of the land which I have engaged to give him." The defendant had previously paid the plaintiff an amount the same as that stated in the note. The defence was held to be sufficient, and it was said that, even in a suit for specific performance, the memorandum might have been sufficient.(o) Where the description is sufficient, a misunder- standing by the defendant, who knew what he was buying, is not a defence to a bill for specific performance. (p.) § 409. To find a logical order under which to classify the numerous decisions in which the sufficiency of the statement of the subiect-matter of the contract has General ex- • • 1 • -1 1 mi amples of been drawn in question is almost impossible. The sufficient and tliat even infant heirs are bound ; Miller v. Antle, 2 Bush, 409. And where a memorandum stated that the parties thereto had " swapped farms," it was held that possession taken of one farm, coupled with wiU- ingness of the owner of the other to deliver it, made the want of a descrip- tion of the land immaterial ; Overstreet V. Rice, 4 Bush, 3. Where the vendee's title-bond de- scribed the land as "ten acres," etc., "adjoining him" (the vendee) "on the north," and the ten acres were " laid off" to him, and he took and kept possession for a long period, the designation was considered to be suffi- cient ; Hauley v, Blackford, 1 Dana, 1. Under the Civil Code of Louisiana the quantity of land passing by a con- veyance may be shown by the posses- sion taken thereunder, when the con- veyance itself does not show ; Purl v. Miles, 9 La. Ann. 270. (o) Little V. Pearson, 7 Pick. 301. A written contract provided for the building of several houses all alike and of equal value, and that one of the par- ties was to have one not especially de- signated, the court on parol evidence would indicate a house and enforce the contract ; Ellis v. Burden, 1 Ala. 466. Where the parties were partners who, on making a settlement, agreed that the plaintiff should briug into the settlement the land he owned in Union township (county of, etc., state of, etc.), provided that the number of acres brought into the settlement by the defendant shall not exceed those brought in by the plaintiff, and the latter owned 200 acres, it was held that the defendants could select 200 acres of their land, and that the mem- orandum was sufficiently definite ; Car- penter V. Lockhart, 1 Carter, 440. (p) Nene Valley Drainage Commis- sioners V. Dunkley, 4 Ch. D. 1. 711 409.] LAW OF THE STATUTE OP FRAUDS. [CHAP. XVIII. description of the sub- ject-matter (land) ; description by the na- ture of the interest. cases of Realty and of Personalty will call for a sep- arate consideration, and a further division, into sufficient and insufficient memoranda, will make a simple arrangement. Under these last heads an ar- bitrary cataloguing into groups of such descriptions as, in fact, are most commonly found, seems the best that can be done. A usual way of identification is for a contract- ing party to refer to property as my or his land, etc., followed by a general reference to the locality. Thus, " My lot on the flat in the town of South Bend, etc., on the river bank," is suffi- cient ;(§') or, "All my interest in the southwest quarter," etc., giving section, county, state, etc. ;(r) or, "A certain farm in Ash by, commonly called, etc., which farm was bought by me," etc. ;(s) or, " Said land is all that piece bought of Rose by Thomas Smith ;"(<) or, " My house and lot," giving the town, county, and state; the vendor having but one house, etc., in that place, is a sufficient description in a deed ;(m) or a memorandum which describes the propert}' to be a certain town lot, that the title stood in the name of a certain third person, but admitting that the property belonged to the plaintiff ;(») or, where giving a full description of a certain section, the writing stated the subject of the contract to be "all my in- terest" therein, "said quarter section being the property at this time of William Torr, Sr.," etc.(M)) B.'s "right" in C.'s " estate" is a sufficient description. (a;) Where a memorandum uses the phrase " freehold equities," a list of houses, in which (?) Coleriok v. Hooper, 3 Ind. 318. (r) Torr v. Torr, 20 Ind. 122. (s) Bird V. Richardson, 8 Pick. 252. (0 Smith's Appeal, 69 Pa. St. 474. ' ' Tract of land I bought of Jaqies and Charles IVIcCartney, lying in Green County," is a sufficient description in a devise, and oral evidence is admissi- ble to apply it. McCorry v. King, 3 Humph. 2«7. (u) Carson v. Ray, 7 Jones, Law, 610 ; see Phillips u. Hooker, Phillips, Eq. 193. (!)) Packard c.. Putnam, 57 N. H. 50. (w) Torr v. Torr, 20 Ind. 122. Jane 712 Jacob, a vendor, wrote, through her so- licitor : "I have closed with Mr. Wal- dron for this place ; you will kindly ar- range or draw deed, so that I may get out of my responsibility to Mr. B," etc. (seni6?e the writer's landlord). This was written from the premises in suit. Parol evidence was admitted to show what was meant by "this place," and the interest meant was interpreted to be Jane Jacob's whole interest, which was that of a tenant. Waldron v. Ja- cob, 5 Ir. Rep. Eq. 131. {x) Nichols V. Johnson, 10 Conn. 198. CHAP. XViri.] CONTENTS OF MEMORANDUM — SUBJECT. [§ 409. the person referred to in the memorandum had an equity of redemption, may be admitted to explain the above phra8e.(y) Where the question was as to the proof of a certain alleged new lease, made by the lessor to his previous lessee, and a receipt was given for a payment which was at the increased rate of the new lease, and which was described as " balance" of rent due, and under the old lease there was no rent due, while under the new lease a third party was to pay part and the plain tiff the rest, semble this sufficiently described the interest.(2:) It has even been held that a description in a sherift's return is sufficient which reads, " Sold the tract in the name of . . Massey to Hyskill," containing 300 acres, etc ;(a) or where, after a vague geographical description, the writing particular- ized the latid as that which the writer had formerly bought of the vendee, etc. (6) A description of land as the "property purchased at four hundred and twenty pounds at the Sun Inn," etc., is sufficient; see § 350 ;(c) or a description of the lands held by the defendant in a certain county and state, by virtue of his marriage with 80-and-so.((^) The land "whereon the (y) Roots V. Snelling, 48 L. T. 216. (z) Nunn v. Fabian, L. R. 1 Ch. App. 35; 35 L. J. Ch., 141. (a) Hyskill v. Given, 7 S. & R. 871 ; see Thomas v. Blaokemore, 5 Yerg. 127 (which was a sheriff's return of all a certain tenant's interest in certain land). (6) Atwood V. Cohb, 16 Pick. 230. (c) Shardlow u. Cotterill, L. R. 20 Ch. Div. 90 ; 51 L. J. Ch., 353, C. A., reversing Kay, .7., in 18 Ch. D. 280 ; 50 L. J. Ch., 613; 44 L. T. Rep., N. S. 549. The Master of the Rolls thought that the receipt alone was sufficient, but taking the other memo- randum, was much strengthened. The rule of sufficiency of description is the same under section 4 as under section 5 (Wills) ; and ' ' property purchased at a certain place, of which a certain per- son was owner," would certainly be enough in a devise, and "property" is not as vague as "vendor." The only word used in a statutory assign- ment by a debtor for the benefit of his creditors is "property." Baggallay, L. J., cited Bleakley v. Smith and Ogil- vie (J. Foljambe. Lush, J., noted that the memorandum used the word "transfer," indicating that personalty was not meant, and that a day was fixed for giving up possession, which also indicated realty. (rf) Higdon V. Thomas, 1 H. & G. 145. Where the defendant, under date of August 30th wrote, " I cannot sell at your offer, but I am in a strait, as I see no way to pay my note this fall, and in order to do it I will sell enough at the contract price to pay it, or I will give 2000 acres for my notes, you to select in 80 acre lots ;" and the defendant's pleadings admitted an offer on August 26th by the plaintiff to pay the defendant $20,000 for the land, which offer was refused. The letter of August 30th, taken with the pleadings, 713 § 409.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XVIII. vendor resides" is sufficiently described. (e) There is, indeed, a class of cases where the principal, if not the only means of identifying the property contracted for, is the description of the interest therein which the person contracting has held. Thus, where a soldier entitled to land under a resolution of the legislature wrote on the back of his discharge from mili- tary service that A. B. was entitled to all the lands to which he, the soldier, was entitled from the state, etc. ;(/) it is true that the interest was held not to be one within the Statute of Frauds ; or generally contracts, which affect, not specially a certain tract, but all the right, title, and interest of a person in any property. Thus where a father wrote, speaking of his daughter, " She shall be entitled to share in whatever property, etc.," the description was considered suf- ficient, and as meaning her share as a child under the law.(^) So a return by a sheriff of the sale of all a man's right, title, and interest in certain lands, describing them, is sufficient ; the interest being a leasehold. (A) Where a sale was advertised to be for account of E.., and the defendant having elicited in the testimony what R.'s interest was, viz., a share of the pro- ceeds of the land sold upon certain conditions, cannot object that a writing is being impeached by parol. (i) The following is sufficient: — "Received of James Henderson three hundred dollars in part payment of a certain tract of land, being my own head- right, lying on Rusk Creek, in the cross-timbers, this 23d March, 1859. ' Israel Earles."(ji') was held to show what lands were scription must refer to the lot for the meant, namely, those which the plain- purchase of which the plaintiff ad- tiff had proposed buying ; Washburn vanoed the money, and the answer to (7. Fletcher, 42 Wis. 170. the bill showed that this was the par- (e) Simmons u. Spruill, 3 Jones's ticular lot ; Connell w. Mulligan, 13 Sm. Eq. 9. & Mar. 390. Where a memorandum stated an (/) Fisher v. Fields, 10 Johns. 495. agreement by the defendant to take (9) Laver v. Fielder, 32 Beav. 5. the plaintiff into partnership in a (A) Thomas v. Blackemore, 5 Yerg. certain lot, in the city of Jackson, in 127. consideration of the plaintiff's paying (i) Briggs v, Munchon, 56 Mo. 470. $165, etc. It was held that the de- (_j) Fulton v. Robinson, 55 Tex. 404. 714 CHAP. XVIII.l CONTENTS OF MEMORANDUM — SUBJECT. [§ 410. The doubt sometimes is not what property is meant, but the interest therein intended to be passed. Thus, the words, " The title of H. Morgan and all other parties interested in the assigning of such lease to be accepted," and the state- ment in the bill that the defendant, had accepted the title, show sufficiently the interest sold to bind a demurring defen- dant.(A:) It has been held that a memorandum which does not state the time from which a lease agreed upon is to run is good, as the date will be assumed to be that of the memoran- dum.(/!) But, on the contrary, in Ireland a memorandum of contract of lease not giving the date of the beginning of the term was held insufficient; the term will not be assumed to run from the date of the memorandum. (m) § 410. As has just been seen, the subject-matter, like any other part of a contract, can be shown by taking g^bject- together two or more writings. So a statement in matter as- ',.,,. . p .,,. certained a bill in equity or a willingness to assume the en- byrefer- cumbrance on certain land is a sufficient description other writ- for a reference to the writings, evidencins: the en- '°8^^^ i..*^®". cumbrance will disclose the latter.(n) So, also, a nameoftiie memorandum as follows is sufficient: "I have this situation, day sold the house, etc., in Newport, to J. Owen, ^'"^^ ^*''^' (i) Morgan v. Worthington, 38 L. T., N. S. 445 ; see Inge v. Birmingham, etc., R. W., 3 De G. M. & G. 664, for a doubt as to the interest contracted for. Where a, broker having no interest in the property gave a written promise to give a lease of a certain tavern, naming it, "subject to my being able to obtain the lease," it is, semble, enough, for what the lease was might be shown by parol evidence ; and where one memorandum spoke of the lease and "everything," and a previous pa- per described the lease, " fixtures, and utensils, etc.," the two together satisfy the Statute of Frauds ; Horsey v. Gra- ham, L. R. 5 C. P. 13. (1) Jaques v. Millar, 6 Ch. Div. 155 ; 37 L. T., N. S. 151 ; 47 L. .J. Ch., 544; 25 W. R., 847, relying on Doe v. Benja- min, and distinguishing Blore u. Sut- ton as a peculiar case ; and the report does not show whether the memoran- dum bore the date it was actually signed; and Cartwright v. Miller and Nesham v. Selby as a case where re- pairs were agreed upon, so that the date of the lease could not well be the time from which the term was to begin. (m) Wyse v. Russell, L. R. Irel. 11 Ch. D. 176, citing Marshall v. Berridge, as overruling .Taques u. Millar ; and Blore V. Sutton, was shown to be a case where there was a date for the begin- ning of the lease stated in the memo- randum ; see Carroll u. Williams, 1 Ont. 153. (n) Ives c/. Hazard, 4 R. I. 14 ; see Schmeling v. Knisel, 45 Wis. 328. 715 § 410.] LAW OF THE STATUTE OF FKAUDS. [CHAP. XVIII. for, etc., ... as soon as the deeds can be had from Mr. Deere," as a reference to the latter would show what house was meant.(o) Where the property has a name, a reference to it by such name is enough. (p) A description of the land by its contiguity to other properties is good, especially where the metes and bounds are all given, and the measurements start from and call for well-known marks.(^) A description of lands as being in such a county, containing so many acres, and adjoining lands of A., B., and C, is sufficient.(r) So a descrip- tion of land as a half section, contiguous to that owned by the person to whom the memorandum was addressed. (s) So a written promise as follows: "I will give John Sampson one hundred acres, etc., next to either Stokely or ITewell . . . or I will give him the two hundred acres. "(i) The location of a property as being in a certain town may be definite enough,(M) and it is not necessary to give the county and state if these are otherwise ascertainable. (w) A description, "Three houses (o) Owen V. Thomas, 3 M. & Kee. 353 (the defeudantj moreover, by declining an inquiry before a master, waived the uncertainty, if any). (p) Godwin v. Francis, L. R. 5 C. P. 295 (tlie Liddington estate) ; Crooks v. Davis, 6 Grant (Can.), 319 (Runymede estate) ; Powell u. Dillon, 2 B. & Beat. 416 ("the Quarry or Hill farm"); Naylor v. Goddall, 26 W. R. 162; 37 L. T., N. S. 422 ; 47 L. J. Ch., 55 ; and Horsey v. Graham, supra (naming tav- erns by their name) ; McMurray v. Spicer, 16 W. R. 332 (" the mill prop- erty," etc., In a certain village); Barry V. Coombe, 1 Peters, 651 ("your | E. B. wharf," etc.); Mizell v. Burnett, 4 Jones, 252 ("Watling tract on the Roanoke River"); Farris v. Carpenter, 1 Head. 608 (" The Peter tract"); Sim- mons 17. Spruill, 3 Jones, Eq. 9 (the land "whereon the vendor resides," or the so-and-so farm) ; Bird u. Rich- ardson, 8 Pick. 252 (" certain farm situated in Ashby, commonly called 716 the Waters farm") ; Ross v. Baker, 72 Pa. St. 189 ("Fleming farm on French Creek"). (q) Ryan v. Hall, 13 Mete. (Mass.) 521 ; Pinckney v. Hagadorn, 1 Duer. 95 ; Hooper v. Laney, 39 Ala. 338. (r) Shaver v. Shoemaker, Phill. Eq. 327. (s) McConnell u. Brillhart, 17 111. 362. (0 Simpson u. Breckenridge, 32 Pa. St. 290. " All that piece, etc., of land notified hereunder, being a portion of Crown allotment, 9 sect. 82, Parish, of Puebla County grant, according as it is now fenced by George Cunningham," with a rough map attached, was thought to be insufficient, that is to say, a per- son from it could not locate the land. Cunningham u. Gundry, 2 Vict. L. R. Eq. 200. (li) Packard v. Putnam, 57 N. H. 50 ; Carson v. Ray, 7 Jones, Law, 610 ; Mc- Murray V. Spicer, 16 W. R. 332. («) Briggs V. Munchon, 56 Mo. 470. CHAP. XVIII.J CONTENTS OF MEMORANDUM — SUBJECT. [§ 410. in the town of Revere, two are French roof," is 8ufficient.(w) The failure to name the town is not necessarily fatal to the sufficiency of the description ; and where a receipt, dated at Chicago, recited the money to have been given in part pay- ment of certain lots of land, giving their number and the number of the block they were in, parol evidence was admit- ted to show that the land was situated in a, certain addition to Chicago.(a;) Where the town is named besides, there is still less doubt.(2/) And where a memorandum was executed at Boston, and described the land as a house on Church Street, and parol evidence showed that there was no Church Street in Boston, but that there was in Somerville, and that the writer of the memorandum owned one house in the latter place in Church Street, the description was held to be sufficient.(2) And generally a description by a street is enough,(«) especially whei'e no latent ambiguity exi8ts.(6) Designating a lot by its number may be sufficient, through reference to a plan ;(e) and, as has been seen, the number of the lots, and of the block in which they lie, may be enough, without showing the town where they are 8ituate.(ci) A reference to the description of the land in the public records is sufficient, as by its number or designation in a list or plat of town lots ; or by the county, township, section, or part of a 8ection,(e) as shown by the sur- vey of the state ;(/) and a reference to land by its designation (w) Slater v. Smith, 117 Mass. 98. Smith, 117 Mass. 98 ; Bleakley b. Smith, (x) Fowler v. Eedican, 62 111. 408. 11 Sim.' 150 ; Hammer v. McEldowney, (!/) Winslow V. Cooper, 104 111. 242 ; 46 Pa. St. 334 ; Hand v. Grant, 5 Eppich V. Clifford, 4 Col. L. Rep. 97 ; Sm. & M. 508 (" lots 4 and 5 in square 17 Cent. L. J., 380 ; 6 Col. 493. on south of Main Street," etc.). («) Mead u. Parker, 115 Mass. 414, (6) Hurley v. Brown ; Scanlan v. citing Hurley v. Brown, infra (some of Geddes, supra. See Carson u. Ray ; the court dissenting) . Whether a mem- Phillips v. Hooker, orandum, " I propose my house on (c) Scarlett v. Stein, 40 Md. 528. Eighth Street, subject to $2000, for one (d) Fowler v. Redican, supra. house on Delaware Avenue, and one (e) Higdon v. Thomas, 1 H. & G. farm in Fairfax County, Va., and $575 145 ; Bourland v. Peoria, 16 III. 542 ; in cash," signed hy both parties, is Colerick u. Hooper, 3 Ind. 318 ; Fugate sufficient, was not decided in Bigelow v. Hansford, 3 Litt. 262 ; McWilliam V. Armes, 5 Morr. Trans. 79. u. Lawless, 17 No. West. Rep. 349, S. (o) Hurley v. Brown, 98 Mass. 545 C. Neb. ("Amity Street, Lynn, Mass.") ; Scan- (/) Torr v. Torr, 20 Ind. 122; New- Ian V. Geddes, 112 Mass. 15 ; Slater v. ton v. Bronson, 13 N. Y. 593. 717 § 411.1 LAW OP THE STATUTE OF FRAUDS. [CHAP. XVIII. Insufflcient memo- randa gen- erally ; description by the in- terest in the land. in the Land OfBce,(^) even when the land is such as the grantor is entitled to receive from the state as a citizen, and which has yet to be ascertained from the Land Office and located. (/^) § 411. So much for the sufficient memoranda; those insuf- ficient admit of mainly the same grouping. First, those vhere a description of the subject-matter may be said not to be given at all, as where a paper describes certain persons as being the assignees of the vendor, but does not state what is assigned ;(«) or the receipt for the purchase-money of land not describing it ;(j) or a description in the return of a fi. fa. which does not indicate the land. (A;) A description, though attempted, may be too vague; as to lease all the water neces- sary for a canal, or to convey such land as might be neces- sary ;(^) or "terms for letting and taking coals ;"(m) or a return by a sherifi' that he had sold lands of the defendant to the amount of the demand against the latter ;(n) or putting down one's name on a subscription-list for "a lot to build on ;"(o) or " tract of land" to so-and-so at such a price ;(p) or a memo- randum of the sale of a number of houses which does not give the number.(5') In the note will be found- a few additional cases on the present point.(r) A partial description is insuf- ficient, as where a written ofi'er refers to the defendant's one- half of a mill, but not the other half ;(s) or where the writing omits a lot which parol evidence shows belongs to the block (g) Robinson v. Garth, 6 Ala. 208. {h) Peters u. Phillips, 19 Tex. 74; see Fisher u. Fields, 10 Johns. 495, sitpra, (0 Parker v. Bodley, 4 Bibb. 102. 0') Patterson v. Underwood, 29 Ind. 607 ; Welsh v. Bayaud, 21 N. J. Eq. 186 ; Mnrdock u. Bain, 4 Jones's Eq. 77 ; Ellis v. Deadman's Heirs, 4 Bibb. 467. (i) Thomas o. Turvey, 1 H. & G. 438 ; see, on the general point of inade- quacy of description. Smith i/. Arnold, 6 Mason, 417. (0 State V. Baum, 6 Ohio, 387. 718 (m) Price !-. Griffiths, 1 De M. & G. 83. (n) Jackson d. Gratz u. Catlin, 2 Johns. 259. (o) Church «. Farrow, 7 Rich. Eq. 378. (p) Meadows v. Meadows, 3 McCord, 460. (?) Seagood v. Meale, Prec. Ch. 560. (r) Dilworth v. Bostwlck, 1 Sweeny, 586 ; Blair v. Snodgrass, 1 Sneed, 25 ; Evans v. Ashley, 8 Mo. 177; Parrish o. Koons, 1 Pars. Eq. Gas. 95. (s) Love V. Neilson, 1 Jones's Eq. 339. CHAP. XVIII.] CONTENTS OF MEMORANDUM — SUBJECT. [§ 411. in suU.(<) So a description which gives rise to a latent am- biguity, as ''a tract of about three acres" in a certain township, county, and state, where the evidence showed that the party had other lands in the township.(M) So an erroneous descrip- tion, as one stating the property situate in a corner of the public square, and the property was not either in or adjoining the square.(i)) A memorandum which refers to the property as "my lot" is insufficient; though, as has been seen, such a means of identification, taken with other points of descrip- tion, may be euough.(w) "Your interest in the real and per- sonal estate" is insufficient description, and oral evidence is inadmissible under the Statute of Frauds to show that the interest was that of the plaintifi"s, in the estate of the deceased father of the plaintiffis, and of the defendants.(x) A bill for money due on " property sold," and receipt for money paid " on lot of ground formerly occupied by A. J. Ward," are insufficient, though the payer and receiver of the money were named in both memoranda, and were the same persons ;(2/) and whether or not the property can be ascertained by a descrip- tion of the interest which some persons hold in it is enough or not, the interest or title intended to be transferred by the contract must clearly appear.(2) Where a receipt recited the payment by Florence, the de- fendant's testator, " for the purchase of the property at the cor- ner of, etc., now in his occupancy, and sold by me to him," and another receipt, both being signed by the plaintifif's ancestor, read " on account of purchase of building 17th St. and Penna. Ave.," and the signer of the receipts had only a half interest, it was held that the writings were insufficient in not ascer- taining what land was sold, whether the portion occupied by Florence or the whole lot, and were therefore not valid proof under the Statute of Frauds to prove a verbal agreement with (t) Coles J'. Bowne, 10 Paige Ch. supra; Holms v. Johnston, 12 Heisk. 635. 158. («) Troup V. Troup, 6 W. N. Cas. (r) Dickinson u. Kawson, 12 N. Y. (Phila.) 90. V7eek. Dig. 536 (S. C. N. Y.). (k) Baldwin v. Kerlin, 46 Ind. 428. (y) Fisher v. Kuhn, 54 Miss. 483, (w) Stafford v. Lick, 10 Cal. 16 ; see citing Holmes v. Evans, etc. (j) Seagood v. Meale, Free. Ch. 560. 719 § 411. J LAW OF THE STATUTE OP FRAUDS. [CHAP. XVIII. the plaintiff's ancestor to buy either his interest or the whole lot.(a) All the farm " in Pompey in the tenure and occupa- tion" of the defendant is an insufficient description.(Zi) Where the word " take" was used it would be inferred that a fee simple was intended,(c) but where the writing shows that the parties contemplated a lease which they fail to describe, the evidence is insufficient. (f?) In a similar case the court said: "Nor do I think I can spell out from the memorandum itself what terra was intended. The word take in the purchase of a fee simple estate may mean a purchase of all the vendor's interest, but it is clear that the memorandum in this case contemplates a lease. I am not then helped by the word take, for I should still have to make out whether the same lives or different lives, or a long term of years, was intended. "(e) Where a re- ceipt read, " Received of W. Dolling the sum of ... as part of purchase-money of £390 of four cottages, Nos. 23, etc., . . . the lease and counterpart to be paid for by Mr. Dolling," said Wood, V. C, " the agreement stated in the bill is so nearly a perfect agreement that I regret that I cannot give effect to it. It defines the property to be sold and the price to be paid for it, and if nothing had been said about the interest to be taken by the purchaser the Statute would have been satisfied, for the law would then have implied that the whole interest of the vendor was contracted for. Unfortunately, I find the words, ' the lease and counterpart to be paid for by Mr. Dol- ling.' It is plain therefore that the agreement is not for a conveyance or an assignment of the defendant's whole interest, but for an under-lease. Indeed the contract stated in the bill is for the entire term, 'less a reversion of a few days,' but how many days ? No doubt it is the practice in these cases to give the purchaser the entire term, less two or three days, and the number reserved is not really a matter of great conse- quence. But I cannot take account of such a practice in order (a) Williams o. Morris, 95 U. S. S. C. regarded as implying a fee in the ven- 454. dor. (6) Simonds v. Catlin, 2 Cai. 61. (d) Riddick u. Glennon, 6 Ir. Jur. (c) See, however, Johnson y. Kellogg, (Cases), p. 39; see Hurley i-. Brown, 7 Heisk. 264, where a general agree- 98 Mass. 545. ment to convey was apparently not (e) Reese v. Reese, 41 Md. 559. 720 CHAP. XVIII.] CONTENTS OF MEMORANDUM — SUBJECT. [§411. to help out a defective agreement.(/) So a memorandum of sale of " the whole property" is not sufficient where the real subject of the agreement was a leasehold interest. (^) Letters negotiating for a lease did not indicate the term further than by agreeing to do as other tenants of the lessor, and as the lessor had leases of various duration, the memorandum was held insufficient.(A) A memorandum of lease not stating the term or duration of the latter is insufficient, and cannot be eked out by parol.(2) An agreement in writing as follows, " have agreed to let, lease, and give possession" of certain premises, is an insufficient memorandum, under the Statute of Frauds, to prove a contract to give the unexpired part of a term held by the proraissor; as a contract of lease it is insuffi- cient, as not stating the duration of the term, and as proof of the assignment of an existing lease it is not admissible, the wording being inconsistent with that contention. (j) So a memorandum of lease not describing the rent.(/;) So, it was formerly held as to one not stating the date of beginning of (/) Dolling t). Evans, 36 L. J. Ch. 474. (g) Farwell o. Mather, 10 Allen, 322 (seats, semble, had a fee simple been in- tended). The defendant wrote as follows : " Mr. Middleton agrees to pay £625 for the cottage and stable, Mr. Cox paying the expenses of the lease held by Mr. Smith,' ' signed " H. Middleton." Kin- dersley, V. C, said that if the memo- randum had said nothing about the lease then the law would have assumed the interest to be in fee, if the party has such an interest, if not for what- ever interest he may have ; the vendee, if ignorant of what interest the vendor has, and the latter, having less than a fee, has an option to take the lesser interest, or to be free of the contract. But here, assuming that "the lease" means not a lease then held by the vendor, but the lease to be granted under the contract, how long a lease VOL. I. — 46 is meant, or if the whole lease held by Cox, the plaintiff, under what cove- nants ? The pleadings showed that an assignment of the whole lease held by Cox was not meant, and the memoran- dum is insufficient under the Statute of Frauds. The rule is different where the contract is for the interest, more or less, which the vendor has to give, and one who has contracted for a fee can if he chooses take less ; if the interest is not described in the memorandum, or some particular subsisting interest re- ferred to, the Statute of Prands is not satisfied; Cox v. Middleton, 2 Drew. 216. (A) Gordon !j. Trevelyan, 1 Price, 69. (0 Parker v. Taiuter, 123 Mass. 186 ; Hodges V. Howard, 5 R. I. 158. {j) Gardner v. Hazleton, 121 Mass. 495, citing Farwell v. Mather and other cases. (i) Hodges V. Howard, supra. 721 § 412.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XVIII. the lease ; the court will not infer that the latter date is the same as that of the contract. (^)» Where the land was not de- scribed in the memorandum, and did not belong to the ven- dor, the Statute of Frauds is not sati8tied.(m) § 412. While, as has been seen, a description of land by some name given it is generally sufficient, it is not of land by always SO ; thus, " all that property known as the ^tuauon. Union Hotel property," was held an insufficient de- scription because it was found impossible to ascer- tain what was meant to be included, without resorting to parol evidence.(?i) So the words "Vale of Neath Colliery" are not sufficient to describe the plant and fixtures.(o) A descrip- tion as " tract of land called Declined Range, etc., adjoining the turnpike road near where Woodward now lives," is insuf- cient.(p) Where the evidence was an imperfect memorandum, and the sketch of a survey of the land not sufficiently con- nected, the court said : "But even if I were to look at the agreement and this sketch, it is impossible therefrom to define the land the subject of the contract. Oral testimony must still be adduced to show the particulars as to size and position, without which the sketch is not intelligible. What the lots were would therefore be ascertained virtually by parol in the face of the Statute of Frauds.(g) A reservation out of a larger tract is insufficient, though it gives the number of acres, if it does not locate them precisely.(r) So where land described by the acreage is referred to as being next a certain other tract, the description may not be sufficient.(s) While a refer- ence to the property as that situate in a certain town, county, (0 Cartwright D. Miller, 36 L. T., N. (r) Wright D.Cobb, 5 Sneed, 144; S. 399 ; Blore v. Sutton, 3 Mer. 245 ; Sheid v. Stamps, 2 Sneed, 175. but see Jaques v. Millar, supra. (s) Force v. Dutcher, 18 N. J. Eq. 402 ; (m) Ayres v. Gallup, 44 Mich. 13. Allen v. Chambers, 4 Ired. Eq. 125 (" a (n) King v. Wood, 7 Mo. 401. certain tract of land lying on Flat (o) Vale of Neath Colliery Co. u. River, including Taylor Hick's spring- Furness, 45 L. J. Ch. 278 ; see, how- house,andlot adjoining landof Lewis," ever. Brown v. Berry, 6 Coldw. 102. etc.); Clark v. Chamberlin, 112 Mass. (p) Dorsey v. Wayman, 6 Gill, 65. 19 (the memorandum showed that part (q) Stretton v. Stretton, 24 Grant, of a tract was sold, but did not show 20. what part). 722 CHAP. XVIII.] CONTENTS OF MEMORANDUM — SUBJECT. [§ 412. etc., is generally sufficient, it is not always so.(t) " His tract of land in district No. 7, one mile south of Trenton," was held to be an insufficient description. (m) All the farm "in Pompey in the tenure and occupation" of the defendant is an insuffi- cient de8cription.(w) A description of land by the quarter section, without giving township or range, is insufficient.(io) So a description, " West half of lot 15 of my sub-division," is insufficient.(a;) And the omission of the county or state is fatal, if the rest of description is not clearly indicative.(y) A description by reference to the situation on a certain street may not be enough.(^) An extreme case was that in which a de- scription of property as being at the corner of certain streets in a certain city, was held insufficient, because it did not state which corner.(a) A description by the number of the tract is not always sufficient, as where there is no plan giving a location,(6) and see the cases given in the note.(c) The cases given in the note below are examples of property absolutely without a description of location;(c?) as was said in one of them the land might be anywhere on the globe.(e) A written offer to sell eighty-seven acres which are situated somewhere is not sufficient to satisfy the Statute of Frauds.(/) " One ice-house (t) Murdook u. Anderson, 4 Jones, (z) Hope i'. Dixon, 22 Grant (Can.), Eq. 77 ("one house and lot in the 442 (though giving the frontage on the town of," etc); Miller v. Campbell, 52 street and the depth). Ind. 127 ("one hundred and twenty (a) Holmes v. Evans, 48 Miss. 247. acres in Shannon County," etc.) ; (6) Clark c^. Chamherlin, 112 Mass. Capps V. Holt, 5 Jones, Eq. 155 ("a. 19. tract of . . acres lying on Watery (c) Adams v. Scales, 1 Baxt. 337 ; Branch, in Johnston County") ; Allen Bonner v. Baker, 8 La. Ann. 284 ; Hud- V. Chambers, 4 Ired. Eq. 125 ("certain son v. King, 2 Heisk. 571 ; Freeport v. tract lying on Flat River . . . and Bartol, 3 Greenl. 345 (a pew described 200 acres in Person County"). as No. 13, B. Bartol, $86, etc.). (m) Biggs V. Johnson, 2 L. & Eq. Re- (rf) Eargood's Estate, 1 Pearson, 400 ; porter, 587 (S. C. Tenn.). Williams v. Threlkeld, 2 Cranch C. C. (i)) Simonds v. Catlin, 2 Cai. 61. 307 ; Carr v. Passaic, etc.. Company, 4 (m)) Johnson v. Craig, 21 Ark. 538. C. E. Green, 425. {x) Holms 0. Johnston, 12 Heisk (e) Rollins c Pickett, 2 Hill, 552 158 (county and state not being given) . (distinguishing Fish v. Hubbard, which (y) Johnson v. Kellogg, 7 Heisk. was thought an extreme case). 264. if) Campbell v. Taul, 3 Yerg. 723 § 412.] LAW OF TEE STATUTE OF FRAUDS. [CHAP. XVIII. and lot."(^) " So and so debtor for 4 loads and one lot $125."{h) A farm on which is situated a grist-mill, saw-mill, etc., said farm containing " so many" acre8.(i) Qucere, whether a memo- randum as follows: "A certain lot of land containing about eleven acres, to be measured, for nine hundred dollars per acre, I to have the present crop," was sufficient, though parol evi- dence made it perfectly clear what land was meant. (_;■) So a description of a tract as part of a larger tract •,{k) or where the memorandum does not show whether the whole of a lot of land is meant or only a portion -,{1) or contiguous to some other tract, without identifying the first tract thus spoken of.(m) A description by a location yet to be made is insuffi- cient, as, by way of analogy, where a written agreement to con- vey 26,000 to 28,000 feet on certain streets, when tiie bounds are fixed and the streets laid, was held too indefinite to be specifi- cally enforced by a court having power to specifically enforce the written contract of a decedent ; the bounds not having been fixed or the streets laid out in the lifetime of the latter.(?i) So a memorandum giving a certain interest in all the land the promissor may be able to reserve is sufficient. (o) With the exception of the question of the admissibility of parol evidence to apply the writing to its subject-matter, all the points as to realty have been considered, and, before taking up the cases relating to personalty, it may be well to say that the contra- diction between the different rulings which have been cited will, upon close examination, be found to be not so great as it seems ; a description which in one case would point to no- thing definite, would in another identify the property admitted by tlie parties, or known to the court to be that in contro- versy, while collateral evidence of the circumstances sur- rounding the transaction, or of the possession or doings of {g) Pipkin v. James, 1 Humphr. 326. Ala. 355 ; Coleman «. Manhattan Beaah (A) Plummer i. Owens, 1 Busbee, Co., 14N.y. Week. Dig. 323; Beekman Eq. 254. c. Fletcher, 48 Mich. 572. (i) Taney i: Bachtell, 9 Gill, 210. (m) Force v. Butcher, 18 N. J. Eq. (j) Ives V. Armstrong, 5 R. I. 595. 402 ; Scarritt y. St. John's M.E. Church, (k) Wright u. Cobb, 5 Sneed, 144; 7 Mo. App. 178 ("lot adjoining"). Sheid 0. Stamps, 2 Sneed, 175. (n) Lynes v. Hayden, 119 Mass. 483. (0 Williams i . Morris, 95 U. S. S. (o) Webster v. Gray, 37 Mich. 39. C. 454 ; see Jenkins v. Harrison, 66 724 CHAP. XVIII.] CONTENTS OF MEMORANDUM — SUBJECT. [§ 413. the parties, might cause a most general description to attach immediately to a precise property, and in this connection an examination of the admissibility of oral evidence to apply the description to its subject will be of value. See § 426. § 413. .While the same rules apply to personalty as those which have been given in the preceding sections, 11 1 1 • Memo- the cases, as a rule, show a somewhat greater lati- randa suffl- tude of interpretation. The following are some ex- scribing the amples of written contracts relating to personalty ^^tter" which were regarded as adequately describing the (person- subject-matter. Where there was a contract by let- ter for purchase of "your wool," accepted by a letter of the vendor, parol evidence is admissible to show that the wool was partly that of the vendor and partly some he could acquire through his neighbors,Lord Campbell, holding that the Statute of Frauds did not apply, said : " I *,m of opinion that, when there is a contract for the sale of a specific subject-matter, oral evidence may be received for the purpose of showing what that subject-matter was, of every fact within the knowledge of the parties before and at the time of the contract." There was parol proof which indicated that one of the parties inti- mated that, in his own opinion, the wool amounted to a given quantity ; it turned out afterwards to be of a greater quan- tity ; a tender of the latter was held good. In the Exchequer Chamber, Byles, J., thought it a case of latent ambiguity.(jo) Where the memorandum was as follows : " Mr. Newell, 32 (jo) Macdonald v. Longl)ottom, 1 E. scribed, not being called hops, and the & E. 983; 28 L. J. Q. B., 299; and memorandum was held to be sufficient, above, in Scaoo. Cam., 2 L. T., N. S. Abinger, C. B., doubted whether the 609 ; 29 L. J. Q. B., 256. letter sufficiently identified the contract The defendant wrote in a book a so as to have been sufficient if the statement of contract of sale to him of original memorandum had been insuffi- certain hops, which memorandum he oieut. Parke, B., thought the letter handed to the plaintifl''s agent for sig- wouldhave been insufficient. BoUand, nature, who accordingly signed ; the B., was inclined to think that it would same day the defendant wrote the have been sufficient. The fact that the- plaintiffs to deliver "the 27 pockets, hops were not described as such, but Playsted and 4 pockets Selmes, 1836, were called "Playsted," "Sussex," Sussex," to a third party; this de- etc., was not commented on ; Johnson scription accorded with that in his u, Dodgson, 2 M. & W. 653. book, where the hops were thus de- 725 § 413.] LAW OP THE STATUTE OF FRAUDS. [CHAP. XVIII. sack culasses at 39s., 280 lbs.," etc., oral evidence of the trade of the parties was admitted to show that the one being a baker and the other a flour dealer, a sale of flour was meant; there was also a correspondence between the parties which indi- cated the nature of their busines8.(5') Where the defendant wrote the plaintiff, speaking of "the boxes which I bought of you at ten shillings," and requesting the plaintift" to deliver them to a certain third party, "as also the fine black," the memorandum was regarded as sufiicient.(r) A memorandum which does not give the size and weight, as of bales of cotton, is not therefore insufficient, average size and weight being presumed. (s) Semble, that where " this hemp" is spoken of parol evidence is admissible to identify a particular lot, though the writing does not specify the quantity. (<) The case in the note, whose syllabus is given at length, is an example of the care with which the mtaning of the memoranda made to comply with the Statute of Frauds is sought to be dis- covered. (m) ((,) Newell V. Radford, L. E. 3 C. P. 54; see Coddington u. Goddard, 16 Gray, 436. Where an entry of a sale of chattels was "three cases Booth & Go. gin, Terry, $5.25, etc.," it was held that it could be orally shown that the parties would understand this ; Coate v. Terry, 24 D. C. C. P. 573, relying on Newell V. Radford. (r) Thompson v. Menck, 2 Keyes, 82 ; 22 How. Pr. 431 ; 4 Abb. Dec. , 403, citing McKnight v. Dunlop. (s) Penniman v. Hartshorn, 13 Mass. 90. (0 Sale V. Darragh, 2 Hilton, 196. (u) Symes v. Hutley , 2 L. T. , N. S. 509 ; where plaintiff wrote to defendant : " I have bought 100 cheese, thirty of which are very fine ; 80 lbs. a cheese. The remainder are not so large. On receipt of your order I will forward sample. Defendant replied ; You may may send me six Cheddar cheese as a sample. Plaintiff sent six, with a letter saying ; 726 I was obliged to change one of the cheese. Defendant afterwards wrote : If remainder are as good as sample, you may send me thirty more ; you may also send a sample of the smaller ones, and say the lowest price for cash. The plaintiff replied : Your favor to hand ; I will send the cheese to-mor- row ; I could not say, less than 78s. ; they ought to be 80s. The plaintiff then forwarded to defendant twelve larger cheeses and six smaller ones, which defendant refused to accept, as he said, on account of badness of qual- ity. It was held that he was bound to accept the twelve larger ones, but not the six smaller ones, as a contract for the larger ones did not mean thirty absolutely, but as many of the lot of thirty as were of the same quality as the samples previously sent ; and as the six smaller ones were sent as sam- ples merely, which the defendant was not bound to keep." The whole thirty could not have been meant, as the de- CHAP. XVIII.J CONTENTS OF MEMORANDUM — SUBJECT. [§ 414. Memo- randa in- sufBciently describing: the subject- matter (person- alty). § 414. The following are examples of memoranda contain ing insuiReient descriptions of personalty sold : So and So, " debtor for four loads and one lot ]"{v) " F. Ogden & Co., Bailey, etc.. Brown, 12 — 1.2 ; White, 16-1-4, 60, etc., days fiio) " can buy Octo- ber, ITovember, and December, thirty," etc.; "and buy five each October," etc., the court saying that any merchandise or commodity might be meant.(a;) A de- scription of goods as " the cigars" is insufficient.(2/) A memo- randum which does not indicate the particular goods sold is in- sufficient under the Statute of Frauds, although it gives the quantity of the class of goods, which quantity could be after- wards ascertained by weighing and measuring.(2) Where a particular quality of goods is contracted for, and the memo- randum does not mention this, it is insuffieient.(a) So where the suit was for failure to sell goods of a certain quality, there can, under the Statute of Frauds, be no recovery when the memorandum was silent as to the quality.(6) Where a sold- note described the subject of the contract as " Dunlap's iron," and the bought note as " Scotch iron," and, in fact, Dunlap's fendant had already six of the thirty ; and the defendant's letter was inter- preted to mean as many of the thirty as are good as the sample, send me. The memorandum of the larger cheeses was held to be sufficient under the ■ Statute of Frauds. («) Plummer v. Owens, 1 Busbee, Eq. 254. (w) Bailey v. Ogden, 3 Johns. 418. {x) Dilworth v. Bostiner, 1 Sweeny, 582. In another case the court stated the fact as follows : " The defendant says" (in a letter), "on bills rendered you say cash on Wednesday, etc. ; the plaintiff, in his reply, speaks of ' my bill sent you,' and ' paying the oil bill.' From the rest of the correspond- ence it is only to be gathered that ' two hundred and fifty barrels,' containing an undefined quantity of some kind of refined oil, at standard quality, etc., bought by Stocker, of the Genesee Oil Company." These statements were held not to be sufficient to show the subject matter of the agreement ; Stocker v. Partridge, 2 Roberts. 202. (i/) Jacob V. Kirk, 2 Moo. & R. 223. See for memorandum insufficiently de- scribing the amount of goods bought, Kinghorne v. Montreal Telegraph Co., 18 U. C. Q. B. 66. («) Carroll u. Cowell, 1 J. & Symes, 50. (a) McClean v. NichoUs, 4 L. T. , N. S. 863 ; 7 .Tur., N. S. 999 (the seller sued the purchaser for the value of the goods, and the defence was the Statute of Frauds). (5) Bacon v. Ecoles, 43 Wis. 233 (goods were delivered, but were re- fused, because inferior to others bought previously by the same defendants ; but there was no proof that the goods were not of the average marketable quality). 727 § 415.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XVIII. iron was Scotch, but not the only Scotch iron, the discrepancy was held to be fatal. (c) And where a memorandum of sale of a lease and furniture, stating the agreement as "excluding articles to be reserved," it was held, the list of articles reserved should have been in writing.((i) A memorandum of marriage settlement which does not clearly show the amount of money intended to be settled is insufficient. (e) § 415. The following are examples of a sufficient description of the subject of contracts relating to choses in i-andaBuffi- action, aud other matters not to be classed with scribin/the ■ ^^^''^'y °^ chattels: Thus, a memorandum which subject- showed a promise to give a certain sum for the (choses in plaintiff's "services was held sufficient, the appli- tasuffleient cation of the words being made by oral evidence etc'^"te'°°' showing the trade of the parties, etc.(/) So in a similar contract the parol evidence was admissible to show the business of the parties, and that the dismissal of the plaintiff was improper.(^) The defendant wrote the plain- tiff' as follows: "You will be so good as to withdraw the promissory note, and I will see you at Christmas, when you shall receive from me the amount of it, together with the (c) Sievewright u. Archibald, 17 A. & Ell., N. S. 114 ; so, generally, wiere two writings differ; Oakmau v. Rogers, 120 Mass. 214. (d) Johnasson u. Bonliote, 2 Cli. D. 300. (e) Stoddert v. Tiowie, 5 Md. 33. (/) Hagan v. Domestic Sewing Ma- chine Co., 9 Hun, 76; see, however, below, Palmer v. Marquette Mill Co. ig) Price u. Mouat, 11 C. B., N. S. 510; where, in a previous collateral proceeding, the plaintiff, in the princi- pal case, had made an affidavit that the defendant in the principal case was not a man of means, and that he knew this, because this was the latter's reason for not giving his daughter a, marriage portion. In a counter-affi- davit the present defendant swore as follows ; " The statement contained in the affidavit of Barkwortli" (the plain- 728 tiff) " tliat his reason for believing me not to be a man of considerable prop- erty is that, on his marriage with my daughter, I confessed to him my ina- bility to provide any marriage portion is not correct. According to the best of my recollection and belief, the words I made use of on that occasion were : ' There will be no money for yon now, but at my death she' (meaning my late daughter, Mrs. Barkworth) ' shall share with the rest of my children.' " It was held that, while tlie memoran- dum must on its face show that the verbal agreement to which it refers took place before marriage, this one does so, "marriage portion" meaning a gift before marriage, and "that oc- casion" meaning the time when the question of a marriage portion was under consideration ; Barkworth v. Young, 4 Drew, 9 ; 26 L. J. Oh., 153. CHAP. XVIII.] CONTENTS OF MEMORANDUM — 'SUBJECT. [§ 415. memorandum of my son's," etc.(A) The Statute of Frauds was regarded as satisfied. So a reference to the payment of a debt due by one W.{i) So a promise to pay a debt to be transferred from the promissor's account to that of one B.(J) A somewhat singular case was as follows: The defendant signed a memorandum dated February 27th, 1854, agreeing to pay the plaintift' " one hundred and forty dollars on May 3d, 1854, for rent of house 72 Lexington Avenue," and the pleadings admitted that the house was occupied as a tenant by the defendant's brother, who, when the memorandum was made, was in arrear for rent due February 1st, 1854, and had not paid that due May 1st of the same year. It was held that the subject-matter of the promise was the debt of another, and that the memorandum was insufficient under the Statute of Frauds because not stating a con8ideration.(^) The following are some examples of the same class as those just considered, but in which the description was insufficient. Thus, a con- tract relating to service which does not state either the time or the nature of the employment, and uses only the word " salary," which does not necessarily indicate a year's engage- ment.(^) Signing one's name in shipping articles in a column headed "Sureties" makes an insufficient memorandum under the Statute of Frauds, because it does not show the obligation assumed.(m) A general reference to certain notes has been insufficient to show that they were the subject of the con- tract. (ji) Letters which do not state the amount of a claim, and which make vague references to an account, will not fix the writer's liability on an account in the wife's lifetime, and which the defendant's testatrix, the wife, had acknowledged to (A) Shortrede v. Cheek, 1 A. & Ell. ground that oral evidence was not ad- 58; so " your draft, " in a case where missible to show that a promise original the Statute had no application ; Shel- on its face was a guaranty, and thereby ton V. Braitliwaite, 7 M. & W. 437. to bring it within the Statute of Frauds ; (i) Bateman v. Phillips, 15 East, see § 323. 272 ; see Karthaus Coal Co. v. Given (S. (l) Palmer o. The Marquette Mill C. Pa.), 1 W. N. Cas. 366. Co., 32 Mich. 274; see Hagan v. Do- (j) Bruntou v. Dullens, 1 F. & F. mestic Sewing Machine Co., supra. 451. (m) Dodge v. Lean, 13 Johns. 509. (i) Clark V. Richardson, 4 E. D. (n) Frank v. Miller, 38 Md. 458. Smith, 175 ; Daley, J., dissenting on the 729 § 416.] LAW. OF THE STATUTE OF FRAUDS. [CHAP. XVIII. 416. Oral evi- dence to apply the writing to its subject. be correct.(o) A contract of partnership within the Statute of Frauds as being for more than a year is insufficient if the writing leaves uncertain the exact interest one partner was to have.(p) Oral evidence is admissible and essential to apply the writing to its subject (see § 418).(5') The rule is a general one applying to all writings, whether within the purview of the Statute of Frauds or not, for no matter how detailed the description, the last step in process of identification must take place in pais. "Any note or memorandum in writing," says a recent decision, "which furnishes evidence of a complete and practicable agi-ee- ment is sufficient under the Statute, and parol evidence is admissible to explain latent ambiguities, and to apply the in- strument to the subject-matter. "(r) The parol evidence, as has been said, is admissible only to construe and apply a descrip- tion, not to show what was intended to be expressed. (s) On demurrer it will be assumed, if possible, that parol evidence will identify the property described.(<) In ejectment the iden- tity of the premises may be shown by parol. (?^) As has been (o) Waul V. Kirkman, 27 Miss. 826. (,p) Tomkins xj. Randell, 19 W. R. 416. (y) McMurray v. Spicer, 16 W. R. 332; Crooks v. Davis, 6 Grant, Chan- cery, 619 ; Walker v. Boulton, 3 U. C. K. B., 0. S. 254; Williams v. Morris, 95 U. S. S. C. 456-7 ; Nichols v. John- son, 10 Conn. 198 ; White v. Hermann, 51 111. 243; Cossitt u. Hobbs, 56 111. 233 ; Spaulding n. Mozier, 57 111. 150 ; Colcord V. Alexander, 67 111. 581 ; Reed V. Ellis, 68 111. 209 ; Colerick v. Hooper, 3 Ind. 318; Guy o. Barnes, 29 Ind. 104; Gayosos v. Baldwin, 8 Martin, N. S. 660 ; D'Aquin c. Barbour, 4 La. Ann. 442 (a perhaps extreme applica- tion of the rule) ; Childs u. Walker, 2 Allen, 261 ; Gerrish v. Towne, 3 Gray, 88; Mead o. Parker, 115 Mass. 414; McCaleb v. Pradat, 25 Miss. 267; Scarritt v. St. John's M. E. Church, 730 7 Mo. App. 178 ; White v. Motley, 4 Baxt. 544 ; Tallman u. Franklin, 14 N. Y. 589 ; Waring v. Ayers, 40 N. Y. (1 Hand) 362 ; Mayer v. Adrian, 77 N. Car. 84 ; Graf v. Wirthweine, 1 Handy, 20 ; Ferguson v. Staver, 33 Pa. St. 413 ; Ross V. Baker, 72 Pa. St. 189 ; Smith's Appeal, 69 Pa. St. 474; Morris's Ap- peal, 88 Pa. St. 382; Washburn u. Fletcher, 42 Wis. 170. (r) Williams v. Morris, 95 U. S. S. C. 456. (s) Hodges V. Howard, 5 R. I. 158 ; Parker v. Tainter, 123 Mass. 186 ; Scar- ritt o. St. John's M. E. Church, 7 Mo. App. 178 ; McGuire v. Stevens, 42 Miss. 724 ; see Frank c. Miller, 38 Md. 458 ; Ferguson „. Staver, 33 Pa. St. 411; Ripley v. Page, 12 Vt. 355. (() Slater v. Smith, 117 Mass. 98. (w) Bullock V. Malone, 1 Minor, 400. CHAP. XVIII.] CONTENTS OF MEMORANDUM — SUBJECT. [§ 416. seen there arises no difficulty, when in fact there is but one pro- perty to which the description can apply, as where a lot is sold in a certain situation, and the vendor has but the one.(?;) Fol- lowing out the theory that where a description, on its face seem- ingly sufficient to identify the property, is found to apply to more than one, the rule relating to latent ambiguities applies ; it has been held that where the vendor owned several lots of land in the same street, for example, oral evidence is admissible to show which one was meant.(M) An extreme instance of this mode of interpretation, already given, was where there was a written contract providing for the building of several houses all alike and of equal value, and stating that one of the par- ties was to have one not especially designated, the court on oral evidence indicated a house, and enforced the contract.(a;) Where a contract called for 200 acres out of a tract in Union Township, owned by the defendants who were to select the land, it was held that the selection could be shown by oral evidence, notwithstanding the Statute of Frauds.(2/) Where cars were ordered to transport chattels sold, and there were two sizes, oral proof of the size that was meant was ad- mitted.(5;) It is impossible to reconcile with the general rule here given some at least of the cases that have already been given, such as Murdock v. Anderson. (a) In a written promise to pay a certain note it was, in England, doubted whether, if there had been two such, oral evidence would have been admis- sible to explain. (6) But in a case not arising under the Statute of Frauds the evidence was said to be admissible ;(c) and the point was decided in a case under the Statute, and evidence was (w) Soanlan v. Geddes, 112 Mass. 15 ; (2) Murphy v. Thompson, 28 D. C. Mead v. Parker, 115 Mass. 414 ; Carson C. P. 233. <-. Ray, 7 Jones's Law, 610; Waldron (a) 4 Jones Eq., 77, and see § 410, V. Jacob, 5 Ir. Rep. Eq. 131, supra. and the cases there given ; see Troup (w) Hurley v. Brown, 98 Mass. 545, v, Troup, § 411, n. (u). It may be citing and distinguishing a number of that in all these authorities, except oases, and denying Murdock v. Ander- Murdock v. Anderson, the description, son. even on its face, was hardly adequate. (ar) Ellis v. Burden, 1 Ala. 466. (i) Shortrede u. Cheek, 1 A. & Ell. (i/) Carpenter v. Lookhart, 1 Ind. 58. 441. (c) Shelton v. Braithwaite, 7 M. & W. 437. 731 § 416.] LAW OF THE STATUTE OF FRAUDS. [OHAP. XVIII. admitted to show which of two debts was answered for in the writing.(flf) The discovery of the subject-matter of the written contract, through the aid of oral proof, has not been accom- plished in some instances without such an effort as would appear to do violence to the stricter rules which hedge about a writing. Where parol proof was admitted to show what lease was meant by a promise to sell the lease of certain prop- erty, the promissor having as yet, when the promise was made, procured no lease to himself, or for him to control, a long step was taken in the direction indicated.(e) A difficult point which here arises, and which can be suggested without being fully entered upon, is how far is oral evidence admis- sible to show what constitutes the property spoken of in the writing, and what appurtenances pass with it; two examples have been given of the refusal of such proof,(/) and the first of the following cases is, it is believed, not inconsistent with these. Thus, parol evidence was admitted to show the exist- ence of a way appertaining to land in order to bring it within a clause of a deed expressly conveying such appertaining ease- ments.(<7) And so where a deed conveyed " all the rights, members, and appurtenances thereof," it was held that oral evidence was admissible to show that the right to the use of an alley was one of such right8.(/i) But scarcely so a ruling admitting parol evidence to show what appurtenant land passed with house number so and so ;(«') or parol proof, except under the exception of equitable part performance, of the as- signment of boundaries by the vendor (the plaintiff).(_;') It has been held that an easement cannot be orally proved to britig it within the phrase in a deed "with the appurte- nances ■,'\Ic) and, indeed, the whole class of cases in which the property is described by its name as the so and so estate or tract, etc., seems open to the same difficulties unless, as was (d) Brunton u. Dullens, 1 F. & B'. (A) Kirkpatrick v. Brown, 59 Ga. 451. 451. (e) Horsey v. Graham, L. R. 5 C. P. (»') Gary o. Thompson, 1 Daly, 38, 13. and see Scanlan v. Geddes, 112 Mass. (/) King V. Wood, 7 Mo. 389 ; Vale 15, to the same effect, of Neath Colliery v. Furness ; see § (/) Purl u. Miles, 9 La. Ann. 270. 412, n. (o). (i) Green v. Collins, 12 N. Y. Week. ig) Brown v. Berry, 6 Coldw. 102. Dig. (N. Y. Ct. of App.) 179. 732 CHAP. XVin.] CONTENTS OF MEMORANDUM — SUBJECT. [§ 417. probably the fact in most instances of the admission of oral evidence to identify the estate, the name was one of noto- riety, or the correctness of the application of the description was not denied. The same method of proof has been applied in the case of choses in action, and a debt of W. has been orally shown to be that due the plaintiff ;(i) and even so vague a description as that given in a written promise to pay the plaintiff a certain sum, " as full compensation for his services," has been applied by parol.(m) Where a written contract sued on stated the promise to be an authority to defendant's agent to pay a debt contracted by J., and judgment was taken for want of an affidavit of defence {i. e., of merits), it was not error to refuse to open the judgment on the ground that in the statement of the cause the debt was described as that of J. ^ M. for non constat, but, at the trial, the two descriptions might have been shown to be identical. (n) § 417. While there is great diversity of decision on the point, the weierht of authority is strongly in favor \. . , . . , %. , The price, of treating the price as an essential term or the con- tract, which must appear in the memorandum required by the Statute of Frauds.(o) In the special case of a contract for the sale of land, it was said in a Vermont decision that in England even, where the rest of the contract had been executed, the price must appear in the writing ; but otherwise in America.(p) (0 Bateman v. Phillips, 15 East, News, 296 (S. C. 111.) ; Ellis a. Dead- 272. man's Heirs, 4 Bibb, 467 ; Kay v. Curd, (m) Hagan v. Domestic Sewing Ma- 6 B. Mon. 102 ; Holmes i-. Evans, 48 chine Co., 9 Hun, 76. Miss. 247 ; Lang v. Henry, 54 N. H. 59 ; (h) Karthaus Coal Co. o. Given, 1 W. Welsh v. Bayaud, 21 N. J. 186 ; John- N. C. 366. son v. Buck, 35 N. J. L. 340 ; German v. (o) Blagdeu v. Bradbear, 12 Ves., Machin, 6 Paige Ch. 292; Coles t/. Jr., 471 ; Morgan v. Sykes, in the Ex- Bowne, 10 Paige Ch. 335 ; Stocker v. chequer (not reported), cited in Coats Partridge, 2 Rob. Sup. Ct. 202 ; Stone 0. Chaplin, 3 Q. B. 486; Elmore v. v. Browning, 68 N. Y. 600; Soles v. Kingscote, 5 B. & C. 58? ; 8 D. & R. Hickman, 20 Pa. St. 180 ; Eargood's 343 ; Archer v. Scott, 17 Grant (Can.), Estate, 1 Pearson, 400 ; Ide v. Stanton, 249 ; Flintoft o. Elmore, 18 U. C. C. 15 Vt. 689. P. 281; Smith v. Arnold, 5 Mason, (p) Hodges f. Green, 28 Vt. 358, oit- C. C. 414 ; Williams v. Morris, 95 U. S. ing Cooking w. Ward, Kelly v. Webster, 456 ; Adams v. McMillan, 7 Porter, Smart v. Harding, and also a number of 80 ; Frazier v. Howe, 15 Chic. Leg. American cases. 733 § 418.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XVIII. Even in Pennsylvania, where the fourth section is not in force, 'it would be necessary that the price should be stated, like any other term of the contract.(7) In a Maryland case it was doubted whether the price of land could, under the Statute of Frauds, be left in parol, to be fixed by arbitration.(r) A writ- ing, otherwise sufficient under the Statute of Frauds, is not invalid because it leaves the price to be settled by arbitra- tion. (s) Where a memorandum, otherwise complete, was not intended as evidence, and did not give the price, but was a preliminary official paper, which had to be executed in order that a public officer might fix the price, it was held that the Statute of Frauds was not satisfied. (<) In Louisiana a transfer in writing of land, or a dation en payment, must show a fixed price to be valid. (m) Under the Mexican law, and by custom of California, a contract of sale of land must be in writing, and show at least the names of the parties, the thing sold, the date of the transfer, and the price paid.(?;) Sembk, that in a con- tract of lease the rent as well as the terms must appear.(w) So under the acts of Parliament requiring the transfer of a vessel to be in writing, the memorandum must show the price.(x) § 418. The following are some examples of memoranda sufficiently showing the price or the reverse : Thus, Examples. , ^ „ ^ ^ t n nr- the deiendant wrote, " 1 cannot sell at your oner, . . . but ... I will sell enough at the contract price to pay it" (a note due by him), " or I will give 2000 acres for my note; ... but to sell for $20,000 is killing." The defen- dant's pleadings showed an offer by the plaintiff to pay $20,000, which was refused, and the plaintiff's acceptance of the offer in the letter bound the bargain for 2000 acres at $20,000.(?/) (y) Soles t). Hickman, 20 Pa. St. 182; (a) Kleinpeter v. Harrigan, 21 La. and see Pennsylvania cases among Ann. 197. those just given. (u) Stafford jj. Lick, 10 Cal. 16. (r) Griffith ti. Frederick Co. Bank, 6 (t«) PoweH v. Lovegrove, infra; Gill & J. 439 ; see below. Hodges v. Howard, 5 R. I., 158. (s) Norton u. Gale, 95 111. 539, citing (x) Kain v. Old, 2 B. & C. 633. Brown v. Bellows, 4 Pick 178. (_y) Washburn v. Fletcher, 42 Wis. (0 Rogers u. Hadley, 2 H. & C. 170 ; so a memorandum reading, " It 247. is agreed, etc., that Bird is to have the 734 CHAP. XVIII.] CONTENTS OF MEMORANDUM — SUBJECT. [§ 418. Where a buyer signed an order for certain goods on the seller but the memorandum did not state the price, and the defendant wrote asking for an invoice; the plaintiff sent an invoice giving the prices, which were, as agreed, at a discount off the prices given in a printed list, to which the numbers in the defendant's original order referred ; the defendant wrote on the receipt simply declining the goods ; the memorandum was held to be insujSicient under the Statute of Frauds for not naming a price ; the price named in the invoice did not bind the defendant, because not signed by him.{z) "Where the memorandum was — . 12 Mos. S. M. M. W. W. G. W. W. Goddard 300 Bales . parol evidence was admitted to show 7^ meant 7J cents per yard, and the memorandum was held to be sufficient.(a) Where land having been knocked down at auction to the de- fendant, who was one of the sellers, and he assigned his bid at an advance price to the complainant, and the auctioneer made a memorandum of sale, stating everything but the advance price, the latter was held not to be part of the price so as to call for mention in the writing, and that the second vendee was entitled to have a decree of specific performance against the first. (6) A memorandum which related to the negotiation of lands about to be taken for a railway, and which referred to the compensation as to be settled either by arbitration or a refusal of a certain farm, etc., which, etc., was bought by me for, etc., $1940," showed the price sufficiently ; Bird v. Richardson, 8 Pick. 252. Amemoran- duna was as follows : — 0. of Lot. Name of Purchaser, Price. 1 2 3 4 S. Klous, S. Klous, S. Klous, S. Klous, $1670. 620. 9A cts. The dispute was as to lots 3 and 4, and it was held that at the trial there might be evidence of usage which would show that 9| cts. and S^ meant to show the price ; the memorandum, therefore, on demurrer, was not insufficient ; Gowen V. Klous, 101 Mass. 454, citing Salmon Falls Co. t'. Groddard, and other cases ; see Bourland u. Peoria, 16 lU. 542. (z) Goodman v. Griffiths, 1 H. & N. 577. (a) Salmon Falls Co. t. Goddard, 14 How. U. S. 454 ; see Gowen v. Klous, just above. (b) Bailey w. LeRoy, 2 Edw. 515 (but was not the advance price the price of the transfer, and was not the latter within the Statute of Frauds ?). 735 § 419.] LAW OF THE STATUTE OP FRATTDS. [CHAP. XVIII. jury, at the option of the owner, is fatally defective in not fixing a price, and will not be decreed to be specifically per- formed. (c) " This to certify that I have received of, etc., the sum of, etc., and have applied to the sale of lot, etc.," is an insufficent memorandum because not stating the price.(rf) A memorandum of sale which gives no price, but states a penalty upon the vendor on failure to give a deed, cannot be made suflicient by the vendee's subsequent oral agreement to make the penalty the price.(e) A note of sale of land, giving the total price, and stating that a part, not defining it, was to remain on mortgage, is insufficient.(/) § 419. An eftbrt has been made to evade the Statute of Frauds on this point by assuming, in the absence of The gene- '■ •' . . , ,, rai rule an express statement oi a price, that a reasonable questione . p,,JQg ^^g meant, and that exact lawyer. Judge Willes, gave this as his opinion. (9) But, on the other hand, it has been said that this is only true of executed contraets.(/t) A memorandum referring to an oral agreement, and which failed to state the price, was held to be sufficient on the testi- mony of one witness to the effect that the land was worth a certain amount ; that this value had been assented to by the vendor and had been in fact paid.(z) In a Michigan case it was said that, if a reasonable price is agreed on without further definition, the memorandum should state this, and the market price will not be presumed to be reasonable. (j) Where the memorandum admits that the price has been paid, it is not (c) Morgan v. Millman, 3 De G. M. sufficient for not giving the price ; & G. 36; 2'2 L. J. Ch., 897 (Knight- Holmes j). Evans, 48 Miss. 247; Peirce Bruce, L. J., said that the case fell far ,-. Corf, L. R. 9 Q. B. 214 ; Blair ■/. short of Gregory u, Mighell ; semble Snodgrass, 1 Sneed, 25. seciis, however, where the price had (g) Joyce v. Swann, 17 C. B., N. S. been fixed by valuers at the time the 102, citing Hoadly v. McLaiue, but as memorandum was executed) ; Hem- to this see below, ming V. Perry, 2 M. & Payne, 3S0. (A) Acebal v. Levy, 10 Bingh. 380 ; (d) Irvingu. Merrygold, 3U. C. Q. B. see Jeffcott i,-. North British, etc., Co., 273. Ir. Rep. 8 C. L. 19. (e) Kelly V. Sweeter, 17 Grant (i) Johnson v. Ronald, 4 Munf. 78. (Can.), 375. (j) James v. Muir, 33 Mich. 226, (/") Grace !i. Denison, 114 Mass. 17; citing Acebal v. Levy and Valpy v. Foot V. Webb, 59 Barb. 53 ; see the note Gibson, for other examples of memoranda in- 736 CHAP. XVIII.] CONTENTS OP MEMORANDUM — SUBJECT. [§ 419. defective in not stating such price,(A) and semble an actual payment, though subsequent and not recited in the memoran- dum, is enough.(?) Oral evidence is admissible to show that a memorandum complete on its face is defective for not ex- pressing the price.(m) A memorandum which states the price to be " on moderate terms" is sufficient.(n) There is a distinc- tion between the words " value" and " price," and, therefore, under 9 Geo. IV., c. 14, § 7, using the former, the memoran- dum need not state the price.(o) There is no inconsiderable authority in the United States for the opposite rule to that stated in the beginning of this discussion. As has been al- ready said in the case of contracts for the sale of land a Ver- mont decision, admitting that English law required a statement of the price, claimed that the American doctrine was other- wise.(p) Some of the rulings dispensing with written evidence of the price are cases of executed contracts, as where a deed for the land has been accepted •,{q) or where the price has been paid, other parts of the contract remainifig exeeutory.(r) It has been decided in a written contract relating to land the price need not be given. (s) And a memorandum addressed by the defendants to the plaintiff, requesting the latter to get them 360 hogs instead of 250, and saying nothing as to the price, was held 8ufficient.(<) There remains to be noted only a group of cases where the expression in the memorandum of the stipulated price was dispensed with ou a wider ground, (k) Fugate v. Hansford, 3 Litt. 262. (r) Fugate v. Hansford, 3 Litt. 262. (0 Powell V. Lovegrove, 8 De G., M. (s) Adkins w. Watson, 12 Tex., 199 ; & G. 363. Fiske v. MoGregory, 34 N. H. 418 ; see (m) Jeffcott V. North British, etc., Seagood v. Meale, Preo. Ch. 560. Co., Ir. Rep., 8 C. L. 19, and see supra. (0 O'Neil v. Grain, 67 Mo. 250. In (n) Ashcroft v. Morrin, 4 M. & G. Smith v. Dublin, etc., R. W., 3 Ir. Ch. 451 ; 6 Jur., 783. 230, it was held that a written notice (o) Hoadley v. M'Laine, 10 Bingh. to treat, signed by the secretary of a 486 (the writing indicated that no price corporation authorized to take land, is had been agreed upon, and that it was good, though not under the corporate a carte blanche order, and this the seal, and that the land-owner only has testimony confirmed). signed the memorandum fixing the (p) Hodges V. Green, 28 Vt. 358. price does not make it less sufficient ; (g) Gully V. Grubbs, 1 .1. J. Marsh, semble, that the company would have 388 ; see Hodges v. Green, supra, and been bound if the price have been see the chapter on Voluntary Perform- proved by oral evidence only, ance. VOL. I.— 47 737 § 419.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XVIII. and one which appears to require a statement of the promise and of the parties only. For a consideration of the validity of such a writing under the Statute of Frauds, setting forth a bare promise from one to another to do a definite act as to convey land, expressing no terms and naming no price, see above. So far as these decisions relate to our present subject it is well to observe that if it is assumed that there is no other term or condition than the promise to convey, and there may well be none such, then we must concede that these are autho- rities supporting the validity of a memorandum which omits the price.(M) (u) See Plunkett v. Methodist Epis- v. Ronald, 4 Munf. 77 ; but see, contra, copal Chnreh, 3 Cush. 566 ; Holman v. Kingsbury v. Burnside, 58 111. 335. Bank of Norfolk, 12 Ala. 369 ; Johnson 738 CHAP. XrX.] CONTENTS OF MEMORANDUM — CONSIDERATION, [§ 420. CHAPTER XIX. THE CONTENTS OF THE MEMORANDUM- THE CONSIDERATION. 420. Contract under Statute of Frauds must have a consideration. 421. Memorandum required to show consideration. 422. Wain w. Warlters. 423. A point under tlie law of New York. 424. Statutes expressly permitting oral proof of the consideration. 425. Statutes expressly requiring a statement of the consideration. 426. States where the law, apart from a special statute, is, or was, uncertain. 427. Memorandum not required to state consideration. 428. Rulings based on the difference between the words "promise" and " agreement." 429. Manner of statement of consid- eration ; can be implied. 430. The words "value received." 431. Effect of a seal ; commercial pa- per ; whether writing imports a con- sideration. §432. Memorandum of guaranty ; when memorandum shows that the prom- isee relied on guaranty. § 433. Rule as to guaranty contempo- raneous with obligation guaranteed ; valid memoranda. § 434. The New York decisions as to whether contemporaneous^ written contracts show a consideration. § 435. Examples of guaranties of prom- issory notes under the New York rule. § 436. Examples of memoranda suffi- ciently showing the consideration. § 437. The expression of a past and of a future consideration. § 438. Consideration of forbearance. § 439. Miscellaneous examples of mem- oranda showing sufficiently or insuf- ficiently the consideration of the contract. § 420. A WRITTEN contract under the Statute of Frauds must, like any other, have a consideration,(a) and at the time the (a) Watson o. Dunlap, 2 Cr. C. C. 14 ; Brown v. Adams, 1 Stew. (Ala.) 54; Henley v. Brown, id. 144; Hester V. Wesson, 6 Ala. 415 ; Click v. McAfee, 7 Porter, 65 ; Beall v. Ridgeway, 18 Ala. 118; Lawrence v. Stonington, 6 Conn. 525 ; Cook v. Bradley, 7 Conn. 61 ; Lines v. Smith, 4 Flor. 47 ; Crane v. Bullock, R. M. Charlt. 319 ; McConnell V. Brillhart, 17 111. 354 ; Starr v. Earle, 43 Ind. 479 ; Beau. c. Burbank, 16 Me. 460; Cutler ^. Everett, .33 Me. 201; Hannan u. Towers, 3 H. & J. 149 ; Pfeiffer v. Kingsland, 25 Mo. 67 ; Cook V. Elliot, 34 Mo. 586 ; Burnet v. Bisco, 4 Johns. 236 ; Fyler v. Givens, 3 Hill (S. Car.), 52 ; Winthrop v. Lane, 3 Des. 341 ; Beers v. Spooner, 9 Leigh, 156 ; Hopkins v. Richardson, 9 Gratt. 490 ; Chesapeake R. R. v. Winkler, 3 Va. L. 739 § 421.J LAW OF THE STATUTE OF FRAUDS. [OHAP. XIX. promise is given, so that a subsequent receipt of funds out Contracts ^^ which to fulfil it is not a sufiicient consider- under ation.(6) On the other hand, it has been resjarded statute of , ,. . , . ,. Frauds as an additional reason for regarding a meraoran- a consider- dum made subsequently to the contract itself as ation. sufficient, that the consideration was performed at the time of contract made.(c) A writing does not, even prima facie, import a con8ideratiou.(c?) In Pillans v. Van Mierop, Burr. 1669, semble, there is a dictum by Lord Mansfield that the Statute of Frauds goes on the principle that a writing im- ports a consideration ; but see contra. By statute in Alabama a writing is treated in the pleadings of a case as prima fades of consideration ; but if the consideration is denied, it must be proved. (e) In Indiana a written promise to pay monej- im- plies a consideration prima facie.{f) Apart from statutory provision, the ordinary rule is the other way.(^) An under- taking required by law, as, for example, securityship for costs, need not have or show a consideration ;(/i) the statute, moreover, using the word " undertaking. "(z) That a verbal contract is upon a consideration will not take it out of the Statute.(j) § 421. The question whether the memorandum to be com- plete should express the consideration has been the Memo- one the most contested under the Statute of Frauds. randum re- -.-,•• , i . i i 11 quired to -Nor 18 it everywhere settled even now, though stat- sideration. ^^^ *''' decision has done so in almost all the states. J. 55 ; Winkler v. Chesapeake R. R., see as to the rule in Kansas, Roller v. 12 W. Va. 699 ; Barrell v. Trussell, 4 Ott, 14 Kan. 615 (citing cases); in Cali- Taunt. 120 ; Parker u. Dutcher, i! U. fornia, see Happe r. Stout, 2 Cal. 460. C. Jur. 110. See 9 Peters, Abr. (Am. (f) Beeson v. Howard, 44 Ind. 415. ed.) p. 409-10 (n.). For exceptions to (3) Linder v. Lake, 6 la. 167. this rule, see § 441. (A) Bildersee v. Aden, 62 Barb. 191, (b) Tenny r. Prince, 4 Piuk. 387. citing cases. (c) Schwermau u. Gunkel, 1 Kent. (t) Thompson v. Blanohard, 3 Comst. Law Kep. 406. 335. (d) Dodge V. Burdell, 13 Conn. 172. (j) Organ v. Stewart, 1 Hun, 411 (e) See R. S. Ala. § 2681; Click v. (a contract relating to chattels) ; Prime McAfee, 7 Porter, 65 ; Brick Dig. of u. Koehler, 77 N. Y. 93 ; 7 Daley, 350 ; Reports, I. p. 382, § 112 ; Nesbit c. Combs v. Harshaw, 63 N. Car. 199 ; Bradford, 6 Ala. 750 ; so in Arkansas, Simpson 7,'. Patten, 4 Johns. 422. Woodruff V. McDonald, 33 Ark. 101 ; 740 CHAP. XIX.] CONTENTS OF MEMORANDUM — CONSIDERATION. [§ 421. In the following states it is or was necessary to state the consideration in the memorandum, though no. provision of the Statute of Frauds expressly required this.(/t) Semble, that even where by statute parol proof of the consideration is admissible, a promise by the other party cannot be so proved. (k) Great Britain, before 19 and 20 Vict., c. 97, July 29, 1856 : Wain v. Warlters, 5 East, 16 ; Jarvis v. Wil- kins, 7 M. & W. 410 ; Price v. Rich- ardson, 15 M. & W. 540 ; Kdwards v. Kelly, 6 M. & S. 208 ; Sweet v. Lee, 3 M. & Gr. 452 ; see note by reporter, saying that Sweet v. Lee was the first case ap- plying the rule to "year" contracts; Lyon V. Lamb, Fell on Guaranty, App. iii. ; Clancy v. Piggott, 4 N. & M. 502 ; 2 A. & EU. 473; Powers v. Fowler 4 Ell. & Bl. 516. Canada : Gerow v. Clark, 9 U. C. Q. B. 223. Alabama : Rigby v. Norwood, 34 Ala. 132 (approving of Wain o. Warlters, apart from the Alabama statute ex- pressly requiring the consideration to be stated). Delaware ; Weldin v. Porter, 4 Houst. 239. Georgia : Henderson v. Johnson, 6 Ga. 390 (A. D. 1844) ; but see, doubting this, Hargraves u. Cooke, 15 Ga. 321 (A. D. 1850 and 1854) ; see contra post, Illinois : Prather v. Vineyard, 9 111. 48; Patmor o. Haggard, 78 111. 609 (before 1874). In Harwood v. Kiersted, 20 111. 373, the question was raised, but not decided. Maryland t Wyman v. Gray, 7 Harr. & J. 409 ; Elliott v. Giese, 7 Harr. & J. 457 ; Nabb v. Koontz, 17 Md. 283 ; Carroll v. Nixon, 2 Miles (Phila.), 428, passing on a Maryland contract ; Sum- rail V. Kidgely, 20 Md. 116 ; Huttoni;. Padgett, 26 Md. 231 ; Deutsch v. Bond, 46 Md. 168 ; Ordeman v. Lawson, 49 Md. 155, citing cases ; Culbertsou v. Smith, 52 Md. 634, citing oases. In a dictum in one Missouri case : Bartlett v. Matson, 1 Mo. App. 155 ; but see contra post, § 437. Two cases in New Hampshire : Neel- son V. Sanborne, 2 N. H. 414 ; Under- wood V. Campbell, 14 N. H. 393 ; but doubted in Britton v. Angler, 48 N. H. 422. New York, prior to 1830 and siuce 1863 : Sears v. Brink, 3 Johns. 215 ; Kerr v. Shaw, 13 Johns. 236 ; Thomp- son V. Blanchard, 3 Comst. 335 ; Clark ■b. Richardson, 4 E. D. Smith, 174; Castleu. Beardsley, 10 Hun, 343 ; Smith 11. Ives, 15 Wend. 182 (R. S., 1830, said to be declaratory on this point) ; Wood V. Wheelock, 25 Barb. 625 ; Sackett u. Palmer, 25 Barb. 179 ; Wright V. Weeks, 25 N. Y. 155; 1 Bosw., 272. Two cases in South Carolina : Aikin V. Cheeseborough, 1 Hill (S. Car.), 173; Stephens v. Winn, 2 N. & Mc- Cord, 372 (distinguished in Miller v. Irvine, Fyler v. Giveils, Aikin v. Duren, 2 Nott & Mc'C. 370) ; Fyler v. Givens, 3 Hill (S. Car.) 52, held that in con- tracts relating to land, and in conside- ration of marriage, the consideration must be stated ; see Lecat u. Tavel, 3 MoCord, 158 ; and see, generally, contra post. In Legare o. Potter, 1 Rice, S. Car. Dig. 362, it was said that the point had been in doubt till then (1825), but that the consideration need not be ex- pressed ; see § 437. Texas : Thomas v. Hammond, 47 Tex. 49 (citing cases) ; on the general point, see Pitman on Princip. and Surety, p. 73, n. 3. 741 § 422.] LAW OF THK STATUTE OF FRAUDS. [CHAP. XIX. though it was the consideration of the other promise ;(f) at common law the consideration of a writing could be proved by paro].(m) The admissibility of oral evidence to show the want of a consideration of a deed or other writing, or to con- tradict that stated in the writing, will be adverted to in another place ; it may be said that, as a general rule, the evidence for such a purpose is admissible. (n) Where a promissory writing given for the debt of another, and to assign certain personalty, shows on its face no consideration ; it is competent to show by parol that it was not merely voluntary; that it had a con- sideration, and that it was in reliance upon such engagement that certain funds had been furnished to and certain liability assumed by the plaintifts on behalf of the party answered for ;(o) and where the contract would have been good by parol, oral evidence of the consideration is admissible if it is reduced to writing. (p) § 422. The leading case which established in England not without protest the necessity of expressing the con- Waliters sideration of the contract in the memorandum was Wain V. Warlters, decided in 1804. The judges in that case gave great attention to the words " promise" and " agreement" as used in the Statute of Frauds. Lord Ellen- borough regarded the phraseology of the Statute as being de- liberate, and said that the word "agreement" meant the assent of two minds so certain that each may have an action on it, and that the word " promise," when used in the Statute, was so used in order that the law should not seem to give validity to a written contract merely because written. Law- rence, J., and Le Blanc, J., relied upon the point that the word " promise" did not recur, and that the word " agreement" was employed in the latter part of the fourth section of the Stat- (0 Whipple V. Parker, 29 Midi. 371. 353 ; Wolf v. Fletemeyer, 9 Ciiic. Leg. (;h) Lightle u. Beniing, 15 Nev. News, 204; Hannan u. Hannan, 123 391; Cummings v. Dennett, 26 Me. Mass. 441; 1 Bricl£. Dig. (Ala.), p. 399; Barnes u. Ferine, 15 Barb. 2D0 ; 271 et seq.; 1 Davis's Dig. (Ind.), p. Smith V. Ide, 3 Vt. 295, denying die- 529, § 174. turn to the contra in Morley v. Booth ; (o) Flower v. BuUer, 15 Cli. Div. Bartlett v. Matson, 1 Mo. App. 155. 673. (n) See, also, Wait u. Wait, 28 Vt. (;>) Dyer v. Gibson, 16 Wis. 560. 742 CHAP. XIX.] CONTENTS OF MEMORANDUM — CONSIDERATION. [§ 422, ute.(y) It was said soon afterwards that the rule of Wain v. "Warlters did not apply under the seventeenth section ;(r) and it has been said that the word "agreement" in the fourth sec- tion was thought in Wain v. Warlters to mean more than the word " bargain" used in the seventeenth 8ection.(s) The dis- tinction between the two sections was clearly set forth in a later case, where it was said that, under the seventeenth sec- tion, a statement of the transaction would necessarily show the consideration, and a written promise, for example, "I will pay £50," could not evidence a sale of g(|pds.(<) The doctrine of Wain v. Warlters, firmly as it became established in the end, met with distinguished opposition when first announced. At common law it was doubted by Chief Justice Dallas,(M) and in chancery by Lord Eldon, who in one case directly de- cided the opposite,(v) and almost as positively in another,(w) in which the memorandum showed on its face no good con- sideration, but only a promise to answer for goods supplied a third person ; but parol evidence was admitted to show that such goods were actually furnished, and thereby a good con- sideration arose {i. e., of loss to the promisee). When the doctrine of Wain v. Warlters came again before the court (g) 5 East, 16, Lord EUenloorough proved and Wain v. Warlters doubted ; citing Comyn's definition of an agree- andseePaokardw. Ricliardson, 17Ma8s. ment, and commending the precision 129, in which the word "bargain" was of the Statute of Frauds ; see notes to thought to have a wider meaning than Day's edition of 5th East ; see Saunders " agreement." For cases holding Eger- V. Wakefield, 4 B. & Aid. 559, Abbott, ton v. Mathews and Wain v. Warlters C. J., adopting Lord EUenborough's inconsistent see infra. argument. (() Jenkins v. Reynolds, 3 Brod. & ()■) Egerton v. Mathews, 6 East, B. 18. 308. («) Boehm v. Campbell, 8 Taunt. (s) Laythoarp I'. Bryant, 2Bingh. N. 681; and see Morris o. Stacey, 1 L. C. 735 ; Marshall .,. Lynn, 6 M. & W. Holt, 153 116; but the word "bargain" in this (y) J^:r parte Minet, 14 Ves., Jr., 190 section is called there "such contract," (Aug. 12, 1807). and the latter word is even more compre- (w) Gardom (Ex parte), 15 Ves., Jr., hensive than "agreement;" see Pat- 287. In Black v. Gessner, 2 Thomp., mor V. Haggard, 78 111. 609 ; see Hunt No. Sc. 58,' Chief Justice Haliburton V. Adams, 5 Mass. 360, where the word said that he recollected the surprise bargainwas considered to mean as much with which the profession received as agreement in this connection, and Wain t'. Warlters. where Egerton v. Mathews was ap- 743 § 423.] LAW OP THE STATUTE OF FRAUDS. [CHAP. XIX. which decided the latter, Lord EUenborough, though urged by counsel to overrule the decision, put the question by and decided the then suit on another ground. (a:) Later cases con- firmed the rule, and "Wain v. Warlters remained law till done away with by Statute.(2/) As the roll of authorities given a page or two above shows, the rule of Wain v. Warlters has been followed to some extent in America. In an interesting decision in New York the subject was discussed at length, though the Statute of that state then expressly required the consideration to be •xplicitly given in the memorandum. (e) In Illinois the rule in question was approved in a recent case, which considered the word " contract" in this connection stronger than the word " agreement. "(«) lu Wisconsin Wain V. Warlters has been applied on principle, although this was unnecessary, the rule having been adopted by statute. (6) § 423. To go back to the law of N'ew York, attention may be called here to the peculiar difiiculty which has arisen dertheiaw In that State, from the fact that the statutory re- York!^ quirement of the expression of the consideration in the memorandum has been repealed. The contro- versy at once arose as to the effect of this repeal : did it mean to dispense with the expression of the consideration, or did it meat! to leave the law as it was before the repealed section was passed ? The weight of authority is in favor of the latter view, because, it being well settled before the repealed law was passed that the consideration must be expressed, and the law itself having been decided to require, not merely the expres- sion of the consideration, but an explicit expression, the repeal (x) Goodman v. Chase, 1 B. & Aid. that in Ex parte Gardom, Boehm v. 303. Campbell, and Puce v. Marsh the cou- ()/) Jenkins u, Reynolds, 3 Br. & sideration was sufficiently expressed. Bingh. 18, citing Lyon v. Lamb, Saun- (z) Bennett v. Pratt, 4 Denio, 276, ders o. Wakefield, and distinguishing citing, among other English cases, Stadt V. Sill, Bateman v. Phillips, Mor- Clancy v. Piggott, Morley v. Boothby, ris V. Stacey as cases where the memo- and, in New York, Sears v. Brink and randum showed the consideration, and Rogers v. Kueeland. the policy of the doctrine was regarded (a) Patmor v. Haggard, 78 111. 609. as good (see Houghton v. Ely, 26 Wis. (6) Taylor v. Pratt, 3 Wis. 692, ela- 185, denying this). Morley u. Boothby borately defining an agreement so as to citing the above cases, and suggesting include a consideration, that Ex parte Minet is misreported, and 744 CHAP. XIX.] CONTENTS OF MEMORANDUM — CONSIDERATION. [§ 424. meant that the latter was not necessary ; and, while an ex- pression of the consideration was still essential, any words by which the consideration could be gathered or inferred were enough. (c) The New York cases which, before the Revised Statutes and the Statute of 1813, opposed the rule of Wain v. Warlters, will be given later. § 424. It has been expressly enacted in the following states that the consideration need not be expressed in the meraorandum.(^) It has been suggested that Lord Tenterden's act as to the expression of consideration might only apply to the second clause of the 4th sec- tion of the Statute of Frauds.(e) In Georgia it was held that the act dispensing with the expression of the conside- statutes expressly permitting oral proof of the con- sideration. (c) Castle V. Beardsley, 10 Hun, 343 ; denying Speyers v. Lambert, 1 Sweeney, 338 (in the Superior Court of New- York); hut see May v. National Bank, 9 Hun, 111, and Patchen v. Brown, 3 Alb. L. J. 150 (both cases in the Su- preme Court), to the same effect as Spyers v. Lambert. In Marsh v. Chamberlain, 2 Lans. 293, the ques- tion was regarded as an open one. Clark V. Hampton, 4 Th. & Cook, 75 ; Mosher v. Hotohkiss, 3 Abb. App. Dec. 326; Miller v. Cook, 23 N. Y. 495; Burrell v. Boot, 40 N. Y. (1 Hand) 496, were cases of contracts made before the act of 1863, ch. 404, striking out the words in E. S. Pt. II. o. 7, tit. 2, § 2, " expressing the consideration." [d) California (as regards guaranties only): Civ. Cod. 1874, § 2793. Georgia : Sorrell o. Jackson, 30 Ga. 901 (act of 1852, 5 P. L. 243, not being repealedbyaotofl856,P.L.260); Black V. McBain, 32 Ga. 129. To the same effect see, also. Baker v. Herndon, 17 Ga. 571 ; hut this clause was left out of the revision of 1862, and is not now in use. Illinois, since 1874 : Patmor v. Hag- gard, 78 111. 609, citing McConnell u. Brillhart. Indiana, since 1843 : Hiatt v. Hiatt, 28 Ind. 34 ; Wills v. Ross, 77 Ind. 1. In Iowa, as has been seen, a writing presumes a consideration. Wise u. Ray, 3 Iowa, 431. Kentucky, since 1852 : Ratliff v. Trout, 6 J. J. Marsh. 606; Ellis v. Merriman, 5 B. Mou. 296. Massachusetts, since 1836 ; Wether- bee V. Potter, 99 Mass. 361. Michigan, since 1838 : Hall v. Soule, 11 Mich. 494 ; Scott v. Bush, 26 Mich. 420; Whipple v. Parker, 29 Mich. 371. Nebraska, since 1866. New Jersey, since 1875. Virginia and West Virginia, since 1850. Great Britain, since 1866 (19 and 20 Vict. C. 97, § 3) : Hoad v. Grace, 7 H. & N. 496 ; 31 L. J. Exch. 98 ; Holmes V. Mitchell, 7 C. B. N. S. 370; see Enoly. Britt. Title " Guarantee, "where it is stated that this act was passed upon the petition of north of England traders, who suffered from the differ- ence between the English and Scotch law. (c) Wynne v. Hughes, 21 W. R. 628 (per Bramwell, B.). 745 § 426.1 LAW OF THE STATUTE OF FKAUDS. [CHAP. XIX, ration was retro-active and declaratory, and, therefore, it was decided in 1854 that a memorandum expressing no considera- tion was valid, thou^^h executed in 1847, and though the act in question was not passed until 1852.(/) § 425. In the following states the question has been determined by a statute expressly requiring a state- ment of the consideration.(^) § 426. In some of the states where a statute was enacted to end all doubts upon the question, the pre- vious law had been quite unsettled, as in Indiana.(A) So the early cases in New York, though probably the law, was settled in favor of adopting the rule of Wain V. Warlters, even before the Act of 1813, or the Revised Statutes of 1830 •,{j) and since the Act of 1863, re- pealing the express provision in the Revised Statutes as to the statement of the con3ideration,(/;) there has been a conflict of Statute ex- pressly requiring a statement of the con- sidei-ation. States where the law, apart from a spe- cial statute, is or was uncertain. (/) Baker v. Herndon, 17 Ga. 571. {g) Alabama (since 1852) : Rlgby v. Norwood, 34 Ala. 132 ; Davidson v. Roth- schild, 49 Ala. 109 ; Wells v. Thomp- son, 50 Ala. 85 ; Locke u. Humphries, 60 Ala. 117. California (prior to 1874) : Ellison V. Jackson, 12 Cal. 542; Crooks i;. Sully, 50 Cal. 257; Colorado (since 1861) ; Idaho (since 1864). Minnesota (since 1851) : Walker v. McDonald, 5 Minn. 461 ; Sheldon o. Butler, 24 Minn. 515 ; Wilson Sewing Machine Co. u. Sohnell, 20 Minn. 40; Nichols V. Allen, 22 Minn. 283. Montana (since 1872) ; Nevada (since 1861) : Van Doren v. Tjader, 1 Nev. 388. New York (from 1830 to 1863) : In- diana (State of) V. Woram, 6 Hill, 36 ; Rogers v. Kneeland, 13 Wend. 121 ; Larson v. Wyman, 14 Wend. 246 ; Packer v. Willson, 15 W^nd. 346 ; Smith 0. Ives, 15 Wend. 183 ; Clark V. Richardson, 4 E. D. Smith, 174. Oregon (since 1863) : Corbitt v. Sa- lem Co., 6 Oregon, 405. 746 Utah (since 1876) ; Wisconsin (since 1839) : Turtou v. Burke, 4 Wis. 121 ; Putney v. Farnham, 27 Wis. 189 ; Parry v. Spikes, 49 Wis. 387. (A) Gregory v. Logan, 7 Blackf. 112, which has been cited as supporting Wain V. Warlters, is not conclusive, the contract being under seal ; it de- cides that the consideration of an administrator's promise need not be expressed. In McCoskey v. Deming, 3 Blackf. 146, the question was left un- decided, and was stated to be doubtful. (j) D'Wolf V. Rabaud, 1 Peters (U. S. S. C.) 501, citing Leonard v. Vreden- burg (as decision and not dictum), Bai- ley V. Freeman, Nelson v. Dubois ; and Leonard <' <*i*^®''- = ' r nj ence be- of 29 Car. II. c. 3, has been made the excuse for not tween following Wain v. Warlters, and where the two words and are used, it assumed that " agreenjent" means no ment?'^ more than "promise;" and while "agreement" in- cludes a consideration, "promise" does not.(2/) In Alabama, therefore, before 1849, the phrase used being " promise or agreement," it was held that the consideration need not be stated in the memorandum. (z) So in Florida.(a) In Illinois, where the word " promise" was used, the question was raised in an early case, but not decided.(6) In Kentucky, where the language of the Statute was the same, it was held that the consideration need not appear in the memorandum. (c) So in Mississippi, where the phrase is " promise or agreement. "(rf) («) ■Pyleru. Givens, 3 Hill (S. Car.), ting that tlie rule in South Carolina 52, citing Leoat v. Tavel and the, semble, was at one time the other way) ; see unreported case of Perley v, Legare, Thomas v. Crofts, 2 Richard. 117. and the note to Day's edition of 5th (w) Ide v. Stanton, 15 Vt. 689 (oit- East, distinguishing Stephens v. Winn ing Smith v. Ide). ■ as a ease where there was, in fact, no (x) Sheehy v. Adarene, 41 Vt. 541. consideration. There is a suggestion (j) Patmor v. Haggard, 78 111. 609 in Fyler v. Givens that, as to sales of (under act of 1869) ; Dorman v. Bige- land and agreements in consideration low, 1 Plor. 290 (Duv. Com. p. 206) ; of marriage, the rule is different, and Marshall «).Lynn,5M.&W.116(making that the consideration must be ex- the distinction between the 4th and pressed. But gucBre whether in such 17th sections of 29 Car. II. c. 3). cases as in that of a sale of goods any- (j) Thompson v. Hall, 16 Ala. 207, thing more is meant than that, if the citing a number of oases ; Rigby v. Nor- whole contract is set out as required wood, 34 Ala. 132. by the statute, the consideration must (o) Dorman v. Bigelow, 1 Flor. 290, always appear. Tindal v. Touchberry doubting Wain v. Warlters. decides that the memorandum need not (5) Conolly v. Cottle, Breese, 287. express the consideration (the word (c) Ratliffe v. Trout, 6 J. J. Marsh, "agreement" meaning no more than 606 ; see Chichester y. Vass, 1 Munf. 99. the word "promise"); so also Grilfin {d) Pearce «. Wren, 4 Sm. & M. 97, V. Rembert, 2 Rich., N. S. 414 (admit- citing cases. « 749 § 429.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XIX. So in New Hampshire,(e) and see an early case in New York,(/) and in Tennessee.(9') In Texas, the phrase " promise or agree- ment" was not regarded as entitled to any distinctive force, and Wain v. Warlters was denied. (A) And in Virginia the usual interpretation of the words in question prevails, and was originated, perhaps.(2) The inutility of the rule of Wain v. Warlters has often been asserted, as many of the authorities already quoted will show, and that thought, quite as much as any view of the meaning of the words " agreement" or " pro- mise" was doubtless in numerous instances the influence which induced a denial of the former English rule.(y) § 429. What, under the rule which requires an expression in the memorandum of the consideration, is a sufH- Manner of . , • i i , ■ <• • • i statement cient expression, has been a question or no inconsid- eration'-'^' erable difliculty, and in some applications of it has can be been greatly disputed. As a general rule, it is enough that the consideration may be inferred, or spelt out from the memorandum, and it need not be ex- plicitly 8tated.(A:) The rule was well stated by Erie, C. J., when he said that the consideration must appear "in the writing" containing the promise construed with the surround- ing circumstances to be gathered therefrom, together with the (e) Britton v. Angier, 48 N. H. 422, 217 ; Powers i. Fowler, 4 Ell. & Bl. citing cases. 516 ; Joint r. Mostyn, 2 Fox & Sm. 8 ; (/) Nelson v. Dubois, 13 Johns. 175. Boiling u. Munchus, 65 Ala. 561; Otis ig) Campbell v. Fiudlay, 3 Humph, c Haseltine, 27 Cal. 82 ; Tingley v. 332 ; Taylor i-. Ross, 3 Yerg. 331. Cutler, 7 Conn. 295 ; Hargraves v. (Ji) EUett V. Britton, 10 Tex. 209. Cooke, 15 Ga. 324 ; Wilson Sewing (t) Violett i. Patton, 5 Cranch. 151 ; Machine Co. v. Schuell, 20 Minn. 40 ; Colgiu o. Henley, 6 Leigh, 98 ; Cape- Hutton o. Padgett, 26 Md. 231 ; Orde- hart V. Hale, 6 W. Va. 550. man v. Lawson, 49 Md. 155 ; O'Bannon (_;■) See Taylor on Evid., 5th ed. p. u. Chumasero, 3 Montana, 422 ; Simons 888 ; see Gerow v. Clarli, 9 U. C. Q. B. v. Steele, 36 N. H. 73 ; Laing ^. Lee, 223, following Wain v. Warlters re- Spencer, 339. For a discussion of what luctantly. is a suilicient statement of the consid- (Jc) Bainbridgev.Wade, 16Ad. &E11., eration, so as to satisfy the Statute of N. S. 98 ; Jarvia v. Wilkins, 7 M. & W. Frauds, see Forth o. Stanton, 1 Saun- 410 ; Peate v. Dickens, 5 Tyr. 124 ; 1 ders, 210 ; Hamm. Theob. N. P. p. 9 e.t Cro., Mees. & R. 431; 3 Dowl. 177; sc?; 11. Dan. on Negot. Inst. (2ded.) p. Clancy v. Piggott, 4 N. & M. 502 ; 2 Ad. 686 ; 1 McVey's Ohio Dig., p. 344, § 31. & Ell. 473; Lang v. Neville, 6 Jur. 750 CHAP. XIX.J CONTENTS OF MEMORANDUM — CONSIDERATION. [§ 430. averments on the recorcl.(^) And, apart from the requirements of the Revised Statutes, the broad doctrine has been admitted even in New Yorl<:.(m) And such was the law before the Re- vised Statutes, and since the act of 1863, repealing the pro- vision therein relating to the present point.(n) In one case it was said that even under the Revised Statutes of 1830 the consid- eration could be inferred from the writing. (o) The whole of the consideration need not be stated,but a valuable considera- tion, or the fact of such a consideration, must be 8hown.(p) The court must be able, however, to ascertain, not merely a consideration, but the consideration of the contract.(5') Though the word " agreement," as used in the Statute of Frauds, is that which has been held to require the statement of the con- sideration, the word "agree," used in a memorandum, does not express the consideration ;(r) but the opposite of this has been stated in a federal decision.(s) The interpretation must point directly to one result, and mere conjecture, however strong, is in8ufficient.(<) A false statement of the considera- tion has been held to satisfy the Statute of Frauds,(M) as where the consideration was recited to be a dollar paid, which, in fact, was not paid.(?;) § 430. The words "value received" are a sufficient expres- sion of the consideration. (w) A memorandum unsealed in the (/) Shadwell v. Shadwell, 9 C. B. N. kinson, 3 Jur. 405, where Lord Denman S. 173 ; see Greenham v. Watt, 25 U. uses the language ascribed to him by C. Q. B. 369. Judge McLean. (m) Bennett w. Pratt, 4 Denio, 276 ; (() Havres u. Armstrong, 1 Scott, 669 ; McKensie v. Farrell, 4 Bosw. 207; 1 Bingh. N. S., 765 ; 1 Hodges, 174; see Church V. Brown, 21 N. Y. 316 ; Packer Wilson Sewing Machine Co. «. Schnell, V. Willson, 15 Wend. 346. 20 Minn. 40, citing Caballero v. Slater. (n) Speyers o. Latnbert, 1 Sweeny, («) Happe v. Stout, 2 Cal. 460 (in 338 ; Castle v. Beardsley, 10 Hun, 343 ; point of fact, the consideration was not Laws, 1863, c. 464. received). (o) Church V. Brown, 21 N. Y. 316 ; (r) Barnum o. Childs, 11 Barb. 14 ; but see the above cases. 1 Sandf. Ch., 61. (p) Boiling V. Munchua, 65 Ala. 561. (w) Waddell v. McCabe, 4 IT. C. Q. (?) Raikes v. Todd, 8 A. & Ell. 855. B., 0. S. 191 ; 3 id. 602 ; Violett (r) Newcomb v. Clark, 1 Denio, 228. vJ Patton, 5 Cranch, 151 ; Brooks u. (s) How V. Kemball, 2 McLean, 107, Morgan, 1 Harring. (Del.) 124 ; Ede- citing Davies v. Wilkinson, as stating len v. Gough, 5 Gill, 108 ; Huttou i;. that the words " I agree to pay" im- Padgett, 26 Md. 228; Jones v. Palmer, port a consideration ; see Davies v. Wil- 1 Doug. (Mich.) 379 ; Frank v. Irgens, 751 § 430.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XIX. form of a penal bond, and expressing to be for value received and binding the oblisrors to pay the debts of a third The words ° , ,. ° . %, . "value person to the obligee, is a sunicient memorandum received. ^^ showing consideration.(a;) A promissory note stating the consideration to have been " value received" by my late husband ; held to be sufficient, under the Statute of Frauds, whether the maker was administratrix or not.{y) The words " value received" are not conclusive, and therefore where the evidence shows that the benefit of the consideration all went to a third person, the obligee was not allowed, to recover.(2) The word " convey" is not equivalent to. " sell," and does not import a consideration; the memorandum was: " I have this day conveyed a note of J. E. S., which note I hold myself accountable for the payment thereof.(a) A promis- sory note and commercial paper generally import a considera- tion, and need therefore express none.(6) Whether a note or bill has the words "value received" is not important.(c) Parol evidence is admissible to show the consideration of a promis- sory note, and this though such consideration was an oral contract within the Statute of Frauds.(<^) 27 Minn. 43 ; Marshall v. Cobleigh, Day v. Elmore, 4 Wis. 190 ; Cheney v. 18 N. H. 492 ; Leonard u. Vredenburg, Cook, 7' Wis. 423; Dahlinan k. Ham- 8 Johns. 37 ; Howard v. Holbrook, 9 mel, 45 Wis. 468. Bosw. 240 ; Cooper v. Dedrick, 22 Barb. (x) Aikin v. Duren, 2 N. & McC. 371. 516 ; Watson v. McLaren, 19 Wend. {y) Ridout v. Bristow, 1 Cr. & J. 663 ; Douglas v. Howland, 24 Wend. 231. 40 ; Brewster v. Silence, 4 Seld. 207 ; (z) Lines v. Smith, 4 B'lor. 47, citing Churoli V. Brown, 21 N. Y. 316 ; Moore cases ; and see Wyman v. Gray, 7 H. V. Cross, 19 Law Reporter, 673 ; Miller & .Johns, 415, where the defence was V. Cook, 23 N. Y. 495 ; Moster v. Hotch- rested on the Statute of Frauds ; Sum- kiss, 3 Abb. App. Dec. 326 ; Leonard rait v. Ridgely, 20 Md. 116. V. Sweetzer, 16 Ohio, 4; Sidle v. An- (a) Spioer v. Norton, 13 Barb. 545. derson, 45 Penna. St. 464 ; Woodward (6) 1 Daniel on Negot. Inst., p. 94, i;. Pickett, Dudley, Dig. So. Car. 31; Mo- etc. (2d ed.), 137 etseg.; Wait's Act. Morris V. Herndon, 2 Bailey, 57 ; Aikin and Def., pp. 563, 608; Thompson v. V. Duren, 2 N. & McC. 371 ; Caldwell Armstrong, 5 Ala. 387 ; Townsend o. V. McKain, id. 555 ; Legare v. Potter, Derby, 3 Meto. (Mass.) 364. 1 Rice, So. Car. 362 (but until then (c) Cook v. Gray, Hempstead, 84 ; (1825) the point had been in doubt) ; see 1 Dan. on Neg. Inst., p. 94 (2d ed.). National Bank o. Kinner, 1 Utah, (rf) Edgerton u. Edgerton, 8 Conn. 102 ; EUett v. Britton, 10 Tex. 209 ; 10 ; but, semble, according to Sackett v. Lapham r. Barrett, 1 Vt. 252 (a case Palmer, 25 Barb. 179, such proof would not under the Statute of Frauds) ; defeat recovery. 752 CHAP. XIX.] CONTENTS OF MEMORANDUM — CONSIDERATrON, [§43l. § 431. A seal is a sufficient substitute for the expression of consideration. (e) Thus, a bond for consideration of blank dollars is good. (/) It was suggested that under ofaseai; the Revised Statutes of New York a seal was not ^°np'?"''='^' a sufficient expression of the consideration, but that whether 1 ■ • r \ 1 1 writing im- au explicit statement was necessary ;(^) and where portsacon- an order for money was sealed, and thereby rendered non -negotiable, it was held in Pennsylvania that a seal was no proof of consideration so as to show an obligation in the drawer to pay the amount of the order to the payee.(A) Parol evidence has been held admissible to show that no considera- tion was agreed to be paid under a contract evidenced by a specialty ;(i) and. this is the rule under the California law ranking together parol writings and specialtie8.(j ) In some states any promissory writing, whether sealed or not, im- ports a consideration. (A) So in Tennessee.(i) An agreement, showing mutual promises, sufficiently expresses the consid- (e) Gregory v. Logan, 7 Blackf. 112; Steadraan c. Gathrie, 4 Mete. (Ky.) 152 ; Edelen v. Gough, 5 Gill, 103 ; Hut- ton V. Padgett, 26 Md. 228 ; Mitchell v. McCleary, 42 Md. 377, citing Nabb v. Koontz ; Jones u. Palmer, 1 Doug. (Mich) 379 ; Livingston v. Tremper, 4 Johns. 416 ; Leonard v, Vredenburg, 8 Johns. 37 ; Kerr v. Shaw, 13 John. 236 ; Watson v. McLaren, 19 Wend. 563 ; Cooper v. Dedriok, 22 Barb. 516 ; Bush V. Stevens, 24 Wend. 257 ; Doug- las V. Rowland, 24 Wend. 40 ; Burrell V. Root, 40 N. Y. (1 Hand), 496 ; How- ard V. Holbrook, 9 Bosw. 240 ; Mol^en- sie V. Farrell, 4 Bosw. 207 ; Mosher v. Hotchkiss, 3 Abb. App. Deo. 326 ; Mil- ler V. Cook, 23 N. Y. 495 ; Rosenbaum V. Gunter, 2 E. D. Smith, 416 ; Brew- ster V. Silence, 4 Seld. 207 ; Day v. El- more, 4 Wis. 190. (/) Whitby V. Whitby, 4 Sneed. 473. {g) Rogers v. Kneeland, 13 Wend. 121 ; see Baker v. Cornwall, 4 Cal. 16. VOL. I. — 48 (A) Sidle V. Anderson, 45 Pa. St. 464. (j) Childs . Curtiss, supra; law, was a sufficient memorandum un- see Draper u. Snow, 20 N. Y. 333 ; der the Statute of Frauds) ; Howland Wood f. Wheelock, 25 Barb. 626 ; v. Aitch, 38 Cal. 135. see Taylor v. Pratt, 3 Wis. 692. (p) Hall r. Farmer, 2 Comst. 557; (n) Johnson v. Gilbert, 4 Hill, 178. Brewster v. Silence, 4 Seld. 207 ; Glen (o) Leonard v. Vredenburg, 8 Johns. Cove Insurance Co. v. Harrold, 20 Barb. 37 ; Wheelwright v. Moore, 1 Hall. 652 ; 301 (following Brewster v. Silence un- • 764 CHAP. X1X.J CONTENTS OF MEMORANDUM — CONSIDERATION. [§ 436. made between a guaranty of the collection of a note and a guaranty of the payment, it being held that a promise of the latter class, if endorsed on a promissory note, imported a con- sideration, while one of the former class did not. But, since Brewster v, Silence,(5') this point is of no value, inasmuch as both classes are equally within the Statute of Frauds. § 436. There remain for consideration a few cases of ordi- nary written contracts not negotiable in character Examnie in which the reference of the guaranty to the prom- of memo- .'^ . randa suffl- ise answered for appeared with sumcient clearness cientiy to enable the court to say that the consideration thecoDfid- expressed in the latter was that of the former also, oration. The most important of these decisions was that in which the facts were as follows :(r) The defendant wrote this guar- anty upon the paper containing a contract contemporaneously entered into : "I will be responsible for all such goods as Mr. "White shall buy of the Messrs. Church within one year from date, and which shall be paid for according to the terms of the written contract;" and the written contract thus guaran- anteed provided for future sales by Church, the plaintiti', to White, the person answered for. It was held that the Statute of Frauds was satisfied. An undertaking written at the foot of a contract of sale of chattels, and contemporaneous with it, guar- anteeing " a full and perfect performance," etc., on the part of the vendor, the defendant, shows the consideration 8ufficiently.(s) In a California case, where the memorandum was, " I hereby guaranty the fulfilment of the within charter," was held sufli- willingly). See Van Doren v. Tjader, Burt v. Horner, 5 Barb. 503 ; Spicer v. 1 Nev. 388. In Hunt v. Brown, 5 Hill, Norton, 13 Barb. 543 ; Tyler v. Stevens, 145, it was held that the endorsed 11 Barb. 486. guaranty did not show any considera- (r) Church u. Brown, 21 N. Y. 316, tion, but admitted, as we have already considering with some care the earlier seen, that, had the guaranty been oases, and relying on Union Bank c. of the payment of the note, and not Coster, which was said not to have been merely of its collection, the endorse- overruled by Brewster v. Silence. Hall ment might have been sustained as in v. Farmer was said not to have settled effect a promissory note. This distinc- anything, and Brewster v. Silence was tion was recognized in Spicer v. Norton, doubted by at least one of the court. 13 Barb. 543 ; Tyler v. Stevens, 11 (s) Enos c-. Thomas, 4 How. Pr. 50, Barb. 486. citing Hunt v. Adams ; Hough v. Gray ; (y) Hunt V. Brown, 5 Hill, 145 ; Lequeer v. Prosser ; Hall v. B'armer. 765 § 437.] LAW OP THE STATUTE OP FRAUDS. [CHAP. XIX. cient, some force being given to the expression "within char- ter. "(0 Where a mortgagor, in no way liable for the debts, agrees in the mortgage to insure the premises, this being beneficial to the promisee and prejudicial to the promissor, and expressed as part of the consideration of the mortgage, shows the consideration sufficiently .(m) § 437. Another fact which has a determining effect upon „, the question as to the sufficiency of the statement sion of a of the consideration, is whether the latter, as shown future con- by the memorandum, is past or future. If past, it eiaeratiou. j^ ^^ consideration at all ; but if future, it is good. The following examples will show how far the courts will go in the endeavor to support the written promise by ascertain- ing from it, or from admissible suppletory evidence, a valid consideration. Thus the words used are "your account;" oral evidence to identify the account and show it to be future will be admitted.(t7) And it was said that the words of a guaranty are to be taken most strongly against the guarantor. And, generally, where the expression is ambiguous, oral evi- dence to show that a future consideration was meant, is ad- (0 Hazeltine u. Lareo, 7 Cal. 33 following is an example of a case in (relying, however, upon the doubtful which no consideration, either written authority of Legget o. Eaymond and or oral, appeared for the defendant's Manrow v. Durham). A dictum open promise. C. promised by sealed writ- to criticism will be found in one of ing to pay to B., in promissory notes the earlier New York eases, in which of the defendant Roberts, for certain it having been held that a promise to goods ; C. gave a written order, direct- buy land with certain funds acknowl- ing the defendant to deliver the notes edged to have been received, and a to B., and the defendant endorsed the promise endorsed on the paper guar- order, "Accepted, Edward Roberts." anteeing the performance of the first The plaintiff is B.'s assignee. It was contract, cannot be joined in one ac- held that the memorandum was invalid tion, as they are separate contracts ; it for not showing a consideration under was said that, if both contracts had the Statute of Frauds ; Wilson v. Rob- not been under seal, the guaranty erts, 5 Bosw. 107. would have been within the Statute of (u) Moog v. Strang, 69 Ala. 102. Frauds as not expressing a considera- (v) Walrath a. Thompson, 4 Hill, tion; the two promises were contem- 201. See Weed y. Clarke, 4 Sandf. 31, poraneous. De Ridder v. Schermer- agreeing that the words "your ac- horn, 10 Barb. 640, saying that Lequeer count" might be sufiicient identifica- V. Prosser and Enos v, Thomas were tion, but criticizing the other observa- overruled by Hall v. Farmer. The tions made in the case. 766 CHAP. XIX.] CONTENTS OF MEMORANDUM — CONSIDERATION. [§ 437. rais8ible.(M)) A memorandum, " I will be responsible for the purchase of good irora W. S. & Co. for H. 0. D.," was held to apply to future sales.(a;) In this, as in the following cases, the use of a verb in the past tense was not taken as showing a past transaction ; so, where the guaranty was, " In consider- ation of your being in advance to," etc., it was said that an executed consideration was not necessarily imported. (y) Where, through use of the past tense in a memorandum, it is doubtful whether the consideration is past or future, the latter w\\\ he Assumed utmagis,etc.{z) So a memorandum, "I do here- by agree to become security for Mr. R. G., now your traveller, in the sum of £500, for all money he may receive on your ac- count," shows the consideration sufficiently, i. e., the continu- ance of the traveller in the plaintiff's service.(a) Where P., the party answered for, had asked the plaintiffs to sell him goods, and they had refused, and the defendants the next day («)) Goldshedei). Swan, 1 Exch. 159, citing cases. (x) Williams v. Ketchum, 19 Wis. 231. The following guaranty, " Mr. Livie, having chartered your ship, etc., to hring a cargo, etc., and the same being landed to the charterer, and he having paid you one-half the freight, and given you his acceptance for the remaining half, etc., I engage to be accountable to you for the amount of said acceptance, ' ' etc., was held to show a consideration, viz., that the bill would not have been taken but for the guaranty ; Pace v. Marsh, 1 Bingh. 216 (more fully given in 8 J. B. Moore, 61-2), relying upon Boehm v. Campbell. (!/) Brooks V. Haigh (Scacc. Cam.), 10 A. & Ell. 334; S. C. below, id. 319. See Laing u. Lee, Spencer, 339. So the following, "Become the security of Mr. De Billers to Mr. Lecat, for the sum of twenty-four piastres, which Mr. De Billers owes Mr. Lecat, and which I undertake to pay only in case Mr. De Billers shall fail to pay the same," was held to show the consideration to be the order drawn by De Billers on the defendant ; Lecat «. Tavel, 3 McCord, 158. (z) Steele v. Hoe, 14 A. & Ell., N. S. 445, citing cases. See note to Amer. ed. Gorrie v. Woodley, 17 Ir. G. L. 221. (a) Ryde v. Curtis, 8 Dow. & Ry. 62. See Lysaght v. Walker, 5 Bligh N. R. 25. So a memorandum in which the obligor binds himself "as security to you for J. C, late in the employ of, etc., for whatever you may entrust him with while in your employ," is sufficient as the inference is that J. C. was going from another employment to that of the plaintiif ; Newbery v. Armstrong, 6 Bingh. 202; 4 C. & P., 60 ; Moo. & Mai. 389. So it was held that this note ..." I undertake to pay to Mr. Robert Jarvis the sum of £6 4s. for a suit ordered by Daniel Page, S. W. Wilkins," was not a prom- issory note requiring a stamp, but a valid guaranty, showing by the word "ordered" what the consideration was ; Jarvis v. Wilkins, 7 M. & W. 410. 767 § 437."! LAW OF THE STATUTE OP FRAUDS. [CHAP. XIX. telegraphed the latter, " I will be responsible for P.'s bill of goods ordered yesterday," it was held that the consideration was the reliance of the plaintiffs upon the defendant's promise, and that the latter engagement was that, if the plaintiffs would deliver the goods to P., the defendants would pay for them. (6) So the following: " I hereby guarantee to you the sum of, etc., in case Mr. P. should default in his capacity of agent and traveller to you. "(c) In several instances a guaranty covering both a past and a future consideration has been sustained ; as a guaranty of future drafts to be accepted and of past acceptance. ((/) Putin an English case, where the defendant undertook to secure the payment of any sums the plaintiff' had advanced or might advance (see § 449 for a further consideration of the point of a past or future consideration) ; the court thought that they could not determine what the real consideration was, whether the past or the future advances. If for past advances, the request should be stated to make a binding agreement ; if for future only, then the proof is not satisfactory, for the memo- randum may include past advances as well. It is true that the consideration may be inferred, but the court must be able not merely to ascertain a consideration, but the considera- tion. (f) A memorandum of what " stock" a person " has had or may want" is good.(/) (6) Dunning v. Roberts, 35 Barb. The former cited Stadt v. Lill and Bate- 468. For an example of a guaranty man v. Phillips ; Wilson v. Hill, 6 U. reciting a past matter being interpreted C. K. B., 0. S. 9. to be a promise in consideration of the (rf) Button u. Padgett, 26 Md. 228. thing being done which was recited as See, also, Staats v. Hewlett, 4 Denio, having been done, and held a sufiBcient 566 ; Littlejohn (Ex parte), 3 M. D.& De memorandum, see Butcher v. Stuart, G. 186 ; Dutchman c. Tooth, 7 Scott, 11 M. & W. 873 ; and for a verb in the 71U ; 5 Bingh. N. C. 577. In Staats v. past tense, construed to refer to a fu- Howlet it was admitted that the por- ture valid consideration. tion of the contract relating to the exe- (c) Kennaway v. Treleavan, 5 M. & cuted contract was invalid, but it was W. 498, citing Raikes c Todd and held that this did not aifect the rest. Newberry v. Armstrong. "I hereby (e) Raikes z\ Todd, 8 A. & Ell. 855. guarantee the payment of, etc., the (/) Gates e.'. McKee, 3 Kern. 238. machine which ■ has purchased See Russell o. Moseley, 3 B. & B. 211. from you, etc.;" one judge thought the For examples of memoranda valid as consideration, i.e., future, good; the showing a future consideration, see other thought the consideration past, the cases in the note. Nash u. Hart- 768 CHAP. XIX.] CONTENTS OF MEMORANDUM — CONSIDERATION. [§ 438. § 438. The reliance placed by the promisee upon the guar- anty may have been shown in his forbearance of a claim. As where the defendant, a solicitor of a tionof for- purchaser of land, wrote to B., solicitor for Bowers, ^""^"'='^' the plaintiff, the vendor, as follows : " To save the purchaser from danger of entire destruction of his credit there appears to be no alternative but for me to undertake to settle the pur- chase. After long consideration I very reluctantly undertake to settle it within two months, if that will be satisfactory to your clients." It was held that the last eight words taken with what went before showed the consideration.(^) A written promise to pay a certain sum if a third party does not pay it in instalments implies that the consideration is the forbearance of the promisee to proceed against such third person.(A) A written promise to see a debt paid, one-half in six and the other in twelve months, shows a consideration of forbearance.(t) Where the defendant signed the following: " Messrs. Hawes — " ..." I forward you the bills drawn per J. T. A. upon and accepted by L. D., which I doubt not will meet due honor ; but in default thereof I will see the same paid ;" and J. T. A. and L. D. had owed the plaintiffs the precise amount named in the bills; it was held that the land, 2 Ir. Law Rep. 196 ; Broom v. not be sued for two years ; Coe v. Duf- Batohelor, 1 H. & N. 255 ; 25 L. J. field, 7 Moore, 255. Exch. 299 ; 4 W. R., 712 ; Colbourn v. (A) Joint v. Mostyn, 2 Fox & Sm. 8. Dawson, 10 C. B. 765 ; Edwards v. For other examples of forbearance ap- JevonSj 8 M. G. & S. 444 ; Whitmore pearing to be tbe consideration, see V. Johnson, 1 Jeb. & Sym. 15. See Lent d. Padelford, 10 Mass. 236 ; Short- Haw. & O'Brien, U. C. Dig. p. 358-9. rede v. Cheek, 1 A. & EU. 58. (g) Powers v. Fowler, 4 E. & Bl. {i) Neelson o. Sanborne, 2 N. H. 516. 414. Where a letter showed an offer of One judge thought that the follow- forbearance upon a guaranty, and a ing was a sufficient statement of the con- guaranty was given as follows : "I sideration in a promissory note agreeing hereby guaranty to you the payment to pay "$647.75 for this amount due of, etc., due from H. W. for articles him" (payee) "by Richard Tarrant," which have been delivered to him," as implying a substitution of the defen- etc, so that this, my guaranty, shall dant's credit for that of Tarrant, and not be put in force against me for two an extinguishment of the demand years, it was held that the memoran- against the latter; Click v. McAfee, 7 dum was good, the letter and guaranty Porter, 65. together being enough ; H. W. could VOL. I.— 49 769 § 439.] LAW OF THE STATUTE OF FRAUDS. [CHAP. XIX. consideration of the defendant's promise, i. e., the plaintiffs' forbearance of the debt of J. T. A. and L. D. till the bills became due did not appear in the memorandum; such a consideration was extremely probable; but there were other possible considerations, e.g., the discounting of these bills, or giving a credit by the plaintiffs to J. T. A. and L. D.(./) An undertaking for the ultimate payment of the debt an- swered is insufficient, inasmuch as if forbearance is the consideration, it is too indefinitely stated. (/i) Where the fol- lowing was the memorandum relied on, the expression of the consideration of forbearance was considered insufficient; thus: Debt, £6-11-11. Costs, etc. "We undertake to pay, etc.. Cole the debt and full costs in this action, provided, on or before the first day of, etc., a sum of, etc., be not paid to him.(?) "Where M. being indebted to the plaintiffs, the latter takes his promissory note endorsed by the defendants as follows : " We guarantee the payment of the within note," there is no con- sideration shown, for though the consideration may have been forbearance to press M., there might be other considera- tions.(m) § 439. In the note will be found some cases which are ex- amples of memoranda sufficiently stating the consideration of the contract. (n) The examples of memoranda not properly (j) Hawes v. Armstrong, 1 Scott, sideration of forebearance, or of ^ny- 669 ; 1 Bingh. (N. C.) 765 ; 1 Hodges, thing else, and is invalid under the 174. Statute of Frauds ; Palsgrave v. Mur- • (k) Smith V. Ives, 15 VPend. 182. phy, 14 U. C. C. P. 154, citing Clancy (0 Cole V. Dyer, 1 Cr. & Jer. 462. v. Piggott. For other examples of memoranda not " I hereby become responsible to you sufficiently showing a consideration of for the payment of £120 17s. 6d., etc. forbearance, see Price v. Richardson ; etc., in case John Cooper fails in pay- 15 M. &W. 540 ; Lang v. Nevill, 6 Jur. ing the same," shows no consideration ; 217 ; Bennett u. Pratt, 4 Denio, 276 ; that claimed was forbearance ; Evans Slingerland v. Morse, 7 Johns. 463. v. Robinson, 16 U. C. Q. B. 170, citing (m) Lock .;. Reid, 6 U. C. Q. B., 0. cases. S. 296, citing Hawes v. Armstrong. (n) Coldham v. Showier, 3 C. B. 312 ; A memorandum, " I hereby guar- 2 C. & K., 261 ; Wynne v. Hughes, 21 autee to pay the sum of ten dollars per W. R. 628 ; Redhead v. Gator, 1 Stark, week until the sum of $300 due by," 14 ; Caballero u. Slater, 14 C. B. 300 ; B. & H., "printers of the Irish Cana- Benson i'. Hippius, 4 Bingh. 458 ; Em- dian shall be paid," shows no con- mott v. Kearns, 5 Bingh. N. C. 559 ; 770 CHAP. XIX.] CONTENTS OP MEMORANDUM — CONSIDERATION. [§ 439. stating the consideration have, for the naost part, been grouped under the heads given above. The primary ques- ^jj^^^j tion is, whether the guaranty shows that the promise laneous answered for was accepted in reliance upon it. The of memo- following are some cases in which a failure in this gbowtng respect was fatal: "We, etc., take pleasure in re- sufficiently commending Gr. W. S. to Deutsch & Co;" "We, cientiythe etc., agree to become responsible for $350 to said tion of the Deutsch & Co., to be forthcoming, etc., after the <='"i"'^'=t- delivery of the work ;" parol evidence to show that Deutsch & Co. were printing a book for Q. W. S., an author, was inad- missible.(o) Where the defendant bought for himself, and then bought for A., and the invoices thus, " A. (guaranteed by J. L., the defendant) were sent to the defendant, who, upon A.'s not paying, sent the goods to the plaintiffs, saying that he would guarantee what A. had got, except the last lot, and this because A. no longer sent his goods to the defendant to sell," it was held that a request by the defendant that the plaintiff should make the later sale to A., does not follow from a request to make the first sale, and that oral evidence was pot admissible to show that the second sale was made upon such a reque8t.(^) As has been seen, the fact of the contemporaneity of a guaranty and the agreement guaranteed is generally regarded as indicating a common consideration for the two engagements. But where the guaranty is subse- quent to the original contract, the consideration of the latter cannot support the forraer.(5') Endorsing on a note a guaranty Fellows V. Prentiss, 2 Denio, 512 ; Grant v. Hotohkiss, 26 Barb. 66 ; East- man V. Bennett, 6 Wis. 241. (o) Deutsch V. Bond, 46 Md. 168 ; see § 437. (p) Lyon V. Lamb, Fell on Guar., Appendix III. p. 351. The following, " I hereby engage to pay you on Mr. Thomas Lamb's account £50 at the ex- piration of the usual credit, on the event of any deficiency on his part so to do," was held not to show the con- sideration. Atkinson v. Carter, 2 Chitt. 403. So the following: "I hereby agree to pay you the rent, etc. , of the house hired of you by, etc., in case he fails." Newcomb v. Clark, 1 Denio, 228. (q) Gillighany. Boardman, 29 Me. 79 ; Crofts u. Feugo, 6 Jr. Jur. 160; Clark V. Small, 6 Yerg. 423 ; Rigby v. Nor- wood, 34 Ala. 132; Pope v. Fort, 2 MoMull. 62; M'Coskey v. Doming, 3 Blaokf, 146. See the N»w York cases, supra. The following are some ex- amples of memoranda showing a past consideration, if any, thus: "As you have a claim against my brother . . 771 § 439.] LAW OF THE STATUTE OP FRAUDS. [CHAP. XIX. that it is not outlawed under the laws of the state, shows no consideration to be invalid.(r) Where one consideration is alleged, and another appears in the memorandum, oral evi- dence to show that the former is the true one, is not admissi- ble, as thereby there would be a varianee.(s) But it has been said that the point that a consideration is misdescribed in the declaration as past, is not important, the writing showing a future one.{t) For examples of memoranda generally insuffi- cient as not showing the consideration, see the cases in the note.(M) I hereby undertake to pay you." James v. Williams, 3 Nev. & Man. 200 (and note); 5 B. & Adol., 1110 ; 2 Dowl., 481, distinguishing Coe v. Duffield. And so a promise to indemnify one for be- coming surety not made at the latter's request, and subsequent to the con- tract of suretyship ; Carroll v. Nixon, 2 Miles, 432. A written promise to pro- cure a guaranty which described the latter as being on a past consideration would, if broken, entitle the promisee only to nominal damages for the breach ; Bushell V. Beavan, 1 Bingh. N. C. 122. For further examples of memoranda showing a past consideration, see the following cases : Weed v. Clarke, 4 Sandf. 38 ; Bennett r. Pratt, 4 Denio, 275 ; Morley v. Boothby, 3 Bing. 112 ; Bewley v. Whiteford, Hayes, Exch. 361 (citing and considering a number of cases); Whitmore o. Johnson, 1 Jebb. & Sy. 15 ; AUnutt v. Ashenden, 6 M. & G. 392; Ellis