requisite to pass the title to goods, or to take the case out of the operation of the statute of frauds. But even in this general view of the subject, it has been difficult to select those leading principles which were sufficient to carry us safely through the labyrinth of cases that overwhelm and oppress this branch of the law.

*510.

*VIII. Of the memorandum required by the statute of

frauds.1

The statute of frauds, of 29 Car. II. ch. 3, sec. 4, declared, that no action should be brought to charge any executor or administrator, upon any special promise,2 to answer damages out of his own estate; (a) or to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person; or to charge any person, upon any agreement made upon consideration of marriage; (b) or upon any agreement that was

(a) The New York Revised Statutes, vol. ii. p. 113, sec. 1, have improved upon the phraseology of the English statutes, by adding, or to pay the debts of the testator or intestate out of his own estate.

(b) This did not apply to mutual promises to marry. Cork v. Baker, Str. 34; and

1 Where general agreements form one transaction, some of which are invalid for noncompliance with the statute, if separable the good contracts may be treated as separate and upheld. If not thus capable of separation, all are void. Hodgson v. Johnson, 1 Ell., B. & El. 685. The memorandum being necessary, only as evidence, may be made at any time. Bailey v. Sweeting, 9 C. B. (N. S) 843. Barkworth v. Young, 4 Drewry, 1. Shippey . Derrison, 5 Esp. 190. But the contract must be all in writing; it cannot be part written and part oral. Wright v. Weeks, 25 N. Y. 153.

2 A covenant to pay the debt of another is not within the statute, the seal excluding it from the purview of the statutes. Douglass v. Howland, 24 Wendell, 35. Idem, 256. Barnum v. Childs, 1 Sandf. (N. Y.) 58. Edelen v. Gough, 5 Gill, 103. The latter case declares that "value received" will have the same effect on the contract, with which agree Miller v. Cook, 23 N. Y. 495, Lapham v. Burritt, 1 Vermont, 247, Whitney v. Stearns, 16 Maine, 394. A promise by one to share in the expenses, for which others have become liable, if made to those persons, is not a promise to pay the debt of another. within the statute of frauds. Flemm v. Whitmore, 23 Mis. (2 Jones) 430.

3 It is held, that a promise to pay one's own debt to a third person is not within the statute of frauds. Barker v. Bucklin, 2 Denio, 45. Blunt v. Boyd, 3 Barb. (N. Y.) 209. Antonio v. Clissey, 3 Rich. 201. Nor is a promise to pay over money collected or remitted. Prather v. Vineyard, 4 Gilm. 40. Wyman v. Smith, 2 Sandf. (N. Y.) 331. The responsibility of a del credere factor may be assumed by parol. Sherwood v. Stone, 4 Kernan (14 N. Y.) 267. To take the case out of the statute, the entire credit must be given to the collateral promisor. Brady v. Sackrider, 1 Sandf. (N.Y.) 514. Kingsley v. Balcome, 4 Barb. (N. Y.) 131. Gleason v. Briggs, 2 Wms. (28 Vermont,) 135. In Mallory v. Gillett, 21 N. Y. 412, it was decided that the surrender to its owner of personal property subject to a lien, at the request of a third person, and on his promise to pay to the lien-holder the amount of his lien, was not such a consideration as would give validity to the verbal promise. This case contains a full discussion of the cases relating to this diction of the statute, and attempts to classify the apparent exceptions which have, from time to time, been made in judicial decisions, and to show that

not to be performed in one year, (c) unless there was some memorandum or note in writing of the agreement, signed by the party to be charged, or his agent. The statute in respect to the memorandum, applied also to contracts for the sale of goods, wares, and merchandise, in cases where there was no delivery and acceptance

in the New York Revised Statutes, vol. ii. p. 135, sec. 2, this exception is expressly made.

(c) The statute only applies to agreements which are, by express stipulation, not to be performed within a year. It does not apply to an agreement which appears from its terms to be capable of performance within the year, nor to cases in which the performance of the agreement depends upon a contingency which may or may not happen within the year.5 Peter v. Compton, Skinner, 353. Tolley v. Greene, 2 Sandf. Ch. 91. Fenton v. Emblers, 3 Burr. 1278. Wells v. Horton, 12 B. Moore, 177. Moore v. Fox, 10 Johns. 244. M'Lees v. Hale, 10 Wendell, 426. Peters v. Westborough, 19 Pick. 364. Lockwood v. Barnes, 3 Hill (N. Y.) 128. An inchoate performance within the year, under a parol agreement, is not sufficient to take the case out of the statute. The statute excepts agreements only that are to be performed, that is, completed within the year. Boydell v. Drummond, 11 East, 142. Birch v. Earl of Liverpool, 9 Barn. & Cres. 392. Hinckley v. Southgate, 11 Vermont, 428. Lockwood v. Barnes, 3 Hill (N. Y.) 128. Herrin v. Butters, 20 Maine, 119. Johnson v. Watson, 1 Kelley, 348. The statute of frauds does not apply to executed contracts, which have been completely performed on both sides. Nor does the statute apply to the case of goods sold and to be delivered within the year, but where the price was not to be paid until after the expiration of the year. Donellan v. Reed, 3 Barn. & Adol. 899. Holbrook v. Armstrong, 1 Fairfield, 31. Johnson v. Watson, 1 Kelly, 348. The design of the statute, said Lord Holt, was not to trust the memory of witnesses beyond one year. Lord Raymond, 317; and it was adjudged, in Broadwell v. Getman, 2 Denio 87, that a parol agreement which was not wholly to be performed within a year, was void, even though one of the parties had a longer time than a year for the performance, and the authority of the decision in Donellan v. Reed was questioned and not acceded to.

such cases do not really fall within the purview of the statute. See, also, Kingsley v. Balcom, 4 Barb. (N. Y.) 131. Emerson v. Slater, 22 How. U. S. 28. Thomas v. Murray, 34 Barb. (N. Y.) 157. Walker v. Penniman, 8 Gray, 233. Nabb v. Koontz, 17 Md. 283. Walker v. Richards, 39 N. Hamp. 259. Fitzgerald v. Dresser, 7 C. B. (N. S.) 374. See, also, vol. 3, p. 179, and Quintard v. De Wolf, 34 Barb. (N. Y.) 97.

A married man, promising to marry a woman, she being ignorant of his being married, is liable to an action for a breach of promise, on his marriage being made known to her. Millward v. Littlewood, 1 E. L. & Eq. 408.

5 Lyon v. King, 11 Metcalf, 411. Blanding v. Sargent, 33 N. Hamp. 239. Wiggins v. Keizer, 6 Ind. 252. A contract of service for more than a year, but subject to determination within the year, on a given event, is within the statute. Dobson v. Collis, 37 E. L. & Eq. 499. But see Tolley v. Greene, 2 Sandf. Ch. 91. An agreement for the continued renewal of a fire policy from year to year until notice to the contrary is not within the statute. First Bap. Ch. v. Brooklyn Fire Co. 19 N. Y. 305. In Dresser v. Dresser, 35 Barb. (N. Y.) 573, an agreement to support a person for life was held not to be within the statute. Hutchinson v. Hutchinson, 46 Maine, 154 is to the same effect.

of part, or payment in part, or something in earnest given. (d) ® This statute is assumed to be the basis of the statute laws of the

9

several states on this subject. It has been frequently reenacted in New York, and the last revision of the statute law of the state has not changed its force or construction, (e) and it applies equally to the grant or assignment of any existing trust in goods and things in action, as well as to lands. (ƒ)o The signing of the agreement by one party only is sufficient, provided it be the party sought to be charged. He is estopped by his signature from denying that the contract was validly executed, though the paper be not signed by the other party who

(d) The statute applies to the contract of sale of goods to be made and delivered within the year. Gardner v. Joy, 9 Metcalf, 177.

(e) New York Revised Statutes, vol. ii. p. 113, sec. 1. Ibid, vol. ii. p. 135, sec. 2. Ibid. vol. ii. p. 136, sec. 3. Ibid. vol. ii. p. 137, sec. 2. But the New York statute uses the word subscribed, instead of the word signed, in the statute of Charles II. The Massachusetts Revised Statutes of 1836, and the Revised Laws of Illinois of 1833, and of Indiana, 1838, and of Connecticut, 1838, and of New Jersey, 1794, followed closely the English statute of frauds. But in Pennsylvania, the provision in the 4th section requiring a promise in writing to be held for the debt, default, or miscarriage of another, is not adopted. The New York statute contains a provision which puts an end to the question which has much agitated and divided the courts of law in England and in this country, (see infra, vol. iii. pp. 121, 122,) by requiring the consideration to be expressed in the memorandum.7

(f) It seems not to be settled in England whether stock be comprehended under the words goods, wares, and merchandise, in the 17th section of the statute. Pickering v. Appleby, Comyn, 354. Mussell v. Cooke, Prec. in Ch. 533. Colt v. Nettervill, 2 P. Wms. 308. See supra, 494, note. Treasury checks are held not to be included in the words. Beers v. Crowell, Dudley (Geo.) 28.8 But in Massachusetts it is held, that a contract for the sale of manufacturing stock is within the statute of frauds. Tisdale v. Harris,

20 Pick. 9.

• This delivery and acceptance of part at a time subsequent to the making of the contract will sustain it. McKnight v. Dunlop, 5 N. Y. 537. Boutwell v. O'Keefe, 32 Barb. (N. Y.) 434. Deming v. Kemp, 4 Sandf. (N. Y.) 147. Sale v. Darragh, 2 Hilton, 184. Marsh v. Hyde, 8 Gray, 331; Story Sales, § 280 a.

7 What is a sufficient expression is discussed in Church v. Brown, 21 N. Y. 315. In 1863 this section was reënacted, omitting the words "expressing the consideration," with what purpose this was done is not disclosed, and its effect remains to be settled. Laws of 1863, ch. 464, p. 802. The New York Code of Procedure, sec. 335, requires certain engagements, therein styled undertakings, to be entered into on appeals; held, that these undertakings are not within the statute of frauds, and need not express a consideration. Thompson v. Blanchard, 3 Comst. 335.

But see supra, p. [* 494,] note.

A license to flow lands is within the statute. French v. Owen, 2 Wis. 250. So is a right to maintain a dam on the land of another. Moulton v. Faught, 41 Maine, 298.

sues for a performance. (g) 10 It is sufficient, likewise, if the note or * memorandum be made by a broker employed to * 511 effect the purchase; and if he settles the bargain, he is considered as agent for both parties, and the instrument is liberally construed without a scrupulous regard to forms. (a) The signature may be with a lead pencil, according to the practice in cases of hurried business. The mark of one unable to write, or even a printed name, under certain circumstances, is a sufficient signature; and if the name be inserted in such a manner as to have the effect of authenticating the instrument, it is immaterial in what part of it the name be found. (b) 1 The contract must, however, be stated with reasonable certainty, so that it can be understood from the writing itself, without having recourse to parol proof. (c) Unless the essential terms of the sale can be

(g) Allen v. Bennet, 3 Taunt. 169. Lord Manners, in 2 Ball & Beat. 370. Sir William Grant, in 3 Vesey & Bea. 192. Sir Thomas Plumer, in 2 Jac. & Walk. 426. Flight v. Bolland, 4 Russ. 298. Ballard v. Walker, 3 Johns. Cas. 60. Seton v. Slade, 7 Vesey, 265. Clason v. Bailey, 14 Johns. 487. Douglass v. Spears, 2 Nott & M'Cord, 207. Palmer v. Scott, 1 Russ. & My. 391. Davis v. Shields, 26 Wendell, 341.

(a) Goom v. Aflalo, 6 Barn. & Cress. 117. The agent under the statute must be a third person, and not one of the principals, and his authority may be by parol. Farebrother v. Simmons, 6 Barn. & Adol. 333.

(b) Stokes v. Moore, 1 Cox, 219. Selby v. Selby, 3 Meriv. 2. Ogilvie v. Foljambe, Ibid. 53. Knight v. Crockford, 1 Esp. 190. Saunderson v. Jackson, 2 Bos. & Pull. 238. Schneider v. Norris, 2 Maule & Selw. 286. Clason v. Bailey, 14 Johns. 484. Thornton v. Kempster, 5 Taunt. 786. Penniman v. Hartshorn, 13 Mass. 87.

(c) Bailey v. Ogdens, Johns. 399. Champion v. Plummer, 4 Bos. & Pull. 252. Elmore v. Kingscote, 5 Barn. & Cress. 583. If a bill of parcels be delivered to, and accepted by the purchaser, with his name in it, from the commission merchant, it is a sufficient memorandum of the sale of the goods within the statute of frauds. Batturs v. Sellers, 5 Harr. & Johns. 117. But a written agreement may be waived, and the term of it varied by a subsequent parol agreement, for that becomes a new sub

10 See Liverpool Bk. v. Eccles. 4 Hurl. & Nor. 139, and Pratt v. Hudson R. R. Co. 21 N. Y. 305.

1 It would seem that railway shares are not within the statute. Vaupell v. Woodward, 2 Sandf. Ch. 143, and n. a. p. 146. Duncuft v. Albretch, 12 Sim. 189. Shares in a Costbook Mining Co. are held to be neither within the 4th nor the 17th sections of the statute. Watson v. Spratley, 28 E. L. & Eq. 507. Powell v. Jessop, 36 Idem, 274. An agreement to sell a promissory note is not within the statute, and need not be in writing. Whittemore v. Gibbs, 4 Foster, 484. Hudson v. Weire, 29 Ala. 294. Contra in Mass. Baldwin v. Williams,

3 Metcalf, 365. Work, labor, and materials, supplied in printing a book were held not to be within the statute, in Clay v. Yates, 36 E. L. & Eq. 540. An agreement to buy certain bank bills belonging to the vendor, but in the hands of a third party, is within the statute. Gooch v. Holmes, 41 Maine, 523. Growing crops are not within the statute. Bours v. Webster, 6 Cal. 660. Nor are judicial sales. Hegeman v. Johnson, 35 Barb. (N. Y.) 200.

ascertained from the writing itself, or by a reference contained in it to something else, the writing is not a compliance with the statute; and if the agreement be thus defective, it cannot be supplied by parol proof, for that would at once introduce all the mischiefs which the statute of frauds and perjuries was intended to prevent. (d) +

sequent contract. Thomas v. Currie, Brevard's MSS. Rep. cited in Rice's Dig. tit. Agreement, sec. 117. Neil v. Cheves, 1 Bailey (S. C.) 537. In Langford v. Cummings, 4 Ala. (N. S.) 49, it was declared, that either the time or the place of performance fixed in a written contract, may be changed or modified by a subsequent parol agreement. A mutual promise by parol may be waived, and the party discharged by parol, before any breach. King v. Gillet, 7 Mees. & W. 55. Medomak Bank v. Curtis, 24 Maine, 36.

(d) Parkhurst v. Van Cortlandt, 1 Johns. Ch. 280, 281. Abeel v. Radcliff, 13 Johns. 297. Vide supra, p. 498. It was held, in the cases of Towers v. Osborne, Str. 506, and Clayton v. Andrews, 4 Burr. 2101, that a contract for the sale of goods, to be thereafter produced by work and labor, was not within the statute of frauds, which only related to sales where the delivery was to be immediate, and the buyer immediately answerable. In the one case, the coach was to be afterwards made, and in the other, the wheat was to be threshed; and as the article contracted to be sold was to be first manufactured, or labor bestowed upon it, the contract might be deemed to be one for work and labor in making or preparing an article for delivery. These cases have been since somewhat questioned, and the latter went quite far with its distinction. It seems now to be settled, that the statute of frauds extends to executory as well as to executed contracts; and that if the article sold existed at the time in solido, and was capable of delivery, the contract is within the statute of frauds; but if the article is to be afterwards manufactured, or prepared by work and labor for delivery, the contract is not within the statute. Rondeau v. Wyatt, 2 H. Blacks. 63. Cooper v. Elston, 7 Term Rep. 14. Smith v. Surman, 9 Barn. & Cress. 561. Gadsden v. Lance, 1 M'Mullan (S. C.) Eq. 87. Bight v. Ripley, 19 Maine, 137. Bennett v. Hull, 10 Johns. 364. Crookshank v. Burrell, 18 Idem, 58. Sewall v. Fitch, 8 Cowen, 215. Jackson v. Covert, 5 Wendell, 139. These latter cases admit the distinction above stated to be well settled, and that it goes to sustain the correctness of the decisions in Strange, if not in Burrow, though not entirely upon the ground assumed in them. And yet, in Garbutt v. Watson, 5 Barn. & Adol. 613, the decision of Clayton v. Andrews is strongly and justly shaken, as having pushed the distinction to an extreme of refinement; and though, in the last case, the sacks of flour sold were not then prepared, but were to be got ready for deliv

2 A written agreement under the statute cannot be varied by a verbal arrangement. Marshall v. Lynn, 6 Mees. & W. 109. Stead v. Dauber, 10 Ad. & El. 57. Hasbrouck v. Tappen, 15 Johns. 200. Clark v. Russell, 3 Dallas, 415.

* Robertson v. Vaughn, 5 Sandf. (N. Y.) 1. Allen v. Jarvis, 20 Conn. 38. Courtwright v. Stewart, 19 Barb. (N. Y.) 455. Illay v. Yates, 36 E. L. & Eq. 540.

4 Subject to these rules, the contract may be gathered from several distinct writings. Ridgway v. Wharton, 6 H. of L. Cas. 238. Hammersley v. De Biel, 12 Cl. & Fin. 45. Tallman v. Franklin, 14 N. Y. 584. Salmon F. M. Co. v. Goddard, 14 How. U. S. 446. As to entry by broker, sufficient to satisfy the statute, see Sivewright v. Archibald, 6 E. L. & Eq.