original undertaking. A consideration must be shown for the agreement.

2. Debt, Default, and Miscarriage. When one agrees to answer for the debt,' default, or miscarriage of another, three persons are considered: (1) debtor, (2) creditor, (3) the stranger who agrees to pay the debt for the debtor and against whom no previous liability existed.

(a) Nature of Agreement. The agreement may be original or collateral on the part of the stranger. If original, the agreement is without the statute and need not be in writing; if collateral, that is, dependent upon the debtor's paying, it is within the statute and must be in writing. For example, A says to B, "Let C have $100 credit at your store, and if he does not pay I will." This is a collateral undertaking, and it is not binding unless put in writing and signed by A. If he says, "Let C have credit for $100 and I will pay you," the agreement is original and is binding even though not in writing. If the debt has already been contracted, a new consideration must be given when the promise to pay is made by the stranger. This may be accomplished by the payment of something of value or by extending the term of credit.

3. Agreements in Consideration of Marriage. This statute does not relate to the contract to marry which is based upon mutual agreements, but rather to agreements prior to and collateral to marriages; as, where one of the parties to the marriage agrees to make a settlement of a certain sum of money on the other, or a parent or some third party says, "Upon your marriage to a certain person I will deed to you certain property." Subsequent marriage will not take the contract out of the statute. All such agreements must be in writing to be enforced.

4. Agreements for the Sale of Lands. The word land here is used in the broad sense of including not only land itself, but all claims thereto of a permanent character.

5. Agreements Not to Be Performed Within One Year. This clause relates to contracts that from their nature, or from the time when they are to begin, cannot be performed within the

space of one year from the time they are made. The vital question is not was the contract performed within the prescribed time, but was it capable of being performed within a year from the date of making. If A contracts with B to-day to work for him one year, beginning the first of next month, this is clearly within the statute. A contracts with B to work two months for him, but no time is mentioned as to the date of beginning. The agreement is without the statute and need not be in writing-it is capable of being performed within one year.

6. Sale of Goods. Many questions rise under this section that make the settling of the question difficult. There are probably more decisions under this section that cannot be reconciled than under any statute ever enacted. One reason for this lack of uniformity is that generally a side element causes the trouble, such as an element of labor in a contract for the sale of certain chattels. The decisions divide on whether it is a sale of goods or a contract for labor.

(a) Effect of Non-Compliance. A few states have excluded altogether this section of the Statute of Frauds relating to the sales of personal property, Unlike the first section, this enacts that the contract shall not be good, therefore a failure to reduce the agreement to writing would make the agreement void and not merely unenforceable.

A consideration is essential to every contract. It is the value attached to the thing to be done or omitted.

It may consist of "some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other." The benefit may pass to a third party as well as to the one making the promise.

Inadequacy in itself is no defense.

A naked promise unsupported by a consideration is unenforceable.

A transfer of property in fraud of creditors is voidable as to them and may be set aside in their behalf. As between the parties to the transfer it is binding.

A performance that is impossible in itself is unenforceable.

An agreement that has for its consideration merely a moral consideration is unenforceable at law.

A past consideration is not sufficient to support a promise unless such past consideration was done or suffered at the request of the one making the promise.

Part payment of a debt due in cancellation of the whole debt is no defense for the balance of the debt.

A larger debt may be canceled by the payment of a smaller sum and the addition of something different.

Mutual promises supply the consideration to support each other.

The Statute of Frauds directs that the evidence of certain contracts must be in writing and signed by the party to be charged.

Define consideration.

51. QUESTIONS

What effect does inadequacy of consideration have on a contract? Why?

Can a promise not supported by a consideration be enforced?

When will inadequacy of consideration be a ground for setting aside a contract?

A contracts to do a thing which is impossible of performance. Is he liable under the contract? A contracts to do a thing that is impossible for him to perform, but possible for someone else. Is he liable?

Is a contract enforceable that is based purely on a moral consideration? Why?

Is a past consideration sufficient to support a contract. Discuss fully. When will the part payment of a debt discharge the whole debt? And when not?

A owes B $500. With B's consent he pays him $200 and a horse in satisfaction of the debt. Does this discharge the debt?

What is the purpose of the Statute of Frauds?

What are formal contracts? Simple contracts?

Enumerate the main provisions of the Statute of Frauds and discuss each one.

52. DECISIONS BY THE COURTS

1. In V v. F, 3 Ill. 263, it is held that the body of an instrument itself that is sealed is not sufficient. It must in fact be signed and sealed.

2. In J v. J, Craig & Ph., 138, a contract under seal was executed, wherein one agreed to transfer certain realty to the other, but no consideration was recited. Held that a court of equity would not decree specific performance.

3. In E v. K, K promises E that if he will act as surety for A, he (K) will reimburse him. This is a primary promise and need not be in writing.

4. In N v. W, 7 Kans. 373, W orally promises to marry N in three years. Held that this promise is not binding, as the statute directs a written promise. (This promise is not affected by the law relating to the ordinary agreements to marry.)

5. In R v. H, H, an administratrix, gave a written promise to answer damages out of her own estate. Held not enforceable for want of a consideration.

6. In H v. H, 12 Gray, Mass. 341, a receipt in full was given for part payment of the balance. The receipt in full was held to be no bar to suit for the balance of the debt.

7. In M v. W, 3 Pick., Mass. 207, an adult was taken sick among strangers, who cared for him until his death. Subsequent to his death his father promised to reimburse. Held that this promise was not obligatory, as the consideration was past.

8. In W v. E, the parties enter into an agreement to defraud the creditors of one of the parties. Later W sued E on this agreement, which is a bond. Held not enforceable, as the illegal nature of the agreement may be shown and thus defeat a recovery.

9. In N v. McC, 5 Minn. 382, the parties entered into a contract which did not comply with the Statute of Frauds. The contract was, however, carried out. Held that N could not subsequently recover the money paid on this agreement.

10. In H v. V, 10 A. & E., R. I. 309, B promised H that if he would return a certain guaranty given to him by A, that he (B) would pay certain bills. Guaranty was returned and was found to be unenforceable. Nevertheless, its return was held to be a sufficient consideration for B's promise.

11. In W. v. S, one party sued another on a cause of action known to be without foundation. A promise was given to pay if suit was discontinued. Held that this was unenforceable for want of consideration.

12. In B v. B, the principle is established that where the parties enter into a contract upon insufficient consideration, as where a claim of $100 now due is settled by giving less than $100 and a receipt in full is given by one of the parties, this does not prevent subsequent action to recover the balance.

53. Introduction. The fourth element in a contract contemplates that both parties have complete knowledge of the facts and that they know they are forming a legal relationship. It may be that where the words show consent the law may look beyond to determine whether the apparent consent is in fact consent as required by the law. There must be a “meeting of minds" to satisfy the law.