ÆäÀÌÁö À̹ÌÁö
PDF
ePub

marriage, in pursuance of a parol one before, takes the case out of the statute.(ƒ)'

§ 535. With regard to the mode in which a contract within the statute should be pleaded, the rules of court under the judicature act have swept away the diversity which existed in the pleadings at common law and in chancery. Before these acts, it was enough at law to allege a contract, on the ground that "with respect to acts valid at common law, but regulated as to the mode of performance by statute, it is sufficient to use such certainty of allegation as was sufficient before the statute:"(g) whereas in chancery it was not enough to allege a contract without stating that it was in writing, on the ground that a parol contract was a contract, though not an enforceable one; and a bill merely alleging a contract was, therefore, open to demurrer. (h)2

§ 536. Now, as we have seen, one uniform mode of plead

(f) Taylor v. Beech, 1 Ves. Sen, 297; per Lord Cottenham in Hammersley v. De Biel, 12 Cl. & Fin, 64 n; per Turner, L. J., in Surcome v. Pinniger, 3 De G. M. & G., 571; Bar worth v. Young, 4 Drew., 1. See, also, Hodgson v. Hutchenson, 5 Vin. Abr., 522, pl.

34. In Randall v. Morgan (12 Ves., 67), Grant,
M. R., expressed doubts on this point.
(g) Steph. Plead., 401 (4th ed ).

(h) Barkworth v. Young, 4 Drew., 1; and see per Lord Thurlow in Whitchurch v. Bevis, 2 Bro. C. C., 559; per Grant, M. R., in Spurrier v. Fitzgerald, 6 Ves., 555.

Wood v. Savage, Walk. Ch., 471; see Livingston v. Livingston, 2 John.'s Ch., 537, decided by Kent, Ch.; Argenbright v. Campbell, 3 Hen. & M., 144.

*

"this is the

See Bean v. Valle, 2 Mis., 126. But a different rule is laid down, at law, in Stern v. Drinker, 2 E. D. Smith, 401. In that case, which came before the court on appeal, the plaintiff's complaint alleged that he recovered a judgment against one Nusbaun for $45; that he issued an execution thereon, and levied on sufficient property of the defendant to satisfy the judgment; that the defendant agreed with him, that if the plaintiff would release and abandon the levy, and deliver the property to the debtor, he, the defendant, would pay the plaintiff the amount of the said judgment; that the plaintiff did abandon such levy, and therefore claimed to recover from the defendant the amount of the judgment. But the complainant did not state that this promise was in writing. Woodruff, J., in delivering his opinion, said, * first instance within my observation, in which judgment was ever ordered for a defendant, upon a demurrer to a declaration, because the promise declared upon was not averred to be in writing. It is not necessary, in declaring upon a promise (although it be confessedly within the statute, and if not in writing, void), to aver that it was written. It is sufficient for the plaintiff if it appear in evidence on the trial in writing. And for the well-settled reason that the statute introduces a new rule of evidence only, and not a new rule of pleading. And this rule is applicable to all contracts within the statute. Whether the evidence will support the claim, is a question which does not arise upon the pleading, but upon the trial of an issue thereon. For it is only necessary in pleading to state the legal effect, to wit, the promise. And if it appears on the trial that the defendant made no binding promise, then in judgment of law he made no promise.' In support of this position, were cited Roberts on Frauds, 156, 202; Buller's N. P., 279; 3 Burr., 1890; 1 Saund. R., 276, note 2, to Duffe v. Mayo; Case v. Barber, 3 Raym., 451; Birch v. Bellamy, 12 Mod., 540; Hutchinson v. Hewson, 7 T. R. 350, n.; 3 id., 159; Read v. Brookman, by Lord Kenyan, 2 Chit. Pl., 121, n. s.; 123, n. x.: 2 Saund. Pl. and Ev., 546; see, also, on this point, the case of Miller v. Upton, 6 Ind., 53.

ing prevails in all the divisions of the high court: and now an allegation of a contract is sufficient without stating it to be in writing, and the defendant who admits the contract in fact, but denies its sufficiency with regard to the statute, must specially raise the point by his defense. (¿)1

§ 537. Another important provision of the rules is to the effect that where a contract does not arise from an express agreement, but is to be implied from a series of letters or conversations or otherwise from a number of circumstances, it is sufficient in pleading to allege such contract as a fact, and to refer generally to such letters, conversations, or circumstances without setting them out in detail; and that if in such a case the person so pleading desires to rely in the alternative upon more contracts than one, as to be implied from such circumstances, he may state the same in the alternative.(j)

3. What takes a contract out of the statute.

§ 538. Courts of equity hold that, notwithstanding the express language of the statute, a case may be taken out of its operation by any one of the following circumstances: (1) by the sale being by the court; (2) by an admission in the defense of a contract in fact, where the defense does not insist on the statute; (3) by fraud, (k) and (4) by a parol contract and part performance, which is, as we shall see, but a particular case of fraud. In the two first cases the reason is, that the danger of that which the statute was meant to guard against does not arise, and in the third and fourth that the statute shall not be made use of to cover a fraud.

§ 539. (1) It was held that a sale in the court of chancery by private contract, in pursuance of an order confirming a

(i) Ord. XIX, r 23. Cf. as to the distinctness now required in pleadings, Byrd v. Nunn, 7 Ch D., 284; and see supra, § 485.

(j) Ord. XIX, r. 27.

(k) See, too, infra, § 782 (mistake).

1 The statute of frauds is no defense where the contract is admitted, and the defendant fails to plead the statute. Morse v. Merest, 6 Mad., 26; Ridgway v. Whorton, 3 De G. M. & G., 677: Lincoln v. Wright, 4 id., 1; Jenkins v. Eldridge, 3 Story, 181; Willink v. Vanderveer, 1 Barb., 599; Trapnall v. Brown, 19 Ark., 39; Shield v. Tramell, id., 51; contra, Box v. Starford, 13 Smed. & Marsh., 93; see, also, Glass v. Hulbert, 102 Mass., 38.

1

master's report,' was exempted from the Statute of Frauds, and consequently might be enforced against the representative of a purchaser who had not signed it. (7) The considerations upon which this decision was based are that the judicial character of the proceeding is such as to prevent the hazard of uncertainty and perjury which the statute was intended to prevent, and moreover that, in such a case, the purchaser having been a party to the proceedings in which the order for sale to him was made, is bound by the order, and would be guilty of contempt in refusing to pay the purchase money.

§ 540. The same rule was held to apply to sales in the ordinary way by auction before a master, (m) and would no doubt apply to sales under the present practice ;(n) but not to ordinary sales by public auction, because, it is said, such sales might be without written or printed particulars and conditions, and also, no doubt, because they are in no way proceedings connected with the court. (o)

§ 541. (2) An admission of a parol contract in the answer of a defendant to the bill of complaint was, under the old practice, held to take the case out of the statute where the answer did not insist upon the statute, and this because the admission took the case out of the mischief which the statute was designed to remedy. (p) Another reason suggested for the rule was that the contract, though originally in parol, was, after admission, evidenced by writing under the signature of the party, which would be a sufficient compliance with the statute as interpreted by the decided cases.(2)

(1) Att.-Gen. v. Day, 1 Ves. Sen., 218; per Grant, M R., in Blagden v. Bradbear, 12 Ves., 472; per Lord Cottenham in Ex parte Cutts, 3 Deac, 267: Lord v. Lord, 1 Sim., 503. (m) Att -Gen. v. Day, ubi supra.

(n) See St. Leon. Vend., 86; Dart, Vend., 197 (5th ed.).

(0) Blagden v. Bradbear, 12 Ves., 466, 472. See, too, Mason v. Armitage, 13 id, 35

(p) Gunter v Halsey, Ambl., 586; Limondson v. Sweed, Gilb., 35. See, also, per Lord Rosslyn in Rendeau v. Wyatt, 2 H. Bl., 68. (g) Story, Eq. Jur., § 755.

1 See the cases of Gordon v. Sims, 2 McCord's Ch., 151, and of Jenkins v. Hogg, 2 Const. Rep., 821. Cases of this class are there rather considered to rest upon the same basis as ordinary auction sales-i. e., the fact that the master or commissioner is essentially the agent of both parties-than treated as exceptions because of their legal nature.

2 Woods v. Delle, 11 Ohio, 455. But the doctrine is firmly established that, even where the answer confesses the parol agreement, if it insists, by way of defense, upon the protection of the statute, the defense must prevail as a com petent bar. Story's Eq. Pl., § 763; Thompson v. Todd, 1 Pet. C. C., 388;

§ 542. The substantial result of the present system of pleading is to continue this effect of an admission of the contract in fact, and furthermore to treat the contract as admitted unless it is actually denied. For it results from the rules of court, (r) that if the contract be not expressly denied to exist in fact, and expressly stated not to satisfy the Statute of Frauds, it will be held that the defendant has admitted both its existence and its sufficiency to satisfy the statute.

§ 543. In the case of the death before judgment of the person making such an admission, his representatives will be bound by his admission on being made parties to the action in the manner provided by the rules. (s) But the admission by a vendor that he had contracted to sell an estate to a person since deceased will not bind the personal representatives of such deceased purchaser; nor will an admission by a purchaser that he had contracted to buy an estate bind the real representatives of the alleged vendor; for it is now clearly settled that, in order to entitle the real or personal representative to enforce the execution of a contract to the prejudice of the other, there must have been, at the death of the deceased contractor, a contract by which he was legally bound, and which the court would have compelled him specifically to execute; and it is consequently open to any of the parties interested, notwithstanding the admissions or submissions of any of the other parties, to take every objection which the deceased might himself have taken if living. (t) Thus the admission of a contract by the executors of a testator, will not bind the residuary legatee.(u)

§ 544. (3) The principle upon which the court regards fraud as forming an exception to the statute was stated by Lord Eldon as follows: "Upon the Statute of Frauds, though declaring that interests shall not be bound except

(r) Ord. XIX, rr. 17, 20, 23.

(8) Att. Gen. v. Day, 1 Ves. Sen., 218, 221; Ord. L, rr. 2, 4. 5.

(t) Buckmaster v. Harrop, 7 Ves., 341; S. C., 13 id., 456. See Earl of Radnor v. Shafto,

11 id., 448, overruling Lacon v. Mertins, 3
Atk., 1 see, also, Potter v. Potter, 1 Ves.
Sen., 437.
(u) Buckmaster v. Harrop, 7 Ves., 341; S.
C., 13 id., 456.

Stearns v. Hubbard, 8 Greenl., 320; Harris y. Knickerbacker, 5 Wend., 638; 1 Sug. Vend. & Purch. (6 Am. ed.), 137; Whitbread v. Brockhurst, 1 Bro. C. C. (Am. ed., 1844), 407 (note 3); Whitchurch v. Bevis, 2 id., 569 (note i); Moore v. Edwards, 4 Ves., 23 (note a).

by writing, cases in this court are perfectly familiar deciding that a fraudulent use shall not be made of that statute; where this court has interfered against a party meaning to make it an instrument of fraud, and said he should not take advantage of his own fraud even though the statute has declared that, in case those circumstances do not exist, the instrument shall be absolutely void.' One instance is the

1 Fraud on the part of the defendant.] "The rule that fraud takes the case out of the statute is too well-settled to admit of doubt; and for the purpose of showing that fraud has been committed, or is being attempted, parol evidence has always been held to be admissible. The difficulty has been in determining what amounted to fraud in the particular case; and to this difficulty is referable those conflicts of opinion which seem occasionally to have trenched upon the rule itself. The rule, however, is universally acknowledged, and there is no case, in which the conduct of the defendant was held to be fraudulent, that he has been allowed to shelter himself behind the statute." Cope, J., in Hidden v. Jordan, 21 Cal., 92; see, also, Fannin v. McMullin, 2 Abb. Pr. (N. S.), 224; Ryan v. Dox, 34 N. Y., 307; S. C., 36 id., 511; Nelson v. Worrall, 20 Iowa, 469.

Statute of Frauds, no defense for fraud.] "We recognize the doctrine, then, that a court of equity will not permit the Statute of Frauds to be set up as a defense by a party infected with fraud, and that parol trusts of real estate may be established in direct contradiction to the statute on the ground of fraud; and that whenever a case of fraud is made out by the bill, parol evidence will be received for the purpose of sustaining the case, even though the effect of such evidence be to alter or vary a written instrument, and though the benefit of the statute be insisted upon by the defendant." Miller v Čotten, 5 Ga., 346. See, however, Woodward, J., in McCulloch v. Cowher, 5 Watts & Serg., 427, where he says, "unless there be something in the transaction more than is implied from the violation of a parol agreement, equity will not decree the purchaser to be a trustee. And the distinction is indispensable, otherwise there would be a repeal of the statute, under the pretense of preventing fraud, by decreeing an express trust, which would be introductive of the very evils the statute was designed to prevent."

Parol trust in fraud of creditors.] A parol trust cannot be set up, where the effect or design is to delay, hinder or defraud creditors. Murphy v. Hubert, 16 Pa. St., 50; S. C., 7 id., 420; Hills v. Elliott, 12 Mass., 26.

Fraud at public sale.] "It is not now an open question that, when a party agrees before the sale to purchase property about to be sold, under an execution against a party, and to give such party the benefit of the purchase, the agreement is binding, and will be enforced. The defendant, upon the faith of such agreement, may have ceased his efforts to raise the money for the purpose of paying off the execution, and thus preventing a sale of his property. It will not do to say that the party promising was moved merely by friendly or benevolent considerations, and may, therefor, at his option, decline a compliance with his agreement. Such considerations constitute the foundation of almost every trust, and the trustee should be held to account, as nearly as possible, in the same spirit in which he originally contracted. But it is said that the agreement, if in fact made, was void under the Statute of Frauds. statute has reference alone to a sale of lands, and not to a contract to purchase of one person for the benefit of another." Per curiam in Soggins v. Heard, 31 Miss., 428; see, also, Walker v. Hill, 21 N. J. Eq.. 191; Sandfoss v. Jones, 35 Cal., 481. "Can it be tolerated that a creditor shall, at a sale of his debtor's property, lull him to sleep, and keep off other purchasers by an agreement under which he buys in the land for a small sum much below its value, and then that he shall declare that the agreement was void under the Statute of Frauds, and that the other party should have no benefit from the agreement, whilst he reaped

The

« ÀÌÀü°è¼Ó »