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; or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.''7 The contracts provided for by this section are: First. Promises by an executor or administrator to answer damages out of his own estate. Second. Promises to answer for the debt, default, or miscarriage of another person. [73] Third. Agreements made in consideration of marriage. Fourth. Contracts or sales of lands, tenements, or hereditaments, or any interest in or concerning them. Fifth. Agreements not to be performed within the space of a year after the making thereof.8 The latter part of the section applies equally to each of these five sorts of contracts, which are equally prohibited from being made the subject-matter of action, unless the agreement or some note or memorandum of it shall be in writing, signed by the party to be charged, or some person thereunto by him lawfully authorized. It has been decided and the decision was equally applicable to each of the five descriptions of contract — that in consequence of the introduction of the word "agreement," the consideration as well as the promise must appear in writing. For the word agreement, comprehending 7. Contracts within the statute are not illegal unless in writing, but only incapable of enforcement. The defence is a personal one and can only be relied on by parties or privies; and may be waived. Chicago Dock Co. v. Kinzie, 49 Ill. 289; Montgomery v. Edwards, 46 Vt. 151. 8. Contracts created by law; instruments created under and deriving their obligations from special statutes and executed contracts, are not within the statute. Clark on Contracts (3d Ed.), 78, 79. 9. Wain v. Warlters, 5 East, 10; 2 Smith's L. C. (7th Am. Ed.) *280. what is to be done on both sides, comprehends of course the consideration for the promise, as well as the promise itself. This consideration must appear in express terms, or by necessary implication.1 [76] All the terms of the agreement, as well as the consideration, must be expressed in the memorandum.2 Thus an agreement for a lease not specifying a definite term does not satisfy the requirement of the statute. [77] So if the names of both buyer and seller are not mentioned in the agreement, it is insufficient. There is another observation applicable to all the five cases provided for by this section of the statute, namely, that the agreement need not be contained in a single writing, but may be collected from several.3 [79] And it is not material that the letters, out of which the contract may be proved, are written to third parties, even to the writer's own agent, provided the contract be fully recognized therein. [83] But though, where there are several papers, the agreement may be collected from them all, provided they are sufficiently connected in sense among themselves, so that a person looking at them all together can make out the connection and the meaning of the whole without the aid of any verbal evidence, yet it is otherwise when such connection does not appear on the face of the writings themselves.1 [84] There is a third point common to all the five contracts mentioned in the fourth section; it is with regard to the signature. [85] The words are, “signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." This signature is most regularly and properly placed at the foot or end of the instrument signed; but although the signature be in the beginning or middle 1. The rule in Wain v. Warlters, though prevailing in a few states, has not been generally adopted in this country. See the cases collected and considered in a note by the editor of the 7th American Edition of the author on page *79. See, also, Clark on Contracts (3d Ed.), 108, 109 and notes. 2. Clark on Contracts, 101. 3. Id.; Jackson v. Lowe, 1 Bing. 9. 4. Boydell v. Drummond, 11 East, 142; Long v. Miller, 4 C. P. D. 456; Clark on Contracts, 101. of the instrument, it is as binding as if at the foot; although if not signed regularly at the foot, there is always a question whether the party meant to be bound by it as it stood, or whether it was left so unsigned because he refused to complete it. [86] But when it is ascertained that he meant to be bound by it as a complete contract, the statute is satisfied, there being a note in writing showing the terms of the contract, and signed by him. But, of course, where it appears that, notwithstanding the insertion of the parties' names in the instrument, it was intended that their signatures should be affixed in the proper place, such an instrument would not be a compliance with the statute, as it could not be considered as signed by them.5 [88] The signature may be either in print or in pencil. There is also little or no doubt that a party may sign, within this statute, by stamping his signature, instead of writing it. It seems, too, that a telegram containing, as usual, the names of the sender and receiver, would be a sufficient writing signed, within the statute, to bind the sender." The signature is to be that of the party to be charged; and, therefore, though both sides of the agreement must appear in the writing, the consideration as well as the promise, it is not necessary that it should be signed by both the parties; it is sufficient if the party suing on it is able to produce a writing signed by the party whom he is seeking to charge." [89] And such a writing signed is sufficient to satisfy the fourth section, though it be only a proposal accepted by parol by the party to whom it is made. The person, however, who seeks to enforce the agreement has not the other altogether at his mercy, but must either do, or be ready to do, his own part of the agreement, before he can seek performance on the part of the person who has signed.9 5. Schneider v. Norris, 2 M. & W. 286; Clark on Contracts, 101. 6. Godwin v. Francis, 39 L. J. (C. P.) 121; Trevor v. Wood, 36 N. Y. (Ann. Rep.) 307. See especially the voluminous note at end of this case. 7. Laythoarp v. Bryant, 2 Bing. N. C. 735; Penniman v. Hartshorn, 13 Mass. 87. In New York the statute uses the word "subscribed." See Davis v. Shields, 26 Wend. 341. 8. Reuss v. Picksley, 2 Bing. N. C. 735. 9. Reuss v. Picksley, supra. But although the written memorandum may be made and signed subsequently to the making of the contract, yet it must exist before an action is brought upon it.1 The last point common to all the contracts falling within this section regards the consequence of non-compliance with its provisions. The consequence is, not that the unwritten contract shall be void, but that no action shall be brought to charge the contracting party by reason of it. [90] And cases may occur in which the contract may be made available without bringing an action on it; and in which, consequently, it may, though unwritten, be of some avail. Thus if money has been paid in pursuance of it, that payment is a good one for all purposes.2 1. Bill v. Bament, 9 M. & W. 36, quaere-see Fricker v. Tomlinson, 1 M. & G. 772. 2. Laythoarp v. Bryant, supra; Griffith v. Young, 12 East, 213; Philbrook v. Belknap, 6 Vt. 383. The doctrine of part performance, however, applies only to cases relating to land. Brittain v. Rossiter, 48 L. J. (Q. B.) 362; 11 Q. B. 123. See Equity. LECTURE III. [92] PROMISES BY MARRIAGE THE FOURTH SECTION OF THE STATUTE OF FRAUDS.- MENTS NOT TO BE PERFORMED IN A YEAR. The first species of contracts to which the fourth section of the act applies is, any special promise by an executor or administrator to answer damages out of his own estate. The principal case on this subject is Rann v. Hughes.3 [93] The point decided in that case is, that the statute of frauds in no manner affected the validity of such promises, or rendered them enforceable in any case in which at common law they would not have been so; but merely required that they should be reduced into writing, leaving the written contract to be construed in the same manner as a parol contract would have been, had there been no writing. The next species of promise mentioned in the fourth section is, any special promise to answer for the debt, default, or miscarriage of another person. [95] This includes all those promises which we ordinarily denominate guaranties. [96] In the first place, the sort of promise which the statute means, and which must be reduced into writing, is a promise to answer for the debt, default, or miscarriage of another person, for which that other person himself continues liable. Thus if A go to a shop and say," Let B have what goods he pleases to order, and if he do not pay you I will," that is a promise to answer for a debt of B for which B is himself also liable: and if it be sought to enforce it, it must be shown to have been reduced into writing: but if A had said, "Let B have goods 3. 7 T. R. 350, n.; 7 Bro. Parl. C. 550. See, generally, Clark on Contracts (3d Ed.), 81. 4. See the leading case of Birkmyr v. Darnell, Salk., 27; 1 Smith's Lead. Cases, *371 and notes; Clark on Contracts (3d Ed.), 82 et seq., and cases It is said that by the weight of authority a promise to indemnify is not within the statute. Clark on Contracts, 88 and cases cited. See, generally, on the subject of guaranty and suretyship, Pingrey on Suretyship & Guaranty, 2d Ed., 1913. |