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gagement of the parties, and that the signature of the party to be charged shall be attached thereto.
The 1st, 2nd, and 3rd sections relate to the creation of a title to, and to demises of, real property, and to contracts respecting such title and demises (1).
The 4th section of the act provides that no action shall be brought -1st, Whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate; or 2ndly, Whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person; or, 3rdly, To charge any person upon any agreement made upon consideration of marriage; or, 4thly, Upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them; or, 5thly, Upon any agreement that is not to be performed within the space of one year from the making thereof; unless, 6thly, 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 authorised.
The 17th section of the statute (explained, &c. by 9 Geo. 4, s. 14), relates to contracts for the sale of goods of the price of 101. or upwards.
In subsequent parts of the work, these important sections of the Statute of Frauds will separately undergo full discussion. It may, however, be convenient to notice in this place, that portion of the 4th section which relates to agreements which are not to be performed within a year.
This enactment extends to all contracts which are not to be carried into full, effective, and complete execution, within the space of one year from the making thereof. The word "performed" does not signify an inchoate performance, or part execution, of the agreement; and the provisions of the statute render a parol contract void, if it appear to have been the understanding of the parties, at the time, that it was not to be completed within a year, although it might be, and was, in fact, in part performed within that period.
Thus a parol agreement to become a subscriber to the Boydell Shakspeare, being a series of prints to be published in numbers
(1) Ser post, Chapter III.
--an undertaking which, in the contemplation of the parties, could not be performed, or brought to a close for several years, is void (m). So a contract, whereby a coachmaker agreed to let a carriage for a term of five years, in consideration of receiving an annual payment for the use of it, but which, by the custom of the trade, is determinable at any time within that period, upon the payment of a year's hire, is an agreement not to be performed within a year, and is void if not in writing (n). And an agreement for a year's service, to commence at a subsequent day, being a contract not to be performed within the year from the time of the agreement, must be in writing; and therefore no action can be maintained for the breach of a verbal contract made on the 27th of May, for the year's service, to commence on the 30th of June following (o). So where A. on the 20th of July made proposals in writing (unsigned) to B. to enter his service as bailiff for a year, and B. took the proposals and went away and entered into A.'s service on the 24th of July, it was held that this was a contract on the 20th not to be performed within a year, and within the 4th section of the Statute of Frauds (p). But a general hiring of a clerk, which is construed to be a hiring for a year, and so on from year to year as the parties respectively please, operates as a yearly hiring, although it be not in writing (9).
The statute has no reference to cases in which the promise made may probably not be performed within a year, and the performance depends upon a contingency. It only extends to cases, in which, by the express appointment or understanding of the parties, the thing is not to be performed within a year. Therefore a promise to pay the plaintiff so much money “on the day of his marriage (r);” or “on the arrival of a ship(s);" or "to leave money by will (t);" or that the promiser's executor should pay a sum of money (u), need not be in writing.
(m) Boydell v. Drummond, 11 (p) Suelling v. Lord Hunting field, East, 142. In this case, the action 1 C. M. & R. 20 ; 4 Tyr. 606, S. C. was for not accepting or paying for the (9) Breston v. Collyer, 4 Bing. 309; residue of the numbers, the delendant 12 Moor, 552, S. C.; 2 C. & P. 607, having, for a time, taken in several S. C. numbers, and paid for them at so (r) Peter v. Crompton, Skin. R. 353. much per number, according to the (s) Anonymous, 1 Salk. 280. parol agreement.
(1) Fenton v. Emblers, 3 Burr. (11) Birch v. The Eurl of Liverpool, 1978; 1 Bla. R. 353, S. C.; Gilbert 9 B. & C. 392; 4 Man. & R. 380. v. Sykes, 16 East, 194.
(0) Brucegirdle v. Heald, I B. & (i) ll'ells v. Horton, 4 Bing. 40; Ald. 722.
12 Moo. 176.
Nor does the statute apply where the contract is wholly executed by one of the parties thereto, or intended to be so, although there are some acts to be done by the other party beyond the limit of a year. In Donellan v. Read (x), where a landlord, who had demised premises for a term of years at 501. a year, agreed with his tenant to lay out 501. in making certain improvements upon them, the tenants undertaking to pay him an increased rent of 51. a year during the remainder of the term (of which several years were unexpired), to commence from the quarter preceding the completion of the work; it was held, that the landlord having done the work, might recover arrears of the 51. a year against the tenant, though the agreement had not been signed by either party, for that it was not a contract for any interest in or concerning lands within the Statute of Frauds, nor was it according to that statute an agreement not to be performed within one year from the making thereof, no time being fixed for the performance on the part of the landlord; and Littledale, J., in delivering the judgment of the court, observed, “ As to the contract not being to be performed within a year, we think that as the contract was entirely executed on one side within a year, and as it was the intention of the parties, founded on a reasonable expectation, that it should be so, the Statute of Frauds does not extend to such a case. In case of a parol sale of goods it often happens that they are not to be paid for in full till after the expiration of a longer period of time than a year; and surely the law would not sanction a defence on that ground when the buyer had had the full benefit of the goods on his part. In the case of Boydell v. Drummond (y) the contract was not completely executed on one side, and the case was such that in the common course of publication it was not expected that it should be completed in a year.”
So a parol contract for the sale of goods to be delivered, which the parties reasonably expected would be delivered within a year, though the price was to be paid after that period, is not within the statute ; because, in such case, all that is on one side to be performed, namely, the delivery of the goods, is to be done within a year (z).
(1) 3 B. & Adol. 899.
(2) See per Lord Ellenborough, C.J., Boydell v. Drummond, 11 East, 152;
and per Abbott, C. J., Bracegirdle v. Heald, 1 B. & Ald. 727; Donnellan v. Reud, 3 B. & Ad. 899. A contract for the sale of goods must, under the
Form.- We shall hereafter have occasion to notice more particularly the requisites in point of form, (as to the statement of the consideration, and as to signature,) of a memorandum required to be in writing under the Statute of Frauds; but some few observations upon the subject may here be made with propriety.
The statute does not require a formal agreement drawn up with technical precision; any memorandum under the hand of the party, expressing that he had entered into the agreement, and showing the terms thereof, is sufficient, although it be merely a recognition, or adoption, of a prior parol contract. Thus, an indorsement or memorandum, by the defendant, on the back of the draft of a lease, acknowledging that he had agreed to take the premises mentioned in the draft, on the terms thereof(a); or an indorsement of a memorandum of purchase on the back of a paper containing the particulars of the premises, with the name of the owner and conditions of sale (6); or a letter in answer, and referring to a letter of the plaintiff, which stated the terms of the contract, and by which answer the defendant recognises the bargain, though he excuses the performance (c); is a sufficient compliance with the act. So in Dobell v. Hutchinson (d), where the purchaser of lands by auction signed a memorandum of the contract, indorsed on the particulars and conditions of sale, and referring to them. Afterwards he wrote to the vendor, complaining of a defect in the title, referring to the contract expressly, and renouncing it. The vendor wrote and signed several letters, mentioning the property sold, the names of the parties, and some of the conditions of sale, insisting on one of them as curing the defect, and demanding the execution of the contract: it was held that these letters might be connected with the particulars and conditions of sale so as to constitute a memurandum in writing, binding the vendor under the 4th section of the Statute of Frauds, although neither the original conditions
4th section of the Statute of Frauds, (b) Laythoarp v. Bryant, 2 Bing. N. be in writing, although at the time of C. 735 ; 3 Scoit, 238, S. C. the bargain it be uncertain whether (c) See post, Index, Sale of Goods, the price will amount to £10; Watts Guarantee, Frauds, Statute of, 8c. v. Friend, 10 B. & C. 440, 448, note (u) Dobell v. Hutchinson, 3 Ad. & (6)
E. 355; and see Johnson v. Dodgson, (a) Shippey v. Derrison, 5 Esp. R. 2 M. & W. 653.
and particulars nor the memorandum signed by the purchaser mentioned or were signed by the vendor. But the defendant's signature in a book, entitled “Shakspeare subscribers, their signatures,” not referring to a printed prospectus, which contained the terms of the contract, and which was delivered at the time to the subscribers of the Boydell Shakspeare, will not take the case out of the statute; because the connection between the book containing the signature, and the prospectus, can be established only by parol evidence (e). And a mere offer to guarantee, &c., requiring an answer, is not binding, unless accepted in writing (f). The whole of the bargain must appear from the memorandum.
Signature. The statute, it will be observed, requires the signature of the party to be charged, or his agent duly constituted according to the provisions of the several sections. It is, however, in all cases sufficient that the party against whom the contract is to be enforced has signed, though the party enforcing it have not done so (g).
It has also been determined, that if a party draw up an agreement in his own hand-writing, beginning—“I, A. B., agree, &c.," this is a sufficient signature ; although he do not subscribe his name at the bottom, and although a blank be left for that purpose (h). But it was decided in Hubert v. Moreau (i), that if a statute (as in the case of the 6 Geo. 4, c. 16, s. 131, relative to a bankrupt's promise to pay his former debt, require that the engagement be in writing, and signed by the party, a letter in the hand-writing of such party, containing a promise, but bearing no signature, is not sufficient, nor will his authorised agent's signature suffice (k). If a person be in the habit of printing his name, such printing the name by way of signature, is tantamount to his writing it; especially if the printing be recognised, by his
(e) Boydell v. Drummond, 11 East, 142; Sandilands v. Marsh, 2 B. & Ald. 680.
(f) Gaunt v. Hill, 1 Stark. 10; Mozley v. Tinkler, 1 C. M. & R. 692; 5 Tyrw. 416; 1 Gale, 11, S. C.
(g) Laythoarp v. Bryant, 2 Bing. N. C. 735 ; 3 Scott, 238, S. C.; Saunderson v. Jackson, 2 Bos. & Pul. 238; Bowen v. Morris, 2 Taunt. 374.
(1) Knight v. Crockford, 1 Esp. R.
190; per Lord Eldon, 2 Bos. & P. 239; Stra. 399. But semble, if the name of the party were wholly omitted the instrument would be void and bad for uncertainty ; Johnson v. Dodgson, 2 M. & W. 653.
(i) 2 C. & P. 528; 12 Moore, 216, S, C.
(k) Hyde v. Johnson, 2 Bing. N. C. 776; 3 Scott, 289, S. C.