ON THE Validity of Verbal Agreements, AS AFFECTED BY THE LEGISLATIVE ENACTMENTS IN ENGLAND AND THE UNITED STATES, 1874 COMMONLY CALLED THE STATUTE OF FRAUDS; INCLUDING, ALSO, THE EFFECT OF PARTIAL AND COMPLETE PERFORMANCE, AND AGREEMENTS ARE NOT VALID; TOGETHER WITH OTHER KINDRED MATTERS; TO WHICH ARE PREFIXED TRANS- BY MONTGOMERY H. THROOP. IN TWO VOLUMES. VOL. I. ALBANY, N. Y. JOHN D. PARSONS, JR., PUBLISHER. 1870. PREFACE. The uncertainty and confusion, which, after the lapse of nearly two centuries, still obscure most questions pertaining to the application of the statute of frauds to executory agreements, have long been a reproach to our system of jurisprudence, a stumbling block to the student, and a source of painful embarrassment to all persons charged with the administration of justice. In the following pages I have endeavored to reduce the discordant mass of doctrine and authority upon this branch of the law, to an orderly and harmonious system. The difficulties attending this undertaking are well known to all who have studied the subject; and although I cannot expect complete success, I hope for the good will of the profession towards my effort to accomplish an object so desirable, and its kindly indulgence wherever I may have failed. And I cherish with considerable confidence the belief, that this work, regarded merely as a collation of cases and principles, many of which are imperfectly understood, and inaccessible without much toil, will tend materially to lighten the labors of my professional brethren in similar investigations, and to smooth the path of the student; even if the methods which I have freely, (perhaps sometimes presumptuously,) suggested, of reconciling cases supposed to be conflicting, and of terminating the conflict of authority when they could not be reconciled, shall fail to command general approbation. The nature of my task has often required more elaborate discussions of principles, more minute examinations of the peculiar features of the adjudged cases, and more extended comments upon them, than would be necessary or proper, in writing upon subjects where the governing rules are more settled, and the authorities more harmonious. For this reason, and particularly in conse quence of the manner in which I have cited leading and representative cases, I have found it impossible to complete this treatise in one volume, as I had originally proposed. But, unless I misapprehend the preferences of the profession, few will complain of an increase of bulk, caused by accurate condensations of judiciously selected authorities. The number of the volumes of the reports, to which an American lawyer is now referred by the digests, is so great, that a personal examination of all the adjudications, upon any obscure and controverted point of law, can rarely be made, except in a public library; and access to such an institution can be obtained by many of the profession only at intervals, while it is attended with great delays and inconveniences, even to those who can command it at pleasure. The plan, which has been adopted by some of the most popular legal authors, of giving abstracts, more or less extended, of the principal cases cited, although but a partial remedy for this evil, is the only one of which it admits. And I have therefore used such abstracts freely, in order to elucidate the practical operation of settled principles; to point out the distinctions in their application; to show the arguments and authorities upon each side of unsettled questions; to fortify my own conclusions; and generally to illustrate the current discussion. No pains have been spared to overcome the difficulty, inseparable from the necessary condensation, of making them faithful exponents of the reported cases. And although nothing can entirely supply the place of the reports themselves, it is believed that these abstracts will greatly assist the ready understanding of the text, and answer many useful purposes, not only in the "occasions sudden" of professional practice, but also in the deliberate preparation of causes for trial or argument. In condensing the English decisions, I have consulted all the different reports of the same case, (frequently five or six in number,) selecting in each instance the most satisfactory version, and sometimes gathering the points of the case from more than one report. The book from which the condensation was made, is |