other party, for the purpose of withdrawing from the contract, is a sufficient compliance with the Statute of Frauds." The note or memorandum may consist of several writings if they are physically attached or the connection between them can be made out from the papers themselves, without the aid of parol evidence. The memorandum must show all the terms of the agreement. Parol evidence of terms not appearing in the writing would invalidate the contract by showing that it was different from that appearing in the memorandum. Where a contract does not come within the Statute of Frauds, the parties may put some of the terms in writing and arrange others orally, but where the contract is within the statute, the parties must put all its terms in writing. It is not necessary that all the details be given, but all of the terms must be stated with reasonable certainty. The memorandum of the contract must also show who are the parties to it. If one of them merely is described, parol evidence may be admitted to prove his identity.

The defendant in action is the "party to be charged". If the memorandum is signed by one party only, it is generally held sufficient to charge him even though it could not be enforced against the other party because he had not signed. The signing may be done by an agent if he is duly authorized, but the other contracting party may not be such agent.

Non-Compliance, Effect Of. The statute does not declare that "no action shall be brought" on them. It simply that "no action shall be brought" on them. It simply requires written evidence to prove certain contracts. Thus, a contract within the terms of the Statute of Frauds would be perfectly enforcible if suit were brought on it in some State or country where such a statute was not in force, because it could there be proved by oral testimony. The

Louisville Varnish Co. v. Lorick, 29 S. C. 533, 8 S. E. 8, 2 L. R. A. 212; Drury v. Young, 58 Md. 546, 42 Am. Rep. 343.

8 O'Donnell v. Leeman, 43 Me. 158, 69 Am. Dec. 54.

9 Williams v. Robinson, 73 Me. 186, 40 Am. Rep. 352, 354.

necessity of a writing may be waived by failure of the defendant to set it up as a defense when sued on a contract within the statute. It is a personal defense which he may use or not, as he wishes, but the court will not give him its benefit unless he claims it.

If the contract has been partly performed by one party, courts of equity will sometimes enforce it, particularly if it is a contract relating to land. Thus, if a purchaser has taken possession under an oral contract to purchase it, and paid the purchase money or made valuable improvements, equity will compel the vendor to convey. This is necessary in order to keep the Statute of Frauds from becoming an instrument to protect fraud instead of preventing it. "It would be a fraud upon him to permit the other party to defeat the agreement by setting up the statute.''10

Where one has performed services or delivered property in part performance of an oral contract which the other party refuses to execute because not in writing, he may recover the value of such services or property on an implied promise to pay created by law in order to prevent fraud.

Seventeenth Section. By the seventeenth section of the Statute of Frauds, it is provided:

"No contract for the sale of any goods, wares, or merchandise, for the price of ten pounds sterling, or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain or in part payment, or some note or memorandum in writing of the said bargain be made and signed by the parties to be charged or their agents thereunto authorized." 11

10 Brown v. Hoag, 35 Minn. 373, 29 N. W. 135. 11 See article on Sales.

CHAPTER III

CONSIDERATION

§ 22. Where Essential. Every simple or parol contract, whether it be in writing or merely oral, requires what is known as a "consideration", to make it valid. The fact that the contract may fully comply with the Statute of Frauds by being in writing, does not dispense with the necessity for a consideration. This was very clearly laid down as early as 1778, as follows:

"It is undoubtedly true that every man is by the law of nature, bound to fulfill his engagements. It is equally true that the law of this country supplies no means, nor affords any remedy, to compel the performance of an agreement made without sufficient consideration; such an agreement is nudum pactum ex quo non oritur actio.

All con

tracts are, by the laws of England, divided into agreements by specialty, and agreements by parol; nor is there any such third class as some of the counsel have endeavored to maintain, as contracts in writing. If they be merely written and not specialties, they are parol, and a consideration must be proved." 1

§ 23. Where Not Essential. It has already been noticed that contracts under seal, or specialties are binding without a consideration, merely because of their form. A statutory bond or obligation required by law of those performing a public duty needs no consideration because the law has made it valid. A consideration is presumed to exist in the case of negotiable instruments, and the burden of proof rests on the party disputing the existence of consideration. But if the defendant can show that in fact no consideration was given, the obligation fails pro1 Skinner, C. B., in Rann v. Hughes, 7 T. R. 350, 101 Eng. Rep. Reprint 1014.

23

vided the plaintiff be not a bona fide purchaser of the instrument for value, before maturity.2 In some States, statutes have been enacted declaring that written instruments are presumed to be founded on a consideration. This is rebuttable by a showing that there was in fact no consideration.

§ 24. Consideration Defined. Sir William Anson has defined consideration as "Something done, forborne, or suffered, or promised to be done, forborne, or suffered by the promisee in respect of the promise." 3

Thus, if A by paying B a sum of money or doing something at B's request, procures a promise from B in return to do something for A, the money paid to B or the act done for him at his request, is the consideration for B's promise. A's act in paying money to B or doing something for him. at his request, was a detriment to A, since he was doing something he was not legally bound to do. Such detriment to the promisee, the one seeking to enforce the contract, is the essential element of consideration and it is immaterial whether the consideration was beneficial to the promisee or not. Thus, in determining whether a contract possesses a valuable consideration, one must consider whether the promisee did, forbore, suffered, or promised anything; whether it was more than he was already legally bound to do, forbear, or suffer; and whether his act, forbearance, sufferance, or promise, was of an ascertainable value.

§ 25. Consideration Need not Be Money or Money Value. Money or money's worth is a valuable consideration, but is not essential to make the consideration adequate to support the contract. All that is necessary to constitute a valuable consideration is that the one seeking to enforce the promise, the promisee, has done or promised to do something which he was not bound to do, or refrained or promised to refrain from something he had a right to do. Thus, naming a child after a person will be a valuable consideration for a promise to pay it a large sum of money. A

2 See article on Bills, Notes, and Checks. 4 Wolford v. Powers, 85 Ind. 294. 3 Anson's Law of Contracts, (8th ed.) p. 74.

promise of a nephew to refrain from smoking, drinking liquors, swearing, and gambling until he came of age, is a good consideration for a promise of his uncle in return to pay him $5,000. The uncle's claim, when sued for the $5,000, that his agreement was not founded on a valid consideration, was answered by the court as follows:

"It is sufficient that he restricted his lawful freedom of action within certain limits, upon the faith of his uncle's agreement."5

§ 26. Adequacy of Consideration. So long as the promisor gets what he bargained for, and it is of some value in the eye of the law, courts will not consider whether it is as valuable as he thought it was, or equivalent in value to what he promised in return. This is stated by Mr. Justice Story in a case in the Supreme Court of the United States:

"A valuable consideration, however small or nominal, if given or stipulated for in good faith, is in the absence of fraud, sufficient to support an action on any parol contract."'e

So where the defendant had made the promise sued on, in consideration of the plaintiff's surrender of a guaranty which proved of no value, the surrender was held a sufficient consideration for the promise." "The plaintiffs were induced by the defendant's promise to part with something which they might have kept, and the defendant obtained what he desired by means of that promise."

Where a person traveled for his own pleasure and benefit, at the request of another, this was held sufficient to support a promise by the latter to reimburse him for his expenses. "The adequacy of the consideration is for the parties to

5 Hamer v. Sidway, 124 N. Y. 538, 27 N. E. 256, 12 L. R. A. 463, 21 Am. St. Rep. 693.

6 Lawrence v. McCalmont, 2 How. 426, 11 L. ed. 326.

7 Haigh v. Brooks, 10 Ad. & Ell. 309, 113 Eng. Rep. Reprint 119.

8 Devecmon v. Shaw, 69 Md. 199, 14 Atl. 464, 9 Am. St. Rep. 422.