*I have now gone through the five cases to which the fourth section of the Statute of Frauds

[*68]

extend beyond the year. To this extent has the doctrine laid down in Boydell v. Drummond, been applied in the very recent case of Souch v. Strawbridge, 15 Law Jour. C. P. 170, since reported in 2 Common Bench, R. 888, 52 E. C. L. R., where the agreement was that the plaintiff should keep the defendant's child so long as the defendant should think proper; and he did keep it for some years. This was held not to require a written memorandum, for "the object of the statute (said Tindal, C. J.) was to prevent frauds by perjury and subornation of perjury, which might set up promises by word of mouth to serve for a long period of years, or to enter into a partnership for life, or promises of a similar nature. The statute merely says, that a party shall not be hurt by evidence of parol promises of such a nature as that. *** Looking at the terms here, I see nothing which must necessarily extend the agreement beyond the

as it was the intention of the parties, founded on a reasonable expectation, that it should be so, the Statute of Frauds did not apply. Mr. Smith has questioned the propriety of this decision as being opposed to Peter v. Compton, both in his notes to that case, in the Leading Cases (vol. i. p. 143), and in his "Mercantile Law" (p. 440), but in the very recent case of Cherry v. Heming, 4 Exchequer, 631, the facts and the decision were much the same as in Donellan v. Reed, and the Court, referring to the remarks of Mr. Smith, were of opinion that they were not sufficient to induce them to doubt the authority of that case. On this side of the Atlantic, the construction thus adopted, has been followed in some cases; Holbrook v. Armstrong, 1 Fairfield, 31; Rake v. Pope, 7 Alabama, 161; Johnson v. Watson, 1 Kelly, 348, but rejected in others; Broadwell v. Gitman, 2 Denio, 87; Cabot v. Haskins, 3 Pick. 83; Lockwood v. Barnes, 3 Hill, The practical difference between these classes of cases may be thus explained. "It often happens," as was said in Donellan v. Reed, in cases of a parol sale of goods, that they are not to be paid for in full till after the expiration of a longer time than a year, and surely the law would not sanction a defence on that ground, where the buyer had had the full benefit of the goods on his part." Under such circumstances, however, it cannot be doubted that although by the operation of the statute, the seller might fail to recover the price of the goods by the terms of the contract, he could not fail to recover quantum valebant; Poulter v. Killingbeck, 1 Bos. & Pull.

128.

upon a

applies, and in which it requires a written memorandum of the contract. There are one or two other

year. If there be an agreement to serve for two years, that is undoubtedly within the statute; but if the agreement be to serve, and that such service may be put an end to on a month's notice, it is not within it." The same case decides that no agreement having reference to an executed consideration is within the statute; the agreement must be prospective, not retrospective.

A contemplated performance of the agreement by either of the parties within the year will take it out of the statute. In the case, for instance, 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 the law would not sanction a defence on that ground, when the buyer had had the full benefit of the goods within the year (Donellan v. Read, 3 B. & Ad. 899, 23 E. C. L. R). If either party is to perform his part of the agreement, therefore, within the year, it need not be in writing.

397; Earl of Falmouth v. Thomas, 1 Cromp. & Mees. 109; Teal v. Auty, 2 Brod. & Bing. 99; Philbrook v. Belknap, 6 Vermont, 383; and the difference would therefore be, that under Donellan v. Reed, the plaintiff could recover merely upon proving the contract and its performance on his part, while under the opposite authorities, the benefit to the defendant must be shown.

The point decided in Souch v. Strawbridge, supra, viz., that the statute only applies where, from the terms of the agreement, the contract must necessarily extend beyond the year, was, long before that decision, held the same way in Thorne v. Fox, 10 Johns. 244, where a promise was made by one of a congregation to pay the plaintiff, its pastor, two dollars a-year for his services as such, and he sued for services rendered many years after, and it was held that the plaintiff having received his salary semi-annually, it must be presumed that such was the understanding at the time of the agreement, and hence the contract was not within the statute, because the plaintiff could have withdrawn at any time within the year, and yet recovered his services for the first six months. So in Artcher v. Zeh, 5 Hill, 200, and it seems, also, that whenever the time of the duration of the contract is to depend on the contingency of life, the contract need not be written; Wells v. Horter, 4 Bingham, 40; Thompson v. Gordon, 3 Strobhart, 197; Bull v. M'Crea, 8 B. Monroe, 422, as, for instance, a promise not to carry on the business of a livery-stable

cases of very considerable importance in practice, on which I shall briefly observe in the next lecture, in which a writing is required by the express enactment of the legislature. Having mentioned them, I shall say something of the consideration upon which a simple contract may be grounded, and which is, as you are aware, an essential part of such contract; and then having finished the remarks I had to make on Simple Contracts exclusively, shall resume the consideration of the general law of contracts, and shall speak of the competency or incompetency of the contracting parties, and of remedies by which in case of breach of contract, their performance is to be enforced.

SALE OF GOODS, ETC., UNDER THE SEVENTEENTH SECTION OF

BY DEED AND OF SIMPLE CONTRACTS.

I CONCLUDED in the last lecture the consideration of the five cases in which the fourth section of the Statute of Frauds renders it necessary that a contract should be reduced to writing. There are, as I then said, one or two other cases, which, being of constant occurrence, it will be right to specify before proceeding to the next branch of the subject.

keeper, because the death of the contracting party might happen within the year; Lyn v. King, 11 Metcalf, 411; a promise to be performed on the death of the promisor; Wells v. Horton, 4 Bingham, 40; Thompson v. Gordon, 3 Strobhart, 197, &c., because the death of the promising party might occur instantaneously. The student will find these and many other cases classified in the American note to Peter v. Compton, 1 Smith's Leading Cases, 375.

The first of these cases is that of a sale for the price of 107. or upwards, regarding which the seventeenth section of the Statute of Frauds has provided as follows:

"No contract for the sale of any goods, wares, or merchandise, (a) for the price of 107. or upwards, shall 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 that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized."

The first great difference which you will observe between this section and the fourth section of the same act is, that the fourth section *renders a writing [*70] necessary in all cases which fall within its terms; whereas the seventeenth mentions three circumstances, any one of which it directs shall be as effectual as a writing, namely, acceptance of any part of the goods, payment of part of the price, and thirdly, the giving something by way of earnest to bind the bargain; any one of which three things will as effectually perfect the sale as a writing would. Where none of these has taken place, a writing, however, becomes necessary; and if there be none, the bargain is void, and there is no sale; for, to use the words of Mr. J. Bosanquet in Laythoarp v. Bryant,' "the fourth section does not avoid contracts not signed in the manner described; it only precludes the right of action. The seventeenth section is stronger, and avoids contracts not made in

(a) See Humble v. Mitchell, 11 Ad. & Ell. 205, 39 E. C. L. R. [That case decided that shares in a joint stock company, being mere choses in action, and incapable of delivery, were not within this section of the statute, and has been since repeatedly affirmed in England. See note 2 to page 70, infra.]

the manner prescribed." A parol sale, therefore, unaided by any of the three formalities mentioned in the seventeenth section as equivalent to writing, is totally and entirely void.

A doubt was entertained at one period whether the seventeenth section included the case of a contract for something not in existence in a chattel estate at the time of making the bargain, but which was to become a chattel before the time agreed upon for its delivery. Where, for instance, growing timber was bargained for, to be delivered cut into planks, or a ship or a carriage not yet built. However,

It was formerly held that executory contracts were not within the statute, but that it was confined to cases where the buyer was immediately answerable; Towers v. Osborne, Strange, 506; Clayton v. Andrews, 4 Burrow, 2101; but this distinction was doubted by Lord Thurlow, in 3 Brown's Cas. in Ch. 355, and was subsequently overruled; Rondeau v. Wyatt, 2 H. Black. 63; Cooper v. Elston, 7 Term 14.

The statute of 9 Geo. 4 has not been generally re-enacted in this country, and hence the English cases upon the construction of this part of the Statute of Frauds before its alteration, have still a practical application here. The first case was Towers v. Osborne, already cited, where the defendant bespoke a chariot, and refused to take it when made, and the Court held that a writing was not necessary, for the statute "related only to contracts for the actual sale of goods, when the buyer is immediately answerable, without time given him by special agreement." Then came Clayton v. Andrews, supra, where the plaintiff agreed to deliver a load and a half of wheat within a month, at so much a load, to be paid on delivery, the wheat being then unthreshed, and the Court, on the authority of Towers v. Osborne, held the case not to be within the statute, rather, however, on the ground of the contract being executory, than because the wheat did not then exist in the form in which it was to be delivered. Then these two cases were, as has been said, overruled as to the distinction between executed and executory contracts. Then in Garbutt v. Watson, 5 Barn. & Ald. 613, 7 E. C. L. R., the contract was for the delivery of flour, which was then unground wheat, and the Court said that "in Towers v. Osborne, the chariot which was ordered to be made would never, but for that