A treatise on the statute of frauds

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Cornell University Law Library

The Moak Collection

PURCHASED FOR

The School of Law of Cornell University

And Presented February 14, 1893

IN HEnORY OF
JUDQE DOUQLASS BOARDMAN

FIRST DEAN OF THE SCHOOL

By his Wife and Daughter ■

A. M. BOARDMAN and ELLEN D. WILLIAMS

Cornell University Library
KF 810.W87

A treatise on the statute of frauds.

3 1924 018 824 551

A Cornell University
J Library

The original of tiiis book is in
tine Cornell University Library.

There are no known copyright restrictions in
the United States on the use of the text.

http://www.archive.org/details/cu31924018824551

TREATISE

Statute of Frauds.

'^OOD,

AuTHOB OP " FiEE Insurance," " Lakdlobd and Tenant,"
"Slander," Etc., Etc.

o»;o

BANKS & BROTHERS,

144 Nassau Street, New York ;
473 AND 475 Broadway, Albany, N.Y.

1884.

Entered, according to Act of Congress, in the year 1884, by

BAITKS & BROTHERS,
in the OfSce of the Librarian of Congress at Washington.

J. B. CnsHiNG & Co., Pbihtsbs, Bostoh.

PEEFAOE.

^ I IHERE is probably no field of the law in which judicial legis-
-^ lation has been more vigorously indulged than in the con-
struction and application of the Statute of Fj-auds, and none in
which there is more needless conflict than has arisen upon the
construction of this celebrated statute, which, to the common
mind, seems so plain as to be incapable of misconstruction or
doubt. But the amount of litigation arising under it has grown
into enormous proportions, and the number of cases which have
been before the appellate courts for decision can be counted by
the thousands ; and now, after the lapse of nearly two centuries,
many of the questions arising under it are not definitely settled,
and the conflict of doctrine upon some portions of it is remark-
able. If any argument is needed to show the advantage of the
elastic principles of the common law, as applied to the business re-
lations of mankind, over the arbitrary provisions of a statute, it
seems to me that the experiences developed by this statute aflibrd it.

When I started out in this field of the law, it was with the pur-
pose simply to give the profession a revised and Americanized
edition of Mr. Agnew's excellent work upon this topic ; but I soon
found that ray own work would so largelj- exceed that of the
author that it would be unjust to him, as well as to myself, to pur-
sue that course ; therefore, I concluded that it would be better to
write an original work, using such portions of Mr. Agnew's work
as are applicable to the state of the law in this country.

"Where the conflict of doctrine in the various States is real, and
incapable of being reconciled, I have stated the rules adopted in
the diflferent States ; and, where there is merely an apparent but
no real conflict, I have endeavored to point out the real doctrine,
and to show that no substantial difference exists.

I have endeavored to present the different phases of the topic

11 PREFACE. '

fully, and to make the work as practical as possible, by giving apt
illustrations of the rules from the cases.

I have given the gist of several hundred cases, English and
American, in the notes and text ; and in the prosecution of my
work have aimed to make it a useful book to those having occa-
sion to use it, rather than a symmetrical or interesting one.

In the index, under the most vexed heads of the subject, I have
called attention to the leading cases, the gist of which is given in
the work, with a view to calling attention directly to those cases
whose doctrine is the most approved upon the question involved.
I make this explanation because a similar course pursued by me
in the index to my work upon "The Statute of Limitations " was
criticized somewhat sharply, and said to be meaningless and illog-
ical; but, from the very large number of letters received by me
from members of the profession in different sections of the country
commending this course, I yield to the convenience of the profes-
sion, rather than to the really logical method of preparing an
index.

Hoping this work will lighten somewhat the labors of the pro-
fession in investigating questions arising under these statutes, I
submit it to their criticism.

H. G. "WOOD.
Boston, April 4, 1884.

TABLE OF OOIiJ'TElsrTS.

— »^—

CHAPTER I.

PAGES

Parol Leases 4-70

CHAPTER II.
Assignment and Sukhender > . 71-136

CHAPTER m.
Guaranties, Promise by Executors, Etc 137-148

CHAPTER rV".
Guaranties 149-310

, CHAPTER V.

Agreements in Consideration of Marriage . . . 311-338

CHAPTER VI.
Interest in Lands 340-461

CHAPTER Vn.
Contracts not Pbrformable in a Year .... 463-500

CHAPTER Vin.
What is a Sale op Goods? 502-509

CHAPTER IX.
Price or Value of £10 510-514

CHAPTER X.
Earnest and Part Payment 514-526

IV CONTENTS.

CHAPTER XI.

PAGES

Executory Sales 528-555

CHAPTER XII.
Acceptance and Receipt 556-644

CHAPTER Xni.
Memorandum or Note in Writing 645-762

CHAPTER XIV.
Signature to the Memorandum 763-777

CHAPTER XV.
Contracts by Agents 778-796

CHAPTER XVI.
Declarations of Trust 798-803

CHAPTER XVII.
Resulting Trusts 804-817

CHAPTER XVin.
Specific Performance 819-873

CHAPTER XIX.
Pleadings 874-878

APPENDIX 879

TABLE OF OASES.

Abbott V. Draper, 428, 432, 433, 435.

c7. Gilchrist, 645.

V. Gilman, 546.

V. Inskep, 469.

V. Mills, 420.

c. Parsons, 123.

V. Shepard, 703.
Abeel V. Kadcliffe, 647, 656, 659, 716.
Abel V. Wilder, 263.
Abell V. Douglass, 414.
Ablett, in re, 454.
Acebal v. Levy, 558, 615,642, 643,647,

655, 680, 737, 746, 782, 786.
Acherley v. Acherley, 798.
Ackerman v. Ackerman, 845.
Ackla V. Ackla, 439.
Ackland v. Lutley, 88, 102, 106, 107.
Ackroyd v. Smithson, 806.
Acland v. Lewis, 396.
Acraman v. Morrice, 520, 588, 621.
Acton V. Peirce, 317.
Adams v. Adams, 485, 497.

V. Anderson, 306.

V. Andrews, 9.

u. Claxton, 454.

V. Densey, 160, 297.

V. Foley, 637.

V. FuUam, 827.

V. Hill, 310.

V. Honess, 495.

V. McKinney, 25.

V. McMillan, 647, 655, 678, 724,
726, 739, 781.

V. Patrick, 874.

V. Eockwell, 839.

V. Scales, 720, 726.

u. Smilie, 431.

V. Townsend, 434.
Aday v. Echols, 64.
Addison v. Dark, 30.

V. Hack, 36.
Adlard v. Booth, 554.
Adkinson v. Barfield, 259.

Adlington v. Cann, 798, 799, 802.
Adncy, ex parte, 273.
Adsetts V. Hives, 678.
Agand v. King, 56.
Agar V. Brown, 76.
Agard v. Valentia, 845.
Agate V. Gignough, 414.
Aicarde v. Craig, 158, 878.
Aiken v. Duren, 195, 208.
Albertson v. Ashton, 779.
Alcalda v. Morales, 161, 209, 210.
Alchin V. Hopkins, 414.
Alcock V. Delay, 707.
Aldenburgh v. People, 85, 103.
Alderman v. Chester, 469, 484.
Aldrich v. Ames, 198, 275, 292, 295.

V. Jewell, 155, 156.

V. Pyatt, 510, 511.
Aldridge i\ Johnson, 624.
Alexander, ex parte, 454.

V. Bonnin, 43.

V. Combes, 518.

V. Guiselin, 186, 507.
Alger !•. Johnson, 875.

V. Scoville, 154, 198, 201, 260, 264,
265, 277, 295.
Allaire v. Crawford, 160.
AUard v. Greasart, 510, 511, 596, 613,

614, 615, 641, 042.
Allen V. Addington, 306.

c. Aguira, 395, 425.

0. Bennett, 652, 655, 661, 688, 694,

700, 709, 710, 730, 740, 766.

1 . Bower, 846.
V. Brown, 79.

r. Devlin, 82, 96.

V. Eighme, 171, 299.

V. Feland, 24.

V. Fiske, 14, 22.

u. Jaquish, 108.

V. Jarvis, 550.

V. Leonard, 185.

V. Pryor, 183, 243, 436.

V. Scarff, 155, 165, 262.

V. Thompson, 152, 175, 228, 267.

Yl

TABLE OF CASES.

Allen V. Webb, 845, 846.

Allen's Estate, 824, 826.

AUetson v. Chichester, 445.

Allhouse V. Ramsay, 156, 195, 214.

AUis V. Eead, 432.

AUnutt V. Ashenden, 181.

AUwin V. Garbenick, 266.

Alna .!). Plummer, 726, 780, 782, 787.

Alt V. Alt, 331.

Alvanley v. Kinnaird, 866, 870.

Amburger v. Marvin, 474, 480, 485,

486, 874.
Ambrose v. Ambrose, 803.
Ames V. Poster, 155, 196, 261, 266.

V. Jackson, 148, 158.
Amory v. Kanoffsky, 76, 95, 102.
Amsinck v. Am. Ins. Co., 15.
Amson v. Dreber, 559.
Anderson v. Chick, 726, 780, 824.

,,. Davis, 207, 214.

V. Eaulke, 458, 459.

V. Harrold, 764, 772, 773.

V. Hayman, 166, 167, 194, 205,
216.

V. Midland R. R. Co., 54.

V. Prindle, 48.

V. Scott, 365, 366, 597, 617, 618,
619, 630.

V. Simpson, 357, 367, 826, 835.

V. Spence, 140, 275, 288, 290, 292.
Andre u. Badman, 195, 214, 245.
Andrews v. Dietrich, 566.

V. Jones, 337, 424.

u. Scottin, 458, 459.

V. Smith, 207, 218, 231, 247.
Androscoggin Bridge Co. v. Bragg,

28, 35.
Angell V. Duke, 186, 350, 423, 425.
Ann Berta Lodge v. Lenerton, 828.
Annan v. Morritt, 492.
Anon. (Dal. 74, pi. 58), 115.

(2 Dyer, 112 a, pi. 49), 82.

(Leon. 30, pi. 83), 116.

(1 Ld, Eayd. 182), 383.

(Salk. 519), 138.

(1 Salk. 280), 314, 468, 483.

(3 Salk. 223), 26, 27.

(5 Yin. Abr. pi. 38), 863.
Anstey v. Marden, 196, 225, 227, 229,

268.
Anthony v. Haney, 23.

■u. Leftwych, 835.

V. Wheatons, 638.
Antonio v. Clissey, 156, 216, 231, 240.
Apgar V. Finney, 550.

Apgar V. Hiler, 160, 292.
Appleton V. Bancroft, 620, 627. >
Arbuckle v. Hawks, 151, 156,206,211,

216, 221.
Archbold v. Lord Howth, 839.
Archer v. Baynes, 660, 711, 730, 732.
Arden v. Rowney, 205, 281.

V. Sullivan, 46, 48, 66.
Argeubright v. Campbell, 320, 337,

772, 854, 878.
Argus Co. V. Albany, 652, 666, 669,

675.
Arkwright, ex parte, 454.
Armington v. Houston, 624.
Armstrong v. Baldwin, 198.

V. Mora, 156, 214.

V. Katterhorn, 835.

o. LawBon, 359, 361, 363.

V. Vroman, 457, 460, 729.
Arnold v. Delano, 631.

V. Stedman, 154, 160, 260.
Arnot V. Erie R. R. Co., 171.
Arrington v. Larrabee, 8, 19, 30.

V. Porter, 762, 826.
Artcher v. Zeb, 395, 484, 498, 518, 521,

523, 525.
Arthur v. Midland Railway Co., 807.
Arundale v. Gray, 115.
Arz V. Grove, 854.
Ashcroft V. Morrin, 680, 734.
Ashford v. Robinson, 61, 210.
Ashley v. Warren, 49.
Ashman v. Williams, 26.
Ashmore v. Evans, 493, 877.
Ashton V. Dalton, 443, 449.

V. Lord Langdale, 393, 396.
Astey V. Emery, 614.
Aston V. Wood, 806.
Atherton v. Newhall, 558, 574, 607,

612, 615, 641.
Atkin V. Young, 832.
Atkins V. Hill, 148.
Atkinson, in re, 445.
Atkinson v. Bell, 529, 533, 534, 535,

536.
Attorney General v. Cox, 134.

V. Day, 457, 822, 832, 856.

u. Dean and Can. of Windsor,
806.

V. Sitwell, 856.
Atwater v. Hough, 550, S53.
Atwell V. Miller, 637.
Atwood V. Cobb, 663, 680, 684, 686,
765.

V. Fox, 463, 480.

TABLE OF CASES.

vu

Atwood V. Lucas, 578, 574.

V. Norton, 463, 464, 497.
Auer V. Penu, 95.
AufEman v. Stark, 45.
Austen v. Baker, 213, 218.

V. Bewley, 143.
Austin V. Burbank, 439.

V. Sawyer, 352, 353, 360, 377, 384.
Aveline v. Whisson, 44.
Avery v. Baum, 421.

V. Halsey, 293.
AylifEe o. Tracy, 317, 330, 670, 716,

716.
Ayres v. Herbert, 162.

B.

Baba v. Richmoiid, 421.
Babbett v. Young, 723.
Babcock v. Meek, 876.
Babcock v. Stanley, 638.

V. Terry, 294.

V. Utter, 10.
Bach V. Owen, 518, 520, 602.
Back V. Andrews, 810, 814.
Backus V. Clark, 151, 211, 221.
Bacon v. Brown, 104.

V. Daniels, 713.

V. Eccles, 572, 580, 642.
Badeley v. "Vigurs, 121.
Bagley v. Moulton, 278.

V. Sasser, 174.
Baigg V. Brooks, 208.
Bailey v. Ackerman, 705.

V. Bensley, 752.

c. Delaplaine, 104, 106.

u. Freeman, 172.

V. Harris, 624.

V. Jones, 421.

V. Ogden, 61, 576, 621, 631, 638,
647, 689, 770, 773.

V. Eutjes, 284.

V. Sweeting, 647, 649, 650, 653,
660, 695, 702.

V. Wells, 831
Bainbridge v. Wade, 181, 750.
Baines v. Ewing, 788.

V. Jevons, 575, 585.
Baker, in re, 444.

V. Bourcicault, 555.

V. Cuyler, 621.

V. Dillman, 160.

V. Glass, 843.

V. HoUobough, 854.

Baker v. IngersoU, 178.

V. Jameson, 876.

V. Pratt, 97, 104.

V. Reynolds, 45.

... Scott, 429.

.-. Sutton, 393.

o: Willoughby, 117.

V. Wimpee, 439.
Baldey v. Parker, 510, 597, 598, 600,

619, 620, 623, 642.
Baldwin v. Breed, 26.

V. Kerlin, 684.

„. Palmer, 428, 434.

r. Williams, 395, 503.
Ball V. CuUimore, 48.

■V. Dunsterville, 45.
Ballard v. Bond, 410.

V. Walker, 663, 764.
Balliet v. Scott, 160, 196, 209.
Ballingall v. Bradley, 648, 714, 762.
Ballou V. Hale, 419.
Baltzer v. Nicolay, 158, 728.
Bambier v. Savage, 723, 780, 783.
Bampton v. Paulin, 154, 269.
Banchor w. Warren, 640.
Bane's Case, 148.
Bank v. Eccles, 765.
Bank of Lansingburg v. Crary, 368,

403, 440.
Bankart v. Tennant, 10, 834.
Banker v. Allen, 60.
Bankhardt v. Houghton, 23.
Banks v. Crossland, 150, 472, 485.
Bankworth v. Young, 150.
Bannon v. Bean, 410.

V. Urton, 406.
Baptist Church v. Bigelow, 723, 726.
Barber v. Fox, 141, 143, 144, 146, 173,

206, 206.
Barclay v. Bates, 723.
Barker v. Birt, 208, 270.

u. Borzone, 752.

V. Bradley, 234, 251.

V. Bucklin, 198, 201, 209, 233, 234,
250.

V. Guillard, 272.

V. Seudder, 299.
Barkworth v. Young, 334, 649, 700,

803, 855, 877.
Barlow v. Myers, 233.

V. Rhodes, 6.

V. Wainwright, 53.
Barnard v. Cave, 865, 867.

I;. Pumfrett, 137, 147, 148.

V. Whipple, 422.

Till

TABLE OP CASES.

Barnes v. Barnes, 22, 25, 360.

V. Boston & Maine R. E. Co., 819.

V. League, 878.

V. Pevine, 351.
Barney v. Ball, 479, 480.

V. Brown, 009.

V. Patterson, 458, 461, 729.
Barrack v. McCulIoch, 812.
Barrel! v. Trussell, 173, 208, 270.
Barrett v. Goddard, 630, 631.

V. Hyndman, 268.

o. McHugh, 164, 165, 216.

V. Eolph, 74.
Bafrickman v. Kuykendall, 428, 432,

433, 655, 656, 678.
Barringer v. Warden, 161, 209, 211.
Barrs v. Eewkes, 806.
Barry v. Coombs, 648, 655, 684, 714,
779.

V. Law, 677, 688, 770, 773, 779.

V. Ransom, 160, 198, 235, 293.

V. Rush, 138, 139, 140.
Barstow v. Gray, 663, 666, 764, 765.
Bartlett v. Downs, 132.

a. Pickersgill, 808, 809.

V. Pumell, 781.

V. Wheeler, 427, 434, 495, 497.
Bartow v. Cox, 48, 49, 54.
Bash V. Bash, 427.
Baskett v. Cafe, 857.
Bason v. Hughart, 171.
Bass u. Walsh, 571, 626, 632.
Bassett v. Camp, 626.
Bassford v. Pearson, 407, 652.
Bassler v. Mesly, 826.
Bateman v. Phillips, 178, 213, 670, 681,

688, 751.
Bates ?;. Chesboro, 521.

r. Coster, 538, 539, 543.

V. Moore, 494.

V. Starr, 172, 216.
Batsford v. Morehouse, 412.
Batson v. liing, 206, 274, 287, 291.
Batstone v. Salter, 807, 812.
Battersbee v. Harrington, 337.
Batturs v. Sellers, 649, 656, 772.
Baumann v. James, 697, 702, 704, 705,

708, 739, 850.
Baumgarten v. Fowler, 553.
Bawdes v. Amhurst, 61, 316, 773.
Baxendale v. Seale, 870.
Baxter v. Brown, 396.
Bayley v. Boulcott, 799.

u. Pitzmaurice, 718.

u. M. of Conyngham, 7.

Eaynard v. Wooley, 447, 451.
Beach v. Allen, 351, 402.

V. Hungerford, 151.
Beaden v. Pyke, 78.
Beal V. Brown, 158, 424.

V. Sanders, 50, 56, 66, 68.
Beall V. White, 105, 106.
Beaman v. Eusaell, 160, 198, 235, 292,

298.
Beard v. Converse, 875.

0. Liticum, 846.
Beardman v. Wilson, 75.
Beardslee v. Morgner, 233.
Bearshears v. Eowe, 209.
Beatson v. Nicholson, 854.
Beatty v. Grim, 229, 290.
Beaumann v. James, 718.
Beaumont v. Brengeri, 587, 630, 634.

V. Carter, 332.
Beckford v. Beckford, 811.
Beckwith v. Talbot, 647, 654, 703, 705,

706, 709, 742, 776.
Bedford v. Terhune, 110, 132.
Bedinger v. Whittemore, 432.
Beebe v. Moore, 171.
Beecher v. Major, 807, 808.
Beer u. London & Paris Hotel Co.,

688, 690, 692, 693, 765, 781.
Beers v. Crowell, 395, 503.
Bees V. Williams, 97, 102, 127.
Beeston v. Collyer, 466, 472, 485.
Belcher v. Costello, 308.
Belknap v. Bender, 278, 279.
Bell V. Bruen, 846.
Bell V. Elliott, 22.

V. Hewitt, 470, 484.

». Howard, 747.

V. Thompson, 409.

V. Warren, 846.

V. Welch, 181.
Bellamy v. Burrow, 803.

V. Ragsdale, 435.
Bellasis v. Compton, 798, 800, 808.
Beller v. Black, 566.
Belt V. Marriott, 562.
Beubow V. Townsend, 799, 800, 808.
Benecke v. Chadwick, 734.
Benedict v. Beebe, 351, 359, 369, 402,
403.

V. Benedict, 29, 35, 41.

V. Dunning, 151, 223.
Benford v. Schell, 639.
Bennett v. Blain, 393, 396.

I/, Brumfitt, 770.

V. Carter, 726.

TABLE OF CASES.

IX

Bennett v. Hull, 542.

V. Ireland, 52, 66.

V. Lent, 359.

V. Nye, 537.

V. Scott, 360, 369.

V. Sims, 624.
Bennett's Case, 83.
Bennett's Settlement Trust, 808.
Benson v. Walker, 204.
Bent V. Cobb, 721, 781, 783.
Bentall v. Burn, 585, 626, 628, 639.
Bentham v. Cooper, 179.
Bentley v. Mackay, 808.
Benton v. Pratt, 306.
Benzlger v. Miller, 649.
Berkeley v. York, 103, 118.
Berkley v. R. & S. R. R. Co., 609.
Berkshire v. Young, 240.
Bemal v. Hoyious, 352, 384.
Bernard v. Bonner, 119, 124.
Bernier v. Cabot Mf'g Co., 471.
Berrey v. Lindley, 47, 51, 66, 69, 70.
Berrisford ti . Milward, 332. y
Berry v. Doremus, 172, 195, 209, 240,

469, 494.
Besar v. Flues, 45.
Bessell v. Landsberg, 84 93, 94, 107,

112, 118, 120, 126.
Besshears v. Rowe, 160, 245.
Bethel Steam Mill Co. v. Brown, 638.
Bicknell v. Bicknell, 442.
Bidden v. Leeder, 186.
Biddle v. Ash, 6.
Biddulph V. Poole, 96, 108, 124.
Bigelow V. Huntley, 624.
Bigg V. Strong, 787.

V. Wheeling, 598.
Bill V. Bament, 568, 585, 597, 620, 621,

623, 628, 649, 704.
Billingsley v. Dempewolf, 155, 203,

216, 233, 290.
Bingham v. Sprague, 51.
Binney v. Ince Hall Coal Co., 445.
Binstead v. Coleman, 862.
Birch V. Earl of Liverpool, '485, 494.

V. Wright, 56.
Birchard v. Booth, 233.
Birchell v. Neaster, 184, 211.
Bird V. Blosse, 190,' 319, 653, 702, 731,
764.

V. Boulter, 781, 783, 787.

V. Defonvielle, 46.

V. Gammon, 207, 274, 275, 276,
286.

o. Gt. Eastern R. R. Co., 18.

Bird V. Higginson, 7, 28.

fc. Muhlenbrink, 550, 553.

V. Munroe, 649, 658, 704.

■u. Riehdrdson, 680.
Birkmyr v. Darnall, 151, 159, 160,

206, 218, 272.
Bisdee, ex parte, 444.
Bishop V. Bishop, 369.-
Bishop of Rochester v. Bridges, 117.
Bissell V. Balcom, 521.
Bissig V. Britton, 292, 293.
Blachford v. Ifirkpatrick, 823.
Black V. Black, 423.
Blackburn v. Mann, 497.
Blackford v. Plainfield Gas Co., 257.
Blacknall v. Pariah, 782.
Blacknell v. Plowman, 132.
Blagden v. Bradbear, 456, 457, 699,

716, 730, 857, 878.
Blair v. Smith, 421.
Blair &c. Land Co. v. Walker, 247,

466, 483.
Blaisdell v. Portsmouth &c. R. R. Co.,

88.
Blake v. Blake, 817.

■- . Cole, 198, 292, 469, 481, 484, 485.

V. Jerome, 27.

V. Parlin, 194, 216.
Blakeney v. Ferguson, 839.

V. Goode, 469, 497.
Blakey v. Dinsdale, 518, 519.
Blanchard v. Child, 624.

^. Detroit &c. R. R., 845.

V. Weeks, 466, 480, 484, 497.
Blanding v. Sargent, 466, 467, 479,

484, 495.
Blank v. Dreher, 161.
Blanton v. Knox, 494.
Bleakley u. Smith, 60, 682, 684, 772, 773.
Bleecker v. Franklin, 725.
Blenkinsop v. Clayton, 519, 585, 618.
Bligh V. Brent, 393.
Bliss V. Thompson, 348, 414.
Blodgett V. Lowell, 216, 309.
Blood V. Goodrich, 754.

„: Hardy, 348, 779, 782.

w. Keller, 11.
Bloom V. McGrath, 169, 204, 205, 217.
Bloomer v. Merrill, 100.
Blore V. Sutton, 61, 783, 787, 832, 846.
Blount V. Hawkins, 206.
Blow V. Maynard, 337.
Bluck V. Gompertz, 678.
Blunt I!. Tomlin, 836.
Blyer v. MulhoUand, 235.

TABLE OF OASES.

Boardman v. Cutter, 395, 503.

V. Mostyn, 826, 846, 848.

.,. Spooner, 557, 571, 614,626,627,
641, 654, 702, 703, 709, 726,
737, 752, 769, 770.
Bock V. Healy, 669.
Boehm v. Campbell, 179.
Bog Lead Mining Co. v. Montague,

561, 566, 603, 667.
Bogert V. Dean, 83.
Bogie V. Bogie, 412.
Bohannon v. Jones, 290.
Bolckow V. Seymour, 743, 746.
Bold V. Hutchinson, 327.

V. Raynor, 739, 750.
Bolton V. Bishop of Carlisle, 90.

V. Lancashire Railway Co., 608.

V. Tomlin, 52, 436.
Bomier v. Caldwell, 839.
Bond V. Hopkins, 820.

V. Rosling, 63.
Bone V. Pollard, 816.
Bonine v. Denniston, 205.
Booker v. Tally, 215.
Boone v. Storer, 16.
Booth V. Eighmie, 156, 195, 214.

f. Heist, 284.

o. Turle, 853.
Borat V. Carey, 337.
Borchsensius v. Canutson, 225.
Borrett v. Gomserra, 826.
Borrodaile, ex parte, 451.
Borron, in re, 455.
Borrowman v. Free, 601.
Borrowscale v. Bosworth, 578.
Bosford V. Pearson, 425, 429.
Boson V. Stathara, 799.
Bostock' V. Jardine, 788.
Boston V. NichoUs, 874.
Boston Duck Co. v. Dewey, 875.
Bostwick V. Leach, 349, 359, 362, 402,

407.
Botsford V. Morehouse, 92.
Bott V. Burnell, 729. .
Botting V. Martin, 74, 102.
Boult, in re, 445.
Boulter v. Arnott, 597.
Boulton, ex parte, 445.
Bourgeoise v. Blank, 419.
Bourland v. County of Peoria, 655.
Bovy's Case, 337.
Bowen i>. Kurtz, 277.

V. Morris, 663.
Bowens v. Anderson, 571.
Bowerhank v. Monteiro, 148.

Bowerman v. Sybourn, 132.
Bowers v. Cator, 826, 875.

V. Bowers, 359, 362.
Bowery v. Oystfer, 443.
Bowes V. Pontifex, 572, 605.
Bowlby V. Bell, 393, 503.
Bowman v. Com, 385, 513.

V. Stilwell, 843.
Box V. Stanford, 434.
Boyce v. Green, 396, 691, 709.

V. McCuUoeh, 95.

„. Owens, 154, 162, 260.

V. Washburn, 356, 359, 369, 383.
Boyd V. Croydon Ry. Co., 308.

V. Graves, 420, 421.

V. Moyle, 173, 176, 181.

V. Stone, 437.
Boydell v. Drummond, 463, 473, 475,
477, 478, 485, 487, 496, 709,737.
Boyers v. Elliott, 423.
Boykin v. Dohlonde, 194.

K. Smith, 460.
Boynton v. Veazie, 626, 638.
Boys V. Hyerst, 735, 765.
Bozon V. Williams, 443, 451.
Brabin v. Hyde, 506, 523, 526, 571.
Bracegirdle <;. Heald, 465, 472, 474,

485, 486, 487, 495.
Brackett v. Evans, 407, 425.
Bradford v. Roulston, 650, 669.
Bradley v. Blodgett, 408.

V. Gill, 6.

V. Heath, 146.

V. Holdsworth, 393, 503.

V. Richardson, 302.

V. Wheeler, 568.
Bradshaw v. Thomas, 624.
Brady v. Hauahy, 526.

V. Oastler, 743.

V. Peiper, 83.

V. Stackrider, 155, 262.
Bragg V. Cole, 436.
Braksley v. Sharp, 6.
Branch v. Doane, 26.

V. Palmer, 752.
Brand v. Focht, 570, 571, 621.
Brandao v. Barnett, 791, 795.
Brander v. Boles, 450.
Brandon v. Calvert, 132.
Brasher v. Cortland, 458.
Btayley v. Kelly, 770.
Braythwayte v. Hitchcock, 47, 48, 52.
Breed v. Hillhouse, 173.
Breese v. Bangs, 119.
Brennan v. Bolton, 836.

TABLE OF CASES.

XI

Brenner v. Brenner, 315.

Brent v. Green, 457, 458, 460, 726, 781.

Bresler v. Pendell, 161, 194, 221.

Brettel v. Williams, 764.

Brewer v. Boston &c. 11. R. Co., 421.

V. Dyer, 232.

v. Wilson, 846.
Brewster v. Parrot, 117.

V. Silence, 299.

V. Taylor, 571.
Brian v. Salter, 146.
Brice v. King, 199.
Bricker v. Hughes, 386.
Bridge v. Bridge, 803.
Bridge Co. v. Bragg, 22.
Bridges v. Blanchard, 6.

V. Duke of Chandos, 132.

V. Purcell, 21, 30, 37, 38, 40, 400.
Briggs V. Evans, 155, 211, 216, 219,
257.

V. Munchon, 654; 709.

V. P^tridge, 796.
Bright V. Bright, 827.

V. McQuat, 58.
Brightman v. Hicks, 153, 259, 260.
Brisker v. Hughes, 352, 384.
Britain v. Thraikill, 195, 211, 214.
British Empire Mutual Life Assur-
ance Co. V. Browne, 766.
British Ins. Co. v. Commissioners of

Texas, 308.
Britton v. Angier, 198, 245.
Brizeck v. Manners, 450.
Broadbent, ex parte, 455.
Broadwell v. Getman, 434, 466, 468,

474, 475.
Brock V. Cook, 839.
Brockway v. Thomas, 45.
Brodie v. St. Paul, 671, 712, 716, 749.
Bromley v. Stanley, 108, 117, 123.
Bronson v. Shroud, 161.

V. Wyman, 543.
Brook V. Goring, 122.
Brooklyn Oil Refinery v. Brown, 650.
Brooks !). Haigh, 180, 181.
Broom v. Batchelor, 175, 180, 181.
Broughton v. Griffin, 65.

17. Hutt, 872.
Brown v. Allen, 550.

V. Atwood, 277.

V. Barnes, 153, 876.

V. Bellows, 647, 843.

V. Bowen, 20, 22.

V. Bradshaw, 155, 262.

V. Brown, 198, 200, 245, 350, 821.

Brown v. Burtinshaw, 94, 96.

V. Bussey, 174.

V. Conger, 315, ,322.

V. Curtis, 156, ^65, 298.

V. Finney, 846.

V. Poster, 752.

V. George, 151, 211, 221, 233.

V. Hall, 630.

V. Hazen, 195, 211, 214, 245.

u. Jones, 836.

V. Morris, 351, 367, 423.

V. Sanborn, 513.

V. Strait, 209.

V. Symons, 489.

V. Wadsworth, 19.

V. Weber, 155, 223, 245, 253.

V. Whipple, 688, 689, 705, 742.

V. Wiman, 532.

V. Woodworth, 15, 34.
Browne ». Warner, 70.
Browning v. Stallard, 208, 275, 285.
Brownson v. Crosby, 439.
Bruce, ex parte, 450.

u. Burr, 298, 299, 301.

v. Hastings, 423.
Brumfield v. Karson, 666.
Brunton v. DuUens, 178, 230.
Brush V. Carpenter, 289, 290, 291, 293.
Bryan v. Hunt, 754.

I/. Johnson, 414.

V. Whistler, 6, 9, 22, 28.
Bryant t;. Crosby, 352, 359, 384, 506.
Bryson v. Peak, 873.
Buchanan v. Logansport &c. R. R.
Co., 16, 35.

V. Paddleford, 196, 199, 209.
Buck V. Hurst, 425.

V. Pickwell, 352, 358, 359, 362, 506,
669, 678, 714.
Buckingham v. Osborne, 559, 560, 607.
Buckley v. Beardslee, 61.
Buckmaster v. Harrop, 456, 72.3, 727,
823, 832.

V. Russell, 696.

V. Smith, 624.

V. Thompson, 844, 845.
Budd V. Thurber, 240.
Buell V. Miller, 758.
Bugbee v. Kendrickson, 205.
Bulfin V. Dunne, 450.
Bull V. McCrea, 466, 467, 469, 470.

V. Grissey, 352.

V. Griswold, 384, 506.
BuUard v. Wait, 620.
Bullion V. Campbell, 411.

xu

TABLE OF CASES.

Bullock V. Lloyd, 296.
Bulmer v. Norris, 393, 396.
Bult V. Morrell, 769.
Bulteel, ex parte, 450.
Bumford v. Purcell, 162,
Bunnell v. Tainter, 423.
Bunting v. Darbyshire, 156, 173.
Bunton v. Smith, 65.
Burdett v. Wright, 132.
Burges v. Wiekham, 746.
Burgess v. Moxon, 447.
Burke v. Creditors, 844;

V. Haley, 726, 781, 874.
Burkhalter v. Farmer, 216, 218.
Burkham v. Maston, 870.
Burkhill, in re, 447.
Burlingame v. Burlingame, 405, 429,

489.
Burn V. Phelps, 134.
Burnard v. Nerat, 494.
Burnet v. Dougherty, 414.
Burney v. Ball, 466, 469.
Bumham v. Hubbard, 104.
Bums V. Lynde, 45.

„. Sutherland, 846.
Burnside v. Merrick, 423.
Burr V. Beers, 235.

V. Wilcox, 154, 160, 196, 254, 260.
Burt V. Wilson, 854, 878.
Burton v. Barclay, 76, 86.

V. Curyea, 626.

V. Reevell, 46, 63.

V. Scherff, 7.
Bush V. Cole, 722.

V. Holmes, 559, 573, 574.

V. Sprague, 309.
Bushell V. Allen, 156, 194, 309.

V. Beavan, 190.

V. Wheeler, 502, 576, 584, 605, 615.
Bushnell v. Passmore, 412.
Buskirk v. Cleaveland, 526.
Bussell V. Gallagher, 419, 420.
Butcher v. Stapely, 826.

V. Stewart, 180, 207, 214, 275, 749.
Butler V. Thompson, 788, 790.
Butterfield v. Hartshorn, 276.
Buttermere „. Hayes, 350, 399, 412,

875.
Butters v. Glass, 790.
Buxton V. Lister, 370.

V. Eust, 60, 652, 654,669,695,705,
709, 710, 742.
Byasse v. Reese, 351, 362, 363, 383,

597.
Byrd v. Odem, 839.

Oaballero v. Slater, 182.
Cabot V. Haskins, 312, 495, 773.
V. Winsor, 663, 738, 744.
Cabot Bank v. Morton, 308.
Caddick v. Skidmore, 422, 718.
Cadle V. Moody, 128, 133.
Cadwalader v. App, 685.
Cady V. Quarterman, 66.
Cagger v. Lansing, 827.
Cahill V. Bigelow, 15, 148, 155, 158,

194, 219, 262.
Cailleux v. Hall, 198.
Cain V. McGuire, 351, 362, 363, 383, 386.
Calder v. Dobell, 753.
Caldwell v. McKain, 174.
Calhoun v. Hays, 420.
Calkins v. Chandler, 233, 243, 246.

V. Falk, 648, 689.

V. Lockwood, 571, 631, 638.
Callaghan v. Callaghan, 870.
Callis V. Bothamley, 507, 668.
Calverley v. Williams, 869.
Calvin v. Williams, 395, 503.
Cameron v. Clark, 240.

V. Spiking, 689.
Campbell v. Campbell, 434.

V. Eindley, 162, 199, 235.

«. Smith, 236.
Cannan v. Hartley, 92, 93, 106, 135.
Cannel v. Buckle, 317, 716.
Caperton v. Gray, 162, 194.
Card V. Jaffray, 680, 767.
Cardell v. McNiel, 298, 299, 301.
Carlisle v. Cooper, 6.
Carlton v. Redington, 8, 15.
Carmack v. Masterton", 684.
Carpenter v. Galloway, 513.

V. United States, 48.
Carr v. Benson, 17.

V. Dooley, 407.

V. Passaic Land &c. Co., 680, 846.
Carraway v. Andersen, 876.
Carrington v. Roots, 42, 353, 384, 887,

491, 652.
Carroll v. Cowell, 717.

V. Powell, 456, 461.
Carstrike v. Mason, 56.
Carter, in re, 453.

V. Brown, 479, 492.

V. Hamilton, 658, 714.

u. Harlan, 9, 15, 30, 32, 34, 36.

V. Thomas, 140. .

V. Touissant, 619, 620, 621, 635.

TABLE OF CASES.

jdii

Carter v. "Willard, 620.
Carton v. Moss, 153.
Cartwright v. Pinkney, 83, 124.
Carver v. Lane, 674.
Carville v. Crane, 155, 219, 262.
Carey v. Rawson, 442.
Carey v. Ins. Co., 22.

V. Whitney, 420.
Casler i>. Thompson, 839.
Cason V. Chesley, 537, 550, 551.
Cass ('. Waterhouse, 708.
Cassell V. Collins, 351, 402.
Casslt V. Hobbs, 703.
Castle V. Bcjardsley, 61.

V. Sworder, 671, 578, 616, 621, 636.
Castleman v. Harnish, 169.
Castling v. Aubert, 152, 196, 208, 226,

227, 228, 267, 303.
Caston V. Moss, 162.
Castro V. lilies, 437.
Catlett V. Bacon, 826.
Catlin V. Gratz, 457.
Caton V. Caton, 316, 322,326, 330, 331,

415, 768, 774.
Caulkins v. Hellman, 558, 662, 570,
571, 578, 587, 595, 596, 609,
612, 614, 681, 750.
Causton v. Chapman, 512.
Cave 1/. Hastings, 650, 663, 655, 695,

696, 704, 705, 739.
Cawthorne v. Cawdrey, 472.
Cawthors v. Carden, 487.
Cayuga R. R. Co. v. Niles, 19.
Chadbum v. Green, 56.
Chadwick v. Maden, 809.
Challoner v. Davis, 87.
Chamberlain y. Dunham, 52.

V. Ingalls, 247.
Chamberlaine's Case, 82.
Chambers v. Bedell, 27.

t,. Kelly, 681.

V. Leversadge, 145.

V. Massey, 875, 878.
Champion v. Doty, 216, 218, 233.

V. Plummer, 61, 666, 677, 691,
688, 779.
Champlin v. Parrish, 726, 875, 878.
Chandler v. Spear, 32.
Chapin v. Lapham, 156, 198, 289, 290,
292, 296, 304.

V. Merrill, 198, 290, 295.

V. Potter, 559, 560.
Chaplin v. Rogers, 366, 576, 584, 585,

617, 630, 632, 633, 639.
Chapma;n v. Bluck, 62.

Chapman v. Callis, 739.

V. Chapman, 447.

u. Morton, 685.

V. Ross, 160.

V. Searle, 627.

V. Sutton, 176.

p. Thumblethorpe, 27.

. . Towner, 47, 51, 62, 69, 70.
Chappel V. Marvin, 638, 639.
Chappell V. Dann, 723.
Charlewood v. Duke of Bedford, 717,

786, 838.
Chamley «. Hansbury, 846.
Chase v. Day, 194, 204, 216, 233.

V, Jefferson, 27.

0. Long, 19.

V. Lowell, 675.

V. Willard, 627, 631.
Chater v. Beckett, 184, 186, 229, 274,

487.
Chenery v. Dole, 419.
Cheney v. Cook, 174.
Cherry v. Heming, 44, 468, 473, 485,

497.
Chesapeake & Ohio Canal Co. </.

Young, 846.
Chessman v. Whittemore, 92, 412, 413.
Chester v. Dickinson, 422.
Chesterman v. McCosttin, 223.
Chetham 7). Williamson, 17.
Chetwood v. Britain, 854.
Cheveley v. Fuller, 730.
Chicago &c. Coal Co. <>. Liddell, 160,

220, 875.
Chicago Dock Co. k. Kenzie, 15, 158,

878.
Chichester v. Cobb, 771.

V. Vass, 320, 336.
Chidister v. Springfield &c. R. R. Co.,

846.
Child V. Comber, 663, 680.

V. Godolphin, 856.

V. Monins, 147.

V. Pearl, 314.
Childers v. Childers, 801, 803.
Chinnock v. Marchioness of Ely, 680,

731, 735.
Chippendale, ex parte, 464.
Chissum v. Dewes, 444.
Christie v. Simpson, 726.
Christmas v. Oliver, 98.
Christ's Hospital v. Budgin, 810.
Christy v. Courtenay, 812, 815.
Church V. Brown,' 705.
Church &c. v. Farron, 684, 824.

XIT

TABLE OF CASES.

Clabaugh v. Byerly, 437.
Claggett V. ICllbourne, 422, 423.
Claflin V. Carpenter, 20, 351, 358, 359,
' 361, 363, 383, 440.

V. Parm &e. Bank, 612.
Clancy v. Piggott, 213, 268.
Clapham v. Langton, 746.
Clapp V. Draper, 358.

V. Lawton, 199, 235, 240, 283.

V. Webb, 261.
Clark V. Baker, 752.

V. Bulmer, 504.

V. Burnham, 683.

V. Carpenter, 409.

V. Chamberlin, 654, 659, 682, 709.

„. Clark, 843.

V. Gondii, 414.

V. Draper, 639.

V. Duffy, 507.

V. Graham, 415, 506.

V. Hall, 154, 231, 233, 240.

V. Levi, 156, 304.

V. N. Y. Life Ins. Co., 657, 713.

V. Nichols, 538, 547.

V. Pendleton, 313, 469, 470, 479,
484, 485, 498, 499.

V. Schultz, 351,402.

V. Smaridge, 56.

V. Smith, 56.

V. Tucker, 523, 562, 570.

V. Vt. Cent. K. R. Co., 24, 25.

V, Wright, 575.
Clarke v. Callaw, 874.

V, Davidson, 405.

V. Fuller, 60, 61, 656, 718.

V. Grant, 858, 861, 863, 866, 868.

V. Marriatt, 578.

V. Eeilly, 839.

V. Eussel, 162.
Clason V. Bailey, 661, 663, 666, 725,

764, 769.
Clavering's Case, 830.
Clay V. Rufford, 866.

V. Walton, 161.

V. Yates, 529, 534, 535, 537, 550.
Clayton v. Andrews, 527, 529, 532, 533.

V. Blakely, 47, 50, 56.
Cleaveland v. Rogers, 409.
Cleaves v. Foss, 726, 780.
Clemay v. Piggott, 208.
Clemens v. Broomfield, 108.
Clement v. Durgin, 35, 36, 400, 402.
Clerk V. Wright, 670, 715, 716, 823.
Cleveland v. Williams, 640.
Cleverley v. Brett, 138.

Click V. McAffee, 156, 195, 214.
Clifford V. Luhriug, 216, 224.
Clinan v. Cooke, 44, 61, 684, 707, 712,
716, 730, 742, 743, 778, 821,
824, 826, 833, 846, 858, 863.
Clive V. Beaumont, 732.
Clopper V. Poland, 240, 264.
Close V. McCuUough, 83, 89.
Clouter, ex parte, 452.
Clowes V. Higginson, 859, 869.
Clute V. Carr, 9, 19, 30, 35.
Clymer v. De Young, 161, 211, 245,

246.
Coan V. Mole, 66.
Coard v. Holdemess, 806.
Coats V. Chaplin, 558, 643, 717.
Cobb V. Arundell, 641.

V. Fisher, 13, 20, 31.

V. Hall, 433.
Cobold V. Caxton, 553.
Coburn, ex parte, 21.

V. Elmwood, 420.
Cock V. Baker, 311, 313.
Cocker v. Cowper, 9, 22.
Cocking V. Ward, 84, 126, 348, 350,

397, 425.
Coddington v. Goddard, 663, 688, 738,

744, 745, 772, 788.
Codman v. Bailey, 778.

V. Winslow, 420.
Cody V. Cadwell, 494.
Coe V. Clay, 5.

V. Duffield, 176, 653, 702.

V. Hobby, 108, 109.

V. Turner, 92, 412.
Coffman v. Campbell, 752.

V. Hampton, 512.
Coggs V. Bernard, 163.
Cohen v. Piatt, 600.
Colbourn v. Dawson, 181, 751.
Colburn v. ToUes, 171.
Colby V. Norton, 421.
Coldham v. Showier, 181, 771, 772.
Cole V. Dyer, 182.

V. Potts, 824, 835.

V. Shurtliff, 174.

V. White, 823, 834.
Coleman v. Chester, 402.

u. Foster, 15, 31. .

V. Garrignes, 778.

V. Gibson, 605.

V. Maherly, 102.

V. Upcot, 190, 654, 663, 667, 690.
Colerick v. Hooper, 684, 844, 845.
Coles i>. Coles, 423.

TABLE OF CASES.

XV

Coles V. Pack, 180.

V. Pilkington, 326, 820, 832, 839,
840.

V. Trecothick, 654, 699, 709, 720,
726, 728, 768, 778.
Colles V. Evanson, 80, 135.
Collier v. Coates, 432.
Collins, in re, 452.

V. Collins, 843.

V. Thayer, 432.
Collins Co. V. Marcy, 6, 19, 30.
Collinson i\ CoUinson, 814, 815.
CoUis V. Bothamley, 466.
Colman v. Eyles, 203, 230.

V. Packard, 411.
Colson V. Thompson, 843.
Colt V. Netterville, 394, 395.

V. Root, 151, 160, 196, 206, 209.
Com V. Rigney, 25.
Combe's Case, 45, 725.
Comes V. Lamson, 486, 490, 491.
Comfor^; v. Kierstead, 554.
Coming, ex parte, 442, 446, 452.
Commins v. Scott, 654, 684, 688, 692,

693.
Compton V. Martin, 480, 494.
Comstock V. Morton, 160, 292.

V. Smith, 624.

V. Ward, 463, 464, 473, 474, 485.
Cone V. Dudley, 413.
Conington v. Anderson, 726.
Conkey v. Hopkins, 160, 198, 289, 293.
Connally v. Kettlewell, 164, 194, 216,

218.
Connecticut &c. Ins. Co. v. Cleveland

&c. E. R. Co., 173.
Connelly v. Doe, 92.
Connerat v. Goldsmith, 156.
Connor v. Williams, 232.
Conradt v. Sullivan, 154, 199, 262.
Consociated &c. Society v. Staples, 246.
Converse v. Harzfeldt, 752.
Conway v. Starkweather, 58.
Cooeh V. Goodman, 4, 44.
Cood V. Cood, 850.
Cook V. Anderson, 663.

V. Barrett, 161, 209, 210.

V. Daggett, 428.

V. Elliott, 171.

V. Gwavas, 805.

V. Moore, 232.

,/. Prigdon, 16, 21, 22, 28, 36, 37.

u. Steams, 13, 14, 15, 20, 21, 30,
35, 400.
Cooke, in re, 444.

Cooke V. Chapman, 637.

V. Millard, 5S0, 542, 543, 544, 545,
550, 551, 552.

V. Tombs, 184, 397, 609, 708, 823.
Cookes r. Maskall, 318, 332.
Coorabe, ex parte, 451, 452.
Coombs V. Bateman, 518, 522, 523.

V. Bristol &e. Exeter R. Co., 566,
678, 590, 603, 013.
Coon V. Smith, 421.
Cooper V. Bill, 626, 630.

V. Chambers, 153, 156, 195, 207, 214.

V. Dedrick, 174.

V. Elston, 527, 532, 533, 542, 574.

o. Hood, 687, 719, 847.

V. Phibbs, 871.

V. Smith, 660, 693, 701, 710, 732,
739, 741.

V. Worraald, 322, 336.
Coote V. Jecks, 446.
Cooth V. Jackson, 698, 823, 854, 857,

875.
Cope V. Williams, 435.
Copeland v. Gubbins, 133.

V. Watts, 90, 104, 132.
Copper &c. Co. u. Spencer, 411.
Coquard v. Union Depot Co., 257.
Coquillard v. Suydam, 877.
Corbet's Case, 117.
Corbett v. Cochran, 156, 206, 214, 215.

V. Norcross, 420.
Corbin v. McChesney, 246.
Corder v. Drakeford, 184.
Corkins i-. Collins, 154, 260.
Cormack v. Masterton, 787.
Corner v. Shew, 148.
Cornish r. Searell, 88.

V. Stubbs, 15, 25, 42.
Cornthwaite v. First National Bank,

140, 147.
Cosack V. Descourdes, 656.
Cothcart v. Kernahan, 781.
Cottee V. Richardson, 75.
Cotterell v. Stevens, 161, 210, 526.
Cotting I'. King, 877.
Cottington v. Fletcher, 803, 805, 856.
Cottrell V. Apsey, 504.

«. Hughes, 132, 183.
Couch V. Goodman, 485.

V. Meeker, 187.
Coughlin V. Knowles, 433.
Coulton V. Ambler, 357.
Coupland v. Maynard, 84.
Courtail v. Thomas, 89, 90, 103, 124.
Courtney, in re, 446.

XVI

TABLE OP CASES.

Courtwright v. Leonard, 640.

V. Stewart, 543, 544.
Cousins V. Phillips, 86.
Coutourier v. Hastie, 206, 207, 209, 302,

303.
Cowden v. Gottgetreau, 155, 217, 353.
Cowen V. PhUlips, 63.
CowenhaTcn v. Howell, 263.
Cowie V. Kemfry, 794.
'Cowles V. Bawne, 844.

V. Marble, 414.

V. Warner, 500.
Cowley V. Watts, 682, 687, 730.
Cpx V. Bray, 411.

V. Burt, 51, 52.

V. Cox, 832.

V. Middleton, 718. >

u. Peeble, 438. "

V. Weller, 278.
Coziue V. Graham, 854, 875.
Crahb v. Crabb, 800, 814, 816.
Crabs v. Fetick, 26.
Crabtree v. Welles, 433.
Crackwell v. Owerell, 56.
Craddock v. Eiddlesburger, 377.
Craig V. Godfrey, 781.

V. Van Pelt, 424.
Cram v. Fitch, 209.
Crampton v. Varna Railway Co., 831.
Crane v. Bullock, 156, 172, 178.

t). Gouch, 424.

w. Powell, 710.
Cranston v. Smith, 876.
Craske v. Christian Union Publishing

Co., 66.
Cravener v. Bowser, 412.
Cravens v. Kiser, 409.
Crawford v. King, 154, 260, 263, 290.

V. Morrell, 186.

V. Woods, 158, 878.
Crawshay v. Maule, 423.
Creagh v. Blood, 97, 98, 103, 129,

130.
Creech v. Crochett, 51.
Creel v. Bell, 153, 161, 209, 210.
Cresswell v. Wood, 289.
Crira V. Fitch, 196.

Cripps V. Hartnoll, 198, 274, 287, 291.
Crocker v. Cowper, 6.
Crockett v. Scribner, 546, 553.
Croft V. Smallwood, 217.
Crofts V. Beale, 173.
Cromeliu v. Thiess, 48, 51.
Crook V. Corporation of Seaford, 63,
829, 839, 851.

Crookshank v. Burrell, 206, 537, 542,

554.
Croome v. Lediard, 868.
Crop V. Norton, 803, 807, 809.
Cropper v. Cook, 753.

V. Pitman, 155, 219, 262.
Crosby v. Joralemon, 195, 209, 293.

V. Wadsworth, 4, 150, 353, 355,
360, 374, 383, 384, 387, 396.
Cross V. Ballard, 198.

V. Ererts, 876.

V. O'Donnell, 558, 571, 613, 621,
642.

V. Richardson, 155, 175, 260, 265,
267.

V. Williams, 218.
Crossflcld, ex parte, 449.
Crossly v. Maycock, 680, 732, 733.
Croswell v. Crane, 45.

V. Currie, 235.
Crouk V. Trumble, 824.
Crowell V. Maugh, 421.
Crowfoot V. Guerney, 285.
Crowley v. Vitty, 68, 93, 108, 119, 121.
Crull V. Dodson, 394, 503.
Crutchfleld v. Donathan, 189,686, 764,

765.
Cudlip V. Randall, 50.
Cuff V. Penn, 754.
Culpepper v. Aston, 805.
Cumberland &c. R. E. Co. v. McLana-

han, 15, 28, 36.
Cumming v. Roebuck, 789, 790, 792,

794.
Cummings v. Arnold, 758.

V. Dennett, 545.

V. Gill, 839.
Cummins v. Nutt, 420, 839.
CunliSe v. Harrison, 572, 601, 604, 606.
Cunningham v. Ashbrook, 566.
Curie V. Eddy, 437.
Curling v. Flight, 393.
Curnutt V. Roberts, 435.
Currant v. Jago, 811.
Currey v. Lackey, 843.
Currie v. Anderson, 584, 591, 593.

V. McLean, 473.
Curry v. Com. Ins. Co., 26.
Curteis' Trusts, in re, 800.
Curtis V. Blair, 778.

V. Brown, 152, 155, 195, 196, 214,
225, 261, 264.

V. Hoyt, 26.

V. Noonan, 31, 34.

V. Pugh, 580, 604.

TABLE OP CASES.

XVU

Curtis V. Sage, 494, 500.

Cusack V. Robinson, 560, 562, 560,

615, 621, 631, 034, 641, 667.
Gushing v. Breed, 626, 638.
Cutler V. Collison, 421.

V. Pope, 363, 355, 359, 361, 362,
883, 606.
Cutter V. Emery, 292.

V. Hinton, 155, 217, 219, 262.
Cutting V. King, 688, 690.
Cutts, ex parte, 457.
Cuxon V. Cliadley, 286.

D.

Dack V. Hart, 186.
Daggett V. Patterson, 407, 876.
Daintry, in re, 454.

Dale V. Hamilton, 422, 822, 823, 827,
840, 846, 854.

V. Stimpson, 634.
Dalton V. Rust, 409.
Daly V. Wilder, 725.
Dames v. Peck, 615.
Damon v. Osborn, 559, 560, 580.
Dana v. Hancock, 737, 754, 758.
Danf orth v. Laney, 826, 835.

V. Lowry, 414.

V. Walker, 559, 573, 574, 616.
Daniels r. Bailey, 352, 413, 415.

V. Davison, 61, 681, 846.
Dankersley v. Levy, 117.
Dannef elser v. Weigel, 624.
Darby v. Darby, 854.

V. Whittaker, 843.
Dark v. Johnston, 15.
Darlington v. McCann, 156, 223.
Darnell v. Trott, 212, 218.
Damley v. London &c. Railway Co.,

843.
Darst V. Bates, 199.
Dauber v. Blackney, 175, 267, 298,

300.
Davenish v. Moffatt, 52, 57.
Davenport v. Gentry, 429, 472.
Davenport's Case, 77.
Davey v. Shannon, 497, 498, 499.
Davidson v. Cooper, 677.

V. Green, 337.
Davies, in re, 443.

•,. Marshall, 11, 31.

V. Otty, 801, 802, 809, 855.
Davis V. Banks, 245, 247.

V. Calloway, 235.

Davis V. Eastman, 573, 621.

V. Henry, 421.

V. Hill, 666.

o. Jones, 718, 752.

V. Judge, 420.

V. Moore, 559, 560, 670.

V. Parish, 437.

V. Reyner, 141, 146.

V. Robertson, 762.

V. Sander, 15.

V. Shields, 656, 737, 764, 765, 772,
796.

V. Symonds, 858.

V. Thompson, 51.

V. Townsend, 421.

V. Walker, 405, 410.

V. Wright, 141.
Davison v. Davison, 826.

V. Gent, 96, 126, 131, 132, 133.

V. Stanley, 124.
Davone v. Finnell, 566.
Daw V. Jewell, 420.

V. Terrell, 453.
Dawes :;. Eastman, 574,

t. Peck, 641.

c. Shields, 714.

V. Young, 156.
Dawson v. Clarke, 806.
Day V. Cloe, 214.

V. Elmore, 174.

V. N. Y. Centl. R. R. Co., 428, 430,
471, 475.

<,. WUson, 432.
Dayton v. Craik, 97.

V. Williams, 876.
Deacon v. Colquhoun, 808.
Deal V. Maxwell, 543, 544, 545, 550.
D'Almaine v. Moseley, 806.
Dean v. Anderson, 820.

V. Dean, 854. '

V. Tallman, 169, 217.

V. Walker, 236.
Deane v. Caldwell, 96.
D'Aquillar v. Drinkwater, 336.
Dearborn v. Parks, 209, 276.
D' Arras v. Keyser, 830.
De Biel v. Thompson, 327, 334, 709.
Decker v. Schaffer, 198.
De Cordova v. Smith, 666, 764.
Deg V. Deg, 803.
Delane v. Delane, 807.
Delaney v. Root, 351, 354, 358, 359,

361, 363.
Delano v. Montague, 45.
Delarnoix v. Bulkley, 111.

XVIU

TABLE OF CASES.

De Manneville v. Crompton, 332.
De Medina v. Poison, 70.
Dement v. Williams, 418.
De Merrett v. Bickford, 235.
Deming v. Kemp, 510.
Dempsey v. Kipp, 7, 14, 22, 39.
Denison v. Wertz, 117.
Denmead v. Glass Co., 614, 641.
Denn v. Fearnside, 48, 55.
.Denne v. Light, 847.
Denny v. Hancock, 870.

0. Williams, 557, 571, 576, 577.
Denton v. Davies, 802.

V. McKenzie, 770.

V. Stewart, 872.
De Porquet v. Page, 709.
Derby v. Phelps, 311, 312, 463,470.
Derrick v. Brown, 469, 470.
Deshon v. Bigelow, 624.
Deslage v. Pearee, 30, 35.
Despain v. Carter, 839.
Devaux v. Steinkeller, 308.
Deven v. Thomas, 61.
Devenish v. Baines, 798.
De Visme, in re, 811, 812.
Devlin v. Woodgate, 151, 223.
Devoy v. Devoy, 815.
Dewey v. Bardwell, 421.
De Wolf V. Eabaud, 178, 290.
Dexter t). Blanchard, 156, 158, 261, 304.
Dickerson v. Chrisman, 64.
Dickinson v. Colter, 198, 222, 288.

V. Dickinson, 509.

V. Gay, 752.

V. Marrow, 627.

V. Silwall, 788, 792.
Dickson v. Frisbie, 472, 487, 488.
Dighton V. Greenvil, 87.
Dike V. Green, 843.
Dillwyn v. Llewellyn, 821.
Dilts V. Parke, 162, 252.
Dilworth, in re, 445.
Dinkel v. Gundelfinger, 493, 874.
Dipples V. Corles, 799.
District &c. v. Moorhead, 498.

of Columbia v. Johnson, 675, 677.
Dix V. Marcy, 427, 428.
Dixie V. Davis, 54, 55.
Dixon V. Bromfield, 778, 779.

V. Fletcher, 601.

V. Frazer, 155, 165, 216, 218, 262.

V. Hatfield, 213, 231.

V. Mucklestone, 455.

V. Oliver, 830.
Doane v. Dunham, 752.

Doane v. Newman, 165, 229.

Dobell 0. Hutchinson, 653, 654, 697,

702, 730.
Dobson, ex parte, 445.

V. CoUis, 494.

V. Litton, 684, 844, 845.
Dock V. Boyd, 241.

Dodd V. Acklom, 96, 100, 104, 106, 134.
Dodge V. Crandall, 495.

V. Dodge, 92, 413.

V. Lean, 647.

V. McClintock, 15, 19, 23, 28, 33,
35, 36, 38.
Dodsley v. Varley, 622, 623, 625.
Doe V. Amey, 47, 52, 67.

V. Bell, 66, 70.

V. Benjamin, 134.

V. Breach, 66.

V. Bridges, 125.

V. Browne, 47, 70.

u. Burdett, 769.

V. Calling, 52.

u. Cochran, 414.

V. Collings, 56.

V. Cooke, 133.

V. Courtenay, 120, 123, 125.

V. Cox, 47.

V. Crago, 62.

v. Davies, 47.

V. Dignowitty, 413.

V. Downs, 222.

V. Forwood, 125.

V. Gardner, 48.

V. Geekie, 93.

V. Glenn, 88.

V. Guy, 148.

V. Jackson, 48.

V. Johnstone, 94, 126.

V. Jones, 123.

V. Marchetti, 86.

V. Milward, 84, 94, 108, 121.

V. Moifatt, 46, 47, 63, 66, 70.

V. Oliver, 131.

V. Pedgriph, 654, 767.

v. Poole, 84, 123, 125.

V. Pyke, 77.

u. Ridout, 94.

V. Smith, 52.

V. Stagg, 81, 87.

V. Stanion, 94.

V. Stratton, 70.

V. Taniere, 52, 62.

V. Thomas, 90, 91, 138.

V. Walker, 85.

V. Watts, 47.

TABLE OF CASES.

XIX

Doe V. "Wells, 93.

V. Williams, 128.

V. Wood, 13, 47, 128, 133.
Doidge V. Bowers, 47, 55.
Dole V. Stdmpson, 557, 570, 639.

V. Young, 288.
Dolling V. Evans, 717.
Donaldson v. Waters, 432.
Donellan v. Read, 69, 93, 399, 468,

495, 496, 497.
Donnison v. People's Caffi Co., 689.
Donnorau v. Wilson, 642, 544.
Donohoe v. Conrahy, 802, 803.
Dooley v. Eilbert, 571.
Doolittle V. Taylor, 228.

Dorr V. Barney, 57.

Dorwin «. Smith, 160, 295,' 296.

Doscher v. Shaw, 80.
Doty V. Wilder, 656, 724, 726, 782.
Dougan v. Blocher, 827, 828.
Douglas V. Jones, 156, 220.

V. Shumway, 351, 363, 440.

V. Spiers, 661, 666, 764.

V. Vincent, 317.
Dow V. Brown, 419.

V. Terrell, 456.
Dowdle V. Camp, 432.
Dowell V. Dew, 65, 837.
Dowling V. McKenney, 185, 428, 506.
Downey v. Hinchman, 156, 158, 292.
Downs V. Marsh, 605.

V. Ross, 537, 539, 543, 544.
Dows V. Montgomery, 624.

V. Swett, 299, 300.
Dowse V. Coxe, 148.
Doyle V. Dixon, 466, 467, 469, 471, 485,
498.

<,. White, 156, 203, 207, 219, 233,
276.
Drake v. Fleurellen, 196, 289, 304.

c/. Newton, 51, 66.

V. Seaman, 648.

V. Wells, 8, 9, 13, 19, 23, 29, 351,
354, 360, 361, 363, 384.
Draper v. Pattina, 769.

.;. Snow, 299.
Draughan u. Bunting, 156, 234, 252,292.
Dressel v. Jordan, 666, 765.
Dresser v. Dresser, 312, 465, 466, 467,

469, 481.
Drew V. Martin, 810, 812, 814.
DriscoU V. Marshall, 25.
Druly V. Hunt, 293.
Drummond v. Burrell, 463, 474, 486,
500.

Drury v. MacNamara, 63.

V. Young, 054, 656, 669, 673, 698,
729, 769, 770, 772.
Druse v. Wheeler, 9, 14, 19, 23, 39, 42.
Dubois v. Kelly, 349, 359, 369.
Dubuque v. Miller, 52.
Dudley v. Littlefield, 422.

■0. Sawyer, 624.
Duf alt V. Gorman, 204.
Duff V. Snider, 495, 497.
Duffy !!. O'Donovan, 875.

V. Wunsch, 156,160,220,253,266.
Dugan V. Colville, 839.

V. Cowzleman, 161.
Duineen v. Rich, 9, 30, 35.
Duke V. Harper, 48, 56.

of Beaufort v. Patrick, 831.

of Devons v. Eglin, 830.

of Leeds v. Earl of Amherst, 821.

bf Norfolk v. Browne, 809.
Dummer v. Pitcher, 812, 814, 816.
Dumper v. Dumper, 815.
Duncan v. Blair, 186.

u. Sylvester, 419.
Duncombe v. Tickridge, 196, 207, 304.
Duncroft v. Albrecht, 393, 503.
Dundas v. Dutens, 321, 322, 334, 335,

337.
Dung V. Parker, 158, 315.
Dunlap V. Thome, 259, 260.
Dunlop V. Higgins, 654.

V. Lambert, 641.

V. Perry, 640.
Dunn V. Trustees &c., 48.

V. West, 198, 235, 290, 292, 295.
Dunnage v. White, 806.
Dunne v. Ferguson, 352, 354, 356, 383,

386, 387.
Dunning v. Roberts, 156, 219.
Dupont V. Starring, 421.
Duppa V. Mayo, 355, 364, 366, 874.
Durand v. Wyman, 76.
Durant v. Allen, 263.

V. Rogers, 875.
Durham v. Arledge, 174, 206, 272.

V. Munrow, 195, 208, 298.
Durrell v. Evans, 612, 773, 775, 776,

780, 782, 783, 785, 786.
Dutchman v. Tooth, 180.
Dutton V. Solomonson, 641.
Duval V. Getting, 325.
Duvall V. Peach, 414.
Dyas V. Cruise, 778, 787.
Dyer v. Clark, 423.

u. Dyer, 806, 810, 811.

XX

TABLE OF CASES.

Dyer v. Forrest, 609.

V. Gibson, 175, 267.

v. Graves, 186, 408, 410.

V. Libby, 597.

o. Martin, 854.

V. Sandford, 31, 34.
Dygert v. Eemorshnider, 315.
Dykers v. Townsend, 250.
Dynes v. O'NeU, 425.

E.

Eager v. Eichelberger, 640.

Eagle Mowg. and Eeapg. Mach. Co. v.

Shattuck, 298.
Earl V. Rogers, 82.

of Arundel v. Lord Gray, 122.

of Aylesford's Case, 826.

of Berkeley v. Abp. of York, 90,

117, 123, 124.
of Carnarvon u. Villebois, 118,

123.
of Damley v. London, Chatham,

and Dover R. C, 859, 866.
of Egremont v. Courtenay, 123,

124.
of Egremont v. Forwood, 124.
of Falmouth v. Thomas„184, 354,
857, 382,391,.S99,436,496, 644.
of Plymouth v. Hickman, 803.
East Tenn. &c. R. E. Co. v. Staub,469,

470.
Easter v. White, 293.
Eastern R. R. Co. v. Benedict, 503.
Eastler v. Henderson, 100.
Eastman v. Anderson, 350, 425.

V. Foster, 440.
Eastwood V. Kenyon, 175, 196, 197,

198, 201, 277, 292.
Eaton V. Eaton, 429.

V. Whitaker, 64, 477, 824, 826.
V. Winne, 22, 24.
Eberly v. Lehman, 830.
Ebert v. Wood, 420.
Ebrand v. Dancer, 807, 811.
Ecker v. Bohn, 267, 876.
Edan v. Dudfleld, 575, 576, 584, 620,

625.
Eddy V. Davenport, 278.
V. Davidson, 163.
V. Roberts, 161, 214, 245.
Ede V. Knowles, 447, 451.
Eden v. Blake, 657.
Edge V. Frost, 212.

Edge V. Strafford, 5, 18, 348, 398.

V. Worthington, 450, 451.
Edgerton v, Hodges, 518.
Edinfield v. Canady, 241, 290.
Edmunds v. Bushell, 753.

V. Downes, 739, 752.
Edwards, ex parte, 453.

V. Baugh, 179, 180.

V. Clemens, 51. '

V. Fidel, 807.

V. Fry, 832, 836.

V. Grand Trunk R. R. Co., 530,
537, 545, 546, 550, 657, 570.
593, 614, 621, 641.

V. Hall, 393.

V. Jevons, 181.

V. Johnson, 778.

V. Kelly, 154, 208, 269.

u. Martin, 445.

V. Wickwar, 87.
Egerton v. Matthews, 646, 765.
Eggleston v. N. Y. &c. R. R. Co., 9,
22, 32.

V. Wagner, 681, 684, 782.
Egremont v. Courtnay, 118.
Eichelberger v. McCauley, 532, 550,

551, 552.
Elder v. Warfleld, 162, 216.
Eleyr.Positive Assurance Co., 465, 766.
Elfe V. Gadsden, 656, 714, 729.
Elkins V. Heart, 273.
EUenwood v. Fultz, 198.
EUet V. Faxon, 427.
Ellicott V. Peterson, 466,468,479,480.

V. Turner, 469, 470, 494.
Elliot V. Elliot, 815, 816.
ElUott V. Giese, 156, 162, 178.

V. Jenness, 876.

V. Thomas, 581, 599, 604, 875.
Ellis V. Deadman, 655, 678, 685, 714.

V. Grubb, 369.

V. Levy, 182.

V. Paige, 51.
Ellison V. Brigham, 550.

V. Jackson, 247, 284.

o. Wisehart, 174, 266, 293, 296.
Ellwood V. Monk, 234.
Elmendorf v. Harris, 843.
Elmore v. Kingscote, 655, 679, 715,
716, 737, 746.

V. Stone, 618, 619, 620, 626, 630,
631, 632, 633.
Else V. Barnard, 778.
Elting V. Vanderlyn, 243.
Elwell V. Shaw, 45.

TABLE OP CASES.

XXI

Ely V. McKnight, 407.

V. Ormsbeo, 620.
Embury v. Connor, 402.
Emerick v. Sanders, 243.
Emerson v. Slater, 224, 290, 309, 758.
Emery v. Smith, 463, 471, 479.
Emley v. Drumm, 456, 407, 401.
Emmerson v. Heelis, 360, 375, 386,

512, 699, 773, 778, 780, 781.
Emmett v. Dewhurst, 268, 736.
Emmons v. Scudder, 48.
Emmott V. Kearns, 179.
Endicott v. Penny, 726.
Ennis v. Waller, 726.
Eno V. Woodworth, 508.
Entwhistle v. Davis, 393.
Episcopal Church i-. Wiley, 726.
Erben v. Lorillard, 405, 427, 429, 430.
Erskine v. Adeane, 423.

V. Plummer, 30, 359, 361, 362.
Eshleman v. Harnish, 217.
Esling V. Williams, 6.
Esmay v. Grotser, 854.
Espy -v. Anderson, 758.
Essex V. Essex, 422, 423, 500.
Estabrook v. Gebhart, 233.
Estes V. China, 14, 22.
Esty V. Aldrich, 466, 469, 479.
Eton V. Luyster, 124.
Etting V. Vanderlyn, 173.
Eutz V. Mills, 787.
Evans v. Dunscombe, 805.

u. Green, 423.

V. Hardman, 407.

V. Harris, 567.

V. Lohr, 297.

i;. Mason, 160.

V. Prothero, 655.

V. Roberts, 352, 354, 355, 360, 374,
375, 376, 378, 383, 384, 386,
391, 392.

V. Thompson, 111.
Everett v. Clements, 640.

V. Parks, 641.
Ewins V. Calhoun, 306.
Exchange Bank v. Rice, 199, 232, 235.
Eyre v. Eyre, 846.

V. McDowell, 453.
Ezelle V. Parker, 48.

Fairchild v. Pairchild, 423.
Eairlie v. Denton, 276, 285, 286.

Fall V. Hazleregg, 828.

Fall River Whaling Co. v. Borden,

423.
Fallraer v. Dale, 220.
Falls V. Miller, 634.
Fane v. Fane, 799.
Farebrother v. Simmons, 779, 780, 781,

783.
Farina v. Home, 585, 607, 626, 629,

636.
Parish v. Wilson, 173.
Farley, ex parte, 444, 448.

V. Cleaveland, 196, 231, 234, 240,
244.

V. Stokes, 839.
Farmer v. Robinson, 796.

V. Rogers, 73, 81, 82, 83, 87.
Farmers' Bank of Amsterdam v. Blair,

215.
Famam v. Davis, 428.
Farrall v. Davenport, 833.
Farrar v. Farrar, 413.
Farrell v. Maxwell, 294.
Farrington v. Donohoe, 467.
Farson v. Goodale, 118.
Farwell v. Lowther, 047, 678, 688, 690.

V. Mather, 684, 686, 687, 714, 742,
750.
Fawkes v. Lamb, 753.
Fay V. Bell, 259, 260.

V. Smith, 567.

V. Wheeler, 395, 503, 507, 508.
Fears v. Story, 260.
Featherstone v. Fenwick, 443.
Felch V. Taylor, 350, 436.
Fell V. Chamberlain, 864.
Feltham v. Cartwright, 12.
Felthouse v. Bindley, 60, 730.
Fenley v. Stewart, 660, 764.
Fenner v. Hepburn, 63.
Fentimau v. Smith, 9, 22, 30, 43.
Fenton v. Emblers, 314,468, 474, 480,

482, 484, 485.
Fenwick v. Floyd, 729.

V. Potts, 450.
Ferguson v. Dunne, 371.

0. Storer, 656, 084.
Ferrell v. Maxwell, 100, 292.
Ferren v. O'Hara, 544.
Ferris v. Barlow, 174, 297.

V. Irving, 845.

V. MuUins, 445, 453.
Ferry v. Pfeiffer, 65.
Fessenden v. Mussey, 656, 721, 772.
Fickett V. Swift, 545, 546, 550.

xxu

TABLE OP CASES.

Field, in re, 771.

«. BoUand, 765.

V. Kunk, 560, 598, 609.
Piero V. Eiero, 405.
riles V. MoLeod, 160, 195, 208.
Einch V. Finch, 810, 814.
Findley v. Wilson, 435.
Finney v. Apgar, 540, 547, 549.

V. Finney, 422.
Pinucane v. Kearney, 839.
First National Bank u. Bennett, 204,

293.
Fish V. Campion, 118, 123.

V. Hutchinson, 154, 173, 272.

v. Eichardson, 141, 144.

„. Thomas, 152, 174, 195, 196,
209,254,261,297.
Fisher v. Kerlin, 684.
Fiske V. McGregory, 198, 781.
Fitch V. Burk, 352.

V. Constantine &c. Co., 39.

V. Sargent, 102.

V. Seymour, 402.
Fitzgerald v. Dressier,, 192, 206, 209,
254, 268, 287, 292.

V. Fitzgerald, 317.

V. Morrissey, 264.

V. Vickers, 719, 847.
Fitzmaurice v. Bayley, 61, 656, 703,

705, 718, 737, 782, 786.
Fitzpatrick v. Beatty, 844.
Fitzsimmons v. "Woodruff, 539.
Flanders v. Crolius, 219.
Fleeman v. McKean, 624.
Fleet V. Murton, 753.
Fleming v. Easter, 234.

u. Kamsay, 407.
Flemm v. Whitmore, 160, 198.
Fletcher v. McFarlane, 436.
Flight V. BoUand, 663.
Flint V. Corbitt, 538, 543, 544, 545, 550.
Flintofe v. Elmore, 780.
Flood V. Einlay, 867.
Floyd V. Buckland, 829, 839.
Folger V. Mitchell, 420.
Foligno V. Martin, 767.
Folsom V. Great Falls Co., 348.
Foot V. New Haven &c. E. E. Co., 15,

19, 20, 22, 32, 400.
Foote V. Emerson, 473, 481.
Foquet v. Moore, 84, 108, 110, 121.
Forbes v. Hamilton, 361, 403, 404.

V. Shattler, 754.
Force v. Butcher, 684, 846.
Ford V. Finney, 245, 407.

Ford V. Eockwell, 221.

V. Tates, 714, 738.
Ford's Estate, in re, 86.
Fordyce v. Willis, 798, 799, 809.
Forrest v. Forrest, 811.
Forster v. Hale, 422, 798, 802, 803, 846.

V. Eowland, 60, 730, 7.34, 767.
Forsyth v. Dickson, 554.
Fort V. Gooding, 489. ^
Forth V. Stanton, 141, 143, 145, 173,

215, 256, 266, 269, 874.
Foss V. Haynes, 872.
Foster v. Browning, 9, 19, 30, 35.

V. Charles, 306.

u. Frampton, 572.

V. McO'Blenis, 479, 480.

V. Eockwell, 641.

V. Sleeper, 702.
Foulks V. Burns, 413.
Fowkes V. Pascoe, 812, 813.
Fowle V. Freeman, 663, 680, 764, 765.
Fowler v. Burget, 158.

V, Clearwater, 298.

V. Lewis, 875.

V. Moller, 172.

V. Radicon, 739, 846.
Fox, in re, 395.

V. Nathans, 56.
Foxeraft v. Lyster, 819, 820, 829, 833.
Fragano v. Long, 641.
Frame v. Dawson, 65, 830, 832, 836, 842.
Francam v. Foster, 468.
France v. August, 234.
Francis, The, 571, 614.
Frank w. Harrington, 352, 360, 383, 388,
392.

V. Miller, 486, 659, 662.
Franklin v. Long, 626.
Frary v. Sterling, 495, 500.
Frash v. Polk, 288.
Frazer v. Child, 408.
Frear v. Hardenburgh, 351, 403.
Freeman v. Freeman, 827.

V. Gainsford, 393, 396.

o. Hadley, 22.

u. Underwood, 18.
Freeport v. Bartol, 654, 709, 739.
French v. Freeman, 630.

... French, 173, 175, 273.

V. Thompson, 152, 228.
Fricker v. Tomlinson, 568, 649.
Frith V. Midland Eailway, 843.
Frogley v. Lovelace, 45.
Frost V. Deering, 45.

V. Hill, 726, 787.

TABLE OP CASES.

xxm

Frost II. Moulton, 844.
V. Tarr, 469, 498.
Frostburgh Mining Co. v. N. E. Glass
Co., 558, 575, 584, 587, 596,
597, 609, 614, 041.
Frye v. Shepler, 846.
Fryer v. Warne, 35.
Fugate V. Hanaford, 647.
Fuhr V. Dean, 6, 19.
FuUam v. Adams, 232, 245, 261, 277,

281.
Fuller V. Bean, 566.
V. Reed, 410.

V. Plymouth Commissioners, 401.
Fulmerston v. Steward, 123.
Fulton V. Moore, 460.
V. Robinson, 750.
Funk V. Haldeman, 15, 17.
Furbish v. Goodnow, 172, 263, 276.
Fumess i'. Meek, 74(5.
Furniss v. Sawers, 526.
Furnivall i: Grove, 62, 77, 100, 106, 108,

119, 134.
Fyson v. Kitton, 696, 698, 713.

G.

Gadbury, in re, 816.

Gadden v. Pierson, 158, 292.

Gaddis v. Leeson, 523.

Gadsden v. Lance, 479.

Gaetz V. Foos, 198, 292.

Galbraith v. Gedge, 423.

Galbreath v. Galbreath, 420, 827.

Gale V. Kixon, 663, 712.

Gallairt v. Roberts, 573.

Galloway !■. Herbert, 48.

Galston v. Sigmund, 844.

Galvin v. Prentice, 426, 429, 430, 431,

479.
Galway v. Shields, 432.
Gammon v. Butler, 433.
Garbutt v. Watson, 527, 529, 533, 539.
Gardener v. Fenner, 145.
Gardiner v. Fell, 802.

u. Gray, 649.

V. Hopkins, 152, 219, 228.

V. Snydam, 568, 640.
Gardner v. Armstrong, 874.

!;. Gardner, 44, 45.

V. Grout, 572, 574.

V. Hazleton, 718.

V. Howland, 639.

V. Joy, 547.

Gardner v. Rowe, 803.

V. Rowland, 25.
Gardom, ex parte, 176, 181.
Garfield v. Paris, 571, 573, 576.
Garner v. Hodgkius, 292.

V. Shebblefiekl, 854.
Garr v. Gomer, 843.
Garrard v. Grinling, 867.

V. Tuck, 132.
Garred v. Macey, 843.
Garrett v. Garrett, 158.

V. Handlcy, 670.

V. Malone, 408.

V. Wilkinson, 812.
Garrick v. Taylor, 807, 808.
Gartnell v. Stafford, 063, 764.
Garver i-. McNulty, 413.
Gascoigne v. Thwing, 808.
Gates V. Salmon, 419.
Gault V. Brown, 498, 499, 510, 511,

521, 602, 758.
Gaunt V. Hill, 191, 048, 714.
Gaussen v. Morton, 14, 31.
Gauther v. Atkinson, 30.
Gay V. Mitchell, 48.
Geary v. Physic, 725, 769, 771.
Geddis v. Leeson, 526.
Geekie v. Monk, 93.
Gehegan v. Young, 97.
Gelstron v. Sigisnmnd, 845.
George v. Bank of England, 799.
Georgia Co. v. Castleberry, 208.
Geraltney v. Wheeler, 407.
Gerish v. Chartier, 207, 231.
German v. Machin, 832, 846.
Getchell v. Jewett, 003, 704, 765.
Gett V. Bickell, 787.
Gibbins u. North Eastern Metropoli-
tan Asylum District, 080, 732.
Gibbons v. Bell, 422.
Gibbs V. Benjamin, 557, 558, 568, 571,
621, 6.39, 041.

V. Blanchard, 156, 103, 245.

V. Rumsey, 806.
Gibson v. Holland, 649, 652, 669, 674,

695, 704.
Gie V. Rider, 113, 116, 117, 122.
Gigas V. Cochran, 085.
Gilbert v. Bulkley, 92, 411, 412.

V. Sykes, 409, 470, 484.
Gilchrist v. Herbert, 329.
Giles V. Simonds, 19, 22, 30, 351, 355,
359, 361, 363.

V. Spencer, 121.
Giimian v. Snow, 204.

XXIV

TABLE OF CASES.

Gill V. Bicknell, 723, 726, 780, 781.

V. Herrick, 210, 263.

.;. Hewitt, 720, 726.
Gillanders v. Lord Eossmore, 400.
Gillespie v. Battle, 435, 766.
Gillett V. Burr, 408.

V. Maynard, 428.
Gillighan v. Boardman, 61, 156, 171,

178.
Oilman v. Hill, 510, 523, 526, 541, 562,

566, 570, 602.
Gilmore v. Wilson, 33.
Giraud ,;. Richmond, 466, 472, 474,

500, 736.
Girgins v. Van Gorger, 412.
Gist V. Eubank, 876.
Givens v. Calder, 824.
Gladsden v. Lance, 466.
Glaister ;;. Hewer, 812.
Glass V. Hulbert, 65, 824, 827, 828.
Gleason v. Briggs, 195, 214.

V. Drew, 507.
Glen V. Whitaker, 558, 643.
Glengal v. Barnard, 778.
Glenn v. Lehman, 164, 217. "
Glover v. Coles, 373, 392.

V. Halkett, 178.
Glyn, ex parte, 444.
Glynn v. George, 32.
Goar V. Cockridge, 428.
Goddard v. Binney, 538, 547, 548, 549,

550, 554, 555.
Godden v. Pierson, 222, 878.
Godet V- Cowdry, 655.
Godfrey v. Moser, 252.
Godts V. Base, 626, 629.
Godwin v. Francis, 771, 788.
Goelet V. Farley, 262.
Goetz V. Foss, 245.
GofE V. Kilts, 25.

V. Obertuffer, 19.

V. Sims, 288.
Gold V. Phillips, 151, 161, 209, 210,

234.
Goldicutt V. Townsend, 323, 329, 336.
Goldshede v. Swan, 180, 749.
Gooch V. Holmes, 395, 503.
Good V. Curtis, 570, 577.
Goodall V. Skelton, 518.
Gooderham v. Dash, 534.
Goodhue v. Barnwell, 419, 420.
Goodman v. Chase, 176, 207, 214, 275.

V. Griffiths, 660, 679, 715, 737, 746.
Goodnow V. Gilbert, 183.
Goodrich v. Dustin, 421.

Goodrich v. Johnson, 465.

V. Nichols, 189.
Goodspeed v. Fuller, 100, 295, 296.
Goodtitle v. Duke of Chandos, 133.

V. Herbert, 47, 48, 55.
Goodwin v. Bond, 181, 266.

V. Fielding, 669.

V. Gilbert, 350, 436.

V. Lyon, 846.

V. May, 624.
Goom V. Afflalo, 789, 790, 792, 793.
Gordon ;;. Gordon, 422.

V. Martin, 211.

V. Sims, 726, 729, 781.

V. Trevelyan, 61, 718.
Gore V. Wright, 96, 102, 126, 130, 134,

135.
Gorham v. Fisher, 550, 562, 570.
Goring v. Goring, 141, 146.
Gorman v. Boddy, 572, 601, 606.
Gorrie v. Woodley, 771.
Gorton v. Dyson, 148.
Gosbell V. Archer, 428, 696, 699, 769,

771, 782, 786.
Gosling V. Gosling, 810.
Goss V. Lord Nugent, 305, 745, 747,

748, 754, 757.
Gothard v. Flynn, 442.
Gottsschalk v. Wittes, 498.
Gough V. Crane,- 325.

V. Dennis, 306.
Gould V. Mansfield, 414, 415.
Goweu 0. Klous, 680, 683, 688, 690,

745.
Gower v. Stuart, 234.
Grace v. Dennison, 684, 843.
Graff V. Fitch, 360, 369.
Grafton v. Armitage, 529, 530, 534,
535, 536.

V. Cummings, 648, 649, 688, 723.
Grafton Bank v. Woodward, 754.
Graham v. Call, 843, 844.

V. Fretwell, 677, 783, 786.

V. Musson, 655, 677, 691, 778, 779,
782, 783, 784, 785, 786.

V. O'Neill, 206, 222.

V. Thers, 826.

V. Wichels, 102, 105, 128, 133.
Grant v. Campbell, 191.

V. Fletcher, 790, 792, 794, 796.

V. Grant, 799.

V. Levan, 672.

V. Naylor, 671, 690.

V. Shaw, 231.
Gratz V. Catlln, 457.

TABLE OF CASES.

XXV

Graves v. Dyer, 408.

u. Graves, 407.

V. Weld, 879, 392.
Gray v. Convillon, 421.

V. Davis, 570, 584, 639.

V. Gray, 429.

V. Hill, 428, 436.

V. Stanion, 101, 117.
Grayson v. Richards, 92.
Great Western Railway Co. v. Cripps,

872.
Greaves, in re, 305.

Green v. Armstrong, 352, 353, 358, 359,
369, 372.

V. Bank of England, 807.

V. Brookins, 292.

V. Cresswell, 192, 266, 274, 287,
288, 291, 292, 293.

u. Disbrow, 165, 166.

V. Finin, 827.

V. Green, 432.

V. Hart, 439.

t7. Ingram, 445.

V. Low, 871.

V. Merriam, 571, 621, 630, 631.

V. N. C. R. R. Co., 383, 431.

V. Randall, 235.

V. Saddllngton, 425.

o. Vardiman, 351, 403, 408.
Greene v. Cramer, 703, 713.

V. Harris, 466, 469, 470, 480, 482,
483.
Greenlee v. Greenlee, 835, 846.
Greer v. Greer, 429.
Gregg V. Hamilton, 828.

V. Patterson, 830.
Gregory v. Gleed, 210.

V. Mighell, 826, 828, 834, 850.

V. Williams, 143, 197.

V. Wilson, 840, 849.
Gregson v. Ruck, 790, 794, 796.
Greider's Appeal, 83.
Grey v. Berry, 421.

V. Gary, 630.

V. Grey, 810, 814, 815, 816.
Gridley v. Capen, 263.
Griffin v. Coffey, 438.

V. Derby, 156, 220.

V. Rembert, 666, 670, 688, 690, 764.
Griffith V. Hodges, 99, 104, 107.

0. Jenkins, 400.

V. Sheffield, 143.

V. Young, 304, 350, 424.
Griffiths V. Puleston, 353, 391.
Grimes v. Butts, 418.

Grimes i'. Van Vechten, 432, 614.
Grimman v. Legge, 90, 102, 104, 106,

134.
Grimoldby v. Wells, 591, 596, 604.
Griswold v. Griswold, 214.
Groat V. Gile, 520, 568.
u. Story, 057, 713.
Groover v. Warfield, 677.
Groves o. Buck, 374, 413, 415, 527,

529, 532.
V. Grooves, 49, 801, 808.
Grubb V. Bayard, 17.
Grlindy v. Grundy, 409.
Guerard v. Daudelet, 467.
Guishaber v. Hairman, 175.
Gull V. Lindsay, 256, 268.
Gulliver v. Gulliver, 336.
Gully V. Grubbs, 494.
Gonnels v. Stewart, 195, 211, 214.
Gunter v. Halsey, 823, 854, 856.
Gupton V. Gupton, 826.
Gumsey v. Rogers, 236.
Guyn V. McAuley, 827.
Gwins V. Calder, 875.
Gwynn v. McCauley, 874.
Gybson v. Searle, 113, 115, 116, 119,

121, 122.
Gye, in re, 454.

H.

Hacker v. Gentry, 875.
Hackett v. Reynolds, 442.
Hackleman v. Miller, 140.
Haddeson Gas Co. v. Haslcwood, 668.
Hagan v. Domestic S. M. Co., 659,

663.
Hagar v. King, 395.
Hagey v. Detweiler, 421.
Haggerty v. Johnson, 156, 195, 214.
Haigh, ex parte, 442.

V. Brooks, 179, 180, 749.

t,. Kaye, 801, 853.
Hairston v. Jaudon, 827.
Hakes v. Hotchkiss, 243, 658.
Halbut V. Forest City, 350.
Halifax, ex parte, 452.
Hall V. Betty, 709.

V. Boyd, 6.

V. Burgess, 102, 103, 127, 134.

V. Chaffee, 19, 30, 33, 35, 36.

a. Hall, 422, 854, 875, 878.

V. McDuff, 413, 442.

V. Myers, 56, 58.

V. Robinson, 234, 2.52.

XXVI

TABLE OF CASES.

Hall V. Eodgers, 174, 206

V. Rowley, 473.

V. Seabright, 26.

V. Soule, 158, 432.

V. Wood, 155, 194, 219, 233.

V. "Woodin, 263.
Halleck v. Guy, 457, 460.
Hallen v. Runder, 351, 353, 377, 378,

379, 386, 392, 402.
Hallenback v. Cochran, 577.
Halsa D. Halsa, 61, 686.
Halstead v. Francis, 199.
Halterline v. Rice, 567.
Ham V. Goodrich, 405, 824, 832.

V. Van Orden, 570, 571, 576, 577,
597.
Hamerton v. Stead, 49, 93, 102, 103,

117, 120, 125, 126.
Hamilton v. Incledon, 144,

V. McDonnell, 369.

V. Terry, 143, 438, 707.

V. "Windolf, 22, 26.
Hamlyn Buck, in re, 447.
Hammer v. McEldowney, 844, 845.
Hammersley v. De Biel, 316, 322, 323,
324, 325, 327j 329, 830, 331,
334, 337, 730, 772.
Hampton v. Paulin, 208.

V. Spencer, 803.
Hanchett v. "Whitney, 53, 56.
Hand v. Grant, 727.
Handcoek v. Austin, 18.
Hander v. Hander, 415.
Hanford v. Higgins, 233.
Hanham v. Sherman, 95, 100.
Hankey v. Vernon, 443.
Hanlon v. Wilson, 828.
Hanson v. Armitage, 558, 585, 615,
643.

V. Barnes, 723, 729.
Harden v. Hays, 428.
Harder v. Harder, 839.
Hardesty «. Jones, 494.

V. Richardson, 845.
Hardman v. Bradley, 217.
Hare v. Celey, 27.

V. Sherwood, 852, 862.
Hargraves v. Cooke, 61.
Hargreaves v. Parsons, 197, 198, 200,

201, 206, 213.
Harkins v. Baker, 626, 627.
Harland v. Brawley, 100.
Harraan v. Anderson, 627, 628, 639.

V. Reeve, 184, 528, 602.
Harnor v. Groves, 585, 737,

Harper v. Charlesworth, 43.

V. Harper, 469.

V. Miller, 877.

V. Spainhour, 443.
Harrell v. Milner, 360, 361.
Harrington v. Rich, 153, 173, 214, 215,

264.
Harris v. Bell, 830.

u. Crenshaw, 826.

V. Frink, 48, 429, 430.

K. Huntback,158,196,207,289,304.

V. Knickerbocker, 854, 875.

<;. Porter, 463, 468, 473, 485.

V. Sawtelle, 290.

V. Tunbridge, 752.

V. Wing, 117.

V. Young, 215, 222.
Harrison, ex parte, 445.

u. Blackburn, 73, 82.

V. Cage, 311.

V. Harrison, 458, 839, 874.

V. Jackson, 782.

V. Sawtel, 198, 235, 289, 295.
Harriston v. Jordan, 432.
Harrop v. Cooke, 132.
Hartr. Bush, 615, 641.

V. Carroll, 362, 649.

V. Hammett, 681, 750.

^. McClellan, 824.

V. Mills, 601.

u. Nash, 524.

V. Sattley, 615.

V. Tallmadge, 306.

V. Woods, 726, 780, 787.
Hartley v. Varner, 184, 290.

V. Wharton, 739, 752.
Hartnell v. Yeilding, 684.
Harvey v. Grabham, 354, 391, 743, 745,
747, 754.

V. Stevens, 688, 690, 693, 780, 787.
Harwood v. Goodright, 415.
Hasbrouck v. Tappen, 111.
Haskins v. Warren, 752.
Hassinger v. Newman, 298.
Hatch V. Bayley, 627.

V. Hatch, 91.

V. Lincoln, 627, 631.
Hatcher v. Hatcher, 846.
Hatton V. Gray, 663, 765.
Haudlette v. Tallman, 566.
HaufE V. Howard, 423.
Haugh V. Blythe, 494.
Haughabaugh v. Honald, 417.
Haughton v. Morton, 701.
Hausman v. Nye, 614, 621, 641.

TABLE OF CASES.

XXVll

Haux i>. Seat, 19, 80.
Hayen ;;. Adams, 438.
Haverly v. Merian, 204, 216.
Havland v. Bromley, 96.
Hawes v. Armstrong, 179.

a. Torster, 789, 790, 793, 796.

t,. Martin, 195.

V. Smith, 144.

V. Watson, 621.
Hawkes v. Saunders, 138, 148.
Hawkins v. Baker, 779.

... Chase, 656, 663, 738, 744, 772,
778, 782.

V. Gardiner, 799.

V. Holmes, 768, 771, 773, 823, 832.
Hawley v. Keeler, 521, 571.

V. Moody, 349, 431, 435.
Haycroft v. Creasey, 306.
Hayden v. Dunets, 638.

I . Weldon, 204.
Hayes v. Kindersley, 816.

V. Skidmore, 411.
Hayler v. Atwood, 235.

V. Cummings, 57, 63.
Haynes v. Burham, 263.

c. Nice, 185.
Hayes v. Richardson, 35.
Hayter v. Tucker, 393.
Hayton v. Benson, 78.
Haywood v. Cope, 60, 687, 848.
Hazard v. Day, 648, 702, 703, 714.
Hazeltine c. Rice, 534.
Hazen v. Barnett, 419.

V. Bearden, 165, 216.
Hazleton v. Putnam, 10, 400.
Hazlett V. Hazlett, 362.
Head ;;. Baldrey, 184.
Headrick v. Wisehart, 160, 195, 209.
Healey v. Tenant, 575.
Heard v. Pilley, 778, 782, 809.
Hearing v. Dettinan, 266.
Heam, ex parte, 447.
Heame v. Chadbourne, 473, 474.
Heath v. Heath, 469.

V. Randall, 360, 401, 624.
Heathcote, ex parte, 453.
Heavilon v. Hearilon, 352, 404.
Hebbard v. Whitney, 434.
' Heermance v. Taylor, 561.
Heilbutt V. Hickson, 603, 604. .
Heinekey v. Earle, 572.
Heffield v. Meadows, 180.
Heflin v. Bingham, 43.
Hegeman v. McArthur, 100, 104.
Helm V. Logan, 162.

Helms V. Kearns, 160, 209.
Ilelshaw r. Langloy, 771.
Hemenway v. Bassett, 439.
Henderson v. Barnewall, 726, 787.

V. Hudson, 186, 422, 423.
Hendrick v. Lindsey, 235.
Hendricks v. Mosby, 409.

V. Robinson, 182, 217.
Henry, in re, 449.

V. Henry, 315.
Hepburn v. McDowell, 22.
Hepworth v. Hepworth, 811, 812, 816.
Herbert v. Fowls, 138, 143.
Hermance v. Vernay, 27.
Herrell v. Sizeland, 47, 49.
Herrin v. Butters, 463, 473, 474, 476,

477, 481, 485.
Herring v. Hoppock, 624.

V. Willard, 624.
Hersey v. Giblett, 61.
Herzog v. Herzog, 427.
Heseltine v. Leary, 97.

... Siggers, 394, 503.
Hesseltino v. Seaver, 83.
Hetfield v. Central R. R. Co., 9, 20, 21.

V. Dow, 155, 103, 216, 219, 262.
Heth V. Woolridge, 409.
Hew V. Jones, 48.

Hewes v. Jordan, 557, 559, 560, 570,
578, 587, 590, 593, 621, 641.

V. Taylor, 723.
Hewett, in re, 449.

V. Isham, 43.
Hewlins v. Shippam, 5, 6, 9, 10, 22.
Heyman v. Neale, 789, 791, 794.
Heys V. Astley, 857.
Heyward v. Barnes, 732.
Heywood v. Cope, 844.

V. Styles, 166.
Heyworth v. Knight, 790, 794.
Hibblewhite v. McMorine, 393.
Hibhert v. Aylott, 828, 836.
Hickman v. Haynes, 745, 749, 758, 759,

760, 761.
Hicks V. Critcher, 234, 252.
Hidden v. Jordan, 493.
Hiem v. Mill, 452.
Higdon V. Thomas, 772.
Higgins V. Andrews, 27.

V. Murray, 554.

V. Senior!! 753, 779.
Higginson v. Clowes, 456, 865.
Highmore r. Primrose, 425.
Hight V. Ripley, 545, 546, 550.
Hildyard, in re, 444, 448, 453.

XXVlll

TABLE OF CASES.

Hill V. Heller, 558, 601.

u. Hooper, 463, 471, 491, 500.

V. Jamieson, 480, 497.

V. Lord, 7.

V. Raymond, 155, 203, 219, 262.

V. Robinson, 104.

u. Rowe, 681.

V. Tupper, 15, 18.

V. "Wells, 221.
Hilraart v. Christian, 412.
Hilton V. Giraud, 393.

V. Dinsmore, 153, 206, 240, 266,
276, 277.
Hilts V. Scully, 223.
Himrod Furnace Co. v. Cleveland R.R.

Co., 650, 754, 764.
Hinchcliff v. Hinman, 412.
Hinckley v. Arey, 788.

V. Southgate, 473, 476, 481, 485.
Hinde v. Whitehouse, 573, 647, 654,

709, 720, 739, 780, 781, 789.
Hindman v. Langford, 152, 175, 228,

267.
Hine v. Robbins, 92, 412.
Hinman v. Booth, 412.
Hirchborn v. Stewart, 605.
Hitchcock V. Lukens, 247.
Hitckins v. Shaller, 14, 39.
Hite V. Wells, 223, 241.
Hoad V, Grace, 180.
Hoadley v. McLaine, 655, 680, 752,

760.
Hoare v. Hindley, 500.
Hobbs V. Wetherwax, 354, 359, 369,

410.
Hobson V. Cowley, 103, 127, 305.
Hoby V. Roebuck, 68, 350, 399, 495.
Hockley v. Bantock, 450.
Hodges V. Hall, 154, 211, 223.

V. Howard, 61, 656, 714.

V. Richmond Mfg. Co., 470, 480,
482.

V. Strong, 497.
Hodgkins v. Henney, 260.

V. Jackson, 199.

V. Kearney, 155.
Hodgkinson v. Wyatt, 449.
Hodgson V. Anderson, 202, 206, 207,
285, 286.

V. Davies, 791, 795.

V. Hutchinson, 190, 334.

V. Johnson, 184, 398, 424.

V. Le Bret, 365, 366, 597, 600, 617,
619, 771, 778.

V. Lee, 621, 643.

Hodgsons v. Jeffries, 14.
Hodson V. Staple, 132.
Hoffman v. Fett, 827.
Hogarth v. Phillips, 336.
Hogg V. Snaith, 862.

V. Wilkins, 414.
Holbrook v. Armstrong, 490, 494.

V. Tirrell, 91, 413.
Holden v. Hearn, 451.
Holderbaugh v. Turpin, 140.
Holding V. Barton, 855.
Holland v. Eyre, 732.

V. Hoyt, 779.
HoUingshead v. McKenzie, 854, 878.
Hollingworth v. Napier, 633.

V. Stennett, 48, 50.
HoUis V. Edwards, 832.

V. Pool, 51.
Holloway v. Hampton, 471, 473, 494,

500.
Holman v. Bank, 647.
Holmes v. Evans, 684, 685, 846.

V. Holmes, 414, 836.

V. Hoskins, 576, 577, 578, 621, 635.

/;. Johnston, 647, 751.

V. Knights, 275, 290, 292, 295.

V. Mackrell, 773.

V. Mitchell, 177, 178, 737.

V. Tremper, 27.

V. Trout, 412.
Holthausen, ex parte, 446.
Horaans v. Lombard, 203, 207, 219.
Home V. Batehelder, 352.

V. Booth, 653.
Homes v. Martin, 208.
Homfray v. Fothergill, 857.
Honeyman v. Marryat, 731, 735, 844.
Hood V. Bowman, 832.

V. Lord Barrington, 692.
Hooker v. Knabe, 621, 641.
Hooper, ex parte, 442, 449, 450, 823.
Hopkins v. Carr, 160, 195, 208.

V. Richardson, 247.

V. Roberts, 820.
Hopper V. Stephens, 624. -
Hoppock V. Wilson, 162.
Horn V. Bray, 291, 292, 293.

V. Ludington, 824.
Horsey v. Graham, 397, 751.
Horsfall ;;. Garnett, 734.

V. Hey, 351, 402.

V. Hodges, 743.
Horton v. McCarty, 663, 704, 713, 723,

735, 780.
Hosford V. Carter, 413.

TABLE OF CASES.

XXIX

Hotchkiss V. Ladd, 493, 875.
Houdletto I). T.allman, 576, 576.
Houghtaling v. Ball, 576.

V. Houghtaling, 34, 400.
Houghton, ex parte, 806.

V. Houghton, 466, 469, 470, 480,
484.
Houlditch V. Milne, 208, 216, 255, 257,

259.
Houser ik Lament, 158, 854.
Houston V. Laffee, 8, 16, 20, 21, 22,
28, 35, 36, 38.

c. Matthews, 421.

V. Sneed, 421.
How t'. Barker, 638.

V. Kimball, 171.
Howard v. Borden, 576, 577.

V. Brown, 405.

V. Burgen, 466, 467, 469.

I. Coshaw, 198, 201.

< . Easton, 351, 402, 411.

V. Gresham, 439.

V. Priest, 423.

(7. Shaw, 48.
Howe V. Batchelder, 360, 368, 506.

^. Deming, 686.

V. Hall, 835, 839, 842.

V. Hayward, 518, 519.

V. Howe, 806.

V. Palmer, 396, 504, 585, 618, 621,
633, 642.

V. Rogers, 836.

u. Searing, 35.

V. Wilder, 413.
Howes V. Ball, 623, 624.

V. Hall, 26.

1-. Martin, 296.
Howland v. Aitch, 302.

V. Blake, 439.
Hubbard v. Marshall, 649.
Huber v. Ely, 175, 267.

V. Sleiner, 305.
Hubert v. Moreau, 771.

V. Treherne, 774, 776.

V. Turner, 773, 774.
Hubon V. Parks, 198.
Huddlestone v. Briscoe, 730, 844, 856.

V. Johnson, 103.
Hudson V. Weir, 503, 566.
Huff V. McCauley, 6, 15, 20, 28, 36,
359, 362, 383.

V. Shepherd, 845.
Huffman v. Ackley, 158, 874.

V. Stark, 5.
Hughes V. Moore, 348, 413, 414.

Hughes V. Morris, 825.

V. Parker, 61.

I'. Robotham, 87.

V. Stubbs, 799, 800.
Hugus I). Walker, 846.
Hull V. Babcock, 26.

J . Brown, 160.

I'. Wadsworth, 51, 58.

i: Wood, 48, 49, 52, 104.
Humble v. Hamilton, 429.

V. Mitchell, 393, 394, 503.
Humphrey v. Dale, 783.
Humphries ;;. Home, 865.

I). Humphries, 47, 54.
Hunt V. Allgood, 62, 66.

V. Hecht, 563, 576, 590, 603, 615.

V. Hughes, 176.

V. Maynard, 438.

V. Wimbledon &e., 826.
Hunter v. Giddings, 663.

V. Murray, 554.

V. Randall, 308, 875.

u. Seton, 663.

V. Wetsell, 521, 522.

V. Wright, 627, 641.
Huntington ;;. Harvey, 174, 266, 296.

V. Wellington, 229.
Huntress v. Patten, 156, 178.
Hupport I'. Morrison, 25.
Hurford v. Carpenter, 443.
Hurley i;. Brown, 682, 683, 684, 717,

742, 750, 751, 846, 860.
Hurley v. Blackford, 685.
Hurper v. Laney, 848.
Hurry v. Mangles, 617.
Hussey v. Horner Payne, 716.

«. Thornton, 024.
Hutchins v. Lee, 798.

V. Martin, 85, 89, 116, 119, 122.
Hutchinson v. Bowker, 730.

V. Hutchinson, 467, 469, 470, 480,
483.

V. Tatham, 753.
Ifutton V. Padgett, 61.

V. Williams, 457, 460, 726.
Hyde v. Cooper, 824.

V. Johnson, 771.

V. Moakes, 128.

V. Wrench, 731.

Ide V. Stanton, 647, 649, 654, 655, 678,
709, 712.

XXX

TABLE OF CASES.

lUsley V. Stubbs, 644.
Inge V. Birmmgham, Wolverhampton
& Stour Valley Railway Co.,
702.
IngersoU v. Baker, 205.
Ingles V. Patterson, 827.
Ingram v. Dowdle, 457, 461.
Inman v. Stamp, 18, 45, 303, 348, 398.
Ireland v. Jackson, 523.

0. Rattle, 417.
Iron Cliff's Co. o. Buhl, 568.
Irvin V. Thompson, 44, 45.
Irvine v. Stone, 185.
Irwin V. Hubbard, 437.
Israel v. Douglas, 286.
Ithel V. Potter, 768, 771.
Ive's Case, 116.
Ives V. Gilbert, 482.

V. Hazard, 647, 656, 663, 678.

V. Sams, 85, 89, 116, 119, 122.
Ivory V. Murphy, 666, 764.
Izard V. Izard, 337.

V. Middleton, 466, 469.

J.

Jack V. McKee, 405.

V. Morrison, 163, 194.
Jacklin v. Cartwright, 66.
Jackson & Sharp Co. v. Philadelphia

&c. R. Co., 401.
Jackson, in re, 395.

u. Anderson, 92.

V. Babcock, 10, 401.

V. Brodt, 47, 53, 418.

V. Bryan, 54.

V. Bull, 457.

V. Cator, 866.

V. Covert, 206, 537.

V. Elsworth, 79.

V. Evans, 397.

«. Gardner, 89, 102.

V. Harder, 418.

u. Kingsley, 48.

V. Lowe, 654, 655, 701, 709, 710,
712, 741.

V. McLeod, 50.

V. Oglander, 694, 708, 743, 767,
844, 857.

V. Page, 92.

V. Parkhurst, 50.

u. Pierce, 434.

V. Rayner, 162.

V. Rogers, 48.

Jackson v. Sheldon, 412.

V. Titus, 670, 716.

V. Van Dusen, 771.

0. Vosburgh, 418.

V. Watts, 607, 621.

V. Wilsey, 51.
Jacob V. Kirk, 654, 688, 691, 693, 709,

771.
Jacobs V. Latour, 632.

V. R. R. Co., 832.
James v. Bydder, 448.

V. Muir, 679.

V. Pope, 105.

V. Rice, 448, 450.

V. Williams, 179, 182.
Jameson v. Stein, 329.
Jamieson v. Millemann, 9, 33, 400.
Jamison v. Dimock, 822.
Janes v. Palmer, 61.
Janvrin v. Maxwell, 621, 630, 631, 632.
Jarmain v. Algar, 274.
Jarvis v. Dutcher, 442.

V. Wilkins, 182.
Jay V. Rider, 116, 117.
Jeans v. Cooke, 807, 816.
Jeffcot V. N. B. Oil Co., 738.
Jeffers v. Jeffers, 412.
Jefferson Co. v. Hogle, 216, 222.
Jeffrey v. Walton, 771.
Jeffreys v. Small, 423.
Jelks V. Barrett, 762.
Jenkens v. Hogg, 458, 460, 726, 729,

781.
Jenkin Cent. 256, case 49, 82.
Jenkins v. Green, 60, 687.

V. Harrison, 684, 705, 742.

V. Hiles, 868.

V. Reynolds, 182, 496.
Jenkinson v. Pepys, 864, 869.
Jenks V. Edwards, 5.

u. White, 407, 423.
Jeuness v. Mt. Hope Iron Co., 653,
663, 713, 737, 738.

V. Wendell, 510, 511, 512.
Jennings ;:. Crider, 172, 240.

I'. Flanagan, 520.

■,. Webster, 198.
Jepherson v. Hunt, 220, 221.
Jerdein v. BrigM, 817, 877.
Jervis v. Berridge, 737, 853.

V. Smith, 854.
Jeston V. Key, 322.
Jewel V. Ricker, 425.
Jewett V. Warren, 626, 631.
Jilson «. Gilbert, 469.

TABLE OF CASES.

XXXI

John V. Jenkins, 108, 117, 121.

V. Sabbatis, 419.
Johnasson v. Bonhote, 855.
Johns V. Johns, 406.
Johnson v. Bowden, 828.

V. Buck, 664, 688, 704, 709, 721,
739, 741, 779, 781, 783.

u. Cuttle, 557, 571, 587, 596, 597,
613, 614, 615, 621, 641.

V. Dimock, 827.

V. Dodge, 778, 782.

V. Dodgson, 615, 641, 674, 740,
773, 775, 776, 784, 875.

V. Gilbert, 198, 265, 298, 299.

V. Glancy, 826, 835, 839.

V. Granger, 751.

V. Hanson, 435.

V. Hart, 439.

V. Hunt, 567.

V. Johnson, 843, 846.

.,. Kellogg, 357, 654, 662,684, 709.

V. Knapp, 160, 198, 209, 246, 290.

V. McGruder, 778, 839.

V. Morris, 162.

V. Mulry, 726.

V. Noonan, 156, 174.

V. Ronald, 647, 716.

V. Roylton, 752.

c. Skillman, 10, 400.

V. Trinity Church Society, 675.

V. Watson, 494.

V. Whitchcott, 146, 146.

V. "Wilson, 417.
Johnston v. Huddlestone, 84, 85, 94,
103, 106, 108, 126, 131.

». Johnston, 826.

V. NichoUs, 175, 179.
Jolley V. Walker, 221.
Jones, ex parte, 462.

V. Ashburnham, 143.

V. Cooper, 202.

V. Flint, 352, 353, 354, 356, 360,
383, 387.

V. Hardestry, 198.

V. Hay, 427.

V. Jones, 48.

V. Letcher, 292.

V. Lock, 799, 800. •

V. McMichael, 399, 423.

V. Mechanics' Bank, 570, 578, 614.

„. Neale, 91.

„. Palmer, 173, 298.

V. Peterman, 826.

V. Reynolds, 62.

V. Robinson, 199.

Jones V. Shay, 47, 48.

V. Shorter, 290, 292, 295.

V. Smith, 420.

V. Victoria Graving Dock Co.,
649, 760.

u. Walker, 174, 265, 266, 296.

V. Williams, 456, 702.
Jordan r. Deaton, 844.

V. James, 637.

V. Jordan, 92.

r. Miller, 469, 470.

V. Korton, 588, 609, 730.

V. Sawkins, 862.
Jorden v. Money, 316, 331, 332, 333.
Joslyn V. CoUinson, 171.
Joyce V. Adams, 520.

V. Swann, 680.
Joynes v. Statham, 852, 868, 859, 863.
Julison V. Jandon, 429.
Jungerman v. Bovee, 108.
Justice V. Lang, 661, 663, 666, 764.
Justin V. Tallman, 233.

Kabley v, Worcester Gas Light Co.,

437.
Kain v. Old, 679.
Kaitling v. Parkin, 739.
Kauffman v. Walker, 457, 458.
Kay V. Crook, 328.

.,. Curd, 656, 678, 846, 875.

V. Pennsylvania R. R. Co., 24.
Kealey v. Tennant, 597.
Kean v. McKinsey, 173.
Kearsing v. Killian, 412.
Keate v. Temple, 166, 168, 216, 217.
Keats V. Hewer, 815.
Keech v. Hall, 80.
Keeler v. Tatnall, 422, 429.
Keister v. Miller, 83.
Keiwert v. Meyers, 613, 621
Kelley v. Allen, 409.

V. Stanberry, 414.

V. Terrell, 473, 485, 486, 497.
Kellogg V. Clark, 471.

V. Wetherhead, 543.
Kelly V. Waite, 61.

V. Webster, 126, 348, 350, 353,
397, 425.
Kelsey v. Hibbs, 261.
Kemble v. Dresser, 428.
Kemeys v. Proctor, 780.
Kempson v. Boyle, 760, 792.

xxxu

TABLE OF CASES.

Kennaway v. Tj-eleavan, 176, 191.
Kennedy v. Lee, 654, 703, 715, 730,

736, 846.
Kensington, ex parte, 442, 443, 448, 451,
454.

V. Phillips, 847.
Kent V. Huskinson, 583.

V. Kent, 468, 470, 481, 485, 487, 498.
Kenworthy v. Schofield, 646, 653, 720,

739, 780, 781.
Kenyon v. Nichols, 6.
Kerr v. Connell, 355, 371.
Kersliaw v. Ogdeu, 563.

V. Whittaker, 173.
KesBel V. Alhestis, 395.
Kettle V. St. John, 118.
Keys V. Williams, 450.
Keyson v. School District, 351, 402.
Keyton v. Crawford, 409.
Kibble v. Gough, 591, 592.
Klbby V. Chetwood, 876.
Kidder v. Barr, 824.

V. Hunt, 428, 429, 434, 481, 491.
Killian v. Ashley, 173.
Kilmore r. Hewlett, 352, 356, 359, 369,

383, 386, 544.
Kilpin V. Kilpin, 800, 811.
Kimball v. Comstock, 308.

V. Newell, 156.

V. Yates, 9, 15, 22, 33, 35.
Kine v. Balfe, 826, 829, 835, 878.
King V. Brown, 405, 429, 430, 491, 492.

V. Cole, 180.

V. Crocheran, 92.

V. Denison, 805.

V. Despard, 154, 223, 260.

V. Edmunston, 184.

V. Gunnison, 456, 461.

V. Hanna, 469, 484.

V. Janvrin, 638.

V. Jarman, 627, 637, 638, 639.

V. Newton, 26.

V. Rickman, 684, 846.

V. Summit, 301, 304.

V. Thom, 148.

V. Upton, ^43.

V. Welcome, 429, 435, 490.

V. Wilson, 173, 273.

V. Wood, 682, 686.
Kingdon v. Bridges, 810.
King's Leasehold Estates, in re, 63, 70.
Kingsley i'. Balcom, 160.

V. Holbrook, 352, 360, 368, 369,
372, 387, 403, 506.
Kinloch v. Brown, 155, 217, 219, 262.

Kinloch v. Savage, 678.
ICinsey v. Winnock, 105.
Kinzie v. Penrose, 874.
Kirby v. Johnson, 537, 621, 641.
Kirkham v. Marter, 183, 273.
ICirksey v. Kirksey, 854.
Kirtland v. Ponsett, 48.
Kirwan v. Birchell, 331.
Kleeman v. Collins, 473, 474, 486.
Klinitz V. Surry, 572, 573, 574.
Kneeland v. Fuller, 429.
Knibs V. Jones, 758.
linight K. Barber, 393.
V. Bennett, 52.
V. Crockford, 772, 775.
V. Dunlop, 602.
V. Mann, 558, 561, 565, 569, 570,

595, 607, 621, 631.
V. N. E. Worsted Co., 377.
Knowles v. Michel, 425, 436, 496.
Knowlman v. Bluett, 429, 467, 469.
Knox V. Harlason, 383.
V. King, 656, 723, 739.
V. Nutt, 155, 262.
Koplitz V. Gustavus, 66.
Korf V. Lull, 843.
Kramer v. Arthurs, 422.
Krank v. Nichols, 97, 98.
Kratz V. Stocke, 159.
Kronheim v. Johnson, 654, 772.
Krudler v. Ellison, 613.
Krutz V. Stewart, 154, 260, 263.
Kurtz V. Adams, 155, 219, 262.

V. Cummings, 656, 739.
Kutzmeyer v. Ennis, 198.

L.

m

Lackington v. Atlicrton, 627, 628, 639.
Lacon v. Allen, 442, 454.

V. Mertms, 823, 826, 856.
Lacy V. Arnett, 35.

V. McNeile, 207, 285.
Ladd V. ICing, 758.

V. Smith, 100, 102.

V. Tobey, 247.
Lady Thynne v. Earl of Glengall, 316,

767, 843.
Laidler v. Burlinson, 588.
Laidlow V. Hatch, 233.
Laing v. Lee, 240.

Laird v. Birkenhead Railway Co., 849.
Lake v. Phillips, 862.
Lamar v. McNamee, 82, 83, 96.

TABLE OF CASES.

XXXlll

Lamb v. Crafts, 186, 547.
Lambert v. McDonnell, 78.

c. Norris, 03.
Lampkins v. Hoos, 512.
Lamplugh r. Lamplugh, 814, 815.
Lampman v. Schilks, G.
Lampson v. Heartt, 260.
V. Hobart, 155.
i-. Swift, 156.
Lamson v. Patch, 639.

u. Ward, 413.
Lancaster Canal Co., ex parte, 445.

in re, 393.
Lancaster v. De Trafford, 60.
Landas v. HolUngshead, 100.
Lane, ex parte, 215, 286.

V. Burghart, 207, 214, 275.
V. Dighton, 808.
V. Miller, 19, 28, 36.
V. Shackford, 415, 433, 491, 506,
824.
Lang V. Henry, 61, 473, 486, 647, 662.
Langdon v. Hughes, 215.
Langflelde v. Hodges, 798.
Langford i-. Preeman, 876.

V. Tyler, 515, 519.
Langstaff v. Nicholson, 719.
Langston, ex parte, 447, 451.
Langton v. Casrleton, 489.
Lanterman v. Williams, 419.
Lanz V. McLaughlin, 649, 666, 824.
Lapham ;;. Whipple, 312, 482, 484,

485, 500.
Larimer v. Kelley, 470, 483.
Larned v. Hudson, 47, 48.
Larson i;.Wyman,155,156,216,218,254.
Lassence v. Tiemey, 314, 322, 323, 324.
Latham v. Atwood, 381, 392.
Laung V. French, 155.
Laurie i'. Schofield, 180.
Lavender v. Blackstone, 321, 337.
Layer v. Fielder, 328, 329.
Lavery v. Turley, 305, 425.
Laverty v. Mason, 872.
Lawle V. Lapham, 877.
Lawnsley v. Sunwall, 231.
Lawrence v. Brown, 110.
o. Chase, 414, 874, 876.
V. Cook, 311, 312, 498.
V. Ervington, 369.
V. Faux, 104, 126, 133.
V. Fox, 199, 232, 233, 235,

251, 278, 280.
V. Gallagher, 788.
V. Lawrence, 92.

Lawrence d. Smith, 3.59, 309.
r. Stratton, 413.
,■. Taylor, 778.

I. Woods, 500.
Lawrenceson v. Butler, 766.
Lawson v. Laude, 8G4.

v. Springstcin, 210.
Laythoarp v. Bryant, 647, 663, 666,

668, 709, 730, 704, 765, 766.
Lea .;. Barber, 184, 186.
Leago !'. Deane, 426.
Lear v. Chotcau, 411, 874, 876.
Leather Cloth Co. v. Hieronimus, 652,

710, 749, 760, 761.
Leathes, ex parte, 453.

in re, 453.
Leavitt v. Pratt, 438.
Ledford v. FaiTell, 414.
Lee V. Fontaine, 240.

V. Gaskell, 363, 379.

V. Griffin, 529, 530, 531, 534, 537,
540, 541, 542, 5.32.

V. Hemmingway, 843.

0. Hernandez, 49.

V. Hills, 648, 649, 689, 714, 737.

V. McLeod, 16, 35.

V. Muggeridge, 146.

V. Newman, 233.

II. Risdon, 402, 404.

i). Smith, 48, 52, 56, 67.
Leech v. Leech, 89.
Leed v. Leed, 523, 526.
Leeds v. Burrows, 843.
Lefevre v. Lefevre, 22.
Legal V. Miller, 864.
Legg V. StrudwicK, 56.
Leinan v. Smart, 402.
Leisherness v. Berry, 637.
Leland v. Creyon, 194, 216, 218.
Lemau v. Whitley, 810.
Le Mayne v. Stanley, 772.
Lemmon v. Box, 176, 267.
Lenfer v. Henke, 422.
Leonard v. Davis, 626, 638.

V. Mason, 231.

V. Vredenburgh, 156, 171, 172,
176, 177, 232, 250, 265.
Lent V. Paddleford, 764.
Lemed v. Wannemacher, 58, 60, 648,
649, 660, 654, 678, 702, 705,
706, 709, 724, 734, 739, 742.
Leroux v. Brown, 150, 305, 457, 486,

491, 652, 669.
Lesley v. Randolph, 63.

V. Kosson, 410.

XXXIV

TABLE OF CASES.

Leslie v. Tompson, 867.
Lester v. Bowman; 247, 290.

u. Foxcraft, 819, 829, 845,

v. Kinne, 845.

V. McDowell, 566.
Leven v. Smith, 621.
Levison v. Stix, 487.
Levy t>. Green, 601.
Lewellen v. Overton, 421.
Lewin v. Stewart, 877.
Lewis V. Lane, 807.

V. Reichy, 844, 845.

V. Wells, 720.

V. Wilson, 474.
Lexington v. Clark, 184, 186, 229.
Lexley v. Heath, .329.
Libeau v. Libeau, 92.
Lieber v. Levy, 17.S, 266.
Liggins V. Inge, 11, 26, 37.
Lightfoot r. Herring, 870.
Lillywhite r. Devereux, 576, 585, 626.
Lily V. Green, 56.
Linan v. Smart, 407.
Lincoln v. Crandell, 723.

(,-. Erie Preserving Co., 689.

V. Wright, 801, 827, 836, 852, 855.
Lindlcy v. Tibbals, 58.
Linden, in re, 452.
Lindsay v. Lynch, 65, 684, 830, 846, 858.

V. Springer, 421.
Lindsley v. Coates, 415, 506.
Lindus v. Bradwell, 753.
Lines ji. Smith, 171.
Lingan v. Henderson, 874.
Linley v. Taylor, 393.
Linn Boyd Tobacco Warehouse Co.

V. Terrill, 781.
Linecott ti. Mclntire, 314, 468, 476,

479, 480, 484.
Linton v. Butz, 027.
Lippincott v. Ashfield, 233, 241, 252.
Lisk V. Sherman, 405, 420, 489.
Lister v. Hodson, 799.
Litcher v. Crosby, 824.
Little V. Wilson, 480, 485, 486.
Littledale, ex parte, 444, 445.
Littlejohn, ex parte, 186.
Liverpool Borough Bank v. Eccles,

667, 731, 734, 765.
Liversidge v. Broadbent, 286.
Livingston v. Potts, 103, 108, 110.

I). Tremper, 171.
Llewellyn v. Earl of Jersey, 710.
Lloyd, ex parte, 444, 454.

V. Attwood, 450, 451.

Lloyd V. Conover, 419.
V. Gregory, 88, 117.

... Langford, 84, 122, 124.

V. Lee, 146.

V. Lloyd, 806, 868.

V. Passingham, 132.

u. Pughe, 810.

„. Read, 807, 811, 815, 816.

V. Spillet, 799, 805, 810.

V. Wright, 561, 614, 642.
Lobb V. Stanley, 739, 752, 773, 775.
Lobdell V. Lobdell, 846.
Lockerson v. Stilwell, 843.
Lockett V. Nocklin, 738.
Lockhart v. Gier, 33.
Lockwood V. Barnes, 427, 431, 434,
466, 484, 485, 491, 498.

V. Lockwood, 51.
LofEus V. Maw, 329, 331, 334.
Logan V. Anderson, 108.

V. Barr, 83.

V. Le Mesuvier, 520.
London & Birmingham Railway Co.

V. Winter, 786, 867.
London Loan and Discount Co. v.

Drake, 78, 79.
Long V. Buchanan, 20.

V. Duncan, 845, 848.

V. Hartwell, 782.

('. Henry, 153.

t.. Millar, 697, 704, 705, 725, 739.

V. Rodman, 140.
Long's Appeal, 418.
Longfellow v. Williams, 669.
Longley v. Longley, 806.
Loomer v. Dawson, 60, 796.
Loomis V. Newhall, 247, 289.

V. Spencer, 796.
Loonie v. Hogan, 254.
Lord V. Davison, 214.

V. Hill, 8.

V. Lord, 457.
Lord Bolton v. Tomlin, 4, 68.

Desart v. Goddard, 838.

Falmouth v. Thomas, 397.

Glengall v. Barnard, 781.

Gordon v. Marquis of Hertford,
867.

Irnham v. Child, 862, 869.

Middleton v. Wilson, 718.

Ormond v. Anderson, 766, 846.

Portmore v. Morris, 862.

Stuart V. L. & N. W. R. Co., 846.

Townshend v. Bishop of Norwich
767.

TABLE OF CASES.

XXXV

Losee v. WiUiams, 298.

Lounsbury v. Snyder, 58, 110.

Love V. Camp, 872.

Love's Case, 152, 269.

Low V. Carter, 812.

Lowber v. Connit, 649, 663, 764.

Lower K. Weaver, 826.

V. "Winters, 351, 359, 369, 402, 411,
600.
Lowry v. Buffington, 828.

o. Lord Dufferin, 831.

V. Mehaffy, 663, 764.
Lowther v. Troy, 117.
Luark v. Malone, 154, 260, 263.
Lucas V. Chamberlain, 290, 292, 295.

V. Dorrien, 451, 628, 639.

V. James, 733, 735, 769.

V. Lucas, 799.

V. Payne, 240, 241, 247.

V. Williams, 147.
Luce V. Carley, 6.
Luckett V. Williams, 878.
Luck's Appeal, 443.
Lucy V. Bundy, 429, 624.

V. Mouflet, 581, 588, 604.
Luders v. Anstey, 317.
Ludlow V. Cooper, 422, 423.
Luer V. Zeile, 204.
Lyde v. Barnard, 307.
Lyman v. Lyman, 407.

u. Robinson, 702, 703.
Lynch v. Lynch, 83, 92, 124, 126, 129,

130.
Lynes v. Hayden, 844, 845, 846.
Lyon V. Culbertson, 752.

V. King, 466, 467, 484.

V. Eeed, 83, 90, 93, 95, 96, 97, 98,
104, 111, 116, 119, 120, 128,
129, 131, 133.
Lysaght v. Walker, 176.

M.

Maberley v. Sheppard, 567, 588, 619,

621, 625.
McAllister v. Montgomery, 423.
McAlvey v. Noble, 173.
McAskie V. McCay, 329, 331.
McAuley v. Carter, 843.
McBlain v. Cross, 771, 788.
McBride v. Whitehead, 624.
McCabe v. Fitzpatrick, 407.
McCaffie v. Eadcliffe, 156, 194, 215.
McCampbell v. McCampbell, 435.

McCarger i;. Rood, 65, 828.
McCarthy v. Knapp, 559.

V. Kyle, 050.

V. Oliver, 354, 869.
McCartney v. Hubbell, 247.
McClellan v. Sanford, 494.
McClintock's Appeal, 359, 362, 363,

368.
McClintosh v. Laing, 845.
McClung V. Kelley, 640.
McComb V. Wright, 726, 781.
McConnell v. Brillhart, 703.
McCormick v. Drummett, 406.

V. Grogan, 821.

V. Hadden, 638.
McCorney v. Stanley, 173.
McCoy V. Williams, 493, 878.
McCrary v. Madden, 154, 231, 240.
McCrea v. Purmont, 663, 764.
McCreary v. Van Hook, 198.
McCue V. Johnston, 846.

V. Smith, 424, 492.
McDaniels v. Lapham, 439.
Macdonald v. Longbottom, 681, 751.
McDonnell v. Dodge, 155.

V. McKay, 369.

V. Pope, 127, 128, 131.
McDowell V. Chambers, 769.

V. Hewett, 567.

V. Simpson, 51, 66.
McElroy v. Buck, 647, 659, 663, 678,
703.

V. Ludlum, 478.
McEwan v. Ortman, 437.
McFadden v. Jenkyns, 799.
McFarland v. Farmer, 624.
McFarson's Appeal, 647, 663, 678.
McGee v. Gibson, 48, 49.
McGibbeny v. Burmaster, 829.
McGlynn v. Brack, 102.

V. Maynz, 843.
McGowen v. AVest, 189, 766, 854.
McGregor v. Brown, 359, 360, 369.
McGuire v. Stevens, 845.
Melver ;•. Richardson, 190.
Mack V. Bragg, 491.

V. Briggs, 479.
McKay v. Rutherford, 500.
McKee v. Phillips, 824.
McKeenan v. Thissel, 246.
MacKellar v. Sigler, 98.
McKenzie v. Farrell, 82, 118.

V. Jackson, 206, 240, 241.

V. Lexington, 79, 83.
McKibbin v. Brown, 844.

XXXVl

TABLE OF CASES.

McKinney v. Guilter, 171, 173.

V. McCloskey, 465.

V. Reader, 83.

V. Whiting, 307, 308.
McKnight v. Dunlop, 559, 560.
McNight V. Katcliff, 23.
MacKubbin v. Clarkson, 414.
McLaren v. Hutchinson, 172, 240, 246.
McLarney v. Pettigrew, 8.
Maclean v. Dunn, 779, 782, 786, 795.
McLean v. NicoU, 653, 660, 695.
McLees v. Hale, 484, 485.
McLenden v. Frost, 203.
McLeod V. Jones, 29.
MoMahon v. McMahon, 420.

V. N. Y. & Erie R. E. Co., 843.
McMillan v. Bentley, 669.

V. Bull's Head Bank, 288.
McMillen v. Terrell, 769.
McMuUen v. Helberg, 701, 737.

V. Riley, 186.
McMurray v. Spicer, 681, 682, 684, 846.
McNamara v. Seaton, 421.
McNeal v. Emerson, 29, 360.
McNeil V. Jones, 846.
McNew V. Toby, 436.
McPherson v. Cox, 497.

V. Meek, 288.

u. Seguine, 419.
Macrory v. Scott, 268.
McWhorter v. McMahon, 778, 782.
Macy V. Childress, 292.
Maddison v. Alderson, 405.
Maddox v. McQueen, 844.
Magaw V. Lambert, 95.
Magennis v. MacCiiUough, 89, 120.
Maggs V. Ames, 156, 275.
Magruder v. Gage, 641.
Maguire v. Dodd, 800.
Mahana v. Blunt, 835.
Mahon v. Baker, 835, 836.
Malain v. Ammon, 427.
Malins v. Brown, 826.
Mallett V. Bateman, 190, 205, 287.
Mallory v. Gillett, 233, 244, 250, 254,
.259, 260, 261, 280.

V. Griffiths, 278.

V. Stodder, 92, 413.
Mallows V. May, 117, 119, 121, 124.
Malone v. Keener, 161, 209, 210, 299,

301.
Manchester v. Doddridge, 48.
Mandeville v. Welch, 442.
Mann v. Blanchard, 308.

V. Lovejoy, 52.

Mann v. Williams, 621.
Mannier v, Myers, 6.
Manning v. Weston, 515.
Manser v. Back, 861, 869.
Mapes V. Stanley, 173.
Mapp V. Elcock, 805.
Marble v. Marble, 414.
March v. Attorney General, 393.
Marcy v. Crawford, 289, 294.

V. Darling, 22, 26.

V. Marcy, 419, 463, 485, 495.
Mariott v. Turner, 805.
Markham r. Stanford, 46.
Marley v. Noblett, 470, 483, 497.
Marquat v. Marquat, 437.
Marquese v. Caldwell, 650, 764.
Marquis of Camden v. Batterbury, 47,
62.

of Townshend v. Stangroom, 859,
860, 863, 864, 869.
Marsh v. Bellew, 749, 762.

V. Gould, 294.

V. Hyde, 559, 569, 602, 607, 615.

V. Rouse, 570, 621, 630.
Marshall v. Burtonshaw, 143.

V. CoUett, 871.

V. Crutwell, 813.

V. Ferguson, 352, 384, 506.

V. Fisk, 413.

V. Green, 353, 354, 355, 357, 361,
363, 364, 367, 368, 369, 370,
371, 383, 384, 386, 387, 575,
584, 587, 630, 632.

«. Lynn, 736, 743, 748, 754, 755,
760.

.;. Perry, 752.
Marston v. Baldwin, 624.

V. Gale, 8, 15, 34, 35.
Martin v. Black, 173.

u. Holley, 844.

V. Hurlbut, 566.

v. Kemp, 56.

V. McCord, 839.

V. Mitchell, 663, 668, 735, 764, 766.

V. Mowlin, 439.

V. Pycroft, 862, 867.

V. Reid, 634.

V. Smith, 67.

I,. Watts, 56.

V. Wharton, 422.
Marvin v. Marvin, 487.

V. Wallis, 616, 620,, 630, 631, 634.
Mason v. Bridge, 843.

V. Decker, 663, 713, 764.

V. Hall, 175, 267.

TABLE OF CASES.

XXXVll

Mason v. Hill, 6.
ii. Treadway, 82.
V. Whitbeck Co., 589.

0. "Wilson, 234, 240.
Massell ti. Cooke, 894.
Massey v. Holland, 410.

V. Johnson, 414.
Masterman, ex parte, 444.
Masters v. Marriott, 157.
Mathers v. Carter, 199, 240.
Matson v. Wharam, 202, 203.
Matteson v. Schofield, 845.
Matthews t;. Lobenor, 100.

V. Milton, 155, 203.

V. Sawell, 96, 97, 102, 128.
Matthieson Refining Co. v. McMahon,

523, 640.
Mattice v. Allen, 523, 526.
Mattock V. Fry, 352, 384.
Mauck V. Melton, 406.
Maugliam v. Ridley, 447.
Maul V. Rider, 420.
Maule V. Bucknell, 261, 310.
Maunsell v. White, 328, 331.
Mavor v. Pyne, 468, 478, 491, 497, 644.
Maxwell t. Briggs, 624.

V. Brown, 557, 558, 571, 593, 614,
621, 641, 642, 643.

„. Haynes, 160, 198, 209, 277.

V. Montacute, 851.
May V. May, 801.

V. Nat. Bank of Malone, 246, 248.

D. Ward, 548, 714, 737, 744.
Maydwell v. Carroll, 415, 506.
Mayer v. Adrian, 654, 709.
Mayfield v. Wadsley, 186, 354, 377,
382, 383, 391, 392, 397, 424,
436.
Meach v. Stone, 875.
Mead v. Case, 480, 539, 542.

V. Keys, 195.

V. Merchants' Bank, 224.

V. Nuges, 214.

V. Parker, 659, 682, 684, 742, 750,
751.
Meador v. Meador, 443.
Meadows v. Meadows, 726, 781.
Means ;;. Carr, 723.

V. Williamson, 630, 631.
Mears v. Waples, 752.
Mease v. Wagner, 156, 161, 289, 304.
Mechanics' &c. Bank v. Farmers' &c.

Bank, 621.
Meehelen v. Wallace, 184, 186, 349,
353, 397, 398.

Medbury v. Watson, 306, 307.
Medina v. Poison, 48.
Medley, in re, 444, 445.
Medlin ti. Steele, 419.
Meech v. Ensign, 23^ 239.

V. Smith, 153, 175, 207.
Meincke v. Falk, 547, 549, 550, 551.
Mellor V. Watkins, 35, 42, 78.
Mercein v. Andrus, 259.
Merchant v. Chapman, 641.
Meredith v. Meigh, 584, 591, 615, 629,
641.

V. Naish, 433.

V. Short, 152, 208, 270.
Meres v. Ansell, 649.
Meriden Brittania Co. v. Zingsen, 234,
Merrill v. Englesby, 156, 220, 240.

0. Goodwin, 25.
Merrit v. Green, 235.

V. Clason, 725, 769.
Merton v. Dean, 714.
Masser v. Woodman, 512, 562.
Mestaer v. Gillespie, 862.
Metcalf V. Putnam, 409.
Meyer v. Evereth, 649.

V. Hartman, 209, 224.
Meynell i-. Surtees, 735, 736, 834, 835.
Micklethwait v. Nightingale, 806.
Middlebrook v. Bromley, 855.
Middlesex Co. ti. Osgood, 877.
Middleton v. Brewer, 305."
Mignan v. Parry, 3.3G.
Milcheson v. Hewson, 137.
Milcote V. Kile, 245.
Mildmay v. Hungerford, 871.
Miles V. Miles, 416.
Milks V. Rich, 298, 299, 300.
Millard v. Cooke, 550.

1. Harvey, 832, 835.

Miller v. Auburn &c. R. E. Co., 21,
35.
... Baker, 404.
V. Brown, 35.
V. Campbell, 844, 846.
u. Cook, 173.
i,. Cotton, 844, 875, 878.
V. Fitzgibbons, 543, 550.
V. Hower, 492, 826.
V. Long, 156, 174.
V. McGlann, 421.
V. Niehaus, 155, 204.
V. Roberts, 407, 410, 494.
V. State, 23, 506.
V. Stevens, 681.
V. Tobie, 428, 432, 839.

XXXVUl

TABLE OP CASES.

Miller v. Upton, 876.
Millin !,■. Fawdry, 28.
Mills V. Auriol, 104.

V. Brown, 290, 292, 295.

V. Hunt, 510, 511.

V. Kuykendall, 140.
Milnes v. Gery, 717, 843.
Mims V. Lockett, 839.
Minard v. Mead, 779.
Minet, ex parte, 175, 176.
Minns v. Morse, 414, 854.
Minturn v. Bayliss, 843, 846.
Miranville v. Silverthorne, 411.
Mitchell V. Bush, 351, 403.

V. Griffin, 160, 209, 254, 267.

V. Lapage, 795.

V. McLean, 639.

V. McNab, 432.
Mitchinson v. Hewson, 305.
Mixer v. Howarth, 534, 538, 547, 550,

551, 554.
Mizzell V. Burnett, 649, 765.
Moale V. Buchanan, 739.
Mobile & Girard E. Co. v. Jones, 298,

299.
Mobile &c. Ins. Co. v. McMillan, 186.
Mockett V. Ames, 180.
Moderwell v. MuUison, 423.
Moffat V. Green, 566.
Mollett V. Brayne, 94, 96, 98, 102, 106,
12T.

V. Robinson, 753.

u. "Wackerbarth, 678.
Monck V. Geekie, 56.
Money v. Darling, 26.

V. Jorden, 333.
Monro v. Taylor, 681, 687, 743, 750,

848.
Montacute v. Maxwell, 316, 318, 321,

322, 334, 337.
Montague v. Garrett, 494.

V. Hayes, 702.
Montal V. Lyons, 65.
Montefiori v. Montefiori, 332.
Montgomery v. Edwards, 874.
Montlock V. Buller, 778.
Moody V. Nichols, 420.

v. Smith, 296, 429.
Moore, in re, 453.

V. Bixby, 570, 577.

«. Campbell, 305, 743, 748, 749,
795.

V. Edwards, 857, 878.

V. Eox, 312, 314, 466, 468, 479,
485, 500.

Moore v. Higbee, 832.

V. Hart, 317.

V. Kerr, 418, 419.

V. Love, 574.

V. Moore, 800.

V. Mountcastle, 703.

V. Scriven, 832.

V. Small, 362, 427, 827, 846.

V. Stovall, 235.
Moorecrof t v. Dowding, -803.
Moorehouse v. Colvin, 331.

V. Crangle, 193, 194.
Mordecai v. Gadsden, 210.
Moreland v. Le Masters, 839.

V. Myall, 506.
Morgan v. Bergen, 796.

V. Elam, 92, 412, 4lS.

V. Griffith, 351, 423.

V. Holford, 680, 707.

V. Milman, 716, 831, 843.

V. Overman Silver Miu. Co., 407.

V. Pike, 766.

V. Smith, 100.

V. Sykes, 717.
Morin v. Murtz, 198, 666, 764, 839.
Morley v. Boothby, 175, 231.
Morphett v. Jones, 64, 65, 826, 827,

833, 835, 837, 841, 846.
Morrill v. Colehour, 422.

V. Mackman, 31.
Morris v. Glyn, 393.

V. Harris, 827.

0. Niles, 51.
Morrison v. Baker, 204, 290.

V. Chadwick, 118, 123.

V. Hogue, 234.

V. Pery, 836.

V. Surman, 772.

V. Tumour, 771, 772.
Morse v. Brackett, 752.

V. Chisholm, 559.

V. Copeland, 13, 20, 401.

V. Mass. Nat. Bank, 262.

u. Merest, 852.

V. National Bank, 231.
Morten v. Marshall, 192.
Mortimer v. Davies, 807.

V. Orchard, 829, 839, 845, 848.
Mortlock V. Buller, 778.
Morton v. Dean, 654, 705, 709, 720,
721, 739.

V. Tewart, 803.

V. Tibbetts, 558, 565, 584, 587,
588, 590, 591, 592, 593, 597,
603, 606, 621, 643.

TABLE OF CASES.

XXXIX

Moseley v. Taylor, 156, 195, 214.
Moses V. Norton, 172, 194, 216.
Moshier v. Kitchell, 169, 217.
Moss, ex parte, 443.

t;. Atkinson, 669.

V. Culrer, 416, 827.
Mott V. Hurd, 408.
Moulton V. Faught, 28, 36, 38.
Mountfort, ex parte, 442, 443.
Mountjoy's Case, 17.
Mount Olivet Cemetery v., Shubert,

161, 209, 211.
Mountstephen v. Lakeman, 156, 183,

213, 220.
Mowbrays. Cunningham, 202.
Moxey v. Bigwood, 870, 871.
Moye V. Tappan, 22.
Moystyn v. Fabrigas, 305.
Mozley v. Tinkler, 191, 668.
Muckey v. Howenstine, 554.
MuUaly v. Holden, 876.
Mullet V. Halfpenny, 332.
Mumford v. Gething, 681, 751.

V. Whitney, 21, 22, 30, 359, 369,
400.
Murama v. Mumma, 814.
Mundy v. Joliffe, 835, 836, 837, 839,
840, 841, 842, 848, 850.

V. Ross, 162.
Munsello v. Loree, 845.
Murdock v. Anderson, 684, 685.
Murless v. Franklin, 810, 815, 816.
Murphy v. Boese, 785, 786.

V. Merry, 162.

V. O'Sullivan, 467.

1-. Renkert, 234.
Murray v. Bridges, 124.

V. Cherrington, 54.

V. Gilbert, 371.

V. Jayne, 826.

V. Shaw, 97, 103, 104.
Murrell v. Milward, 85, 103, 118.
Muse V. Carr, 781.
Mushat V. Brevard, 424.
Musick V. Musick, 153.
Mussel V. Cook, 503.
Musselman v. Storer, 758.
Mussey v. Fessenden, 727.
Mutual Benefit Ins. Co. v. Brown,

45.
Myer v. Griffin, 216, 218.
Myers v. Forbes, 844, 845.

V. Morse, 151, 153, 874, 875.

V. Perigal, 393.

;;. Watson, 862.

N.

Nab V. Nab, 799, 803.
Nason v. Grant, 413.
Natehbolt v. Porter, 106.
Natchez v. Vandervelde, 407, 418.
Nat. Bank of Australasia v. Cherry,

442, 448.
Neal V. Bellamy, 222.

V. Viney, 184.
Neale v. Neale, 323, 828, 850.
Neary v. Bostwick, 216.
Negley v. Jeffers, 758.
Nelson v. Boynton, 155, 156, 173, 244,
264, 266.

V. Dubois, 220.

u. First Nat. Bank of Chicago, 231.

V. Forgey, 414.

V. Hardy, 155, 211, 219, 246, 290.

t. Nelson, 20, 351, 363.

V. Serle, 143.
Nesbitt V. Barry, 520.
Nesham v. Selby, 653, 718.
Nettleship, ex parte, 447, 451.
Nettleton v. Sickes, 13, 28, 351, 358,

361, 363, 382, 401.
Neville v. Wilkinson, 332.
New, in re, 444, 448.
New Brunswick Lumber Co. v. Kirk,

371.
N. Y. Central Ins. Co. u. Nat. Prot.

Ins. Co., 612.
Newbald v. Sadler, 26.
Newberry v. Wall, 656, 689, 788, 790,

796.
Newbury v. Armstrong, 176.
Newby v. Rogers, 677, 764.
Newcomb v. Rayner, 360, 377.
Newell V. Ingraham, 194, 195, 214.

V. Newell, 415, 506.

... Radford, 180, 690, 694, 750,
773.
Newport v. Spivey, 191.
Newton v. Eronson, 782.

V. Preston, 808.

V. Swazey, 839, 845, 854, 874.
Niagara Falls Ins. Co. i\ Greene, 469.
Nichol V. Redley, 457, 727, 729.
Nicholls V. Plume, 575, 584, 606, 625.
Nichols V. Allen, 01.

V. Cooper, 409.

V. Johnson, 655, 656, 684, 688, 689,
724.

V. Lyth, 421.

u. Weaver, 311, 312.

xl

TABLE OP CASES.

Nichols u. "Williams, 843.

Nicholson v. Bower, 561, 572, 614, 615.

V. Mulligan, 814.
Nickells v. Atherstone, 82, 93, 96, 103,

118, 120, 122, 126, 131.
Nixon V. Vanhise, 210.
Noakes v. Morej', 519.
Noble V. "Ward, 305, 743, 747, 754, 758.
Noel V. Hart, 230.
Nones v. Homer, 473, 485, 486.
Norman v. Phillips, 576, 603, 606, 614,

615, 641.
Norris v. Blair, 647, 678, 781.

V. Cooke, 787.

V. Graham, 156, 163, 194.

v. Jackson, 829, 839, 849.

V. Spencer, 207.

V. "Wilkinson, 447, 450.
North V. Forest, 395, 503.

V. Robinson, 198, 246.
Northam v. Bowden, 13.
Northen v. Carnegie, 805.
Northfleet v. Southall, 848.
Northrop v. Boone, 828.
Norton v. EUam, 147.

V, Gale, 843.

B. Huxley, 306.

V. Preston, 434.

V. Seymour, 769.

V. Simonds, 758.

B.Webb, 411.
Noyes v. Humphries, 186, 196, 211, 214,

217, 218, 266.
Nunn II. Fabian, 65, 837, 839, 849.
Nurse v. Lord Seymour, 867.
Nutting V. Dickinson, 407, 425, 652.

O.

Oakes, ex parte, 454.

V. Moore, 843.
Oakman v. Rogers, 648, 714.
Oakington v. Richey, 360, 640.
Oble V. Dittlesfield, 145.
O'Connor v. Spaight, 414.
Odell V. Montrose, 414.

V. Morin, 843.

V. Mulry, 285.
O'Donnell v. Lehman, 654, 663, 709,
71.3, 725, 738, 781.

V. Smith, 231.
OfEord V. Davies, 176, 191.
Ogbourne, in re, 463.
Ogden, in re, 444,

Ogden V. Rowe, 101.

Ogilvie V. Foljambe, 60, 653, 681, 682,

684, 703, 725, 730, 772, 776.
Ogle V. Earl Vane, 749, 758, 759, 761.
O'Hara v. O'Neill, 803.
O'Herlihy v. Hedges, 825.
Ohio V. Baum, 844.
Old Colony R. R. Co. v. Evans, 649,

661, 663, 765.
Oldershaw v. King, 175, 179.
Oldham w. Litchford, 852.
Oliphant v. Patterson, 208.
Oliver, in re, 452.

Olmstead v. Greenly, 152, 219, 228,
234, 254.

V. Niles, 348, 360, 368, 372.
Olyphant v. Baker, 620.
Omerod v. Hardman, 736, 868.
Onderdonk v. Lord, 411.
O'Neil V. Cram, 647.

V. Martin, 822.

V. N. Y. Mining Co., 560.
Ontario Bank v. Root, 876.
Orcutt V. Nelson, 641.
O'Reilly v. Thompson, 826.
Organ v. Stewart, 520, 526.
Ormond v. Anderson, 663.
Orne v. Cook, 717.
O'Rourke v. Perceval, 766.
Orr V. Hadley, 421.
Orrell v. Coppock, 195, 206, 209.
Orrett, ex parte, 453.
Orth V. Jennings, 412.
Osborne v. Endicott, 874.

u. Phelps, 688, 689.
Otis V. Hazeltine, 717.
Ott V. Garland, 435.
Ottenhouse v. Burleson, 839.
Outwater v. Dodge, 568, 609, 643.
Owen V. Field, 8, 9, 15, 19, 30, 36.

o. Legh, 373, 392.

V. Thomas, 669, 682, 684, 765.
Owens V. Lewis, 19, 362, 356, 359, 360,

361, 363.
Owings V. Baldwin, 827, 846.
Oxford V. Provan, 860.

Pace V. Marsh, 179.

Packard v. Dunsmore, 584, 639.

t. Richardson, 61.
Packet Co. v. Sickles, 467, 482.
Page V. Ellsworth, 104.

TABLE OF CASES.

xli

Page V. Leapingwell, 805, 806.

V. Monks, 186, 425.
Pain u. Coombs, 696, 827, 828, 837,
849, 855.

V. Smith, 450.
Paine v. Fulton, 621, 526.
Palbrook v. Lawes, 398, 428.
Palmer v. Anderson, 421.

V. Blain, 293.

V. Edwards, 74.

V. Haggard, 204.

V. Marquetti R. R. Co., 60, 491.
Palmerton v. Huxford, 250.
Paris V. Strong, 463, 497.
Parke v. Leewright, 659, 824.
Parker v. Barker, 438.

V. Benton, 239, 282.

V. Bodley, 647, 714.

V. Heaton, 195, 214, 824.

V. Kane, 91, 412.

V. Eedfield, 26.

V. Schenck, 542.

V. Siple, 469.

V. Smith, 766, 771, 825, 842, 843,
856.

V. Staniland, 353, 355, 360, 375,
376, 379, 383, 386.

V. Steward, 519.

V. Stones, 799.

V. Tainter, 429, 431, 656, 714.

K. Taswell, 63, 687, 844, 847, 866.

V. Walker, 54.

V. Wallis, 575, 577, 582, 584, 585,
606.

V. "Wells, 824.

V. Wise, 286.
Parkhurst v. Van Cortlandt, 58, 647,

659, 839, 845, 848.
Parkins v. Moravia, 286.
Parks V. Francis, 465, 500.

u. Hazlerig, 44.
Parmenter v. Webber, 74, 75.
Parris v. Allen, 117.
Parrish v. Koons, 663.
Parsons v. Loucks, 542, 545, 550.

V. Smith, 351, 358, 360, 363.
V. Walter, 203, 206.
Parteriche v. Powlet, 736, 862.
Parton v. Crafts, 649, 726, 790, 793, 796.
Pasley v. Freeman, 306.
Passaic Manuf. Co. u, HofEman, 530,

544, 545.
Patchin v. Swift, 61.
Patrick v. Ashcroft, 874.
V. Colerick, 23, 27, 43.

Patrick v. Horton, 844.
Patridge v. Wilsey, 550.
Patten v. Gurney, 306.
Patterson v. Cunningham, 189, 348.

V. Murphy, 799.

V. Stoddard, 48.

V. Ware, 493, 854, 874.

c Yeaton, 413.
Patterson's Appeal, 359, 362, 372.
Patton V. McClure, 434, 624.
Paul V. Gunn, 424, 428.
Payne v. Baldwin, 216, 219, 254.
• V. Cave, 728, 782.

V. Johnson, 305.

V. Mortimer, 331.

V. Wilson, 175, 243.
Peabody v. Harvey, 174, 194, 209, 266,
296.

V. Speyers, 60, 395, 654, 673, 709.
Peacher's Case, 808.
Peacock v. Harris, 425.
Pearce v. Watts, 846, 847.
Pearse, ex parte, 454.

in re, 444, 445.

and Prothero, ex parte, 450.
Pearson v. Dawson, 027.

V. Henry, 137, 138, 139, 305.
Peate v. Dicken, 186.
Peck V. Thompson, 156, 220, 297.
Peckham v. Barber, 828.

w. Faria, 203, 206.

V. Taylor, 799.
Peek V. N. Staf. R. Co., 649, 709, 734,

739, 741.
Peltier v. Collins, 656, 685, 796.
Pember v. Mathers, 863.
Pembroke v. Thorpe, 823.
Tenfold v. Bouch, 806.
Penhallow v. Dwight, 377.
Pennell v. Pentz, 216, 219.
Penniman v. Hartshorn, 661, 666, 764,

772.
Pennington v. Tanniere, 48, 56.
Pennock v. Dialogue, 312.
Penruddock v. Newman, 82.
Penton v. Robert, 404.
Pentreguinea Coal Co., in re, 494, 495.
People V. Beebe, 395.

V. Haynes, 558, 643.

V. May, 308.

V. Rector, 308.

V. Rickert, 48, 51, 58, 110.

V. Utlca Ins. Co., 308.
People's Bank v. Gridley, 637.
Percival v. Blake, 605.

xlii

TABLE 01" CASES.

Perkins v. Clay, 467, 494, 495, 498.

V. Goodman, 161.

V. Hitchcock, 247.

V. Littlefleld, 198, 201.

V. Perkins, 83.

o. Pitts, 417.

t>. Spring, 206, 290, 295.
Perrine v. Leachman, 349, 876.
Perry, ex parte, 452.

V. Fitzhowe, 7, 8.

V. Swasey, 232.
Perryn v. Allen, 117.
Personette v. Pryme, 422.
Persse v. Persse, 850.
Fetch V. Tutin, 353, 388.
Peter v. Compton, 314, 468, 470, 473,
482, 495, 497.

V. Kendall, 101, 107, 134.
Peters v. Barnes, 82, 83.

V. Newkirk, 843.

V. Westborough, 314, 465, 466,
468, 476, 481, 483.
Pettingill v. Merrill, 554.
Pettit V. Braden, 169, 204, 205, 217.
Petty-!;. Evans, 27.
PfeifCer v. Adler, 185, 278, 279.
Pharmaceutical Society v. London &c.

Assoc, 308.
Phelps V. Cutter, 602.

0. Hendrickson, 507.

o. Seely, 749, 762.
Phene' v. Popplewell, 98, 106.
Philbrook v. Belknap, 433.
Philhmore v. Barry, 655, 771, 773, 779.
Phillips V. Bateman, 176.

V. BistoUi, 572, 578, 581, 587, 621.

u. Edwards, 823, 834.

V. Gray, 161, 209, 211.

o. Hummell, 631.

V. Leavitt, 438.

V. Ocmulgee Mills, 523, 559, 578,
640, 704.

V. Phillips, 6.

V. Thompson, 402, 846.
Philpot V. Briant, 138, 173.
Phipps v. Child, 856, 870.

V. McFarlane, 480, 550.

V. Sculthorpe, 96, 102, 128.
Picard v. Sears, 97, 333.
Pickering v. Appleby, 394.
Pier V. Carr, 100.

Pierce v. Corf, 654, 709, 726, 739, 741,
787.

V. Goddard, 440.

u. Woodard, 186.

Pierrepont v. Barnard, 353, 359, 360,401 .
Pierson v. Cincin. &c. Canal Co., 16.
Piggott V. Stratton, 77, 78, 333.
Pike V. Balch, 781.

V. Brown, 183, 198, 235, 277, 350,
437.

c. Eyre, 78.

V. Pay, 681, 750.

V. Irvin, 231.
Pillans V. Van Mierop, 173, 175, 231.
Pilling V. Armitage, 845.
Pinchon v. Shilcott, 425.
Pinckney v. Hagadorn, 722.
Pindall v. Trevor, 826.
Pinkham v. Mattox, 559, 575, 621, 624.
Pinnell's Case, 395, 515.
Pinney v. Pinney, 494.
Piper V. Buckner, 418.
Pipkin V. James, 684, 686.
Piser V. Stearns, 624.
Pistor V. Cater, 50, 67.
Pitcairn v. Ogbourne, 321, 864.
Pitcher v. Hennessey, 657, 714.

V. Wilson, 463.
Pitkin V. Long Island R. Co., 475, 489.

w.Noyes, 373, 382, 388, 385, 530, 541.
Pitman v. Poor, 28, .30, 38.

V. Woodbury, 766.
Pitt V. Bridgewater, 145, 146.
Pitts V. Beckett, 737, 746, 788.
Pleasant v. Benson, 77.
Pleasants v. Pendleton, 637.
Plevins v. Downing, 745, 749, 758, 759,

761.
Plimpton V. Curtiss, 484, 497.
Plummer v. Breckman, 432.

V. Lyman, 260, 276.
Poland V. O'Connor, 827.
Pole V. Pole, 814, 816.
Polhemrs v. Heilman, 752.
Polhemus v. Hodson, 419.
Pollard, ex parte, 446.

V. Barnes, 6.
Pollock V. Stacy, 74, 75.
Poole V. Odling, 812.
Pooley, ex pai-te, 445.
Poor V. Oakman, 30, 359, 360, 361.
Poorman v. Kilgore, 832.
Pope V. Andrews, 191.
Pople V. Garland, 54.
Porry v. Allen, 121.
Porter v. Gordon, 51.

V. Hill, 417, 419.

u. Langhorn, 155, 176, 211.

V. Perkins, 419.

TABLE OF CASES.

xliii

Potkin's Case, 56.
Pott, ex parte, 454.
Potter V. Brown, 292.

V. Duffield, 088, 690, 693, 725,

V. Jacobs, 645, 822, 827.

V. Potter, 850.
Potts 17. Whitehead, 843.
Poulter V. Killingbeck, 354, 436.
Poultney v. Holmes, 74, 348, 397.

V. Ross, 217, 218.
Powell, ex parte, 456.

V. Dillon, 730.

V. Divelt, 677.

V. Graham, 148.

V. Jessop, 393, 503.

V. Lovegrove, 828.

17. Rich, 360, 369.

V. Smith, 872.

V. Thomas, 830.
Powers V. Fowler, 179, 182, 708, 736.
Powys V. Mansfield, 811.
Poyntz !-. Fortune, 63.
Prankard v. Prankard, 806.
Prater v. Miller, 844.
Prather v. Vineyard, 231, 240.
Pratt V. Chase, 574.

V. Humphrey ,138,173,174,201,297.

V. Ogden, 8.
Pray v. Clark, 845.

V. Mitchell, 395.
Preble v. Baldwin, 198, 407, 425.
Preece k. Corrie, 75.
Prentice v. Wilkinson, 100, 151, 156,

211, 233, 304.
Prentiss v. Warne, 100.
Presbyterian Soc. of Greene Farm v.

Staples, 160, 209.
Prescott V. Locke, 529, 530, 541, 557,

571.
Preston v. Young, 278.
Price V. Assheton, 846.

V. Durin, 721, 723.

17. Dyer, 747, 859, 868.

V. Griffiths, 61, 687, 709, 739, 847.

</. Jones, 624.

17. Lea, 510, 600, 601.

V. Ley, 862.

,;. Leyburn, 350, 425.

V. Richardson, 181.

V. Salusbury, 833.

V. Trusdale, 233.

17. Weaver, 876.
Prime v. Koehler, 262.
Primer v. Donald, 402.
Prince v. Case, 15, 22, 25, 30, 40.

Prince v. Koehler, 235.

Prindle v. Anderson, 51.

Pringle v. Sturgeon, 419.

Printup V. Mitchell, 846.

Pritchard v. Dodd, 2(3.

Probasco v. Johnson, 443.

Proctor V. Jones, 597, 598, 633.

Prole V. Soady, 331.

Propert r. Parker, 773.

Proprietors of Upper Locks v. Abbott,

194, 206.
Proprietors &c. v. Prescott, 421.
Prosser v. Allen, 216.
Providence Christ. Union v. Elliott,

437.
Pryee v. Bury, 444, 446.
Puckett V. Bates, 194.

V. Read, 638.
Pugh 17. Chesseldine, 781.

17. Good, 492, 826.
Pugsley V. Aiken, 51.
Pulsifer v. Waterman, 822.
Purcell !7. Miner, 824.
Purinton v. N. 111. R. R. Co., 845, 846.
Purner v. Piercy, 351, 354, 360, 362,

363, 383, 384, 386, 387, 388.
Putman v. Haggard, 61.
Putnam v. Farnham, 243, 244, 299.

V. Lamphier, 624.

V. Tilleston, 641.

V. Tuttle, 358.
Putney v. Day, 352, .360, 368, 372.
Puttman v. Haltey, 845.
Pye, ex parte, 803.

in re, 453.
Pyke V. Williams, 826.
Pym 17. Blackburn, 852, 858.

V. Campbell, 746.

Q.

Queen v. Merriam, 620.
Quin V. Hanford, 204, 209, 231, 309.
Quintard v. Bacon, 584, 607, 614, 641.
17. De Wolf, 214, 223.

R.

Rabberman v. Wisekamp, 209, 302.
Raberg v. Peyton, 231.
Rabsuhl v. Lack, 493, 874.
Raffensburger i\ CuUison, 95, 758.
Raffles i7. Wichelhaus, 749.

xliv

TABLE OP CASES.

Ragland v. "Wynn, 153, 297.
R. R. Co. V. McLaughlin, 2L
Railway Co. v. Winter, 867.
Rainbolt v. East, 314.
Rains w. Story, 217.
Raikes v. Todd, 182.
Rake v. Pope, 494.
Ramsbottom v. Gosden, 860, 867.
Ramsden v. Dyson, 8.33, 834, 840.
Rand v. Mather, 151, 186, 186, 187, 221,

223.
Randall v. Howard, 876.

V. Morgan, 328, 334, 337.

0. Rich, 95, 97, 100.

V. Turner, 498, 499.
Rankin v. Say, 65.

V. Simpson, 824, 846. •
Rann v. Hughes, 138, 173, 858, 874.
Rappalye v. Adee, 576, 597, 630.

V. Mackie, 566, 568.
Raritan &e. Co. u. Veghte, 16.
Ratcliffe i'. Barnard, 455, 456.
Rathbun v. Ratlibun, 621.
Raubitschek v. Blank, 417.
Rawdon v. Dodge, 414.
Rawlings v. Turner, 45.

u. Walker, 115.
Rayner v. Grote, 602.
Raynor v. Timerson, 421.

V. Wilson, 92, 412.
Read v. Ladd, 155, 194, 203, 262.

V. Lamb, 491, 652, 875.

V. Nash, 152, 220, 272, 273, 274,
289.

V. Ridotit, 96.
Reade v. Livingston, 320, 337.
Reader v. Ifingham, 198, 202, 287, 288,
291.

V. Sayne, 58.
Redding v. Wilkes, 316, 322, 823.
Reddington v. Reddington, 814, 815.
Redhead v. Cator, 700.
Redpath v. Roberts, 96, 107.
Reech v. Kennegal, 137, 141, 146, 852.
Reed v. Evans, 61.

V. Earr, 421.

V. Holcombe, 175, 198, 235, 264,
292.

V. McGrew, 411,

V. Reed, 826.

V. Upton, 624.
Rees V. Williams, 132.
Reese v. Reese, 844, 845, 846.
Reeve v. Bird, 96, 98, 102, 127.
Reeves v. Harris, 624.

Reg. V. Lord, 485.

;,. Morrish, 14.
Reid V. Kenworthy, 648.
Reinbolt v. East, 186.
Reinheimer v. Carter, 495.
Remick v. Sandford, 557, 570, 575, 580,
593, 596, 609, 663, 737, 738, 744.
Remington v. Palmer, 425.
Rennick v. Kearn, 15, 400.
Reuss V. Picksley, 60, 652, 664, 666,

734, 765.
Reuteh v. Long, 537, 550.
Rex V. Banbury, 102, 126.

V. Chawton, 56.

V. CoUett, 47.

V. Eilloughby, 49.

V. Geddington, 9.

V. Hagworthingham, 9.

V. Herndon-on-the-Hill, 9, 22, 28.

I'. Jobling, 47.

0. Longnor, 45.

V. Portington, 802.

V. Standon, 9, 30.

c. Stow Bardolph, 128.

V. Warblington, 9.
Raynaut v. Porter, 49.
Reynolds v. Dunkirk &e. R. R. Co.,662.

V. Hewitt, 416.

V. Johnstone, 826.

V. Prosser, 145.

V. Waring, 846.
Rhea v. Sheward, 27.
Rhine v. Robinson, 420.
Rhoades v. Castner, 647, 704, 744, 764.
Rhodes v. Prick, 420, 826.

u. Leeds, 156, 211, 215, 219.

V. McKean, 165.

V. Otis, 8.

V. Rhodes, 469, 825, 848.

V. Starr, 189, 433, 765.

V. Thwaites, 598.
Rice V. Barry, 160, 195, 208.

c. Carter, 199.

■-. Manley, 159.

V. Peet, 189.

u. Rawlings, 778.

V. Roberts, 408, 411.
Rich V. Bolton, 47, 48, 52, 53.

V. Jackson, 858, 866.

V. Zeilsdorf, 358.
Richard v. DeWolf, 156.
Richards v. Allen, 427, 432.

V. Borrett, 443.

V. Porter, 701, 702, 710, 711, 712,
732, 739, 741.

TABLE OF CASES.

xlv

Richards v. Richards, 413, 414, 415,
876.

V. Sims, 438, 439.
Richardson, ex parte, 444.

in re, 444.

V. Anthony, 23, 27.

V. Cooper, 758.

I'. Dunn, 605.

V. Eyton, 846.

V. Gifford, 48, 50, 66, 68.

V. Jones, 459.

V. Langridge, 47, 49, 52, 53.

V. Pierce, 466, 467, 469, 470, 484.

V. Richardson, 27, 162.

V. Rohbins, 154, 262.

V. Savage, 56.

V. Smith, 843.

V. Squires, 559.

V. Williams, 248, 276.
Richman i'. Baldwin, 419.
Richmond i: Poote, 827, 832, 833.
Ricliter v. Irwin, 408.
Rickard v. Moore, 592.
Rickards v. Cunningham, 15, 878.
Ricker v. Kelly, 15, 22, 26, 28, 35, 36,

400.
Riddle v. Backus, 466, 469, 483.

V. Brown, 411.

</. Emerson, 798.

V. Varnum, 566.
Rideout v. Bristow, 147.
Rider v. Kelley, 571.

V. Kidder, 806, 807, 810.
Ridge, in re, 452.
Ridgeley v. Stillwell, 51.
Ridgway v. Bowman, 657, 714.

V. Horton, 697.

V. Ingram, 654, 704, 709, 720, 721,
739, 861.

V. "Wharton, 649, 653, 680, 704,
705, 709, 719, 730, 733, 742,
857.
Ridley v. Ridley, 468, 469.
Rieder v. Machin, 639.
Riggs V. Bell, 48, 50, 56.

V. Magruder, .395, 503.
Right V. Beard, 48.

V. Cuthcll, 95, 129.
Riley v'. Famsworth, 720, 724, 738,
843.

V. Riley, 314.

V. Williams, 406, 656, 714.
Ripon V. Norton, 143.
Rishton v. Whatmore, 654, 709, 739,
741.

Roach V. Damson, 27.
Roberts i\ Croft, 455, 456.

t'. Roberts, 799.

V. Robertson, 832.
■ V. Rockbottom Co., 463, 467, 468,
483, 484, 498.

c. Rose, 22,

V. Tucker, 465, 485, 494, 648, 714.

7.. Tunnell, 464.

V. Vaughan, 542, 543.
Robinson v. Ainge, 393.

V. Garth, 726, 729.

f. Gilman, 198, 229, 245.

r. Lane, 156, 214.

V. Page, 868.

c. Tipton, 876.

V. Uhl, 15.
Robson V. Collins, 867.

f. Harwell, 184.

II. Jones, 26.
Roche V. Chaplin, 156, 289, 304.
Rochester v. Whitehouse, 843.
Rockford &c. R. R. Co. v. Shunick,

44.
Rockwell V. Hobby, 442,443.
Rodgers v. Jones, 558, 570, 608, 609,
010, 012, 621.

V. Phillips, 570, 577, 615, 641.
Rodwell V. Phillips, 352, 353, 357, 360,

376, 383, 385, 387, 388.
Roe V. Abp. of York, 89, 120, 123, 124.

V. Conway, 106.

t,. Haugh, 141, 286.

V. Lewis, 47, 52, 53.
Roffey V. Henderson, 31.
Rogers u. Brightman, 466, 479, 480,
497.

V. Collier, 154.

... Gould, 609.

V. Hadley, 746, 750.

o. Harvey, 396.

V. Hull Dock Co., 65.

V. Rogers, 195, 211, 412, 805.

V. Saunders, 663, 765.

(>. Waters, 209.
Roget i: Merritt, 661, 663.
RoUason v. Leon, 62, 63.
RoUison V. Hope, 161, 209, 211.
Rondeau v. Wyatt, 527, 529, 532, 533,

542.
Root V. Lord, 624.
Roots V. Lord Dormer, 512.
Roper V. Radcliffe, 805.
Ropes V. Lane, 640.
Rose V. Cunynghame, 669, 682.

xlvi

TABLE OF CASES.

Bose V. Johnson, 162.
V. O'Linu, 184.
V. "Watson, 826, 862.
Kosenpaugh v. Vredenburgh, 428,

429.
Rosenthal v. Preeburger, 835.
Eosa V. Baker, 686, 846.

V. Welch, 506, 557, 602.
Rossiter v. Miller, 653, 692, 714, 725,

748, 781.
Eothery v. Curry, 273.
Eounnel v, Wingate, 601.
Eoutledge v. Grant, 731, 735.
Rowan v. Lytle, 83, 110.
Rowe V. Osborne, 790, 794.

V. Leeds, 857, 875.

V. Whittier, 151, 209, 277, 297.
Rowland v. Bull, 230.

V. Rourke, 298
Eowton V. Rowton, 839, 846.
Rucker, in re, 451.

V. Abell, 427.

V Cammeyer, 778, 782, 788.
Ruckle V. Barbour, 457, 461.
Ruffey V. Henderson, 30, 42.
Eugg V. Minett, 612.
Ruggles V. Gatton, 157, 216, 218.

v. Lawson, 413.

V. Lesure, 21, 26.
Ruhllng V. Hackett, 172, 240.
Rummens v. Robbins, 731, 855.
Eumsey v. LoreU, 306.
Runde v. Runde, 160, 196, 198, 245.
Rusker v. Abell, 435.
Russel V. Haddock, 145.

V. Russel, 441, 442.
Russell V. Babcock, 160, 266, 276.

V. Carrington, 568.

V. Clarke, 306.

.. Hubbard, 16, 28, 35, 36.

V. Minor, 621.

V. Moseley, 175.

V. NicoU, 567.

V. Richards, 360.

V. Rowland, 413.

„. Slade, 466, 468, 472, 479, 485,
486, 488, 490.
Russell's Policy Trusts, in re, 445.
Rust II. Bennett, 308.
Rutan V. Hinchman, 429, 506.
Rutenberg v. Main, 778, 782.
Ryall V. Ryall, 803, 808.
Ryan, in re, 843.

V. Hall, 663, 738, 744.

V. Salt, 762.

Ryan v. Tomlinson, 424.

V. Wilson, 822.
Ryass v. Wheeler, 418.
Eyley v. Hicks, 45, 46.

S.

Sackett v. Spencer, 827.
Sadler v. Hawkes, 173.
Safford, ex paHe, 631.
V. Ames, 362.
b. Annis, 383, 386.
V. McDonough, 557, 570, 609, 612,
621, 630, 631.
Sage V. McGuire, 846.

V. Wilcox, 61, 173, 183, 436.
Sainsbury v. Matthews, 354, 356, 356,

375, 377, 383, 386.
St. John V. Griffith, 722.
St. Vincent Orph. Asy. v. Troy, 10.
Sale V. Darrah, 559, 560, 779.

V. Lambert, 688, 690, 692, 725.
Sales V. Hickman, 844.
Salmon Falls Mfg Co. v. Goddard,
680, 689, 706, 737, 739, 772,
774, 779.
Salter v. WooUams, 11, 629.
Sampson v. Hobart, 224.

0. Swift, 220.
Sams V. Tripp, 661, 663.
Samuda v. Lawford, 847.
Sanborn v. Chamberlin, 650, 703, 717,
876.
V. Flagler, 61, 666, 734, 771, 776.
„. Merrill, 160, 220, 295.
V. Nockin, 860.
Sanders v. Gillespie, 292.
Sanderson v. Graves, 186,425, 747, 754.
Sands v. Soden, 329.

V. Thompson, 414, 826.
Sansum v. Butter, 321.
Sargent v. Metcalf, 624.
Sari V. Bourdillon, 646, 688, 690, 693,

695, 719, 739, 773.
Satterthwaite v. Ensley, 337.
Saunders v. Cramer, 316, 328.
V. Kastenbine, 476, 497.
... Topp, 560, 575, 598, 607.
0. Wakefield, 173, 176, 496, 653.
Saunderson v. Cockermouth Railway
Co., 846.
V. Jackson, 655, 656, 671, 700, 703,
716, 740, 743, 770, 773, 774,
775, 776.

TABLE OF CASES.

xlvii

Savage v. Canning, 897, 425.

V. Carroll, 835, 830, 845, 848.

V. Foster, 839.
Savile v. ICinnaird, 731.
Sawyer v. Nichols, 576.

V. Ware, 506.
Say V. Stoddard, 55.
Sayre v. Hughes, 811, 812.
Scales V. Maude, 799.
Scanlan v. Geddes, 659, 681, 682, 684,

742, 750, 751.
Scarlett v. Stein, 654, 709.
Scarritt w. St. John's M. E. Church, 751.
Scawin v. Scawin, 815.
Schafer v. Farmers' Bank, 654, 709.
Schaffer v. Fithian, 412.
Scheibler, in re, 446.
Sehiefflin v. Carpenter, 82, 97, 110, 124,

492.
Schneider v. Norris, 770, 771, 773, 775,
776.

V. Westerman, 554.
Schoenfield v. Brown, 284.
Scholes V. Hampson, 212.
School District No. 3 v. McLoon, 839.
Schriver v. Eckenrode, 408.
Schultz V. Bradley, 758.
Schutt V. Large, 92, 412.
Schuyler v. Leggett, 48, 51, 56, 58, 110.

V. Smith, 58.
Scoggini;.Blackwell,466,485,486,489.

V. Slater, 349, 351, 402, 403.
Scoggins V. Heard, 466.
Seorell v. Boxall, 353, 374, 385, 388.
Scott V. Anderson, 633.

V. Bush, 432.

V. Eastern Co. Eailway Co., 528,
598, 600, 602.

V. McFarlaud, 414.

V. Stevens, 145.

V. Thomas, 154, 260, 267.

V. White, 155, 260.
Scotten V. Brown, 348.
Scroope v. Scroope, 814.
Scudder v. Wade, 217, 218.
Sculthorp V. Burgess, 809.
Seago V. Deane, 399.
Seagood v. Meale, 317, 670, 687, 691,

715, 825, 826.
Seaman v. Asehermann, 64.

V. Hasbrouck, 160, 172, 209.

V. Price, 207, 220, 350, 425.

V. Whitney, 240.
Searight v. Payne, 209, 263.
Searle v. Keeves, 629.

Sears v. Brink, 156.

r. Smith, 5, 45.
Seecrist i'. Twitty, 729.
Seegoe v. Perley, 371.
Seidensparger v. Spear, 15.
Selby V. Selby, 768, 771.
Selden v. Del. & Hud. Can. Co., 15, 19,

22, 35.
Self V. Cordell, 494, 498.
Sellack v. Harris, 852.
Sellick V. Adams, 421.
Semmes v. Worthington, 824, 845.
Semple v. Pink, 14G, 179.
Senior v. Butt, 305.
Serle v. Waterworth, 143, 147.
Seton V. Slade, 663, 728, 764, 765.
Sewall V. Fitch, 542.

V. Quincy, 765.
Seward v. Mitchell, 408, 409.
Seymour v. Bennett, 428, 429.

V. Davis, 510, 543, 553.
Shadwell v. Shadwell, 316.
Shales v. Shales, 815.
Shanks y. Klien, 423.
Shannon v. Bradstroet, 687, 751.
Shardland v. Cotterill, 704, 725.
Sharman v. Brandt, 779, 783.
Sharp V. Emmet, 230.

i,. Rhiel, 473, 488.
Shaver v. Adams, 195, 214.
Shaw V. Finney, 647, 788.

V. Foster, 447.

V. Jakeman, 321, 337.

V. Nudd, 782.

c. Shaw, 431, 433.

V. Woodcock, 304, 424.
Sheffield Canal Co. v. Sheffield & Eoth-

erham E. Co., 735.
Union Banking Co, ex parte, 453.
Shelbume v. Inchiquin, 866.
Shejhame v. Ashbaugh, 826.
Shelley, in re, 445.
Shelton v. Livius, 657, 658.
Shepard v. Rinks, 418.
Shepheard v. Walker, 836, 837.
Shepherd v. Bevin, 839, 846.

V. Hodsman, 46.

V. Pressey, 562, 570, 576, 593, 597,
614, 642.

V. Shepherd, 827, 846.

V. Titley, 449.
Sherburne v. Fuller, 348, 413, 428, 481.

V. Shaw, 655, 656, 688.
Sherman v. Champ. Trans. Co., 466,
469, 479.

xlviii

TABLE OF CASES.

Sherry v. Picken, 302, 386.
Shied y. Stamps, 656, 678, 724.
Shields v. Middleton, 209, 231.
Shilliber v. Jarvis, 826, 828.
Shindler v. Houston, 570, 571, 577,

621, 632.
Shipley v. Patton, 471, 473.
Shippey v. Derrison, 650, 655, 768.
Shireman v. Jackson, 624.
Shirley v. Ayres, 412.

V. Shirley, 666, 764.
Shitz V. DiefEenbach, 443.
Shoemaker v. King, 195, 211, 214.
Shooftstall V. Adams, 656.
Shook V. Vanmater, 229, 292.
Short V. Spackman, 792, 796.

V. Staats, 311.

V. Woodward, 350, 401.
Shortrede v. Cheek, 178, 179, 181, 681,

751.
Shotwell V. Sedam, 422.
Shreve v. Grimes, 427, 428.
Shropshire v. Brown, 846.
Shultze V. Coon, 649.
Slmrtleff v. Willard, 637.
Shute V. Dorr, 427, 429, 474.
Sian V. Pigott, 259.
Sidmouth v. Sidmouth, 807, 815.
Sidney v. Stevenson, 443.
Sidwell V. Evans, 243.
Sievewright v. Archibald, 648, 649,

750, 789, 790, 792, 793, 794.
Sigerson v. Barker, 638.
Silsbee v. Ingalls, 140.
Silsby V. Allen, 51, 53.

V. Trotter, 17, 30.
Simmonds v. Cottin, 458, 461.

^. Humble, 575, 584, 626.
Simmons v. Hill, 839.

v. Simmons, 323, 349, 399.

V. Spruill, 684.

V. Swift, 377, 563.
Simms v. Killian, 413, 415.
Simon v. Motivos or Metivier, 727,

728, 788, 789.
Simouds v. Fisher, 574.
Simons v. Steele, 156, 705.
Simpkin u. Ashhurst, 50.
Simpkins v. Rogers, 15.
Simpson v. Breckenridge, 685.

V. Crumdick, 575, 593, 596.

V. Hall, 304.

V. Nance, 241, 292.

V. Penton, 212, 216, 218.
Sims V. Hutchins, 414, 432, 433.

Sims V. McEwen, 429.
Simson v. Brown, 236.
Sinclair v. Bradly, 223.

V. Richardson, 155, 207, 216.
Singstack v. Harding, 726.
Sites V. Keller, 824.
Skelton v. Brewster, 234.

V. Cole, 691, 692, 694, 705, 708,
742, 768.
Sketehley, in re, 445.
Skett V. Whitmore, 798.
Skidmore v. Bradford, 331, 814.
Skinner v. Conant, 155, 164, 204.

V. McDowall, 713, 844, 857.
Slack V. Sharp, 134.
Slater v. Smith, 659, 682, 684.

685, 750, 765.
Slingerland v. Morse, 154, 208, 259, 269.
Sloan Saw Mill &c. Co. v. Guttshall,

602, 631.
Slocum V. Branch, 104.

V. Seymour, 352, 358, 369.
Slone V. Whiting, 114.
Small V. Owings, 875.

V. Quincy, 658, 663, 738, 744.

V. Schaeffer, 175, 261, 267.
Smalley v. Greene, 466, 467, 470.
Smart v. Harding, 398, 411, 412, 425.

V. Jones, 397, 400.

V. Sandars, 14.
Smith, ex parte, 444, 448, 453, 454.

V. American Institute, 7. '

u. Arnold, 457, 400, 655, 678, 680,
723, 729, 739, 781, 783.

V. Baker, 806.

o. Bennett, 6.

V. Benson, 360.

V. Bradley, 482.

V. Bryan, 363, 368, 383, 386, 403.

V. Burnham, 413, 415.

V. Conlon, 485, 487.

V. Coustant, 447.

V. Cramer, 290.

V. Crandall, 65.

V. Dallas, 656.

V. Devlin, 83.

V. Easton, 267.

V. Eah, 162, 877.

V. Finch, 173, 175.

V. Goulding, 349, 400.

V. Gowdy, 734, 745.

V. Green, 337.

V. Houston, 48.

V. Hudson, 572, 603, 606,607,615,
616, 641.

TABLE OF CASES.

xlix

Smith V. Hyde, 178, 216.

V. Jenks, 440.

V. Jones, 648, 656, 699, V04, 726.

V. Kenny, 185.

V. Lambs, 412.

V. Lovell, 106, 134, 135.

V. Male, 60.

V. Mapleback, 73, 74, 76, 81, 82,
122, 124.

V. Mason, 609.

1 . Matthews, 802, 803.

V. Milliken, 573.

V. Miner, 104.

a. Montgomery, 205.

V. Neale, 469, 495, 667, 733, 734.

V. Nevins, 97, 104.

I. N. Y. Cent. K. K. Co., 359,369,
539, 544.

( . Pendergast, 97.

V. Price, 404.

r. Rogers, 174, 297.

V. Roots, 578.

r. Rudhall, 212.

v. Sayward, 198, 235, 260, 292.

... Scott, 22.

c. Smith, 399, 428, 764, 824, 832.

V. Stephens, 162.

c. Surman, 354, 355, 356, 364, 365,
366, 374, 377, 383, 534, 540,
588, 603, 619, 621, 653, 710,
712, 732, 741.

V. Tarleton, 423.

V. Tombs, 398.

(-•. Turner, 836.

V. Ward, 752, 815.

V. Watson, 669.

V. Westall, 468, 469, 496.

V. Wheeler, 97, 98.
Smith's Leading Case, 50.
Smithwick v. Shepherd, 138.
Snead v. Green, 855.
Sneed v. Bradley, 158, 854.
Snelgrow v. Bailey, 441.
Snelling v. Hall, 752.

V. Lord Huntingfield, 472, 474, 488.

V. Thomas, 859, 868.
Snow V. Warner, 609, 614, 615, 641.
Snowden v. Wilson, 8, 15, 19.
Snyder v. Middleton, 100.
Soaraes v. Spencer, 779.
Soar V. Foster, 807, 810, 811.
Soggins V. Heard, 479, 485.
Soles V. Hickman, 647, 678, 714.
Somerby v. Buntin, 395, 467, 483, 503.
Somersets. Coal Co. n. Harcourt, 835.

Soprani < . Skurro, 668.
Souch V. Strawbridjjc, 425, 429, 466,
467, 408, 473, 477, 483, 492,
495, 668.
Soule V. Albce, 196, 198, 295.
South V. Toomey, 1G2.
Southern Life Ins. Co. v. Cole, 396,

844.
Southwell V. Brcezeley, 498.
Southworth v. Sebring, 638.
Spadam v. Reed, 196.
Spangler v. Danforth, 685.
Spann v. Baltzell, 175, 267.
Spark V. Heslop, 297.
Sparling v. Parker, 393.
Spaulding v. Andrews, 231.
Spear v. Orendorf, 836, 837.
Spencer v. Cone, 548, 551.

u. Hale, 558, 609, 615, 624, 643.

V. Halstead, 463, 497.

I . McGowen, 27.
Spencer's Appeal, 362.
Spicer v. Cooper, 739, 752.

u. Spicer, 336, 337.
Spooner v. Dunn, 154, 260, 290.
Sporle V. Whayman, 446.
Sprague v. Blake, 521, 550, 560.
Springfield v. Miller, 420.
Springstein v Schemerhorn, 76.
Spurgeon v. Collier, 335, 336.
Spurrier v. Fitzgerald, 854, 877.
Squire v. Whipple, 474, 485, 486.
Staats V. Howlett, 198, 293.
Stackpole r. Arnold, 779.
Stadt V. Lill, 181.
Stafford v. Lick, 656, 724.
Stamers v. Preston, 47.
Stamfil V. Hickes, 56.
Stamper v. Griffin, 48.
Stanbaugh v. Yeates, 377.
Stanbury v. Matthews, 355, 356, 386.
Standley v. Miles, 210.
Standi V. Hine, 154, 240, 247
Stanley v. Baldwin, 362.

V. Dowdeswell, 733.

r. Hendricks, 234, 240, 252, 254.

u. Koehler, 101.
Stansfield v. Johnson, 726, 727, 778.
Stanton v. Miller, 843, 844.
Stanway v. Rock, 48.
Stariha v. Greenwood, 240.
Stark V. Cannady, 415, 417.

o. Raney, 294.

V. Wilson, 407.
Starr v. Earle, 2.36.

1

TABLE OP CASES.

State V. Shinn, 164.

Bank v. Mattler, 252.
Stead V. Dawber, 743, 748, 754, 757.

V. Liddard, 176, 653, 702.
Stearns v. Hall, 758.

V. Hubbard, 878.

V. Janes, 6.
Stebbins v. Smith, 138, 139.
Stedman v. Mcintosh, 54.
Steel )). Fife, 671.

V. Payne, 64.

V. Steel, 412, 413.

V. Towns, 155, 194.
Steele v. Haddock, 749.

V. Hoe, 180, 181.
Stephens v. Pell, 270.

u. Santee, 543, 568.

p. Squire, 195, 208, 228, 272.

V. Stephens, 13, 19, 20, 34.

V. Venables, 334.
Sterling v. Baldwin, 352, 359, 368, 369.

V. Bostwick, 358.

u. Warden, 42.
Stern v. Drinker, 174, 260, 272.
Steyens, ex parte, 445.

in re, 446.

V. Cooper, 749.

V. Houghtaling, 568.

V. Stewart, 615.
Stewart, ex parte, 445.

V, Aston, 90.

V. Campbell, 154, 244, 259, 266.

V. Doughty, 360, 506.

V. Eddowes, 739, 753, 764, 766.

V. Garvin, 729.

o. Hinkle, 259.

V. L. & N. W. R. Co., 684, 687.

V. McGuin, 173.

V. Munford. 97.

V. Stewart, 826.
Stileman v. Ashdown, 814.
Stiles V. Curtis, 420.
Stilwell V. Otis, 223.
Stirling v. Warden, 23, 24.
Stobie V. Dills, 104.
Stockbridge Iron Works v. Hudson

Iron Co., 15, 17.
.Stocker v. Partridge, 654, 709.
Stocking V. Sage, 151, 160, 292.
Stockley v. Stockley, 839.
Stockport Water Works Co. v. Potter,

18.
Stoddard v. Graham, 161, 211.

V. Hart, 437.

V. Tuck, 882, 846.

Stoddert v. Vestry of Port Tobacco, 61.
Stokeley v. Butler, 370.
Stokes V. Appomattox Co., 6.

V. Moore, 61, 749, 768, 773, 774,
823.
Stone V. Browning, 562, 570, 676, 580,
595, 597, 621, 641.

V. Crocker, 431.

V. Dennison, 424, 491, 492, 662.

V. Hooker, 293.

V. Peacock, 566.

V. Stone, 815.

V. Symmes, 156, 195, 211, 214, 264.

u. Walker; 155.

V. Whiting, 96, 97, 102, 103, 126.
Stoops V. Smith, 657, 681, 714, 750.
Storr V. Scott, 218.
Story V. Menzies, 161, 210.
Stowell i\ Robinson, 745.
Strabecker v. Cohen, 231.
Stranks v. St. John, 62.
Stratford v. Bosworth, 714, 730, 844.
Stratton v. Petitt, 62.
Streht V. D'Evens, 464.
Strong V. Crosby, 48, 51, 56, 63, 66.

V. Dodds, 641, 642.

„. Doyle, 377.
Stuart V. Baker, 418.

V. Smith, 399.
Stubbs V. Lund, 644.

V. Sargon, 806.
Suggett V. Casson, 485, 494.
SuUivant v. Commissioners &c., 28, 35.
Summers v. Cook, 369.
Surcome ;;. Penniger, 323, 334, 839.
Sutcliffe V. Atlantic Mills, 487.
Suter V. Pullin, 550.
Sutherland v. Briggs, 836, 839, 840.
Sutton V. Moore, 457.

V. Rowley, 405.

V. Sears, 411.
Suydam v. Clark, 790, 796.
Swain v. Seamans, 758.
Swaisland v. Dearsley, 870.
Swan V. Nesmith, 302.
Swann v. Phillips, 307.
Swanzey v. Moore, 491.
Swatman v. Ambler, 766.
Sweeney v. Miller, 420.
Sweet V. Lee, 465, 659, 739, 750, 771.

V. Shumway, 681, 750.
Sweeting v. Asplin, 207, 231.
Sweetman v. Parker, 209.
Swepson v. Johnson, 872.
Swift V. GifEord, 752.

TABLE OF CASES.

Swift V. Heath, 113.

u. Pierce, 155, 163, 216, 218, 219,
262.

V. Swift, 471, 499.
Swift's Iron &c. Co. «. Dewey, 752.

V. U. S. 752.
Switzer v. Skiles, 854.
Sword V. Keith, 469.
Syburn v. Slade, 132.
Syers v. Jonas, 737.
Sykes v. Dixon, 496, 669.
Sykes's Trusts, in re, 800.
Syler i-. Eckhart, 839.
Symes v. Huntley, 714.
Symmons v. Want, 191.
Symonds v. Ball, 728.
Symondson v. Tweed, 846.

Taggard v. Roosevelt, 51, 63, 486.
Taintor v. Brockway, 414.
Talbot V. Bowen, 778, 874.

V. Whipple, 103, 104.
Taliaferro v. Ratton, 412.

V. Roff, 173.
Talley v. Greene, 469.
Tallman v. Franklin, 58, 654, 684, 704,

705, 720, 722, 724, 739, 846.
Talmadge v. Rens. & Sar. R. R. Co.,

469, 489.
Talman v. Rochester City Bank, 224,
267.

V. Sparhawk, 421.
Talver v. West, 572, 673, 574.
Tanner v. Moore, 181.

V. Scovell, 595.

V. Smart, 696.

V. Valentine, 14, 19, 39.
Tansley v. Turner, 630.
Taplin v. Florence, 9, 14.
Tapp V. Lee, 306.
Tappin v. Lomas, 415.
Tarbell v. Stevens, 160, 310.
Tarling v. O'Riandorn, 601.
Tarlton v. Vietes, 854, 874, 875.
Tarr v. Northey, 160, 198.
Tarte v. Darby, 93, 101.
Tate V. Greenlee, 456, 461.
Tatham u. Piatt, 846.
Tatlock V. Harris, 276, 286.
Tatterson v. Suffolk Manuf. Co., 492.
Tatum V. Brooker, 827, 828.
Taunton v. Pepler, 44.

Tawney v. Crowthcr, 650, 654, 671, 707,

709, 716, 844.
Taylor v. Beech, 323, 334, 716, 822,
875, 878.

V. Caldwell, 14, 15, 17.

V. Chapman, 102, 126.

c. Dening, 771.

V. Dobbins, 772.

V. Drake, 153, 156, 194, 219, 262.

V. Hilary, 207, 208, 212, 285.

V. Linley, 393.

V. Merrill, 778.

V. Mueller, 576, 577, 687, 593,604.

V. Portington, 735, 844, 847.

V. Pratt, 61.

V. Preston, 160, 209, 301.

V. Richardson, 637, 638.

V. Riggs, 658, 714.

V. Taylor, 288, 815.

V. Wakefield, 608.

V. Waters, 6, 28.
Teal V. Auty, 354, 385, 387, 403, 436,

496.
Tempest v. Fitzgerald, 618, 620, 621,
634.

V. Kilner, 393, 394, 803.
Temple v. Johnson, 824.
Templeton v. Bascom, 153, 173, 174,

297.
Tennay v. Prince, 171.
Tepper v. Nicholls, 396.
Terry v. Wheeler, 567.
Thacher v. Rockwell, 205, 233, 290.
Thayer v. Gallup, 233.

u. Luce, 649, 654, 663, 688, 705,
709, 742, 764.

V. McEwen, 189.

V. Reeder, 874.

u. Rock, 186.
Therasson v. McSpeedon, 161, 211.
Therne v. Fuller, 143.
Thiebaud v. Vevay, 58.
Thomas, ex parte, 792.

V. Blackman, 654, 703, 730, 823.

V. Brown, 688, 690.

V. Cook, 96, 97, 98, 102, 104, 113,
114, 115, 120, 126, 128, 129,
130, 131, 197, 198, 199, 287,
288, 291, 292.

V. Croft, 173.

V. Delphy, 153, 266.

V. Dering, 680.

V. Dickinson, 426, 489, 492.

u. Dodge, 247.

V. Fredricks, 7.

lii

TABLE OP OASES.

Thomas v. Hammond, 497, 876.

o. Nelson, 100.

V. Packer, 57, 62, 67.

V. Serrell, 11.

!;. Trustees, 457.

V. "Williams, 175, 184, 186, 270,
487.
.Thompson v. Alger, 521, 559.

V. Blanchard, 156, 220.

u. Bond, 273.

V. Davenport, 753.

V. Elliott, 414.

V. Gardiner, 789, 790. ,

V. Gordon, 466, 468, 469, 470, 477.

V. Gould, 428.

V. Jameson, 878.

V. Kelly, 721.

u. Ladd, 878.

V. Leach, 76, 84.

V. Maberly, 489.

v. Maceroni, 599.

V. Mason, 435.

V. Percival, 286.

V. Pettitt, 440.

V. Todd, 824.

V. Wilson, 94, 96, 102.
Thorn v. Woolcombe, 76.
Thombury v. Berill, 731, 736, 767.
Thorndike v. Barrett, 420.
Thornton v. Charles, 789, 790, 792,
793.

V. Henry, 839, 874.

,;. Kelley, 688, 690.

V. Kempster, 711, 766, 790, 792,
794.

V. Meux, 789, 790, 792, 793, 794.

V. Vaughan, 874.
Thorp, in re, 792.

V. Keokuk Coal Co., 235.
Thorpe v. Owen, 799.
Thouvenin v. Lea, 351, 402, 466.
Threadgill v. McLendon, 234, 240,

252, 254.
Thre'r v. Barton, 86.
Thruxton v. Attorney General, 798.
Thurber v. Dwyer, 56.
Thurston v. James, 240.
Thwaits v. Curl, 175, 216.
Thj-nn v. Thynn, 862.
Tibbett v. Morton, 575.
Tibbetts v. Flanders, 198.

u. Tibbetts, 422.
Tibbs V. Barker, 839.
Tice V. Freeman, 861.
Tidey v. MoUett, 62, 63.

Tiernan v. Gibney, 843.

u. Granger, 500.
Tiemey v. Wood, 803.
Tileston v. Nettieton, 176, 194, 216.
Till, in re, 454.
Tilston V. Clarke, 146.
Tilt V. Stratton, 51.
Tilton V. Tilton, 826, 845, 854.
Tindall v. Touchberry, 259, 290.
Tinney v. Tinney, 862.
Tippets V. Walker, 393.
Tisdale v Harris, 395, 503, 733.

V. Morgan, 209.
Todd I). Tobey, 175, 267.
Tomes v. Chamberlain, 48.
Tomkius v. Smith, 153, 211.
Tomkinson v. Staight, 615.
Tomlinson v. Gill, 143, 152, 154, 175,
275, 289.

V. Miller, 782.
Tooker v. Smith, 47, 66, 70.
Toole V. Medlicott, 829, 839, 846.
Toplady v. Sealey, 28.
Toplie V. Grane, 289.
Toppin !;. Lomas, 396, 413, 414.
Torriano v. Young, 77, 78.
Towers o. Osborne, 527, 529, 532, 533,

534, 542.
Townley v. Sumrall, 156.
Townsend v. Albens, 100.

V. Corning, 722.

V. Dawson, 419.

u. Drakeford, 726, 789, 793.

V. Hargreaves, 560, 569, 607, 615,
621, 626, 651, 669.

17. Hawkins, 845.

V. Long, 232, 301.

V. Westacott, 812.
Toulmin v. Hedley, 604.
Tourret v. Cripps, 776.
Tracy v. Tracy, 828.
Train v. Gold, 294.
Trammell v. Trammell, 30, 414.
Traphagen v. Burt, 423.
Trapnall v. Brown, 875.
Travis v. Allen, 174.
Tregonwell v. Sydenham, 805, 806.
Trent v. Hunt, 128.
Tress .,. Savage, 45, 46, 48, 52, 56, 57,

66, 69, 70.
Trevor v. Wood, 648.
Trewinian v. Howell, 141, 146. •
Trice v. Pratt, 457, 460.
Tripp V. Armitage, 504.
Trobridge v. Wetherbee, 423.

TABLE OF CASES.

liii

Trotman v. Flesher, 831.
Troxell v. Lehigh &c. Coal Co., 35.
Trueman v. Loder, 753, 789, 792.
TruU V. Granger, 45.

V. Skinner, 413.
Truox V. Slater, 395.
Trustees v. Brook. F. Ins. Co., 469,
480, 485.

V. Flint, 204, 209, 309.
Tucker v. Adams, 48.

V. Burrow, 811, 815.
Tufts V. Plym. Gold Min. Co., 652, 669,

675.
TuU V. David, 721.
Tunbridge v. 'Wetherbee, 186.
Turner v. Baker, 421.

V. Hardy, 100, 129.

V. Hubbell, 174, 266, 283, 296.

V. Mariatt, 436.

V. Phillips, 220.

V. Stanton, 9, 39.
Turton v. Burky, 216.
Tuttle V. Sweet, 463, 472, 486, 497, 661.
Tuxworth V. Moore, 620, 627.
Tweddle v. Atkinson, 199.
Twiss V. George, 845.
Tyers v. Rosedale Iron Co., 758, 760,

761.
Tyler v. Strange, 641.

V. Strong, 568.

V. Webb, 444.

U.

TJhler v. Farm. Nat. Bank, 210, 222.
Ulen V. Kittredge, 778.
XJllman v. Meyer, 311, 648.
Underbill , . Allen, 824.

V. Gibson, 165, 229.

V. Williams, 839.
Underwood v. Campbell, 61.

V. Lovelace, 182, 283.
Ungley v. Ungley, 324, 826.
Union Bank of Manchester, ex parte,

445.
United States Bank v. Southard, 210.
United States Reflector Co. v. Rush-
ton, 566.
Unity Joint Stock Mutual Banking

Association v. King, 444.
Updike V. Ten Broeck, 467, 469, 470,

483.
Upton V. Archer, 45.

u. Townsend, 46.

Upton V. Vail, 306.

Urquhart r. Brayton, 160, 199, 2^2,
235.

Valpy V. Gibson, 655, 680.

"Van V. Corfe, 868.

Van Alstine v. Wimple, 189.

Van Bruck r. Peyser, 306.

Vance v. Vance, 812, 814.

Vandenbergh v. Spooner,647, 689, 694.

Vanderbeck v. Hendry, 24.

Van Deusen v. Young, 42.

Van Dyne v. Vreeland, 493.

Van Kenren v. McLaughlin, 414.

Vanmeter"!;. McFaddin, 443.

Van Ness v. Packard, 22.

Van Rensselaer's Heirs c. Penniman,
108, 109.

Van Slyck v. Pulver, 174, 260, 272.

Van Syckel v. Dalrymple, 749.

Van Valkenburgh v. Croffut, 425.

Van Woert v. Albany &c. R. E. Co.,
470, 483, 497, 559.

Varden Seth Sam u. Luckpathy Roy-
gee Lallah, 446.

Varley v. Shirley, 063.

Vasburgh v. Teator, 421.

Vaughan v. Cravens, 435.

V. Hancock, 184, 186, 349, 353,
397, 399.

Vaupell V. Woodward, 854, 874.

Vawter v. Griffin, 395, 603.

Veghte V. Earitan Power Co., 20, 21.

Verlander v. Codd, 713, 730.

Vice V. Anson, 396.

Vickers v. Vickers, 718, 843.

Viele V. Goss, 306.

V. Osgood, 348, 422, 772.

Vincent v. Germond, 521, 559, 620,
631, 638.

Vining v. Gilbreth, 639.

Virden v. Ellsworth, 171.

Vogel V. Melms, 198, 233, 235, 292.

Vorebeck v. Roe, 358, 359, 369.

Vouillon V. States, 866, 867, 713.

Vroman v. Turner, 236.

W.

Waddington v. Bristow, 353, 355, 360,

373, 383, 388.
Wade V. Nebern, 773.

liv

TABLE OP CASES.

Wadmore v. Dear, 396.
Waggoner v. Gray, 195, 211, 266.
Wagner v. Hallock, 204.
Wagnor v. Clay, 208.
Wain V. Warlters, 61, 176, 496.
Wainwright v. Straw, 161, 163.
Wait V. Baker, 641.

V. Wait, 234, 240, 254.
Wake V. Harrop, 715, 753.
Wakefield v. Greenwood, 172, 231.

V. Eoss, 420.
Walden v. Mu'rdock, 597.
Waldo V. Simonson, 174, 267.
Waldron v. Jacob, 751.
Wales V. Mellen, 411, 412.
Walford v. Gray, 328.
Walker v. Bartlett, 393.

«. Constable, 727, 780, 781.

V. Giles, 54.

V. Godg, 128.

V. Herring, 422, 720, 726, 727.

... Hill, 160, 216, 218, 270."

u. Johnson, 497, 498.

V. Metr. Ins. Co., 469.

o. Milne, 393.

V. Norton, 156, 160, 220, 295.

V. Nussey, 523, 560.

V. Penniman, 233.

u. Kichards, 103, 155, 157, 163,
194, 217, 218, 219, 876. •

V. Richardson, 90, 91, 97, 102, 113,
115, 127, 132, 133, 262.

V. Rostron, 231.

V. Sherman, 173.

V. Taylor, 144, 208, 270.

V. Walker, 773, 832, 852, 863.
Wallace v. Brown, 65, 846.

u. McCuUough, 44.

V. Worthen, 161.
Waller v. Hendon, 727.
Wallis V. Harrison, 6, 22, 28, 30, 81.

V. Littel, 858.
Walls V. Atcheson, 96, 100, 101, 102,

127, 134.
Walrath v. Ingles, 526.

■0. Richie, 506, 526.
Walsh V. Barton, 688, 723.

V. Kattenburgh, 876.
Walter v. Post, 8.
Walters v. Morgan, 414, 878.
Walther v. Merrell, 262.
Walton V. Dodson, 670, 691.
Wankeford v. Fotherley, 317, 336, 716.
Warbitton v. Savage, 640.
Ward V. Ely, 171.

Ward V. Kirkman, 666.

«. Lumley, 91.
Warden v. Jones, 314, 322, 323, 325,

326, 328, .335, 337.
Wardle v. Oakley, 451.
Ware v. Adams, 156, 171, 178.

V. Cumberledge, 393.

V. Stephenson, 155, 219, 262, 266.
Warfield v. Dorsey, 457, 458, 461.
Waring v. Ayres, 684, 846.
Warlow V. Harrison, 782.
Warman ti. Seaman, 809.
Warner, ex parte, 444.

V. Fountain, 421.

V. WUlington, 60, 61, 667, 692,
695, 708, 733, 734.
Warren v. Barker, 306.

V. Batchelder, 232.

V. Dickson, 493, 874.

V. Fearnside, 48.

V. Leland, 352, 359, 360, 368, 372,
403.

V. Milliken, 627.

V. Smith, 214.

V. Wheeler, 663, 738, 744.
Wartman v. Breed, 576.
Warwick v. Bruce, 354, 355, 356, 360,
378, 383, 386.

V. Groshalz, 151, 216, 223.

V. Slade, 796.
Washburn v. Burrows, 354, 356, 384.

</. Fletcher, 751, 762.

V. Washburn, 782.
Washington i'. Ogden, 412.
Washington Ice Co. v. Webster, 654,

663, 709, 713, 734, 738.
Waterman v. Meigs, 537, 547, 688, 703.
Waters v. Tompkins, 625.
Watkins v. Gilkerson, 405.

V. Peck, 6.

V. Perkins, 166, 207.

V. Rush, 384, 387, 428.

y. Rymill, 657.

I). Sands, 234.

V. Vince, 219, 779.
Watrous v. Chalker, 424, 494.
Watson V. Brightwell, 405, 410.

V. Hayes, 805.

V. Jacobs, 156, 195, 214.

V. Keely, 419.

V. McLaren, 173.

V. Mahan, 826, 836.

V. Marston, 871.

V. Parker, 259.

V. Randall, 156, 214.

TABLE OF CASES.

Iv

Watson V. Spratley, 393, 394, 503.

.,. Turner, 228.

V. Violett, 457, 460.

V. Wand, 67.

(.-. Watson, 405.
Watt V. Evans, 824.

V. Maydewell, 117.
Watts, in re, 444.

I. Ainsworth, 60, 734.

V. Friend, 354, 385, 512, 513.
Waugh V. Mitchell, 423.
Waul V. Kirkman, 678, 764.
Weaver v. Jones, 48.
Webb V. Paternoster, 5, 26, 27. ,

V. Russell, 86.
Webber v. Lee, 7.
Webb's Policy, in re, 445.
Webster v. Anderson, 630, 631, 632.

i,. Cecil, 865,

V. Ela, 688, 690.

V. Gray, 825.

V. ZeiUey, 386, 404, 521, 543, 553,
650.
Weddall v. Capes, 73, 82, 84, 85, 102,

103, 108, 121.
Wedderburne v. Carr, 728.
Weed V. Clark, 210.

V. Terry, 420.
Weekly v. Weekly, 393.
Weeks v. Burton, 306.

V. Wright, 714.
Wegg V. Drake, 567.
Weir V. Hill, 434, 495.
Welborn v. Seecrist, 873.
Welch V. Kenney, 160, 195, 209.

V. Marvin, 163.
Weldon v. Porter, 61.
Welford v. Beazley, 669, 715, 768, 771.
Wells V. Bannister, 26, 428.

V. Brown, 254.

V. Cowles, 393.

V. Day, 511, 512.

V. Horton, 314, 468, 469, 484.

V. Hunt, 512.

V. Ifingston-upon-HuU, 349, 400.

V. Prince, 307, 308.

V. Eenway, 306.

V. Stratton, 423, 826.

0. Thompson, 284.
Welsh !•. Bayard, 828, 832.

V. Welsh, 428.

V. Usher, 442.
Wentz V. Durhaven, 439.
West V. Bolton, 624.

V. Flanagan, 835.

West V. O'Hara, 233.

V. Wilcox, 306.
West Jersey &c. R. H. Co. v. Trenton

&c. R. R. Co., 654.
West Va. Oil Co. v. Vinal, 821.
Western v. Russell, 713, 705, 772, 773.
Western Union Tel. Co. v. Chicago &c.

R. R. Co., 066, 703, 764.
Westervelt v. Matheson, 086.
Westfall V. Parsons, 201, 234, 493.
Westhead v. Sproson, 173, 181.
Weston V. Bird, 870.
Wetherbee v. Potter, 423, 425.
Wetherell, ex parte, 442, 454.

V. Langston, 766.
Wethers v. Larrabee, 48.
Wetmore v. White, 839.
Weyer v. Beach, 252.
Weyland v. Crichfield, 155, 211, 219.
Whaley v. Bagenal, 670, 708, 714, 823.

u. Dawson, 417.
Wharton v. Stautenbaugh, 822, 826.

V. Walker, 286.
Wheelden v. Lowell, 27.
Wheeler v. Collier, 144, 691.

V. D'Esterre, 829, 839, 847.

V. Frankenthal, 703.

V. Reynolds, 10.
Whelan v. Sullivan, 659, 081, 751, 845.
Whipple V. Foot, 360, 377.

V. Thayer, 620.
Whitbeck v. Whitbeek, 407, 425.
Whitbread, ex parte, 442, 448, 451.

„. Brockhurst, 823, 832, 878.

V. Jordan, 444, 454.
Whitchurch v. Bevis, 823, 852, 856,

857, 877, 878.
Whiteomb v. Kephart, 160.
White V. Bailey, 412.

V. Bradshaw, 684.

V. Coombs, 414.

V. Crew, 781.

v. Elwell, -26.

V. Foster, 358, 361.

V. Frost, 351, 363, 383, 384, 506.

V. Fuller, 752.

u. Hanchett, 484, 614.

e. Herman, 684, 080, 846.

V. Knapp, 508.

V. Maynard, 5, 18, 398.

o. Motley, 683, 084.

V. Proctor, 726, 780, 781.

... Smith, 498.

V. Solomonsky, 156, 195, 211, 214.

V. Watkins, 656, 826.

Ivi

TABLE OP CASES.

White V. White, 422.

o. Wieland, 428, 431, 478.

V. Wiltshire, 27.

V. Woodward, 176.
White's Ex'rs v. White, 288.
Whitehead v. ClifEord, 96, 98, 100, 106,

134.
Whitfield V. Potter, 260.
Whiting V. Butler, 411, 413.

V. Gould, 649, 877.
Whitley v. Gough, 117, 121.
Whitman v. Bryant, 156, 163, 194, 263.
Whitmarsh v. Walker, 30, 851, 355,
358, 359, 363, 377, 383, 384,
404.
Whitney v. Butler, 415.

!>. Holmes, 421.

V. Meyers, 96, 97, 108, 124.

V. Swett, 51.
Whittaker v. Cawthorne, 9.
Whittemore v. Gibbs, 395, 411, 503.
Whitwell V. Wyer, 621, 660.
Whitworth v. Gaugain, 448.
Whoon V. Drizzle, 47.
Wickham v. Wickham, 303.
Wiegander v. Copeland, 423.
Wierner v. Whipple, 649, 769, 796.
Wiggins V. Keizer, 466, 469.
Wigglesworth v. Dallison, 752.
Wightman v. Caldwell, 638.
Wigley V. Ashton, 148.
Wilber v. Paine, 824.
Wilcox Silver Plate Co. v. Green, 609,

615.
Wild V. Came, 630, 631.

V. Nichols, 198.
Wilde V. Cantillon, 50.

V. Fox, 835, 837.
Wildes V. Dudlow, 160, 287, 288, 291.
Wiley V. Bradley, 361, 404.

V. Christ, 91.

V. Eoberts, 664, 709.
Wilford V. Beazeley, 670.
Wilhelm v. Hardman, 469, 480, 483.
Wilke V. Willce, 412.
Wilkes V. Ferris, 639.
Wilkins v. Irvine, 14.
Wilkinson v. Evans, 652, 654, 695, 702,
709, 710.

V. Wilkinson, 65, 839.
Wilks V. Davis, 718, 843.
WiUets V. Van Alst, 457.
Williams, ex -parte, 167, 163.

V. Ackerman, 66.

V. Bacon, 649, 653, 688, 723, 789.

Williams «. Bemis, 428, 435, 478.

V. Brynes, 670, 690, 691.

V. Burgess, 607, 615.

V. Christie, 723.

V. Coade, 806.

V. Corbett, 155, 219, 233.

V. Devian, 48.

V. Evans, 576, 626, 835, 889, 840,
842.

u. Hill, 437.

V. Jones, 15, 488.

V. Jordan, 664, 688, 690, 709.

V. Kershaw, 806.
.V. Lake, 60, 61, 688, 691, 737.

V. Landman, 836, 837.

17. Leper, 138, 153, 154, 208, 289,
257, 269, 270, 283, 803, 874.

V. Little, 161, 209, 210.

V. Morris, 6, 23, 653, 654, 655, 678,
706, 709.

V. Robinson, 648, 656, 662, 663,
713, 714, 737, 738, 743, 746,
758, 764, 765.

V. Rogers, 233.

V. Sawyer, 76, 81, 87, 118.

V. Spring, 171.

V. Tucker, 650.

u. Wheeler, 305, 467.

V. Williams, 327, 786, 766, 815,
850.

V. Wood, 306.
Williamson v. Wootton, 719.
Willis, in re, 230.

V. Newham, 626.

V. Willis, 808.
Willoughby, in re, 315.
Wills V. Brown, 196.

V. Stradling, 826, 829, 832, 835,
838, 889.
Wilmer v. Farres, 832.
Wilmington &c. E. R. Co. v. Battle, 28,

36, 87.
Wilson V. Bevans, 198, 224, 246.

V. Chalfant, 16, 19, 20, 35.

V. Clark, 427.

V. Coupland, 285, 286.

V. Dent, 803.

V. Hart, 760.

V. Hill, 412.

V. Hudson, 421.

V. Marshall, 426.

V. Martin, 464, 474, 486, 497.

V. Pig, 124.

V. Sewell, 117, 123.

V. Vilas, 20.

TABLE OP CASES.

Ivii

Wilson c. West Hartlep. R. Co., 839,

849.
Wilston V. Pilkney, 83.
Wilton V. Harwood, 822, 839.
Winberry v. Koonce, 411.
Winch 0. Winchester, 861.
Winckworth v. Mills, 229, 291, 296.
Winfield v. Potter, 229, 240.
Wing V. Hall, 19.

V. Harris, 117.
Wingate v. Dale, 846.
Winn V. Albert, 337, 878.

V. Bull, 648, 714.
Winter v. Brocklewell, 5, 11, 26, 31.

V. Lord Anson, 444.
Winton v. Pinken6y, 124.
Wise V. Charlton, 452.
Wiseman v. Lucksinger, 10, 400, 401.
Wiswell V. Lofft, 827, 845.
Withers v. Larrabee, 51, 100.

o. Withers, 798, 806.
Witt V. Mayor &c. of N. Y., 57, 66.
Woadly v. Coventry, 639.
Wolfe V. Frost, 21, 35, 400, 408.

V. Sharp, 456, 461, 729.
Wolfenden v. Wilson, 530.
Wolff V. Koppel, 152, 161, 207, 208,

209, 211, 302, 303.
WoUaston v. Hakewill, 75.
Wood V. Benson, 184, 186, 487.

V. Bridgely, 60.

V. Corcoran, 214.

V. Cox, 805.

V. Davis, 647, 663.

V. Edes, 31, 34.

v. Farmere, 362, 827.

V. Fleet, 418.

V. Jones, 824.

V. Lake, 4, 5, 26, 27, 28.

V. Leadbitter, 5, 6, 11, 21, 400, 401.

V. Manly, 5, 12, 30, 42

V. Mann, 459.

^. Midgeley, 654, 709, 719, 731,
844, 853, 855.

V. Partridge, 103.

V. Patch, 204.

V. Priestner, 178.

V. Savage, 337.

o. Scarth, 682, 707, 725, 860, 855.

V. Shultis, 352, 428, 429.

V. Thomby, 832.

a. Walbridge, 82.

V. Wheelock, 299.
Woodard v. Lindley, 76.
Woodbridge Union v.Whien Union, 62.

Woodbury v. Parshloy, 20, 36.
Woodcock V. North, 105, 127, 133.
Woodford v. Patterson, 480, 506.
WoodhuU V. Longstreet, 419.
Woodley v. Coventry, 628.
Woods V. M'Gee, 640.

I). Wallace, 437.
Woodward v. Aston, 116, 122.
V. Pickett, 174.

V. Seeley, 22, 35, 36, 41, 400.

V. Wilcox, 154.
Wooley V. Gregory, 103.
WooUam v. Hearn, 736, 862.
Wooster v. Sage, 507, 508.
Wootley V. Gregory, 90.
Worden v. Sharp, 425.
Work V. Cowhick, 654, 705, 709, 742.
Workman v. Guthrie, 835.
Worrall v. Munn, 764, 778, 782.
Worters, in re, 454.
Worthen v. Dow, 526.
Worthy v. Jones, 466, 467, 484.
Wray v. Steele, 807.
Wright, ex parte, 443, 444, 460.

V. Cobb, 647.

V. Dannah, 779, 780, 783.

V. DeGraff, 422.

t. Freeman, 35.

V. O'Brien, 543.

V. Percival, 588.

v. Stavert, 349, 398, 399.

V. Stewart, 5.

V. Weeks, 649, 656, 659.

o. Wright, 844, 845.

V. Verney, 294.
Wyatt V. Stagg, 82.
Wykoff V. WykofE, 830.
Wylde V. Radford, 456.
Wylie V. Kelley, 571, 576.
Wyman v. Goodrich, 299, 302.

u. Gray, 162, 209.

V. Smith, 240, 246.
Wyndham v. Way, 404.
Wynn v. Garland, 875.

V. Wood, 240.
Wynne v. Hughes, 175.

Yale V. Edgerton, 156, 214,282..

V, Seeley, 630.
Yarborough v. Avant, 419.
Yates V. Martin, 414.
Yeakle v. Jacob, 30, 359, 362.

Iviii

TABLE OP CASES.

Yerby v. Grigeby, 772, 778.
Young V. Austin, 874.

V. Blaisdell, 621.

V. Duke, 5, 45.

V. French, 196, 254, 260, 282.

V. Frost, 420.

V. Peachy, 809.
Youngs V. Shough, 162.
Yourt V. Hopkins, 782, 876.

Z.

Zabel V. Schroder, 494. *
Zabriskie v. Smith, 306.
Zaehrisson v. Poppe, 626, 632, 769, 779.
Zeikafosse v. Hullick, 351, 403.
Zeringue v. Williams, 409.
Zouch V. Parsons, 88, 123.
Zwinger v. Samuda, 585.

STATUTE OF FRAUDS.

STATUTE OP FRAUDS.

29 Car. H. c. 3.

Section 1. All leases, estates, interests of freehold, or terms of years,
or any unoertain interest, of, in, to, or out of any messuages, manors,
lands, tenements, or hereditaments, made or created by livery and seizin
only, or by parol, and not put into writing and signed by the parties so
making or creating the same, or their agents thereunto lawfully author-
ized by writing, shall have the force and effect of leases or estates at will
only, and shall not, either in law or equity, be deemed or taken to have
any other or greater force or effect ; any consideration for making the
same to the contrary notwithstanding.

Sec. 2. All leases not exceeding the term of three years from the
making thereof, whereupon the rent reserved to the landlord during such
term shall amount unto two-third parts, at least, of the full improved
value of the thing demised.

STATUTE OF FMIJDS.

CHAPTER I.

PAKOL LEASES. — LICENSES.

BSCTIOir.

1. What is an Uncertain Interest in Lands.

2. Effect of Statute as to Lessor's Eemedies.

3. Easements only Created by Deed. — Licenses.

4. Sporting Licenses.

5. Freehold Interest.

6. Parol License, when Revocable.

7. License coupled with Interest in Land, What is.

8. Distinction between License and a Lease.

9. How far a License Protects.

10. Instances of Irrevocable Licenses.

11. License Eevoked by Conveyance, etc.

12. Reasonable Notice of Revocation Required.

13. Injunction to Restrain Interference with License.

14. Parol Agreement for Sale may Operate as License, When.

15. Signature not Necessary in Case of a Deed.

16. Appointment of Agent.

17. Term Commences from Time of Agreement.

18. Statute does not Apply to Tolls or Equitable Estates.

19. Entry under Void Lease, Effect of.

20. How a Tenancy at Will is Created.

21. Rule in Doldge v. Bowers.

22. How Tenancy from Year to Year may be Created.

23. Implied Tenancy from Year to Year.

24. Rebuttal of Presumption.

25. Void Lease may Enure as Agreement to Lease.

26. Specific Performance.

27. Terms of Occupancy Regulated by Parol Lease.

28. Rule in Tooker v. Smith.

29. Covenants in Farming Lease.

30. Covenant to Paint.

31. Proviso of Re-entry.

32. Rent Paid in Advance.

33. Parol Lease may be Special in its Term.

34. Collateral Agreements.

35. Determination of Term under Void Lease.

36. Tenancy Determined at End of, without Notice.

4 STATUTE OP PEATJDS. [CHAP. I.

Section 1. what is an TTnoertain Interest in Lands. — The
words " all leases, estates, interests of freehold, or terms of
years, or any uncertain interest, etc.," extend only to interests
which are uncertain as to duration.^ Collecting the meaning
of the first by aid of the language and terms of the second
section, and the exceptions therein contained, it seems that
the leases so meant to be yacated by the first section, must
be understood as leases of the like kind with those in the
second section, but which convey a larger interest to the
party than for the sum therein named, and such also as are
made under a rent reserved thereupon.^

In Georgia,^ Maryland,* and South Carolina,^ the statute,
so far as it is applicable to the sale or demise of lands, is
identical with that of 29 Car. II. Cap. 3, as stated supra.
But in • all the other States and Territories of this country,
while the principle upon which this statute rests is adopted,
yet substantive differences exist, both as to its language
and in its application, and the amount of rent to be paid
does not have any effect in determining the validity of the
lease. In Alabama, Arkansas, California, Colorado, Connec-
ticut, Dakota, Delaware, Illinois, Iowa, Kansas, Kentucky,
Michigan, Minnesota, Mississippi, Montana, Nebraska, Nevada,
New Jersey, New York, Oregon, Rhode Island, Tennessee,
Texas, Utah, Virginia, West Virginia, Wisconsin, and Wy-
oming, parol leases for a longer term than one year are
invalid, while in Florida two years, and in Indiana and
New Jersey three years is the term limited, while in Maine,
Massachusetts, Missouri, New Hampshire, Pennsylvania, and
Vermont parol leases have no effect to create other than

1 "Wood V. Lake, Say, 3. The first whether with or without rent, or any

section seems to be co-extensive with interest uncertain in point of duration,

the fourth, and consequently every must, it would seem, equally fall with-

interest which is within the fourth in the provision of the first section,

section is equally within the first, un- and cannot be sustained unless it

less it comes within the saving of the comes within the saving in the second,

second. Sugd. V. & P. 14th ed. 122. Sugd. V. & P. 14th ed. 122 ; Crosby

' Crosby v. Wadsworth, 6 East, v. Wadsworth, ante ; Lord Bolton u.

602, per Lokd Ellenbokough. If an Tomlin, 5 Ad. & El. 856. See also

estate of whatever value should be Cooch v. Goodman, 2 Q. B,, for the

conveyed to a purchaser by livery extent of the second section, in con-

of seizin without writing, the act would nection with the first,
avoid the estate, although the pur- ' See Appendix, " Georgia.''
chaser has paid his money. An actual * See Appendix, " Maryland."

lease for any given number of years, ^ See Appendix, " South Carolina."

SEC. 3.] PAEOL LEASES. 5

estates at will, and practically this is tlie case in North
Carolina and Ohio.

Sec. 2. Effect of Statute as to Lessor's Remedies. — The
effect of the statute, so far as it applies to parol leases
not exceeding the period named therein, is that the leases
are valid, and that whatever remedy can be had upon them
in their character of leases may be resorted to ; but in Eng-
land, under the fourth section, it has been held that no
right is conferred to sue the lessee for damages for not
taking possession. Thus, in Edge v. Stafford,^ it was held
that a parol agreement to take furnished lodgings for " two
or three years " amounted to a lease, and gave the lessor a
right to whatever remedy he could have in the character of a
lease ; but that inasmuch as the contract was for " an interest
in lands " within the fourth section, the tenant was not liable
in an action for not taking possession. But the current of
authority in this country, so far as this question has been
under review, is opposed to this rule, and it is held that the
right to rent under a parol lease for the statutory period, is
good from its inception, and will support an action for rent
from that period, whether the lessee goes into possession or
not? But this must be understood as the rule in those
instances only where the lease takes effect from the time
when it was made, or in those States where it is held, as is
the case in New York,^ Colorado,* and Indiana,^ that a parol
lease to commence infuturo vests a present interest in the term.

Sec. 3. Basements can only be Created by Deed. — An ease-
ment, like aU other incorporeal hereditament affecting land,
can only be created or transferred by deed. AU such here-
ditaments he in grant and not in livery, and pass by mere
delivery of the deed.® Thus, in Hewlins v. Shippam,'' the

1 1 C. & J. 391. 6 Wood V. Leadbitter, 13 M. & W.

2 Huffman u. Stark, 31 Ind. 474 ; 842 ; 14 L. J. Ex. 161 ; per Alderson,
Yfliing V. Dake, 6 N. Y. 463 ; White v. B., overruling on this point, Wood t;.
Maynard, 111 Mass. 250. So also see Lake, Say, 3 ; Webb v. Paternoster,
Coe V. Clay, 5 Bing. 440; Jenks v. Palm. 71; 2 Roll. 152; Poph. 151;
Edwards, 11 Exchq. 775, and Wright Winter v. Brocklewell, 8 East, 308 ;
V. Stewart, 5 Ad. & El. 856. Tayler v. Waters, 2 Marsh, 551 ; 7

' Young V. Dake, ante. Taunt. 384 ; Wood v. Manly, 3 Per. &

4 Sears v. Smith, 3 Col. 287. D. 5; 11 Ad. & El. 34.

6 Huffman v. Stark, ante. ' 5 B. & C. 221. In Collins Co. v.

6 STATUTE OP FEAXTDS. [CHAP. I.

action was for stopping up a drain leading from the plain-
tiff's premises, through the defendant's yard; the plaintiff
■was non-suited, on the ground that the right to have the
drain pass through the defendant's yard was an interest in
the defendant's land, and under the statute, there being
nothing in writing to create the right, but its foundation
resting in parol, was a right at will only ; and the Court of
King's Bench held that the non-suit was right.^ In Crocker
V. Cowper^ the facts were similar to those in Hewlins v.
Shippam, except that upon the construction of the license it
appeared to have been made for a term of years ; but that
distinction was not taken, -and the court said that, "with
regard to the question of license, the case of Hewlins v. Ship-
pam is decisive to show that an easement like this cannot be
conferred except by deed."^ In Wood v. Leadbitter* the
whole of the authdrities on the subject were most fully dis-
cussed. There the action was trespass for assault and false
imprisonment. The facts were as follows: — Lord Eglin-
toun was steward of the Doncaster races : tickets of admis-
sion to the grand stand were issued with his sanction, and
sold for a guinea each, entitling the holders to come into the
stand and the enclosure round it during the races ; the plain-
tiff bought one of the tickets, and was in the enclosure during
the races ; the defendant, by the order of Lord Eglintoun,

Marcy, 25 Conn. 239, a license to erect liams, 10 Penn. St. 126 ; or by an im-

upon the land of another a permanent plied grant as a right necessarily inci-

addition to a building, of a substantial dent to the thing granted. Braksley

character, was held to amount to a v. Sharp, 9 N. J. Eq. 9 ; 10 id. 206 ;

grant of an interest in lands, within Lampman v. Schilks, 21 N. Y. 505 ;

the statute of frauds ; and in Hall v. Kenyon v. Nichols, 1 E. I. 412 ; Phil-

Boyd, 14 Ga. 1, it was held that a parol lips v. Phillips, 48 Penn. St. 178 ; and

license to build a bridge on another's in no case can such rights be created

land does not confer a right to re- by, or exist in, parol. Huff v. McCau-

build. Easements are created only ley, 53 Penn. St. 206.
by deed. Euhr <i. Dean, 26 Mo. 116; i See the judgment of Batlet, J.,

or presumed grant by long user, and see Bryan v. Whistler, 8 B. & C.

Stearns v. Janes, 12 Allen (Mass.) 288; 2 Man. & Ry. 318; Bradley v.

582; Pollard u. Barnes, 2 Cush. (Mass.) Gill, 1 Lut. 69; Barlow v. Rhodes, 1

191 ; Carlisle v. Cooper, 19 N. Y. Eq. Cr. & M. 439 ; Mason v. HUl, 5 B. &

372 ; Luce v. Carley, 24 Wend. (N. Y.) Aid. 1 ; 2 Ner. & M. 747.
451; Watkins v. Peck, 13 N. H. 360; 21 c. M. & R. 418.

Mannier v. Myers, 4 B. Mon. (Ky.) s Xni see Bridges v. Blanchard, 1

514; Stokes •;;. Appomattox Co. 3 Ad. & El. 536; Wallisw. Harrison, 4 M.

Leigh (Va.) 318; Smith v. Bennett, &W. 538; Williams w. Morris, 8 M. &

1 Jones (N. C.) L. 372 ; Biddle v. Ash, W. 488.

2 Ashm. (Penn.) 211 ; Esling v. Wil- 1 13 M. & W. 838 ; 14 L. J. Ex. 161.

SEC. 4.J

PAROL LEASES.

desired the plaintiff to leave the enclosure, and on his refusing
to do so, ejected him, but did not return the guinea. It was
held that this was an easement which could only have been
created h^ deed. A somewhat similar doctrine was adopted
in a Massachusetts case,^ in which it was held that the sale of
a ticket of admission to a concert only amounts to a revocable
license to the purchaser to enter the building in which it is
given, and to attend the performance ; and if revoked before
the performance has commenced, and before he has taken the
seat to which the ticket entitles him, and he remains therein
after notice of the revocation, and refuses to depart upon
request, he becomes a trespasser and may be removed by the
use of so much force as is necessary for that purpose, and that
his only remedy therefor is by action upon his contract.^

Sec. 4. Sporting Licenses. — A license to shoot or fish for
a term amounts to a demise of an incorporeal hereditament
and can only be created by deed.^ But a license to do an act

1 BurtonK.Scherffjl Allen (Mass.)
133.

^ In Smith v. American Institute,
7 Daly (N. Y. C. P.) 526, it was held
that an exhibitor at a fair, who has
paid a license-fee for space in the
exhibition building, is liable to be
ejected, together with her goods, if
she persists in advertising the goods
exhibited by an indecent circular;
where it is expressly provided, as a,
condition of admission, that the man-
agers reserVe the right to refuse ad-
mission to any exhibitor whom they
may consider an improper person, and
also exclude any articles they may
deem objectionable. Indeed, where a
license is given upon a condition, there
can be no question but that the licensee
must conform to the condition, in
order to make the license operative as
a protection against liability for acts
done in pursuance of it. Dempsey v.
Kipp, 62 Barb. (N. Y.) 311 ; and there
can be no question but that certain
conditions may be implied which have
the same force as express conditions
would have.

3 Bird u. Higginson, 6 Ad. & El.
824; Thomas v. Fredricks, 10 Q. B. 775;

Bayley v. M. of Conyngham, 15 Ir.
C. L. R. 406; Perry v. Mtzhowc, 8
Q. B. 757 ; Hiil „. Lord, 48 Me. 83.
In Webber v. Lee, 45 L. P. n. s. 591,
an action was brought to recover
damages for the breach of an agree-
ment to share a shooting, and to pay
ilOO and one fourth of the expenses.
The defence denied the agreement,
and alleged that there was no memo-
randum in writing witliin the meaning
of the statute of frauds. At the trial
it appeared that the plaintiff was the
lessee of 500 acres of shooting, and
he advertised for a gentleman to
share the shooting and the shooting-
lodge with him. The advertisement,
after describing the shooting, went on
to say that the "lessee requires a
genial sporting companion to join
him on equal terms, paying £200 for
his half -share of shooting, and receiv-
ing half of total of game killed."
The plaintiff afterward wrote to the
defendant » letter in the following
terms : " I now write to say that if
you think a half-share would be more
than you could manage, I should be
very pleased to give you half of the
share I retain for ;. yself, i". ■"'"^

8 STATUTE OF PEATJDS. [CHAP. I.

on the land of another, if not an easement, or involving an
interest in real estate, may be given by parol,^ and under this
rule, it has been held that a license to insert beams in the
wall of a house, is not an interest in lands which must be in
writing,^ and the same has also been held as to a parol license
to float spars and timber on a stream ; ^ and in aU instances it
may be said that a parol license to enter upon the premises
of another for any purpose, which has been executed, affords a
complete defence to the licensee against an action for doing
such act, although, under the statute of frauds, it was void,
and if executed after it had been revoked, would have made
the licensee a trespasser.*

Sec. 5. Freehold Interest running with Inheritance. — A

grant of a freehold interest running with the inheritance
cannot bind a stranger to the grantor unless the grant was
by deed.^ Thus, the owner of land sold the standing wood
thereon, with a license to the purchaser to enter upon the
land and remove it within a certain time. But, before the
license was acted upon, he conveyed the premises to a third
person who knew of the license, and it was held that the
license was revoked by the conveyance, and could not be
enforced against the purchaser of the land, notwithstand-
ing his knowledge of the facts,® the rule being that a parol

from the 1st September to the 1st to use the land, for it conveys an
February, shooting with equal liberty interest in the land coupled with a
with myself, and a quarter of the participation in the profits, and so is
total game killed. . . . The shooting within the statute of frauds, and
days could "he arranged to suit our ought to be in writing ; and that judg-
convenience." It was afterwards ment must be for the defendant,
agreed between the plaintiff and de- i Snowden v. Wilas, 19 Ind. 10.
fendant, by word of mouth, that the ^ McLarney v. Pettigrew, 3 E. D. S.
defendant should take half of the (N. Y. C. P.) 111.
plaintiff's share and one fourth of ^ Rhodes v. Otis, 33 Ala. 578.
the game killed. Subsequently, the * Pratt v. Ogden, 34 N. Y. 20 ; Mar-
defendant refused to carry out this ston v. Gale, 24 N. H. 176 ; Walter v.
agreement. The jury found a verdict Post, 6 Duer. (N. Y.) 363; Arrington
for the plaintiff for £40. But the v. Larrabee, 10 Cush. (Mass.) 512;
verdict was set aside, the court hold- Houston v. Laffee, 46 N. H. 505; Carl-
ing that an agreement which entitles ton v. Reddington, 21 id. 291 ; Owen
one party to it on the payment of w. Field, 12 Allen (Mass.) 457.
money to go upon the land of the » Perry v. Fishowe, 8 Q. B. 757 ;
other party and exercise sporting Lord v. Hill, 48 Me. 83.
rights and take away a proportion of ^ Drake v. Wells, 11 Allen (Mass.)
the game killed to his own use, is 141.
more than a mere revocable license

SEC. 6.] PAROL LEASES. ■ 9

license to do an act upon another's land is revoked either
by the death of the licensor or the conveyance of the i^rem-
ises by him,^ and neither the knowledge by the executor of
the licensor or his grantee, of the fact that such license had
been given, will save it from the operation of this rule.^

Sec. 6. Parol License, when Revocable. — A mere parol
license, not coupled with an interest in the land, is revocable
at any time, although it has been executed, and the licensee
has, in acting upon it, been put to expense. Thus, where the
lord of the manor granted a license to build a cottage on the
waste, and the license had been executed, and the cottage
inhabited by the licensee. Lord Ellenbokottgh said : " A
license is not a grant, but may be recalled immediately, and so
might this license the day after it was granted." ^ So where
the plaintiff, on the faith of a parol agreement, for valuable
consideration made a channel for water on the defendant's
land, but no conveyance of the land was made to the plain-
tiff; it was held that the defendant was entitled to revoke the
license.* In a Massachusetts case ^ it was held that an oral
license, given by the owner of land, to lay an aqueduct across
his land, is revocable, and that, after its revocation, the owner
of the land was justified in cutting it off, and that a court of
equity would not restrain him from so doing. In Rhode
Island^ a parol license to the owners and occupants of one
farm, in perpetuity, to pass and repass with their servants,
horses, carts, carriages, etc., in a way prescribed, over an
adjoining farm, given by the owner of the latter farm, was
held to be, at law, revocable at his pleasure, notwithstand-

1 Eggleston v. N. Y. &c. K. R. Co., Duer. (N. Y.) 255; Kimball v. Yates,

35Barb. (N.Y.)162; Carter w. Harlan, 14 111. 464; Clute v. Carr, 20 Wis.

6 Md. 20; Whittaker v. Canthome, 3 531 ; Turner v. Stanton, 42 Mich. 506;

Dev. (N. C.) L. 389. Druse v. Wheeler, 22 Mich. 439.

" Drake v. Wells, ante. * Pentiman v. Smith, 4 East, 107.

8 Eex V. The Inhabitants of Hem- And see Cocker v. Cowper, 1 C. M. &

don-on-the-Hill, 4 M. & Sel. 565. See E. 418 ; Hewlins v. Shippam, 5 B. &

also Kex t). Inhabitants of Geddington, C. 221; 7 D. & R 783; Bryan v.

2 B. & C. 129 ; Rex v. Inhabitants of Whistler, 8 B. & C. 288 ; 2 M. & R.

Hagworthingham, 1 B. & C. 634 ; Rex 318 ; Adams v. Andrews, 15 Q. B.

V. Warblington, 1 T. R. 241 ; Rex v. 284 ; Taplin v. Florence, 10 C. B. 744.
Inhabitants of Standon, 2 M. & Sel. ^ Owens v. Field, 12 Allen (Mass.)

461 ; Duinneen v. Rich, 22 Wis. 550 ; 457.

Hetfield v. Central R. R. Co., 29 N. J. « Foster v. Browning, 4 R. I. 47.

L. 571; Jamieson i/. Milleman, 3

10 STATUTE OF FRAUDS. [CHAP. 1.

ing the licensee had, upon the faith of it, made expenditures
of money and labor in building the prescribed way. Nor is
a license rendered irrevocable by the circumstance that it is
in -writing and under seaP or predicated upon a considera-
tion.2 Thus, in the case last cited, the parties owned adjoin-
ing lots in the city of Syracuse. The defendant had a private
drain connecting with the public sewer in another street. In
consideration of seven dollars he gave the plaintiff a writing
stating that the money was for the right to drain through
his premises, and in pursuance of it the plaintiff built a plank
drain connecting with the defendant's, and of the same size.
After more than twenty years the plaintiff substituted a tile
drain of greater capacity, which caused an overflow into the
defendant's cellar. The defendant then cut the connection
and refused the plaintiff access to the premises to repair the
drain. The court held that an action would not lie against
the defendant therefor, as the license granted by him Aras
revocable at any time, notwithstanding it had been enjoyed
for more than the prescriptive period, and was in writing
predicated upon a consideration and executed.^ Of course,
an occupancy under a license can never ripen into a title
however long continued, because, as in the case of an ordinary
tenancy, the occupancy is in subservience to and recognition
of the title of the licensor,* and such an occupancy has none
of the elements requisite to create a prescriptive right.

Sec. 7. License coupled with Interest in Land Irrevocable. —
A parol license, coupled with an interest in the land, is,

1 Jacksont).Babcock,4John. (N. Y.) was not precluded from revoking such
418; Wiseman w. Lucksinger, 84 N. Y. license, and that the ease did not
31 ; 38 Am. Eep. 479. show such an agreement, as would

2 Wiseman v. Lucksinger, ante ; warrant a court of equity in decree-
Hewlins v. Shippam, 5 B. & C. 221. ing a specific performance in Wlieeler
In Johnson v. Skillman, 29 Minn., 95; v. Reynolds, 66 N. Y. 227 ; Hazelton
43 Am. Rep. 192, it was held that, v. Putnam, 3 Pin. (Wis.) 107; Wise-
where a person had orally promised • man v. Lucksinger, ante ; Bankart v.
others that, if they would erect a good Tennant, L. R. 10 Eq. 141.

custom mill at a certain point on their " Bahcock v. Utter, 1 Abb. (N. Y.)

own land, he would give them the App. Dee. 27; St. Vincent Orphan

privilege of flowing his land so long Asylum v. Troy, 76 N. Y. 108 ; 32

as they would maintain the mill ; in Am. Rep. 286.

pursuance of which, and induced partly * Wiseman v. Lucksinger, ante;

by such promise, such persons at large St Vincent's Orphan Asylum v. Troy,

expense erected said mill, the licensor ante.

SKC. 7.] PAROL LEASES. 11

however, irrevocable, when it has been executed and the
right extinguished. Thus, in Liggins v. Inge,' the plaintiflFs'
father, who was entitled to a flow of water to his mill
over the defendants' land, by a parol license, allowed the de-
fendants to cut down and lower a bank, and erect a weir
upon their own land, the effect of which was to divert the
water required for the working of the plaintiffs' mill into
another channel ; it was held that the plaintiffs could not
maintain an action against the defendants for continuing the
weir.2 But, where it is sought to couple with a hcense a
parol grant of an interest in land, the attempted grant being
void, the transaction remains a mere license. Thus, in
Wood V. Leadbitter,^ Aldeeson, B., said : " It may be
convenient to consider the nature of a license, and what
are its legal incidents. And, for this purpose, we can-
not do better than refer to Lokd C. J. Vatjghan's elabo-
rate judgment in the case of Thomas v. Surrell, as it appears
in his reports. The question there was, as to the right of
the Crown to dispense with certain statutes regulating the
sale of wine, and to license the Vintners' Company to do cer-
tain acts, notwithstanding those statutes. In the course of
his judgment the Chief Justice says:* 'A dispensation or
license properly passeth no interest, nor alters or transfers
property ,in anything, but only makes an action lawful, which,
without it, had been unlawful. As a license to go beyond
the seas, to hunt in a man's park, to come into his house, are
only actions, which, without license, had been unlawful.
But a license to hunt in a man's park, and carry away the
deer killed to his own use ; to cut down a tree in a man's
ground, and to carry it away the next day after to his own
use, are licenses as to the acts of hunting and cutting down
the tree, but as to the carrying away of the deer killed and
tree cut down, they are grants. So, to license a man to eat
my meat, or to fire the wood in my chimney to warm him
by, as to the actions of eating, firing my wood, or warming
him, they are licenses; but it is consequent, necessarily to

1 7 Bing. 682 ; 5 M. & P. 712. & Gr. 657 ; Davies v. Marshall, 10 C.

2 And see "Winter v. Brocklewell, 8 B. (N. S.) 697.

East, 308 ; Blood v. Keller, 11 Ir. C. » 13 M. & W. 844 ; 14 L. J. Ex. 161 ;

L. K. 124 ; Salter v. WooUams, 2 Man. the facts of which are stated ante.

* Vaugh. 351.

12 STATUTE OF FKATTDS. [CHAP. I.

those actions, that my property may be destroyed in the meat
eaten, and in the wood burnt. So, as in some cases, by con-
sequent and not directly, and as its effect, a dispensation or
license may destroy and alter property.' Now attending to
this passage, in conjunction with the title ' License ' in
Brook's Abridgment, from which, and particularly from
paragraph 15, it appears that a license is in its nature revoc-
able, we have before us the whole principle of the law on
this subject. A mere license is revocable : but that which is
called a license is often something more than a license; it
often comprises or is connected with a grant, and then the
party who has given it cannot in general revoke it, so as to
defeat his grant to which it was incident. It may further be
observed, that a license under seal (provided it be a mere
license) is as revocable as a license by parol ; and, on the
other hand, a license by parol, coupled with a grant, is as
irrevocable as a license by deed, provided only that the grant
is of a nature capable of being made by parol.^ But where
there is a license by parol, coupled with a parol grant, or
pretended grant, of something which is incapable of being
granted otherwise than by deed, there the license is a mere
license ; it is not an incident to a valid grant, and it is there-
fore revocable. Thus, a license by A to hunt in his park,
whether given by deed or by parol, is revocable ; it merely
renders the act of hunting lawful, which, without the license,
would have been unlawful. If the license be, as put by
Chief Justice Vaughan, a license not only to hunt, but
also to take away the deer, ,when killed, to his own use, this
is in truth a grant of the deer, with a license annexed to
come on the land ; and supposing the grant of the deer to be
good, then the license would be irrevocable by the party who
had given it : he would be estopped from defeating his own
grant, or act in the nature of a grant. But suppose the case
of a parol license to come on my lands, and there to make a
water-course, to flow on the land of the licensee. In such a
case there is no valid grant of the water-course, and the
license remains a mere license, and therefore capable of being
revoked. On the other hand, if such a license were granted

1 See also "Wood v. Manley, 11 Ad. & El. 34; Peltham v. Cartwright 5
Bing. (N. C.) 569.

SEC. 7.J PAKOL LEASES. 13

by deed, then the question would be on the construction of
the deed, whether it amounted to a grant of the water-course;
and if it did, then the license would be irrevocable." A
license is always revocable where the act licensed to be done
is to be done upon the land of the licensor, and if granted by
deed, would amount to an easement ^ for the reason that a
freehold interest in lands can only be created or conveyed by
deed, and an easement, as we have already seen, can only be
created by deed or prescription.^

A license to dig for tin, and to dispose of the tin so ob-
tained, was held to be irrevocable, on account of its carrying
an interest in the ore.* An executed license cannot be re-
voked as to the part executed, nor, where the license has
been in part executed, so as to convert the interest of the
licensee from an interest in lands into an interest in per-
sonal-property, can the license be revoked so as to prevent
the licensee from obtaining possession of such personal prop-
erty. Thus, a license to enter upon the lands of the licensor
and cut and carry away standing timber thereon, may be re-
voked at any time before any of the timber is cut.* But if
an entry is made under the license, and any portion of the
timber cut, before the license is revoked, it cannot be revoked
as to the timber cut, so as to prevent the licensee from enter-
ing, within a reasonable time, to take it away. Thus, where
parties entered into an oral contract that the defendant
should cut certain trees upon the plaintiff's land, peel them,
and take the bark to his own use, and pay therefor a certain
price per cord, and in pursuance of the contract the defend-
ant entered upon the land, cut the trees and peeled them, it
was held that the plaintiff could not revoke the license nor
prevent the defendant from taking away the bark, and that
his entry upon the land for the purpose of taking and carry-
ing away the bark, after he had been forbidden to do so,
was not a trespass, but a lawful and justifiable act.^ An
authority coupled with an interest is irrevocable. That is

1 Morse w.Copeland, 2 Gray (Mass.) ' Doe u. Wood, 2 B. & Aid. 738;
302. and see Northam v. Bowden, 11 Exchq.

2 Morse v. Copeland, ante ; Cook v. 70 ; 24 L. J. Ex. 237.
Stearns, 11 Mass. 533 ; Cobb v. Eisher, * Drake v. Wells, ante.

121 Mass. 169 ; Stevens v. Stevens, 11 ^ Nettleton o. Sikes, 8 Met. (Mass.)
Met. (Mass.) 251. 134.

14

STATUTE OF FRAUDS.

[chap. I.

to say, where an agreement is entered into on a sufficient
consideratibn, whereby an authority is given for the purpose
of securing some benefit to the donee of the authority, such
an authority is irrevocable.-'

Sec. 8. Distinction bet-ween a Iiicense and a Lease. — No
contract, whether by parol or in writing, can operate as a
lease, even though words of demise are used therein, if it is
evident that such was not the intention.^ A lease for any
term, whether long or short, is a contract for the exclusive
possession of land,^ while a contract which merely gives to an-
other the right to use premises for a specific purpose, the owner
of the premises, or the party giving the right, still retaining the

1 Smart v. Sandars, 6 C. B. 917 ;
Taplin v. Florence, 10 C. B. 744;
Gaussen v. Morton, 10 B. '&. C. 731.

2 Taylor v. Caldwell, 3 B. & S. 826.
In Cook V. Stearns, 11 Mass. 533,
Pakker, C.J., pointed out the dis-
tinction between a license and a lease
as follows: "A license is technically
an authority to do some one act, or
series of acts, on the land of another
without passing any estate in the land,
such as a license to hunt in another's
land, or to cut down a certain number
of trees. These are held to be re-
vocable while executing, unless a
definite time is fixed, but irrevocable
when executed. Such licenses to do
a particular act, but passing no estate,
may be pleaded without deed. But
licenses which, in their nature, amount
to granting an estate for ever so short
u time, are not good without deed,
and are considered as leases, and
must be pleaded as such." The dis-
tinction is obvious. Licenses to do
a particular act do not, in any de-
gree, trench upon the policy of the
law which requires that bargains re-
specting the title or interest in real
estates shall be by deed or in -writing.
They amount to nothing more than an
excuse for the act which would otherwise
be a trespass. But a permanent right
to hold another's land for a particular
purpose, and to enter upon it at all
times without his consent, is an im-
portant interest which ought not to

pass without writing, and is the very
object provided for by our statute."
Among the class of acts which can-
not be licensed by parol, is the right
to flood the land of another, either by
drippings from the roof of a building
or otherwise : Tanner v. Valentine,
75 111. 624; or to dig ditches upon
another's land for the purposes of
drainage or otherwise : Hitchens v.
Shaller, 32 Mich. 496 ; but in Hodg-
son u. Jeffries, 52 Ind. 834, such a
license, when executed, was held to
be irrevocable. But see Estes o.
China, 56 Me. 407, where a parol
permit to connect with a public
drain was held to be revocable. A
parol license to use running water
is not valid unless in writing : Allen
V. Fiske, 42 Vt. 462 ; nor is a verbal
permission to erect buildings upon
another's land: Druse v. Wheeler,
22 Mich. 439; or to construct a
road over another's premises : Demp-
sey V. Kipp, 62 Barb. (N. Y.) 311.
In Ohio it has been held that a writ-
ten license, without seal and unac-
knowledged, tg enter upon and im-
bed water pipes in the land of another,
with privilege to enter and repair
them, creates no interest in nor en-
cumbrance upon the land such as
will disable the owner thereof from
making a good and sufficient deed
conveying a good title thereto. Wil-
kins V. Irvine, 33 Ohio St. 138.
8 Eeg V. Morrish, 32 L. J. 245.

SEC. 8.]

PABOL LEASES.

15

possession and control of the premises, corners no right in the
land, and is not a lease, but only a license,^ and for the reason
that no interest in the land is conferred, is not within the stat-
ute of frauds, and may be given by parol. But, where the
privilege granted is of such a character as to carry with it an
interest in the land, it is a lease, and within the statute, and
must be in writing executed as provided by the statute, or it
has no validity,^ except as to acts already done under it, and
may be revoked at any time by the owner of the land.^ The

1 Taylor v. Caldwell, ante; Funk
V. Haldeman, 53 Penn. St. 229 ; Stock-
bridge Iron Works v. Hudson Iron Co.,
107 Mass. 290 ; Coleman v. Foster, 1
H. & "W. 37 ; Williams .,. Jones, 3 H.
& C. 256 ; Hill v. Tupper, 2 id. 121 ;
Cornish v. Stubbs, 39 L. J. C. P.
206, and is a personal privilege, and
cannot be assigned or transferred to
another. Foot v. N. H. &c. R. R. Co.,
23 Conn. 214 ; Dark v. Johnston, 55
Penn. St. 154 ; Cahill u. Bigelow, 18
Kck. (Mass.) 869; Robison v. Uhl,
6 Neb. 328 ; Rickards v. Cunningliam,
Neb. S. C. 1880 ; Carter v. Harlan, 6
Md. 29 ; Cook v. Stearns, 11 Mass. 113 ;
Amsinck v. Am. Ins. Co., 129 id. 185;
Prince v. Case, 10 Conn. 375 ; Seiden-
sparger v. Spear, 17 Me. 123 ; Chica-
go Dock Co. V. Kinzie, 49 111. 289 ;
Simpkins v. Rogers, 15 111. 397, and
is only binding as to third persons
when it has been so far executed as
to create an equity of which they had
notice at the time of the conveyance
to them. Wilson v. Chalfant, 15 Ohio,
247; Ricker v. Kelly, 1 Me. 117; Re-
nick V. Kearn, 14 S. & R. (Penn.)
267.

2 Selden v. Del. &e. Canal Co., 29
N. T. 634; Brown v. Woodworth, 5
Barb. (N. Y.) 550.

8 Huff u. McCauley, 53 Penn. St.
206; Marston v. Gale, 24 N. H. 176;
Kimball v. Yates, 14 111. 464 ; Dodge
V. McClintock, 47 N. H. 383; Owen v.
Field, 12 Allen (Mass.) 457; Houston
V. Laffee, 46 N. H. 505; Carlton v.
Eedington, 21 id. 291. But the rule
relative to revocation is not uniform,
and in some of the States it is held,
that a license granted upon a con-

sideration is not revocable. Wilson
V. Chalfant, 15 Ohio, 248; Snowden
V. Vilas. While in others it is held,
that the circumstance that a con-
sideration is agreed upon does not
render such a, contract irrevocable
when it gives an interest in lands.
Huff V. McCauley, ante. Where
valuable improvements have been
made upon land under a license, as
where a railroad has been built,
buildings erected, etc., it is held, in
Pennsylvania, not to be within the
statute of frauds, and irrevocable.
Cumberland &c. R. R. Co. v. McLa-
nahan, 59 Penn. St. 33; Davis v.
Sander,, 10 Phila. (Penn.) 113. In
New Jersey, after a license has been
executed by the outlay of large sums
of money or the erection of substan-
tial improvements, — although such
license is inoperative at law, — a court
of equity will enjoin its revocation,
even though the license is not express.
The rule in that State may be stated
as follows: When the enjoyment of
improvements of a permanent nature,
erected by a person upon his own
land, depends upon a right affecting
the land of another proprietor whose
consent is necessary to the exercise
of such right, if the giving of such
consent is expressly proved, or neces-
sarily implied from the circumstances,
and the improvements were made in
good faith, upon the strength thereof,
equity will not permit advantage to
be taken of the form of the consent, —
although the same was not in accord-
ance with the strict mode of the com-
mon law, or was within the statute of
frauds, — but will, upon proper bill

16

STATUTE OF FEAUDS.

[chap. I.

distinction between a mere license and a lease is more forcibly-
illustrated by the circumstance, that a license given by a land-
owner does not prevent him from giving a similar right to

filed, enjoin the licensor from accom-
plishing his fraud and protect the
right of the licensee. Raritan &c.
Co. u. Veghte, 21 N. J. Eq. 463.
And the doctrine of estoppel in such
cases is also applied in Ohio and where
a land owner permitted a canal com-
pany to construct and use, as a high-
way, a canal through his lands, — al-
though the use had been for but a
few years, — it was held, that he
was thereby estopped from enforcing
his claim to the possession of the land.
Pierson v. Cincinnati &e. Canal Co.,
2 Dis. (Ohio) 100. And the same rule
is adopted in Georgia, and equity will
treat the license as an agreement to
convey the right, and will decree its
specific performance where the licen-
see has made large expenditures in
pursuance of it. Cook v. Prigden,
45 Ga. 331. In Illinois, where the
owner of a, lot of ground contem-
plated the erection of a frame build-
ing thereon, the owner of a brick
house on the line of an adjacent lot
proposed to him that if he would
build of brick he might use the brick
wall of the house for the purpose of
attaching thereto the proposed new
building, and the proposition was ac-
cepted, and the new house was built
of brick, and attached to the wall of
the other building, as suggested. It
was held : 1. That the license to use
and attach to the wall, after the ex-
penditure of money in the erection of
the new building, as induced by the
permission, was irrevocable. 2. That
the subsequent grantee of the party to
whom the license was given succeeded
to his equitable rights in respect there-
to. 3. That the party granting the li-
cense being estopped from its revoca-
tion, the estoppel embraced privies as
well as parties, and precluded all who
claim under the person originally
barred. 4. That the execution of the
parol permission supplied the place
of a writing, and took the case out
of the statute of frauds, Russell

V. Hubbard, 59 111. 335. In Nevada,
it is held that a parol license to
erect a dam upon the licensor's land,
for the purpose of running a mill, is
held to become irrevocable when the
licensee has expended money, by erect-
ing the mill, etc., upon the faith of the
license, and his continued enjoyment
will be protected in equity. Lee v. Mc-
Leod, 12 Nev. 280. In Missouri, in
Boone v. Stover, 66 Mo. 430, it was
held that an instrument in writing,
under seal, granting permission to
mine on a certain lot, so long as the
grantees do regular mining work on
the lot, is a license and a grant of an
incorporeal hereditament, which is not
revocable except for breaches thereof
by the grantee, and contains, in effect,
a covenant on the part of the grantor
that the grantee, in respect to his min-
ing privileges, shall be free from the
interruptions or claims of others, and
such an instrument is not a lease, for
the reason that it does not pass such
an estate in possession on the land as
would entitle the grantee to maintain
ejectment. In'an Indiana case, in a
suit to recover real estate, the answer
alleged that defendant, a railroad com-
pany, had expended large sums in
building a track upon the land, under
a parol license from plaintiff, with an
agreement that the damages to the
land would thereafter be settled, and
that plaintiff had knowledge of what
defendant had done, it was held, on
demurrer, that the answer was suffi-
cient, and that it was not necessary
to allege to what officer or agent of
the company such license was given.
Buchanan v. Logansport, C^a^vfo^ds-
ville &o. Ry. Co., 71 Ind. 265. In
these States as well as in others, where
this principle is applied, a, court of
equity will enforce a parol license
in all cases where it has been ex-
ecuted i BO that, if it had been a con-
tract for the sale of lands, it would
be enforced on the ground of part
performance,

SEC. 8.J PAHOL LEASES. 17

others, if it does not interfere with the exercise of the right con-
ferred upon previous licensees. Thus, in a New Jersey case,^
it was held that a contract simply giving the right to take ore
from a mine, no interest or estate being granted, merely con-
ferred a license under which the licensee acquired no right to
the ore until *he separates it from the freehold, and that, unless
so specially expressed, it did not confer an exclusive privi-
lege ; and the general rule may be said to be that a license
to dig and take ore is never exclusive of the licensor unless
expressed in such words as clearly show that such was the
intention of the parties, and the same right may be given to
other parties.^ In the case last cited, such a license was held
to be like a grant of common sans nombre, which never
excludes the grantor from enjoying the common with his
grantee. LoED Ellenboeottgh, in a more modern case,^
gave his assent to this doctrine, and declared that " a liberty
reserved of digging coals could not give the person reserving
it the exclusive right to them. No case can be named," said
he, " where one who has only a liberty for digging for coals
in another's soil, has an exclusive right to the coals so as to
enable him to maintain trover against the owner of the estate,
for coals received by him." A similar doctrine was held in
the United States Supreme Court.* In that case, the license
gave the licensee the right to dig and carry away all the iron
ore to be found in certain designated lands. The court held
that this did not amount to a grant of the ore, but merely
authorized the hcensee to take away so much as he might
dig. The word " all " was held to show merely the extent of
his license as to quantity, that is, that he was entitled to dig
all the iron ore there was in the land, and that he acquired
no title to any of the ore, until he had separated it from the
freehold. This principle is illustrated in cases where a license
to occupy buildings is given. Thus, in an English case,^
where a hall was to be let for four nights at £100 a day, for

1 Silsby V. Trotter, 29 N. J. Eq. (TJ. S.) 81. See also to the same effect
228. See also Carr o. Benson, L. K. Eunk v. Haldeman, 53 Penn. St. 229;
3 Ch. App. 524. Stockbridge Iron Co. v. Hudson Iron

2 Mountjoy's Case, And. 307. Co., 107 Mass. 290; Carr v. Benson,
8 Chetham v. "WilUamson, 4 East, L. R. 3 Ch. App. 524.

469. ' ' Taylor c. Caldwell, 3 B. & S.

4 Grubb V. Bayard, 2 "Wall, Jr. 826.

18 STATUTE OF FEAUDS. [CHAP. I.

the purpose of giving four concerts, and day and niglit/^fe8,
it was held that this amounted to a mere license only, and
was not a demise, because it was evident that the owner was
not to part with the possession of the premises during the
four days. In another case,i A paid B twelve shillings a
week for permission to put his loom machines in a room in
B's factory, and for ingress and egress for himself and work-
men, for the purpose of inspecting and working the machines,
and for the steam-power to run them, which was furnished
by B ; and it was held that this did not amount to a lease
to A of any part of the room, and that the relation of land-
lord and tenant was not thereby created, but only that of
licensor and licensee. Nor does the relation of landlord and
tenant arise under a contract for board and lodging, even
though a particular room is assigned to the lodger, as in such
a case the general possession, care, and control of the build-
ing remains in the person who lets the lodger into posses-
sion.2 But where the contract is such as to divest the land-
lord of all possession or right to the possession or control of
certain specified rooms, it amounts to a lease and is within
the statute.^ It has been held that a grant by a riparian
proprietor to a person, of a right to take water from a natural
stream, on which his land abuts, is a mere license in gross,
and that the licensee has no such interest as will enable him
to maintain an action against a wrong-doer.* But, while this
is true of a license which does not confer an interest in the

^ Handcock v. Austin, 14 C. B. n. maintain an action against a stranger

s. 429. who disturbed liis right by putting

2 White V. Maynard, 111 Mass. and using pleasure boats upon the

250 ; and in this case an oral contract canal, and letting them for hire. See

by the keeper of a boarding-house to also Bird v. Gt. Eastern R. K. Co., 19

provide a man and his wife with board C. B. N. s. 268, where a similar doctrine

for six months, and with three speci- was held in reference to a license to

fied rooms, was held not to be a lease, hunt and shoot game on certain lands,

or within the statute of frauds. But see Freeman v. Underwood, 66

8 Inman v. Stamp, ante; Edge v. Me. 229, where it was held that an

Strafford, ante. instrument from the owner of land to

* Stockport Water "Works Co. v. a licensee, granting him all the timber.

Potter, 3 H. & C. 300. In Hill v. grass, and berries that may be found

Tupper, 2 id. 121, it was held that the or grown upon the land for a term of

grant by deed by a canal company to years, and giving him possession for

a person of the exclusive right to the purpose of managing and enjoy-

put pleasure boats on their canal, ing the property granted, is valid be-

did not confer upon the grantor such tween the parties, and entitles the

an interest as would enable him to licensee to sue in his own name for

SEC. a]

PAROL LEASES.

19

lands, yet, when the license is coupled with an interest, so that
it is assignable, the rule is otherwise,^ and such an interest
cannot be conferred by parol? and where it is attempted, it is
void, and revocable at any time at the will of the licensor,^
and under this head are included a license to cut and carry
away standing wood or timber ; * to erect partition fences ; ^
to pass over another's land with teams, etc., in perpetuity ; ^
to flow another's land by means of a dam or otherwise ; ^ or
to erect a building on the licensor's land ; ^ but acts done in
pursuance of such license are justified thereby, but not acts
done after, revocation, whether the revocation is by the act
of the parties, or operation of law.^ But in some of the
States it is held that a parol license may become operative
by way of estoppel, so as to become irrevocable where it has
been executed, and its execution involved a large expendi-
ture of money, which was made with the knowledge or tacit
assent of the licensor ; i" while in others it is held that a parol

any of the productions of the land
unlawfully taken therefrom during his
term by strangers.

1 GofEi;. Obertuffer, 3 Phila. (Penn.)
71.

2 Foot V. N. H. &c. U. R. Co., 23
Conn. 214; Collins Co. v. Marcy, 25
id. 238.

8 Tanner v. Valentine, 75 111. 624;
Brown v. Wadsworth, 5 Barb. (N. Y.)
550; Selden v. Del. & Hud. Canal Co.,
29 N. Y. 634 ; Stevens v. Stevens, 11
Met. (Mass.) 201.

* Giles V. Simonds, 15 Gray (Mass.)
441 ; Drake v. Wells, 11 Allen (Mass.)
141 ; Dodge v. McClintock, 47 N. H. 383.

6 Haux V. Seat, 26 Mo. 178.

^ Foster v. Browning, 4 R. I. 47.

' Hall I,. Chaffee, 13 Vt. 150;
Clute V. Carr, 20 "Wis. 531; Foot v.
R. R. Co., ante.

* Arrington v. Larrabee, 10 Cush.
(Mass.) 512 ; Collins Co. w. Marcy, ante.

8 Foot u. N. H. R. R. Co., ante;
Cayuga R. R..Co. o. Niles, 13 Hun
(N. Y.) 170. If, after a license is re-
voked, the licensee goes on and makes
erections upon the land, such erections
become a part of the land and be-
long to the owner thereof. Druse
V. Wheeler, 26 Mich. 189. A license,

in effect, is an excuse for an act which
would otherwise be a trespass. Owon
V. Lewis, 46 Ind. 489. And acts done
in pursuance thereof are considered
the same as though done by the
licensor, and enure to the benefit of
the party holding a title under which
the licensor took possession. Wing
V. Hall, 47 Vt. 182. But in Indiana it
is held that the license must be spe-
cially pleaded, and cannot be given in
evidence under the general issue.
Chase v. Long, 44 Ind. 427.

10 Lane v. Miller, 27 Ind. 584;
Fuhr V. Dean, 26 Mo. 116; Snowden
V. Wilson, 19 Ind. 10 ; Tanner v. Val-
entine, 75 111. 624. In Wilson v. Chal-
fant, 15 Ohio, 248, it was held that
one who enters under a parol license,
given for a consideration, and erects a
fixture, may maintain trespass against
the owner of the land if he interferes
with it ; but this doctrine is not gener-
ally recognized ; and in Owen v. Field,
12 Allen (Mass.) 457, it was held that
a license to lay an aqueduct across
the licensor's lands might be revoked
any time even after the aqueduct was
laid, and that no liability attaches
against the licensor for cutting it off,
after its revocation.

20 STATUTE OF PEATTDS. [CHAP. I.

license, whicli is executed, cannot be revoked without' first
reimbursing the licensee for all expenditures made in pursu-
ance of such license ; ^ and in others, if it is founded upon a
consideration ; " and in others, if it is coupled with an inter-
est in personal property.^ But the rule established by the
better class of cases, may be said to be, that a parol license to
do an act upon the land of another which amounts to an ease-
ment therein, is void under the statute of frauds, and while
affording a justification for acts done in pursuance thereof
before it is revoked, may, at law, be revoked at the will of
the licensor, without reimbursing the licensee for any expen-
ditures made in executing it;* and that the licensee, after
the license is revoked, is liable to the licensor for all dama-
ges Avhich result from a continuance of the thing licensed.^

Sec. 9. Ho-w far a License Protects. What may be done

under. — In those cases where assent has been given to one
by another to do a certain act upon his land, the natural and
probable consequences of which are to produce a certain
result, and the person to whom assent is given goes on and
expends money on the strength of the assent and makes
erections of a permanent character; while the assent does
not give anj- interest in the land, and at law is revocable at
any time, even though given for a consideration,^ yet, a court
of equity, in a proper case, will enforce it as an agreement
to give the right, and particularly where its revocation would
operate as a fraud upon the licensee, or would be productive
of great hardship, will restrain its revocation.'^ But even at
law, a license is a full defence for all acts done under it,

1 Woodbury v. Parshley, 7 N. H. diversion of water upon his lands
237. erected by the defendants under a

2 Wilson V. Vilas, 19 Ind. 10 ; Wil- license from the plaintiff's grantor, as
son V. Chalfant, ante. the license was revoked by the con-

" Long V. Buchanan, 27 Md. 502; veyance and ceased to be operative

Claflin V. Carpenter, 4 Met. (Mass.) from that time. See also Cobb v.

580 ; Nelson v. Nelson, 0 Gray (Mass.) Fisher, 121 Mass. 169, where the same

385. rule was adopted under a similar state

* Cook V. Stearns, 11 Mass. 533; of facts.

Morse v. Copeland, 2 Gray (Mass.) s Huff v. McCauley, 53 Penn. St.

302 ; Stevens u. Stevens, 11 Met. 206 ; Houston v. Lailee, 46 N. H. 505 ;

(Mass.) 251. Hetfield v. R. E. Co., 29 N. J. L. 571.

6 Poot V. N. H. &c. R. R. Co., ante ' Veghte v. The Raritan &c. Co.,

In this case the defendant was held 19 N. J. Eq. 142 ; Brown v. Bowen, 30

liable for injuries resulting from the N. Y. 543 ; Wood on Nuisances, 347.

SEC. 9.]

PAEOL LEASES.

21

within the scope of the license before its revocation, but not
after.i But the license must not be exceeded, and in order

1 Wolfe V. Frost, 4 Sandf. (N. Y.)
Ch. 72; R. R. Co. v. McLaughlin, 59
Penn. St. 23 ; Cook v. Prigdon, 45 Ga.
331 ; Houston v. Laffee, 46 N. H. 508 ;
Bridges V. Purcell, 1 Dev. & B. <N. C.)
462; Mumford v. Whitney, 15 Wend.
(N. Y.) 379. As to the effect of a
license from one to do an act upon
the land of another, at law the case
of Hetfleld v. The Central R. R. Co.,
29 N. J. L. 571, is in point. In that
case, the charter of the defendant
authorized them to enter upon and
take the lands req^uired for their road,
but directed that they should not enter
without the consent of the owner.
The defendant entered upon the plain-
tifE's lands by his consent, but did not
take any conveyance from him, in the
manner required by law, in order to
give them right or title. The court
held that this consent did not dis-
pense with the necessity of a deed or
conveyance of the land or right, in
the form required by law. That it
was not a consent that was intended
to confer a title, and was revocable.
In Wood V. Leadbitter, 13 M. & W.
837, the question as to the effect of a
license arose in an action of assault
and battery. The evidence disclosed
that the plaintiff purchased a ticket
for the sum of one guinea, which en-
titled him to admission to the grand
stand. That the Earl of Ellington
was one of the stewards of the races,
and that the tickets were issued by
the stewards, but were not signed by
Lord Ellington. That under this
ticket the plaintiff entered the ground
on one of the race days, when the
defendant, who was a policeman, under
the directions of Lord Ellington, who
first ordered him to leave, upon his
refusing to do so committed the as-
sault complained of, using no more
force than was necessary for that pur-
pose. Upon the trial the judge di-
rected the jury that, assuming the
ticket to have been sold to the plain-
tiff under the sanction of Lord Elling-
ton, it still was lawful for Lord Elling-

ton, without returning the guinea, to
order the plaintiff to quit the enclo-
sure, and that after a reasonable time
had elapsed, if he failed to leave, then
the plaintiff was not on the ground
by the leave and license of Lord Ell-
ington, and the defendant would be
justified in removing him under his
orders, and this ruling was sustained
in Exchequer. In Miller v. The Au-
burn &c. R. R. Co., 6 Hill (N. Y.)
61, which was a case somewhat simi-
lar to that of Hetfield v. The Central
E. R. Co., before referred to, the de-
fendants erected their railroad ifith
an embankment upon Garden Street
in Auburn, interrupting the plaintiff's
access to his premises, in 1839, and
maintained it until 1842, when this
suit was brought. The defendants
offered to prove that the embankment
was raised under a parol license from
the plaintiff, but the proof was ex-
cluded by the court, and the case was
heard in the supreme court upon the
question of the admissibility of that
evidence. Cowen, J., among other
things, said : " If what the defendants
in this case proposed to show was
true, viz., that the plaintiff verbally
authorized the making of the railway,
while the authority remained, their
acts were not wrongful. License is
defined to be a power or authority.
So long as the license was not coun-
termanded, the defendants were act-
ing in the plaintiff's own right." In
this case the court uphold a license
as a defence until it is revoked, and
hold that it must be revoked before
an action can be brought ; but in
Veghte V. The Raritan Power Co.,
ante, the court held that the bringing
of the action is a revocation of itself,
and all that is necessary. But the
former would seem to be the better
rule, and the one generally adopted.
The following authorities will be
found applicable upon the question
of the effect of a license : Ex parte
Coburn, 1 Cow. (N. Y.) 570; Cook v.
Stearns, 11 Mass. 533; Ruggles v.

22

STATUTE OF FKAUDS.

[chap. I.

to operate as a defence at law for an act done in pursuance
of it, it must be shown that it covers the very act, for the
recovery of damages for the doing of which action is brought,
and if the license does not embrace the act to the full extent,
liability will attach for all such excess. Thus, if an action
is brought for an injury resulting from the flooding of land
by a dam erected by the defendant, it is not enough to show
that the plaintiff assented to or licensed the erection of the
dam, unless it appears that he could then have known or rea-
sonably foreseen that his land would be injured by the dam in
the manner complained of.^ If the dam itself is so erected as

Lesure, 24 Pick. (Mass.) 190; Prince
Ki ^ase, 10 Conn. 375 ; Kex v. Hern-
don-on-the-hill, 4 M. & S. 565 ; Penti-
man v. Smith, 4 East, 107 ; Hewlins v.
Shipman, 5 B. & C. 222; Bryan o.
"Whistler, 8 id. 288 ; Cocker v. Cowper,
1 C. M. & E. 418 ; Wallis v. Harrison,
4 M. & W. 538. It has been held in
some of the cases that the effect of a
license executed, as, for instance, to
enter upon land to erect- a house or
dam, and followed by user, is to give
the licensee a right to personal prop-
erty upon the land of the grantor,
and although revocable at will, yet
the licensee can enter for its removal,
although not to maintain or use the
property there. That the license is
irrevocable as to the right to remove
the property. Barnes v. Barnes, 6
Vt. 388; Prince v. Case, ante; Van
Ness V. Packard, 2 Pet. (U. S.) 143;
Cary.w. Ins. Co., 10 Pick. (Mass.) 540;
Marcy v. Darling, 8 id. 283. There
are a class of cafces, however, particu-
larly in Pennsylvania, where it is held
that where acts have been done, in
pursuance of a license and relying
upon it, the license operates as an
equi'..able estoppel, and the licensor
will be estopped from revoking it, to
the injury of the licensee, so long as
the license is not exceeded. But that
for all excess of use an action may be
maintained. Bridge Co. v. Bragg, 11
N. H. 102 ; Lefevre v. Lefevre, 4 S. &
E. (Penn.) 241; Ricker v. Kelly, 1
Me. 117 ; Hepburn v. McDowell,
17 S. & E. (Penn.) 383; Cook u.

Prigdon, 45 Ga. 331; 12 Am. E. 582;
Houston V. Laffee, 46 N. H. 608. In
Selden v. Del. & Hud. Canal Co., 29
N. Y. 634, where defendants entered
upon the lands of plaintiff by parol
license from him, and enlarged the
same, it was held that the license
operated as a defence to all that had
been done under it, but would not jus-
tify a maintenance of the same after
the license is revoked. The same was
also held in Mumford v. Whitney, 15
Wend. (N. Y.) 380; Foot v. N. H. &c.
Co., 23 Conn. 214; Eggleston v. N. Y.
& H. R. R. R. Co., 35 Barb. ( N. Y. Sup.
Ct.) 162. In Woodard v. Seeley, 11
111. 157, it was held that a, license by
deed or parol is always revocable,
unless coupled vrith an interest and
executed, and that then it is irrevoc-
able. In Kimball v. Yates, 14 111.
464, it was held that a parol license
to cross a man's farm is revocable at
any time, a.t the will of the licensor.
See also Roberts v. Rose, L. R. 1
Exchq. 82.

1 Bell V. EUiott, 5 Blackf. (Ind.)
113. In any event, if a license is
given under a misapprehension of the
effects of its exercise, it may at once
be revoked. Brown v. Bowen, 30 N.
Y. 619; Smith v. Scott, 1 Kerr (N. B.)
1; Allen v. Fiske, 42 Vt. 462; Eaton
V. Winne, 20 Mich. 156 ; Hamilton v.
Wudolf, 36 Md. 301; Dempsey v.
Kipp, 62 Barb. (N. Y.) 311 ; Eustis v.
Chiner, 56 Me. 407 ; Preeman v. Had-
ley, 33 N. J. L. 523 ; Giles v. Simonds,
16 Gray (Mass.) 401 ; Moye v. Tappan,

SEC. 9.J PAROL LEASES. 23

to produce damage to the lands of supra-riparian owners, it
is a nuisance, and parties injured thereby are not estopped
from a recovery for injuries therefor upon the ground of
acquiescence in its construction, MwZess it could reasonably
have bee7i ascertained or foreseen at the time of its erection that
it would produce the ill-results complained of. In this respect
it stands precisely upon the same ground as any other nui-
sance, and the rule in reference to acquiescence therein, and
estoppel by reason of acquiescence, is that, where a person
acquiesces in the erection or maintenance of anything that is
a nuisance per se, or that he might reasonably have foreseen
would become a nuisance, a court of equity will not interfere
by injunction to relieve him from the effects thereof, but his
remedy at law remains unless he has bound himself by grant
or license sufficient in law to bar an action, or unless the
party maintaining the nuisance has acquired a prescriptive
right to maintain it. The law presumes that when a man
assents to the doing of an act, he only assents to its being so
done as not to injure him?- But, while a license must not be
exceeded, yet it carries with it all the incidents necessary to
its exercise.^ Thus, a license to take stone from the licen-

23 Cal. 306 ; Drake v. "Wells, 11 Allen Morris, 8 M. & "W. 488 ; Patrick v.

(Mass.) 141; Miller v. State, 39 Ind. Colerick, Sid. 435; Anthony «. Haney,

267 ; Druse v. Wheeler, 22 Micji. 439 ; 8 Bing. 180. And it is apprehended

Dodge 0. McClintock, 47 N. H. 383. that this rule prevails, wherever the

1 Bankhardt v. Hougliton, 27 Beav. property of one is upon the premises
425, is a very full and acceptable of another without the fault of the
authority upon this point, and, except owner of the property, and under such
that the case is a, very long one, circumstances that the owner of the
it would be given here. See also premises has no claim or lien thereon,
McKnight v. Eatcliff, 44 Penn. St. legal or equitable, the owner may, if
159, where it was held that, though he can do so peaceably, doing as little
the plaintiffs, who were in the mining damage as possible, enter and take it
business, permitted the defendants in away. Stirling u. "Warden, 51 N. H.
the same business to operate through 217. In the case of Richardson v.
their gangway, yet that this permission Anthony, 12 Vt. 273, the defendant's
would not justify the defendants in cattle were found by him upon the
filling up the plaintiff's shaft with plaintiff's land. How they came there
■vraXer. was not shown, but it was admitted

2 A license to enter upon premises they had been in the plaintiff's pos-
may sometimes be implied, as, when session a year, and the plaintiff for-
the owner or occupant of the premises bade the defendant to enter his land
has taken and keeps the property of to take them away. The defendant,
another there, there is an implied against the protest of the plaintiff,
license to the owner of the property entered upon the land and drove
to enter and take it. "Williams u. them away, the plaintiff offering no

24

STATUTE OP FEAITDS.

[chap. I.

sor's land, carries with it the right to enter with teams to
draw them away, the right to be exercised carefully.^ And

1 Clark V. Vt. Central E. R. Co.,
28 Vt. 103. A licensee of land ia
liable to the licensor for all damages
arising from such a use of the prem-
ises — e.g., the yarding of sheep
affected with " the scab " — as makes
the soil communicate an infectious
disease to the property of the licensor,
the latter being ignorant of the dan-
ger thereof. Eaton v. Winne, 20
Mich. 156. It is well settled that the
mere permission to pass over lands
which are dangerous, either naturally
or by reason of the use which is made
of them, imposes no duty or obliga-
tion upon the owner of such lands,
except to refrain from acts which are
wilfully injurious or knowingly in the
nature of a trap, and except, also,
where there are hidden dangers, the

concealment of which would be in
the natiire of a fraud. He who en-
joys the permission or passive license
is only relieved from the responsi-
bility of being a trespasser, and must
assume all the ordinary risk attached
to the nature of the place, or the
business carried on there. Vander-
beck V. Hendry, 34 N. J. L. 467. A
railroad left a large lot, traversed by
sidings, open for the convenient access
of the public in loading and unload-
ing lumber. It also suffered the pub-
lic to use its track to pass and repass
from one side of the city to another.
It was held that the license created the
duty on the part of the company to
use their track so as not to endanger
personal safety. Kay v. Pennsylvania
R. R. Co., 65 Penn. St. 269.

physical resistance. The court held
that the defendant was justified in his
entry for that purpose, and that an
action of trespass would not lie against
him therefor. Williams, J., in de-
livering the opinion of the court, said :
" The time during which the cattle re-
mained in the plaintiff's possession is
of no importance. The manner in
which they came there would be.
The right of the owner of personal
property to enter on the premises of
another to reclaim property, may de-
pend upon the manner in which pos-
session was obtained. It appears to
be well established that if one man
takes the goods of another, and puts
them on liis own land, the owner may
enter and take them. ... In the
absence of any evidence as to how the
heifers in question came into the en-
closure of the plaintiff, when it may
be as well presumed that they came
there with his consent, and without
any neglect on the part of the defend-
ant, as the contrary, and when the
evidence , discloses that he detained
them under a wrongful claim, we con-
sider that the defendant was justified
in entering the enclosure to take his

own property." Bennett, J., dissented
from the opinion of the court, but
his dissent was predicated upon the
ground that the cattle had remained
so long in the plaintiff's possession as
to invest him with a quasi property
therein, of which he could not be
divested in such a summary manner.
But the opinion of the court has many
authorities -in its support, and is
predicated upon principles of natural
justice. In Allen v. Peland, 10 B.
Mon. (Ivy.) 306, it was held that where
ope has property upon the premises
of another, he may, if he can do so
peaceably, enter and take it. In
Stirling v. Warden, 51 N. H. 217, 12
Am. Rep. 80, the plaintiff had for-
merly been postmaster, and used a,
part of his house for a post-office.
Another person having been appointed
postmaster, the defendant by such
new appointee was appointed deputy
postmaster, and was directed by him
to go to the plaintiff's house and
bring away the property there belong-
ing to the government. The plaintiff
resisted the taking of the property,
and the defendant reasonably repelled
his assault and took away the proper-

SEC. 9.]

PAROL LEASES.

25

a license to take wood from certain premises carries with it
the right to enter to cut and draw it away ; ^ and a license to
cultivate land carries with it as an incident, the right to enter
and remove the crops.^ A license to "inhabit or enjoy " cer-

1 Clark V. Vt. &c. R. R. Co., 28 Vt. » Com v. Rigney, 4 Allen (Mass.)
103; DriscoU v. Marshall, 15 Gray 416; Cornish w. Stubbs, 39 L. J. C. P.
(Mass.) 62. 206.

ty. The court held that an action of
trespass would not lie therefor. But
see Hupport i. Morrison, 27 Miss.
365, where it was held that unless
property belonging to one is in the
wrongful possession of another, he
will not be justified in going upon liis
premises to take it away, unless he
can do so peaceably, and will not be
justified even in repelling an assault
made upon him by the owner of the
estate, unless it is excessive. In
Gardner u. Rowland, 2 Ired. (N. C.)
247, a similar doctrine was held, ex-
cept that in that case the defendant
was held liable because he let down
the fence to drive his hogs out of the
plaintiff's premises, instead of driving
them through the gap in the fence
through which they entered, or, to use
the language of the court, "because
he let down the fence, instead of
driving them through a gap or g?ite,
when there is one." In Adams v.
Mclvinney, Addis. 258, it was held
that if J S, who ought to keep up a
fence between a close of his and a
close of J N, suffer the same to be
out of repair, and the beast of J N go
through the fence into the close of
J S, trespass does not lie, and J S may
pursue his cattle and drive them back
on to his own close, because tlie dam-
age happens from the fault of J N.
In Merrill v. Goodwin, 1 Root (Conn.)
209, the defendant entered upon the
plaintiff's premises and cut a tree in
which he had found a swarm of bees.
It did not appear that the bees es-
caped from his hive, and the court
held him a trespasser ; but the court
plainly intimated that, if the bees had
escaped from the defendant's hive, be
would have been justified in doing all
that was necessary to reclaim his bees.

But, while bees so escaping from a
hive may be reclaimed by the owner,
if they can be identified, yet the
owner of the bees cannot enter upon
the premises of another and cut the
tree in which they are, without sub-
jecting himself to an action of tres-
pass, and liability to the extent of the
actual damages to the soil and tree.
But if a third person cuts the tree,
the owner of the bees may maintain
trespass therefor. Goffi v. Kilts, 15
Wend. (N. Y.) 550. If they can be
reclaimed without doing actual injury,
as if they are on the fence or on a
bush, quere f In Barnes v. Barnes, 6
"Vt. 388, the defendant erected a house
upon premises owned by the plaintiff
under a license. This license was
subsequently revoked, and the de-
fendant, within a reasonable time
after the revocation of the license,
entered upon the premises and took
down the house and removed the
materials. The court held that the
defendant was not liable in trespass
therefor. But in such cases, where
an erection is made under a license,
the licensee must remove the house
within a reasonable time after the
license is revoked. In Prince v. Case,
10 Conn. 375, it appeared that the
owner of land gave to a person a
license to erect a dwelling-house upon
his land, for his own use. The
licensee subsequently conveyed the
house to the plaintiff in error. After
the death of the licensee, the grantor
of the licensor brought ejectment
against the grantee of the licensee, and
recovered therein. After the lapse
of more than a year after his recovery
and possession in the action of eject-
ment, the grantor of the licensor took
down the house, but did not remove

STATUTE OF FRAUDS.

[chap. I.

tain premises when the right is exclusive, amounts to a lease,
and should be pleaded as such.^ But this is not so where
the license does not amount to an exclusive right, as a right

1 Hall V. Seabright, 1 Mod. 14;
Anon., 3 Salk. 223. If a license is
specially pleaded as a defence to an
action of trespass, parol evidence of
such license is admissible to bar the
plaintiff's right, but where the general
issue is pleaded, evidence of such li-
cense is only admissible in mitigation

the materials. In an action of tres-
pass for taking down tlie house, it
was held that no recovery could be
had, as the owner of the house had
had a reasonable time in which to
remove it, and having failed to do so,
the defendant was justified in talcing
it down. Parker v. Kedfield, 10
Conn. 497; Baldwin v. Breed, 16 id.
63; Branch v. Doane, 17 id. 409;
Curtis u. Hoyt, 19 id. 106. Such
a license is personal, and ceases
when the house is conveyed. Hull v.
Babcock, 4 Johns. (N. Y.) 418; The
Bong V. Newton, Bridg. 115; Howes
V. Hall, 7 B. & C 481. A house
erected under a license is personal
property, and remains the property of
him who places it upon the land.
Eickerw. Kelley, 1 Me. 117; TVells
V. Bannister, 4 Mass. 514 ; Curry v.
Com. Ins, Co., 10 Pick. (Mass.)
540; Marcy v.- Darling, 8 id. 283;
Ashman v. Williams, 8 Pick. (Mass.)
402. In "Webb u. Paternoster, Palm.
71, a license to place a stack of
hay upon another's land was held not
to be countermandable until after a
reasonable time had elapsed. See
White V. Elwell, 48 Me. 360. In Win-
ter V. Brockwell, 8 East, 308, a license
to erect a skylight was held not re-
vocable after the skylight was erected,
without placing the licensee in statu
quo. See Wood v. Lake, Saycr, 3 ;
Liggins V. Inge, 7 Bing. 682. But if
a person wrongfully places his prop-
erty upon the premises of another, he
has no right to enter to remove it.
Thus, in Newbald n. Sadler, 9 Barb.
(N. Y.) 57, the defendant's servant

of damages. Hamilton v. Windolf,
36 Md. 301. But it must be specially
pleaded in trespass quaere clausum and
cannot be given in evidence under the
general issue. Ruggles v. Lesure, 24
Pick. (Mass.) 187; Crabs v. Eetick, 7
Blackf. (Ind.) 373 ; Pritehard B.Dodd,
5 B. & Aid. 089.

drove his team upon the plaintiff's
premises, and upon his return found
the fence put up, and the plaintiff for-
bade him from taking it down. The
servant went and informed the defen-
dant, and he entered the plaintiff's
premises, and against the protests and
actual resistance of the plaintiff, re-
moved his team, assaulting the plain-
tiff in order to accomplish his pur-
pose! In an action of assault and
battery therefor, the defendant justi-
fied upon the ground that he entered
the plaintiff's premises to remove liis
property, etc., and that he used no
more force than was necessary to
accomplish his purpose. The court
held that he was not justified in mak-
ing the assault, or even in the removal
of his property under the circum-
stances disclosed by the pleadings and
evidence. But in Eobson v. Jones, 2
Bailey (S. C.) 4, it was held that
where one has peaceabli/ entered the
premises of another, an action of tres-
pass will not lie against him for forc-
ing his way out by breaking a gate
which has been closed and locked by
the owner of the land, with a view to
detaining the property of the person
entering. But this must be under-
stood as applying only to an entry
made upon lands of another under
a license, express or implied. If the
original entry was unlawful, the break-
ing out would be unlawful, and liabil-
ity would attach for all damages that
, resulted from the trespass. The mere
fact that an entry is peaceable, does
not render it lawful, if it was made
without authority, express or implied,

SEC. 9.]

PAROL LEASES.

27

to sow,i to stack hay ,2 or to hunt upon lands.^ A license, in
order to be efficacious, must be granted by a person having
authority to do so, as it can never extend beyond the inter-
est which the licensor has.*

1 Hare v. Celey, Cro. Eliz. 143.

2 Webb V. Taternoster, Palm. 771 ;
Wood V. Lake, Say. 3.

' Anon., 3 Salk. 223.

* Petty V. Evans, 2 Brownl. 40;
Richardson v. Richardson, 9 Gray
(Mass.) 213; Gilbert on Tenure,
333.

or without a justifiable cause. See
also Bro. Tresp. pi. 186, and Wliite v.
Wiltshire, Cro. Jac. 555. The mere
fact that a person's property is upon
the premises of another, does not ren-
der an entry to take it away lawful.
If the property is there by his own
wrong, or if the title thereto is in dis-
pute, or if he cannot take it away
peaceably, he must resort to his rem-
edy at law to recover it. Roach v.
Damson, 2 Humph. (Tenn.) 425 ; Chase
V. Jefferson, 1 Houst. (Del.) 257. In
Blake v. Jerome, 14 Johns. (N. Y.)
406, the defendant entered the plain-
tiff's close against the will of the
plaintiff, and took therefrom a mare
and colt, wliich he claimed as his
property, and to which the plaintiff
also claimed title. The court held
that under the circumstances of the
case, the defendant was a trespasser.
In Hermance u. Vernay, 6 Johns. (N.
Y. ) 4, the defendant sold certain prem-
ises, reserving by parol a certain bark-
mill standing upon the premises. He
entered the premises after the sale,
and removed the bark-mill. Without
deciding the question as to whether
the bark-mill was in point of fact a
fixture, the court held that, under the
circumstances, he was a trespasser,
and liable for a wrongful entry. In
Holmes v. Tremper, 20 Johns. (N, Y.)
29, the defendant had been a tenant
of certain premises of the plaintiff,
on which he had erected a cider-mill
and press. After the tenancy had
expired, and after Ms removal from
the premises, he entered and took
away the cider-mill and press. The
court held him a trespasser, upon the
ground that the property should have

been removed during his tenancy, and
having been left there by his own
wrong, he was not justified in entering
to take it away. In Chambers v.
Bedell, 2 W. & S. (Penn.) 225, the
court expressly held that where the
goods of another had been wrongfully
taken from him, and placed upon the
premises of the taker, the owner of
the goods might enter upon the prem-
ises of the taker and remove it, with-
out being liable even to nominal dam-
ages therefor. This case follows the
doctrine of Chapman a. Thumble-
thorpe, Cro. Eliz. 329, in which it was
held that if J S drives the beast
of J N into the close of J S, or if
it has been driven thereinto by a
stranger, with the consent of J S (and
this consent may be implied — see
Richardson v. Anthony, 12 Vt. 273),
J N may lawfully go thereinto to take
it away, because J S was himself the
first wrong-doer. Patrick v. Coleriek,
3 M. & W. 484 ; Rhea v. Sheward, 2
id. 424 ; Spencer v. McGowen, 13
Wend. (N. Y.) 256. So, if the goods
of one have been stolen and put upon
the premises of another, the owner
may lawfully enter to take them
away. Higgins v. Andrews, 2 Rolle's
Rep. 55. So, if a person has fraudu-
lently obtained the property of an-
other, the owner may enter upon the
premises of the person who has it in
his possession, if he can do so peace-
ably, to take it away. As if A, by
means of fraud, obtains a horse from
B, B upon discovery of the fraud
may go upon A's land to take the
horse away, if he can do so without
a breach of the peace. Wheelden v.
Lowell, 50 Me. 503; Spencer v. Mc-

28

STATUTE OF FEATTDS.

[chap. I.

SsCi 10. Instances in which License is Irrevocable. — There
are few instances in which a parol license to do acts upon, the
land of another is not revocable. In some of the States, as
we have seen,^ it is held that a parol license which is executed,

I Ante, § 9 and notes. See also Bus-
sell V. Hubbard, 59 111. 335; Ricker
V. Kelley, 1 Me. 117; Androscoggin
Bridge Co. v. Bragg, 11 N. H. ; SuUiran
V. Commrs. &c., 3 Ohio, 89 ; Huff v.
McCauley, 53 Penn. St. 206; Cum-
berland Valley R. R. Co. v. McLanar
ban, 59 id. 23 ; Lane v. Miller, 27 Ind.
534; Cook v. Prigdon, 45 Ga. 331;
Williamstown .&c. R. R. Co. v. Battle,
66 N. C. , 540. In New Hampshire
and Maine the doctrine of the cases
cited has been virtually repudiated by

Gowen, 13 "Wend. (N. Y.) 257. So, if
a, man who is assaulted by another,
and in danger of liis life, enters the
premises of another, trespass will not
lie, "because the doing of this — it
being necessary for the preservation
of his life— is lawful." 37 H. 6, 37
pi. 26. So, if "A enters the premises
of B to succor the beast of B, which
is I in danger, an action does not lie,
because, as the loss to B if his beast
had died would be irremediable, the
doing of this is lawful. But if A go
into the close of B to prevent the
beast of B from being stolen, or to
prevent his corn from being consumed
by hogs, an action would lie, for the
loss, if either of these things had
happened, would not have been irre-
mediable." Bro. Tresp. pi. 215. So,
too, if a tree belonging to A is blown
down, and falls upon the land of B,
A may lawfully go upon the land of
B to remove it, for , the tree did not
fall there by any fault of A : Bro.
Tresp. pi. 215; but if A cuts a tree
upon his land, and it falls upon the
land of B, this is a trespass of itself,
and he may not lawfully enter to re-
move it, for the tree is there by his
fault, and might have been avoided,
lb. In Millin v. Fawdry, Latch. 120,
it was held that if the fruit of a tree
standing upon the land of a person
falls upon the land of another, the

later decisions of the court in those
States. Dodge v. McClintock, 47 N. H.
383 ; Pitman v. Poor, 38 Me. 237 ; Moul-
ton V. Faught, 41 id. 298 ; Houston v.
LafEee, 46 N. H. 505 ; and in England
the doctrine of Wood v. Lake, Sayer,
3; Taylor v. Waters, 7 Taunt. 374,
holding a quite similar doctrine, has
been repudiated. Wallis v. Harrison,
4 M. & W. 538; Bryan v. Whistler,
8 B. & C. 288; Bird v. Higginson, 6
Ad. & El. 824; Rex v. Hemdon, 4 M.
& S. 565.

owner of the tree may lawfully enter
to get the fruit, because the falling of
the fruit there was not by the fault of
the owner of the tree. So in Toplady
V. Sealey, 2 Roll. Abr. 568, it was held
that where one is looking for cattle
which he has lost, he may lawfully go
upon a, footpath over the lands of
another, but if he goes outside the
path, trespass lies. See Bac. Abr.
Trespass F. In Millin t,. Fawdry,
Latch. 120, it was held not to be tres-
pass for one to drive cattle belonging
to another from his own lands upon
the land of the owner of the cattle.
So, too, in the same case it was held
that trespass would not lie, even if
the cattle were chased out " with a
little dog," and the dog, notwithstand-
ing the master's endeavor, afterwards
chases the beasts into the owner's en-
closure, for the chasing of them out
of the close was lawful, and it is not
in his power to prevent them from
being chased into the cattle-owner's
enclosure. But otherwise, if a stranger
chases the cattle out ; for, by doing
this, although the owner of the land
on which the cattle are trespassing is
apparently benefited, yet by his act
the owner is deprived of his right to
distrain the beast. Bro. Tresp. pi.
, 421 ; Kelw. 46 B. ; Bac. Abr. Trespass
F. In Nettleton v. Sikes, 8 Met.
(Mass.) 84, the defendant cut down

SEC, 10.] PAROL LEASES. 29

and has involved the expenditure of large sums of money, is not
revocable, upon the ground that the party giving it is estopped
from revoking it. But this doctrine seems to us to be in
defiance of the statute, and to operate as a complete abroga-
tion of its salutary provision in respect to the transfer of
interests in land, and is an instance of judicial legislation
which is wholly unwarranted. If a person, in view of the
statute in this regard, of which he is presumed to have knowl-
edge, sees fit to go on and make extensive and permanent
improvements upon the lands of another, without first invest-
ing liimself with a legal right to enjoy them, it is difficult to
see upon what ground a court of equity should interfere to
protect him against the consequences of his folly, or why the
owner of the land who has merely c6nsented to such erec-
tions or improvements should have his estate thus burdened
with a permanent easement, and be equitably estopped
from revoking this authority, and ridding his premises of a
burden which the statute provides shall only be imposed in a
certain mode. In the words of a distinguished judge,^ rela-
tive to the force of a parol license to erect a building upon
lands, " if a parol license, even when carried into effect, wiU
give the builder a right to continue the house so long as it

1 Swift, J., in Benedict v. Benedict, 5 Day (Conn.) 458.

and peeled trees upon the plaintiffs implied license to enter and take it
land, under a valid agreement that lie away; and in the caso of JIcLcod u.
should hare the hark for his services. Jones, ante, where tlie defendant was
He entered upon the plaintiff's prem- the mortgagee of chattels in the pos-
ises and removed the bark. The session of the plaintiff, it was held
plaintiff brought an action of tres- that no such license could be implied
pass against him therefor, but the when the goods were locked up in the
court held that the action would not mortgagor's house, and an entry could
lie, as the bark at one?, upon being not be had without breaking in. The
taken from the trees, became the prop- rule in reference to the sale of the
erty of the defendant, and that he property lying or being upon the prem-
might lawfully enter to take it away ; ises of another at the time of sale
and the doctrine of this case has been would seem to be that when there is
reafiBrmed by the courts of that State an absolute sale of property which
in several later cases. McNeal v. the purchaser is to remove, which at
Emerson, 15 Gray (Mass.) 384; Drake the time of sale is upon the premises
w."W"ells,ll Allen (Mass.) 141; McLeod of the vendor, there is an implied
V. Jones, 105 Mass. 403. But the doc- license to enter to remove the prop-
trine of these cases rests upon the erty. In any event, if the entry is
ground that, where there is an abso- made peaceably, and in doing so no
lute sale of property which is lying special damage is sustained, no action
upon the vendor's land, there is an will lie therefor.

30 STATUTE 0¥ FRAUDS. [CHAP. I.

shall last, and to maintain ejectment for it, then real estate
may be transferred by parol, -which is directly contrary to
the statute." It is now well settled in England,^ and by the
better class of cases in this country,^ that a parol license
which confers any interest in land is invalid, and is revocar
ble at any time whether executed or not, at the will of the
licensor, and that, after such revocation, whether by notice
from the licensor, or a conveyance of the estate by him, or
his death, the only right remaining in the licensee is that of
entering upon the land within a reasonable time thereafter,
to remove his erections.* But a license to do an act upon
another's land, which confers no estate or interest in the
land, but which is coupled with an interest in chattels
thereon, as, when the owner sells chattels which are situated
upon the land, an irrevocable license to enter and take the
same is implied, if not expressly given.* Thus, where A sold
to B certain corn to be put in a crib on A's land, B to take
it away at his pleasure, it was held that the license was
coupled with an interest and was irrevocable.^ So where a
person has erected a house,^ cut timber,^ or dug ore,* upon
another's land, while the license may be revoked so as to
prevent further use of, or severance from, the land, yet it
cannot be so revoked as to prevent an entry within a reason-
able time for the removal of the house, or th^ ore, or the
timber, which has already been severed ; and the same rule
prevails where property has been deposited upon another's
land by his permission.® But it wiU be seen that the license

1 Fentiman v. Smith, 4 East, 107; 178; Poster v. Browning, 4 K. I. 47;
Wallis V. Harrison, ante ; Rex v. Stan- Hall v. Chaffee, 13 Vt. 150.

don, 2 M. & S. 461 ; Ruffey v. Hen- » Prince v. Case, 10 Conn. ; Collins

derson, 21 L. J. Q. B. 49. Co. «. Marcy, ante ; Arrington v. Lar-

2 Cook V. Stearns, 11 Mass. 533; ahee, 10 Cush. (Mass.) 512.
Duineen v. Rich, 22 Wis. 550 ; Mum- * Cook v. Stearns, ante.

ford V Whitney, 15 Wend. (N. Y.) » Addison w. Dark, 1 Gill (Md.) 221.

380; Collins Co. v. Marcy, 25 Conn. « Prince v. Case, ante; Arrington

239; Trammell v. Trammell, 11 Rich. u. Larabee, ante.

(S. C.) 471 ; Gauther a. Atkinson, 35 ^ (jUeg „. Simonds, 15 Gray (Mass.)

Wis. 48 ; Pitman v. Poor, 38 Me. 237 ; 441.

Carter v. Harlan, 0 Md. 20 ; Owen v. 8 Silsby v. Trotter, ante.

Field, ante ; Bridges v. Purcell, ID. ^ Poor v. Oakman, 104 Mass. 309 ;

&. B. (K C.) L. 492; Deslage v. Erskineti.Plummor, 7 Me.457; AVhit-

Pearce, 38 Mo. 588; Clute v. Clute, marsh v. Walker, 1 Met. (Mass.) 313;

20 Wis. 531 ; Yeakle «. Jacobs, 33 Wood v. Manley, 11 Ad. & El. 34.

Penn. St. 376 ; Haux v. Seat, 26 Mo.

SEC. 11.] PAKOL LEASES. 31

■which exists in this class of cases is one which is implied by-
law, as an incident to the act licensed, and exists, even
though its exercise is prohibited or forbidden by the owner
of the land, and whether or not he has ever, by words,
authorized it. So too, a parol license given by the owner of
a dominant estate to the owner of a servient estate, to do an
act which interferes with or destroys his easement therein,
the license, after it is executed, is irrevocable, upon the
ground that, while an easement cannot be created except by
deed or prescription, yet it may be surrendered in whole or
in part without deed, and consequently such a license is
not within the statute,^ and the granting of the license is
treated as an abandonment of the easement to the extent of
the act licensed. But, of course, the circumstances attendant
upon the granting of the license may be considered in deter-
mining whether or not an abandonment of the easement was
intended.^ So too, a license to do an act upon another's land
for which a stated compensation is paid, as where parol per-
mission is given to another to flow his lands by means of a
dam, for a regular rent, which is done for several years, while
the license might have been revocable during the first year,
yet by permitting the act to go on for a longer period, and
receiving rent therefor, the license grows into a parol lease
for an indefinite time, and thereby creates a tenancy from
year to year which can only be terminated by the requisite
notice.^

Sec. 11. License Revoked by Conveyance. — If the grantor
of a parol license conveys the land to a third party, the
license is determined at once, without notice, to the licensee
of the transfer,* and from that time the licensee becomes
liable to the grantor for all damages resulting from the exer-
cise of acts done in pursuance of such license. Thus, in a
Massachusetts case,^ it was held that a writing, not under
seal, purporting to convey the right to flow lands, and to

1 Curtis V. Noonan, 10 Allen (Mass.) » Morrill v. Mackman, 24 Mich. 279.
406; Dyer w.Sanford, 9 Met. (Mass.) * Wallis v. Harrison, 4 M. & AV.
406 ; "Winter v. Brockwell, 8 East, 538 ; Roffey v. Henderson, 17 Q. B.
308 ; Davies v. Marshall, 10 C. B. 574 ; Coleman ;■. Foster, 1 II. & N. 37 ;
N. S. 97. Gaussen v. Morton, 10 B. & C. 731.

2 Wood V. Edes, 2 Allen (Mass. ) 578. '> Cobb v. Pisher, 121 Mass. 169.

32 STATUTE OF PEATIDS. [CHAP. I.

release all claims for damages therefor, does not bind the land
nor estop a subsequent grantee thereof from recoyering
damages from the flowing of the land subsequent to the
conveyance. In a Connecticut case,^ in an action for divert-
ing the water of a canal upon the plaintiff's lands, it appeared
that the diversion was of the waters of what formerly con-
stituted part of the Farmington canal, and the injury- proved,
was effected by a brick culvert, erected in February, 1848,
running under the raiboad of the New Haven and Northamp-
ton company, and the turnpike of the Cheshire turnpike com-
pany, no part of which was constructed on the plaintiff's
land. The defendants offered evidence to prove, and claimed
that they had proved, that the culvert was a permanent and
expensive structure, about seventy feet in length, and of
about six feet span, erected and built by the New Haven and
Northampton company, in the construction of their railroad,
under their charter ; that it was erected and built by them,
opposite to the plaintiff's premises, where it now remains, at
the express solicitation and request of Uriah Foot, the then
owner of the premises, who desired to have the same there
placed, for the irrigation of his adjacent land; that he co-
operated and assisted in the erection of the culvert, and
agreed with the company, for himself and his heirs, forever,-
to take care of the waters so diverted, and to guarantee the
company against damage therefrom ; and that the company
would have diverted the water at a point above the plain-
tiff's land where, as they claimed, they had acquired a right
to discharge waters, but for such request and agreement.

The defendants insisted, that, if the facts were as claimed
by them, they were not, any of them, liable to the plaintiff
in damages for the necessary, natural, and foreseen effects,
resulting from- the erection of the culvert, and requested the
court to charge the jury, in conformity to such claim.

The plaintiff claimed that, as the requests and agreements
of Uriah Foot, claimed by the defendants, rested solely on
parol evidence, they constituted a mere parol license which
was revoked by his death,^ and also by express notice to that

1 Toot u. N. H. &c. R. R. Co., 23 Ian, 6 Md. 20 ; Chandler v. Spear, 22
Conn. 214. Vt. 388. If a definite term is fixed

2 Eggleston v. N. Y. &c. R. R. Co., upon, the license expires at the end
35 Barb. (N. Y.) 162; Carter o. Har- of the term without notice, Glyim

SEC. ll.J PAEOL LEASES. 83

effect, by the plaintiff, personally, to each of the defendants,
since liis father's decease ; and that he was entitled to recover,
from each of the defendants, whatever damages had accrued
to him, by means of the diversion, since the revocation. The
plaintiff requested the court to charge the jury in accord-
ance with his claims. The court did not charge the jury as
requested by the plaintiff, but did, fro forma, charge them
in conformity to the claims of the defendants. This ruling
was held to be erroneous, and the plaintiff under the facts
stated was held to be entitled to recover upon the ground
that the license was void under the statute of frauds,
because it was not in writing, and was revocable by the
plaintiff's grantor at any time, and was in fact revoked by
the conveyance to the plaintiff, or by his notice to that effect
after he acquired the title, and that the license could only be
set up to excuse damages arising while it was unrevoked.^
In paSsing upon this question. Stores, J., said : —

"The plaintiff, having an absolute and unrestricted con-
veyance of his land from the former owner, has presump-
tively a full and unqualified dominion over it, subject to no
servitude or easement in favor of any other person. The
act, therefore, committed by the defendants, in turning the
water of the canal upon it, was an invasion of the plaintiff's
rights, unless it was justified by the facts put in evidence by
the defendants, upon whom the burden of establishing such
justification rests. The facts found by the jury, and on
which the defendants rely, are these. The company built
the culvert on land adjoining the land of the plaintiff, at the
verbal request of Uriah Foot, who then owned the adjoining
land, and by whom it was subsequently sold and conveyed
to the plaintiff. The said Uriah desired that the said culvert
should be so located, for the irrigation of his own land, and
actually cooperated and assisted in building it; verbally
agreeing with the defendants for himself and his heirs for-
ever, to dispose of the water which should be diverted upon
his land, and to guarantee the defendants against any damage

u. George, 20 N. H. 114 ; and the com- ^ Jamieson v. Milliman, 3 Bucr

mencement of an action for damages (N. Y.) 255; Kimball v. Yates, 14
operates as a revocation, Lockhart v. 111. 464; Hall «. Chaffee, 10 Vt. 150;
Gier, 54 "Wis. 133. Dodge v. McClintock, 47 N. H. 383 ;

Gilmore v. AVilson, 53 Penn. St. 194.

34 STATUTE OF PEAUDS. [CHAP. I.

therefrom. The company would have diverted the water at
a point above the land of said Uriah, and where they had a
right to discharge it, but for the said request and agreements
of the plaintiff's grantor. On the other hand, it was found,
for the plaintiff, that, after he became the owner of the land,
and also after the death of Uriah Foot, he revoked the license
conferred by his grantor, giving an express notice to that
effect to all the defendants.

" These facts furnished ample proof of a license from Uriah
Foot, to the defendants, to construct the culvert and to
overflow his land ; and as this license was never revoked by
him during his ownership, it constituted a justification for
the diversion of the water for that period. We are as clearly
of opinion, however, that the effect of the license, or agree-
ment referred to, inasmuch as it was by parol, was not to
convey to the defendants an}'' estate or interest in the land
which it was contemplated to overflow. The righl? per-
petually to divert water upon that land, as claimed by the
defendants, would be an incorporeal hereditament, and there-
fore an estate or interest in it ; and such a right, the license,
proved by the defendants, would be ineffectual to convey.-'
To hold the contrary would be a direct abrogation of the
statute of frauds, which requires all contracts for 'the sale
of lands, tenements, or hereditaments, or of any interest in
or concerning them,' to be in writing. The privilege, there-
fore, conferred on the defendants by the parol request and
agreement of Uriah Foot, is rendered to a mere license,
although, in its terms, it was a more extended grant. The
authorities on this point are uniform.

" It is equally well settled, that a mere license, which is only
an authority or power to do particular acts, uncoupled with
an interest in the subject of those acts (serving simply to
justify such acts, while leaving the estate, and aU the inci-
dents of ownership, in the proprietor of the land), is, in its
nature, revocable. If it were not revocable, it would transfer
to the licensee an interest in the land ; it would have the

1 Brown v. Woodworth, 5 Barb. Ian, 6 Md. 20; "Wood m. Edes, 2 Allen

(N. Y.) 550; Houghtating v. Hough- (Mass.) 578; Curtis v. Noonau, 10 id.

tating, 5 id. 379; Stevens v. Stevens, 406; Dyer u.Sandford, 9 Met. (Mass.)

11 Met. (Mass.) 251; Carter v. Har- 395; Marston w. Gale, 24 N. H. 176.

SEC. 11.]

PAROL LEASES.

35

effect o£ a grant.^ We consider it also to be now an estab-
lished principle of the common law, although some ancient
cases may seem to conflict with it, that Avhen the right to do
acts upon the land of another is of such a nature as to
require to be created by a grant, in order to be primarily
indefeasible, a mere license to do such acts does not become
irrevocable, because it has been executed by the licensee ;
although such execution may have been attended with
expenditure of money or labor, and although, also, the
termination of said license may cause the loss of such ex-
penditure.2

1 Duineen v. Eich, 22 Wis. 550;
Kimball v. Yates, 14 111. 464 ; Howe
V. Searing, 6 Bos. (ST.Y.) 684; Clute
V. Carr, 20 Wis. 531 ; Marston v. Gale,
24 N. H. 176 ; Houx v. Seat, 26 Mo.
178; Owen v. Field, 12 Allen (Mass.)
457 ; Selden v. Del. &c. Canal Co., 29
N. Y. 634; Dodge v. McClintoek, 47
N. H. 383; Troxell v. Lehigh &c.
Coal Co., 42 Penu. St. 513; Hall v.
Chaffee, 13 Vt. 150; Foster v. Brown-
ing, 4 R. I. 47 ; Houston v. Laffee, 46
N. H. 505 ; Carter v. Harlan, 6 Ind. 20.
' The rule as stated is adopted in
most of the States. Woodward v.
Seelej, 11 lU. 157 ; Wolfe v. Frost, 2
Sandf. (N. Y.) 72 ; Desloge v. Pearce,
38 Mo. 588; Cook u. Steams, 11 Mass.
533 ; Houston v. LafEee, 46 N. H. 505 ;
Foster v. Browning, 4 R. I. 47. But
in Maine, Clement v. Durgin, 5 Me. 9 ;
Nevada, Lee v. McLeod, 12 Nev. 280;
Pennsylvania, Lacy v. Arnett, 33 Penn.
St. 169 ; Indiana, Buchanan v. Logans-
port &c. R. E. Co., 71 Ind. 265 ; lUi-
nois, Russell v. Hubbard, 59 HI. 335 ;
and Ohio, Wilson v. Chalfant, 15 Ohio,
248 ; MiUer v. Brown, 33 Ohio St. 547,
executed licenses, involving the out-
lay of considerable money, have been
held irrevocable upon the ground that
the party granting the license is es-
topped from revoking it. But this
doctrine is hardly sustainable, and is
clearly opposed to the intent, if not to
the language of the statute of frauds ;
and it can hardly be said that a person
who has been so imprudent as to build
expensive works upon another's land,

or which will impose a burden thereon,
without first taking the precaution to
procure such person's consent in writ-
ing, is entitled to any exception in
his favor either at law or in equity :
Woodward v. Seeley, 11 111. 157. In
Benedict v. Benedict, 5 Day (Conn.)
468, SwiPT, J., in speaking of the re-
vocability of a license to make per-
manent erections upon another's land,
said : " If a parol license, even when
carried into effect, will give the builder
a right to continue the house so long
as it shall last, and to maintain eject-
ment for it, then real estate may be
transferred by parol, which is directly
contrary to the statute." Fryer v.
Wame, 29 Wis. 511 ; Clute v. Carr, 20
id. 531; Miller v. Auburn &c. R. R.
Co., 6 Hill (N. Y.) 61 ; Wright v. Free-
man, 5 H. & J. (Md.) 467; Hays v.
Richardson, 1 G. & J. (Md.) 366; Mel-
lor c. Watkins, L. R. 9 Q. B. 400.
In some of the cases, however, in
total disregard of the statute and its
obvious purpose, the courts have held
that wljere a license is given to make
permanent improvements or erections
upon another's land, the license be-
comes irrevocable upon the ground of
estoppel : Ricker v. Kelly, 1 Me. 117 ;
Russell V. Hubbard, 59 111. 335 ; Sulli-
vant V. Commissioners, &c., 3 Ohio,
89 ; Androscoggin Bridge Co. v. Bragg,
11 N. H. 109 ; Clement v. Durgin, 5
Me. 9. In other cases it is held that
a license under such circumstances
cannot be revoked without paying or
offering to pay the expenses incurred

36 - STATUTE OP FKATJDS. [CHAP. I.

" Nor do we think that the revocability of the license depends
at all upon the circumstance that the acts authorized by the
plaintiff's grantor were to be done, if considered only in
respect to their immediate or direct effect, upon land not
owned by him, so long as the necessary and inevitable con-
sequence of those acts would be an exercise, on the part of
the defendants, of a right in the land of the grantor himself,
and to restrict the dominion of the latter over it: a right
which, if made indefeasible by a grant, would burden the
land with a perpetual easement. In fact, the privilege con-
ferred on the defendants was, in form, a license to build the
culvert on the defendants' own land, but in substance a right
to overflow the land of the licensor himself. To construct a
culvert on land adjoining his own, and really already under
the defendants' control, by virtue of their charter, was an
act, which, independently of its tendency to cause an over-
flow upon the land of the grantor, the defendants had an
unquestionable right to do without his sanction, and \^hich,
in this view of the matter, was not done by virtue of his
authority. What required his license was, that the company,
might, by means of the culvert, turn water upon his land ;
and this diversion was the subject of the license rather than
the mere construction of the culvert. The permission to
build the culvert, which would necessarily cause the diversion
of the water, Avas really a permission so to divert the water,
and to affect the rights of the licensor in his own land. "We
cannot see why such a license should not be revocable in the
same manner, as if the acts authorized to be done were done
on the premises of the licensor, consequently producing the
same effect there. '^

by the licensee in its execution : Cle- Wilmington &c. R. E. Co. v. Battle, 66-

ment v. Durgin, ante ; Addison v. N. C. 540 ; as in Illinois, Woodward v.

Hack, 2 Gill. (Md.) 221; Lane v. Mil- Seeley, 11 111. 157; Russell ... Hub-

ler, 27 Ind. 534. In Pennsylvania, bard, 59 id. 335; New Hampshire,

both at law and in equity, the courts Woodbury v. Parshley, 7 K II. 297 ;

have taken an extreme ground in sup- Houston v. Laffee, 46 id. 505 ; and

port of the rights of a licensee under Maine, Eioker u. Kelly, 1 Me. 117 ;

a parol license, and take a ground not Moulton v. Paught, 41 Me. 298. In

recognized elsewhei* : Huff v. Mc- the last two States the later cases

Cauley, 53 Penn. St. 206; Cumber- sustain the doctrine stated in the

land &c. E. E. Co. v. McLanahan, 59 text, while in Illinois the last named

id. 23. And in several of the States case takes the extreme ground,
the decisions will be found to be vas- ^ Dodge o. MoClintock, 47 N. H.

cillating ; Cook v. Prigdon, 45 Ga. 831 ; 383 ; Hall v. Chaffee, 13 Vt. 150.

SEC. 11.] PAEOL LEASES. 37

"Reference has been made by the defendants to a few
very peculiar cases, the most prominent of which is an
English case,^ as sustaining some such distinction as has
just been alluded to. The doctrine of the decisions is,
that if one who has a privilege on the land of, aiiother
permits that other to do acts, which are inconsistent with
the enjoyment of the privilege, or tend to its destruction,
such indulgence or license, if acted upon, or executed by the
owner of the land, operates as an extinguishment or abandon-
ment of the privilege. If these cases were correctly decided
(about which we express no opinion), they have no applica-
tion to the case now before us. It will be seen, on examina-
tion, that the courts, so far from passing upon the question,
whether an easement or interest in land can be acquired
by parol license or agreement, executed or not executed,
distinguish those cases from such as involve that issue.
Besides, in the present case, Uriah Foot neither had, nor
claimed, any privilege in the land on which the culvert was
built, nor did he, by the terms of his license, deprive himself,
or pretend to deprive himself, of any such privilege. On the
contrary, the claim of the. defendants is, that an easement
was conferred upon them, in the adjoining land of Uriah
Foot, consisting in a perpetual right to divert water upon it.

"We have not deemed it necessary to accompany our state-
ment of priaciples with a particular citation of the authori-
ties by which they are supported.^ We are aware that
several decisions have been made in the courts of some of
the United States in which greater effect is given to the cir-
cumstance that a parol license to perform acts upon land has
been executed by the licensee, especially where such execu-
tion has involved the expenditure of money or labor, than
the principles we have adopted would warrant. It is true

^ Liggins V. Inge, 5 Bing. 682. would have decreed a specific perfor-
2 Bridges u. Purcell, 1 D. & B. (N. mance of tlie contract, as to both par-
C.) 493. Sec "Wilmington &c. R U. Co. ties ; and, moreover, the license was in
V, Battle, 66 N. C. 540, in which it was writing. T\nien a license has been
held that while a license under seal is executed under circumstances which
as revocable as a license by parol, warrant it as being treated as an
yet, that neither, when coupled with an agreement on the part of the licensor
interest, or founded on a consideration, to give the right, a court of equity will
are revocable. But in this case, the compel him to do so. Cook v. Prig-
facts were such that a court of equity don, ante.

38 STATUTE or PKAUDS. [CHAP. I.

tliat some of those decisions go to the extent of holding that
the license, after such execution, is irreyocable, and that
thereby the licensee acquires an indefeasible and perpetual
right to maintain, without disturbance, the condition in which
he is placed by such execution. Those decisions were made
in States where, as in Maine, Massachusetts, and New Hamp-
shire,^ there are no courts of equity, with ordinary chancery
jurisdiction, and where, therefore, it may have been deemed
necessary, in order to administer substantial justice, that the
strict principles of the common law should be modified by
the distinctive principles of eqmty jurisprudence ; or where,
as in Pennsylvania, courts ' possess the power of administering
the principles of equity through the medium of legal forms.'
With us, however, the administration of the two systems is
kept distinct : so that, in considering the questions before us,
we have been governed less by decisions in the States, to
which allusion has just been made, than by cases adjudicated
in other States of the Union, and in England, where courts
administer purely the principles of common law, modified
only, in certain instances having no relation to the subject
now under discussion, by the incorporation of equitable prin-
ciples, into the legal system. In the North Carolina case
before referred to,^ it was held that one whose land is over-
flowed by a mill-pond has a right to recover for the damages
suffered thereby, notwithstanding that liis ancestor, by parol,
expressly permitted the grantor of the defendant to erect the
dam, and consequently to overflow the land ; that such per-
mission, if set up as a grant of a perpetual right to over-
flow the land (which would be an incorporeal heredita-
ment) was void for want of a deed ; and that, if regarded as
a mere license or authority, it was revocable and ceased with
the life of the licensor. The eminent judge who delivered
the opinion of the court reviewed with his usual ability and
clearness the prominent authorities which might be sup-
posed to favor the defendant, and discussed the general

1 The early doctrine in New Hamp- Dodge t. McClintock, 47 id. 383 ;

shire, holding that an executed license and the same also is the case in

is not revocable, seems to be over- Maine : Pitman v. Poor, 38 Me. 237 ;

ruled by later cases. Blaisdell w. Ports- Moulton u. Taught, 41 id. 298.
mouth &c. K. E. Co., 61 N. H. 483 ; ^ Bridges u. Purcell, 1 D. & B. (N.

Houston V. LafEee, 46 N. H. 505; C.) 493.

SEC. 11. j PAROL LEASES. 39

principles applicable to the case ; showing most satisfactorily,
as we think, that none of them sustained the doctrine that
such a license, although acted upon by the licensee, passed
any interest or estate in the laud of the plaintiff, or was
irrevocable. Unless there is distinction in principle between
a license to turn back water upon another's land, by means
of a dam below it, and a permission to overflow it by means
of the diversion of a stream from above (which would hardly
be claimed), the case just cited is strictly analogous to the
present.

" It results from the principles which we have thus adopted,
that it was the right of the plaintiff's grantor, at any time
during Hs ownership of the land, now belonging to the plain-
tiff, and even after the erection of the culvert, to revoke the
license under which the defendants were permitted to divert
the water. It follows, as a matter of necessity, that the
plaintiff, after his purchase, had an equal right to annul the
license.-'

" Much stress has been laid on the fact that Uriah Foot, in
connection with request that the culvert should be built,
and his agreement concerning it, actually cooperated and
assisted in its construction. Now, whether that agreement
would be enforced in a court of equity, on the ground of its
execution, we are not here called upon to determine ; but at
law, it cannot, existing only in parol, have any greater force,
or stand on liigher ground than a mere license, notwithstand-
ing its execution.^ If these acts of Uriah Foot were to be
regarded as done independently of the defendants, and the
erection of the culvert as his act, and not that of the defen-
dants, the latter might indeed successfully urge that although
the plaintiff might not be bound to allow the culvert to
remain, the defendants would be exonerated from any obli-
gation to remove it, and could not be treated as a trespasser
on account of its continuance. But the facts proved will not
allow us to regard the building of the culvert as the act of

1 Dempsey v. Kipp, 62 Barb. (S. written license to perpetually flow

Y.) 611. another's land is not a revocable li-

^ Druse v. Wheeler, 22 Mich. 439 ; cense, hut an absolute sale on time,

Tanner u. Valentine, 75 HI. 624; for credit. Fitch v. Constantine &c.

Hitehins v. Shaller, 32 Mich. 496 ; Co., 44 id. 74.
Turner i: Stanton, 42 id. 506. But a

40 STATUTE OF FEAUDS. [CHAP. I.

Uriah Foot. On the contrary, the finding shows that 'it
was erected and built by the defendants in the construction
of a railroad, under the charter ' of the principal defendants,
to whom, of course, Uriah Foot's services were rendered;
and that although the culvert was made at his request, his
assistance was furnished in behalf of such principal defend-
ants and not in his own. Indeed, if it was built ' under the
charter,' it must have been built by those defendants, who
were authorized to construct it for the accommodation of a
railroad ; otherwise we must adopt the idea that Uriah Foot
constructed it, without law or right; a supposition unwar-
ranted by the proof and inconsistent with the defendants'
claim.

" But, whatever might be the rights of parties if the land in
question still remained the property of Uriah Foot, the issue
now presented is between the defendants and a hona fde
purchaser of the land for a valuable consideration, without
any notice, actual or constructive, of any previous agreements
between the former owner and the railroad company. That
such a purchaser is not affected by such an agreement, was set-
tled by this court in an early case.^ To hold that such an
agreement runs with the land and creates an easement upon
it even in the hands of a hona fide purchaser, amounting to a
permanent encumbrance, would be not only to invade the
statute of frauds, but a violation of the most salutary policy
of our recording system, and also in such cases as that now
under review, of obvious principles of justice. On this point
we give our renewed sanction to the views of this court, as
expressed by Chief Justice "Williams, with his accus-
tomed force and clearness, in the case just quoted ; views
which are strongly confirmed by the case of Bridges v. Pux-
cell et al, ante. In the latter, the ancestor of the plaintiff had
given a license to the vendor of the defendant. The opinion
of Judge Gaston, after showing that the pretended grant, for
want of a deed, passed no interest in the land, and imposed
no charge upon it, and could not prevent the plaintiff from
succeeding to an unlimited and unshackled fee-simple therein,
thus proceeds in respect to the privilege claimed : ' Regarded
as a license, how does it enure to the benefit of the defend-

1 Erince v. Case, 10 Conn. 375.

SEC. 12.] PAHOL LEASES, 41

ants ? If it passed as an appurtenance to the land, if partook
of its nature ; it was more than an authority, it was a here-
ditament. To hold that a permission, thus given, shall oper-
ate for ever for the benefit of the grantee and his assigns
against the grantor and his heirs, would be in effect to permit
a fee-simple to pass under the name of an irrevocable license.^
Purchasers would never know what encumbrances were upon
their lands, and instead of the solemn and deliberate instru-
ments, which the law requires as the indispensable means of
transferring freeholds, valuable landed interests would be
made to depend wholly on the integrity, capacity, and recol-
lection of witnesses.'

" The defendants claim, lastly, that as the act of diverting
the water upon the plaintiff's land was witHn the scope of the
company's chartered powers, communicating the exercise of
the right of eminent domain, nothing remained but to com-
pensate the owner for the damages caused to him thereby,
and that this had been done by an adjustment between the
defendants and the owner. If the land had been lawfully
condemned for the purposes of the company, no objection
could be made to the validity of such an adjustment. But
the powers of the defendants were acquired under a special
grant, to be exercised only on special terms ; and it was
necessary for the company, in order that there should be such
a condemnation, to pursue the steps prescribed by their char-
ter for that purpose. Those steps were not taken, and the
land was not therefore subject to the powers claimed by the
defendants. This ground of jurisdiction therefore fails."

Sec. 12. Reasonable Notice of Revocation must be Given. —
A licensee under a revocable license is entitled to reasonable
notice of revocation and a reasonable time afterwards to
remove his goods. The rule of law is, that a simple license,
in order to be binding on the licensor, must be under seal ;
but if it is not, the licensee is not a trespasser until the
licensor revokes the license. Under a parol license the
licensee has a right to a reasonable time to go off the land
after it has been withdrawn, before he can be forcibly thrust
off it ; and he could bring an action if he were thrust off

1 Woodward v. Seeley, ante; Benedict v. Benedict, ante.

42 STATTJTB OF FKAUDS. [CHAP. I.

before such a reasonable time had elapsed.^ But, where a
reasonable time has been given to the licensee to remove the
erections made under the license, the licensor may resume
the possession, and the licensee cannot enter to remove the
property without rendering himself liable in trespass.^ But,
where there is a license coupled with an interest, the licensee
may enter within a reasonable time after its revocation and
remove the property, and if resisted by the licensor, may use
all the force necessary to secure the removal without render-
ing himself liable to an action of trespass, either for the entry,
or for an assault.^

Sec. 13. injunction to Restrain Interference ■with License. —
Where, by a memorandum endorsed on a lease, it was pro-
vided that the lessee should have the exclusive right of
sporting and killing game over the demised and adjacent
properties, and it was proved that the enjoyment of this
privilege was an essential part of the consideration for taking
the lease, the landlord was restrained by injunction from
interfering with the tenant in the exercise of the right, until
a lease under seal should be executed according to the agree-
ment. It was doubted in this case whether the court would
have interfered in case the agreement had been already
entered into by an instrument under seal.*

■Sec. 14. Parol Agreement for Sale may Operate as License
to Sxcuse Trespass. — Although a deed is necessary to create
an easement, yet a contract for the sale of an interest in
lands without a note in writing may operate as a license, so
as to excuse the entry of a purchaser on the land, but it
cannot be made available in any way as a contract.^ So a
parol demise of land, reserving to the landlord "all the
hedges, trees, thorn bushes, fences, with lop and top," oper-

1 Cornish v. Stubbs, L. R. 5 C. P. B. 49 ; Wood v. Manley, 11 Ad. & El.
334 ; Mellor v. Watkins, L. E. 9 Q. B. 34. In Van Deusen v. Young, 29 N.
400. Y. 9, a tenant for life agreed to sell,

2 Druse v. Wheeler, 22 Mich. 439. and gave possession of the premises
8 Sterling v. Warden, 51 N. H. 217. to his vendee. It was held that though
* Frogley v. Lovelace, Johns, the contract could not operate as a

(Eng.) 333. contract of sale, it did operate as a

6 Carrington v. Roots, 2 M. & W. license to enter and occupy until such
248 ; Eufley v. Henderson, 21 L. J. Q. license was revolted.

SBC. 15.] PAEOL LEASES. 43

ates as a license to enter the land for tlie purpose of cutting
and carrying aAvay the trees ; but not as a grant or easement.^
A reservation of growing crops, standing trees, etc., in a deed
of lands, is a reservation of the property named, and the title
thereto does not pass to the grantee ; and although nothiug is
said as to a right to enter to cut and remove the same, yet
such a license is implied, and the grantor may, even by parol,
sell such crops or timber to another and confer upon him the
same right to enter and cut and take away the same, which
he possesses. But, if no time is fixed within which the right
is to be exercised, it is held that it must be exercised within
a reasonable time, in view of the circumstances, and whether
it was exercised within a reasonable time is a question for
the jury. If entry is made after the lapse of a reasonable
time, the person making the entry is liable as a trespasser,
but a recovery against him can only be had for the damages
resulting from the entry, and the value of the crops or
timber constitute no part of the damages.^ The actual pos-
session of Crown lands under a parol license from the Crown
entitles the party in possession to maintain trespass against
a wrong-doer.^ If a party take the goods of another, and
place them upon his own land, the owner may enter that
land for the purpose of retaking them, without making him-
self liable in trespass.* A plea of leave and license to erect
and maintain a wall upon a given spot is not supported by
proof of license to erect only.^ It is sufficient for the plain-
tiff in an action against a wrong-doer to allege possession,
but such an allegation cannot be sustained without showing
that the easement in respect of which the action is brought
is held under a legal title.^

Sec. 15. Signature not Necessary in Case of a Deed. — It has
been doubted whether a lease under seal for more than three
years should not also be signed, but the better opinion seems
to be that the statute does not apply to such instruments.
Blackstone lays it down,^ that the statute has restored the

1 Hewitt V. Isham, 7 Exoh. 77. ^ Alexander v. Bonnin, 6 Scott, 611 ;

2 Heflin v. Bingham, 56 Ala. 566. 4 Bing. (N. C.) 799.

8 Harper v. Charlesworth, 6 D. & " Eentiman v. Smith, 4 East, 109.
E. 572, 4 B. & C. 574. ' " Comm." vol. u. 306.

4 Patrick v. Colerick, 3 M. & W. 483.

44 STATT7TE OP FRAUDS. [CHAP. I.

old Saxon form of signing, and superadded it to sealing and
delivery in case of a deed. Me. Pbbston, on the other hand,i
treats this passage as a mistake from not attending to the
words of the statute, and holds it clear that no signature is
necessary in the case of a deed.^ In Cherry v. Heming,^
RoLFB, B., said : " I am strongly inclined to think that the
statute does not extend to deeds, because its requirements
■would be satisfied by the parties putting their mark to the
writing. The object of the statute was to prevent matters
of importance from resting on the frail testimony of memory
alone. Before the Norman time, signature rendered the
instrument authentic. Sealing was introduced because the
people in general could not write. Then there arose a dis-
tiaction between what was sealed and what was not sealed,
and that went on until society became more advanced, when
the statute ultimately said that certain instruments must be
authenticated by signature. That means that such instru-
ments are not to rest on parol testimony only, and it was
not intended to touch those which were already authenticated
by a ceremony of a higher nature than a signature or a mark,"
and Aldeeson, B., and Parke, B., expressed opinions to
the same effect.

Sec. 16. Appointment of Agent. — An agent to contract for
the sale of land under the second section need not be au-
thorized by writing.* In South Carolina,^ under the statute,
it is held that the authority of the agent must be proved in
writing, and that if the instrument is signed by an agent,
even though the principal is present and assents thereto, that
it is inoperative, and a similar doctrine is held in Illinois.^
But in England and in most of the States of tliis country,
except where the statute specially provides that the author-

1 Shep. Touch, fol. 57, n. 24. Roekford &c. E. E. Co. v. Shunick,

2 Per Denman, J., in Cooch v. Good- 65 111. 223, contra.

man, 2 G. & D. 159; 2 Q.B. 580; Ave- s 4 Ex. 631. See also Taunton v.

line V. Whisson, 4 M. & Gr. 801 ; Ir- Pepler, 6 Madd. 166.

gin V. Thompson, 4 Bibh (Ky.) 295; * Clinan v. Cooke, 1 Sch. & Lef. 31.

Gardner v. Gardner, 5 Cush. (Mass.) ^ "Wallace v. McCullough, 1 Rich

483; Parks v. Hazlerig, 7 Blackf. (S. C.) Eq. 426.

(Ind.) 536. But see Wallace v. Mc- » Roekford &c. R. E. Co. u. Shun-

CuUough, 1 Rich. (S. C.) Eq. 426; ick, 65 111. 233. But the statute in

Illinois expressly so provides.

SEC. 17.] PAEOL LEASES. 45

ity shall be in writing,^ a lease or other instrument under
seal signed by an agent in the presence of the principal is
held to be the act of the principal,^ and a similar doctrine
has been held in Kentuoky,^ and it would seem that this is
generally the rule, particularly where, as should always be
done, the agent signed the name of the principal instead of
his own,* the ground upon which tliis note rests being that
the execution thereof is the act of the principal and not of
the attorney.^ But where a deed is executed by an agent in
the name of the principal when he is not present, it is held
to be invalid, where the agent acts only under oral author-
ity.6

Sec. 17. Term Commences from Time of Agreement. — Such
lease for three years, of land, as wUl be good under the sec-
ond section, must be for three years, to be computed from
the time of the agreement,'^ and a lease, to commence at a
future day, mil therefore not be within the statute.^ But
if by the terms of the lease the term is to commence from a
future day, it is within the statute, and void.^ But in New
York,!" Colorado,^! and Indiana,^^ such leases are held to vest
a present interest, and therefore not to be within the statute.
Where a parol lease is for a longer term than that permitted
by the statute, the fact that the rent is paid in advance for
the whole term does not take the lease out of the statute. ^^
In Inman v. Stamp,^* Dajmpiee, J., said the practice had been

1 As in Alabama, Arkansas, Cali- ' Eawlins v. Turner, 1 Ld. Raym.
fomia, Dakota, Kansas, Michigan, 736.

Missouri, Montana, Nebraska, Ne- ' Eawlins o. Turner, 1 Ld. Raym.

vada, New Jersey, New York, Ohio, 736 ; Ryley v. Hicks, 1 Str. 651 ; Tress

Oregon, Pennsylvania, Utah, Wiscon- v. Savage, 4 E. & B. 36; 18 Jur. 680;

sin. New Hampshire, and Illinois. 23 L. J. Q. B. 339; Baker v. Reynolds,

2 Gardner v. Gardner, 5 CusK. 2 Sel. N. P. 13th ed. 759.

(Mass.) 483; Rex v. Longnor, 4 B. & ^ Inman v. Stamp, 1 Starkie, 12;

Aid. 647 ; Ball v. Dunsterville, 4 T. R. Delano v. Montague, 4 Gush. (Mass.)

313. • 42; Croswellw. Crane, 7Barb. (N.Y.)

3 Irvin V. Thompson, 4 Bibb (Ky.) 191.

295. 1° Besar v. Plues, 64 N. Y. 518;

< Elwell V. Shaw, 16 Mass. 42; Young v. Duke, 5 id. 463; Trull v.

Combe's Case, 9 Coke, 75 a. Granger, 8 id. 115.

5 Mutual Benefit Ins. Co. v. Brown, " Sears v. Smith, 3 Col. 287.
30 N. J. Eq. 193 ; Frost v. Deering, 12 Huffman v. Stark, 31 Ind. 474.
21 Me. 156, 18 Brockway v. Tliomas, 36 Ark. 578.

0 Bums a. Lynde, 6 Allen (Mass.). " B. R. Trin. 55 Geo. III.
305 ; Upton v. Archer, 41 Cal. 85.

46 STATUTE OP FEAUDS. [CHAP. I.

with tlie foregoing case of Ryley v. Hicks, although he rather
inclined to think that the second section of the statute, taken
with section four, was confined to leases executed by posses-
sion on which two-thirds of the improved rent had been
paid.^

In England, by the Act 7 & 8 Vict. c. 76, which was only in
force from the 31st December, 1844, to the 29th September,
1845, it was enacted that no lease in writing of any freehold,
aopyhold, or leasehold land should be valid unless the same
should be made by deed, but that any agreement in writing
to let any such lands should be valid and take effect as an
agreement to execute a lease.^ By the Eeal Property Amend-
ment Act, 1845^ (which is retrospective in its operation),*
the above act was repealed, and it was enacted * that a lease
required by law to be in writing, of any tenements or here-
ditaments which might by law have been created without
writing, made after the 1st of October, 1845, shall also be
void at law unless made by deed. The efPect of a void
demise under this statute is the same as that of a void
demise under the statute of frauds, notwithstanding that
the words of the statute are that it "shall be void at
law." «

Sec. 18. statute not to Apply to Tolls nor to Equitable Es-
tates.— This statute does not apply to agreements for the
lease of tolls of turnpike roads made under the statute,^ as
these are valid if signed by the trustees, their clerk, or
treasurer, notwithstanding they are not under seal.^ Nor

1 Sel. N. p. 13th ed. p. 759, n. 7. If " See cases decided under this Act :

a parol lease is made to hold from Burton v. Reevell, 16 M. & "W. 307;

year to year during the pleasure of 16 L. J. Ex. 85; Doe o. MofEatt, 15

the parties, this is adjudged to be a Q. B. 257 ; 19 L. J. Q. B. 438 ; Bird

lease for only one year certain, and v. Defonvielle, 2 C. & K. 415 ; Arden

every subsequent year is a new spring- v. Sullivan, 14 Q. B. 832.

ing interest arising upon the first con- ^ 8 & 9 Vict. c. 106.

tract, and parcel of it ; so that if the ' Upton v. Townsend, 17 C. B. 50.

tenant should occupy ten years, still ' § 3.

it is prospectively a lease for a year « Xress v. Savage, 4 E. & B. 36 ; 18

certain, and therefore good within Jur. 680 ; 23 L. J. Q. B. 339.

the execution of the statute ; though, ' 3 Geo. IV. c. 126, §§ 55, 57.

as to the time past, it is considered ^ Shepherd v. Hodsman, 18 Q. B.

as one entire and vahd lease for so 316 ; Markham v. Stanford, 14 C. B.

many years as the tenant has enjoyed (N. S.) 380.
it. Taylor on Evidence, 884; Rob-
erts on Frauds, 241-244.

SEC. 20.] PABOL LEASES. 47

does tlie statute affect merely equitable estates ; it only refers
to legal estates, and it is therefore necessary, in order to pass
the legal estate on a transfer of mortgaged premises, that the
document should be under seal, but where the equitable
estate is to be dealt with, such an instrument of transfer
need not be under seal.^

Sec. 19. Entry under Void Lease. — If a party enters into
possession under a lease, Toid by reason of the statute, or
un^er an agreement for a lease, he is, in the first instance,
only tenant at will i^ and even if he has expended money in
the improvement of the premises, that will not give Mm a
term to hold till he is indemnified ; ^ but if he subsequently
pays rent under the agreement, he becomes tenant from year
to year.* The payment of rent must be understood to mean
a payment with reference to a yearly holding, such as
payment by the quarter or some other aliquot part of a
year.^

Sec. 20. How a Tenancy at Will may be Created. — All

leases for an uncertain period are prima facie leases at will,^
and a reservation of rent is not essential to uphold this spe-
cies of tenancy.'' Consequently a person who occupies land

1 Stamers v. Preston, 9 Ir. C. L. E. v. Shay, 60 Cal. 508; Koe v. Lewis,
355. 2 "W. Bl. 1173; Lamed v. Hudson,

2 Goodtitle v. Herbert, 4 T. R. 680 ; 60 N. Y. 102 ; Richardson v. Lang-
Clayton V. Blakey, 8 T. R. 3 ; 2 Sm. ridge, 4 Taunt. 128.

L. C. 7th ed. 102 ; Chapman v. Towner, ' Rex v. Jobling, 2 R. C. & M. 28 ;

6 M. & "W. 100 ; Doidge v. Bowers, Rex v. Collett, R. & R. C. C. 498. An

2 M. & W. 365 ; Berrey v. Lindley, entry under permission of the owner

3 M. & Gr. 498 ; 4 s. c. (N. R.) 61 ; to take care of the premises : Jones v.
Doe V. Wood, 14 M. & W. 687. Shay, ante ; Herrell v. Sizeland, 81 111.

^ Richardson v. Langridge, 4 Taunt. 457 ; is a tenant at will. In Humphries

128. V. Humphries, 3 Ired. (N. C.) L. 362, a

* Doe V. Browne, 8 East, 165; Doe person who was let into possession

V. Amey, 12 Ad. & El. 476 ; Berry v. without any agreement for rent, but

Lindley, 3 M. & Gr. 498 ; Tooker v. with the understanding that he should

Smith, 1 H. & N. 735 ; Doe v. Moffatt, leave whenever required, was held to

15 Q. B. 257. be strictly a tenant at will, and en-

' Braythwayte v. Hitchcock, 10 M. titled to the statutory notice to quit.

& W. 497 ; Doe v. "Wood, 14 ib. 087 ; In Whoou o. Drizzle, 3 Dev. (N. C.)

see also The Marquis of Camden v. L. 417, the defendant went into pos-

Batterbury, 5 C. B. (N. S.) 808; 7 session under an agreement that he

C. B. (N. S.) 864; Doe v. Watts, 7 should cultivate the land during his

T. R. 85; Doe v. Cox, 17 L. J. Q. B. life, or as long as he pleased, but

3 ; and see Doe v. Davies, 7 Exch. 89. without the power to sell his right,

6 Rich V. Bolton, 46 Vt. 84 ; Jack- was held to create only a tenancy at

son V. Brodt, 2 Cai. (N. Y.) 169 ; Jones will.

48

STATUTE OP FRAUDS.

[chap. I.

rent free, or by the naked pfermission of the owner ^ and, as
is held in some of the States, as a mere squatter, disclaiming
title in himself,^ or a person who holds under a void lease or
deed,3 or under a contract to purchase,* or under a lease of
premises till they are sold,^ or a person who remains in the

1 Hull V. "Wood, 14 M. & W. 682 ;
Larued o. Hudson, 60 N. Y. 502;
Williams v. Devian, 31 Mo. IS ; Jones
V. Shay, ante ; Doe o. Gardner, 12 C.
B. 319 ; and the fact that a person
pays rent does not change the char-
acter of his tenancy, unless he pays it
with reference to a yearly holding. Bars-
tow V. Cox, 11 Q. B. 122 ; Eich v. Bol-
ton, ante ; Braythwayte v. Hitchcock,
10 M. & W. 497 ; Hull v. Wood, ante.
A person who occupies as a servant,
under the agreement to pay monthly
rent, is a mere tenant at will, although
the contract is for a year. McGee v.
Gibson, 1 B. Mon. (Ivy.) 105.

2 Stamper v. Griffin, 20 Ga. 312;
Gay V. Mitchell, 34 id. 159 ; Smith v.
Houston, 16 Ala. Ill; Wearer!). Jones,
24 id. 420.

8 Ezelle V. Parker, 41 Miss. 20;
Cromelin v. Thiess, 31 Ala. 412 ; Gal-
loway V. Herbert, 4 T. E. 680 ; War-
ren V. Eeamside, 1 Wils. 1 76 ; Medina
V. Poison, Holt. 47. In Tennessee,
where a parol lease for two years is
Toid, a tenant entering under it is
held to be a tenant at will : Duke v.
Harper, 6 Yerg. (Tenn.) 280; and in
Maine, a parol lease at an annual rent
creates a tenancy at will. Wethers
V. Larabee, 48 Me. 570 ; Cole on Eject-
ment, 456 1 but he holds, subject to
the terms of the lease in all other
respects, except as to duration of - the
term. Eiggs v. Bell, 5 T. E. 471 ; Tress
V. Savage, 4 E. & B. 36 ; Eichardson
V. Gifford, 1 Ad. & El. 52 ; Penning-
ton V. Taniere, 12 Q. B. 998 ; Lee i'.
Smith, 9 Exch. 662 ; Arden v. Sullivan,
14 Q. B. 832 ; but upon payment of
rent, he becomes a tenant from year
to year, under the terms of the void
lease so far as they are applicable to,
and not inconsistent with, a yearly
tenancy. People v. Eickert, 8 Cow.
(N. Y.) 226; Strong v. Crosby, 21

Conn. 398; Schuyler v. Leggett, 2
Cow. (N. Y.) 600. But see Jackson
V. Eogers, 1 John. Cas. (K. Y.) 33,
where a tenant who went into posses-
sion under a void lease was held to
be a mere trespasser, and not entitled
under the statute to a notice to quit.
Goodtitle o. Herbert, 4 T. E. 680;
Denn v Eearnside, 1 Wils. 176.

* Patterson v. Stoddard, 47 Me.
355; Jones t. Jones, 2 Eich. (S. C.)
542; Manchester v. Doddridge, 3 Q.
B. 30 ; Stanway v. Eock, 4 M. & G.
30; Howard v. Shaw, 8 M. & W. 118;
Tucker v. Adams, 52 Ala. 254; Eight
V. Beard, 13 East, 210 ; Carpenter v.
United States, 6 Ct. of CI. (U. S.) 157 ; .
17 Wall. (N. S.) 489; Harris v. Frink,
2Lans. (N.Y.) 35; 49N.Y. 24; Kirtland
V. Ponsett, 2 Taunt. 145; Ball v. CuUi-
more, 5 Trwy. 753 ; Hew v. Jones, 13
M. & W. 12 ; Doe v. Jackson, 5 B. & C.
448; Tomes v. Chamberlain, 5 M. &
W. 14.

^ Braythwayte v. Hitchcock, 10 M.
&W. 494; Emmons v. Scudder, 115
Mass. 367; Jackson v. Kingsley, 17
John. (N. Y.) 158; Dunn ^. Trustees,
&c., 39 111. 578 ; Anderson v. Prindle,
26 Wend. (N. Y.) 616; Hollingsworth
u. Stennett, 2 Esp. 717. In Anderson
V. Prindle, 23 Wend. (N. Y.) 616, it was
held that a person who enters under a
parol agreement for a lease, the rent
to be paid monthly, and refuses to ac-
cept the lease, becomes a tenant at will
or by sufferance, and is liable to be
ejected immediately; hut that, if the
landlord accepts rent from him, he
becomes entitled, under the statute, to
notice to quit. If the parol agree-
ment was for a term exceeding one
year, and therefore void under the
statute of frauds, it was held that the
tenancy created by the acceptance of
rent was from month to month, and
that the tenant would be entitled to a

SEC. 20.] PAKOL I.EASES. 49

possession of premises after they are sold upon execution,i or
a person who occupies under an agreement that he may remain
as long as he is in the owner's employ,^ or until a certain con-
tingency happens, are tenants at will. Thus, in a Massachu-
setts case,* the tenant went into possession under an agreement
that he might occupy " as long as he kept a good school " ; and
the court held that this was a tenancy at will, with a condi-
tional limitation not requiring entry or notice to terminate
it, and that evidence that the tenant was deficient as a teacher
in literary and scientific attainments was competent evidence
of the happening of the contingency ; but that if the contin-
gency did not happen, his right of occupancy continued, and
the landlord had no right to expel him. Indeed, it may be
stated generally, as the rule, that in all cases where a person
enters into the possession of the premises of another by his
permission, no definite term of occupancy binding upon the
parties being agreed upon, he is a mere tenant at will, and
this, too, irrespective of the question whether he occupies
rent free or pays rent therefor.* A mere permission and
occupancy under it is sufficient to create this species of ten-
ancy,* and it may be created by express terms, or may arise
by construction or implication of law. Thus, a lease of
premises, whether in writing or by parol, " so long as the par-
ties please," or at the lessor's "will and pleasure," is a lease
at will ; ^ so a lease of premises reserving the new house, when-

month-'s notice to quit. See also S. C. when I please, and you shall pay

19 Wend. 391 ; Hammerton v. Stead, nothing for it," followed by occupancy

3 B. & C. 483 ; Reynaut v. Porter, 7 under it, was held to create a tenancy

Bing. 451. at will, and the relation of tenant so

^ Lee V. Hernandez, 10 Tex. 137. strictly, that by residence under it for

2 McGee v. Gibson, 1 B. Mon. (Ky.) forty days, the tenant acquired a set-

105. tlement. In Groves v. Groves, 10 Q.

8 Ashley K.Warren, 11 Gray (Mass.) B. 486, the defendant occupied the

43. , premises in question by permission of

* In Herrell v. Sizeland, 81 111. 457, the owner or lessee, for about forty-
the defendant and his wife moved into four years, paying no rent therefor,
a house by the owner's permission. He was held to have occupied as a
and remained there, rent free, and tenant at will, and that he was pro-
took care of him until his death, eluded from setting up an adverse
They were held to be tenants at will, title in himself.

In Rex V. Fillougby, 1 T. R. 458, it ^ See cases cited in the last note ;

was held that a person occupying, also Hull v. Wood, 14 M. & W. 682.
under a permission, given in those " Richardson d. Langridge, 4 Taunt,

words, "I give you a lease to enjoy 128; Bartow v. Cox, 11 Q. B. 122.
as long as I please, and to take again

50

STATUTE OF FRAUDS.

[chap. I.

ever the lessor chooses to occupy it, and at all other times to
be used by the lessee, constitutes the lessee a tenant at wOl
of such house.i A tenant who holds over pending a treaty
for a renewal of the lease is a tenant at will, and if the
renewal is not effected, may be ejected without demand or
notice ; ^ but in some cases, under such circumstances, the
person holding over has been held a tenant at sufferance.^ A
tenant holding over after the expiration of his term is a mere
tenant at will, or by sufferance ; but if the lessor accepts rent
from him, his tenancy is thereby at once converted into a
tenancy from year to year, upon the terms of the former
demise, so far as they are applicable to his new relation.*

1 Cudlip V. Randall, 3 Salk. 156.

2 Hollingsworth v. Stennett, 2 Esp.

717.

s Simpkin v. Ashurst, 1 C. M. & E.
261.

* Jackson v. McLeod, 12 John.
(N. Y,) 182; Wilde v. Cantillon, 1
John. Cas. (N. Y.) 123; Jackson v.
Parkhurst, 6 John. (N. Y.) 123; Clay-
ton V. Blakeley, 8 T. R. 3. This ques-
tion should not be lightly passed over,
as it is one that has inyolved consid-
erable conflict, and that even now is
not satisfactorily settled in all the
States. The difference, however, in
the decisions of the courts, is refera-
ble to the difference in the language
of the section of the statute of frauds
relative to parol demise. Under the
statute 29 Car. 2, c. 393, it is provided
that all leases by parol, for more than
three years, shall have the effect of
leases at will only; and in England,
under this statute, it is held that, not-
withstanding this statute, a person
holding under a parol lease for a,
longer term, as in one case under a
parol lease for seven years, Rlgg v.
Bell, 6 T. R. 471 ; 2 Smith's Leading
Cas. 72, and paying rent, although
not deriving an interest or estate
commensurate in duration with that
fixed in the lease, is nevertheless con-
sidered as holding upon all the terms of
the agreement so far as they are appli-
cable to a tenancy from year to year.
Richardson v. Gifford, 1 Ad. & El. 52 ;
Beale v, Sanders, 3 Bing. (N. C.) 850;

and in the cases last mentioned the
tenant was held bound by the cove-
nants to repair. In the case last cited
the defendants had for several years
occupied and paid rent, as assignees,
under a void lease. The lease con-
tained a warrant on the part of the
lessees to keep the buildings and
premises in repair. The court held
that the assignees were liable to re-
pair to the end of the term, but that
their liability to repair under this im-
plied assumpsit, ceased vrith the ter-
mination of the term fixed in the
lease. " Although the lease was void,"
said Park, J., "yet, as the defendants
held the premises to the end of the
term, and continued to pay the rent,
they are liable to all the stipulations
contained in the lease, in the same
way as a tenant who holds upon the
expiration of a void lease." This doc-
trine was also held in Pistor v. Cator,
9 M. & W. 315, in which the tenant
entered into possession under an agree-
ment for a lease as soon as the lord's
license could be obtained, in which he
was to covenant to repair. No lease
was ever obtained, and no lease was
ever made, yet he was held liable to
repair so long as he occupied. In this
case, however, it should be stated that
the tenant occupied for the whole term
agreed upon, and Abingek, C. B., says :
" The defendant having occupied for
the whole of the term agreed upon,
and having had the full benefit which
he could have enjoyed under the lease.

SEC. 20.]

PAROL LEASES.

51

In order to create a tenancy for an uncertain period into
a tenancy from year to year there must be a reservation

he cannot now say that the covenants
are not binding, because the lease was
not granted. In all these cases, the
tenant had the benefit of the full
term. If the landlord had evicted
him before the full term expired, as
he might have done, by giving proper
notice to quit, a different question
would have been presented, and possi-
bly with II different result. In the
case of such tenancies, the landlord
may put an end to them at any time
by notice to quit of the usual length.
Chapman v. Towner, 6 M. & W. 100,
but in any event it is put an end to
by the determination of the term,
without any notice to quit, and this is
one of the peculiarities of this species
of tenancy from year to year. Tilt v.
Stratton, 4 Bing. 446; Berney v.
Lindley, 3 M. & Gr. 511. The doc-
trine of these cases as to the occu-
pancy of a tenant, under a void lease
being subject to the terms of the
lease so far as they are applicable to
the relation, is generally accepted by
our courts. Lockwood v. Lockwood,
22 Conn. 425 ; Strong v. Crosly, 21 id.
398; Taggard v. Roosevelt, 2 E. D. S.
(N. Y. C. P.) 100; People v. Rickert,
8 Cow. (N. Y.) 227; Creech v. Crock-
ett, 5 Cush. (Mass.) 133; Hollis o.
Pool, 3 Met. (Mass.) 350; Schuyler v.
Leggett, 2 Cow. (N. Y.) 660; Edwards
V. Clemons, 24 "Wend. (N. Y.) 480;
Prindle v. Anderson, 23 id. 616. But
upon the point, that a tenant under a
lease void under the statute of frauds,
becomes a tenant from year to year
upon payment of rent, there is a great
diversity of doctrine, growing out of
the difference in the language of the
statute. In Massachusetts in several
cases under the statute it is held that
nothing more than a tenancy at will
exists under parol leases, either for a
certain or uncertain term, and that
this tenancy cannot be enlarged into a
tenancy from year to yeai^by entry
and payment of rent. Ellis v. Paige,
1 Pick. (Ma^s.) 45; Hollis v. Pool, 3

Met. (Mass.) 161 ; Kelly v. "Waite, 12
id. 300 ; Bingham v. Sprague, 10 Pick.
(Mass.) 102; and a similar doctrine,
under a similar statute, has been
held in Maine. Davis v. Thomp-
son, 13 Me. 214; Withers v. Lara^
bee, 48 id. 570, and in New Hamp-
shire Whitney v. Swett, 12 id. 10, and
in the latter State it is held that a
tenancy shown by written receipts for
rent, to be from year to year, or month
to month, is but a lease at will.
Whitney v. Swett, ante, and a similar
doctrine is intimated in Cromelin v.
Theis, 31 Ala. 411. But in most of
the States the English doctrine pre-
vails. Hull f. Wadsworth, 28 Vt. 10;
Prindle v. Anderson, 19 Wend. (N. Y.)
391, aff'd 23 id. 616 ; Jaqkson i-.Wilsey,
9 John. (N. Y.) 267 ; Ridgeley v. Still-
well, 28 Miss. 400 ; McDowell v. Simp-
son, 3 Watts (Penn.) 135 ; Pugsley v.
Aiken, 11 N.Y. 494; Porter v. Gordon,
5Yerg. (Tenn.) 100; Drake u. Newton,
3 N. J. L. Ill, and unless the language
of the statute is such as to prevent
such a construction, it would seem to
be the better doctrine that, while in the
first instance such holdings are merely
as tenants at will, yet the estate is
susceptible of being enlarged into a
tenancy from year to year, and that
this is done, whenever a yearly rent is
reserved in the lease, when the tenant
pays, and the landlord accepts the
rent. Silsby v. AUen, 43 Vt. 172. In
Morris i.. Niles, 12 Abb. Pr. (N. Y.)
103, it was held that payment of a
quarter's rent is evidence of a yearly
tenancy at that rate. It seems that
actual payment of the rent is not nec-
essary, but in one case an admission
by the tenant of a half year's rent in
an account of the landlord was held
suflBcient. Cox v. Burt, 5 Bing. 185 ;
GosELEK, J., before whom the case
was tried at the assizes, saying, " The
admission was equivalent to the pay-
ment of so much rent, and that the
plaintiff thereby became tenant from
year to year." See for English cases

52 STATUTE OF rEATJDS. [CHAP. I.

of annual rent, and unless there is such a reservation, the
tenancy is prima facie only a tenancy at will.^ Thus,
in an English case,^ the landlord let a shed to be used as
a stable, for the dung that was made therein, as compensa-
tion. No definite term was agreed upon, and the court held
that the tenancy was merely one at will, because there was
no reservation of rent referable to a year or any aliquot part
thereof. And it seems that an impUed obligation to pay
rent is not enough to convert a tenancy at will into a
tenancy from year to year. Thus in a Vermont case,^ the
defendant, by the parol permission of the plaintiff, went into
possession of certain premises as tenant, without any agree-
ment as to the terms of holding or the payment of rent, and
continued in possession about fourteen years. He erected a
barn on the premises and repaired the house. The plaintiff
tried to settle with him, but could get nothing from him
beyond the repairs, and it appeared that he refused to pay
rent. The plaintiff brought an action to recover the posses-
sion of the premises, giving no notice to quit. The defendant
resisted the action upon the ground that his tenancy had
ripened into a tenancy from year to year, and consequently
that he was entitled to six months' notice to quit. But the
court held that the tenancy was merely one at will, because

holding that a tenant under a, void 12 Q. B. 998. But, as stated elsewhere,

lease is a tenant from year to year, p. , note , this is only an inference

Tress c. Savage, 4 E. & B. 36 ; Doe v. of law that cannot be raised against

Calling, T. C. P. 933 ; Lee v. Smith, 9 the intention of the parties clearly ex-

Exchq. 662; Davenish v. Mofiatt, 15 pressed, and it seems that it cannot

Q. B. 257. Holding that a similar arise where the tenant fails to comply

result ensues from an entry under an with conditions precedent established

agreement for a lease, Bolton v. Tom- either by contract, usage, or law. Thus,

lin, 5 Ad. & El. 856 ; Doe v. Smith, 1 in an Iowa case, Dubuque v. Miller,

Man. & R. 137 ; Mann v. Lovejoy, Ky. 11 Iowa, 583, the tenant of a market-

& Moo. 355 ; Bennett v. Ireland, E. B. stall, under lease for one year, from

& E. 326 ; Knight v. Bennett, 3 Bing. the city, at the close of the lease,

361 ; Chapman v. Towner, 6 M. & W. held over without complying with cer-

100 ; Cox V. Burt, 5 Bing. 185 ; Brayth- tain terms as to the payment of rents

wayte v. Hitchcock, 10 M. & W. 494 ; made by the city for such second

Doe V. Amey, 12 Ad. & El. 476 ; al- year, and the court held that his ten-

though the agreement is void, Knight ancy was only at wUl.
V. Bennett, ante ; also that it arises i Roe v. Lewis, 2 "W. Bl. 1173 ;

from implication of law by payment Chamberlain v. Dunham, 45 Vt. 50.
of yearly rent. Braithwaite ». Hitch- ^ Richardson «. Langridge, 4 Taunt,

cock, ante; Hull v. Wood, 14 M. & 128.

W. 682 ; Tress v. Savage, ante ; Dav- ' Rich v. Bolton, 46 Vt. 84.

enish v. MofEatt, ante ; Doe v. Taniere,

SEC. 20.] PABOL LEASES. 58

it lacked the essential element of annual rent, and that the
fact that the repairs upon the premises were to be allowed
upon the rent did not amount to a yearly payment of rent,
but were merely payments in gross for the whole occupancy.

In Vermont, under the statute, a parol lease, with a stipu-
lation to pay an annual rent, is an " estate at will " only, but
it has been held in several cases that the character of the
tenancy may be changed, and become one from year to year
by subsequent acts of the parties ; as, by entry into posses-
sion by the tenant, and a payment by him, and an acceptance
by the landlord of the rent stipulated to be paid, and con-
tinuing in possession beyond the first year,i and this change
is not wrmiffht by the length of time that the tenant holds and
pays rent, but hy the fact that he enters and holds under a
stipulation to pay annual rent, and pays accordingly.^ It has
been held that an entry upon, and a continuance in, posses-
sion of premises for several years under a parol agreement to
support the owner, creates a tenancy from year to year,
because the support furnished is treated as in the nature of
yearly rent.^

It may be said that prima facie leases, indefinite as to the
term, merely create a tenancy at will ; and only a reservation
of annual rent converts them into leases from year to year.*
It is not essential that there should be stipulation for the
payment of rent in money, or of a certain amount, but there
should be a reservation of some benefit or advantage that
stands as yearly rent.^ A lease, indefinite as to terms, but
reserving an annual rent payable quarterly, is held in Penn-
sylvania to be a lease from year to year, and cannot be
terminated except by regular notice to quit, and, if such
notice is not given, and if the tenant commences a new year
without any notice to quit having been given, the landlord
cannot put him out until the end of the next year ; but for
the second year the tenant must pay according to the terms
of the lease,^ and the courts latterly are inclined to construe

1 Barlow v. 'Wamwright, 22 Vt. 88 ; Lewis, 2 W. Bl. 1173 ; Jackson v.
SUsby V. Allen, 43 Vt. 172; Hull v. Brodt, 2 Cai. (N. Y.) 169.
Wadsworth, 28 Vt. 410. ^ Biohardson «. Langridge, 4 Taunt.

2 Silsby V. Allen, 43 Vt. 172. 128.

' Hanehett v. Whitney, 1 Vt. 311. ^ Lesley o. Bandolph, 4 Bawle

4 Bich V. Bolton, 46 Vt. 84; Eoe v. (Penn.) 123.

54

STATUTE OF FEAUDS.

[chap. I.

all leases at will at an annual rent as leases from year to
year.i But when tlie lease in terms creates only a tenancy
at will, the fact that rent is reserved and paid in pursuance
of such reservation does not change the character of the
tenancy. The intention of the parties, if clearly expressed,
will control. Thus, where a tenant entered under an agree-
ment " to become tenant at the will and pleasure of " the
landlord, "and at and after the rate of twenty-five pounds
per annum, payable quarterly," the tenancy was held to be
at will, and not from year to year, Lord Dbnman, C. J.,
said : " The courts are desirous to presume a tenancy from
year to year where parties do not express a different intention,
but here they have expressed it." ^ In another case,^ it was

1 Pople V. Garland, 4 You. & C.
394. In many of the States all parol
leases merely create a tenancy at will,
as in Massachusetts, Maine, Yermont,
etc.

2 Bartow v. Cox, 11 Q. B. 122.
The reseryation of yearly rent is not
inconsistent with a tenancy at will.
Co. Litt. 556 ; Walker o. Giles, 6 C.
B. 662. And where the terms of the
lease are such as to show a clear in-
tention to create a tenancy at will,
the reseryation and payment of yearly
rent, and an occupancy under it for a
period of time, however long, will not
change its character. Dixie v. Davis,
7 Exchq. 89. The English courts are
inclined to hold all tenancies for an
indeterminate period, except where
otherwise clearly provided, tenancies
from year to year, where there is a
reservation of annual rent, and even
in some cases they have so held where
there was no such reservation, but
rent had been so paid. Parker v.
Walker, 1 Wils. 25. And a similar
doctrine was held in .Jackson v. Bryan,
1 John. (N. Y.) 323, but this is only
the case where there is nothing to
indicate a contrary intention. When
it is clearly the intention of the par-
ties to create only an estate at will,
their intention will be upheld, not-
withstanding the reservation of an
annual rent : Anderson v. Midland

R. R. Co., 30 L. J. Q. B. 94 ; Stedman
V. Mcintosh, 4 Ired. (N. C.) L. 291;
Humphries v. Humphries, 3 id. 363.
In a Massachusetts case it was held
that a written lease of a. house at a
certain rent per annum, payable "in
monthly payments, otherwise pro
rata," for a term to begin "when
said house is suitable to be occupied "
by the lessee, and undefined in dura-
tion, except by a stipulation that if,
after two years from the time when
the lessee should move into the house,
the lessor should wish to live there,
he might do, so, and the lessee might
then retain, if he should desire, certain
rooms "for such a time as may be
agreeable to us both," creates only a
tenancy at will ; and parol evidence is
inadmissible to give it a different con-
struction. Murray v. Cherrington, 99
Mass. 229.

Where, by the terms of a written
lease, the tenancy is to continue so
long as the parties shall mutually
agree, and either party may determine
it on four days' notice — the rent to
be paid monthly or semi-monthly, as
may be most convenient — such rent-
ing creates a tenancy at will ; and the
lessee, in such case, acquires no
certain indefeasible interest in the
premises, which he can sell and trans-
fer to another. Such tenancy will be
determined, by implication of law.

8 Walker v. Giles, 6 C. B. 662.

SEC. 22.] PAROL LEASES. 55

held that a clause in a mortgage that the mortgagors should
become tenants to the mortgagees of the demised premises
during their will, at a yearly rent, created only a tenancy at
will.i

Sec. 21. Rule in Doidge V. Bowers. — In Doidge V. Bowers,*
three persons entered under a void lease ; payments of rent
were made ; but, as it was riot shown that they were made
with the assent of one of the three, it was held that as against
her there was no evidence of a tenancy from year to year, she
not having resided a year on the premises. Parke, B., said :
" Under the original contract no demise could be created, but
a mere tenancy at will. Then, in order to constitute a new
tenancy, it must be shown that all three parties agreed to
vary it by a new contract for a tenancy from year to year." *

Sec. 22. How Tenancy from Year to Year may be Created. —
A tenancy from year to year may be created by express agree-
ment, even by parol. Thus, if premises are let, " from year
to year," at a certain annual rent, and from a certain time,
and the lessee enters into the possession, a tenancy from year

upon the death either of the lessor or an indenture of mortgage, among

lessee ; or by the desertion of the other things, contained a proyiso and

premises by the lessee; or by the covenant by the mortgagee, that no

sale and transfer of his possession to sale, or public notice, or advertise-

another. Therefore, where during ment for any sale, should be made or

such a tenancy the lessor died, having given, nor any means be taken for

by will devised the premises ; and the obtaining possession, until the expira-

lessee, a month afterwards, sublet a tion of twelve calendar months after

portion of the premises to the plain- notice in writing of such intention

tiff, without the consent of the de- should have been given to the

visee ; and shortly thereafter removed mortgagor, as tenant at will to the

wholly therefrom ; and the devisee mortgagee, on the payment of a cer-

thereupon entered and removed doors tain yearly rent, by two equal half-

and windows from a dwelling-house yearly payments. No livery of seizin

situated on the demised premises, and was made to the mortgagor. It was

in the occupancy of the plaintiff; held that the mortgagor was tenant

without unnecessary interference vrith at will only, Pollock, C. B., re-

the person or property of the plaintiff, marking, " there can be no doubt that

and without a breach of the peace, a tenancy at will may be coupled

such entry and acts of ownership were with a yearly rent."
not tortious, and do not constitute a " 2 M. & W. 365.
cause of action in favor of the plain- ° See also Denn v. Feamside, 1

tiff against the devisee. Say v. Stod- Wils. 176 ; Goodtitle v. Herbert, 4 T.

dard, 27 Ohio St. 478. R. 680.
1 In Dixie v. Davis, 7 Exchq. 89,

66 STATUTE OP PRATTDS. [CHAP. I.

to year is created which the lessor may determine the first
year by giving six months' notice to quit,^ and therefore is
not within the statute of frauds. If a tenancy is created for
one year certain, and after that from year to year, it is a lease
for at least two years,^ and therefore is within the statute of
frauds in all those States where a verbal lease is good for
only one year. It is said that, if an annual rent is reserved
and the term indefinite, a tenancy from year to year is
created, although it is expressly agreed that the tenant shall
quit at ten, twenty, or thirty days' notice, the tenancy differ-
ing from an ordinary tenancy from year to year in no other
respect than in the notice required for its termination.^ An
entry under a lease for a term at the annual rent, void for
any cause, and a payment of rent under it, creates a tenancy
from year to year upon the terms of the lease except at its
duration. Thus, in a New York case,* a parol demise was
made for seven years which was void under the statute of
frauds, but the tenant having entered into possession and
paid rent under it, it was held that it inured as a tenancy
from year to year, and that the lease regulated the terms of
the tenancy.^ At the end of the term under a void lease,
the tenancy ceases by efflux of time, without any notice to
quit, although either party might have put an end thereto by

1 Clark V. Smaridge, 7 Q. B. 957. * Schuyler v. Leggett, 2 Cow.
Such a lease was formerly held to be (N. Y.) 660.

A lease for at least two years. Agand ^ Xress v. Savage, 4 E &. B. 36 ;

V, King, Cro. Eliz. 775; Legg v. Strud- Clayton v. Blakely, 8 T. R. 3; Thur-

wick,2SaIk.414;CrackweU!J. Owerell, ber v. Dwyer, 10 R. I. 355; Strongs.

Holt, 417 ; Stamfil v. Hickes, 2 Salk. Crosby, 21 Conn. 398 ; Martin v.

413. And, according to some of the Watts, 7 T. E. 88 ; Beale v. Sanders,

cases, a lease for three years. Pot- 3 Bing. (N. C.) 850; Eiggsv. Bell, 5

kin's Case, 6 Coke, 35 6 ; Carstrike v. T. E. 471 ; Lee v. Smith, 6 Exchq.

Mason, 2 Neb. 543. But the rule is 662; Doe v. CoUings, 7 C. B. 939;

now well settled, as stated in the text. Pennington v. Taniere, 12 Q. B. 998;

Lily V. Green, cited I Ld. Eaym. Richardson v. Savage, 4 E. & B. 36.

708 ; Jacklin v, Cartwright, 4 Eagt, In Pennsylvania a tenancy at will is

291; Eex v- Chawton, 1 Q. B. 247; treated as a tenancy from year to

Birch «. Wright, 1 T. E. 378 ; Chad- year, the same notice being required

bom V, Green, 9 Ad. & El. 38 ; Pox v. to terminate the tenancy, in either

Nathans, 32 Conn. 348. case, Clark t. Smith, 25 Penn. St.

2 Birch V. Wright, 1 T. R. 386; 137. And in Tennessee a tenant
Hanchett v, Whitney, 1 Vt, 311 ; Hall under a, void lease is treated as a
V. Myers, 43 Md. 581 ; Monck v. tenant at will, or from year to year,
Geekie, 5 Q. B. 841. according to the circumstances. I>uke

s Martin v. Kemp, 7 T. B, 85, v. Hooper, 6 Yerg. (Tenn.) 280.

SEC. 22.] PAKOL LEASES. 67

the requisite notice at the end of any previous year.i In a
•New York case,^ a tenant who had leased premises for a year,
took them for a second year on the expiration of the first
year. It was claimed that the second lease was void because
the officer granting it had no authority to do so. The court
held that, if the second lease was void, the tenant should be
regarded as holding over under the terms and conditions
of the former lease, he became a tenant from year to year,
and must give six months' notice to determine his tenancy ;
and that if he should be regarded as having entered under
the void lease, possession under it, and payment and accep-
tance of rent would create a tenancy from quarter to quarter,
not to be determined without three months' notice. Also,
that a lessee for years whose term depends on a certainty,
who holds over after the termination of the lease merely to
remove his goods and chattels, none the less becomes a ten-
ant from year to year by such holding over, because a tenant
for years, whose term depends on a certainty, has no right to
remain a reasonable time after his term expires for the pur-
pose of removing his chattels ; and, in order to entitle a land-
lord to regard a tenant under a demise for a year or more, as
a tenant from year to year upon his holding over after the
expiration of his term, it is not necessary that the holding
over should be of such a character as to raise a presumption
that the tenant intends to continue his occupancy. The mat-
ter is one purely within the election of the landlord, atid the
tenant has no option in that regard. The rule may be said
to be well established, that although a parol lease for more
than the period excepted from the statute is invalid, yet, if a
person goes into possession under a parol lease for a longer
period, he becomes a tenant from year to year upon the
terms of such lease, and so continues as long as he remains
in possession without any new or other agreement, and an
occupancy by putting or leaving a portion of his property
upon the premises is sufficient to establish his liability,
although there is no personal occupancy. Thus,- in a New
York case,^ the defendant went into possession of a dwelling

' Tress v. Savage, ante ; Davenish " Witt v. Mayor &c. of New York,

V. MofEatt, 15 Q. B. 257; Hayne v. 6 Robt. (N. T. Sup. Ct.) 441.

" Cummlngs, 16 C. B. & S. 421 ; Thomas ' Dorr v. Barney, 12 Hun (N. Y.)

V. Parker, 1 H. & N. 669. 259.

58 STATUTE OF FRAUDS. [CHAP. I.

house and brick-yard, under a parol lease for one year with
the privilege of four years at his option, and continued in,
personal possession for two years. It was held that, although
the lease was void as to the four years, yet by the entry of
the defendant and his holding over after the first year, he
became a tenant from year to year subject to all the terms
and conditions of the verbal lease, except as to the term.^ In
that case the tenant went into possession in June, 1867, and
in April, 1869, substantially told the plaintiff that he intended
to leave at the end of that year, and at the end of the year
he abandoned the house, and removed most of the brick, but he
left a portion of them in a shed which he had erected upon
the premises to protect the brick from the effects of the
weather, and did not remove them until some time after-
wards. The lease was never surrendered, nor did the plain-
tiff ever give his assent to the brick and shed being left there.
The court held that the fact that the brick and shed were
left there by the defendant after the expiration of the second
year operated as such a continuance of the occupancy as to
enable the plaintiff to treat him as a tenant for another year.
In the first instance, in order to give validity to a lease for
a term longer than that excepted from the operation of the
statute, it must be made conformedly to the requirements of
the statute in the State where the premises lie. In most of
the States, the provisions of the statute 29 Car. 2, c. 3, § 4, are
practically adopted, and a writing signed by the lessor or
some person by him authorized is sufficient ; and under this
statute is held that the agreement and memorandum need not
be contemporaneous,^ and any writing executed by the lessor
which tends to establish a consummated agreement between
them may be given in evidence as a memorandum, even
though in order to apply it, evidence of conversations
between them as to the subject-matter of the contract
are necessary. Thus, in a Connecticut case,* the plaintiff,

1 Schuyler v. Leggett, 2 Cow. (N. Conway v. Starkweather, 1 Den. (N.

Y.) 660; Lonnsbury v. Snyder, 31 N. Y.) H3.

Y. 514 ; Bright v. McOuat, 30 Ind. " Lerned v. "Wannemacher, 9 Allen

521; Reader v. Sayne, 5 Hun (N. Y.) (Mass.) 416; Parkhurst v. Van Cort-

564; Schuyler v. Smith, 51 N. Y. landt, 14 John. (N. Y.) 15; Tallman

309; Thiehaud v. Vevay, 42 Ind. «. Franklin, 14 N. Y. 584.

212 ; Hall v. Myers, 43 Md. 446 ; 8 Lindley v. Tibbals, 40 Conn. 522.
People V. Riokert, 8 Cow. (N. Y.) 236;

SEC. 22.] PAROL LEASES. 59

being desirous of raising a crop of strawberries on a portion
of the defendant's land, offered him one hundred dollars for
the rent thereof ; but the defendant declined this offer, but
offered to take a mowing-machine and horse-rake belonging
to the plaintiff, which he valued at one hundred and ten
dollars, for the use of the land. The parties separated with-
out coming to any agreement. A few days afterwards, the
plaintiff wrote to the defendant, asking him if he could have
the land " on the terms proposed." The defendant replied,
"Set your strawberries. Let me have mowing-machine and
horse-rake." This was in May, 1868, and the plaintiff imme-
diately went into possession of the land, set out his plants,
and cultivated them during that spring and summer. By
his letter, the plaintiff meant to offer one hundred dollars for
the use of the land, but the defendant supposed he meant to
offer the machine and rake. In July of the same year, the
defendant sent for the machine and rake, and the defendant,
supposing that he wished to buy them, delivered them to
him. In the fall of the same year the plaintiff called for the
pay for the mowing-machine and horse-rake, which the
defendant refused, claiming that they had been received in
compensation for the use of the land. In consequence of the
difference thus existing between the parties as to the rental
of the land, the defendant insisted that the plaintiff should
have nothing more to do with the land, but he did not pay
for the mowing-machine or rake, or offer to return the same.
In the spring of 1866 the plaintiff sent his men to hoe and
attend to the plants, and they were ordered off by the
defendant. When the berries were ripe, the plaintiff again
sent his men to gather them ; but, after picking a portion of
them, they were again ordered off by the defendant, who
went on and gathered the crop and disposed of it, claiming it
as his own. The plaintiff thereupon brought an action of
trespass (c[uare clauaum) against the defendant. The defend-
ant insisted that, by reason of the misunderstanding between
the parties, no contract existed between them, and that the
plaintiff was not entitled to the berries which grew upon the
land. The court, however, held otherwise, Fostek, J., say-
ing : " There was a contract made ; the minds of the parties
met so far as the use and occupation of the land was con-

60 STATUTE OF I'EAXTDS. {CHAP. I.

cerned. The plaintiff worked the land during the season,
and it was not until the autumn that it was discovered that
a misunderstanding existed as to the rent. Nor was the
contract then annulled or revoked. The defendant still
kept the machine and rake, and made no offer to pay for
them. He had insisted that the plaintiff should not occupy
the land, except on condition of giving these articles in con-
sideration. The plaintiff did not afterwards demand them,
nor demand pay for them, but insisted on occupying and did
occupy the land the next spring. This we think was an
assent to the defendants' terms, a tacit agreement on both
sides, ' Set your strawberries,' is certainly a brief form for a
lease, but in the surroundings of the case, we think such a
memorandum signed by the party obviates any difficulty under
the statute of frauds."

It is not essential that the agreement or memorandum
should be contained in a single paper, but a series of papers,
as letters,! telegrams,^ and a letter or other document signed,
may be used in connection with one not signed,^ but not in
connection with one subsequently to be prepared;* and a
written proposal, signed by the lessor, and accepted orally by
the lessee, has been held sufficient ; ^ but a written proposal,
signed by the lessee and accepted orally by the lessor, would
not be sufficient.® The writing or writings, in whatever
form they exist, must be complete, and contain all the
elements essential to constitute a valid contract, without
the aid of extrinsic evidence.'^ Thus, it must describe
the premises with reasonable certainty,^ the duration of the

1 Lemed v. 'Wannemacher, 9 Allen Clarke v. Puller, 16 C. B. N. S. 24 ;
(Mass.) 416. Torster v. Rowlands, 7 H. & N. 103;

2 Palmer v. Marquette &c. E. E. Watts v. Ainsworth, 6 L. P. N. S.
Co., 32 Mich. 274. 252 ; Williams v. Lake, 2 E. & E. 349.

' Loomer v. Dawson, Cheeves * Lancaster v. De Trafford, 31 L. J.

(S. C.) 68 ; Buxton v. Eust, L. E. 7 Ch. 554. But the question as to what

Exehq. 79. constitutes reasonable certainty in

* Wood V. Bridgely, 5 De G. M. & this respect is one which depends

Gr. 41. upon the circumstances of each case,

' Banker v. Allen, 5 H. & N. 61 ; and if the memorandum contains

Warner v. Willington, 3 Drew, 523 ; sufficient to form a basis from which

Smith V. Male, 2 C. B. N. S. 67; the precise estate can be identified,

Eeuss V. Picksley, L. E. 1 Exchq. 342. parol evidence is admissible to apply

s Felthouse v. Bindley, 11 C. B. K. it. Ogilvie v. Poljambe, 3 Mer. 61 ;

S. 869. Bleakley v. Smith, 11 Sim. 150; Hay-

' Peabody v. Sayers, 56 N. Y. 230; wood .,. Cape, 25 Beav. 146; Jenkins

SEC. 22.J

PAROL LEASES.

61

term,^ the rent to be paid,^ the parties thereto,* and must be
signed by the lessor or some person by him lawfully authorized
for that purpose.* In all cases, the signature must he such as
amounts to an acknowledgement hy the party that the agreement
is his ; consequently, if it is not signed by him or his agent
authorized as provided by the statute, although it is wholly
in his handwriting, and his name appears in the body of the
instrument, it is not sufficient to satisfy the statute,^ and
the absence of his signature is treated as affording absolute
evidence that the contract is incomplete.* But as to what
constitutes a signing within the statute, see Chapter on
" Memoeandums."

V. Green, 27 Beav. 437; Deven v.
Thomas, 3 My. &. K. 353; Price v.
Griffiths, 1 De G. M. & G. 80; Dan-
iels V. Davison, 16 Ves. 249.

1 Hodges V. Howard, 5 R. I. 149;
Fitzmaurice v. Bayley, 8 E. & B. 664 ;
Blore V. Sutton, 3 Mer. 237 ; Clinan v.
Cooke, 1 Sch. & Lef. 22; Hersey f.
Glblett, 18 Beav. 174; Hughes v.
Parker, 8 M. & A. 224 ; Clarke v. Ful-
ler, 16 C. B. N. S. 24 ; Gordon v. Tre-
valyan, 1 PricBj 64.

2 Wain V. "Walters, 5 East, 10;
Nichols V. Allen, 23 Minn. 542 ; Un-
derwood u. Campbell, 14 N. H. 393 ;
"Weldon v. Porter, 4 Houst. (Del.)
236; Taylor v. Pratt, 3 Wis. 674;
Hutton V. Padgett, 26 Md. 228 ; Castle
V. Beardsley, 10 Hun (N. Y.) 343;
Buckley v. Beardslee, 5 N. J. L. 570 ;
Janes v. Palmer, 1 Doug. (Mich.)
379 ; Hargraves v. Cooke, 15 Ga. 321 ;
Putman v. Haggard, 78 HI. 607. But
in many of the States the doctrine of
Wain V. Walters is not accepted, and
a memorandum in other respects suffi-
cient is held to be operative, although
the consideration is not stated there-
in. GilUngham v. Boardman, 29 Me.
79 ; Sage v. Wilcox, 6 Conn. 81 ; Halsa
V. Halsa, 8 Mo. 303; Ashford v. Kob-
inson, 8 Ired. (N. C.) L. 114; Patehin
V. Swift, 21 Vt. 292 ; Keed v. Evans,
17 Ohio, 128 ; Packard v. Richardson,
17 Mass. 121. While in others the
matter is now regulated by statute,
and the question set at rest so far as
the courts are concerned. In Massa-

chusetts, Illinois, Indiana, Kentucky,
Maine, Michigan, Nebraska, New Jer-
sey, Virginia, and West Virginia, it is
provided that the consideration need
not be expressed in the memorandum
but may be proved by any competent
evidence. In Alabama, Minnesota,
Montana, Nevada, New York, Oregon,
and Wisconsin, the consideration
must be contained in the memoran-
dum, while in the other States no
provision in this respect is made, and
is therefore left subject to judicial
construction.

' Lang V. Henry, 54 N. H. 57;
Champion v. Plummer, 5 E. & J. 87 ;
Williams v. Lake, 2 E. & E. 349;
Warner v. Willington, 3 Drew, 530.

* Bailey v. Ogden, 3 John. (N. Y.)
417; Sanborn v. Flagler, 9 Allen
(Mass.) 474; Stoddert v. Vestry of
Port Tobacco, 2 G. & J. (Md.) 227.
In some of the States, the statute ex-
pressly provides that the memoran-
dum must be signed by the party to
be charged. Or by some person by
him authorized in writing, as in Ala^
bama, California, Kansas, Michigan,
Minnesota, Missouri, Montana, Ne-
braska, Nevada, New Hampshire, New
Jersey, New York, Ohio, Oregon,
Pennsylvania, Vermont, Utah, and
Wisconsin, while in the others au-
thority may be shown by the ordi-
nary modes.

5 Stokes V. Moore, 1 Cox, 219.

" Bawdes v. Amherst, Prec. Ch.
402.

62 STATUTE OP FKAITDS. [CHAP. I,

Sec. 23, implied Tenancy from Year to Year. — A tenancy
from year to year may be implied from the circumstances
under which the parties hold. Thus, where the defendants
became the occupiers of land, and paid the year's rent in
advance for many years, it was held, that, as ordinarily speak-
ing an occupation of premises for more than a year, and
payment and acceptance of rent created a tenancy from
year to year, the inference to be drawn from the above facts
was, that the defendants were tenants from year to year.^
And the presumption is the same against a corporation aggre-
gate as against an ordinary person.^ So where a tenant holds
over after the expiration of a term, on payment of rent he
will become a tenant from year to year.^

Sec. 24. Rebuttal of Presumption. — It is open, either to
the party receiving or paying rent, to show the circumstances
under which the payment was made ; as, for instance, that
the rent was received in ignorance of the death of a party
upon whose life the premises were held ; in order to rebut
the presumption of a tenancy from year to year.* A lease
for a term, required by the statute of frauds to be in writ-
ing, may be collected from correspondence which has passed
between the lessor and lessee, and the lessor will be entitled
to distrain for rent.^

1 Hunt V. AUgood, 10 C. B. (N. S.) next, upon the same terms and at the

253. It has sometimes been thought same rate of rent, R to have the sale

that if the intention of the parties of the mill, houses, land, etc." The

was that an agreement for a lease court held that the agreement operated

should take effect as a lease, it would as a present demise from the time it

he Toid under the statute : Stratton v. was entered into, up to Lady Day,

Petitt, 16 C. B. 420; but this doctrine and as an agreement for a lease from

has been repudiated : Stranks v. St. that time for a term of three years,

John, L. E. 2 C. P. 377 ; Tidey v. and consequently was not void under

Mollett,16C.B. (KS.)298. InRoUa- the statute.

son V. Leon, 7 H. & N. 77, an agree- 2 Doe v. Taniere, 12 Q. B. 998.
ment was entered into as follows : " L o Thomas v. Packer, 1 H. & N. 669;

agrees to let, and R agrees to take, Purnivall v. Grove, 8 C. B. (N. S.)

the wood, mill site, etc., with the 496.

houses and land adjoining, for the * Doe v. Crago, 6 C. B. 90 ; Wood-
period of three years from Lady Day bridge Union v. "Whien Union, 18 Q.
then next, at the rent of £120 per B. 269; The Marquis of Camden v.
annum. A lease for the same to be Batterbury, 5 C. B. (N. S.) 808, 820;
executed and signed as soon as possi- 7 C. B. (N. S.) 864.
ble, subject to the permission of the * Chapman v. Bluck, 4 Bing. N.
landlord of the mill, house, lands, etc., C. 187 ; Jones u. Reynolds, 1 Q. B.
from this day, up to Lady Day then 506.

SEC. 26.] PABOL LEASES. 63

Sec. 25. Void Lease may Enure as an Agreement to Grant a
Lease. — An instrument containing words of present demise
which is void as a lease, may nevertheless enure as an agree-
ment to grant a lease for the term mentioned. Thus in
Burton v. Reevell,^ by a memorandum of agreement M agreed
to let and B to take rooms in a house from a certain date, at
a monthly rent of 36 s., to be paid every four weeks, and it
was held that this was only an agreement to execute a lease,
and was admissible in evidence. So in Bond v. E,osling,2 the
plaintiff by an agreement not under seal agreed to let and
the defendant to hire certain premises for seven years ; and
it was further agreed that a good and sufBcient lease em-
bodying the terms of the agreement should be prepared at
the joint expense of the parties ; it was held in an action for
not accepting a lease, that though the instrument was void
as a lease under the statute it was good as an agreement.^

Sec. 26. Specific Performance. — An agreement containing
words of present demise, which is void under the statute,
may be decreed to be specifically performed.* Thus where
A agreed in writing to let to B certain premises at a rent of
£36 payable quarterly, and not to raise the rent or give B
notice to quit so long as he continued to pay the rent when
due ; and A (who had only a leasehold interest to expire in
1881) also agreed verbally with B to let him remain in the
premises for such term of years (not exceeding A's term
therein) as B might desire to continue tenant thereof : it was
held that B was not a mere tenant from year to year, but had
a right to retain possession as long as his landlord's interest
existed, and to enforce that right in equity.^ In a Connecti-

1 16 M. & W. .307. 421 ; Bond v. Kosling, 1 B. & S. 371 ;

2 1 B. & S. 371 ; 9 W. R. 746. Strong v. Crosby, 21 Conn. 398 ;
= And see Doe v. MofEatt, 15 Q. B. Taggard v. Roosevelt, 2 E. D. S.

257; Dniry v. Macnamara, 5 E. & B. (N. Y. C. P.) 100.

612; 1 Jut. (N. S.) 1163; Tidey v. * Parker !^. Taswell, 2 De G. & J.

MoUett, 16 C. B. (N. S.) 298 ; 12 "W. E. 559 ; Poyntz v. Fortune, 27 Beav. 393 ;

802 ; Hayne v. Cummings, id. ; Parker Cowen v. Phillips, 33 Bear. 18 ; Fen-

V. LasweU, 2 De. G. & J. 559 ; Cowen ner v. Hepburn, 2 Y. & C. C. C. 159 ;

V. Phillips, 33 Beav. 18 ; and even at Crook o. Corporation of Seaford, L.

law it may operate as a contract with R. 6 Ch. 551.

respect to any stipulation therein : ^ In re King's Leasehold Estates,

Eollason v. Leon, 7 H. & N. 73; L. R. 16 Eq. 521.

Hayne v. Cummings, 16 C. B. (N. S.)

64 STATUTE OF FKAUDS. [CHAP. I.

cut oase,^ the defendant having a freehold estate in certain
lands, entered into a parol agreement with the plaintiff in
September, 1843, that he should erect upon his estate a sub-
stantial brick store, and have it completed by April 1st then
next, and that he would let the store to the plaintiff for the
term of three years from that period for the yearly rent of
five hundred dollars to be paid quarterly. In pursuance of
the agreement, the defendant erected the store, and the
plaintiff immediately took possession thereof, and occupied
it for one year, paying the stipulated rent quarterly. Before
the expiration of the year, the defendant gave the plaintiff
notice to quit possession, and brought summary proceedings
to get him out; thereupon the plaintiff brought a bill in
equity to compel the defendant to give him a lease of the
premises according to the agreement. The court held that
although the agreement was within the statute of frauds, yet
that there was such a past performance as warranted a court
of equity in decreeing a specific performance of it, and that
the circumstance, that the plaintiff caused to be drawn up
and presented to the defendant for execution, a lease with
unusual covenants, did not excuse him from executing a lease
to the plaintiff with usual covenants.^ The rule may be said
to be that a court of equity will decree a specific performance
of an oral contract for a lease, notwithstanding the statute of
frauds, in favor of either the landlord or the tenant, in cases
where there has been such a past performance thereof by both
parties, that to refuse it would work a fraud upon the party
seeleing its specific execution.^ In a Wisconsin case,* the de-
fendants orally agreed to take a lease of the plaintiffs' stores
for five years, whereby the plaintiffs were induced to break
off negotiations for leasing them to another party, and to in-
cur expense in altering and adapting the stores to the de-
fendants' use. The defendants entered into possession under
this agreement, and occupied them and paid the rent for two
years, and neglected to execute a written lease in accordance
with the agreement tendered to them for that purpose by the
plaintiffs on taking possession, and at the end of two years

1 Eaton V. "Whitaker, 18 Conn. 222. erson v. Chrlsman, 28 Mo. 134; Aday

'^ See also Morphett ■;. Jones, 1 v. Echols, 18 Ala. 353.

Swanst. 172. * Seaman v. Aschermann, 51 Wis.

1 Steel V. Payne, 42 Ga. 207 ; Dick- 678; 37 Am. Eep. 849.

SBC. 27.] PAEOL LEASES. 65

refused to execute the lease, or to occupy the stores or pay-
rent. Upon a bill brought by the plaintiffs to compel an exe-
cution of the lease by the defendants, its specific execution
■was decreed.^ But in order to warrant the exercise of this
power, the contract must be certain and complete, and clearly
established by the proof, or admitted by the pleadings ; ^ and
the proof must be full and complete, and such as leaves no
reasonable doubt that an agreement was in fact made,* and
that it has been partly performed.* For a full statement of
the law relating to this subject, see Chapter on " SPEcrFic
Perpormaijce." An agreement to let land at a yearly rent,
determinable by six months' notice to quit (no term being
me'ntioned), provided that in case A and B erected any build-
ings upon the land, they were to have the privilege of re-
moving them at any time diiring their occupation, or other-
wise they were to be allowed a beneficial interest in the same
to the amount of the sum expended in the erection of the
buildings, such beneficial interest to extend over a period of
twenty years ; that is to say, if A and B were required to
give up possession of the piece of ground before the expira-
tion of the term of twenty years, they were to be allowed
one-twentieth part of the amount expended for each remain-
ing year of the unexpired term of twenty years ; it was held
that this agreement conferred on A and B such a beneficial
interest in the land as constituted them owners within the
interpretation clause of the Lands Clauses Act, 8 & 9 Vict.
0. 18, and that therefore the company was not entitled to
enter upon the land tUl it had satisfied A and B's claim as pro-
vided by § 84.6

Sec. 27. Terms of Occupancy Regulated by Parol Lease. —
A lease, or an agreement for a lease, which is void as to the

1 Ferry v. Pf elffer, 18 "Wis. 510. 482 ; Btmton v. Smith, 40 N. H. 352 ;
See also, analogous in principle, Potter "Wallace v. Brown, 10 N. J. Eq. 308 ;
V. Jacobs, 111 Mass. 32; Glass v. Hul- Montal v. Lyons, 8 Ti. Ch. 112; Mor-

bert, 102 Mass. 24 ; 3 Am. Eep. 418
Kankin v. Say, 2 De G. P. E. J. 65
Nunn V. Pabian, L. E. 1 Ch. App. 35

phett V. Jones, 1 Swanst. 172.

3 Broughton v. GriflSn, 18 Gratt.
("Va.) 184; Lindsay «. Lynch, 2 Sch.

McCarger v. Rood, 47 Cal. 141 ; Dowell & Lef . 1.
V. Dew, 1 y. & C. 356; Prance v. Daw- * Nunn v. Pabian, 35 L. J. Ch. 141.
son, 14 Ves. Jr. 386. 6 Rogers v. Hull Dock Co., 12 W.

2 "Wilkinson v. "Wilkinson, 1 Dessau R. 1101, afEd. 13 "W. R. 217 ; 11 L. T.

(S. 0.) 201 ; Smith v. Crandall, 20 Md. (N. S.) 42 ; ib. 463.

66 STATUTE OP FKAUDS. [CHAP.'l.

duration of the lease, may still regulate the terms on which
the tenancy subsists in other respects, as to the rent, the time
o£ the year when the tenant is to quit, etc.,^ and this whether
the agreement is void as not amounting to a lease,^ or whether
the lease is void as not being duly executed under a power; ^
but the terms must not be at variance Avith the species of
tenancy which the law under the circumstances creates.* In
a "Wisconsin case,*^ the defendant attempted orally to lease
premises for two years, at a specified sum for each year,
"payable at such times during the term as the plaintiff
should require." The defendant went into possession un-
der the lease, and remained twenty months, paying the first
year's rent, and also at the same rate until the next six
months, and it was held that, although under the statute of
frauds the lease was void, yet the defendant became a tenant
from year to year on the terms of the parol lease.

Sec. 28. Rule in Tooker v. Smith. — In Tooker v. Smith ^
an agreement for a lease contained a stipulation that the
tenancy should continue until after two years' notice to quit
had been given ; and it was held that it could not be implied
that the stipulation as to the two years' notice to quit was
one of the terms under which the tenant held.

Sec. 29. Covenants in Farming Lease. — Where a party was
let into possession, and paid rent, under an agreement for a
future lease' for years, which was to contain a covenant
against taking successive crops of corn, and a condition of
re-entry for breach of covenants, it was held that he became
a yearly tenant, subject to the above terms of conditions, and

1 Doe V. Bell, 5 T. E. 471 ; 2 Sm. « Koplitz v. Gustavus, 48 "Wis. 48.
L. C. 98; Doe v. Breach, 6 Esp. 106; See also to the same effect Williams
Arden v. Sullivan, 4 Q. B. 832 ; Doe v. Ackerman, 8 Oregon, 405 ; Coan v.
V. Moffatt, 15 Q. B. 257 ; Tress v. Sav- Mole, 39 Mich. 454; Craske v. Chris-
age, 4 E. & B. 36 ; 18 Jur. 680 ; 23 L. tian Union PubUshing Co., 17 Him
J. Q. B. 339. (N. y.) 819; Drake .,. Newton, 23 N.

2 Eiehardson v. Gifford, 1 Ad. & El. J. L. Ill ; Cady v. Quarterman, 12 Ga.
52. 386 ; Strong v. Croshy, 21 Conn. 398 ;

" Beale v. Sanders, 3 Bing. (N. C.) McDowell v. Simpson, 3 Watts (Penn.)

850 ; 5 Scott, 58. 129 ; Witt v. Mayor, &o., 6 Robt. (N.

* Berrey v. Lindley, 3 M. & Gr. 514 ; Y. ) 441 .
4 Sc. (N. E.) 61, per Maule, J.; Hunt « 1 H. & N. 732.
V. AUgood, 10 C. B. (N. S.) 253; Ben-
nett V. Ireland, E. B. & E. 326.

SEC. 32.] PAROL LEASES. 67

that ejectment might be brought upon successive crops of
corn being taken.i In Pistor v. Cater ^ the tenant entered
upon the land under an agreement for a lease as soon as the
lord's license could be obtained, but no license ever was ob-
tained. Lord Abikger said : " This is a contract which is
to bind both parties, even if no lease be granted. ... No
lease having been made, but the defendant having occupied
for the whole of the term agreed upon, and having had the
full benefit which he could have enjoyed under the lease, he
cannot now say that the covenants are not binding."

Sec. 30. Covenant to Faint. — By an agreement, not under
seal, the plaintiff agreed to let to the defendant, and the de-
fendant to take of the plaintiff, a house and premises for
seven years, upon the terms (amongst others) that the de-
fendant would in the last year of the term, paint, grain, and
varnish the interior, and also whitewash and color. The
defendant entered under the agreement, and occupied and
paid rent during the whole period of seven years. In an
action for not painting, etc., the interior, and whitewashing
and coloring in the seventh year, it was held that the de-
fendant must be taken to have occupied on the terms that,
if he should continue to occupy during the whole period of
seven years, he would do those things which were by the
agreement to be done in the seventh year, and that he was
therefore liable.^

Sec. 31. Proviso of Re-entry. — A proviso in a lease for re-
entry on non-payment of rent is a condition which attaches
to the yearly tenancy created by the tenant, holding over
and paying rent after the expiration of the lease.*

Sec. 32. Rent Paid in Advance. — In Lee V. Smith,^ A be-
came tenant to the defendant of certain premises, under the
terms of a written agreement (not under seal), for a term
exceeding three years, the rent payable quarterly in advance.
A occupied the premises for some time, and paid several

1 Doeu.Amey, 12 Ad. &E1. 476; 4 * Thomas v. Packer, 1 H. & N.
P. & D. 177. 669; Watson v. Wand, 8 Exch. 335.

2 9 M. & W. 315. 6 9 Exch. 662.

3 Martin v. Smith, L. E. 9 Ex. 50.

68 ' STATUTE OF FEAUDS. [CHAP. I.

quarters' rent, and the receipts given to him by the defend-
ant's agent stated that such payment was in advance, al-
though in fact A never paid the rent in advance. It was
held, nevertheless, that although the agreement was void
under the 8 & 9 Vict. c. 106, as not being under seal, still
that the receipt taken was ample evidence of the tenancy
being upon the terms of the rent being paid quarterly in
advance. So tenants under a void agreement or void lease
have been held liable to repair.^

Sec*. 33. Parol Lease may be Special in its Terms. — A parol
demise, rendered valid by the second section of the statute
of frauds, may contain the same special stipulations as a
regular lease, and the stipulations may be proved by parol.
In Lord Bolton v. Tomlin,^ at a letting of lands, the terms
of letting were read from a printed paper, and a party pres-
ent agreed to take certain premises from Lady Day then next,
when the lease of the then tenant would expire. No writ-
ing was signed by the parties or their agents, but there was
at the foot of the printed paper a memorandum, also read
over to the future tenant, stating that the parties had agreed
to let and to take, subject to the printed terms, the name of
the farm and the rent, and that the letting was for one year
certain from Lady Day, and so from year to year till notice
to quit. Some of the terms were special, having relation to
husbandry. It was held that on the trial of an action by the
landlord against the tenant for a breach. of them, the above-
mentioned paper might be referred to, to refresh the memory
of a witness as to such stipulations.

Sec. 34. Collateral Agreements. — Where the lessee of a
house and his partner in trade agreed to pay the lessor annu-
ally, during the residue of the term, 10 per cent on the cost
of new buildings, if the lessor would erect them ; it was held,
first, that this agreement was not required by the statute to
be in writing ; secondly, that though the partner quitted the
premises, he was liable on this collateral agreement during
the residue of the term.^ So where the defendant was ten-

1 Richardson v. GifEord, 1 Ad. & El. 25 j^g^_ ^ jjl. 856 ; 1 N. & P. 247.

52; Beale v. Sanders, 3 Bing. (N. C.) » Hoby v. Roebuck, 7 Taunt. 157;

850 ; 5 Scott, 58. see also Crowley v. Vitty, 7 Exch. 319.

SEC. 35.] PABOL LEASES. 69

ant to the plaintiff of a house and bakehouse under a lease
for twenty years, at the yearly rent of ^£50, and being desir-
ous of some improvements in the house, proposed to the
plaintiff to lay out £50 on such alterations, which the plain-
tiff consented to do ; and the defendant thereupon agreed to
pay him an increased rent of £5 a year during, the remain-
der of the term, to commence from the quarter preceding the
completion of the work, and a memorandum in writing was
prepared to that effect, which the defendant refused to sign.
The alterations were completed in November, 1827, at an
expense of £55, and the defendant after Christmas, 1827,
paid the increased rent for the first quarter, but afterwards
refused to pay any more than the original rent. On an ac-
tion of assumpsit^ brought to recover arrears of the increased
rent, it was held, that the landlord having done the work
might recover the arrears, and that the case did not fall
within the statute, the additional sum, though called rent,
being a mere matter of personal contract.^

Sec. 35. Determination of Term under Void Lease. — Where
a tenancy from year to year by entry under an agreement for
a lease, or a void lease, has been created, it can only be de-
termined by six months' notice to quit, or by surrender in
writing.^ Thus where A entered upon premises as tenant
to B under an agreement, not binding under the statute, for
five years and a half from Michaelmas, 1823, and m 1826 a
negotiation was entered into for a term of seven years " from
the expiration of the present term," at an increased rent, the
landlord to make some alterations, which he did, but no
lease was ever executed ; and at Michaelmas, 1829, a whole
year's rent was paid at the increased rate, and payments were
afterwards made on the same footing; it was held that a
notice given on the 11th March, 1835, to quit at Michaelmas
was a valid notice.^ If, however, the agreement provides
that the tenant shall enter on a certain quarter-day and quit
on another, the tenant holds under the terms of the lease in
other respects, and the landlord can only put an end to the

1 DoneUan v. Bead, 3 B. & Aid. 100 ; Tress v. Savage, 4 E. & B. 36 ; 18
899. Jur. 680 ; 23 L. J. Q. B. 339.

2 Chapman .-. Towner, 6 M. & W. * Berrey v. Lindley, 3M. & Gr. 498.

70 STATUTE OP FRAUDS. [CHAP. I.

tenancy on the particular quarter-day fixed by the agree-
ment.^ But where the agreement provided that the lessor
should not turn out the tenant so long as he paid the rent,
it was held that the agreement either purported to be a lease
for life, which would be void as not being creatable by parol ;
oj, if it operated as a tenancy from year to year, was neces-
sarily determinable by either party on giving the regular
notice to quit.^ And the tenancy may be determined by the
six months' notice to quit, even if the parol agreement is that
two years' notice shall be given.^

Sec. 36. Tenancy determined at End of Term without No-
tice. — If a tenant remains in possession until the end of the
proposed term, he is not entitled to notice to quit, and may
himself quit without notice.* And the fact that the void
agreement provided that he might renew the tenancy upon
terms, will not give him such an interest in the land as to
entitle him to enforce renewal.*

In Berrey v. Lindley,® Coltman, J., said : " A party who
enters under an agreement void by the statute of frauds,
becomes by that statute tenant at will to the owner, and the
tenancy described in the statute as a tenancy at will has
since been construed to enure as a tenancy from year to year.
But such a tenant may quit without notice, and be ejected
without notice, at the expiration of the period contemplated
in the agreement."

' Doe V. Bell, 5 T. E. 471 ; 2 Sm. » Tooker v. Smith, 1 H. & N. 732.

L. C. 98 ; De Medina v. Poison, Holt, * Chapman v. Towner, 6 M. & W.

N. P. 47. 100 ; Doe v. Stratton, 4 Bing. 446 ;

2 Doe V. Browne, 8 East, 165 ; but Tress v. Savage, 4 E. & B. 36.

see Browne v. Warner, 14 Yes. 156 ; 6 jjq^ „. MofEatt, 15 Q. B. 257.

in re King's Leasehold Estates, L. E. » 3 m. & Gr. 512; 4 Sc. (N. E.)

16 Eq. 521. 61.

SURRENDER AND ASSIGNMENT.

Section 3. No leases, estates, or interests, either of freehold or terms
of years, or any uncertain interest of, in, to, or out of any messuages,
manors, lands, tenements, or hereditaments, shall, at any time, be as-
signed, granted, or surrendered, unless by deed or note in writing,
signed by the party so assigning, granting, or surrendering the same,
or their agents thereunto lawfully authorized by writing, or by act and
operation of law.

CHAPTER n.

ASSIGNMENT AKD SUEKENDEE.

SECTION,

37. When Deed is not Eequired.

38. Effect of the Statute.

39. Tenancy from Year to Year not Assignable by Parol.

40. Effect of Demise of Whole Term.

41. Surrender, What is.

42. Demise by Tenant from Year to Year.

43. Lessee reserving Interest, not Good as a Surrender^

44. Kinds of Surrender. Operative Words of.

45. Estate Created without Deed may be Surrendered without Deed.

46. Effect of Surrender.

47. Surrender on Condition Particular Estate may Revest.

48. No Surrender to take Effect in Future.

49. Surrender for the Purpose of Eenewal.

50. Eequisites to Good Surrender.

51. To whom Surrender must be made.

52. Who may Surrender.

53. At what Time a Surrender may be made.

54. Cancelling Lease not Surrender.

56. Nor Evidence of Surrender, unless Other Evidence.

56. Definition of " Surrender by Act and Operation of Law."

57. Cases to which these Words Applied. Estoppel.

58. Disclaimer.

59. Agreement to Pay Additional Eent.

60. Agreement to Purchase.

61. Determination of Tenancy from Year to Year.

62. Ineffectual Notice to Quit.

63. Surrender by Consent, and Acceptance of Possession.

64. Presumption of Acceptance of Surrender ; when Rebutted.

65. Landlord Taking Tenant as Servant.

66. Surrender by Operation of Law.

67. Effect of New Lease of a Part of Premises.

68. Acceptance of a New Lease.

69. New Lease need not be in Writing.

70. Agreement for New Lease.

71. New Lease to Begin Presently.

72. What is a Sufficient New Lease.

73. Term Taken in Execution.

74. New Lease Voidable on Condition may be Surrender.

75. New Lease Granted to Tliird Party.

76. Commencement of New Tenancy Question of Fact.

77. Surrender may be Presumed, Wben.

78. Effect of Surrender on Rent Due and Accruing,

79. How a Surrender should be Pleaded.

SBC. 38.] ASSIGNMENT AND STIEEENDEK. 73

Section 37. When Deed ia not Required. — When a deed is
not required by this section, any instrument in writing, duly
signed and expressing an immediate purpose of giving up
the estate on the part of the tenant, if accepted by the land-
lord, will be sufficient.^ In the several States of this coun-
try in which provision is made as to the manner in which an
assignment or surrender shall be made, considerable differ-
ence exists as to the mode in which it may be made. In any
of them, an assignment or surrender by deed, would be suffi-
cient,^ and in many of them any writing signed by the party
assigning or surrendering, or by his agent duly authorized in
the mode provided in the statute, is sufficient, although not
under seal,^ while in others no special provision is made as
to the assignment or surrender of leases ; * but these matters
are left subject to the general provisions of the statute relar
tive to the sale or leasing of lands.

Sec. 38. Effect of the Statute. — The effect of this section
of the statute of frauds is, not to dispense with any evi-
dence required by the common law, but to add to its provis-
ions somewhat of security, by requiring a new and more
permanent species of evidence. Wherever, therefore, at
common law a deed was necessary, the same solemnity is
still requisite under this act ; but with respect to lands and

1 Fanner v. Rogers, 2 Wils. 26; New Jersey, Penneylrania, and Mis-
Smith V. Mapleback, 1 T. E. 441; souri, "by deed or note in writing."
Weddall t. Capes, 1 M. & W. 60; In Ohio no lease can be "assigned
Harrison v. Blackburn, 17 0. B. N. S. or granted" except by deed or note
679. in writing. In Oregon no interest in

^ In Georgia, Maryland, and South real estate can be " created, trans-
Carolina, the statute is identical with f erred, or declared " otherwise than
the EngUsh statute in this respect, by operation of law or by a convey-
In Florida, " by deeds signed, sealed, ance or other instrument in tvriting."
and delivered in the presence of at In Vermont " no estate or interest in
least two witnesses." land shall be assigned, granted, or sur-

^ In Arkansas, by deed or notice in rendered unless by a writing signed,

viriting. In Maine and Massachusetts, etc."

" unless by a writing signed, etc.," or * This is the case in Alabama,
by operation of law. In Michigan, California, Dakota, Connecticut, Del-
Minnesota, Montana, Nebraska, Ne- aware, Illinois, Indiana, Iowa, Missis-
vada, New York, Utah, Pennsylvania, sippi. North Carolina, Oregon, Ehode
and Wisconsin, "unless by act or Island, Tennessee, Texas, Virginia,
operation of law, or by deed or con- West Virginia, and Wyoming. In
veyance in writing, etc." In New Kansas, a lease can only be assigned
Hampshire, "except by writing." In by deed or note in writing.

74 STATUTE OP FRAUDS. [CHAP. II.

tenements in possession, which before the statute might have
been surrendered by words only, some note in writing duly
signed was by the statute rendered essential to a valid sur-
render.i In several of the States, an exception is made in
favor of leases for a period not exceeding the term for which
parol leases may be made, and they may be assigned or sur-.
rendered without deed or writing.^

Sec. 39. Tenancy from Year to Year cannot be Assigned by
Parol. — A tenancy from year to year, created by parol, can-
not be assigned by parol,^ and it appears that an agreement
by a lessee for the transfer of his interest in a term (not
exceeding three years) which, not being in writing, is invalid
as an assignment by the statute, cannot operate as an. under-
lease ; as it is difficult to say, that, because an agreement is
by parol, and therefore cannot operate as an assignment, it
is to be construed to give a less interest than the parties
intended.*

SeO. 40. Effect of Demise of Whole Term may be Lease in
Certain Cases, or Assignment. — If, when the lessee demises
the whole of his term to another, the parties intend to con-
tract the relation of landlord and tenant, the transaction
may, in certain cases, be supported as a lease, so as to allow
the lessor to bring an action for use and occupation, for the
whole of such term, although the lessee has given notice to
quit before the expiration of the term, and has quitted
accordingly,^ and although the lessor is unable to distrain
for rent in arrear because of havLag no reversion.* In
Poultney v. Holmes,^ a lease of all the lessor's interest was
supported as a lease. This case was cited as valid, but dis-
tinguished in Palmer v. Edwards,^ which decided that an

1 Taylor on Evidence, 885; Eoberts decision in Poultney v. Holmes, 1 Str.
on Frauds, 248. 405, was of very doubtful authority,

2 As in Arkansas, California, Da- especially after the decision in Par-
kota, Florida, Kansas, Michigan, Min- menter v. Webber, 8 Taunt. 593.
nesota, Montana, Nebraska, Nevada, ^ Pollock v. Stacy, 9 Q. B. 1033.
New York, Oregon, Vermont, Utah, ^ Parmenter v. "Webber, 8 Taunt.
Wisconsin. 593 ; Smith v. Mapleback, 1 T. E. 441.

8 Botting V. Martin, 1 Camp. 319. ' 1 Str. 405.
* Barrett „. Rolph, 14 M. & W. » 1 Doug. 187 n.
348. In this case it was said that the

SEC. 40.] ASSIGNMENT AND STJUKENDEE. 75

instrtiment expressed to be an assignment may operate as
sucli, although rent is thereby reserved to the assignor. In
Preece v. Corrie,^ the above doctrine was confirmed, and it
was held that the lessee held of the lessor though there was
no reversion. Pollock v. Stacy, however, can hardly be con-
sidered of great authority, after the recent decision of the
Court of Common Pleas in Beardman v. Wilson,^ where it
was held that an under-lease of the whole term amounts to
an assignment. In that case, Bovill, C. J., said: "As
far back as the year 1818 it was held, in Parmenter v, Web-
ber,* that where a lessee under-lets for the whole residue of
the term, it amounts to an assignment, and it was there
treated as established law. In a note to Shepherd's ' Touch-
stone,' * the law is stated in the same way, and it is in accord-
ance with the usual practice of conveyancers. In "WoUaston
V. Hakewill,^ the same question again arose, the under-lease
in that case being for a term exceeding that of the original
lease, and after taking time to consider, Tindal, C. J., deliv-
ering the judgment of the court, said : ' The only question
therefore is, whether, if a lessee for ninety-nine years demises
for a longer term, such demise operates in law as an assign-
ment, and we entertain no doubt, but that for a very long
period the law has been held that it has such operation and
may be so treated in pleading.' I think the matter must be
considered to be settled. No doubt the question was sought
to be in some degree raised in Pollock v. Stacy, but there
the action was brought for use and occupation, and it was
not necessary that there should have been any actual demise
or assignment. The only question was whether the person
in occupation was liable to pay rent. There was no deed in
that case which could act as an assignment, and the court
say : ' The parties intended to contract the relation of land-
lord and tenant. This they were at liberty to do by law,
and we therefore carry their lawful intention into effect.'
The case was decided on its special circumstances." ®

1 5 Bing. 24. ^ ZM..& Gr. 297.

•' L. R. 4 C. P. 57. 6 And see Cottee v. Richardson, 7

« 8 Taunt. 593. Exch. 151.

* P. 266, 8th ed.

76

STATUTE OF PKAUDS.

[chap. n.

Sec. 41. Definition of Surrender. — A surrender is "a yield-
ing up of an estate for life or years, to liim that hath the
immediate reversion or remainder, wherein the particular
estate may merge or drown by mutual agreement between
them."i "But having regard to strangers who were not

1 Co. Litt. 337 b, Perk. § 584; 2
Vent. 206; 4 Bac. Abr. 299; Burton
V. Barclay, 5 M. & P. 785; 7 Bing.
745; Thorn v. Woolcombe, 8 B. & Ad.
586. A surrender differs from a re-
lease in that it is the falling of a lees
estate into a greater, while a release
operates by the greater estate falling
to the less. Williams v. Sawyer, 3
B. & B. 70; Smith v. Mapleback, 1
T. E. 441. In order to constitute a
valid surrender the surrenderor must
not only hare an estate in possession,
but he must also be legally compe-
tent and able to make a surrender
that will quiet all rights in the line
of his title, and it must be made to
the owner, in his own right of the
immediate reversion. 4 Bacon's Abr.
§ 1, 213. In conformity with this
rule it will be seen, and so it has been
held, that an undertenant cannot sur-
render the lease and estate to the
original lessor, because the reversion is
in the original tenant, and the estate
must pass back to him, and from
him to the landlord. Springstein v.
Schemerhom, 12 John. (N. Y.) 357.
Prima facie, a person who is not a
party to the lease who is in posses-
sion, he is presumed to be in as an
assignee, but this presumption may
be overcome by showing that he is
in merely as an undertenant, and this
presumption may be overcome by
showing that the landlord procured •
the surrender from the lessee, in
which case such act operates as an
admission that the lessee was tenant
at the time of the surrender. Durand
V. "Wyman, 2 Sandf. (N. Y. Sup. Ct.)
597. If there is an intervening es-
tatej there is no surrender, but in
such cases it may opiate as a grant
of the term. Agar v. Brown, 2 B. &
B. 331. So, too, there must be a
privity of estate between the surren-

deror and the surrenderee, and the
latter must have a higher and greater
estate in the estate surrendered than
the surrenderor, which exists in his
own right, and not in the right of
another or as joint tenant. Shep.
Touch. 303; 2 Bl. Com. 336. But,
see Shep. Touch. 308, where a contrary
doctrine is advanced. Under this
rule, if a lease is made by a husband
and wife, of the wife's lands, a sur-
render should be made to her. Wood-
ard V. Lindley, 43 Ind. 433. But if
the husband has a lease or estate for
years, he alone, or he and his wife
together, may surrender it; but if he
has an estate for life in right of his
wife, who is tenant in dower or other-
wise, a surrender by the husband
alone is good only during his life,
and if the wife survives him, the es-
tate reverts to her. Shep. Touch. 303.
So, where a surrender is made to an
agent who is not shown to have power
to accept a surrender for his princi-
pal, yet if the landlord subsequently,
without returning the lease to the
lessee, accepts rent from a person to
whom the lessee had sublet the prem-
ises, it has been held to be a valid
surrender. Amory v. KanofEsky, 117
Mass. 351. A surrender to an infant
is good unless the presumption of his
assent thereto is overcome by proof
of dissent. Thompson v. Leach, 2
Vint. 198. And generally it may be
said that a surrender may be made
to any person who is legally entitled
to the immediate reversion, as to the
lessor himself, or a person authorized
by, or holding imder him ; but a sur-
render made to one who has not a
greater estate is not good. . 4 Bacon's
Abr. tit. Leases, § 2. It should be
remembered that a, person who is
from any cause disabled from grant-
ing the entire outstanding estate, is

SEC. 42.] ASSIGNMENT AND STJBBBNDEE. 77

parties or privies thereunto ; lest by a voluntary surrender
they may receive prejudice touching any right or interest
they had before the surrender, the estate surrendered hath
in consideration of law a continuance,"^ and therefore,
although a surrender of a life estate to the owner of the fee
is as between the parties an extinguishment of the estate
surrendered, yet it may have a continuance to uphold a prior
interest derived under it,^ for there is no piivity of contract
between the original lessor and the sub-lessee.' Thus, where
the defendant held two plots of land, B and C, under a lease
which contained a covenant to build the houses not less than
thirty feet apart, the effect of which was to secure to the
houses on plot B a sea-view over plot C, and H, having
entered into a treaty with the defendant for the under-lease
of plot B, made inquiries of the defendant as to what could
be built on the land in front, to which the defendant replied
that he (the defendant) could not build on C closer than
thirty feet, as his lease did not allow it, and H after having
inspected the original lease took an under-lease of plot B,
contaiuing a covenant by the defendant that he, his execu-
tors, administrators, and assigns, would observe the lessee's
covenants in the original lease; and the defendant after-
wards surrendered his lease to the ground landlord, took a
new lease not containing the old restrictions, and commenced
building on plot C in a way which would obstruct the sea-
view from houses on plot B belonging to the plaintiff, who
was the assignee of H ; it was held that the right of H under
the defendant's covenants to observe the covenants in the
original lease, was not affected by the surrender, and that
the plaintiff was on that ground entitled to an injunction
to restrain the defendant from buildiug in contravention
of those covenants.*

Sec. 42. Demise by Tenant from Year to Year. — Surrender
by lease does not affect a sub-lessee. A demise by a tenant

unable to surrender such estate, and i Co. Litt. 238 b ; Davenport's

that a person who is disabled from Case, 8 Co. 145 b.

taking by grant is disabled from tak- " Doe v. Pyke, 5 M. & S. 146.

ing by surrender, rurnivall v. Grove, ^ Pleasant v. Benson, 14 East, 237 ;

8C.B. (N.S.)403; Pleasant w. Benson, Torriano v. Young, 6 C. & P. 8.

4 East, 234; Doe v. Pyke, 5 M. & S. * Piggott o. Stratton, 1 De G. P.

154. & J. 33.

78 STATUTE OF FEATJDS. [CHAP. II.

from year to year to anotlier, also to hold from year to year,
is a demise from year to year during the continuance of the
original demise, although at the time of making the contract
no such qualification is mentioned ; for, although the lessee
might surrender, his estate would as to the under-lessee
have continuance.^ It is well settled that the surrender of a
lease wiU not affect or prejudice an under-lease previously
granted,^ unless the sub-tenant expressly assents thereto and
in effect attorns to him.^ Thus, in an English case,* at
Michaelmas, 1851, A, the owner of two adjoining houses,
Nos. 4 and 5, let No. 5 to A, as tenant from year to year.
Defendant having become tenant to W of No. 4, A let him
the cellars under No. 5, from year to year from Michaelmas,
1861. There was in the front cellar a gas-meter communi-
cating with the house No. 5, and it was a term of the letting
that A should be allowed to go to the meter, if necessary,
whenever defendant's premises were open. In July, 1871, it
was agreed between A, W, and D, that A should give up pos-
session of No. 6 to- W, and D became tenant from year to
year to W from Michaelmas, 1871. Defendant was aware
that No. 5 was given up by A and re-let to D, but no notice
to quit the cellars was given to defendant. In March, 1872,
D put up in the cellars a water-meter communicating with
his house, without either objection or express permission of
the defendant. Afterwards D surrendered his interest in
favor of the plaintiff, and W let No. 6, expressly including
the cellars, to the plaintiff for fourteen years, from the 24th
of June, 18.72. The plaintiff entered into occupation, the
cellars remaining occupied by the defendant, and plaintiff,
without objection or permission of the defendant, put up more
pipes and some bell-wires in the cellars. In July, 1872, the
plaintiff demanded possession of the cellars, but the defend-
ant refused to give them up without a proper notice to quit,
and he retained possession till April, 1873. On the 10th of

1 Pike V. Eyre, 9 B. & C. 909; 4 Torriano v. Yoiing, 6 C. & P. 8; Hay-
Mann. & E. 661 ; Lambert v. McDon- ton v. Benson, 14 East, 237.

nell, 15 It. C. L. E. 136 ; The London ^ Lambert v. McDonnell, 15 Ir.

Discount Co. v. Drake, 6 C. B. (N. S.) C. L. 136.

798. * Mellor v. Watkins, L. E. 9 Q. B.

2 Piggott V. Stanton, 1 De G. P. & 400.
J. 33; Beaden v. Pyke, 5 M. & S. 146;

SEC. 42.] ASSIGNMENT AND STJEBENDER. 79

January, 1873, the defendant cut off the plaintiff's water
supply by hammering up the service pipe passing through
the cellars, and cut the gas-pipes and bell-wires. The plain-
tiff having brought an action for being kept out of possession
of the cellars, and for the damages caused by the defendant's
cutting the pipes, etc., it was held that the defendant was
entitled to keep possession until a proper notice to quit had
been given ; for that the voluntary surrender by A could not
affect the interest of the defendant, his sub-lessee, and that
plaintiff was entitled to damages for the. cutting of his pipes
and wires; because a licensee, under a revocable license,
was entitled to notice of revocation and a reasonable time
afterward to remove his goods.^ Not only is a sub-tenant
protected against a surrender by the lessee, but a mortgagee
of his term is also protected therefrom, and even a mortgagee
of the tenant's fixtures, it not being competent to the tenant
to defeat his grant by a voluntary surrender subsequent to
the grant.^ Thus, a party seized of a leasehold estate for
life, subject to a covenant against waste, cannot defeat the
rights of a mortgagee under a mortgage executed by hiinself,
by a mere confession of waste to the landlord, and a surren-
der of possession to him for a consequent forfeiture of the
lease. As against such mortgagee, and indeed, even as
between the landlord and tenant, a re-entry for the forfeit-
ure, hy suit at law, is necessary to terminate the lease.*

1 McKenzie v. Lexington, 4 Dana neglect or refuse to pay his rent after
(Ky.) 129. a regular demand, or is guilty of ani/

2 The London &c. Loan and Dis- other breach of the condition of a re-
count Co. 17. Drake, 6 C. B. N. S. 798. entry, the lease is only voidable, and,

^ Allen V. Brown, 60 Barb. (N. Y.) therefore, not determined until the

39. In this case Millek, P. J., said : lessor re-enters ; that is, brings an

" There is no reported case in the ejectment for the forfeiture ; and this,

books which holds that where there though the clause of the condition

is a condition in a lease that a party should be that, for non-payment of

shall not commit waste, that the lease rent, or the like, the lease shall cease

becomes forfeited without a trial and and be void ; for it is a rule that

a judgment at law in favor of the where an estate commences by liv-

party claiming the forfeiture. There ery, it cannot be determined before

is a difference between leases for lives entry.'

and for years. In Woodf all's Land. " Applying the rule laid down, there

and T., 271, it is said: 'In cases of can be no question that the plaintiff's

conditions of re-entry, there is a dif- action cannot be maintained. The

ference between leases for lives and authority quoted is cited in Jackson

leases for years'... 'As to leases w. Elsworth, 20 John. (N. Y.) 180, and

for lives, it is held that if the tenant there is no case referred to which

80

STATUTE OF PEATJDS.

[chap. n.

Where a lessor, in consideration of the payment of an annual
sum during a term of years, grants certain priTileges to an
under-tenant, which the mesne landlord was incapable of
granting, a surrender to the latter will not affect the tenant's
liability on his contract with the permanent lessor.^

Sec. 43. Lessee reserving Interest not Good Surrender. — If

a lessee reserves to himself any part of the estate, it is not a
good surrender, as if he grants all his term to the lessor
except the last year, month, or day.^

A surrender does not operate as such unless it is accepted
by the reversioner.^

Sec. 44. Surrenders are of Two Sorts. Proper Operative
■Words. — A surrender, properly taken, is of two kinds.

disturbs the doctrine there laid down.
It must, therefore, be considered as
decisive, and the question as res adjvn
dicata. I am also inclined to think
that a forfeiture and re-entry on ac-
count of waste is a condition and not a
limitation of an estate, and, therefore,
waste of itself, without the institution
of legal proceedings, does not termi-
nate the estate. The condition does
not defeat the estate, although it be
broken, until entry by the grantor, or
his heirs or representatives. The
landlord may terminate the estate, if
he chooses, by a proper proceeding,
and take advantage of a breach of the
condition. If he fails to do this, the
estate continues the same as if there
had been no breach of the condition,
and the condition is waived. (2 Black.
Com. 155; 4 Kent, 126, 127.)

" There is another difficulty, I think,
in the way of the plaintiff and this
action. James J. Allen, the owner of
the leasehold estate, having conveyed
his interest in the same by way of
mortgage, I am strongly inclioed to
think that he could not make or exe-
cute a valid surrender of the premises
as against the mortgagee, and thus
defeat him from holding under the
mortgage. The mortgage purports
to convey the premises to the mort-
gagee, subject to be defeated upon

the performance of the condition con- '
iained in the mortgage. The mort-
gagor parts with an interest in the
mortgaged premises, by the execution
of the mortgage, and if he can sur-
render the premises in despite of the
obligations he has incurred, it would
open the door to collusion and the
grossest fraud and injustice. A s'ur-
render is only a conveyance of the
estate which the lessee has, and if it
be subject to a mortgage, then the
landlord can receive no greater estate
than could be conveyed to any other
person, and such as the tenant had,
subject to the incumbrance thereon.
There is eminent justice and equity
in such a rule, and I can discover no
good reason why it should not be ap-
plied. The lease is executed with
knowledge that the property may be
incumbered by mortgage, and no
rights are lost if the incumbrance ia
recognized, without injury to the
landlord, to prevent a forfeiture which
must destroy the claim of the mort-
gage, and which the law abhors. See
Keech v. Hall, 1 Douglass, 21; 1
Smith Leading Cases, 293."

1 Doscher v. Shaw, 52 N.Y. 602.

2 Com. Dig. tit. Surrender (H.) ;
Bac. Abr. tit. Leases, § 3.

8 Colles V. Evanson, 19 C. B. (N. S.)
382, per Byles, J.

SEC. 44.] ASSIGNMENT AND SUREENDEE. 81

namely, a surrender in deed, or by express words, and a sur-
render in law, wrought by consequent operation of law.i
The proper operative words of a surrender are, " surrender
and yield up." ^ But in an express surrender, it is not neces-
sary to use the formal word "surrender" in the conveyance ;
nor, indeed, is any particular form essential, but any words,
whereby the intent and agreement of the parties to that end
appear, are sufficient to work a surrender, and the law will
direct the operation and construction of the words accord-
ingly.^ If a lessee for life or years grants all his estate to
bis lessor, that is a surrender.* Thus, in Farmer v. Rogers,^
A B by deed indented, mortgaged lands to C D for five hun-
dred years, with a proviso for cesser on payment of £ 500
and interest upon a certain day. This mortgage was set up
as a defence to an action of ejectment, when the deed ap-
peared to contain the following indorsement : " Received this

day of March, 1738 (being after the day limited by the

proviso), of A B so much money for all principal money and
interest till this day ; and I do release the said A B, and dis-
charge the within-mortgaged premises from the term of five
hundred years." Signed by C D, the mortgagee. The indorse-
ment was held to be a sufficient surrender of the terrii, the
court observing that the words "release and discharge the
term of five hundred years" were much stronger than words
which, in many cases, had amounted to a surrender, ut res
magis valeat quam pereat. So where a lease came into the
hands of the original lessor by an agreement between him
and the assignee of the original lessee, " that the lessor should
leave the premises, as mentioned in the lease, and should pay
a particular sum over and above the rent, annually, towards
the good will already paid by such assignee," the agreement
was held to operate as a surrender of the whole term, and
the sum mentioned in the agreement was considered as a
sum to be paid annually in gross.® The statute does not,
except in Florida, make a deed essential to a surrender, the
words being either " by deed or note in writing," or "by deed

1 Co. Litt. 338 a. (N. C.) 564 ; 7 Scott, 690 ; and see 2

2 Woodf. L. & T. 9th ed. 267. Boll. Abr. 497 (H.) pi. 1.

» 1 Wms. Saund. 289, citing Wil- * 2 Roll. Abr. 497, pi. 15.
liams V. Sawyer, 3 Brod. & B. 70 ; 6 ^2 Wils. 26, 27.
Moore, 226 ; Doe v. Stagg, 5 Bing. « Smith v. Mapleback, 1 T. R. 441.

82

STATUTE OF FRAUDS.

[GHAP. II.

or conveyance in writing," signed, ete.,^ and any instrument
in writing duly signed, and expressing an immediate purpose
of giving up the estate on the part of the tenant, if accepted
by the Jandlord, will be sufficient.^ Thus a written instru-
ment in this form, " we hereby renounce and disclaim, and
also surrender and yield up all right, etc.," a tenancy from year
to year being in existence has been held to be a surrender
and not a disclaimer.^ So a written request by a tenant to
the landlord to re-let the premises to some other person, or
even a parol agreement to surrender, if acted upon, amounts
to a surrender by operation of law.* But a parol agreement
between the landlord and a tenant for a term, that the land-
lord shall make a new lease to a third person for the unex-
pired term, and the tenant will surrender, does not operate
as a surrender by operation of law, unless the new lease is
executed, and passes on interest according to the intention of
the parties, even though the tenant quit, and such third per-
son enters and occupies for a time.*

1 Peters v. Barnes, 16 Ind. 219.

2 Shep. Touch. 306; Farmer v.
Rogers/ 2 Wils. 26; Harrison v.
Blackburn, 17 C. B. (N. S.) 679;
Smith V. Mapleback, 1 T. R. 441;
"Weddall v. Capes, 1 M. & W. 50.
Any words indicative of an intention
and desire to surrender will operate
as a surrender. Weddall v. Capes,
ante; Chamberlaine's Case, 4 Mod.
151, as dedi or concessi Co. Litt. 301 ft,
" the lessee doth discharge the prem-
ises from the term." Earl v. Rogers,
2 Wils. 26; Mason v. Treadway, 1

' Lev. 145, " the lessee is content that
the lessor shall have the land." Pen-
ruddock V. Newman, 1 Leon, 279, have
been held sufficient. An interesse ter-
mini is no impediment to a surrender.
Anon. 2 Dyer, 112 a, pi. 49 ; but a re-
mainder is. Jenkin Cent. 256, case 49.

5 Wyatt V. Stagg, 5 Bing. (N. C.)
564.

* NickeUs v. Atherstone, 10 Q. B.
944. In Allen v. Devlin, G Bos. (N. Y.)
1, it was hold that a parol agreement
on a good consideration made in Jan-
uary, 1858, for the surrender of the last
year of the term ending in May, 1859,

and duly performed by the tenant, was
valid, and a good defence to an action
for rent. In Lamar v. McNamee, 10
G. & J. (Md.) 116, it was agreed by
parol, between landlord and tenant,
that the latter should give up his un-
expired term in a lease and certain
claims which he had for repairs done
to the dismised premises, in consid-
eration of which the landlord prom-
ised to pay the tenant a certain sum
of money, and the tenant actually sur-
rendered on the same day, and the
landlord took possession. It was held
that the agreement, being immediately
executed, was not void, and that the
action by the tenant for the money
was maintainable. "Wlien the tenant
abandons the premises, and the land-
lord, at the request of the surety, re-
lets them on his account, such reletting
does not amount to a surrender. Mc-
Kenzie v. Farrell, 4 Bos. (K. Y.) 192.

^ Soheifflin v. Carpenter, 15 Wend.
(IS. Y.) 400. In Wood u. Walbridge,
19 Barb. (N. Y.) 156, it appeared that
in November, 1843, the plaintiff leased
a house of B and C for the term of
eight years, to commence April 1,

SKC. 45.] ASSIGNJIENT AND SURRENDER.

83

Sec. 45. Estate Created 'v^ithout Deed may be Surrendered
without Deed. — Where the estate may commence without
deed, it may be surrendered without deed,i as for example,
and estate for life of lands, which may be surrendered with-
ovit deed, and without livery of seizin ; because it is but a
yielding or a restoring of the estate again to him in the
immediate reversion or remainder.^ But an estate for life
or years of things which lie in grant whereof a particular
estate cannot commence without deed, cannot be surrendered
without deed.^

1844. In Eebruary, 1844, the house
was destroyed hy fire, and the plain-
tiff, who had been in possession, left
the premises, and requested the les-
sors to cancel the lease, insisting tliat
tliere had been a previous verbal
agreement to cancel tlie lease in case
of destruction by fire. The lessors
refused, and the premises were unoc-
cupied the first quarter : then the les-
sors entered. B conveyed his inter-
est to C, who built thereon, and
leased the same to defendants for
three years. The plaintiff made no
claim till November, 1846, when he
brought ejectment against the de-
fendant. Held, that the acts of the
lessors must be taken to have been
with the plaintiff's assent, and were
inconsistent with the continuance of
plaintiff's lease, which must be con-
sidered as surrendered by operation
of law. A parol agreement to sur-
render, predicated on a good con-
sideration, is binding on the tenant.
Bogert V. Dean, 1 Daly (N. Y. C. P.)
250.

I Co. Litt. 338 a ; Farmer v. Rogers,
2 Wils. 26; Lamar «. McNamee, 10
G. & J. (Md.) 126; Rowan w. Little, 11
"Wend. (N. Y.) 616 ; Peters v. Barnes,
16 Ind. 210; Bailey v. Wells, 8 Wis.
141. In Pennsylvania, it is held that
a surrender need not in all cases be
in writing : Keister v. Miller, 25 Penn.
St. 481 ; Greider's Appeal, 5 id. 422 ;
as where the lease is for less than four
years. McKinney v. Reader, 7 Watts
(Penn.) 123. Evidence of a parol
agreement entered into contempora-

neously with the making of the lease
cannot be shown. Brady v. Peiper, 1
Hilt. (N. Y. C. P.) 61. In Delaware,
an agreement to accept the surrender
of even a parol lease is required to be
in writing. Logan v. Barr, 4 Harr.
(Del.) 546. In Kentucky, a parol sur-
render is good. MclCenzie v. Lexing-
ton, 4 Dana (Ky.) 129. In Maine, a
surrender must be by deed or writing.
Hesseltine v. Seaver, 16 Me. 212. So
in Vermont, Gen. Stat., p. 450, § 21 ;
1 Wms. Saund. 236, note n., an unex-
pired term of one year may be surren-
dered by parol. Smith i . Devlin, 23
N. Y. 363. At the common law be-
fore the 29 Car. 2, ch. 3, corporeal
hereditaments might be surrendered
without either deed, writing, or livery.
Lynch v. Lynch, 6 Ir. L. R. 131 ; Lyon
V. Reed, 13 M. & W. 285; Co. Litt.
336 a; Perkins v. Perkins, Cro. Eliz.
269; Close v. McCuUough, Gilb. Eq.
Rep. 235. And the circumstance that
a lessee delivered up his lease to the
lessor was a strong evidence of a sur-
render in fact. Lyon v. Reed, 13 M.
& W. 285. But a deed was indispen-
sable to a surrender of incorporeal
hereditament. 2 Piatt on Leases, 499 ;
Co. Litt. 338 a ; Bennett's Case, 2
Rolle, 20 ; Lyon v. Reed, ante ; Wood-
fall's L. & T. 267.

2 Co. Litt. 838 a; Wilston v. Pilk-
ney, 1 Vent. 242 ; Cartwright v. Pink-
ney, id. 272.

8 Shep. Touch. 397 ; Co. Litt. 338 a ;
Perkins v. Perkins, Cro. Eliz. 269;
Lyon V. Reed, 13 M. & W. 310 ; 13 L.
J. Ex. 377.

84 STATUTE OB" FEAITDS. [CHAP. H.

Sec. 46. Effect of Surrender. — A surrender immediately
diverts the estate out of the surrenderor, and vests it in the
surrenderee ; for this is a conveyance at common law, to the
perfection of which no other act is requisite but the bare
grant ; and though it be true that every grant is a contract,
and there must be an actus contra actum, or a mutual con-
sent ; yet that consent is impKed ; a gift imports a benefit,
and an assumpsit to take a benefit may well be presumed,
and there is the same reason why a surrender should vest the
estate before notice or agreement, as why a grant of goods
should vest a property, or sealing of a bond to another in
his absence should be the obligee's bond immediately, with-
out notice.^

Sec. 47. Surrender on Condition Particular Estate may Re-
vest. — A surrender, like any other conveyance, may be made
upon condition ; ^ and if the condition is broken, the particu-
lar estate may be revested,^ whether the surrender be express
or implied,* and the landlord's right to distrain will con-
tinue. Thus, where a tenant from year to year entered into
a conditional agreement with his landlord to surrender,
which was never acted upon, it was held that there was no
surrender.^

Sec. 48. No Surrender to take Effect In Puturo. — There
cannot be a surrender of an estate in possession, to take
effect in futuro? A lessee for years to begin presently can-
not, until entry or waiver of the possession by the lessor,
merge or drown the same by any express surrender, because
until entry there is no reversion wherein the possession may
drown ; but if the lessee enters and assigns his estate to an-
other, such assignee before entry may surrender his estate to
the lessor, because by the entry of the lessee the possession

1 Thompson v. Leach, 2 Salk. 617. ^ Coupland v. Maynard, 12 East.

2 Perk. § 624. 134; Johnston v. Huddlestone, 4 B. &
8 Co. Litt. 218 h. C. 922 ; 7 D. & R. 411 ; Weddall w.
4 Doe V. Poole, 11 Q. B. 716; 17 Capes, 1 M. & W. 50 ; Doe u. Milward,

L. J. Q. B. 143 ; and see lioyd v. Lang- 3 M. & W. 332 ; 7 L. J. (N. S.) Ex. 57 ;

ford, 2 Mod. 176. Eoquet v. Moore, 7 Ex. 870 ; 22 L. J.

^ Coupland v. Maynard, 12 East. Ex. 35; and see Bessell v. Landsberg,

134 ; and see Cocking v. "Ward, 1 C. 7 Q. B. 638 ; 14 L. J. Q. B. 355.
B. 868.

SEC. 48.] ASSIGNMENT AND SXTEEENDEE. 85

is severed and divided from the reversion, which possession
being by the assignment transferred to the assignee, may
without any other entry be surrendered and drown in the
reversion.^

If a lease for years is made, to begin at a future day, this
future interest cannot be surrendered; but if the lessee
before that day take a new lease for years, either to begin
presently or at the days named, this is a surrender in law of
the first lease.^ A lessee for years of a term to begin at a
day to come, cannot surrender it by an actual surrender
before the day the term begins, as he may by a surrender in
law.* A notice to quit may operate as a surrender, but not
if it was given under a mistake as to the time when the term
expires, and consequently is not good as a notice to quit.
Thus, in a ease previously cited,* a tenant from year to year,
believing that his tenancy determined at Midsummer, gave
a written notice to quit at that period, which the landlord
accepted, and made no objection to. The tenant having
afterwards discovered that his tenancy expired at Christmas,
gave his landlord another notice accordingly, and, on posses-
sion being demanded at Midsummer, refused to quit the
premises. An ejectment having been brought, it was held
that the tenancy was not determined by notice, inasmuch as
it was not good as a notice to quit, and could not operate, as
a surrender by note in writing under the statute being to
take effect in future. Parke, B., said : " I am very strongly
of opinion that there cannot be a surrender to take place
in future. In Johnstone v. Huddlestone, ante, it was held that
an iusufficient notice to quit, accepted by the landlord, did
not amount to a surrender by operation of law, and it was
there agreed that there could not be a surrender to operate
in futuro. The case of Aldenburg v. Peaple,^ was much
shaken by the decision of this court in Weddall v. Capes,
ante ; for, although this precise point is not there determined,
yet it is clear that the court were of opinion that the in-
strument could not operate as a surrender in futuro."

' Bac. Abr. tit. Leases, § 2; and ' Shep. Touch. 304; Ive v. Sams,

see Doe v. Walker, 7 D. & B. 487 ; 5 Cro. Eliz. 521 ; Hutchins v. Martin,

B. & C. 111. il). 605.

2 Bac. Abr. tit. Leases, § 2 ; Shep. * Murrell v. Milward, 3 M. & W. 327.

Touch. 302. 6 6 C. & P. 212.

86 STATUTE OP FiBAUDS. [CHAP. n.

Sec. 49. Surrender for the Purpose of Renewal. — The sur-
render of a lease will not affect an existing sub-lease.
Formerly, if a lessee created out of his estate an under-lease
for a less term, and surrendered his immediate reversion to
his own reversioner, as his estate became merged, there was
no reversion on the sub-lease, and the rent as incident to
such reversion ceased.^ As regards surrenders for the pur-
pose of renewal, it is provided by 4 Geo. II. c. 28, § 6, that
in case any lease shall be duly surrendered in order to be
renewed, and a new lease made and executed by the chief
landlord, or landlords, the same new lease shall, without a
surrender of all or any of the under-leases, be as good and
valid to all intents and purposes, as if all the under-leases
derived thereout had been likewise surrendered at or before
the taking of such new lease ; and all and every person and
persons, in whom any estate for life, or lives, shall from time
to time be vested by virtue of such new lease, and his, her,
and their executors and administrators, shall be entitled to
the rents, covenants, and duties, and have like remedy for
the recovery thereof; and the under-lessees shall hold the
messuages, etc., in the respective under-leases comprised, as
if the original leases, out of which the under-leases are de-
rived, had been kept on foot and continued ; and the chief
landlord and landlords shall have and be entitled to such
and the same remedy, by distress or entry in and upon
the messuages, etc., for the rents and duties reserved by such
new lease, so far as the same exceed not the rents and duties
reserved in the lease out of which the under-lease was de-
rived, as they would have had in case such former lease had
been still continued, or as they would have had in case the
under-leases had been renewed under such new principal
lease. The object of the legislature in framing this clause
appears to have been to place all parties as to every matter
in the same situation as if no surrender had taken place.^
In England, by 8 & 9 Vict. c. 106, § 9, it is provided that,
when the " reversion expectant on a lease made either before
or after the passing of the Act, shall, after the 1st of Octo-

1 Thre'r v. Barton, Moore, 94 ; 2 Doe v. Marchetti, 1 B. & Ad. 721,

Shep. Touch. 301 j Webb. v. Eussell, per Lord Tenterden, C. J. ; Cousins v.

3 T. E. 398; Burton v. Barclay, 7 Phillips, 3 H. & C. 892; re Ford's

Bing. 756 ; 5 M. & P. 785. Estate, L. K. 8 Eq. 309.

SEC. 52.] ASSIGNMENT AND SUnREKDEE. 87

ber, 1845, be surrendered or merge, the estate which shall
for the time being confer as against the tenant under the
same lease the next vested right to the same tenements or
hereditaments, etc., shall, to the extent and for the purpose
of preserving such incidents to and obligations on the same
reversion as, but for the surrender or merger thereof, would
have subsisted, be deemed the reversion expectant on the
same lease." ^

Sec. 50. Requisites to Good Surrender. — To make a good
surrender it is essential : 1st. That the surrenderor be a per-
son able to grant and make, and the surrenderee, a person
capable and able to iake and receive or surrender, and that
they both have such estates as are capable of a surrender ;
and for this purpose that the surrenderor have an estate in
possession [or rather an actual vested estate] of the thing
surrendered at the time of surrender made, and not a bare
right thereunto only. 2d. That the surrender be to him
that hath the next immediate estate in remainder or rever-
sion, and that there be no intervenient estate coming be-
tween. 3d. That there be a privity of estate between the
surrenderor and the surrenderee. 4th. That the surrenderee
have a higher and greater estate in the thing surrendered
than the surrenderor has [or an estate equally large], so that
the estate of the surrenderor may be drowned therein. 5th.
That he have the estate in his own right, and not in the right
of another. 6th. And that he be sole seized of the estate in
remainder or reversion, and not in joint tenancy.^

Sec. 51. To whom Surrender made. — Under the rules
stated, a lessee for years may surrender to him who has the
reversion only for years ; though the lease be for several years
and the reversioner has it only for one year or a less term.^

Sec. 52. who may Surrender. — Those persons who are
disabled to grant are unable to surrender ; and such persons

1 Farmer v. Rogers, 2 "Wils. 26 ; » Hughes a. Eobotham, Cro. Eliz.
Williams v. Sawyer, 3 Brod. & B. 70; 302 ; Dighton v. Greenvil, 2 Vent. 326,
Doe V. Stagg, 5 Bing. (N. C.) 564; 7 327 ; Challoner v. Davis, 1 Ld. Raym.
Scott, 690. 402 ; Bac. Abr. tit. Leases, § 2 ;

2 Shep. Touch. 303. See note, ante, Edwards .,. Wickwar, L. K. 1 Eq. 68,
p. 76. 403.

88 STATUTE 0¥ FRAUDS. [CHAP. U.

as are disabled to take by a grant are unable to take by a
surrender.! A sub-lessee cannot surrender to tbe original
lessor, by reason of the intermediate interest, but the lessee
may surrender to the lessor and then the sub-lessee likewise,
because then his lease is become immediate to the reversion
of the lessor.'^ If a husband has a lease or estate for years
in the right of his wife, he alone, or he and his wife together,
may surrender the lease. But if the husband has an estate
for life in the right of his wife, being tenant in dower or
otherwise, and he alone, or he and she together, surrender it,
the surrender is good only during the life of the husband,
except it is made by fine, nor even if there be a fine, unless
the wife join.^ One executor may surrender an estate or
lease for years wliich the executors have in the right of their
testator.* One joint-tenant cannot surrender to another joint-
tenant, but a release is the proper assurance between them.*
Where the lessee of premises under a covenant of re-entry,
if the rent should be in arrear twenty-eight days, died in bad
circumstances, and his brother administered de son tort, and
agreed with the landlord to give him possession and suffer
the lease to be cancelled on his abandoning the rent, which
was twenty-eight days in arrear, and took out letters of
administration, it was held that the agreement of the brother
made as administrator de son tort, did not conclude him as
rightful administrator, nor give a right of possession to the
landlord who had entered under the agreement, but who had
not made any formal claim in respect of the forfeiture, nor
taken a regular surrender of the lease .^ Where a lessee gave
up possession on the last day of the term to a trustee to whom
he had been in the habit of paying his rent, and not to the
person having the legal estate, it was held there was no sur-
render.'' So a surrender to sequestrators is not sufficient.®
The surrender of an infant lessee by deed is void ; but his
surrender in law by the acceptance of a new lease is good, if
such new lease increases his term or decreases his rent.^

1 "Woodf. L. & T. 9th ed. 277; « Doe v. Glenn, 1 Ad. & El. 49.
Shep. Touch. 303. i Ackland v. Lutley, 9 Ad. & El. 879.

2 Bac. Abr. tit. Leases, § 2. 8 Cornish v. Searell, 8 B. & C. 471.
8 Shep. Touch. 303. 9 Lloyd v. Gregory, Cro. Car. 501 ;
* Shep. Touch. 303. see Zouch v. Parsons, 3 Burr. 1794.

6 lb. 303-4.

SEC. 54.] ASSIGNMENT AND StJEEENDER. 89

Sec. 53. At 'what Time a Surrender may be made. — A les-
see for a term of years to begin presently cannot, before
entry, merge or drown the term by a surrender, because until
entry there is no term, and no reversion in the possession to
drown ; but if the lessee enters and assigns his estate to an-
other, such assignee may, before entry, surrender his term to
the lessor, because by the entry of the lessee the possession
was severed and divided from the reversion, which posses-
sion, being by assignment transferred to the assignee, may
without other entry be surrendered and drowned in the rever-
sion ;^ but it is not necessary that the surrenderor of a lease
to begin at a future day should be in possession, in order to
make a surrender before the period of commencement.^ As
to surrender of leases in futuro or future interest, there is
this distinction to be observed, that a lessee for years of a
term, to begin at a day to come, cannot surrender it by an
actual surrender before the day of the term begins, but he
may by a surrender in law.^ Whenever a deed purporting
to be a surrender cannot operate as such, it will probably
take eJBfect as an assignment or as a release of the right to
the term, ut res magis valeat quam pereat.'^

Sec. 54. Cancelling Lease not Surrender. — Since the stat-
ute of frauds, a lease for years cannot be surrendered by
cancelling, without writing, because the intention of the
statute was to take away the former manner of transferring
interests in lands by signs, symbols, and words only ; and
therefore, although the cancelling of a lease was a sign of
surrender before the statute, it is now taken away unless
there is a writing under the hand of the party ; ^ and the fact

1 Bacon's Abr. tit. Leases, § 2. lease, it was held that if the old lease

^ Shep. Touch. 302. was not duly surrendered by writing

' Shep. Touch. 304 ; Itcs u. Sams, within the statute of frauds, yet that

Cro. Eliz. 521 ; Hutchins v. Martin, id. A could recover no more land than

605. what he could prove with absolute

* "Wood's Landlord and Tenant,803. certainty was covered by the lease,

5 Magennis u. MacCullough, Gilb. especially after the premises had been

Eq. Eep. 236, per Gilbert, C. B. ; Roe in the possession of another for near

0. Abp. of York, 6 East, 86. A de- 16 years. Jackson v. Gardner, 8

struction of the lease does not operate Johns. (N. Y.) 394 ; Leech v. Leech, 2

as a- surrender. Thus, where A vol- Chitt. 100; Courtail v. Tliomas, 9 B.

untarily delivered up and destroyed a & C. 288 ; Close v. McCuUough, Gilb.

lease of land, and took a new lease, Eq. Gas. 235. A recital in a lease by

and afterwards claimed under the old one party, that a former lease granted

90

STATUTE OF FKAUDS.

[chap. n.

that the lessor has the lease in his possession in a cancelled
state does not proye a surrender, but he must show a sur-
render by deed or note in -writing. And it appears that the
rule is the same, whether the deed relates to things lying in
livery, or to those which lie in grant.^ The deed is evidence
of title, and if it is loss, secondary evidence may be produced
to show the grant.^ Moreover, alterations in a deed do not
prevent it from being received in evidence.* Where prem-
ises were demised to B, which he again demised to C, and
subsequently sold his interest to D, upon which D obtained
a new lease from A, the first lease having been cancelled, it
was held that B's interest had not been surrendered.*

Sec. 55. Nor Evidence of Surrender, unless Other Evidence.

— Nor is the fact that the lease is cancelled by the parties
prima facie evidence that there was a surrender by deed or
note in writing.^ But where the lease was produced from
the lessee's custody with the seals torn off, and it was proved

to another had been surrendered,
does not of itself afford any evidence
against strangers, of the fact of sur-
render. Lyon V. Reed, 13 M. & W.
285. Nor would the execution of a
counterpart of a new lease taken by
the lessee prior to the determination
of his former interest, and reciting
that it was granted iu consideration
of the surrender of the former lease
(unless it were by operation of law),
inasmuch as it did not purport of
itself to be a surrender, having no
words in it which could denote, or
amount to, a yielding or rendering up
of the interest of the lessee. Earl of
Berkeley v. The Archbishop of York,
6 East, 86. So, a surrender would
not be presumed from the circum-
stance of the rent having regularly
been paid by a third person. Cope-
land V. Watts, 1 Stark. 95. Nor
would the mere fact of a lease being
in the custody of the lessor, and in a
cancelled state, furnish a presumption
of there having been the requisite
deed or note in writing. It might
raise a presumption of intention to
determine the term, but no more.
And if the lessor relied on such a

cancellation as evidence, it was in-
cumbent on him to prove a surrender;
not on the lessee to show how the
lease came to be in that condition.
If, however, the lease had been in the
lessor's possession for a long series of
years — twenty, for instance — with-
out any dispute ; or if there had been
any destruction of his papers, or
change of residence, or any founda-
tion for supposing that there might
have been a deed or note in writing,
and that that deed or note had been
destroyed) that might have been a
ground for raising a presumption that
there was a deed or note in writing
accompanying the lease when it got
into his possession. Courtail v.
Thomas, 9 B & C. 288.

1 Bolton V. Bp. of Carlisle, 2 H. Bl.
263, 364; "Walker v. Richardson, 2 M.
& W. 892 ; 6 L. J. (N. S.) Ex. 229.

2 Bolton V. Bp. of Carlisle, 2 H.
Bl. 263.

8 Stewart v. Aston, 8 Ir. C. L. E.
35.

* "Wootley v. Gregory, 2 Y. & J.
536.

s Doe V. Thomas, 9 B. & C. 288; 4
Mann. & R. 218.

SEC. 55.] ASSIGNMENT AND SUEUENDEK. 91

to be the custom to send in old leases to the lessor's office
before a renewal was made, which old leases were thereupon
cancelled, it was held that there was evidence from which
the jury might presume a surrender by operation of law.i
The fact that the lease is cancelled by the mutual consent of
both parties does not destroy the estates already vested or
their incidents, nor prevent the lessor from maintaining an
action of debt for the recovery of the rent.^ In an English
case ^ the plaintiff leased to the defendant a building called
"Her Majesty's Theatre," in Haymarket, for the term of
four years and nine months, for the yearly rent of £6275,
payable quarterly in advance. In an action for three-quar-
ter's rent, the defendant set up in defence that the lease, by
and with the assent of the plaintiff, was wholly cancelled,
and that he, the defendant, never entered into the possession
of the premises, and therefore claimed that he had duly sur-
rendered the premises to the plaintiff, and was not liable for
the rent thereof. The court held that this defence was not
available, Martin, B., saying, " When a man demises land
for a term of years, reserving to himself a rent, the effect of
it is to create two estates, viz., the estate of the lessee, and
the reversion of the lessor, and the rent is incident to the
reversion. When the day of payment arrives, the rent still
remains annexed to the reversion. Here the question is,
whether the simply cancelling a lease destroys the lessor's
right of action for the recovery of the rent. I am of opin-
ion that it does not, because the cancelling a lease does not
destroy the estate already vested, nor its incidents." Watson,
B., said, " The authorities are clear that the cancelling a deed
does not divest the estate of the lessee, or deprive the lessor
of his right of action upon the demise." The rule seems to
be well established, that when a conveyance of land operates
as a transmutation of possession, the cancellation, destruc-
tion, or even the redelivery of the deed by mutual consent
will not of itself revest the estate in the grantor, even
though the deed has never been recorded.* But where there

1 Walker v. Richardson, 2 M. & ^ Ward v. Lumley, ante.

W. 882; 6 L. J. (N. S.) Ex, 229. * Wiley v. Christ, 4 Watts (Penn.)

2 Ward V. Lumley, 5 H. & N. 87 ; 199 ; Hatch v. Hatch, 9 Mass. 307 ;
Doe V. Thomas, 9 B. & C. 288; 4 Jones „. Neale, 2 P. & H. (Va.) 339;
Mami. & E. 218. Parker v. Kane, 4 Wis. 1 ; Holhrook

92 STATUTE OF FRAUDS. [CHAP. II.

has been no delivery of the deed, as where it is delivered to
a person to hold ia escrow until a certain time, or the hap-
. pening of a certain event, the redelivery of the deed to the
grantor would put an end to the 'transactions relative thereto
between the parties, because no estate had ever vested in the
grantee under the deed.^

Sec. 56. Definition of " Surrender by Act and Operation of
Law." — A surrender by " act and operation of law " may be
defined as a surrender effected by the construction put by
the courts on the acts of the parties, in order to give those
acts the effect substantially intended by them ; and when the
courts see that the acts of the parties cannot have any oper-
ation, except by holding that a surrender has taken place,
they hold it to have taken place accordingly.^

Sec. 57. Cases to ■which these Words Applied. Estoppel. —
The cases to which these words are to be applied are those
where the owner of a particular estate has been a party to
some act, the validity of which he is by law afterwards
estopped from disputing, and which would not be valid if
his particular estate had continued to exist. There the law
treats the doing of such an act as amounting to a surrender.
The acts in pais which bind parties by way of estoppel are
all acts which anciently really were, and in contemplation of
law have always continued to be, acts of notoriety not less
formal and solemn than the execution of a deed, such as liv-
ery, entry, acceptance of an estate, and the like. Whether
a party had or had not concurred in an act of this sort was
deemed a matter which there could be no difficulty in ascer-

u. Tirrell, 9 Pick. (Mass.) 105; Gray- (N. Y.) 373; King v. Crocheran, 14

son V. Eichards, 10 Leigh (Va.) 57; Ala. 822; Lawrence v. Lawrence, 24

Gilbert v. Bulkley, 5 Conn. 262 ; Coe Mo. 369 ; Connelly v. Doe, 8 Bleakf.

V. Turner, 5 id. 86 ; Botsford v. More- (Ind.) 320; Chessman u. Whittimore,

house, 4 id. 550; Mallory v. Stodder, 23 Pick. (Mass.) 231. But in New

6 Ala. 801 ; Morgan v. Elam, 4 Yerg. Hampshire under the statute relative

(Tenn.) 375; Hine v. Bobbins, 8 to recording deeds, etc., the rule is

Conn. 347 ; Libeau v. Libeau, 19 Mo. otherwise. Dodge v. Dodge, 33 N. H.

269; Jackson v. Anderson, 4 Wend. 487.
(N. Y.) 474; Eaynor v. Wilson, 6 i Coe v. Turner, ante.
HiH(]Sr. Y.) 469; Jordan v. Jordan, ^ Lynch v. Lynch, 6 Ir. L. E. 136,

14 Ga. 145 ; Jackson v. Page, 4 Wend, per Brady, C. B. ; see Cannan v. Hart-

(N. Y.) 585 ; Schutt v. Lange, 6 Barb, ley, 9 C. B. 634 ; 19 L. J. C. P. 323.

SEC. 60.] ASSIGNMENT AND SUEEENDEE. 93

taining, and then the legal consequences followed.^ The sur-
render is presumed to have preceded the act to which the
tenant is party .^

Sec. 58. Disclaimer. — A tenant for a definite term of
years will not forfeit his term by orally refusing, upon de-
mand of the rent made by his landlord, to pay the rent,
and disclaiming his landlord's title.*

Sec. 59. Agreement to Pay Additional Rent. — A parol agree-
ment by the tenant to pay an additional rent will not have the
effect of creating a new tenancy.* So a parol agreement by
the landlord to lay out money on the premises, the tenant
paying an increased rent or a percentage on the outlay,
does not create a new demise so as to amount to a surrender
of the then existing term, for it cannot be supposed to be in
the contemplation either of the landlord or tenant that the
old lease should be at an end, and that instead of it a new
lease should be created, which being by parol would only
have the effect of a lease at will.^ Nor does such an agree-
ment come within the statute for the reason that no addi-
tional interest in the land is thereby conferred, but in that
respect the interest of the parties remains the same as
before,^ and the new agreement is merely collateral, and the
additional rent cannot be distrained for, because it is not
embraced in the lease.

Sec. 60. Agreement to Purchase. — An agreement by the
tenant to purchase the premises from the landlord does not
amount to a surrender,^ as there is an implied condition in
the contract that the landlord shall make out a good title ;
but the contract may be so specially worded as to be an

1 Lyon 0. Eeed, 13 M. & W. 306, Doe v. Geekie, 5 Q. B. 841 ; Crowley
309 ; 13 L. J. Ex. 377, per Parke, B. ; o. Vitty, 7 Exch. 319.

see also Bessel v. Landsberg, 7 Q. B. ^ Donellan v. Read, 3 B. & Ad.

638 ; Nickells v. Atherstone, 10 Q. B. 905 ; Lambert v. Norris. 2 M. & W.

944. 335.

2 Caiman v. Hartley, 9 C. B. 634, ^ Donellan v. Read, ante.

II. a. "< Tarte v. Darby, 15 M. & W. 601 ;

' Doe V. "Wells, 10 Ad. & El. 435. 15 L. J. Ex. 326 ; and see Hamerton

4 Geekie v. Monk, 1 C. & K. 307 ; v. Stead, 3 B. &. C. 483, per Little-
dale, J.

94 STATUTE OF PEAtTDS. [CHAP. n.

absolute contract for purchase, whether the vendor shows a
good title or not.^

Sec. 61. Determination of Tenancy from Year to Year. — A

tenancy from year to year cannot be determined unless there
is either a legal notice to quit, or a surrender in writing or hy
operation of law? And such a tenancy cannot therefore be
determined hj a parol license from the landlord to quit in
the middle of a quarter, although the tenant leaves the
premises, as there is a subsisting term in the premises which
can only be surrendered by deed or note in writing, or by
act and operation of law.^

Sec. 62. ineffectual Notice to Quit. — Nor can such a
tenancy be determined by an ineffectual notice to quit, and
the tenant's quitting accordingly, if the landlord does not
accept possession. Where a tenant from year to year, by a
Lady Day holding, agreed by parol with his landlord's agent
to quit at the ensuing Lady Day, which was within half a
year ; and the premises were re-let by auction, at which the
tenant attended and bid, but the new tenant was not put
into possession : it was held that the tenancy was not deter-
mined, there not having been either a sufficient notice to
quit, or a surrender by operation of law.* So where the
tenant gave a parol notice to the landlord, less than six
months before the 25th of March, that he would quit on that
day, and the landlord verbally accepted and assented to the
notice, it was held that there had been no surrender.^ Again,
where the tenant accepted an insufficient notice to quit, and
agreed to give up the key of the premises, but afterwards
refused to do so, saying that the notice was bad, to which
the landlord replied, there would soon be another quarter's
rent due ; it was held that the tenant's agreeing to give up
the key was no acquiescence in the notice, and no surrender
within the statute.^ A notice to quit, signed by two only of

' Doe «. Stanion, 1 M. cSb W. 695, ^ Johnstone v. Huddlestone, 4 B. &

701 ; Tyr. & Gr. 1065 ; 5 L. J. (N. S.) C. 922 ; 7 D. &. E. 411 ; and see Doe

Ex. 253. V. Milward, 3 M. & W. 328 ; Bessel v.

2 Doe V. Kidout, 5 Taunt. 519. Landsberg, 7 Q. B. 638.

8 Mollett V. Brayne, 2 Camp. 103 ; « Brown v. Burtinshaw, 7 D & E.

Thomson v. Wilson, 2 Start. 379. 603.

* Doe u. Johnstone, McClel. &Y.141.

SEC. 63.] ASSIGNMENT AND SUEEBNDBR.

95

three executors of the original lessor, expressing the notice
to be given on behalf of themselves and the third executor,
is not good.i

Sec. 63. Surrender by Consent, and Acceptance of Posses-
sion. — As has already been stated, a surrender by operation
of law properly arises where the landlord or tenant has been
a party to some act the subject of which cannot be affected
while the particular estate exists, and the validity of which
he is by law estopped from disputing. Such a surrender is
the act of the law, and takes place independently, and even
in spite of the intention of the parties,^ and is presumed to
have preceded the act to which the tenant is a party. In
obedience to the rule stated, it is held that a surrender of
demised premises by a tenant and their acceptance hy the
landlord, even though there is a lease under seal, without any
written agreement, terminates the tenancy.^ A tenancy from
year to year cannot be determined without either a suflScieht

1 Right V. Cuthell, 5 East, 491.

"■ Lyon V. Eeed, 13 M. & W. 285.

5 Hanham v. Sherman, 114 Mass.
19; Eaudall v. Eich, 11 Mass. 493.
In Amory v. Kanoffsky, 127 ed. 117,
the lessee of land sub-let it, and when
the first instalment of rent came due,
both the lessee and sub-lessee paid it
to the lessor. The lessee then told
the lessor that if he continued to re-
ceive the rent from the sub-lessee, he
must release him from liability under
the lease. The lessor replied that he
might give up his lease, and then re-
funded the money he had paid. The
lessee took his lease to the office of
the lessor and delivered it to a person
there, who gave a receipt for it. The
lessor knew that the lease had been
left at his office, and did not return
it, and without making any demand
upon the lessee therefor, continued to
receive the rent for several months
from the sub-lessee, against whom he
subsequently brought an action to
recover possession. In an action
brought by him against the lessee to
recover the rents, it was held that
there had been a surrender by operar

tion of law, although there was no
evidence that the person to whom the
lease was delivered, as before stated,
had authority to accept the surrender
of leases, and that the record of the»
action brought against the sub-lessee
was competent evidence of a surren-
der. The fact that the lease is for a
longer term than three years does not
prevent a rescission thereof by a parol
agreement of the parties when accom-
panied by a surrender of the term
and possession by the tenant to the
landlord, and the acceptance thereof
by the latter. It is not like a sale
and transfer to a stranger of an in-
terest in land greater than a term
of three years, and therefore is not
within the statute of frauds. It is a
yielding up to the reversioner the
limited estate derived from him,
whereby the future tenancy is re-
scinded. The relation of landlord
and tenant is thereby ended. See
Boyce v. McCulloch, 3 W. & S.
(Penn.) 428; Eaffensberger „. CuUi-
son, 28 Penn. St. 426 ; Magaw v. Lam-
bert, 3 Penn. St. 444; Auer v. Penn.,
Penn. Sup. Ct. 1880.

96

STATUTE OP PKAUDS.

[chap. II.

notice to quit or a surrender/ and even a parol license given
by the landlord to quit before the end of the year, and the
tenant quitting accordingly, of itself is not sufficient to
amount to a surrender ;2 but if under such a license the
tenant quits and the landlord accepts the possession of the
premises, a complete surrender results which destroys the
lessor's right to rent either for the balance of the year or
that for the portion of the year already expired.^ Thus, in a
Massachusetts case,* it was held that the surrender of leased
premises by the administrator of a deceased lessee who has
occupied the premises after the death of the lessee, and its
acceptance by the lessor, without any reservation of, or
agreement for, a right to sue the administrator or to prove
against the insolvent estate of the lessee, terminates all
liability of the administrator or of the estate, upon the
covenants of the lease. In all cases, an executed agreement
to surrender is operative as a surrender.^ Thus, where a
tenant consented that the lessor might lease the premises to
another and gave up possession to the new lessee, a surrender
by operation of law was held to transpire ; ® and this doctrine

1 Eead v. Ridout, 5 Taunt. 519.

2 MoUett I/. Brayne, 2 Camp. 103
Thompson v. "Wilson, 2 Stark. 379
Gore V. Wright, 6 Ad. & El. 118
"Whitehead v. CUfford, 6 Taunt. 518
Dodd V. Acklom, 6 M. & G. 672
Stone V. "Whitney, 2 Stark. 235
Eeeve o. Bird, 4 C. M. & K. 31
Thomas v. Cooke, 2 B. & Aid. 119
Matthews v. Sawell, 8 Taunt. 270
Phipps V. Sculthorpe, 1 B. & Aid. 50
Grimson v. Legge, 2 B. & C. 324
Walls V. Atcheson, 8 Bing. 462 ; Hav-
land u. Bromley, 1 Stark. 455 ; Red-
path V. Roberts, 3 Esp. 325. But the
doctrine of these cases has been much
shaken by Lyon v. Reed, ante ; but in
Nicholls V. Atherstone, 11 Jur. 778,
the Court of Queen's Bench dissented
from the reasoning and observations
on tlie previous cases in that judg-
ment, and said there was no estoppel
in the case, although the judgment
was correct. In Biddulph v, Poole,
12 Jur. 450, is an elaborate judgment
upon tlie effect of a surrender by ac-
ceptance of a new lease, which is

voidable and afterwards avoided ; and
it was there held, that, to operate as
a surrender, the estate passing by the
new lease must be such as was con-
templated by the parties at the time.
See Lyon v. Reed, discussed, 2 Smith's
Leading Cases, 459 a, 459 i.

3 Grimman v. Legg, 8 B. & C. 324
Brown v. Burtinshaw, 7 D. & K. 603
Allen V. Devlin, 6 Bos. (N. T.) 1
Lamar v. McNamee, 10 G. & J. (Md.)
116.

* Deane v. Caldwell, 127 Mass. 242.

^ Whitney u. Meyers, 1 Den.
(N. Y.) 266; Davison v. Gent, 1 H. &
N. 744.

6 Nickells v. Atherstone, 10 Q. B.
944; Thomas „. Cook, 2 B. & Aid.
119; Davison v. Gent, ante. The
doctrine of Thomas v. Cook, ante, was
impugned in Lyon v. Reed, 13 M. &
W. 285, but the first and last cases
Cited in this note, which were decided
after Lyon v. Reed, re-afiirmed the
doctrine of Thomas v. Cooke. In the
case first cited Lokd Denman, C. J.,
said; "In this case, tlie defendant

SEC. 63.] ASSIGNMENT AND STTBEENDER.

97

has been held in numerous cases in our courts.^ Where a
tenant abandons the possession, and the landlord enters and

1 Murray v. Shane, 2 Den. (N. Y.)
182 ; Randall v. Rich, 11 Mass. 494 ;
Gehegau v. Young, 23 Penn. St. 18 ;
Smith V. Nevins, 2 Barb. (N.Y.) 180;
Seheffelin v. Carpenter, 15 Wend.
(N. Y.) 400; Heseltine v. Leary, 16
Me. 212 ; Baker .,. Pratt, 15 111. 569 ;
Whitney u. Myers, 1 Den. (N. Y.)
266; Creigh v. Blood, 1 Jones & S.

being the lessee in possession of the
premises, the plaintiff, his landlord,
•with his consent, let them to a new
tenant, and put him in possession,
and discharged the defendant from
his liability as tenant. The judge
who tried the case held that these
facts constituted a surrender by oper-
ation of law, and, therefore, a defence
against the plaintiff's claim for rent.
The correctness of that holding has
been brought into question before us
in consequence of the opinion ex-
pressed by the Court of Exchequer
in Lyon v. Keed, 13 M. & W. 385, 305-
310 ; but we are of opinion that it is
correct. If the expression ' surrender
by operation of law' be properly
' applied to cases where the owner of
a particular estate has been party to
some act, the validity of which he is
by law afterwards estopped from dis-
puting, and which would not be valid
if his particular estate had' continued,'
it appears to us to be properly ap-
plied to the present. As far as the
plaintiff, the landlord, is concerned,
he has created an estate in the new
tenant which he is estopped from dis-
puting with him, and which is incon-
sistent with the continuance of the
defendant's term. As far as the new
tenant is concerned, the same is true.
As far as the defendant, the owner of
the particular estate in question, is
concerned, he has been an active
party in this transaction, not merely
by consenting to the creation of the
new relation between the landlord
and the new tenant, but by giving up
possession, and so enabling the new ten-

(S. Y.) 133; Dayton i>. Craik, 26
Minn. 133 ; Smith u. Pendergast, 26
id. 818. And where the tenant aban-
dons the premises and the landlord
takes possession, a surrender by opera-
tion of law results. Smith v. Wheeler,
8 Daly (N. Y. C. P.) 135 ; ICrank v.
Nichols, 6 Mo. App. 72; Stewart v.
Munford, 91 111. 58.

ant to enter. If the defendant cannot
technically be said to be estopped from
disputing the validity of the estate of
the new tenant, still, according to the
doctrine of Pickard v. Sears, 6 Ad. &
El. 469, he would be precluded from
denying it with effect ; and the result
is nearly the same as an estoppel. If
an act which anciently really was, in
contemplation of law, and has always
continued to be, an act of ' notoriety,
not less formal and solemn than the
execution of a deed, such as livery,
entry, acceptance of an estate, and
the like' (Lyon v. Reed, 13 M. & W.
309), be required as requisite for a
surrender by operation of law, and if
the acts of the three parties are re-
garded together, this requisite is here
found. Indeed, the notoriety is essen-
tially greater than that which accom-
panies a parol redemise between the
same landlord and tenant, which is a
clear surrender by operation of law.
In the present case three are con-
cerned, and there is an actual change
of possession: in the other, two are
concerned, and there is no change of
possession. This surrender by opera-
tion of law has been judicially recog-
nized in each of the superior courts.
Matthews o. Sawell, 8 Taunt. 270;
Thomas u. Cook, 2 B. & Aid. 119;
Walker v. Richardson, 2 M. & W.
882 ; Bees v. Williams, 2 C. M. & R.
581 ; S. C. Tyr. & G. 23. And held
valid at nisi prius in Stone v. Whiting,
2 Stark. N. P. C. 235, and many sub-
sequent cases. When the decisions
on a point are numerous and uniform,
and carry into effect the lawful inten-

98

STATUTE OF FRAUDS.

[chap. II.

uses the premises as his own,^ as to make repairs^ or to show
the premises to parties with a view to letting them on his own
account^ or does any acts thereon which show that the land-
lord has resumed the possession as owner. Thus, in the case
last cited, the defendant took a lease o£ a house, stable, and
three cottages, at an entire rent for the term of seven years.
The house and cottages were underlet to different tenants,
the defendant only occupying the stable and yard. Before
the expiration of the term the defendant assigned the

1 Krank v. Nichols, ante; Smith v,
Wheeler, ante; Phen^ v. Popplewell,
12 C. B. N. s. 334.

2 MacKellar v. Sigler, 47 How. Jr.
(N. Y.) 20.

8 Reeve v. Bird, 1 C! M. & K. 81.

tions of the parties according to the
truth, and are opposed by no princi-
ple, the law on the point ought not to
be considered doubtful because the
reported decisions are only of modern
date, as the fact that the reports on
the point do not begin till lately may
arise from there being no question on
the point in earlier times. Indeed, in
1809, it seems probable that a res-
toration of the possession to the land-
lord, and a discharge of the tenant by
him, was considered a surrender by
operation of law. The defence in
Mollett V. Brayne, 2 Campb. 10.3, was
shaped on that principle ; but, as the
evidence failed to show a change of
possession by mutual consent of land-
lord and tenant, the defence failed.
In Whitehead v. Clifford, 5 Taunt.
518, where there was such change of
possession by mutual consent, the de-
fence to a claim for use and occupa-
tion succeeded ; and the court distin-
guished the case from Mollett v.
Brayne, 2 Campb. 103, for that rea-
son. Where there is an agreement to
surrender a particular estate, and the
possession is changed accordingly, it
is more probable that the legislature
intended to give effect to an agree-
ment so proved, as a surrender by
operation of law, than to allow either
party to defeat the agreement by
alleging the absence of written evi-
dence. Although we do not assent to
the observatipns upon the line of cases,

from Thomas v. Cooh, 2 B. 4- Aid. 119,
downwards, in the learned and able
judgment given in Lyon v. Reed, 13
M. §• W. 285, we wish to express our
entire concurrence in the decision of that
case. The question there was not
upon the estate of the tenant in pos-
session of the premises, but upon the
title of the plaintiff as assignee of the
reversion; whether a lease of the
reversion, granted to Ord and Planta
in 1812, for ninety-nine years, could
be presumed to be surrendered, from
the fact that such lease was found
among the deeds of the tenant in fee,
who had granted in 1814 a term in
the reversion to Osborne and Burt,
through whom the plaintiff claimed.
There was no change in the possession
of the land. No actual change in the
possession of the reversion could be
made apparent ; and the facts stated
lead to the conclusion that Ord and
Planta did not know of the demise to
Osborne and Burt; but the proba-
bility is, that the term in them as
trustees had been forgotten at the
time when their concurrence was
requisite for the new lease. As the
defendant is entitled to our judgment
on this point, it is not necessary to
consider the effect of his letter as
evidence of a surrender." See note
to Christmas v. Oliver, 2 Smith's Lead.
Ca. 459 a, 459 i, 3d ed. ; and Creagh
V. Blood, 3 Jones & Latouche, 133,
there cited.

SEC. 63.] ASSIGNMENT AND SUEBENDEE. 99

premises to one Bullock, and quit the possession. The land-
lord, after the defendant quit the possession, accepted and
received the rent of the house and cottages from the several
tenants, and gave them receipts therefor, which indicated
that he treated and regarded them as his tenants. The
tenants of two of the cottages quit before the expiration of
the term named in the lease to the defendant, and the plain-
tiff advertised the premises " to be let on lease, or to be sold
bj"^ private contract." It was not stated in the advertisement
that the premises were in the possession of a tenant, nor was
any time for giving possession of the premises named. At
the expiration of the term the plaintiff brought an action
against the defendant for the rent. The defendant claimed
that the premises had been surrendered by him, and set up
the facts detailed as evidence thereof. Loed Denman, C. J.,
upon these facts directed a non-suit to be entered, and upon
hearing in exchequer, his ruling was sustained, it not
appearing that the plaintiff requested to have the question
left to the jury. In such cases, in the absence of any
positive agreement, the decisive question is, whether the
landlord accepts or takes possession of the premises and
deals with them in such a manner as indicates that he takes
the possession as owner, and not for or on account of the
tenant, or for the mere protection of the premises against
damages from the elements, etc.i Thus, where the landlord
entered, after the tenant had quit possession, and put up
a " To Let " in the windows, Loed Kenyon held that such
acts afforded no evidence of an acceptance of the possession
by the landlord, saying "it was for the benefit of the
tenant that the premises should be let, and that he would
not from that fact alone infer that the contract was put an

1 In Griffiths o. Hodges, 1 C. P. enters and uses such premises or any

419, the defendant having quit pos- part of them, that will deprive him

session, the plainti£f, during the unex- of his claim to rent. But here, the

pired term, entered and built a fire defendant had left the apartments

and cooked a hare, and it was in- vacant ; and, as it was proper that fires

sisted that this amounted to such a should be lighted in them, I do not

resumption of possession by him as think that the plaintiff's lighting such

created a surrender by operation of fire, or even making some use of it

law. But Abbott, C. J., said : "If a when he had lighted it, is a sufficient

landlord, while his tenant is in the taking possession of the premises to

possession and use of apartments, deprive him of his right to rent."

100 STATUTE OF FBATJDS. [CHAP. H.

end to." In a Pennsylvania case^ the fact that the landlord
accepted the key to the house, put up a " To Let," and had
repairs made, was held not sufficient to establish a surrender ;2
and in no case can a surrender be established from the mere
circumstance that the landlord accepted the key of the
premises,* but it must also be shown that he s'uhsequently dealt
with the property in such a manner as to indicate that he
regarded the tenant's estate at an end ;^ as, if the landlord
accepts the key and re-lets the premises,^ or if he accepts the
key under a parol agreement that the rent shall eease,^ or if he
accepts the key and deals with the premises in such a
manner as warrants an inference that he intended to resume
possession^ Where two persons let a house by lease in
writing, one of whom, after signing the lease, never further
interfered, and the other, before the first quarter's rent
became due, accepted the key from the tenant's wife, it was
held that there was a sufficient surrender by the tenant
which boimd both the lessors, the wife of the tenant acting
as his agent, and the lessor who accepted the key as the
agent of the other ;^ but a plea that three executors had
agreed to accept a third person as tenant in lieu of the
defendant is not proved by evidence that one of the plain-
tiffs had made the agreement.^ Where a lessee quit in the
middle of his term apartments which he had taken for a
year, and the lessor let them to another person, so that the
lessee could not have come back if he had chosen, it was
held that by so doing the lessor dispensed with the necessity
of a written surrender.^" Where the owner of a ferry let it

^ Pier V. Carr, 69 Penn. St. 316 ; The evidence must be such as to war-

Snyder v. Middleton, 4 Phila. (Penn.) rant a presumption that the landlord

343. intended to resume possession. Lan-

* Snyder v. Middleton, 4 Phila. das v. Hollingshead, 4 Phila. (Penn.) ;

(Penn.) 343; Eastler v. Henderson, Bloomer v. Merrill, 1 Daly (N. T.

L. E. 2 Q. B. D. 376. See also With- C. P.) 485; Hegeman v. McArthur,

ers V. Larrahee, 48 Me. 570 ; Matthews 1 E. D. S. (N. Y. C. P.) 147.

V. Lobenor, 39 Mo. 115; Hanham v. ^ Eandall b. Rich, arte.

Sherman, 114 Mass. 19 ; Harland v. « Whitehead v. Clifford, 5 Taunt.

Brawley, 1 Stark. 455. 518; Furnivall v. Grove, SC.B.n.s. 496.

8 Thomas v. Nelson, 69 N.. Y. 118 ; ' Landas v. Hollingshead, 4 Phila.

Morgan v. Smith, 70 id. 537 ; Kandall (Penn.) 57 ; Dodd v. Acklom, 6 M. &

V. Eich, 11 Mass. 494 ; Prentiss v. G. 672.

Warne, 10 Mo. 601 ; Townsend v. Al- * Dodd v. Acklom, ante.

bens, 3 E. D. S. (N. Y. C. P.) 560. » Turner v. Hardy, 9 M. & W. 770.

4 Ladd u. Smith, 6 Oregon, 316. m Walls v. Atoheson, 3 Bing. 462.

SBC. 63.] ASSIGNMENT AND SUBEENDEE. 101

for a year, but after a few weeks the lessee, finding it un-
profitable, agreed instead to become servant to the owner,
and received daUy wages for attending to the ferry for him,
it was held to be a surrender by act and operation of law.^
Where a tenant from year to year agreed to buy the free-
hold of the land, it was held that the agreement, not being
absolute, but conditional on a good title being found, did
not operate as a surrender of the tenancy by operation of
law.2 The fact that the landlord re-lets the premises after
they are abandoned by the tenant affords evidence from
which a surrender may be found, but this is not the case
where the landlord re-lets them on the tenant's account.
Thus, where the tenant informed the landlord that he should
leave the premises on a specified day, and the landlord told
him that if he did he should let the premises on his (the
tenant's) account, and hold him responsible for the rent, and
the tenant moved out, and the landlord sent a person to
occupy the house, it was held not to amount to a surrender,
and that the tenant still remained liable for the rent. But
where a tenant informed the landlord of his intention to
leave, and the landlord said that he was sorry, for then he
must get some one else to hire the premises, and gave the
tenant permission to leave some of his tilings on the premises,
it was held that the facts afforded evidence from which a
surrender could be implied.* But if the tenant abandons
and the landlord re-lets the premises, giving the tenant notice
that he does so for and on his account, a surrender is not
established.* And this is also the rule where the lease pro-
vides that in case the tenant leaves the landlord may re-let.^
Premises may be surrendered by the mutual agreement of
the parties, even by parol, and when executed on both sides,
a surrender by operation of law results, although the agree-
ment under which it arose was invalid as such. And an
agreement may be implied by operation of law, even where
the tenant has quit without a sufficient notice, and the land-
lord re-enters and uses the premises in a manner which is

1 Peters v. Kendall, 6 B. & C. 703. * Peter v. Kendal, 6 B. &, C. 703;

2 Gray v. Stanion, 1 M. & W. 695 ; Walla v. Atcheaon, 3 Bing. 462.
Tarte v. Darby, 15 id. 601. - « Ogden v. Rowe, 3 E. D. S. (N. Y.

8 Stanley v. Koehler, 1 Hilt. (N. Y. C. P.) 312.
C. P.) 354.

102

STATUTE OF PEATJDS.

[chap. II.

inconsistent with an outstanding right to the possession in
the lessee.^ Surrenders by operation of law result from the

1 Mollett V. Brayne, ante ; Thomp-
son V. Wilson, 2 Stark. 379 ; Amory
V. Kanoffsky, 117 Mass. 357-; McGlynn
V. Brack, 111 'id. 219. In an Ohio
case r rented certain premises to S
for one year at an agreed rent of two
hundred dollars, and possession was
taken by S under the agreement. S
sent word to F that he would no
longer retain possession of the prem-
ises, but intended to abandon them.
F. directed a person in the event of
such abandonment to take charge of
the premises. After this, S left the
premises, and the possession was re-
sumed by F.' It was held, that the
contract was put an end to by the
concurrent act of the parties, and
that the right of F to recover rent for
the time S enjoyed the premises must
be decided by the same rules as if
possession had been originally taken
upon an imderstanding that S should
pay what was reasonable. Fitch v.
Sargeant, 1 Ohio, 352. See also Ladd
V. Smith, 6 Oreg. 316 ; Jackson v.
Gardner, 8 John. (N. Y.) 394; Cole-
man V. Maherly, 3 T. B. Mon. (Ky.)
220. A tenancy from year to year,
created by parol, is not determined
by a parol license from the landlord
to quit in the middle of a, quarter,
and the tenant quitting the premises
accordingly. Botting v. Martin, 1
Camp. 318. But contra, see Amory
V. Kanoffsky, 117 Mass. 357. But if
in such case both parties act upon
such parol notice or license to quit,
that is, the landlord himself take
possession, so as to render it impossi-
ble for the tenant to use or occupy
the premises, the tenancy is thereby
legally determined. Mollett v. Brayne,
2 Camp. 103; Thompson u. Wilson,
2 Stark. 379. And i£, during a letting
from year to year, the landlord, vrith
the assent of his tenant, who quits
the premises, accepts and treats a third
person as his (the landlord's) tenant,
this amounts to a valid surrender of
the original tenant's interest by act

and operation of law. But in such
case the express consent of all parties
to the change of tenancy seems neces-
sary : Grimman v. Legge, ante ; Ack-
land V. Lukey, 1 P. & D. 640; Gore
V. Wright, 3 N. & P. 243; though the
assent of the old tenant may be pre-
sumed upon the landlord's producing
the old lease cancelled, and on proof
of a user in his office to have all old
leases sent to be cancelled before re-
newals are granted. Reeve v. Bird, 1
C. M. & E. 31 ; Thomas v. Cook, 2 B.
& Aid. 119; Phipps v. Sculthorpe, 1
id. 50; Mathews v. Sewell, 8 Taunt.
270; Stone v. Whiting, 2 Stark. 235;
Hamerton v. Stead, 3 B. & C. 478;
Walls V. Atcheson, 3 Bing. 462 ; Bees
u. WilUams, 2 C. M. & E. 581; Eex
V. Banbury, 1 Ad. & El. 136; Wed-
dall V. Capes, 1 M. & W. 50; Walker
u. Eichardson, 2 M. & W. 882. There
must be_ a clear case of substitution
and acceptance of the new tenant,
and merger of the old tenant's inter-
est; and it seems that the merely
taking rent from the new occupier
will not suffice. Graham v. Wichclo,
1 C. & M. 188. Thus where, as in
the case last cited, there was a letting
to A and B as partners, and A retired
and C entered, and a receipt for rent
from B and C was given, it was held
that A was not discharged. And unless
there is a written demise to the new ten-
ant, or he takes possession, it appears
that no surrender of the prior tenancy
is effected by legal operation. Taylor
V. Chapman, Peake's Addl. Cas. 19.
Where a tenancy is thus determined
in the middle of a quarter, while the
rent is current, the tenant, in the ab-
sence of an express agreement, is not
liable for a proportion of the current
quarter's rent from the preceding
quarter day to the day of quitting.
Hall V. Burgess, 5 B. & C. 332; Grim-
man u. Legge, ante; .Walls v. Atche-
"son, 2 C. & P. 268; 3 Bing. 462.
There cannot, however, be a surrender
to take place in future, and therefore

SEC. 63.] ASSIGNMENT AND STJEEENDEE.

103

acts of the parties, and are in no wise dependent upon their
intention, and exist in spite of the real intention of the
parties. They are inferences of law from the facts, and
cannot be overcome by showing that the landlord did not
intend his act to operate as an acceptance of the surrender.^
Under this rule it follows as a matter of course that, where
an oral agreement is entered into between the landlord and
the tenant, that another tenant shall be substituted in his
place, while it is not valid as an executory agreement, it is
binding when it has been executed, by the tenant giving up
the possession on the one hand, and the landlord substitut-
ing another tenant on the other.^ So, if a tenant who has

where a tenant, believing that his
tenancy determined at a certain time,
gave a written notice to quit at that
period, which the landlord accepted
and made no objection to ; but the
tenant, having afterwards discovered
that his tenancy did not expire until
a later period, and he gave his land-
lord another notice accordingly, and
on possession being demanded at the
time named in the first notice to quit,
it was held, that the first notice to
quit not being good as a notice did
not operate as such to determine the
tenancy, and that it could not be
treated as a surrender by note in
writing within the statute of frauds.
MurreU v. Milward, 3 M. & W. 328;
Weddall ^. Capes, 1 M. & W. 50,
overruling Aldenburgh v. People, 6
C. & P. 212. And where a tenant
from year to year agreed by parol
with his landlord's agent to quit at
the end of the year ensuing, which
was within half a year, and the prem-
ises were re-let by auction, at which
the tenant attended and bid : but the
new tenant was not let into posses-
sion, and the old tenant refused to quit ;
it was held that this did not amount
to a surrender by operation of law.
Huddlestone v. Johnson, 1 McCl. &
T. 141. And where a defective parol
notice to quit was given, and the
landlord verbally assented to it, yet
the notice was holden inoperative, it
not being in writing, and there not
being any sufficient surrender by

operation of law. Johnston v. Hud-
dlestone, 4 B. & C. 922, in which the
avowry was for double- rent, and it
was held that double rent could not
be recovered on a defective notice,
nor single rent on an avowry for
double. The. mere cancellation of a
lease, without a, written surrender,
does not amount to a surrender by
operation of law ; Berkeley v. York, 6
East, 86 ; Wooley u. Gregory, 2 Y. &
J. 536; and where a lease appeared
to have the names and seal of the
parties torn off, it was decided that
this was neither a surrender by con-
struction of law, nor prima facie evi-
dence of a written surrender. Cour-
tail V. Thomas, 9 B. & C. 288 ; Walker
u. Richards, ante, 330. The accep-
tance of a, new lease for a term, to
commence during the existence of a.
former demise, is a surrender of the
first term : Hamerton v. Stead, 3 B. &
C. 478; Livingston v. Potts, 16 Johns.
(N. Y.) 28; and where A during his
tenancy agreed with his landlord that
he and B should become tenants, and
B entered^ this was held to determine
the first tenancy. Hamerton v. Stead,
5 B. & C. 478.

1 Creagh v. Blood, 3 J. & L. 133;
Nichols 0. Atherstone, ante; Talbot
V. Whipple, 24 Allen (Mass.) 177;
Hall V. Burgess, 5 B. & C. 332 ; Wood
V. Partridge, 11 Mass. 493 ; Murray v.
Shane, 2 Duer (N. Y.) 183.

2 Stone V. Whitney, 2 Stark. 235 ;
Hobson V. Camley, 25 L. J. Excliq.

104

STATUTE OF PEAtTDS.

[chap. n.

under-let the premises surrenders tlie term by parol, the
landlord's acceptance may be shown by the fact that he
subsequently notified the undertenant that the rent must
be paid to him, as the original tenant has no estate in the
premises.^ So, if the lessor consents to a change in the
tenancy, and receives rent from the new tenant as an original
and not as a sub-tenant, he cannot charge the first tenant for
rent subsequently accruing.^ But the mere circumstance

209; Lawrence v. Faux, 2 F. & F. 435.
In Murray v. Shaw, 2 Duer (N. Y.)
182, a lease haying been executed for
a year, to commence in future, the
tenant wished to abandon it, and ob-
tained a substitute, who, by agree-
ment endorsed on the lease, agreed to
assume the lease and perform all the
covenants, but changing the mode of
paying rent. It was held, that tlie
lessor, by accepting this, released the
former lessee, and he could not alter
the effect of the surrender by express-
ing, in his receipts for rent, that it
was paid under the original lease.
Murray w. Shave, 2 Duer (N. Y.)
182; Smith u. Niver, 2 Barb. (N, Y.)
180. By consenting to a change of
tenancy, the original lessee is dis-
charged. Page V. Ellsworth, 44 Barb.
(N. Y.) 636.

1 Bailey v, Delaplaine, 1 Sandf.
(N. Y.) 5.

2 Smith V. Miner, 2 Barb. (N. Y.)
180; Thomas v. Cook, ante; Mines
Eoyal Society u. Magnay, 18 Jur.
1028. But the assent of the landlord
to the assignment must be established
as well as his acceptance of the new
tenant as a substitute for the former
tenant. The case of Thomas v. Cook,
ante, sanctions the rule that a surren-
der in law will be implied from the
fact that a tenant has put a third
person in possession of the demised
premises, and that each third person
has been accepted as tenant with the
assent of the original tenant; but
this- case was criticized strongly in
Lyon V. Eeed, 13 M. & W. 285. The
court, in the principal case, says:
" To ascribe the effect of a surrender
to the mere act of the landlord ac-

cepting the assignee as his tenant,
and receiving rent from him, would
be going beyond the precedents. To
warrant the inference that the origi-
nal lease has been annulled, the facts
ought to be of an entirely conclusive
character." See, also, MOls v. Auriol,
1 Smith's L. C. (Phil. ed. Hare &
Wallace's notes) 1239, where it is
said by Lokd Kenton that, "It is
extremely clear that \a, person who
enters into an express covenant in a
lease continues liable on his cove-,
nant, notwithstanding the lease be
assigned over. If the lessee assigu
over liis lease and the lessor accept
the assignee as his lessee, either
tacitly or expressly, it appears from
the authorities that the action of debt
will not be against the original lessee ;
but all those cases with one voice de-
clare that if there be an express cove-
nant, the obligation on such covenant
still continues." See, also, Griffith v.
Hodges, 1 C. & P. 419; Talbot v.
Whipple, 14 Allen (Mass.) 180 ; Stobie
V. Dills, 62 111. 432 ; Baker v. Pratt,
15 id. 568 ; Hegeman v. McArthur, 1
E. D. S. (N. Y.) 147; Dodd v.. Ack-
lom, 6 M. & G. 673; Grimman o.
Legge, 8 B. & C. 324. The mere re-
ceipt of rent by the landlord from an
undertenant does not evidence the
landlord's assent to the tenant's aban-
donment of the premises. Slocum v.
Branch, 5 Cr. (U. S. C. C.) 315 ; Cope-
land V. Watts, 1 Stark. 65 ; Burnham
V. Hubbard, 36 Conn. 542; Bacon u.
Brown, 9 id. 334; Hill v. Robinson,
23 Mich. 24. In Hull v. Wood, 14 M.
& W. 682, a tenant from year to year
died, and his widow remained in pos-
session, paying the rent to the land-

SEC. 63.] ASSIGNMENT AND STJEEENDEE. 105

that the landlord receives the rent from a sub-tenant is not
of itself sufficient to establish a surrender. Thus, where A
and H, who were partners by agreement, in March, 1827,
became tenants to the plaintiff, and in 1828, W retired from
the partnership, and in January, 1829, H entered into
partnership with S, and the plaintiff gave receipts for rent
as received from H after W retired, and as received from H
and S after S became a partner ; and also gave H a letter to
his attorney, signifying that a lease might be made to H and
S, but which was kept by H and not acted upon, and no
lease was prepared ; it was held, that W remained liable for
the rent accruing at the time of H and S.^ But, where a
lease is made to a firm with a covenant for revenues, and
during the original term one or more of the partners retire
from the firm, and new partners take their place, and the
new firm, after the expiration of the term, continue in pos-
session under the old lease, paying rent according to the
terms of the old lease, the retiring partners cannot be held
for the rent accruing after the expiration of the original
term.^ Where premises had been let to B for a term
determinable by a notice to quit, and pending the term A,
the landlord, agreed to let C stand in B's place, and C offered
to pay rent, it was held, in an action for use and occupation
against C, that he could not set up as a defence that B's
term had not been determined! either by a notice to quit or
a surrender in writing.

Consequently where there is an agreement that the
tenancy shall be put an end to, which is acted upon by the
tenant's quitting accordingly, and the landlord, by some
unequivocal act, takes possession of the premises, that will
amount to a surrender by operation of law. Where, there-
fore, the tenant left the key of the premises at the counting-
house of the landlord, and the latter, though he at first
refused to accept it, afterwards put up a board to let the
premises and used the key to show them, and painted out

lord. Subsequently, a person who i Graham o. Nichols, 1 C. & M.

knew the facts took out letters of 188; Woodcock v. North, 8 Bing.

administration upon the estate, the 170 ; Beall v. White, 94 N. S. 382.
widow still continuing to pay the ^ James v. Pope, 19 N. Y. 324;

rent. It was held that this did not Kinsey v. Winnick, 34 Md. 112.
amount to a surrender of the tenancy
by operation of law.

106 STATUTE or PEATJDS. [CHAP. II.

the tenant's name from the front, it was held that there was
sufficient evidence of surrender by act and operation of law.^
So where A and B demised a house by lease in writing to
C at a rent payable quarterly, and the key of the house was
dehvered to C's wife, and C entered into possession, but
before the first quarter's rent became due (there having
been some dispute as to arrears of rent and taxes) C's wife
delivered back the key to A, who accepted it, it was held
that the delivering back of the key animo sursum reddendi,
and the acceptance of it by the landlord, amounted to a
surrender by act and operation of law.^ The case was dis-
tinguished from Mollett v. Brayne^ on the ground that in
that case it was not shown that the landlord took possession,
and it was also distinguished from Johnstone v. Huddlestone *
on the ground that there the agreement to put an end to the
tenancy was never carried out. Where, however, A was
tenant to B, who became bankrupt, and A sent the key of
the rooms to the office of the official assignee, where it was
left with a clerk, who was told that it was the key of the
rooms, and A immediately quitted possession, and no further
communication took place, it was held that there was no
surrender, and the case was distinguished from Dodd v.
Acklom,^ on the ground that the lessor in that case had
authority to act for both.^ If the landlord enters into pos-
session of the premises in pursuance of an agreement for a
surrender, he cannot afterwards refuse to accept the sur-
render.^ Thus, in a New York case,^ after a lessee had

' Phen^ u. Popplewell, 12 C. B. all breaches of covenant occurring

(N. S.) 334; 31 L. J. C. P. 235; and be/ore the surrender. Roe v. Conway,

see Whitehead „. CHfEord, 5 Taunt. 74 N. Y. 201.

518 ; Ackland ,;. Lutley, 9 Ad. & El. « Do^d v. Acklom, 6 M. & Gr. 672 ;

879; Grimmanv.Legge.SB. &C.324; 7 Sc. (N. E.) 415; 13 L. J. C. P. 11.
Smith V. Lovell, 10 C. B. 6; 20 L. J. 8 2 Camp. 103.

C. P. 37 ; Purnival o. Grove, 8 C. B. ^ 4 B. & C. 922 ; 7 D. & E. 411.

(N. S.) 496 ; 30 L. J. C. P. 3. A sur- ^ e M. & Gr. 672 ; 7 Sc. (N. R.)

render is effected either by words 415.

manifesting the intention of the les- " Cannan v. Hartley, 9 C. B. 634;

see to yield up his estate, or by oper- 19 L. J. C. P. 323.
ation of law, where the parties with- ^ Natchbolt v. Porter, 2 Vern. 112 ;

out such words do some act which "Whitehead v. Clifford, 5 Taunt. 518;

implies that they both agree to con- Furnivall i;. Grove, 8 C. B. (K S.)

sider the surrender as made. Beall 496 ; 30 L. J. C. P. 3.
o. White, 94 U. S. 382. But the les- « Bailey v. Delaplaine, 1 Sandf.

Bee remains liable xmder liis lease for (N. Y.) 5.

SBC. 66.] ASSIGNMENT AND SUERENDEE. 107

underlet the whole of the demised premises, by two written
sub-leases, the landlord called on the undertenants, produced
the sub-leases, demanded of them the rent, forbade their
paying any more rent to the original lessee, and said he was
the rightful landlord, and had taken the place off the lessee's
hands ; and he afterwards collected all the rents which were
collected of the sub-tenants, it was held that there was a
surrender of the original lease by operation of law, and that
the landlord could not collect the subsequent rent of his
original lessee.

Sec. 64. Presumption of Acceptance of Surrender when Re-
butted.— But the mere fact of the landlord's taking posses-
sion will not necessarily amount to a surrender. Thus, if
the tenant abandons possession of the premises during the
term, and the landlord enters and does repairs, or even if he
uses the premises, the tenancy may not be determined.^ So
where the tenant quitted without giving notice, the fact of
the landlord's having put up a bill to let the apartments did
not prevent his recovering in assumpsit for use and occupa-
tion.^

Sec. 65. Landlord Taking Tenant as Servant. — Where the
owner of a ferry demised it by parol to A, who, finding it
unprofitable, agreed to become the lessor's servant as boat-
man, and received wages, it was held that there was a
surrender by act and operation of law.^ The acts from which
it is sought to be inferred that the tenancy has been put an
end to must be unequivocal.*

Sec. 66. Surrender by Operation of Law. — The statute of
frauds in all the States where provision is made relative to
surrenders, excepts implied surrenders, or surrenders re-
sulting by act and operation of law, and of this class are
those created by the acceptance by the tenant of a new
lease from the reversioner, or other conveyance inconsis-
tent with the first lease, whether for a longer or a shorter

1 Eessell v. Landsberg, 7 Q. B. 638 ; » Peter v. Kendal, 6 B. & C. 703.
14 L. J. Q.B. 355; Griffiths. Hodges, * Ackland u. Lutley, 9 Ad. & EL
1 C. & P. 419. 879, 894.

2 Redpath v. Roberts, 3 Esp. 225.

108 STATUTE OF FEAtTDS. [CHAP. K.

term, or to begin presently or at a future period during the
term, because the acceptance of a new lease, to take efPect
during an existing term, necessarily implies a relinquishment
of the former term, from the time when the new lease takes
effect^ unless there are facts which rebut the presumption
that a surrender was intended.^ But a surrender cannot be
implied by the acceptance by the tenant of an invalid new
lease ^ or from a mere agreement for a fviure lease.* Where
a new lease is made, to take effect at a future time, in so far
as the provisions of the new lease are inconsistent with the
old, the former wiU prevail, the presumption being that a
surrender of the old lease was intended ; ^ but a parol agree-
ment between the parties to a lease under seal, reducing the
rent, does not amount to a surrender, nor, unless founded
upon a new consideration, has it any validity.* But it has
been held that a subsequent unsealed agreement to surrender
upon a failure to perform certain conditions, the original
lease being imder seal, although inoperative as a defeasance,
is valid as a contingent surrender, the agreement being
treated as a conveyance in presenti to commence in futuro ; "<
but this doctrine is opposed to that held in England,* where,
as we have seen,^ it is held that a surrender cannot be made
to take effect in futuro, although we. confess that we can see
no reason or justice in the rule, and cannot understand why
a valid contract in this respect cannot be made, as well as in
reference to any other matter ; consequently we believe that
the New York case, cited supra, expresses the better rule,
and the one which will be most likely to obtain in this
country.

A parol agreement to change a lease, or for a new lease for
a longer period than that excepted from the statute, is inoper-

1 Livingston v. Potts, 16 John. (N. » Biddulph v. Poole, 11 Q. B. 713.
Y.) 28; Bromley v. Stanley, 4. Burr. * Foquet v. Moore, 7 Exchq. 870;
2210 ; Eurnivall v. Grove, 8 C. B. n. s. John v. Jenkins, 1 C. & M. 227.

496 ; Crowley v. Vitty, 7 Exchq. 319 ; ^ Jungernian v. Bovee, 19 Cal. 354.

Logan V. Anderson, 2 Doug. (Mich.) ^ Qqq „ Hobby, 72 N. Y. 143.

101 ; "Whitney v. Meyers, 1 Duer. (N. ' Allen v. Jaquish, 21 Wend. (N.

Y.) 266; Clemens v. Broomfield, 19 Y.) 628.

Mo. 118. 8 Doe „. Milward, 3 M. & "W. 328;

2 Van Eensselaer v. Penniman, 6 Weddal v. Capes, 1 id. 50 ; Johnstone
"Wend. (N. Y.) 569; Livingston v. u. Huddlestone, 4 B. & C. 922.
Potts, 16 John. (N. Y.) 28. » Ante, p. 84.

SEO. 66.] ASSIGNMENT AND SUEKENDEB.

109

ative and invalid as a surrender or as a contract. Thus, in
a New York case,^ certain tenants who were holding under a
lease made in 1869, for ten years, under seal at a yearly-
rental of $5,000, claimed that prior to the sale of the
premises by the lessor in 1873 they entered into an agree-
ment with her by which she agreed to reduce the rent to
$4,000 a year. The agreement was not in writing, nor was
there any consideration therefor. The court held that there
was no surrender of the old lease, and that the agreement,
not being in writing or predicated upon a good consideration,
was void.2 The reason why the acceptance of a new lease

1 Coe V. Holiby, 72 N. Y. 141.

2 Allen, J., in delivering the opin-
ion of the court in Coe v. Hobby, ante,
said: "The defendants contend that
they are no longer liable upon and ac-
cording to the lease made in 1868, from
Mrs. Ingersoll, the plaintiff's grantor
and assignor, to the defendants, upon
the ground that by the act of the par-
ties and operation of law, the lease was
surrendered in 1872, and that from
that time the occupation of the
premises by the defendants has been
in pursuance of a new contract of
hiring, then made, at a different rent
and upon different terms. There
was no written surrender or cancel-
lation of the original lease; neither
was there any surrender of the posses-
sion of the demised premises, nor was
any authority or dominion over the
premises exercised by the landlord
inconsistent with the rights of the
tenant under that demise. Neither
was there at any time any contract
or lease, by deed or in writing, be-
tween the parties other than the
indenture of 1868. The claim is, that
there was a new letting of the prem-
ises by the lessor to the defendants at
the time mentioned, by parol, and
that by reason of such parol letting
the original lease, and the term there-
by created, were by act and oper-
ation of law surrendered. A surrender
is the restormg and yielding up an
estate or interest in lands to one who
has an immediate estate in reversion
or remainder, and by the statute of

frauds a term exceeding one year
cannot be surrendered, unless by act
or operation of law, or by a deed of
conveyance in writing. A surrender
is implied and so effected by operation
of law within the statute quoted,
when another estate is created by the
reversioner or remainder-man, with
the assent of the termor, incompatible
with the existing estate or term. In
the case of a term for years, or for
life, it may be by the acceptance by
the lessee or termor of an estate in-
compatible with the term, or by the
taking of a new lease by a lessee. It
will not be implied against the intent
of the parties, as manifested by their
acts ; and when such intention cannot
be presumed, without doing violence
to common sense, the presumption
will not be supported. Van Rens-
selaer's Heirs v. Penniman, 6 Wend.
(N. Y.) 569. In the case referred to,
the devisee of the lessor had made a
new lease to the assignee of the lessee
for the same time, and upon the same
conditions as the first lease, but it
was held that the original lease was
not thereby surrendered, but remained
in force, entitling the lessee and his
assignees to the benefits of its pro-
visions, and that under the circum-
stances the new lease was probably
given to confirm the prior lease, and
to give the lessee greater security for
his improvements than he had by the
first lease. There is an implication of
intention to surrender an existing
lease upon the giving of a second

110

STATUTE OP rEAXJDS.

[chap, n.

operates as a surrender of the old one is, because the lessee,
by accepting the new lease, has been a party to an act the

lease, for the reason that the lessor
cannot legally execute a second lease
of the same premises during the term
of a first lease ; and when the lessee
accepts a second lease unexplained,
he admits the power of the lessor
which he cannot legally have without
a surrender of the first. The pre-
sumption of law is, therefore, that a
surrender has been made. Livingston
V. Potts, 16 John. (N. Y.) 28; Schief-
felin V. Carpenter, 15 Wend. (N. Y.)
400. It is said in that case by Nel-
son, J., that unless such new lease be
executed so as to pass an Interest ac-
cording to the contract and intention of
the parties, it will not operate as a sur-
render of the prior lease by operation of
law. And it was so held where there
was a, parol letting for a term of
years to third persons, who had
entered into possession and paid rent
to the landlord for a portion of the
term agreed upon. The conclusion
was that a valid parol lease, since the
statute of frauds, might produce a
surrender in law, and that the true
rule was as laid down in 2 Starkie's
Ev. 342, that the taking a new lease
by parol is by operation of law a
surrender of the old one, although it
be by deed, provided it be a good one,
and pass an interest according to the
contract and intention of the parties;
for otherwise thfe acceptance of it is
no implied surrender of the old one.
See, also, Bedford t)..Terhune, 30 K
Y. 453, approving tliis case. See,
also, Eowan v. Lytle, 11 Wend. (N.
Y.) 617, and Lawrence o. Brown, 5
N. Y. 394. In England the rule is,
that if there be a tenancy under a
lease, and the parties make a verbal
agreement for a sufficient consider-
ation, that instead of the existing
term there shall be a tenancy from
year to year, at a different rent, that
would not be a surrender of the lease
by operation of law. Eoquet v. Moor,
7 Exch. 870. The farthest that our
courts have gone, is to hold that to

effect a surrender of an existing lease
by operation of law, there must be a
new lease, valid in law, to pass an in-
terest according to the contract and
intention of the parties. Within "this
rule there was no surrender of the
lease upon which this action is
brought. There was no new lease
which could take effect according to
the verbal contract of the parties as
stated by the defendant. The claim
is that in 1872, by the verbal agree-
ment of the parties, there was in effect
a new lease for the unexpired term of
seven years, at a reduced rent, with
liberty to the lessee to terminate the
lease at any time on giving three
months' notice. This could only
operate as a lease from year to year,
as long as the parties elected to con-
tinue the relation. Schuyler v. Leg-
gett, 2 Cow. {N. Y.) 660; People v.
Eickert, 8 id. 226; Lounsbery v.
Snyder, 31 N. Y. 514. This was not
the contract intended by the parties,
and there was therefore no surrender
of the existing lease implied by law
as resulting from the intention of the
parties. But there was no new lease,
or a letting from year to year, as the
legal result of a verbal lease for a
term of years. Assuming that the
contract and agreement of the parties
was, that from the time of making it
the rent should be reduced to ^4,000
per annum, and that the lessor should
have the right to terminate the lease
upon notice, and that such agreement
was valid, it was but a modification of
the terms of the original demise,
leaving all the other covenants and
conditions intact. There was no
agreement inconsistent with the exist-
ing lease, or any assumption of do-
minion over the estate by the lessor
Inconsistent with the term vested in
the lessee. Each, in dealing with the
other, dealt with matters over which
they had control under and by virtue
of the lease. The lessor assumed to
release Ms right to a portion of the

SEC. 66.]

ASSIGNMEaTT AND STJREENDER.

Ill

validity of which he is afterwards estopped from denying,
and which would not be valid if the first lease continued to
exist, for he would be estopped from saying that the lessor
had no power to make the new lease ; and as the lessor
could not grant the new lease until the first lease was
surrendered, the acceptance of the new lease is of itself a
surrender of the old.^ The question whether the taking of

rent, which he might lawfully do, and
the lessee undertook to yield con-
ditionally, and upon notice in the
future, a portion of his term. It can
not be assumed or implied from such
agreement that a surrender of the old
lease was contemplated by either
party. The lease continued in full
force, except as modified by the agree-
ment. It is preposterous to say that
a reduction of the rent is a surrender
of an existing lease, and the granting
of a new one. The new agreement in
such case is yirtually incorporated
into, and made a part of, the ante-
cedent agreement, and the two would
constitute the lease for the unexpired
term. Evans v. Thompson, 5 East,
193 ; Hasbrouck v. Tappen, 15 John.
(N. T.) 200. There was no surrender
of the lease by operation of law, for
the reason that there was no dealing
with the estate by the lessor incom-
patible with the lease, and no new
letting of the premises by parol or
otherwise. The defendants, in their
answer, and upon the trial, relied
upon an alleged surrender of the
lease ; but upon appeal they contend
that there was a valid agreement to
reduce the rent, and that they are
now entitled to the benefit of such
modification of the terms of the lease.
At most, the agreement alleged was
executory and verbal, and it is well
settled that before breach a covenant
or contract under seal cannot be
modified by a parol executory con-
tract. Delarnoix v. Bulkley, 13
Wend. (N. T.) 71; Hasbrouck v.
Tappen, ante.

1 In Lyon v. Eeed, 13 M. & W. 285,
Paeke, B., said : " The real question
for our consideration is, whether the

plaintifE has succeeded in showing
that the term of the 7th April was
surrendered previously to the exe-
cution of the indenture of the 31st of
August, 1812. On this subject it was
argued by the counsel for the plain-
tiff, first, that the circumstances of
the case warranted the conclusion
that there was an actual surrender in
fact; and if that be not so, then,
secondly, that they prove conclu-
sively a surrender in point of law.
We will consider each of these prop-
ositions separately. And first, as
to a surrender in fact. The subject-
matter of the lease of the 7th April,
1812, was, it must be observed, a
reversion; a matter, therefore, lying
in grant, and not in livery, and of
which, therefore, there could be no
valid surrender in fact otherwise than
by deed ; and what the plaintiff must
make out, therefore, on this part of
his case is, tliat, before the execution
of the first lease for ninety-nine years,
Ord and Planta, by some deed not
now forthcoming, assigned or sur-
rendered to the dean the interest
which they had acquired under the
lease of the 7th of April. But what
is there to warrant us in holding that
any such deed was ever executed'?
Prima facie a person setting up a deed
in support of his title is bound to
produce it. But undoubtedly this
general obligation admits of many
exceptions. Where there has been
long enjoyment of any right, which
could have had no lawful origin ex-
cept by deed, then, in favor of such
enjoyment, all necessary deeds may
be presumed, if there is nothing to
negative such presumption. Has
there, then, in this case been any

112

STATUTE OP FEATJDS.

[chap. n.

a new lease operates as a surrender of the old,^depends upon
the circumstance whether the new lease confers a neio interest so that

1 See also Beesell v. Liindsberg, 7 G. B. 638.

such enjoyment as may render it un-
necessary to show the deed on which
it has been founded t The only fact
as to enjoyment stated in this case
has precisely an opposite tendency;
it is stated, so far as relates to the
property, the rent of which forms the
subject of this action, namely, the
houses, etc., underlet to Eeed, that no
rent has ever been paid ; and there-
fore, as to that portion of the property
included in the lease of April, 1812,
there has certainly been no enjoy-
ment inconsistent with the hypothesis
that that lease was not surrendered.
The circumstances on which the
plaintiff mainly relies as establishing
the fact of a surrender by deed, are
the statements in the two leases to
Osborn and Burt, that they were
made in consideration, inter alia, of
the surrender of the lease of the 7th
April, and the fact of that lease being
found among the dean's instruments
of title. These circumstances, how-
ever, appear to us to be entitled to
very little weight. The ordinary
course pursued on the renewal of a
lease is for the lessee to deliver up
the old lease on receiving the new
one, and the new lease usually states
that it is made in consideration of the
surrender of the old one. No sur-
render by deed is necessary, where, as
is commonly the case, the former
lessee takes the new lease, and all
which is ordinarily done to warrant
the statement of the surrender of the
old lease as a part of the consider-
ation for granting the new one, is,
that the old lease itself, the parchment
on which it is engrossed, is delivered
up. Such surrender affords strong
evidence that the new lease has been
accepted by the old tenant, and such
acceptance undoubtedly operates as a
surrender by operation of law, and
so both parties get all which they
require. We collect from the docu-
ments that this was the course pur-

sued on occasion of making the lease
of the 26th of December, 1803, and
the lease of the 7th of April, 1812;
and we see nothing whatever to war-
rant the conclusion that anything
else was done on occasion of mak-
ing the lease to Osborn and Burt.
.Where a surrender by deed was un-
derstood by the parties to be neces-
sary, as it was with reference to the
term assigned to Barber and Pany,
there it was regularly made, and the
deed of surrender was endorsed on
the lease itself. There is no reason
for supposing that the same course
would not have been pursued as to
the lease of April, 1812, if the parties
had considered it necessary. If any
surrender had been made, no doubt
the deed would have been found with
the other muniments of title. No
such deed of surrender is forthcom-
ing, and we see nothing to justify us
in presiiming that any such deed ever
existed. We may add, that the state-
ment in the new lease, that the old
one had been surrendered, cannot
certainly of itself afford any evidence
against the present defendants, who
are altogether strangers to the deed
in which those statements occur. It
remains to consider whether, although
there may have been no surrender
in fact, the circumstances of the
case will warrant us in holding that
there was a surrender by act and
operation of law. On the part of the
plaintiff it is contended, that there is
sufficient to justify us in conung to
such a conclusion, for it is said, the
fact of the lease of the 7th of April,
1812, being found in possession of the
dean, even if it does not go the length
as establishing a surrender by deed,
yet furnishes very strong evidence to
show that the new lease granted to
Osborn and Burt was made with the
consent of Ord and Planta, the lessees
under the deed of the 7th of April,
1812. And this, it is contended, on

SBC. 66.]

ASSIGNMENT AND STTREENDBK.

113

the two cannot stand together because inconsistent with each other. •
Thus, where a tenant under a lease of a house for a term of

> Gybson v. Searl, Cro. Jao. 177 ; Gie v. Rider, Sid. 76.

the authority of Thomas v. Cooke, 2
B. & Aid. 119, and Walker v. Richard-
son, 2 M. & W. 882, is sufficient to
cause a surrender by operation of
law. In order to ascertain how far those
two oases can be relied on as authori-
ties, we must consider what is meant
by a surrender by operation of law.
This term is applied to cases where
the owner of a particular estate has
been a party to some act, the validity
of which he is by law afterwards es-
topped from disputing, and which
would not be valid if his particular
estate had continued to exist. There
the law treats the doing of such act
as amounting to a surrender. Thus,
if lessee for years accept a new lease
from his lessor, he is estopped from
saying that his lessor had not power
to make the new lease ; and, as the
lessor could not do this until the prior
lease had been surrendered, the law
says that the acceptance of such new
lease is of itself a surrender of the
former. So, if there be tenant for
life, remainder to another in fee, and
the remainder-man comes on the land
and makes a feoffiuent to the tenant
for life, who accepts livery thereon,
the tenant for life is thereby estopped
from disputing the seizin in fee of the
remainder-man, and so the law says,
that such acceptance of livery
amounts to a surrender of his life
estate. Again, if tenant for years
accepts from his lessor a grant of a
rent issuing out of the land and pay-
able during the term, he is thereby
estopped from disputing his lessor's
right to grant the rent, and as this
could not be done during his term,
therefore he is deemed in law to have
surrendered his term to the lessor.
It is needless to multiply examples;
all the old eases will be found to
depend on the principle to which we
have adverted, namely, an act done by
or to the owner of a particular estate,
the validity of which he is estopped

from disputing, and which could not
have been done if the particular
estate continued to exist. .The law
there says, that the act itself amounts
to a surrender. In such case it will
be observed there can be no question
of intention. The surrender is not the
result of intention. It takes place inde-
pendently, and even in spite of intention.
Thus, in the cases which we have
adverted to of a lessee taking a
second lease from the lessor, or a
tenant for life accepting a feofEment
from the party in remainder, or a,
lessee accepting a rent-charge from
his lessor, it would not at all alter
the case to show that there was no
intention to surrender the particular
estate, or even that there was an ex-
press intention to keep it unsur-
rendered. In all these cases the
surrender would be the act of the
law, and would prevail in spite of the
intention of the parties. These prin-
ciples are all clearly deducible from
the cases and doctrine laid down in
EoUe, and collected in Viner's Abridg-
ment, tit. ' Surrender,' F. and G., and
in Comyns' Dig., tit. 'Surrender,' T.
and I. 2, and the authorities there
referred to. But, in all these cases,
it is to be observed, the owner of the
particular estate, by granting or ac-
cepting an estate or interest, is a
party to the act which operates as a
surrender. That he agrees to an act
done by the reversioner is not suf-
ficient. Brooke, in his Abridgment,
tit. 'Surrender,' pi. 48, questions the
doctrine of Pkowike, C. J., who says :
'If a termor agrees that the rever-
sioner shall make a feofEment to a
stranger, this is a surrender,' and
says he believes it is not law; and
the contrary was expressly decided in
the case of Swift v. Heath, Carthew,
110, where .it was held, that the con-
sent of the tenant for life to the
remainder-man making a feoffment to
a stranger, did not amount to a sur-

114

STATUTE OF FRAUDS.

[CHAP. n.

years accepts a grant of the custody of the same house, it is
a surrender, because a grant of the custody of a thing which

render of the estate for life, and to
the same effect are the authorities in
Viner's Abr., ' Surrender,' F. 3 and 4.
If we apply these principles to the
case now before us, it will be seen
that they do not at all warrant the
conclusion that there was a surrender
of the lease of the 7th of April, 1812,
by act and operation of law. Even,
adopting, as we do, the argument of
the plaintiff, that the delivery up by
Ord and Planta of the lease in ques-
tion alfords cogent evidence of their
having consented to the making of
the new lease, still there is no estoppel
iu such a case. It is an act which,
like any other ordinary act in pais, is
capable of being explained, and its
effect must therefore depend, not on
any legal consequence necessarily
attaching on and arising out of the
act itself, but on the intention of the
parties. Before the statute of frauds,
the tenant in possession of a corporeal
hereditament might surrender his
term by parol, and therefore the cir-
cumstance of his delivering up his
lease to the lessor might afford strong
evidence of a surrender in fact ; but
certainly could not, on the principles
to be gathered from the authorities,
amount to a surrender by operation
of law, which does not depend on
intention at all. On all these grounds,
we are of opinion that there was in
this case no surrender by operation
of law, and we should have consid-
ered the case as quite clear had
it not been for some modern cases,
to which we must now advert.
The first case, we believe, iu which
any intimation is given that there
could be a surrender by act and oper-
ation of law by a demise from the
reversioner to a stranger with the
consent of the lessee, is that of Slone
V. Whiting, 2 Stark. 230, in which
HoLKOYD, J., intimates his opinion
that there could; but there was no
decision, and he reserved the point.
This was followed soon afterwards by

Thomas v. Cooke, 2 Stark. 408; 2 B.
& Aid. 119. That was an action of
debt by a landlord against his tenant
from year to year, under a parol
demise. The defence was, that the
defendant Cooke, the tenant, had put
another person (Parkes) in possession,
and that Thomas, the plaintiff, had,
with the assent of Cooke, the defend-
ant, accepted Parkes as his tenant,
and that so the tenancy of Cooke had
been determined. The Court of
King's Bench held, that the tenancy
was determined by act and operation of
law. It is matter of great regret that a
case involving a question of so much
importance and nicety should have
been decided by refusing a - motion
for a new trial. Had the case been
put into a train for more solemn
argument, we cannot but think that
many considerations might have been
suggested which would have led the
court to pause before they came to
the decision at which they arrived.
Mr. Justice Batley, in his judgment
says, the jury were right in finding
that the original tenant assented,
because, he says, it was clearly for
his benefit, an observation which
forcibly shows the uncertainty which
the doctrine is calculated to create.
The acts in pais which bind parties
by way of estoppel are but few, and
are pointed out by Lord Coke, Co.
Litt. 352 a. They are all acts which
anciently really were, and in contem-
plation of law have always continued
to be, acts of notoriety, not less for-
mal and solemn than the execution of
a deed, such as livery, entry, acceptance
of an estate, and the like. Whether a
party had or had not concurred in an
act of this sort was deemed a matter
which there could be no difficulty in
ascertaining, and then the legal con-
sequences followed. But in what
uncertainty and peril will titles be
placed, if they are liable to be affect-
ed by such accidents as those alluded
to by Mr. Justice Bayley. If the

SEC. 66.]

ASSIGNMENT AND STJEKENDEE.

115

was leased before, is another interest in the same thing leased,
and cannot stand with the first lease.^ But the taking of a
new lease, to commence upon the expiration of the old lease,
does not operate as a surrender of the latter, because the
second lease being reversionary, is not inconsistent with the
existing demise,^ nor does the acceptance of a lease to com-

1 Gybson v. Searl, ante; Arundale
c. Gray, 2 Dyer, 200 j "Woodward „.
Aston, 1 Vent. 296.

doctrine of Thomas v. Cooke should
be extended, it may very much affect
titles to long terms of years, mortgage
terms, for instance, in which it fre-
quently happens that there is a con-
sent, express or implied, by the legal
' termor to a demise from a mortgagor
to a third person. To hold that such
a transaction could, under any cir-
cumstances, amount to a surrender by
operation of law, would be attended
with most serious consequences.
The case of Thomas v. Cooke has
been followed by others, and acted
upon to a considerable extent. What-
ever doubt, therefore, we might feel
as to the propriety of the decision,
that in such a case there was a sur-
render by act and operation of law,
we should probably not have felt
ourselves justified in overruling it.
And, perhaps, the case itself, and
others of the same description, might
be supported upon the ground of the
actual occupation by the landlord's
new tenants, which would have the
effect of eviction by the landlord
himself in superseding the rent or
compensation for use and occupation
during the continuance of that occu-
pation. But we feel fully warranted
in not extending the doctrine of that
case, which is open to so much doubt,
especially as such a course might be
attended with very mischievous con-
sequences to the security of titles.
If, in compliance with these cases,
we hold that there is a surrender by
act and operation of law where the
estates dealt with are corporeal and
in possession, and of which demises
may therefore be made by parol or

2 Rawlings v. "Walker, 5 B. & C.
Ill ; Anon., Dal. 74 pi. 58.

writing, and where there is an open
and notorious shifting of the actual
possession, it does not follow that we
should adopt the same doctrine where
reversions or incorporeal heredita-
ments are disposed of, which pass
only by deed. "With respect to these,
we think we ought to abide by the
ancient rules of the common law,
which have not been broken in upon
by any modern decision, for that of
"Walker v. Richardson, 2 M. & "W.
882, which has been much relied on
in argument, is not to be considered
as any authority in this respect, inas-
much as the distinction that the right
to tolls lay in grant was never urged,
and probably could not have been
with success, as the leases, perhaps,
passed the interest in the soil itself.
Moreover, according to the report of that
case, it would seem that the new
lessees had, before they accepted
their lease, become entitled to the old
lease by an actual assignment from
the old lessee. If this were so, then
there could, of course, be no doubt
but that the old lease was destroyed
by the grant and acceptance of the
new one. It is, however, right to say,
that w# believe this statement to have
crept into the report inadvertently,
and that there was not, in fact, any
such assignment. The result of our
anxious consideration of this case is,
that the verdict on the issues on the
first plea and on the rejoinder to the
replication to the fifth plea, must be
entered for the defendants, and as
those pleas go to the whole cause of
action, the judgment must be for
them."

116 STATUTE OP FBAtTDS. [CHAP. H.

melace upon a contingency which may not occur until after
the termination of the first term ; as, if a lessee for a term of
twenty years, takes a lease of the same lands for forty years,
to commence upon the death of a certain person named, the
acceptance of such lease does not operate a present surrender
of the first lease, because the contingency may not occur
during the term ; but if it does occur, the acceptance of the
last lease operates as a surrender of the first from the date
of its occurrence,^ even though the second lease is afterwards
defeated by the non-performance of a condition subsequent.^
So if a lessee for twenty years accepts a new lease for ten
years, to begin at a certain fixed period, the term of twenty
years is thereby surrendered immediately, because by the
acceptance of the new lease he admits that the lessor is in
a situation to lease to him, notwithstanding the existence of
the other lease.^ But a mere agreement for a new lease is

' Anon., Leon, 30 pi. 83. In case Roll. Abr. 496, pi. 15. So, according

the contingency does occur, what is to Tanfield, J., if a man possessed of

left of the old term is surrendered Black Acre and other lands in D, let

and gone, because the new lease then ^Black Acre for twenty-one years, and

becomes instantly operatire. Bacon's the next day let (to the same person)

Abr. tit. " Leases," § 3. all his lands in D for ten years, it is

2 Plowden, 107 6. not a surrender of Black Acre; but

3 Ives V. Sams, Cro. Eliz. 522 ; amounts to a lease of all the other
Hutching v. Martin, id. 604. The lands, which may well stand with
early books are not agreed as to the the former lease. Id. ; and Cro. Jae.
principle on which these cases of im- 84. So, acceptance of the equitable
pUed surrenders depend. Coke states interest in a lease made to a friend as
it to be, that, by taking the new in- a trustee will not work a surrender of
terest, the lessee affirms the lessor's a former lease held by a cestui que
ability to confirm it; an ability he trust. Gie v. Eider, 1 Sid. 75; Jay w.
cannot possess if the first lease is to Eider, 1 Keb. 285. And it is held
stand; such new interest, therefore, that the lessee's acceptance of an
being regarded as inconsistent with, office collateral to the lands demised
and destructive of, the lessee's former — as by a lessee of a park, of the
estate. Ive's Case, 5 Coke, 11 6. office of park-keeper; or by a lessee
The principle propounded ii#Lyou v. for years of a manor, of the office of
Eeed has already been noticed, ante, surveyor, bailiff, or steward thereof —
p. 111. But there will be no sur- will not effect a surrender by oper-
render if a lessee for years takes a ation of law. And, on the same prin-
grant of a rent-charge out of the same ciple, if a lessor makes a feoffment,
lands for life, or without limiting the and appoints the lessee his attorney
period of its commencement ; or if a to deliver seizin, it Is not a surrender,
lessee for life takes a grant for years ; as the livery is made by the lessee in
for in each case he may have the his official capacity. 1 Dy. 33 6. In
benefit of the rent after the determi- cases of surrender by operation of
nation of the estate in the land, law, it must be understood that the
Gybson v. Searl, Cro. Jac. 176-7; 2 lessee takes the actual interest contracted

SEC. 66.]

ASSIGNMENT AND STJEEENDER.

117

not sufficient to create an implied surrender of the old one,^
nor is the acceptance of a new lease in trust for another.'*
A notice given by the tenant to the landlord of his intention

for under the second lease; for it is
settled, in opposition to some early
cases: Whitley v. Gough, 2 Dy. 140
b; Mallows v. May, Cro. Eliz. 873;
Corbet's Case, 3 Dy. 280 a. And see
Brewster v. Parrot, Cro. Eliz. 264,
that the acceptance of a new lease which
is void will not effect an extinguishment
of the one previously subsisting. Baker
V. Willoughby, cited, Hutt. 105;
Lloyde v. Gregory, Cro. Car. 502;
"Watt u. Maydewell, Hutt. 104-5;
Wilson V. Sewell, 4 Burr. 1975 ; Brom-
ley V. Stanley, 4 Burr. 2210 ; Earl of
Berkeley v. The Archbishop of York,
6 East, 86; Hamerton v. Stead, 3 B.
& C. 481; Bishop of Rochester v.
Bridges, 1 B. & Ad. 874; Lowther v.
Troy, 1 It. T. K. 192. And, accord-
ingly, where a lessee for years under
the crown took a new lease for years
of the same estate, which was void
for want of a recital of the former
lease, it was held that the former was
not surrendered. Harris v. Wing, 3
Leon. 242 ; Wing v. Harris, Cro. Eliz.
231 ; cited, Cro. Car. 198. So, where
one seized in fee granted a lease for
ninety-nine years, and having in the
interim made a settlement, and taken
back an estate for life only, granted,
previously to the determination of the
former, a new lease of ninety-nine
years, to the same lessee, who was not
informed of the settlement, and then
died, the court held that the latter
did not annul the former, as it would
be inconsistent with the intention of
the parties to the contract, that an in-
valid lease should be substituted for
a valid one. Bromley v. Stanley,' 2
Burr. 2210. So a contract by a tenant
from year to year with his landlord
to purchase the fee will not amount
to a surrender by operation of law of
the existing tenancy, unless the tenant's
continuance in possession is clearly
referable to an agreement for holding
as tenant at will under the contract.
Denison v. Wertz, 7 S. & R. (Penn.)

372. If the contract is conditional to
purchase only provided a good title
be made out, and to pay the purchase-
money when that shall have been
done, and the estate conveyed, there
is no room for imj)lying any agree-
ment as tenant at will in the mean
time, the effect of which would be
absolutely to surrender the existing
term, whilst it would be uncertain
whether the purchase would be com-
plete or not. Gray v. Stanion, 1 M.
& W. 695. So, an agreement for a
new lease will not put an end to a
former tenancy, unless a new tenancy
is actually created. But if a tenant
from year to year agrees during a,
current year to take a lease of the
premises jointly with another, and he
and his co-tenant actually enter and
enjoy the property, this joint occu-
pation, coupled with the agreement,
will operate as a surrender in law of
the separate tenancy: Hamerton v.
Stead, 3 B. & C. 478; Jay v. Ryder, 1
Keb. 285; Gie v. Rider, 1 Sid. 75;
Perryn v. Allen, Cro. Eliz. 173. It is,
however, to be observed, that, with
regard to an actual surrender by deed,
a different rule prevails. The Bishop
of Rochester v. Bridges, 1 B & Ad.
847. In Dankersley v. Levy, 38 Mich.
54, an agent executed a lease to cer-
tain parties for his principal while it
was still in force, the principal exe-
cuted a lease of the same premises to
the agent, who then verbally leased
them to the same tenants, for a
smaller rent than before, who con-
tinued in possession without change.
It was held, that the original lease
was surrendered by operation of law,
and not assigned to the agent, and
consequently that he could not claim
the rent under the old lease.

1 John V. Jenkins, 1 C. & M. 227;
Parris v. Allen, Cro. Eliz. 173.

2 Comyn's Dig. tit. Surrender (H.)
(D. 1.).

118 STATUTE OP FEATJDS. [CHAP. II.

to quit does not operate as a surrender,^ but a written
request by the tenant to his landlord to re-let the premises
to some other person, if acted upon by the landlord, amounts
to a surrender by operation of law,^ and it has been held that
the same result ensues when the premises are re-let at the
request of a surety for the lessee ; ^ but we apprehend that
the latter doctrine can only apply where the tenant has
abandoned the possession of the premises. Provision may
be made in the lease itself for its surrender by the tenant
upon doing certain things : he can only surrender the lease
in the mode named therein,* unless he can clearly establish a
waiver by the landlord, of the modes named in the lease ; as,
where notice in writing is named, that the .landlord waived
such notice and accepted the possession.^ A recital in a
second lease, that it was granted in consideration of the
surrender of the first, is not a surrender by deed or note in
writing, as it does not purport to be of itself a surrender or
yielding up of the interest in the first lease.®

Sec. 67. Effect of 'Sew Lease of a Part of Premises. — If a

tenant accepts a new lease of a part of the premises embraced
in a prior lease, such new lease operates only as a surrender
of that part only, and does not affect his interest in the
remainder of the premises ; '^ and the rule that a contract for

1 Bessell v. Landsberg, 7 Q. B. 638 ; of the copyholders. But on the part

Murrell v. Milward, 3 M. & W. 328. of the defendant it was shown, that

^ Nickells v. Atherstone, 10 Q. B. King Henry III., in the 16th year of

944. his reign, granted by charter under

8 McKenzie v. Tarrell, 4 Bos. (N. the great seal of the then Bishop of

Y.) 192. Winchester and his successors free

^ Kettle V. St. John, 7 Neb. 73. warren in all their demesne lands of all

* Farson v, Goodale, 8 Allen their manors in England; and it was

(Mass.) 202. contended that, by this grant, the

8 Berkley v. York, 6 East, 86 ; bishop and all deriring title under

Egremout v. Courtnay, 11 Q. B. 702. him were estopped from setting up

' Fish V. Campion, 2 Eoll. Abr. 498 the original title 'by prescription, and

(M.) ; "Williams u. Sawyer, 3 B. & B. so that the free warren over the lands

70; Morrison v. Chadwick, 7 C. B. of the copj/XoWers was gone; no such

266. In Earl CamarTon v. Villebois, right having been conveyed by the

13 M. & W. 313, Aldbeson, B., said : charter, which was confined to the

"At the trial, the plaintiff established demesnes. The defendant, in support

his title by prescription through the of this proposition, relied on Com.

bishops of Winchester to a general Dig. tit. Prescription (G), and 17

right of free warren over all the lands Vin. Ahridg. tit. Prescription, (T),

of these manors, including the lands pi. 5, and several old authorities there

SEC. 68.] ASSIGNMENT AND SUEKBNDEE.

119

years cannot be divided or severed so as to be good for a
part of the term, and avoided as to the residue, has no
application because, while the contract cannot be divided,
the land may be, and the tenant may surrender a part, either
expressly or by operation of law, and the lease will stand
good as to the residue.^ An unconditional assignment of a
lease to the lessor operates as a surrender, but a conditional
assignment for collateral purposes only, as to secure a loan,
etc., does not so operate.^

Sec. 68. Acceptance of a New Lease. — If a lessee for years
accepts a new lease from his lessor, he is estopped from saying
that his lessor had not power to make the new lease ; and as
the lessor could not do this until the prior lease had been
surrendered, the law says that the acceptance of such new
lease is of itself a surrender of the premises.^ So if there is
a tenant for life remainder to another in fee, and the remain-
der-man comes on the land, and makes a feoffment to the
tenant for life, who accepts livery thereon, the tenant for

referred to, particularly a case frpm
the Year Books, 21 Hen. 7, fo. 5, and
Brooke's Abridg., Estoppel, 210, and
Prescription, 102. It may well be
doubted whether any such principle
as that contended for can be applied
to a grant like the present, which
probably was never intended as any
thing more than a confirmation of
rights already existing. It is not,
however, necessary to go into this
question, for it is clear the doctrine
is not applicable to the case where the
subject-matter of the grant and of the
prescription are different. Now here,
adopting the argument of the defend-
ant that the copyholds are not to be
considered as demesnes, then it fol-
lows that the prescriptive right was
one which extended over two descrip-
tions of land, namely, 'copyholds and
demesnes. The grant was of a right
over demesnes only. In such a state
of things, it appears to us clear that
the grant could not affect the pre-
scription so far as related to the
copyholds. It is, as was put by Mr.
Smikke in his argument, to be likened

to the case of tenant for years or for
life of Blackacre and Whiteacre ac-
cepting from his lessor a new lease of
Blackacre only. This is, no doubt, a
surrender by operation of law of
Blackacre, but it in no respect affects
the title to Whiteacre. On this short
ground, even asuming that the charter
in question is to be construed as a
grant and not as a confirmation, and
that it was duly accepted by the
grantee, and that its effect was to
destroy the prescriptive title to the
free warren over the demesnes, still it
left the right over the lands of the copy-
holders untouched."

1 Bacon's Abr. tit. Leases, § 3.

2 Breese v. Bangs, 2 E. D. S. (N. Y.
C. P.) 474.

8 Lyon V. Eeed, 13 M. & W. 305 ;
13 L. J. Ex. 377, per Pakke, B.; and
see Bernard v. Bonner, Aleyn. 59;
Ives V. Sams, Cro. Eliz. 521 ; Hutchins
V. Martin, ib. 505; Mallows v. May,
ib. 874; Gybson v. Searl, Cro. Jac.
177; Crowley v. Vitty, 7 Exch. 319;
Pumivall V. Grove, 8 C. B. (N. S.)
496.

120 STATUTE OF FEAT7DS. [CHAP. II.

life is thereby estopped from disputing the seizin in fee of
the remainder-man ; and so the law says such acceptance of
livery amounts to a surrender of his life estate. Again, if
tenant for years accept from his lessor a grant of a rent
issuing out of the land and payable during the term, he is
thereby estopped from disputing his lessor's right to grant
the rent, and as this could not have been done during his
term, therefore he is deemed in law to have surrendered his
term to the lessor.^ In these cases it will be observed there
can be no question of intention ; it is the act of the law, and
will prevail in spite of the intention of the parties.^

Sec. 69. New Lease need not be in Writing. — In Magennis
V. MacCullogh,3 Loed C. B. Gilbert said that the words
" by act and operation of law " are to be construed a surren-
der in law by the taking a new lease which, being in writing,
is of equal notoriety with a surrender in writing.* Accord-
ing to this reasoning the new lease must be in writing. But
in Thomas v. Cook,^ the tenancy, which was from year to
year, was created by parol, and was held to have been
surrendered by a parol under-lease, and the acceptance of
the new tenant by the landlord, and therefore it would
seem that the acceptance of a lease to himself by parol, by
the old tenant, wiU be a surrender of the existing lease.® A
recital in a second lease, that it was granted in consideration
of the surrendering up into the hands of the lessor by the
lessee at or before the delivery thereof of the lease first
granted, is not a sufficient surrender.'^

Sec. 70. Agreement for New Lease. — A mere agreement
to grant a new lease will not put an end to the tenancy
unless a new tenancy is actuq^y created.^ Thus where the

1 Lyon V. Reed, 13 M. & "W. 305; < And see Roe v. Abp. of York, 6

13 L. J. Ex. 377, per Pakke, B.; and East, 86.

see Bessell v. Landsberg, 7 Q. B. 640 ; » 2 Stark. 408 ; 2 B. & Aid.' 119.

14 L. J. Q. B. 355 ; Mokells v. Ather- « See 1 Wm. Saund. 203, n. u.
stone, 10 Q. B. 944; 16 L. J. Q. B. ' Doe v. Courtenay, 11 Q. B. 702;
371 ; Vin. Abr. tit. Surrender (F. & 17 L. J. Q. B. 151 ; Roe v. Abp. of
G.), Com. Dig. tit. Surrender (T. & J.). York, 6 East, 86.

2 Lyon V. Reed, 13 M. & W. 306 ; » Hamerton v. Stead, 3 B. & C. 482 ;
13 L. J. Ex. 377. 6 D. & E. 206.

8 GHb. Eq. Rep. 236,

SEO. 72.] ASSIGNMENT AND SUEEBNDEE. 121

tenant agreed to relinquish his interest under his lease, and
to accept a fresh lease, and to hold the premises as tenant
from year to year until such lease was tendered, and no lease
was executed : in an action for rent it was argued for the
defendant that, if there is a tenancy under a lease, and the
parties make a verbal agreement for a sufficient considera-
tion, that instead of the existing term, there should be a
tenancy from year to year, at a different rent, that would be
a surrender of the lease by operation of law ; but it was held
that the term created by the existing lease would not be de-
termined until the new lease was executed.^ So also an
agreement between the lessor and a stranger, that the lessee
shall have a new lease, is not a surrender .^ But if a' tenant
from year to year of premises gives them up to the landlord
in pursuance of a parol agreement that the tenant shaU take
other rooms upon the same terms, this amounts to a sur-
render.^

Sec. 71. New Lease to Begin Presently. — Where a lessee
for twenty-one years took a lease of the same lands for forty
years, to begin immediately after the death of J S, it was
held that this was not any present surrender of the first term,
because J S might wholly outlive that term, and then there
would be no union to work a surrender; and it being in
equilihrio in the meantime whether he would survive it or
not, the first term should not be hurt till that contingency
happened ; for if J S died within the first term, then what
remained of it was surrendered and gone by the taking place
of the second.*

Sec. 72. "What is a Sufficient New Lease. — If a lessee
accepts a new lease de vestura terrae, it will be a surrender.^
So, also, if he accepts a grant of common, or rent out of the
same land, to commence at a certain day within the term.^

1 Foquet v. Moore, 7 Exch. 870 ; " Perry v. Allen, Cro. Eliz. 173.
22 L. J. Ex. 35; and see John v. Jen- » Giles v. Spencer, 3 C. B. (N. S.)

kins, 1 Cr. & M. 227 ; Crowley v. Vitty, 251.

7 Exch. 319 ; Badeley v. Vigurs, 4 E. * Bac. Abr. tit. Leases, § 2.
& B. 71 ; 23 L. J. Q. B. 377 ; 23 L. T. « Com. Dig. tit. Surrender (T.) 1.
297; Whitley w. Gongh, Dyer, 140 5; « Mallows v. May, Cro. Eliz. 174;

Weddall v. Capes, 1 M. & W. 51 ; Doe Gybson v. Searl, Cro. Jac. 176.
V. MUward, 3 M. & "W. 328.

122 STATUTE or FEATJDS. • [CHAP. II.

Where the lessee for years of a house accepts a grant of the
custody of the same house, that is a surrender ; for the cus-
tody of the same thing which was let before is another in-
terest in the same thing leased, and cannot stand with the
first lease.i If the sovereign grants an ofl&ce by patent, or
makes a demise for years, the acceptance of a new patent in
the one case, or of a new lease in the other, is no surrender
of the first grant.^ So where a lessee for years of a park or
a manor accepts a grant of the office of park-keeper of the
same park for his life, or takes a lease of the bailiwick of the
manor, that is not a surrender, because it is an office collat-
eral to the land ; ^ and the acceptance of a new lease in trust
is not a good surrender.* If a lessee for twenty years takes
a lease for ten years, to begin at Michaelmas, there is no
doubt but that the term for twenty years is surrendered or
determined presently; for by the lessee's acceptance the
lessor hath power to make a new lease during the former.^
Where the lessee for years of an advowson was presented to
the advowson by the lessor, it was adjudged to be a sur-
render of his term.®

If a lessee re-demises his whole term to the lessor with a
reservation of rent, it will operate as a surrender.'^ Where
the tenant, by letter, authorized the lessor to let the premises
to any one else, and the lessor did so, and the new tenant
entered into possession, it was held that there was a sur-
render by operation of law.^ If there be two lessees for life,
or years, and one of them takes a new lease for years, this is
a surrender of his moiety.^ Again, if a lessee for years of
lands accepts a new lease by indenture of part of the same
lands, that is a surrender of that part only, and not for the
whole, because there is no inconsistency between the two
leases, for any more than that part only which is so doubly
leased, and though a contract for years cannot be so divided
and severed as to be avoided for part of the years, and to

1 Gybson v. Searl, Cro. Jac. 177 ; « jygg „, Sams, Cro. Eliz. 522 ; Hut-
Earl of Arundel «. Lord Gray, Dyer, chins v. Martin, ib. 605.

■ 200 b. e Gybson v. Searl, Cro. Jac. 84.

2 Brook «. Goring, Cro. Car. 197. ' Loyd v. Langford, 2 Mod. 174;
8 Gybson v. Searl, Cro. Jac. 176; Smith v. Mapleback, 1 T. R. 441.

Woodward v. Aston, 1 Vent. 296. « Nickells v. Atherstone, 10 Q. B.

4 Gie V. Ryder, Sid. 75; Com. Dig. 944; 16 L. J. Q. B. 371.
tit. Surrender (H.) L. 1. 9 Shep. Touch. 302.

SEC. 74.] ASSIGNMENT AND STJERENDER. 123

subsist for tlie residue, either by act of the party or act in
law, yet the land itself may be divided or severed, and he
may surrender one or two acres either expressly or by act
in law, and yet the lease for the residue stands good and un-
touched, because here the contract for the residue remains
entire, whereas in the other case the contract for the whole
would be divided, which the law will not allow.^

In Morrison v. Chadwick,^ the landlord evicted his tenant
from a part of the demised premises. It was held that the
entire rent was suspended during the continuance of the
eviction ; but that the tenancy was not put an end to, nor
was the tenant discharged from the performance of his cove-
nants, other than the covenant for the payment of rent.

Sec. 73. Term Taken in Execution. — A sheriff who takes
a term in execution under a writ of fieri facias, and sells,
must execute an assignment of the term, according to the
provisions of the statute, or the term will still remain in the
debtor, and the purchaser will have no defence in an action
for the recovery of lahd.^

Sec. 74. New Iiease Voidable on Condition may be Sur-
render. — The acceptance of a new lease, made voidable upon
condition, may be a surrender by operation of law, if ren-
dered Toid according to the contract ; * for the surrender, by
taking the new lease, is executed absolutely at the time, and
it is not defeated, although the condition makes the second
lease void, ah initio, for various purposes.^

But no surrender, express or implied, in consideration of a
new lease, will bind if the new lease is absolutely void ; for
the ground of the surrender fails.^ It creates no new estate,

1 Bac. Abr. tit. Leases, § 3; citing Wilson v. Sewell, 4 Burr, 1980; Eoe
Fish V. Campion, 2 Roll. Abr. 498 ; v. Abp. of York, 6 East, 102 ; Doe v.
see also Earl of Carnarvon v. Ville- Courtenay, 11 Q. B. 712 ; 17 L. J. Q.
bois, 13 M. & W. 342. B. 151 ; Doe v. Poole, ib. 716 ; 17 L.

2 7 C. B. 266 ; 6 D. & L. 567 ; 18 J. Q. B. 143. No Implied surrender
L. J. C. P. 189. by the grant of a new lease will take

' Doe V. Jones, 9 M. & "W. 372. effect if the new lease is absolutely

* Doe V. Poole, 11 Q. B. 716. void: Abbott w. Parsons, 3 Burr, 1807 ;

6 Fulmerston v. Steward, Plowd. "Wilson v. Sewell, 4 Burr, 1980; 1 W.

107 ; and see Eoe v. Abp. of York, 6 Blac. 617 ; Earl of Berkeley v. Abp.

East, 102, and Co. Litt. 45 a. of York, 6 East, 86 ; Bromley v. Stan-

6 Zouch V. Parsons, 3 Burr, 1807 ; ley, 4 Burr, 2210 ; Earl of Egremont

124

STATUTE OP FEATJBS.

[chap. n.

and is no estate inconsistent with the tenant's former inter-
est.^ Besides, a void contract for a thing that a man cannot
enjoy, cannot in common sense or reason imply an agreement
to give up a former contract.^ But where tenant from year
to year entered into an agreement during a current year for
a lease to be granted to him and A B, and from that time
A B entered and occupied jointly with him, it was held that
by this agreement, and the joint occupation under it, the
former tenancy was determined, although the lease contracted
for had never been granted, Abbott, C. J., saying : " In Roe
V. The Archbishop of York, the occupation, by virtue of the
new lease, took place under a mistaken idea that it was a
good and valid lease ; and when that was discovered to be

V. Courtenay, 11 Q. B. 702; Smith,
L. & T. 307, 2d ed.; 3 Priest. Conv.
164, 166 ; or if the new lease does not
pass an interest according to the con-
tract and intention of the parties, an
acceptance of it does not amount to
an implied smrender of the old lease :
Com. Dig. tit. Estates (G.) 13; Whit-
ney V. Myers, 1 Duer, 266 ; Schiefflin
V. Carpenter, 15 Wend. (N. Y.) 400;
Eton V. Luyster, 60 N. Y. 252. The
acceptance of a voidable lease which
is afterwards made void contrary to
the intention of the parties, but which
has operated to pass some part of the
term contracted for, is not a surrender
of a valid former lease inconsistent
therewith: therefore, where a tenant
for life, with a power of leasing, made
a lease of part of some land, which
was not a good execution of the power,
in consideration of the surrender of
two prior leases of the whole of the
land, and in order to effectuate an
agreement entered into between the
lessee .and aijother person for the sale
of the remaining part of the land,
which the lease recited that it was
intended to lease to the vendee by
indenture of even date, and which
was done, it was held, after the death
of the tenant for life, that this new
lease as to the premises thereby de-
mised did not operate as a surrender
of the two prior leases : Biddulph v.
Poole, 11 Q. B. 713 ; Earl of Berkeley

V. Abp. of York, 6 East, 86 ; 2 Smith,
L. C. 655, 4th. ed. ; Smith, L. & T. 308,
2d ed. So where a tenant for life,
with power of leasing, granted a lease
in "consideration of the surrender up "
of a former lease, "which surrender
is hereby made and accepted," it was
held, the new lease not being a good
execution of the power, and therefore
voidable, did not operate as a sur-
render of the prior lease : Earl of
Egremont v. Courtenay, 11 Q. B.
702; overruling Earl of Egremont v.-
Forwood, 3 Q. B. 627. Where a void-
able lease, which had been granted in
consideration of a surrender by deed
executed a few days before of a prior
lease, was avoided, it was held that
the first lease was not revived by such
avoidance. Murray v. Bridges, 1 B. &
Aid. 847. A surrender is effected if
the tenant relets to his landlord for
the entire term, reserving an annual
rent : Lloyd v. Langford, 2 Mod. 174 ;
Winton v. Pinkeney, 2 Lev. 80;
Wilson V. Pig, 3 Keb. 95 ; Gartwright
V. Pinkeney, 1 Vent. 272; Smith v.
Mapleback, 1 T. R. 441 ; though not
if he retains a reversion : 2 Roll. Abr.
497, pi. 13; Mallows v. May, Cro. Eliz.
873; Lit. § 144; Gourtail v. Thomas,
9 B. & C. 298 ; Bernard v. Bonner, Al.
58-9 ; Shep. Touch.

1 Lynch v. Lynch, 6 Ir. L. R. 142.

2 Davison v. Stanley, 4 Burr, 2213.

SEC. 75.] ASSIGNMENT AND SUREENBEE. 125

void, the court very properly held that it should not operate
as a surrender of the former lease." Here there is nothing
to show that the defendant refused to grant such a lease as
was contracted for ; and we find, in fact, that a new contract
was made to let the premises to two persons instead of one,
and that both entered and occupied.^

The acceptance of a lease which is voidable, and after-
wards made void, contrary to the intention of the parties,
and which does not pass an interest according to the con-
tract, will not operate as a surrender. Thus, where tenant
for life, with a power of leasing, granted a new lease to the
original lessee, which purported to be made in consideration
of the surrender of the original lease, but the new lease was
not a due execution of the power, it was held that the new
lease did not operate as a surrender.^ And the rule is the
same whether the surrender be implied or express, for in the
case of a surrender implied by law from the acceptance of a
new lease, a condition ought also to be understood as implied
by law, making void the surrender in case the new lease
should be made void ; and in the case of an express surren-
der so expressed as to show the intention of the parties to
make the surrender only in consideration of the grant, the
sound construction of such instrument in order to effectuate
the intention of the parties would make that surrender also
conditional to be void in case the grant should be made void.*

"Where a voidable bishop's lease, which had been granted
in consideration of the surrender of a prior lease by deed
poll, was avoided by the bishop's successor, it was held that
the first lease was not revived by such avoidance.*

Sec. 75. New Lease Granted to Third Party. — If the land-
lord and tenant agree that a new lease shall be granted to a
third party, and such third party either continues in or enters
into possession, this will amount to a surrender by operation
of law, though no new lease is ever granted. Thus, where
A being tenant from year to year underlet the premises to B,

1 Hamerton v. Stead, 3 B. & C. 478 ; 17 L. J. Q. B. 151 ; overruling Doe v.
5 D. & K. 206. Forwood, 3 Q. B. 627 ; 11 L. J. Q. B.

2 Doe V. Poole, 11 Q. B. 716; 17 321.

L. J. Q. B. 143. 4 Doe v. Bridges, 1 B. & Aid. 847.

3 Doe V. Courtenay, 11 Q. B. 712;

126 STATUTE OF FBATJDS. [CHAP. n.

and the original landlord with the assent of A accepted B as
his tenant, but there was no surrender in writing of A's
interest, it was held that there had been a valid surrender
by act and operation of law.^ But where a tenant from year
to year whose holding commenced at Lady Day gave notice
at Christmas to his landlord that he would quit the Lady
Day following, and the landlord agreed to accept such notice,
it was held that this was no determination of the tenancy,
there not being a half year's notice, nor a surrender either
in writing or by operation of law.^ Bayley, J., observed
that the question whether the landlord's assent to the notice
operated as an actual surrender was not raised, inasmuch as
that assent was not expressed in writing. The case of
Thomas v. Cook was recognized by the court, but distin-
guished on the ground that there the surrender operated not
by reason of the agreement of the parties alone, but by reason
of that agreement coupled with the change of possession.^

The tenancy will not be surrendered unless the agreement
is in writing, or the new tenant takes possession.* Where
the landlord grants a new lease to a stranger with the assent
of the tenant under an existing lease, and the latter gives up
his own possession, that is a surrender by operation of law.^
The privity of estate between the lessor and the first lessee
is destroyed by the acceptance of a new tenant,^ and it is
more probable that the legislature intended to give effect to
an agreement, so proved as a surrender by operation of law,
than to allow either party to defeat the agreement by alleg-
ing the absence of written evidence.^ The reason of the
rule is that, as a new letting to an old tenant, commencing

1 Thomas v. Cook, 2 B. & Aid. 119 ; * Taylor v. Chapman, Peake Add.
2 Stark, 408; and see Stone «. Whiting, Cas. 19; and see Cocking v. Ward, 1
2 Stark, 235; Hamerton v. Stead, 3 C. B. 868; Kelly v. Webster, 12 C.

B. & C. 482; 5 D. & R. 206; 3 L. J. B. 283; Doe ■/. Johnston, McClel. &
(K. B.) 33; Rex u. Banbury, 3 Nev. Y. 141.

& Man. 292; Lynch v. Lynch, 6 Ir. L. 6 Davison v. Gent, 1 H. & N. 744;

K. 131. Lawrance v. Faux, 2 F. & P. 435 ; Gore

2 Johnstone v. Huddlestone, 4 B. v. Wright, 8 Ad. & El. 118; 3 N. & P.
& C. 922 ; 7 D. & R. 411 ; and see Doe 243.

V. Johnston, McClel. & Y. 141 ; Bessell " Thomas v. Cook, 2 Stark, 408 ; 2

V. Landsberg, 7 Q. B. 638. B. & Aid. 119.

3 Johnstone v. Huddlestone, 4 B. & ' Nickells v. Atherstone, 10 Q. B.

C. 922; 7 D. & R. 411; and see Doe 950; 16 L. J. Q. B. 371.
V. Johnston, McClel. &Y. 141; Bessell

u. Landsberg, 7 Q. B. 638.

SBC. 7S.] ASSIGNMENT AND STJREENDEE. 127

immediately, operates as a surrender of the original term,
because tlie lessor could have no power to create the new
term if the original term had subsisted ; so a new letting to
a third party, with the assent of the original tenant, has the
same operation.^

Where the defendant took premises for a year certain, but
quitted at the end of the first quarter, and the plaintiff then
let the premises for a portion of the remaining three quarters
to another tenant at a less rent, it was held that by re-letting
the premises the plaintiff had assented to the determination
of the original tenancy, and dispensed with the necessity of
a legal surrender ; and the case was distinguished from Mol-
lett V. Brayne,^ as there the tenant had a subsisting term,
wliich could not be determined by a mere parol surrender.^

Where the tenant of a house, three cottages, and a stable
and yard, let at an entire rent for a term of seven years;
before the expiration of the term assigned all the premises
to B for the remainder of the term, the house and cottages
being in the possession of undertenants, and the stables and
yard in that of A ; and the landlord accepted a sum of money
as rent up to the day of assignment, which was in the middle
of a quarter, and B took possession of the stables and yard
only ; and the occupiers of the cottages having left them
after the assignment, but before the expiration of the term,
the landlord re-let them ; and A paid no rent after the as-
signment, but the landlord received rent from the under-
tenants ; and before the expiration of the term the landlord
advertised the whole of the premises to be let or sold; it
was held that this was a surrender by operation of law of all
the premises.* Where two persons, holding from different
lessors, verbally agreed to exchange their holdings, and on
the same day each took possession of the other's land, the
steward of both the lessors expressing his concurrence, it
was held that there was evidence to go to the jury of sur-
render.^ A tenant from year to year died, leaving his widow

' McDonnell v. Pope, 9 Hare, 705 ; 3 Bing. 462 ; and see Hall v. Burgess,

and see Hobson «. Cowley, 27 L. J. 5 B. & C. 332; Woodcock v. Nuth, 8

Exch. 209 ; Walker v. Richardson, 2 Bing. 170 ; 1 Moo. A. Sc. 317.
M. & W. 882; 6 L. J. (N. S.) Ex. 229. * Reeve v. Bird, 1 C. M. & R. 31 ;

2 2 Camp. 103. 4 Tyr. 612.

» Walls V. Atcheson, 11 Moo. 379; « Bees v. WilUams, 2 C. M. & R.

128 STATUTE OF FEATXDS. [CHAP. H.

in- possession, with the knowledge of the administrator to the
deceased tenant. It was held that there was no evidence of
a surrender.!

Where premises had been let to B for a term, determinable
by a notice to quit, and, pending such term, C applied to A,
the landlord, for leave to become the tenant instead of B,
and upon A consenting, agreed to stand in B's place, and
offered to pay rent, it was held that A might maintain an
action for use and occupation against C, and that the latter
could not set up B's title in defence to that action.^

Sec. 76. Commencement of Nevo- Tenancy Question of Fact.

— When there has been a surrender by the admission of a
new tenant, it is a question for the jury, and not for the
judge, to be determined by a consideration of all the facts,
at what time the tenancy commenced.^ In order that there
may be a valid surrender by the grant of a new lease to a
new tenant, the transaction must be assented to by all the
parties,* as the legal presumption, until the contrary appears,
is, that the new tenant came in as the assignee of the origi-
nal lessee.^

Where W and H, by agreement, in March, 1827, became
tenants to the plaintiff for three years, of premises occupied
by them as partners, with power to them to extend the term
to seven years by giving the plaintiff notice, which they did
in January, 1827, and at Midsummer, 1828, W retired from
the partnership, which was carried on by H with a new part-
ner, S, the plaintiff giving receipts for rent as received from
H and S, and in February, 1829, gave H a letter to his attor-
ney signifying that a lease might be made to H and S, but
no lease was ever prepared, it was held that W remained
liable to the plaintiff for rent accruing in 1831.®

581; Tyr. & Gr. 23. In this case, 219; Trent v. Hunt, 9 Exoh. 14; 22

Thomas v. Cook does not appear to L. J. Exch. 318 ; Cadle v. Moody, 80

have been cited. L. J. Exch. 385.

1 Doe V. Wood, 14 M. & "W. 682; ^ Doe „. Williams, 9 D. & R. 30;
15 L. J. Ex. 41. 6 B. & C. 41.

2 Phipps V. Sculthorpe, 1 B. & Aid. ^ Graham v. Wichelo, 1 C. & M.
50 ; but see Hyde v. Moakes, 5 C. & P. 188 ; 3 Tyr. 201 ; and see Matthews v.
42. Sawell, 2 Moo. 262 ; 8 Taunt. 270 ; Lyon

8 Walker v. God6, 6 H. & N. 594 ; v. Eeed, 13 M. & W. 285 ; 13 L. J. Ex.
30 L. J. Ex. 172. 3775 McDoneU v. Pope, 9 Hare, 705.

Eex V. Stow Bardolph, 1 B. & Aid.

SEC. 76.] ASSIGNMENT AND SUEEENDEE. 129

Assent to the grant of a new lease by one of several exec-
utors is not sufficient to determine the tenancy, although
possession is given up by the original tenant.^

The foregoing cases apply exclusively to chattel interests,
and it is not quite clear whether the doctrine of surrender
by the grant of a new lease to a third party would apply to
the case of a freehold interest. In Lynch v. Lynch ^ it was
held that the doctrine did apply. In that case the original
lease was freehold.^ In Creagh v. Blood,* Loed St. Leon-
AEDS, referring to the doctrine of Thomas v. Cook, said:
" The case of Lynch v. Lynch was relied upon as an
authority that the doctrine equally applies to a freehold
interest like that in this case, and no doubt the point was so
decided. But with all my respect for the judges who decided
that case, I cannot follow it — I never so understood the law;
and the authorities quoted in Lyon v. Reed would seem to
establish the contrary to be the law. I think the new rule
would have a more extensive operation than at first sight
would appear. Upon this point, if I were compelled to de-
cide, I should be of opinion that the freehold interest could
not be held to be surrendered by operation of law on the
ground of an acquiescence in the new lease." The doctrine
of Thomas v. Cook does not extend to incorporeal heredita-
ments.^

The doctrine of surrender by the grant of a new lease to
a third party, with the assent of the original lessee, coupled
with a change of possession, as laid down in Thomas v. Cook,
has been questioned in some later cases, and especially in
Lyon V. Reed.^ There it was decided that the delivery up
by a lessee, who had a term of years in a reversion, of his
lease, with an assent by him to the grant of a new lease by
the owner of the reversion expectant on his term, to a third
person, and the grant of such lease did not amount to a sur-
render by operation of law, as these acts were not such as
bound parties by way of estoppel. Paeke, B., said : " If the
doctrine of Thomas v. Cook should be extended, it may very
much affect titles to long terms of years — mortgage terms,

1 Turner v. Hardey, 9 M. & W. 770 ; * 3 J. & Lat. 133.

Bight V. Cuthell, 5 East, 491. 6 Lyoa v. Reed, 13 M. & W. 310.

2 6 Ir. L. E. 131. » 13 M. & W. 309.
8 See 2 Sm. L. C. 7th ed. 857.

130 STATUTE OF FRAUDS. [CHAP. II.

for instance, in whicli it frequently happens that there is a
consent expressed or implied by the legal termor to a demise
from a mortgagor to a third person. To hold that such a
transaction could, under any circumstances, amount to a sur-
render by operatioii of law, would be attended with most
serious consequences. The case of Thomas v. Cook has been
followed by others, and acted upon to a considerable extent ;
whatever doubt, therefore, we might feel as to the propriety
of the decision that in such a case there was a surrender by
act and operation of law, we should probably not have felt
ourselves justified in overruling it. And perhaps the case
itself, and others of the same description, might be supported
upon the ground of the actual occupation by the landlord's
new tenants, which would have the eflfect of eviction by the
landlord himself in suspending the rent or compensation for
use and occupation during the continuance of that occu-
pation." The case of Gore v. Wright ^ was decided on a sim-
ilar ground, but the point was not raised in Thomas v. Cook,
and in Lynch v. Lynch ^ the action was brought by the
lessees themselves, who had consented to the new lease.*
The doctrine of Thomas v. Cook was, as we have seen, also
doubted by Lord St. Leonards in Creagh v. Blood.* The
original term in that case was freehold. His lordship, re-
ferring to Lynch v. Lynch,^ said: "The point came upon
me by surprise, and untU I heard of the decision I was not
aware of any such rule, and, speaking with great deference,
I think it will turn out that there is not such a rule of law.
Before I would act on it, I should require the question to
undergo further consideration ; for an estate of freehold
cannot, since the statute of frauds, be created or transferred
without writing, and where the statute speaks of surrender
by operation of law, it certainly alludes to those surrenders
where the party, whether by estoppel or otherwise, accepts
an estate inconsistent with the estate he has. If I am in
possession under a freehold lease, it is not by standing by,
while the lessor with my knowledge grants the lands to
another person, as if he were entitled to theni in possession, '
that my estate is to be divested. I may, in consequence of

1 8 Ad. & El. 118 ; 3 N. & P. 243. 4 3 j. & Lat. 151.

2 6 Ir. L. E. 131. 6 6 Ir. L. E. 131.
8 See Taylor on Evid. 891, 6th ed.

SEC. 77.] ASSIGNMENT AND STJEEENDEE. 131

my conduct, be compelled by a court of equity to transfer
my estate, but not being a party to the deed, and not having
transferred my estate or parted with the possession, I confess
it appears to me that such conduct cannot amount to a sur-
render by operation of law of the estate so vested in me.
. . . The case of Thomas v. Cook established a new doc-
trine, but it proceeded upon the act of the former tenant,
who had placed another in possession, and agreed to the
latter becoming immediate tenant to the landlord, and it is
so explained in Johnston v. Huddlestone^ by Bayley, J.,
who joined in the decision in Thomas v. Cook. But I entirely
concur in the reasons given by Parke, B., in delivering the
judgment of the court in Lyon v. Eeed. If Thomas v. Cook
is not to be overruled, the doctrine should not be carried
further." «

But since these cases the Court of Queen's Bench, in
Nickells v. Atherstone,^ and the Court of Exchequer in Davi-
son V. Gent,* have approved of Thomas v. Cook. In Nickells
V, Atherstone, Lord Dbnman said : " If the expression
' surrender by operation of law ' be properly applied to cases
where the owner of a particular estate has been party to
some act, the validity of which he is by law afterwards es-
topped from disputing, and which would not be valid if his
particular estate had continued, it appears to us to be prop-
erly applied to the present. As far as the plaintiff the land-
lord is concerned, he has created an estate in the new tenant
which he is estopped from disputing with him, and which is
inconsistent with the continuance of the defendant's term.
As far as the new tenant is concerned, the same is the case.
As far as the defendant, the owner of the particular estate,
is concerned, he has been an active party to this transaction,
not merely by consenting to the creation of the new relation
between the landlord and the new tenant, but by giving up
possession, and ap enabUng the new tenant to enter." ^

Sec. 77. Surrender may be Presumed, 'When. — A surrender
may be presumed even where there is no direct evidence of

1 4 B. & C. 933; 7 D. & R. 411. ' See also McDonnell o. Pope, 9

2 3 J. & Lat. 160. Hare, 705, and the notes to Doe v.

3 10 Q. B. 944 ; 16 L J. Q. B. 371 Oliver, 2 Sm. L. C. 7th ed. 863.
* 1 H. & N. 744.

132 STATUTE OP FEAUDS. [CHAP. II.

the fact,^ but such presumption must arise from facts and
circumstances independent of length of time which are suffi-
cient to warrant a jury in making it,^ and the court will
never presume a surrender, but leaves it as a matter of fact
to be found by the jury.^ Thus, in an English case,* A,
having granted a lease to B for twenty-one years, before the
expiration of the term granted another lease of the same
premises to 0. No surrender in writing of B's interest was
shown, but the lease granted to B was produced from A's
custody with the seals torn off, and it was proved to be the
custom to send in the old leases to A's office before a renewal
was made; and it was held that this was proper evidence
from which the jury might infer that B assented to the lease
to C, and to support a consequent presumption of a surrender
of B's interest under the lease.^ A surrender cannot, how-
ever, be presumed to bind the landlord from the naked cir-
cumstance that he has received the rent from a third person
and not from the original tenant.® Indeed, the general rule
may be said to be that a jury may presume a surrender of a
term when it dearly appears that all the purposes for which it was
created have been fully satisfied, and that it ought in justice and
equity to have been re-assigned or surrendered to the owner of the
reversion, especially if there has been any subsequent dealing with
the property of such a nature as would not have happened with
reasonable means, supposing the term had not been put an end to,
or there is other express evidence beyond the mere lapse of
time, from which such a presumption might arise.''' But a
presumption of a surrender cannot be raised except where a
title is shown by the party who calls for the presumption, or
the possession is shown to be consistent with the execution
of the surrender required to be presumed,^ and such presump-
tions are made in favor of the possession, and not against it.^

1 Bridges v. Duke of Chandos, 4 v. Slade, 4 T. R. 682; Rees a. "Wil-
Burr, 1072; Bedford v. Terhune, 30 liams, 2 M. & "W. 749; Burdett v..
N. Y. 463. Wright, 2 B. & Aid. 710 ; Blacknell v.

2 Harrop v. Cooke, 6 Bing. 174. Plowman, 2 B. & Aid. 573 ; Bowerman

3 Cottrell K. Hughes, 15 Q. B. 532. v. Syboum, 7 T. E. 2; Bartlett c
< Walker v. Richardson, 2 M. & W. Downs, 3 B & C. 616 ; Lloyd v. Pas-

822. singham, 6 id. 305.

6 Davidson v. Gent, 1 D. & K. 744. ^ Harrop v. Cooke, 6 Bing. 174.
6 Copeland v. Watts, 1 Stork. 96. ^ Rees v. Williams, ante ; Brandon

' Hodson V. Staple, 2 T. R. 684 ; v. Calvert, 5 Taunt. 170.

Garrard v. Tuck, 8 C. B. 231 ; Syburn

SEC. 77.] ASSIGNMENT AND SURRENDER. 133

The court will not require positive proof of a surrender
in any case where there is suificient presumption of it.^
Thus we have seen that the production of a cancelled lease,
and evidence that it was the custom to send old leases to the
lessor's ofSce before a renewal, has been held evidence to go
to the jury, from which they might presume a surrender.^
The case of Doe v. Thomas ^ is not, it is submitted, at variance
with this doctrine. In that case the simple production of the
lease in a cancelled state was considered not to be prima facie
evidence of a surrender ; whereas in Walker v. Richardson
there was also the evidence of custom, coupled with the fact
that the lease was produced from the custody of the person
whose duty it was to cancel the old leases.* The mere receipt
of rent by the landlord from a third party is not sufficient to
warrant the presumption of a surrender ; the prima facie pre-
sumption being that the rent was paid by the latter as the
agent of the original lessee and on his behaK.^ Where a,
mortgagor before mortgage let a farm to P as tenant from
year to year, and after the mortgage P let the defendant into
possession in his stead, and informed the mortgagor of the
fact, and the mortgagor subsequently received the rent from
the hands of the defendant, it was held that the tenant's term
was still in P, there being no effectual surrender, and con-
sequently that the mortgagee could not maintain ejectment
against the defendant without a notice to quit.® But the
production of receipts is strong confirmatory evidence of a
surrender.'^ The facts upon which the surrender is to be
presumed must be such as make it not unreasonable to believe
that the surrender was actually made.^ And the presump-
tion, if made at all, must be made by a jury and not by the
court.^

1 Goodtitle v. Duke of ChandoB, 2 15 L. J. Ex. 41 ; Graham v. Wichelo,
Burr, 1072. 1 C. & M. 188 ; 3 Tyr. 201 ; 2 L. J.

2 "Walker v. Richardson, 2 M. & W. (N. S.) Ex. 70.

882 ; 6 L. J. (N. S.) Ex. 229. « Cadle v. Moody, 30 L. J. Ex. 385.

8 9 B. & C. 288 ; 4 Man. & R. 218. " Woodcock v. Nuth, 1 Moo. & Sc.

* And see Lyon v. Reed, 13 M. & 317 ; 8 Bing. 170 ; Lawrance v. Eaux,

W. 285 ; 13 L. J. Ex. 377 ; Davison v. 2 E. & E. 435.

Gent, 1 H. & N. 744. s Doe v. Cooke, 6 Bing. 174.

6 Copeland v. Gubbins, 1 Stark. » Cottrell v. Hughes, 15 C. B. 532.
963; Doe v. Wood, 14 M. & W. 682;

134 STATUTE OF PEAITDS. [CHAP. II.

Sec. 78. Effect of Surrender oa Rent Due and Accruing. —

Where a lease containing a personal covenant for the payment
of rent is surrendered, the personal covenant is independent
of the estate in the property, and as to rent previously due
is not affected by the surrender, but the lessor remains a
specialty creditor for the rent which accrued due before the
surrender.! "Where the tenant quits the premises either with
or without notice, and the landlord accepts possession, he
cannot recover rent pro rata for the actual occupation of the
premises for any period short of the last rent day.^ Nor can
he recover for the time subsequent to his accepting posses-
sion.^ Where the tenant of several houses underlet each of
them to different persons, and the landlord gave notice to
quit to one of the undertenants, who quitted accordingly,
after which the house remained unoccupied some time, and
then the tenant underlet it again, Lord Ellbnbokottgh, C. J.,
held that the landlord could not maintain an action for use
and occupation against the tenant for the rent during the
time the house remained unoccupied, considering the circum-
stances as proof of eviction.*

In an action for debt for rent, a plea that the landlord and
tenant agreed that the tenant should give up and the landlord
take possession of the premises, in consideration whereof the
tenant was to be discharged from the rent, and that posses-
sion was actually given up and accepted accordingly, was
held to be a good plea, as the defence set up was merely an
executed contract and not a surrender.^

Sec. 79. How a Surrender should be Pleaded. — In setting
up a surrender in a plea, enough should be stated to show
that if the matter alleged is true, a surrender has transpired
either by virtue of a special contract or by operation of law.
If the surrender is by the acceptance of a new lease, it is not
sufficient to say that the lessee being possessed of a former

1 Att. Gen. v. Cox, 3 H. L. C. 240. & G. 673 ; Doe v. Benjamin, 9 A. & E.

2 Grimman «. Legge, 8 B. & C. 644; 1 P. & D. 440; 8 L. J. (N. S.)
324; 2 Man. & E. 438; Hall v. Bur- 117; Eurnivall v. Grove, 8 C. B. (N.
gess, 5 B. & C. 332 ; 8 D. & R. 67. S.) 496 ; 30 L. J. C. P. 3.

8 Whitehead v. Clifford, 5 Taunt. « Burn v. Phelps, 1 Stark, 94.

518; "Walls v. Atcheson, 3 Bing. 462; » Gore v. Wright, 8 A. & E. 118; 3

11 Moo. 379 ; and see Slack v. Sharp, N. & P. 243 ; Peter v. Kendal, 6 B. &

8 A. & E. 366; Dodd v. Acklom, 7 So. C. 703 ; Smith v. Lovell, 10 C. B. 6 ;

(N. R.) 415 ; 13 L. J. C. P. 11 ; 6 M. Purnivall v. Grove, 8 C. B. (N. S.) 496.

SEC. 79.] ASSIGNMENT AND SUEEENDEE. 135

lease, the lessor demised to Mm ; but it should be stated that
the lessee surrendered, and then the lessor demised, or that
the lessor entered and demised,^ or that before the rent
sought to be recovered accrued, or before the breaches
alleged, the demised premises and all the residue of the
term then to come and unexpired were duly surrendered to
the plaintiff by act and operation of law ; that is to say, by
the defendant then giving up to the plaintiff, and the plain-
tiff then accepting from the defendant the possession of the
demised premises with the intention of then putting an end
to the term.2 The plea ought to state that the defendant
surrendered the estate and land; but if he pleads a surrender
of the lease only, it is sufficient to say that he surrendered
"the demise aforesaid." If it is not stated that the plaintiff
accepted the surrender, while the plea is open to demurrer,
yet the defect is cured by verdict.^ It is always best to
allege that the plaintiff re-entered ; but if it is alleged that he
agreed to the surrender, it will be presumed that he entered.*
In an action of debt for rent where the plea set up an agree-
ment to deliver up the premises, and also stated that they
were delivered up and accepted accordingly, it was held good
after verdict, not as setting up a surrender of the term, but
as a valid excuse for non-payment of the rent.^

1 Com. Dig. tit. Surrender (N.). « Cannon v. Hartley, 9 C. B. 634.

2 Smith V. Lovell, 10 C. B. 6. « Gore v. Wright, 8 Ad. & El.
8 CoUes V. Evason, 10 C. B. (N. S.) 118.

282.

SECTION IV.

GUARANTIES, ETC.

" No action shall be brought whereby to charge any executor or ad-
ministrator upon any special promise to answer damages out of his
own estate; or whereby to charge the defendant upon any special
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."

CHAPTER III.

GTTABANTIES. — PROMISE BY EXECTJTOES.

SECTION.

80. Must be Consideration.

81. What is Admission of Assets.

82. Exceptions.

83. Requisite to Promise.

84. What is Sufficient Consideration.

85. Forbearance to Sue.

86. Must be Cause of Action when Promise Made.

87. Moral Obligation.

88. *rime of Forbearance.

89. Promise to Pay at Future Time.

90. When not Necessary to Prove Assets.

91. Action Lies to Recover Specific Chattel, or on Promise in Consideration

of Assets.

92. Not Necessary to Allege Assets.

93. Executor not Bound to Plead Statute.

Section 80. Must be Consideration. — A promise by an
executor to pay a debt out of his testator's estate is nudum
pactum unless there are assets,^ and a consideration must be
alleged as of assets come to his hands, or of forbearance,
otherwise the promise will not be personally binding on
him.^ The satute of frauds was made for the relief of per-

1 Pearson v. Henry, 5 T. R. 6; sent such debt against the estate,

MUcheson v. Hewson, 7 T. R. 348. within the time limited by the court

^ Reech v. Kennegal, 1 Ves. Sen. of probate, and the consequent loss
126 ; Barnard v. Pumfrett, 5 My. & of all claim upon said estate for such
Cr. 63. In an action on a special prom- debt, is a sufficient averment of a con-
ise to pay a debt, due from the estate sideration for such promise. A verbal
of a deceased person, whom the de- promise to pay a debt, due from a, de-
fendants represented as administra- ceased person, made to a creditor, in
tors, the allegation of forbearance, at consideration of forbearing to pro-
the request of the defendants, to pre- ceed against the estate which the

138

STATUTE OP FRAUDS.

[chap. ni.

sonal representatives and others, and did not intend to
charge them further than by common law they were charge-
able. The words of the statute are merely negative, and say
that executors and administrators shall not be liable out of
their own estates, unless the agreement upon which the
action is brought, or some note or memorandum thereof, is
in writing, signed by the party. The common law required
a consideration, and the statute added writing.^ It is not
necessary to plead that the promise was in writing, though
it must be proved in evidence that it was.^

Sec. 81. what Amounts to an Admission of Assets. — In a
case cited in the last note,^ Bullek, J., said: "I only
recollect two cases in which the question, what shall be
considered an admission of assets, has been discussed, —
Barry v. Rush,* and Cleverley v. Brett.® In the last of those
the executor had paid interest on a bond due from the tes-
tator, which was held on the trial to be an admission of

promisor represents, is not necessarily
within the clause of the statute of
frauds, which relates to " a special
promise [by an executor or adminis-
trator] to answer damages, out of his
own estate " ; but whether or not it is
so, depends upon his having, or not
haying, assets of the deceased. The
possession of assets is not, of itself, suffi-
cient to charge him personally, on such
promise, without u, new consideration.
In an action on such promise, the de-
fendants pleaded in bar, that neither
of the contracts, agreements, and
promises contained in the declaration,
nor any note or memorandum of them,
nor either of them, was ever made by
the defendants, and signed by them or
either of them, or by any person there-
to lawfully authorized. It was held,
that such plea did not constitute a
complete defence, without further al-
leging a want of assets. WTiere the
declaration, in such action, stated that
the defendants were the administra-
tors on the estate of the plaintiff's
debtor, it was held that such allega-
tion might be treated as surplusage,
and did not render it incumbent on
the plaintiff also to allege that they

had assets. The clause of the statute
which relates to a "special promise
[by one person] to answer for the debt,
default, or miscarriage of another,"
was intended to apply only to prom-
ises made tothe person to whom another
is answerable ; and therefore, a promise
to A, to pay certain debts, which he
owed his creditors, being a promise to
him, and not to them, is not within
this provision of the statute. Pratt
V. Humphrey, 22 Qonn. 317. See also
Stebbins v. Smith, i Pick. (Mass.) 97;
Smithwick v. Shepherd, 4 Jones (N.
C.) L. 196.

1 Rann v. Hughes, 7 T. R. 350, n.
(a) ; 4 Bro. P. C. 27 ; and see Hawkes
V. Saunders, Cowp. 289 ; Philpot v.
Briant, 4 Bing. 717 ; 1 M. & P. 754.
But see also Herbert v. Powis, 1 Bro.
P. C. 355.

2 Anon., Salk. 519; "Williams v.
Leper, 3 Burr, 1890.

' Pearson v. Henry, ante.

* 1 T. R. 691.

6 M. 13 Geo. 3, B. R. In that case
Lord Mansfield, C. J., said: "To be
sure, the evidence eases the creditor
from proving assets, and throws the
onus on the other side."

SEC. 81.J GUAKANTIES. — PEOIUSE BY EXECUTORS. 139

assets. But that opinion was overruled in this court, on a
motion for a new trial, when it was thought highly un-
reasonable that because the executor, thinking the demand
just, had chosen to pay a part of a demand out of his own
pocket, he should be liable for the whole debt; or that,
because having enough to pay the interest, he should thereby
be concluded to dispute assets for the principal. In the
other case, it seems to me that the plea has nothing to do
with the case. That was an action of debt on a bond given
by the defendant, by which he bound himself, his heirs, etc.,
for performance of the award, and therefore I said, in decid-
ing that case, that it was a personal engagement by the
defendant to perform the award. Another ground has also
been mentioned, that the administrator personally promised
to pay whatever should be awarded. But that would not
avail the plaintiff in this action ; for this action is brought
against the defendant, as administrator, and it is brought
against him to recover the plaintiff's demand out of the
intestate's effects ; and if there were no assets, the personal
promise by the administrator would be nudum pactum."
The giving of a bond by an administrator to the judge of
probate, to pay the debts and legacies of the testator, is held
to operate as an admission of assets.^ But an agreement to
arbitrate is not,^ unless the executor also binds himself to

1 Stebbius v. Smith, 4 Pick. (Mass.) istrator is desirous of ascertaining
97. whether or not there be any founda-

2 Pearson v. Henry, ante. In this tion for the demand which is made
case Lord Kenton, C. J., in delivering upon him, without disputing it in an
the opinion of the court and distin- action, and it is frequently adranta-
guishing the case from Barry v. Rush, geous to both parties that the matter
said : " With regard to the principal in dispute should be referred ; but if
question, in point of justice and con- the reference be attended with this
science, the plaintiffs' demand ought supposed consequence, it will in future
not to extend beyond the assets of the prevent every executor or administra-
intestate: here it is not pretended that tor from submitting to arbitration,
in fact there were assets to the extent The case of Barry v. Bush was very
of the plaintifis' demand, but it is said properly decided, but it does not affect
that the defendant precluded himself, the present. There the defendant
by sometliing which he did at the out- submitted in broad terms to pay wha1>
set of this business, from denying that ever should be awarded, and the ar-
he had assets, for that every submis- bitrator did award that he should pay
sion to arbitration by an administrar a certain sum; whereas, here, the
tor in that character is conclusive evi- arbitrator has only ascertained the
dence against him that he has assets, amount of the debt due from the in-
In many cases an executor . or admin- testate, but has not directed the de-

140 STATUTE OP FRAUDS. [CHAP. EOT.

pay the award.^ In an Indiana case,^ an administrator orally-
agreed to submit a claim in favor of the estate, against the
plaintiff, to arbitration, with a proviso that, if the award
proved satisfactory, each party should pay one-half the costs ;
but if unsatisfactory, the one objecting should pay all the
costs. The submission was made, and the administrator
objected to the award, and in an action to recover the costs,
it was held that the promise was not within the statute,
because not a promise to answer for a debt created by the
decedent, but by himself. " It must be kept in mind," said
Elliott, J., "fAat the subject-matter of the contract declared
upon grows out of transactions which occurred after the dece-
dent's death. The administrator's promise was not to pay
some liahility his decedent had incurred, nor to fulfil some
engagement he had undertaken in his lifetime. In Mills v.
Kuykendall,^ it was said : " The whole case shows that the
object of the plaintiff was to charge the estate of the deceased
by obtaining judgment against the administrators de bonis
intestati. The promise of administrators, on a consideration
originating subsequently to their intestate's death, cannot
sustain such an action." * In such cases the statute does not
apply, because the undertaking is the promisor's original
contract.^ But in order to charge the executor or adminis-
trator de bonis propriis, it is not necessary to aver in the
■ declaration that the defendant has assets, for if the promise
be in writing, and supported by a consideration, as forbear-

fendant to pay it. It is impossible ' Barry v. Bush, ante.
then to say that the arbitrator decided ^ Holderbaugh v. Turpin, 76 Ind.
that the defendant had assets; and 84; 39 Am. Kep. 124.
the submission to arbitration by an '2 Blackf. (Ind.) 47.
administrator is not of itself an admis- * Carter v. Thomas, 3 Ind. 213;
sion of assets. What was said by my Comthwaite v. First National Bank, 57
brother Ashhhrst in the case of id. 268. Anderson u. Spence, 72 id. 315.
Barry v. Rush, respecting the admis- ^ In Hackleman v. Miller, 4
sion of assets, must be taken to refer Blackf. (Ind.) a, person was induced
to the particular case then undef dis- to purchase a note due from an intes-
cussion, but ought not to be extended tate's estate upon the promise of the
further. And indeed he immediately administrator that it should be paid,
subjoined that the bond given by the and it was held that the promise was
defendant to abide by the award was not within the statute. But in Has-
an undertaking to pay whatever the sachusetts it is held that a promise by
arbitrator should award, without any an administrator to pay a debt of the
regard to assets ; and my brother Btjl- estate out of lands sold or to be sold,
LEE went expressly on that ground." is within the statute. Silsbee v. In-
See Long v. Rodman, 58 Ind. 58. galls, 10 Pick. (Mass.) 526.

SBC. 81.J GTJABANTIES. — PEOMISE BY EXECUTOBS. 141

ance to prosecute at the request of the defendant,^ the plain-
tiff, by acquiescing in a possible detriment to himself, by his

1 In Wdlllam Banes' case, 9 Coke,
93 b, it was clearly held, that the
declaration was good enough, without
saying that the defendant had assets,
for it shall be intended prima facie
that she had assets. But Coke said,
that he conceived the truth to be,
that if there had not been any debt,
or if there had been a debt, and the
executrix had nothing in her hands at
the time, she might have given it in
evidence. But this last position seems
not to be law, according to the cases.
See 1 Roll. Abr. 24, pi. 33 ; 2 Lev. 3 ;
Davis V. Reyner, Yelv. 11 ; Goreing v.
Goreing, 1 Vent. 120 ; Davis d. Wright,
Cro. Eliz. 91 ; Trewinian v. Howell, 1
Vez. 126; Reech v. Kennegal. But
it seems clear enough that the execu-
tor must be liable, and that there
must be an existing debt, otherwise
there will be no consideration. An
executor so closely represents the per-
son of the testator, that if a man ex-
ecutes a bond, his executors are bound,
though they are not named ; therefore,
in a declaration against the executor
upon the bond of the testator, it is
not necessary to say that the obligor
boimd himself and his executory ; but
if the suit was against the heir, it
would be a material allegation to say
that the ancestor bound himself and
his heirs, and to prove that he did so
in fact ; for the heir is not bound by
his ancestor's bond, unless he be ex-
pressly named. If, therefore, the
declaration omits to state that the
heir was bound, it is substantially de-
fective ; and by the case of Barber v.
Fox, 2 Saund. 136, it appears that this
is such a defect as a verdict cannot
cure ; for unless it be shown upon the
pleadings, that the heir was bound,
there will appear to have been no con-
sideration for his promise, and so no
sufficient cause of action. Thus also,
if the heir promise to pay a simple
contract debt of the ancestor, no ac-
tion will lie upon this promise, inas-
much as it is without consideration,

for the heir is not chargeable upon
such debts of his ancestor. Fish
V. Richardson, Cro. Jac. 47. But if
an executor promises to pay, in con-
sideration of a consent only by an
assignee of a debt not to sue, the
promise stands upon a sufficient con-
sideration. 1 Roll. Abr. 20, pi. 11.
And so doubtless the heir, under the
same circumstances, will be liable, if
the debt is founded upon a specialty.
In Forth v. Stanton, 1 Saund. 210,
there was no allegation of any under-
taking to forbear on the part of the
assignees. In this case the plaintiff
declared that the defendant's testator
was indebted to A, who, after the tes-
tator's death, assigned the debt to the
plaintiff, and appointed him to receive
it to liis own use ; and that the defend-
ant, in consideration that the plaintiff
would accept the defendant for his
debtor, promised to pay the debt to
the plaintiff. And for want of alleg-
ing a sufficient consideration for the
promise, the declaration was judged
insufficient. Upon the principle of
the determination in Barber u. Fox,
cited above in this note, it seems that
a verdict for the plaintiff could not
have cured this radical defect ; but in
the case of Roe v. Haugh, 1 Salk. 20,
which was the converse of the last^
mentioned case in its circumstances,
and the relative situation of the par-
ties, the verdict was held by four
judges against three to have cured
the omission to allege a sufficient con-
sideration in the declaration. There,
in consideration that the plaintiff
would accept C to be his debtor for
£20 due to him from A, in the place
of A, C promised and undertook to B
to pay to him the £20 ; and this was
adjudged good, after a verdict, with-
out express averment that A was dis-
charged; for the majority of the
judges in the Exchequer Chamber
held, that being after verdict, they
ought to do what they could to help
it, and that, therefore, they would not

142 STATTJTB OF FEAUDS. [CHAP. HI.

relinquishmeiit of legal proceedings (for lie might at least
have obtained a judgment of assets quando acciderinf) has
purchased a title of action upon the undertaking of the
defendant. But without such special agreement, in which
the executor steps out of his representative character, an
action cannot be sustained against an esrecutor, otherwise
than as an executor ; and if the action is brought against him
in the character of executor, to recover a demand out of the
testator's estate, any special promise to pay the testator's
debt is a mere nudum pactum, if there are no assets ; and if
there are any, the extent of the promise is measured ly the
extent of the assets, or, in other words, the promise superin-
duces no obligation upon the original representative liability.
In many of the States by statute, and in others by the deci-
sion of the courts, not only must the promise be in writing,
but the writing, to be valid, should, in the case of such pro-
mise made by an executor, not only state the consideration,
whether it be forbearance of suit, or whatever else, in terms,
but that the undertaking on both sides should be comprised
in the agreement, so as to make it a subject of action to
either party; for it was intimated by the chief justice, in
this, that " the obligatory part of the transaction was indeed
the promise, which will account for the word ' promise ' being
used in the iirst part of the clause, but still, in order to
charge the party making it, the statute proceeds to require
that the agreement, by which must be understood the agree-
ment in respect of which the promise was made, must be
reduced into writing."

Sec. 82. Exceptions. — Under some circumstances, how-
ever, a mere parol agreement is binding, and specific perform-
ance may be decreed. Thus a verbal promise by a person to
whom letters of administration are afterwards granted may
be binding on him as administrator. Where A promised that
if the widow of an intestate would permit him to be joined
with her in the letters of administration, he would make
good any deficiency of assets to pay debts, it was held that

take it as a promise only on the part viz., that C promised B to pay the

of C, because, as such, it could not debt, and B promised in consideratione

bind unless A was discharged ; but inde to discharge A.
they construed it as a mutual promise,

SEC. 84.] GUARANTIES. — PROMISE BY EXBCTJTOKS. 143

the promise was binding, and not -within the statute, because
at the time it was made A was not administrator, and it was
no answer to say that he was administrator afterwards.^ So
an administrator, de bonis non, verbally promising to pay an
annuity given by the testator's will, does, under certain cir-
cumstances, make himself personally liable.^

Seo. 83. Requisites to Promise. — It is not necessary to
show the cause of the debt,^ but in order that a promise may
be binding, there must be some benefit to the party making it,
or some detriment to the party to whom it is made, otherwise
it will be nudum pactum, and cannot be enforced ; and there-
fore, if at the time the promise was made there was no
person whom the plaintiff could have sued, his forbearance
does not amount to a consideration.* So it has been held
that where a man who is neither executor nor administrator
gives a promissory note, payable at a future day, to a cred-
itor of a deceased person, for the debt, without any other
consideration for making it, the payment of the note cannot
be enforced by the payee, if at the time of the making thereof
there was no personal representative of the debtor.^

Sec. 84. what is Sufficient Consideration. — A promise in
consideration that the plaintiff would forbear to require sure-
ties of the peace is a sufficient consideration.® Where the
plaintiff declared in assumpsit that the defendant's testator
was indebted to A, who, after the testator's death, assigned
the debt to the plaintiff, and appointed him to receive it to
his own use, and the defendant, in consideration that the
plaintiff would accept the defendant for his debtor, promised
to pay it to the plaintiff, it was held that this was not a suffi-
cient consideration to support the promise to charge the
defendant de bonis propriisJ A promise by an executor to
pay a debt of his testator in consideration that more goods

1 TomUnson v. Gill, Ambl. 330 ; ^ Nelson v. Serle, 4 M. & W. 795
and see Griffith v. Sheffield, 1 Eden, reversing Serle u. Waterworth, ib. 9
77; Gregory v. Williams, 3 Mer. 590. Hamilton v. Terry, 21 L. J. C. P. 132

2 Herbert v. Powis, 1 Bro. P. C. 355. and see Barber v. Pox, 2 Wms. Savmd.
8 Theme v. Puller, Cro. Jac. 396; 420, n. (a).

Austen v. Bewley, ib. 548. ^ Ripon v. Norton, Cro. Eliz. 881.

* Jones V. Ashbumham, 4 East, ' Porth v. Stanton, 1 Wms. Saund.

455; and see Marshall w. Burtinshaw, 210.
IB&P. (N. E.) 172.

144 STATUTE OP FEATJDS. [CHAP. in.

are supplied by tlie creditor will make the executor liable,
de. bonis propriis, for both debts.^ '

Where an attorney delivered up deeds to an executor,
which he was not bound to do till his bill was paid, the deeds
being of great use to the executor in several suits which he
was then carrying on, it was held that there was a sufficient
consideration to make the executor liable to the attorney's
whole demand, whether there were assets or not.^ And if
the creditor is induced to hand over a security, given to him
by the executor, to a third party, he will be entitled to re-
cover against the third party .^
«

Sec. 85. Forbearance to sue by Creditor. — If a creditor for-
bears to sue at the request of an executor, that is considered
a sufficient consideration to charge the executor, whether he
had assets or not at the time of the promise.* In Hawes v.
Smith,^ Hale, C. J., said that though a bare accounting will
not oblige an executor to pay, de bonis propriis, yet a prom-
ise in consideration of forbearance will. Where the plain-
tiff having a debt owing to him from the testator on a simple
contract, the executor, in consideration the plaintiff would
forbear to sue him until such a time, promised to pay, and
the plaintiff averred that he did forbear accordingly, this was
held to be a good promise ; but it was said that if the heir
had promised, on forbearance of the suit, to pay this debt,
no assumpsit would have laid against him, because without
consideration, the heir is not chargeable to any debt without
specialty.^ If a man declares, on a promise towards an admin-
istrator, that the intestate was in debt to him in £20 by obli-
gation, and died, and the defendant being administrator in
consideration of the promise and that the plaintiff would
spare him till a certain time after, promised to pay him the
debt, and avers that he spared him till such time, and that
the defendant has not paid him, etc., although he did not say
that he would spare him the debt, or to sue him, yet it shall

1 Wheeler v. Collier, Cro. Eliz. * Barber v. Fox, 2 Wms. Saund.
406. 423 (n).

2 Hamilton v. Inoledon, 4 Bro. P. ^ 2 Lev. 122.

C. 4. « Fish V. Richardson, Yelv. 55; 56

= Walker v. Taylor, 6 C. & P. S. C. nom; Fisher k. Richardson, Oro.
752. Jac. 47.

SEC. 86.] GTTAKANTIES. — PROMISE BY EXECUTORS. 145

be SO intended, and for that it is a good consider ation.^ So
if A (to whom the testator was indebted) comes to the exec-
utor and says that he intends to sue for the debt, on which
the executor promises, in consideration that the plaintiff will
forbear for a reasonable time, he will pay him, and A for-
bears for a reasonable time to sue him, that is a good consid-
eration to charge the defendant in an action on the case out
of his goods without assets, for by this promise it is intended
as well to forbear to sue the executor, as to forbear the debt,
and forbearance of suit is a good consideration, without
assets at the time of the promise.^ If a surety pays the debt
for the principal, who dies, and his executor promise the sur-
ety that if he wiU forbear to sue him for a certain time, that
he will pay, that is a sufficient consideration to support the
promise.^ Forbearance to sue by the assignee of a debt is a
sufficient consideration to support a promise by an executor
to pay.* For it is sufficient in the case of any other debtor
whom the assignee of the debtor forbears, at his request, to

Sec. 86. Must be Cause of Action when Promise made. —
But forbearance to sue is not a consideration where there
was no cause of action before the promise was made. Thus,
where a married woman gave a promissory note as femme
sole, and after her husband's death, and, in consideration of
forbearance, promised to pay it, it was insisted in an action
against her that she, being under coverture at the time of
giving the note, it was voidable for that reason ; yet, by her
subsequent promise, when she was of ability to make a prom-
ise, she had made herself liable, and the forbearance was a
Txeyf consideration ; but Pratt, C. J., held the contrary, and
that the note was not barely voidable, but absolutely void,
and that forbearance, where originally there was no cause of
action, was no consideration to raise an assumpsit. But he

1 Gardener v. Tenner, 1 Roll. Abr. pi. 11 ; Hardr. 74; Eussel v. Haddock,
15, pi. 3 ; Chambers v. Leversage, Cro. 1 Lev. 188.

Eliz. 644. 5 1 Wms. Exors. 7th ed. 782, citing

2 Johnson v. Whitchott, 1 Roll. Reynolds v. Prosser, Hadr. 71 ; Oble
Abr. 24, pi. 33. v. Dittlesfleld, 1 Ventr. 153; and see

3 Scott V. Stevens, Sid. 89. also Forth v. Stanton, 1 Wms. Saiuad.

Pitt V. Bridgewater, Roll. Abr. 20, 209 n. ( 1 )

146 STATUTE OF FRAUDS. [CHAP. in.

said it might be otherwise where the consideration was but
voidable.!

Sec. 87. Moral Obligation. — A moral obligation may be a
good consideration for a promise. Where a femme covert,
having an estate settled to her separate use, gave a bond for
repayment by her executors of money advanced at her re-
quest on security of that bond, to her son-in-law, and after
her husband's death wrote, promising that her executors
should settle the bond, it was held that assumpsit lay against
the executors on their promise,® and it was pointed out that
Loyd V. Lee^ and Barber v. Fox* proceeded on the ground
that no good cause of action was shown on the pleadings.

Sec. 88. Time of Forbearance. — Forbearance for a reason-
able time,^ or for a certain time,^ is a sufficient consideration.
But forbearance for some time,^ or for a little time,^ is not.

Sec. 89. Promise to pay at a Future Time. — If an executor
is indebted to J S in £1G0, and J S comes to demand the
money, in this case the executor is chargeable only in respect
of the assets ; but if he expressly promise to pay the debt at
a day to come, it is made his own debt, and it will have to
be satisfied out of his own goods.^ Thus, where B having
died indebted to G for work and labor done, his executors
signed the following memorandum on the back^ of G's
account : " Mr. G having consented to wait for the payment
of the within account, we, as the executors of B, engage to
pay Mr. G interest for the same at .£5 per cent, until the
same is settled ; " it was held that they were personally liable
to pay the debt and interest.^"

Sec. 90. when Wot Necessary to Prove Assets of Testator. —

Where the executors, by a promissory note given " as execu-
tors," jointly and severally promised to pay the same, "on

1 Loyd V. Lee, 1 Str. 94; and see ^ Pitti'. Bridgewater, ib. 20, pi. 11;
Barber v. Fox, 2 Wms. Saund. 427 Hardr. 74 ; Semple v. Pink, 1 Ex. 74.
(n.) ; Davis v. Keyner, 2 Keb. 758. ' Tilston u. Clarke, 1 Roll. Abr. 23,

2 Lee V. Muggeridge, 5 Taunt. 36. pi. 26.

s 1 Str. 94. 8 Brian v. Salter, ib. 23, pi. 25.

* 2 Wms. Saund. 427. » Goring v. Goring, Yelv. 11; Tre-

5 Johnson v. Whitchcott, Boll. Abr. winian v. Howell, Cro. Eliz. 91 ; Reech
24, pi. 33. V. Kennegal, 1 Ves. S. 126.

10 Bradley v Heath, 3 Sim. 543.

SEC. 90.] GtTAKANTIBS. — PROMISE BY EXECUTORS. 147

demand with lawful interest " ; it was held that they were per-
sonally liable, Dallas, C. J., saying: "The promise must
depend, not on the words ' as executors,' but on the words of
the "whole instrument taken together. Take the words ' on
demand.' Suppose a demand had been made immediately, do
not the executors, by subjecting themselves to such a demand,
admit they have assets to satisfy it ? If they meant to limit
their liabiUty, why did they not add to the words ' as execu-
tors' the words 'out of the estate of? But they promise
absolutely, and further add an engagement to pay interest.
When, therefore, by the engagement to pay interest, they
have induced the plaintiff to suspend his clear and admitted
demand, by so doing they make the promise personal and
individual." ^ In Rideout v. Bristow,^ a widow gave a prom-
issory note "for value received by my late husband," and it
was held that the note was valid on the face of it. Bayley,
B., said: "If an administratrix take upon herself to give a
security which may have the effect of inducing forbearance
and which purports to bind her individually, is it competent
for her to say, ' You must prove assets ' ? To my mind, the
act of giving such a security supersedes the necessity of an
investigation as to there being assets. It seems to me that
the words ' value received by my late husband ' do not make
the proof of assets necessary ; and I go still further, and say
that it was not competent for her to show that there were
no assets."

An executor giving such a promissory note will be liable
out of his own estate, although the testator's estate was
insolvent at the time the note was given, of which fact he
was ignorant.* Where, however, an executrix gave an accep-
tance for a debt, due from her testator, taking an engage-
ment from the drawer to renew the bill from time to time,
until sufficient effects were received from the estate of the
testator, it was held that this meant sufficient effects in the
ordinary course of administration, and that she had not pre-

1 Child V. Monins, 2 Brod. & Bing. thwaite v. Eirst National Bank, ante,
460 ; 5 Moo. 282 ; Barnard v. Pumfrett, where a similar doctrine was held as

5 My. & Cr. 71 ; I*orton v. EUam, 2 M. to the renewal of a note of the intes-

6 W. 461 ; Serle v. Waterworth, 4 M. tate by the executor.

& W. 9. ^ Lucas V. Williams, 3 GifiE. 150.

2 1 Cr. & J. 231. See also Com-

148 STATUTE OP FRAUDS. [CHAP. in.

eluded herself from first applying assets to pay £3,000 to
trustees for her own use, in discharge of a bond given by her
husband before marriage to that effect, before she paid the
acceptance.^

If executors endorse a bill, it is immaterial whether they
endorse it as executors or not. If they endorse it at all, they
are liable personally, and not as executors, for their endorse-
ment would not give them a cause of action against the
effects of the testator.^

Sec. 91. Action lies to Recover Specific Chattel ; or on
Promise in Consideration of Assets. — An action lies against
an executor to recover a specific chattel bequeathed after his
assent to the bequest.^ So an action lies upon an express
promise by an executor to pay a legacy in consideration of
assets,* and an action for money had and received will lie
upon admission by the executor that he had assets.^

Sec. 92. Not Necessary to Allege Assets. — Where it is
sought to charge the executor, de bonis propriis, on a promise
made on good consideration, it is not necessary to allege in
pleading that he had assets.^ In Bane's case^ it was said
that if there be no assets, it shall be given in evidence. But
this opinion has since been overruled.^ Where it is sought
to charge the defendant in his character of executor, and the
nature of the debt is such as necessarily makes him personally
liable, the judgment will, nevertheless, be de bonis propriis.^

Sec. 93. Executor, etc., not Bound to Plead Statute. — Neither
an executor or administrator is bound to plead the statute of
frauds, at the requirement or for the benefit of another, in
an action against himself, upon a claim, the obligation or
justice of which he admits to be founded in right and good
faith.10

1 Bowerbank !). Monteiro, 4 Taunt. Graham, 7 Taunt. 580; 1 Moo. 305;
844. Dowse v. Coxe, 3 Bing. 20 ; 10 Moo.

2 King V. Thorn, 1 T. E. 489, per 272.
BuLLEK, J. '9 Co. 94.

8 Doe V. Guy, 3 Bast, 120. « See 1 Wms. Saund. n. (1) ; 2

4 Atkins t). Hill, Cowp. 284 ;Hawkes Wms. Exors. 7th ed. 1778, n. (c).

0. Saunders, lb. 289. ^ Powell v. Graham, 7 Taunt. 585;

6 Gorton v. Dyson, 1 Brod. & B. Wigley v. Ashton, 8 B. & Aid. 101 ;

219 ; and see Barnard v. Pumfrett, 5 Corner v. Shew, 3 M. & W. 350.

My. & Cr. 63. w Ames v. Jackson, 115 Mass. 508;

6 Bane's Case, 9 Co. 94 ; Pqwell v. Cahill v. Bigelow, 18 Pick. (Mass.) 369.

CHAPTER IV.

GtTAEANTIES.

SECTION.

94. Application of the Statute.

95. Eule as to Pleading. Masters v. Marriott.

96. Rule in Harris v. Huntback.

97. Rule in Buckmyr v. Darnall.

98. Form of Promise not Decisive of its Character.

99. Attendant Circumstances to be Regarded. Eule in Anderson v. Hayman.

100. Eule in Keate v. Temple.

101. Statute does not Apply to Guaranty of Specialty Debts.

102. Must be Consideration for the Promise, Instances of.

103. Consideration need not More directly between the Parties.

104. Consideration must be New.

105. Consideration need not Appear in the Guaranty.

106. Special Consideration not Necessary.

107. Parol Evidence Admissible to Identify Subject-matter of Promise.

108. Bad Promise not Helped by Statute.

109. Statement of Consideration.

110. Amount of Consideration.

111. Construction of Guaranty.

112. Rules for Construing.

113. Instances of Considerations.

114. Meaning of the Words " Debt," " Default," " Miscarriage."

115. Promise Partly Within and Partly Without Statute.

116. Eule in Couch v. Meeker.

117. Promise to Guarantee, not Binding Until.

118. OfEer to Guarantee does not Bind till Accepted.

119. Offer may be Withdrawn.

120. Implied Acceptance.

121. Express Acceptance.

122. Waiver of Eeferences.

123. Original Debtor's Liability must Continue.

124. Tests for Determining Whether Promise is Collateral or Not.

125. Promise Must be to the Person Guaranteed.

126. If the Person Promised for is Liable at all, Promise must be in Writing.

127. Guarantor must not be Liable.

128. When Credit is Given to Guarantor.

129. Eule when Original Debtor is Discharged.

130. Question to Whom Credit was Given, for Jury.

131. Evidence as to Whom Credit is Given.

132. Must be Principal Debtor.

133. Must be Debt to Guarantee.

134. Rule when there is New and Independent Consideration.

135. Promise to Pay Broker.

136. Promise to Pay a Debt to be Transferred.

137. Promise by Execution Creditor.

138. Promise in Consideration of Percentage.

150 STATUTE OP rBAITDS. [CHAP. IV.

139. Promise to Pay out of Funds of Another.

140. Property Deposited with Promisor Charged with a Payment of the Debt.

141. Promise to the Debtor.

142. Promise of Grantee to Pay Mortgage Debt.

143. Promisor Estopped from Denying that He had Funds.

144. When Debt has become Debt of the Promisor.

145. When Promise Cannot be Revoked.

146. Ground upon which Doctrine Rests.

147. Parting with Security or Giving up Lien.

148. Rule in Maine. Stewart v. Campbell.

149. General Rule.

150. Promisor must Derive Benefit from Promise.

151. Forbearance to Sue, etc., not Enough, Unless.

152. Purchase of Debt.

153. Refraining from Distress.

154. Promise, when Original. Instances.

155. Statute Applies to Promises to Answer for Tortious Acts.
166. Bail in Criminal Cases.

157. When Liability Guaranteed is Extinguished.

158. Novation.

159. Indemnities, Whether Within Statute.

160. Promise to Indemnify Against Costs of Suit.
IGl. Parol Guaranty of Note Turned out to Pay Debt.

162. Contract for Del Credere Agency.

163. Goods Furnished to an Infant.

164. Rights under Parol Guaranty.

165. Dissolution or Alteration of Contract.

166. Application of Statute to Foreign Contract.
187. False Representations as to Solvency.

168. Statute Applies to Corporations.

Section 94. Application of the Statute. — This section does
not declare that contracts mentioned in it, if made by parol,
shall be void,^ but simply precludes the bringing of an action
thereon to enforce them.^ So far as the subdivision of the
section which relates to the topic treated in this section is
concerned, it wiU be observed that it applies only to collat-
eral undertakings, that is, to promises to pay a debt which
exists against another person, or to answer for that other's
default or miscarriage, and has no application where the prom-

^ But in Alabama, California, Da- ceived unless in writing, while in all

kota, Michigan, Montana, Nebraska, the others the provisions of the Eng-

Nevada, New York, Oregon, Utah, lish statute prevail.
Wisconsin, West Virginia, and Wyo- ^ Banks v. Crossland, L. R. 10 Q.

ming, the statute provides that such B. 99 ; Crosby v. Wadsworth, 6 East,

contracts shall be void unless in writ- 602 ; Bankworth v. Young, 4 Drew, 1 ;

ing, and in Iowa, that no evidence to Leroux v. Brown, 12 C. B. 801.
establish such contracts shall be re-

SEC. 94.]

GUAEANTIES.

151

isor is himself the debtor, although he becomes so for the
sole benefit of another person. The distinction is obvious.
Thus, if A requests B to perform certain services for C, and
promises to pay him therefor, A is the debtor, and conse-
quently his promise is original and not collateral, even
though C has the entire benefit of B's services.^ Thus,

' Brown v. George, 17 N. H. 128 ;
Axbuckle v. Hawks, 20 Vt. 538;
Backus V. Clark, 1 Kan. 303. Pren-
tice V. Wilkinson, 5 Abb. Pr. (N. Y.)
N. s. 49; Kand o. Mather, 11 Cush.
(Mass.) 1; Warnick v. Groshalz, 3
Grant's Cas. (Penn.) 234; Deylin v.
"Woodgate, 34 Barb. (N. Y. ) 252 ; Eowe
V. Whittier, 21 Me. 545 ; Benedict v.
Dunning, 1 Daly-(N. Y.C. P.) 241. And
the same rule applies to a promise to
pay for services out of funds which the
promisor lias in his hands belonging to
the debtor left with him for that pur-
pose. Thus A agreed with a railroad
company to build a portion of their
road; he also agreed to pay the labor-
ers he employed, and save the company
harmless from their demands, by allow-
ing the company to retain enough in
their hands for this purpose. A let out
a portion of this work to B, a sub-con-
tractor, and he made the same agree-
ment with A, as A had made with the
company. B proceeded with the work,
but at length stopped, leaving his
laborers unpaid, who then took meas-
ures under the statute to enforce their
claims against the company; and
thereupon, A requested B to obtain
from C his bills against the laborers
for supplies furnished to them, which
he did. A then paid the laborers
what B owed them, retaining in his
hands what they owed C, which debts
he agreed to pay C, the arrangement
being assented to both by B and C,
and the laborers being discharged
from any liability to C. It was held
that this was a valid and binding
agreement, and did not come within
the statute of frauds, and that C
might maintain an action against A
thereon, for money had and received
to C's use, even although A was not
originally liable to the laborers.

Beach v. Ilungerford, 19 Barb. (N. Y.)
258.

The rule may be said to be that if the
promise springs fromanewtransaction,
or moves to the party promising upon
some fresh and substantive ground,
of a personal concern to the promi-
sor, the statute does not attach upon
such promise, if the consideration is
sufficient, though existmg in parol
only. In other words, promises made
on a new consideration, having no im-
mediate relation to the liability of
the person on whose account they are
made, are not within the provisions of
the statute. Gold v. Phillips, 10
Johns. (N. Y.) 412; Myers v. Morse,
15 id. 425 ; Stocking v. Sage, 1 Conn.
519 ; Colt V. Root, 17 Mass. 229.

Thus, unless the liability of the
person to whom, in the case of Buck-
myr v. Darnall, the horse had been
lent, had arisen upon an implied con-
tract to re-deliver him, for which
detinue might be brought (which is
a, species of mixed remedy, resting
partly on contract, and partly on tort)
the promise of the defendant would
have wanted that correspondence
with the original liability of the party
answered for, which was necessary to
bring it within the statute ; for it was
remarked by Powell, J., with his usu-
al discrimination, that there must not
only be a remedy against the other,
but a remedy upon the same contract;
and, as the council for the plaintiff
put it, the question upon the statute
is not only whether an action does or
does not lie against the party himself
upon the contract, but also whether
it does or does not lie against him
upon collateral respects. If, there-
fore, the promise is founded upon a new
distinct consideration, moving to the
party promising, it seems a perfectly

152

STATUTE OF PEAUDS.

[chap. IV.

where a father requested an attorney to take charge of cer-
tain suits in which his son was interested, and said that if he

established doctrine, upon all the
cases, that the statute will not ex-
tend to it. In the case of Castling v.
Aubert, there was a "distinct and new
consideration, to wit, the giving up
of the securities, which were in the
hands of the plaintiff. The argu-
ment seems, therefore, to have taken
much too narrow a ground, when it
was contended, it the report states
accurately the words of the counsel,
that the statute was no bar to the
plaintiff's recovery in that case, as it
only applied to cases where there was
no consideration for the promise ; for
if that had been the only object of the
statute, it would have been nugatory
in respect to this branch of its provi-
sions, because the promise would have
been a nudum pactum by the common
law, without a sufficient consideration.
But the true hne of argument was
that there was a new and engrafted
consideration, moving to the party
himself, who made the promise, and
not to the party in respect to whose
liability the promise was made.
The authorities adduced to prove
that the existence of a consideration
took a case out of the statute, did
not prove what is certainly not law,
but they proved that this was the
consequence of there being a (dis-
tinct consideration superadded. As in
Meredith u. Short, 1 Salk. 25, where
the promise was in consideration of a
delivery of a note, under J S's hand,
for £60, and so again in Love's Case,
1 Salk. 28, where the promise was by
a stranger to a sheriff's officer, in con-
sideration that he would restore goods
taken on a, fieri facias, to pay the debt
of the defendant. Sustaining the doc-
trine of Castling v. Aubert, ante, see
Wolff!;. Koppel, 5 Hill (N. Y.) 458;
Gardiner v. Hopkins, 5 Wend. (N. T.)
23; Olmstead v. Greenly, 18 John.
(N. Y.) 12; Hindman v. Langford, 3
Strobh. (S. C.) L. 207 ; Allen v. Thomp-
son, 10 N. H. 32 ; French v. Thompson,
6 Vt. 54.

It appears, from the case of Tom-
linson v. Gill, Amb. 330, to have
been clearly Lord Hakdwioke's
opinion, that if the consideration of the
promise takes its root in a transaction
distinct from the original liability, the
case is out of the statute. There the
defendant. Gill, promised the widow
and administratrix of an intestate,
that if she would permit him to be
joined with her in the letters of ad-
ministration, he would make good any
deficiency of assets, to discharge the
intestate's debts. Thus, also, in Read
V. Nash, 1 Wils. 305, the consideration
of the promise was perfectly distinct
from any liability of the original de-
fendant: Tuack, the plaintiff's testa-
tor, brought an action of assault and
battery against one Johnson; the
cause being at issue, the record en-
tered, and first coming on to be tried,
the defendant Nash, being then present
in court, in consideration that Tuack
would not proceed to trial, lout would
withdraw his record, undertook and
promised to pay Tuack i50, and the
costs in that suit to be taxed up to the
time of withdrawing the record; the
statute was pleaded, and the plaintiff
demurred, and Lee, C. J., declared
the opinion of the court to be, that
this promise was an original promise,
sufficient to found an assumpsit upon
against Nash; Johnson was not a
debtor; the cause was not tried; he
did not appear to be guilty of any
default or miscarriage; there might
have been a verdict for him, if the
cause had been tried, for anything
the court could tell ; he never was lia-
ble to the particular debt, damages, or
costs. But in all cases the considera-
tion must be sufficient to support the
promise, and must enure to the bene-
fit of the promisor, and it is not
enough that the promise gives up
some benefit or advantage because of
it, and mere forbearance is insufficient.
Curtis V. Brown, 5 Cush. (Mass.) 491 ;
rish V. Thomas, 5 Grey (Mass.) 45;

SEC. 94.]

GUAEANTIES.

153

would do the business for his son, he would pay him, his
promise was held to be an original undertaking, and not

Brightman v. Hicks, 108 Mass. 240;
Hilton V. Dinsmore, 21 Me. 410 ; Long
V. Henry, 54 N. H. 57 ; Myers v.
Morse, 15 John. (N. Y.) 425; Meech
V. Smitli, 7 Wend. (N. Y.) 315; Tay-
lor D.Drake, 4 Strobh. (S. C.) L. ^31;
Ragland v. Wynn, 1 Lit. Cas. (Ala.)
270; Tompkins v. Smith, 3 S. & P.
(Ala.) 34 ; Thomas w. Delphy, 33 Md.
373 ; Musick a. Musick, 7 Mo. 495 ;
Brown !>. Barnes, 6 Ala. 694 ; Harring-
ton t>. Eich, 6 Vt. 660 ; Cooper v. Cham-
bers,4 Dey. (N. C.) 261 ; Carton v. Moss,
1 Bailey (S. C.)L.14; Creel ti.Ball, 2
J. J. Mar. (Ky.) 309; Templeton v.
Bascom, 33 Vt. 132.

But the case most illustrative of
tliis distinction between a promise,
the only moving consideration for
which is the liability of another per-
son, and that which is grounded upon
a superadded inducement, is that of
"Williams v. Leper, 3 Burr, 1886.
Taylor, a tenant of the plaintiff, be-
ing in arrear for rent to the amount
of i£45, for three-quarters of a year,
conveyed all his effects for the bene-
fit of his creditors. They employed
Leper, the plaintiff, as a broker, to
sell the effects ; who, accordingly, ad-
vertised a sale. On the morning ad-
vertised for the sale, "Williams, the
landlord, came to distrain the goods
in the house. Leper, having notice
of the plaintiff's intention to distrain,
promised to pay the arrear of rent,
if he would desist from distraining ;
and "Williams, on the faith of this
promise, desisted accordingly. At the
trial a verdict was found for the plain-
tiff, for i45, and on a case reserved,
it was contended on behalf of the
plaintifi, that this was not such a
special promise for the debt of an-
other, as was within the statute of
frauds, which only meant to defeat
parol promises, where there was no
new consideration moving from the
party making the promise to the party
to whom it was made, and that the
legislature did not mean to prevent

direct undertakings, but only collat-
eral ones, for the debt, default, or
miscarriage of others. It was also in-
sisted that in this case there was a new
consideration ; for the reason that the
goods of Leper were, at the time of
the promise, liable to the landlord's
distress. It was, therefore, a direct
undertaldng for himself, and not for
another. The plaintiff had a legal
interest in these goods, prior to the
bill of sale, and was deprived by the
defendant of an advantage which he
could never have again. The prop-
erty of the goods was in Leper as a
trustee for the creditors, at the time
■vjhen he made this promise; it was,
therefore, an original undertaking,
moving upon consideration personal
to himself.

It was answered by the counsel
for the defendant, that upon this
declaration, coupled with the facts
given in evidence, the plaintiff had u
right to recover this £45 because the
declaration expressly charged " that
Taylor was indebted to the plaintiff,
in £45 for three-quarters of a year's
rent ; and that the defendant under-
took to pay it ; " which was directly
within the words of the statute of
frauds, " a special promise to answer
for the debt of another person. " That
Leper was in possession of the goods
of the tenant, who owed the plaintiff
three-quarters' rent, and being about
to sell them, the landlord came to dis-
train for this rent in arrear, and Leper
promised to pay it, if he would desist
from distraining. He promised abso-
lutely to pay it, and not to pay it out
of the goods, or with any other restric-
tion. But Lord Mansfield said
that the case had nothing to do with
the statute of frauds. The res gestae
would entitle the plaintiff to his action
against the defendant. The landlord
had a legal pledge. He entered to
distrain ; he had the pledge in his cus-
tody. 'The defendant agreed that the
goods should be sold, and the plaintiff

154

STATUTE OP FEATTDS.

[chap. IV.

within the statute.^ But a promise by A to B that if he will
perform certaia services for C, he will pay him if C does not,

1 Hodges u. Hall, 29 Vt. 209.

paid in the first place. The goods
were the fund ; the question was not
between Taylor the tenant, and the
plaintiff the landlord. The plaintiff
had a, lien upon the goods. Leper
was a trustee for all the creditors, and
was obliged to pay the landlord, who
had the prior lien; this has nothing
to do with the statute of frauds. Wil-
MOT and Yates, JJ., were of the
opinion that this was an original
promise; and Aston, J., said, he
looked upon the goods to be the debt-
or, and that Leper was not bound to
pay to the landlord more than the
goods sold for. — The goods were, a
fund between both, and on that ground
he concurred. Clark v. Hall, 10 N. J.
Eq. 78 ; Woodward v. Wilcox, 27 Ind.
78; Alger v. Scoville, 1 Gray (Mass.)
391; Stoudts v. Hiue, 45 Penn. St. 30;
Slingerland v. Morse, 7 John. (N. Y.)
463 ; Rogers v. Collier, 2 Bailey (S. C.)
581 ; McCrary v. Madden, 1 McCord
(S. C.) L. 436. A case quite similar
to Williams v. Leper, ante, Is Edwards
V. Kelly, 6 M. & S. 208, and the same
rule was adopted. See, also, Bampton
V. Paulin, 4 Bing. 264. The rule is
well established in this country that
the relinquishment of a lien or advan-
tage which inures to the benefit of the
promisor, makes the undertaking
original. Arnold v. Stedman, 45 Penn.
St. 186 ; King v. Despard, 5 Wend.
(N. Y.) 277; Corldns v. Collins, 16
Mich. 478; Burr v. Wilcox, 13 Allen
(Mass.) 269; Richardson v. Robbins,
124 Mass. 105 ; Krutz v. Stewart, 54
Lid. 178 ; Boyce v. Owens, 2 McCord
(S. C.) L. 208; Crawford v. King, 54
Ind. 6 ; Luark v.. Malore, 34 id. 444 ;
Spooner v. Drum, 7 id. 81 ; Conradt
V. Sullivan, 45 id. 180; Scott v.
Thomas, 2 III. 58; Stewart v. Camp-
bell, 53 Me. 439.

The case of Fish u. Hutchinson, 2
Wils. 94, is plainly distinguishable
from the case of Williams v. Leper,
and Read v. Nash, ante. In that case

the facts were that Vickars was in-
debted to Fish in a sum of money,
and Fish had commenced an action
for it. The defendant promised,
that in consideration the plaintifE
would stay his action against Vickars,
he would pay the money which was
owing. There was a debt subsist-
ing at the time of the promise, so
that the liability of him, on whose
behalf it was made, was the moving
consideration to the promisor. The
liability of the party was so immedi-
ately the ground of the promise, that
the action could not have been sus-
tained against the promisor, without
showing such liability to have been in
existence when the promise was made.
In Williams v. Leper, it was the prom-
isor's oivn liability, which was the im-
mediate ground of the promise, and
however that liability might be shown
to have originated in the tenant's lia-
bility primarily to pay the rent, yet
the promise, being immediately moved
by the defendant's own liability, by
reason of his having possession of the
goods, whereon the plaintiff's lieu had
attached, might in that respect be
said to be original. The tenant's lia-
bility was in fact removed by the
distress upon the goods, and the ob-
ject of the promisor, in procuring
the fund to be released from the
plaintiff's claim, was not for the
benefit of the tenant, or intended
in any way to uphold or sustain his
credit. The tenant's liability was
sunk in the subsequent proceeding.
In Read v. Nash, the defendant in
the first action had not yet become
liable ; the period had not arrived, at
which any debt, default, or miscar-
riage could be imputed to him. If
judgment had been given in the first
action, ascertaining the damages, a
promise by a third person to pay these
damages would doubtless have been
within the statute ; for then a specific
liability would have arisen. Tomlin-

SEC. 94.J

GUAEANTIES.

155

is collateral, and within the statute unless in writing ; ^ so if
A says to B, "you go on and do the work, and I will see you
paid ; " or, " if C employs you, I will see you are paid ; " ^ or,
"I will be responsible for the pay,"^ are sl\ prima facie, col-
lateral undertakings, because they are contingent upon the
failure of the person promised for, to pay. But where the
sole credit is rightfully given to the person promising, the
undertaldng is original, and not within the statute ; but if
any credit is given to the person promised for, such liability
is conclusive that the promise is collateral.* K the credit is
jointly given to the promisor and the person promised for,
the promise is within the statute.^ But if the credit is given
solely to the promisor, it is an original undertaldng.^ In

son V. Gell, 6 Ad. & El. 571. If a
benefit or advantage is given up by
the promisee, which enures directly to
the advantage of the promisor, the
promise is original. Laung v. Erench,
35 "Wis. Ill ; Scott v. White, 71 HI.
287 ; Lampson v. Hobart, 28 Vt. 697 ;
Curtis V. Brown, 5 Cush. (Mass.) 491;
Nelson v. Boynton, 3 Met. (Mass.) 396 ;
Cross V. Richardson, 30 Vt. 641 ; Ames
V. Foster, 106 Mass. 400 ; Hodgkins v.
Kearney, 15 Minn. 185.

1 Aldrich v. Jewell, 12 Vt. 125.

2 Skinner v. Conant, 2 Vt. 453;
Brown k. .Webber, 24 How. Pr. (N. Y.)
306; s. c. 38 N. Y. 187. So where a
person says to another, whom B is
about to employ, "B is good; if
not,. I am," Steele v. Towne, 28 Vt.
771.

' Larson v. Wyman, 14 Wend.
(N. Y.) 246. But in all cases the
question, irrespective of the form of
expression used, is for the jury, to say
from all the circumstances whether
the promisee gave credit to the prom-
isor solely, and had a right to do so.
Thus A, under a contract with B, was
building a house on lands of C, and
said to C, " I want you to agree to pay
me for building the house, or I can do
no more to it," and C replied, " You
go on and finish the house, and I will
pay you," and it was held to be a
question for the jury whether this new
contract was collateral or original.
Sinclair y. Richardson, 12 Vt. 33;

Stone V. Walker, 13 Gray (Mass.)
613 ; Billingsley v. DcmpewoU, 11 Ind.
414 ; Hall v. Wood, 4 Chand. (Wis.)
36. A promise by one to be respon-
sible and stand good for the pay by
an employer of the wages of an em-
ployee, is a collateral undertaking.
Miller v. Niehaus, 51 Ind. 401.

* Ware it. Stephenson, 10 Leigh.
(Va.) 155; Read v. Ladd, 1 Edm.
(N. Y.) Sel. Cas. 100; Cutter v. Hin-
ton, 6 Rand. (Va.) 509; Kurtz .,.
Adams, 12 Ark. 174 ; Kinloch v. Brown,
1 Rich. (S. C.) 223 ; Cropper v. Pitman,
13 Md. 190 ; Taylor v. Drake, 4 Strobh.
(S. C.) 431; Cahill v. Bigelow, 18
Pick. (Mass.) 369; Hill v. Raymond,
3 Allen (Mass.) 540; Swift v. Pierce,
13 id. 136; Knox v. Nutt, 1 Daly,
(If. Y. C. P.) 213 ; Brown v. Bradshaw,
1 Duer (N. Y.) 199; Walker v. Rich-
ards, 39 N. H. 259 ; s. c. 41 id. 388 ;
Dixon V. Frazer, 1 E. D. S. (N. Y. C.
P.) 32; Allen v. ScarfE, 1 Hilt. (N. Y.
C. P.) 209; Hetfield v. Dow, 27 N. J.
L. 440 ; Brady v. Sackrider, 1 Sandf.
(N. Y.) 514; Carville v. Crane, 5 Hill
(N. Y.) 483 ; McDonnell v. Dodge, 10
Wis. 106 ; Cowdin v. Gottgetreau, 55
N. Y. 650.

s Matthews u. Milton, 4 Yerg.
(Tenn.) 576.

« Williams v. Corbett, 28 Rl. 262 ;
Porter v. Langhorn, 2 Bibb. (Ky.) 63 ;
Nelson v. Hardy, 7 Ind. 364; Briggs
V. Evans, 1 E. D. S. (N. Y. C. P.) 192;
Weyland v. Crichfield, 3 Grant's Cas.

156

STATUTE OF FEATJDS.

[chap. IV.

order to make a promise collateral and within tlie statute,
there must he, 1. A liability in the original party to pay the
debt, or to perform some act existing and ascertained at the
time when the promise was made.^ 2. The consideration of
the promise must he immediately connected with the liability,^ and
3. TJie promise must be made to the party to whom the original
debt is owing, and to do the same thing which the original debtor
was liable to do, because, if there was no liability on the part
of the person promised for, or if the promise was made upon
a new and independent consideration of benefit or power
moving between the promisor or promisee, or if it was
made to the debtor himself, or if the original debtor was
discharged from the debt, or by virtue of the promise the
promisor becomes in fact or in law the purchaser of the
debt, the undertaking is original and not within the statute.^

(Penn.) 113; Dunning v. Roberts, 35
Barb. (N. Y.) 463.

1 Prentice v. Wilkinson, 5 Abb. Pr.
(N. Y.) N. S. 49; Mease v. "Wagner, 1
McCord (S. C.) 395; Chapin v. Lap-
ham, 20 Pick. (Mass.) 467; Miller v.
Long, 45 Penn. St. 350 ; Connerat v.
Goldsmith, 9 Ga. 14 ; ICimbaU v. New-
ell, 7 Hill (N. Y.) 116; Maggs ^.
Ames, 4 Bing. 470; Thompson a.
Blanchard, 3 N. Y. 335; Griffin v.
Derby, 5 Me. 476 ; Johnson ;-. Noonan,
16 Wis. 687; Lampson v. Swift, 11
Vt. 315; Walker v. Norton, 29 Vt.
226; Peck v. Thompson, 15 id. 637;
Merrill v. Englesby, 28 id. 150 ; Roche
V. Chaplin, 1 Bailey (S. C.) L. 419;
Douglass V. Jones, 3 E. D. S. (N. Y.
C. P.) 551; Mountstephen v. Lake-
man, L. R. 7 H. L. 24; Dexter v.
Blanchard, 11 Allen (Mass.) 365;
Clark V. Levi, 10 N. Y. Leg. Obs. 184 ;
Dovmey v. Hinchman, 25 Ind. 453;
Duffy V. Wunsch, 42 N. Y. 243.

2 Simons v. Steele, 36 N. H. 73;
Leonard v. Vredenburgh, 8 John.
(N. Y.) 9; Richard v. DeWolf, 1
Paine (U. S. C. C.) 580; Nelson v.
Boynton, 3 Met. (Mass.) 396; Town-
ley V. Sumrall, 2 Pet. (N. S.) 170;
Larson v. Wyman, 14 Wend. (N. Y.)
246. There must be some consid-
eration valid in law to support the
promise. Crane v. Bullock, E. M.

Charlt. (Ga.) 318; Sears v. Brink, 3
John. (N. Y.) 210; Ware v. Adams,
24 Me. 177 ; Gillighan v. Boardman,
29 id. 79 ; Himtress v. Patten, 20 id.
28; ElUottK. Giese, 7 H. & J. (Md.)
457.

8 Booth V. Eighme, 60 N. Y. 238 ;
Stone V. Symmes, 18 Pick. (Mass.)
467; Watson c. Jacobs, 29 Vt. 1G9;
White V. Solomonsky, 30 Md. 585;
AUhouse V. Ramsey, 6 Whart. (Penn.)
331; Armstrong v. Elora, 3 T. B.
Mon. (Ky.) 43; Watson v. Randall,
20 Wend. (N. Y.) 201; Draughan o.
Bunting, 9 Lred. (N. C.) 10; Robinson
V. Lane, 22 Miss. 101; Clisk u. Mc-
Affee, 7 Port. (Ala.) 72; Moseley v.
Taylor, 4 Dana (Ky.) 542; Yale v.
Edgerton, 14 Minn. 194 ; Haggerty v.
Johnson, 48 Ind. 41 ; Corbett u.
Cochran, 3 Hill (S. C.) 41; Dawes
V. Young, 40 Ga. 65; Bxmting v.
Darbyshire, 75 HI. 408; Cooper v.
Chambers; McCaffie v. Eadcliffe,
3 Rob. (N. Y.) 445; Rhodes v. Leeds,
3 S. & P. (Ala.) 212 ; Doyle v. White,
26 Me. 341; Brown v. Curtis, 2 N. Y.
225; Antonio v. Clissy, 3 Rich. (S. C.)
L. 201; Arbuckle v. Hawks, 20 Vt.
538 ; Whitman v. Bryant, 49 id. 511 ;
Aldrich v. Jewell, 12 id. 125 ; Bushel
V. Allen, 31 id. 613; Darlington v.
McCann, 2 E. D. S. (N. Y. C. P.) 411 ;
Norris t,. Graham, 33 Md. 56 ; Gibbs

SEC. 95.] GUARANTIES. 157

But where the undertaking is collateral, by reason of the
existing liability, a special declaration on such promise
becomes necessary .; and if the undertaking was to pay upon
request, the declaration must state formally and explicitly that
a request was made ; nor will the usual allegation in the com-
mon counts, that the defendant did not pay, although often
requested, in such case, be suificient.^

Sec. 95. Rule as to Pleading. Masters v. Marriott. —
Whether such special mode of declaring is necessary or
not will depend upon the question, whether the promise was
original or collateral; the point has, therefore, sometimes
come under adjudication, not on the statute of frauds, but on
the rules of pleading ; as in the case of Masters v. Marriott,^
where the plaintiff declared in an action of assumpsit, that
the defendant had sold to him a bay gelding for eight guineas,
and that lie agreed on the sale, that in consideration the
plaintiff had paid to the defendant the eight guineas, he, the
defendant, promised to the plaintiff, that if he disapproved of
the gelding, and delivered it to Barham for the defendant's
^lse, that Barham should repay the said eight guineas, and if
Barham did not pay it, that defendant would repay it on
request. The declaration then averred that the plaintiff did
disapprove of the gelding, and delivered it to Barham, and
requested him to pay the eight guineas, which he refused to
do upon request. The plaintiff also declared in another
count upon an indebitatus assumpsit for another eight guineas,
had and received to his use, and concluded that the defend-
ant, not regarding his said several promises, had not, although
often requested, repaid the said sums, to the damage of the
plaintiff. On nan assumpsit pleaded, a verdict was giA'^en for
the plaintiff, with entire damages ; and it was moved in arrest
of the judgment, and argued several times, that the promise
to repay the eight guineas, if Barham did not do it, was a
collateral promise to pay in default of another, and that the
defendant was not a debtor, but only a surety in default of
Barham, and that, consequently, a special request to the

V. Blanchard, 15 Mich. 292 ; ex parte ^ 3 Lev. 363 ; and see 1 Roll. Abr.

"Williams, 4 Yerg.(Tenn.) 579; Walker 27, 30, 32; 1 EoU. Rep. 275-6; Cro.

V. Richards,' 39 N. H. 259; Ruggles v. Jac. 386, 500; 3 Bulst. 94; 1 Danv.

Gatton, 50 111. 412. Abr. 68 ; 1 Vent. 43, 268, 293, 311 ; 2

1 Roberts on Frauds, 215-223. Vent. 36; 1 Salk. 23; 2 Saund. 136.

158 STATUTE OP PEAT7DS. [CHAP. IV.

defendant ought to have been laid, and that saepius requisitus
fuit was insufficient ; that there should have been a notice
that Barham had not paid, and a special request to the
defendant ; for the promise of the defendant was that he
would pay it, if Barham did not; and the damages being
entire on the promises in both counts, it was contended that
the plaintiff could not have judgment. But it was held
by the court that it was not a collateral promise to pay
a debt for another, but that the whole was one entire con-
tract upon 'the sale, and was in effect, that the plaintiff
bought the gelding upon the condition that if he did not
like him, he should receive back his money, and the defend-
ant received the money upon the same condition ; and that
when the condition was performed by the disapproval of the
gelding, and the returning of it to Barham, the contract was
void and at an end, and the money was in the hands of the
defendant as a debtor to the plaintiff as for money re-
ceived to the plaintiff's use, and Barham was no more than
a servant to receive the gelding, and to repay the money,
and that by his not paying it, the plaintiff, as master, was the
debtor, and upon this ground judgment was given for the
plaintiff upon the whole declaration, the count upon the in-
debitatus assumpsit being considered good, and the judgment
was afterwards affirmed in error. The statute of frauds was
not in question in tliis case, the undertaking probably hav-
ing been in writing ; but the precise point could not have
been more directly raised upon the statute, than it was in
this instance upon the principles of pleading.

Sec. 96. Rule in Harris v. Huntback. — The necessity for the
actual liability of the person undertaken for, was the point
decided in Harris v. Huntback,^ where the promise appeared

1 1 Burr, 371. But it cannot be 508; Chicago Dock Co. o. Kenzie, 49

assumed in an action between third 111. 289; Aicarde v. Craig, 42 Ala.

parties that the promisor would set 311; Beal v. Brown, 13 Allen (Mass.)

up the statute to defeat his liability. 114 ; Crawford v. Woods, 6 Bush

Downey v. Hinchman, 25 Ind. 453; (Ky.)200; Sneed v. Bradley, 4 Sneed

Dexterv.Blanchard, 11 Allen (Mass.) (Tenn.) 301; Hall «. Soule, 11 Mich.

365. The protection afiEorded by the 494; Houser u. Lamont, 55 Penn. St.

statute may be waived, and the privi- 311 ; Dung v. Parker, 52 N. Y. 494 ;

lege afforded by it being personal, it Baltzen v. Nicolay, 53 id. 467 ; Garrett

cannot be set up by a person not privy v. Garrett, 27 Ala. 687 ; Gadden v.

to the contract. Fowler v. Burget, 16 Pierson, 42 id. 370 ; Caliill v. Bigelow,

Ind. 841 ; Ames !). Jackson, 115 Mass. 18 Pick. (Mass.) 869; HufEman v.

SEC. 96.] GUARANTIES. 159

to be in writing, but upon the same rule in pleading of showing
specially the collateral promise, and not relying upon the com-
mon indebitatus assumpsit, a similar doctrine was established.
The cause came before the court upon a case reserved for
their opinion in an action upon a general indebitatus assumpsit,
in which the plaintiff declared upon two counts : the first for
money lent and advanced by the plaintiff at the defendant's
request ; and the second for money laid out and expended by
the plaintiff at the defendant's request; and the question
upon the case stated was, whether the evidence supported the
declaration. On the first count, the evidence produced was
a note of the defendant's, in the following words : " 3d Decem-
ber, 1751, Then received of Mr. Harris the sum of £19, on
behalf of my grandson, which I promise to be accountable
for on demand. Witness my hand, S. Huntback."

On the second count, the evidence was that one Davidson,
coming to the plaintiff by the defendant's order, for money
to pay workmen, the plaintiff refused to pay the money
unless the defendant would sign a receipt. Whereupon the
defendant wrote the following note: "Mr. Harris, at the
earnest request of the gardener, the workmen wanting money
greatly for the work at the woodhouses, this is to certify,
that at my request you pay to Mr. Davidson, on the account
of Master Hillier, for the workmen's use, the sum of <£15, as
witness my hand, S. Huntback." And a receipt was given
by the said Davidson the gardener, to the plaintiff, on the
plaintiff's paying him this £15.

It was contended, on behalf of the defendant, that inde-
bitatus assumpsit would not lie upon a collateral undertak-
ing ; but it was clearly determined by the court, that as there
was no remedy against the infant, it was an original and not
a collateral undertaking ; and Buckmyr v. Darnall ^ was
cited, in which it was held, that where no action will lie against
the party, undertaJcen for, it is an original promise.^ Accord-

Ackley, 34 Mo. 277 ; Kratz v. Stocke, bins from performing the contract.

42 id. .351, In Eice v. Manley, 2 Hun In an action against him therefor, it

(N. Y.) 492, the plaintiff and one was held that, unless there was a con-

Stebbins • entered into a verbal con- tract between the parties which could

tract for the sale of cheese. The de- have been enforced, no action would

f endant by false representations, and lie against the defendant for his fraud,

by sending a false telegram in the i 2 Lord Eaym. 1085 ; 6 Mod. 248.

name of the plaintiS, prevented Steb- ^ In such cases the debt is treated

160 STATUTE OF FEATJDS. [CHAP. IV.

ing to this ease, it seems not only necessary that the party for
whom the promise is made should be liable, but that he should
be or become liable at the time of the promise being made. And
by the opinions of the court in the same case, it also appears
that the liability and the promise ought to grow out of the same
contract.^

Sec. 97. Rule in Buckmyr v. Darnall. — In Buckmyr v.
Darnall, ante, which was an action of assumpsit, the plaintiff
declared that the defendant, in consideration that the plain-
tiff, at his request, would let to hire, and deliver to -one
Joseph English, a gelding of the plaintiff's, to ride to Read-
ing, in- the county of Berks, undertook and promised the
plaintiff, that the said Joseph would deliver the said gelding
to the plaintiff. Upon non assumpsit pleaded, the case
came to trial before Holt, C. J., at Westminster Hall ; and
the counsel for the defendant insisting that the plaintiff
ought to produce a note in writing of the promise within
the statute of frauds, and the Chief Justice doubting, a
case was made and ordered to be moved in court, to have
the opinion of the other judges. And it was argued and
insisted for the defendant, that the case was within the

as the debt of the promisor. Walker 260; Headrick v. Wiseheart, 57 Ind.

V. Norton, 29 Vt. 226; Chicago &e. 128; Tarhell y. Stevens,- 7 Iowa, 163;

Canal Co. v. Liddell, 69 111. 639 ; San- Rice v. Barry, 2 Cr. (XT. S. C. C.) 447 ;

'bom ... Merrill, 41 Me. 467; Whit- Files «. McLeod, 14 Ala. 611.
comb V. Kephart, 50 Penn. St. 85 ; i But where the promise arises from

Walker v. Hill, 119 Mass. 249 ; Duffy a new consideration, moving either

V. Wunsch, 42 N. Y. 243; Hull v. from the promisee, Arnold v. Sted-

Brown, 35 Wis. 652 ; Allaire v. Craw- man, 45 Penn. St. 186 ; Burr v. Wil-

ford, 2 John. (N. Y.) Cas. 52; Adams cox, 13 Allen (Mass.) 369; Russell ^.

V. Densey, 6 Bing. 506; Dorwin v. Babcock, 14 Me. 138, or the person

Smith, 35 Vt. 69 ; Goodspeed v. Fuller, for whose benefit the promise is made,

46 Me. 141 ; Stocking v. Sage, 1 Conn, it is not, as we shall hereafter see,

518 ; Chapman v. Ross, 12 Leigh, -within the statute. Presbyterian &c.

(Va.) 565; Tarr v. Northey, 17 Me. Soc. «. Staples, 23 Conn. 544; Colt «.

113; Evans v. Mason, 1 Lea (Tenn.) Root, 12 Mass. 229; Helms w..Kearns,

26; Conkey v. Hopkins, 17 John. 40 Ind. 124; Balliet «. Scott, 32 Wis.

(N. Y.) 113; Flemm v. Whitmore, 23 174; Welch v. Kenney, 49 Cal. 49;

Mo. 430 ; Apgar v. Hiler, 24 N. J. L. Taylor v. Preston, 79 Penn. St. 436 ;

812; Barry v. Ransom, 12 N. Y. 462; Besshears v. Rowe, 46 Mo. 501 ; John-

Ferrell v. Maxwell, 28 Ohio St. 383 ; son v. Knapp, 36 Iowa, 616 ; Seaman

Comstock V. Morton, 36 Mich. 277; v. Hasbrouck, 35 Barb. (N. Y.) 151;

Beamon v. Russell, 20 Vt. 205 ; Baker Runde v. Runde, 58 111. 232 ; Urquhart

V. Dillman, 12 Abb. Pr. (N. Y.) 313; v. Brayton, 12 R. I. 169; Mitchell v.

Kingsley w. Balcom, 4 Barb. (N. Y.) Griffin, 58 Ind. 159; Maxwell w.Haynes,

131; Wildes v. Dudlow, L. R. 19 Eq. 41 Me. 559.
Cas. 198; Hopldns v. Carr, 31 Ind.

SEC. 97.]

GXTAEANTIES.

161

statute, for it was the promise to answer for the default and
miscarriage of the person the horse was lent to. That the
very letting out and delivery of the horse to English implied
a contract by English to redeliver him, and he was bound
by law so to do, and consequently the defendant's promise
was to answer for the default of another. And the counsel
for the defendant reminded his Lordship of his own ruling,
that where an action will lie against the party himself, there,
an undertaking by a third person is within the statute ; but
that where no action will lie against the party himself, it is
otherwise.^ And he said he agreed, that if a man should say
to another, do you build a house for J S and I will pay you ;
that case is not within the statute, because there J S is not
liable. But the case is not more than this, if a man should

1 This is still the rule, and the de-
cisive test as to whether the under-
taking is collateral or original, and
the statute does not require the prom-
ise of a defendant to he in writing
where it is in effect to pay his own
debt, though that of a third person
be incidentally guaranteed ; it ap-
plies to a mere promise to become
responsible, but not to actual obliga-
tions. Malone v. Keener, 44 Penn,
St. 107 ; Creel v. Bell, 2 J. J. Marsh
(Ky.) 309 ; Alcalda v. Morales, 3 Nev.
132 ; Gold v. Phillips, 10 John. (N. Y.)
412; Wolff V. Koppel, 2 Den. (N. Y.)
368 ; Therasaon v. McSpedon, 2 Hilt.
(N. Y. C. P.) 1; Stoddard v. Graham,
23 How. (N. Y.) Pr. 518; PhilUps v.
Gray, 3 E. D. S. (N. Y. C. P.) 69;
Clymer v. De Young, 54 Penn. St.
118; Romson v. Hope, 18 Tex. 446;
Barringer v. Warden, 12 Cal. 311;
Williams i. Little, 36 Vt. 323 ; Story
V. Menzies, 4 Chand. (Wis.) 61; Cot-
terill V. Stevens, 10 Wis. 422 ; Cook v.
Barrett, 15 Wis. 596. A promise by
a company, or its agent, to pay an ac-
count due from the company, which
has been assigned to a third person, is
not within the statute of frauds, and
need not be in writing. Mt. Olivet
Cemetery v. Shubert, 2 Head (Tenn.)
116. The rule being that if the peiv
son on whose account the promise is
made is not liable at all, the under-

taking is original, and is valid, al-
though by parol. Wallace v.Wortham,
25 Miss. 119 ; Mease v. Wagner, 1 Mc-
Cord (S. C.) 395; but if any liability
for the debt remains against the party
for whose benefit the promise was
made, it is a collateral undertaking.
Wainwright v. Straw, 16 Vt. 215;
Perkins v. Goodman, 21 Barb. (N. Y.)
218; Blank ^. Dreher, 25 111. 331;
Eddy V. Roberts, 17 id. 505 ; Bronson
ti.Stroud,2 McMuU. (S. C.) 372; Clay
V. Walton, 9 Cal. 328; Dugan v.
Cowzleman, 31 Mo. 424. Thus, in the
last case, it was held that where M and
S had put to livery a horse which was
entrusted to them by C for the pur-
pose of trial before purchasing, and
the credit was given to M and S, a
subsequent verbal promise of C to
pay for the keeping to the liveryman
Trill be within the statute and void.
So where A had taken a contract to
do a piece of work for B, but not
being paid abandoned the work, and
afterwards resumed it, and did certain
extra work upon the promise of C to
pay him, and the evidence showed that
he still looked to B for his pay, and
not to C, except as guarantor, it was
held that such promise was void un-
der the statute of frauds, as not being
in writing, both as to the extra work
and that done under the contract with
B. Bresler v. Pendell, 12 Mich. 224.

162 STATUTE OF PEATJDS. [CHAP. IV.

say, do you let J S have goods, and if he does not pay you,
I will : this is within the statute, because an action will lie
against J S for the money for the goods ; or, if a man shall
say, take J S into your service, and if he does not serve you
faithfully, or if he wrongs you, I wUl be responsible, that is
also within the statute.^

Upon the first motion and argument upon the case, the
three judges against Powys, seemed to be of opinion, that
the case was not within the statute, because English was not
liable under the contract ; but if any action could be main-
tained against him, it must be for a subsequent wrong in
detaining the horse, or actually converting it to his own use.
And Powell, J., said that the rule, of what things shall
not be within the statute, is not confined to these cases
only, where there is no remedy at all against the other, but
where there is no remedy against him on the same contract.
This case is just like that wherein a man says, send goods
to such a one, and I will pay you ; that is not within the
statute, for the seller does not trust the person he sends the
goods to. So here, the stable-keeper only trusted the defend-
ant, and an action on the contract will not lie against English,
but for a tort subsequent ; he may be charged in detinue, or
trover and conversion, which are collateral actions.

PoWYS, J., said, that there was a trust to English, for the
very lending of the horse necessarily implied a trust to the
person he was lent to, and consequently the defendant in this
case was to answer for the default of another, and was within
the statute. Powell, J., agreed, that if a man should say,
lend J S a horse, and I will imdertake he shall pay the hire

^ A naked parol promise to pay the Johnson,2 N. J. L. 5 ; South v. Toomey,

debt of, or to be responsible for the acts id. 98; Ayres «. Herbert, 3 N. J. L.

of another in whatever form itis made, (2 Pen.) 662 ; Caston v. Moss, 1 Bailey

is within the statute. The question (S. C.) 14; Hoppock u. Wilson, 4 N. J.

always is whether the promise is col- L. 149 ; Dilts v. Parke, id. 219 ; Youngs

lateral or original. If the former, it v. Shough, 15 N. J. L. (3 Green) 27 ;

is not enforceable. Murphy v. Merry, 8 Mundy v. Eoss, id. 466 ; Jackson v.

Blackf. (Ind.) 295 ; Smith f. Stephens, Eayner, 12 Johns. (N. Y.) 291 ; Clarke

3 Ind. 832; Johnson v. Morris, 21 Ga. v. Eussel, 3 Dall. (Penu.) 415 ; Boyce

238; Bumford v. Purcell, 4 Greene v. Owens, 2 McCord '(S. C.) -208;

(Iowa) 488 ; Helm v. Logan, 4 Bibb Eichardson o. Eichardson, 1 McMull.

(Ky.) 78; Smith u. Fah, 15 B. Mon. (S. C.) 280; Campbell v. Kndley, 3

(Ky.) 443; Elder t). Warfield, 7 H. & Humph. (Tenn.) 330; Caperton v.

J. (Md.) 391; Wymau v. Gray, id. Gray, 4 Terg. (Tenn.) 563.
409; Elliott v. Giese, id. 457; Eose v.

SEC. 97.] GUAKANTIES. 163

of it ; or send J S goods, and I will undertake he shall pay
you ; that these cases would be within the statute ; and agreed
with PowYS, that if any trust were given to English, then
the ease would be within the statute. But a majority of the
court held, that there was no credit given to English ; and
Holt, C. J., agreed with them, that if there had been, this
promise would have been an additional security, and within the
statute. And Holt, C. J., said, that if a man should say, "let
J S ride your horse to Reading, and I will pay you the hire,"
that is not within the statute, any more than if a man should
say, " deliver clothes to J S, and I will pay you." He said
also that a bailee of a horse for hire is not bound to redeliver
him at all events, but if hsj be robbed of him without fraud
in him, he is excused, and that so it was ruled in the case of
Coggs V. Bernard.^

The last day of the term, Holt, C. J., delivered the opin-
ion of the court. He said that the question had been pro-
posed at a meeting of judges, and that there had been a great
variety of opinions between them, because the horse was lent
wholly upon the credit of the defendant, but that the judges
of this court were all of opinion, that the case was within the
statute. The objection that was made was, that if English
did not deliver the horse, he was not chargeable in an action
upon the promise, but in trover or detinue, which are founded
upon the tort, and are for a matter subsequent to the agree-
ment. But I answered that English may be charged on the
bailment in detinue on the original delivery, and detinue is
the adequate remedy, and consequently, this promise by the
defendant is collateral, and is within the reason and the very
words of the statute ; and is as much so as where a man is
indebted, and J S in consideration that the debtee would for-
bear the man, promises to pay him the debt ; such a promise

1 Lord Eaym. 216. It hardly needs the circumstances warrant it, and the

the weight of supporting cases to sus- credit is jointly giren to both as prin-

tain the rule that, where any credit is cipals, the undertaking is original as

given to the person for whose benefit to both, as in such a case neither can

the promise is made, the undertaking be surety for the other. Swift v.

is collateral, as the proposition is self- Pierce, 12 Allen (Mass.) 136; Wain-

eyident. Whitman v. Bryant, 49 Vt. wright v. Straw, 15 Vt. 215 ; Gibbs v.

512; Norris v. Graham, 33 Md. 56; Blanchard, 15 Mich. 292; Eddy v.

Welch V. Marvin, 36 Mich. 59 ; Walker Davidson, 42 Vt. 56 ; Hetfield v. Dow,

V. Kichards, 39 N. H. 259 ; Jack v. 27 N. J. L. 440 ; ex parte Williams,

Morrison, 48 Penn. St. 113. But where 4 Yerg. (Tenn.) 579.

164 STATUTE OF FEATJDS. [CHAP. IV.

is void, unless it be in writing. Suppose a man comfes with
another to a shop to bily goods, and the shopkeeper should
say, " I will not sell him the goods^ unless you will undertake
he shall pay me for them," such promise is within the stat-
ute ; otherwise, if the promisor had been the person to pay
for the goods originally. So here, detinue lies against Eng-
lish, the principal; and the plaintiif, having this remedy
against English, cannot have an action against the defend-
ant, the undertaker, unless there had been a note in writing.
This case mainly depended on the question, whether, at the
instant of making the promise, there was or was not an existing
liability/ in the party undertaken for. And it was the opinion
of all the judges upon the first argument, except PoWYS, that
the mere delivery of the horse to English generated no right
of action, nor could be regarded as any contract made with
him ; but that the right of action would arise, if it arose at
all, against the deliveree, by some matter subsequent to the
agreement, as a demand of the horse and a refusal, affording
a ground for the remedy by trover, which would depend upon
some act of detainment or conversion. But although this
could not have been denied if trover had been the only rem-
edy, yet, as detinue also lay, the gist of which was the origi-
nal delivery, implying a contract for the redelivery, and this
implied contract, and the act of delivery, and also the prom-
ise by the defendant, were all coincident in time, there was
every circumstance to support the construction of a collateral
promise.

Sec. 98. Form of Promise not Decisive of its Character. —
The form of expression used in making the promise does
not in all cases necessarily determine the question as to
whether the promise is an original or collateral undertaking,^

' Skinner v. Conant, 2 Vt. 453; agreed to pay for them, if delivered

Barrett v. McHugh, 128 Mass. 165. to B, in case B did not, it was held

If a promise is collateral to the agree- that the engagement of C was col-

■ ment of another, it is immaterial lateral and void under the statute of

whether it was made before or after frauds, unless in writing, and that

the original contract was entered into, there was no joint liability of B and

as in either event it is within the C. Connolly v. Kettlewell, 1 Gill

statute unless in writirig. Glenn v. (Md.) 260. A promise to make or

Lehnen, 54 Mo. 45. Where B selected indorse a note with others to pay a

goods of A, and A refused to deliver debt of a third person is within the

them to B until he saw C, and C statute : State v. Shinn, 42 N. J. L. 138.

SEC. 98.J

GUABANTIES.

165

nor does tlie circumstance that tlie promisee charges the debt
to the promisor on his books,^ determine the question, but
the circumstances attending the transaction at the time when
the promise was made are to be looked to, and from them in
connection with the language employed by the promisor, the
question as to whether the promisee gave credit solely to the
promisor, and had a right to do so, is to'^ be determined, and
in determining this question the intention of the promisee
to give credit solely to the promisee, is not material, and he
cannot be asked to whom credit was given ; but must state
the promise and the circumstances attending the making of
it, and from these the real intention of the parties are to be
found.2 It is for the jury to find what the real substance
and spirit of the undertaking between the party was, and if
there is any evidence to sustain their finding, it will be svis-

148. A promise, in consideration
that the promisee incurs & liability to
a third person, is an original promise
and not within the statute of frauds.
Underhill v. Gibson, 2 N. H. 352;
Doane v. Newman, 10 Mo. 69.

' Barrett t>. McHugh, ante. In
Green v. Disbrow, 56 N. Y. 334, the
goods for which recovery was sought
were delivered and charged to the
defendant's son, on the books of the
plaintiff, and it was claimed that this
was conclusive evidence that they
were sold on his credit, but the plain-
tiff claimed that they were furnished
at the special instance and request of
the defendant and were charged to
the defendant's son for convenience,
and the court held, 7 Lans. (N. Y.)
389, that, while the fact that the
goods were so charged prima facie
established the fact that the sole credit
was not given to the defendant, yet
that it was not conclusive and might
be explained by showing that, while
the sole credit was given to the de-
fendant, yet they were charged to the
son to distinguish the article sold
from those sold to the defendant
personally. " It is always competent,"
says Mjllek, P. J., " to explain acts
of this character, and where satis-
factorily done, there is no reason why
they should bear a different interpre-

tation from what is authorized by the
evidence."

2 Allen V. Scarff, 1 HUt. (N. Y. C.
P.) 209. In Hazen v. Bearden, 4
Sneed (Tenn.) 48, the defendant
authorized goods to be sold and de-
livered to a third person, and agreed
to be responsible therefor. The goods
were in fact charged to the third
person, and the account presented to
him for payment. It was held that
these facts were not conclusive to
discharge the defendant from liability
under the statute of frauds, but that
the plaintiff might satisfy the jury, if
he could, that the credit was nevei^
theless given to the defendant; and a
verdict for the plaintiff was sustained.
The construction which the parties
themselves place upon an agreement
to be responsible for goods delivered
to a third person, is important and
often conclusive of its true character.
-If the credit is not given to the
person making such agreement, his
undertaking is collateral, and must be
in writing. Dixon v. Frazee, 1 E.D.S.
(N. Y. C. P.) 32. An agreement by
one partner that goods purchased of
the firm may be applied upon the
debt of one of the partners is not
within the statute. Bhodes v. Mc-
Kean, 55 Iowa, 647.

166 STATUTE OF PBATJDS. [CHAP. IV.

tained.i The efPect of the form of expression, in deterinining
■whether a promise is collateral or original, is illustrated in an
early English case.^ In that case. Holt, C. J., said : " If A
promises B, who is a surgeon, that if he wUl cure C of a
wound, he ' will see him paid,' ^ this is only a promise to pay
if C does not, and therefore it ought to be in writing. But
if A promise in such a case that he will b.e B's pay-master,
whatever he shall deserve, it is immediately the debt of A,
and he is liable without writing. In the case first put it is
clear that B will have a double remedy ; in the other case
the credit is considered as being giveh solely to A, and even
though C, by subsequent circumstances should render himself
liable for the debt, yet such liability not having existed at the
time of the promise would have no effect upon A's liability
upon his promise.* So if A promises B, that if he will do a
certain act, C shall pay him a certain sum, or that, if G does
not pay him, he (A) will, this is not a collateral promise,
unless C was privy to the contract, and recognized himself as
debtor also, because A, being the, sole debtor, his promise is
merely to pay his own debt." It is not possible to lay down
any rule in the abstract for the construction of these expres-
sions, but they must go to the jury, together with the attend-
ant circumstances, for them to find to whom the credit was
really given. And in determining the intention of the par-
ties, the situation, circumstances, and general responsibility
of the party promising will be regarded. But as bearing
upon the question to whom credit was given, it is not compe-
tent for the plaintiff to show the pecuniary inability of the
person in whose behalf the promise was made, as tending to
show the improbability of his having given any credit to him,
nor that the defendant had paid debts of such person under
similar circumstances.^

Sec. 99. Attendant Circumstances to be Regarded. Rule in
Anderson v. Hayman. — The doctrine stated supra that the at-
tendant circumstances, the situation and general responsibility

' Heywood v. Styles, 124 Mass. 275. * Green v. Disbrow, ante.

2 Watkins v. Perkins, Lord Eaym. ^ Anderson v. Hayman, 1 H. Bl.
224. 120 ; also by Keate v. Temple, 1 B.

3 Green v. Disbrow, 56 N. Y. 334; & P. 158.
reversing the ruling on tliis point, in

the General Term, 7 Lans. 389.

SEC. 99.] GUAEANTIBS. 167

of the promisor will be looked at, is well illustrated and fully
supported by an English case.^ In that case the plaintiff was
a woollen draper in London, and employed one Biffin as a rider
(commercial agent) to receive orders from his customers in the
country. The defendant requested Biffin to write the plaintiff,
to request him to supply the defendant's son, who traded in
the West Indies, with whatever goods he might want, on his,
the defendant's credit, saying at the same time, "use my son
well, charge him as low as possible, and I will be bound for
the payment of the money, as far as £800 or £1000." Biffin
accordingly wrote to the plaintiff the following letter : " Mr.
Hayman of this town says, his son wiQ call on you, and leave
orders ; and he has promised me to see you paid, if it amounts
to £1000. N. B. If deal for twelve months' credit, and pay in
6 or 8 months, expects discount in proportion." Soon after-
wards the son received the goods from the plaintiff to the
amount of £800, which were delivered to him in conse-
quence of the engagement of the father above mentioned.
The son was debited in the plaintiff's books, and being ap-
plied to for payment, wrote an answer to the plaintiff, as fol-
lows : " Your favor of the 27th past has been forwarded to
me from Ostend, in answer to which I can only say, that I
understand your credit for the goods was twelve months,
which was also mentioned by your rider to my father. I
shall at this rate make you remittances for the different par-
cels, as they become due."

The son afterwards became a bankrupt, and this action
was brought against the father to recover the value of the
goods. — Heath, J., who tried the cause, directed the jury
to consider whether the plaintiff gave credit to the defendant
alone, or to him toff ether with his son; that in the latter case,
they should find a verdict for the defendant ; in the former,
for the plaintiff ; being of opinion, that if any credit was given
to the son, the promise of the defendant, not being in writ-
ing, was void by the statute of frauds. \ A verdict was found
for the defendant, and a rule nisi was obtained to set it
aside ; but the court were clearly of opinion that this prom-
ise was within the statute, as it appeared by the letter of
Hayman the younger, that credit was given to him, as well

I Anderson v. HaTman, 1 H. Bl. 120.

168 STATUTE OP FRAUDS. [CHAP. TV.

as to the defendant his father, and the rule was accordingly
discharged. i

Sec. 100. Rule in Keate V. Temple. — In a subsequent
case ^ it appears that, in collecting the true state of the
transaction, and ascertaining the fact, whether the party-
promising intended only to come in aid ^f the liability
of the person on whose account he promised, or to become
himself immediately responsible, the court will not only
consider the expressions used, but will also regard the par-
ticular situation of the defendant at the time of his under-
taking ; and will compare the amount ^ the sum in question
with the circumstances of the party. 7*his action was brought
for goods sold and delivered, and wptk and labor, with the
common money counts, to which me general issue of non--
assumpsit was pleaded. The cause was tried before Law-
EENCE, J. It appeared that the plaintiff was a tailor and
slopseller at Portsmouth, and th© defendant the first lieuten-
ant of his majesty's ship, the Boyne. When the ship came
into port, the defendant applied to a third person to recom-
mend a slopseller who might supply the crew with new clothes,
sajdng, " he wUl run no risk. Twill see him paid " ; the plain-
tiff being accordingly recommended, the defendant called
upon him, and used these words, " I will see you paid at the
pay-table ; are you satisfied ? " The plaintiff answered, "per-
fectly so." The clothes were delivered on the quarter-deck
of the Boyne; slops are usually sold on the main-deck; the
plaintiff produced samples to ascertain whether his direc-
tions had been followed; some of the men said that they
were not in want of any clothes, but were told by the defend-
ant that if they did not take them he would punish them ;
and others, who stated that they were only in want of part
of a suit, were obliged to take a whole one, with anchor but-
tons to the jacket, such as are usually worn by petty officers.
The clothing of the crew in general was light and adapted to
the climate of the West Indies, where the ship had been last
stationed. Soon after the delivery the Boyne was burnt, and
the crew dispersed into different ships on that occasion. The
plaiutiff having e?:pressed some apprehensions for himself,
the defendant saidj to him, " Captain Grey (the captain of the
' Keate v. Temple, 1 B. & P. 158.

SEC. 100.] GTTAJIANTIES. 169

Boyne) and I will see you paid ; you need not make yourself
uneasy." After this the commissioner came on board the
Commerce de Marseilles, in order to pay the crew of the
Boyne, at which time the defendant stood at the pay-table,
and having taken some money out of the hat of the first
man who was paid, gave it to the plaintiff; the next man
refused to part with his pay, and was immediately put in
irons. The defendant then asked the commissioners to stop
the pay of the crew, who answered that it could not be done.

The judge in his directions to the juty said, that if they
were satisfied on the evidence, that the goods in question
were advanced on the credit of the defendant, as immediately
responsible, the plaintiff was entitled to a verdict ; but if they
believed that at the time when the goods were furnished, the
plaintiff relied on being cMe, through the assistance of the
defendant, to get his money from the crew, they ought to
find for the defendant.^ The jury returned a verdict for the
plaintiff for £576 7s. Bd., the whole amount of his claim.
A rule for a new trial having been obtained, on the ground
of the defendant's undertaking being within the statute of
frauds, the counsel for the plaintiff contended that the only
question in the case had been left to the jury, and decided
by them, viz., whether the sailors were liable in the first in-
stance, and the defendant only came in aid of their liability ;
or whether the defendant was immediately responsible. They
said that if the Boyne had been burnt before the delivery of
the goods, the plaintiff would have had no communication
with the crew, and of course no ground of action against
them : if, therefore, they were not liable on the original con-
tract, the subsequent delivery would not shift the credit
upon them.

Eyre, C. J., said : " There is one consideration independent
of every thing else, which weighs so strongly with me, that
I should wish the evidence to be once more submitted to a
jury. The sum recovered is ^£576 7s. %d., and this against a
lieutenant in the navy : a sum so large, that it goes a great

1 The question to whom the credit 76 Penn. St. 97 ; Dean v. Tallman, 105

was giren is for the jury. Pettit v. Mass. 443. But this case shows that

Braden, 55 Ind. 201 ; Bloom v. Mc- in determining the question they must

Grath, 53 Miss. 249; Moshier v. Kit- regard the circumstances attending

chell, 87 111. 18; Castlemanv. Harnish, the transaction.

170 STATUTE OF PEAUDS. [CHAP. IV.

way towards satisfying my mind, that it never could have
been in the contemplation of the defendant to make himself
liable, or of the slopseller to furnish the goods on his credit,
to so large an amount. I can hardly think that, had the
Bojrne not been burnt, and the plaintiff been asked whether
he would have the lieutenant or the crew for his pay-master,
but that he would have given the preference to the latter.
The circumstances of this case create some prejudices against
the defendant, but which I think capable of explanation.
There is some appearance of harshness in making the men
purchase these clothes against their inclination. But it was
in evidence, that though they were pretty well clothed, yet
their clothes were adapted to a warm climate, rather than to
the service in which they were to be engaged. It was there-
fore the bounden duty of the officer to take some course to
oblige the crew to purchase proper necessaries. "We all know
that a sailor is so singular a creature, so careless of himself,
that he cannot, though his life depend upon it, be prevailed
upon, without force, even to bring up his hammock upon
deck to be aired. We know that he will risk any danger, in
order to employ his money in a way that he likes, rather than
let it out in that provident method which his situation may
require. The whole of the imputation then on the defen-
dant and Captain Grey amounts to this, that when the men
were to be clothed, they wished them to be somewhat well-
dressed. I do not know but that this circumstance may have
had some influence with the jury. But I do not feel the
force of it, when opposed to the weight of the evidence on
the other side, so as to make the officer liable for so large a
sum. From the nature of the case it is apparent, that the
men were to pay in the first instance ; the defendant's words
were, ' I will see you paid at the pay-table ; are you satis-
fied ? ' and the answer then was, ' perfectly so.' The mean-
ing of which was, that however unwilling the men might be
to pay themselves, the officer would take care that they should
pay. The question is, whether the slopman did not in fact
rely on the power of the officer over the fund out of which
the men's wages were to be paid, and did not prefer giving
credit to that fund to giving credit to the lieutenant, -who, if
we are to judge of him by others in the same situation, was

SEC. 102.] GT7ABANTIES. 171

not likely to be able to raise so large a sum. Considering
the whole bearing of the evidence, and that the learned judge
who tried the cause has not expressed himself satisfied with
the verdict, I think this a proper case to be sent to a new
trial."

Sec. 101. Statute does not Apply to Ouaremty of Specialty
Debts. — The statute applies only to promises, and does not
apply to instruments under seal.^ Therefore it has been held
that a promise by the vendor of railroad bonds, that if a per-
son will buy them he will guarantee them, is an original under-
taking, and not within the statute,^ and that a guaranty by
one railroad company of the bonds of another is not within
the statute, and is enforceable, although it is claimed that
such guaranty is ultra vires, and that the consideration does
not appear.*

Sec. 102. Must be Consideration for the Promise, Instances of.
— There must be a sufficient consideration for a promise to pay
the debt of another as well as for any other promise, otherwise
it will not be binding though reduced into writing. A guaranty
must have a consideration to support it. If it is made at the
time of the contract to which it relates so as to constitute a
part of the consideration of the contract, it is sufficient ; but
if the guaranty is subsequent to the contract, there must be a
distinct consideration to support it,* otherwise it is void.

1 Williams v. Springs, 7 Ired. raneous with the making of the con-
(N. C.) L. 384 ; Ward u. Ely, 1 Dev. tract, the consideration of the contract
(N. C.) L. 372 ; Livingston ti. Tremper, supports the promise; but where the
4 John. (N. Y.) 416. promise is made subsequently thereto,

2 Allen V. Eighme, 21 N. Y. S. C. it is distinct therefrom, and requires a
559. distinct consideration. Thus, a surety

8 Amot V. Erie E. B. Co., 67 N. Y. for the payment of rent signed an

315. agreement indorsed upon the back of

* Bason v. Hughart, 2 Tex. 476 ; the lease as follows : " I guarantee the

Beebe t>. Moore, 3 McLean (XJ. S.) 387 ; payment of the rent, as stipulated by

How V. Kimball, 2 id. 103 ; Leonard v. said F, in case of non-payment by

Vredenburgh, 8 John. (N. Y.) 29; Col- him." In an action by the lessor,

bum V. Tolles, 14 Conn. 341 ; Cook v. against the lessee and surety, for the

Elliott, 34 Mo. 586 ; Lines v. Smith, 4 rent, it was held that the undertaking

Flo. 47; Tennay v. Prince, 4 Pick, of the guarantor was distinct from

(Mass.) 383; Joslyn v. CoUinson, 26 that of the principal, and collateral

111. 61 ; Ware •». Adams, 24 Me. 177 ; thereto, and that the parties were

Gilligan v. Boardman, 29 id. 79 ; Mc- improperly joined : Virden v. Ells-

Kinney v. Guilter, 4 McCord (S. C.) worth, 15 Ind. 144. In such a case,

409. Where the promise is contempo- if there is no distinct consideration,

172

STATUTE OF PEAUDS.

[chap.

IT.

Thus, when A has sold and delivered goods to B, and after-
wards C promises A in writing to pay for them, this promise

the promise is within the statute.
Furbish v. Goodnow, 98 Mass. 296;
Fowler v. Moller, 4 Bos. (N. Y.) 149.
It was held that a promise by the as-
signee of a lease to the landlord, that
if the latter will permit him to remain
in possession of the premises, he will
pay the arrears of rent due from the
lessee, is a collateral promise, and if
not in writing, is void by the statute
of frauds. In Leonard v. Vreden-
burgh, 8 John. (N. T.) 29, where A
applied to B for goods on credit; and
B refused to let him have them with-
out security, on which A drew a note
for the amount, under which C wrote
"I guarantee the above," and the
goods were then delivered, it was held
that this was a collateral undertaking
of C ; but that, as the transaction was
one and entire, the consideration pass-
ing between A and B was sufficient to
support as well the promise of C as
that of A, and no distinct considerar
tion passing between B and C was
necessary. In Bailey v. Freeman, 11
id. 221, B, by a written agreement,
promised to deliver to A a certain
quantity of goods, and also to pay the
costs on an execution issued by A
against B, which B was to have re-
turned nulla bona ; and F, at the bot-
tom thereof, signed a written guaranty
as follows : " I guarantee the perform-
ance of the above agreement," it was
held : 1. That the guaranty of F was an
original collateral agreement, and not
a promise to pay a previously subsist-
ing debt of B. 2. That the agreement
and the guaranty formed an entire
contract, including the consideration
stated in the agreement to which the
guaranty referred ; and that, if no con-
sideration had been expressed in the
principal agreement, it might be shown
by parol. In "Wakefield v. Greenhood,
29 Cal. 597, it was held that a promise
by a forwarder of goods to a common
carrier to pay any draft on himself by
the consignee for the transportation
of the goods, was a collateral under-

taking, and within the statute. In
Crane v. Bullock, K. M. Charlt (Ga.)
818, a married woman drew a bill on
A, who accepted the same, payable
" when in funds." Afterwards B, who
was trustee of the separate property
of the drawer under a marriage settle-
ment, wrote upon the bill, " I will have
this paid out of the next crop/' and
signed his name as trustee. In an ac-
tion by the payee against B, it was
held that there was no consideration
for the promise, and that it was within
the statute of frauds. A writing in this
form : " Mr. J S will apply to you for
the rent and disposal of your building
now in charge of D M ; any arrange-
ment he can make with you as regards
renting the same I will be responsible
for," signed " J D S," is a direct and
original promise to pay, if such ar-
rangement should be made, and not
collateral : Bates v. Starr, 6 Ala. 697.
And, generally, a parol agreement of
a grantee to pay a debt of the grantor,
made as part of the consideration, is
not an undertaking to "answer for
debt or default of another " : Jen-
nings V. Crider, 2 Bush (Ky.) 322;
McLaren u. Hutchinson, 22 Cal. 187;
Euhling V. Hackett, 1 Nev. 360 ; Berry
V. DoremuB, 30 N. J. L. 399 ; Seaman
V. Hasbrouck, 35 Barb. (N. T.) 151 ;
but if made after the debt is con-
tracted, it is collateral. Thus, while
the mother of the defendants resided
in the plaintiffs house at a stipulated
annual rent, the defendants promised,
verbally, to pay the rent while she
continued to occupy it, it was held
that this promise was collateral, and
consequently void, because the con-
tract had already been made, and its
performance entered upon by the
mother and the plaintiff, so that it
could not be said that the defendants'
promise was based upon the original
consideration, or that credit was given
solely to him; Moses v. Norton, 36
Me. 113.

SBC. 102.] GUARANTIES. 173

is a mere nudiim pactum and void, because it was so at the
common law, hnd the statute makes no alteration.i But if C
had requested A to forbear to sue B for the debt, and A had
forborne accordingly, that was a good consideration at the com-
mon law to support such promise,^ and is good since the statute
if the promise be in writing,^ but not otherwise. Where the con-
tract is in writing, any consideration in the nature of forbear-
ance,* as the continuance of an action ^ or any postponement
of the promisee's remedy is sufficient.® But this does not seem
to be the case where the promise is made to secure delay in
the enforcement of a final process, as an execution,^ although
there seems to be no good reason for this distinction. In
order that a forbearance of suit may be a good consideration,
it must appear that the promisee had an immediate cause of
action at the time when the promise was made^ and it must also
be shown that the promisee agreed to forbear, and the mere
circumstance that he did so does not suffice,^ although actual
forbearance is prima facie proof of an agreement to do so,^"
and the burden is upon the promisor to show that no such
agreement was in fact made.^^ Where the promisor is to

> Sadler v. Hawkes, 1 EoU. Abr. ^ Stewart ». McGuin, 1 Cow. (N.Y.)

27 PI. 49; Forth v. Stanton, 1 Wms. 99; Thomas v. Croft, 2 Rich. (S. C.)

Saund. 227 ; Barrell v. Trussell, 4 L. 113 ; Etting v. Vanderlyn, 4 John.

Taunt. 117; French U.French, 2 Man. (N. Y.) 237; Mapes v. Stanley, Cro.

&Gr.644; Boydt). Moyle,2C.B.844; Jac. 183. But see, holding that a

Saunders k. Wakefield, 4 B. & Aid. promise to pay if the creditor would

595; Pillans v. Van Mierop, 3 Burr, discontinue an action he had brought

1663 ; Westhead v. Sproson, 30 L. J. against the principal debtor is not

Ex. 265. sufficient. Nelson v. Boynton, 3 Met.

2 Sadler v. Hawkes, 1 Roll. Abr. 27. (Mass.) 396; Lieber v. Levy, 3 Met.

» ICing V. "Wilson, Str. 873; Fish v. (Ky.) 292.

Hutchinson, Bull. N. P. 281 ; 2 Wils. « Templeton v. Bascom, 33 Vt. 132 ;

94. Bunting v. Darbyshu-e, 75 III. 408.

* Harrington v. Uioh, 6 Vt. 666 ; ' McKinney v. Guilter, 4 McCord

Pratt ... Humphrey, 22 Conn. 317; (S. C.) 409.

Smith f. Finch, 3 111. 321 ; Taliaferro 8 Martin v. Black, 20 Ala. 309.

V. RofE, 2 Call. (Va.) 258; Rann v. » Sage v. Wilcox, 6 Conn. 81;

Hughes, 7 T. R. 350 ; Thomas u. Croft, Breed v. Hillhouse, 7 id. 523; Mc-

2 Rich. (S. C.) 113 ; Barber v. Fox, 2 Comey v. Stanley, 8 Cush. (Mass.) 85 ;

Saund. 136; Martin v. Black, 20 Ala. Walker v. Sherman, 11 Met. (Mass.)

309 ; Parish v. Wilson, Peake, 73 ; 170 ; Crolts v. Beale, 11 C. B. 172.

Killian v. Ashley, 24 Ark. 511 ; Phil- w Breed v. Hillhouse, ante.

pot V. Briant, 4.Bing. 717; Kean v. n Watson v. McLaren, 19 Wend.

McKinsey, 2 Penn. St. 30; McAlvey (N. Y.)557; Jones w. Palmer, 1 Dougl.

V. Noble, 13 Rich. (S. C.) 330; Sage (Mich.) 379; Miller v. Cook, 23 N. Y.

V. Wilcox, 6 Conn. 81 ; Kershaw v. 495 ; Connecticut &c. Ins. Co. v. Cleve-

Whittaker, 1 Brev. (S. C.) 9. land &c. E. R. Co., 41 Barb. (N. Y.)

174 STATUTE OF FRAUDS. [CHAP. IV.

derive a direct benefit from the forbearance of a person to
enforce his claim, it affords a good consideration for the prom-
ise. Thus it has been held that a promise made by one
creditor to pay the claim of another against their mutual
debtor, if the latter would forbear testing the validity of a
judgment which the former had obtained against the debtor,
is an original undertaking, and not within the statute.^ So
where A, having shipped goods on a vessel which were dam-
aged on the passage, was about to call the port-warden to view
the goods in order to charge the ship-owners with the loss,
and the agent of the ship-owners promised to pay him the
amount of the loss if he would sell the goods at auction with-
out such view, it was held that the promise was not within
the statute.^ But where the indorser of a note, who had been
discharged from his liability thereon by the laches of the
holder, promised him to pay the note if he would forbear to
sue the maker, it was held that there was no such inde-
pendent consideration as would take the promise out of the
statute.^ A promise in consideration that the creditor will
forbear attaching the property of the debtor,* or will stay
proceedings on an execution he was about to levy on the
debtor's property, is within the statute.^ But it has been
held that a promise to pay any deficiency, etc., in considera-
tion that a mortgagee would stay the execution of a fore-
closure judgment is not within the statute where the party
making the promise has an interest to be subserved.® A parol
promise of a husband to pay a debt of his wife,'^ or of a wife
to pay a joint bond of herself and her husband, the bond

9; Caldwell v. McKain, 2 N. & M. Huntington v. Harvey, 4 id. 124; El-

(S. C.) 555; Woodward u. Pickett, lison u. Wisehart, 29 Ind. 32; Jones

Dudley (S. C.) 30; Brown v. Bussey, v. "Walker, 13 B. Men. (Ky.) 356;

7 Humph. (Tenn.) 573; Hall v. Rod- Turner v. Hubbell, 2 Day (Conn.)

gers, id. 536 ; Cooper v. Dedrick, 22 457.

Barb. (N. Y.) 516; Day v. Elmore, 4 * Waldo v. Simonson, 18 Mich.

Wis. 100; Cheney v. Cook, 7 Wis. 345.

413. 6 Van Slyok v. Pulver, H. & D.

' Smith V. Eogers, 35 Vt. 140

Ferris v. Barlow, 1 Aik. (Yt.) 100

Templeton v. Bascom, 33 Vt. 132

Pratt V. Humphrey, 22 Conn. 317

Supp. (N. Y.) 47 ; Stem v. Drinker, 2
E. & G. (N. Y. C. P.) 401 ; Durham
V. Arledge, 1 Strobh. (S. C.) 5.

^ Johnson v. Noonan, 16 Wis. 687.

Fish V. Thomas, 5 Gray (Mass.) 45. ' Bagley v. Sasser, 2 Jones (N. C.)

2 Travis v. Allen, 1 S. & P. (Ala.) Eq. 350 ; Miller u. Long, 45 Peun. St.

192. 350; Cole v. Shurtliff, 41 Vt. 311.
8 Peabody v. Harvey, 4 Conn. 119 ;

SEC. 104.] GUABANTIBS. 175

being void as to herself,^ is within the statute, and the rela-
tion of the parties affords no consideration therefor.

Sec. 103. Consideration KTeed not Move Directly Between
Parties. — It is not necessary, if the promise is a parol or in
writing, that there should be a consideration directly moving
between the persons giving and receiving the guaranty. It
is enough if the person for tvhom the guarantor becomes surety
has benefit, or the person to whom the guar'anty is given suffers
inconvenience as an inducement to the surety to become guar-
antee for the principal debtor.^ If the promise was made
upon a consideration which was good at the time the prom-
ise was made, the fact that it subsequently fails does not
impair the validity of the promise or bring it within the
statute.

Sec. 104. Consideration must be New. — The promise must
be made on a new consideration; a past or executed con-
sideration is bad.^ But a promise on a future or executory
consideration is good, although an existing debt is guaran-
teed against. Thus, where the defendant gave the following
note to the plaintiff which he dated and signed: "I hereby
guarantee the present account of Miss H M due to R T S
' and Co. (the plaintiffs), of £112 4s. 4(i., and what she
may contract from this date to the 30th September next ; " it
was held that there was a sufficient consideration.* So also

1 Guishaber v. Hairman, 2 Bibb len v. Thompson, 10 N. H. 82 ; Spann
(Ky.) 320; Thwaits i>. Curl, 6 B. Men. v. Baltzell, 1 Ma. 301; Lemmon v.
(Ky.) 472. Box, 20 Tex. 329; Huber v. Ely, 45

2 Morley u. Boothby, 3 Bing. 113, Barb. (N. Y.) 169; Small t>. Schaeffer,
per Best, C. J. ; and see ex parte 24 Md. 143 ; Smith v. Finch, 3 111. 321 ;
Minet, 14 Ves. 189; Pillans v. Van Hindmanu.Langford.SStrobh. (S.C.)
Mierop, 3 Burr. 1663. The rule, as 207; Todd v. Tobey, 29 Me. 219;
enunciated by Kent, Oh., in Leonard Oldershaw v. King, 2 H. & N. 399,
V. Vredenburg, 8 John. (N. Y.) 29, is 517 ; Wynne v. Hughes, 21 W. K. 628.
that a parol agreement to pay the ' Hunt v. Hughes, Dyer, 272 a;
debt of another is not within the Payne o. "Wilson, 7 B. & C. 423;
statute, if the promise arises from some Thomas v. Williams, 10 B. & C. 664;
new consideration of benefit or harm Tomlinson v. Gell, 6 A. & E. 564; 1
moving between the parties thereto, and N. & P. 588; Eastwood v. Kenyon, 11
this seems to be the generally recog- Ad. & El. 438 ; 3 P. & D. 276 ; Erench
nized rule. Meeck v. Smith, 7 Wend. v. French, 2 Man. & Gr. 644 ; Johns-
(N. Y.) 315; Cross v. Eichardson, 30 ton v. NichoUs, 1 C. B. 251 ; Broom v.
Vt. 641 ; Reed v. Holcomb, 31 Conn. Batchelor, 1 H. & N. 255.

360; Dauber v. Blackney, 38 Barb. * Russell w. Moseley, 6 Moo. 521;

(N. Y.) 432; Dyer v. Gibson, 16 Wis. 6 Brod. & B. 211.
557; Mason v. Hall, 30 Ala. 599; Al-

176 STATUTE OF FEATIDS. [CHAP. IV.

the consideration was held to be .sufficient on the following
guaranty: "In consideration of your agreeing to supply S
with goods upon credit, in the way of your trade (the amount
to be in your own discretion), I hereby guarantee you the.
due and regular payment of such sum or sums as he may
now, or at any time, and from time to time hereafter, owe to
you; my liability under this guaranty is to be limited to
principal sum in running account of & 100.^ The distinction
between the effect of a promise made hefor& a debt is con-
tracted and one made afterwards is illustrated by a Massachu-
setts case,^ in which it was held that a promise made by one
person to pay for a dinner furnished to others, made while
they are in the act of eating it, was within the statute, and
that the circumstance that relying upon such promise the
plaintiff forbore to collect the pay for the dinner from the
persons who were eating it, gave no additional force to the
promise. But a verbal promise made by A before a meal is
furnished to B, that he wiH pay for it, is an original under-
taking and valid.^ The employment of a third person is a
sufficient consideration to support a promise to answer for
his default. The party indemnified is not bound to employ
the person designated by the guaranty ; but if he does em-
ploy him, then the guaranty attaches, and becomes binding
on the party who gave it.*

Sec. 105. Consideration Need not Appear in the Guaranty. —

Formerly it was necessary that the consideration for the
promise, as well as the promise itself, should appear on the
face of a guaranty .^ This rule was doubted in several cases,^
but was finally settled in Saunders v. Wakefield.'^ It proved,
however, to be a grievance to the mercantile community ; *
and now it is provided in England and several of the States
in this country that the consideration need not be stated.

1 White !). 'Woodward, 5 C. B. 810; Armstrong, 6 Bing. 201; Lysaght v.
and see Stead v. Liddard, 1 Bing. 196 ; Walker, 6 Bligh (N. E.) 1 ; Offlord v.
Coe V. Duffield, 7 Moo. 252 ; Chapman Davies, 12 C. B. (N. S.) 748.

V. Sutton, 2 C. B. 644 ; Boyd v. Moyle, ^ "Wain v. Warlters, 5 East, 10.

2 C. B. 644. 6 Ex parte Minet, 14 Ves. 189; ex

2 Tilcston V. Nettleton, 6 Pick, parte Gardom, 15 Ves. 286; Phillips
(Mass.) 509. v. Bateman, 16 East, 356 ; Goodman

' Porter v. Langhom, 2 Bibb (Ky.) v. Chase, 1 B. & Aid. 300.
63. ' 4 B. & Aid. 595.

* Kennaway v. Treleavan, 5 M. & s i Wms. Saund. 227.
W. 498, per Pakke, B. ; Newbury v.

SBC. 106.] GTJAEANTLES. 177

This is the case in Illinois, Indiana, Massachusetts, Michi-
gan, Kentucky, Nebraska, New Jersey, and Virginia, while
in Minnesota, Montana, Nevada, New York, Oregon, Utah,
and Wisconsin the statute expressly provides that the consid-
eration must be expressed in the writing, while in the others
no provision in this respect is made, and the matter rests upon
the construction of the courts.

These statutes are not retrospective, ^ nor do they exempt
guaranties from the application to them of the ordinary rule
of evidence with reference to written instruments, except in
so far as they allow the terms constituting the consideration
to be added by parol. By the ordinary rules of evidence
proof of the actual consideration is admissible in cases of
patent ambiguity, where the language of the instrument
renders it uncertain as to which of two or more matters
severally mentioned therein was the consideration upon which
it was given.2 But, though parol evidence may supply the
consideration for a guaranty, it cannot be admitted to explain
the promise, which must still be in writing,^ because opposed
to the rule that parol evidence cannot be admitted to change
the terms of a written contract.

Sec. 106. Special Consideration not KTecesBary. — In the
case of guaranties, while a consideration is required to sup-
port them, yet they do not necessarily require a special or
separate one, Chancellor Kent, in a New York case,*
divides the consideration of guaranties into three classes : —

1. Where the promise is made at the same time that the debt is
created.

2. Where the promise is made subsequent to the creation of the
debt; and

3. Wliere the promise arises out of some new and original consid-
eration of benefit or harm, moving between the promisor and prom-
isee.

It will not be necessary to consider these matters extend-
edly here, as they are considered elsewhere in this chapter
quite fully, but it may be said as to the first class that the
same consideration which supports the principal debt supports,
the promise. As to the second, a valid consideration beyond.

> Taylor on Evid. 6th ed. 905. 361 ; 28 L. J. C. P. 301.

a 1 Sm. L. C. 7th ed. 816. * Leonard v. Vredenburgh, 8 John.

8 Holmes «. Mitchell, 7 C.B. (N. S.) (N. Y.) 29.

178 STATUTE OF PKAUDS. [CHAP. IT.

that upon which the original debt was created must appear
or be showii,^ while as to the third, the contract being origi-
nal does not come within the statute at all.

Sec. 107. Parol Evidence Admissible to Identify Subject-
matter of Promise. — Parol evidence is admissible to identify
the subject-matter in respect o£ which the promise is made ;
as, for instance, to explain what is meant by " the promissory
note,"' there not being evidence of any other note to which
the words could apply .^ Where the defendant wrote to the
plaintiff's attorney, who was about to sue one David WiUiams
for a debt due to the plaintiff : " Sir, — The bearer, David
Williams, has a sum of money to receive from a client of
mine some day next week, and I trust you will give him
indulgence till that day, when I undertake to see you paid,"
— it was held that parol evidence was admissible to identify
the amount of the debt.* Although the guaranty is binding,
notwithstanding that the consideration does not appear on
the face of it, yet the consideration must be proved.*

Sec. 108. Bad Promise not Helped by Statute.— The statute
does not make a promise good which was not good before,®
nor place the promisor's liability on any different basis than
that of the person promised for, and if the consideration
stated is bad, the guaranty will not be helped by the statute.^
A promise to answer for the debt of another, even though
not within the statute, does not impose any greater liability
upon the promisor than existed against the person for whom
the promise is made ; consequently where the promise is to
answer for another upon a contract, no action lies against the
promisor while the contract remains unperformed.^ This
rule is well illustrated by a Vermont case,^ in which the
defendant while the plaintiff, a physician, was attending his

1 Ware v. Adams, 24 Me. 177 ; explain a written instrument, post.
Crane v. Bulloch, R. M. Charlt (Ga.) chapter on the Memorandum or note
318 ; Gillighan v. Boardman, 29 Me. in writing.

79; Huntress v. Patten, 20 id. 28; ^ Glover u. Halkett, 2 H. & N. 489.

DeWolfti.Robsand, IPet. (N.S.)466; 5 Holmes «. Mitchell, 7 C. B.

ElHott V. Gresse, 7 H. & J. (Md.) 457. (N. S.) 361 ; 28 L. J. C. P. 30, per

2 Shortrede v. Cheek, 1 Ad. & El. Btles, J.

57; 3 N. & M. 866. ^ Wood v. Priestner, L. E. 2 Ex.

8 Bateman v. Phillips, 15 East, 272 ; 71, per Bramwall, B.

add see Brunton v. DuUens, 1 P. & F. ' Baker v. IngersoU, 39 Mich. 158.

450. See further as to the admis- ^ Smith u. Hyde,. 19 Vt. 54.
sibUity of parol evidence to vary or

SEC. 110.] GUARANTIES. 179

father and mother under a contract with the father that
"if there was no cure, there should be no pay," executed to
the plaintiff a writing by which he agreed to be " holden " to
him "for the payment of his bill for medicine and attend-
ance " upon his father and mother, and it was held that the
undertaking of the defendant was collateral merely to the
contract beween his father and the plaintiff, and could not
be enforced against him, unless it could also be enforced
against the father under the contract.

Sec. 109. statement of Consideration. — If there is a good
consideration, it is not necessary that it should appear in
express terms ; it will he sufficient in any case, if the memoran-
dum is so framed that any person of ordinary capacity must
infer from the perusal of it that such and no other was the
consideration upon which the undertaking was given} Where
the plaintiff, having shipped goods to R S, refused to deliver
the bill of lading to him without a guaranty, upon which the
defendant enclosed a bill — accepted by R S — in a letter to
the defendant, in which he stated that R S having accepted
the biU, he gave his guaranty for the due payment of it, in
case it should be dishonored, it was held that the considera-
tion was suflSciently expressed upon the guaranty.^

Sec. 110. Amount of Consideration. — The adequacy of the
consideration will not he taken into account, so long as there
is any consideration at all? The courts refuse to enforce a
contract only where it is nudum pactum, that is to say, where
there is an absence of consideration, not where the considera-
tion is inadequate merely, for the law has nothing to do with
the prudence or imprudence of the bargain.* The following
memorandum, signed by the defendant, was held to be suffi-
cient to charge him within the statute : "I hereby guarantee

' Hawes v. Armstrong, 1 Bing. 679; 3 Moo. 15; and see Pace u-

(N. C.) 761 ; 1 Scott, 661, per Tindal, Marsh, 1 Bing. 216 ; Oldershaw v.

C. J. ; see also Shortrede v. Cheek, King, 2 H. & N. 517 ; 27 L. J. Ex.

1 Ad. & EI. 57; Bentham v. Cooper, 5 120.

M. & W. 621 ; Emmott v. Keams, 5 » Roll. Abr. 23, pi. 29 ; Edwards v.

Bing. (N. C.) 559; Haigh w. Brooks, Baugh, 11 M. & W. 641; Semple v.

10 Ad. & EI. 309; James v. Williams, Pink, 1 Ex. 74.

5 B. & Aid. 1109; 3 Nev. & Man. 196 ; * Johnston v. NichoUs, 1 C. B. 272,

Powers V. Fowler, 4 E. & B. 511. per Erle, J.

2 Boehm v. Campbell, 8 Taunt.

180 STATUTE OF FRAUDS. [CHAP. IV.

to you the payment of the proceeds of the goods you have
consigned to my brother, J P, of Sydney, and also any future
shipments you may make to him, in consideration of the sum
of 2s. Qd. paid to me, which I hereby acknowledge to have
received," it being a necessary intendment that the considera-
tion was paid by the plaintiff.^

Sec. 111. Construction of Guaranty : Admissibility of Parol
Evidence. — If a guaranty is ambiguous, or primarily imports
a past consideration, parol evidence may be admitted to show
that the parties intended it to refer to a future transaction.^
In an action on the following guaranty : " In consideration
of your having this day advanced to our client, Mr. S D,
£150, secured by his warrant of attorney, payable on the
22nd of August next, we hereby jointly and severally under-
take to pay the same on default, etc.," it was held that the
instrument was sufficiently ambiguous to admit of evidence
to show that the advance was not a past one, but was made
simultaneously with the execution of guaranty.^ Where
the defendant gave a guaranty in the following terms :
"Gentlemen, as Mr. D informs me you require some per-
son as guaranty for goods supplied to him by you in his
business, I have no objection to act as such for payment of
your account," it was held that the guaranty was not on
its face a guaranty in respect of a past supply, but was to be ,
read as if it were for goods to be supplied.*

Sec. 112. Rules for Construing Guaranties. — In construing
guaranties, the surrounding circumstances should be taken
into consideration.^ And in certain cases the principle of
construction, ut res magis valeat quam pereat, may be ap-
plied.^ But the maxim in question does not apply in
cases where there are extrinsic circumstances, in relation

1 Dutchman v. Tooth, 7 So. 710; v. Ames, 23 L. T. (N. S.) 729; "Way v.
and see Edwards v. Baugh, 11 M. & Hearn, 13 C. B. (N. S.) 305.
W. 641. 6 Newell v. Kadford, L. R. 3 C. P.

2 Haighti.BrookSjlOAd. &E1.309
aff'd. nom. Brooks v. Haigh, ib. 334
Butcher V. Stewart, 11 M. & W. 873

52 ; Heffield o. Meadows, L. R. 4 C.
P. 595 ; Laurie v. Schofleld, L. R. 4
C. P. 622; Coles v. Pack, L. R. 5

King V. Cole, 2 Exch. 632. C. P. 65.

8 Goldshede v. Swan, 1 Exch. 154. ^ Broom v. Batchelor, 1 H. & N.

* Hoad V. Grace, 7 H. & N. 494; 255; 25 L. J. Ex. 299; Steele ». Hoe,
31 L. J. (Ex.) 98; and see Mockett 14 Q. B. 431 ; 19 L. J. Q. B. 89 ; Newell

V. Radford, L. R. 3 C. P. 52.

SEC. 113.] GUARANTIES. 181

to which the words used are, in their primary sense, intel-
ligible.^ A guaranty indorsed on an agreement may be read
with the agreement for the purpose of making out a consider-
ation.^ If the words of a guaranty, in their ordinary accep-
tation, are capable of expressing either a past or a concurrent
consideration, that construction will be adopted which makes
the instrument valid.^ Where the defendant gave the follow-
ing guaranty : " In consideration of E R & Co. giving credit
to D J, I hereby engage to be responsible, and to pay any sum,
r.ot exceeding £120, due to the said E R & Co. by the said
D J," it was held that the guaranty was good and binding,
the words " giving credit " being equally applicable to future
as to past advances.* If the guaranty does not import that it
is to attach upon future advances, and refers, in fact, to past
transactions only, without showing a future consideration, it
is void.^ Where the defendant gave the following guaranty :
"I hereby guarantee Mr J J's account with you for wines
and spirits to the amount of £100," it was held that the
guaranty was for an existing account, and not for a future
supply.^

Sec. 113. instances of Considerations. — Although it is no
longer necessary that the consideration should appear on the
face of the guaranty in a majority of the States,'^ yet, as a
consideration must exist, it will be convenient to refer to
some of the older cases, which turned upon the suflSciency
of the consideration. Guaranties for the payment of any
goods which the plaintifP should deliver to A,^ for the pay-
ment of a debt owing by A, if the plaintiff would withdraw
a promissory note,^ give up a security ,1" or stay an action,^^

1 Broom a. Batchelor, 1 H. & N. ^ AUnutt w. Ashenden,6 Sc. (N. R.)
255; 25 L. J. Ex. 299, per Beam- 127; and see Boyd i,. Moyle, 2 C. B.
WELL, B. 644. .

2 Coldham v. Showier, 3 C. B. 312. ' See Chapter on " I^emorandum."
8 Steele v. Hoe, 14 Q. B. 431; 19 « Stadt v. Lill, 9 East, 848, S. 0.

I/. J. Q. B. 89. nom. ; Stapp v. Lill, 1 Camp. 242 ; see

* Edwards v. Jevons, 8 C. B. 436; also ex parte Gardom, 15 Ves. 286;

19 1/. J. C. P. 50 ; and see Bainbridge Price v. Richardson, 15 M. & W. 539.

V. "Wade, 16 Q. B. 89; Brooks v. 9 ghortrede i;. Cheek, 1 Ad. & El. 57.

Haigh, 10 A. & E. 334; Colbourn v. i" Peate v. Dicken, 5 Tyr. 116; 1

Dawson, 10 C. B. 765. C. M. & B. 422 ; Goodwin «. Bond, 69

E Bell V. "Welch, 9 C. B. 154; 19 N. H.

L. J. C. P. 184; "Westhead v. Sproson, " Tanner v. Moore, 9 Q. B. 1.

6 H. & N. 728 ; 30 L. J. Ex. 265.

182 STATUTE OF FRAUDS. [CHAP. IV.

have been held to be sufficient. So undertakings to see rent
paid,i to pay goods ordered by A,^ and a promise conditional
on the plaintiff's accepting a certain offer ,^ have been held to
be sufficient.

The following memorandums : " To the amount of £100
be pleased to consider me as a security on J C's account," *
and, " I undertake to secure to you the payment of any sums
you have advanced, or may hereafter advance, to D on his
account with you, commencing 1st November, 1831," ^ have
been held not to express a sufficient consideration ; and where
the defendant wrote as follows : " As you have a claim on
my brother for £5 17s. 9c?. for boots and shoes, I hereby
undertake to pay the amount within six weeks from this
date," it was held that the consideration, viz., forbearance for
six weeks, did not appear, and that the guaranty was bad.^
The fact that goods were brought by a third person but for
and used by the promisor, does not afford such a moral
obligation as will support his parol promise to pay for them,
if he was under no legal obligation to do so when they were
purchased, and a promise to pay for the goods after they were
purchased and delivered upon the credit of a third person, is
within the statute, unless the original debtor by the agree-
ment of the parties is discharged from the debt.^ But where,
by the terms of a parol promise, the original debtor is dis-
charged and the promisor is substituted in his place as
debtor, the promise is not within the statute, although there
is no other consideration therefor than the original debtor's
discharge.*

Sec. 114. Meaning of the ■Words "Debt," "Default," "Mis-
carriage."— The words "debt," "default," or "miscarriage"
apply (1) to guaranties for an existing debt, (2) to guar-
anties for future debts, or for future losses, which may be
incurred by the acts of a third party, (3) to some past or

1 Caballero v. Slater, 14 C. B. 300. « James v. 'WiUiams, 3 Nev. &

2 Jarvia v. Willdns, 7 M. & W. 410. Man. 196 ; and see Ellis v. Levy, 1
8 Powers V. Fowler, 4 E. & B. 511. Sc. 669 n. (a).

* Jenkins v. Eeynolds, 6 Moo. 86; ' Hendricks v. Hobinson, 5 Miss.

3 Brod. & B. 14. 694.

» Eaikes v. Todd, 8 A. & E. 846; ^ Underwood v. Lovelace, 61 Ala.

and see Cole v. Dyer, 1 Tyr. 304. 155.

SEC. lis.] GTTAEANTIES. 183

future default in duty by a third party.^ The adjective
" special " describing the kind of promise has no other effect
than to distinguish express from implied promises, and by
necessary inference to except the latter from the operation
of the statute.^ In the case last cited, Hosmer, C. J., in a
very able opinion, defined the form of this phrase. He said :
" The first expression in the statute is ' that no suit in law or
equity shall be brought on any contract or agreement.' The
words * contract ' and ' agreement ' are used synonymously,
and are followed by this phraseology 'whereby to charge tlie
defendant on any special promise.' The expression ' special
promise ' most obviously is applied to the same subject, and
with the same extent as the preceding words 'contract or
agreement.' The word ' special ' has no other effect than to
show that promises in fact were referred to, and not promises
implied by law, for every actual promise is particular or special.
The statute, then, comprising the same ideas it now does,
might have been thus expressed, ' whereby to charge the defendant
on any promise, except a promise in law.' " ^

Sec. 115. Promise Partly "Within and Partly 'Without Statute.
— Where a promise is entire, and is void from the commencement
as to part, for not being in writing, the parts being indivisible, no
a,ction can be brought on that part of the promise which is not within
the statute, but the whole promise is void. Thus, where the
defendant, in consideration that the plaintiif would not dis-
train for rent in arrear, verbally promised to pay him, not
only the rent due, but the rent due at the ensuing quarter-
day, it was held that the promise to pay the accruing rent
was a promise founded on a new consideration, distinct from
the demand which the plaintiff had against the tenant, and,
therefore, void under the statute ; and that the promise being
entire, and in the commencement void in part, was void
altogether, and that the plaintiff, therefore, could not recover
from the defendant the rent due at the ensuing quarter-day.*

1 See De Colyar on Guaranties, 305; Pike v. Brown, 7 Cush. (Mass.)
pp. 45-49; and Kirkham v. Marter, 313.

2 B. & Aid. 613; Mountstephen v. * A servant was injured by the

Lakeman, L. R. 7 Q. B. 197. wrongful act of B. A physician

2 Sage V. "Wilcox, 6 Conn. 81. called in by B came to A's house and
' Goodnow V. Gilbert, 9 Mass. 510 ; attended the servant, immediately

Allen V. Pryor, 3 A. K. Mar. (Ky.) after which, A told the physician

184 STATUTE OP FEAUDS. [CHAP. IV.

Where, however, the promise is divisible, an action may be brought
upon that part which is not within the statute. Thus, where a
guaranty as follows was given : " I, the undersigned, do
hereby engage to pay the directors of the Manchester Gas
Works, or their collector, for all the gas which may be con-
sumed in the Minor Theatre, and by the lamps outside the
theatre, during the time it is occupied by my brother-in-law
Mr. Neville; and I do also engage to pay for all arrears
which may be now due." It was held that the agreement
was void as to the arrears, but that the amount of the gas
supplied might be recovered.^

In Loomis v. Newhall,^ where the defendant's son had
already become Uable to the plaintiff for supplies, the plaintiff,
at the request of the defendant, continued to furnish the son
with supplies, upon the defendant's promise that " for what
you have done and for what you may do for my son, I wiU
see you paid," and it was held that the defendant was not
liable under this promise for that part of the claim accruing
after the promise was made because there could be no recovery
on that part of the debt which accrued before by reason of

about the accident and that B was hie contract a third person tells him
responsible for it, and then added, to " go on and finish the work, and I
" but, doctor, you need not be alarmed will see you paid," upon the faith of
about your bill. I will see that you which he does complete it, the prom-
are paid." The physician continued ise is without consideration and with-
his treatment until the patient was in the statute, even though the prom-
. cured, but it was held that no recov- isor has sufficient funds in his hands
ery could be had of A, as his promise belonging to the debtor to pay the
was within the statute. Rose v. claim. Birchell v. Neaster, 36 Ohio
O'Linn, 10 Neb. 364. In a similar St. 831 ; Thomas u. Williams, 10 B.
case in Illinois, King v. Edmunston, & C. 664 ; and see Lexington v.
88 m. 267, it was held that while the Clarke, 2 Vent. 223 ; Chater v. Beck-
physician could not recover upon the ett, 7 T. R. 201 ; Mechelen v. Wal-
promise for past visits, he could re- lace, 7 Ad. & El. 49 ; 2 N. & P. 224 ;
cover for those made after the prom- Head v. Ealdrey, 6 Ad. & El. 469 ; 2 N.
ise was made. And a similar rule & P. 217 ; Hodgson v. Johnson, E. B.
was adopted in Illinois as to a prom- & E. 685 ; 28 L. J. Q. B. 88 ; Vaughan
ise to pay for goods sold to another, v. Hancock, 3 C. B. 766; Harman v.
Hartley v. Varner, 88 id. 661. Where Reeve, 18 C. B. 687 ; Cooke v. Tombs,
a person is performing labor under Ans. 420 ; Lea v. Barber, ib. 425, n. ;
an entire contract, as, to erect a house Corder v. Drakeford, 3 Taunt. 382.;
and furnish materials, he is under a Neal «. Viney, 1 Camp. 471.
legal obligation to complete it ; and i Wood v. Benson, 2 Cr. & J. 94 ;
if, before its completion, he refuses to 2 Tyr. 93 ; see also Earl of Falmouth
go on upon the security of the person v. Thomas, 1 Cr. & M. 101.
for whom he is performing the ser- ^ 15 pjck. (Mass.) 159. But see
vice, and to induce him to perform Bobson v. Harwell, 6 6a. 689.

SEC. 115.] GUARANTIES. 185

it being within the statute, the court proceeding upon the
ground that the promise being void in part was void in toto.
But the doctrine of this case has been overruled,^ and in a
recent case in that State ^ it was held that an oral promise to
pay for past and future board of the child of another at a
certain weekly rate, is severable, and that a recovery might
be had for the board of the child after the promise was made.
In Rand v. Mather, ante, the rule which generally prevails was
announced, that if a part of a contract is valid, and the part
which is valid can be separated from that which is invalid,
it will be given effect to pro tanto. In that case the plaintiff
contracted to do certain work for B, but quit work because
B failed to pay him according to the contract. Thereupon,
the defendant told him to finish the work and he would pay
him in full. It was held that, while no recovery could be
had for the work done before the promise was made, yet a
recovery might be had for that done after it was made.^ But
where the contract is entire, and not divisible, if a part is
invalid because within the statute, the whole is invalid.
Thus in Irvine v. Stone, ante, it was held that a contract for
the purchase of coal in Philadelphia, and to pay the freight
on the same to Boston, was not divisible so that a recovery
could be had for the freights. A deed void in part and
good in part is void in toto. It cannot be held good for part
and void as to the remainder.* In Dowling v. McKinney,^ A
orally agreed to convey lands to B and to take in exchange,
or payment, a monument, to be of a certain value when finished,
and the balance in money. B completed the monument and
tendered it to A together with the balance of the money,
which he refused to accept. B also performed certain labor
in preparing the foundation for the monument. A refused to
convey the land, and in an action to recover for the value of

J Band v. Mather, 11 Cush. (Mass.) promise to pay the antecedent debt of

1. See also Irvine v. Stone, 6 id. 508, a third person.

where, while the case was not referred * See also Allen v. Leonard, 16

to, yet a doctrine wholly inconsistent Gray (Mass.) 202, where the same

therewith was held. rule was adopted under a similar state

2 Haynes u. Nice, 100 Mass. 327. of facts.

In Pfeiffer v. Adler, 37 N. Y. 164, it ^ Smith v. Kenny, 1 Mackey (D.

was held that a verbal promise to sell C.) 12.

goods to a responsible party for full ' Dowling v, McKinney, 124 Mass.

value and on the usual terms, forms 478.
no consideration for an independent

186 STATUTE OP PBATTDS. [CHAP. IV.

the monument, it was held that, the contract being entire and
within the statute, no recovery could be had therefor, but
that, if the foundation was laid on A's land, and was to his
benefit, a recovery might be had for the labor so expended.
The rule is that, if some of the stipulations of a contract
are within the statute and others are not, and those within
it have been performed, an action lies upon the other stipula-
tions if they are separate ; ^ but if they are not separate, no
recovery can be had for either.^ In Vermont^ an agree-
ment to convey lands, coupled with a guaranty that a certain
piece of it contains a certain number of acres, has been held
to be entire, and the • same has been held as to a contract to
convey lands and pay off the incumbrances,* or to take an
assignment of a lease of lands and buy the stock,^ or to sell
an interest in a mill and all the timbers and irons belonging
thereto,^ or to let a house and the furniture therefor ; '' but
this rule does not apply when the lease of the house has
been actually delivered,^ although it is held that even where
a valid lease is delivered, legal vitality is not thereby given to
a parol agreement to pay a bonus.® The rule in reference
to the severability of contracts may be said to be that, if the
part to be performed by one party consists of several distinct
and separate items, and the 'price to be paid by the other is
apportioned to each item to be performed, or is left to be

1 Page V. Monks, 5 Gray (Mass.) Lamb w. Crafts, 12 Met. (Mass.) 353;
492; Tunbridge v. Wetherbee, 11 Dack t. Hart, 7 "W. & S. (Penn.) 172;
Allen (Mass.) 361 ; Hand v. Mather, Duncan v. Blair, 5 Den. (N. Y.) 196;
11 Cush. (Mass.) 1; Pierce v. Wood- Noyes v. Humphries, 11 Gratt. (Va.)
ard, 6 Pick. (Mass.) 206; Mobile &c. 636; Alexander v. Guiselin, 5 Gill.
Ins. Co. V. McMillan, 31 Ala. 711; (Md.) 138; Henderson v. Hudson, 1
Wood V. Benson, 2 C. & J. 94 ; Little- Munf. ( Va.) 510 ; Crawford v. Morrell,
John, ex parte, 3 M. D. & DeG. 182; 8 John. (N. Y.)253; Woodw. Benson,
Mayfield v. Wadsley, 3 B. & C. 357. 2 C. & J. 94.

2 McMullen v. Riley, 6 Gray » Dyer v. Graves, 37 Vt. 369.
(Mass.) 50; Lexington v. Clark, 2 * Duncan u. Blair, ante; Dack v.
Vent. 223 ; Reinbalt v. East, 56 Ind. Hart, ante.

538; Thomas v. Williams, 10 B. & C. ^ Lea v. Barber, 2 Anst. 425, n.

664 ; Chater v. Beckett, 7 T. R. 201. " Thayer v. Rock, 13 Wend. (N. Y.)

In Biddell v. Leeder, where the de- 53.

fendant agreed to purchase the plain- ' Mechelen v. Wallace, 7 Ad & El.

tiff's share in a ship, and to indemnify 49; Vaughan v. Hancock, 3 C. B. 766.

him from .all liability on account of ^ Angell v. Duke, L. R. 10 Q. B.

his share, it was held that the contract 174.

was entire, and that no recovery ' Sanderson v. Graves, L. R. 10

could be had upon either branch of it. Exchg^. 234.

SEC. 116.] GtrAEANTIES. 187

implied by law, the contract will generally be held severa-
ble ; and the same rule holds where the price to be paid is
clearly and distinctly apportioned to different parts of what
is to be performed, although the latter is in its nature single
and entire. In Rand v. Mather,^ the court lay down the
rule as follows: "On principle and according to numerous
modern adjudications, the true doctrine is this : If any part
of an agreement is valid, it will avail pro tanto, though
another part of it may be prohibited by statute, provided
the statute does not, either expressly or by necessary impli-
cation, render the whole void; and provided, furthermore,
that the sound part can be separated from, the unsound, and be
enforced without injustice to the defendant. ... In the applica-
tion of this doctrine, Chakcblloe Kent says : 'if the part
which is good depends upon that which is bad, the whole is void;
and so I take the rule to be, if any part of the consideration
be malum in se, or the good and the void consideration be so
mixed, or the contract sO entire that there can be no appor-
tionment.' " ^

Sec. 116. Rule in Couch v. Meeker. — In a Connecticut
case,^ where a note was given by A to B for five hundred
dollars, upon which there was endorsed a condition as fol-
lows: "The condition of this note is such that the said
Meeker hath this day bargained his Starr farm (so called)
to the said Couch ; now, if the said Meeker stands to
the bargain, the within note is to be void; if. not, then the
within note is to stand in full force." In an action upon
the note it was held that the statute of frauds did not
preclude the plaintiff from proving by parol evidence that
the note was delivered as an escrow, whatever the conditions
on which it was to take effect, and that they were performed,
although the conditions respected a parol contract for the
sale of lands; the object of the testimony being, not to
support an action upon such parol contract for the sale of
lands, but to show that a written contract to pay money had
taken effect. Swift, C. J., in the course of his opinion,
in giving the reason for the decision, said : " The statute only
requires that the agreement on which the action is brought

1 Eand v. Mather, 11 Cu8h.(Mass.) 1. ^ Couch v. Meeker, 2 Conn. 302.

2 2 Kent's Com. 6th ed. 467.

188 STATUTE OF PBATJDS. [CHAP. IV.

should be in -writing. This action is brought on a written
obligation, complete in itself; and is warranted by a literal
construction of the statute. Though it was delivered as an
escrow, to take effect on the performance of certain condi-
tions, which amounted to a contract for the sale of lands,
yet such conditions are not required by the terms of the
statute, or any construction ever given it to be in writing.
These conditions are not part of the written contract, but
only the terms upon which it was to take effect, or not ; the
proof of them, then, is necessary only to prove the execu-
tion of a written contract. The proof of the execution of
a written contract must be by parol ; and it might as well
be said, that parol proof is not admissible respecting the
delivery of a deed conveying lands, as to say it cannot be
admitted respecting the performance of the conditions on
which such deed is to operate; for in both cases, it is no
more than proving the execution of the contract ; and it has
often occurred, that deeds conveying lands have been de-
livered as escrows upon parol conditions, and they have
never been considered as void by the statute of frauds and
perjuries.

It has been argued, that this is in substance an action to
recover damages for the breach of a parol contract for the
sale of lands, though it is in form an action on a written
contract. Admitting this to be trite, there was, in substance, a
written contract to pay a certain liquidated sum in damages, in case
a parol contract for the sale of lands should not be performed. It
is on this written contract that this action is founded; and is, of
course, strictly conformable to the requirements of the, statute.

It has been insisted, that a court of equity could not have
decreed a specific performance of the parol contract for the
sale of the land in question ; and that, of course, a court of
law cannot give damages for the non-performance of it. It
will be conceded that equity could not have interposed, and
compelled a specific performance of the bargain for the sale
of the farm, for this rested in parol, and the note did not
specify the terms of it. But there is no rule that a court
of law will not give damages for the breach of a contract
respecting the sale of land, which equity cannot enforce.
... It is said that written conditions were annexed to the
note, different from the parol conditions, and that proof

SEC. 117.] GUARAKTIES. 189

could not be admitted respecting such parol conditions.
But the efficacy of the note depended on the parol conditions on
which it was delivei'ed in escrow; of course it operated when
these were performed, and the written conditions were imma-
terial. And though it was not formally delivered over by
the depository to the plaintiff, yet it took effect in his hands
the instant the conditions were performed, without any formal
act of delivery on his part." The doctrine of this case cannot
be successfully questioned, nor is it aU obnoxious to the rule
that, where part of an entire contract is void by the statute,
the whole is void.^ In a Texas case ^ an action was brought
upon a note, as follows : " Thirty days after date I promise
to pay J. A. Donathan, or bearer, two hundred and fifty
dollars, with five per cent interest per month until paid, for
value received. The consideration of the above note is one-
half of a certain town lot in the town of Jacksboro, in lot
four, in block number three, L. L. Crutchfield." The note
was given under a parol agreement for the sale of lands, and
the land had not been conveyed at the time when the action
was brought; but the plaintiff alleged that he was ready
and willing to convey. The court held that, although such
a note given under such circumstances may not be such a
a memorandum as satisfies the statute, the maker cannot
avoid the note because he has omitted to bind the vendor.'
In an Illinois case,* in an action upon a note, the defendant
alleged the delivery and acceptance of real estate in fuU
satisfaction. The court held that an instruction that a
verbal agreement for the sale and delivery of real estate
would be void within the statute and could not be set up in
defence, was erroneous, as the statute has no application to
such case, as, if the plea is sustained, the contract is exe-
cuted, and, if not sustained, the defence fails.

Sec. 117. Promise to give Guaranty. — A promise to give
a guaranty is required to be in writing as much as a guaran-

' Van Alstine w. Wimple, 5 Cow. ^ Crutchfield v. Donathon, 49 Tex.

(N. Y.) 162; Goodrich u. Nickols, 2 691.

Root (Conn.) 498; Patterson v. Cim- ^ Rhodes v. Starr, 7 Ala. 347;
ningham, 12 Me. 506; Rice v. Peet, 15 McGowen v. West, 7 Mo. 569.
John. (N. Y.) 503. * Thayer v. McEwen, 4 111. App.

416.

190 STATUTE OF FEATTDS. [CHAP. IV.

ty itself.^ But a promise to procure a guaranty from a third
person is not within the statute. This was decided in the case
of Bushel V. Beavan.^ There the plaintiffs, the owners of a
ship hired on a charter-party by H. Semphill, refused to let her
saD. till certain disputes about the freight between them and
H. Semphill were settled by H. Semphill's giving security,
whereupon the defendant, in consideration that plaintiffs
would let H. Semphill sail without giving security, under-
took to get P. Macqueen to sign the following guaranty:
" Whereas H. Semphill has hired your ship for six months
from the 12th July, 1830, and such longer time as his
intended voyage may require, and has paid or secured the
freight for six months from the 20th August, 1830, and is
about to leave England, I guarantee the payment of freight
which shall accrue for any portion of the voyage after the
said six months." It was held that the guaranty was
within the statute, but that the undertaking to procure
P. Macqueen's signature was not.

Sec. 118. Offer to Guarantee does not Bind till Accepted. — '
A mere offer to guarantee is not sufficient to bind the person
making it, until he has notice that it is regarded as a
guaranty and is accepted, or until he has consented to its
being considered as conclusive. Thus, where the defendant
gave the following letter to A (to whose house the plaintiffs
had declined to furnish goods on their credit alone) : " I
understand A & Co. have given you an order for rigging,
etc., which wUl amount to about X4,000. I can assure you
from what I know of D A's honor and probity, you wlLL be
perfectly safe in crediting them to that amount, indeed I
have no objection to guarantee you against any loss from
giving them this credit ; " and this letter was handed over
by A to the plaintiffs, with a guaranty from another house
which they required in addition, and the goods were there-
upon furnished ; the letter was considered not to amount to
a guaranty, there being no notice given by the plaintiffs to
the defendant that they accepted it as such, or any consent
of the defendant that it should be a conclusive guaranty.^

1 Mallett V. Bateman, L. R. 1 C. P. » Mclver v. Eiohardson, 1 M. &
170. Sel. 557 ; and see Coleman v. Upcot,

2 1 Bing. (N. C.) 103; 4 Moo. & S. 5 Tin. 527; Bird v. Blosse, 2 Vent.
622. 361; Hodgson v. Hutchinson, 5 Tin.

SEC. 122.] GUABANTIES. 191

Sec. 119. Offer may be Withdrawn. — Until an. offer tO
guarantee lias 'been accepted, it may be revoked by the
person -who has made it. In Offord v. Davies,i it was held
that a guaranty to secure moneys to be advanced to a third
party on discount to a certain extent "for the space of twelve
calendar months," might be countermanded within that time.

Sec. 120. implied Aooeptanoe. — Acceptance of an offer to
guarantee may be implied from the action of the parties.
Where a guaranty was given in the following terms : " I
hereby guarantee to you the sum of £250 in case Mr. P
should make default in the capacity of agent and traveller
to you ; " it was held that the person indemnified was not
bound to employ the person designated by the guaranty,
but that, if he did employ him, the guaranty attached and
became binding on the person who gave it.^

Sec. 121. I!:spress Acceptance. — The terms of the offer
may, however, show that an express acceptance is expected,
and then the guaranty is not conclusive unless it has been
expressly accepted. Thus, where the defendant wrote as
follows: "F informs me that you are about publishing an
arithmetic for him. I have no objection to being answerable
as far as £50. For my reference apply to B of this place ; "
the memorandum was witnessed by B, and forwarded by him
to the plaintiffs, who never communicated their acceptance
to the defendant ; the court decided that the plaintiffs, not
proving any notice of acceptance to the defendant, were not
entitled to recover, as the transaction " could not be tortured
into a consummate and perfect contract." *

Sec. 122. Waiver of References. — Where a surety is re-
quired to give, and gives, references, the creditor may dis-
pense with them, as the condition is for his benefit, but he

522 ; Gaunt v. Hill, 1 Stark, 10 ; Sym- ^ Kennaway v. Treleavan, 5 M. &

mons V. Want, 2 Stark, 371 ; Mozley ' W. 498, per Parke, B. ; and see Offord

V. Tinkler, 1 C. M. & K. 692 , 5 Tyr. v. Davies, 12 C. B. (N. S.) 748, and the

416; Newport w. Spivey, 7 L.T. (N. S.) judgment of Colekidge, J., in Pope

328. V. Andrews, 9 C. & P. 564.

1 12 C. B. (N. S.) 748; and see » Mozley v. Tinkler, 1 C. M. & E.

Grant v. Campbell, 6 Dow. H. L. C. 692 ; 5 Tyr. 416.
239.

192 STATUTE OF FEAUDS. [CHAP. IV.

cannot enforce the guaranty against the surety until he has
given him notice of the intended waiver.^

Sec. 123. Original Debtor's Liability must Continue. — The
question whether each particular case comes within this
clause of the statute or not, depends, not on the considera-
tion for the promise, but on the fact of the original party
remaining liable, coupled with the absence of any liability
on the part of the defendant or his property, except such as
arises from his express promise.^ In Green v. Cresswell,'
Denman, C. J., said that there did not appear to be any
objection to the above test, and it was also approved of by
CocKBUEN, C. J., in Fitzgerald v. Dresler.* There the plain-
tiffs through D & Co., who were brokers, sold 682 bags of
linseed at a certain price per quarter to H, and H afterwards,
through the same brokers, sold the linseed at an increased
price to the defendant. The time for the defendant's pay-
ment of the purchase-money was to arrive before the time
fixed for H's payment. The defendant being in want of the
linseed to complete a contract he had made, sent one of his
clerks to D & Co. for the delivery order, with instructions
to follow up the matter and get the order. The clerk was
taken by D & Co. to the plaintiffs, from whom he obtained
the order only on his promising that the defendant would
pay the plaintiffs for the seed, as the plaintiffs required to be
paid before they parted with the order. On the following
day the defendant sent a check to D & Co. for £900, on
account of the seed, which had not been measured at that
time, so that the precise quantity of it was not then known.
Upon its being measured it was found that the plaintiffs were
entitled under their contract with H to receive £971 15s. 6d.
In an action by them against the defendant to recover the
difference between this amount and £900, the amount of
the check, it was ruled that the contract made by the de-
fendant's clerk was not a contract to pay the debt of a third
person within the statute, as the linseed, the giving up of
which by the plaintiffs was the consideration for such promise,
was the property of the defendant subject to the plaintiff's
lien for the purchase-money.

' Morten v. Marshall, 2 H. & C. » 10 Ad. & El. 453, 2 P. & D. 430.
305. 4 7 C. B. (N. S.) 392 ; 29 L. J. C. P.

a 1 Wms, Saund, 233, 118.

SEC. 124.] GUARANTIES. 193

Sec. 124. Tests for Determining whether Promise is Collat-
eral or Not. — An important inquiry in determining whether
a promise is collateral or not is whether there is any debt
or duty to which it can be collateral. The fact that there
is, is not decisive of the question, lut the fact that there is not,
clearly is. Thus in an Ohio case,^ the defendant, who was a
stockholder, and also president of a corporation, being desirous
to have the stock of the corporation taken, verbally promised
the plaintiff that if he would subscribe and pay $500 into the
capital stock of the corporation, he should receive fifteen per
cent on that amount in one year. It was held that this was
not a contract to answer for the debt, default, or miscarriage
of another, but an original undertaking, and no dividend having
been declared or earned within a year, the defendant was held
liable upon his promise, Johnsoit, J., saying : " Was there any
debt, obligation, or legal duty, express or implied, owing by
the corporation to the plaintiff as a stockholder, for which the
defendant undertook to answer upon default of the corpora-
tion ? The obligations legally imposed upon the corporation,
and upon those charged with the duties of managing the cor-
porate business, in favor of the plaintiff as a stockholder, were
only such as were common to all stockholders. These corporate
authorities were bound to good faith, and to reasonable care,
skUl, and diligence, with a view to profit in the prosecution of
the business of the corporation. If profits thereby accrue, it
becomes the duty of these authorities to declare such divi-
dends out of the same, from time to time, as the nature and
condition of the business should warrant. The defendant
did not undertake to answer for any debt, default, or miscar-
riage by the corporation, growing out of a failure to perform
any of these duties. Indeed, so far as the record discloses, all
these obligations in favor of the plaintiff have been faithfully
performed by the corporate authorities. Most clearly, there-
fore, it appears that there was no corporate contract, express
or implied, for which defendant made himself responsible.
His contract was entirely distinct and independent of the
obligation of the corporation to the plaintiff. The corpora-
tion had no power to obligate itself in advance to pay to
plaintiff as a dividend, or otherwise, the sum which defendant

1 Moorehouse v. Crangle, 36 Ohio St. 130 ; 38 Am. Eep. 564.

194 STATUTE OF FRAUDS. [CHAP. IV.

agreed he should receive on his investment. There was
then no corporate debt or obligation, express or implied, to
pay to plaintiff any amount or his investment. Defendant's
contract was, in legal effect, essentially different from the
obligations of the corporation^ in favor of plaintiff as a stock-
holder, and the liability created was wholly independent of
any default by the corporation. It was not an undertaking
to answer for the default of the corporation." If the debt
and the promise are cotemporaneous, then the inquiry is, to
whom was the credit given ? If given solely to the promisor,
then he is the original debtor, the debt is his debt, and the
undertaking is original.^ But if any credit was given to the
person in whose behalf the promise is made, then the under-
taking is collateral, and within the statute,^ and in all
cases the question as to whether there is a debt or duty to
which the promise can be collateral, or as to whether the
promise was collateral in fact, is for the jury.^ Another
important inquiry is whether, although the promise is to pay
the debt of another, it was made upon consideration of the dis-
charge of the original debtor from the debt, and if so, whether he
was in fact discharged therefrom ; and if such was the consid-
eration, and the debtor was discharged because of the promise,
then the undertaking is not collateral, because the promisor was

1 McCaffli V. Kadcliffe, 3 Bob. Newhall v. Ingraham, 15 id. 422;

(N. Y.) 445. In Proprietors of the Steel v. Towne, 28 id. 771; Busliel v.

Upper Locks v. Abbott, 14 N. H. 157, Allen, 31 id. 613 ; Caperton v. Gray,

S haying agreed to transport lumber 4 Yerg. (Tenn.) 563; Cahill w. Bigelow,

down the Connecticut River, caused 18 Pick. (Mass.) 369; Head v. Ladd,

it to enter the head of a canal, on Edm. Sel. Cas. (N. Y.) 100 ; Tilleston

which were the plaintiif's locks. At v. Nettleton, 6 Pick. (Mass.) 509;

this place it was the custom to exact Hall v. Wood, 4 Chand. (Wis.) 36 ;

the tolls. The plaintiff's agent re- Puckett v. Bates, 4 Ala. 396 ; Taylor

fused to permit the lumber to pass v. Drake, 4 Strobh. (S. C.) L. 431;

through the locks on the credit of S ; Peabody v. Harvey, 4 Conn. 124 ;

and the defendant thereupon promised, Bresler v. Pendell, 15 Mich. 224;

that if the agent would permit it to Chase v. Day, 17 John. (N. Y.) 114 ;

pass through the locks, he would be Walker u. Eichards, 39 N. H. 259;

responsible for the tolls, and would Leland v. Creyon, 1 McCord (S. C.)

see tliem paid, and the lumber was L. 100 ; Boykin v. Dohlonde, 1 Sel.

permitted to pass. It was held that Cas. (Ala.) 502; Conually v. Kettle-

the defendant's promise was an origi- well, 1 Gill. (Md.) 260; Norris v.

nal and not a collateral undertaking, Graham, 33 Md. 56 ; Blake v. Perlin,

and was not within the statute of 22 Me. 395; Moses v. Norton, 36 id.

frauds. 113.

^ Jack V. Morrison, 48 Penn. St. ^ Moorehouse v. Crangle, ante ; An-

113; Whitman v. Bryant, 49 Vt. 512; derson v. Hayman, 1 H. Bl. 120.

SEC. 124.]

GUAKANTIES.

195

substituted as debtor, and the debt became his own} If the prom-
isor was jointly liable with another, his promise is not collat-
eral, because before the promise he was liable for the whole
debt, as in case of a promise by one partner to pay the firm
debt,''' or indeed a promise made by a person in any capacity
who was, before the promise was made, liable for the debt ^
where the promisor promises to pay out of the debtor's funds,
or the proceeds of the debtor's property in his hands for that
purpose, the promise is original.* So when there is some

1 White y.Solomonsky, 30 Md. 585;
Booth V. Eighmie, 60 N. Y. 238;
Gleason v. Briggs, 28 Vt. 135 ; Watson
V. Jacobs, 29 id. 169 ; Curtis v. Brown,
5 Cush. (Mass.) 492; AUhouse v.
Eamsay, 6 Whart. (Penn.) 331; Hag-
gerty v. Johnson, 48 Ind. 41 ; Parker
V. Heaton, 55 id. 1 ; Moseley v. Taylor,
4 Dana (Ky.) 542; CUck ■;. McAffee,
7 Port. (Ala.) 62. The statute has no
application where the promise is to
pay a debt of another, if the debtor is
discharged therefrom, becauGe upon
the debtor's discharge the promisor
becomes the debtor, and the discharge
of the original debt affords a sufficient
consideration. Andre u. Badman, 13
Md. 241. Thus, in Mead v. Keyes, 4
E. D. S. (N. Y. C. P.) 510, the holder of
certain notes overdue, having sent
them to his agent for collection, took
in satisfaction thereof the notes of his
debtor's brother, giving a receipt for
his claims against the debtor, and an
order on his agent for the original
notes. It was held that the transaction
was a transfer of the original debt,
and that the notes were not within the
statute. See also Cooper v. Chambers,
4Dev. (jST. C.) L. 261. So, where a
chattel was purchased by one of a
firm which was about to be formed,
for the use of the firm, and was used
by the firm, and the firm agreed to
take it from the purchasing partner
when he retired from the firm, and
the note originally given for the
chattel was surrendered to the pur-
chasing partner, it was held not to
be a contract within the statute of
frauds, but that the old contract was
ended by the surrender of the note.

and that a new one was made by the
other members of the firm, on which
they were liable. Shaver v. Adams,
10 Ired. (N. C.) L. 13. But a promise
to pay the debt of another, the origi-
nal debt not being released, is within
the statute of frauds, and will not
sustain an action. Britain v. Thrail-
kill, 5 Jones (N. C.) L. 329. S.P.
Stone V. Symmes, 18 Pick. (Mass.)
467 ; Brown u. Hazen, 11 Mich. 219 ;
Shoemaker v. King, 40 Penn. St. 107 ;
Gunnels v. Stewart, 3 Brev. (S. C.) 52 ;
Newell V. Ingraham, 15 Vt. 422 ;
Waggoner v. Gray, 2 Hen. & M. (Va )
603; Noyes o. Humphries, 11 Gratt.
(Ta.) 636. Thus, where a father
promised the creditor of his son that,
if he would go to a distant place and
become the bail of his son, so as to
release him from imprisonment, he
would pay the debt which the son
owed him. It was held that, notwith-
standing the performance of the ser-
vice, yet, as the debt againstfhe son was
still in force, it was a contract within
the statute, and therefore void. Rog-
ers V. Rogers, 6" Jones (N. C.) L. 300.

2 Hopkins v. Carr, 31 Ind. 260;
Durham v. Manrow, 2 N. Y. 541;
Pilies V. McLeod, 14 Ala. 61 ; Eice v.
Barry, 2 Cr. (U. S. C. C.) 447; Aikin
V. Duren, 2 N. & McC. (S. C.) 370;
Stephens v. Squire, 5 Mod. 205 ;
Hawes v. Martin, 1 Esp. 162.

' Hendricks v. Wiseheart, 57 Ind.
129; Fish v. Thomas, 5 Gray (Mass.)
45; Orrell v. Coppock, 26 L. J. Ch.
269.

* Welch </. Kenney, 49 Cal. 49;
Berry v. Doremus, 30 N. J. L. 399;
Crosby v. Joralemon, 37 Ind. 264;

196 STATUTE OF FEATJDS. [CHAP. IV.

liability of the promisor's property independent of his express
promise, and Tie derives a direct and immediate henejit there-
from, the promise is original, as a promise made by the part
owner of a vessel to pay a debt for labor and materials
furnished for her construction, if the creditor will forbear
enforcing his lien upon the vessel therefor,^ or where the
creditor has, by reason of the promise, relinquished some lien,
benefit, or advantage for securing or recovering his debt, and
by means of such relinquishment the same interest or advantage has
enured to the promisor^ the promise is original ; and this is the
rule in all cases where the promise is made upon a new and inde-
pendent consideration, of benefit or harm, moving between the parties,^
or where the promisor may be treated as the purchaser of the debt,* or
where the promise is made to the debtor himself upon a sufficient
consideration,^ or where there is no liability on the part of the person
promised for. ^ These rules cover the general exceptions to
the statute, but as they are treated fully under each separate
head elsewhere in this chapter, it is not necessary to say more
in reference to them in this place.

In California and Dakota, by an express provision of the
statute, a promise to pay the debt of another is deemed original :

1. Where the promise is made by one who has received
property of another upon an undertaking to apply it pursuant
to such promise, or by one who has received a discharge from
an obligation, in whole or in part, in consideration of such
promise.

2. Where the creditor parts with value or enters into an
obligation, in consideration of the obligation in respect to
which the promise is made, in terms or under circumstances
such as to render the party making the promise the principal

Crim u. Eitcli, 53 id. 214; Ernide v. « Farley v. Cleaveland, 4 Cow.

Eunde, 58 111. 232; Balliet v. Scott, (N. Y.) 432; Young i-. French, 32

32 Wis. 174; Buchanan k. Paddleford, Wis. Ill; Burr v. Wilcox, 13 Allen

43Vt. 64. (Mass.) 269; Wills v. Brown, 118

1 Fish u. Thomas, 5 Gray (Mass.) Mass. 137.

45. 1 Anstey v. Marden, 1 B. & P. 133 ;

2 Curtis V. Brown, 5 Cush. (Mass.) Castling v. Aubert, 2 East, 325.

488; Ames"!>. Foster, 106 Mass. 400. ^ Spadam v. Reed, 7 Bush. (Ky.)

But both must concur. The mere 450; Colt v. Eoot, 17 Mass. 220;

fact that the creditor relinquished his Soule v. Alhee, 31 Vt. 142 ; Eastwood

lien is not sufficient, hut such relin- u. Kenyon, 11 Ad. & El. 438.
quishment must also inure to the « Drake v. Fleurellen, 33 Ala. 106 ;

direct and immediate advantage of Harris v. Huntbaeh, 1 Burr, 373;

the promisor. Dunscomb v. Liokridge, Aleyn, 94.

SEC. 12S.] GUABAOTIES. 197

debtor, and the person in whose behalf it is made his
surety.

3. Where the promise, being for an antecedent obligation
of another, is made upon the consideration, accepting the new
promise as a substitute therefor ; or upon the consideration
that the party receiving it releases the property of another
from a levy, or his person from imprisonment under an execu-
tion on a judgment obtained upon the antecedent obligation ;
or upon a consideration beneficial to the promisor, whether
moving from . either party to the antecedent obligation, or
from another person.

4. "Where a factor undertakes for a commission to sell
merchandise and guarantee the sale.

5. Where the holder of an instrument for the payment of
money, upon which a tliird person is or may become Uable
to him, transfers it in payment of a precedent debt of his own
or for a new consideration, and in connection with such
transfer enters into a promise respecting such instrument.

The wisdom of incorporating these exceptions into the
statute is not doubtful, as they are mainly such as have been
adopted by the courts, and the result of incorporating them
into the statute is to give permanency to those doctrines which
have been held by the better class of courts under the statute
when no such exceptions exist. Of course, under the rule for
the construction of statute, where certain exceptions are
expressly made, no other exception can be made by the courts,
and thus the law is definitely settled so that parties with
certainty can know and understand what their rights and
habilities are under this head of the statute.

Sec. 125. Promise Must be to the Person Guaranteed. —

The statute only contemplates a promise made to the person
to whom another is already, or is to become liable : therefore
a promise hy the defendant to the plaintiff to pay A B a debt
due from the plaintiff to A B, is not within the statute?- It
must he a promise to he answerable for a debt of or a default in
some duty by that other person towards the promisee? The

1 Eastwood V. Kenyon, 11 Ad. & El. ^ Hargreaves v. Parsons, 13 M. &

438 ; 2 P. & D. 370 ; see observations W. 561, per Paeke, B. ; Eastwood v.

on this case, Sni. Merch. Law, 8th ed. Kenyon, 11 Ad. & EI. 438 ; Thomas v.

457; and see also Gregory D. Williams, Cook, 8 B. & G. 728. In Hargreaves

3 Mer. 682. v. Parker, ante, Paeke, B., said ;

198

STATUTE OF FEAXnDS.

[chap. IV.

rule adopted in this class of cases is that an agreement to pay
and discharge the debt of another made with the debtor or some
person on Ms behalf, if founded upon a new and valid consideration,
is an independent undertaking, and does not come within the
letter or spirit of the statute.^ But in Kentucky it is held

" The statute applies only to promises
made to the persons to whom another
is already, or is to become, answer-
able. It must be a promise to be
answerable for a debt of, or a default
in some duty by, that other person
towards the promisee. This was de-
cided, and no doubt rightly, by the
Court of Queen's Bench, in Eastwood
V. Kenyon, 11 Ad. & El. 438; 3 P. &
D. 276; and in Thomas v. Cook, 8 B.
& C. 728 ; 3 Man. & E. 444. In this
case Parker had not contracted with
the plaintiff, nor was it intended ' that
he should; there was no privity be-
tween them; the non-performance of
Parker's contract with the defendant
would be no default towards the
plaintifi, and, consequently, the under-
taking by the defendant was no
promise to answer for the default or
miscarriage of Parker in any debt or
duty towards the plaintiff. It was an
original promise that a certain thing
should be done by a third person."

1 Brown v. Brown, 47 Mo. 130;
Britton o. Angler, 48 N. H. 420;
Hubon V. Park, 116 Mass. 541; Gaetz
V. Poos, 17 Minn. 265. The rule
generally adopted is that the promise
must be made to the creditor to be
within the statute ; and that a prom-
ise to the debtor to pay his debt to
the creditor, or to a. surety to indem-
nify him for becoming surety for a
third person to a fourth, is an original
and not a collateral undertaking when
the promisee acts solely on the prom-
ise of the promisor. Tibbetts v.
Planders, 18 N. H. 284; Cailleux v.
Hall, 1 E. D. S. (N. Y. C. P.) 5; Jones
V. Hardestry, 10 G. & J. (Md.) 404 ;
Barker v. Bucklin, 2 Den. (N. Y.) 45;
Jennings v. Webster, 7 Cow. (N. Y.)
256 ; Maxwell v. Haynes, 41 Me. 559 ;
Kutzmeyer v. Ennis, 27 K J. L. 371 ;
Decker v. Sehaffer, 3 Ind. 187 ; Plemm
u. Whitmore, 23 Mo. 430; Perkins v.

Littlefield, 5 Allen (Mass.) 370; How-
ard V. Coshaw, 33 Mo. 118; Hubon v.
Parks, 116 Mass. 541 ; 'Wild v. Nichols,
17 Pick. (Mass.) 538; Preble v. Bald-
win, 6 Cush. (Mass.) 549; Piske u.
McGregory, 34 N. H. 414; Soule a.
Albee, 31 Vt. 142 ; North v. Eobinson,
1 Duv. (Ky.) 71; Morin ». Murtz, 13
Minn. 191 ; Vogel o. Melms, 31 "Wis.
306 ; Aldrich v. Ames, 9 Gray (Mass)
76; Alger B. ScOville, 1 id. 391, 395;
Pike V. Br,own, 7 Cush. (Mass.) 133,
130; Chapin v. Lapham, 20 Pick.
(Mass.) 467; Blake v. Cole, 22 id. 97 ;
Beaman «. Eussell, 20 Vt. 205, 210;
Harrison v. Sawtel, 10 Johns. (N. Y.)
242 ; Chapin o. MerriU, 4 Wend. (N.
Y.) 657; Staats u. Howlett, 4 Den.
(N. Y.) 559; Barry v. Eansom, 12 N.
Y. 462, 467; Conkey v. Hopkins, 17
Johns. (N. Y.) 113; Eeed w. Holcomb,
31 Conn. 360; Johnson v. Gilbert, 4
Hill (N. Y.) 178. In such a case the
debt becomes the debt of the promis-
or. Eobinson v. Gilman, 43 IT. II.
435; Smith v. Sayward, 5 Me. 504,
507; Tarr v. Northey, 17 Me. 113;
Dunn V. West, 5 B. Mon. (Ky.) 370 ;
Thomas v Cook, 8 B. & C. 728; East-
wood V. Kenyon, 11 Ad. & El. 438;
Hargreaves v. Parsons, 13 M. & W.
560, 580; Eeader v. Kingham, 13 C.
B. (N. S.) 344; Cripps v. Hartnall, 4
B. & L. 414; Wilson v. Bevans, 58 111.
233; Ellenwood v. Fults, 03 Barb.
(N. Y.) 321. The statute does not
apply where, although the promise is
in form to pay the debt of another if
the promisor's intent be not' merely
to pay such debt, but also to subserve
a purpose of his own, so as to bring it
under the head of an original under-
taking. McCreary v. Van Hook, 35
Tex. 631; Dickinson v. Coulter, 45
Ind. 445; Cross v. Ballard, 46 Vt.
415; Armstrong v. Baldwin, 3 T. & C.
(N. Y.) 443; Eunde v. Eunde, 59 111.
98; Johnson w. Krupp, 86 Iowa, 616;

SEC. 125] GUAKANTIES. 199

that such agreements are only enforceable by the creditor in
equity,! ^nd in Vermont it is held that a debtor cannot rely
upon a parol agreement of another to pay his debt, such
agreement being within the statute of frauds; hut he must
show in addition an actual substitution of the third person for
himself by an agreement of all the parties, or an actual com-
pliance with the terms of the agreement. Willingness to pay
as agreed by the third person, and to receive payment from
him by the creditor, is not sufficient.^ In most of the States
the creditor may sue upon such a promise as well as where funds
or property have been by the debtor placed in the hands of
the promisor with which to pay his debts, upon the ground
that, as the promise is made for his benefit, and upon a valid
consideration, the law Avill imply the necessary privity.^ But
in England,* as well as in several of the States of this country,
this rule does not prevail, and it is held that no one can sue
upon a contract to the consideration of which he is a stranger.^
As to the right of the debtor himself to sue for the breach of
such a contract made by him upon a good consideration, there
can be no question.

Where A, at the request of B, entered into a bond with
him and C to indemnify D against certain debts due from C
to D, and B promised to save A harmless from all loss by
reason of the bond, it was held that the promise was binding,
although not in writing. " If the plaintiff," said Pakke, J.,
" at the request of the defendant had paid money to a third
person, a promise to repay it need not have been in writing,
and this case is in substance the same." ®

Again, in a case where the defendant and one Parker agreed
for the sale by Parker to the defendant of the "put " or "call"

Conradt v. Sullivan, 45 Ind. 180 ; 2 Buchanan v. Paddlef ord, 43 Vt. 64

Darst V. Bates, 95 111. 493. In Mathers » Lawrence v. 'Fox, 20 N. Y. 268 :

V. Carter, 7 111. App. 225, A surren- Urquhart v. Brayton, 12 R. I. 6 Re-

dered to B a bond for a deed which porter, 601.

he held against him, in consideration ^ Tweddle' v. Atkinson, 1 B. & S

of B's verbal promise that he would 393 ; Jones v. Robinson, 1 Exchq. 456

pay to C the amount of a note which ^ Clapp u. Lawton, 31 Conn. 95 :

C held against him, and it was held Halstead v. Erancis, 31 Mich. 113:

that the statute did not apply and Exchange Bank v. Rice, 107 Mass. 37 :

that it was a new and independent Brice v. King, 1 Head. (Tenn.) 152

contract upon which C might main- Campbell v. Eindley, 3 Humph,

tain an action in his own name. (Tenn.) 330; Rice u. Carter, 11 Ired

' Hodgkins v. Jackson, 7 Bush. (N. C.) 298.

(Ky.) 324. 5 Thomas v. Cook, 8 B & C. 728.

200 STATUTE OF FEATJDS. [CHAP. IV.

of fifty foreign railway shares, at a certain price per share
premium, at any time on or before the 18th of February, 1844,
and before that day the defendant agreed to resell the option
to the plaintiff, and to guarantee the performance of the agree-
ment by Parker, and on the 16th of February the plaintiff
" called " the shares (z.e. required the delivery of them pursu-
ant to the agreement), but it was at the same time yerbally
agreed between him and the defendant and Parker, that they
should be delivered to the plaintiff not on the 18th of Febru-
ary, but on the 2d of March, at Paris ; it was held that this
was not an agreement by the defendant to be answerable for
the default of Parker, but an original promise by him for the
delivery of the shares by Parker, for which a note in writing
was not required by the statute, Pabkb, B., saying: "In this
case Parker had not contracted with the plaintiff, nor was it
intended that he should ; there was no privity between them ;
the non-performance of Parker's contract with the defendant
would be no default towards the plaintiff, and consequently
the undertaking by the defendant was no promise to answer
for the default or miscarriage of Parker in any debt or duty
towards the plaintiff. It was an original promise that a
certain thing should be done by a third person."^ In a
Missouri case ^ the defendants were creditors of the husband
of Laura S. Brown, and being in failing circumstances, he
proposed to execute to their use a trust deed of valuable
real estate belonging to him. Mrs. Brown declined to release
her dower, and claims to have consented to do so only upon
the agreement by defendants to pay a certain debt from her
husband to said Clardy, which had not been otherwise
provided for. The defendants, having bid in the property at
trustees' sale, refused to pay the Clardy debt, and tliis suit
was brought to enforce their agreement to do so. The de-
fendants denied the agreement, but judgment was obtained
against them for the amount of the debt, which was affirmed
by the Supreme Court. Upon the trial the defendants
insisted that, as a matter of law, the contract could not be
enforced because it was a verbal agreement to pay the debt
of another, and witliin the statute of frauds. Bliss, J., said :

1 Hargreaves v. Parsons, 13 M. & ^ Brown v. Brown, 47 Mo. 130 ; 4
W. 561. Am. Eep. 330.

SEC. 125.] GUABANTIES. 201

" The provision that no action shall be brought to charge any
person upon a promise to answer for the debt of another,
unless it is made in writing, is construed to apply to promises
made to the creditor, and hence it is always held that while the
creditor cannot recover upon a collateral parol agreement
made with him to pay his debtor's obligation, yet if such
agreement be net made with the creditor, it can be enforced
if otherwise good, though not evidenced by any note or
memorandum in writing.^ It is held that a parol contract
with the creditor to pay the debt of another can in general
only be enforced when the original debt is cancelled, and the
third person is alone looked to for the debt. It then becomes
an independent agreement to assume the debt. It is not a
collateral promise, for the original debt is discharged. It
becomes the debt of the promisor alone, and is no longer the
debt of another, and hence it is not within the statute. So,
also, an agreement to pay and discharge the debt, made with
the debtor or some person interested for him, if founded upon
a new and valid consideration, is an independent undertaking,
and does not come within the letter or object of the statute.
It is neither uncommon nor is it unreasonable for a debtor to
make provision by contract for the payment of his obligations ;
and if a purchaser of property, instead of paying the whole
consideration, should assume to pay certain liabilities of his
vendor, and be able to escape his obligation and retain the
property, the statute would be one of frauds in a new sense.
No such construction has ever been given it, and the courts
of New York go so far as to hold that, though not a party to
this independent agreement, the creditor may avail laimself of
it and sue in his own name." ^

So where the plaintiff, the bailiff of a county court, being
about to arrest one H under a warrant of contempt for non-
payment of a. judgment debt, the defendant, in consideration
that he would forbear to execute the warrant, promised to
pay the plaintiff £11 on a given day or surrender H, it was
held that this was not an agreement by the defendant to be

1 Howard v. Coshaw, 33 Mo. 118; 45; Pratt v. Humphrey, 22 Conn. 317;

Hargreaves v. Parsons, 13 M. & W. Alger v. ScovUle, 1 Gray, 391 ; Per-

561; Eastwood v. Kenyon, 11 Ad. & kins u. Littlefield, 5 Allen (Mass.) 370.
El. 438 ; Westf all v. Parsons, 16 Barb. ^ Barker v. Bucklin, supra.
645; Barker u. Bucklin, 2 Den. (N. Y.)

202

STATUTE OF PKATTDS.

[chap. IV.

answerable for the debt or default of H, but an original
promise by him to pay the money or surrender ^.^

Sec. 126. if the Person Promised for Liable at all, Promise
must be in "Writing. — Formerly a distinction was made between
promises to pay for goods sold, made before delivery of the
goods, and promises made after the goods were delivered. In
the former case the undertaking was considered original, and
not within the .statute ; in the latter, collateral, and within the
statute.^ But this distinction has been overruled,^ and the

1 Reader v. Kingham, 13 C. B. (N.
S.) 344; and see Hodson v. Anderson,
3 B. & C. 842 ; 6 D. & R. 735.

^ Mowbray v. Cunningham, cited 2
T. R. 80; Jones v. Cooper, Cowp. 227 ;
LofEt. 769.

8 In Matson v. "Wharam, 2 T. R.
80, BuLLER, J., said: "I argued the
case in Cowper (Jones v. Cooper,
Cowp. 227) the facts of which were,
that a person who was going abroad,
wished to malce some provision for
his mother-in-law, in his absence, and
said to a baker, you must supply my
mother-in-law with bread, and I will
see you paid; that case was tried
before Nares, J., at Bristol. I was
for the plaintiff, and cited the case of
Mawbray v. Cunningham, in which
Lord Mansfield said : ' This is a
promise made before the debt accrues ;
and what is the reason of the trades-
man's requiring that promise? It is
because he will not trust the person
for whose use the goods are intended ; '
and tlie plaintiff obtained a verdict.
But Nares, J., overruled tliis determi-
nation, and non-suited the plaintiff,
and this court afterwards refused to
grant a new trial."

But notwithstanding what was said
by BuLLEE, J., it does not appear that
the case of Jones ;;. Cooper overruled
the determination in Mawbray v. Cun-
ningham, for although in botli cases
the promise was made before the deliv-
ery of the goods, yet in the case de-
termined by Lord Mansfield, the
promise was simply to see the goods
paid for ; whereas, in Jones v. Cooper,
the promise was expressly conditional,

thus, " I will pay you if Smith will
not ; " and Smith was entered the debtor
in the plaintiff's books. And upon this
distinction, the new trial was refused ,
and Lord Mansfield observed that
the general distinction was a clear
one : meaning, as he afterwards made
it appear, the distinction between an
undertaliing before tlie delivery of the
goods, and afterwards ; but he said,
"there may be a nicety where the un-
dertaking is before delivery, and yet
conditional; and upon this sub-distinc-
tion between promises conditional and
promises unqualified, made before de-
livery, it appears that the case of
Jones a. Cooper was in reality decided.
But the distinction upon which Maw-
bray V. Cunningham was decided by
Lord Mansfield, was directly over-
ruled by the case of Matson v.
Wharam, which was an action for
goods sold and delivered, and tried
before Wilson, J., when a verdict was
found for the plaintiffs, subject to the
opinion of the court on the following
case ; the defendant, Wharam, applied
to Matson, one of the plaintiffs, and
asked him if he was willing to serve
one R C of Pontefract, with gro-
ceries; he answered, that he dealt
with nobody in that part of the
country, and did not know R C ; to
whicli the defendant, Wharam, replied,
"if you don't know him, you know me,
and I will see you paid." Matson then
said, he would serve him ; and Wharam
answered, he is a good chap, but I will
see you paid. A letter was afterwards
received by the plaintiffs from R C
containing an order for goods, to the

SEC. 126.] GUAKANTIES. 203

rule now is, that if the person to whom the goods are supplied
is liable at all, the promise must be in writing.^ This rule
was well illustrated in a Tennessee case,^ in which it appeared
that the defendant and another person were in a store together,
and the defendant told the plaintiff that he would pay for all
the goods which the other person might buy, and thereupon,
and in reliance upon such promise, the plaintiff sold such
person several articles, and charged them to him and the defend-
ant jointly; and the court held that the defendant's prom-
ise was collateral and within the statute. In an Indiana
case,* the defendant verbally agreed with the plaintiff that if
he wojild sell C a certain horse, he would make good any
agreement about it. In an action to recover the price of the
horse, the judge left it for the jury to say whether the plain-
tiff primarily gave credit to C for the horse, and they having
so found, it was held that the promise was collateral and
within the statute. In all cases where the question is whether
a promise by the defendant is collateral or original, the
question is for the jury, whether the sole credit was given to
the promisor,* and if the jury finds that any credit was given
to the third person in whose behalf the promise was made, so
that there is any liability on his part to pay the debt, the
promise is collateral, and the verdict must be for the defend-
ant.^ Thus, a promise to pay the debt of another, if it is

amount of £7, and the goods were the promise is made, is an essential

sent according to the order. The point of inquiry, and must be gath-

plaintiffs made R C the debtor for ered from the circumstances of the

these goods in their books. They case.

afterwards applied to K C by letter, > Matson v. Wharam, 2 T. R. 80 ;

for the payment of the debt, and re- Colman v. Eyles, 2 Stark. 62 ; Peck-

ceiving no answer, they then applied ham v. Paria, 3 Doug. 13; Parsons v.

to the defendant, Wharam, who re- Walter, ib. 14, n. (c).

fused to pay, and there having been 2 Matthews v. Milton, 4 Yerg.

no promise in writing, according to the (Tenn.) 576.

statute of frauds, judgment was given ' Billingsby v. Dempewolf, 11 Ind.

for the defendant. In this case, 414. Where the evidence shows that

although the promise was not condi- sales were made wholly upon the credit

tional in expression, yet the circum- of a promisor upon either a written or

stances sufficiently imported an un- verbal promise, the statute is not ap-

derstanding" among all the parties, plicable. McLenden v. Frost, 57 Ga.

that both the party for whose use the 448.

goods were delivered, and the party * Doyle v. White, 26 Me. 341 ;

expressly promising to pay, were to Homans v. Lombard, 21 id. 341.

become liable. Such liability, there- ^ Read v. Ladd, 1 Edm. (N. Y.)

fore, of the person on whose account Sel, Cas. 100 ; Hill v, Raymond, 3

204

STATUTE OF FRAUDS.

[chap. IV.

not paid by him,^ or " to be responsible and stand good " for
another's debt,^ or to indemnify a surety against loss or liabil-
ity,3 or to " see that the debt is paid," * unless when the lat-
ter form of expression is used, it is shown that credit was
given solely to the promisor,^ or to accept an order for anoth-
er's debt,® or of a member of a corporation to pay its debts,^
and generally any promise which is conditional upon the
debtor himself not paying,* or which shows an intent that the
promisor should merely occupy the position of a surety for
the debt, is collateral and within the statute. Indeed, in all
cases where the undertaking of a party is to further secure
an existing debt between the regular parties to a i;ote or
other obligation, it is a collateral contract within the, statute;
and in New Jersey it is held that a simple indorsement of a
note hi blank, before the name of the payee, is not such a
writing as wUl satisfy the statute.^ Where A, having com-

AUen (Mass.) 540; First National
Bank v. Bennett, 33 Mich. 520; Wood
V. Patch, 11 E. I. 445.

1 Gllfillan V. Snow, 51 Ind. 305.

2 Miller v. Nehaus, 51 Ind. 401.

' First National Bank v. Bennett,
33 Mich. 520.

* Petit i).Braden,55Ind. 201; Bloom
V. McGrath, 53 Miss. 249. A promise
made by A to B that if C employs
him, A " will see him paid " is a col-
lateral undertaking and within the
statute. Skinner v. Conant, 2 Vt.
453 ; In Chase v. Day, 17 John. (N. Y.)
114, A inquired of B the terms on
which he would let C have newspapers
to sell ; and, on being told the terras,
said : " If C calls for the papers, I will
be responsible for the papers he shall
take," and it was held that this was an
original and absolute contract on the
part of A, and not within the statute
of frauds.

6 Wagner v. Hallock, 8 Col. 176.
But in Petit v. Braden, ante, it was
held that those words import u col-
lateral undertaking, and that the cir-
cumstance that the creditor relied
solely upon tlie promisor's liability
does not change the rule. But the
court may have placed stress upon the
circumstance that the goods had al-

ready been sold to the vendee, but de-
livery was withlield until he obtained
security for the price.

' Benson v. Walker, 5 Harr. (Del.)
110. In Morrison v. Baker, 81 N. C.
76, it was held by the court that an
unconditional promise to pay for goods
to be furnished to another is not within
the statute. Evidence to change a
contract relation between a plaintifE
and a third party and to prove a
promise to pay the debt of another as
a new and original undertaking and
not as a contract of suretyship must
be clear and satisfactory, or it will fall
witliin the statute. Haverly v. Merian, '
78 Penn. St. 257 ; Palmer v. Haggard,
78 111. 607.

' Quin V. Hanford, 1 Hill (N. Y.)
82; Trustees v. Flint, 13 Met. (Mass.)
539.

8 Dufalt V. Gorman, 1 Minn. 301.
A promise to pay the debt if he does
not, in reliance upon which the prom-
isee permitted the debtor to leave the
state, taking his property with him, is
within the statute. Gillfillan v. Snow,
61 Ind. 305. A parol contract to
answer in part for another's debt is
within the statute. Luer v. Zeile, 53
Cal. 54.

' Hay den v. Weldon,43 N. J. L. 128.

SEC. 127.] GUARANTIES. 205

menced certain business for B, which he had undertaken,
refused to proceed without a promise from C to pay the
further expenses, it was held that C was not liable on such
a promise without a note in writing.^ So, where the de-
fendant verbally promised the plaintiff that if he would
supply goods to A, drawing upon him at one month, and
would allow him (the defendant) three per cent upon the
amount of the invoice, he would pay the plaintiff cash to
take A's bill " without recourse," in other words, buy the bill
of him, it was held that there was a contract to answer for
the debt or default of another which, not being in writing,
could not be enforced.^

SkC. 127. Guarantor must not be Liable. — The statute does
not apply to a case where the party giving the guaranty
is himself liable to the demand which he is purporting to
guarantee, it must he exclusively the debt, default, or miscar-
riage of another person. In Arden v. Rowney,^ a check for
£100 was drawn upon the defendant, and the plaintiff, who
was asked to cash it, sent to the defendant to know whether
it was good. The defendant replied that it would be honored,
as he was indebted to the drawer of it in £200. The check
was void, as being post-dated ; but it was held, nevertheless,
that the plaintiff could recover, on the ground of the sum
due to the drawer being appropriated. Lord Ellenbokough
said : " If this had been an agreement to pay an amount of
any money which the plaintiff might advance to Alder (the
drawer), and no specific sum of money had been mentioned,

An unwritten agreement of suretyship was applied where a seller of goods

is Toid under the statute. Ingersoll v. had refused to deliver them to the

Baker, 41 Mich. 48 ; Bonlne v. Dennis- purchaser without security therefor,

ton, 41 id. 292, and so is any agree- and the defendant orally promised that

ment merely collateral to answer for if he would deliver the goods he would

the deht of another. Thatcher v. " see that he got his pay." The court

Rockwell, 4 Cal. 375 ; Anderson v. held that the promise was collateral

Hayman, 1 H. Bl. 120. In Bugbee and within the statute because the

V. Kendrickson, 130 Mass. 437, it vendee still remained liable for the

was held that in the ^ale of goods, goods. Smith v. Montgomery, 3 Tex.

if any credit at all is given to the 199.

person to whom the goods are de- i Barker v. Tox, 1 Stark, 270.
livered, the promise is collateral and ^ Mallett v. Bateman, L. R. 1 C. P.

within the statute. See also Bloom 103, affg. S. C. 16 C. B. (N. S.) 530.
V. McGrath, 53 Miss. 249. In Petit = 5 Esp. 254.
u. Braden, 55 Ind. 201, this rule

206

STATUTE OF FKAT7DS.

[chap. IV.

■which was to be so advanced, I should have thought this a
case within the statute of frauds ; but it appears to me that
this is an appropriation of £100, part of the money which
the defendant said he owed to Alder, amounting to .£200,
and that the plaintiff may recover."

Where the testator appointed his son, Alfred Orrell, and
three other persons his executors and trustees, and Alfred
Orrell disclaimed and renounced probate, and afterwards
purchased a portion of the testator's estate, the other lega-
tees raised a claim for losses incurred by the trustees, and
Alfred Orrell's solicitor wrote, on his behalf, to the claimants,
agreeing to pay £3,000 in satisfaction of the alleged losses,
it was held that this letter was not within the statute, as an
agreement to answer for the debt, default, or miscarriage of
another, as Alfred Orrell was himself liable for the debt.^

1 Orrell v. Coppock, 26 L. J. Ch.
269 ; and see Coutourier v. Hastie, 22
L. J. Ex. 97 ; Hodgson v. Anderson, 5
D. & K. 735; 3 B. & C. 942; Batson
V. King, 4 H. & N. 739; Fitzgerald v.
Dressier, 7 C. B. (N. S.) 374. The
operation of the statute is not con-
fined to collateral undertakings to be
answerable for a subsisting liability,
debt, or duty, but extends as well to
undertakings made be/ore the debt
accrues or the duty arises, and a guar-
anty consequently, which a trades-
man requires from a third person be-
fore he sends out goods sold on credit,
because he does not like to trust the
person for whose use the goods are
intended, is within the statute if the
latter has been treated by the trades-
man as his debtor. Jackson v. Covert,
5 Wend. (N. Y.) 139; Crookshank v.
Burrell, 18 John. (N. Y.) 58; Peckham
V. Paria, 3 Doug. 13 ; Parsons v. Wal-
ter, 3 id. 14 n. (c). Thus where the
plaintiff having commenced business
for one Pox, refused to go on with it,
without a promise by the defendant
to pay the further expenses to be in-
curred, it was holden that this prom-
ise was within the statute. Barber v.
Fox, 1 Stark, 270. But the sale may
be to one man, although the goods are
to be delivered to another, and a per-
son may promise to pay for goods

supplied to, or for work done at his
request, or by his directions for a
third party, as the real debtor, and
not in the character of a surety, and
if he has been treated by the person
who has furnished the goods and done
the work, as the party liable, and
credit has been given to him, his
promise or undertaking to pay is not
a collateral promise to answer for the
debt of another, and the statute con-
sequently is out of the ease. Har-
greaves v. Parsons, 13 M. & W. 661,
570; Graham v. O'STeill, 2 Hall (N. Y.)
474; Hilton v. Dinsmore, 20 Me. 410;
Colt V. Root, 17 Mass. 229; Perley v.
Spring, 12 Mass. 297 ; Corbett v. Coch-
ran, 3 Hill (S. C.) 41; McKenzie v.
Jackson, 4 Ala. 230 ; Durham v. Ar-
ledge, 1 Strobh. (S. C.) 5; Hall v.
Rogers, 7 Humph. (Tenn.) 536; Ar-
buckle I'. Hawks, 20 Vt. 538; Proprie-
tors V. Abbott, 14 N. H. 157 ; Blount
V. Hawkins, 19 Ala. 100. If two
come to a shop, and one buys, and
the other to gain him credit promises
the seller " it he does not pay you,
/ will," this is a collateral undertak-
ing, void without writing, by the stat-
ute. But if he says, "let him have
the goods, I will be your paymaster,"
or " I will see you paid," this is an
undertaking as for himself, and he is
regarded as the buyer. Birkmyr c;.

SEC. 127.]

GTJAHANTIES.

20T

Of course, if the promisor was before the making of the
promise liable to pay the debt, his promise is not within the

Darnell, 1 Salk. 27 ; 6 Mod. 250 ; Wat-
kins V, Perkins, Raym. 224 ; Seaman
V. Price, 1 C. & P. 586; 10 Moore, 34;
2 Bing. 437. Where the defendant,
in consideration that the plaintiff, at
the request of the defendant, would
provide a workman with materials for
his work, promised the plaintifl to
pay him a reasonable sum for such
materials, out of such moneys re-
ceived by him, as sliould become due
to the workman in respect of the
work, it was held that this was not a,
promise by a surety to answer for the
debt or default of another, witliin the
meaning of the statute, but an origi-
nal independent contract. Andrews
u. Smith, 2 C. M. & R. 627 ; Sweeting
V. AspUn, 7 M. & W. 173 ; Gerish v.
Chartier, 1 C. B. 13. Whether the
contract of one who engages to be
responsible for another is to be re-
garded as original and joint, or col-
lateral, must depend upon the inten-
tion of the parties, to be ascertained
from the nature of it, and the lan-
guage used. Norris v. Spencer, 18
Me. 324 ; Homans i'. Lombard, 20 Me.
303; Sinclair v. Richardson, 12 Vt.
33; Doyle .;. White, 26 Tenn. 341.
If goods are furnished to an infant at
the request of the defendant, the de-
fendant's undertaking or promise to
pay for them is not a collateral prom-
ise to answer for the debt of another,
because the infant is not liable to pay
for them and cannot be indebted by
reason of his minority. Harris v.
Himtback, 1 Bur. 373 ; Duncombe v.
Tickeridge, Aleyn, 94 ; 1 Wms. Saund.
211 d. And if the original debt is
discharged and extinguished by the
substitution in lieu thereof of a new
contract to pay the amount of that
debt, such new contract is not a col-
lateral promise to answer for the debt
or default of another. Hodgson v.
Anderson, 5 D. & R. 746, 747 ; 3 B. &
C. 855, 866; Lacy v. McNeile, 4 D. &
R. 7 ; Taylor v. HUary, 1 C. M. & R.
743 ; 3 Dowl. 461. Tlie contract of a

factor binding him in the term im-
plied by a del credere commission is
not within the statute of frauds. The
contract is the factor's own contract,
and the debt of another comes in in-
cidentally only as a measure of dam-
ages. Wolf V. Koppel, 6 Hill, N. Y.
R. 458 ; Coutourier v. Hastie, 8 Exch.
56. Where a debtor being taken in
execution by the plaintiff, the defend-
ant, in consideration that the plain-
tiff would discharge his debtor out of
custody, promised the plaintiff to pay
him the debt, it was held that this
was not a collateral promise to an-
swer for the debt of another, the debt
being extinguished by the discliarge
of the debtor. Goodman v. Chase, 1
B. & Aid. 297 ; Butcher v. Steuart, 11
M. & W. 857 ; 12 Law J. Exch. 391
Lane u. Burghart, 1 Q. B. 937; An
derson v. Davis, 9 Vt. 136 ; Cooper v
Chambers, 4 Dev. (S. C.) 261. So,
where the plaintiff had issued exeeu'
tion against one Lloyd, and after
wards, with the assent of all the par-
ties interested, Lloyd conveyed all
his property to the defendant, he un-
dertaking to satisfy Lloyd's creditors ;
and, thereupon, it was agreed between
the plaintifE Lloyd and the defendant,
that the plaintiff should relinquish
the execution against Lloyd (which
he did), and should look to the de-
fendant as his debtor instead of Lloyd ;
it was held, that the defendant's un-
dertaking to pay the plaintiff was not
a promise to answer for the debt of a
third person ; for that Lloyd was dis-
charged from the debt, and would
have had a good answer by plea, if
the plaintiff had sued him, or by
audita querela, if the plaintiff had
issued execution. Bird v. Gammon,
5 Sco. 213 ; 3 Bing. (N. C.) 883. And
where a purchaser of goods, being
unable to pay for them, transferred
and delivered them to the defendant,
and the latter promised the vendor to
pay for them, it was held, that this
was a substitution of a new contract

208

STATUTE 03r FUAUDS.

[chap. IV.

statute, although other persons were equally liable with him,
as in that case the promise is merely to pay his own debt,
and therefore a promise by one partner to pay a firm debt is
Talid ; ^ but not if the promise is to pay the individual debt
of another partner,^ nor is a verbal promise made by a

of sale and a new purchaser, in lieu
of the original contract of sale, that
the original purchaser was discharged
from all liability in respect of the
goods, and his debt being extinguished,
the promise was not a promise to be
answerable for the debt of another.
Browning v. Stallard, 5 Taunt. 450.
The agreement of a factor to account
for the amount of sales made by him,
under a del credere commission, is not
within the statute a promise to an-
swer for the debt of another. Wolf
V. Koppel, 2 Den. (¥. Y.) 368.

And a contract or promise, al-
though made concerning the debt or
default of a third party, may yet be
an original contract not within the
statute. If the plaintiff, for example,
has a lien upon the goods and chattels
of his debtor in his possession, or if
he holds securities for the payment of
his debt, and is induced either to give
up his lien upon the goods, or to part
with his securities upon the faith of
a promise, made by the defendant, to
pay the amount of the plaintiff's
claim thereon, the promise so made is
not within the mischief intended to
be provided against by the statute of
frauds, although the amount prom-
ised to be paid, as the consideration
or inducement for the abandonment
of the lien or the surrender of the
securities, may be the subsisting debt
of a third party, due to the plaintiff,
and the performance of the promise
may have the effect of discharging
that debt. Barker v. Birt, 10 M. &,
W. 61 ; Baigg v. Brooks, 10 Ad. & El.
309; ib. 335; Barrel v. Trussell, 4
Taunt. 117 ; Meredith v. Short, Salk.
25 ; Castling v. Aubert, 2 East, 325 ;
Vfalker v. Taylor, 6 C. & P. 752.
Where the plaintiff had distrained
upon his tenant for rent in arrear,
and afterwards delivered up the goods

and chattels to the defendants, for
the use of the tenant upon the faith
of an undertaking signed by the de-
fendants in the following terms:
"We, the undersigned, hereby agree
and undertake to pay to Thomas
Edwards (the plaintiff) all such rent
as shall appear to be legally due to
him from Edward Kelly, tenant, etc.,
up to the twenty-fifth day of Decem-
ber, 1815 ; " it was held that the un-
dertaking was not witliin the mischief
intended to be provided against by
the statute. Edwards v. Kelly, C M.

6 S. 204; Williams v. Leper, 3 Burr.
1887 ; Hampton v. Paulin, 12 Moore,
497; Houlditch v. Milne, 3 Esp. 80;

1 Wms. Sauud. 211 d, 211 e, ed. 1845.
The landlord, having distrained the
goods, held them in his hands as a
pledge for the rent; the debt in re-
spect of such rent was for the time
suspended, and the promise founded
upon the relinquishment by the land-
lord of his lien upon the goods, was
an original independent contract, and
not a mere promise to answer for the
debt of another. In these cases the
plaintiff must so shape his case, as
not to show or admit that there is a
principal debtor or that the defend-
ant's promise is a promise to pay the
debt of another. Clemay v. Piggott,

2 Ad. & El. 473 ; Slingerland v. Morse,

7 John. (N. Y.) 403.

1 Hopkins v. Carr, 31 Ind. 360;
Piles V. McLeod, 14 Ala. 611 ; Eice v.
Barry, 2 Cr. (U. S. C. C.) 447; Aiken
V. Duren, 2 N. & McCord (S. C.) 370;
Durham v. Munrow, 2 N. Y. 541;
Stephens o. Squires, 6 Mod. 205;
Homes v. Martin, 1 Esp. 162; Oli-
phant V. Patterson, 56 Penn. St. 368.

2 Wagnor u.Clay.l A.K.Mar.(Ky.)
257 ; Taylor v. Hillyer, 3 Blackf . (Ind.)
433; Georgia Co. v. Castleberry, 49
Ala. 104.

SEC. 127.J GTTARANTIES. 209

member of a corporation to pay its debts, binding upon
him.i But where any liability for the debt existed against
the promisor when the promise was made, it is not within
the statute ; and under this rule it is held that a promise by
one of several owners of a ship to pay for materials, etc., for
which the ship was liable,^ or of one trustee to reimburse
a cestui que trust for the default of his co-trustees,^ are not
within the statute, because the promisor was liable before,
and when the promise was made ; and the rule is well estab-
lished that the statute has no application where the promise
is in effect to pay the promisor's own debt, although that of a
third person is thereby incidentally guaranteed.* It is under
this rule that the verbal acceptance of an order drawn by
one upon his debtor is held valid,^ or a promise by a debtor
to pay. the debt to a person to whom it has been assigned.^
But it has been held that where, from any cause, a person's
liabiHty upon a promise to pay the debt of another has been
discharged, his promise to pay it made after such discharge is
within the statute, as the pre-existing liability does not afford
any consideration therefor;^ but in several States it has been
held that, as the indorser of a note has the power to waive

1 Quin V. Hanford, 1 Hill (N. Y.) Paddleford, 43 Vt. 64; Dearborn v.

62; Trustee (/.Flint, 13 Met. (Mass.) Parks, 6 Me. 81; Cram <;. Ktch, 53

539; Wyman v. Gray. 7 H. & J. (Md.) Ind. 214; Crosby v. Joralemon, 37 id.

409; Rogers v. Waters, 2 G. & J. 264; Helms v. Kearns, 40 id. 124;

(Md.) 64 ; Searight v. Payne, 2 Tenn. Seaman v. Hasbrouck, 35 Barb. (N. Y.)

Ch. 175. 151 ; Welch v. Kearney, 49 Cal. 49 ;

^ Fish V. Thomas, 5 Gray (Mass.) Kowe v. Whittier, 21 Me. 545; Bear-

45 ; Headrick v. Wiseheart, 57 Ind. shears v. Eowe, 46 Mo. 501 ; Berry v.

129. Doremus, 30 N. J. L. 399 ; Johnson

3 Orrell v. Coppock, 26 L. J. Ch. v. Knapp, 36 Iowa, 316 ; Taylor v.
269; Fitzgerald «. Dressier, 7 C. B. Preston, 79 Penn. St. 436; Meyer v.
(N. S.) 374; Coutourier w. Hastie, 22 Hartman, 72 111. 442; Sweetman v.
ii. J. Exchq. 97. Parker, 49 Miss. 19 ; Robberman v.

4 Malone v. Keener, 44 Penn. St. Wyskamp, 54 111. 159 ; Tisdale v. Mor-
107; Cook V. Barrett, 15 "Wis. 596; gan, 7 Hun (N. Y.) 583; Mitchell o.
Creely. Bell, 2 J. J. Mar. (Ky.) 309; Griffin, 58 Md. 554; Maxwell v.
Barring v. Warden, 12 Cal. 311; Wil- Haynes, 41 Me. 559; Brown v. Strait,
liams V. Little, 35 Vt. 323 ; Alcalda 19 111. 88.

V. Morales, 3 Nev. 132 ; BalUet v. ^ Shields v. Middleton, 2 Cr. (U. S.

Scott, 32 Wis. 144; RoUison w. Hope, C. C.) 205; Mt. Olivet Cemetery v.

18 Tex. 446; Gold v. Phillips, 10 Shubert, 2 Head (Tenn.) 116.

John. (N. Y.) 412; Phillips v. Grey, » Presbyterian Society of Greene

3 E. D. S. (N. Y. C. P.) 69; Wolfe v. Farm v. Staples, 23 Conn. 544; Colt

Koppel, 2 Den. (N. Y.) 368; Barker v. Root, 17 Mass. 290.

V. Bucklin, 2 id. 61 ; Buchanan v. '' Peabody v. Harvey, 4 Conn. 119.

210 STATUTE OF FRAUDS. [CHAP. IV.

the technical bar, which a neglect to protest the note
affords, a promise to pay after he is discharged of such
neglect amounts to a "waiver, and keeps the original liability
on foot.^ Where a guaranty is executed after the debt is
contracted; but in pursuance of an agreement to guarantee
the debt made before it was contracted, upon the faith of
which the creditor trusted the principal, the consideration
is sufficient.^ The leaving of a demand with an attorney
for collection, is a sufficient consideration for a guaranty of
the debt made by him at that time ; ^ but a guaranty made
subsequently is invalid, unless supported by a new and good
consideration. Thus, A became bound for the delivery of
goods to a constable, which were taken by him in execution
against B. C claimed the goods and prevented the delivery,
and after suit commenced against A by the constable, or ally,
promised A to indemnify him from all costs and damages in
consequence of not delivering the goods. It was held that
the promise of C was not binding, it being for the default of
another ; and that, admitting that the moral obligation of C
to protect and save B, who was the father of C, harmless
(which is denied), and was a sufficient consideration, yet
the cqnsideration of the promise, being past, is not valid.*
Where the consideration of a guaranty is sufficient when the
guaranty is made, the guaranty does not fail by the subse-
quent loss of value of the consideration.^

Sec. 128. Credit given to Guarantor. Promise not within the
Statute. — If goods are supplied to, or work is done for, a third
person at the instance of the guarantor, and credit is given to Mm
and he is treated as the real debtor, then the promise is direct, and
not collateral, and the case is not within the statute. The rule is
that if the promise is of such a character as to make it an original
undertaking on the part of the promisor, it is not within the statute,
although it is for the exclusive benefit of another.^ Where the

1 Uhler V, Farmer's Ijfat. Bank, 64 ^ Mordecai v. Gadsden, 2 Spears
Penn. St. 406 ; Ashford v. Robinson, (S. C.) 566.

8 Ired. (N. C.) L. 114; United States » Cook v. Barrett, 15 Wis. 596

Bank v. Southard, 17 N. J. L. 473. Malone v. Keener, 44 Penn. St. 107

2 Standley v. Miles, 36 Miss. 434. Crul v. Bell, 2 J. J. Mar. (Ky.) 309
8 Gregory v. Gleed, 33 Vt. 405. Story v. Menzies, 4 Chand. (Wis.) 61

4 Nixon V. Vanhise, 5 N. J. L. 491. Alcalda v. Morales, 3 Nev. 132 ; Gold
See also Weed v. Clark, 4 Sandf. v. Phillips, 10 John. (N. Y.) 412;
(N. Y.) 31. Williams v. Little, 35 Vt. 323; Cot-

SEC. 128.]

GUARANTIES.

211

promise was as follows : " If L S shall go through the pur-
chase, my brother will give you a handsome gratuity for the
trouble and pains you shall be at in transacting the affair,
which I promise and assure you shall not be less than X300.
My meaning is, you shall be paid when the conveyances shall
be executed ; " it was held that the defendant was personally
liable, and Lee, C. J., said that there was a difference be-
tween a conditional and an absolute undertaking, as if A-
promise to pay B such a sum if C does not : there A is but
a security for C. But if A promise that C will pay such a
sum, A is the principal debtor, for the act done was on his
credit, and no way on C.-' Where a mother took her son to
school, and saw the master, but no evidence was given of
what passed at the time, and afterwards a bill was delivered
to the boy's vmcle, who said it was quite right to deliver the

trell i\ Stevens, 10 Wis. 423 ; Clymer
V. Be Young, 54 Penn. St. 118; 'Wolf
v. Koppel, 2 Den. (N. Y.) 368; Bar-
ringer V. Warden, 12 Cal. 311 ; Theras-
son V. MeSpeedon, 2 Hilt. (N. Y. C. P.)
1; KolUnson v. Hope, 18 Tex. 446;
Stoddard v. Graham, 23 How. Pr.
(N. Y.) 518 ; Phillips v. Gray, 3 E. D.
S. (K Y. C. P.) 69; Mount Olivet
Cemetery v. Shubert, 2 Head (Tenn.)
116 ; Weyland v. Crichfield, 3 Grant's
(Penn.) Gas. 113; Rhodes c. Leeds, 3
S. & P. (Ala.) 212; Nelson v. Hardy,
7 Ind. 364 ; Briggs v. Evans, 1 E. D.
S. (N. Y. C. P.) 192; Porter v. Lang-
horn, 2 Bibb. (Ky.) 63; Brown v.
George, 17 N. H. 128; Arbuckle v.
Hawks, 20 Vt. 538; Backus v. Clark,
1 Kan. 303 ; Hodges v. Hall, 29 Vt.
209 ; Prentice u. Wilkinson, 5 Abb.
(N. Y.) Pr. 49; Tompkins v. Smith,
3 S. & P. (Ala.) 54 ; Brittain v. Thrai-
kill, 5 Jones (N: C.) L. 329; Noyes v.
Humphries,' 11 Gratt. (Va.) 636;
Waggoner b. Gray, 2 H. & M. (Va.)
603 ; Stone v. Symmes, 18 Pick. (Mass. )
367; Gunnels v. Stewart, 3 Brev.
(S. C.) 52; Shoemaker v. King, 40
Penn. St. 107; Brown u. Hazen, 11
Mich. 219. In Rogers v. Rogers, 6
Jones (N. C.) L. 300, a father prom-
ised a creditor of his son that if he
would go to a distant place and go
bail for his son, he (the father) would

pay him the debt which his son owed
him. The creditor did so, but the
court held that this did not render
the father liable, because the debt against
the son was still in force, and therefore
the promise was merely collateral and
within the statute. White v. Solo-
monsky, 30 Md. 585. In Birchell i;.
Neaster, 36 Ohio St. 331, A let a con-
tract to B for furnishing materials and
building a house for a stipulated sum,
B employed C to furnish materials
and to perform the labor of plaster-
ing. When the building was com-
pleted, except a small part of the
plastering, C, in the absence of B,
informed A that he would not finish
the plastering unless A would agree
to pay him; and A replied, "Finish
the plastering and I will see you paid."
The obligation of B to complete the
house and pay C not being released,
it was held : —

1. That the verbal promise of A to
see C paid was within the statute,
and the fact that there was due from
A to B, at the time the promise was
made, a sum sufficient to pay the bal-
ance to C, did not take it out of the
statute.

2. That, in suit on such promise, A
might rely upon the statute, under
the general denial.

1 Gordon v. Martin, Fitzg. 302.

212 STATUTE OP PEAUDS. [CHAP. IV.

bill to him, fqr he was answerable, it was held that the statute
of frauds did not apply, and that it was proper to leave it to
the jury to say under the circumstances whether the original
credit was given to the uncle or not.^ Where the defendant
gave the following guaranty : " I hereby undertake to Mr.
T. Edge to see him paid for the gas apparatus he has put up
and furnished for Mr. J. Brunton according to the work, to
be performed in a scientific manner, as shall be thought
necessary and approved by Mr. Evans, the superintendent
of the gas works in Peter Street," and the defendant had
given orders about the work before and after the guaranty
was given, Abbott, C. J., left it to the jury to determine
whether the defendant, although he had no interest in the
theatre in which the apparatus was to be put up at the
period in question, was not one of the persons who had
originally given orders for the gas apparatus ; for if he was,
a verdict might be recovered upon his own personal liability,
without regard to the guaranty.^

Where the defendant employed a builder to erect some
houses, and gave a guaranty for a supply of materials to the
builder to a certain amount, and afterwards an order for a
further supply to a certain amount, and more materials were
supplied on the order of the builder, the defendant being
constantly on the premises, it Avas held that it was for the
jury to say whether he had so acted as to lead the plaintiff
to believe that the latter supply was to be on his credit.^

In Simpson v. Penton,* one Simpson introduced Penton to
Ovenston, an upholsterer, and in Penton's presence asked
Ovenston if he had any objection to supply Penton with
some furniture, and that if he would, "he would be answera-
ble." Ovenston asked Simpson how long credit he wanted,
and Simpson replied " he would see it paid at the end of six
months." Ovenston agreed to this, and Simpson gave him
the order; and the goods were supplied accordingly. At
the end of six months, Penton not having paid the amount,
Ovenston applied to Simpson for payment, and he paid the

1 DarneU v. Trott, 2 C. & P. 82. » Smith ,;. Rudhall, 3 Fos. & Fin.

2 Edge V. Frost, 4 D. & R. 243 ; and 143 ; see also Taylor v. Hilary, 1 C.
see Scholes v. Hampson, cited De M. & R. 741.

Colyar on Guaranties, 94 ; Fell on * 2 C. & M. 430.
Guaranties, 2d ed. 27.

SEC. 128.] GUAEANTIES. 213

money. The entry in Ovenston's books was: "Mr. Penton
per Mr. Simpson." It was held that the jury were warranted
in finding that the undertaking on the part of Simpson was
not a collateral undertaking.^

In the recent case of Mountstephen v. Lakeman,^ the
question as to whether credit was given to the guarantor
personally was fully discussed. There the plaintiff had been
employed to constriict a main sewer by a local board of
health, of which the defendant was chairman. "When the
sewer was nearly completed the board gave notice, under
the statute, to the occupiers of the adjoining houses to con-
nect their drainage within twenty-one days, or the board
would do it at their expense. Before the twenty-one days
had expired the plaintiff, having completed the sewer, was
about to leave the place with his carts, etc., when the de-
fendant sent after him, and the following conversation took
place. The defendant said, "What objection have you to
making the connections?" • The plaintiff replied, "I have
none, if you or the board will order the work, or become
responsible for the payment." The defendant replied, " Go
on and do the work, and I will see you ijaid." The plaintiff
accordingly did the work under the superintendence of the
surveyor of the board, and sent in his account to the board,
debiting them with the amount. The board refused to pay,
on the ground that they had not authorized the order. The
Court of Queen's Bench held that the conversation did not
amount to an undertaking by the defendant to be primarily
liable for the work, but only to a promise that if the plaintiff
should do the work on the credit of the board, the defendant
would pay, if the board did not, and that this was a promise
to be answerable for the debt of another person, which, not
being in writing, could not be enforced. The Court of
Exchequer Chamber, however, held that there was evidence
on which the jury might have found that the defendant
agreed to be primarily liable, and this decision was affirmed
by the House of Lords.^

1 And see Austen v. Baker, 12 2 Ad. & El. 473 ; Hargrcavcs ti. Par-
Mod. 250; Bateman ;;. Phillips, 15 sons, l^K. & W. 561.
East. 272; Dixon v. Hatfield, 2 Bing. " ^^B^ *^' ^' ^^' ^*'^' ^' ^' ^
439 ; 10 Moo. 42 ; Clancy «. Piggott, H. L. ^^B^K

» L.MWl"24.

214

STATUTE OP FRAUDS.

[chap. IV".

Sec. 129. Rule when Original Debtor is Discharged.-^
When by the agreement of the parties the original debtor is dis-
charged, the promise is treated as original, and not within the
statute, and the promisor is substituted as debtor,^ and this
rule applies to an executor's promise to pay a debt of the
testator. If the estate is discharged, his promise is not within
the statute,^ nor is a promise to pay a debt, where a debtor
has been taken upon a ca sa, if the creditor will discharge
him, where such discharge operates as a discharge of the
debt,^ and the same is also held where the promise is made
in consideration that the creditor will discharge the debtor,*

^ Stone V. Symmes, 18 Pick.
(Mass.) 467 ; Watson v. Jacobs, 29
Vt. 169 ; Booth v. Eighmie, 60 N. T.
238; Gleason „. Briggs, 28 Vt. 135;
Curtis V. Brown, 5 Gush. (Mass.) 492 ;
Anderson v. Davis, 9 "Vt. 136 ; "White
17. Solomonsky, 30 Md. 585; Andre
V. Badman, 13 id. 241 ; "V7atson v.
Randall, 20 "Wend. (N. Y.) 201 ; Cooper
V. Chambers, 4 Dct. (N. C.) 261 ; Yale
V. Edgerton, 14 Minn. 194; Griswold
.,. Griswold, 7 Lans. (N. Y.) 72; Mead
V. Nuges, 4 E. D. S. (N. Y. C. P.) 510;
Armstrong v. Flora, 3 T. B. Mon.
(Ky.) 43; AUhouse v. Eamsay, 6
"Whart. (Penn.) 331; Haggerty u.
Johnson, 48 Ind. 41 ; "Wood v. Corco-
ran, 1 Allen (Mass.) 406; Lord v.
Davison, 3 id. 131 ; Click v. McAffee,
7 Port. (Ala.) 63; Parker o. Heaton,
55 Ind. 1; Eddy v. Roberts, 17 III.
505; Quintard v. De"Wolf, 34 Barb.
(N. Y.) 97 ; "Watson v. Jacobs, 29 "Vt.
169; Gleason v. Briggs, 28 id. 135;
Day V. Cloe,4 Bush. (Ky.) 563; "War-
ren V. Smith, 24 Tex. 484; Corbett v.
Cochran, 3 Hill (S. C.) 41 ; Shaver v.
Adams, 10 Ired. (N. C.) L. 261. But
while the original debtor remains lia-
ble unless the promise is founded on
an independent consideration, the
promise is within the statute. Newell
V. Ingraham, 15 "Vt. 422 ; Britain v.
Thrackill, 5 Jones (N. C.) 329; Noyes
V. Humphries, 11 Gratt. (Va.) 636;
Brown v. Hazen, 11 Mich. 219 ; Shoe-
maker V. King, 40 Penn. St. 107 ; Gun-
nels V. Stewart, 3 Brev. (S. C.) 52;
Butcher v. Stuart, 11 M. & W. 557.

2 Harrington v. Rich, 6 Vt. 666;
Mosley t). Taylor, 4 Dana (Ky.) 542;
Robinson v. Lane, 17 Miss. IGl.

8 Lane v. Burghart, 1 Q. B. 033 ;
Goodman v. Chase, 1 B. & Aid. 297.

* Cooper V. Chambers, 4 Dcv. (S.
C.) 261 ; Butcher v. Stewart, 11 M. &
"W. 857. In Griswold v. Griswold, 7
Lans. (N. Y.) 72, the owner of a
mortgage made a verbal agreement
with the mortgagor to satisfy it if he
would discharge a disputed claim of
an estate of which the mortgagor was
the sole beneficiary by will, against
one Parley. The mortgagor, with the
approval of the executor of the es-
tate, gave a receipt for the claim and
released the executor from, and in-
demnified him against, all liabilities of
the estate. The court held that the
promise was not within the statute,
and that the mortgage was discharged.
MuLLiN, P. J., said : " The undertaking
of Manly was not to assume or pay
the debt of any person, but it was to
satisfy the mortgage held by himself
against the defendant upon a new and
sufficient consideration moving between
him and the defendant, upon the faith
of his promise to satisfy the mortgage.
The executor at the request of the
defendant discharged the claim wliieh
he and his wife owned as legatees
against Parley. It is true that the
executor never executed any technical
discharge, and the legatees entitled to
the debts, did, witli his assent and ap-
prpval, agree to release Parley and
Parley, and the other heirs released

SEC. 129.] _ GUARANTIES. 215

or to convert a separate into a joint debt, because thereby a
new debt is created, and the former extinguished ; ^ and if the
original debtor is discharged, by an entry to that eifect upon
'the books of the creditor, or by giving up the evidence of
the debt, the promisor is substituted as debtor, and becomes
liable as such, notwithstanding the statute ; ® but a promise
made to pay the debt if the creditor will submit it to arbi-
tration is within the statute, as the agreement to arbitrate
does not extinguish the debt.^ Instances may exist where
the promise is not within the statute, even though the debtor
is not discharged ; but this condition can only arise when the
promise is based upon a new and independent consideration mov-
ing between the parties, and from which the promisor derives a
direct benefit, in which case the promisor becomes the debtor,
and there is no debt of another to which his promise can be
collateral.* The question whether each particular case comes
within the statute or not depends on the fact of the original
party remaining liable, coupled with the absence of any lia-
bility on the part of the defendant or his property, except
such as arises from his express promise.^ If no liability ex-
ists against the person promised for, when the promise is
made, and credit is given solely to the promisor, the under-
taking is not collateral, but original; but if another has
already become liable, although the liability is not com-
pleted, the undertaking is collateral.^

the executor from any claim they or an undertaking is in no sense coUat-

either of them might have against eral. The substance and effect of tlie

him for the property of tlie estate, arrangement was, that Manly prom-

This was done because it ivas understood ised to cancel and discharge his hond

that Parley was released. This was an and mortgage in consideration that

accord and satisfaction. Palmerton the defendant would discharge the

u. Huxford, 4 Den. (N. Y.) 166 ; Parm- debt due Parley. This was a sufficient

er's Bank of Amsterdam v. Blair, 44 consideration in law to sustain the

Barb. (N. Y.) 641 ; Neary t;. Bostwick, proriiise."

2 Hilt. (N. Y. C. P.) 514. In view of i Z;x ;;arte Lane, 1 De Gex, 300.
these facts, no court would permit ^ Langdon v. Hughes, 107 Mass,

either the executor or legatee tore- 272; Corbettr. Cochran, 3 Hill (S. C.)

covei^ against Parley. This being so, 41 ; Harris v. Young, 40 Ga. 65.
there was no debt remaining due from * Harrington v. Rich, 0 Vt. 666.
Parley to which the undertaking of * McCaffli v. Kadcliffe, 3 Eob.

Manly could be collateral. If the (N. Y.) 445.

plaintiff can be said to have anything ^ Porth v. Stanton, 1 \Vms. Saund.

to do with that debt, he assumed an 211 b.

amount of its equal to his bond and ° BQokerv.Tally,2 Humph.(Tenn.)

mortgage, and agreed to pay it. Such 308 ; Ehodes v. Leeds, 3 S. & P. (Ala.)

216 STATTJTE OF FEATTDS. [CHAP. IT.

Sec. 130, Question to Whom Credit Given is for the Jury. '■ —
It is very often the subject of inquiry to whom the credit
was given, and such nice distinctions have been taken on the
wording of the promise, as to make it impossible to lay down
any precise rule of construction, but the jury must deter-
mine to whom the credit was given,i in view of all the cir-
cumstances of the case as the extent of the undertaking, the
expressions used, the situation of the parties, and all the cir-
cumstances of the transaction.^ The form in which the prom-
ise is given, as " I will see you paid," or " I will pay you," ^
are of importance in determining the question; but, even
though the promise is absolute, the question after all recurs.
To whom was the credit given ? and if not given entirely to
the promisor, then he is not liable upon his promise.* The
circumstance that the goods were charged to the promisor or
the debtor upon the plaintiffs books is material in determining
the question, but by no means conclusive, as it may be shown
that they were so charged for convenience,^ or by mistake.
Nor is the fact that the bill was made out in the name of
the debtor,^ and presented to him for payment,^ conclusive
evidence that credit was given to him, although, if unex-

212 ; Antonio v. CUpey, 3 Eieh. (S. C.) » Bates v. Starr, 6 Ala. 697 ; Briggs

L. 201 ; Arbuckle v. Hawks, 20 Vt. v. Evans, 1 E. D. S. (N. Y. C. P.) 192;

538 ; Tileston v. Nettleton, 6 Pick. Thwaits v. Curl, 6 B. Mon. (Ky.) 172.

(Mass.) 509. * Blake v. Parlin, 22 Me. 395;

1 1 Wms. Saund. 230. See Ander- Moses v. Norton, 36 id. 113.

son V. Hayman, 1 H. El. 120. ^ Barrett v. McHugh, 128 Mass.

2 Elder v. Warfield, 7 H. & J. (Md.) 165 ; Swift v. Pierce, 13 Allen (Mass.)
397; Warwick v. Grashalz, 3 Grant's 136; Walker v. Hill, 119 Mass. 249;
Cas. (Penn.) 234; Blodgett v. Lowell, Burkhatter v. Farmer, 5 Kan. 477;
33 Vt. 174; Sinclair v. Richardson, 12 Ruggles v. Gatton, 50 111. 412; Myer
id. 33; Billingsley v. Dempewolf, 11 v. GriiSn, 31 Md. 350; Champion v.
Ind. 414 ; Hazen v. Bearden, 4 Sneed. Doty, 31 Wis. 190.

(Tenn.) 48 ; Turton v. Burky, 4 Wis. « Houlditch v. Milne, 3 Esp. 86.

119 ; Payne v. Baldwin, 14 Barb. (N. But see Leland v. Crayon, 1 McCord

Y.) 570; Chase v. Day, 17 John. (N. (S. C.) 100; Dixon v. Frazer, 1 E. D.

Y.) 114; Smith v. Hyde, 19 Vt. 54; S. (N. Y. C. P.) 32; Connally v. Ket-

Hetfleld v. Dow, 27 N. J. L. 119; Pros- tlewell, 1 Gill (Md.) 260 ; where the

ser V. Allen, Gow. 117; Simpson v. fact that the goods were charged to

Peuton, 2 C. & M. 436; Keate v. Tem- the debtor was held sufficient to show

pie, 1 B. & P. 158 ; GUI v. Herrick, the promise to be collateral.

Ill Mass. 501 ; Jefferson Co. v. Hogle, ' Pennell v. Pentz, 4 E. D. S. (N.

08 Penn. St. 202; Haverly v. Mercur, Y. C. P.) 639; Larson v. Wyman, 14

76 id. 97; CliflEord v. Luhring, 69 HI. Wend. (N. Y.) 246.
401 ; Eawson v. Springstein, 6 T. & C.
(N. Y.) 611.

SEC. 130.] GUAEANTIBS. 217

plained, such facts are sufficient to make the promise col-
lateral. The fact that the plaintiff charged the goods to the
promisor, or presented the bill made out in his name to him
for payment, is not conclusive evidence that he gave credit
solely to him,^ and the jury, in spite of that circumstance, may,
where the circumstances warrant it, find that the whole credit
was given to the debtor.^ The fact that the goods were
bought for and used by the promisor, does not necessarily fix
his liability for the debt,^ but, as previously stated, the ques-
tion is for the jury in view of all the circumstances, and if
there is any evidence to sustain their finding, it is conclu-
sive.* Where the plaintiff, who carried on the trade of a
tailor, being applied to by one Foster to be supplied with
certain clothes made by the plaintiff, and still in his posses-
sion, was unwilling, and refused to deliver them to Foster
upon his credit, but delivered them at the special request of
the defendant, who undertook and promised to pay, it was
held that the case was not within the statute, that the whole
credit was given to the defendant, and that he was liable.^

In Rains v. Story,® A applied to B for goods ; B asked for
a reference ; A referred him to C ; C on being applied to in-
quired the amount of the order, and on what terms the goods
were to be furnished, and, on being told, said : " You may send
them, and I'll take care they are paid for at the time." He
was afterwards written to to accept a bill for the amount, to
which he replied that he was not in the habit of accepting
bills, but that the money would be paid when due. After
this, B (the seller) wrote to C about the goods, and spoke of
them in his letter as goods which C had " guaranteed," and
the attorney of B's assignees (when he had become bank-
rupt) wrote to A for the money ; but this letter was a circu-

1 Hardraan v. Bradley, 85 III. 162 ; * Petitt v. Braden, 55 Ind. 201
Cutter !>. Hinton, 0 Rand. (Va.) 509; Dean u. Tallman, 105 Mass. 443
Poultney v. Koes, 1 Dall. (Penn.) 238 ; Bloom u. McGrath, 53 Miss. 249
Walker v. Richards, 41 N. H. 383 ; Cowdin v. Gottgetreau, 55 N. Y. 656
Kinloch i/. Brown, 1 Rich. (S. C.) L. Glenn t-. Lehman, 54 Mo. 45 ; Moshier
223 ; Noyes- v. Humphrey, 11 Gratt. v. Kitchell, 87 111. 18 ; Eshleman v.
(Va.) 636; Eshleman v. Hamish, 76 Hamish, 76 Penn. St. 97.

Penn. St. 97. ^ Croft v. Smallwood, 1 Esp. 121 ;

2 Scudder v. Wade, 4 N. J. L. 249. and see Keate u. Temple, 1 B. & P.

3 Hendricks v. Robinson, 56 Miss. 158.

694. ■ 6 3 c. & P. 130.

2l8 STATUTE OF TEATIDS. [CHAP. IV.

lar, written in pursuance of a list made out for him by B,
and without any knowledge of the circumstances under which
the debt was contracted. It was held that on this evidence
C was not primarily liable, but only as a guarantor of the
debt of A.i

Sec. 131. Evidence as to "Whom Credit Given. — Tlie
tradesmen's hooks should he produced, in order to show to whom
credit was given. In Austen v. Baker,^ Holt, C. J., said that
if B desires A to deliver goods to C, and promises to see him
paid, there assumpsit lies against B ; , though, in that case, he
said, at Guildhall he always required the tradesman to pro-
duce his books, to see whom credit was given to. But if,
after goods deliYered to C by A, B says to A, " You shall be
paid for the goods," it will be hard to saddle him with the
debt. And in Storr v. Scott,^ it was held that when a trades-
man makes out an account for goods in the name of a partic-
ular person, it must be taken that they were furnished on the
credit of such person, unless it can he shown by unequivocal evi-
dence that the credit was in fact given to another.

Sec. 132. Must be Principal Debtor. — In order to bring a
case within the statute, it must he shovm that the parties to the
transaction intended that there sho^dd he a principal debtor, either
at the time the promise was made, or at some future time. The
leading case upon this point is Birkmyr v. Darnall.* There
the declaration stated as follows : That iin consideration the
plaintiff would' deliver his gelding to A, the defendant prom-
ised that A should redeliver him safe, and evidence was given
that the defendant undertook that A should redeliver him
safe ; and this was held a collateral undertaking for another,
for where the undertaker comes in aid only to procure a

1 See also Darnall v. Tratt, 2 C. & Doty, 31 Wis. 190. But the fact
P. 82 ; Simpson o. Penton, 2 C. & M. that the creditor charged the goods
430 ; Andrews v. Smith, 2 C. M. & R. to the ' defendant is not conclusire
627 ; Cross v. Williams, 7 H. & N. 675. evidence that he gave credit to him

2 12 Mod. 250 ; Dixon v. Frazer, 1 alone : Scudder v. Wade, 4 N. J. L.
E. D. S. (N. Y. C. P.) 32; Leland o. 249; Poultneyu. Ross, 1 Dall.(Penn.)
Creyon, 1 McCord (S. C.) 100; Rug- 238; Walker u. Richards, 41 N. H. 388 ;
gles V. Gallon, 50 111. 412; Swift v. Noyes v. Humphrey, 11 Gratt. (Va.)
Pierce, 13 Allen ( Mass. ) 136 ; Conally 636 ; nor is the circumstance that he
v.Kettlewell, 1 Gill. (Md.) 260; Walker charged the goods to the debtor:
V. Hill, 119 Mass. 249; Burkhalter v. Swift v. Pierce, 13 Allen (Mass.) 136;
Farmer, 5 Kan. 477 ; Myer v. Griffin, Champion v. Doty, ante.

31 Md. 350 ; Larson u. Wyman, 14 s g q. & P. 241.
Wend. (N. Y.) 246; Champion v. « 1 Salt. 27.

SEC. 132.]

GUARANTIES.

219

credit to the party, in that case there is a remedy against
both, and both are answerable according to their distinct
engagements; but where the whole credit is given to the
undertaker, so that the other party is but as his servant, and
there is no remedy against him, this is not a collateral under-
taking. But it is otherwise in the principal case, for the
plaintiff may maintain detinue upon the bailment against
the original hirer, as well as assumpsit upon the promise
against this defendant. M per cur. " If two come to a shop,
and one buys, and the other, to give him credit, promises the
seller, ' If he does not pay you, I will,' this is a collateral
undertaking, and void, without writing, by the statute. But
if he says, ' Let him have the goods, I will be your paymas-
ter,' or, ' I will see you paid,' this is an undertaking as for
himself, and he shall be intended to be the very buyer and
the other to act but as his servant." ^ The case of Watkuis

1 And see the judgment given at
greater length, Ld. Raym. 1087. Hall
B.Wood, 4 Chand. (Wis.) 36; Ware
V. Stephenson, 10 Leigh. (Va.) 155;
Doyle V. White, 26 Me. 341 ; Homans
V. Lombard, 21 id. 308; Williams v.
Corbett, 28 HI. 262 ; Kurtz v. Adams,
12 Ark. 174; Kinloch v. Brown, 1
Rich. (S. C.) 223; Taylor v. Drake,
4 Strobh. (S. C.) 431; Olmstead o.
Greenly, 18 John. (N. Y.) 12 ; Weyand
V. Critchett, 3 Grant's Gas. (Penn.
113; Nelson v. Hardy, 7 Ind. 364
Cahill v. Bigelow, 18 Pick. (Mass.
369; Flanders B.Crolius, 1 Duer (N. Y.
206 ; Cropper v. Pitman, 13 Md. 190
Cutter V. Hinton, 6 Rand. (Va.)'509
Hill V. Raymond, 3 Allen (Mass.) 540
Swift V. Pierce, 13 id. 138 ; Rhodes v.
Leeds, 3 S. & P. (Ala.) 212 ; Briggs v.
Evans, 1 E. D. S. (N. Y. C. P.) 192
Dunning v. Roberts, 35 Barb. (N. Y.
463 ; Carville v. Crane, 3 Hill (N. Y.
483; Walker v. Richards, 39 N. H.
259 ; Hetfield v. Dow, 27 N. J. L. 440
In Gardiner v. Hopkins, 5 Wend. (N. Y.
23, where a printer had printed a book
for a bookseller, and delivered all the
work, except a, few signatures (eight
sheets) when the bookseller having
failed, and the printer assigned the
book to the defendant, who promised
the printer that if he would deliver

the balance of the work to him he
would pay him the balance of his bill,
the promise was held to be original. ■
But in Payne v. Baldwin, 14 Barb.
(N. Y.) 579, where the Star Insurance
Company had entered into a contract
with E S to do the mason work on
some houses which the company was
building, and E S made a contract
with the plaintiff to furnish plaster
and marble, but E S refusing to make
a payment when demanded, the plain-
tiffs declined to furnish such mate-
rials, and the president of the com-
pany told him to go on and furnish
the stuff and he would see him paid,
it was held that the promise was col-
lateral and within the statute. In
Pennell v. Pentz, 4 E. D. S. (N. Y.
C. P.) 639, the defendant agreed to
become surety, provided the principal
debtor would assign to him the con-
tract about which the materials to be
purchased were to be used. This
having been done, the defendant di-
rected the vendor to furnish the mate-
rials, and promised to pay him, " as
no other person could draw the money
on the contract but himself," assuring
him that a written agreement was not
necessary. It was held that the credit
was given to the defendant, and that
the contract was not within the stat-

220 STATUTE OF PEAUDS. [CHAF. IV.

V. Vince ^ is to the same effect. There it was said that if A
promises B (being a surgeon) that if B will cure D of a
woimd, he will see him paid, this is only a promise to pay if
D does not, and it ought, therefore, to be in writing by the
statute. But if A promises in such case that he will be B's
paymaster, whatever he shall deserve, it is immediately the
debt of A, and he is liable without writing.^

Unless there was, at the time when the promise was made,
a principal debtor, there is no debt to which the promise could
be collateral. " There could be no suretyship," says Loed
Selboene,^ "unless there be a principal debtor, who, of
course, may be constituted in the course of the transaction
by matters ex post facto, and need not be so at the time ; hut
until there is a principal debtor, there can be no suretyship.

Sec. 133. To Constitute Guaranty, must be Debt to Guar-
antee. — Nor can a person guarantee anj'^body else's debt, un-
less there is a debt of some other person to be guaranteed ; *
and this rule applies in all cases where the debt was created
upon the sole credit of the promisor. Thus, wherfe a land-owner,
whose land had been taken for the construction of a railroad,
and who had presented a petition to the county commissioners
for his damages therefor, had afterwards iixed by a written
agreement with the railroad company the sum to be assessed
on his petition, with a provision that, if satisfactory to the
comissioners,,this sum might be entered upon their records,
without a view, and other proceedings had thereon, as if

ute. See also Fallmer v. Dale, 9 Penn. lips, 1 KoU. Abr. 20, pi. 14 ; and the
St. 83, where a promise to pay for judgment of Willes, J., in Mount-
land if the grantor would convey it to Stephen v. Lakeman, L. E. 7 Q. B. 196.
another, which he did, was not within ' In Mountstopheu v. Lakeman, L.
the statute. So in Kelson v. Dubois, E. 7 H. L. 24.

13 John. (N. Y.) 175, where a horse * Thompson v. Blanchard, 2 N. Y.

was sold to another at the request of 335 ; Sanborn v. Merrill, 41 Me. 467 ;

the defendant, and on his promise to Peck v. Thompson, 15 Vt. 637 ; Chi-

guarantee the payment of such per- cago &c. Coal Co. u. Liddell, 69 111.

son's note therefor, the promise was 639 ; Griffin v. Derby, 5 Me. 476 ; Mer-

held not to be within the statute ; and rill v. Englesby, 28 Vt. 150 ; Samp-

the defendant having indorsed the son i. Swift, 11 id. 315 ; Walker v.

note in blank, it was held that the Norton, 29 id. 226 ; Douglass v. Jones,

plaintiff might write a guaranty over 3 E. D. S. (N. Y. C. P.) 551 ; Jepher-

it. son V. Hunt, 2 Allen (Mass.) 417 ;

1 Ld. Eaym. 224. Eead v. Nash, 1 Wils. 305 ; DuflEy v.

2 And see Seaman v. Price, 1 C. & "Wunsch, 42 N. Y. 243.
P. 586; 10 Moo. 34; Turner v. Phil-

SEC. 133.]

GUAKANTIBS.

221

there had been a view, an oral promise, for a sufficient con-
sideration, by a third person, to pay to him the interest on
that sum until the circumstances of the railroad company
shall enable thein to pay the amount, was held not within the
statute, if in fact the sum so fixed had not been adopted or
acted on by the commissioners, and the promise is made with
knowledge of that fact, because there was no debt to wliich
the promise could be collateral.^ This is also the case where
the original debtor is discharged, and the promisor is substi-
tuted as debtor.^ Thus, where the defendant took his nephew
to the house of another, and requested him to provide clothing,
board, and other necessaries for the nephew, and promised to
pay for the same ; it was held an original undertaking upon
which a recovery could be had iipon the common counts
for goods furnished and services rendered.^ So where a per-

1 Jephersonu. Hunt,2 Allen(Mass.)
417.

2 In Jolley v. Walker. 26 Ala. 690,
the plaintiff having agreed with S and
P, who were mail contractors, to keep
their drivers and horses at a stipulated
sum per annum, payable quarterly,
and during the last quarter, on their
becoming insolvent, having refused to
keep their drivers and horses without
security, thereupon, defendant, at the
request of S and P, wrote to plaintiff,
saying : " I will see you paid for this
quarter, as their time then expires,
payable when due, in Alabama bank-
notes " ; plaintiff kept the drivers and
horses until the expiration of the
quarter, and the agent of S and P
afterwards closed their account by
giving the note of the surviving part-
ner, payable one day after date, which
was filed as a claim against the estate
of the deceased partner ; it was held
that defendant's promise was an orig-
inal undertaking, upon a new and
sufficient consideration, which, upon
its acceptance by plaintiff, discharged
the debt of S and P, and bound de-
fendant to pay, at the expiration of
the quarter, m Alabama bank-notes.
In Hill r. Wells, 17 HI. 88, the dec-
laration alleged that A had been in
the employment of B, and that money
was due him from B on that account ;

that B being in failing circumstances,
A refused to work longer for him, and
that C, thereupon, in consideration
that A would go on, promised to pay
A what was due him, by reason of
such employment, from B. The stat-
ute was held a good plea to this, be-
cause A was bound to perform his
contract, and there was no considera-
tion for C's promise. But where a
contractor is discharged from his con-
tract because of the failure of the other
party to perform a promise made by
& third person will not bo within the
statute. Thus, A contracted to do
certain work for B, but suspended la^
bor because of B'b failure to pay accord-
ing to the contract. C told A to finish
the contract, and he would pay him
in full. A did so, relying upon C's
promise. Held that A could recover
of C for the work performed after
such promise, but not for that before.
Hand v. Mather, 11 Cush. (Mass.) 1.
But see Bresler u. Pendell, 12 Mich.
224, where a contrary doctrine was
held. A request to one to work for
the benefit of a third party, and u
promise to pay, form an original, not
a collateral promise. Brown v. George,
17 N. H. 128 ; Backus v. Clark, 1 Kan.
303 ; Arbuckle v. Hawks, 20 Vt. 538.
8 Ford V. Kockwell, 2 Gal. 73.
Where A sold goods to B on credit.

222 STATUTE OF PUAXIDS. [CHAP. IV.

son promised to pay the debt of another, and requested the
creditor to charge the amount to him, it was held that the
debt thereby became his own.^ Where an indorser of a note
payable to a bank, who was discharged from payment by a
failure of the bank, to properly protest the note, promised
the bank that if they would continue to discount his paper
as before, he would pay the note, which the bank did, it was
held that this was not a promise to pay the debt of another,
and was not within the statute.^ A writing executed by A
to B, which, after reciting that B was about to appoint C his
agent for the purchase of grain, and to furnish him money
for that purpose, contained a provision as follows : " I hereby
become responsible to said B, and agree to pay him all money
that he may so advance to C, and that may be due him from
C from time to time, by reason of such advances," was held,
to create an absolute liability against A, and not collateral.^
Where a contract was let to a contractor to erect a court-
house for a county, and the contractor being unable to obtain
brick therefor on Ids own credit, the commissioners of the
county told the plaintiff to furnish the brick and they would
see him paid, it was held that the undertaking was original
and not within the statute.* A land-owner, who had made
arrangements with a cropper upon his land to make him cer-
tain advances, promised a third person that if he would make
advances to the cropper, he (the defendant) would be respon-
sible for them, and it was held that his undertaking was orig-
inal and not within the statute.^ If a person who is bene-
fitted by the consideration of a note signed by other parties
promises them to join in the note, but does not, it is held
that his promise is an original undertaking, and not within
the statute.'' So is a promise made upon consideration that
if another will sign a note for another, the person promising
win pay it.'^ An agreement made before work is performed

and charged them to him, and after- ^ Graham v. O'Neil, 2 Hall (N. Y.)

wards C called upon A with B, and 474.

told A, in B's hearing, that he (C) ^ XJhler v. Farmers' Nat. Bank, 64

was in debt to B, and that if A -yould Peun. St. 400.

release B, and charge the amount to ^ Dickinson v. Colter, 45 Ind. 445.

him (C), he would pay it, which A * Jefferson County v. Slagle, 60

did, it was held that C's undertaking Penn. St. 202.

was original and not within the stat- ^ Neal v, Bellamy, 73 N. C. 384.

ute. Harris v. Young, 40 Ga. 65. ^ Doe v. Downs, 50 Iowa, 310.

^ Godden v. Pierson, 42 Ala. 370.

SEC. 133.] GUARANTIES. 223

for another, that if the person to whom the promise is made
will render the service, the promisor will see that he is paid
therefor, is not within the statute, being an original under-
taking.^ But a promise made to one who has performed cer-
tain work fdr another, that if he will complete it, the prom-
isor will pay him not only for the services which he shall
thereafter render, but also for those which he has rendered,
the statute applies as to the amount due for the services
which had been rendered hefore the promise was made, but
not to those to be thereafter rendered.^ But where a gross
sum is to be paid to a person for certain services at their com-
pletion, and the contract is not divisible, the rule has been
held to be otherwise ; and the promisor, if a beneficiary under
the contract, would be treated as the original debtor for the
entire sum accruing under the contract. Thus, where a
mechanic who had been employed by a contractor was about
to quit work, because he was afraid that he would not get
his pay, and the owner told him to go on and complete the
work, and he would see him paid, it was held that the debt
was thereby made his own, and the statute did not apply .^
But whUe this was formerly the rule in New York,* it is now
held that such a promise is collateral, as to services already
rendered, unless the original debtor is discharged.^ Where,
in the usual course of business between banks, promissory

1 Sinclair v. Bradly, 52 Mo. 180 ; funds of B retained in H's hands to
Hodges- V. Hall, 29 Vt. 209 ; Prentice pay for llie work to he done by S, and
«. Wilkinson, 5 Abb. Pr. (N. Y.) N. L. also gave his verbal promise that if S
49. would go on and do the work, H him-

2 Hite V. Wells, 17 Dl. 88 ; Rand self would pay for it if B did not. S,
ti. Mather, 11 Cush. (Mass.) 1. thereupon, went on and did the plas-

' Warwick v. Groshalz, 3 Grant's tering ; but when he called on H for

Cas. (Penn.) 234; Quintard v. De- the money, H denied that he had any

Wolf, 34 Barb. (N. Y.) 97; Devlin v. money of B under the contract. It

Woodgate, 34 id. 252 ; Benedict v. was held that H was estopped to deny

Dunning, 1 Daly (N. Y. C. P.) 241; that he had funds to pay for the work,

Stilwell V. Otis, 2 Hilt. (K Y. C. P.) and that the promise was an original

148 ; Darlington v. McCann, 2 E. D. S. contract with S, not void under the

(N. Y. C. P.) 414. Thus, B contracted statute of frauds, as a verbal promise

with H to build a house for the latter, to pay the debt of another. Hiltz v.

and employed S to do the plastering. Scully, 1 Cine. (Ohio) 555.
When the work was ready for the * King v. Depard, 5 Wend. (IS. Y.)

plastering, B had become of doubtful 277 ; Chesterman v. McCosttin, 6 N. Y.

credit, and S applied to H to know Leg. Obs. 212 ; Quintard c. DeWolf,

whether he had funds of B under the 34 Barb. (N. Y.) 97.
contract to pay for the plastering, and 6 Brown v. Weber, 38 N. Y. 187.
was assured by H that there would be

224 sa?ATtrTE op peatjds. [chap. iv.

notes of customers -who are in funds on presentment, instead
of being actually paid, are certified as good and settled for
in the exchanges of the next day, such certificate is an origi-
nal promise, and not within the statute.^ So where a bank
guaranteed, to a trust company the final collection of certain
instalments, to become due upon a bond and mortgage as-
signed by a debtor of the bank to the trust company by him,
and upon which the trust company advanced money, to be
applied by the debtor in the payment of his debt to the bank,
and he did so apply it, it was held that the undertaking was
original, and that the bank was bound by its guaranty .^

Sec. 134. Rule when there is a New and Independent Con-
sideration. — In California and Dakota a verbal promise to
pay the debt of another, predicated upon a new consideration,
is excepted from the operation of the statute,^ and in nearly
all the states, such promises are held not to be within the
statute, where there is a new, valuable, and independent consid-
eration moving between the creditor and the promisor, upon
which the promise is predicated, from which the promisor de-
rives any benefit or advantage, so that, instead of being a prom-
ise to be responsible for, it amounts to a purchase of, the debts
by the promisor.^ Where a surviving partner, holding a pol-
icy of insurance upon the life of the deceased partner, in
pledge for his partnership indebtedness to him, surrenders
such policy tipon the promise of the widow of the decedent
to pay the debt of her deceased husband, whereby she is
enabled to collect money to be applied upon her specific
allowance as widow, her promise, though not in writing, is
not within the statute of frauds, but is an original undertak-
ing.^ Where the plaintifP, in consideration of the promise,
has relinquished some lien, benefit, or advantage for securing
or recovering his debt, and where, hy means of such relinquishment,

1 Mead v. Merchants' Bank, 25 and from whicli the benefit accrues
N. T. 143. chiefly .to the new party, amounts to a

2 Talman v. Rochester City Bank, sale of the debt, and is not within the
18 Barb. (N. Y.) 123. statute.

* See Appendix "California, Dar ^ "Wilson v. Bevans, 58 111. 232;
kota." Meyer v. Hartman, 72 id. 442; Clif-

* In Sampson v. Hobart, 28 Vt. 697, ford v. Luhring, 69 id. 401 ; Emerson
it was held that an absolute contract, v. Slater, 22 How. (U. S.) 28.

in which the debtor is not interested,

SEC. 134,] GXTAEANTIES. 225

the same interest or advantage has inured to the benefit of the defendant,
— in such cases, although the result is that the payment of the
debt of the third person is effected, it is so incidentally and
indirectly, and the s^ibstance of the contract is the purchase by the
defendant of the plaintiff, of the lien, right, or benefit in question.
But where the original debt still subsists, and where the plaintiff has
relinquished no interest or advantage which has inured to the benefit
of the defendant, it is not an original contract, but a contract
to pay another's debt, and must be in writing.^ In cases of
this character the debt is kept on foot after payment, by the
party promising, and is transferred to him as purchaser. In
other words, he becomes assignee of the debt. This doctrine
is ■well illastrated in an early English case,^ in which the
declaration alleged a breach of a promise in not replacing
certain stock which had been sold out by the plaintiff for the
defendant, and the produce whereof had been paid to the
defendant. The defendant pleaded the general issue, also
specially, that the plaintiff ought not recover more than
£525, because the defendant was on a certain day indebted
to the plaintiff, by virtue of the said several promises and
undertakings in the said declaration mentioned, in the sum
of £976 2s. 6d., and no more, and that the defendant after-
wards, and before the commencement of the suit, was also
indebted to several other persons, to wit, James Greenwood,
etc., in certain large sums respectively, and the defendant
being so indebted, the defendant was unable to pay his cred-
itors the full amount of the several debts, whereof the plain-
tiff and the several other creditors of the defendant then
and there had notice ; and that it was thereupon computed
and agreed, upon an investigation had by the plaintiff and
the several other creditors of the defendant, that the estate
and effects of the defendant would not extend to pay 10s. in
the pound, on the amount of the debts due and owing by the
defendant, whereupon it was then and there proposed and
agreed, between and amongst the plaintiff and the several
other creditors of the defendant, and also by Thomas Wes-
ton, by the procurement of the defendant, and at the request
of the plaintiff, that Thomas "Weston should and would pay

1 Curtis t). Brown, 6 Cu&h. (Mas&.) ^^ Anstey w. Marden, 1 B. & P.
497 ; Borchsensius v. Canutson, 100 130.
111. 82.

226 STATUTE OF TEAUDS. ' [CHAP. IV.

out of Ms own moneys to the plaintiff, and the several other
creditors of the defendant, a sum of money equivalent to
10s. in the pound, on the amount of their respective debts,
in full satisfaction and discharge thereof ; which sum the plaintiff
and the several other creditors of the defendant would accept
and receive in full satisfaction and discharge of their respec-
tive debts. The plea then states the mutual promise to per-
form the agreement, and that Weston, before the commence-
ment of the suit, tendered and offered to pay, for and on the
behalf- of the defendant, to the plaintiff, the sum of £525
being so much as amounted to lOs. in the pound, upon the
sum of £976 2s. Qd., the amount of the debt, which sum
the plaintiff refused to accept.

On the trial of the cause, the Chief Justice expressed a
doubt whether that could be properly said to be a promise
within the statute, by the very terms of which the debt was
supposed to be discharged, and that he did not seem to
adhere to this doubt in the sequel. In the opinion of
Chambee, J., as delivered by him in the same case, great
stress was laid upon the circumstance, that the intent of the
contract was not to discharge the party indebted, hut to Iceep
the debts on foot; which, indeed, was the feature of the ease
which gave to it the character of a purchase. And he stated
that it appeared to him to be perfectly clear, that the trans-
action in substance was a contract to purchase the debts of
the several creditors, instead of being a contract to pay or
discharge the debts owing by Harden, and that if the con-
tract had been that which it was represented to have been,
on the special pleas, he should have it a case within the
statute of frauds.

Upon "tlie same principle of considering the transaction in
the light of a purchase, the case of Castling v. Aubert ^ was
determined by the Court of King's Bench to be entirely
clear of the statute. In that case the plaintiff, who was the
policy broker for one Grayson, had policies of insurance in
his hands, belonging to his principal, which were securities
on which he had a lien for the balance of his account, and on
the faith of those he agreed to accept bills for the accommoda-
tion of his principal. One of these bills became due, and

1 Castling v. Aubert, 2 East, 325.

SEC. 134.] GUAKANTIES. 227

actions were brought against the plaintiff as acceptor, and
against Grayson as drawer. It was desirable that the
policies should be given up by the plaintiff to the defendant,
to whom Grayson had at that time transferred the manage-
ment of his insurance concerns, in order to enable him to
recover the money for the losses incurred from the under-
writers ; and the defendant undertook, upon condition that
the policies were made over to him, to settle the acceptances
due, and to lodge money in a banker's hands for the satisfac-
tion of the remainder, as they became due. This transaction
was considered in the light of a purchase by the defendant
of the plaintiffs interest in the policies. And not in that of
a m^ere promise to the creditor to pay the debt of another
due to him ; for it was in truth a promise by the defendant
to pay what the plaintiff would be liable to pay, on condition
of having the securities put into his, the defendant's, hands,
as the means of enabling him to indemnify the plaintiff ; or,
as Le Blanc, J., put the case : " One man having a fund in
his hands, which was adequate to the discharge of certain
incumbrances ; another person undertook that, if the fund
was delivered up to him, he would take it with the incum-
brances."

In the case of Casthng v. Aubert, ante, the Chief Justice
laid considerable stress upon the circumstance that the de-
fendant had not the discharge of Grayson principally in his
contemplation, but the discharge of himself. That was his
moving consideration, though the discharge of Grayson
would eventually follow; which is an illustration of Mr.
Justice Chambee's reasoning, in the case of Antsey v. Mar-
den, except that the contract there was not only not made
in contemplation of the discharge of the original debtor, but
with the direct purpose of keeping his debt on foot. In Antsey
V. Marden, the contract was a purchase of debts, or rather of
the right of recovering debts for the promisor's own benefit ;
in Castling v. Aubert, the promisor took upon himself to
answer for the payment of money, to which the promisee
was liable, in consideration of having the fund transferred to
him, out of which was to come his indemnity. The object of
the promise was in neither case the discharge of the original
debtor, though in the one case that discharge would follow

228

STATUTE OF FRAUDS.

[chap. it.

eventually from the undertaking. The principle of the
transactions in both cases was the same, though the conse-
quences were dissimilar.^ Lord Ellenborough, in Castling
V. Aubert, ante, illustrated the distinction between a discharge
which arises collaterally, and eventually, and that which fol-
lows as the direct purpose of the undertaking, by the case of
a bill of exchange upon which several persons are liable. " In
such a case," said he, " if it be agreed to be taken up by one,
eventually others may be discharged; but the moving con-
sideration is the discharge of the party himself, and not of the
rest, although that also ensues." And he treated such an
undertaking Sy a party ■ already liable, as not being within
the statute.^ The statute does not apply to a promise to

1 See Allen v. Thompson, 10 N. H.
32 ; Doolittle v. Taylor, 2 Bos. (N. Y.)
306; French v. Thompson, 6 Vt. 54;
Hindman v. Langford, 3 Strobh. (S.
C.) L. 207; Gardner v. Hopkins, 5
"Wend.- (N. Y.) 23; Olmstead v.
Greenly, 18 John. (N. Y.) 12. In
Allen V. Thompson, supra, the plaintiff
had procm-ed the account hooks as a
pledge to secure a debt, and the' de-
fendant, in consideration that the
plaintiff would deliver the books to a
person designated by him for collec-
tion, promised to pay the plaintiff's
debt in case enough should not be col-
lected for that purpose. The court
held that the promise was not within
the statute as the delivery of the
books to the third person was the
same as a delivery to the defendant
himself.

^ In Stephens v. Squire, 5 Mod. 205,
this rule was adopted. In that case
an action had been brought against
Squire, an attorney, and two others,
for appearing for the plaintiff without
a warrant; and that the defendant
promised, that in consideration the
plaintiff would not prosecute the ac-
tion, he would pay .£10 and the costs
of suit. An action was brought
against the defendant upon this prom-
ise; but the court were of opinion,
that it could not be said to be a prom-
ise for another person, but for his own
debt, and, therefore, not within the

statute. According to the report of
the same case in Comberbach, 362,
the Chief Justice observed, that it
was an original promise, and the party
himself liable. Upon which. Sir
Baktholomew Showek asked his
LoEDSHiP whether it wonld not have
been plainly within the statute, if the
promisor had not been a party. But
Holt desired him to put that case
when it came. Here, said he, he ap-
pears to be a party concerned in the
former action. It is to be observed,
that the defendant in the case just
mentioned was not only liable, but
had actually been sued, and that his
promise therefore had a direct view to
his own discharge, though it would
operate eventually in discharge of
third persons ; which brings it within
the doctrine so satisfactorily stated in
Castling v. Aubert, ante. "Watson v.
Turner, B. N. P. 281, seems to be
grounded on the same doctrine.

In this case the ilO undertaken for
was not the debt of any other person,
but offered by the defendant as a
compensation for damages.; therefore,
that part of his undertaking which re-
lated to the costs came more properly
into question upon the statute ; as to
which, upon the ground of his being
a party, and liable himself, according
to the doctrine just stated, the ease
seemed to be out of the statute. But
suppose the defendant had expressly

SEC. 135.]

GUARANTIES .

229

pay the debt of a third person, where by the receipt of an
adequate consideration the debt has become also the party's
own debt,^ nor to a promise made in consideration that the
promisee incurs a liability to a third person.^

■ Sec. 135. Promise to Pay Broker. — A promise by a third
party to pay a broker put in possession of goods on which a
distress for rent has been levied, his charges must be in writ-

said to the plaintifi, Go to J S (being
one of the other persons concerned in
doing that which was the subject of
tlie action) and ask him to pay the
costs, and if he will not, I will be
personally and wholly responsible for
the amount; perhaps a promise ex-
pressed in these terms, though made
under those circumstances, would be
considered as falling within the stat-
ute. Such appears to be the doctrine
of Winckworth v. Mills, 2 Esp. 484,
in which it was held by Lord Kenyon,
at nisi prius, that a promise by the in-
dorser of an unpaid note, to indemnify
the holder, if he would proceed to en-
force payment against the other par-
ties to the note, must be in writing, or
it would be void under the statute of
frauds. In the case of Anstey v. Mar-
den, ante, the Chief Justice in his
opinion stated, that it had rather
struck him at the trial, that the prom-
ise being only to pay 10s. in the pound,
and not to pay the whole debt, it was
an original agreement, and, therefore,
not witliin the statute. But he after-
wards admitted, that Chater v. Beck-
ett 7 T. R. 201 (and see Lexington v.
Clark, 2 Vent. 223) was a decisive au-
thority the other way.

1 Robinson v. Gilraan, 43 N. H.
485. In Shook o. Vanmater, 22 Wis.
532, where the defendant in consider-
ation that C and S would surrender to
B certain securities wliich they held
to indemnify them as accommodation
makers of a note with B, gave his
written guaranty against such liability
" if they would permit B to manage the
matter himself," it was held that his
promise was an original undertaking
and not within the statute. In Win-
field V. Potter, 10 Bos. (IST. Y.) 226,

where persons holding a contract for
the supply of certain merchandise to
the government which was to be sub-
ject to inspection, delivered a part of
the goods, and pledged the govern-
ment receipts therefor, to the plaintiff,
as security for a debt due to him, and
subsequently assigned the contract to
the defendant, in consideration, among
other things, of his assuming to pay
all their debts, and the defendant, in
order to obtain the receipts pledged,
so that he might effect a settlement
with the government, gave to the
plaintiff a written promise that he
would pay the amount of the debt
whenever he received certificates from
thegovernment for the payment of so
much upon the contract, in considera-
tion that the plaintiff should aid in
procuring the inspection and accept-
ance of the goods, without charge, and
the plaintiff at the same time gave to
the defendant a written promise to
assist him accordingly without charge,
it was held that the promise to pay
the plaintiff was not void under tlie
statute of frauds. In Beatty v. Grim,
18 Ind. 131, it was held that a verbal
contemporaneous agreement made by
the sellers of a contract to deliver
hogs, to the effect that they will per-
form its stipulation if the original
contracting parties fail to do so, is not
within the statute. And in Hunting-
ton V. Wellington, 12 Mich. 10, it was
held that the statute did not apply to
a verbal warranty of certain notes and
a mortgage that the makers of the
notes were good, and that the land
was ample security for the debt, and
the title unencumbered.

2 Underbill v. Gibson, 2 N. H. 352;
Doane v. Newman, 10 Mo. 69.

230 STATUTE OF . FEAUDS, [CHAP. IV.

ing, as the landlord who has authorized the distress is liable
for the necessary expenses.^

Sec. 136. To Pay a Debt to be Transferred. — A promise in
writing to pay a debt to be transferred from the promisor's
account to that of a third party (his agent) is valid, as a
guaranty.^

Sec. 137. Promise by Execution Creditor. — Where, in an
action against the sheriff for taking the plaintiff's goods in a
fieri facias against a third party, the sheriff failed on the trial,
and the execution creditor then employed an attorney to
apply for a new trial, and on obtaining a rule for a new trial,
to act as attorney on the second trial, it was held that the
attornej' might recoTer his bill against the execution creditor,
although there was no memorandum in writing, as the execu-
tion creditor was the person primarily liable to him ; but if
the attorney had in the first place been employed by the
sheriff, it would be otherwise.^

Sec. 138. Promise in Consideration of Percentage. — A and
Co. bought certain wools of B and Co., payable by bearers,
acceptance at eight months; but before the sale was com-
pleted B and Co., requiring some security, in consideration
of £1 per cent, obtained the following instrument from C,
signed by him: "Gentlemen, — In consideration of £1 per
cent, I hereby guarantee the due and correct payment of
one-haK the amount of 186 bales of wool sold to Messrs. A
and Co., as per contract ; " — it was held that the instrument
was a guaranty.*

Sec. 139. Promise to Pay out of the Funds of Another. —
If the defendant contracts not to pay A's debt out of his own
funds, but only faithfully to apply A's funds for that purpose,
when they shall come to his hands, that contract will not be
within the operation of the statute. Thus, where the defend-
ant promised the plaintiff, in consideration that he would

1 Colman v. Eyles, 2 Stark, 62. But see Sharp v. Emmet, 5 Whart.

2 Brunton v. DuUens, 1 F. & F. fPenn.) 288, where it was held that
450. tlie receipt of such percentage does

8 Noel V. Hart, 8 C. & P. 230. not create u, guaranty of a bill pur-

* In re Willis, 4 Exch. 630 ; Row- chased bona fide in the usual course of

land V. Bull, 5 B. Mon. (Ky.) 146 business and remitted to the principal.

SEC. 139.] GUARANTIES. 231

deliver such materials as Hill (a workman employed to do
certain work) should require, that he would pay him for
them out of such moneys received by him as should become
due to Hill ; the promise was considered to be original and
not within the statute.^ In Dixon v. Hatfield,^ W undertook
to complete the carpenter's work in H's house, and find all
the materials : W being delayed for want of credit or funds
to procure timber, it was supplied by M on H's signing the
following guaranty : " I agree to pay M for timber to house
in A C out of the money that I have to pay W, provided W's
work is completed ; " and it was held that this was not a guar-
anty to pay if W should fail, but a direct undertaking to pay
when the work should be completed. So where the defendants
promised the plaintiffs that, if they would deliver goods to a
value named to A, which goods were required for the building
of a church, and were to be paid for by a bill of exchange to be
drawn by the plaintiffs on- A, the said bill should be paid at
maturity out of money to be received from the church ; it
was held that the promise was within the statute.^ This
principle applies to the case of a verbal acceptance of a bill
of exchange or a verbal promise to accept, when the person
promising has funds of the drawer out of which to pay it.*
But in an English case ^ Loed Mansfield said : " The true
reason why the acceptance of a bill of exchange shall bind is

1 Andrews ... Smith, 2 C. M. & R. = Morley v. Boothby, 3 Bing. 107 ;
631. Where notes or other securities and see Sweeting v. Asplin, 7 M. & W.
are placed in the hands of ^ person 165 ; Gerish o. Chartier, 1 C. B. 13 ;
for collection and the person receiv- Walker v. Eostron, 9 M. & W. 411.
ing them prbmises the debtor to pay * Spaulding v. Andrews, 48 Penn.
the proceeds to the creditor of such St. 411 ; Nelson v. Krst National
person, the promise is not within the Bank of Chicago, 48 111. 36 ; Eaberg
statute, and the creditor may sue the v. Peyton, 2 Wheat. (U. S.) 385 ; Grant
promisor therefor in his own name. v. Shaw, 16 Mass. 341; Lawnsley v.
Clarku. Hall, llN.J.L.78;McCrary Sunwall, 2 Pet. (N. S.) 170; Shields
V. Madden, 1 McCord (S. C.) 486; v. Middleton, 2 Cr. (U. S. C. C.) 205;
Prather v. Vineyard, 9 111. 40 ; Parley Leonard v. Mason, 1 Wend. (N. Y.)
V. Cleaveland, 4 Cow. (N. Y.) 432. 522; Pike v. Irrin, 1 Sandf. (N. Y.)
In Antonio v. Clissey, 3 Rich. (S. C.) 14; Strabecker v. Cohen, 1 Speers
201, A being indebted to B, and B (S. C.) L. 349; O'Donnell v. Smith, 2
being indebted to C, by agreement E. D. S. fN. Y. Ci P.) 124; Wakefield
between the three A sold C a gig and v. Greenwood, 29 Cal. 597 ; Quin u.
B was to give a credit for the price Hanford, 1 Hill (N. Y.) 82; Morse v.
on his note. It was held that the National Bank, 1 Holmes (U.S. C. C.)
promise was not within the statute. 209.

2 2 Bing. 439; 10 Moo. 42. ^ puiows v. Microp, 3 Bunj 1672.

232 STATUTE OP PBATJDS. [CHAP. IV.

not on account of the acceptors having or being supposed
to have effects in hand, but for the convenience of trade and
commerce. Fides est servanda. An acceptance for the honor
of the drawer shall bind the acceptor ; so shall a verbal accept-
ance. But upon a previous hearing of this case ^ that learned
judge expressed views quite inconsistent with those given
above, and in accordance with the statement in the text.

Sec. 140. Property Deposited with Promisor Charged ■with
the Payment of the Debt. — A parol promise to pay the debt
of another out of property placed by the debtor in the hands
of the promisor, who converts the same into money, is not
within the statute of frauds. It is an original and independ-
ent promise founded upon a new consideration, and the
property is treated, as a fund in the hands of the promisor
charged with the payment of the debt, and the promisor is
trustee for the creditor.^ In construing this statute it may
be laid down as a general rule that a promise to answer for the
debt, default, or miscarriage of another, for which that other
remains liable, must be in writing ; but the rule is otherwise
where the other does not remain liable. There are numerous
exceptions to this rule. In cases where the promise to pay
the debt of another arises out of some new and original con-
sideration of benefit or harm moving between the original
contracting parties, the statute does not apply .^ The reason

1 3 Burr. 1666. placing of this fund in M's hands

2 Exchange Bank v. Eice, 107 amounted to a new consideration, and
Mass. 45 ; Townsend v. Long, 77 was not within the statute. Gilbert,
Penn. St. 143 ; Fullam o. Adams, 37 J., said : " The defendant did not un-
Vt. 391 ; Urquhart «. Brayton, 12 dertake or promise for Stansbury, but
R. I. 169 ; Perry v. Swasey, 12 Cush. for himself. Nor was the promise
(^ass.) 36; Lawrence v. Pox, 20 N. one that Stansbury should pay out of
Y. 268 ; Warren u. Batchelder, 16 the money due to him from the de-
N. H. 580 ; Connor o. Williams, 2 f endant, but that the defendant would
Eob. (N. Y.) 46; Brewer v. Dyer, do so. Consequently Stansbury never
7 Cush. (Mass.) 337. had assumed, nor had he put himself

8 Leonard v. Vredenburgh, 6 John, in a position to become liable in the
(N. Y.) 29. In Cook u. Moore, 18 first instance to do that which the
Ilun (N. Y.) 31, S, after employing defendant undertook and promised to
C to work upon a liouse which S was do. Stansbury left in the defendant's
building for M, abandoned the work hands suflScient funds to pay the
with M's consent, leaving in M's plaintiff's claim, and directed the de-
hands sufficient money to pay C's fendant to make such application,
claim, which M promised both S and The defendant promised Stansbury
C to pay. It was held that the that he would do so. Subsequently

SEC. 140.]

GT7AEANTIES.

233

is that the promise is made upon a new and independent
consideration, and it matters not whether the original debt

the same promise was made to the
plaintifE. The case, I think, is not
within tlie statute of frauds, hut
ratlier falls under the third class of
promises stated by Comstock, J., in
Mallory v. Gillett, 21 N. Y. 433,
namely, 'Where, although the debt
remains, the promise is founded on a,
new consideration which moves to the
promisor. This consideration may
come from the debtor, as where he
puts a fund in the hands of the
promisee, either by absolute transfer
or upon a trust to pay the debt,' etc.
Lippincott v. Ashfield, 4 Sand. (N. Y.)
611. From the facts proved in this
case the law would imply a liability
to apply the fund in the defendant's
hands in the manner Stansbury di-
rected him, and he undertook to do.
Barker v. Bucklin, 2 Den. (N. Y.) 45 ;
Lawrence u. Fox, 20 N. Y. 268; Bar-
low o. Myers, 64 id. 41. When the
law will imply a debt or duty against
any man, his express promise to pay
the same debt or perform the same
duty must in its nature be original."
Justin V. Tallman, 86 Penn. St. 147 ;
Xee V. Newman, 55 Miss. 365; Wil-
liams V. Rogers, 14 Bush. (Ky.) 776;
Beardslee v. Morgner, 4 Mo. App. 139 ;
Estabrook v. Gebhart, 32 Ohio St.
415; Thacher v. Rockwell, 4 Cal.
375. In Price v. Trusdale, 28 N. J.
Eq. 200, a promise to a debtor to
apply to the payment of a particu-
lar debt funds of the debtor received
or to be received by the promisor
amounts to a purchase of the debt,
and is not within the statute. In
Calkins v. Chandler, 36 Mich. 320, it
was held that the promise of an em-
ployer to pay the wages of an em-
ployee, earned and to be earned, to a
creditor of the employee is not within
the statute. In that case the plain-
tiffs having a chattel mortgage upon
a new mill owned by M, it was ver-
bally agreed between them and M
and the defendants, M being then
engaged in sawing lumber for the

defendants, that if the plaintiffs would
extend the time for the payment of
the mortgage, M should allow the de-
fendants to retain fifty cents per thou-
sand feet of all lumber sawed by M
for them, and that they would pay
such sums to them. It was held that
the promise was not within the stat-
ute, and that they were liable for such
sum whether they did or did not re-
tain it. Contractors to build a rail-
road agreed with merchants to pay
orders and time-checks issued by a
subcontractor to his employees. Upon
the faith of this agreement, and giv-
ing credit exclusively to the contrac-
tors, the merchants accepted and re-
ceived such orders and time-checks
in exchange for goods. It was held
that the promise of the contractors
was not within tlie statute of frauds.
Doyle V. White, 26 Me. 341 ; Walker
V. Penniman, 8 Gray (Mass.) 233;
Billingsley v. Dempewolf, 11 Ind. 414 ;
Hanford v. Higgins, 1 Bosw. (N. Y.)
441 ; Williams v. Corbett, 28 111. 202 ;
Chase v. Day, 17 Johns. (N. Y.) 114;
Brown v. George, 17 N. H. 128 ; Hall
V. Wood, 3 Pin. (Wis.) 308; Birchard
V. Booth, 4 Wis. 419 ; Thayer v. Gal-
lup, 13 id. 411 ; Champion ii. Doty,
31 id. 190 ; Vogel v. Melms, id. 306 ;
West V. O'Hara, Wis. S. C. In Laidlow
u. Hatch, 75 111. 11, it was held that a
promise by a person to pay to a sub-
contractor what might become due to
the contractor for work to be done
for him, is a promise to pay the debt
of another and within the statute.
Where A, who was indebted to B,
gave him an order oil C for certain
goods, and C having the goods in his
possession, and also a claim against A,
agreed with B by parol that he would
sell the goods and apply the proceeds
to the payment of their respective
claims, it was held that the promise
was not within the statute. Clark v.
Hall, 11 N. J. L. 78. In an action by
E against P, the complaint recited
substantially that E held a, mortgage

234

STATUTE OP FEAUDS.

[CHAP. IV.

continues to subsist or not. But in such cases the promisor
must have authority to apply the proceeds of the property in
payment of the debt, or his promise is within the statute.
Thus, where the assignee of a note for collection promised,
without authority from the assignor to apply it in payment of
a debt due from such assignor to the plaintiff, it was held to be
within the statute.^ In an Illinois case ^ A bought lumber on
the credit of B, and 'paid B therefor, and B promised the cred-
itor that he would pay him for the lumber. It was held that
this was an original undertaking on the part of B, and that he
thereupon became the debtor. The same rule was adopted in
lowa,^ and it was held that neither an agreement by the
vendee of real estate to pay a note of the grantor as a part of
the consideration for the land, nor an agreement to pay a note

on E's leasehold of a coal-mine to
secure payment of certain notes, not
including one for $327 ; that F, desir-
ing security for R's indebtedness to
himself, promised to pay E this note,
and E consented to R's executing to
F a mortgage on the same leasehold,
to secure said indebtedness of R to F,
and in such mortgage said note was
included; that R became insolvent
and F took possession ; that by rea-
son of such promises E was induced
to, and did, release R. It was held
that F's promise was on a sufficient
consideration, not to be within the
statute of frauds ; and under the issue
made by the general denial, evidence
was admissible to determine whether
F's mortgage became a prior lien
over E's and also the extent of E's
loss of security. Fleming v. Easter,
60 Ind. 399. See Olmstead v. Greenly,
18 John. {N. Y.) 12; "Wait v. Wait, 28
Vt. 350 ; Draughan v. Bunting, 9 Ired.
10 ; Hall V. Robinson, 8 id. 56 ; Hicks
V. Critcher, Phil. 353; Threadgill v.
McLendon, 70 N. C. 24; Stanly v.
Hendricks, 13 Ired. 86; Mason v. Wil-
son, 84 N. C. 51.

1 France v. August, 88 111. 561;
Gower v. Stuart, 40 Mich. 747 ; Mur-
phy w.Renkert, 12 Heisk (Tenn.) 397.

2 Watkins v. Sands, 4 111. App.
207.

' Morrison v. Hogue, 49 Iowa,

574. In Barker v. Bucklln, 2 Den.
(N. Y.) 61, the defendant's brother
owed the plaintiff, and delivered to
the defendant a pair of horses, worth
less than the debt, and the defendant
agreed to pay the price to the plain-
tiff on account of his demand against
his brother. The plaintiff declared
upon the promise as made to himself,
and upon that ground was non-suited,
but the opinion of Jewett, J., shows
that, had the declaration been prop-
erly framed, a recovery could have
been had. He said : " It was not a
promise to answer for the debt of
another, but merely to pay the debt of
the party making the promise, to a par-
ticular person designated by him to
whom the debt belonged, and who had
a right to make such payment a part of
the contract of sale." See also Meriden
Brittania Co. v. Zingsen, 48 N. Y. 247 ;
Barker v. Bradley, 42 id. 316; Ell-
wood V. Monk, 5 Wend. (N. Y.) 235;
Farley e^. Cleaveland, 4 Cow. (N. Y.)
432. In Skelton v. Brewster, 8 John.
(N. Y.) 376, a debtor who had been
taken in execution delivered to the
defendant all his household goods,
upon the promise of the latter to pay
the debt. The promise was held not
to be within the statute. Westfall v.
Parsons, 16 Barb. (N. Y.) 645; Gold
V. Phillips, 10 John. (N. Y.) 414.

SEC. 141.]

GTJAEANTIES.

235

of tlie grantor in consideration of the release of an attach-
ment by a surety on the note, is within the statute.^

Sec. 141. Promise made to the Debtor. — Where a promise
predicated upon, a good and sufficient consideration is made
hy a third person to a debtor to pay a debt owed by him to
another, the promise is not within the statute, and in many
of the States, under such circumstances, tlie creditor is treated
as standing in such a relation to the contract, — being the
person beneficially interested therein, — that he may maintain
an action thereon against the promisor in his own name.^

But this is not in accordance with the rule as adopted
in Connecticut.^ In that case it appeared that William

1 In Green v. Randall, 51 Vt. 67, 523; Beaman v. Russell, 20 Vt. 205;
it was held that a parol agreement
hy the vendor of real estate, to remove
a mortgage thereon given to secure
the debt of another, is not within the
statute, it being an original undertak-
ing and a promise to pay his own
debt. In Prince v. Kochler, 77 N. Y.
91, it was held that a promise made
by the vendee of land to a mortgagee
who was about to foreclose for over-
due interest, that if he would not
foreclose, he would pay the arrears
when the next instalment fell due,
was an original undertaldng.^ Moore
V. Stovall, 2 Lea (Tenn.) 543, over-
ruling Campbell v. Findley, 3 Humph.
(Tenn.) 330. A mere promise, by a
mortgagee of goods engaged in selling
the mortgaged chattels for the pur-
pose of obtaining payment of the
mortgage debt, to a third person hold-
ing a note of the mortgagor, that, if
he should realize enough, after pay-
ing his own demand, he would pay
each note, cannot be enforced, for
want of consideration, even if evi-
denced by his indorsing his name on
the note. A mere naked promise to
pay an existing debt of another, with-
out a new consideration, is void. So
held, where, in fact, the mortgagee
did not realize more than enough to
pay his own demand. Starr v. Earle,
43 Ind. 478; Hayler v. Atwood, 26
N. J. L. 504.

2 Vogel V. Melms, 31 Wis. 306 ;
Harrison v. Sawtelle, 10 John. (N. Y.)
242; Dunn u. "West, 5 B. Mon. (Ky.)
376 ; De Merrett v. Biekf ord, 58 N. H.

Pike V. Brown, 7 Cush. (Mass.) 133;
Barry w. Ransom, 12 N. Y. 462 ; Smith
V. Sayward, 5 Me. 504 ; Eeed v. Hol-
comb, 31 Conn. 360.

' Clapp V. Lawton, 31 Conn. 95. In
a recent case, Meech v. Ensign, 49
Conn. 191; 44 Am. Rep. 225, the
question as to the right of a creditor
to sue upon a promise made by a third
person to Ms debtor to pay the debt,
was before the court under the follow-
ing state of facts : The plaintiffs had
a mortgage on real estate, and the
defendant purchased the mortgagee's
equity of redemption, agreeing with him
to pay the mortgage debt to the plaintiffs.
Tliis he did not do, and the court held
that the plaintiffs could not maintain
an action against him upon tlie prom-
ise, upon the ground that although
the promise was incidentally made
for their benefit, it was not made to
them, nor were they privy thereto,
thus ignoring the doctrine of a large
class of cases in our courts, which
hold that where a promise is made
for the benefit of a third person, that
person may maintain an action there-
for. Lawrence v. Fox, 20 N. Y. 268 ;
Thorp V. Keokuk Coal Co., 48 id. 253 ;
Burr V. Beers, 24 id. 178 ; Davis v.
Calloway, 30 Ind. 112; Croswell v.
Currie, 27 N. J. Eq. 152; Blyer v.
Mulholland, 2 Sandf . Ch. (N. Y.) 478 ;
Urquliart v. Brayton, 12 R. I. 169;
Vroman ,;. Turner, 69 N. Y. 280; 25
Am. Rep. 195 ; Hendrick u. Lindsey,
93 U. S. 143 ; Exchange Bank v. Rice,
107 Mass. 39 ; 9 Am. Rep. 1 ; Merrit

236 STATUTE OP PEAXJDS. [CHAP. IV.

Faulkner and Robert Wright were partners under the
name of Faulkner & Wright, and as such partners were
the owners of a newspaper called the New Haven Morn-
ing News, which they had been conducting for several
months previously. They had contracted debts in the
business to the amount of about |1,300, among which
were the notes of the plaintiffs described in the declaration,
amounting to the sum of $632.70. They had, besides their
press, type, engine, and fixtures belonging to their estab-
lishment, debts due them amounting to about $1,600.
On the 3d of September, 1859, Faulkner sold to Thomas
Lawton, the defendant, his interest in the establishment,
and conveyed the same to him by a written instrument.
At the time of this sale the parties had a schedule of the
balances due the firm of Faulkner & Wright, and the gross
amount of their indebtedness. The books of the firm were
also present and contained an accoT:ynt of the debts due the
plaintiffs, the notes of the plaintiffs being correctly described
in their account of bills payable. Faulkner & Wright dis-
solved their co-partnership on the same day. Lawton &
Wright entered into co-partnership for the purpose of con-
ducting the same newspaper under the name of Lawton &
Wright. The new firm of Lawton & Wright took possession
of all the material, presses, types, cases, forms, engine and
its fixtures, and all other property belonging to the firm of
Faulkner & Wright, and Lawton on the same day paid the
persons who had been the operatives in the establishment,
and who had claims against Faulkner & Wright. He subse-
quently paid a debt contracted by Faulkner & Wright for
paper, amounting to about $100; and also $83.37 for rent
due for the quarter ending on the 1st day of October.

The accounts due Faulkner & Wright, estimated at about
$1,600, and the books on which they were entered, went into
the hands of Lawton & Wright and were collected by them

V. Green, 55 N. Y. 270 ; Gumsey v. Connecticut court is most consistent
Rogers, 47 id. 233 ; 7 Am. Rep. 440 ; with principle, and that the courts
Simson v. Brown, 68 id. 361 ; Dean v, which have opened the door to this
"Walker (111. S. C); 44 Am. Rep. 232 n. ; new flood of litigation will ultimately
Campbell v. Smith, 71 N. Y. 26 ; 27 find it necessary to curtail and' cir-
Am. Rep. 5. Without attempting to cumscrihe the application of the doc-
point out the reasons, we are inclined trine if they do not recede from it
to believe that the doctrine of the altogether.

SEC. 141.J GUARANTIES. 237

SO far as they could be collected. Lawton & Wright opened
new accounts with persons on their books in all new transac-
tions, but they did not open any account with Faulkner, nor
did they have any account in which they credited the firm
of Faulkner & Wright with the money they collected on the
accounts of Faulkner & Wright, but the money so collected
was used by them as their own. The amount collected by
thera was about $1,000.

The plaintiffs claimed that at the time of the sale of
Faulkner's interest in the establishment to Lawton, and as a
part of the same transaction, Faulkner & Wright assigned
their accounts to Lawton & Wright, and that Lawton &
Wright then promised to pay the debts due from Faulkner
& Wright, among which debts were the notes due the plain-
tiffs; and thereupon the plaintiffs offered in evidence the
deposition of Faulkner, and the testimony of Wright, to
prove that at the time of the disposition of Faulkner's
interest in the establishment to Lawton, Faulkner & Wright
assigned to Lawton & Wright their interest in the debts due
the firm of Faulkner & Wright, in consideration of the parol
agreement of Lawton & Wright with him, Faulkner, that
they would assume and pay all the liabilities outstanding
against the co-partnership of Faulkner & Wright, and that
Lawton & Wright received and accepted the claims so
assigned upon such promise to pay the liabilities of Faulkner
& Wright, and that Lawton had no interest in the claims so
assigned except by his promise to pay such outstanding
liabilities ; and that there was exhibited to Lawton & Wright
at the time a written schedule of the debts due to Faulkner
& Wright on the Ist of August, 1859, amounting on their
face to about $1,600, and a statement in gross of the liabilities
of the firm, amounting to about $1,300. To the admission
of this evidence the defendants objected, on the grounds
that the promise claimed, being a promise to pay the debt of
another, could not be proved" by parol, and the court held
that this objection was well taken. Dutton, J., in deliver-
ing the opinion of the court, says : " Many of the numerous
cases on this subject appear to treat this clause as if it read
'a special promise to pay,' instead of, 'to answer for the debt
of another.' ^ The term ' answer for ' clearly implies an
1 In Florida the words are " answer or pay.''

238 STATUTE OP FRAUDS. [CHAP. IV.

attempt to hold another as surety. The object of the statute
is expressed to be, 'for the prevention of many fraudulent
practices, which are commonly endeavored to be upheld by
perjury and subordination of perjury.' The danger is, that
creditors will endeavor by false parol testimony to save
debts which they will otherwise lose by the failure of the
original debtor to pay. Why are the present plaintiffs suing
Lawton & "Wright instead of Faulkner & Wright? In a
suit against the latter no objection could be raised to a
recovery. We can conceive of no reason except that they
are endeavoring to make Lawton & Wright answerable for a
debt which cannot be recovered from Faulkner & Wright.
It is therefore precisely the case which the legislature had in
view. We are far from supposing that these creditors would
resort to the fraudulent practices spoken of in the statute.
But we could not in another case refuse to dishonest credi-
tors a privilege which we have once granted to those who
are honest.

It cannot be denied, however, that in many of the cases
doctrines are sanctioned which would permit a recovery in
this case. In some of them the court seem to have been
influenced very much by the fear, that if the plaintiff was
not allowed to recover, the defendant would use the statute
as an instrument of fraud. They do not seem to have been
conscious of their inconsistency, in drawing inferences in a
case as proved, when the only question in the case is, whether
the law will permit it to be proved in the way attempted.
The statute is based upon the conviction of the legislature
that it is not safe to allow a contract to be proved in this
way. What propriety then can there be in drawing inferences
of fraud from facts which are not proved ? But the danger
of fraud has been overrated. It does not follow at all that a
defendant who denies the validity of an agreement on this
ground can retain the consideration. Frauds are not in fact
perpetrated by taking advantage of this statute, to near the
same extent to which they are by objections to evidence of a
parol contract made in connection with a written contract
but not included in it. Yet this has never been con-
sidered a sufficient reason for not applying the rule strictly.
Courts have also frequently been misled by not adverting

SEC. 141.] GUARANTIES. 239

to the distinction between an attempt to hold a person as
surety for another, and merely compelling him to pay a sum
of money, which may happen to be the debt of another. If
A sells a house to B for one himdred dollars, it is clearly
immaterial to B whether he is to pay the money to A or to
one of A's creditors. As a contract between A and B, there
is no more danger that the fraud mentioned in the statute
will be perpetrated than in any other contract. But the
moment you allow the creditor of A to have an interest in
this contract, and to have the right, either expressly or by
implication, to sue upon it, as the plaintiffs claim to have in
this case, the agreement is brought directly within both the
letter and spirit of the statute. ^ Some of the cases seem to
turn upon the question whether the defendant has actually
received a full consideration or not. But it is obvious that
the statute has no reference to the consideration. It implies
that there is a sufficient consideration, otherwise the statute
would be unnecessary, as the agreement would be void of
itself. Some of the recoveries seem to have been allowed
on the ground that it appeared that some new and distinct
consideration passed from the plaintiff to the defendant.
Here again it is plain that unless there was a new considera-
tion, to which the defendant is in some way privy, the agree-
ment would be void without the statute. These cases have
grown out of, but in many instances are an extension of, the
doctrine contained in an English case,^ and which has been
very properly applied in many subsequent cases, that where
a creditor has in his hands or subject to his control, property
of his debtor which he has a right to apply to the payment
of his debt, he may transfer his right in that property to a
stranger and take his parol promise to pay the debt. In such
cases there is, in the language of Judge SwrFT,^ ' a pur-
chase of the property at a price equivalent to the debt for
which it was holden.' " But the doctrine expressed in this
case, as we have seen,* is not generally adopted, and it may be
said to be a general rule, that a promise made either to the
debtor or the creditor, to pay the debt of another, because of

1 See Meech v. Ensign, ante. See ^ 'WiUiams v. Leper, 3 Burr. 1886.

Parker v. Benton, 35 Conn. 343, where » Swift's Dig. 255.

a different rule was adopted where the * See ante, § 125.
creditor accepted the substitution.

240 STATUTE OP FRAUDS. [CHAP. IV.

property deposited with him by the debtor, or of assets in his
hands, is founded upon a new and independent consideration,
and is not within the statute, and that the creditor may main-
tain an action thereon in his own name. In a recent case in
Pennsylvania,^ involving a similar state of facts with those
existing in Clapp v. Lawton, ante, it was held that the statute
did not apply, because the promise was not to pay the debt of
another, but rather to pay the promisor's own debt, and the
soundness of this doctrine cannot be questioned.

Sec. 142. Promise of G-rantee to pay Mortgage Debt. — In
Minnesota 2 it is held that a verbal promise made by the
grantee of lands, to pay the grantor's debts, is not within
the statute; and a similar doctrine is held in Nebraska,^
Illinois,* North Carolina,* New Jersey,® Kentucky,'' Nevada,^
California,^ Alabama,^" Maine," Ehode Island,i2 Vermont,!^
New York,i* South Carolina,^^ and, indeed, in all the States
except Connecticut, this rule prevails without queStion.^®

Sec. 143. when Promisor Estopped from Denying that he
has Funds. — If the promise is made directly to the creditor,

1 Wynn v. Wood, 97 Penn. St. 216 ; 399 ; Clark v. Hall, 11 id. 78 ; Laing
Standt V. Hine, 45 id. 30. v. Lee, 19 id. 337.

2 Stariha u. Greenwood, 28 Minn. ^ Jennings v. Crider, 2 Bush. (Ky.)
521. But a Terbal promise to pay a 322.

mortgage debt made by the purchaser ^ Eushliug v. Hackett, 1 Nev. 360.

of the equity of redemption in land ' McLaren v. Hutchinson, 22 Cal.

ajler the purchase and not connected with 187 ; Lucas u. Payne, 7 id. 92.

the consideration to be paid therefor is l" McKenzie v. .Jackson, 4 Ala.

within the statute. Berkshire v. 230; Cameron v. Clark, 11 id. 209;

Young, 45 Ind. 461. Lee v. Fontaine, 10 id. 755.

8 Clopper V. Poland, 12 Neb. 63. " Hilton v. Dinsmoor, 21 Me. 410.

* Mathers v. Carter, 7 lU. App. i^ Thurston v. James, 6 R. 1. 103.

225. In this case the original debtor ^^ Merrill v. Englesby, 28 Vt. 150 ;

surrendered a bond for a deed which Wait v. Wait, 28 id. 350.

he held against A, in consideration ^^ Seaman v. Whitney, 24 Wend,

that A would pay to C the amount of (N. Y.) 360 ; Wyman v. Smith, 2

a note due from such debtor, and it Sandf . (N. Y.) 33 ; Budd v. Thurber,
was held that A's promise was an in- , 61 How. Pr. (N. Y.) 206; Winfield v.

dependent undertaking. Prather v. Potter, 10 Bos. (N. Y.) 226; Farley w.

Vineyard, 9 111. 40. Cleaveland, 9 Cow. (N. Y.) 639.

6 Mason u. Wilson, 84 N. C. 51 ; i^ McCrary v. Madden, 1 McCord

37 Am. Eep. 612; Threadgill v. Mc- (S. C.) 486; Antonio „. Clissey, 3

Lendon, 76 N. C. 24. Rich. (S. C.) 201.

8 Berry v. Doremus, 30 N. J. L. ^^ Stanley v. Hendricks, 13 Ired.

(N. C.) 86.

SBC. 143.]

GTJAEANTIES.

241

the promisor representing to the creditor that he has property
or assets of the debtor in his hands, and the creditor there-
upon discharges the debtor, the promise is not within the stat-
ute, even though the promisor has no such property in his pos-
session belonging to the debtor, out of which to pay the debt. By
inducing the creditor to act upon such representations he is
estopped from denying their truth,^ and the same rule prevails,
even though the original debtor is not discharged, where the
representations and promise are made upon consideration that
the creditor will refrain from enforcing the collection of the
debt. Thus in the Pennsylvania case cited supra, the defend-
ant represented to the plaintiff that he was owing a person
who was indebted to the plaintiff, and promised to see him

' In Dock V. Boyd, 93 Penn. St. 92,
the plaintiff having a claim against
M, which they were pressing, and had
threatened to institute legal proceed-
ings upon, D, a. third party, said to
them that if they would give time, he
would see the claim paid, as he had
property of M in his hands, and that
plaintiffs were secure. The plaintiffs
then agreed not to push M without
notifying D. M thereafterwards ab-
sconded, and plaintiff sued M and re-
covered judgment. In an action against
D to enforce the promise, it was held
that whether or not D had in his hands
means belonging to M, he was es-
topped by his own declaration, upon
the faith of which his verbal promise
to pay the debt was accepted. Such
being the case, it was clearly not with-
in the statute of frauds. When the
promise is to apply the funds or prop-
erty of the debtor in the hands of the
party, it is not necessary that the
creditor should give up his recourse
against the debtcw upon the original
claim. The promise is not a collateral,
but an original one, founded on suffi-
cient consideration. In McKenzie v.
Jackson, 4 Ala. 230, A agreed with B
to take his stock of goods and pay
his debts, and afterwards A verbally
promised one of B's creditors to pay
him. It was held that the promise
was not within the statute, and that
the creditor could recover thereon.

In Lucas v. Payne, 7 Cal. 92, A con-
veyed to B to be disposed of for his
benefit, and B accepted an order of A,
and this was held to be an original
undertaking. In Hite v. Wells, 17
111. 88, the declaration alleged that A
was indebted to B in $208.75 ; that C,
in consideration that B would procure
from A an order on C for the money
so due, promised to pay to B the money
due from A to B; that B procured
the order and presented it to C who
refused to pay it. To this the statute
was pleaded, and held to be a good
answer. See also, adopting tlie same
rule, Lippincott ti. Aspfield, 4 Sandf.
(N. Y.) 611; Edinfield v. Cunaday,
60 Ga. 456. In a South Carolina
case a doctrine inconsistent with this
was held, where A received from B
an assignment of his mills, to secure
him against his liabilities for B. Two
or three months after this assignment,
A called upon C to obtain his indorse-
ment to B's paper, to he discounted at
a bank, saying that he had in his hands
a quantity of lumber, and verbally
promising to indemnify C, on account
of such indorsement, as soon as he,
A, got a return from his factor: C
indorsed the note upon this represen-
tation, and having been compelled to
pay it, sued A upon his guaranty. It
was held that A's contract was within
statute. Simpson r. Nance, 1 Spears,
(S. C.) 4.

242 STATUTE OF FKAXJDS. [CHAP. IV.

paid if he wpuld give such debtor time. The plaintiff, relying
upon this promise, refrained from enforcing the claim, but did
not surrender it, and afterwards prosecuted it to judgment.
It was held that the promise was an original undertaking not
within the statute, and that the defendant was estopped from
denying his obligation. In the New York case cited above,
the facts were quite similar, and the same doctrine was held
and its accuracy cannot be questioned. In a Wisconsin case
the defendant purchased of C a wagon, etc., and as part of
the contract of purchase, promised C to pay portions of the
purchase-money to F and G, C being indebted to those par-
ties respectively in the stipulated sums. Soon after the pur-
chase, and before the service of garnishee process upon him,
the defendant notified F and G of his promise to C to pay
them such sums, and they each accepted such promise. He
paid them according to promise, but not until after process
of garnishment was served upon him. It was held that such
promise was not within the statute. The ground upon which
this doctrine is pleaded is, that although it was collateral to
C's own liability or promise to pay, and may be said inciden-
tally to have guaranteed liis debts, yet it was a guaranty in
form only, and not in substance or effect within the meaning
of the statute of frauds. It was not a mere promise by the
defendant to be responsible for the debts of C and to pay
those debts, but a promise by him to pay his own debt in that
particular way. It was a promise founded upon a new and
sufficient consideration, moving to the promisor from the
debtor, at the time the promise was made. After notice to
them, and their assent, the liability of the defendant to F and
G was absolutely fixed, and they each could have maintained
an action against him to compel payment. After such notice
and assent, it was no longer in the power of C to forbid such
payment, or to withdraw his assent, or to require payment to
be made to himself, without the consent of F and G. The
defendant's liability being thus fixed, his voluntary payment
after service of process upon him, was not unlawful or un-
authorized. Indeed, it was immaterial whether he had paid
at all or not. He was not liable as the garnishee of C. He
was not C's debtor, but the ' debtor of F and G, at the time

SBC. 143.]

GUARANTIES.

243

the proceedings were commenced.^ In a Michigan case,^ the
plaintiff having a mortgage against M on a mill owned by

' Putney V. rarnhara, 27 "Wis. 187.
A doctrine inconsistent with this was
held in Emerick v. Sanders, 1 Wis. 77.

2 Calkins t>. Chandler, 36 Mich.
320 ; 24 Am. Eep. 593. Coolet, J.,
in delivering the opinion of the court,
said : " Three principal objections are
taken to the recovery which has been
had in this case : First, that the agree-
ment proved was void for want of
consideration ; second, that it was void
under the statute of frauds, because
not reduced to writing; and third,
that, conceding the agreement to be
valid, defendants could only be re-
sponsible under it for such moneys
due the Medlar Brothers as they should
retain in their hands ; and in this case
they ofEered, but were not allowed, to
show that they retained nothing.
These objections will be considered
in their order.

The defect in the consideration is
supposed to be, that there was no
agreement to extend payment for any
definite time. In EoUe's Abridgment,
27, pi. 45, it is laid down that ' If A
be indebted to B in one hundred
pounds, and B is about to commence
a suit for the recovery thereof, but C,
a stranger, comes to him and says that
if he will forbear him, he himself will
pay it, this is a good consideration for
the promise ; B averring that he had
abstained and forebore to sue A,et ad
Jiunc did abstain and forbear ; though
no certain time be appointed for the
forbearance ; for it seems a perpetual
forbearance shall be intended, the
which he hath performed. So if he
will forbear paululum temporis, this is
good ; plaintiff averring a certain
time of forbearance.' In Payne v.
Wilson, 7 B. & C. 426, the agreement
counted upon was to suspend proceed-
ings in consideration that defendant
would pay a certain sum on account
of the debt on April 1, following ; and
after verdict for the plaintiff, objec-
tion being taken that no consideration
appeared, Tentekden, C. J., said:

' The promise made by the defendant
was to pay .€30 on the first of April,
in consideration of the plaintiff's con-
senting to suspend proceedings. That
imports that the proceedings were at
all events to be suspended until that
period ; and I think that the averment
that the plaintiH did suspend the pro-
ceedings is sufficient after verdict;
because it must be taken that it was
proved at the trial that the plaintiff
had suspended the proceedings, either
for a time required by law, or for a
definite or reasonable time.' In Sid-
well I. Evans, 1 P. & W. (Penn.) 383,
the evidence showed an agreement in
consideration of a promise of the
creditor to 'wait a while and not
push' the debtor. The plaintiff had
counted on an agreement to forbear
to sue for a reasonable time ; and the
jury having found for the plaintiff on
this evidence, the verdict was upheld.
In King o. Upton, 4 Me. 387, the
promise counted on was to pay the
debt of another in consideration that
the creditor would ' forbear and give
further time for the payment of the
debt,' naming no time. The plaintiff
averred that he did thereupon forbear,
and the consideration was held suffi-
cient. Elting V. Vanderlyn, 4 Johns.
(N. Y.) 237, is to the same effect.
Reference is also made to Allen i;.
Prior, 3 A. K. Marsh (Ky.) 305; and
Hakes v. Hotchkiss, 23 Vt. 231. The
averments in the declaration in this
case are similar to those in King v.
Upton, and we think the court was
correct in holding them sufficient.

The second objection seems to be
more relied upon. Our statute of
frauds declares that 'in the following
cases, specified in this section, every
agreement, contract, or promise shall
be void, unless such agreement, con-
tract, or promise, or some note or
memorandum thereof, be in writing
and signed by the party to be charged
therewith, or by some person by him
thereunto lawfully authorized;' and

244

STATUTE OP PEAXJDS.

[chap. IV.

him, who was then engaged in sawing lumber at such mill
under a contract with the defendants, the defendants, in con-

it enumerates among other cases,
■ every special promise to answer for
the debt, default, or misdoings of an-
other person.' It is claimed that the
promise counted upon in this suit is
of this nature ; it being a, promise
by the defendants to answer for the
debt and default of Medlar Brothers
to the extent promised. It is true
that the promise of defendants was
to make payments on the debt of
Medlar Brothers, but it is also
true that every payment they prom-
ised was to apply on an indebted-
ness that was to accrue against them-
selves for the sawing that should
be done for them by the Medlar
Brothers from time to time. Their
promise was consequently a promise
to answer for their own debt, and they
took upon themselves no new oblige^
tion whatever. It has already been
determined that the promise was made
on a sufficient consideration, namely,
the agreement to forbear foreclosure.
But while in most cases of similar
promises to be found in the books the
benefit of the forbearance was ex-
pected to accrue to the debtor himself,
in this case it is very evident the de-
fendants entered into the arrange-
ment for their own advantage, and
that they promised to pay nothing for
which they should not receive an
equivalent in services performed for
them. In other words, there was a
consideration moving to them, which
was the inducement to their making
the promise. In many cases the test
whether a promise is or is not within
the statute of frauds is to be found in
the fact that the original debtor does
or does not remain liable on his un-
dertaking; if he is discharged by a
new arrangement made on sufficient
consideration, with a third party, this
third party may be held on his prom-
ise though not in writing ; but if the
original debtor remains liable and the
promise of the third party is only col-
lateral to his, it will in strictness be

nothing more than a promise to answer
for the other's debt. But where the
third party is himself to receive the
benefit for which his promise is ex-
changed, it is not usually material
whether the original debtor remains
liable or not. This subject has been
so fully considered in the New York
courts that a reference to the leading
cases of Farley v. Cleveland, 4 Cow.
(N. Y.) 432; s. u. on appeal, 9 id.
639, and Mallory v. Gillett, 21 N. Y.
412, in which the other cases are col-
lected, will be all we shall make here.
In Nelson v. Boynton, 3 Met. (Mass.)
396, 402, Shaw, C. J., on an examina-
tion of the authorities, says : ' The
rule to be derived from the decisions
seems to be this : that cases are not
considered as coming within the stat-
ute when the party promising has for
his object a benefit wliich he did not
before enjoy, accruing immediately to
himself ; but where the object of the
promise is to obtain the release of the
person or property of the debtor, or
other forbearance or benefit to him, it
is within the statute.' There are
many cases in Maine to the same
effect, which are collected in Stewart
V. Campbell, 58 Me. 439. In Putney
V. Parnham, 27 "Wis. 187, 189, Dixon,
C. J., in c(insidering a promise by the
defendant to pay to the creditors of
one Corbett, debts owing by himself _
to Corbett, says : ' The question is
whether such promise was within the
statute of frauds, and we believe it
to be well settled that it was not, al-
though it was collateral to Corbett's
own liability or promise to pay the
same debts, and may be said incident-
ally to have guaranteed such payment.
It was a guaranty in form, but not in
substance or effect, within the mean-
ing of the statute of frauds. It was
not a mere promise by the defendant
to be responsible for the debts of Cor-
bett to those parties, and to pay those
debts, but a promise by him to pay
his own debt in that particular way.

SEC. 144.]

GUAEAKTIKS.

245

sideration that the plaintiff would give further time for the pay-
ment of the mortgage, promised to retain out of the money to
become due to M the sum of fifty cents for each thousand feet
of lumber sawed by him for them, and to pay the same to the
plaintiff. It was held that this promise was not within the
statute. But a promise made by a person who is indebted
to another, without any consideration therefor, or the assent
of the debtor, that he will retain the money due to enable a
creditor of such person to secure his debt, is within the
statute and void ;^ but a promise made to a debtor to pay his
debt to a third person, or based upon any good consideration,
is not within the statute.'^

Sec. 144. when Debt has become Debt of the Promisor.

— The statute does not apply to a promise to pay the debt
of a third person, where by the receipt of an adequate con-
sideration, such debt has become also the party's own debt,^

It was a promise founded upon a new
and sufficient consideration moving to
the promisor from the debtor at tlie
time the promise was made. Such a
promise or agreement is not within
the statute of frauds." In further
illustration of the same doctrine ref-
erence is made to Brown v. Weber, 38
N. T. 187; Clymer v. De Young, 54
Penn. St. 118 ; Eddy v. Roberts, 17 111.
505; Wilson v. Bevans, 58 id. 232;
Rimde v. Eunde, 59 id. 98; Ford v.
Finney, 35 Ga. 258 ; Davis v. Banks,
45 id. 138 ; EuUam v. Adams, 37 Vt.
391, 396; Andre v. Bodman, 13 Md.
241, 255 ; Britton v. Angler, 48 N. H.
420 ; Johnson v. Knapp, 36 Iowa, 616 ;
Besshears v. Rowe, 46 Mo. 501.

The exact point has not hitherto
been presented for adjudication in
this State. In Brown v. Hazen, 11
Mich. 219, a verbal promise by the
defendant to pay to the plaintiff a
debt owing to him from a third person
was held to be within the statute,
there being no consideration moving
from the plaintifE to the defendant.
There is some discussion of the gen-
eral subject in Gibbs v. Blanchard, 15
Mich. 292, but it has no very direct
bearing. We think the authorities
support the judgment.

The question which remains is,
whether if the defendants, before suit
was brought, had paid over to Medlar
Brothers all that was due for the saw-
ing, this would discharge them from
their promise to the plaintifEs. If it
would, it must be on the ground that
they were liable only while they were
the debtors of Medlar Brothers, and
because of their indebtedness, which
in connection with their promise would
in effect make them the custodians of
a fund set apart for application to the
plaintiff's demand. But we think it
became their duty under their promise
to observe it by withholding from
Medlar Brothers the proportion of
their bill which they had agreed to
pay to the plaintifEs ; and that they
could not discharge themselves by a
disregard of their promise. It is a
paradox to say that a promise is valid,
but that the promisor may relieve
himself from its obligations by violat-
ing it."

1 Milcote V. Kile, 47 111. 88.

2 Goetz V. Foss, 14 Minn. 265;
Brown v. Brown, 47 Mo. 130.

5 Robinson u. Gilman, 43 N. H.
485.

246 STATUTE OF FEAIJDS. [CHAP. IV.

nor where the promisor derives a direct benefit therefrom.
Tlius, the plaintiff subscribed for $2,000 worth of stock iu a
railroad corporation payable in ten years, secured by bond
and mortgage. The company subsequently offered to allow
all such subscriptions to be reduced one-half, provided that
when so reduced, they should be payable in cash on call, as
other cash subscriptions. The defendant being largely
indebted to the company, and interested in raising funds for
its immediate use, to relieve himself as far as possible from
responsibility, agreed and promised that if the plaintiff would
accept this proposition, he would hold him harmless, and be
answerable to the corporation for all liability on his subscrip-
tion, and plaintiff accepted it in consequence of this promise,
it was held that the promise was founded on a sufficient con-
sideration, and was not within the statute of frauds.^

Where the promisor has funds in his hands belonging ' to
the debtor, from which he has authority to pay a certain debt,
the promise is not within the statute, because it is a promise
merely to pay to the creditor what he would otherwise be
bound to pay to the debtor in satisfaction of his own debt ;
and the same is true where the promise is conditional, as, to
pay, if he receives funds of the debtor to the amount of the
debt. In such case, while there is no obligation to pay
unless the condition is fulfilled, yet if the condition is ful-
filled the promise is operative and not within the statute,
because the debtor's own funds are relied upon for payment.^

1 North V. Eobinson 1 Duv. (Ky.) by applying the amount of their sub-
71. scriptions thereto ; and in case the

2 Clymer u. De Young, 54 Penn. amount so furnished should exceed
St. 118 ; May v. Nat. Bk. of Malone, their subscriptions, such excess should
9 Hun (N. T.) 108; Wyman v. Smith, be paid iu cash by the society, which
2 Sandf. (N. Y.) 331 ; Calkins u. cash and subscriptions cancelled were
Chandler, 35 Mich. 320 ; McKeenan to be charged by the society to such
V. Thissel, 33 Me. 368; McLaren v. contractor as payment upon such
Hutchinson, 22 Cal. 187 ; Nelson v. contract. The agreement was made
Hardy, 7 Ind. 364 ; Corbin v. McChes- known to the society, and assented to
ney, 26 111. 231. In the Consociated by the building committee ; aiid rely-
&c. Society v. Staples, 23 Conn. 543, a ing upon their promise, the parties
contractor for the erection of a meet- aforesaid furnished the material and
ing-house for an ecclesiastical society labor. The court held that the prom-
applied to C, D, and E for materials ise was not within the statute nor void
and labor, each of whom had pre- for want of a consideration. Hin-
viousbj subscribed certain sums towards man, J., said : " This was not a, prom-
the cost of said house, and agreed that ise to pay the debt of another; it was
the society might pay them therefor a promise by the society to paij their own

SEC. 144.]

GUAEANTIES.

247

But a promise to pay out of funds of the debtor without his
assent is within the statute. Thus, A being, indebted to B,
C verbally promised to B to pay him the sum, and charged

debt to Hawley and Wheeler, or a por-
tion of it to the several claimants, and
it was made in consideration of the
extinguishment of the claimants' de-
mands against Hawley and Wheeler.
The agreement between Hawley and
Wheeler and the claimants, assented
to by the society, operated to extin-
guish the claimants' demands against
Hawley and Wheeler, and as an assign-
ment of them to the society." Standi
V. Hine, 45 Penn. St. 187 ; Ladd v.
Tobey, 29 Me. 219 ; Lucas v. Payne,
7 Cal. 92 ; Hitchcock v. Lukens, 8
Port. (Ala.) 333; Loomis v. Newhall,
15 Pick. (Mass.) 159; Andrews v.
Smith, Tr. & G. 173. A promise by
the purchaser of real estate or per-
sonal property to pay a part or the
whole of the price to certain cred-
itors of the vendor, is a promise to
pay his own debt, and not within the
statute. Blair &c. Land Co. v. Walker,
39 Iowa, 406 ; Lester v. Bowman, 39
id. 611 ; Chamberlain v. Ingalls, 38
id. 300. In Davis v. Banks, 45 Ga.
138, A, a merchant indebted to B and
C, sold his goods to B for more than
his indebtedness to him. While B
was removing them from the county,
C threatened to attach them, and,
thereupon, B orally promised C that
if he would not attach the goods, he
would pay to him the surplus arising
from the sale of the goods over and
above his debt. It was held that this
was an original undertaking, and not
within the statute. Where one as-
signee for the benefit of creditors,
having collected money for the estate,
in compliance with a previous agree-
ment with his co-assignee, conveys
property to a third person, upon the
condition that the latter shall pay
the co-assignee the sum collected,
and such person afterwards promises
the co-assignee to pay it to him, such
promise is founded upon a sufficient
consideration, and is not within the
statute of frauds. Perkins v. Hitch-

cock, 49 Me. 468. In McCartney v.
Hubbell, 54 Wis. 360, by the terms of
the contract, C was to sell chattels to
B, and B was to pay him therefor by
an order for goods on A, and a note
to be executed by A to C. It was
held that as the contract on its face
appeared to have been made for A's
benefit, his mere approval of it created
no liability on his part ; but the ques-
tion still was whether, before such con-
tract was made between B and C, he
promised to pay C, and whether the
contract was made and the property
delivered to B in reliance upon such
promise. But if A sells goods to C
in part payment of such claim, this
circumstance is evidence for the jury
upon the question whether he did not
originally promise to pay the debt.
An entire stranger to a contract can-
not make himself liable thereon by a
subsequent " ratification and adop-
tion," but only by some new contract
upon a new consideration, such as a.
a guaranty of performance upon con-
sideration or an assignment, and that
new contract is within the statute of
frauds. Ellison v. Jackson &c. Co., 12
Cal. 542. Where the owner of nego-
tiable paper sells it, and accompanies
the sale by a guaranty of collection
thereon, it is not necessary to the
validity of such guaranty that the
name of the guarantee should appear
in it. A guaranty so given is not
within the statute of frauds. Thomas
V. Dodge, 8 Mich. 51. A assigned a
bond against B to C, to enable him to
obtain goods on the credit of the as-
signment, and guaranteed the pay-
ment of the bond by an indorsement
on the back thereof signed by his
name, and goods were obtained on the
credit of the indorsement and guar-
anty. It was held that this was not
an undertaking for the debt of another
within the statute of frauds. Hopkins
V. Richardson, 9 Gratt. (Va.) 485.

248 STATUTE OF FKAtTDS. [OHAP. IV.

it to A -without his consent. It was held that the promise
was within the statute, and must be in writing, to be binding.^

Sec. 145. when Promise Cannot be Revoked. — Where a
valid promise is made by one having property in his
hands left with him by the debtor for that purpose to pay
his debt to another, the promisor is not relieved therefrom by
instructions subsequently given to him by the person prom-
ised for, not to pay the debt. Thus in May v. the National
Bank of'Malone^ it appeared that the firm of Townsend &
Hyde were indebted to the firm of May & Co. in the sum of
$2,738.78, for which the latter firm held the note of Town-
send & Hyde, payable at the defendant bank. Tliis note
became due Feb. 23, 1876, and on that day was presented
there by the National Hide and Leather Bank of Boston for
payment, which was refused ; whereupon the note was pro-
tested and returned to the Boston bank by George Hawkins,
the cashier of the defendant, by mail, with notice of protest
attached thereto. On the 6th of March, 1876, Townsend &
Hyde wrote to said George Hawkins as follows : .

" Dear Sm, — We send by this mail our note to Mr. A.
White, for him to indorse and hand to you, for f 2,879.

" We want you to discount it for us to pay the May & Co.
note, due February twenty-third, which amounts to $2,777.40,
and interest from the twenty-third day of February, and hand
Mr. White the notes we sent you, 1 3,000, for him to hold as
collateral ... It will be a very great accommodation to us
if you will discount this note, and send draft to May & Co.
for the note due them February 23, 1876.

" Very truly yours,

"Townsend & Hyde."

On the 8th of March, 1876, said White presented the note
at said National Bank of Malone, and after he had indorsed
it delivered it to Hawkins to be' discounted by said bank to
pay May & Co.'s note. Thereafter, on the 10th of March,
1876, a communication was forwarded by Hawkins to said
May & Co., at Boston, as follows :

1 Eichardson v. "Williams, 49 Me. = 9 H\m (N. Y.) 108.
568.

SEO. 145.] GUARANTIES. 249

" Messrs. May & Co.:

" Forward to me the past due note of Townsend & Hyde, and I
will pay it.

"George Hawkins,

" Cashier."

On the same day a communication was forwarded by
Hawkins to Townsend & Hyde as follows :

^^ Messrs. Townsend & Hyde :

" Dear Sirs, — Your favor of the is received. I have

written to May & Co. to return your note to me for payment,
we having done as requested in yours of the sixth.

" Yours, etc.,

".George Hawkins,

" Cashier."

In obedience to the directions contained in the communica-
tions of Hawkins, on the 13th day of March, 1876, at 1 o'clock
in the afternoon, that being the same day upon which the
communication from Hawkins was received by May & Co.,
they returned the protested note of $2,743.78 of Townsend &
Hyde to the National Bank of Malone, by depositing the same
in the post-office at Boston, addressed to George Hawkins,
cashier of said National Bank of Malone, postage paid, with
the following letter of instructions :

"Boston, March 13, 1876.
" George Hawkins, Esq., Cashier National Bank of Malone:

" Dear Sir, — In obedience to your pc. of tenth March,
we inclose note Townsend & Hyde, $2,743.78, and interest
from 20th October, 1875. Protest fees $1.14, for which
please send us check on New York or Boston, and oblige,

" Yours truly,

"May & Co."

On the 13th day of March, 1876, at seven and a-half o'clock
in the evening, and after the closing of said National Bank
of Malone for that day, but before the protested note sent by
May & Co. had reached the bank in return, a telegram sent
by said Townsend & Hyde from Cortland, N. Y., at 5.16
o'clock of the afternoon of that day, was delivered to Hawkins,
addressed to him, which read as follows :

250 STATUTE OF FRAUDS. [CHAP. IV.

"CoETLAND, N. Y., March 13, 1876.
" To Qeorge Hawkins, Cashier, Malone:

" Do not pay the May note. I will be at home to-morrow.
(Signed.) "W. H. Hyde."

On the 15th day of March, 18T6, Townsend & Hyde
personally instructed Hawkins not to pay the May & Co.'s
note, and on the 16th day of March, 1876, payment of the
note was again refused at the defendant bank, and the same
was returned to May & Co. unpaid. The note of |2,789,
made by Townsend & Hyde, and indorsed by Abram S.
White, and by him delivered to the defendant to pay the
May & Co.'s note of |2,743.78, remained in the possession of
the bank up to the tinje this action was brought, and no
entries in relation thereto were ever made in the books
thereof. Boardman, J., in delivering the opinion of the
court, said : " If the contract of defendant could be consid-
ered as governed by the statute of fraiids, it would still be
good and binding. It is in writing, and signed by the party
to be charged. The signature by the cashier of the defendant
is sufQcient under this statute.^ But the contract was not
within the statute of frauds. It was an original undertaking
by the defendant, founded upon an adequate consideration
moving from Townsend and Hyde to it, to pay the debt of
Townsend & Hyde to the plaintiffs. The proceeds of the
note discounted by defendant for Townsend & Hyde were
held for plaintiff — were put in defendant's hand to pay
plaintiff with, and defendant had assumed and promised to
pay such debt therewith. The discounting of the note is
admitted by defendant. This takes the case out of the statute
of frauds. The distinction between original and collateral
promises is fully considered and explained in the following
leading cases in this State : Leonard v. Vredenburg ^ and
Mallory v. Gillett.^ From the distinctions therein pointed
out, it is apparent that this is an original undertaking, and
can be enforced by the plaintiffs. Many of the cases cited and
commented upon by the learned judges in those cases are ap-
plicable here. I shall cite but one or two. In Barker v. Buck-
lin * it is held that an action may be maintained on promise

1 Dykers v. Townsend, 24 N. Y. 57. = 21 N. Y. 412.

2 8 Johns. 39. * 2 Den. (N. Y.) 45.

SBC. 146.] GUAEANTIES. 251

made by the defendant to a third person for the benefit of the
plaintiff, upon a consideration moving from sucli tliird person
to tlie defendant, and without any consideration moving from
the plaintiff. So in Lawrence v. Fox ^ it is held that an action
lies on a promise made by the defendant upon valid consider-
ation, to a third person for the benefit of the plaintiff, although
the plaintiff was not privy to the consideration. Such prom-
ise is to be deemed made to the plaintiff if adopted by him,
though he was not a party nor cognizant of it when made.^ In
the present case Townsend & Hyde had put the defendant in
funds to pay plaintiff's debt, requesting it to pay the same.
The defendant acloiowledges to Townsend & Hyde that it
had done as requested, and had sent for the note to be returned
for payment. It had also, in consideration of such provisions
made, promised the plaintiffs to pay their debt upon the note
being returned to defendant ; but upon its return refused to
do so at the instance of Townsend & Hyde. I think the
means, derived by the bank from Townsend & Hyde's note
discounted by it, were put there for the payment of plaintiffs'
debt, and upon a mutual understanding between the bank
and Townsend & Hyde, to which each agreed, that plaintiffs'
debt should be paid therefrom. By such act the liability of
the defendant was fixed. The bank, however, is still in
possession of the note discounted, and of the funds derived
therefrom. It will not be the loser if compelled to pay. The
assets of Townsend & Hyde will pay the debt."

Sec. 146. Wlien Payable if no Time is Agreed Upon. —
The ground upon which this doctrine rests is that the prom-
ise in such a case is based upon a new and independent
consideration, distinct and apart from the original debt. The
rule, however, is modified by the promise. If the promise is
made in consequence of a debt due from the promisor to the
debtor, or of money placed in his hands by the debtor, and
nothing is said as to the time of payment, the promise is
enforceable instanter ; but if the promise is to pay the debt
out of the proceeds of property placed in the promisor's hands
for that purpose, and is to pay out of the avails of the prop-
erty, liability does not attach until the property has been sold,

1 20 N. Y. 268.

2 See also Barker v. Bradley, 42 N. Y. 316.

252

STATUTE OP FEAUDS.

[chap. rv.

or the promisor by his conduct has made himself the pur-
chaser.i But if he promises to pay out of the property, and
guarantees that it will he sufficient to pay the debt, the promise
is not within the statute, even though the avails thereof prove
insufScient.2 The mere fact that the promisor has funds or
property in his hands belonging to the debtor is not sufficient
to take the case out of the statute, but it must also appear
that they were deposited with him for that purpose, or that he
had authority to so apply them^ and it must he an absolute
promise to pay the debt, and not merely to see it paid if the
debtor does not pay it, or to stand as security for its payment.*

1 Draughan v. Biinting, 9 Ired.
(N. C.) 10. Threadgill v. McLendon,
76 N. C. 24 ; Stanley v. Hendricks, 13
Ired. (N. C.) 86; Hall v. Robinson, 8
Ired. (N. C.) 56; Hicks v. Criteher,
PhilUps (N. C.) Eq. 353.

' Lippincott v. Ashfield, 4 Sandl.
(N. Y.) 611.

» Dilts «. Parke, 4 N. J. L.219;
State Bank v. Mattler, 2 Bos. (N. Y.)
392.

* In Weyer v. Beach, 14 Hun
(N. Y.) 235, Bakkes, J., states the
facts of the case and the law applica-
ble thereto as follows : " It appears
that Beach, the owner, entered into a,
written agreement with the contrac-
tors, Stone & Bassett, by which the
latter agreed to erect a building for
the former on his premises, the con-
tractor to furnish the material there-
for. There was a clause in the agree-
ment which permitted Beach to re-
tain moneys due thereon to Stone and
Bassett for the purpose of paying for
material used by them, and he was
authorized to make such payments
and have them applied as payments
on the contract. Stone & Bassett
then contracted with the plaintiffs for
the brick necessary to erect the build-
ing at a stipulated price per thousand.
After the plaintiffs had made delivery
to Stone & Bassett of a small portion
of the brick they became distrustful
of the latter's responsibility and there-
upon, on meeting Beach, they en-
quired if he would retain moneys on
his contract with Stone & Bassett for

the building of the house, sufficient to
pay for such brick as they should
deliver to S. & B. and pay them there-
for, in case they would keep him in-
formed from time to time of the
amount remaining unpaid. Accord-
ing to the testimony of one of the
plaintiffs. Beach replied that he would
do so ; this, however. Beach flatly de-
nied. Now, in the first place, it be-
comes important to see precisely what
the arrangement was between the
parties, if any was in fact made ; and
in determining this fact we are not
concluded by the decision of the
referee, though there was a conflict
of evidence, but it becomes our duty
on the appeal to examine the case
de novo on the proof submitted. Such
seems now to be the rule laid down
by the Court of Appeals. Godfrey v.
Moser, 66 N. Y. 250. We must there-
fore examine the evidence and deter-
mine the nature and extent of the
alleged contract between the parties
for ourselves.

The plaintiff Weyer alone testified
to the arrangement on the part of the
plaintiffs. He gave the conversation
between himself and the defendant,
Beach, as follows : ' I asked him if I
should keep him posted as to what
they (S. & B.) owed me, whether he
would keep money enough back out
of his contract to pay me. Mr. Beach
said he would. I said I would com-
mence drawing, and he said all right.'
This occurred after some of the brick
had been delivered. On his cross-

SEC. 146.]

GUARANTIES.

253

But in this class of cases it is immaterial whether the original
debtor is discharged or not, because the promise is based upon

examination, tlie witness gave tlie
conyersation as follows : ' I asked
him if he would retain money if I
would keep him posted, and he said
he would see me through. I think that
was it ; and I replied, then I can com-
mence delivering brick, and he said
all right ; this was all there was said.
... I am sure that the remark of
Beach was, " I will see you through."
The witness also testified to various
facts, showing that the plaintiffs made
the delivery to Stone & Bassett on
their contract. He (Weyer) called
on them for payment, and obtained
payment of part from or through
them; and on one occasion he told
Beach that he 'would not have drawn
the brick if he (Beach) had not agreed
to be security.' Besides in the notice
which stands as a pleading, the plain-
tiffs state that the brick were fiirnished
to Stone & Bassett. Thus it is made
entirely certain that there was no
surrender or abandonment of the first
contract for the brick, made between
the plaintiffs and Stone & Bassett. This
contract was not terminated or super-
seded by the alleged agreement be-
tween the plaintiffs and Beach. It
continued in force, and the brick was
delivered under that contract. It must
follow then that the alleged arrange-
ment between the plaintiffs and Beach
was collateral to it, and was in the na-
ture of a guaranty of its performance
by Stone & Bassett as to payment.
And so the plaintiff, Weyer, who made
the arrangement understood it. He
testified that he told Beach that he
would not have drawn the brick if he
(Beach) had not agreed to be 'se-
curity.' Such is the plain import of
his evidence. He says, 'I asked him
if I should keep him posted as to
what they owed me' — (that is, as to
the amount Stone & Bassett should
become indebted on the brick con-
tract from time to time) ' whether he
would keep money enough back out
of his contract to pay me ; ' and when

afterwards he called the defendant's
attention to the conversation, he said
he should not have drawn the brick
had he (Beach) not agreed to be
' security.' It is very manifest that
the plaintiff, Weyer, understood the
arrangement as one of security on the
part of Beach ; that is, that he (Beach)
would be responsible for whatever
amount Stone & Bassett should fail
or omit to pay. Tlierefore, accepting
the arrangement or promise to be as
proved by the plaintiffs, it was a
promise to answer for the debt or
default of Stone & Bassett; hence,
having been oral merely, it was void
by the statute of frauds. The statute
declares that every special promise to
answer for the debt, default, or mis-
carriage of another person shall be
void, unless such agreement, or some
note or memorandum thereof, be in
writing, and subscribed by the party
to be charged therewith. It is said
in Brown v. Weber, 38 N. Y. 187, that
the language employed in the statute
shows that the test to be applied to
every case is, whether the party
sought to be charged is the principal
debtor, primarily liable ; or whether
he is only liable in case of the default
of a third person. In Cowdin v.
Gottgetreau, 55 N. Y. 650, it is laid
down, that while a person may be-
come liable upon a parol promise for
goods purchased which are delivered
to and are intended for the use of
another, in order to make him so, the
debt must be his only; he must be
exclusively liable therefor. In Duffy
V. Wunsch, 42 N. Y. 243, A promised
to pay the debt of B, if C would dis-
continue a suit for its recovery, then
pending against B. The promise was
held to be within the statute of frauds
and void. Lott, J., in this case, re-
marked, that the promise was not
made or accepted in the place or as a
substitute of the original debt, or in
its extinguishment; on the contrary,
B continued liable for the amount or

254 STATUTE OF PKATJDS. [CHAP. IV.

a consideration entirely independent of it.^ The distinction
between promises of this character and those having no
independent consideration is illustrated by Pearson, C. J.,^
as follows : " The principle," says he, " is this, when in consid-
eration of the promise to pay the debt of another the promisor
receives property and realizes the proceeds, the promise is not
within the mischief provided against, and the promisee may
recover on the, promise or in an action for money had and
received. For although the promise is in words, to pay the
debt of another and the performance of it discharges the debt,
still the consideration was not for the benefit or ease of the original
debtor, but for a purpose entirely collateral, so as to create an origi-
nal and distinct cause of action." In Threadgill v. McLendon,
ante, the question as to whether liability upon a promise to
pay the debt of another attaches where property is placed in
the hands of the promisor for the purpose of paying a debt,
until the property is converted into money, was considered,
and a distinction was made in this respect between what is
denominated " a cash article " and one which is not. In that
case the plaintiff furnished supplies to a cropper of the
defendant upon a promise of the defendant to pay for the

balance thereof which the defendant for the default of Stone ^ Bassett
agreed to pay. So here the promise by in making payment as they had agreed.
Beach, as testified to by the witness, was Not haying been made in writing, it
not made or accepted in place of, or as a was void by the statute of frauds.
substitute for, the original contract be- Nor does the clause in the agreement
tween the plaintiffs and Stone ^ Bas- between Stone & Bassett and Beach,
sett, or in extinguishment thereof; on the by which the latter was at liberty to
contrary, Stone & Bassett continued retain money which should become
liable for the amount or balance due the former thereon, and apply it
which Beach agreed to pay. See also in payment for materials • used by
Mallory v. Gillett, 21 N. Y. 412 ; Loonie them in erecting the building, aid the
u. Hogan, 9 N. Y. 435 ; Larson v. Wy- plaintiffs' case. This was merely per-
man, 14 Wend. (N. Y.)246; Payne w. missive as to Beach, not obligatory
Baldwin, 14Barb. (N.Y.) 570. No new on him; and this clause in no way
terms of payment or conditions of de- validated his otherwise invalid prom-
livery were agreed upon, or even con- ise."

sidered, between the plaintiffs and de- i Fitzgerald v. Dressier, 7 C. B.

fendant. The contract with Stone & (N. S.) 374; "Wait ». Wait, 28 Vt. 350 ;

Bassett determined all that, and it was Olmstead v. Greenly, 18 John. (N. Y.)

to continue in force. Delivery of the 12; Mitchell v. Griffin, 58 Ind. 559;

brick and payment therefor was to be Burr v. Wilcox, 13 Allen (Mass.) 269 ;

made according to its terms, and the Young v. French, 35 Wis. Ill ; Fish

promise of the defendant, according v. Thomas, 5 Gray (Mass.) 45; Wells

to the proof, was this, in legal effect : v. Brown, 118 Mass. 137.

That he would answer to the plaintiffs ^ Stanley v. Hendricks, ante.

SEC. 147.] GUARANTIES. 255

same. Afterwards the promisor took into his possession
cotton belonging to the cropper, and sufficient to pay the
plaintiff's account, and thereafter promised to pay the same.
In an action to recover the debt of the promisor it was held
that the promise was not within the statute, and that the
defendant was liable for the reason that the promise was not
made as surety for the cropper, but for himself, because the fund
out of which the debt was to be paid was in his hands. It was
insisted by the defendant's counsel that the case did not come
within the principle involved in the rule stated supra, because
the cotton had not been sold, but the court held that a distinc-
tion existed in this case because cotton was a cash article, and
could readily be converted into money, and had a fixed and
standard money value. But we cannot believe that the rule
adopted in this case can be sustained, except the jury find,
as a fact, that the promisor was a purchaser of the cotton,
or agreed to pay absolutely without reference to its sale, or
that he unreasonably delayed- making the sale. The court
must enforce the contract made by the parties, and has no
power to make one for them.

Sec. 147. Parting with Security or Giving up a Lien. —

In an English case ^ it was held that where a person parts
with securities or gives up a lien which he has for a debt,
upon the strength of a verbal promise by a third person,
the promise is not within the statute whether such prom-
ise inures to the benefit of the promisor or not. In that case
certain carriages belonging to one Copey were sent to the
plaintiffs by the defendant to be repaired, and the defendant
gave the orders respecting them. The bill for the repairs was
made out in the name of Copey. When the carriages were
repaired the defendant sent an order to pack them and send
them on board ship. The plaintiffs thereupon sent to him to
know who was to pay for them. The defendant said he had
sent them and would pay for them. In reliance upon this
promise the carriages were packed and sent on board ship,
and a bill made out and delivered to the defendant. After
having called for the pay several times without avail, this
action was brought, and Loed Eldon held that the defend-

1 Houlditch V. Milne, 3 Esp. 86.

256 STATUTE OF FEAUDS. [CHAP. IV.

ant was liable irrespectiye of the question -whetlier credit was
given solely to the defendant or not. He said : " In general
cases, to make a person liable for goods delivered to another,
there must be either an original undertaking by him, so that
the credit was given solely to him, or there must be a note in
writing. There might, however, be cases where the rule does
not apply. If a person gets goods into his possession on
which the landlord had a right to distrain for rent, and he
promised to pay the rent though it was clearly the debt of
another, yet a note in writing was not necessary ; it appeared
to apply precisely to the present case. The plaintiffs had, to
a certain extent, a lien upon the carriages which they parted
with on the defendant's promise to pay. That, he thought,
took the case out of the statute, and made the defendant
liable for the bill." In this case it will be observed that the
defendant derived no advantage from the discharge of the
lien, and that Copey was not discharged from his liability for
the debt, and we believe that .the case does not express a
correct rule of law, and it never has been adopted in England,
and in but few of the courts of this country. The promise of
the defendant could not in any sense be said to be predicated
upon a new and independent consideration, unless, indeed, as
was intimated in the case, but not shown, Copey had placed
money in the hands of the defendant to pay the bill. It is
intimated in a note to Forth v. Stanton ^ that the doctrine of
this case may be reconciled with the other English cases,

^ Forth V. Stanton, 1 Wm. Saund. lie would relinquish his right to col-

211 b. In Gull V. Lindsay, 4 Exchq. lect the freight, they would pay him

45, the plaintiff was a ship broker, his commission. Relying upon this

and was employed by the owners of promise, the plaintiff relinquished

the " Mathesis " to procure for them such right. The plaintiff had a rer-

a charter of the ship, upon the times diet, but was set aside. Pollock, C.

that he should be entitled to receive B., saying : " We think the def end-

the freight, and satisfy himself out of ants' counsels were right in saying

it for his commission. He procured that this contract was a contract made

a charter party, and the ship sailed to pay the debt of another within the

on her voyage, and returned to Eng- statute of frauds. It was not a case

land. Before her return, a change in of transfer of liability as if A had

the ovmership of some of the shares agreed to accept C, a debtor of B,

of the ship had transpired, and the as his debtor in lieu of him. It is

defendants, who were the brokers of plain that, although the defendants

the new owners, — the plaintiffs being agreed to pay the plaintiff, yet the

about to collect the freight, being debt to him still remained due from

anxious to gain possession of the the owners by whom he was retained."
ship, — promised the plaintiff that if

SEC. 147.] GUARANTIES. 257

because it appears from all the circumstances that the sole
credit was given to the defendant, and that the real owner of
the carriages was not at all liable. But this statement is
forced and without support, as it appears that credit was
given to the owner of the carriages because the bill was made
out in his name, and the plaintiffs seem to have regarded him
as their debtor, and not until the order for the shipment was
given, and the defendant made the promise rehed upon, did
they ever regard or treat him as their debtor ; and the fact that
the bill was made out in the name of Copey shows that they
clearly understood that the work was being done . for him,
although performed upon the order of the defendant, and the
court makes no mention of any such grounds for its decision,
showing that it had no influence thereon, and while the result
reached may have been correct upon the ground that the
defendant, from what he said to the plaintiffs when asked'
who was to pay the bill, may have made himself chargeable
as original debtor. Yet this has no tendency to reconcile the
doctrine of the case with that of other English cases, because it
is not the ground upon which the court proceeded, and there
can be no question but that the real doctrine of the case is
that where a person discharges a lien upon property which he
holds as security for a debt, upon the promise of a third
person to pay the debt if he will do so, the promise is not
within the statute.^

Upon what Lokd Eldon says in reference to the liability
of a person who gets goods into his possession on which the
landlord had a right to distrain for rent, who to prevent a
distress promises to pay the rent, it is'evident that he intended
to follow the doctrine laid down in Williams v. Leper,^ and

' In Briggs v. Evans, 1 E. D. S. held that the defendant's promise was

(N. T. C. P.) 192, the doctrine of an original undertaking.
Houlditch u. Milne was followed. In ^ W'illiams v. Leper, 3 Burr. 1886;.

that case the plaintiff manufactured In Blackford «. Plainfield Gas- Co., 43;

some furniture for A; but before N. J. L. 438, the holder of an execu-

delivery, presented the bill to A ; and tion levied on personal property on

he being unable to pay it, the plaintiff which, by statute, the landlord had a

refused to deliver the furniture. But lien for rent, promised the landlord

at A's request, he went with him to that if he would waive his rights un-

see the defendant, who took the bill der the statute, and: allow the property

and promised to pay it, thereupon the to be sold', he would pay the rent;

plaintiff delivered the furniture, and and it was heM. that tlie promise was-

charged it to the defendant. It was not withini the- statute. In Coquard

258 STATUTE OP FKAtTDS. [CHAP. IV.

that his ruling resulted from a misapprehension o£ the doctrine
of that case. But the points of distinction between the two
cases are marked. It will not be advisable to give that case
in full here, as the gist of it is given in another section ; and
from the facts as there stated, it will be seen that the defend-
ant Leper held the goods of the original debtor in his posses-
sion under a bill of sale from the debtor, who was a tenant
to the plaintifP, and largely in arrears for rent, to be sold for
the benefit of his creditors. While Leper so held the goods
the plaintiff was about to distrain them for the rent, where-
upon the defendant promised him that if he would not
distrain he would pay him the £45 due for rent, and upon
the faith of that promise the plaintiff did not make the
distress. Loed Mansfield, C. J., said : " The res gestae
would entitle the plaintiff to his action against the defendant.
The landlord had a legal pledge. He enters to distrain ; he has
the pledge in his custody. The defendant agrees that the
goods shall be sold and the plaintiff paid in the first place.
The goods were the funds. The question was not between
Taylor, the tenant, and the plaintiff, the landlord. The plain-
tiff had a lien on the goods, Leper was a trustee for all the creditors,
and was obliged to pay the landlord who had a prior lien. This has
nothing to do with the statute of frauds." Wilmot, J., said :
" Leper became the bailiff of the landlord, and when he had
sold the goods, the money was the landlord's (as far as £45) in his
own bailiffs hands. Therefore an action would have lain
against Leper for money had and received to the plaintiff's
use." It was not even intimated in this case that the sur-
render of the lien by the plaintiff gave validity to the defend-
ant's promise, or that a recovery could be had upon that
ground, but the defendant's liability was placed upon the
ground that the defendant, being a trustee for all the cred-
itors, was obliged to pay the plaintiff who had the prior lien,
and Aston, J., regarded the goods as the debtor, as a fund
between both, and thought that the defendant was not bound

V. Union Depot' Co., 10 Mo. App. 261, if it was sent to him C. O. X). The

the plaintiff's wife, while travelling, trunk was so sent, when, instead of

pledged her trunk to the conductor settling the claim, the plaintiff re-

f or the fare of a child travelling with plevied it. The court held that the

her; and the plaintiff — her husband promise to pay the claim was not

— afterwards agreed with the baggage- within the statute, and that he could

master to settle the claim for the trunk not recover in the action.

SEC. 148.J GtJAEAOTIES. 259

to pay the landlord more than the goods sold for. In this
case the defendant had the custody of the goods, coupled with
an interest and a right to sell them, while in the case of
Houlditch V. Milne the defendant neither had an interest in,
or the possession of the goods, or the right to sell them.

Sec. 148. Rule in Maine. Stewart v. Campbell. — There
are several early American cases in which the doctrine of
Houlditch V. Milne was adopted,^ but that doctrine is not
generally held by our courts, and the relinquishment of a lien
upon the verbal promise of a third person to pay the debt, is
held not to be operative unless the person making the promise
has an interest therein, and derives some benefit and advan-
tage therefrom, and in some of the cases it is held that the
promise is collateral, notwithstanding the promisor derives an
advantage therefrom, unless the lien is extinguished, and the
original debtor is discharged from the debt. Thus in a Maine
case,^ in which the plaintiff had a debt against D, and a lien
therefor upon the defendant's vessel, S, being pressed for
money by the plaintiff, told him that he should have his lien-
claim on the vessel, to be enforced if D did not pay it. The
defendant hearing of this, and not desiring that his vessel
should be stopped, verbally promised the plaintiff that he
would pay S's claim if D did not. The plaintiff did not
discharge S, nor did S release D or his lien on the vessel,
although he did not enforce it as he would have done but for
the expectation raised by the defendant's promise that the
claim woidd be paid to the plaintiff. D afterward collected of
the defendant, but did not pay the plaintiff. It was held that
the promise was within the statute, and the ground upon
which the coiirt based the doctrine was that the plaintiff did

1 Tindal v. Touchberry, 3 Strobh. he had a lien for repairs, and upon

(S. C.) L. 177; Dunlap v. Thome, 1 B's oral promise to pay for the repairs,

Rich. (S. C.) L. 213; Adkinson w.Bar- delivered it to A, it was held that the

field, 1 McCord (S. C.) L. 575; Sian v. promise was within the statute. Mal-

Pigott,lN.&McCord(S.C.)124; Slin- lory v. Gillett, 21 N. Y. 412; over-

gerland v. Morse, 7 John. (N. T.) 463 ; ruling Watson v. Parker, 1 Hun CS. Y.)

Merceiu v. Andrus, 10 Wend. (If. Y.) 618 ; and Fay v. Bell, Lalor's Sup.

461; Stewart v. Hinkle, 1 Bond (U. (N..Y.)251.

S. C. C.) 506. But in New York this « Stewart v. Campbell, 58 Me. 439 ;

doctrine is now repudiated ; and where 4 Am. Kep. 296. See also Brightman

the plaintiff had in his possession a v. Hicks, 108 Mass. 246.
canal-boat belonging to A, upon which

260 STATUTE OF FRAUDS. [CHAP. IV.

not release the lien or his claim against the principal debtor, so
that the promise of the defendant was merely collateral, and
not binding unless in writing.^

Sec. 149. General Rule. — In Massachusetts a difFerent
rule is adopted, and when the owne? of a vessel, sub-
ject to a lien for a debt incurred, agreed verbally with
the holder of the lien that if he would forbear enforcing
it, he would pay the debt, the court held that the promise
was an original undertaking, and that whether the lien was
absolutely abandoned or not. "By permitting the vessel
to go to sea," said Soulb, J., "and forbearing to enforce
their lien, the plaintiffs abandoned /or the time being, at least,
the advantage which their lien gave them for securing their
Aehts, for the benefit of the defendant, who thereby gained the
opportunity to send his vessel to sea, and put her beyond the
jurisdiction of the courts of this Commonwealth, so that they
could not enforce their lien." ^ In this case,while the defendant
had a direct interest in having the lien discharged, yet it does
not appear that the lien was absolutely discharged, or that the
original debtor was released from the debt. Therefore the doc-
trine announced in it is directly opposed to that adopted in the
Maine case, ante, but comes clearly within the rule stated in the
text as well as in accord with the doctrine generally held in the
several- States of this country,^ and as announced by Shaw,

1 In Spooner v. Dunn, 7 Ind. 81, ^ Hodgkins v. Henney, 15 Minn,
it was held that where a creditor re- 185; Arnold v. Stedman, 45 Penn. St.
leases a specific lien which he has 186 ; Corkins v. Collins, 16 Mich. 478 ;
upon property upon the faith of a Smith v. Sayward, 6 Me. 504 ; King v.
third person to pay the debt, the Despard, 5 Wend. (N. Y.) 277 ; Whit-
promise is not within the statute, field v. Potter, 10 Bos. (N. Y.) 226;
See also, to same effect, Dunlap v. Young v. French, 35 Wis. Ill ; Cross
Thome, 1 Rich. (S. C.) L. 213 ; Plum- v. Richardson, 30 Vt. 641; Lampson
mer v. Lyman, 49 Me. 229 ; Arnold v. v. Heartt, 28 id. 697 ; Boyce v. Owens,
Stedman, 45 Penn. St. 186; Fay v. 2 McCord (S. C.) L. 208; Krutz v.
Bell, H. & D. Suppt. (N. Y.) 251. Stewart, 54 Ind. 178; Scott i'. Thomas,

2 Fears v. Story, 131 Mass. 47. But 2 111. 58 ; Crawford v. King, 54 Ind.
see Brightman v. Hicks, 108 id. 246, 6 ; Spooner v. Drum, 7 Ind. 81 ; Luark
where it was held that an oral promise v. Malone, 34 id. 444 ; Scott v. White,
made to a creditor by whom property 71 III. 287 ; Mallory v. Gillett, 23
subject to a lien for the debt is trans- Barb. (N. Y.) 610; Stem v. Drinker,
ferred by the iebtoT- without any re- 2 E. D. S. (N. Y. C. P.) 401; Fay u.
lease of the creditor's claim, either on Bell, H. & D. Suppt. (N. Y.) 251 ; Van
the debtor or the property, is within the Slyck v. Pulver, id. 47 ; Alger v. Sco-
statute. ville, 1 Gray (Mass.) 391; Burr v.

SEC. 150.J GUARANTIES. 261

C. J.,^ that where the plaintiff, in consideration of the defend-
ant's promise, has relinquished some lien, benefit, or advan-
tage for securing or recovering his debt,- and where by means
of such relinquishment the same interest or advantage has
inured to Ihe benefit of the defendant, the defendant's promise
to pay the debt is an original undertaking and not within the
statute ; and in that case this rule was applied to uphold an
action against the owner of a building who, in consideration
that the builder would release him from the further perform-
ance of a building contract, and assign to him the materials
procured for the completion of the contract, verbally prom-
ised to pay the outstanding bills due from the builder for
labor and material. In another case ^ one of the owners of a
ship orally promised to pay a claim for labor and materials
furnished for her construction, and charged to the builder in
case a libel to enforce a lien upon a similar claim should be
enforced in admiralty, if the plaintiff would forbear to enforce
his claim, and it was held that the promise was not within
the statute whether the plaintiff actually had a lien or not.*
It is not enough that a benefit or advantage may incidentally
inure to the promisor from the release of a lien, but it must
appear that such advantage was the object or consideration
of the promise.*

Sec. 150. Promisor must Derive Benefit Therefrom. — In

cases of this character, in order to take a verbal promise
out of the statute, the person making the promise must not only

Wilcox, 13 Allen (Mass.) 269; Fish interest of the other part owners, was

V. Thomas, 5 Gray (Mass.) 45; Dexter within the statute.
V. Blanchard, 11 Allen (Mass.) 400; * Clapp v. Webb, 52 Wis. 638 In

FuUam v. Adams, 37 Vt. 391 ; Kelsey Mallory v. Gillett, 21 N. Y. 412, the

V. Hibbs, 13 Ohio St. 340 ; Maule v. plaintiff had a lien for repairs upon a

Bucknell, 60 Penn. St. 340 ; Small v. boat belonging to one A, which he

Schaefer, 24 Md. 143. would not release without payment of

' In Curtis K.Brown, 5 Cush.(Mass.) the debt. The defendant verbally

491. promised, in consideration that the

2 Msh u. Thomas, 5 Gray (Mass.) lien should be released, to pay the

45. plaintiff the amount of the debt, part

^ But see Ames v. Foster, 106 Mass. in hand, and the remainder in two
400, where it was held that an oral equal instalments. The lien was re-
promise made by the mortgagee of a leased, and the part stipulated for
vessel to persons who had furnished paid. But in an action to recover
her with supplies, for which they had the instalments, the court held that
no Uen, If they would not attach the no recovery could be had, as the con-
tract was clearly within the statute.

262

STATUTE OF PEAUDS.

[chap. IV.

liave an interest in having the lien discharged, but the promisee must
release the lien, and accept the promisor as debtor in the place of the
original debtor.^ In. an Indiana case this rule was applied
where the plaintiffs had a statutory lien upon a house for an
amount due them by the defendant, who also had' a lien on
the house for work done on it. The owner of the house, to
prevent a mechanic's lien being filed against it, agreed to pay

1 In Conradt v. Sullivan, 45 Ind.
401, the mortgagee of a chattel verbally
promised the plaintifE — a mechanic
— to pay him for repairs which he
had made upon the chattel after the
mortgage was executed, in conse-
quence of which the plaintifE gave
up his lien upon the chattel, and it
was held that the statute did not ap-
ply. If there is any liability on the
part of the original debtor, it is con-
clusive that the promise is collateral.
Ware v. Stephenson, 10 Leigh. (Va.)
155; Read v. Ladd, 1 Edm. (N. Y.)
Sel. Cas. 100; Cutter v. Hinton, 6
Band. (Va.) 509; Kurtz v. Adams,
12 Ark. 174; Kinloch u. Brown,
1 Rich. (S. C.) 223; Taylor v. Dralce,
4 Strobh. (S. C.) 431; Cropper k. Pit-
man, 13 Md. 190; Knox v. Nutt, 1
Daly (N. Y. C. P.) 213; Walker v.
Eichardson, 39 N. H. 259; Dixon v.
Prazer, 1 E. D. S. (N. Y. C. P.) 32;
Cahill V. Bigelow, 18 Pick. (Mass.)
369 ; Hill v. Raymond, 3 Allen (Mass.)
540; Allen v. ScarfC, 1 Hilt. (N. Y. C.
P.) 209; Hetfield v. Dow, 29 N. J. L.
440 ; Swift v. Pierce, 13 Allen (Mass.)
136; Brown v. Bradshaw, 1 Duer
(N. Y.) 199; Carvilleo. Crane, 5 Hill
(N. Y.) 483; Brady <;. Stackrider, 1
Sandf. (N. Y.) 514. In Eichardson
V. Bobbins, 124 Mass. 105, the de-
fendant, to whom E was indebted, re-
quested a chattel mortgagee of E to
consent to a sale of the chattels to
S, subject to the mortgage, S agreeing
to pay the mortgage debt ; and the
defendant promised the plaintifE that if
he would consent to such sale, he would
pay such part of the debt as S did
not ; and it was held that the promise
was within the statute. In Goelet v.
Farley, 57 How. Pr. (N. Y.) 174, a
verbal agreement by the assignee of

a lease to pay a mortgage on the
premises, was held to be void. But
in Prime v. Koehler, 7 Daly (N.
Y. C. P.), where the defendant pur-
chased premises subject to a mort-
gage, without assuming its payment,
promised the plaintiffs, who were about
to foreclose the mortgage, that if they
would extend the time of payment, he
would pay the interest then due, and
thereafter to become due under the
mortgage, it was held that the prom-
ise was not within the statute. The
distinction bewecn this case and the
two former is that in this case the
defendant had a direct interest in the
subject-matter of the promise, and
derived an immediate benefit there-
from ; while in those cases the prom-
isors had no direct interest, and de-
rived no benefit from the promise.
In Waether v. Merrell, 6 Mo. App.
370, the defendant, who was president
of a bank, promised the plaintifE, who
had money deposited there, that if he
would not draw it out, but allow it to
remain there, he would pay him the
total deposit if the bank should fail.
The plaintiff did not draw out liis
money, and the bank did fail ; but the
court held that the defendant's prom-
ise was within the statute. The officers
of a bank agreed with the payee of a
check, on its presentment, — the bank
then having no funds on deposit to
pay the check, — that if he would de-
posit it in another bank, so tliat it
should be presented for payment
through the clearing house, the banlc
would pay it ; and it was held to be
a propiise to pay the debt of another,
and within the statute. Morse v.
Mass. Nat. Bank, 1 Holmes (U. S.
C. C.) 209.

SEC. ISO.]

GUARANTIES.

263

the plaintiffs; and they, in reliance upon his promise, abandoned
their lien, and the court held that the owner of the house could
not avoid his promise on the ground that it was not in
writing because he derived a benefit and advantage from the
discharge of the lien.^ In a New Jersey case ^ a United States
commissioner, who had taken certain depositions for the son of
the promisor, sent them off upon the promise of the defendant
to pay his fees, and thus lost liis lien thereon ; but the court
held that the detriment from thus losing his security did not
take the case out of the statute, because the promisor derived
no benefit or advantage from the discharge of the lien, and
could not in any sense be said to be a purchaser of the debt.
The fact that there is a good consideration at common law
for the verbal promise, so that it could be enforced if in
writing, does not take the case out of the statute unless the
creditor accepts the promisor as debtor in place of the person on
whose belialf the promise is made,^ or the promise is predicated upon

1 Luark v. Malone, 34 Ind. 444.

2 Cowenhaven v. Howell, .36 N. J.
L. 323. In Hall v. Woodln, 35 Mich.
67, the defendant promised the plain-
tiff, in behalf of several lumbermen
whose logs required the aid of more
water, that if he would raise and let
go the floods, the lumbermen would
pay him, and that he would see him
paid ; and it was held to he a collateral
promise, and within the statute. In
Searight v. Payne, 2 Tenn. Ch. 175, it
was held that the promise of an officer
of a corporation who promised to see
that a bill for goods sold to the corpora-
tion is paid, is within the statute. See
also Whitman v. Bryant, 49 Vt. 512 ;
Gridley !>. Capen, 72 HI. 11. In Durant
V. Allen, 48 Vt. 58, the defendant ver-
bally promised the plaintiff that if he
would not present his bill for doctor-
ing her deceased husband in his last
sickness for allowance by the com-
missioners, she would pay it, to which
he agreed, and did not present the bill.
The deceased had no minor cliildren,
and his real estate was worth less than
$500, and his personal estate less than
$100, and the Probate Court assigned
the whole of the estate to her, she
being entitled thereto as widow under

the statute. It was held that the
promise was within the statute, and
not binding upon her. But such a
promise made by a widow to a cred-
itor of her husband's estate, where
there are assets with which to pay
his debts, is held to be valid, and
not within the statute. Crawford v.
King, 54 Ind. 6. A promise by the
payee of a note to the maker that if
he will delay issuing an execution he
has obtained against a third person,
he will pay the judgment by allow-
ing him credit for the amount on the
note, is within the statute unless in
writing. Krutz v. Stewart, 54 Ind.
178. But in Tennessee it has been
held that a written promise to pay
the debt of another, if the creditor
will for a time delay the issue of an
execution, is valid. Abel v. Wilder,
9 Lea (Tenn.) 453. In Haynes i;.
Burkam, 51 Ind. 130, it was held that
a promise by A to C to sign a bond
as surety for B for the return of cer-
tain United States bonds if C would
loan them to B, which C did, relying
upon such promise, is within the stat-
ute unless in writing.

8 Gill V. Herrick, 111 Mass. 501 ;
Purbush V. Goodnow, 98 id. 296.

264

STATUTE OP FRAUDS.

[chap. rv.

a new and independent consideration moving between the original
contracting parties, so that the promisor can be said to be a
purchaser of the debt, because otherwise the promise is
merely collateral. Thus it has been held that a promise to
pay the debt of a third person against 'vsrhom an action is
pending, and whose property had been attached therein, in
consideration that the promisee will discontinue the suit, the
promisor not being shown to have derived any immediate
benefit therefrom, is within the statute, although the suit is
discontinued, and the creditor thereby loses the benefit of the
attachment.^ The rule in such cases is that when the party
promising has for his object a benefit or advantage which he did not
before enjoy, accruing immediately to himself, and assumes the
debtor' s place as to the payment of the debt, the promise is not
within the statute ; but where the object of the promise is solely for
the benefit or advantage of the person in whose behalf it was made,
as to secure the release of his person or property, or other
forbearance to him, the debtor still remaining liable, it is
within the statute, and void unless in writing.^ In a Ken-

^ Nelsonr.Boynton, 3 Met. (Mass.)
396.

^ Curtis V. Brown, 5 Cush. (Mass.)
488 ; Alger v. Scoville, 1 Gray (Mass.)
391 ; Nelson v. Boynton, ante ; Stone
V. Symmes, 18 Pick. (Mass.) 467;
Harrington u. Rich, 6 Vt. 666 ; Clop-
per V. Poland, 12 Neb. 69. In such
case the promisor assumes the debt
and makes it his own. The promise
is a direct undertaking on the part
of the person promising to pay, not
upon the failure of the debtor to pay,
but to pay the debt. Such a contract
rests upon the same grounds as a con-
tract for property sold and delivered,
andis not collateral. Pitzgeraldw.Mor-
rissey, Neb. S. C. 1883. In Reed v. Hol-
comb, 31 Conn. 330, the defendant, in
taking a note from a firm that was in-
debted to him, had it made payable to
the order of the plaintifE. This was
done for the purpose of getting the
plaintiff's indorsement, and that he
might get the paper discounted at a
bank, but was done without consulting
the plaintiff. lie then carried it to the
plaintiff, and requested him to indorse

it, which the plaintiff declined to do,
but did so eventually upon the verbal
promise of the defendant to see the
note paid, and save him harmless. In
making the indorsement the plaintiff
relied solely upon the defendant's
promise and responsibility, and for
his accommodation. The defendant
indorsed the note and took it to the
bank, and procured it to be discounted.
Before it became due, the makers
failed, and the plaintiff had to take
it up. In an action brought by him
to recover the amount of the defend-
ant upon his promise, the court held
that the defendant's promise was not
within the statute. Hinman, J., in
delivering the opinion of the court,
said : " It appears to us that the stat-
ute of frauds does not apply to this
case. We think the defendant never
intended to become the surety of
Prazier, Mills, & Co. in making the
promise that he did make, and that
the plaintiff never intended to accept
of his undertaking as. that of a surety,
or as at all collateral to their liability.
It is often diflBlcult from the mere words

SEC. ISO.]

GTTAEANTIES.

265

tucky case ^ it was held that if the debtor is discharged from
the debt in consequence of the promise of a third person to

1 Jones V. Walker, IS B.Mon. (Ky.) 857.

in which a promise is made to deter-
mine whether any credit was given to
a third person, and the undertaking
therefore collateral to the engage-
ment or liability of such person, or
whether it was a wholly independent
and originally undertaking. In such
cases courts must rely upon the cir-
cumstances of each particular case,
and its general features, in order to
ascertain the intention of the parties,
and how they viewed it, where it is
doubtful whether it was a contract of
suretyship or guaranty, or an original
undertaking. Now in this case the
defendant wished to borrow money
which he could obtain upon the plain-
tiffs indorsement, but could not upon
the note of Frazier, Mills, & Co. with-
out such indorsement, and as he had
their note he preferred that the plain-
tiff should indorse it rather than to
make a new note of his own to be in-
dorsed. But on requesting the plain-
tiff to indorse their note he declined
to do it, on the ground of their want
of responsibility, until the defendant
promised that if he would do it, he,
the defendant, would pay it when due,
and, in case the plaintiff had any-
thing to pay by reason of his indorse-
ment, he would repay the same, and
fully indemnify and save the plaintifE
harmless. This in substance, we think,
was the same as if the plaintiff had
indorsed the defendant's own note to
enable him to raise money upon it.
Of course no one would doubt his
liability on such a transaction. The
plaintiff gave no credit whatever to
the name of Frazier, Mills, & Co.,
but relied entirely upon the under-
taking of the defendant. In principle
it is very similar to the case of Brown
V. Curtiss, 2 N. Y. 226, which, though
in form a promise to answer for the
debt or default of another, was yet
held to be in substance an engage-
ment to pay the guarantor's own debt
in a particular way, and therefore not

within the statute. The section of the
statute, which is supposed to be ap-
plicable to the case, was not intended
to protect parties from any other con-
tracts than those of suretyship, or
guarantee for the payment of some
debt, or the performance of some
duty by a third person. But if no
credit is given to such third person,
and the consideration of the promise
does not move from him, and he is
not to be benefited by it, the statute
did not intend to make void the prom-
ise, because such third person migfat
also be primarily liable for the same
debtor duty. 'If,' says Judge Beon-
SON, in Jolmson v. Gilbert, 4 Hill. (N.
Y.) 178, 'A promise B, upon a suffi-
cient consideration moving wholly be-
tween them, that a stranger will pay
a sum of money, or do any other act,
this is an original undertaking, and
not within the statute ; and it makes
no difference whether the stranger is
under an obligation to do the act or
not' The same principle was stated
in Alger v. Scoville, 1 Gray (Mass.)
391, where it is laid down that ' a
promise, the leading object of which
is a benefit to the promisor, which he
did not before enjoy, is not within the
statute of frauds, although its effect
be to discharge another from an obli-
gation.' If the promise is on a suffi-
cient consideration, moving between
the immediate parties to it, and from
which the promisor is to derive a ben-
efit, in view of which the promise is
made, it then becomes a new and in-
dependent contract existing entirely
between the immediate parties to it.
The benefit which the original debtor
may derive from it is incidental, and
in no respect the object of the parties,
and ought not therefore to affect the
validity of their contract. Cross i/.
Richardson, 30 Vt. 641 ; Leonard v.
Vredenburgh, 8 Johns. (N. Y.) 23. But
in this case there was no benefit what-
ever to the original debtors arising

266

STATUTE OP FRAUDS.

[chap. IV.

pay it, the promise is not within the statute, but when the
person in whose behalf it is made is not discharged, but the
habihty assumed is contingent upon the failure of the original
debtor to pay, the promise is collateral, and within the statute.^

Sec. 151. Discharge of Attachment or Forbearance to Sue,
etc., not Enough, Unless. — A verbal promise to pay the debt of
another, if the creditor will forbear to sue,^ or discontinue a
suit already brought,^ or release an attachment,* or if he will

1 Waggoner v. Gray, 2 H. & M.
(Va.) 603; Noyes v. Humphries, 11
Gratt. (Va.) 643; Ware v. Stephenson,
19 Leigh (Va.) 155.

2 Forth!;. Stanton, 20 Wend. (N.Y.)
201 ; Thomas v. Delphy, 33 Md. 373 ;
Hilton V. Dinsmoor, 21 Me. 410. In
Peabody v. Harvey, 4 Conn. 119, a,
promise made by the indorser of a
note that if the payee would forbear
suing the maker he would pay the
debt, was held to be within the stat-
ute. " A promise on a new considera-
tion," said HosMEK, J., " rests on dif-
ferent principles, and has never been
sustained on the forbearance of a
debtor." Huntington v. Harvey, 4
id. 124; Turner t. Hubbell, 2 Day
(Conn.) 457; Jones v. Walker, 13 B.
Mon. (Ky.) 356; Ellison v. Wisehart,
29 Ind. 32.

° Nelson v. Boynton, ante ; Duffy v.
Wunseh, 42 N. Y. 243 ; Thomas v. Del-
phy, 33 Md. 373. A mere oral promise
by a stranger to an action that he will
pay the debt and costs if the plaintiff
will cease to prosecute the action, is
not an original undertaking, and is
within the statute. Hearing v. Detti-
nan, 8 Phila. (Penn.) 307; AUwin v.
Garbenick, 8 id. 637.

from the plaintiff's indorsement of
their note. Their liability to pay it
was not altered except in respect to
the party to whom it was payable.
It was not discounted by the bank for
their benefit, but for the defendant,
and they obtained nothing in conse-
quence of it. In this respect it is
very distinguishable from the case of
Green v. Cresswell, 10 Ad. & El. 453,
which was principally relied upon by

" Nelson v. Boynton, ante ; Licher
V. Levy, 3 Met. (Ky.) 292. In Russell
V. Babcock, 14 Me. 139, it was held
that a promise to pay the debt of an
execution debtor if the creditor would
delay the collection of the execution,
was not within the statute. But this
doctrine was overruled in Hilton v.
Dinsmoor, 21 id. 410. Shepley, J.,
saying in reference to that rule : " If
this was in reality the ground of deci-
sion in that case, and the abstract of
the reporter is to that effect, we are
constrained to say it is unsupported
by the authorities. And in a later
case, in the same State, Stewart v.
Campbell, 58 Me. 439, Appleton, J.,
in referring to the doctrine adopted in
Russell u. Babcock, ante, said : " This
decision would repeal the statute, and
it has been overruled." In Ames v. Fos-
ter, 106 Mass. 400, it was held that an
oral promise made by a mortgagee of a
part of a vessel to persons who had fur-
nished her with supplies, that he would
pay tlie debt if they wodld not attach
theinterestof the other owners, was col-
lateral, and within the statute. A pro-
mise to pay a tax, if the collector will
not levy, is not within the statute. Al-
len, J., in Goodwin v. Bond, 59 N. H.

the defendant. In that case the bail-
bond, though given at the defendant's
request, was still given for the sole
benefit of the arrested debtor, and the
only object of it was to procure his
liberation from imprisonment. But
in this case the indorsement was for
the entire benefit of the defendant, to
enable him to obtain money upon the
note. The plaintiff had no dealings
with the makers of the note, and re-

SEC. 151.]

GTJAEANTIES.

267

forbear making an attachment,^ unless the promisor derives
a benefit or advantage therefrom peculiar to himself, are
clearly collateral undertakings, and within the statute unless
in writing. A promise in writing to guarantee the debt of
another, in consideration that the creditor will forbear attach-
ing the debtor's property, will not support an action if, at the
time when it was made, the creditor had in fact no right to make
such attachment,^ and the same is true as to a guaranty given
to induce a creditor to forbear proceedings against the debtor
in bankruptcy, because in such cases the consideration fails.^
Where the plaintiff, a broker, had a lien on certain policies of
insurance effected for his principal, for whom he had given
his acceptances, and the defendant promised that he would
provide for the payment of those acceptances as they became
due, upon the plaintiff's giving up to him such policies, in
order that he might collect the money due on them for the
principal ; it was held that this promise was not within the
statute.*

fused to rely on their responsibility at
all; and the sole consideration for the
indorsement being the defendant's prom-
ise to pay, or see that the note was paid
at maturity, it seems very ungracious
now, after he has obtained the money
upon the indorsement, which the plain-
tiff was under no obligation to maJce, to
attempt to protect himself, because
the promise was not in writing." See
also Dyer c. Gibson, 16 Wis. 557;
Meech v. Smith, 7 Wend. (N.Y.) 315;
Danver v. Blackney, 38 Barb. (N. Y.)
432; Mason v. Hall, 30 Ala. 599;
Cross t>. Richardson, 30 Vt. 641 ;
Spann v. Baltzell, 1 Fla. 301; Allen
V. Thompson, 10 N. H. 32 ; Scott v.
Thomas, 2 HI. 59; Lemmon v. Box,
20 Tex. 329; Huber v. Ely, 45 Barb.
(N. Y.) 169; Todd v. Tobey, 29 Me.
219; Small v. Shaeffer, 24 Md. 143;
Hindman u. Langf ord, 3 Strobh. (S. C.)
207. In Talman v. Eochester City
Bank, 18 Barb. (N. Y.) 123, where a
bank guaranteed to a trust company
the final collection of certain instal-
ments, to become due upon a bond
and mortgage assigned by a debtor of
the bank to the trust company, and

upon which the trust company ad-
vanced money to be applied by the
debtor to the payment of his debt to
the defendant bank, and which was
so applied, it was held that the de-
fendant was liable upon its guaranty.

1 Waldo V. Simonson, 18 Mich. 345.

2 Smith V. Easton, 54 Md. 138; 39
Am. Rep. 355. In Ecker v. Bohn, 45
Md. 278, it was held that while for-
bearance to proceed against a person
in bankruptcy is a good considera-
tion for the promise of a third per-
son to pay the debt, yet, if the cred-
itor had in fact no right to take such
proceedings, the consideration failed,
and no action could be maintained
upon the promise.

s Ecker v. Bohn, 45 Md. 278. A
parol promise by the payee of a note
to the payor that if the latter will for-
bear to attach property in the hands of
the former, and in which he is interested,
belonging to an absconding debtor, he
will credit the indebtedness of such
debtor to the maker of the note upon
the note, is not within the statute.
Mitchell V. GrifSn, 58 Ind. 559.
* Castling v. Aubert, 2 East, 325.

268 STATUTE OF FRAUDS. [CHAP. IV.

Sec. 152. Purchase of Debt. — Where a person promises
to pay the debt of another in consideration of its assign-
ment to him, the promise is not within the statute, because
lie purchases the debt. Thus, where A being insolvent,
a verbal agreement was entered into between several of
his creditors, whereby B agreed to pay the creditors 10a.
in the pound, in satisfaction of their debts, which they
agreed to accept and to assign their debt to B ; it was
held that this agreement was not within the statute, as
it was not a collateral promise to pay the debt of another,
but an original contract to purchase the debts.^ But
where W D by indenture agreed to grant a certain composi-
tion deed to aU the creditors of J D who should before a
fixed day execute a release of their debts, and each creditor
on executing the release received the joint note of J D and
W D ; it was held the agreement was one which must be in
writing, and that any variation in its terms must have been
evidenced in writing.^

So where a written agreement, signed by the defendants,
the plaintiffs, and the charterers, after reciting that the ship
had arrived in port, and a stop had been put on the freight by
the owners,' and that a difficulty had arisen as to the settle-
ment of the charterers' accounts, stated that the stop was to
be immediately taken off, and that the commission on the
charter-party, payable to the plaintiff, was to be paid by the
defendants, and that no person signing that agreement was
to put any stop on the freight ; it was held that this was an
agreement to be answerable for the debt of another.^

Sec. 153. Refraining from Distress. — A parol promise made
by a third person to a landlord to pay rent in arrear, in con-
sideration of the landlord's refraining from making a distress
of goods in the promisor's possession, is held to be an origi-
nal and not a collateral promise, and valid whether the goods
have been actually distrained upon or not, because in such
a case the promisor derives an immediate advantage from

^ Anstey v. Harden, 1 Bos. & P. ^ Emmet v. Dewhurst, 3 Mac. & G.

(N. R.) 124; Barrett v. Hyndman, 3 587.

Ir. L. R. 109; Macrory v. Scott, 5 Ex. " Gull v. Lindsay, 4 Ex. 45; 18 L.

907 ; Fitzgerald v. Dressier, 7 C. B. J. Ex. 354 ; and see Clancy v. Piggott,

(K S.) 395; 29 L: J. (C. P.) 119. 2 Ad. & El. 473.

SEC. 153.J GUAEAiTTIES. 269

tlie retention of the property. The leading case upon
this point is "Williams v. Leper.^ There one Taylor was in-
debted to the plaintiff Williams in £45 for three-quarters
of a year's rent, and Taylor becoming insolvent, made a bill
of sale to the defendant Leper of all his goods in the house,
to be sold for the use of his creditors. While the defendant
was in possession of the goods upon the premises the plaintiff came
there to distrain for his rent, whereupon the defendant, in
consideration that he would not distrain, promised to pay the
£i5. It was held that this was not a promise to pay the
debt of another, that the goods were debtor,'^ and the defendant
was in the nature' of a bailiff for the landlord, and that if the
defendant had sold the goods and received money for them,
an action for money had and received for the plaintiff's use
would have been laid. And Aston, J., said that the defend-
ant was not bound to pay the landlord more than the goods
sold for, in case they had not sold for £45.

So where the plaintiff, having distrained for rent upon the
tenant's goods, agreed with the defendants to deliver up the
goods, and to permit them to be sold by one of the defendants for
the tenant, upon the defendants first undertaking to pay to the
plaintiff all such rent as should appear to be due to him from
the tenant, it was held that the undertaking was not within
the statute.^ Again, where an auctioneer employed to sell
goods on certain premises for which rent was in arrears, was
applied to by the landlord for the rent, the landlord saying
it was better to apply so than to distrain, and the auctioneer
answered, " you shall be paid ; my clerk shall bring you the
money ; " it was held that an action lay on this promise with-
out a note in writing.*

Where J A made a bill of sale of goods to the plaintiff in
consideration of a debt of £129 19s. due from him to the
plaintiff, and the plaintiff being about to sell the goods in
satisfaction of his debt, the defendant undertook to pay him
£129 19s. if he would forbear to sell, it was held that this

1 3 Burr. 1887 ; 2 Wils. 308. have been in writing. Forth v. Stan-

^ It is submitted that this is the ton, 1 Wms. Saund. 211 d.
true ground of the decision, and that ^ Edwards v. Kelly, 6 M. & Sel.
if the defendant had not been the 204; Love's Case, Salk. 28; Slinger-
owner of the goods, the promise must land v. Morse, 7 John. (N. Y.) 403.

* Bampton v. Paulin, 4 Bing. 264.

270 STATTJTK OP FKATJDS. [CHAP. IV.

promise was not -within the statute, and Mansfield, C. J.,
said : " What is this but the case of a man who, having the
absolute, uncontrolled power of selling goods, refrains from
the request of another ? " ^

In Thomas v. "Williams,^ Loift) Tenteeden, ' C. J., said:
" In Williams v. Leper there was no actual distress, but there
was a power of immediate distress, and an intention to enforce
it ; and I think the judges must be understood to have con-
sidered that power as equivalent to an actual distress." A
promise to pay the sum due for rent out of the proceeds of a
sale of the tenant's effects is a positive engagement to pay, if
the goods are sufficient, and is not within the statute.*

Sec. 154. Promise in Some Cases Original. Instances. — In cer-
tain cases the promise may, in fact, be original, although made
respecting the debt or default of another. Thus, where H,
who was the agent for the plaintiff, being desirous of retiring,
the defendant applied for the agency. H was indebted to the
plaintiff, and also claimed a commission for introducing cus-
tomers. It was agreed that the plaintiff should allow H £52
on that account, and that the defendant, on taking the agency,
should allow the plaintiff to retain six months' salary, which
amounted to £52. In an action by the plaintiff for money
had and received by the defendant as such agent, the defend-
ant pleaded a set-ofE for six months' salary; it was held that
this was not an undertaking to answer for the debt of another
within the statute.* In the case last cited. Pollock, C. B.,
said : " The question is, whether an agreement of this kind is
required by the statute of frauds to be in writing, and I am
of opinion that it is not. If a person agrees that whatever
shall hereafter beteome due to him shall be disposed of in a
particular way, such an agreement need not be in writing.
It is true that, if a person agrees to serve another for nothing,
the latter cannot compel the former to serve, because the
agreement is without consideration ; but if he does serve, he
cannot claim any compensation in respect of the service
which he agreed to do for nothing. He could not say at

1 Barrel! v. Trussell, 4 Taunt. 117
and see Meredith v. Short, Salk. 25
Walker v. Taylor, 6 C. & P. 752
Barker v. Blrt, 10 M. & W. 61.

2 10 B. & C. 664.

» Stephens v. Pell, 2 Cr. & M. 710.

* Walker v. Hill, 5 H. & N. 419.

SEC. 155.] GUABANTIES. 271

first, 'I -will serve for nothing,' and afterwards, 'I will have
a salary.' If a person has done work without a consideration,
it is a good answer to any claim in respect of it that he agreed
to do so ; but if he merely agrees to do something without
consideration, that agreement is void. So, if a person says
to another, ' I will give you X20,' the latter could not compel
payment of it because there is no consideration for the
promise ; but if the money were actually given, it could not
be recovered back. Such being the true principle, it follows
that if a person may, without writing, agree to serve for
nothing, so that when the work is done he cannot enforce
payment, it cannot be that an agreement in writing is required
that the money shall be applied in a particular way, as, for
instance, giving it to an hospital or the poor of a parish. I
therefore think that no writing was requisite in this case."

Chai^nel, B., said : " I am also of opinion that the rule ought
to be discharged. The case is the same as if the defendant
was suing the plaintiff for services rendered. If a person
enters into the service of another, and there is nothiug to
explain the terms of the employment, the former is entitled
to be paid the worth of his service. This fact should be
borne in mind, that there was but one agreement between
the parties. At the time the plaintiffs agreed to receive the
defendant into their service the defendant agreed that his
salary for twenty-six weeks should not be paid to him, but be
applied by the plaintiffs in a certain way. If, indeed, after
the service had been performed and the money earned, the
defendant had agreed that twenty-six weeks' salary should be
applied by the plaintiffs in satisfaction of the debt due from
Hulls to them, there might be some color for contending that
the statute of frauds applied; but whatever doubt might
have existed in that case, this must be regarded as one
entire contract. Upon these grounds I think the verdict
was right."

Sec. 155. statute Applies to FromiseB to Ans-wer for Tortious
Acts. — The statute, it is now clearly settled, applies to
guaranties against the tortious default or miscarriage of
another person, as well as to guaranties against breaches
of contract.^ It appears that at one time a distinction was

1 1 Wms. Saund. 231 ; Add. 151.

272 STATUTE OP PEATJDS. [CECAP. IV.

made between cases where the debtor was chargeable in con-
tract, and where he was answerable to an action of tort,
where the guarantor would not have been liable. Thus, where
the declaration stated that in consideration that the plaintiff
would deliver his gelding to A, the defendant promised that
A should redeliver him safe, it was held that this was a col-
lateral undertaldng, and Powell, J., said : " The objection
that was made was, that if English did not redeliver the
horse, he was not chargeable in an action upon the promise,
but in trover or detinue, which are founded upon the tort,
and are for a matter subsequent to the agreement. But I
answered that English may be charged on the bailment in
detinue on the original bailment, and a detinue is the ade-
quate remedy, and upon the delivery English is liable in
detinue, and, consequently, this promise by the defendant is
collateral, and is within the reason and the very words of the
statute." 1 In Read v. Nash,^ it was held that a promise to
pay damages by a third person in case the plaintiff would
withdraw his record, in an action of assault and battery, was
not within the statute.^

In Fish V. Hutchinson,* it was held that a promise to pay
the debt of a third party, in consideration that the plaintiff
would stay an action commenced, was within the statute.
The court said: "Here is the debt of another party still
subsisting, and a promise to pay it. It is not hke the case

^ Birkmyr v. Darnell, Ld. Kaym. cited, where a judgment in rem was

1085. obtained by E against a steamboat,

2 1 Wils. 305. and while the action was pending,

" And see Stephens u. Squire, 5 and before judgment, the defendants

Mod. 205. bought the boat ; and where, after

* 2 Wils. 94. A parol promise to the judgment was recovered, the de-
an execution creditor to pay the debt fendants, in consideration that E
if he will stay proeeedings on the would forbear to sell said boat on
execution is within the statute, al- * said judgment, promised to pay said
though the creditor was about to pay judgment, when requested, within a
the same, and desisted in reliance reasonable time; and where E as-
upon the promise. Van Slyck v. Pul- signed the judgment and the claim
ver, H. & D. Supp. (N. Y.) 47; Dur- on which it was founded, in writing ;
ham «. Arledge, 1 Strobh. (S. C.) 5; and where the assignee brought an
Stern v. Drinker, 2 E. D. S. (N. Y. action in his own name, on the prom-
C. P.) 401. Unless the promisor de- ise of defendants, — it was held, that
rives an immediate benefit from the the promise was not one to answer
stay of the execution or the enforce- for the debt of another, and was not
ment of the right. Barker v. Guillard, within the statute of frauds.
6 Iowa, 510. Thus, in the case last

SEC. 155.] GUARANTIES. 273

of Read v. Nash. In that case there was no debt in another,
it being an action of battery, and it could not be known
before trial whether the plaintiff would recover any damages or
not. But in the present case there is the debt of another still
subsisting, and a promise to pay it." ' In Kirkham v, Marter,^
A had wrongfully, and without license of the owner, ridden
his horse, and thereby caused its death ; and it was held that
a promise by a third person to pay the damage thereby sus-
tained, in consideration that the owner would not bring any
action against A, was a collateral promise, and must be in
writing. " This case," said Holroyd, J., " is certainly within
the mischief contemplated by the legislature, and it appears
to me to be within the plain intelligible meaning of the words
of the Act of Parliament." And Abbott, 0. J., said: "The
wrongful riding the horse of another without his leave and
licensed, and thereby causing its death, is clearly an act for
which the party is responsible in damages, and therefore, in
my judgment, falls within the meaning of the word ' miscar-
riage.' " His lordship distinguished the case from Read v.
Nash,^ saying: "The promise there was to pay a sum of
money as an inducement to withdraw a record in an action of
assault brought against a third person. It did not appear
that the defendant in that action had even committed the
assault, or that he had ever been liable in damages ; and the
case was expressly decided on the ground that it was an orig-
inal and not a collateral promise. Here the son had rendered
himself liable by his wrongful act, and the promise was expressly
made in consideration of the plaintiff's forbearing to sue the
son." It is submitted that the effect of this decision is to over-
rule Read v. Nash. In that case the ground on which the
judgment was based was that as the original action had not
been tried, it was not proved that the defendant in it had ever
committed the assault — that is to say, that he might have
had a defence. The same argument, however, would apply
to the defendant in the original action for causing the death
of the horse : he, also, might have had a defence. In both
cases the original defendants practically admitted their

1 And see King v. Wilson, 2 Str. Cowp. 460 ; French v. Frenoli, 2 Man..

873 ; Elkins v. Heart, Pitz. 202 ; Roth- & Gr. 644.
ery v. Curry, B. N. P. 281 ; Thompson ^ 2 B. & Aid. 613.
V. Bond, 1 Camp. 4; ex parte Adney, ' 1 Wils. 305.

274 STATUTE OP FRAUDS. [CHAP. IV.

liability.! But the case has never been expressly overruled,
and the principle laid down in it was followed in Bird v.
Gammon.2 There, the plaintiff, having issued execution
against one Lloyd for debt, Lloyd, with the assent of the
plaintiff, conveyed all his property to the defendant, who
thereupon undertook to pay the plaintiff the debt due from
Lloyd, the plaintiff withdrawing the execution. It was held
that the defendant's undertaking was not an undertaking .to
pay the debt of a third person, within the meaning of the
statute, TiNDAL, C. J., saying : " This is not an agreement
to pay the debt of a third person, but an agreement that if
the plaintiff would forego his claim on Lloyd, the defendant
would pay the amount of the debt due on his own account.
The case, therefore, falls within the principle of Read v.
Nash." ^ In Jarmain v. Algar,* it was held that a promise
by the defendant to execute a bail bond in a suit to be com-
menced against A B, in consideration of the plaintiff forbear-
ing to arrest A B on a writ already issued, was not within
the statute.

Sec. 156. Bail in Criminal Proceedings. — Where a person,
at the request of another, enters into a recognizance of bail
for the appearance of a third person to answer a criminal
charge, this is not within the statute, for there is no contract
on the part of the person bailed to indemnify the person who
becomes bail for him.* It has been held in England, how-
ever, that where the plaintiff becomes bail for a stranger in
civil proceedings, in consideration of the defendant's request
and of the defendant promising to indemnify him against the
consequences, no action lies upon such promise unless it be
in writing.^

Sec. 157. when Liability-Guaranteed is Extinguished. — Where
the debt or liability guaranteed against is extinguished by the prom-
ise, the undertaking is original, and not within the statute. Thus,

1 See 1 Wms. Saund. 231. « Green v. Cresswell, 10 Ad. & El.

2 3 Bing. (N. C.) 883 ; 5 Scott, 213. 453; 2 P. & D. 480. See the distinc-
' 1 Wils. 805. And see also the tion between these cases pointed out

judgment of Lord Kenton in Chater by Williams, J., in Cripps o. Hart-
V. Beckett, 7 T. R. 201. noil, ubi supra; and see also Batson

4 2 C. & P. 249; Ey. & M. 348. v. King, 4 H. & N. 789.

6 Cripps V. HartnoU, 4 B. & S. 414 ;
32 L. J. Q. B. 381.

SEC. 158.] GUARANTIES. 275

where the plaintiff had taken A into custody on a ca sa, and
released him in consideration of the defendant promising to
pay the debt, it was held that the discharge of A out of cus-
tody by the consent of the plaintifP extinguished the debt,
and that therefore the promise to pay the debt was an original
promise.^ And in Butcher v. Steuart,^ the facts of which
were similar, Paeke, B., said: "It appears to me that this
is an absolute promise, in consideration of the agreement of
the plaintiff to discharge the defendant from execution. It
is not a promise to answer for the debt, default, or miscar-
riage of another, but is a promise to pay a debt in the event
of the other contracting party doing a certain act. It is,
therefore, within the decision of Goodman v. Chase, and does
not require a memorandum in writing to satisfy the statute."
But where a suit in Chancery was pending between A and
B, which C conducted for A as his attorney, and an agree-
ment was made between B and C, with the consent of A,
purporting that in consideration of the suit being put an end
to, B promised to pay C the costs due to him from A, it was
held that this was an agreement by B to pay the debt of
another, and, therefore, ought to be in writing.^

Sec. 158. Novation, Effect of. — There is a species of no-
vation, called delegation in the civil law, which is effected
by the intervention of another person, whom the debtor, in
order to be liberated from his creditor, gives to such cred-
itor, or to him whom the creditor appoints, and such per-
son so given becomes obliged to the creditor in place of the
original debtor. But it is necessary that there should be
the concurrence of the person delegating, that is, of the origi-
nal debtor, and of the person delegated, or the person whom
he appoints. The intention of the creditor to discharge the
first debtor and accept the second in his place must, in order
to give effect to the delegation, be perfectly evident. There
are authorities which show that the circumstances consti-

1 Goodman v. Chase, 1 B. & Aid. rich v. Ames, 9 Gray (Mass.) 76;

297 ; and see Browning v. Stallard, Holmes v. Knights, 10 N. H. 175.

5 Taunt. 450 ; Bird v. Gammon, 3 See note 1, ante, p. 262.
Bing. (N. C.) 883 ; 5 Scott, 213; Lane 2 11 M. & W. 873.
V. Burghart, 1 Q. B. 937; Maggs v. » Tomlinson v. Gell, 1 N. & P. 588;

Ames, 4 Bing. 470 ; 1 M. & P. 294; 6 Ad. & El. 564.
Anderson v. Spence, 72 Ind. 315 ; Aid-

276

STATUTE OP PEAUDS.

[chap. IV.

tuting, under the Roman law, a delegation, sustain the
promise of a third person to pay a debt of another to his
creditor, when that debt has been extinguished, and the debt
of the person promising has been substituted upon sufficient
consideration therefor. But there must be the mutual assent
of all the parties to make the substitution effectual at common
law.i Therefore, when the transaction amounts to a novation,

1 Butterfield v. Hartshorn, 8 N. H.
348. In Tatlock v. Harris, 3 T. E.
180, BuLLEE, J., says : " Suppose A
owes B £100, and B owes C £100,
and they meet, and it is agreed be-
tween them that A shall pay C £100,
B's debt is extinguished, and C may
recover the same against A." "If,"
says Clohdman, J., in Bird u. Gam-
mon, 3 Bing. (N. C.) 883, "a debtor,
creditor, and a third party agree that
the third party shall be substituted
for the debtor, the debtor is exoner-
ated. Fairlee v. Denton, 8 B. & C.
395, has decided that, establishing to
that extent an exception to the rule
that debts cannot be assigned." Such
promises are not within the statute.
It was held in Plumer i/. Lyman, 49
Me. 229, that a parol promise to ac-
cept an order from a debtor in favor
of his creditor, between wliom and the
maker of the promise there had been
no privity, was within the statute of
frauds as a promise to pay the debt
of another. Thus, where A had a
claim on a vessel for materials used
in building it, and B held the vessel
to secure him for advances made to
the builder, a promise by B to accept
the order of the builder in favor of
A, for the amount of his claim, can-
not be enforced unless it appears to
have been for some consideration,
such as a discharge of A's lien on the
vessel, or his promise to discharge it,
or release his claim upon the builder.
In the case at bar there was no dis-
charge of lien or promise to discharge
or release of the defendant of the
amount in controversy. In Eichard-
son V. Williams, 49 Me. 558, A being
indebted to B, C verbally promised B
to pay him the amount, and charged
it to A without the consent of the

latter. It was held that B, not hav-
ing released or assigned his debt, the
promise was without consideration,
and that such promise was within the
statute of frauds, and not binding.
In Furbish u. Goodenow, 98 Mass.
297, it was decided that an oral prom-
ise to pay the debt of another is with-
in the statute of frauds, if the original
promisor remains liable, and no con-
sideration moves from the creditor to
the new promisor, although there is a
valuable consideration moving from
the original debtor to the new prom-
isor. But here there is no considera-
tion moving from anybody to the
defendant. In Russell v. Babcock, 14
Me. 139, it was held, that an agree-
ment to delay the collection of an
execution was a sufficient promise by
a third person to pay the same, and
that such promise need not be in
writing. But this decision would re-
peal the statute, and it has since been
overruled. Eeferring to this decision
in Hilton v. Dinsmoor, 21 Me. 410,
Sheplet, J., uses the following lan-
guage : " If this was in reality the
ground of the decision in that case,
and the abstract of the reporter is to
that effect, we are constrained to say
it is unsupported by the authorities."
To the same effect was the case of
Doyle V. "White, 26 Me. 341. In Dear-
born V. Parks, 6 Me. 81, the debtor of
the plaintiff left funds in the hands
of the defendant, with which he was
to pay his (the debtor's) debt to the
plaintiff. The defendant receiving
these funds, or being allowed for
them in settlement, as if paid to the
plaintiff, promised to pay them to the
plaintiff. The plaintiff, therefore, had
funds in the defendant's hands, placed
there for his benefit, for which he

SEC. 158.]

GUABANTIES.

277

the obligation becomes primary, and the statute does not
apply.i Thus, where the defendant had bought the interest
of a person in a contract for the purchase of certain lumber,
a part of which had been delivered to such person, in con-

might well maintain a suit. In Hil-
ton V. Dinsmoor, 21 Me. 210, the con-
sideration of the defendfint's promise
was forbearance to sue, and funds
placed by the debtor in the defend-
ant's hands with which lie was to pay
the debt. The court held the promise
in consideration of forbearance was
within the statute, but the funds hav-
ing been placed in the defendant's
hands by the plaintiffs debtor, the
promise of the defendant in considera-
tion thereof was not within the stat-
ute. In Rowe v. Whittier, 21 Me.
545, notice was taken of the fact that
the plaintiff had not discharged his
debt against his debtor, which he
sought to enforce against the defend-
ant. " If," says Whitman, C. J., " the
claim was a legal one against Patten
& Co. (the debtors of the plaintiff),
it does not appear that they were dis-
charged from it in consideration of
the promise made by the defendant,
and if it had so appeared, the defend-
ant not being otherwise liable, his
promise would not hare been obliga-
tory under the statute of frauds
without a memorandum in writing."
In Brown v. Atwood, 7 Me. 356, where
S sold a vessel to A, who promised in
consideration thereof to pay B a debt
due from S, upon which promise B
brought his action against A, it was
held that such promise was good,
though not in writing, for it was a
promise to pay his own debt, though in-
uring to the benefit of B. The plain-
tiff had funds in the defendant's
hands, left by his debtor, and might
well call them out. In Maxwell v.
Haynes, 41 Me. 559, the plaintiff's
debtor sold out to defendant, leaving
funds in his hands to pay his debt to
the plaintiff. In all these the defend-
ant held funds of the debtor in his
hands designated and set apart for
the payment of his debt, and held by
the defendant for that purpose. In

TuUam v. Adams, 37 Vt. 391, Poland,
C. J., referring to this class of cases,
says : " And we believe it will be
found that in all the cases now re-
garded as sound, where it has been
held that a parol promise to pay the
debt of another is binding, the prom-
isor held in his hands funds, securi-
ties, and property of the debtor de-
voted to the payment of the debt, and
his promise to pay attaches upon his
obligation or duty, growing out of the
receipt of the fund." There is a class
of cases, as in Alger o. Scoville, 1
Gray (Mass.) 391, in which it was
held, that the promise to a debtor to
pay his debt to a third person is not a
promise to answer for the debt of
another within the statute. So in
Pike V. Brown, 7 Cush. (Mass.) 136.
In Eastwood v. Kenyon, 11 Ad. & El.
446, it was held, that a promise by the
defendant to the plaintiff to pay A B
was not within the statute. "The
facts were," says Lord Denman, " that
the plaintiff was liable to a Mr. Black-
burn on a promissory note; the de-
fendant, for a consideration which
may, for the purpose of the argument,
be taken to have been sufficient, prom-
ised the plaintiff to pay and discharge
the note to Mr. Blackburn. If the
promise had been made to Mr. Black-
bum, doubtless the statute would have
been applied, and it would then have
been strictly a promise to answer for
the debt of another; and the argu-
ment on the part of the defendant is,
that it is not less the debt of another
because the promise is made to that
other, viz., the debtor and not the
creditor, the statute not having in
terms stated to whom the promise
contemplated by it is tb be made.
But upon consideration we are of
opinion that the statute only applies to
promises made to the person to whom
another is answerable."

1 Bowen v. Kurtz, 37 Iowa, 239.

278 STATUTE OP FBAUDS. [CHAP. IV.

sideration thereof, verbally agreed to pay for that which had
been as well as that to he delivered, his undertaking was held
to be original and not within the statute.^ But, where A,
being indebted to B for sawing lumber at A's mill, conveyed
his property to C who hired B to continue the running of
the mill, telling him that he would pay him the same that A
had, and also that he had made arrangements with A to pay
him what A owed him, and that he would pay him the back
pay that was coming to him, it was held that C's promise
■was collateral and within the statute.^ The distinction
between the two eases, and the reason for the difference in
the rules applicable thereto, is apparent, and arises from the
circumstance that in the first case, the defendant assumed
the debt and was substituted as debtor in the place of the
original debtor, while in the latter case, the ciriginal debtor
still remained liable for the debt, notwithstanding the defend-
ant's promise, so that no novation took place. This distinc-
tion is illustrated by some more recent cases. Thus in a
Michigan case,^ certain manufacturers contracted with lum-
ber dealers to convert certain standing timber into shingles
and siding. A logger contracted with the dealers to cut
and haul the timber. Subsequently, the logger refused to
go on with the contract unless he received some of the
money due him, and the manufacturers then orally promised
the logger to pay him on orders from the dealers, and several
payments were so made, and then payment being refused on
such, orders, an action was brought to enforce it. The court
held that the agreement was collateral and within the statute,
because the original debtors still remained liable to the plaintiff
for the debt.

To constitute a promise to answer for the debt, default,
or miscarriage of another person, within the meaning of the

' Cox V. Weller, 6 T. & C. (N. Y.) those previously rendered. In Eddy v.

309; Lawrence v. Fox, 20 K Y. 268. Davenport, 42 Vt. 56, it was held that

^ Belknap v. Bender, 4 Hun (N. Y.) a promise to pay a physician for pro-

414 ; 75 N. Y. 446 ; PfeifEer v. Adier, fessional services to he rendered in

37 N. Y. 164 ; Mallory v. Griffiths, 21 treating a third person, is an original

id. 412. Bat see Bagley i;. Moulton, undertaking, and not a promise to an-

42 Vt. 184, where it was held that a swer for the debt of another, which

continuance of professional services must be in writing,

as a physician might form a good con- ' Preston v. Young, 46 Mich. 146;

sideration for a promise to pay not 41 Am. Eep. 148.
only for those afierwards, but also for

SEC. 158.]

GTJAEANTIES.

279

statute of frauds, the promise must be a collateral one ; there
must be in existence an original liability upon which the
collateral promise is founded, and where the debt which consti-
tutes the consideration of the agreement is entirely discharged,
the promise is a new and original one and not collateral.^

1 In Belknap w. Bender, 75 N.Y. 446,
cited ante, it appeared that, in 1872,
the plaintiff was engaged with his men
and teams in managing a saw-mill for
the firm of Ward & McVicker, and
they were indebted to him, for labor
performed, in the sum of $1,500, and
were also largely indebted to the de-
fendant and other parties. The de-
fendant then for the purpose of secur-
ing his debt entered into the following
agreement with the firm :

"Agreement made 20th August,
1872.

"W. M. Bender hereby agrees
with Ward & McVicker to take their
mill, called Shed's mill, to run the
said mill, and to saw up their logs
now lying in their log yard, to ship
the lumber and to sell the same, and
to apply the proceeds thereof to the
payment of the current expenses of
sawing and shipping said lumber, and
also to the payment of the judgment
claims, amounting to $4,872.29, and the
claim of said Bender, say $7,000, and
the rent of mill, $1,000, now due, and
the back wages of their hands, say
$1,500, as stated in schedule annexed,
and the balance, if any, to pay over
to said Ward & McVicker, for the
consideration of ten per cent on the
amount of said sales; and the said
Bender agrees, in case of any sale of
said logs or lease of said mill, under
any judgment, to buy the same and
to hold them in order to carry out the
true intent of this agreement, it being
understood that said Bender is only
to pay said several claims as men-
tioned above from the proceeds of
said lumber as aforesaid.

"Bender, Son & Co.
" Ward & McVicker.''

To this agreement was annexed a
schedule of the debts to be paid
under the agreement among which
was the debt due the plaintiff. •

In pursuance of this agreement
the defendant took possession of the
mill, and the stock of logs and lumber
on hand, and at the time of the com-
mencement of this action had disposed
of about half of the lumber. This
action was brought by the plaintiff,
not for an accounting under the agree-
ment and to recover his share of the
proceeds of the lumber, but to recover
the whole sum due him from Ward
& McVicker, upon the theory that
the defendant had absolutely prom-
ised to pay it to him.

Upon the trial the plaintiff testified
that the defendant came to him and
told him to keep on working at the
mill, and he would pay him for his
work at the same rate which Ward &
McVicker had been paying him, and
that he had bought the stock of
Ward & McVicker, and had made an
arrangement with them to pay him
what was due him from them, and if
he would keep on working for him, he
would pay him for his work, and in a
day or two would pay him §1,000
upon the amount due him from Ward
& McVicker ; and he testified that he
went on and worked for the defend-
ant, but that the defendant had failed
to pay him the amount due him from
Ward & McVicker. The plaintiff re-
covered $1,000 and interest.

Earl, J., said ; " The promise of
the plaintiff to work for the defend-
ant at what appeared to be a full
compensation did not furnish a con-
sideration for the defendant's promise
to pay Ward & McVicker's debt.
Pfeiffer v. Adler, 37 N. Y. 164. And
the trial judge so held. But from the
plaintiff's evidence standing alone, it
might have been inferred that the
defendant had purchased the saw-mill
stock of Ward & McVicker, and had
agreed with them to pay a portion of
the purchase-price to him in satisfac-

280

STATUTE OF FEAUDS.

[chap. IV.

The rule is that, where a party who was not before liable under-
takes to pay the debt of a third person, and as a part of the

tion of the debt due him from them,
and in that case, under the rule laid
down in Lawrence v. Fox, 20 N. Y.
208, and other similar cases, the plain-
tiff could have recovered. But at a
later stage of the case, the written
agreement between the defendant and
Ward & McVicker was proved, and
that shows precisely what the de-
fendant agreed with them to do.
Under that agreement, he did not
become personally liable to pay the
plaintiff; he did not agree to pay
the plaintiff absolutely, or with his
own funds. He did not purchase the
stock. He simply agreed to saw the
logs, and market the lumber, and
apply the net proceeds in payment
of the debts specified. He incurred
no personal liability for the debts,
aild was required only to be faith-
ful in the discharge of the trust as-
sumed.

The defendant could not become
bound to pay to the plaintiff the debt
due him from Ward & McVicker by
any verbal promise made to him.
Such a promise to be binding within
the statute of frauds must be in writ-
ing, and founded upon a sufficient
consideration passing between the
parties. But if Bender had purchased
lumber of Ward ^ Mc Vicker, and thus
become indebted to them, and in consid-
eration thereof had agreed to pay a por-
tion of his debt to the plaintiff in satis-
faction of the amount due him from
Ward Sf Mc Vicker, such a promise, as
stated above, would not have been
within the statute of frauds. But the
difficulty here is that there was no
such debt to Ward & McVicker, and
no such promise by the defendant.
But the trial judge held that if the
jury were satisfied that the defendant
agreed to pay the |1,000, as testified
to by the plaintiff, the plaintiff could
recover upon the theory that the
property had been placed in the hands
of the defendant for sale, and that he
would be liable to pay the plaintifE

after he had disposed of it, and hence,
that he could waive the delay and be
bound by his promise to pay before
he had realized the proceeds. And it
is upon this theory in part that the
plaintiff now seeks to uphold the re-
covery at the circuit.

The case then stands thus : The
defendant by his agreement with Ward
& McVicker was not personally bound
to pay this debt. He was bound only
to pay it out of the proceeds of the
property when realized. The prop-
erty was placed in his hands upon the
consideration expressed in the paper,
and he had it at the time of the al-
leged promise to the plaintiff. What
consideration is there to uphold the
promise ? Clearly none. That prom-
ise, if valid, imposed upon him an
entirely new obligation ; it bound him
to pay the .f 1,000 personally, whether
he realized sufficient to pay it from
the sale of the lumber or not. It
created a personal liability when none
existed before. Such a promise to be
valid, aside from the statute of frauds,
must be based upon a consideration.
The plaintiff furnished none, and the
lumber which had been before placed
in defendant's hands upon a different
consideration furnished none. After
this promise the defendant's interest
in the lumber, and control thereof,
were no greater than before.

But the counsel for the plaintiff
strenuously contends that the promise
of the defendant is without the stat-
ute of frauds, and founded upon a
sufficient consideration, simply be-
cause Ward & McVicker placed in
defendant's hands property upon
trust to pay this debt ; and there
are some general expressions in re-
ported cases which, literally taken,
support this construction. In Mal-
lory V. Gillett, 21 N. Y. 412, Jtjdge
CoMSTOCK says that when the debtor
puts a fund into the hands of the prom-
isor, either by absolute transfer or upon
a trust ta pay the debt, the promise to

SEC. 158.]

GXJAKANTIES.

281

agreement, the original debtor is discharged from his indebted-
ness, the agreement is not within the statute ; but if the origi-

pay it is not within the statute of frauds.
This general language needs some
limitation or explanation. If the
promise in such case be made to the
debtor in consideration of the trans-
fer, it is no doubt valid. If it be
made to the creditor after it has be-
come the duty of the promisor under
his arrangement with the debtor to
pay, then it is valid; as if in this
case. Bender had converted the prop-
erty into money, and then promised
the plaintifE to pay the debt, he could
have been sued directly on such prom-
ise. That would have been an origi-
nal promise to discharge his own obli-
gation to the plaintifE. As said by
Judge Comstock in that case : ' The
law would imply an obligation on the
defendant's part to pay over the
money to the plaintiff after selling
the goods ; and when the law will im-
ply a debt or duty against any man,
his express promise to pay the same
debt, or perform the same duty, must
in its nature be original.' Poland,
C. J., in FuUam «. Adams, 37 Vt.
391, after laying down the rule in
substantially the same language as
that used by Judge Comstock, says
the true principle why the promise to
the creditor in such a case is valid is,
that 'the party making the promise
holds the funds of the debtor for the
purpose of paying his debt, and, as
between him and the debtor, it is his
duty to pay the debt, so that when he
promises the creditor to pay it, in sub-
stance he promises to pay his own debt,
and not that of another.' Throop, inhis
work on Verbal Agreements, vol. 1,
p. 535, lays down the rule as follows ;
'When thepromisorabsolutely controls
the fund, but his application thereof
to the payment of the debt due to the
promisee will acquit him of a duty
which he owed to the person who fur-
nished it, the promise is not within
the statute.' Here the defendant
owed Ward & McVicker no duty to
pay the debt. The only duty he owed

them was to convert the property and
apply the proceeds upon the debts
specified. When this action was com-
menced he was not in any default in
the discharge of that duty, and the
action was not brought upon such a
theory.

To test this case further. Suppose
a voluntary assignee of an insolvent
debtor after he had taken possession
of the property assigned, but before
he has converted it into money, and
before the duty to pay has arisen,
promises without any further or new
consideration to pay the debt of one
of the preferred creditors, could such
a promise be enforced? Suppose one
takes a conveyance of real estate >om
debtor upon the agreement with him
that he will rent it, and accumulate
the rent for ten years, and then pay
the net amount to his creditors, and
the next day without any new consid-
eration he promises at once to pay
the creditors, could such a promise be
enforced^ These cases are analogous
to the. one in hand, and no authority,
certainly no case that would be re-
garded as authority in this State, can
be found which would authorize the
enforcement of such promises. They
would be void at common law as with-
out any consideration, and void also
under the statute of frauds as not in
writing.

But we can go one step farther in
this case. Even if the promise had
been made after the defendant had
converted the proceeds, it could have
been enforced against him only to the
extent of the proceeds applicable to
this debt. Ardem v. Rowney, 5 Esp.
254. If the amount applicable to
this debt had been less than the
$1,000, then for the excess of the debt
the promise would have been without
consideration. Defendant in such a
case would have owed the duty to pay
the plaintifE his share of the proceeds,
and his promise to that extent would
have been valid as one to discharge

282

STATUTE or FRAUDS.

[chap. IV.

nal debtor continues liable, then the agreement is within the
statute.^ Therefore, when one, thus undertaking, agreed " to
pay and guarantee " the debt, it was held that the word
" guarantee " was not to be understood in a technical sense,
but that the agreement was an absolute agreement to pay,
and that indebitatus assumpsit would lie.^ In an Alabama

his own obligation. But his promise
for more would, as to the excess, not
have been to pay anything for which
he was liable in any way, but to pay
the debt of Ward & McVioker, and
hence within the statute of frauds.
Here the complaint was not framed,
and the trial was not conducted, for a
recovery upon such a theory. There
was no proof that the property was
sufficient to pay the .$1,000, but on
the contrary, the proof showed that
it was not sufficient. The plaintiff's
counsel upon the argument claimed
that the case of Young u. French,
35 Wis. Ill, was very much in
point in his favor. But in that
case there was a new consideration
for the promise sued on, moving
from the plaintiff to the defendant,
and hence that case is unlike this.
It is difficult to perceive hpw the
doctrine of waiver can apply in a
case like this. A person may waive
some act or condition which another
is to perform to or for him. He may
choose to pay a debt before due ; but
in a legal sense he waives nothing by
so doing. Here, however, there was
no debt of the defendant, and he
could not by such a waiver, if we call
it such, based upon no consideration,
impose upon himself an entirely new
obligation."

1 In Yale v. Edgerton, 14 Minn.
194, the defendant loaned plaintiff
$300, which the latter promised to
repay with interest, and at the same
time assigned and delivered to the
defendant a chattel mortgage made
by another party before that time,
and also the debt which the chattel
mortgage was given to secure, amount-
ing to $1,600. At the time agreed
upon for the payment, $50 was paid
and the time for the payment of the

balance was extended, interest
to be paid thereon at the rate of one
per cent per month. Afterwards, the
defendant still holding the chattel
mortgage and debt as collateral se-
curity, for the balance due him, it
was agreed between plaintiff, defend-
ant, and mortgagor, that the defend-
ant, for a good and valid considera-
tion, should discharge and satisfy the
chattel mortgage and the original
debt secured by it then due with in-
terest, amounting to $1,700, and that
he should pay to the plaintiff out of
the first issue of a bank specified, the
balance of said $1,700 remaining after
deducting therefrom the unpaid bal-
ance of the loan to plaintiff and in-
terest. In pursuance of this agree-
ment the defendant did satisfy and
discharge the chattel mortgage and
the debt secured by it. The promise
of the defendant to paj' the plaintiff
the balance of the debt due him was
the only consideration for the latter's
consent to the discharge and satisfac-
tion of the mortgage ■ and the debt
secured by it. It was held that an
action would lie upon the promise of
the defendant to pay the plaintiff the
balance of the debt . secured by the
mortgage after deducting the amount
loaned by the former to the latter.
The consideration of the defendant's
promise, being the consent of the
plaintiff to the release and discharge
absolutely of the mortgage and the
mortgage debt by the defendant, was
a sufficient consideration; and the
promise was an original one and not
within the statute of frauds.

2 Parker v. Benton, 35 Conn. 343.
In this case Butler, J., said : " We
think that by the contract as claimed
by the plaintiffs, and which we must
presume to have been found by the

SEC. 158.J

GUARANTIES.

283

case,^ it was held that where, by an arrangement between a
creditor and the promisor, the original debtor is discharged,

jury, the defendant became indebted
to the plaintiffs by an assumption of
the debt of TiUey & Co. to the extent
of seventy-five cents on the dollar of
that debt, and it is elementary law
that, where a' sum certain is due on a
simple contract, indebitatus assumpsit
will be to recover it. It is true that the
language of the motion in respect to
the assumption claimed is that ' the
defendant then and there agreed to
pay and guarantee the debt of the
plaintiffs,' but it is clear from the
whole statement of the contract that
it was intended to be an absolute con-
tract to pay the debt, and that the
word 'guarantee' as used in that
construction, is not to be understood
in its technical sense. We have no
disposition to relax the rules of con-
struction applicable to the statute of
frauds, or in any manner to weaken
that statute. Our views on that sub-
ject are fully expressed by Judge
Button, in Clapp v. Lawton, 31 Conn.
95; and if this case was as claimed,
analogous to that, we should come to
the same conclusion in respect to it.
But this case differs essentially from
that. There a third party received
the property of the debtor and prom-
ised him generally to pay his debts.
None of the creditors were parties to
the arrangement, and the original in-
debtedness continued as before. Here
the contract was tripartite, between
the debtor, a creditor, and a third per-
son; and it contemplated the dis-
charge of tlie original debtor, and a
new obligation, by the third party, to
the particular creditor. Such new
obligation and indebtedness is not
within the statute of frauds. In
Turner v. Hubbell, 2 Day (Conn.)
457, the distinguished counsel for
the defendant in error deduced from
the cases which had then occurred
imder this branch of the statute,
the following definition of the prom-
ise intended by it, to wit ; ' An un-
dertaking by a person, not be/ore lia-

ble, for the purpose of securing or per-
forming the same duty for which the
party for whom the undertaking is
made, is, at the same time, liable,' and
it was adopted by the court. With a
single modification that definition fur-
nishes as perfect a test as lias ever
been, or, we think, can be devised.
The modification required is this : In
the case of Williams v. Leper, 3 Burr.
1886, the promise to pay the debt was
made after the original debtor had
been discharged by reason of a dis-
tress, and the counsel in Turner u.
Hubbell seem to have assumed that a
contract to pay the debt of another
would be within the statute 'of frauds
if the original debtor was liable at
the time the promise was made. But
it is now well settled that if the origi-
nal debtor is discharged by the new
contract, it is not within ^the statute.
See the cases cited by Judge Dutton
in his revision of Swift's Digest,
p. 248. The foregoing definition may
be modified therefore, so as to read :
'An undertaking by a person not be/ore
liable, for the purpose of securing or
performing the same duty for which
the party for whom the undertaking
is made continues liable.' Applying
this test to the case in hand, it is ob-
vious that the objection of the de-
fendant ought not to prevail. It was
the purpose and effect of the tripartite
contract in question to discharge the
original debtors in consideration of
their giving up their property to the
defendant, as well as to onerate the
defendant, in consideration of that
discharge, the assent of the plaintiff
to the delivery of the property to the
defendant, and of his agreement to
loan the funds necessary to enable the
defendant to purchase the debts and
carry out his speculation. As the
original debtors did not continue liable,
an essential element of the test was want-
ing, and the contract was not within the
statute."

1 Underwood v. Lovelace, 61 Ala.

284

STATUTE OF TEAXTDS.

[chap. IV.

and a new debt is created binding on the promisor alone, the
promise, whether verbal or written, is supported by a valuable
consideration, the detriment to the promisee in the extin-
guishment of the original debt, and will support an action,
although no consideration moved from the original debtor
to the promisor, and even though there was no request from
the original debtor, or subsequent assent on his part. A
promise to pay a certain sum which is due from A to B to
B's creditors is only binding as to the amount named, and
even though the creditors are specifically named, a creditor

155. Where contractors to furnish
materials and build a house for an-
other to furnish a certain part of the
materials, and the latter after furnish-
ing a small part of the materials
abandons the contract because of the
insolvency of the principal contractors,
and the owner of the premises ver-
bally promises to pay for the balance,
and other materials are furnished on
the faith of such promise, it is not
within the statute. Schoenfleld v.
Brown, 78 111. 487. But where A
contracted to do certain work on B's
premises, having partially completed
it, he refused to go on, alleging that B
was insolvent, C, a mortgagee, told
him to go on and he would see him
paid. It was held that there was no
consideration for this promise, as A
was bound to go on under the original
contract, and that it was a mere prom-
ise to answer for the default of B,
and being verbal and without consid-
eration, could not be enforced. Elli-
son V. Jackson &c. Co., 12 Cal. 542.
A promise by a landlord to a person
from whose service he has enticed
away the tenant, and to whom the
tenant was indebted, to subordinate
his lien on the tenant's crops as land-
lord to the other's statutory lien for
advances, in consideration that the
latter would forbear to sue him for
damages, is not within the statute,
unless the landlord also agreed to
answer for any default of the tenant
to the other. Wejls v, Thompson, 50
Ala. 84. And quere ? whether the un-
dertaking in the latter event would
not, in view of the consideration, be

original? The plaintifE furnished lum-
ber to erect certain houses; the de-
fendant advanced the money to M to
erect them. The lumber was deliv-
ered to M, but charged to the defend-
ant. The plaintifE said to the defend-
ant, " I am furnishing this lumber and
charging it to you, and if it is not all
right, I want you to say so." TI.c
defendant said it was all right if he
got a certain deed of one of the
houses that had been built. The de-
fendant informed M of this conversar
tion, and continued to furnish the
lumber. M testified that the deed
was delivered to the defendant, and
that he left money in his hands to
pay for the lumber, and it was held
that the defendant's Undertaking was
original. Booth v. Heist, 94 Penn.
St. 177. In Bailey v. Rutjes, 86 N. C.
517, the plaintiff delivered lumber on
the order of A, the lessee, which was
used on the premises of B and C, the
lessors, and then sued them for the
price. It was held that although it
was not error to charge that if the
plaintiff believed he was furnishing
the lumber on their credit, they were
liable ; yet if the lessors, knowing
that he expected them to payfor the
lumber, acted in such a manner as to
create a belief on his part that they
would do so, and thereby induced him
to deliver it, a, promise on their part
to pay for it might be inferred. But
that, if the defendants were not origi-
nally liable by reason of some con-
tract, an oral promise to pay for the
lumber after it was furnished and used
would not bind them.

SEC. 158.] GUAEANTIES. 286

SO named has no remedy against the promisor for his debt,
if A has previously paid the sum named to other creditors
designated by B.-^ Where the defendant, in order to get rid
of an incumbrance on his own property, or to obtain some direct
personal advantage to himself, or because of his indebtedness to such
person to an amount equal thereto, promises to pay the debt of
another, the promise is not within the statute. And if the
original debt is discharged and extinguished by the substitu-
tion in lieu thereof of a new contract by a third person, to
pay the amount of that debt, such new contract is not a col-
lateral promise to answer for the debt or default of another.^
Thus, where A was indebted to B & Co. for goods sold,
and, upon being released from his liability, assigned to the
latter a debt, which was due to him from C & Co., and
notice of the assignment was given to a partner in the house
of C & Co., who, by parol, promised in the name of the firm
to pay the debt of B & Co. out of the partnership fimds;
it was held, in an action by B & Co. against C & Co. for
money had and received, that the promise Avas not within the
statute.^ So where A sold goods to B, who, being unable to
pay, transferred them to C, who promised to pay for them, it
was held that this was a new sale to C, and not a mere promise
by C to pay the debt of B.* If A be a creditor of B, and B
and C propose to enter into, or have entered into partner-
ship, and say to A, " We wish this debt to be a debt from
us both, and we will pay it," and A accedes to that, although
there is no writing, the agreement is valid and effectual,
and is not impeached or affected by the statute. The effect
of such an agreement is to extinguish the first debt, and
for a valuable consideration to substitute the second debt.*
So where there is a defined and ascertained debt due from A
to B, and a debt to the same or a larger amount due from C
to A, and the three agree that C shall be B's debtor instead
of A, and C promises to pay B, the latter may maintain an
action against C.^ But it is incumbent on the plaintiff to show

1 Odell V. Mulry, 9 Daly (N. Y. * Browning v. Stallard, 5 Taunt.
C. P.) 381. 450; see also De Colyar on Guaran-

2 Add. on Contrs. 153. ties, 83-87 ; 1 Wms. Saund. 224.
8 Lacy p. McNelle, 4 D. & E. 7 ; ^ Ex parte Lane, De G. 300.

and see Hodgson v. Anderson, 3 B. & " Eairlie v. Denton, 8 B. &. C. 395 ;

C. 842 ; 5 D. & K. 735 ; Taylor v. 2 M. & R. 353 j Wilson v. Coupland,
Hilary, 1 C. M. & R. 741. 5 B. & Aid. 228; Crowfoot «. Guer-

286 STATUTE OP PKAtTDS. [CHAP. IT.

that at the time when C promised to pay B, there was an ascertained
debt due from A to B A It is also necessary that the original
debt from A to B should be extinguished ; for B cannot sue
C if he retains the right to sue A.^ So that if the creditor
" were to sue or issue execution against the original debtor,
the latter might show that the plaintiff, on good considera-
tion, gave up his remedy against him, and took the liability
of the other instead, which though not properly accord and
satisfaction, would be a complete defence." ^

Where the plaintiffs were creditors, and the defendants
debtors, to T & Co., and by consent of all parties an
arrangement was made that the defendants should pay to
the plaintiffs the debt due from them to T & Co., it was
held that as the demand of T & Co. on the defendants
was for money had and received, the plaintiffs were entitled
to recover on a count for money had and received against
the defendants.* In Parkins v. Moravia,^ the defendant un-
dertook to pay the plaintiff the amount due from him to B
for work to be done by B, in consideration that the plaintiff
would advance money to B, Wilson v. Coupland ® was cited,
and it was argued that this was an assignment of a chose in
action. Abbott, C. J., said : " It is an assignment of a thing
not in esse; Wilson v. Coupland is not like this case." A ver-
dict was taken for the plaintiff subject to this and another
point of law for the consideration of the court above, but it
does not appear that any motion was made. Much impor-
tance cannot, therefore, be attached to the case.'^

Sec. 159. indemnities, Whether -within the Statute. — There
appears to be some doubt in the English courts as to whether
or not promises to indemnify are within the statute. In

ney, 2 M. & Sc. 482 ; Hodgson v. An- « Wilson v. Coupland, 5 B. & Aid.

dereon, 3 B. & C. 855 ; 5 D. & R. 735. 228 ; Thompson v. Percival, 5 B. &

1 Pairlie v. Denton, 8 B. & C. 395; Aid. 925; see also Roe v. Haugh, 3
2 M. & E. 353. Salk. 14 ; Israel v. Douglas, 1 H. Bl.

2 Wms. Saund. 224, citing Cuxon 239 ; Tatlock v. Harris, 3 T. E. 174.
V. Chadley, 3 B. & C. 591 ; 5 D. & E. M C. & P. 376.

417 ; Wharton v. Walker, 4 B. & C. ^ 5 b. & Aid. 228.

163 ; 6 D. & E. 288 ; Parker v. Wise, ' See De Colyar on Guaranties,

6 M. & Sel. 239 ; Liversidge v. Broad- 86. Smith's Merch. Law, 8th ed. 457.

bent, 4 H. & N. 603. And see as to assignments of debts

' Bird V. Gammon, 5 Sc. 220 ; 3 and choses in action 36 & 37 Vict. c.

Bing. (N. C.) 883, per Tindal, C. J. 66, § 25, subs. 6.

SEC. 159.] GUARANTIES. 287

Thomas v, Cook,^ it was laid down that a promise to in-
demnify does not fall within the words or policy of the act.
On the other hand, in Green v. Cresswell,^ Denman, C. J.,
referring to Thomas v. Cook, said : " The reasoning in that
case does not appear to us satisfactory in support of the
doctrine there laid down : wliich, taken in its full extent,
would repeal the statute. For every promise to become
answerable for the debt or default of another may be shaped
as an indemnity, but even in that shape we cannot see why
it may not be within the words of the statute. Within
the mischief of the statute it most certainly falls." Green
V. Cresswell, however, was dissented from in Cripps v. Hart-
noU,* and Batson v. King.* In the former of these cases
Pollock, C. B., said : " Now it has been laid down that a
mere promise of indemnity is not within the statute of
frauds, and there are many cases which would exemplify
the correctness of that decision. On the other hand, an
undertaking to answer for the debt or default of another
is within, the statute, and no doubt some cases might be
put where it is both the one and the other, that is to say,
where the promise to answer for the debt or default of
another would involve what might very properly and legally
be called an indemnity." In the latter case the same learned
judge said : " If a man says to another, ' If you will at my
request put your name to a bill of exchange, I will save you
harmless,' that is not within the statute. It is not a responsi-
bility for the debt of another. It amounts to a contract by
one, that, if the other will put himself in a certain situa-
tion, the first will indemnify him against the consequences.
In Green v. Cresswell, Lord Dbnman" pointed out a dis-
tinction between that case and one where the defendant is
a co-surety. F don't tliink that the case itself was rightly decided."
In a later English case ^ the doctrine of Green v. Cresswell,
ante, was directly overruled, and the doctrine of Reader v.

1 8 B. & C. 728; 3 Man. & R. 444. 374; 29 L. J. C. P. 119; Reader v.

2 10 Ad. & El. 453 ; 2 P. & D. 430. Kingham, 13 C. B. (N. S.) 344 ; Wildes
8 4 B. & S. 414 ; 32 L. J. Q. B. 381. ... Dudlow, L. R. 19 Eq 198.

* 4 H. & N. 739. It appears, therefore, that promises

5 Readerti.Kingham,13C.B.(N.S.) to indemnify may or may not be with-

344. See also Mallett v, Bateman, 16 in the statute, according to circum-

C. B. (N. S.) 537, ;)cr Btles, J. ; and stances. See Smith's Mercantile Law,

Fitzgerald v. Dressier, 7 C. B. (N. S.) 462, n. (i), 7th ed.

288 STATUTE OP EEAUDS. [CHAP. IV.

Kingham has quite recently been confirmed.^ In this case
the Vice Chancellok said : " I am surprised to find that
there has been so much conflict ; " and added : " I am happy
to find that, the matter having been most carefully and
elaborately considered in the case of Reader v. Kingham,
when the full number of judges was present, the case of
Green v. Cresswell was overruled, and the doctrine of
Thomas v. Cook restored." Thus practically, although
perhaps not decisively, the doctrine of Green v. Cresswell
has no authoritative force in England, and has but little
force in our courts. In a recent case in Indiana,^ after a
careful review of the cases, the doctrine of this case was
directly repudiated, and the distinction between a contract
of, guaranty and one of indemnity was well illustrated by
Elliott, J. He said: "There is, in principle, an obvious
and important • difference between a contract of guaranty
and one of indemnity. The former is a collateral -under-
taking, and presupposes some contract or transaction to
which it is collateral.^ The contract, though in form a
guaranty, may be so framed as to constitute an absolute
and original undertaking, as was the case in Frash v. Polk,*
but even in that class of cases there is an obligation from
the party whose act or contract is guaranteed, and there is
also a debt, aiid may be default, toward the promisee.
It is impossible to conceive a guaranty as existing without
some act or contract guaranteed. A contract of indemnity is
essentially an original one. Between the promisor and promisee
tJiere is a direct privity. Between the person to whom the
promise of indemnity is given, and the person for whom
the latter undertakes as surety or bail, there is no privit)'-
at all. No matter what may be done by the person for
whom bail is entered, at the request of a third, he who
becomes bail cannot have any action, because as to the
person bailed the undertaking was purely voluntary.^ The

1 Wildes V. Dudlow, L. R. 19 Eq. Ind. 11 ; 2 Am. Rep. 323 ; Gofe v.
138. Sims, 45 Ind. 262 ; Dickinson v. Colter,

2 Anderson v. Spence, 72 Ind. 315; id. 445; Taylor v. Taylor, 64 id. 356,
37 Am. Rep. 162. 359.

8 Dole V. Toung, 24 Pick. (Mass.) * 67 Ind. 55.

250; Story on Prom. Notes, §457; ^ -White's Ex'rs v. White, 30 Vt.

McMillan v. Bull's Head Bank, 32 338; McPherson u. Meek, 30 Mo. 345.

SEC. 159.] GUARANTIES. 289

contract is an original and independent one, in which there
is no debt or default toward the promisee, to which there
are no collateral contracts, and in which there is no remedy
against the third party. A contract of this character has
long been held not to be within the statute.^ The general
rule running through almost all the cases is, that if the tliird
person is not liable, then the undertaking is not within the
statute. This doctrine is exemplified in the great number of
cases which hold that a promise to answer for the debt or
default of an infant ovfemme covert is not witliin the statute,
because there is no third person bound.^ It must be held,
both upon principle and authority, that the cases which eon-
fuse the contracts of guaranty and indemnity, and place
both upon the same footing, were erroneously decided, and
that they are not to be accepted as true interpreters of the
law." 3

The plaintiff having promised to indemnify G against the
consequences of a bail bond into which E had entered at
plaintiff's request, and E being forced to make a payment
in consequence, it was agreed between the plaintiff and
defendant that the plaintiff should obtain the money hy
discounting a bill drawn by the plaintiff and accepted by
the defendant ; it was held that the plaintiff was not liable
on his promise to indemnify, it not being in writing.*

In this country it is generally held that a verbal contract
of indemnity made upon a good consideration is not within
the statute. Thus, where A, in consideration of twenty-five
dollars, verbally agreed to indemnify B against any claim
made upon him for a certain subscription he had made, and
a judgment for the amount thereof was afterwards obtained
by him, it was held that A was liable upon his promise for the
amount of the judgment;^ and it has been held that a verbal
promise to indemnify a person against loss from becoming

1 Read v. Nash, 1 Wils. 305; Tom- (S. C.) 395; Drake «. Meurellen, 33
linson v. Gill, Amb. 330; Loomis v. Ala. 106; Boche v. Chaplin, 1 Bail.
Newhall, 15 Pick. 159; Harrison v. (S. C.) 419.

Sawtel, 10 Johns. (N. Y.) 242 ; Toplis " Ovemllmg Brush v. Carpenter, 0

V. Grane, 5 Bing. (N. C. ) 636 ; Marcy v. Ind. 78.

Crawford, 16 Conn. 549. « Cresswell v. Wood, 10 Ad. & El.

2 Harris v. Huntback, 1 Burr. 373; 460.

Chapin v. Lapham, 20 Pick. (Mass.) ^ Conkey v. Hopkins, 17 John.

467 ; Mease v. "Wagner, 1 MoCord (N. Y.) 113.

290

STATUTE OF FRAUDS.

[chap. IV.

surety for anotlier, upon tlie faith of which the promisee
assumes the responsibility, is an original undertaking and
supported by a sufficient consideration.^ In a recent case
in Indiana ^ this doctrine was carefully and ably considered,

1 Chapin v. Merrill, 4 Wend. (N.
Y.) 657 ; Lucas v. Chamberlain, 8 B.
Mon. (Ky.) 276; Harris «. Sawtelle,

10 John. (N. Y.) 242; Dunn v. West,
5 B. Mon. (Ky.) 376; Holmes <,.
Knights, 10 N. H. 175 ; Mills v. Brown,

11 Iowa, 315 ; Chapin v. Lapham, 20
Pick. (Mass.) 467; Jones v. Shorter,
1 Ga. 294; Perley v. Spring, 12 Mass.
297 ; Lucas v. Chamberlain, 8 B. Mon.
(Ky.) 276. In Bohannon v. Jones, 30
Ga. 488, the defendant verbally prom-
ised the plaintiff, who was a sheriff
and about to sell the horse of another
upon an execution that he held against
such person, that if he would not sell
the horse he would pay the amount of
the execution, and the defendant did
not sell the horse, and was subsequently
obliged to pay the debt, and it was
held that the promise was not within
the statute, and a similar doctrine was
held in Tindall v. Touchberry, 3
Strobh. (S. C.) 177, and these cases
seem sustainable upon the ground
that as the promise is made to a pub-
lic oflScer for doing or not doing an
act, from which a direct liability is
incurred by him, and has no immediate
relation to the debt, it is an original
promise of indemnity which is not
within either the letter or spirit of the
statute.

2 Anderson v. Spence, 72 Ind. 315 ;
37 Am. Rep. 162. In this case the
opinion of Elljott, J., is such a care-
ful and masterly review of the cases
that I give the main portion of it. He
said : " The appellant contends that
the contract upon which the action is
founded creates no liability, and in
support of his contention states and
argues these two general propositions :
1st. There was no consideration to
support the promise made to appellee ;
2d. That as the agreement was not in
writing, it is void, because it is a con-
tract to answer for the default of an-

other, and therefore within the statute
of frauds.

There is nothing in the first propo-
sition deserving discussion, and we
put it aside witli the remark that ap-
pellant got all the consideration he
stipulated for ; and he is not now in a
position to make a complaint (as least
with much prospect of having . it
heeded) of lack of consideration.

The second proposition involves an
inquiry into the nature of the oral
agreement upon which appellee relies.
If it is an original agreement, it is
not within the statute ; if a collateral
one, it is : the great weight of author-
ity is, that an original agreement is
not within the statute, although it
may directly concern a third person,
or relate to the performance of some
act by one not a party to the contract.
Thacher v. Rockwell, 4 Col. 375;
Edenfield v. Canady, 60 Ga. 456;
Hartley w. Varner, 88 111. 561; John-
son V. Knapp, 36 Iowa, 616 ; Smith v.
Cramer, 39 id. 413 ; Lester v. Bowman,
id. 611 ; Emerson v. Slater, 22 How. (U.
S.) 28 ; DeWolf ti.Eabaud, 1 Pet.(U. S.)
476; Morrison v. Baker, 81 N. C. 76;
Spooner v. Dunn, 7 Ind. 81 ; Crawford
V. King, 54 id. 6 ; Billingsley v. Dempe-
wolf, 11 id. 414; Nelson v. Hardy, 7
Ind. 367; Beaty v. Grim, 18 id. 131.
The general rule, as we have stated it,
is in its terms clear, and is well sup-
ported by the authorities, but there is
much difficulty in determining what
are original or what collateral agree-
ments. The cases upon this point are
much in conflict, and it is by no
means an easy task to determine from
them what are to be deemed original
contracts. The first case in our own
reports, which directly bears upon the
question under discussion is that of
Brush V. Carpenter, 6 Ind. 78, where
it was held, ' An oral promise by A
to B to indemnify B against loss, if he

SEC. 1S9.J

GXJAEANTIES.

291

and the doctrine stated in the text announced. In that case
it appeared that one Mary SuUenger had been indicted for

will become replevin bail for C, is void
under the statute of frauds.' The
case was not very carefully considered,
and very few of the adjudged cases
seem to have been brought to the at-
tention of the court. The case of
Brush V. Carpenter, 6 Ind. 78, did not
receive any direct notice from the
time it was decided except a bare ref-
erence in two cases, until the decision
in Horn v. Bray, 51 Ind. 555, where it
was cited and commented upon at
much length, and declared to lay down
an erroneous rule, the court saying :
' The ruling in Brush v. Carpenter is
against the current of American ad-
judications, and has been, in effect,
though not expressly, overruled by
the subsequent decisions of this
State.' The question in Horn o.
Bray, 51 Ind. 556, was whether a ver-
bal contract of indemnity as between
sureties was valid, and it was not
there necessary to expressly approve
or directly overrule Brush v. Carpen-
ter. Here we must approve or con-
demn. There is not a little confusion
in our own cases upon the subject of
what is an original and what a collat-
eral contract, but the weight is decid-
edly against the doctrine of Brush v.
Carpenter.

The English cases have not been at
all harmonious. The old case of
Winckworth v. Mills, 2 Esp. 484, held
that a promise of indemnity was with-
in the statute, but in Thomas v. Cook,
8 B. & C. . 728, the contrary doctrine
was declared. Thomas t. Cook was,
in turn, overruled in Green v. Cress-
well, 10 Ad. & El. 453. For a long
time the doctrine of Green v. Cress-
well has been viewed with disfavor,
and it was, long before its overthrow,
often severely censured, notably so in
the cases of Batson v. King, 4 H. &
N. 739, and Cripps v. HartnoU, 4 B. &
S. 414. After a long struggle the
doctrine of Green v. Cresswell was
directly overthrown in Header v.
Kingham, 13 C. B. (N. S.) 344. In

the later case of Wildes v. Dudlow,
L. E. 19 Eq. Cas. 198, Reader v. King-
ham is expressly approved, the court
saying that the case of Thomas it.
Cook, 8 B. & C. 728, was decided
' upon the plainest principles of com-
mon sense and justice.' While the
doctrine of Green v. Cresswell, supra,
was still recognized as the law of
England, the courts declared that
there was an important and broad
distinction between the undertaking
as- surety in civil cases and that as
bail in criminal proceedings. This
doctrine is stated with clearness and
force by Pollock, C. B., in Cripps
V. HartnoU, 4 B. & S. 414. This
learned judge, after speaking of
Green v. Cresswell, supra, said : ' But
there is a great distinction between
that case and the present. Here the
bail was given in a criminal proceed-
ing ; and where bail is given in such
a proceeding, there is no contract on
the part of the person bailed to in-
demnify the person who became bail
for him. There is no debt, and with
respect to the person who bails, there
is hardly a duty; and it may very
well be that the promise to indemnify
the bail in a criminal matter should
be considered purely as an indemnity,
which it has been decided to be. Now
it has been laid down that a mere
promise of indemnity is not within
the statute of frauds, and there are
many cases which would exemplify
the correctness of that decision.'
The English cases therefore establish
a rule which would take the present
case out of the statute, even though
it be conceded that the doctrine of
Green v. Cresswell should be deemed
the correct one. We confess, however,
that it seems to us that there was a real
conflict between the doctrine of Green v.
Cresswell and that of Cripps v. Hart-
noU, and that the distinction attempted
to be made by the later case was' simply
an effort to get rid of an unsound doc-
trine without expressly overruling it.

292

STATTTTB OF FEAUDS.

L[CHAt. IV.

assault and battery with intent to kill, and was in custody
upon that charge. The defendant, being desirous to secure

Green v. Cresswell was always in con-
flict with the English cases, and there
are many of them holding, to horrow
the language of the cases, 'that the
debt or default must be toward the
promisee.' Eastwood v. Kenyon, 11
Ad. & El. 438; Fitzgerald v. Dressier,
7 C. B. (N. S.) 374. There is no
' debt or default towatd the promisee '
in cases where one person becomes
bail for another at the request of a
third. In such a case, it is impossible
to conceive a debt or default as exist-
ing toward the promisee.

Long before the final overthrow of
Green v. Cresswell, many, indeed
most, of the American courts had ac-
cepted the doctrine, which indeed had
never been directly challenged, either
in England or America, that the debt
or default must be toward the promi-
see, and had carried it to its logical
conclusion. There are however many
American cases holding to the doc-
trine of Green v. Cresswell, some of
them somewhat extending it. With
the downfall of the original case, the
doctrine which it declared, always
plainly erroneous upon principle, must,
in time, be repudiated by all the
courts of the land. The doctrine of
Green v. Cresswell has "been repudiated
and that of Thomas v. Cooke adopted
in Michigan. Potter v. Brown, 35 Mich.
274 ; Comstock v. Morton, 36 id. 277.
Massachusetts : Blake v. Cole, 22
Pick. (Mass.) 97; Chapin v. Laphain,
20 id. 467. Ma:ine: Smith u. Say-
ward, 5 Me. 604. Minnesota : Gaetz
V. Foos, 14 Minn. 265. New York:
Sanders v. Gillespie, 59 K. Y. 250.
New Jersey : Apgar v. Hilers, 24 N. J.
H. 812. New Hampshire: Cutter v.
Emery, 37 N. H. 567; Holmes v
Knights, 10 id. 175. Kentucky;
Jones V. Letcher, 13 B. Mon. (Ky.)
363 ; Dunn v. West, 5 id. 376 ; Lucas
V. Chamberlain, 8 id. 276. Connecti-
cut ; Eeed v. Holcombe, 31 Conn.
360; Iowa Mills v. Brown, 11 Iowa,
314. Vermont: Beaman i/. Eussell,

20 Vt. 205. . Indiana : Anderson v.
Spence, ante. Georgia: Jones v.
Shorter, 1 Kelly (Ga.)' 294, and "Wis-
consin : Vogel V. Melms, 31 Wis. 306.
In North Carolina, DraUghan v.
Bunting, 9 Ired. (N. C.) 10, the doc-
trine of Green v. Cresswell is adopted,
while in the other States the question
is an open one. Ferrett v. Maxwell,
28 Ohio St. 383 ; Simpson v. Nance, 1
Speera (S. C.) 4; Bissig v. Britton, 59
Mo. 204 ; Garner v. Hodgkrns, 46 id,
399 ; Macy v. Childress, 2 Tenn. Ch.
438 ; Gadden v. Pierson, 42 Ala. 370.
In Aldrich v. Ames, 9 Gray (Mass.)
76, Shaw, C. J., spestking for tlie
court, held an oral promise of indem-
nity made to one to induce him to be-
come bail for another to be good. In
Holmes v. Knights, 10 N. H. 175, an
oral promise to indemnify a plaintiff,
if he would become baU for a third
person, was held not to be within the
statute. Cases are cited in Horn v.
Bray, from the reports of Massachu-
setts, Pennsylvania, Iowa, Maine,
New Hampshire, Vermont, Maryland,
Georgia, and Kentucky, showing that
a contract to indemnity is not within
the statute ; and to these may be
added Vogel v. Melms, 31 Wis. 306;
s. V. 11 Am. Rep. 608; Shook u. Van-
mater, 22 Wis. 532; Keedw. Holcomb,
31 Conn. 360; Sanders v. Gillespie,
59 N. Y. 250; Green v. Brookins, 23
Mich. 48; 9 Am. Eep. 74 ; Stocking v.
Sage, 1 Conn. 519. The general doc-
trine, that a promise to indemnify the
promisee for becoming surety for a
person other than the promisor is hot
within the statute, is approved by
many of the text-writers. 3 Pars.
Cont. (6th ed.) 21, n.; Roberts on
Frauds, 223; 1 HiUiard Cont. 384, §
11, 385, § 12 ; Throop, Verbal Agree-
ments, § 361. Our own cases have de-
clared the same general doctrine. In
Downey v. Hinchmau, 25 Ind. 453, it
was said that, ' to make the promise
collateral the pirty for whom the
promise is made must be liable to

SBC. 159.]

GUABANTEES.

293

her release, procured th© plaintiff to enter into a recogni-
zance for her appearance to answer to the charge, promising
him oraUy that he would indemnify him against all loss, and
save him harmless from all liabilities, costs, charges, and ex-
penses by reason of so becoming bail for her. The plaintiff,
having been damnified by reason of his having entered into
such recogiiizance, in an action to recover the same from the
defendant, he set up the statute of frauds in bar of the claim.
The court held that the statute had no application to con-
tracts for indemnity.^ So it is held that an agreement to
indemnify a person against the consequences of an act which
may amount to a trespass, are valid, unless a wiKul tres-
pass is contemplated*^ Thus, an agreement to indemnify an

the party to whom it is made.' In
Palmer v. Blain, 55 Ind. 11, it was held
that a Terbal promise by one person to
the creditor of an execution issued on
a judgment against a third, that if he
will satisfy such execution, the prom-
isor will make payment, of the judg-
ment in property and money, was not
within the statute. Green u. Cress-
well is cited with approval in Crosby
V. Jeroloman, 37 Ind. 264; but the
point involved in that case was very
different from that here under discusr
sion. The question in Crosby v. Jerol-
oman was whether there had been a
novation, not whether t^ie contract
was an original or collateral one ; and
it was rightly held, that unless the
original debt was extinguished by the
new promise, the case was not taken
out of the statute. In Ellison v.
Wishart, 29 Ind. 32, the question and
the holding were the same as in Cros-
by V. Jeroloman. The question in
Druly V. Hunt, 35 Ind. 507, was pre-
sented by the refusal to give the jury
the following instruction: 'If Druly
promised to guarantee or warrant the
pay to plaintiff which had been prom-
ised to be paid by a public meeting,
his promise was only collateral, and
not binding on Druly unless in writ-
ing.' It is very plain that no such
question as the one involved In the
present could have arisen in that case.
It may be safely affirmed, without

further citation, that there is no case
in our own reports directly supporting
the doctrine of Brush v. Carpenter,
and that there are several indirectly
condemning, and one, at least, censur-
ing it in express words, and in effect
overthrowing it." Horn v. Bray, ante.
In Easter v. White, 12 Ohio St. 219,
the same doctrine was held as in
Brush V. Carpenter, ante.

1 Conkey v. Hopkins, 17 John. (N.
Y.) 113 ; Staats v. Hewlett, 2 Den. (N.
Y.) 559. In Barry «. Ransom, 12 N. Y.
462, it was held that a parol agree-
ment between two sureties that one of
them would indemnify the other from
loss, was held not to be within the
statute. But in Michigan it is held
that an engagement to indemnify
sureties against loss is within the stat-
ute, and when made in writing in the
name of one party and purporting
upon its face to bind no other, it can
no more be shown by parol to be in
fact the undertaking of a different
party than could such a liability be
originally created by parol. First
Nat. Bank v. Bennett, 33 Mich. 520.
In Bjssig V. Britton, 59 Mo. 204, a
verbal promise to hold a surety upon
a replevin bond harmless was held to
come within the statute as being a
promise to answer for the default of
another.

2 Stone V. Hooker, 9 Cow. 154;
Avery v. Halsey, 14 Pick. (Mass,) 174.

294 STATUTE OP FRAUDS. [CHAP. IV.

officer to induce him to execute process by attaching prop-
erty where the title is in dispute, is valid, although by parol.^
In Connecticut^ it was held that a parol promise to indemnify
a person against a trespass, where the act to be done was
under a claim of right, is valid, and not within the statute.
In that case the facts were, that it was agreed between A
and B that if C would enter upon the- land of D and fish in
D's mill-pond, that, if C should be prosecuted therefor by
D, B would pay A one-half of the amount recovered and the
expenses of defending the suit. C did the acts specified,
and D sued him in tresspass therefor and recovered judg-
ment, the amount of which was paid by A, together with
the expenses of defending the suit. In an action to recover
of B one-half of such disbursements it was held that the
contract was an original undertaking, and not within the
statute. "The promise of the defendant," said Hinmak, J.,
" to pay one-half of the damages which might be recovered
against Samuel P. Crawford for fishing in the mill-pond, and
one-half of the expenses of defending against such a suit as
might be brought against him for such fishing, was in no
sense a promise to answer for the debt or default of Samuel
P. Crawford, but was an original undertaking, and, of course,
not within the statute of frauds. It could not be for the
debt of Crawford, for he owed none. It was not for his
default ; but was, rather, a promise of indemnity, to a certain
extent, for doing a particular act, like the promise of indem-
nity to an officer for taking property, which it may be doubted
whether the creditor can hold."

If a surety upon an obligation promises a third person that
if he will become a surety with him, he will indemnify him
against loss thereby, his promise is an original one because
it is a promise to answer, not for another's default, but his
own ; * and it is held that a promise to indemnify another,

' Stark V. Raney, 18 Cal. 622; groundless suits brought against him

Marsh v. Gould, 2 Pick. (Mass.) 284; by the crewfor chastisements inflicted

Train v. Gold, 5 id. 380 ; Wright v. within reasonable limits for the main-

Vemey, 3 Doug. 240. It has been tenance of the discipline of the sliip,

held that an agreement to indemnify but not for expenses incurred in a

the captain of a vessel against all prosecution where he was convicted,

legal expenses which may arise from Babcock v. Terry, 97 Mass. 482.

his chastisement of the crew, is valid ^ Jiarcy v. Crawford, 16 Conn. 548.

and binding as to expenses incurred in ' Tarrell v. Maxwell, 28 Ohio St. 383.

SEC. 159.] GUARANTIES. 295

if he will become surety for a third person, is not within
the statute,^ nor to indemnify a person if he will become a
guarantor for another.^ And, generally, a mere promise of
indemnity is not within the statute. Thus, where a person
promises to repay to another a share of the expenses of a
suit brought at the instance of the promisor, and in reliance
upon his promise, and for the mutual interest of the parties,
the promise is not within the statute, being a contract for
indemnity rather than guaranty .3 So where A agreed with
B to. assist in getting up an exhibition of the school of which
B was the master, upon the understanding that he should
lose nothing, but should be indemnified for his expenses and
services, it was held that the promise of indemnity was an
original one, and not within the statute.* In a Massachusetts
case, the plaintiff transferred his stock in a corporation, and
a note he held against the corporation, to the defendant in
exchange for a farm, the defendant agreeing to indemnify
the plaintiff against his indorsements on certain notes of the
corporation. It was held that the defendant's promise of
indemnity w^s founded on a good consideration, and was not
within the statute.^ In Maine,^ a parol promise by a fro
chien ami to pay counsel for services afterwards to be ren-
dered in a suit, for an infant, and to indemnify him for
indorsing the writ, was held not to be within the statute.
So, where the plaintiff at the request of the defendant, who
verbally agreed with the plaintiff, who had been trusted in
a suit against A, that if he would pay A the amount he owed
him, he would pay any judgment which should be recovered
against him. In reliance upon this promise, and upon no
other consideration, the plaintiff paid to A the amount of
his indebtedness, and it was held that the promise was
an original undertaking, and not within the statute.''

1 Dunn u. West, 5 B. Mon. (Ky.) = Dorwin v. Smith, 35 Vt. 69;

376; Lucas v. Chamberlin, 8 id. 276; Goodspeed v. Fuller, 46 Me. 141.
Mills ;;. Brown, 11 Iowa, 315 ; Harrison * Walker v. Norton, 29 Vt. 226.
V. Sawtel, 10 John. (N. Y.) 242 ; Jones ^ Alger v. Scoville, 1 Gray (Mass.)

V. Shorter, 1 Ga. 294; Holmes v. 391. See also Aldrich r. Ames, 9 id.

Knights, 10 N. H. 175 ; Perley v. 76, where it was held that a promise to

Spring, 12 Mass. 297 ; Chapin v. Lap- indemnify a person for hecoming hail

ham, 20 Pick. (Mass.) 467. for another is not within the statute.

" Chapin v. Merrill, 4 Wend. (N. « Sanborn v. Merrill, 41 Me. 467.
y.) 657. ' Soule v. Albee, 31 Vt. 142.

296 STATUTE OF FKATJDS. [CHAP. IV.

SeO. 160. Promise to Indemnify Against Costs of Suits.— ^
A promise to indemnify a third person against the costs of
a suit commenced or defended by him at the request of the
promisor, is not within the statute Thus, in Howes v.
Martin,^ the plaintiff had accepted several bills of exchange
from the defendant. These bills had all been regularly taken
up, except the last, which was for .£20. This bUl had come
into the hands of one Greensill, and the defendant, being
unable to take it up when due, had prevailed upon Greensill
to accept £16 in part, and the plaintiff's acceptance for six
guineas, being the balance of the bill, with the interest then
due for the remainder. This bill for six guineas not being
paid when due, Greensill brought his action on it against;
Howes as the acceptor. On the action being brought, the
plaintiff acquainted Martin with the circumstance, and he
desired the present plaintiff to defend the action. In con-
sequence of this advice the plaintiff defended the action,
and Greensill obtained a verdict for the amount of the bill,
which, with costs, amounted to £S2. The present action
was brought to recover this sum. Lord Kenyqn held that
the case was not within the statute, saying that it appeared
that the plaintiff never had any consideration whatever for
the acceptances, which were given merely on the defendant's
account and for his use ; that the defence to the action on
the note was on his account, and from whence he could have
derived a benefit ; that as he therefore was personally inter-
ested and directed the defence to be made, by which he might
have been benefitted, the money must be considered to have
been laid out by the plaintiff on his account and to his use,
and that he, therefore, was entitled to recover it. So, in
Bullock V. Lloyd,^ it was held that the promise of the in^
dorser of a dishonored bill to pay the indorsee the costs
of an action against the acceptor, need not be in writing.^

1 1 Esp. 162; Dorwin v. Smith, 35 forbearance to sue the maker. It was
Vt. 69 ; Goodspeed v. Fuller, 46 Me. held that such promise was within the
141. statute, there being no new considera-

2 2 C. & P. 119. tion therefor. Peabody v. Harvey, 4
' But see AVinckworth v. Mills, 2 Conn. 119; Huntington v. Harvey, 4

Esp. 484. The indorser of -., promis- Conn. 124. See also Jones v. Walker,
sory note, who was discharged by the 13 B. Mon. (Ky.) 356 ; Turner v. Hub-
laches of the holder, promised him to bel, 2 Day (Conn.) 457 ; Ellison v.
pay the note in consideration of his Wisehart, 29 Ind. 32. So a promise

SEC. 160.]

GUAEANTIES.

297

In Adams v. Dansey,^ the plaintiff, an occupier of land, at
the request of the defendant, and upon a promise of indem-
nity, resisted a suit of the Vicar for tithes ; it was held that
this was not a promise required by the statute to be in
writing. "Here," said Tdsdal, C. J., '*as between Adams
and Dansey, what promise is there as to the debt, default,
or miscarriage of another ? It is a direct promise , to repay
Adams any money which might be paid by him for costs in
the suit between the Vicar and Adams. It has been urged
that at all events the promise would not be available for
costs antecedently incurred. But it was competent to the
plaintiff to make any bargain he pleased as the price of Ins
resisting the tithe suit for the benefit of the defendant." *

by the holder to extend the time of
payment of a note, made in consider-
ation of a promise by a third person
to pay additional interest, and a ver-
bal release of the maker in considera-
tion of a promise by a third person to
pay the amount, is not binding, nor a
bar to an action on the note, the
promises which were the consideration
being void. Evans v. Lohr, 3 111. 511,
But the promise of one creditor to
pay the claim of another against their
mutual debtor, in consideration of the
forbearance of the latter to contest
the validity of a judgment obtained
by the former against the debtor, is
an original undertaking, and not with-
in the statute of frauds. Smith v.
Rogers, 35 Vt. 140. See also Tem-
pleton V. Bascom, 33 Vt. 132 ; Pratt «.
Humphrey, 22 Conn. 317; Fish v.
Thomas, 5 Gray (Mass.) 45; Ferris v.
Barlow, 2 Aik. (Vt.) 106.

1.6 Bing. 506; 4 Moo. & P. 245.

^ And see Spark v, Heslop, 1 E &
E. 563; 28 L. J. Q. B. 197. In Peck
V. Thompson, 15 Vt. 637, A owed B,
and sent him with a verbal order, to
procure the money from C on A's
account. C refused to pay on a
verbal order, and required B to bring
a written, order from A, or else to give
his own accountable receipt for the
money. B received the money, and
gave his receipt to account to C for
it, on demand. Afterwards C called
on B, ami threatened to commence a

suit upon his receipt. Of this B
notified ^, relying upon him to settle
the demand of C. In order to induce
B to submit to a suit in favor of C,
and thereby afford A an opportunity
to prove such payment, A and D
promised B to indemnify him against
any judgment which C might recover,
and also against the expense of de-
fending C's suit. It was held, that
the promise of A and D was not
affected by the statute of frauds. In
Rowe V. Whittier, 21 Me. 545, it was
agreed between the plaintiff and de-
fendant in an action to settle the
same in a certain manner, if the de-
fendant would "pay the expenses,"
and he verbally promised the plain-
tiff's attorney to pay the same to him.
It was held that the promise was not
within the statute of frauds, as to the
taxable costs, he being liable to pay
the same to . the plaintiff, but that it
was within the statute as to the charge
for commissions, he not being liable to
the plaintiff for them. In Eagland v,
Wynn, 37 Ala. 32, it was held that a
verbal promise by the sureties on the
official bond of a sheriff, after a de-
cree against them all has been ren-
dered, to pay an item of costs which
had been omitted in the taxation of
costs, on condition that the plaintiff
would allow a credit on the decree
for a sum which it was alleged had
been paid, is not within the statute.

298

STATTTTB OP FRAUDS.

[chap. it.

Generally it may be said that, if a promise of indemnity is
not collateral to the liability of some other person to the
same party to whom the promise is made, it is not within
the statute, and, in the absence of all evidence that there
was a liability of any other person to the plaintiff to which
the promise of indemnity could be collateral, it will be
treated as an original promise.^

Sec. 161. Parol Guaranty of Note Turned Out to Pay Debt.

— Under the rule as previously stated, that a promise which is
in effect to pay the debt of the promisor, although in form to pay
the debt of another, is not within the statute, it is held that
a parol guaranty of a note of a third person, which a debtor
transfers to a creditor in payment of his debt, either in whole
or in part, is not within the statute,^ and the creditor may

1 Beaman v, Russell, 20 Vt. 205.

2 Hassinger v. Newman, 83 Ind.
124 ; 43 Am. Kep. 64. But it was held
in this ease that an oral promise to
pay what the maker did not, is within
the statute. In Milks v. Rich, 80 N. Y.
269, the defendant recovered money
from plaintiff for his own benefit, and
delivered at the time to the plaintiff
a note of one Marsh, for the amoimt,
verbally promising that the note was
good and that it would be paid at ma-
turity. It was held that the defend-
ant was liable for the amount on the
note, and the promise to pay was not
within the statute of frauds. The
defendant delivered the note, and the
plaintiff received it as a mode of pay-
ing for the money, and the defendant's
promise was regarded in effect, not as
a collateral promise to answer for the
default of Marsh, but as a promise to
pay the plaintiff for the money the
defendant had, in case Marsh did not
pay him. It was the promise of one
to pay his own debt in case a third
person does not pay it. "Within the
principles laid down in the authori-
ties, such a promise is not within the
statute. Fowler v. Clearwater, 35
Barb. (N. Y.) 143; Dauber jj. Black-
ney, 38 id. 432 ; Losee v. Williams, 6
Lans. (N. Y.) 228; Johnson v. Gilbert,
4 Hill (N. Y.) 178; Brown v. Curtis, 2

N. Y. 225; Cardell v. McNiel, 21 id.
336; Bruce v. Burr, 67 id. 237; Dun-
ham V. Morrow, 2 N. Y. 533 ; Mobile
&c. R. R. Co. V. Jones, 57 Ga. 198. In
the case of Milks v. Rich, ante, Eakl,
J., while doubting the soundness of
the doctrine that such a parol con-
tract is not within the statute, yet
said that the court yielded its assent
to it because he thought the authori-
ties last cited should control. In Row-
land V. Rourke, 4 Jones (N. C.) L. 387,
it was held that a contract to make
good certain notes which a debtor
gave to his creditor in payment of a
debt, in case the maker was not good
for the amount on a certain day, was
not within the statute. See also .lones
V. Palmer, 1 Doug. (Mich.) 379. In
Eagle Mowing and Reaping Machine
Co. V. Shattuck, 53 "Wis. 455; 40 Am.
Rep. 78, it was held that where a
debtor induces his creditor to take in
settlement of the indebtedness the
note of a third person, with such
debtor's guaranty of its payment, not
stating the consideration, this is, in
effect, a promise by such debtor to
pay his own debt in a particular man-
ner, and is not within the statute of
frauds. Cassodat, J., said : " At the
time of the accounting and settle-
ment of the defendants with the
agent, the maker of the note in ques-

SEC. 161.J GITAEAKTIBS. 299

maintain an action against the promisor upon such guaranty
to recover the amount of the note, or such part thereof as he

tion was not indebted to the plaintiff,
but to the defendants. The note was
not given for property belonging to,
or furnished by, the plaintiff, but for
property belonging to and furnished
by the defendants. The note at the
time was the property of the defend-
ants. The defendants being indebted
to the plaintiff for money or notes
taken for the plaintiff's machines, and
by them converted to their own use,
turned out the note in question, with
the guaranty upon it, as their own
property, in payment of their own
debt. Are they to be discharged of
their debt without being held liable
on their guaranty? Does the case
come within the language or meaning
of the statute 1 Was the promise of
the defendants anything more than
a promise to pay their own debt in the
manner stated ? We think it was not,
and the case therefore comes clearly
within the rule of Wyman v. Good-
rich, 26 Wis. 21, where it was held
that 'where the owner of a note, as
part of the terms of sale thereof,
guarantees its payment, his contract
is not within the statute of frauds.'
It was not the consideration of the
note which was the basis of the prom-
ise of the defendants to the plaintiff,
but the money or property of the
plaintiff, which the defendants had
converted to their own use, and which
they undertook to pay by the transfer
of the note with their guaranty upon
it. It was in form a guaranty of the
payment of the note, but the guar-
anty was in fact made in payment of
their own debt. Such a case is neither
within the letter nor spirit of the stat-
ute, as abundantly appears from the
decisions of this court, and cases there-
in cited." In Putnam v. Famham, 27
Wis. 187 ; 9 Am. Eep. 459, a debtor
orally promised to pay part of his
debt by paying the debt of the credi-
tor to a third person, to which arrange-
ment the latter assented. Held, a
valid promise. The principal case is

sustained by Barker v. Scudder, 56
Mo. 272; Allen v. Eighmie, 9 Ilun
(N. Y.) 201 ; Mobile and Girard R. Co.
V. Jones, 57 Ga. 198 ; Malone i . Kee-
ver, 44 Penn. St. 107 ; Milks v. Rich,
80 N. Y. 269 ; 36 Am. Eep. 615. A
recent Massachusetts case, Dows v.
Swett, 120 Mass. 322, however, ad-
vances a doctrine which is apparently
opposed to this, and holds that a parol
guaranty of a note of a third person
given in payment of the debts of the
promisor is within the statute ; and in
New York, Draper v. Snow, 20 N. Y.
331 ; Brewster v. Silence, 8 id. 207 ;
Wood 0. Wheelock, 25 Barb. (N. Y.)
625, such a guaranty was held to be
within the statute, upon the ground
that the consideration was not suffi-
ciently connected with the considera^
tion in the principal contract. In
Bruce v. Burr, 67 N. Y. 237, the defend-
ant contracted to sell and deliver to
the plaintiff a quantity of books, and
to accept in payment therefor the note
of one Lund, the plaintiff at the same
time orally guaranteeing its payment at
maturity. The court held that the
guaranty was not within the statute.
In Johnson v. Gilbert, 4 Hilt. (N. Y. C.
P.) 178, the plaintiff paid a debt which
the defendant owed, and in considera-
tion of such payment, the defendant
transferred to him a note against one
Eastman, and guaranteed its payment,
and the guaranty was held to be valid.
In Garden v. McNiel, 21 N. Y. 336, in
which the defendant delivered the
plaintiff a chattel note in part pay-
ment for a horse, verbally guarantee-
ing its payment, a similar doctrine
was held, Comstock, J., saying : " In
mere form it was certainly a collateral
undertaking, because it was a promise
that another person should perform
his obligation. But looking at the
substance of the transaction, we see
that the defendant paid in this man-
ner a part of the price of a horse sold
to himself. In a sense merely formal
he agreed to answer for the debt of

300

STATUTE 05' PEAUBS.

[chap. IV.

has failed to obtain from the maker* Whatever may; b© said
as to the soundness of this rulej its justice cannot be doubted;
and there can be no doubt that ^t comes fairly within the
rule that, where l^e promise is in effect a promise to pay the
debt of the promisor it is not within the statute, because,
unless the note was accepted in. payment of the promisor's
debt, he would gtOl remain liable upon the original debt for
any deficiency which might arise from the creditor being
unable to collect the full amount thereof, and his guaranty,
therefore, creates no new obligation, but is in reality merely
a promise to pay a debt from which he was never released;
A different doctrine , might be held where the legal effect of
the transaction is to release the debtor from the debt, there
being nothing in the transaction, which shows that the original
claim is to be kept on foot, because, while in the former case
there is a mere change in the form of liability, in the latter
there is a creation of a new liability, in place of one which is
extinguished. It is upon this ground that the doctrine of a
recent Massachusetts case ^ previously referred tOj , which is ap-

Cprnell. In reality he undertoqk to pay
his own vendor so much of the price of
the chattel, unless a third person should,
make the payment for him, and thereby
discharge Hpi."- In Dauber ». BUqIct
ney, 38 Barb. (N. T.) 432, under a
similar state of facts, Hoyi^, J., said :
'< Wherever the holder of a note
against a third person turns it out in
payment of his own debt, or in pay-
ment of property purchased, or far
money received. by him from the per-
son to whom he transfers it, and at
the same time agrees that the note is
good; or will be paid at maturity, or
that it will be collected, by due pro-
cess of law against the maker, this is
an undertaking in substance, entirely
for his own benefit and advantage, and
the contract is valid, although it rests
entirely in parol, and is not within the
statute of frauds." In California and
Dakota the statute in express terms
except? this class of promises from
the operation of the statute.

1 Dqws I). Swett, 120 Mass. 322.
In this ca»e tlie court, after speaking
of transfers as collateral security or

in conditional, payment, said : " In the
latter class i of, ca?es the transaction
is as if the debtor said, ' I owe you a
debt. Take this note and collect it if
you can. If you get the money on it,
that will pay you,, If you do not, I
will myself pay you what I owe.' In
all such , cases the defendant's prom^
ise is la effect to pay his own debtj
an4 it is not n^ce^sary that such promr
ise should be in writing, though inci-
dentally the debt of- a third person is
guaranteed. And many of the decii
sions of courts which at first sight
may appear to ho^d that an oral guar-
anty of. the nqte of another, wliich is
transferred on account of a debt due
from the guarantor, is not within the
statute of frauds, on careful examina.;
tion will be f oimd not to rest- on that
principle, and not to be necessarily
inconsistent with our own conclusion
in the present case. Eor example, in
Milks V. Rich, 80 N. Y. 271; 36 Am.
Rep. 615, Eael, J., after stating that
'the reasoning to take this promise,
out of the statute i? quite subtle, and
I should have much difficulty in yield.

SEC. 161.]

GUARANTIES.

801

pareiitly opposed to the doctrine of the cases first cited in this
section, may be reconciled witli, or at least distinguished from
•them. In that case the defendant who was indebted to the
plaintiffs for goods purchased of them by him to the amount of
two hundred dollars, and for which they held his due bill,
•made an arrangement with them to surrender to him the due
bill, upon his delivering to them the note of one Robinson for
the same sum, payable to them or order, the defendant verbally
agreeing that he would pay the note, if ttdbinson did not. This
arrangement was carried into effect by the delivery of the
note of Robinson to the plaintiffs, payable to them, and the
surrender to the defendant of the due bill. The maker of
the note having failed to pay it, in an action to recover the
same of the defendant, it was held that his promise was col-
lateral, and within the statute. It is evident that the original
liability of the defendant for goods sold was merged in the
due bill, and when the due bill was surrendered to him and
the note of a third person taken in its place and stead, \mder
the arrangement detailed, the defendant ceased to be liable

ing it any assent, but for the author-
ities which I think ought now to con-
trol,' goes on to say : ' The defendant's
promise may be regarded in effect, not
aS a collateral promise to answer for
the default of Marsh, but as a prom-
ise to pay the plaintiff the money he
had had, in case Marsh did not pay
him, like the promise of one to pay
his own debt in case a third person
did not pay it.' In Bruce v. Burr, 67
N. Y. 237, the decision rests on the
same distinction, and both cases refer
for authority to Cardell v. McNiel, 21
N. Y. 336, where Comstock, C. J., in
delivering the opinion of the court,
said : ' In mere form it was certainly
a collateral undertaking. . . . But look-
ing at the substance of the transac-
tion, we see that the defendant paid
in this manner a part of the price of
a horse sold to himself. In a sense
merely formal, he agreed to answer
for the debt of Cornell. In reality,
he undertook to pay his own vendor
so much of the price of the chattel,
unless a third person should make the
payment for him, and thereby dis-

charge him.' In all these cases, it
will be observed that the court care-
fully put the decision on the express
ground that the original debtor is not
discharged, and his debt is not extin-
guished until the note is actually
paid. So in Pennsylvania, in Taylor
V. Preston, 79 Penn. St. 441, Woor>-
WARD, J., a, high authority, says : ' The
statute does not require the promise
to be in writing where it is in effect to
pay the promisor's own debt, though
that of a third person be incidentally
guaranteed; it applies to the mere
promise to become responsible, but
not to actual obligations,' — i.e., of
the promisor. ' Buying the land, the
promise to pay for it, whatever the
form, was a promise to pay their own
debt. It was not only a stipulation to
pay a debt which Preston owed, but a
stipulation to pay the price of prop-
erty they had bought.' To the same
effect are Townsend v. Long, 77 Penn.
St. 147 ; 18 Am. Eep. 438 ; and Malone
o. Keener, 44 id. 109." See also liing
V. Summitt, 73 Ind. 312 ; 38 Am. Rep.
145.

302 STATUTE OF FRAUDS. [CHAP. IV.

to the plaintiffs in any form, as both in law and in fact in the
absence of proof to the contrary the note was accepted in
payment of the original debt, and Robinson was substituted
as debtor in place of the defendant, so that the defendant's
promise to pay the note, if Robinson did not, was a promise
on his part to pay the debt t)f another, and not a mere promise
to pay his own debt.

The true test for determining whether a guaranty indorsed
upon a note is an original undertaking or a collateral promise,
within the statute of frauds, is not whether it was indorsed
before the delivery of the note, but whether the promise of the
maker of the note and that of the guarantor were parts of one
and the same original transaction. Thus where, three days
after the execution and delivery of promissory note from A
to H, T indorsed thereon, in pursuance of a previous agree-
ment, " I guarantee the payment of the within note," upon
the faith of which previous agreement H had sold and deliv-
ered to A certain horses, it was held that such indorsement was
not within the statute of frauds.^ When the owner of a note,
as apart of the terms of the sale thereof guarantees its payment,
his contract is- not within the statute of frauds, for the reason
that the promise is made upon a new and original considera-
tion moving between the creditor and the party promising, in
an independent dealing between them.^ Under this rule a
verbal promise by the assignee of a building contract, to pay
a debt of the assignor, was held to be part of the subject-
matter, and not within the statute of frauds.*

Sec. 162. Contract for Del Credere Agency. — A contract for
a del credere agency is not a promise to answer for the debt of
another within the statute. In Coutourier v. Hastie,* Paeice,
B., said : " The other and only remaining point is whether
the defendants are responsible by reason of their charging a
del credere commission, though they have not guaranteed by
writing signed by themselves. We think they are. Doubtless
if they had for a percentage guaranteed the debt owing, or

1 Howland w. Aitch, 38 Cal. 133. 673 ; Swan v. Nesmith, 7 Pick. (Mass.)

^ Wyman k. Goodrich, 26 Wis. 21. 220; Sherwood v. Stone, 14 N. Y.

8 Rabberman v. "Wisekamp, 54 111. 267 ; Bradley v- Richardson, 23 Vt.

179. 720; WolfE v. Koppel, 5 Hill (N. Y.)

4 8 Exch. 40; affirmed, 5 H. L. C. 460.

SBC. 163.] 6UAEANTIES. 303

performance of the contract by the vendee, being totally
unconnected with the sale, thej'- would not be liable without
a note in writing signed by them ; but being the agents to
negotiate the sale, the commission is paid in respect of that
employment ; a higher reward is paid in consideration of their
taking greater care in sales to their customers, and precluding
all question whether the loss arose from negligence or not,
and also for assuming a greater share of responsibility than
ordinary agents — namely, responsibility for the solvency and
performance of their contracts by their vendees. This is the
main object of the reward being given to them ; and though
it may terminate in a liability to pay the debt of another, that
is not the immediate object for which the consideration is
given, and the case resembles in this respect those of Williams
V. Leper ^ and Castling v. Aubert.^ We entirely adopt the
reasoning of an American judge (Mb. Justice Cowen) in a
very able judgment on this point in Wolff v. Koppel." ^

In Wickham v. Wickham,* Wood, V. C, said : " When I
look at the whole of the case (Coutourier v. Hastie) I cannot
but conclude that the judges considered that an agent entering
into a contract in the nature of a del credere agency, entered
in effect into a new substantial agreement with the persons
whose agency he undertook, that the agreement so entered
into by him was not a simple guaranty, but a distinct and
positive undertaking on his part on which he would become
primarily liable, otherwise I cannot see how the learned
judges could arrive at the conclusion that the undertaking
was not within the statute." The promise of a factor who,
having possession, sells the goods under a del credere commis-
sion, agreeing to guarantee the sales, rests upon the consider-
ation of his duty and responsibility growing out of his
employment, and is not within the statute.^

Sec. 168. Goods Furnished to an Infant. — The rule is that
in order to make an undertaking to pay the debt of another
a guaranty, the liability of the party for whom the guaranty
is given must be a clear and ascertained legal liability ; con-
sequently if goods are furnished to or money is paid on behalf

1 3 Burr. 1886 ; 2 Wils. 308. * 2 K & J. 479.

2 2 East, 325. ^ Inmau v. Inman, 6 Mo. App. 384.
8 5 Hill (N. Y.J 458.

304 STATTTTE OF FRAUDS. [CHAP. IV.

of an infant, or a married woman or any person laboring
under a legal disability, on the promise of the defendant to
be answerable, the undertaking is original and not collateral,
for the infant cannot be liable, and there is no privity between
the plaintiff and the infant.^ But this rule does not apply
where the promise is to pay a debt for necessaries which the
minor had previously contracted. Thus in a Massachusetts
case^ a father orally promised the plaintiff that if he Would
forbear demanding of his son the amount of a debt which
the son had previously contracted for necessaries, it Was
held that the promise was collateral and within the statute.
As the rule is predicated upon the ground that as there
is no liability on the part of the infant, there is no debt
of .the third person, and consequently the promise is origi-
nal, it follows as a necessary inference that in all cases
where liahility does exist upon the part of the infant, the
promise is collateral and within the statute.

When the party in whose behalf the promise is made is not
liable at all for the debt or duty in reference to which the
promise is made, it is evident that the statute does not apply,
because there is no debt to which the promise can be collateral,
or in reference to which it can be regarded as an undertaking
to answer for the debt, default, or miscarriage of another, and
in all such cases the promise is an original undertaking on
the part of the promisor, although he derives no advantage
therefrom, and an action of indebitatus assumpsit will lie
against him without regard to the special promise, and the
statute of frauds having no application, written evidence of
the promise is unnecessary.*

Sec. 164. Rights under Parol Gruaranty. — In England, it is
held that money |)aid under a parol guaranty cannot be re-
covered ; * but it has recently been held in Connecticut,^ and,

1 Duncomb V. Tickridge, Aleyn. 94j (Mass.) 365. See also Clark w. Levi,
Harris t;. Huntback, 1 Burr. 373; 10 N. Y. Leg. Obs. 184.

King V. Summit, 73 Ind. 312 ; Drake " Prentice v. Wilkinson, 5 Abb. Pr.

V. Pleurellen, 33 Ala. 106; Chapin v. (N. Y.).K S. 49; Mease v. Wagner, 1

Lapham, 20 Pick (Mass.) 467 ; Roche McCord (S. C.) 395.

V. Chaplin, 1 Bailey (S. C.) 419; * Griffith d. Young, 12 East, 513;

Mease v. Wagner, 1 McCord (S. C.) Shaw v. Woodcock, 7 B. & C. 73.

395. 6 Simpson v. Hall, 47 Conn. 417.

2 Dexter v. Blanchard, 11 Allen

SEC. 166.] GTJAKANTIES. 305

as we believe, correctly, that a recovery may be had in such
cases, the law implying that such payment was made at the
request of the person promised for. And in England it
appears that the courts can exercise summary jurisdiction
over one of their officers who has given such a guaranty, as
attorney, by compelling him to perform it.^ Where the fact
that a guaranty has been given is admitted by the payment
of money into court, proof that it was in writing is dispensed
with.''

Sec. 165. Dissolution or Alteration of Contract. — The stat-
ute does not contain any provision requiring that a contract
which must be in writing, shall be dissolved by writing, and
it seems, therefore, that such a contract may, before breach,
be wholly waived and abandoned by a parol agreement, so as
to prevent its being sued upon.^ But if another contract is
subsfituted for it, it must be valid, and must be in writing,
if it comes within the class of contracts required by the stat-
ute to be so proved,* and any alteration in the terms of an
agreement required to be in writing, must also be evidenced
by writing.^

Sec. 166. Application of the Statute to Toreign Contracts. —
An action cannot be maintained upon a contract made in a
foreign country, which is valid there, but which could not,
on account of the statute, be sued on if made here." The
rule seems to be well established, that so much of the law as
affects the rights and merits of the contract, all that relates
ad litis decisionem is adopted from the foreign country ; but
so much as afPects the remedy only, all that related ad litis
ordinationem, is taken from the lex juri of the country where
the action is brought.''

1 In re Greaves, 1 C. & J. 374, n. (a) ; 323 ; Noble v. Ward, L. E. 2 Exchq.
Evans v. Dunscombe, 1 id. 372 ; Senior 135.

V. Butt, and Payne v. Johnson, cited in ^ Pearson v. Henry, 5 T. K. 6 ;

Evans v. Dunscombe, ante. Mitchinson v. Hewson, 7 id. 348.

2 Middleton o. Brewer, Peake, 20; " Leraux v. Brown, 12 C. B. 801;
and see Prec. in Ch. 208, 374. Williams v. Wheeler, 8 C. B. (N. S.)

s Hobson V. Cowley, 27 L. J. Exchq. 299.
205 ; Goss k. Lord Nugent, 5 B. & Aid. ' Huber v. Sleiner, 2 Sc. 326 ; Ad-

66 ; Lavery v. Turley, 30 L. J. Exchq. dison on Contracts, 176 ; 2 Wm.
49. Saunders, 399; 1 Smith's L. C. 7th

* Moore u. Campbell, 10 Exchq. cd. (Eng.) 658, notes to Moystyn v.

Fabrigas.

306 STAO^UTE OF FEATJDS. [CHAP. IV.

Sec. 167. False Hepresentatious as to the Solvency of
Another. — In England, as well as in Alabama, Indiana, Ken-
tucky, Maine, Massachusetts, Michigan, Missouri, Oregon,
Vermont, Virginia, "West Virginia, and Wyoming, it is ex-
pressly provided by statute, substantially, that no action
shall be brought to charge any person by reason of any repre-
sentation or assurance made concerning the character, con-
duct, ability, trade, or dealings of any other person, unless
such assurances, etc., were made in writing, signed by the
party to be charged. But in the other States no such provi-
sion exists, and the rule which has existed ever since Pasley
V. Freeman,^ was decided, holding that an action lies for a
false representation as to the credit and responsibility of
another, whereby another person is induced to give him
credit, it has been held that the statute does not apply to this
class of actions, and such was the rule in England^ prior to
the statute 9 Geo. 4, chap. 14, as Avell as in those States in
which the provision of the English statutes in this respect
has been adopted ; ^ and the very circumstance that legislative
action has been deemed necessary to avoid liability in such
cases, would seem sufficient to put the question at rest in
those States where the legislature has not deemed it proper
to interfere. It will be noticed that the statute applies only
to representations relative to third person, and made for the
purpose of obtaining credit for him, and representations rela-
tive to the quality, cost, or value of property owned by a
third person do not come within the statute, especially when
not made for the purpose of obtaining credit for him, but
rather for the purpose of enabling him to sell the property.*

1 Pasley v. Preeman, 3 T. E. 51. Goss, 49 Barb. (N. Y.) 96 ; Ewins v.

"■ Poster u. CJiarles, 6 Bing. 396 ; Calhoun, 7 Vt. 79 ; Weeks v. Burton,

Tapp V. Lee, 3 B. & P. 367 ; Haycrof t 7 id. 67 ; Patten v. Gumey, 17 Mass.

■0. Creasey, 2 East, 92. 182. See also Adams v. Anderson, 4

8 Warren v. Barker, 2 Duv. (Ky.) H. & J. (Md.) 558; "West v. Wilcox, 1

155; Benton v. Pratt, 2 Wend. (N. Y.) Day (Conn.) 22; Hart v. Tallmadge,

385; TJpton v. Vail, 6 John. (N. Y.) 2 id. 381; Enssell v. Clarke, 7 Cr. (U.

181 ; Wells v. Eenway, 28 Barb. (N. S. C. C.) 69.

Y.)466;Eumseyt'.Lovell, Anth.N.P. * Medbury y.Watson,6Met.(Mass.)

(N.Y.) 26; Williams W.Wood, 14 Wend. 246. In Norton u. Huxley, 13 Gray

(N. Y.) 126; Allen v. Addington, 7 (Mass.) 385, the court held that the

Wend. (N. Y.) 9; Gough v. Dennis, statute applies only to cases where

Lalor Suppt. (N. Y.) 55; Zabriskie v. the representations were made with

Smith, 13 N. Y. 322 ; Van Bruck ii. the intent that such person might obtain

Peyser, 2 Eob. (N. Y.) 468; Viele v. credit, monet/, or goods.

SEC. 167.] GUARANTIES. 307

Thus, in the case first cited in the last note.^ In an action
by A against B, tlie declaration alleged that B, intending to
deceive and defraud A, falsely and fraudulently affirmed to
A, who desired to purchase a tannery, that he (B) M^ell knew
such a tannery as A wanted, which was worth |4,000 ; that the
owner paid that sum for it, and would sell it for what it cost
him ; that he (B) would aid A in buying it for that sum, and
that A relying upon B's affirmations relating thereto, and not
knowing the contrary nor the value of the tannery, purchased
the same of the owner, and paid 14,000 therefor, but that B's
representations were false ; that the tanner)'- was not worth
$4,000, and that the owner only paid |3,000 for it, wliich was
more than it was worth when A so bought it of him. The
declaration also alleged knowledge on B's part that his repre-
sentations were false, and that A was damaged thereby. It
being insisted that the case came within the statutes relative
to representations as to the character, etc., of third person^,
the court held that this section of the statute did not apply,
and that the action could be maintained, although the repre-
sentations were verbaL But false representations as to the
condition of the title to property of a third person, with an
assurance that because of such condition, the person to whom
they are made would he safe in giving him credit, is within the
statute.^ Thus, in the case last cited the plaintiff was in-
duced to lend money to a third party by the defendant's
representation that he had in his possession the title deeds
to an estate, which he said such third party had lately bought,
and that nothing could be done without his knowledge, and
that the plaintiff would he perfectly safe in making the loan, it
was held to amount to a representation that the third party's
credit was good, and therefore was within the statute.^ Rep-
resentations by an agent* or officer^ of a corporation as to its
pecuniary standing or ability come within this section of the
statute. Thus, where the agent of an insurance company
made false representations as to the pecuniary responsibility

1 Medbury v. Watson, ante. facts, the Court of Exchequer were

2 Swann v. Phillips, 8 Ad. & El. divided upon the question.

457. * Wells V. Prince, 15 Gray (Mass.)

3 See Lyde v. Barnard, Tr. & G. 562.

250, where, under a similar state of ^ McKinney v. Whiting, 8 Allen

(Mass.) 207.

308 STATUTE OF FRAUDS. [CHAP. IV.

of a company in which he desired to have the plaintiff insure,
and in which, by reason of such representations the plaintiff
did insure, it was held that the action was within the stat-
ute.-^ And the same was held where a treasurer of a corpo-
ration made false representations to the plaintiff as to the sol-
vency of such corporation, for the purpose of inducing him
to take a note of the corporation signed by him as agent.^
But a representation that the makers of certain notes which
a third person takes as collateral security for a debt are good,
does not come within this section of the statute,^ nor does a
representation, express or implied, that the signatures to a
note are genuine.* But it seems that representations as to
the credit and ability of the maker of a note, made by a per-
son with a view of inducing such person to indorse the note,
so that the person making the representations could get it
discounted for his own use, are within the statute, and do not
form a basis for an action unless in writing.^ In an action
for money had and received, where the gist of the action is
the defendant's false representations, in reference to the finan-
cial standing of another, the statute of frauds is available as
a defence, unless the representations were in writing.^

Sec. 168. statute Applies to Corporations. — It is not neces-
sary that the "other person" spoken of in the statute
should be a natural person. An artificial person is equally
within the meaning of the statute.'^ Hence, if the represen-
tations are such that the case would be governed by the
statute, if the company were a natural person, the fact

■ Wells V. Prince, ante. chase the goods, to pay the defend-

2 McKinney v. Whiting, ante. ant a debt which was owing him from

' Belcher v. Costello, 122 Mass. such third person.

189. « Hunter v. Randall, 62 Me. 423.

* Cabot Bank v. Morton, 4 Gray ' Deraux v. Steinkeller, 6 Bing.

(Mass.) 156. (N. C.) 84; Boyd v. Croydon Ey. Co.,

' Mann v. Blanchard, 2 Allen 4 id. 669; McKinney v. Whiting, 8

(Mass.) 386. See also Kimball v. Allen (Mass.) 207 ; Rust v. Bennett,

Comstock, 14 Gray (Mass.) 508, 39 Mich. 521 ; Pharmaceutical Society

where it was held that a fraudulent v. London &c. Association, 4 Q. B.

representation that a person is of Div. 313; People v. May, 27 Barb,

good credit, for the purpose of en- (N. Y.) 238; British Ins. Co. v. Com-

abling him to purchase goods on missioners of Texas, 31 N. Y. 32;

credit, is within the statute ; although People v. Utica Ins. Co., 15 Johns.

the representation was made in order (N. Y.) 381; People v. Rector, 23

to enable such third person to pur- N. Y. 44

SEC. 168.J GTJAEANTIES. 309

of its being an artificial one will make no difference.^
While the stockholders of a corporation are not liable
for its debts, and do not stand in such a relation to it
that their promise to pay its debts can be said to be
an original undertaking,^ yet if a stockholder contracts
with a person on behalf of the corporation, and agrees to
become personally responsible to the other party to the con-
tract, it has been held that his undertaking was original,
although the corporation is also liable for the debt. Thus,
where the plaintiff, at whose house a pauper who had been
injured was left directly after the injury, applied immediately
to the overseer of the poor to support him, and the overseer
sent word, in his official capacity, to the plaintiff, to take
good care of the pauper, and that if the latter did not pay
him, he, the overseer, would see that he had his pay ; it was
held that this promise was an original promise, not within
the statute of frauds, and was binding upon the town.^ So
where A and B were both members of a religious society,
and B, in the course of his duty as steward of the society,
said to A : "I want you to board W (the minister) ; if you
will do it, I will see that you shall be well paid, and have the
money for it." A gave credit to B, not knowing that he was
an officer of the society, but B did not suppose that he was
becoming personally liable. It was held that the contract
was not within the statute of frauds, and that A could re-
cover in an action against B for Ws board.* In a case in
the United States Supreme Court,^ a contractor for a railroad
bridge agreed with a stockholder that the work should be
done by a day certain ; that the contractor should thereupon
receive the money and notes of the stockholder, which were,
when paid, to go towards payment of the indebtedness of
the railroad company to the contractor ; that this agreement
should in no way affect the agreement with the railroad com-
pany on which an action was then pending. It was held that
the undertaking of the stockholder was original, and not col-
lateral, and, therefore, that a parol alteration of its terms

1 Bush V. Sprague, Mich. S. C. 1883. « Blodgett v. Lowell, 33 Vt. 174.

2 Trustees v. Flint, 13 Met. (Mass.) * Bushee v Allen, 31 Vt. 631.
539; Quin v. Hanford, 1 Hill (N. Y.) " Emerson v. Slater, 22 How. (TJ.
82. S.) 28.

310 STATUTE OF PBATJDS. ' [CHAP. IT.

before breach was good. In an Iowa case^ the defendants
advertised that, by reason of their being stockholders in a
certain bank they would redeem its notes, whereupon the
notes acquired credit, and circulated freely. It was held an
original promise, and not within the statute. The doctrine
of this case can only be sustained upon the ground that such
advertisement operated as an assumption by the stockholders
of the indebtedness of the corporation upon a sufficient con-
sideration, and that thereafter credit was given to them, rather
than to the corporation, by the bill-holders and those to whom
the bills were passed. In a Pennsylvania case,^ where the
directors of a corporation transferred part of their stock, and
resigned their directorship, that their transferees might be
elected in their stead ; and the transferees verbally promised,
in consideration therefor, to pay the debts of the corporation,
it was held that such promise was within the statute of frauds,
and could not be enforced. In Maine, a contract made by on^
of a committee of five, chosen by a parish to build a church
in the name of the whole, is not binding on the corporation,
and therefore not upon the other contracting party. And
he having entered upon the performance, if other members
of the parish agree in writing to secure to him the payment
of the amount of his contract, according to its terms, one-
half when he shall have completed the work, and the balance
in sixty days thereafter, this is an original and not a collateral
promise. The labor to be performed in completing the work
is a sufficient consideration.'

1 Tarbell v. Stevens, 7 Iowa, 163.

2 Maule V. Bucknell, 50 Penu. St. 39.
' Adams v. Hill, 16 Me. 216.

CHAPTER V.

AGEEBMENT HT CONSIDEEATION OF MAKEIAGE.

SECTION.

169. Promise to Marry not Within the Statute.

170. Consideration for Promise Need not be Expressed.

171. Memorandum Must be Complete.

172. Bond.

173. May be Proved by Letters.

174. Marriage not Part Performance.

175. Part Performance Independent of Marriage.

176. Eepresentations of Third Party Referring to Marriage.

177. By Whom Enforced.

178. Representation Must be Clear.

179. Parol Evidence Admissible to Prove Promise.

180. Marriage Cannot take Place on Faith of Representation.

181. Party Making, Refusing to be Bound.

182. Expression of Wish by Husband.

183. False Representations of Fact.

184. Fraud not Allowed to be Covered by the Statute.

185. Written Agreement after Marriage.

186. Not Revocable.

187. Time of Performance.

188. Post-nuptial Settlement.

189. Promise must be Absolute.

Section 169. Promise to Marry not Within the Statute. —

Mere promises to marry are not within the statute, and need
not be reduced into writiag in order to be binding,^ but may
be made by parol,^ unless it appears that it was expressly agreed
that the contract is not to be performed in one year^ in which
case it clearly comes within the statute relating to that class
of contracts, and evidence is admissible to show whether the
contract was or was* not to be performed within one year,*

1 Harrison «. Cage, Ld. Raym. 386 ; » Derby v. Phelps, 2 N. H. 515 ;
Salk. 24 ; 5 Mod. 411 ; Cock v. Baker, Lawrence v. Cook, 56 Me. 193 ; Nichols
Str. 34. V. Weaver, 7 Kan. 373.

2 Taylor on Evid. 909; B. N. P. < Wallace, D. J., in XJUman o.
280 c; 2 Sel. N. P.; Cock v. Baker, 1 Meyer, XJ. S. C. C. {S. D. N. Y.), of
Str. 34 ; Harrison v. Cage, 1 Ld. Raym. whose opinion an abstract is given in
386 ; Short v. Statts, 58 Ind. 29. Alb. L. J., No. 631, p. 164, says : " As

312

STATUTE OF PEATJDS.

[chap. T.

and if not, there seems to be no good reason why the statute
should not apply to this as well as to other contracts, the
rule being that this clause of the statute applies to all agree-
ments where each party stipulates to do something, as well
as to contracts to pay money.^ But the rule being that if
the contract may be performed within a year it is not within
the statute unless there is an express agreement that it shall
not be performed within that time,^ it is clear that this clause
does not apply to this class of contracts, unless an express

an original proposition, it may be de-
bated whetlier the statute of frauds
was ever intended to apply to agree-
ments to marry. They are agreements
of a private and confidential nature,
which in countries where the common
law prevails, are usually proved by
circumstantial evidence ; and at the
time the English statute was passed,
were not actionable at law, but were
the subjects of proceedings in the
ecclesiastical courts to compel per-
formance of them. Nevertheless, at
an early day after such actions be-
came cognizable in courts of law, the
defence of the statute of frauds was
interposed under that clause of the
statute which denies a right of action
upon any agreement made upon con-
sideration of marriage, unless the
agreement is in writing ; and though
it was held that such clause only re-
lated to marriage settlements, there
seems to have been no doubt in the
minds of the judges that promises to
marry were within the general pur-
view of the statute. In our own
country, in Derby v. Phelps, 2 N. H.
515, the question was directly decided,
and it was held that, although the de-
fence could not be maintained under
the marriage clause of the statute, it
was tenable under the clause requiring
all agreements not to be performed
within a year to be in writing. To the
same effect are Nichols v. "Weaver, 7
Kan. 373, and Lawrence v. Cook, 56
Me. 193. The question has never
been presented in our own State, and
the ruling upon the trial was made
under the impression that the excep-
tion in the third clause of our statute

was meaningless, unless intended to
relate to all the clauses. It was en-
tirely unnecessary, if limited to the
particular clause in which it is placed,
because, by the settled construction
of the statute, the clause did not ap-
ply to excepted classes of promises.
1 Ld. Eaym. 387; 1 Str. 35. When
English statutes — such as the statute
of frauds — have been adopted into
our own legislation, the known and
settled construction of these statutes
has been considered as silently incor-
porated into the acts. Pennock v.
Dialogue, 2 Pet. (U. S.) 1. A more
careful examination has satisfied me
that the only purpose of inserting the
exception was by way of explanation,
and to remove any doubt as to the
meaning of the clause by incorpo-
rating into it expressly what would
otherwise have been left to implica-
tion. While the letters of the parties
show a marriage engagement, the terms
of the engagement and the time of the
marriage are not indicated sufficiently
to take the case out of the statute.
The evidence offered to show that the
promise of the defendant was not by
its terms to be performed within a
year was sufficient to present a ques-
tion of fact for the jury. As this
question was withdrawn from their
consideration, there must be a new
trial."

1 Cabot V. Hoskins, 3 Pick. (Mass.)
83 ; Lapham W.Whipple, 8 Met. (Mass. )
50.

^ Moore v. Fox, 10 John. (N. Y.)
244 ; Dresser v. Dresser, 35 Barb. (N.
Y.) 573.

SEC. 169.] CONSIDERATION OF IfAREIAGB. 313

offreement that it shall not be performed in one year is shown,
and the fact that the marriage is not to transpire until the
happening of a certain event which it is not expected will
happen within a year does not bring it within the statute.
Thus in a Connecticut case,^ the plaintiff in her declara-
tion in one count set up a contract to marry, entered
into between herself and the defendant on the first day
of June, 1846, by which the defendant promised to marry
her upon his return &om a whaling voyage, which it was
expected would occupy about eighteen months. It was
insisted by the defendant that the promise alleged in this
count was within the statute of frauds, and the trial judge
charged the jury that it was so, unless they should find that
there had been a previous mutual contract to marry, without
any specification as to the time of its performance, which was
afterwards postponed until the defendant returned from his
voyage. But the court held that, while the charge of the
court was otherwise correct, yet it was erroneous as to the
contract being within the statute of frauds, if only as stated
in the count referred to. Storks, J., saying : " We think
that part of it was erroneous, in which the jury were in-
structed, that the contract, as stated in the second and tliird
counts, was within the statute of frauds, and therefore must
be in writing. It is now well settled, that it was not an
agreement made upon consideration of marriage within that
statute.^ Nor, in our opinion, is the agreement, as alleged
in those counts, one which, by the true construction of that
statute, was not to be performed within one year from the
making thereof. It is not alleged in any form, that it was
made with reference to, or that its performance was to depend
on, the termination of a voyage which would necessarily occupy
that time. It is only alleged, that it was expected by the
parties, thai the defendant would be absent for the period of
eighteen manths. But this expectation, which was only an
opinion or belief of the parties, and the mental result of their
private thoughts, constituted no part of the agreement itself ;
nor was it connected with it, so as to explain or give a con-
struction to it, although it naturally would, and probably

1 Clark V. Pendleton, 20 Conn. » Cock v. Baker, Bui. N. P. 280;
496. S. C. 1 Str. 34.

314 STATXTTB OF FRAUDS. [CHAP. V.

did, form one of the motives which induced them to make the
agreement. The thing thus anticipated did not enter into
the contract, as one of its terms; and according to it, as
stated, the defendant, wheneyer he should have returned,
after having embarked on the voyage, whether, before or
after the time during which it was thus expected to continue,
would be under an obligation to perform his contract, with
the plaintiff. As it does not therefore appear, by its terms,
as stated, that it was not to be performed within a year from
the time when it was made, it is not within, the statute.^
It is unnecessary for us to determine what would be the
effect of proof that the event, upon which the performance
of a verbal contract depended, could not hy possibility take
place within a year from the making thereof, when it did not
appear from the contract itself that it was not to be performed
within that time ; because there was no claim, in the present
case, which raised that point."

The contracts contemplated by this clause of the statute are
those which are made in consideration of the marriage itself,
and contracts merely in comtemplation or expectation of marriage
are not within the statute.^ This distinction is illustrated by
several well considered American cases. Thus in an Indiana
case,^ a husband and wife, having orally agreed before mar-
riage that the survivor, after marriage, should not claim any
of the estate left by the decedent; in an action by the
widow against the husband's administrator to recover the
statutorj-^ allowance to a widow out of a deceased husband's
estate, it was held that the agreement was not within the
statute, so far as it related to provisions in consideration of
marriage, but otherwise as to the provisions of the statute
relating to sales of real estate; but that the agreement
not being severable, could not be enforced against the widow.
In a Connecticut case,* it appeared that the parties on the eve
of marriage agreed that certain notes which Mrs. Riley, then
single, held against Mr. Riley should not be extinguished by

1 Anon., 1 Salk. 280; 1 Ld. Kaym. ^ Lassence v. Tierney, 1 Mao. & G.

316 ; Holt. 326 ; Peter v. Compton, 551 ; Warden v. Jones, 2 De G. & J.

Skin. 353 ; Fenton v. Emblers, 3 Burr. 76 ; aff'g S. C. 23 Beav. 487.
1278; Moore v. Fox, 10 John. (N. Y.) » Rainbolt v. East, 56 ifnd. 538; 26

244; Peters v. Westborough, 19 Pick. Am. Rep. 40; ChUd v. Pearl, 43 Vt.

(Mass.) 364 ; Wells v. Horton, 4 Bing. 224.
40; Linscott v. Mclntire, 15 Me. 201. * Eiley v. Riley, 25 Conn. 154.

SEC. 169.] CONSIDEBATION OF MAr.EIAQE. 316

the marriage, but should remain her separate property, col-
lectible out of his estate, if she would forbear to insist on
their payment before marriage. In delivering the opinion
of the court, Ellsworth, J., says : " As to the objection
derived from the statute of frauds and perjuries, we think
there is no ground for it. The ante-nuptial promise was made
in consideration of forhearance, and not in consideration of mar-
riage, though it was made in contemplation of marriage,
which is not inconsistent with the claim of the appellant's
counsel, that a promise in consideration of marriage must be
in writing. Marriage was not the meritorious cause of Riley^s
promise, the marriage obligation was aUeady perfect, and the
promise in question was made upon the assumption that it was
so, and for the exact purpose of saving the notes from the effect
of the marriage when the marriage contract should be executed.
No advancement or benefit was to accrue to either party in the
event of the marriage, any more than if it did not take place,
and hence it is not possible to consider marriage as the con-
sideration of the promise. It was the debt, the forbearance
of it ; and this forbearance having been extended upon the
request of Riley, there is no reason why his estate should not
be liable." But where the marriage is the sole consideration
of the contract, it is within the statute, whether made between
the parties themselves, or a third person.^ Thus in Brown
V. Conger,^ it appeared that it was mutually agreed between
the plaintiff and one Isaac C. Brown, that in consideration
that the plaintiff would marry him, he would give her one-
third of all his property of every kind, which he represented
to be of the value of $13,000. The plaintiff in pursuance of
such contract married Brown and' lived with him until the
time of his death, and Brown not having performed his part
of the contract in his lifetime, or made provision therefor in
his will, a bill for specific performance was brought against
the executor of his estate ; but the court held that, as the corir
tract was made upon the consideration of marriage solely, it was
void, and that marriage is not alone such a part performance
as will take it out of the statute.^

1 Jorden v. Money, 5 H. L. C. 207 ; re Willougliby, 11 Paige Ch. (N. T.)

Brenner v. Brenner, 48 Ind. 202; Dy- 257.
gert V. Kemershnider, 32 N. Y. 029; = 8 Hun (N. Y.) 625.

Henry v. Henry, 27 Ohio St. 121; in = Dung v. Parker, 52 N. Y. 496.

316 STATtTTE OF PBATJDS. [CHAP, V.

Sec. 170. Consideration for Promise Need not be Expressed.
— Marriage is a good consideration to support a promise, but
it is not necessary that the agreement should expressly state
that the promise was made in consideration of marriage, if
from the evidence it is sufficiently proved that such was the con-
sideration.^ Thus, where A being about to marry B, the
uncle of A addressed him by letter as follows : " I am glad
to hear of your intended marriage with B, and, as I promised
to assist you at starting, I am happy to tell you that I will
pay you ^150 yearly during my life, and until your annual
income derived from your profession shall amount to 600
guineas, of which ypur own admission will be the only evi-
dence that I shall receive or require," and the husband's
income never amounted to 600 guineas, it was held that the
letter contained a good consideration to support an action
against the executors of the uncle for arrears of the
annuity.^

Sec. 171. Memorandum Must be Complete. — The memo-
randum need not be of a formal character, but it must be
complete in itself, or specific performance will not be decreed.^
" Part performance, to take a case out of the statute of frauds,
always supposes a complete agreement. There can be no
part performance where there is no completed agreement in
existence. It must be obligatory, and what is done must be
under the terms of the agreement, and by force of the agree-
ment." *

The putting a deed into the hands of a solicitor with
instructions to prepare a conveyance is not enough to take
a parol agreement out of the statute.^ Where, previously to
an intended marriage, the intended husband gave instructions
in his own handwriting for a settlement, which was prepared
but not executed, it was held that there was no memorandum
within the statute.®

1 Hammersley v. De Biel, 12 C. & ^ Bawdes v. Amhurst, Prec. Ch.
F. 45. 402 ; Montacute v. Maxwell, 1 P. "Wms.

2 Shadwell .,. Shadwell, 7 Jur. (N. 618 ; 1 Str. 236 ; Eedding v. Wilkes, 3
S.) 311; and see Saunders v. Cramer, Bro. C. C. 400.

3 Dr. & War. 87. e Caton v. Caton, L. E. 1 Ch. 137 ;

s Watson's Comp. of Eq. 551. affd. ib. 2 H. L. 127 ; and see post,

* Lady Tliynne v. E. of Glengall, chapter on the memorandum or note

2 H. L. C. 158, per Loed Bkotigham. of the contract.

SEO. 173.] CONSrOEEATION OF MARRIAGE.

317

Sec. 172. Bona. — Where a bond or deed is given, either
by the intended husband to his intended wife, or vice versa,
it may, though suspended during the marriage, be specifically
enforced after the death of the covenantor by the covenantee.^

Where a man, by deed, covenanted to pay a woman an
annuity for her life, payable half-yearly, for her separate use,
and free from anticipation, and afterwards married the annui-
tant, and died leaving her surviving, it was held that the
annuity was not extinguished, but only suspended by the
marriage, and that the widow was entitled to recover arrears
accrued subsequently to the death of her husband.^

Sec. 173. May be Proved by Letters. — The promise may
be made by letters ^ though written to a third person,* and a

1 Acton V. Peirce, 2 Vern. 480;
Cannel v. Buckle, 2 P. Wms. 243.

2 Fitzgerald o. Fitzgerald, L. E. 2
P. C. 83.

3 Wankford v. Fotherley, 2 Ver.
322 ; Luders v. Anstey, 4 Ves. 501 ; 5
Ves. 213.

* Moore v. Hart, 1 Ver. 110, 200.
In Seagood v. Meale, Prec. Ch. 560,
some stress was laid upon the opera-
tion of the letter, as an encouragement
to the party to marry ; and in the case
of Ayliffe v. Tracy, 2 P. Wms. 65, this
operation as influencing the intended
husband to conclude the match, was con-
sidered as necessary to the obligatory
effect of the letter, within the statute of
frauds. The case was as follows : The
plaintiff courted one of the daughters
of Sir Thomas Halsewood, and treated
with the father about the marriage;
the father consented to the marriage,
and wrote to his daughter intimating
that he had met the plaintiff, Mr. Ay-
liile, and had agreed to give him as a
portion £3,000, which the plaintiff (he
said) seemed fully to assent to, and
that they were to meet the next day,
when the affair was to be fully con-
cluded; and subscribed his name to
the letter. Accordingly, the father
and intended husband met and agreed
to the marriage, and the father gave
money to the daughter to buy her
wedding clothes, and the wedding-day

having been appointed, the father
died before that day, having made his
will long before this treaty for the
marriage, and given his daughter only
£2,000, the daughter did not show this
letter to her intended husband, whom
she afterwards married; and the £2,000
was paid to the plaintiff, the husband,
but he made no settlement, nor was
he required to make any on his wife.
The LoED Chancellor was of opinion,
that these circumstances amounted to
nothing more than a mere communi-
cation, and had no ingredient of
equity ; the husband, his lordship said,
had made no settlement ; he did not
know of this letter, it being written to
his daughter; and that, therefore, he
could not be supposed to have married
in confidence of this letter; that he
had accepted the £2,000 legacy as the
portion, and at that time had de-
manded no more ; and that the other
daughter had but £1,500 portion. See
this case very differently reported in
9 Mod. 3. Upon a somewhat similar
principle, where an uncle by letter
promised his niece £1,000 portion, but
in the same letter dissuaded her from
marrying the person intended, the Lords
Commissioners, Rawlinson and Hutch-
ins, Vern. 202, would not decree the
payment, but left the plaintiff to his
action at law. Douglass v. Vincent, 2
Vern. 202. But it is not so easy to

318

STATUTE OF FRAUDS.

[chap. V.

written promise which has been subsequently revoked does
not require a memorandum or note in writing to revive it,

account for the determination by the
same judges in the same term in the
case of Cookes v. Mascall, 2 Vern. 200,
which ease was as follows : A marriage
was in treaty between the plaintiff
Cookes and the defendant Mascall's
daughter, it being intended that Sir
Thomas Cookes would make a consid-
erable settlement on the plaintiff, his
kinsman; proposals were made for
mutual settlements, and it was there-
by agreed that Mascall should settle
£iO per annum for the present, and
that Edward Cookes, the father, should
settle the reversion of his estate at
Wick, after the death of him and his
wife, and should allow his son £20 per
annum for maintenance in the mean-
time, and Mascall was to settle rever-
sions of copyholds after the death of
himself and his wife, of the value of
£80 per annum. In 1684, a meeting
was appointed, and held at Worcester,
in order to a full agreement ; the pro-
posals were then considered, and all
parties seemed to allow and approve
thereof. In October, 1684, Cookes,
the father, with one Baker, an attor-
ney, came over to Mascall's house at
Fordebigg, in order to make a final
arrangement touching the settlement
to be made on the intended marriage.
Mr. Baker having conversed with both
parties, proceeded to draw the agree-
ment into articles in writing to be
mutually signed by the parties; but
before the same were ready for execu-
tion, Mascall and Cookes disagreed;
and Mascall by his answer swore posi-
tively, that upon reflecting that Sir
Thomas Cookes had refused to make
any settlement on his kinsman, as it
was pretended he would, and that
Cookes the father also refused to set-
tle a further estate upon the plaintiff,
to answer the reversion that Mascall
was to settle, expectant on the death
of his mother, he refused to proceed
any further, in order to perfect the
agreement, and never signed it. But
Cookes put up what Baker had writ-

ten into his pocket, and so they parted,
and had no further meeting nor treaty ;
but Cookes the father swore, that after
the articles were drawn, they were
read over and agreed to, and that
Mascall promised to meet at another
time to execute; that young Cookes
was afterwards permitted to come to
Mascall's house, and in December,
1684, married his daughter, Mascall
being privy to it, helping to set them
forwards in the morning, and enter-
taining them, and seeming well pleased
with the marriage, upon their return
to his house at night. Upon this case,
Cookes the father, having by his an-
swer offered to perform the agreement
on his part, the court thought Jit to
decree Mascall also to perform the
agreement, according to what was con-
tained in the writing drawn by Baker,
though it was not signed by Mascall,
as was intended it should have been,
nor any other agreement reduced into
writing. In Montacute v. Maxwell, 1
P. Wms. 618, the plaintiff brought a
bill against the defendant her hus-
, band, setting forth that the defendant,
before her intermarriage with him,
did promise that she should enjoy all
her own estate to her separate use,
that he had agreed to execute writ-
ings to that purpose, and had in-
structed counsel to draw such writings,
and that when they were to be married,
the writings not being. perfected, the
defendant desired this might not delay
the match, in regard his friends being
there, it might shame him; but en-
gaged upon his honor she should have
the same advantage of the agreement
as if it was in writing, drawn in form
by counsel, and executed ; upon which
the marriage took effect, and after-
wards the plaintiff wrote a letter to
the defendant, her husband, putting
him in mind of his promise, to which
the defendant her husband wrote her
an answer under his hand, expressing
that he was always willing she should
enjoy her own fortune, as if sole, and

SEC. 173.] CONSIDEEATION OF MARBIAGB.

319

but it may be revived by parol.^ In the case last cited the
father wrote a letter signifying his assent to the marriage of

1 Bird V. Blosse, 2 Vent. 361.

that it should be at her command. To
this bill the defendant pleaded the
statute of frauds, and averred that he
never signed any promise or agree-
ment before marriage, for her enjoy-
ing any part of her estate separately,
which he pleaded in bar of any relief
or discovery. It was urged against
this plea, that the promise was on the
plaintifi's side, executed by her inter-
marriage ; and was, therefore, like the
several cases in which equity did re-
lieve and compel a mutual execution ;
that the letter written by the defend-
ant, though after marriage, was an
evidence under his hand of the agree-
ment before the marriage, and so took
it out of the statute. On the other
side, it was said that the express words
of the statute made all such promises
in consideration of marriage void,
unless they were in writing, signed by
the parties ; and that there was the
greatest reason for it, since in no case
could there be supposed so many un-
guarded expressions and promises used
as in addresses in order to marriage,
where many passages of gallantry
usually occur, and it was therefore
provided by the statute, that all prom-
ises made in consideration of mar-
riage should be void unless signed by
the party. That it was very wrong to
call marriage the execution of the
promise, when until the marriage it
was not within the statute; and the
statute makes the promise in consid-
eration of marriage void; therefore,
to say that the marriage was an exe-
cution which should render the prom-
ise good, was quite frustrating the
statute ; which the court took notice
of and approved. And the Lord
Chancellor declared, that in cases
of fraud, equity should relieve, even
against the words of the statute ; as
if one agreement in writing should
be proposed and drawn, and another
fraudulently and secretly brought in
and executed in lieu of the former;

in this, or such like cases of fraud,
equity would relieve ; but when, as in
the case before iiim, there was no
fraud, but only a reliance upon the
honor, word, or promise of a party,
the statute making those promises
void, equity would not interfere ; nor
were the instructions given to counsel
for preparing the writings material,
since after they were drawn and en-
grossed, the parties might refuse to
execute them, and as to the letter, it
consisted only of general expressions,
as " that the estate should be at the
plaintiffs command, or at her service :
indeed, had it recited or mentioned the
former agreement, and promised the
performance thereof, it had been mate-
rial; but as this case was circum-
stanced, the plea should be allowed :
and as the plea was in bar of a discov-
ery as to all matters, which if discov-
ered and admitted might be barred by
the statute, so far might the statute
be pleaded in bar of such discovery.
But according to the report of the
same case in Strange, 1 Str. 236, the
plaintiff afterwards amended her bill,
by further charging that in order to
induce her to marry him, without a
previous settlement, and to secure the
performance of his promise in execut-
ing it afterwards, the husband had
promised to take the sacrament on it,
and that he did take the sacrament on
the marriage accordingly. That after
the marriage he wrote a letter, where-
in he promised to make such settle-
ment, and that he was ready to sign
the writings, according to her desire.
To this he confessed that he did take
the sacrament, but said he did it only
in compliance with a custom estab-
lished in the parish church (of which
he was a member) of receiving the
sacrament on their marriages, and not
to give any sanction to this pretended
agreement: and as to the letter, that
he did not remember the particulars ;
but if he had written any thing con-

320

STATUTE OF FEAT7DS.

[chap. V.

his daughter with J S, and that he would give her ,£1,500,
and afterward by another letter, upon a further treaty concern-

cerning his readiness to sign any writ-
ings, it only related to some proposals
he had made of settling a sum of
il,500 on her, and which he did soon
after sign. He then pleaded the stat-
ute of frauds and perjuries again.
But the LoKD Chancellok was of
opinion that the case was very much
altered by these new circumstances.
That at first it stood purely on the
parol promise before marriage ; upon
which there was no color to relieve the
plaintiff. But that such parol promise
on marriage was a sufficient consider-
ation to support a settlement made
agreeable to it after marriage. That
this has been frequently determined ;
that it was also a sufficient considera-
tion to establish a promise made in
writing after marriage : Reade v. Liv-
ingston, 3 Johns. Ch. (N. Y.) 481;
Argenbright v. Campbell, 3 H. & M.
(Va.) 144; Chichester «. Vass, 1 Munf.
(Va.) 98; that there was great evi-
dence of such a promise made in writ-
ing after marriage ; the defendant did
not deny his writing, but declared
himself ready to execute the writings
as she desired ; he avoided it, however,
by saying that they referred to pro-
posals of settling £1,500, which was
impossible, because it appeared that
she never desired any such settlement.
And though he had said he had signed
that settlement, it did not appear when
he did it; and his lordship was very
suspicious that he had done it since
the amended bill. His answer to the
charge of receiving the sacrament, in
confirmation of his promise, was not
at all satisfactory. He could have no
occasion to promise receiving the sac-
rament, but on that account; and
though he might receive it in compli-
ance with the custom of his church,
yet that was very consistent with his
laying hold of that solemn act of de-
votion, to testify his sincerity. The
plea was ordered to stand for an
answer.
According to the report of the same

case in Eq. Ca. Abr. (1 Eq. Abr. 19),
the husband privately countermanded
the instructions given by him for draw-
ing the settlement, and then drew in
Lady Montacute to marry him, and
from the loose statement in Precedents
in Chancery (Prec. in Chan. 526), it
seems that some such decided act of
fraud was imputable to the defendant.
Eor the Chancellor is there repre-
sented to have said, that if the par-
ties rely wholly upon the parol agree-
ment, neither party can compel the
other to the specific performance, for
the statute of frauds is directly in
their way. But that if there is any
agreement for reducing the same into
writing, and that is prevented by the
fraud and practice of the other party,
this court will, in such case, give re-
lief; as where instructions are given,
and preparations made for the draw-
ing of a marriage settlement; and
before the completion thereof the
woman is drawn, by the assurances
and promises of the man to perform
it, to marry without a settlement.

We perceive in this case, under the
different views which the books give
us of it, an anxiety in the court to
prevent the statute from being ener-
vated by dangerous exceptions; and
we must regard the decision as wholly
proceeding on the proof of actual
fraud. It was fully seen that if the
marriage could be considered as an
execution of the contract, to take the
case out of the statute, this clause of
the statute would be made a perfect
nullity. For it is clear that the com-
pulsory execution of the supposed
agreement could never be called for
in equity, until the marriage, which
was the only consideration of making
it, and without which it could have
no application, was celebrated, so
that if the celebration of the mar-
riage were an answer to the statute,
the clause could never be enforced,
since the exceptions out of it would
always arise, together with the occa-

SEC. 173.] CONSIDEKATION OF MAEEIAGE.

321

ing the marriage, receded from the proposals of his first
letter, but at a later time he declared that he would agree to

sions for its application. In a case
determined a few years afterwards
(Sansum v. Butter, 1 Bac. Abr. 119),
the same doctrine on this subject was
maintained. On the marriage of the
plaintiff with the defendant's daugh-
ter, the defendant promised to give
her £450 portion, and accordingly
paid the plaintiff £200 in part, but
took a bond from him for it, till u
suitable settlement should be made,
and the defendant himself gave par-
ticular directions conceriiing the set-
tlement, which was drawn accord-
ingly and engrossed; but before it
was executed, the plaintiff's wife died,
and the bill was brought to have the
£200 bond deliyered up, and the re-
maining part of the portion paid ; the
defendant pleaded the statute of
frauds and perjuries, the agreement
not having been reduced to writing,
and signed by the parties ; and by way
of answer denied that the £200 was
paid in part of the portion, but said
that it was lent to the plaintiff, and
that the bond was given for securing
the re-payment. The plea was allowed,
notwithstanding it had been insisted
that the agreement was executed by
the marriage ; for that if the marriage
should be looked upon as an execu-
tion of the agreement on one side, so
as to take the case out of the statute,
it would entirely evade it ; for that all
promises of this kind suppose a mar-
riage either already had, or to be had.
The authority of these cases, and the
rational groimds on which they pro-
ceeded, seem not to have been broken
in upon, even at times when the doc-
trine of part performance has been
most favorably received by the courts,
and may now, it is conceived, be con-
sidered as out of controversy. But
though these parol promises, made
before and in consideration of mar-
riage, fall obviously within the stat-
ute of frauds, and as the authorities
decisively show; ought not to be taken
out of it, by any evidence in proof of

their solemnity and repetition, or by
the preparations made, or directions
given, for carrying them to their
accomplishment, or by the consequen-
tial fact of the marriage; yet it ap-
pears from the expressions of Lokd
Chancbllok Parker, in the above
case of Montaoute v. Maxwell, as re-
ported in Strange, that a verbal prom-
ise on marriage is a sufficient consid-
eration to support a settlement made
agreeable to it after marriage. And
his lordship added, that it had been
frequently so determined. The indul-
gent inclination of the courts of
equity towards these settlements after
marriage has carried them a great
way ; for the inference from this doc-
trine is, that the consideration for
these settlements after marriage, de-
rived from the existence of these
prior agreements, does not depend
upon the legal obligation to the per-
formance of these agreements, since
the statute has made them remediless.
Substantively, they have no validity,
but in this auxiliary light they are
capable of giving validity to what
would be incapable of standing alone
against the claims of creditors or pur-
chasers provided the verbal promises
proved, and the settlement made dis-
cover a clear correspondence. In a
case, indeed, in which there was a
double infirmity in the promise made
before marriage, the same effect was
given to it. In Lavender u. Black-
stone, 2 Lev. 146, a promise made by
an infant on his marriage to settle his
estate when of age, was held a suffi-
cient consideration to support the set-
tlement after marriage made in pur-
suance of such promise. And in the
late case of Dundas v. Dutens, 1 Vez.
Jun. 196 ; and see Pitcaim v. Ogbourne,
2 Vez. 375 ; also Shaw v. Jakeman, 4 .
East,201,the Chancellor was of opin-
ion in favor of the settlement against
the husband's creditors, notwithstand-
ing it was urged at the bar and admit-'
ted by the court, that a parol agree-

322 STATUTE OF PEAUDS. [CHAP. V.

what was proposed in his first letter, and the letter was held
a sufficient promise in writing, and that his last declaration
had set up the terms of the first letter again.

Sec. 174. Marriage is not Part Performance. — Marriage
alone does not amount to an act of part performance, so as to
take a parol contract, entered into before and made in consid-
eration of the marriage, out of the statute.^ If it were so,
there would be an end of the statute, which says that a
contract in consideration of marriage will not be binding
unless it be in writing. But if marriage were to be consid-
ered as part performance, every parol contract followed by
marriage would be binding.^ While equity will lend its aid
to a party to defeat a fraud notwithstanding the statute of
fi'auds, yet in order to induce such aid something more than
a merely moral wrong must be established. Lokd Mans-
field, in an English case ^ in which a bill was brought to
secure the specific performance of a contract made by the
defendant who was about to marry, that his wife should enjoy
all her own estate to her separate use after the marriage, in
refusing the aid of the court, said: "In cases of fraud equity
should relieve, even against the words of the statute, as if one
agreement in writing should be proposed and drawn, and
another fraudulently and secretly brought in and executed
in lieu of the former ; in this and such like cases of fraud
equity would relieve, but where there is no fraud, only relying
upon the honor, word, or promise of the defendant, the statute
making those promises void, equity will not interfere."

ment previous to marriage is abso- Jones, 23 Beav. 487 ; affd. 2 De G. & J.

lutely void, and that a subsequent 76; Cooper K.Wormald, 27 Beav. 266;

marriage is not a part execution of Caton v. Caton, L. E. 1 Ch. 137 ; ib.

such an agreement to take it out of 2 H. L. 127. In Jeston v. Key, L. E.

the statute of frauds and perjuries. 6 Ch. 613, Mellish, L. J., said : " There

Eoberts on Frauds, 190-200. was a marriage contract between the

1 Montacute v. Maxwell, 1 P. Wms. husband and the wife's father. They
620. both agreed to make a settlement, and

2 Brown v. Conger,'8 Hun (TS. Y.) this agreement was not performed by
625 ; Montacute v. Maxwell, 1 P. Wms. either party. But the contract was
618; 2 Cox, 236; Bedding v. Wilks, 3 partly performed by the marriage." Tliis,
Bro. C. C. 400; Dundas <i. Dutens, 1 however, is, it is submitted, .inconsis-
Ves. J. 199 ; 2 Cox, 240. tent with the above cases, none of

' Lassence v. Tiemey, 1 Mac. & G. which were referred to in argument,

572 ; 2 H. & T. 135, per Lord Ckan- and the case itself did not turn upon

WOKTH, L. C. ; see also Ilammersley j). any parol promise in consideration of

De Biel, 12 C. & F. 45; "Warden v. marriage.

SEC. 175.] CONSIDEEATION OF MARRIAGE. 323

Sec. 17o. Part Performance Independently of Marriage. —
There is a distinction between the cases in which there is no
part performance except by the marriage and those where there
is part performance independently of the marriage, as where a
contract to settle property is carried out. In the latter the
part performance may be such as to take the case out of the
statute.^ In order to bring a case within the rule it must be
proTcd that the parol contract which it is sought to enforce
formed part of the general arrangement on which the marriage
took place, and was not a separate transaction.^ In this class
of cases the courts are not inclined to scrutinize these ancil-
lary acts with much severity, or require that they should in
themselves be of much importance.* Where, previously to the
defendant's marriage, it was agreed that £500, the property of
the wife, should be settled upon her, and the marriage took place
before the settlement was executed, but afterwards a draft
settlement was prepared of which the husband approved, and
on which he acted during his wife's life, it was held by Lord
Haedwicke that there were strong circumstances to take
the case out of the statute.

Again, where a father, shortly before the marriage of his
daughter, told her intended husband that he meant to give
certain leasehold property to them on their marriage, and
after the marriage he gave up possession of the property to
the husband, to whom he directed the tenants to pay the
rents, and handed the title-deeds to the husband, who
expended money on the property, it was held that there was
sufficient part performance to take the case out of the statute.*
In Neale v. Neale,* taking possession and making permanent
improvements by the husband and wife were held a sufficient
part performance of an antenuptial verbal promise by the
father of the husband to convey land to the wife, made in
consideration of the intended marriage. In Surcome v. Pen-
niger,^ a father, before the marriage of his daughter, told her

1 Hammersley v. De Biel, 12 C. & » Taylor v. Beech, 1 Vee. S. 297.
P. 64 n. ; Lassence v. Tlemey, 1 Mac. * Surcome v. Pinniger, 3 D. M. G.

& G. 572, per Lord Cottenham ; Sur- 575 ; and see Simmons v. Simmons, 6

come V. Pinniger, 3 D. M, G. 574, per Hare, 352.
TuKNEE, L. J.; "Warden v. Jones, 23 6 g "Wall. (TJ. S.) 1.
Beav. 494, per Romillt, M. E. 6 3 De G. M. & G. 571.

^ Goldicutt V. Townsend, 28 Beav.
450, per Romillt, M. R.

324 STATUTE OF FKAUDS. [CHAP. V.

intended husband that he should give them certain leasehold
property on their marriage. After the marriage he put the
husband in possession, and told the tenants to pay their rents
to the husband, who also laid out some money on the prop-
erty. This, it will be seen, was a parol gift in anticipation of
the marriage; the subsequent acts were held by the lord
justices a good part performance, ^er L. J. Ttjenbr : "In this
case there has been a part performance by the delivery up of
possession to the husband — a fact which has always been
held t& change the situation and rights of the parties — and
there has been a considerable expenditure by him on the
property. There is, therefore, here what was wanting in
Lassence v. Tierney, viz., acts of part performance besides the
marriage. The difficulty in these cases is that the statute of
frauds presents an obstacle to suing upon the agreement.
But it has been held in many cases that if there be a written
agreement after marriage, in pursuance of a parol agreement
before the marriage, this takes the case out of the statute ; so
does also part performance." The recent case of Ungley v.
Ungley ^ is still more emphatic. A father, in contemplation
of the marriage of his daughter, verbally promised to give her
a certain house as a present, and at once after the marriage
put her and her husband in possession. The father was the
owner of the premises, which were leasehold, subject to a
charge in favor of a building society, payable in installments.
He paid those which fell due in his lifetime, and at his death
there was a balance of £.110, which fell due shortly after his
death. It was held by Malins, V. C, that the verbal promise
having been proved, the possession was a part performance,
which took the case out of the statute of frauds ; that the
intent of the donor was to give the house free from incum-
brances, and so the £110 was payable out of the personal
estate of the deceased. This could hardly be called a contract
made upon consideration of marriage ; it was rather a gift in
anticipation thereof ; and yet possession, without the making
of improvements, was held a sufficient part performance,
probably because the marriage itself was to be regarded as a
strengthening circumstance. In Hammersley v. De Biel ^ the
lady's father and her intended husband made a verbal agree-

1 L. K. 4 Ch. Dev. 73. 2 12 CI. & Fin. 64.

SEC. 175.] CONSIDEEATION OF MARRIAGE. 325

ment prior to the marriage, by which the father agreed to
settle certain property on his daughter, and the husband
agreed to settle a certain jointure upon her. The intended
husband executed his settlement as he had promised, and the
marriage took place. It was held by Lord Ch. Cottenham
that this execution of the settlement in pursuance of his
contract by the husband, being an act done by him over and
above the marriage, was a sufficient part performance to take
the father's verbal agreement out of the statute, and it was
accordingly enforced. On appeal to the House of Lords,
Lord Campbell and Lord Lyndhurst were strongly of the
same opinion with Lord Cottenham, but the decision below
was actually affirmed upon another view of the case.^ In
Warden v, Jones,^ where the antenuptial verbal agreement
was between the intended husband and wife alone, and not
between the husband and another person, it was held by
RoMiLLY, M. R., that the execution of a settlement by one of
the parties was not a sufficient part performance to render
the agreement binding as against the other. The distinction
made by the M. R. in this case would probably not be
accepted and followed in those American States which have
so largely increased the wife's capacity to contract by various
statutes, provided the doctrine of the preceding case (Ham-
mersley v. De Biel) was approved and adopted. If the execu-
tion of a written instrument, like a settlement of property, is
an effectual part performance of a verbal antenuptial agree-
ment between one ,of the spouses and a third person, there
can be no reason, by the modern law respecting married
women which prevails in those States, why the same result
should not follow in the case of a verbal antenuptial agree-
ment between the two intended spouses. In Duval v. Get-
ting,^ a father, in contemplation of her marriage, made a
verbal gift of land to his daughter ; the marriage and subse-
quent possession by the daughter and her husband were held
to constitute a part performance. In Gough v. Crane* a
verbal antenuptial agreement was made by a woman and her
intended husband to the effect that he should be entitled

1 Hammersley v. De Biel, 12 CI. & '3 Gill. (Md.) 138.
Fin. 45. * 3 Md. Ch. 119.

2 23 Beav. 487.

326 STATTJTB OP FEAUDS. [CHAP. V.

absolutely to all her things in action, in consideration of a
yearly allowance to be paid by him to her for pin money.
At the marriage the wife's bonds were delivered to the
husband, and he afterwards paid her the pin money as agreed.
After her death this agreement was enforced against her
representatives, the Maryland court of appeals holding that
the delivery of possession was a good part performance.
This decision has been criticized on the ground that, as the
husband was entitled by law to the possession of his wife's
choses in action, the fact of his possession did not indicate
any contract, and therefore lacked the first essential element
of a part performance, and the decision is clearly opposed to
the distinction taken by the court in Warden v. Jones, supra.
The doctrine of part performance, as applicable to promises
made in consideration of marriage, was very fully discussed
in Caton v. Caton.^ There, previously to a marriage, the
intended husband and wife agreed in writing that the hus-
band should have the wife's property for life, paying her £80
a year for pin money, and that she should have it after his
death, and he gave instructions for a settlement upon that
foothold. The settlement was accordingly prepared, when
the parties agreed that they would have no settlement, the
husband promising, as the wife alleged, that he would make
a will giving her all her property. The marriage took place,
and the husband made a^ will accordingly, which he afterwards
revoked. It was held by Lobd Ckanwoeth that, under the
circumstances, there was no contract to make a will, and that
there had been no part performance.^ His lordship said:
"The courts of equity require specific performance of a
parol contract for the sale or purchase of land when that
contract has been in part performed, because if the statute
were insisted upon, it would be to make it the means of
effecting instead of preventing fraud. ' The right to relief in
such cases rests not merely on the contract, but on what has
been done in pursuance of the contract. The ground on
which the court holds that part performance takes a contract

1 L. R. 1 Ch. 137 ; affd. L. E. ; ib. Lords, Lokd Cranworth's decision
2 H. L. 127 ; see the remarks of Ma- was aflBu:med on the ground that there
LiNS, "V. C, on this case in Coles u. was no memorandum in writing, and
Pilkington, L. R. 19 Eq. 179. the question of part performance was

2 On the appeal to the House of not argued.

SBC. 176.] CONSIDERATION OF JIAEIIIAGB. 327

out of the purview of the statute is that when one of two
contracting parties has been induced or allowed by the other
to alter his position on the faith of the contract, as, for
instance, by taking possession of land, and expending money
in building or other like acts, there it would be a fraud in the
other party to set up the legal invalidity of the contract on the
faith of which he induced or allowed the person contracting
with him to act and expend his money." ^

Sec. 176. Sepresentations of Third Party Kef erring to Mar-
riage.— If one person holds out inducements to another to
celebrate a marriage, and holds them out deliberately and
plainly, and the other person consents to celebrate the
marriage in consequence of them, if he had good reason
to expect that it was intended that he should have the benefit
of the proposal which was so held out, the court will give
effect to the proposal.

Thus where proposals of marriage written by the lady's
brother, acting by her father's authority, stated that "Mr.
J. P. Thompson (the father) also intends to leave a further
sum of ,£10,000 in his will to Miss Thompson to be settled
on her and her children, the disposition of which, supposing
she has no children, will be prescribed by the will of the
father. These are the bases of the arrangement, subject of
course to revision ; but they will be sufficient for Baron De
Biel (the intended husband) to act upon," and Baron De
Biel, upon receiving the proposals, provided a jointure as
required by them for his intended wife, and then married her,
and the sum of £10,000 was not left by Mr. Thompson ; it
was held that his estate was liable to pay it.^

In Bold V. Hutchinsoh,^ the estate of a deceased father
was charged with the payment of a sum of money which he
had by parol promised to leave by will, Lokd Romilly said :
" Moral obligations in matters of this description, as they are
treated in courts of equity, are co-extensive with and not
different from legal obligations, where they are expressed in
clear and distinct language. No doubt vague and ambiguous

1 And see Williams v. Williams, F. 45; affg. S. C. nom. ; De Biel v.
37 L. J. Ch. 854. . Thompson, 3 Beav. 475.

2 Hammersley v. De Biel, 12 C. & ' 20 Beav. 250 ; affd. 5 De G. M. &

G. 558.

328 STATUTE OF PKATTDS. [CHAP. V.

representations might be made to persons on marriage which
might create expectations and belief, which the person making
them might be morally, though not legally, bound to execute ;
but where the matter is clearly and distinctly expressed, then,
in my opinion, the legal obligation follows the moral obliga-
tion, and is co-extensive with it." ^

Again where, upon the treaty for a marriage, the father of
the lady wrote to the husband, " I stUl adhere to my last
proposition, viz., to allow Elizabeth £100 a year . . . and at
my decease she shall be entitled to her share of whatever
property I may die possessed of," it was held that this was a
contract binding on the father, but that it did not include
freehold property." ^

Sec. 177. By "Whom Enforced. — Such representations may
be enforced not only by the persons to whom they were
made, but also by the issue of the marriage. Thus where,
previously to a marriage, the solicitors to the father of the
intended wife stated in a letter that the father did not
propose to exercise a certain power of appointment, and the
fund to which the wife would become entitled in default of
appointment was comprised in the settlement made on the
marriage, and the father afterwards exercised his power in
favor of his other children, it was held, under the circum-
stances, that the child of the marriage was entitled to have
brought into the settlement, out of the father's estate, a sum
equal to that which would have come under the settlement in
default of appointment.^

Sec. 178. Representation Must be Clear. — In order to make
a third person liable upon his representations or promises,
the person seeking to enforce them must show distinctly that
clear and sufficient representations or promises were made ; *
a vague representation is not enough, and there must be a
reasonable certainty as to the amount.

In Kay v. Crook,^ a father, on the treaty for the marriage
of his eldest son, promised by letter to settle a sum of money

1 See also Saunders v. Cramer, Dr. 106 ; affd. ib. 473 ; 13 "W. R. 335,
& War. 87 ; Warden v. Jones, 23 Bear. 761.

487; affd. 2 De G & J. 1176. * Eandall v. Morgan, 12 Ves. 67;

2 Laver v. Pielder, 32 Beav. 1. Maunsell v. White, 4 H. L. C. 1039.
8 Walford v. Gray, 11 Jur. (N. S.) » 3 Sm. & G. 407.

SEC. 180.] CONSIDERATION OP MAKEIA6E. 829

forthwith, and to recognize his son in common with the rest
of his family in the future provisions of his will. The sum
of money was settled, and the marriage took place on the
faith of the representations in the letter. By his will the
testator made a substantial provision for his son, but much
less than equal to those made for his other children. It was
held that the promise was so vague as to the amount that
consistently with it the testator might have given all his
property to a stranger, and that the promise was satisfied by
the provision in the will. Sttjabt, V. C, said : " A vague
representation is not enough. If the plaintiff can show a
representation by his father that he would leave him a sum
certain by his will, and if he contracted a marriage on the
faith of that representation, he is entitled in this court to have
that sum made good out of his father's assets." There is not
here (what was relied upon in the case of Hammersley v. De
Biel) 1 a certain sum specified as to the amount of the
provision.^

Where a father, prior to the marriage of his daughter, in a
correspondence with her intended husband, stated that aU
his property would be equally divided amongst his children
at his decease ; but in a settlement executed prior to the mar-
riage there was no expression of any such intention, it was
held that all that was intended to be binding on the father
was embodied in the settlement.*

Sec. 179. Parol Evidence Admissible to Prove Promise. —

Such an agreement may be enforced although the letters con-
taining the promise have been lost, if their existence, and the
substance of their contents, is clearly established by evidence.*

Sec. 180. Marriage Cannot Take Place on Faith of Represen-
tations. — A parol promise, made prior to a marriage, cannot
be enforced, if the marriage did not take place by reason of
any reliance on such promise, or if it was not acted on as
a reason and consideration for the marriage,^ nor will a written

1 12 C. & F. 45. aftg. S. C. 27 Beav. 523 ; and see Sands

2 See also Jameson v. Stein, 21 v. Soden, 10 W. R. 765.

Beav. 5; Laver v. Melder, 32 Beav. 1 ; * Gilchrist v. Herbert, 28 L. T. (N.

LofEus V. Maw, 3 Giff. 603; McAskie S.) 381.

V. McCay, 2 I. R. Eq. 452. « Goldicutt v. Townsend, 28 Beav.

« Lexley w. Heath, 1 D. F. & J. 489, 445; Jameson v. Stein, 21 Beav. 5;

330 STATUTE OF FEAUDS. [CHAP. V.

promise be enforced, if the person seeking to enforce perform-
ance of it did not know of it when the marriage took place,
as the marriage cannot be supposed to have taken place in
consideration of the promise.-^

Sec. 181. Party Making Representation Refusing to be Bound.
— Although a mere representation of an intention to do some-
thing by an instrument revocable in its nature will, if acted
upon by the person to whom the representation is made, be
enforced, yet if the person making the representation refuses
definitively to bind himself to perform his promise, the court
will not enforce the specific performance of the promise.
Thus, where the testator on the marriage of one of his
nephews told him that he had left him certain estates by
will, and subsequently on being applied to to make a settle-
ment, wrote to the nephew as follows: "My sentiments
respecting you continue unalterable ; however, I shall never
settle any part of my property out of my power so long as I
exist ; my will has been made for some time, and I am confi-
dent that I shall never alter it to your disadvantage. I have
mentioned before, and I again repeat, that my county of
Tipperary estates will come to you at my death, unless some
unforeseen occurrence should "take place. I have never
settled anything on any of my nephews, and I should give
cause for jealousy if I was to deviate in this instance from a
resolution I have long made ; " and shortly afterwards the
marriage took place ; and the marriage settlement (of which
the testator was a trustee) recited the promise contained in
the letter, and the testator having quarrelled witli his nephew
left the estates to other persons ; it was held in the House of
Lords that there was no contract which could be enforced.
The case was decided on the short principle that there never
was any engagement on the part of the uncle that he would
bind himself to leave the property to his nephew. Loed
CoTTENHAM pointed out that it could not be argued that the
testator, who cautiously insisted on reserving to himself
power while he " existed," had given up his power, and that
too by the very letter in which he made the reservation ; and
his lordship distinguished the case from Hammersley v. De

Caton V. Caton, L. E. 1 Ch. 137 ; affd. l Aylifie v. Tracy, 2 P. Wms. 66.

L. E. 2 H. L. 127.

SEC. 182.] CONSIDERATION OF MAEEIAGE. 331

Biel ^ on the ground that in that case there was a contract
which was partly performed by the execution of a settlement
by the intended husband, and by the marriage.'^

It 'has been said that if a person possesses a legal right,
the court will not interfere to restrain him from enforcing
it, although between the time of its creation and that of his
attempt to enforce it, he has made representations of his
intention to abandon it, and the person to whom the repre-
sentations were made has acted on them.* This, however,
seems to be inconsistent with the decision in Hammersley v.
De Biel.* And it is to be noticed that this case was not
referred to by any of the counsel or law lords in Jorden v.
Money, see Prole v. Soady.^

Sec. 182. Expression of 'Wish by Husband. — Where a suitor
wrote to the mother of the lady as follows : " If your daughter
has or may have money, my wish and intention is that it
should be settled for her sole and entire use," and consent
was given to the marriage, in the faith that the intention
thus expressed would be fulfilled, and the marriage took
place without a settlement; the court ordered the wife's
property to be settled in the usual way, Stttaut, V. C, saying :
" It is clear that the marriage took place on the faith of the
promise expressed in this letter to settle the whole of the
young lady's property, present and future, for her separate
use. The defendant, therefore, is as much bound in the eye
of this court, as if he had executed a settlement containing
such stipulations."® But where an intended husband, who
was an infant, wrote to the trustee of the intended wife on
Tuesday, that he especially wished his wife's property entirely
settled on herself, and that the marriage was to take place
on the Saturday, and it took place, unknown to the trustee,
on the Wednesday, without any settlement, it was held that

1 12 C. & r. 45. » 2 GifE. 1 ; Loffus v. Maw, 3 Giff.

2 Maunsell v. White, 4 H. L. C. 603; McAskie .,. McCay, 2 I. E. Eq.
1039 ; see also Moorhouse v. Colvin, 5 452.

Beav. 341 ; affd. 21 L. J. Cap. 782 ; 6 Alt v. Alt, 4 GifE. 84 ; and see

Kirwan u. Burchell, 10 Ir. Ch. Rep. Payne «. Mortimer, 1 GifE. 118; affd.

63 ; Caton v. Caton, L. R. Ch. 137 ; 4 De G. & J. 447 ; Loffus v. Maw, 3

affd. L. R. 1 H. L. 127. Giff. 592 ; Skidmore v. Bradford, L. R.

8 Jorden v. Money, 5 H. L. C. 185. 8 Eq. 134.

4 12 C. & F. 45.

332 STATUTE OP FEATJDS. [CHAP. V.

this letter contained no settlement or agreement for a settle-
ment binding on the husband or wife.^

Sec. 183. False Representation of Pact. — If a representation
is made upon the circumstances of a person about to form a
connection in marriage, and that representation is of such a
nature that, if not made good, or if varied, it -will materially
affect the circumstances in life of that party, the court will
hold the party bound to make good that representation, even
at the suit of individuals concerned in fraudulently defeat-
ing such a representation upon which that connection was
proceeding.^ Thus, where the agent of the intended husband
made out a schedule of his debts, to be laid before the father s
of the intended wife, and concealed a large debt due to him-
self, he was afterwards restrained from enforcing the debt.*
So where a mortgagee aided in concealing his mortgage upon
an estate settled in contemplation of marriage, he was post-
poned to the objects of the settlement.* Again, where a
note was given to the intended husband by his brother for
a large sum of money, as the balance of accounts between
them, when no such balance esdsted, and the marriage took
place on the faith of that sum being owing, the brother was
charged with the pretended balance.®

Sec. 184. Fraud not Allowed to be Covered by the Statute.
— If a person by means of fraud prevents the due execution
of an agreement, the statute will not apply. Thus, where
the defendant, on a treaty of marriage for his daughter with
the plaintiff, signed a writing, which comprised the terms of
the agreement, but afterwards designing to elude its force,
and free himself from it, he ordered his daughter to affect
good humor, and persuade the plaintiff to deliver up the
writing, and then marry him; and she accordingly did so,
the plaintiff afterwards brought his bill for relief, and ob-
tained a decree on the ground of fraud.^

1 Beaumont v. Carter, 32 Beav. ' Montefiori v. Monteflori, 1 W. Bl.
586. 363 ; see also Jorden v. Money, 5 H.

2 He Manneville v. Crompton, 1 V. L. C. 210.

& B. 356, per Lokd Eldon. « Mullet a. Halfpenny, cited Peachey

' Neville v. Wilkinson, 1 Bro. C. C. on Settlements, 82 ; and see Cookes v.

543. Mascall, 2 Vern. 200.
* Berrisford v. Milward, 2 Atk. 49.

SEC. 184.] CONSIDERATION OF MAEKIAGE. 333

In Money v. Jorden,i the defendant, a bond creditor of the
plaintiff, promised, on the plaintiff's marriage, never to enforce
it, and the marriage took effect on the faith of such assurance.
RoMiLLY, M. R., held that the defendant was bound to give
effect to the promise, and granted an injunction to restrain
her from suing on the bond. On appeal to the Lords Jus-
tices,2 their lordships differed, Knight Bruce, L. J., agree-
ing -with the Master of the Rolls that there was sufficient
ground for the interposition of the court, while Lord Cran-
"WOKTH, L. J., held that the declarations being of intention
merely, and not of fact, were not such representations as to
bind the creditor. In the House of Lords,^ Lord Cran-
"WORTH adhered to his opinion, saying that the doctrine
" that where one by his words or conduct wilfuUy causes
another to believe in the existence of a certain state of
things, and induces him to act on that belief, or to alter liis
own previous position, the former is concluded from averring
against the latter a -different state of things, as existing at
the same time,"* does not apply to a case where the represen-
tation is not a representation of a fact, but a statement of
something which the party intends or does not intend to do,^
and Lord Brougham took the same ground. Lord St.
Leonards differed, both upon the facts and the law ; think-
ing,® that it was utterly immaterial whether there was a mis-
representation of fact, as it actually existed, or a misrepre-
sentation of an intention to do, or to abstain from doing, an
act which would lead to the damage of the party induced to
act upon the faith of that representation ; that if an inten-
tion is declared, with reference, for example, to a marriage,
not to enforce a given right, and the marriage takes place on
that declaration, there is a binding undertaking. The deci-
sion of the Master of the Rolls was reversed.^

1 15 Beav. 372. partly on the ground of the statute of

2 2 D. M. G. 318. frauds, and S. C. 1 De G. F. & J. 51,

* Nom. Jorden v. Money, 5 H. L. C. where Lord Campbell said that the
185. ratio decidendi of the case vpas, that

* Pickard v. Sears, 6 Ad. & El. 469. where a person possesses a legal right,
5 P. 214. a court of equity will not interfere to
8 P. 248. restrain him from enforcing it, though,
' See the remarks upon this case in between the time of its creation and

Piggott V. Stratton, Johns. 356, where that of his attempt to enforce it, he
Wood, V. C, said that it was decided, has made representations of his inten-

334 STATUTE OP FEATJDS. [CHAP. V.

Sec. 185. Written Agreement after Marriage. — A written
agreement made after marriage, in pursuance of a parol
promise made before marriage, is sufficient as against the
person making it.^ But a post-nuptial settlement, made in
pursuance of a parol ante-nuptial agreement, is not binding
as against, creditors.^ There are some dicta to be found in
the cases which support the contrary proposition.

In Dundas v. Dutens,* Loed Thublow seemed to think
that a post-nuptial settlement of the wife's property, reciting
a parol ante-nuptial agreement to make a settlementj could
be enforced against creditors.*

In De Biel v. Thomson,^ Lokd Langdalb, M. R., said that
in the case of Randall v. Morgan,® Sib Wm. Gbajstt expressed
great doubt whether a letter written after the marriage, re-
ferring to a parol agreement before the marriage, would be
sufficient to give validity to a promise which of itself pro-
duced no obligation ; but that Lobd Habcotjbt, in the case
of Hodgson V. Hutchenson,'' thought that a letter after the
marriage, considering the transactions before, was, in that
case, sufficient.

On appeal,^ Lobd Cottenham referred to the cases of
Hodgson V. Hutchenson,® Taylor v. Beech,^" and Montacute v.
Maxwell,^^ as deciding that a written promise after marriage
to perform a parol agreement made before, would be binding
within the statute.^^ But the actual decisions in these cases
turned on acts of part performance. In Surcome v. Pinni-
ger,^^ where Ttienee, L. J., expressed an opinion to the same
effect, the decision was also grounded upon acts of part per-
formance ; and in Barkworth v. Young, ^* the marriage took

tion to abandon it; and eee Stephens ^ 3 Beav. 474.

V. Venables, 31 Beav. 128; Loffus v. « 12 Ves. 73.

Maw, 3 Giff. 604. ' 5 Vin. Abr. 522, pi. 34.

1 Taylor v. Beech, 1 Ves. S. 297 ; 8 g. C. Nom. Hammersley !.. De
Montacute v. Maxwell, 1 P. Wms. Biel, 12 C. & F. 64, n.

618; 2 Cox, 236; Barkworth v. Young, » 5 Vin. Abr. 522, pi. 34.

4 Drew. 1 ; Hammersley «. De Biel, 1° 1 Ves. S. 297.

12 C. &F. 64, n. ii 1 P. Wm's. 618 ; 2 Cox, 236.

2 See May on Voluntary and l^ On the appeal to the House of
Fraudulent Alienation of Property, Lords, 12 C. & F. 45, the defence
p. 346. under the statute was abandoned.

8 2 Cox, 235 ; 1 Ves. J. 196. w 3 D. M. G. 571.

* See the remarks of Geant, M. E., " 4 Drew, 12.
upon this case in Bandall v. Morgan,
12 Ves. 74.

SEC. 183.] CONSEDEEATION OF MARRIAGE. 335

place on the faith of representations made by a third
party.

On the other hand, in Spurgeon v.^CoUier,! it was held
that a settlement made after marriage was voluntary, proof
of its having been made in pursuance of a parol contract
failing,, and that even if such promise had been proved to
have existed, it would not have supported the settlement.
Lord Northtngton saying: "If such a parol agreement
were to be allowed to give effect to a subsequent settlement,
it would be the most dangerous breach of the statute, and a
violent blow to credit. For any man, on the marriage of a
relation, might make such a promise, of which an execution
never could be compelled against the promisor, and the
moment his circumstances failed he would execute a settle-
ment pursuant to his promise, and defraud all his creditors."

In Warden v.- Jones,^ the point was expressly decided, and
the decision of Lord Thtjrlow in Dundas v. Dutens^ dis-
sented from.

The facts were as follows : Previously to a contemplated
marriage, the intended husband and wife went to a solicitor
to have a settlement prepared of some railway stock, of
which the intended wife was the registered proprietor, but
which was subjected to a mortgage, and the certificates of
which were in the hands of the mortgagee. The solicitor
not being able to prepare the settlement before the time fixed
for the marriage, the husband told the wife that it would be
equally good if made afterwards, and no settlement, or agree-
ment for a settlement, was made in writing before the mar-
riage. Shortly after the marriage a settlement was executed,
whereby the husband covenanted to invest part of the pro-
ceeds of the stock upon trust for the benefit of his wife and
children. He sold the stock, paid off the mortgage, and
invested the stipulated amount, according to his covenant.
It was held that the settlement was voluntary and fraudu-
lent, and therefore void as against creditors, and that the
wife had no equity to a settlement.

Lord Cranworth, on the appeal,"" said: "The argument
here was, first, that the parol agreement being proved, the

1 1 Eden, 55. » 2 Cox, 235 ; 1 Ves. J. 196.

2 23 Beav. 487 ; affd. 2 De G. & J. * 2 De G. & J. 84.
76.

336 STATUTE OP PEATJDS. [CHAP. V.

parties were under a moral, though not legal, obligation to
perform it, so th0,t the settlement could not be fraudulent.
To this, however, the judgment of Loed Nokthington in
Spurgeon v. Collier affords a conclusive answer.^

Sec. 186. Not Revocable. — It is stated by Atherley ^ that
a promise by letter or in writing will be enforced even though
the person making it dissents from the marriage, and declares
that he will give the parties nothing ; and this rule is sus-
tained by Wonckford v. Fotherley,^ but is subject to the
exception that it is to be applied only where a mutual attach-
ment has been permitted to grow up under the sanction of
the promisor.* In the case cited by Atherley in support of
the rule,^ the treaty for the settlement upon the basis of a
letter of the lady's father was depending for a long time, and
in the meantime the parties married. The father, before they
went to the church, revoked his promise, and said he would
give them nothing, Somers, Loed-Keepek, said he looked
upon this as nothing, after the young people's affections were
engaged, regarding such a tardy revocation as a fraud upon
those who, reposing faith therein, had ' permitted their rela-
tions to each other to suffer an irrevocable change.

Sec. 187. Time of Performance. — Where no time is speci-
fied in which the contract is to be performed, it must
be performed within a reasonable time after the marriage
is consummated.^ Thus, in the case last cited, the defend-
ant promised that if the plaintiff married his daughter,
he would endeavor to do her equal justice with the rest
of his daughters, as fast as it was in his power with con-
venience; and it was held that he was bound to perform
the promise within a reasonable time afte^ the marriage, and
was bound to make an advancement to the plaintiff and his
wife equal to the largest made to any of his daughters, and
that in determining what is a reasonable time, his property
and the circumstances were to be considered.

1 See also Gulliver v. Gulliver, 2 ^ Preem. Ch. 201.

Jur. (N. S.) 700 ; Spicer v. Spioer, 24 « D'Aquillar u. Drinkwater, 2 V.

Beav. 367; Hogarth v. Phillips, 4 & B. 234.

Drew. 360 ; Cooper v. Wormald, 27 ^ 'Wonckford v. Fotherley, Freem.

Beav. 266; Goldicutt v. Townsend, 28 Ch. 201.

Beav. 445; Mignanu. Parry, 31 Beav. ^ Chichester v. Voas, 1 Mnnf. (Va.)

211. 98.

2 Atherley, Marriage Settlement, 84.

SEC. 189.] CONSIDERATION OF MAKRIAGB. 337

Sec. 188. Post-nuptial Settlement. — It has been held in
England that a post-nuptial settlement made upon and recit-
ing a parol ante-nuptial contract, is valid as against the cred-
itors of the person contracting ; ^ but the rule now seems to
be both in England ^ and in this country,' that such settle-
ment is not good as against prior creditors, but is good as
between the parties.* In Randall v. Morgan,^ a contrary-
doctrine was intimated, but the weight of authority is the
other way ; and in New Jersey ® it has been held that, upon
proper proof of such ante-nuptial agreement, the court would
give effect to a post-nuptial settlement made in pursuance of
it, even against the creditors of the husband.

Sec. 189. Promise must be Absolute. — In order to give
effect to such a promise, it must be absolute in its terms.
Thus, in Randall v. Morgan,^ the father of the wife, in a let-
ter to her husband before their marriage, said : " The addi-
tion of ^1,000, three per cent stock, is not sufficient to in-
duce me to enter into a deed of settlement. Whether Mary
remains single or marries, I shall allow her the interest of
i£ 2,000, at four per cent ; if the latter, I may bind myself to
do it, and to pay the interest at her decease to her and her
heirs." It was held that, taking the whole letter together,
there was no contract to enforce.

1 Dundas v. Duten, 1 Ves. J. 196. * Beade v. Livingston, ante ; War-

2 Warden v. Jones, 2 De G. & J. den v. Jones, ante ; Bovy's Case, 1
76; Spicer v. Spicer, 23 Beav. 487; Vent. 193 ; Spicer w. Spicer, 24 Beav.
Bovy's Case, 1 Vent. 193. 367. Also cases cited in n. 3. Argen-

3 Davidson u. Green, Riley (S. C.) bright v. Campbell, 3 H. & M. (Va.)
Eq; 219 ; Reade v. Livingston, 3 144 ; Montacute v. Maxwell, 1 P.
Johns. Ch. (N. Y.) 481; Borat v. Wms. 618; Hammersley k. De Biel,
Carey, 16 Barb. (N. Y.) 136 ; Winn v. 12 Clr. 745; Lavender v. Blackstone,
Albert, 5 Md. 66 ; Smith v. Green, 3 2 Lev. 147.

Humble (Tenn.) 118; Blow v. May- ^ Randall v. Morgan, 12 Ves. 67.

nard, 2 Leigh (Va.) 29; Andrews v. See also Shaw v. Jakeman, 4 East,

Jones, 10 Ala. 400; Izard v. Izard, 201.

Bailey (S. C.) Eq. 228; Wood o. « Satterthwaite u. Ensley, 4 N. J.

Savage, 2 Doug. (Mich.) 316 ; Bat^ Eq. 489.

tersbee v. Harrington, 1 Swanst. 113. ' 12 Ves. 67.

' SECTION IV.

INTEREST IN LANDS.

" No action shall be brought upon any contract or sale of lands, tene-
ments, or hereditaments, or any interest in, or concerning them . . .
unless the agreement upon which such action shall be brought, or
some note or memorandum thereof shall be in writing and signed by
the party to be charged therewith, or some other person thereto au-
thorized in writing."

CHAPTER VI.

INTEBEST IN LANDS.

SBCTIOK.

190. Historical View of Alienation of Estates in Lands.

191. Application of the Statute.

192. Instances of Agreements Within the Statute.

193. Agreements between Landlord and Tenant.

194. Contracts Relating to Land which are not Within the Statute.

195. Sale of Growing Crops.

196. Sale of Crops after Severance.

197. Growing Trees.

198. Distinction between Growing Trees and Crops.

199. Intermediate Class of Crops.

200. Crops when mere Accessories to Land.

201. Crop not yet Sown.

202. Distinction between Crops Fructus Industriales and Fructus Naturales.

203. Rule in Jones v. Plint.

204. Rule in Waddington v. Bristow.

205. Rule in Purner v. Piercy.

206. Crops Sold with the Land.

207. Rights of Out-Going Tenant.

208. Whether Fructus Industriales are Goods while Growing.

209. Growing Crops not Returning Profits Within the Tear.

210. Shares in Companies, when an Interest in Lands, when Goods, etc.

211. Shares in a Mine.

212. Agreement for Lease, or for Sale of. Within Statute.

213. Mixed Indiyisible Contract.

214. Agreements Amounting to Transfer of an Interest in Land.

215. Agreement to Let Furnished Lodgings.

216. Agreement to Pumish House.

217. Agreement to Repair.

218. Agreement to Build.

219. Instances of Agreements not Within the Statute.

220. Parol Sales of Buildings, Fixtures, etc.

221. Contracts for Labor to be Done upon or for Land.

222. Contract to Pay Taxes, Mortgages, etc., upon Lands.

223. Agreements to Pay Additional Price for Land Conveyed, etc.

224. Contracts to Sell Lands for Another.

225. Land Warrants. Possessory Rights, etc.

226. Instances of Contracts Within the Statute.

227. Equitable Interests.

228. Agreements to make Mutual Wills.

229. Agreements for Exchange or Partition of Lands.

230. Disputed Boundaries.

340 STATUTE or FRAUDS. [CHAP. VI.

BEOTIOlf,

231. Dower.

232. Pews in Churches.

233. Partnership in Lands.

234. Agreements merely Collateral.

235. Action in Respect of Void Contracts.

236. Lien for Repayment of Purchase-Money.

237. Liability on Implied Contract.

238. Mortgages.

239. Parol Gift of Mortgage.

240. Equitable Mortgage by Deposit of Title-deeds, etc.

241. Special Agreement not Necessary.

242. What Interest Passes.

243. Explanation of Extent of Charge.

244. Deposit of Copies of Court Roll, etc.

245. Deposit of Shares in Companies.

246. Deposit of Insurance Policy.

247. Deeds Relating to Property Abroad.

248. Whether Mortgagor Bound to Execute a Legal Mortgage.

249. Adverse Possession.

250. Subseguent Advances.

251. Sub-Mortgage.

252. Legal Mortgage not Security for Subsequent Advances.

253. Rectification of Accompanying Instruments.

254. Deposit of Deeds to have Legal Mortgage Drawn, Effect of.

255. Presumption of Mortgage may be Rebutted by Evidence.

256. Parol Evidence to Contradict Memorandum.

257. Sale in Bankruptcy.

258. Parol Agreement to Deposit Deeds, Effect of.

259. Delivery to Wife of Depositor.

260. Deeds Remaining in Possession of Debtor.

261. Deposit with Firm.

262. Whether all the Title-deeds Should be Deposited.

263. Good Titles Need not be Shown.

264. Part of Deeds Deposited with One Creditor, and Part with Another,

Effect of.

265. Deeds Relating to Part of an Estate.

266. Memorandum Referring to Different Deeds from those Deposited,

Effect of.

267. Direction to Third Person to Hand over Deeds, Effect of.

268. Sales of Lands by Auction. Judicial Sales, Sheriff's Sales, etc.

Section 190. Historical View of Alienation of Estates in
Lands. — In the rudest state of society in all coiintries, some
formality beyond mere words signifying the consent of the
parties, was always necessary to the transfer of property in
land, the object being to give notoriety to a transaction
which was to determine the reciprocal rights and obliga-

SEO. 190.] INTEEBST IN LANDS. 341

tions of the parties to this important description of prop-
erty.^ With regard to movables, the things being susceptible
of manual delivery, a mere parol expression of consent has
at all times been deemed sufficient to consummate and pub-
lish the transfer ; but where lands or houses are the subject
of the conveyance, the transferee must come to the thing,
which remains stationary and unchanged, and the conversion
of the property and change of title require to be effected
and promulgated by an ostensible relinquishment by the one
party and occupation by the other, accompanied by expres-
sions to testify the intention, and to make the transaction
amount to a delivery of the possession. In the first ages of
man in his social state, the history of most nations makes
mention of authorized ceremonies accompanying the trans-
fers of property in land, sometimes popular and arbitrary,
and sometimes judicial, and transacted before magistrates.^
As the possession of land carried with it, in the feudal times,
a reciprocity of personal duties, some notoriety and solem-
nity in the conveyance of this species of property seems to
have been very proper under a system of polity, in which the
transfer of land implied an investiture as well as a grant.
The subject of these transmutations being either corporeal
or incorporeal, and things untangible and incorporeal being
incapable of actual delivery, the notoriety of this actual
delivery was, therefore, where the subject was not corpo-
real, supphed by the solemnity of an instrument in writing,
sealed and delivered. Such things were said to He not in
livery, but in grant, as reversions, remainders, rents, advow-
sons, commons, and such like hereditaments. But manors,
houses, and lands, being things of a corporeal existence, and
susceptible of a specific transfer, were, therefore', necessary
to be transferred by livery of seizin. While society was in
its rudiments, and writing uncommon, the notoriety of the

1 As to feudal tenures and the the preservation of the fruits of the

jealousy with which they were tenure to the land; and were finally

guarded, see Bract, lib. 2, Cap. 584; destroyed by stat. 12th Charles

Lib. Feud. 5, tit. 13 ; 4 tit. 45, edit. Second, by which the restraint upon

Cujae. These tenures received a the testamentary disposition of lands

severe blow in the reign of Edward was removed.

Eirst, by the passage of the statute "^ Vide Heineccius, Rom. Antiq. lib.

Quia Emptores which combined the 2, tit. 1, No. 19, 20; and see 23d

power of alienation in the vassal with chapter of Genesis.

342 STATUTE OF FKATTDS. [CHAP. VI.

livery was chiefly relied upon till the formality of a written
instrument came into use, as an authentication of the livery
and seizin, and brought with it some relaxation of the old
ceremonies.

The first feudal grants are said to have been gratuitous,
whereby the donor parted only with the dominium utile or
usufruct to the vassal, reserving to himself the dominium
directum; and, on account of the favor which prompted the
gift, there seems to have been much humility in the form of
acceptance by the donee, who, being chosen for his personal
qualifications or deserts, received from the hands of the supe-
rior himself his investiture (therefore called the investitura
propria'), in the presence of the pares curiae, and on the land
itself, with a rigorous exaction and observance of those cir-
cumstances of ceremony which were calculated to impress
the memory of the transaction on the witnesses. The first
departure, in practice, from the rigor of the primitive
observances, seems to have been a Bymbolical delivery of
the possession; though from the great inconvenience in
many cases, of making the corporeal transfer, this substitu-
tion must be but little short of the antiquity of the direct
method by livery and seizin on the land itself; and, indeed,
it seems to have been the usage of very remote times.^ As
it was the intention of the words, which were used before
writing was adopted, to declare the tenor of the grant, and
the nature and obligation of the investiture ; so, when the
practice added writing to the transaction, such writing did
only record the fact and the intention of the parties, in a
form extremely short and simple.^

It is easy to apprehend how rapidly this simple document
would assume a more complicated shape, and modify itself
to the more intricate wants and interests of mankind, by
qualifying the grant with express stipulations and condi-
tions. And we can readily suppose that it would soon
make the principal figure in all conveyances of land, and

1 Thus the delivery of a shoe was memorial of the transaction, and a

the symbol of the transfer of the method of recording the testimony of

land of Elemelech to Boaz. The the ocular witnesses,

purchase by Jeremiah of Hanameel's ^ gee the account of the hreve tes-

fleld was ratified by an instrument, tatum in the Book of Peuds, 1 tit. 4 ;

subscribed and sealed. Genesis, chap- and Craig, lib. 2, Dieg. 2, No. 16.
ter 22, but this seemed to be only a

SEC. 190.] IKTEEEST IN LANDS. 343

become the standing evidence of the change of the prop-
erty. It was the natural effect of this altered state of
things, to substract from the feudal investiture much of its
sanctity and publicity; the improper investiture, as it was
called, being received from the attorneys or stewards of the
lord, instead of the lord himseK, came into common practice ;
attestation of common witnesses, instead of the pares curiae,
was received; and, as these witnesses, being not the pares
curiae of the particular manor, served as well for one as
another, all the lands lying in one county, and intended to
be conveyed, might pass by the livery of one parcel in the
name of them all.

The ancient form of conveyance thus gradually declined
ftom the dignity of the proper investiture, and yet, slight as
it had become in respect to its ceremonial, the ingenuity of
men was very early at work in inventing substitutionary
methods of evading the necessity of making the livery of
seizin by themselves or their attorneys. It is said by a sensi-
ble writer,! that " earlier than the time of Littleton, it had
come into fashion to transmit land by attornment if there
was a tenant, and by a lease and release if there was none ;
in the first of which cases, the form of getting the consent
of the tenant of the ground, to the transfer, supplied the
place of that livery, which could not be given ; and, in the
other case, the grantor gave to the grantee an imaginary
lease, in order to put him into possession, and the next
minute released." In each of these methods by attorn-
ment,2 and lease and release, an act was done of an osten-

1 Dalrymple on Feudal Property, quent and fraudulent practice of
ch. 6, § 3. tenants, in attorning to strangers,

2 The ceremony of attornment who claim title to the estates of their
seems at all times to have produced respective landlords or lessors, who
more danger than security to property, are thereby put out of the possession
The statute 4 Ann. c. 16, § 9, has, of their respective estates, and put to
therefore, made all grants and con- the difficulty and expense of recover-
veyances good without attornment, ing the same by action at law ; it is
and thus removed the necessity for therefore, thereby enacted, that all
making it : but its efficacy as an act such attornments shall be void, and
of notoriety and evidence yet re- the possession not altered; but it is
mained, and, as it appears, continued also thereby provided, that the same
to be made an ill use of; for the act shall not extend to effect any
statute 11 Geo. 2, c. 19, § 11, reciting attornment made pursuant to any
that the possession of estates was judgment at law, or decree, or order
rendered very precarious, by the fre- of a court of equity, or made with

344 STATUTE OF FEATJDS. [CHAP. VI.

sible kind to notify the change of property; for the attorning
in one case, and the actual entry upon the lease in the other,
was stiU. a ceremony, though but slight in comparison of the
old formalities which took place upon the feudal feoffment.
While the ancient forms of transmission and investure were
thus declining into shadows, the practice of creating secret
trusts and confidences (for such were uses at the common
law) for evading the pressure of the feudal burdens, which
were daily becoming less tolerable, as social and political
changes diminished their utility and their recompense, and
for escaping the consequences of attainders and convictions,
which, multiplied with the contests of factions and the
struggles of liberty, were threatening to become universal.
"Which practice," says Loed Bacon,^ "was turned to de-
ceive many of their just and reasonable rights. A man that
had cause to sue for land, did not know against whom to
bring his action, or who was the owner of it. The wife was
defrauded of her thirds, the husband of liis courtesy, the lord
of his wardship, relief, heriot, and escheat; the creditor of
his extent for debt, and the poor tenant of his lease."

The method pursued for remedying these inconveniences,
while it failed of accomplishing its immediate purpose, near-
ly caused all the ancient notorious method of transfer, and
even its very shadows and substitutes, to disappear, by giving
effect to new and secret conveyances. The statute of the
27th Hen. 8, c. 10, called the Statute of Uses, which had
been preceded by many partial attempts to attain the same
object,^ by fastening upon the interest of the cestui que use
the same obligations, and subjecting it to the same remedies

the privity and consent of ttie land- land to be extended by the creditors

lord or landlords, lessor or lessors, or of cestui que use ; 1 Eic. 2, c. 9 ; 4

to any mortgagees after the mortgage Hen. 4, c. 7 ; 1 Hen. 6, c. 3 ; 1 Hen. 7,

has become forfeited. c. 1, allowed actions for the freehold

1 Use of the Law, 153. to be brought against the cestui que

2 To remedy the inconveniences of use if in the actual pernancy of the
these creations of uses and trusts, in profits ; 11 Hen. 6, c. 5, made the
respect to lands, a multitude of cestui que use liable to the action of
statutes were enacted for making the waste ; 1 Ric. 3, c. 1, gave legal effect
cestui que use to be considered, for to his conveyances and leases, made
the particular purpose then in the without the concurrence of his
contemplation of the legislature, the feoffees ; and 4 Hen. 7, c. 17 ; 19 Hen.
real owner of the land. Thus, the 7, c. 15, made him answerable for the
60th Edw. 3, c. 6 ; 2 Eic. 2, sess. 2, c. feudal perquisites, and gave the lord
3 ; 19 Hen. 7, c. 15, subjected the the wardship of his heir.

SEC. 190.] INTEEEST IN LANDS. 345

in a variety of particular instances, as had before accompa-
nied exclusively the legal ownership, at once identified the
use with the legal property in the land, or, as it is expressed,
" transferred the use into the possession "; or, in other words,
annexing the possession to the use. Before this statute,
equitable estates were created without livery, or entry, or
attornment, and by virtue of this statute, these equitable
estates, as soon as they were created, became clothed with
the legal interest, so that legal estates became grantable
without livery, entry, or attornment. The bargain and sale
came now, therefore, to be the general method of convey-
ance, which, having once raised the use upon the valuable
consideration, left the statute to do the rest of the work:
and so completely does form and solemnity seem at this
juncture to have been lost sight of, that it appears, accord-
ing to some authorities, and that of Lobd Coke among
others, that even lands might, in the interval between the
statute of uses and enrolments, have been transferred by a
parol bargain and sale.^ Nor does it appear that such un-
solemn modes of conveyance, where the customs of boroughs
have sanctioned them, received a decided and universal pro-
hibition till the great statute of Charles the Second, which is
the subject of this treatise, was enacted. In the meantime,
it should be remarked, that the evil, which it was the direct
purpose of the statute to prevent, eluded its intention in the
new shape of a trust, the courts having determined a use
upon a use, not to be executed or converted into the legal
estate by the statute. The easy and informal transfer of
real property, by the secret method of a bargain and sale
unrecorded, called for the legislative interference by the
statute of enrolments, whereby it was made^ necessary to
register in court these conveyances of the freehold, which
were thenceforth required to be in writing, under seal. But
this statute omitted to extend its provisions to bargains and
sales for terms of years, the consequence of which omission •
was the total disappointment of its salutary purpose by the
conveyance by lease and release, not then, indeed, for the
first time invented, but for the first time founded on a lease
made by a bargain and sale, to save the necessity of the entry,
by the help of the use executed by the statute.

1 See 2 Inst. 676; 1 Leon. 18. 2 27 Hen. 8, c. 16.

346 STATUTE OF PEATJDS. [CHAP. VI.

Amid all these changes, however, under which the old
feudal fabric of conveyance had sunk into desuetude, the
transfer by parol, if the act of livery accompanied, existed
potentially, until the statute of frauds and perjuries, by the
clauses which form the subject of this chapter, imposed uni-
versally the necessity of writing upon all conveyances of
lands, or interests in lands, for more than three years. As
the registering was avoided by the lease and release, so the
necessity of writing might have been eluded by parol declara-
tions of trusts, but the statute of frauds and perjuries had this
danger also in view, and by the seventh and eighth sections,
already treated of in a separate chapter of this treatise, made
aU actions, declarations, and assignments of trusts, void ; and,
upon the whole, the statute would have restored the notori-
ety without the inconvenience of the feoffment by livery of
seizin, had it seemed, in other respects, proper to the framers
thereof to have extended the provision to the registration
and recording of what it has required to be in writing.^

The passing of this statute is, however, properly regarded
as a new and important era in the law in respect to contracts,
trusts, and translations, of or concerning property in land :
and past experience having proved the fertility of invention
in suggesting means of eluding similar restraints, the courts
seem resolved to make the wisdom of this law effectual, by
discountenancing subtle distinctions and evasive exceptions.
Epithets of a harsh kind have sometimes been thrown upon
it ; and to some it has seemed to be a miscellany of uncon-
nected provisions : its objects were certainly numerous and
extended, and subsequent experience and modern refinement
may find something in the matter to be supplied or altered,
and something in the language to be corrected, but a general
and simultaneous view of its enactments, will disclose, to the
diligent and unpresumptuous student, a totality of plan and

1 By an act of the 2d Ann. c. 4, a And, by the statute 8 Geo. 2, c. 6, the
register is directed to he kept of all benefit of a similar provision is ex-
deeds and conveyances affecting lands tended to the North Riding of York-
in the West Biding of Yorkshire, shire. Registration has been made
Another statute of the same Queen, universal in Scotland, with great
6th Ann. c. 35, has established a advantage to that country. See
siinilar register in the East Riding. Darymple on Feuds, chap. 6, § 4.
A third, viz. 7th Ann. c. 20, does the And in this country it is required in
same for the county of Middlesex, all the States.

SEC. 191.J INTEREST IN LANDS. 347

structure, and a wise and uniform purpose of protecting and
purifying the daily commerce of mankind.

The temptation, indeed, to convey so important a property
as land without writing is but small ; even when the talent
of writing was rare, the livery of seizin was seldom unaccom-
panied by the charter of feoffment ; but as the use of this
accompanying instrument, by becoming general did not, there-
fore, become essential, while, on the other hand, it made the
livery a transaction of less impression and solemnity, the pos-
sibility of swearing a man out of property of land seemed
to be such as might prove a temptation to the needy and
profligate. An end, therefore, has been anxiously put to the
chances and opportunities of both fraud and perjury, in re-
spect to the conveyance of interests and estates in land,
except as to a lease for one, two, or three years, which is
all that is left to the uncertainty of verbal testimony.^

Sec. 191. Application of the Statute. — This section does
not refer to agreements which operate as an immediate trans-
fer or conveyance of an estate or interest in lands, but to
contracts which contemplate the making -or execution of a
grant, transfer, or conveyance at some future time.^ Nor
does it embrace contracts relating to land but which do not
confer an interest therein. The question as to what consti-
tutes an interest in lands, within the meaning of this section,
is a vexed one, and one which has often been before the
courts, with varying results, so that no general rule, afford-
ing an invariable test for determining what contracts re-
lating to lands are within the statute, can be given ; so that
the only guide in this respect, which can be given, is a refer-
ence to the class of contracts which have been held by the
courts to come within the statute, or not to be subject to its
operation. But it would seem that it may safely be said, that
a contract which involves the title to land, or anything which is
permanently connected therewith, comes clearly within the provi-
sions of this section ; but contracts which, although they relate
to matters which are connected with land, yet are only tempo-
rarily a part thereof, do not come within the statute ; and
under these rules arise the distinctions between contracts

1 Roberts on Frauds, 264-270. ^ gugd, V. & P. 94.

348 STATUTE OP FBATIDS. [CHAP. TE.

relating to matters fruetus natiirales and, those which are
merely fruetus industriales, and contracts relating to fix-
tures which the tenant or owner of the land has a right to
remove, and those which he has not. This portion of the
fourth section of the statute refers to agreements for the sale
and purchase and acquisition of lands, tenements, or heredit-
aments, or any interest in or concerning them not operating
as an immediate transfer or conveyance of any estate or inter-
est, but as contracts to make or execute a grant, or transfer,
or conveyance, at some subsequent period.^

Sec. 192. instances of Agreements 'Within the Statute. —
Agreements for leases and for the sale, assignment, or surren-
der of leasehold estates, being contracts for a grant or transfer
of an estate or interest in land, are within this clause of the
statute, and must consequently be authenticated by a signed
writing.^ Where anything is done which substantially amounts
to a sale or parting with an interest in land, the contract is
within the statute.^ Where it was agreed between the plaiatiff,
who was the tenant of a farm, and the defendant, that the
plaintiff should surrender her tenancy and prevail on her land-
lord to accept the defendant as tenant in her place, and that the
defendant should then pay her for so doing £100, it was held
that the contract amounted to a sale of an interest in land,
within the statute. As it appeared, however, that the plain-
tiff had given up the land, and that the defendant had suc-
ceeded to her interest, and had afterwards admitted that he
owed her £100, it was held that the £100 might be recov-
ered on an "accounts stated."* Contracts for the letting
and hiring of furnished houses and lodgings by the day, week,
or month, are contracts for an interest in land, and must be
authenticated by a signed writing,^ because if carried out, it
would amount to a demise; yet a mere contract for board

1 Sugd. "Vend. 94, n.; Blood v. Co., 9 N. H. 355; Bliss ». Thomson,
Hardy, 15 Me. 61 ; Patterson v. Cun- 4 Mass. 488 ; Sherburne v. Puller, 5
ningham, 12 Me. 506; Scotten v. Mass. 133; Hughes v. Moore, 7 Cr.
Brown, 4 Harr. (Del.) 324. Th'is ex- (U. S. C. C.) 176.

tends to the sale of a pew. Vichi v. * Kelly v. Webster, 12 C. B. 290.

Osgood, 8 Barb. (K Y.) 130. i Cocking v. "Ward, 1 C. B. 868.

2 Anon., Ventr. 361 ; Poulteney v. ^ Inmanu. Stamp, 1 Stark. 12 ; Edge
Holmes, 1 Str. 405 ; Olmstead v. Niles, v. Strafford, 1 C. & J. 391.

7 N. H. 523; Folsom u. Great Palls

SEC. 193.] INTBEEST IN LANDS. 349

and lodging as an inmate of the house, although the lodger
is to have a separate room, is not,^ nor is a mere contract by
the occupant of a house to take a lodger giving him certain
specified rooms, although it implies a license to go upon the
land.2 Agreements to furnish houses entered into between
a landlord and an intended lessee or tenant, where the occu-
pation of the house forms the substance of the contract, and
the furnishing of it is bargained for only in connection with
such occupation, are within the fourth section.* Where an
oral agreement was made between the plaintiff and the de-
fendant for a lease of a ready-furnished house, and the
house being only partially furnished, the defendant prom-
ised to send in more furniture, and the plaintiff took pos-
session of the house, and the furniture not being put in, he
brought his action to recover damages for the breach of the
defendant's promise, it was held that the promise formed
part of an entire contract for an interest " in or concerning
lands, tenements, and hereditaments, and ought consequently
to have been expressed in writing." * If the agreement does
not form part of a contract for the letting and hiring of a
house, it is then of course only a sale and purchase of goods
and chattels, and has nothing whatever to do with an interest
in land.

Sec. 193. Agreements between Landlord and Tenant. —

Agreements to make alterations and repairs in buildings
entered into between a landlord and tenant, where the prin-
cipal subject-matter of the agreement is the letting of the
buildings, and the improvements and alterations are accessorial
thereto, and contracted for only in connection with the lease, are
contracts involving an interest in land within the statute,
and cannot be enforced unless in writing.® Thus, where the

1 "Wright V. Stavert, 2 E. & E.. 721. was held, however, to be a condition

2 Ckompton, J., in Wright t>. Stavert, precedent to the defendant's right of
ante; Wells v. Kingston-upon-Hull, action for the rent agreed upon. 7
10 C. & P. 402. Ad. & El. 54, n. (6).

8 Vaughan v. Hancock, 3 C. B. 766 ; ' Vaughan v. Hancock, 3 C. B. 766 ;

Simmons v. Simmons, 12 Jur. 8; Bots- Scoggin v. Slater, 22 Ala. 687; Dubois

wick V. Leach, 3 Day (Conn.) 476; v. Kelly, 10 Barb. (N. Y.) 496. In

Perrine v. Leachman, 10 Ala. 140; Smith v. Goulding, 6 Cush. (Mass.)

Hawley v. Moody, 24 Vt. 603. 154, it was held that an agreement

* Mechelen v. Wallace, 7 Ad. & El. not to claim damages for the flowage

49. The sending in of the furniture of land by a dam which a person was

350 STATUTE OP FRAUDS. [CHAP. VI.

plaintiff, being in the possession of premises for an unexpired

term, agreed to give up possession to the defendant for the

balance of the term upon his agreeing to do certain repairs,

and the defendant was let into possession and occupied for

the balance of the term, but neglected to make the repairs,

it was held that the contract related to an interest in land,

and consequently, being within the statute, an action for its

breach could not be maintained.^ But an agreement to pay

an additional sum in consideration that the landlord will make

certain alterations in the premises, has been held not to be

within the statute. Thus, where a tenant who was in the

actual occupation of premises under a lease, verbally agreed

with the landlord that if he would put another story on the

house he would pay him £10 per year upon the cost of the

addition, in addition to the rent, it was held that the absence

of a written contract was no objection to a recovery of such

additional rent.^ In such cases, the tenant being in actual

possession, the contract is treated rather as a contract for

work and labor, than for an interest in land. But, if the

sum so to be paid is treated as rent, the contract would come

within the statute, because, as rent issues out of the land, it

is treated as an interest in land.^

about to erect, did not confer an in- 116 Mass. 526 ; and where the law raises
terest in land ; but only amounted to a a promise, it is not within the statute,
waiver of a claim for damages, and, although it is raised from an agree-
therefore, need not be in writing. So ment concerning an interest in lands,
in Shortu. Woodward, 13 Gray (Mass.) or otherwise within the statute. Pike
86, it was held that an agreement to v. Brovra, 7 Gush. (Mass.) 133; Good-
take a certain annual compensation win v. Gilbert, 9 Mass. 510 ; Felch u.
for damages occasioned by flowing Taylor, 13 Pick. (Mass.) 138; and un-
lands by a dam, did not confer an in- der this rule it follows that an agree-
terest ill land, and, therefore, might ment, either on the part of tlie land-
be made by parol. But in these in- lord or tenant, to do an act, which the
stances the agreement merely amounts law makes it their duty to do in tlie
to a license, and may be revoked by absence of an express contract, is not
parol at the will of the owner of the within the statute ; and in this view it
lands afiected by the flowage. Where is held that a parol agreement by a
a contract for the making of repairs, tenant to leave the premises in as
or even the assignment of a lease, good condition as he found them, is
Griffith V. Young, 12 East, 514 ; Sea- not within the statute. Halbut v.
man v. Price, 1 Ey. & M. 195, is ex- Forest City, 34 Ark. 246.
ecuted, while no action can be main- i Buttermere v. Hayes, 5 M. & W.
tained on the special contract, yet an 456.

action will lie for materials furnished, " Hoby v. Roebuck, 7 Taunt. 157 ;

work and labor done, etc. Cooking v. Price v. Leybum, Gow. 109.
Ward,! C. B. 368; Kelly v. Webster, ' Brown v. Brown, 33 N. J. Eq.

12 C. B. 283; Eastham v. Anderson, 650 ; Angell v. Duke, L. E. 10 Q. B.

SEC. 194.] INTEKEST IN LANDS. 351

Sec. 194. Contracts Relating to Land not Within the Statute.
— A contract for the manufacture of brick upon the land of
another from the clay of which the soil is composed, the brick
to remain the property of the owner of the land until the clay
and brick used in their manufacture are paid for, is held not
to be a contract for an interest in land ; ^ and in Massachu-
setts 2 and some other States ^ it is held that a sale of growing
fruit, or trees to be gathered or cut and removed by the vendee,
is not a sale of an interest in land.* So in Indiana it is held
that a verbal contract by the owner of land with another that
he may set out fruit trees (500 peach) on his land, and have
one-half the produce thereof^ after part performance, is not
within the statute ; ^ and the same is held in Maryland as to
a sale of growing fruit,^ and iq Massachusetts ^ as to a sale of
mulberry trees growing upon the vendor's land and raised
to be sold. So the sale of buildings and other fixtures,
erected by a tenant, and which he has a right to remove, is
held not to be within the statute.^ The principal difficulty,
says Me. Tayloe,® in interpreting what is meant by an in-
terest in lands has arisen in applying that term to cases
where trees, growing crops, or other things annexed to the
freehold form the subject of the contract ; and here the deci-
sions of the courts, so far from furnishing a safe guide, only
assist in confusing the student, since, to use the words of

174 ; Morgan v. Griffith, L. R. 6 Exchq. « Purner v. Piercy, 40 Md. 212.

70. ' Whitmarsh v. Walker, 1 Met.

1 Brown v. Morris, 83 N. C. 251. (Mass.) 313.

2 Nettleton I). Sykes, 8 Met. (Mass.) » Horsfall o. Hey, 2 Exchq. 778;
34; White v. Frost, 102 Mass, 375; Hallen v. Eunder, 1 C. M. & E. 266;
Drake r. Wells, 11 Allen (Mass.) 141; Keyson v. School District, 35 N. H.
Whitmarsh i,. Walter, 1 Met. (Mass.) 477; Forbes v. Hamilton, 2 Tyler
313; Douglass v. Shummay, 13 Gray (Vt.) 356; Erear v. Hardenburgh, 5
(Mass.) 498; Giles v. Simonda, 15 id. John. (N. Y.) 272; Howard v. Easton,

441 ; Delaney v. Eoot, 99 Mass. 546
Nelson v. Nelson, 6 Gray (Maes.) 385
Parsons v. Smith, 5 Allen (Mass.) 578

7 id. 205 ; Benedict v. Beebe, 11 id.
145; Lower v. Winters, 7 Cow. (N
Y.) 263; Mitchell v. Bush, 7 id. 185

Claflin c.. Carpenter, 4 Met. (Mass.) Barnes v. Pevine, 15 Barb. (N. Y

580. 247; Clark v. Schultz, 4 Mo. 235

8 Purner i;. Piercy, 40 Md. 212 ; Scoggin v. Slater, 22 Ala. 687 ; Zeika-

Byassee v. Reese, 4 Met. (Ky.) 372; fosse v. HuUck, 1 Morris (Iowa) 175

Cain V. McGuire, 13 B. Mon. (Ky.) Cassell v. Collins, 23 Ala. 676 ; Green

340. . V. Vardiman, 2 Blackf. (Ind.) 324

* But see post, § 197. Sale of grow- Beach v. Allen, 14 N. Y. S. C. 441

ing trees. Thouverin v. Lea, 26 Tex. 612.

6 Wiley V. Bradley, 60 Ind. 62. ' 2 Taylor on Evidence, § 754.

352 STATTJTB OP FKAUDS. [CHAP. VI.

Lord Abinger,^ "no general rule is laid down in any of
them which is not contradicted by some other." Indeed,
none of the courts, either in this country or in England,^
have agreed upon any unifo'rm test by which to determine
the merits of this question. In some of the cases they have
endeavored to solve it by reference to the law of emblements,
and have held that whatever will go to the executor cannot
be considered as an interest in land.^ In other cases the
test has been whether the property in dispute could have
been seized in execution at common law,* and in others a
distinction has been drawn between products of the soil,
fructus industriales, and those which are fruetus naturales^
whUe in others the decisions have rested partly on the legal
character of the principal subject-matter of the contract, but
principally on the consideration whether, in order to effectuate
the intention of the parties, it is necessary to give the vendee
an interest in the land^ and this seems to be the most con-
sistent and reliable test which can be given. Where a
contract relates to an interest in lands, any collateral con-
tract which if it stood alone would not be within the stat-
ute, falls with it. Thus, a contract to let a furnished house

1 Eodwell V. Phillips, 9 M. & W. 1 Barb. (N. Y.) 542 ; Owens v. Lewis,
505. 46 Ind. 488 ; Buck v. Pickwell, 27 Vt.

2 Sugden's Vendors and Purcha- 157 ; Daniels v. Bailey, 43 Wis. 566 ;
sers, 141-158. Pitch.;;. Burk, 38 Vt. 687; Sterling v.

8 In Eodwell v. Phillips, 9 M. & W. Baldwin, 42 id. 306 ; Kilmore v. How-

505, LoKD Abinger seemed to re- lett, 48 N. T. 509 ; 'Wood v. Shultis,

gard this as the test, and said: "Grow- 11 N. Y. S. C. 309. Indeed, it may be

ing fruit would not pass to an executor, said to be well established that the

but to the heir ; it could not be taken sale of growing crops, the annual pro-

by a tenant for life, or levied in ex- duce of land, and the result of period-

ecution under a writ of fieri facias by ical planting and cultivation, are not

the sheriff ; therefore it is distinct within the statute, and may be made

from all those cases where the in- by parol. Austin v. Sawyer, 9 Cow.

terest would pass, not to the heir at (N. Y. ) 39 ; Marshall v. Ferguson, 23

law, but to some other person." Cal. 65 ; Bernal v. Hovious, 17 id. 541 ;

* Dunn V. Purgesou, Hayes Exohq. Mattock v. Fry, 15 Ind. 483 ; Brisky v.

Rep. 543 ; Jones v. Flint, 10 Ad. & El. Hughes, 4 id. 146; Bull v. Grissey, 19

758 ; Eodwell v. Phillips, ante. 111. 631 ; Heavilon v. Heavilon, 29 Ind.

^ Jones V. Flint, ante ; Evans v. 509. Although in some of the States

Roberts, 5 B. & C. 832 ; Slocum v. Sey- a distinction is made as to whether the

mour, 36 N . J. L. 138 ; Home v. Bat- crop, at the time of the sale, is ripe, so

chelder, 49 N. H. 204 ; Putney v. Day, as to require no farther nourishment

6 id. 430 ; Kingsley v. Holbrook, 45 id. from the soil. Bryant v. Crosby, 40

813 ; Frank v. Harrington, 36 Barb. Me. 9.
(N. Y.) 415; Green v. Armstrong, 1 ^ Jones u. Flint, ante.
Den. (S. Y.) 550; "Warren v. Leland,

SEC. 195.] INTEREST IN LANDS. 353

comes within the statute, and consequently a parol contract
to put more furniture into the house cannot be enforced.^
A parol contract to surrender a house and fixtures for a cer-
tain sum is within the statute, -and even though the house
is surrendered according to the agreement, the agreed sum
cannot be recovered;^ but an agreement by a landlord to
pay a tenant for fixtures which the tenant has a right to
remove, at their valuation at the expiration of the term,
is not within the statute.^

Sec. 195. Sale of Growing Crops. — In the case of con-
tracts for the sale of growing crops, it is of importance to
determine whether the sale is of " an interest in land " within
the fourth section, or of " goods, wares, and merchandise "
within the seventeenth, and it is difficult to lay down any
precise rule as to when a sale of growing crops is a sale of
an interest in or concerning lands. Loud Abingee, in Rod-
well V. Phillips,* said : " It must be admitted, taking the
cases altogether, that no general rule is laid down by any one
of them that is not conti-adicted by some other." ^ But it

' Mechlen i>. "Wallace, 7 Ad. & El. 9 M. & W. 504; Waddington v. Bris-

49 ; Vaughan v. Hancock, 3 C. B. 766. tow, 2 B. & P. 455 ; Austin v. Sawyer,

2 Kelly u. Webster, 12 C. B. 163. 0 Cow. 39; Green v. Armstrong, 1

8 HaUen v. Runder, 1 C. M. & R. Den. (N. Y.) 550; Cutler v. Pope, 13

266 ; Lee v. Gansell, 1 Q. B. D. 700. Me. 377 ; Pierrepont v. Barnard, 5

* 9 M. & W. 505. Barb. (N. Y.) 364. Bni fructus indus-

^ And see Jones v. Flint, 10 Ad. & triales, such as growing crops of

El. 753 ; 2 P. & D. 594 ; Marshall v. turnips, potatoes, and com ; and the

Green, L. R. 1 C. P. D. 35. Agree- annual productions of the soil raised

ments for the sale and purchase of by the labor of man, which are seizable

growing grass (primae vesturae), grow- by the sheriff under a fieri facias, and

ing timber or underwood, growing pass to the executor and not to the

fruit and hops, not made with a view to heir, are considered goods and chat-

its immediate severance and removal tels, and contracts for the sale of

from the soil and delivery as a chattel them are, from this their original

to the purchaser, has been held to be a nature, considered to be contracts for

contract for the sale of an interest in the sale of goods and chattels and not

land, as it is not distinguishable from of an interest in land, although they

the land itself in legal contemplation are to remain in the soil and derive a

until actual severance, and passes to nutriment therefrom until they have

the heir, and not the executor. Cros- arrived at maturity, and the mere

by V. Wadsworth, 6 East, 610 ; Grif- license to come upon the land for the

fiths V. Puleston, 13 M. & W. 358 ; purpose of gathering and securing the

Carrington v. Roots, 2 M. & W. 248 ; crop, which is incident to such a con-

Scorell V. Boxall, 1 Y & J. 398 ; Sugd. tract, is not a sale of an interest in

"Vend. ch. 3, § 2; Petch v. Tutin, land within the meaning of the

15 M. & AV. 115; Rodwell v. Phillips, statute. Parker v. Staniland, 11 East,

354

STATUTE OP FEAtTDS.

[chap. VI.

would seem that, in order to carry out the intention of the
framers of the statute, the test to be applied in determining

362; Warwick v. Bruce, 2 M. & S.
208; Mayfield v. "Wadsley, 3 B. & C.
357 ; 5 D. & R. 224 ; EranB v. Roberts,

8 D. & R. 614; 5 B. & C. 829; Watts
V. Friend, 10 B. & C. 446; Sainsbury
r. Matthews, 4 M. & W. 347 ; Dunne
V. Ferguson, 1 Hayes, 541. And if
fruit is sold at so much a bushel, and
timber at so much a foot, with a view
to its immediate severance from the
soil and delivery as a chattle to the
vendee, the contract is not a contract
for the sale of an interest in land, but
for the sale of goods and chattels,
" the produce of the trees when they
should be cut down and severed from
the freehold." Smith i;. Surman, 9
B. & C. 568 ; and the same has been
held as to a sale of all the fruit in a
certain orchard for a gross sum.
Pumer v. Piercy, 40 Md. 212. It is
the same as if the parties had con-

, tracted for so much fruit already
picked, and for so many feet of
timber already felled. Loed Abingek,

9 M. & W. 505; Rolfe, B., Wash-
bourne V. Burrows, 16 Law J. Exch.
266; 1 Exch. 115. And when there
has been an actual severance and de-
livery of the produce, the value of it
may be recovered under a common
count in indebitatus assumpsit for
goods sold and delivered. Poulter v.
Killingbeck, 1 B. & P. 397 ; Teall v.
Auty, 4 Moore, 642 ; Purner v. Piercy,
ante. But where a man agrees to
hire the land and take the crops
growing thereon at a valuation, and
to pay a certain sum for work and
labor and materials expended in
getting the lands ready for tillage,
this is an entire contract for an in-
terest in land, and the growing crops
cannot in such a case be treated as
goods and chattels. Earl of Falmouth
V. Thomas, 1 C. & M. 89 ; Harvey v.
Grabham, 5 Ad. & El. 62. But in
New York It has been held that a
contract between A and B, that A
will carry on B's farm and sow and
gather all the crops thereon for a

certain share of the crops, is not a
contract relating to an interest in
land, and that after A has entered
upon the execution of the contract, B
cannot revoke it, even as to the grow-
ing grass. Hobbs v. Weatherwax, 38
How. Pr. (N. Y.) 385.

Where a contract was entered into
for the sale of a crop of corn on the
land and the profit of the stubble
afterwards, and the vendor was to
have liberty for his cattle to run with
the purchaser's, and the purchaser
was to have some potatoes growing
on the land and whatever lay grass
was in the fields, and was to harvest
the corn and dig up the potatoes, and
the vendor was to pay the tithe, it
was held, that this was not a contract
for any interest in land, but a sale of
goods and chattels as to all but the
lay grass, and as to that, a contract
for the agistment of the defendant's
cattle. Jones v. Flint, 10 Ad. & El.
753 ; 2 P. & D. 594, S. C. The ten-
dency of the courts now seems to be
to hold that a sale of growing crops
either of grain, vegetables, fruits, or
roots, of whatever kind or description
which mature at certain periods, and
are of a perishable nature, is not a
sale of an interest in lands, whether
the same is mature or immature at
the time of sale, or whether they are
to be gathered by the vendor or
vendee, but rather as an executory
contract for the sale of goods, with a
license to the vendee to enter and
take away the same, which license,
according to our courts, may be re-
voked at any time by the vendor.
Delaney v. Root, 99 Mass. 548; but
which according to the present Eng-
lish doctrine is irrevocable. Marshall
^. Green, 1 C. P. Div. 35. But in any
event, according to many of the cases,
the contract is valid, and if the license
is revoked before the delivery is com-
plete, an action lies for its breach.
McCarty v. Oliver, 14 TJ. C. C. P. 290 ;
Drake v. Welles, 11 Allen (Mass.) 143;

SEC. 196.] INTEREST IN LANDS. 355

whether a contract for the sale of a growing crop, whether
fructus naturales or fructus industriales, or whether it is
mature or immature, or whether it is to be severed by the
vendor or the purchaser, is or is not within the fourth sec-
tion of the statute, is, did the seller contract to give the pur-
chaser an estate in the land, or did he merely contract for the
sale of the chattels, with or without a license to go upon the
land for a particular purpose.^

Sec. 196. Sale of Crops after being Severed. — Where the
contract is, that growing crops shall be severed, and the prop-
erty in them transferred immediately, then the contract is for
a sale of goods within the seventeenth section, and not for a
sale of an interest in land within the fourth section.^ In
Crosby v. Wadsworth,^ it was decided that contracts for the
sale of growing crops of grass and hops came within the
fourth section, the ground of decision, which has been recog-
nized in several subsequent cases, being that the purchaser
had an immediate exclusive right to the land for a specific
period, namely, while the crops were growing to maturity, and
until they were harvested!^ In Parker v. Staniland,^ it was
held that a contract by the owner of a close, cropped with
potatoes, to sell them at so much a sack, the defendant to
get them out of the ground immediately, was not a con-
tract for an interest in the land, within the fourth section
of the statute, the contract being for the sale of a mere
chattel, and the land being considered as a warehouse for
the potatoes till the defendant could remove them.^ In

Owens V. Lewis, 46 Ind. 488 ; Kerr i;. harvesting and carrying away the

Connell, Berton (N. B.) 151; Whit- subject-matter of the sale. See Jones

marsh v. Walker, 1 Met. (Mass.) 316; o. Flint, 10 Ad. & El. 759.

Giles w. Simonds, 15 Gray (Mass.) 444; ^6 East 602, and Wadington v.

the rule being the same in this re- Bristow, 2 B. & P. 452 ; and see Jones

spect as in the case of the breach of v. Flint, 10 Ad. & El. 753 ; 2 P. & D.

a contract for the sale and delivery 594.

of ordinary chattels. * See Parker v. Staniland, 11 East,

1 Coleridge, Ld. C. J., in Mar- 362; Evans u. Roberts, 5 B. & C. 829;
shall V. Green, 1 C. P. D. 38. 8 D & R. 611 ; Smith i;. Surman, 9 B.

2 See 1 Wms. Saund. 395, notes to & C. 561 ; 4 Man. & R. 455; Warwick
Duppa V. Mayo. In certain cases, v. Bruce, 2 M. & Sel. 205 ; Sainsbury
however, it may be the intention of v. Matthews, 4 M. & W. 343 ; S. C.
the parties that the purchaser shall nom. Stanbury v. Matthews, 7 Dow.
have an interest in the land, and not 23.

merely an easement of the right to ^ 11 East, 36.

enter the land for the purpose of " See also Cutler i>. Pope, 13 Me.

356 STATUTE 01" FBAUDS. [CHAP. VI.

Washburn v. Burrows,^ Rolfb, B., said: "When a sale of
growing crops does, and when it does not, confer an interest
in land, is often a question of much nicety; but certainly
when the owner of the soil sells what is growing on the land,
whether natural produce, as timber, grass, or apples, or fruc-
tus industriales, as corn, pulse, or the like, on the terms that
he is to cut or deliver them to the purchaser, the purchaser
acquires no interest in the soil, which in such case is only in
the nature of a warehouse for what is to come to him merely
as a personal chattel." ^

Sec 197. Growing Trees. — In the case of a sale of stand-
ing trees, which are to be severed by the vendor, and de-
livered to the vendee at so much a cord ^ or per foot,* or even
for a gross sum, the fourth section of the statute has no ap-
plication, because although the thing contracted for is a part
of the realty at the time when it is contracted for, yet the
contract only relates to the trees when severed and reduced
to mere chattels, and the vendee does not contract for or
acquire any interest in land whatever, any more than in the
case of a sale of productions coming under the head of /rttc-
tus industriales referred to in the previous section. Thus in
Smith V. Surman,^ the contract was for the sale of trees still
standing, at a certain price per foot. It was held that the
contract was for the sale of chattels within the seventeenth
section, and did not confer an interest in land within the
fourth section. Littledale, J., said : " The words in the

337 ; Warwick u. Bruce, 2 M. & Sel. at the defendant's saw-mill, at two

205 ; Sainsbury v. Matthews, 4 M. & dollars per log, in the years 1873 and

W. 343 ; S. C. nom. Stanbury v. 1874, and to be measured and counted

Matthews, 7 Dowl. 23. at said mill, which logs the defendant

^ 1 Exch. 115. agreed to accept and pay for ; that

2 And see Dunne v. Ferguson, the plaintiif's assignor cut a large

Hayes, 340. number of logs from the lot, in ad-

8 Kilmore v. Hewlett, 48 N. Y. 569. dition to the 206, which he refused to

* In Boyce v. Washburn, 4 Hun deliver to the defendant, by means of

(N. Y.) 792; an action was brought which the defendant had sustained

to recover the price of 206 logs, sold damage. Held, that this was not a

to the defendant. The defence was contract for the sale of standing

that the logs were delivered under a timber, and that it was not essential

contract, by which the plaintifE's to its validity that it should be in

assignor agreed to deliver to the de- writing, and therefore such defence

fendant all the market pine saw-logs could be established under it.

that could be cut from the "Perry" ' g b. & C. 561 ; 4 M. & E. 455.

lot, in Wilton, the logs to be delivered

SEC. 197.] INTEREST IN LANDS. 357

(fourth) section relate to contracts for the sale of the fee
simple, or of some less interest than the fee, which give the
vendee a right to the use of the land for a specific period.
If in this case the contract had been for the sale of the trees,
with a specific liberty to the vendee to enter the land to
cut them, I think it would not have given him an interest in
the land within the meaning of the statute. The object of
a party who sells timber is, not to give the vendee any inter-
est in his land, hut to pass to him an interest in the trees,
when they hecome goods and chattels. Here the vendor was
to cut the trees himself. His intention clearly was, not to
give the vendee any property in the trees until they were cut
and ceased to be part of the freehold."^ In Marshall v.
Green,2 the facts were very similar, the only distinction
being that the trees were to be cut by the purchaser, but the
court did not consider this to be of any weight, and decided
that the contract was for the sale of goods. It seems also
that in England a contract for the sale of gravel, stone, or
other minerals, to be taken immediately, is within the seven-
teenth section.* But in this country it is held that a sale of
sand, gravel, etc., to be taken out by the vendee, is a sale of
an interest in land and within the statute, unless in writing,
and if the land is owned by two or more persons, a contract
signed by one of the owners does not aifect the right of the
other owner to rely upon the statute.* But in Iowa it has
been held that a license to take minerals from another's land
is not within the statute when the licensor has taken and
holds possession of the land, and the license is admitted by
the licensor himself,^ but a distinction is made when the
licensee has not acted under the license, and where he has
entered upon its execution, and in the former case the
statute is held to apply.

The principal conflict arises where growing trees are sold

1 See the remarks of Bayley, J., on * O'Donnell v. Brehen, 36 N. J. L.
this case in the Earl of Falmouth u. 257. See also Johnson u. Kellogg, 7
Thomas, 1 C. & M. 105; and of Lokd Heisk. (Tenn.) 272; where a memo-
Abingek in Rodwell v. Phillips, 9 M. randum of a sale of an interest in a
& W. 505. sandbank was held insufficient because

2 L. R. C. P. D. 35. it failed to give the time of purchase,
' Coulton V. Ambler, 13 M. & W. or the location of the sandbank.

403; and see Dart. V. & P. 5th ed. ^Anderson v. Simpson, 21 Iowa,
203. 399.

358

STATUTE OP FKAUDS.

[chap. VI.

to be severed by the vendee himself, and upon the question
whether such a sale is within the fourth section of the statute,
there is considerable conflict of doctrine in the courts of this
country. In Massachusetts the question is made to depend
upon the circumstance whether the parties intend an immedi-
ate and present transfer of the title in the trees or not. If the
former, the sale is treated as within the provision of the statute
relating to an interest in land, hut if the parties do not intend
that the title in the trees shall pass to the vendee until they are
severed, although such severance is to be made by the vendee,
it is treated as an executory contract for the sale of chattels
merely when they are severed.^ The rule is thus expressed

1 Nettleton v. Sikes, 8 Met. (Mass.)
34; Claflin v. Carpenter, 4 id. 580;
Whitmarsh v. Walker, 1 id. 313 ; De-
laney v. Root, 104 Mass. 548 ; White
V. Foster, 102 Mass. 375. There is no
question but that growing trees are
the subjects of grant and conveyance
by deed as a part of the freehold and
inheritance, eren though no right in
the soil on which they are standing
passes thereby beyond that of having
them stand thereon and derive nutri-
ment therefrom till they are severed.
Clapp V. Draper, 4 Mass. 266 ; Putnam
V. Tuttle, 10 Gray (Mass.) 48; Rich
0. Zeilsdorf, 22 Wis. 544; Green u.
Armstrong, 1 Den. (N. Y.) 550. Trees,
while growing, are essentially a part
of the real estate or freehold on wliich
they stand. But, while some of the
cases hold a sale of them to be of an
interest in land, other cases make a
distinction between a sale of them to
he presently cut, and where they are to
remain unsevered for any length of time,
holding it to be a sale of chattels in the
one case, and of an interest in land in
the other. But all agree that, if it is
a sale of an interest in land, it copies
within the 4th, and not the 17th, sec-
tion of the statute. The court of
New Jersey say : " I am satisiied that
such sale (of standing trees by the
owner of the freehold) is of an inter-
est in land ; " such trees " are a part
of the inheritance, and can only be-
come personalty by actual severance,
or by severance in contemplation of

law as the effect of a proper instru-
ment in writing." Slocum v. Seymour,
36 ST. J. 139, 140, citing Green v. Arm-
strong, ante. So in Vorebeck v. Roe,
50 Barb. (N. Y.) 305, the court say:
"It is well settled by authorities in
this State, that trees form a part of the
land, and, as such, are real property.
And a contract for the sale of them is a
contract for the sale of an interest in the
land." In Vermont, it was held that
so long as trees are annexed to the land,
and are not in contemplation of law sev-
ered therefrom, they cannot be sold by
verbal contract, although a sale of
growing crops of annual culture is
not a contract or sale of an interest
in land. Buck v. Pickwell, 27 Vt. 164.
But see Sterling v. Bostwick, 42 id.
306, where a different rule is an-
nounced by Bakeett, J. In Massa-
chusetts, the court, in one case, say
" a contract for the sale of standing trees,
to be cut by the vendee, does not convey
to him any interest in the land ; and it
is to be construed as passing an interest
in the trees when they are severed from
the freehold, an^ not an interest in the
land." Claflin v. Carpenter, 4 Met.
(Mass.) 583; Parsons v. Smith, 5 Al-
len (Mass.) 580. But this is limited
and explained by the same court in
White V. Foster, 102 Mass. 378, that
such a sale of trees is an "executory
contract for the sale of chattels, as they
shall be thereaflerward severed from the
real estate, with a license to enter on the
land for the purpose of removal," And

SEC. 197.]

INTEREST IN LANDS.

359

in an early case : ^ " A contract for the sale of standing trees to
be cut by the vendee does not convey to him any interest in

1 Claflin V. Carpenter, ante.

in Delaney v. Root, 99 Mass. 648, the
court say that a sale of trees or grow-
ing annual crops, to be severed from
the land by the purchaser, does not
convey any interest in the land ; " and
so far as it implies a license to enter
upon the land, the license maij be re-
voked before it is executed." In Poor

V. Oakman, 104 Mass. 316, it is said

"they (standing trees) become personal
property by being cut^ and the license to
go upon the land and take them away

becomes irrevocable. But, before they

are cut, the license may be revoked,

otherwise it would ex proprio vigore

convey an interest in the land." And

the cases of Giles v. Simmonds, 15

Gray (Mass.) 441, 444, and Whit-
marsh V. Walker, 1 Met. (Mass.) 313,

316, are to the same effect. The cases

of Huff 0. McCauley, 63 Penn. St.

210, and Green v. Armstrong, ante,

hold, that if the sale of trees is not

made with a view to their immediate

severance, it is a contract for the sale

of interest in land. And Pattison's

Appeal, 61 Penn St. 294 ; McClintock's

Appeal, 73 id. 865 ; Yeakle v. Jacob,

33 id. 376 ; Bowers v. Bowers, 95 id.

477, may he cited to the same point.

The same is held in Vermont in Ster-
ling V. Baldwin, 42 Vt. 306, although

in a previous case. Buck v. Pickwell,

27 Vt. 157, it was held that the prop-
erty in the trees did not pass until

severed. In Connecticut, however, it

seems that if the sale be of apart of the

freehold, which may be separated there-
from, as of gravel, stones, timber, trees,

and the boards and bricks of the houses

to be pulled down and carried away, it

would not be within the statute of

frauds. Bostwick o. Leach, 3 Day

(Conn.) 476, 484. In Indiana, it is

held that no interest in standing trees

which can be enforced passes until

severance, and that a license to enter

and cut them may be revoked at any

time before they are severed. Arm-
strong V. Lawson, 73 Ind. 498 ; Owens

v. Lewis, 46 id. 488. And this was
formerly the rule in Vermont. Buck v.
Pickwell, ante, and such is the rule in
Maine, Cutler v. Pope, 13 Me. 377 ;
Erskine v. Plummer, 7 id. 447, as to
trees ; but crops ripe and ready to be
severed are held to be chattels, and a
sale of them before severance is held
not to pass an interest in land. Bry-
ant V. Crosby, 40 Me. 9. In New
York, a sale of growing trees, grass,
and other crops fructus naturales are
held to be void as passing an interest
in land. Green v. Armstrong, 1 Den.
(N. Y.) 660; McGregor v. Brown, 10
N. Y. 114; Boyce v. Washburn, 4
Hun (N. Y.) 792; Kilmore v. How-
lett, 48 N. Y. 669 ; Mumford v. Whit-
ney, 15 Wend. (N. Y.) 380; Warren
V. Leland, 2 Barb. (N. Y.) 614; Vore-
beck v. Koe, 50 id. 302; Dubois v.
Kelley, 10 id. 496; Smith v. N. Y.
Centl. R. R. Co., 4 Keyes (N. Y.) 180 ;
Bennett v. Lent, 18 Barb. (N. Y.) 347 ;
Lawrence d. Smith, 27 How. Pr. (N. Y.)
327. But a parol license to cut stand-
ing trees is held not to be within the
statute, and, when executed, is held
to be irrevocable. Pierrepont v. Barn-
ard, 6 N. Y. 279. So a contract to
cut cord-wood standing on the ven-
dor's land and to deliver it at so much
a foot, is held not to be within the
statute. Kilmore v. Hewlett, 48 N. Y.
569. See also Boyce b. Washburn, 4
Hun (N. Y.) 792, where a similar doc-
trine was held as to a contract for logs.
A contract to work a farm on shares
is held not to be within the statute,
and the license thus given after entry
under the contract is irrevocable, even
as to the growing grass. Hobbs v.
Wetherwax, 38 How. Pr. (N. Y.) 385.
Nor a contract for the sale of improve-
ments upon land. Lower v. Winters,
7 Cow. (N. Y.) 263 ; Benedict y. Beebe,
11 John. (N. Y.) 145. In New Hamp-
shire, it is held that a sale of growing
trees which ihvolves a future right on
the part of the vendee to enter to

360

STATUTE OF FRAUDS.

[chap. VI.

the land, and it is to be construed as passing an interest in
the trees when they are severed from the freehold." ^ In a

1 See also Parsons v. Smith, 5 Allen (Mass.) 580.

they hold, if the purchaser has accepted
and received the growing crop by having
the same marked off and separated from
the rest of the field, it would constitute
a complete sale, and pass the property
in the crop. Graff v. Fitch, 58 111.
377. The following English cases
sustain the same doctrine, if they are
fructus industriales. Parker v. Stanl-
land, 11 East, 362, which was of pota-
toes to be taken at once. Warwick
V. Bruce, 2 M. & S. 205, which was of
potatoes in October ; Evans v. Rob-
erts, 5 B. & C. 836, of potatoes to be
dug by the vendor ; Jones v. Flint, 10
Ad. & El. 753, which was of corn and
potatoes not yet mature, and were to
derive their nutriment from the land,
though a different doctrine in such
cases had been held in Emmerson v.
Heelis, 2 Taunt. 38. But if it had
been growing grass, Crosby v. Wads-
worth, 6 East, 602 ; or hops. Wadding-
ton V. Bristow, 2 B. & P. 452 ; or grow-
ing fruit, Rodwell v. Phillips, 9 M. &
W. 592, it would, according to the
cases cited, have been a sale of an
interest in land, and not of merchan-
dise. But as to hops, see remarks of
Pakke, B., in Rodwell u. Phillips,
ante, where in remarking upon the
decision in Waddlngton v. Bristow, 2
B. & P. 452, that "hops are /rartus in-
dustriales. That case would probably
be decided differently now." See also
Frank v. Harrington, 36 Barb. (N. T.)
415, where hops were held to be fruc-
tus industriales, and a sale of them on
the vine, held not to be within the
statute. So growing fruit has been
held to come under the same head.
Pumer v. Piercy, 40 Md. 212. And,
inasmuch as growing grass matures
annually, and is valueless unless gath-
ered when mature, and is more or less
dependent for its growth and value
upon the industry of man, as by its
manurance, etc., it is believed that it
would now be treated as f-uctus indus-
triales and its sale not within the 4th

sever them, whether the right is to be
exercised within u, certain specified
time, or at an indefinite period, is
within the statute. Howe v. Batchel-
der, 49 N. H. 204; Kingsley v. Hol-
brook, 45 id. 313 ; Oakington v. Richey,
41 id. 275 ; Putney v. Day, 6 id. 430 ;
Olmstead ;;. Mies, 7 id. 522. In Mis-
sissippi, where a contract for the sale
of trees has been executed by the
vendee, that is, where he has entered
and severed them from the land, the
title thereto is held to have thus be-
come vested in him and the contract
effective. Harrell v. Millner, 35 Miss.
700. And the vendee has an irrevocable
license to enter and take them away.
Owens V. Lewis, 46 Ind. 488 ; Pierre-
pont V. Barnard, 6 N. Y. 279 ; Drake
V. Wells, 11 Allen (Mass.) 141 ; Barnes
V. Barnes, 6 Vt. ; Poor v. Oakman, 104
Mass. 316; Heath v. Randall, 4 Cush.
(Mass.) 195; Russell i>. Richards, 10
Me. 429; McNeal v. Emerson, 15
Gray (Mass.) 384; Smith u. Benson,
1 Hill (N. Y.) 176. Several of the
American cases hold that a sale of
growing crops not yet mature, being a
mere sale of chattels, is not within
the statute, although made by parol,
though no reason is given if with the
crops the sale carries a right to oc-
cupy the land for them to grow and
mature, why it would not be like the
sale of trees with a right to have them
stand for a definite or unlimited time,
unless, as some of the English cases
imply, such crops, after their sale, par-
take of the character of emblements.
Whipple a.Foot, 2 Johns. (N. Y.) 418 ;
Stewart v. Doughty, 9 id. 108 ; Austin
V. Sawyer, 9 Cow, (N. Y.) 40, 42;
McGregor v. Brown, 10 N. Y. 114;
Warren v. Leland, 2 Barb. (N. Y.) 213 ;
Bennett v. Scott, 18 icj- ; Newcomb v.
Eayner, 2 John. (N. Y.) 421 n. In one
case in Illinois, the court seem to re-
gard a sale of unmatured crops as a
sale of an interest in land. Powell v.
Rich, 41 III. 469. But, in another.

SBC. 197.] INTEREST DT LANDS. 361

later case ^ the court limits and explains this rule thus : " A
sale of trees is an executory contract for the sale of chattels
as they shall be thereafter severed from the real estate, with
a license to enter on the land for the purpose of removal."
Until the trees or other growing crops are severed from the
soil, no title passes to the vendee and the license is revoca-
ble,^ otherwise it would ex proprie vigore convey, an interest
in the land.^ But after the trees are out by the vendor they
become personal property, and the license is irrevocable as it
then becomes a license coupled with an interest.* Thus in a
case previously cited ^ the plaintiff entered into a parol con-
tract with the defendant, that the defendant should cut cer-
tain trees upon the plaintiff's land, peel them and take the
bark to his own use, and pay therefor a certain price per
cord. The defendant entered in pursuance of the contract,
and cut and peeled the trees, but the plaintiff, after the con-
tract was executed on the part of the defendant, forbade him
from taking away the bark. But the defendant notwith-
standing this, entered and took away the bark, and in an
action of trespass brought against him therefor, it was held
that no recovery could be had, because after the license had
been executed by the defendant, the plaintiff could not re-
voke it. In Indiana,^ Maine,'^ and Mississippi,^ practically
the same doctrine prevails, it being held that under a parol
sale of growing trees, no title to the trees passes to the ven-
dee, and the license to enter and sever and remove them is
revocable at any time, but that after they have been severed
hy the vendor the title thereto vests in him, and the license to
take them away becomes irrevocable. That is, after severance,
the trees become chattels, and the license becomes then coupled
with an interest in chattels upon the land, and cannot be re-
voked until the licensee has had a reasonable time to execute it.

section under the principle upon of the trees are cut, it may be revoked

which the case of Marshall v. Green, as to the residue. Giles v. Simonds,

1 C. P. D. 35, rests. 15 Gray (Mass.) 441,

1 "White V. Forster, 102 Mass. 378. ^ Nettleton v. Sikes, ante.

2 Delaney v. Root, 99 Mass. 548. « Armstrong <■. Lawson, 73 Ind.
" Poor V. Oakman, 104 Mass. 816 ; 498 ; Owens v. Lewis, 46 id. 488.

Drake v. Wells, 10 Allen (Mass.) 141. ' Cutter v. Pope, 13 Me. 377; Ers-

^ Poor V. Oakman, ante ; Nettleton kine v. Plummer, 7 id. 447.
V. Sikes, 8 Met. (Mass.) 34 ; Claflin v. ^ Harrell v. Millner, 35 Miss. 700.
Carpenter, ante. But if only a part

362

STATUTE 01" FEAIJDS.

[chap. VI.

In Pennsylvania ^ it is held that a contract for standing
timber to be severed and removed at the discretion of the
vendee, is a sale of an interest in land. But if it is to be
severed and removed at once, it is held to amount only to the
sale of a chattel interest, and therefore not within the fourth
section of the statute.^ Such also, is the rule in Connecti-
cut,^ Kentucky,* Maine,^ Maryland,^ and in Vermont.^ The

1 Huff V. McCauley, 53 Penn. St.
210 ; McCIintock's Appeal, 73 id. 365 ;
Yeakle v. Jacob, 33 id. 376. In Bow-
ers 0. Bowers, 95 id. 477, it is said :
" A contract for standing timber on a
tract of land, to be taken off at the dis-
cretion of the purchaser as to time, is an
interest in land, within the meaning of
the statute of frauds, the transmis-
sion of which must be in writing."
Patterson's Appeal, 61 Penn. St. 294.
In that case, Thompson, C. J., says,
the announcement that the timber
growing on a man's land might be
held by a contract in parol while the
soil itself can only be legally trans-
mitted by a written instrument, would
strike even the improfessional mind
with surprise. The rigid requirements
of the statute have, however, been so
' far relaxed by courts of equity that
effect is sometimes given to verbal
agreements for an estate or interest
in land ; but it is only in cases where
the contract, in all its essential parts,
is established by clear and unequivo-
cal proof, and where it has been so
far executed that it would be unjust
and inequitable to rescind it; and
this is done in order that the statute
itself may not become an instrument
of fraud. Hazlett v. Hazlett, 6 Watts.
(Penn. ) 464 ; Woods v. Farmere, 10 id.
195; Moore u. Small, 19 Penn. St.
461; Hart v. CarrpU, 85 Penn. St.
508. To take a case of parol sale
out of the statute, the terms of the
contract, the ,land which forms its
subject-matter, the nature and extent
of the interest to be acquired therein,
the consideration to be paid, etc.,
must all be fully and satisfactorily
shown. Exclusive possession, taken
and kept up in pursuance of the con-
tract, is an indispensable ingredient

in every case. Hence it is that there
cannot be a valid parol sale of land
by one tenant in common to his co-
tenant in possession. Spencer's Ap-
peal, 81 Penn. St. 317.

2 McCIintock's Appeal, ante.

° Bostwick V. Leach, 4 Day (Conn.)
476.

* Cain V. McGuire, 13 B. Hon.
(Ky.) 340 ; Byassee v. Bead, 4 Met.
(Ky.) 372.

6 Cutler V. Pope, 13 Me. 377 ; Saf-
f ord t. Ames, 7 Me. 168 ; Erskine v.
Plummer, 7 id. 447.

6 Purner v. Piercy, 40 Md. 212.
See full statement of case and opinion
of Stbwakt, J., post, p. 388.

' In Stanley o. Baldwin, 42 Vt.
308, Barrett, J., In a very able opin-
ion, attacks somewhat the former doc-
trine in that State as held in Buck v.
Pickwell, 27 Vt. 157, and says: "In
Buck V. Pickwell no notice was taken
by Bennett, J., of the distinction
which seemed to be established out-
side of Vermont and clearly stated in
note 1. Greenl. Cruise, 55, § 45 : 'The
principle now most generally recog-
nized seems to be this, that in con-
tracts for the sale of things annexed
to and growing on the freehold, if the
vendee is to liave the right to the
soil for a time for the purpose of further
growth and profit, of that which is the
subject of the sale, it is an interest in
land within the meaning of the stat-
ute, and must be proved in writing.
But where the thing is sold in pros-
pect of a separation from the soil
immediately, or within a reasoi^able
and convenient time without any stip-
ulation for the beneficial use of the
soil, but with a mere license to enter
and take it away, it is to be regarded
as substantially a sale of goods only,

SEC. 197.] LNTEKEST IN LANDS. 363

ground upon -which the cases holding this doctrine proceed
is, that the contract is for the sale of chattels only, and that
the circumstance that the trees are growing or standing upon
the vendor's land at the time of the sale, hut which are to
be removed immediately, does not in any sense make it a
contract for a sale of land or any interest in, or concerning
land, and that the circumstance that the vendee has the
right to enter upon the land to sever and remove the trees,
does not bring it within this section (fourth) of the statute ^
upon the ground that such sale operates as a constructive
severance of them, and a parol license to enter upon the land
for such a purpose 'does not confer upon the licensee any
interest in the land itself, but is rather a license coupled
with an interest in a chattel upon the land, and only protects
him against liability for such entry so long as the license re-
mains unrevoked^ and by some of the cases whether the
license is revoked or not, if the hcensee has entered upon
the execution of the license, upon the ground that the license
being coupled with an interest in chattels upon the land is irre-
vocable, if exercised within a reasonable period? Thus in the
case last cited, which may be regarded as a leading case, and
as expressing the doctrine as now held in England, the plain-
tiff beijig tenant in fee of certain copyhold land, within a
manor, by the custom whereof trees growing on the land
were the property of the tenant in fee, having let the land
to a yearly tenant, sold by parol to the defendant twenty-two
specified trees growing on the land, upon the terms that
they were to be cut down by the defendant, and '''■ got away
as soon as possible" and to be paid for at a certain future
day. The defendant almost immediately entered upon the
land and cut down six of the trees, and sold to a third person

although an incidental benefit may be sons v. Smith, 5 Allen (Mass.) 578;

derived to the vendee from the cir- Douglass d. Shumway, 13 Gray (Mass.)

cumstance that the thing may remain 498; Nettleton v. Sikes, 8Met. (Mass.)

for a long time on the land '" 34; Whitmarsh w. Walter, 1 id. 313;

' Smith V. Bryan, 5 Md. 141 ; Pur- ClaflSin v. Carpenter, 4 Met. (Mass.)

ner v. Piercy, 40 Md. 212; Cain v. 580; Nelson u. Nelson, 6 Gray (Mass.)

McGuire, 13 B. Mon. (Ky.) 340; 385.

Byasse v. Reese, 4 Met. (Ky.) ; Mc- ^ Armstrong v. Lawson, 73 Ind.

Clintock's Appeal, 71 Penn. St. 365; 498; Owens v. Lewis, 46 id. 488;

Drake v. Wells, 11 Allen (Mass.) 141 ; Delaney v. Root, 99 Mass. 546.
White 1-. Frost, 102 Mass. 375 ; Giles » Marshall u. Green, 1 C. P. Div.

V. Simonds, 15 Gray (Mass.) 441 ; Par- 35.

864

STATUTE OF FRAUDS.

[chap. VI.

the tops and stumps of several of them. The plaintiff then
gave notice to the defendant that he forbade him to enter the
land, or to cut down or carry away any of the trees, and caused
the gate to the field in which the- trees were to be locked.
The defendant disregarded the notice, and cut down the
remainder of the trees, and carried away the whole twenty-
two of them, and for this purpose broke open the locked
gate. The plaintiff brought trespass and the court held^

1 Marshall v. Green, 1 Q. B. D. 35.
We give the opinions of Coleridge,
C. J., Brett, J., and Grove, J., entire,
because the case is destined a leading
one upon this head of the statute, and
is not readily accessible to the great
majority of lawyers. Lord Cole-
ridge, C. J., said : " Upon these facts
it is plain that if there was a contract
in point of law, the plaintiff is wrong,
for the property in the trees felled
would be in the defendant, and the
defendant would be right in going to
take them away. If there was no
valid contract, the defendant is wrong.
The possession of the land was not in
the plaintiff, but in that of his tenant.
The question is whether, by reason of
either the 4th or 17th section of the
statute of frauds, a writing is requisite
for such a contract as this. First, was
it a contract or sale of lands, or any
interest in, or concerning them ■? Many
discussions have taken place upon the
exact meaning to be attached to the
words of this section, and many deci-
sions have been given, all of which it
may not be possible to fully reconcile.
If the matter were res Integra, much
might be said in favor of the view
taken by Littledale, J., in Smith v.
Surman, 9 B. & C. 561, 671, that they re-
late only to what may be termed con-
veyancing interestSjthat is, to contracts
for the sale of the fee or of some less
interest which would give the vendee
a right to the use of the land for a
specific period ; but the matter is very
far from being res Integra, and con-
tracts for certain natural products of
the land have been held to fall within
the 4th section, and it is now too late
to dispute the correctness of such de-

cisions. What, then, is the test? I
myself despair of giving a true test,
or one that can be satisfactorily ap-
plied to every conceivable case. It is
suggested that where you sell some-
thing which is to derive benefit from
the land, you part with an ' interest '
within the 4th section. This is an in-
telligible rule, but it is one that must
vary according to times and seasons.
I find in a book of great authority,
which has received the sanction of
that eminent lawyer, the late Mr.
Justice Williams, in the notes to
Duppa V. Mayo, Wms. Saunders, 1871
ed., p. 394, it is said ' that the prin-
ciple of the decisions appears to be that t
wherever at the time of the contract it is
contemplated that the purchaser should
derive a benefit from the further growth
of the thing sold from further vegetation
and from the nutriment afforded by the
land, the contract is to be considered
as for an interest in land ; but where
the process of vegetation is over, or the
parties agree that the thing sold shall he
immediately withdrawn from the land,
the land is to be considered as a mere
warehouse of the thing sold, and the
contract is for goods'; and, further,
' that it appears to be now settled that
with respect to fructus industriales (i.e.
corn and other growth of the earth
which are produced, not spontane-
ously, but by labor and industry), a
contract for the sale of them while grow-
ing, whether they are in a state of maturity
or whether they have still to derive nutri-
ment from the land, is not a, contract
for the sale of any interest in land,
but merely for the sale of goods.
Growing trees, though planted by the
hand of man, do not fairly come un-

SEC. 197.]

INTEREST EST LANDS.

365

that such a contract was not a contract for the sale of lands
or any interest in or concerning them within the meaning of

der the designation of fmctus indus-
triales. I think we must look to the
position of the matters at the time of
the contract, and I think that where
at the time of the contract it is con-
templated by the parties that the pur-
chaser should derive ben^t from the
land, then there is a contract within the
ith section; but if the thing purchased is
to be immediately withdrawn from the
land, then the parties having had no in-
tention of dealing with any interest in or
concerning land, the contract does not
fall within that section.' Applying this
to the present case, the contract of
the 27 th February was for trees ' to
be got away as soon as possible.'
Now a contract to sell trees to be cut
down and carried away at once would
seem, but for judicial decisions,
nothing like a sale of an interest
in land, and, as it seems to me, there
is no sufficient pressure of authority
to prerent us from holding that, which
but for those decisions would seem
clear, namely, that the present is not
a case falling within the 4th section ;
indeed, there is some direct authority
to assist us in arriving at the conclu-
sion, which, in the absence of author-
ity, would have seemed inevitable.
The case of Smith «. Surman, 9 B. &
C. 561, is a case only distinguishable
from the present by the fact that the
trees were to be cut by the vendor ;
and the dicta of Littledale, J., if
well founded, as we think they are,
which are to be found in the report
of that case, are decisive of the pres-
ent case, and confirmatory of our
view of the law. The next question
is whether, if this contract is withm
the 17th section, there has been a
sufficient acceptance and actual re-
ceipt to satisfy the requirements of
that section. This is a matter upon
which there are an infinite number of
reported decisions ; the principle, how-
ever, which can, from an early period,
be found in those decisions, is that
there need not be an actual manual

receipt by the buyer of the whole
article; it is enough if there has
been a constructive acceptance and
receipt. Was there here enough ?
Six of the trees were cut down be-
fore the countermand, and portions
of them sold to a third person, with-
out, it would seem, the actual knowl-
edge of the plaintiff, but, as it must
be taken, with his consent. What
more could a purchaser do ■? Trees
are bulky articles which cannot be
carried away merely by the hand, and
the purchaser cuts off their tops and
stumps and sells them, thus showing
by his conduct that he adhered to the
contract. If anything short of actual
manual receipt would do, what was
done here was enough. He is allowed
to deal with the goods as his own, and
deals with them as only an owner has
a right to deal. The cases of Hodg-
son V. Le Bret, 1 Campb. 233; An-
derson V. Scott, id. 236, and the judg-
ment of LoHD Kenton in Chaplin a.
Rogers, 1 East, 191, appear directly
in point. Lord Kenton, in Chaplin
V. Rogers, 1 East, 194, says : ' Where
goods are ponderous, and incapable
of being handed over from one to
another, there need not be an actual
delivery.' The defendant, therefore,
had a perfect right to go upon the
land and carry out his contract, by
cutting down and carrying away, as
he did, the whole of the trees he pur-
chased. I do not rely upon the fact
that the land was not then in the pos-
session of the plaintiff, and, therefore,
I express no opinion as to how far the
fact that the plaintiff had no present
interest in the land may strengthen
the defendant's case."

Brett, J., said : " It is admitted
that if the trees were the property of
the defendant by virtue of a valid
contract, no action lies. Upon the
facts, it appears that no contract in
writing was signed by the plaintiff, and
that the trees had not been taken away
by the defendant before the plaintiff

366

STATUTE OK TBAUDS.

[chap. VI.

the fourth section, and that it fell within the seventeenth
section of the statute, and that the entry of the defendant

gave notice that he revoked the con-
tract. It was said, first, that the con-
tract was , one within the 4th section
of the statute of frauds, and, secondly,
that if not within the 4th section, but
within the 17th, there was no suffi-
cient acceptance and actual receipt.
A contract may concern land in va-
rious ways. It may relate to some-
thing in the land, to something affixed
to the land, or to something both in
the land and affixed to it. Certain
tests have been applied for the pur-
pose of determining whether or not a
contract falls within the 4th section.
Most of these tests are given in the
note to Duppa v. Mayo, Wms. Saund.,
ed. 1871, 394, an addition which has
the sanction of the authority of a
learned, eminent, and profound law-
yer, and which has just been referred
to by the Lord Chief Justice. In
this case, the subject-matter of the
contract, timber trees, was to be taken
away by the buyer immediately ; ap-
plying, therefore, the tests given in
the notes to Duppa v. Mayo, the con-
tract regards only trees, and is within
the 17th section and not within the
4th. There was no writing ; therefore
we must ascertain whether there was
acceptance and actual receipt before
the countermand. That there was
acceptance was hardly questioned.
Was there evidence of actual receipt ■?
I say was there evidence, because,
though the question was tried by con-
sent before the judge, it is left for
this court to draw inferences from
the facts. It appears that the vendor
and owner of the trees was not in pos-
session of the land, yet I think the
case maybe traced as though he were.
Before the countermand, the defend-
ant had a license to go on the land ;
he had a right to go there by reason
of the parol contract ; he went there
and cut down six of the trees and
lopped them. I do not rely upon
the agreement to sell the stumps and
tops, for I think the mere making of

a sub-contract would not be enough,
but there was more than this. Where
there has been no carrying away of
the thing sold, the question is, has
the vendee been in actual possession
of the thing sold, and done something
to the thing itself which could only
legally be done by the owner ? I in-
cline to think that something done
concerning the thing would not be
sufficient evidence, to be left to a jury,
of actual receipt. In Hodgson v. Le
Bret, 1 Campb. 233, the goods were
marked by the purchaser with his
name ; that was t^e act of an owner.
In Anderson v. Scott, 1 Campb. 2.35,
the plaintiffs initials were marked
upon the casks in his presence, al-
though they were upon the seller's
premises. The fact that the plaintiff
allowed or procured this to be done
in his presence was evidence to show
that he intended to be the owner of
the casks. Here, before there was
any revocation of the verbal contract,
what was done sufficiently satisfied the
requirements of the statute as to actual
receipt. The contract, therefore, was
binding, and the defendant is entitled
to succeed."

Gkove, J., said : "I have a little
to add. One point, however, I wish
to notice. In case of this description,
not only the subject-matter of the bar-
gain is to be looked at, but also the
intention of the parties as to the mat-
ter in respect of which they bargain.
In Smith v. Surman, Seegeant Ens-
SBLL, in his argument, says : ' A sale
of crops or trees, or other matters ex-
isting in a growing state in the land,
may or may not be an interest in land
according to the nature of the agree-
ment between the parties, and the
rights which such an agreement may
give.' LiTTLEDALE, J., in the same
case, 9 B. & C. 573, says : ' The
object of a party who sells timber is
not to give the vendee any interest in
his land, but to pass to him an interest
in the trees, when they become goods and

SEC. 197.J INTEREST IN LANDS. 367

and the severance by him of six of the trees, and the sale of
the stumps and tops of several of them, afforded sufficient
evidence of acceptance and actual receipt to satisfy that
section, and consequently that the action was not maintaina-
ble, because the entry being made under a license coupled with
an interest in chattels was lawful, and the notice given by the
plaintiff was inoperative to defeat the defendant's right under
the license, as (under the circumstances) it was irrevocable.^
It will be observed that the distinction between the doctrine
of this case, and that held in Massachusetts is, that the con-
tract for the sale of standing trees is treated in Marshall v.
Green, in the absence of any express or implied stipulation
to the contrary, as passing the title to the trees to the vendee
immediately, and therefore treating them as chattels, and con-
structively severed instantly upon the completion of the contract
of sale, as effectually as they would be by a contract in writ-
ing, and also holding that, if an immediate severance is not
contemplated by the parties, but the trees are to remain and
derive a further benefit from the soil "from the further
growth of the thing sold from further vegetation, and from
the nutriment afforded by the land, the contract is to be con-
sidered as for an interest in land," and that the license to enter
and sever and remove the trees is irrevocable after the vendee
has entered upon its execution. While under the rule as
adopted in Massachusetts, as we have seen,^ if the parties

chattels' By considering what, in each the land being then the plaintiffs ten-
case, was the object of the parties, ant's, the defendant is entitled to the
many of the cases may, I think, be Terdict."

reconciled. Here the defendant merely ^ In Anderson v. Simpson, 21 Iowa,
intended to buy the trees ; he had no in- 390, it was held that a license given
tention of being interested in the land ; he by the owner of lands to another to
merely wanted timber, and wished to enter upon his lands to dig minerals
have it severed from the land at therein, was irrevocable after the li-
once ; he only bought so much wood. I cettse had entered upon its execution.
am, perhaps, hardly satisfied that the In Brown u. Morris, 83 N. C. 251, a
circumstance that the plaintiff was contract under which one is to make
not in possession of the land was im- brick on the land of another from the
material ; it may be that the plaintiff clay forming a part of the soil of such
had no right in the land except the land, the property in the bricks to re-
right to remove the trees, and this main in the owner of the land until he
may be a matter which strengthens has been paid for the clay and wood
the case for the defendant. It is not, used in their manufacture, was held
however, needful to discuss this ques- not to be a contract relating to an in-
tion in the present case, as I agree terest in land,
that independently of any considera- ^ Ante, p. 358.
tions that may arise from the fact of

STATUTE OP FEATJDS. [CHAP. VI.

intend a present transfer of the title to the trees, the contract
is treated as for an interest in land, and while, after the trees
have been severed hy the vendee, the vendor cannot revoke
the license to enter and remove them, yet he may at any
time revoke it, before it has been executed, or as to any trees
not then severed.^ If the doctrine of constructive severance
has any validity, and it seems to be generally adopted, there
appears to be no good reason why it may not be as well
effected by a parol as by a written contract, and the objec-
tion that if this doctrine is recognized, perpetual estates in
land may be effected by parol, is without foundation, because
it is confined to contracts where an immediate severance is irv-
tended, so that, if not carried into effect within a reasonable
time, it ceases to be operative.

In Pennsylvania, Connecticut, Kentucky, Maryland, Maine,
and Vermont, as we have seen,^ the doctrine of Marshall v.
Green is practically adopted. In New Hampshire it is held
that a sale of growing trees is a sale of an interest in land,
and can only be made in writing where a right to enter and
sever and remove them at any future time, fixed or indefinite, is
given.^ But it is held that, when a valid contract for their
sale has been made, they are reduced to chattels and may be
sold as such by the person to whom they have so been sold,*
as, where they are reserved by the grantor in a deed convey-
ing the lands,^ or where the contract ig in writing,^ provided
it is not attempted thereby to confer upon the purchaser a
right to enter, to sever, and remove the same at his discretion,
without reference to the reasonableness or unreasonableness
of his delay in doing so,'^ and in the case last cited where the
grantor reserved certain growing trees to be cut and removed
within a certain specified time after notice from the grantee, it
was held that by such reservation, the trees were constructively
severed and became mere chattels, and passed to the admin-
istrator, and a fortiori would pass to a vendee under a parol

1 Ante, p. 361. Bank of Lansingburgh v. Crony, 1

2 Ante, p. 358 n.; also Smith v. Barb. (N.Y.)542; "Warren «. Deland,
Bryan, 5 Md. 151. 2 Id. 613.

» Kingsley v. Holbrook, 45 N. H. ^ Kingsley v. Holbrook, 45 N. H.

313 ; Putney v. Day, 6 id. 430 ; 01m- 313 ; McClintock's Appeal, 71 Pena

stead V. Niles, 7 id. 522; Howe v. St. 367.
Batehelder, 49 id. 204. 6 Sterling v. Baldwin, 42 Vt. 306.

* Ifingsley v. Holbrook, ante ; ' McClintock's Appeal, ante.

SEC. 197.] INTEREST IN LANDS. 369

sale otherwise valid under the seventeenth section.^ In New
York it is held that a parol sale of growing trees, grass, and
other crops fructus naturales is a sale of an interest in land
under the statute, and therefore void,^ and this is also the
rule in New Hampshire * and New Jersey.* In the latter
State in the case cited, the court say : " Trees form a part of
the land, and as such are real property. And a contract for
the sale of them is a contract for the sale of an interest in
land." But in New York it is held that a contract to cut
trees standing on the vendor's land and deliver them to the
vendee at a certain sum per cord,^ or to cut timber trees and
deliver them to the vendee at a certain sum per foot,® is not
a contract for a sale of an interest in land, and a similar doc-
trine has been held as to a contract for carrying on a farm
for a share of the crops, including grass "^ and for the sale of
improvements made upon land.* In Illinois,^ as to growing
crops, it has been held that a sale of them before they are
mature is a sale of an interest in lands. But in a later case ^^
this rule has been so far qualified as to hold that, where the
purchaser has accepted and received the growing crop hy having
the same marked off and separated from the rest of the field,
the title to the crop passes to the purchaser a good title
thereto, thus virtually bringing the doctrine of that court
within the rule as adopted in Marshall v. Green. In Canada ^^
it is held that a sale of growing trees is a sale of an interest
in land, but in a more recent case ^^ the question was consid-

1 Sterling v. Baldwin, ante ; Kings- * Slocum v. Seymour, 36 N. J. L. 138.
ley V. Holbrook, ante. " Kllmore v. Howlett, 48 N. Y. 669.

2 Green u. Armstrong, 1 Den. (N. ^ Boyce v. Washburn, 4 Hun (N.
Y.) 550; Smith v. N. Y. Cent. E. E. Y.) 792.

Co., 4 Keyes (N. Y.) 180; McGregor ' Hohbs v. Weatherwax, 38 How.

V. Brown, 10 N. Y. 114 ; Lawrence v. Pr. (N. Y.) 385.

Smith, 27 How. Pr. (N. Y.) 327; ' Benedict v. Beebe, 11 John (N.

Boyce v. Washburn, 4 Hun (N. Y.) Y.) 145; Lower v. Winters, 7 Cow.

292 ; Muraf ord v. Whitney, 15 Wend. (N. Y.) 263.

(N. Y.) 380; Bemnett v. Scut, 18 » Powell w. Eich, 41 111. 469.

Barb. (N. Y.) 180; Vorebeck v. Eoe, i" Graff y. Fitch, 58 111. 377.

50 id. 302; Dubois v. Kelly, 10 id. " McCarthy v. Oliver, 14 TJ. C. C.

496. In Bishop v. Bishop, 11 N. Y. P. 290; MacDonnell v. McKay, 15

123, it was held that />o?es necessarily Grant (Ont); Lawrence w. Ervington,

used in raising hops, which were 21 id. 261 ; EUis v. Grubb, 3 N. C. Q.

taken down and piled in the yard for B. (0. S.) 611; Hamilton v. McDon-

the purpose of gathering the crop, nell, 5 id. 720.

were a part of the land. ''^ Summers u. Cook, 28 Grant

s See p. 372. (Ont.) 170.

370 STATUTE OF FRAUDS. [CHAP.VI,

ered with reference to the new phase adopted in Marshall v.
Green, and while the court adhered to its previous doctrine,
yet it was by a divided court,' so that the question may be
saicj to be an open one. In that case the plaintiff, by a con-
tract in writing, dated Oct. 15, 1873, agreed to sell to one
Casselman all the , merchantable white and red pine timber
suitable for his purposes, standing, lying, or being on certain
premises owned by the plaintiff for |600, of which sum $400
was payable on the date of the agreement, and the balance in
one year. The contract provided that the timber should be
cut and removed before the 15th of October, 1881. Cassel-
man, his agents, representatives, or assigns, by the terms of
the contract were authorized to enter upon the premises at all
times during the eight years for the purpose of cutting and
removing the timber. ■ Casselman did not pay the 1200 stip-
ulated to be paid in one year, and after the expiration of the
year, assigned the contract to the defendant. The question
presented was, whether the contract was for a sale of an
interest in land, and therefore within the statute ; and it was
held by a majority of the court that it was, and the judge
delivering the opinion of the majority. Blake, V. C, thus
comments on the doctrine of Marshall v. Green: "I think
we have in this case an unfortunate extension of the intelli-
gible rule, that growing trees are an interest in land, and that
a contract in respect of them falls within the same rules as

1 Proudfoot, v. C., dissenting, tion is entirely distinct from another
and in an able opinion sustaining the much relied on in the argument, viz.,
rule as adopted in Marshall v. Green, whether the trees were not so con-
He said ; "Loud Hardwicke treated a nected with the soil as to he an inter-
sale of standing timber as a sale of est in land, and so require a writing
chattels although the purchaser had to evidence the contract under the
eight years to remove it in. Buxton statute of frauds. But it does not
V. Lister, 3 Atk. 383. And I notice seem at all clear that a sale of trees
also, that in Stokeley v. Butler, Hob. is such an interest in land as requires
173, the grantee of the trees not only a writing for the sale of them." After
had five years to remove them, but adverting to the case of Marshall v.
had also the right to make some pits Green, and its doctrine, he continued :
on the land, and to convert the trees " The true rule deducible from these
into timber where they stood. These cases would seem to be that if the
cases and many others that might be trees were purchased for the timber as
cited seem to establish that where the they stood, and not with the intention of
trees are dealt tvith separately from the allowing them to increase in size and
land, they will be considered as become more valuable from remaining
chattels, as the purchasers plainly on the soil, they are to be treated as
intended they should be. This ques- chattels."

SEC. 198.] INTEREST IK LANDS. 371

a contract in respect to lands ; and that it is to be regretted
that this question is left to depend upon the length of time
the party has to remove the property purchased. But be this
as it may, Marshall v. Green would have to be almost indefi-
nitely extended, if the clause ' the trees to be got away as
soon as possible,' be enlarged so as to cover a period of eight
years." A similar doctrine is held in New Brunswick.^
Mk. Benjamin, in his excellent treatise on Sales,^ says the
decision in Marshall v. Green seems open to some criticism.
It must be supported either on the ground that it falls within
the principle that the property was not to pass until it had
been cut down, and that this was the inference drawn from
the words " to be cut down as soon as possible," or else it
must be taken to have introduced a limitation upon the prin-
ciple that even where the property passes before severance
in fructus naturales, yet, if the evidence shows that they are
to gain nothing hy further growth in the soil, then to sell them
as they stand is not a sale under the fourth but under the
seventeenth section.

Sec. 198. Distinction betw^een Growing Trees and Growing
Crops. — The distinction between growing trees and ordinary
annual, biennial, or other crops which mature at regular
periods, is quite marked, and is well illustrated by Joy, B.,^
in which the question was, whether a sale of a growing crop
of potatoes was a sale of chattels, or of an interest in the
land. He said : " The general question for our decision is,
whether there has been a contract for interest concerning
lands within the statute of frauds, or whether it merely con-
cerned goods and chattels, and that question resolves itself
into another, — whether growing crops are goods and chattels ?
In one case it has been held that a contract for potatoes did
not require a note in writing because the potatoes were ripe ;
and in another the distinction turned upop the hand that
was to dig them, so that if dug by A, they were potatoes ;
but if by B, they were for an interest in land. Such a course
always involves the judges in perplexity, and the case in

1 Seegoe o. Perley, 1 Kerr (N. B.) ^ Benjamin on sales, 3d Eng. ed.,

439; Kerr v. Connell, Berton (N. B.) § 126.

151; New Brunswick Lumber Co. v. ' Ferguson v. Dunne, 1 Hayes

Kirk, 1 Allen (N. B.) 443 ; Murray v. (Irish) 542.
GUbert, 1 Hannay (N. B.) 548.

372 STATUTE OF PEATJDS. [CHAP. VI.

obscurity. Another criterion must therefore be had recourse
to, and fortunately the later cases have vested the matter on
a more rational and solid foundation. At common law grow-
ing crops were uniformly held to be goods, and they were
subject to all the leading consequences of being goods,, as
seizure on execution, etc. The statute of frauds takes things
as it finds them, and prevails for lands or goods according as
they were esteemed before its enactment. In this way the
question may be satisfactorily decided. If before the statute
a growing crop has been held to be an interest in lands, it
would come within the fourth section ; but if only goods and
chattels, then it comes within the seventeenth section. And
as we think that growing crops have all the consequences of
chattels, and are like them subject to be taken in execution,
we must rule the point saved, for the plaintiffs." ^ " Growing
crops," says Sargent, J.,^ "for many purposes are, and
always have been, considered chattels. They go to the exec-
utor upon the death of the owner of the land, and not to the
heir, and they may be levied on and sold like other personal
chattels. And this being the case when the statute was
enacted, they continued to be so treated, and may properly
be so now. But the word ' land ' is a comprehensive term,
including standing trees, buildings, fences, stones, and waters,
as well as the earth we stand on, and pass under the general
description of land; in a deed standing trees must be re-
garded as part and parcel of the land in which they are
rooted and from which they draw their support ; and upon
the death of the ancestor they pass to the heirs as a part of
the inheritance, and not to the executor as emblement, or as
chattels. Neither can they be levied upon or sold on execu-
tion as chattels while standing. This being the case when
the statute of frauds was passed, it has since then been prop-
erly held, we think, that a sale of growing trees with a right
at any future time to enter upon the land and remove them,
does convey an interest in land."^ Whether, a sale of crops
fructus industriales while they are immature and still grow-

1 See also Pattison's Appeal, 61 " Putney v. Day, 6 N. H. 430;
Penn. St. 294 ; Kingsley v. Holbrook, Olmstead v. Niles, 7 id. 522 ; Green v.
45 N. H. 319. Armstrong, 1 Den. (N. T.) 550; "War-

2 Kingsley v. Holbrook, 45 JJ^. H. ren v. Leland, 2 Barb. (N. Y.) 614.
319.

SEC. 198.]

INTEREST IN LANDS.

373

ing, are (says Me. Benjamin in his work on Sales) only
chattels, but " goods, wares, and merchandise," has not, it is
believed, been dirfectly decided.^ Both Bayley, J,, and Lit-

1 See Glover v. Coles, 1 Bing. 6 ;
and Owen v. Legh, 3 B. & Aid. 470,
both being cases of distress for rent.
Pitkin V. Noyes, 48 N. H. 294.

"It seems pretty plain,'' says
Blackburn, J., in his work on sales,
" upon principle, that an agreement
to transfer the property in something
that is attached to the soil at the time
of the agreement, but which is to be
severed from the soil and converted
into goods before the property is to be
transferred, is an agreement for the
sale of goods within the meaning of
the 9 Geo. 4, c. 14, if not of the 29
Car. 2, c. 3. The agreement is, that
the thing shall be rendered into goods
and then in that state sold; it is an
executory agreement for the sale of
goods, not existing in that capacity at
the time of the contract. And when
the agreement is, that the property is
to be transferred before the thing is
severed, it seems clear enough, that it
is not a contract for the sale of goods,
it is a contract for a sale, but the thing
to be sold is not goods. If this be
the principle, the true subject of in-
quiry in each case, is, when do the
parties intend that the property is to
pass : if the things perish by inevi-
table accident before the severance,
whom do they mean to bear the loss ?
for in general that is a good test of
whatever they intend the property to
pass or not; in other words, if the
contract be for the sale of the things
after they have been severed from the
land so as to become the subject of
larceny at common law, it is at least,
since the 9 Geo. 4, u. 14, a contract
for the sale of goods, wares, and mer-,
chandises, within the 17th section of
the statute of frauds. If the contract
be for the sale of the things whilst
they are attached to the soil and not
the subject of larceny at common
law, it is a contract for the sale of
things, crops, fixtures, emblements,
trees, or minerals, which may or may

not be an interest in land within the
4th section of the statute, but are not
goods, wares, and merchandise within
the 17th section. On the whole the
cases are very much in conformity
with these distinctions, though there
is some authority for saying that a
sale of emblements or fixtures vesting
an interest in them, whilst in that
capacity, and before severance, is a
sale of goods within the meaning of
the 17th section of the statute of
frauds, and a, good deal of authority
that such a sale is not a sale of an
interest in land within the 4th section,
which, however, may be the case
though it is not a sale of goods,
wares, and merchandise within the
17th.

In reviewing the authorities, it is of
some importance to remark how the
question arose before the court, and
whether the decision ^turned upon the
legal effect of the contract proved in
evidence, or upon tlie contract stated
in the pleadings, for some misappre-
hensions seem to have arisen from
neglecting this.

The first case that is generally cited
on the subject is Waddington v.
Bristow, 2 B. & P. 452, decided by
the Common Pleas in 1801. It was
an action against executors. The
declaration was that the defendant's
testator was possessed of land on
which hops were then growing ; that
the plaintiffs bargained for and
agreed to buy, and the testator agreed
to sell all the hops then growing, to be
delivered in pockets, etc. In proof
of this declaration a document was
produced, signed by both parties,
which was in the following terms:
'Agreed to give the undermentioned
gentlemen at the rate of £10 per cwt.
for the quantities of hops as attached
to their respective names, to be in
pockets, and to be delivered at Whit-
stable. — Wm. Francis (the testator),
about 23 acres.' This paper was not

374

STATUTE OF FRAUDS.

[chap. VI.

TLBDALB, J., expressed an opinion in the affirmative in Evans
V. Roberts, and Me. Tayloe, in his Treatise on Evidence,^

1 Taylor on Ev. 875, § 1043, ed. 1878.

stamped, and the question was not
whether it came within the statute of
frauds or not, but whether it came
within the exemption in the Stamp
Act of agreements relating to the sale
of goods, wares, and merchandises.
Lord Alvanley thought it an agree-
ment for the sale of goods, and some-
thing more, viz., an agreement not to
sell the produce of the land to any
one else before it was severed.
Heath, J., and Eooke, J., thought a
contract for the sale of non-existing
goods was not within the exemption, '
and that as in this case the hops did
not at the time of the sale exist as
goods, it required a stamp. Chamere,
J., thought a contract for the sale of
non-existing goods was within the
exemption ; he seems to have doubted
whether the agreement proved was
not within the exemption, but he
agreed with Lord Alvanley that the
agreement declared upon gave the
purchaser an interest in the produce
of the vendor's land. It seems prob-
able that Chambre, J., would have
held the agreement declared on within
the 4th section of the statute of
frauds, but it seems difficult to treat
this case as directly deciding any-
thing.

In Crosby v. Wadsworth, 6 East,
602, in 1805, the action was trespass
to the plaintiff's close growing grass
and hay. The plaintiff claimed the
hay under a parol contract; Lord
Ellenborouoh expressed an opinion
that it could not be an agreement
within the 17th section, because the
goods did not exist as such at the
time of the contract ; on this opinion
he afterwards acted in Groves v.
Buck, 3 M. & S. 178 ; and as has been
already observed, it is now by act of
Parliament, not law, whatever it
might be then. But the judgment of
the court was that an agreement con-
ferring an exclusive right to the grow-
ing grass was an agreement for an

interest in land. It may be observed
that on these pleadings the effect of
the agreement was not material; if
the agreement did not give an ex-
clusive right to the growing grass,
trespass would not lie ; if it did, the
statute applied : in either case the
plaintiff failed.

In Scorell v. Boxall, 1 Y. & J. 396,
in 1827, on similar pleadings, the
Exchequer decided the same point the
same way, where the subject-matter
of the action was growing underwood.

In both those cases the court had
to decide upon the contract as it was
stated on the pleadings ; but in many
cases the question depends as to the
legal effect of the contract proved.
In general, when there is a, contract
for the sale of goods in a state not
yet fit for delivery, it is considered
that the property is not intended to
be transferred to the purchaser until
the seller has done all that he is
bound to do to render the goods fit
for delivery, unless a contrary inten-
tion clearly appear (post, part 2), and
this rule must apply where the con-
tract is for the sale of things not yet
rendered into goods, but which are,
if the agreement is pursued, to be
rendered into goods. The intention
of the parties must be presumed to be
to transfer the property in the things
when in a deliverable state, i.e. when
severed from the soil, if that is to be
done by the seller, and not before.
There is no doubt on the authorities
that such a contract, continuing
executory till the subject-matter of
the sale is converted into goods, is
(now at least) a contract concerning
the sale of goods, and not a contract
for the sale of an interest in land.

Thus, in Smith v. Surman, 9 B. &
C. 570, in 1829, the King's Bench
held that a verbal agreement for the
sale of timber then growing, and to
be cut by the vendor, was a contract
for the sale of goods within the mean-

SKC. 198.]

INTEREST IN LANDS.

375

treats the proposition as being perfectly clear in the same
sense. Blackbtten, J., on the contrary,^ says that the prop-

1 Blackburn on Sales, pp. 19, 20.

ing of the 17th section. liiTTLBDALE,
J., said, in delivering judgment ; ' The
impression on my mind is that
wherever the subject-matter at the
time of the completion of the con-
tract is goods, wares, and merchan-
dises, the 17th section attaches upon
it, although it has become goods,
wares, and merchandise between the
time of making and completing the
contract, either by one pf the parties
having bestowed his work and labor
upon his own materials, or by his
having converted a portion of his
freehold into goods and chattels.'
In that case the timber was to be cut
by the vendors. In Sainsbury v.
Matthews, 4 M. & W. 343, in 1838,
the Exchequer held that a contract
for the sale of potatoes not yet at
maturity, at so much per sack, to be
dug by the purchaser, was not a con-
tract passing any immediate interest
at all, but a contract for the sale of
goods at a future day. Pakke, B.,
said : ' The contract gives no right to
the land, if a tempest had destroyed
the crop in the meantime, and there
had been more to deliver, the loss
would clearly have fallen upon the
defendant' (the vendor). 'It is only
a contract for goods to be sold and
delivered. The case is stronger than
that of Evans v. Roberts, because here
there is only a stipulation to pay so
much per sack for the potatoes when
delivered; it is only a contract for
goods sold and delivered.' Lord
Abingek, C. B., said: 'I think this
was not a contract giving an interest
in land ; it is only a contract to sell
potatoes at so much a sack on »
future day, to be taken up at the ex-
pense of the vendee. He must give
notice to the vendor for that purpose,
and cannot come upon the land when
he pleases.'

The terms of the agreement by
which the price was to depend on the
number of sacks seem to be in this

case important, and to make the
distinction between it and the follow-
ing cases : —

In Parker v. Staniland, 11 East,
365, in 1809, the bargain was for the
crop of potatoes in the ground in
November, and the purchaser was to
take them immediately; instead of
taking them immediately, he dug and
removed them at intervals, taking the
last about Lady Day, by which time
they were damaged by the frost. The
purchaser paid for all the potatoes he
had taken away, but refused to dig
up or take away the potatoes in a
part of the field where they were de-
stroyed by frost. The vendor re-
covered a verdict for their price. No
question could arise upon the 17th
section, for there was both a part
payment and a part acceptance and
receipt, but a rule nisi for a non-suit
was granted on the ground that tlie
bargain was for an interest in land ;
no point seems to have been made
about the risk of loss, perhaps be-
cause it was considered a clear thing
that the damage arose from the gross
negligence of the purchaser who
should have dug them up before the
winter. An objection to the form of
action, which would probably have
raised the same point in another
shape, was overruled, because not
taken at the trial. But though the
fact of the point not being made may
weaken the authority of the case, it
seems that Lokd Ellenborough did
consider that the contract gave the
purchaser property in the potatoes
whilst yet unsevered from the soil,
and that a property in them was not
an interest in land, • though,' said he,
'they were not in the shape of per-
sonal chattels, as not being severed
from the land, so that larceny might
be committed of them.'

In the very same week, June 6,
1809, the common pleas, in Enimerson
V. Heelis, 2 Taunt. 38, decided the

376

STATtTTE OP FEATJDS.

[chap. VI.

osition is " exceedingly questionable," and that no authority-
was given for it in Evans v. Roberts. Mr. Taylor cites no

reverse. In that case there was a
sale by auction of a growing crop of
turnips, to be dug by the purchaser,
for a price less than £10, so that no
question could arise upon the 17th
section. There seems to have been
no express agreement as to when they
were to be removed, but in other
respects the contract seems identical
with that in Parker v. Stauiland. The
vendor brought an action against the
purchaser for not taking these turnips
away. On behalf of the defendant
several objections were made, which
were satisfactorily answered; but a
great one was, that it was a contract
for an interest in land, and that the
only memorandum was that made by
the auctioneer at the sale, and that
the signature of the auctioneer would
not bind the purchaser. The court,
after argument and taking time to
consider, decided that it was an inter-
est in land, but that the signature of
the auctioneer was binding. From
the expressions used, it appears that
the court thought the purchaser took
an interest in the turnips whilst yet
in the soil, and that it never occurred
to them that there could be any
difference between growing turnips
which are emblements, and hops and
growing timber, both of wliich were
instanced by the court.

In Eodwell v. Phillips, 9 M. & "W. 502,
in 1842, the Exchequer thought that
the- following agreement, ' Thomas
Phillips agrees to sell to Mr. Eodwell
the crops of fruit and vegetables of
the upper portion of the garden, from
the large pear trees, for the sum of
£30, and Lionel Kodwell agrees to
buy the same at the aforesaid price,
and has paid £1 deposit,' gave the
purchaser an interest in the fruit be-
fore severance, and consequently
required a stamp. The pears, how-
ever, in this case, were not emble-
ments nor fixtures, but part of the
freehold. In this case Lord Abinger, ■
C. B., said : ' This was the case of an

action upon a contract, setting forth
that the plaintiff had bought of the
defendant a quantity of fruit and
vegetables, then growing and being in
a certain close of the defendant's, at
a certain rate agreed upon between
them, the price of £30, and in con-
sideration thereof, and that the plain-
tiff, at the request of the defendant,
had then promised the defendant that
he would accept and receive the said
fruit and vegetables, and pay the de-
fendant for the same at the rate or
price aforesaid, the defendant then
promised the plaintiff that he would
permit and suffer the plaintiff, and
the servants and agents of the plain-
tiff in that behalf, to enter into the
said close, and with all necessary and
convenient tools, utensils, and imple-
ments, to gather and take the said
fruit and vegetables, as and when the
same should be fit for being gathered
and taken, and to allow him to have
proper access to the said fruit and
vegetables for the purpose aforesaid :
and although the said fruit and
vegetables afterwards, to wit, on the
day and year aforesaid, became fit to
be gathered and taken, and the plain-
tiff, with his servants and agents in
that behalf, was then ready and will-
ing to gather and take the same, and
to pay for the same after the rate
aforesaid, whereof the defendant then
had notice ; and although the defend-
ant did then permit and suffer the
plaintiff to gather and take a very
small part, to wit, fifty bushels of the
said fruit and vegetables, yet the
defendant, not regarding his said
promise, did not nor would permit or
suffer the plaintiff, or his servants or
agents in that behalf, to gather or
take the residue of the said fruit,
or any part of such residue, although
often requested so to do. And then
the declaration goes on to allege, that
after the making of the said contract
with the defendant, and confiding in
his promise, the plaintiff entered into

SEC. 198.]

INTEREST IN LANDS.

377

authority for Ms opinion,
are Mayfield v. Wadsley^

The cases bearing on tliis point
and Hallen v. Runder.^ In the

1 3 B. & C. 357. (See Knight v.
The New England Worsted Co., 2
Cush. 289, 290.)

and made certain agreements with
divers other persons, for tlie sale to
them of parcels of the said fruit,
which, by the defendant's refusal to
permit his servants to take the resi-
due, he was unable to perform, and
that he lost money by the contract.

When the contract was produced at
the trial, it appeared that it was not
so extensive in its provisions as set
forth in the declaration. It was
answered, that though the contract
did not in terms express it, yet it
implied all that was alleged in the
declaration. Then the objection was
taken, that it was not a contract for
the sale of goods, wares, and mer-
chandises, but of an interest in land,
and therefore required a stamp ; and
I was of that opinion. There is a
great variety of cases, in which a
distinction is made between the sale
of growing crops and the sale of an
interest in land ; and it must be ad-
mitted, taking the cases altogether,
that no general rule is laid down iu
any one of them that is not contrar
dieted by some other. It is sufficient,
however, for us to say, that we think
this case ought not to be governed by
any of those in which it is decided
that a sale of growing crops is a sale
of goods and chattels. Growing fruit
would not pass to an executor, but to
the heir ; it could not be taken by a
tenant for life, or levied in execution
imder a writ of Ji.fa. by the sheriff;
therefore it is distinct from all those
cases where the interest would pass,
not to the heir-at-law, but to some
other person. Undoubtedly there is
a case (Smith v. Surman, 9 B. & Cr.
561) in which it appears that a con-
tract to sell timber growing was held
not to convey any interest in the land,
but that was where the parties con-
tracted to sell the timber at so much

= 1 C, M. & R. 267; Strong v.
Doyle, 110 Mass. 93.

per foot, and from the nature of that
contract it must be taken to have
been the same as if the parties had
contracted for the sale of timber
already feUed. In this case there
seems to be no doubt that this was a
sale of that species of interest in the
produce of the lands which has not
been excepted by the stamp act, and
that it is not a sale of goods and
merchandise; and the contract is of
a sufficient value to require a stamp.'

In general in this country it is held
that the sale of a growing crop is of a
mere chattel, and not within the
statute of frauds as to land. New-
comb V. Kayner, 2 John. (N. Y.) 430;
Austin V. Sawyer, 9 Cow. (N. Y.) 39 ;
Stanbaugh v. Yeates, 2 Eawle (Penn.)
161 ; Penhallow v. Dwight, 7 Mass.
341 ; Craddoek v. Riddlesburger, 2
Dana (Ky.) 205; Whipple v. Foot, 2
John. (N. Y.) 418. And this has been
held as to a sale of mulberry trees
then growing in a nursery. Whit-
marsh V. Walker, 1 Met. (Mass.) 313.

Tlie distinction between these cases,
in which the property in the things
was held to pass before they were
severed from the soil, and Sainsbury
V. Matthews, is precisely the same as
that between an ordinary bargain and
sale, and the case of Simmons v.
Swift, 5 B. & C. 857.

As the parties may enter iu fact into
a contract giving an interest in crops
whilst still unsevered, it is desirable
to inquire whether such a contract is
within either the 4th or 17th sections
of the statute of frauds. It is to be
observed that emblements are not
part of the freehold or inheritance;
they go to the executor, and not to
the heir ; they may be seized by the
sheriff under a Ji. fa., and are cer-
tainly chattels, but they are ryot goods,
but are so far a part of the soil that

378

STATUTE OF FKATJDS.

[chap. VI.

former, an outgoing tenant obtained a verdict, whieli was
upheld, on account for crops bargained and sold, against an
incoming tenant, who had agreed to take them at valuation ;
and in the latter, counts for fixtures bargained and sold were
held sufficient. But Blackbtten, J., observes on these cases,
first, that in Hallen v. Runder the court expressly decided
that an agreement for the sale of fixtures between the land-
lord and the outgoing tenant was not a sale of goods, either
within the statute of frauds, or the meaning of a count for
goods sold and delivered ; and, secondly, that in both cases
the land itself was to pass to the purchaser, and the agree-
ment was, therefore, rather an abandonment of the vendor's
right to diminish the value of the land than a sale of any-
thing. The learned author, in another passage,^ says that

larceny at common law could not be
committed on them. A contract then
for the sale of growing crops as such
is a contract for the sale of an interest
in something that is a part of the soil,
though not a part of the inheritance,
and whether such an interest is within
the meaning of the 4th section of the
statute of frauds or not, depends on
the sense in which the words ' lands,
tenements, and hereditaments,' are
there used.

In Warwick v. Bruce, 2 M. & S. 205,
in 1813, in which the contract de-
clared on was a contract for the sale
of all the potatoes then growing on
certain lands, Lold Ellenborough
overruled an objection that the con-
tract was within the 4th section of the
statute of frauds. 'If,' said he,
'this had been a contract conferring
an exclusive riglit to the land for a
time, for the purpose of making a
profit of its growing surface, it would
be a contract for the sale of an in-
terest in land. But here it is a con-
tract for the sale of potatoes at so
much an acre. The potatoes are the
subject-matter of sale, and whether
at the time of the sale they were
covered with earth in the field or in a
box, still it was a sale of a mere
chattel.' It seems pretty clear that
LoKD Ellenbokohgh thought that
growing crops were not part of the
land within the 4th section, though he

certainly never intimates an opinion
that they were goods in any sense of
the word before severance.

In Evans v. Eoberts, 5 B. & C. 829,
in 1826, the agreement was for the
sale of a cover of potatoes, to be
turned up by the vendor at the price
of £5. No question would arise under
the 17th section, as the price was
below f 10 ; but it was objected that
it was a contract for the sale of an
interest in land. Holroyd, J., pointed
out that the purchaser was to have
nothing to do with the potatoes till
they were raised ; and, moreover, that
the vendor might choose which cover
the purchaser was to have, so that he
could have no interest in any specific
land; but though both these propo-
sitions seem pretty clear, and either
of them would have disposed of
the case, Bayljet and Littledale,
JJ., took the opportunity of giving
their opinion on the case at some
length. Littledale, J., among other
things, expressed the opinion that
' land ' in the 4th section ' meant
land taken as mere land,' and this is
in accordance with Lord Ellen-
borough's opinion; but Batlet, J.,
went further and stated that 'grow-
ing crops were mere goods and might
be recovered under a count for goods
bargained and sold.' "
1 Blackburn, p. 17.

SEC. 199.] INTEREST IN LANDS. 379

" they are certainly chattels, but they are not goods, but are
so far a part of the soil that larceny at common law could
not be committed on them," and Lokd Ellenboeough was
also of this opinion.^ This point must, it is apprehended, be
considered as still undetermined.

In Lee v. Gaskell,^ upon a tenant's bankruptcy, his trustee
sold the fixtures to the plaintiff, "who resold them to the de-
fendant, the bankrupt's landlord. Held, following Hallen v.
Runder, that the sale did not fall within either the fourth or
the seventeenth section of the statute. "Fixtures," says
CoCKBXTEN, C. J., " although they may be removable during
the tenancy, as long as they remain unsevered, are part of
the freehold, and you cannot dispose of them to the landlord
or any one else as goods and chattels, because they are not
severed from the freehold, so as to become goods and chat-
tels." In Lee v. Gaskell, as in Hallen v. Runder, the fixtures
were bought by the landlord, the only distinction between
the cases being that in Lee v. Gaskell there had been an in-
termediate sale by the tenant's trustee. It remains, however,
to be decided whether on a purchase of fixtures by a person
who is not the landlord, the sale does not fall within the
seventeenth section, although, in the passage above cited,
CoCKBUHN, C. J., takes the contrary view. And by an in-
terlocutory remark, he indicates an opinion that the sale of
fixtures is nothing more than the sale of the right to sever.

Sec. 199. intermediate Class of Crops. — It is sometimes a
matter of doubt whether growing crops are properly com-
prehended in the class of fruetus industriales or fructus
naturales. There is an intermediate class of products of the
soil, not annual, as emblements, not permanent, as grass or
trees, but affording either no crop till the second or third
year, or affording a succession of crops for two or three years
before they are exhausted, such as madder, clover, teasles,
etc. The only reported case on this subject is Graves v.
Weld,3 which was argued by very able counsel, and decided,
after consideration, by Loed Denman, who delivered the
unanimous judgment of the court, consisting of himself and
LiTTLEDALE, Pakk, and Patteeson, JJ. The facts were

1 See his decision in Parker v. M Q. B. D. 700.

Staniland, 11 East, 365. « 5 B. & Aid. 105.

380 STATUTE OF FBAUDS. [CHAP. VI.

that the plaintiff was possessed of a close under a lease for
ninety-nine years, determinable on three lives. In the spring
of 1830, the plaintiff sowed the land with barley, and in
May he sowed broad clover seed with the barley. The last
of the three lives expired on the 27th July, 1830, the reversion
being then in the defendant. In January, 1831, the plaintiff
delivered up the close to the defendant, but in the meantime
had taken off, in the autumn of 1830, the crop of barley, in
mowing which a little of the clover plant that had sprung
up was cut off, and taken together with the barley. Accord-
ing to the usual course of good husbandry, broad clover is
sown about April or May, and is fit to be taken for hay about
the beginning of June of the following year. The clover in
question was cut by the defendant about the end of May, 1831,
more than a twelvemonth after the seed had been sown. The
defendant also took, according to the common course of hus-
bandry, a second crop of the clover in the autumn of the
same year, 1831. The jury found, on questions submitted by
the judge : 1st. That the plaintiff did not receive a benefit
from taking the clover with the barley straw sufficient to
compensate him for the cost of the clover seed, and the
extra expense of sowing and rolling. 2d. That a prudent
and experienced farmer, knowing that his term was to expire
at Michaelmas, would not sow clover with his barley in the
spring, where there was no covenant that he should do so ;
and would not, in the long run and on the average, repay
himself in the autumn for the extra cost he had incurred in the
spring. The case was argued by Follbtt for the plaintiff, and
Gambibr for the defendant, and Lord Denman, in delivering
the judgment of the whole court, said : " In the very able
argument before us, both sides agreed as to the principle
upon which the law which gives emblements was originally
established. That principle was that the tenant should be
encouraged to cultivate by being sure of the fruits of his
labor ; but both sides were also agreed that the rule did not
extend to give the tenant all the fruits of his labor, or the
right might be extended in that case to things of a more per-
manent nature, as trees, or to more crops than one ; for the
cultivator very often looks for a compensation for his capital
and labor in the produce of successive years. It was there-

SEC. 199.J INTEREST IN LANDS. 381

fore admitted by each that the tenant would be entitled to
that species of product otily which grows by the industry and
manurance of man, and to one crop only of that product.
But the plaintiff insisted that the tenant was entitled to the
crop of any vegetable of that nature, whether produced
annually or not, which was growing at the time of the cesser
of the tenant's interest ; the defendant contended that he
was entitled to a crop of that species only which ordinarily
repays the labor by which it is produced within the year in
which that labor is bestowed, though the crop may, in extra-
ordinary seasons, be delayed beyond that period. And the
latter •proposition we consider to he law."

The principal authorities upon which the law of emble-
ments depends are Littleton, § 68, and Coke's Commentary
on that passage. The former is as follows: "If the lessee
soweth the land, and the lessor, after it is sowne and before
the come is ripe, put him out, yet the lessee shall have the
corne and shall have free entry, egresse and regresse to cut
and carrie away the corne, because he knew not at what time
the lessor would enter upon him." Lord Coke says : ^ " The
reason of this is, for that the estate of the lessee is uncer-
taine, and therefore lest the ground should be unmanured,
which should be hurtful to the commonwealth, he shall reap
the crop which he sowed, in peace, albeit the lessor doth de-
termine his will before it be ripe. And so it is if he sets
rootes or sow hempe or flax or any other annuall profit, if,
after the same he planted, the lessor oust the lessee, or if the
lessee dieth, yet he or his executors shall have that yeare's
crop. But if he plant young fruit trees or young oaks, ashes,
elms, etc., or sow the ground with acornes, etc., there the
lessor may put him out notwithstanding, because they will
yield no -present annual profit." These authorities are strongly
in favor of the rule contended for by defendant's counsel ;
they confine the right to things yielding present annual pro-
fit, and to that year's crop which is growing when the interest
determines. The case of hops, which grow from ancient
roots, and which yet may be emblements, though at first
sight an exception, really falls within this rule. In Latham
V. Atwood,^ they were held to be lihe emblements, because

1 Co. Litt. 55 a. M Cro. Car. 515.

382 STATUTE OF FKAUDS. [CHAP. VI.

they were "such things as grow by the manurance and indus-
try of the owner, by the making of hills and setting poles " :
that labor and expense, without which they would not grow
at all, seems to have been deemed equivalent to the sowing
and planting of other vegetables.^

According to the principles here established, it would seem
that the crop of the first year in such cases would be fructus
industriales, but that of subsequent years, like fruit on trees,
planted by tenants, would be fructus naturales, unless requir-
ing cultivation, labor, and expense for each successive crop,
as hops do, in which event they would be fructus industriales
till exhausted. But the law as to the application of the
statute of frauds to sales of growing crops of this character,
especially of crops subsequent to the first gathered, cannot
be considered as settled.

Sec. 200. Crops 'When Mere Accessories to the Laud. — In

the Earl of Falmouth v. Thomas,^ where a farm was leased,
and the tenant agreed to take the growing crops and the
labor and materials expended, according to a valuation, it
was held that the whole was a contract for an interest in
land under the fourth section, and that the plaintiff could not
maintain an indebitatus count for goods bargained and sold
to recover the price of' the crops according to the valuation.
LiTTLBDAiiE, J., expressed the same opinion in Mayfield v.
Wadsley,^ saying that " where the land is agreed to be sold,
and the vendee takes from the vendor the growing crops, the
latter are considered part of the land." This rule seems
founded on sound principles, for in such cases the fact of his
having acquired an interest in the land is part of the con-
sideration which moves the purchaser to buy the crops ; or,
as it is put in Blackbxten on Sales,* the purchaser .pays for
an abandonment by the lessor or vendor of the right to injure
the freehold. He buys an interest ^'■concerning land," and
that is covered by the language of the fourth section. From
what has been said in reference to growing crops or anything
attached to the soil at the time when an agreement for its
sale is entered into, it will be observed that the cases all

1 10 B. & C. 446 ; Pitkin v. Noyes, s 3 b. & C. 366.

48 N. H. 294, 303. * Blackburn on Sales, 20.

2 1 Cr. & M. 89.

SEC. 200.] INTEEEST IN LANDS. 383

agree, tliat where the title does not pass until the crop or thing
is severed, the contract is for the sale of goods because in
that case, while the crop is not mature, and may continue to
derive nutriment and benefit from the soil, yet during this
period the interest is in the vendor, and the title does not
vest in the vendee until the crop ceases to derive further
support from the soil, and has become a mere chattel,^ even
though the purchaser is to sever them.^ In Parker v. Stani-
land,^ the sale was by the plaintiff on a certain lot of two
acres at 4s. Qd. a sack, and the defendant was to get them im-
mediately.* The contract was held to be for the sale of
chattels merely. Both Lokd Ellenboeough and Bayley,
J., predicated their decision upon the ground that the crop
was to be taken away immediately, and distinguished the case
from Crosby v. Wadsworth^ and Waddington v. Bristow,^
where the sale of a growing crop of grass was held to be
within the fourth section upon that ground. In Warwick v.
Bruce,'' and Sainsbury v. Matthews,^ decided in Exchequer
in 1838, twenty-five years after the decision by the King's
Bench in the former case, the distinction suggested in Par-
ker V. Staniland and Smith v. Surman, ante, was disregarded.
In both cases the contract was for the sale of a growing crop
of potatoes not then mature, and which were to be dug by the

1 Cain V. McGuire, 13 B. Mon. peaches ; In White v. Frost, 102 Mass.

(Ky.) 340; Safford v. Annis, 7 Me. 375; Clafflin «. Carpenter, onte, grow-

168 ; Cutler v. Pope, 13 id. 877 ; Kil- ing timber ; in Sainsbury v. Mattliews,

more V. Hewlett, 48 N. Y. 569; HufE 4 M. & W. 343 ; Warwick y. Bruce, on«e ;

V. McCauley, 53 Penn. St. 206 ; Boyce Evans v. Roberts, 5 B. & C. 829, a

V. Washburn, 4 Hun (N. Y.) ; Smith crop of potatoes.
V. Bryan, 5 Md. 141; Byasse *. ^ Sainsbury v. Matthews, ante;

Reese. 4 Met. (Ky,) 372; Clafflin v. Evans v. Roberts, ante; Marshall v.

Carpenter, 4 Met. (Mass.) 580; Whit- Green, 1 C. P. D. 35.
marsh v. Walker, 1 id. 313 ; Knox v. » Parker v. Staniland, 11 East, 362.

Harlason, 2 Tenn. Ch. 232 ; Green v. * See also Marshall v. Green, ante,

R. R. Co., 73 N. C. 524 ; Anonymous, where the same doctrine was applied

1 Ld. Rayd. 182 ; Smith v. Sumam, 9 where growing trees were to be cut

B. & C. 561 ; Pitkin v. Noyes, 48 N. and removed immediately.

H. 294 ; Mayfleld v. Wadsley, 8 B. & ' Crosby v. Wadsworth, 6 East,

C. 357 ; Rodwell v. Phillips, 9 M. & W. 602.

505. In Jones v. Plint, 10 Ad. & El. ^ Waddington v. Bristow, 2 B. &

753, a crop of corn ; in Dunne v. P. 452.

Ferguson, a crop of turnips ; in Frank ' Warwick v. Bruce, 2 M. & S.

V. Harrington, 36 Barb. (N. Y.) 415, 205.

a crop of hops. See also Pakke, B., « Sainsbury v. Matthews, 4 M. & W.

in Rodwell v. Phillips, ante ; in Pur- 343.

ner v. Pieroy, 40 Md. 212, a crop of

384 STATUTE OF FEATJDS. [CHAP. VI.

purchasers. In the first case, the crop was sold for a gross
sum, and in the latter at 2s. a sack. In the latter case the
sale was held not to involve an interest in land, and the
court went the extreme length of holding that the sale was
of goods and chattels within the seventeenth section, Paeke,
B., saying : " This is a contract for the sale of goods and
chattels at a future day, the produce of certain land, and to be
taken away at a certain time." And the same view of the
question was taken by Littlbdale, J., in Evans v. Roberts.^
In a later case ^ the question arose whether certain crops of
grass growing on a certain estate which were assigned as
security, implied a transfer of an interest in land, and Rolfe,
B., said : " When a sale of growing crops does, and when it
does not, confer an interest in land, is often a question of much
nicety ; but certainly when the owner of the soil sells what
is growing on the land, whether natural produce, as timber,
grass, or apples, or fructus industriales, as corn, pulse, or the
like, on the terms that he is to cut or sever them from the land,
and then deliver them to the purchaser, the purchaser acquires
no interest in the soil, which, in such case, is only in the
nature of a warehouse for what is to come to him merely as
a personal chattel."

So where a growing crop, fructus industriales produced
annually hy the labor and industry of man, is sold, the title
thereto vesting in the purchaser before severance, the contract
is not for the sale of an interest in land, but of goods and
chattels within the seventeenth section;^ but, where the
crop is fructus naturales, that is, the natural growth of the
soil, as grass, timber, fruit on trees,* in a majority of the cases,
it is held that the contract is for the sale of an interest in
lands when it is intended that the title thereto shall vest in
the purchaser before severance.^

1 Evans v. Roberts, 5 B. & C. 836. * But see Pumer v. Piercy, 40 Md.

2 Washbum k. Burrows, 1 Exchq. 212, contra. Also Marshall v. Green,
107. 1 C. P. D. 35, where a difEerent prin-

' Marshall v. Ferguson, 23 Cal. 65 ; ciple is adopted.
Austin u. Sawyer, 9 Cow. (N. Y.) 39; ^ As to grass, Watkins v. Eush, 3
Bryant v. Crosby, 40 Me. 9; Bernal Lans. (N. Y.) 234; Carrington v.
t). Hovious, 17 Cal. 541; Mattock i>. Boots, 2 M. & W. 248 ; Crosby u. Wads-
Fry, 15 Ind. 483; Bull v. Griswold, worth, 6 East, 602. As to timber,
19 111. 631 ; Brisker v. Hughes, 4 Ind. Drake v. Wells, 11 Allen (Mass.) 141 ;
146. White v. Frost, 102 Mass. 376; Whit-

SEC. 201.] INTEBEST IN LANDS. 385

Sec. 201. Crop not yet Sown. — Where a contract is
entered into between the owner of land and another, that
the former will sow certain seeds on his land, and sell the
same to such other person at a certain fixed price per bushel,
pound, etc., or for a certain gross sum, the contract is treated
by the English courts as being an executory contract for the
sale of goods, etc., and not as a sale of an interest in lands.
Thus where A agreed to supply B with a quantity of turnip
seed, and B agreed to sow it on his own land, and to seU the
crop of seed produced therefrom to A at £1 Is. the Winches-
ter bushel ; and the seed so produced at the price agreed ex-
ceeded in value the sum of £10, is was held that this
contract was within the seventeenth section of the stat-
ute; "for," said Lord Tenteeden, "the thing agreed to
be delivered would at the time of delivery be a personal
chattel."^ A similar view seems to have been adopted
in New Hampshire,^ where a contract was entered into be-
tween the plaintiff and defendant, by which the defendant
agreed to plant tliree acres of potatoes and deliver them
to the plaintiffs, who were manufacturers of starch, at a cer-
tain sum per bushel, and the court treated the contract as
one for the sale of goods, etc., within the seventeenth sec-
tion, and left it for the jury to say whether the contract was
essentially one for the labor and skill of the defendant in
raising the potatoes, or substantially a sale of potatoes which
he might raise himself, or procure otherwise. But in Indi-
ana, in an early case,^ a contract between A and B that the
former would sell the latter all the broom corn which the
former should raise on twenty-five acres of his land in the
year 1853, at the rate f 60 a ton, was held to be a contract
within the fourth section of the statute. But it is difficult
to understand how such a contract can in any sense be re-
garded as a contract for a sale of land or any interest therein.
The vendee acquires no interest in the land, in any sense,
but only in the produce thereof after it is severed and has be-

marsh v. Walker, 1 Met. (Mass.) 313; Md. 212, where a sale of fruit on the

Nettleton v. Sikes, 8 id. 34; as to trees was held not to be within the

standing underwood, Scovell v. Boxall, 4th section.

1 y. & G. 396 ; growing poles. Teal v. i Watts v. Friend, 10 B. & C. 446.
Auty, 2 B. & B. 101 ; as to fruit on ^ pukin v. Noyes, 48 N. H. 294.
trees, Rodwell v. Phillips, 9 M. & W. » Bowman v. Conn, 8 Ind. 58.
505. But see Purner v. Piercy, 40

386 STATUTE OF FRAUDS. [CHAP. VI.

come a chattel ; therefore it is believed that the rule adopted
in the first two cases cited is the true one, and that a contract
for the produce of a certain piece of land or a certain number
of acres thereof to be raised and severed by the vendor, is a
contract for chattels within the seventeenth section, and not
for an interest in lands within the fourth section. In New
York 1 the doctrine stated above was applied in a case where
a contract was made for the delivery of a certain number of
bushels of hop roots, although at the time, they were in the
ground. At one time the question whether the crop was ripe
or not seems to have been considered material. But this is no
longer regarded ; and it appears also to be immaterial whether
the price is to be estimated by the quantity sold, or by the
acre ; or whether the crop is to be harvested by the vendor
or purchaser.^

Sec. 202. Sale of Crop before being Severed ; Distinction
between Fructus Naturales and Fructus Industriales. — Where
the contract is for the sale of crops before they are severed
from the soil, and which are still to derive nutriment from it,
a distinction is drawn between a contract for the sale oi fruc-
tus naturales ; such as growing grass, primae vesturae, growing
timber, or underwood, or growing fruit, which is within the
fourth section as a contract for an interest in land ; and a
contract for the sale of fructus industriales, such as growing
crops of corn, potatoes, or turnips, not produced sponta-
neously, but raised by the labor of man, which are seizable by
the sheriff under a writ of fieri facias, and pass to the exec-
utor and not to the heir, which is within the seventeenth sec-
tion, as a contract for the sale of goods, wares, and merchan-
dise. The leading case on this point is Evans v. Roberts.^
The agreement was for the sale of a growing crop of pota-
"toes, to be turned up by the plaintiff, the vendor. The

1 Webster v. Zielly, 52 Barb. (N. guson, 1 Hayes, 541 ; Marshall v.

Y,) 482. Green, L. E. 1 C. P. D. 35.

2 Parker v. Staniland, 11 East, 362 ; » 5 B. & C. 829 ; 8 D. & E. 611,

"Warwick v. Bruce, 2 M. & Sel. 205j overruling in part Emmersou i;. Heelis,

Sainsbury v. Matthews, 4 M. & W. 2 Taunt. 38. Bricker v. Hughes, 4

343 ; S. C. nom. Stanbury v. Matthews, Ind. 146 ; Sherry v. Picken, 10 id. 375 ;

,7 Dowl. 23 ; Evans v. Eoberts, 5 B. & Kilmore v. Hewlett, 48 N. Y. 569 ;

C. 829; 8 D. & R. 611 ; Hallen v. Eun- Cain v. McGuire, 13 B. Mon. (Ky.)

der, 1 C. M. &R. 266; Dunne v. Per- 340; Safford v. Armis, 7 Me. 168;

Smith V. Bryan, 5 Md. 141.

SEC. 203.] INTEREST IN LANDS. 387

action was assumpsit for " crops of potatoes bargained and
sold," and it was held that this was not a contract for the
sale of any lands, tenements, or hereditaments, or any inter-
est in or concerning them, but a contract only for the sale or
delivery of things which, at the time of delivery, should be
goods and chattels. The grounds of decision were, that the
effect of the contract was to give the purchaser a right to all
the potatoes which a given quantity of land should produce,
but not to give Mm any right to the possession of the land ;
and also that growing potatoes are emblements, and, as such,
chattels, which go to the executor of tenant in fee simple,
and not to the heir, and may be taken in execution under a
fieri facias.

Sec. 203. Rule in Jones v. Flint. — In Jones v. Flint,^
the contract was for sale of a crop of corn on the plain-
tiff's (the vendor's) land, and the profits of the stubble
afterwards ; the plaintiff was to have Hberty for his cattle
to run with the defendant's; and the defendant was also
to have some potatoes growing on the land, and whatever
lay grass was in the fields ; the defendant was to harvest
the corn, and dig up the potatoes. It was held that it
did not appear to be the intention of the parties to con-
tract for any interest in the land, and that the contract was
therefore not within the fourth section of the statute, but
was for a sale of goods and chattels as to all but the lay
grass, and as to that, a contract for the agistment of the de-
fendant's cattle; the court saying that if the lay grass was
excluded the parties must be taken to have been dealing
about goods and chattels, and that an easement of the right
to enter the land, for the purpose of harvesting and carrying
them away, was all that was intended to be granted.^ And
therefore, according to the foregoing rules, parol contracts for
the sale of growing fruit,^ growing grass,* growing poles,* and

1 10 Ad. & El. 753 ; 2 P. & D. 594. fructus naturales and fructus industria-

2 And see Dunne u. Ferguson, les seems to be demonstrated.
Hayes, 540. * Crosby u. Wadsworth, 6 East,

8 Rodwell V. Phillips, 9 M. & W. 602 ; Carrington v. Hoots, 2 M. & W.

501. But see Pumer v. Piercy, are(e, 248; Watkins w, Rush, 2 Lans. (N. Y.)

where a contrary doctrine is held. And 234. ,

this would also seem opposed to the ^ Teall w. Auty, 4 Moo. 542 ; 2 Brod.

principle adopted in Marshall w. Green, & B. 101; Kingsley v. liolbrook. 45

anie, in which the distinction between N. H. 313.

388 STATUTE OF FBAUDS. [CHAP. VI.

growing underwood,^ before being severed, have been held to
be within the fourth section of the statute,^ as these are/rwe-
tus naturales and would not pass to the executor, but to the
heir, and could not be levied in execution under a writ of
fieri facias by the sheriff ; and the contract confers on the
purchaser an exclusive right to the land during a limited
time, and for given purposes.

Sec. 204. Rule in Waddington V. Bristow. — In Wadding-
ton V. Bristow,^ it was held that a contract for the sale
of growing hops was a contract for the sale of an interest
in land. This case is, however, of questionable authority;
and in Rodwell v. Phillips,* Paeke, B., said, referring to
it : " Hops are fructus industriales. ' That case would now
probably be decided differently." And in Frank v. Harring-
ton,^ this question was directly decided, and the court held
that hops upon the vine are personal chattels, and may be
sold as such.

Sec. 205. Rule in Purner v. Piercy. — In a Maryland
case,^ the rule that crops coming under the head of fructus
naturales, but which mature annually, are to be treated the
same as crops fructus industriales, was adopted where a
contract was entered into by which the plaintiff agreed
by parol to sell to the defendant all the peaches then
growing in the peach orchard of the plaintiff, at a certain
specified sum, the defendant to gather and remove them
as they matured. The defendant or his agent, at the
time of the purchase, paid to the plaintiff a portion of the
purchase-money, and a further portion before any of the
peaches were gathered, and gathered the peaches as they
matured, and removed them. In an action to recover the
balance of the purchase-money, it was held that the contract
was not within the statute, as a contract for the sale of an
interest in land. Stewart, J., in delivering the opinion of
the court, said : " Growing crops, if fructus industriales, are
chattels, and an agreement for the sale of them, whether ma-

1 Scorell V. Boxall, 1 Y. & J. 396. « Frank v. Harrington, 36 Barb.

2 And see Fetch v. Tutin, 15 M. & (N. Y.) 415.

W. 115. 6 Purner v. Piercy, 40 Md. 212 ; 17

8 2 Bos. & P. 452. Am. Eep. 591.

4 9 M. & W. 503.

SEC. 205.] INTEREST IN LANDS. 389

ture or immature, or whether the property in them is trans-
ferred before or after severance, is not an agreement for the
sale of any interest in land, and is not governed by the fourth
section of the statute of frauds. Growing crops, if fructus
naturales, are part of the soil, before severance, and an agree-
ment therefore vesting an interest in them in the purchaser
before severance, is governed by the fourth section ; but if
the interest is not to be vested till they are converted into chat-
tels by severance, then the agreement is an executory agree-
ment for the sale of goods, wares, and merchandise, governed
by the seventeenth, and not by the fourth, section of the
statute. Assuming these distinctions to be well founded, still
what is the natural and what the artificial product remains to
be determined in each case. Me. Phillips, in his work on
Evidence, vol. 3, p. 250, says : ' The statute does not include
agreements for the sale of the produce of a given quantity of
land, and which will afterward become a chattel ; though some
advantage may accrue to the vendee by its continuing for a
time in the land.' In Taylor's Law of Evidence, 2d vol., § 952,
the following propositions are submitted : ' 1st, a contract for
the purchase of fruits of the earth, ripe, though not yet gathered,
is not a contract for any interest in lands, though the vendee is
to enter and gather them ; 2d, a sale of any growing produce
of the earth, reared annually by labor and expense, and in
actual existence at the time of the contract, as, for instance, a
growing crop of corn, hops, potatoes, or turnips, is not within
the fourth section, though the purchaser is to harvest or dig
them; 3d, an agreement respecting the sale of a growing crop
of fruit, or grass, or of standing underwood, growing poles, or
timber, is within the fourth section, and a written contract of
sale cannot be dispensed with.'

However sound his first and second propositions, we
think his third is to be taken with some qualification, and
that a growing crop of peaches or other fruit, requiring
periodical expense, industry, and attention, in its yield and
production, may be well classed as fructus industriales,
and not subject to the fourth section of the statute. There
is nothing in the vegetable or fruit which is an interest
in or concerning land, when severed from the soil, whether
trees, grass, and other spontaneous growth prima vestura,

390 STATUTE OF FRAUDS. [CHAP. VI.

or grain, vegetables, or any kind of crops fructus indus-
triales, the product of periodical planting and culture ; they
are alike mere chattels, and the severance may be in fact,
as when they are cut and removed from the ground; or
in law, as when they are growing, the owner in fee of the
land, by a valid conveyance, sells them to another person, or
where he sells the land, reserving them by express provision.

As a general rule, if the products of the earth are sold spe-
cifically, and hy the terms of the contract to be separately deliv-
ered, as chattels, such a sale is not affected by the fourth sec-
tion of the statute, as amounting to a sale of any interest in
the land. ^When such is the character of the transaction, it
matters not whether the product be trees, grass, and other spon-
taneous growth, or grain, vegetables, or other crops raised peri-
odically by cultivation ; and it is quite as immaterial whether
the produce is fully grown or in the process of growing, at the
time of making the contract.

The circumstance that the produce purchased may, or prob-
ably, or certainly will derive nourishment from the soil between
the time of the contract and the time of the delivery, is not con-
clusive as to the operation of the statute. If the contract, when
executed, is to convey to the purchaser a mere chattel, though it
may be in the interim a part of the realty, it is not affected by
the statute; but, if the contract is, in the interim, to confer
upon the purchaser an exclusive right to the land for a time,
for the purpose of making a profit of the growing surface, it
is affected by the statute, and must be in writing, although
the purchaser is at the last to take from the land only a
chattel.

To put a reasonable construction upon the terms of the
fourth section of the statute, from the evidence in this case,
it is clear the contract in question is not within its meaning.
It had been executed by the plaintiff, and the fruit had been
gathered, and, in fact, paid for at the time of the suit. It
was in proof that a part of the fruit was prematurely ripe at
the time of the contract. It would be a perversion of the
objects of the statute to hold as invalid the sale, in other
respects legal, of the growing crop of peaches, with no intent
of the parties to sell or purchase the soil, but affording a mere
license, express or implied, to the purchaser to go upon the

SEC. 208.] INTEEEST IN LANDS. 391

land to gather the &uit and remove the same. Substantially
the transaction takes its character of realty or personalty
from the principal subject-matter of the contract and the
interest of the parties, and therefore a sale of any growing
produce of the earth in actual existence at the time of the
contract, whether it be in a state of maturity or not, is not
to be considered as a sale of an interest in or concerning
land. Where timber or other produce of the land, or any
other thing annexed to the freehold, is specifically sold,
whether to be severed from the freehold by the vendor, or
to be. taken by the vendee, render a special license to enter
for that purpose, it is still in contemplation of the parties, a
sale of goods only, and not within the statute."

Sec. 206. Crops Sold with the liand. — Where, upon a lease,
the tenant agrees to take the crops already growing on the
land at a valuation, and to pay for the work, labor, and mate-
rials employed in making the lands ready for tillage, this is
an entire contract for an interest in lands, and the growing
crops cannot be treated as goods.^

Sec. 207. Right of Out-Going Tenant. — Where it appeared
that, by the custom of the county, the out-going tenant of a
farm was entitled in some cases to two-thirds, in others to
one-half of the crops of corn sown by him in the last year of
his tenancy ; that he was to cut the whole of the crops, and
keep the fences in repair until the entire crop was cut and
carried away,. it was held that under such circumstances the
out-going tenant had the possession in law of the field, until
the crop was carried away.^

Sec. 208. "Whether Fructus Industriales, Goods while Grow-
ing.— It appears never to have been expressly decided whether
fructus industriales while growing are goods, wares, and mer-
chandise within the seventeenth section of the statute. In
Evans v. Roberts,^ both Bayley, J., and Littlbdaie, J.,
thought that they were, but Blackbuen, J.,* says that the

' Earl of Talmouth ^. Thomas, 1 2 Griffiths v. Puleston, 13 M. & "W.

C. & M. 89 ; Mayfield v. Wadsley, 3 358 ; 14 L. J. Ex. 33.
B. & C, 366; Harvey v. Grabham, 6 « 5 B. & C. 829; 8 D. & K. 611.
Ad. & El. 61. * Blackburn on Sales, pp. 19, 20.

392 STATUTE OF FRAUDS. [CHAP. VI.

proposition is "exceedingly questionable," and that no au-
thority was given for it in Evans v. Roberts.^

Sec. 209. Growing Crops not Returning Profit 'within the
Year. — It also seems to be doubtful whether growing crops
which do not produce a profit within the year in which they
are sown are fructus industriales or fructus naturales. In
Graves v. Weld,^ the tenant for a term determinable upon a
life sowed in the land, in the spring, first with barley, and
soon after with clover. The life expired in the following
summer. In the autumn the tenant mowed the barley, to-
gether with a little of the clover plant which had sprung up.
The clover so taken made the barley straw more valuable,
by being mixed with it ; but the increase of the value did
not compensate for the expense of cultivating the clover,
and a farmer would not be repaid such expense in the au-
tumn of the year in which it was sown. The reversioner
came into possession in the winter, and took two crops of the
same clover, after more than a year had elapsed from the
sowing. It was held that the tenant was not entitled to
emblements of either of these two crops : first, because em-
blements can be obtained only in a crop of a species which
ordinarily repays the labor by which it is produced, within
the year in which that labor is bestowed; and secondly,
because even if the plaintiff were entitled to one crop of the
vegetable growing at the time of the loss of his interest, this
had been already taken by him at the time of cutting the
barley.^

Sec. 210. Shares in Companies, when an Interest in Lands
or Goods, 'Wares, and Merchandise. — A question sometimes
arises as to whether shares in a company possessed of real
estate are to be considered as within the fourth or seven-
teenth sections of the statute.. The question to be consid-
ered in deciding whether a share in a company is real estate
or not, is, it is submitted, has the shareholder an interest in

1 See further, Benjamin on Sales, ^ 5 B. & Aid. 105. See Frank v.

2d ed. p. 100, citing Glover w. Coles, Harrington, 36 Barb. (N.Y.) 415, where

1 Bing. 6; Owen y. Legh, 3 B. & Aid. a sale of growing hops was held not to

470; Mayfield v. Wadsley, 3 B. & C. be within the statute.

357 ; Hallen ;;. Eunder, 1 C. M. & R. s And see Latham v. Attwood, Cro.

267. Car. 515.

SEC. 210.]

INTEEEST IN LANDS.

893

the land itself, and is the substantial object of the company a
dealing with land so that the share may result to the holder in
the shape of land, or is he merely entitled to participate in
the profits of the company ? ^

It is not necessary that the instrument creating the com-
pany should expressly declare that the shares are to be per-
sonal estate.^ In England, shares in the following compa-
nies have been held not to be interests in land within the
statute of frauds and the Mortmain Act:* costbook min-
ing companies,* waterwork companies,^ dock companies,® canal
companies,' gas companies,* banking companies,^ foreign min-
ing companies,^*^ insurance companies," railway companies,^
company formed for purchasing and improving land,^* and
turnpike companies.^* In England it is held that a con-
tract for the sale of railway shares is not a contract for
the sale of "goods, wares, or merchandise" within the sev-
enteenth section of the statute ; ^^ nor is a contract for the

1 Bradley v. Holdsworth, 3 M. &
W. 422 ; Watson v. Spratley, 10 Exch.
243; Powell v. Jessop, 18 C. B. 336;
Hayter u. Tucker, 4 K. 4b J. 243;
Morris v. Glyn, 27 Beav. 218 ; Bulmer
V. Norris, 9 C. B. (N. S.) 19; Bennett
V. Blain, 15 C. B. (N. S.) 518; Free-
man V, Gainsf ord, 154 L. J. C. P. 95 ;
Entwistle v. Davis, L. K. 4 Eq. 272 ;
Kobinson v. Ainge, L. E. 4 C. P. 429.

2 Edwards v. Hall, 6 T). M. G. 74;
overruling Ware v. Cumberledge, 20
Beav. 503.

» 9 Geo. m. c. 36.

* Watson V. Spratley, 10 Exch. 243 ;
Powell V. Jessop, 18 C. B. 336 ; Walker
V. Bartlett, 18 C B. 845 ; Hayter v.
Tucker, 4 K. & J. 243; Curling v.
Plight, 12 Jur. 423.

6 Bligh V. Brent, 2 Y & C. 268;
Weekly v. Weekly, cited 2 Y. & C.
281 ; Ashton o. Lord Langdale, 4 De
G. & Sm. 402.

° Sparling v. Parker, 9 Beav. 450 ;
Hilton V. Giraud, 1 De 6. & Sm. 183 ;
Walker v. Milne, 11 Beav. 507.

' Walker v. Milne, ubi supra ; Ash-
ton V. Lord Langdale, ubi supra ; Ed-
wards V. Hall, 6 D. M. G. 74 ; and see
also re Lancaster Canal Co., Mon. &
B. 94.

' Sparling v. Parker, ubi supra.
« Humble v. Mitchell, 11 Ad. & El.
205; Myers v. Perigal, 11 C. B. 90; 2
D. M. Q. 599 ; Ashton v. Lord Lang-
dale, ubi supra ; Edwards v. Hall, ubi
supra.

1° Baker v. Sutton, 1 Keen, 234.

" March, u. Att. Gen., 5 Beav. 433.

" Bradley v. Holdsworth, 3 M. &
W. 422 ; Hibblewhite v. M'Morine, 6
M. &. W. 200 ; Duncuft v. Albrecht,
12 Sim. 189; Tempest v. Kilner, 3 C.

B. 249 ; Ashton v. Lord Langdale, ubi
supra ; Linley v. Taylor, 1 GifE. 67 S.

C. nom ; Taylor v. Linley, 2 De G. P.
& J. 84.

w Entwistle v. Davis, L. E. 4 Eq.
272.

" Tippets V. Walker, 4 Mass. 595.
But see Wells v. Cowles, 2 Conn. 597,
where the shares in such a company
were held to be real estate.

1* Hibblewhite v. McMorine, 6 M. &
W. 200 ; Duncuft v. Albrecht, 12 Sim.
189; Bowlby v. Bell, 3 C. B. 284; and
see Knight v. Barber, 16 M. & W. 66,
a case decided on the Stamp Act, 55
Geo. III. c. 184, sched. pt. 3, tit. " agree-
ment," in which the same words are
used.

394

STATUTE OF PEAUDS.

[chap. VI.

sale of foreign stock,^ or shares in a joint-stock bank,^ cost»
book mining company,^ or projected railway company.* In

1 Heseltine v. Siggers, 1 Exch. 856.

2 Humble v. Mitchell, 11 Ad. & El.
205.

8 Watson V. Spratley, 10 E*x. 222.

* Tempest v. Kilner, 3 C. B. 249.
These cases decide the question
upon which the judges were divided,
whether a, contract for the sale of
stock is within the statute : Colt v.
Netterville, 2 P. "Wms. 308, citing Pick-
ering V. Appleby, Com. Rep. 354.
Upon the strength of words " accept
and receive " in this 17th section, it
has sometimes been contended in argu-
ment that only corporeal and tangible
things were the subjects of contract
embraced within the meaning of that
clause. Thus the counsel, in arguing
the case of Pickering v. Appleby, Com.
354, which was an action for a sum of
money for ten shares of the stock of
the governor and company of the
copper mines in England, sold to the
defendant according to parol agree-
ment, contended that where part of
the goods cannot be delivered or ac-
cepted, it cannot be a contract within
the statute, which extends only to such
things, part whereof may be delivered
or accepted. So, in the subsequent
case of Colt v. Netterville, 2 P. Wms.
307, it was contended at the bar that
whereas the statute enacts that no
contract should be good for the sale of
goods, wares, and merchandises of £10
price, unless part of the goods be ac-
cepted or earnest paid, or there was a
note in writing, this showed that such
goods were intended only as were
capable of actual delivery ; something
that was corporeal, and not stock,
which was incorporeal.

This reasoning, however, seemed to
be answered with some effect by the
counsel on the other side, who con-
tended, that though the statute says,
the contract shall be void, unless the
buyeraccepts partof the goods, or gives
earnest, or there is some memorandum
in writing; yet that it was not necessary
that the thing cohtrapted for should,

by that statute, be such as could be
delivered into the other party's hands.
That it was sufficient that part of the
goods be accepted, or that there be
earnest, or some memorandum in writ-
ing; and therefore if the goods can-
not be delivered, if there be earnest or
a memorandum in writing it is suffi-
cient. And it was asked, if in the
case of a contract for goods imported
in a ship, the contract should be held
to be not within the statute, because
the goods could not be delivered till
the arrival of the ship. It was further,
on the same. side, observed that the
intention of the act was to prevent
frauds and perjuries, which were equal-
ly dangerous in contracts for stock as
for land, or any other thing. And
that therefore the intention of the leg-
islature seemed to be aimed at all con-
tracts ; and that it was the more prob-
able that stocks were meant to be in-
cluded, because traffic in them was
used long before that act. According
to the report in Comyns, the judges
being divided in opinion, the case was
adjourned. But, L. C. 2 P. Wms. 307,
the question came afterwards before
all the judges, who were equally di-
vided upon it, six against six.

But in the case of Masselln. Cooke,
Prec. in Chan. 533, where the plaintiff
had agreed with one Green, the de-
fendant's broker, for £5,000 South Sea
Stock, at 187 per cent, to be delivered
about ten days after, and on the day
appointed the plaintiff attended at the
transfer office all day, but the defend-
ant did not come, and the stock having
in the meantime considerably risen,
the defendant refused to transfer it ;
the plea of the statute seemed to Mac-
clesfield, L. C, to be good. This
last-mentioned case of Massell o.
Cooke was probably the ease alluded
to in Cruee v. Dodson, Select. Cas.,
in Ch. in Lord King's time, 41 Trin. 11
G. 3, wherein the court said that it had
been determined in Chancery that bar-
gains relating to stock are within the

SEC. 210.]

INTEKEST IN LANDS.

395

this country, in some of the States, by the language of the
statute itself, all choses in action, which, of course, includes
" stocks," are expressly within its provisions, requiring a note
in writing for their sale. This is the case in New York.^ In
Indiana the word " goods " alone is used in the statute, and
under it, it is held that stocks, notes, 'and other merely incor-
poreal rights; 2 and in New Hampshire^ and Georgia* a sim-
ilar doctrine prevails as to notes, treasury checks, etc., and
carrying the principle to its legitimate sequence, it would
embrace stocks and all other incorporeal hereditaments.
Upon the other hand, in Massachusetts^ the statute is held
to include incorporeal hereditaments, as the sale of a patent
before letters granted, stocks, notes, etc. ; and such also is
the rule in Maine,® Maryland,^ Vermont,^ and also in Con-
necticut.^ In the last case, Waite, J., said: "In conse-
quence of the great increase in corporations and the amount
of capital invested in them, the stock of such companies has
become a large and valuable portion of the personal estate

statute of frauds, and if earnest be not
giyen, are nuda pacta.

In Colt V. Netterville, ante, the bill
was for a specific performance of an
agreement for transferring some York
Buildings stock, stating that the de-
fendant had agreed to transfer it to
the plaintiff on a particular day therein
mentioned, on the plaintiff's paying
the money, and that the plaintifi
agreed to pay so much per cent and
to accept the transfer, and did there-
upon pay to the defendant Qd. earnest.
To which bill the statute of frauds was
pleaded, denying that the defendant
received or accepted the &d. as earnest.
The plea was held ill, was overruled on
the ground that it was not material how
or in what manner the defendant re-
ceived it, hut how the other paid it,
upon the doctrine in Pinnel's Case,
5 Coke, 117. But Loed King seemed
to incline against construing the 17th
section of the statute to extend to
stock, " adverting to the case of one
Wolstonholme, who was declared a
bankrupt as having East India stock ;
but which decision was afterwards re-
versed by an act of parliament."

As to whether shares in a company

are " things in action " within the stat-
ute 32 & 33 Vict. c. 71, § 15, subs. 5,
see in re Jackson, L. R. 12 Eq. 355;
in re Fox, L. R. 17 Eq. 113.

1 Kessel v. Albestis, 56 Barb. (N.Y.)
362 ; People v. Beebe, 1 id. 379; Hagar
V. King, 38 id. 200 ; Allen v. Aguira, 7
N. Y. ; Peabody v. Speyers, 56 N. Y.
230; Truox v. Slater, 86 id. 630; Art-
cher V. Zeh, 5 Hill (N. Y.) 200.

2 Vawter v. Griffin, 40 Ind. 593.

' Whittimore v. Gibbs, 24 N. H.
484.

* Beers v. Crowell, Dudly (Ga.)
28.

^ Somerby v. Buntin, 118 Mass.
279; Tisdale o. Harris, 20 Pick.
(Mass.) 9; Boardman c. Cutter, 128
Mass. 390; Baldwin v. Williams, 3
Met. (Mass.) 367.

« Pray v. Mitchell, 60 Me. 430. In
Gooch V. Holmes, 41 Me. 523, the
statute was held to apply to a sale of
bank bills ; see also Riggs v. Magruder,
2 Cr. (U. S. C. C.) 143.

' Calvin v. Williams, 3 H. & J. (Md.)
38.

8 Eay V. Wheeler, 44 Vt. 292.

9 North V. Forest, 16 Conn. 400.

396 STATUTE OF FRAUDS. [CHAP. VI.

of our citizens. Contracts for the sale of such property are
almost daily made, and often to a very large amount. Such
contracts fall clearly within the mischiefs which the statute
is intended to remedy. There is as much danger of fraud and
perjury in the parol proof of such contracts as in any other.
The statute is highly important and beneficial in its opera-
tion, and ought not to be narrowed by any very rigid con-
struction ; ^ and we think it no strained construction of its
language to say the contract falls within the letter, as well
as within the spirit of the act. In Florida the statute applies
to ' personal property,' and this is held to include the stock
of corporations." ^ The possession of shares in a com-
pany, the members of which have no direct interest in
the land belonging to the company, but only a right to share
in the profits, does not entitle the holder to be registered as
a voter.^ But where the partnership deed declared that land
which had been conveyed to two of the partners should be
considered as personal estate, it was held that the partners
had a right to vote, the declaration being merely voluntary
and revocable.*

Sec. 211. Shares in a Mine, etc. — In Boyce V. Grreen,® it
was held that a sale of shares in a mine was an interest in land
within the statute, Bushe, C. J., saying: "The nature of
mining implies at least a right to open the ground and keep
it open, and such right to the land for a limited time as in-
duced the court in Crosby v. Wadsworth,® to hold a contract
for the sale of growing crops to be within the statute."'^
In Ashton v. Lord Langdale,* mortgages of turnpike tolls,
and of railway undertakings, were held to be interests in
land within the Mortmain Act ; ® and in Toppin v. Lomas,!"

1 Howe V. Palmer, 3 B. & Aid. see too Rogers v. Harvey, 5 C. B. (N.
321. S.) 1.

2 Southern Life Ins. &c. Co. v. Cole, ^ Batty, 608.
4 Fla. 359. 6 q East, 602.

8 Bulmer v. Norrls, 9 C. B. (N. S.) ' And see Vice v. Anson, 7 B. & C.

19; Acland v. Lewis, ib. 32; Bennett 409. But it is submitted that these

!i. Blain, 15 C. B. (N. S.) 518; Free- cases can hardly be reconciled with

man v. Gainsford, 34 L. J. C. P. 95; those cited ante, p. 373, a. 1.

Tepper v. NichoUs, 18 C. B. (N. S.) 8 4 pe (j. & Sm. 402.

121 ; Wadmore v. Dear, L. R. 7 C. P. '9 Geo. II. c. 36.

212. w 16 C. B. 145.

4 Baxter v. Brown, 7 M. & Gr. 198;

SEC. 214.] INTEEBST IN LANDS. 397

Westminster Improvement bonds were held to confer upon
the holder an interest in lands within the statute.^

Sec. 212. Agreements for Leases or for Sale of Iieases within
Statute. — Agreements for leases and for the sale, assign-
ment, or transfer of leasehold estates, being contracts for a
gtant or transfer of an estate or interest in land, are within
the statute, and must consequently be authenticated by a
signed writing.® Where the defendant agreed to obtain a
transfer of the lease of a public-house, in which he himself
had no interest, to the plaintiff, it was held that this was a
contract within the statute.*

Sec. 213. Mixed Indivisible Contract. — Where the contract
relates as well to a sale of an interest in land as to other mat-
ters, the whole forming one indivisible contract, and it is
void as to the part which relates to the land, for want of
writing, it will also be void as to the other matters.* Thus
in a Michigan case ^ a verbal agreement was made for the
transfer of a farm and the wheat growing thereon. The court
held that as the contract for the conveyance of the farm was
void for want of a writing, the contract relating to the wheat
being connected therewith was also void.

Sec. 214. Agreement Amounting to Transfer of Interest in
Land. — An agreement which amounts substantially to a
transfer of an interest in lands, is within the statute."
Where a parol agreement was made between the plaintiff
and defendant, that if the plaintiff would surrender her ten-
ancy to her landlord, and would prevail on him to accept the
defendant as his tenant, in place of the plaintiff, he would
pay the plaintiff £100 as soon as he should become tenant
of the land, it was held that the contract was for the sale of
an interest in land.'^ A parol agreement by a lessee to quit

1 See further, 1 Lindley on Part> N. & P. 224 ; Vaughan o. Hancock, 3
nership, 3d ed. 692. C. B. 766 ; Lord Falmouth v. Thomas,

2 Add. on Contr. 7th ed. 145, citing 1 Cr. & M. 89 ; Savage v. Canning, 1
Anon. Ventr. 361 ; Poultney v. Holmes, Ir. C. L. 434 ; and see ante, p. 86, n. 6.
Str. 405. ' Jackson v. Evans, 44 Mich. 510.

8 Horsey v. Graham, L. R. 5 C. P. « Kelly v. Webster, 12 C. B. 290 ;

13. Smart v. Jones, 15 C. B. (N. S.) 717 ;

* Cooke V. Tombs, Anst. 420 ; May- 33 L. J. C. P. 156.
field V. Wadsley, 3 B. & C. 357, 361 ; ' Cocking v. Ward, 1 C. B. 858; 15

Mechlen v. Wallace, 7 Ad. & Bl. 49 ; 2 L. J. C. P. 246.

398 STATUTE OF FRATIDS. [CHAP. VI.

possession on a certain day, and to pay all outgoings up to
that time, in consideration of £150 to be paid to him by
another person, who has agreed with the lessor for a new
lease to him on the termination of the existing term, is within
the statute ; ^ and so is a similar agreement, saying that the
lessee shall part with the land, and that the defendant (the
intended lessee) shall take it.^ Again, where there was a
parol agreement for the transfer of a lease, the lessee to pay
up all rent then due, and to endeavor to induce the landlord
to accept the transferee as tenant, it was held that the trans-
feree could not sue for a breach of the agreement to pay up
the rent.^ "Where the plaintiff, who was in the possession and
occupation of premises, where he carried on the business of
a milkman, agreed to yield up the possession and occupation
of the premises to the defendant, who was to pay the rent
and other outgoings, it was held that the agreement was for
the sale of an interest in land, and must be in writing.^

Sec. 215. Agreement to Let Furnished Lodgings. — A con-
tract for the taking or letting of furnished lodgings, whether
by the day, week, or month, has been held to be a contract
for an interest in land, if any specific rooms are let.^ But
an agreement to take furnished lodgings in a boarding-house,
it not being intended to give the right to the exclusive occu-
pation of any particular part of the house, has been held not
within the statute.^ In Massachusetts ^ it has been held that
a contract by the keeper of a boarding-house, to provide a
man and his family for six months with board, and with three
specified rooms as lodgings, and to light and heat the same, is
not within the statute.

Sec. 216. Agreement to Furnish. — An agreement by a land-
lord to furnish a house previously to the entry of the in-
tended tenant, the agreement for furnishing being made as
part of the contract for the lease, is within the statute.*

1 Smith V. Tombs, 3 Jur. 72. 24 L. J. C. P. 76 ; 3 C. L. E. 351.

2 Smith V. Tombs, 3 Jur. 72. ^ Inman v. Stamp, 1 Stark, 12 ;
8 Hodgson V. Johnson, E. B. & E. Edge v. Strafiord, 1 C. & J. 391 ; 1

685 ; 5 Jur. (N. S.) 290 ; 28 L. J. Q. B. l^r. 295.

88. But the doctrine of this case was « Wright v. Stavert, 2 E. & E. 721 ;

questioned in Palbrook v. Lawes, L. R. ' White v. Maynard, 111 Mass. 250.

1 Q. B. D. 284. 6 Jur. (N. S.) 867 ; 29 L. J. Q. B. 161.

* Smart v. Harding, 15 C. B. 652; » Mechlen v. Wallace, 7 Ad. & El.

SEC. 219.] INTEREST IN fiANDS. 399

Sec. 217. Agreement to Repair. — An agreement between a
landlord and tenant, relating to repairs and alterations to be
made on the property, is, when the repairs and alterations are
only to be executed because of the lease, within the statute.
Thus, where A being possessed of premises for the residue of a
certain term of years, agreed with B to relinquish possession
to him, and to suffer him to become tenant of the premises
for the residue of the term, in consideration of B's paymg
a sum of money towards completing certain repairs on the
premises, it was held that this was an agreement relating
to the sale of an interest in land.^ But where the lessee
in possession verbally agreed with the lessor to pay him
annually during the residue of the term, the sum of £10
per cent on the cost of new buildings, if the lessor would
erect them, it was held that this agreement was not within
the statute, as it was only collateral to the lease, and not a
new demise.^

SeCs 218. Agreement to Build. — An agreement between
occupiers of adjoining lands that one of them should build a
boundary wall, the .other to pay his proportionate share of
the expense, is not within the statute.^ Nor is an agreement
to build a house within the statute, although it implies a
license to go on the land.* But an agreement that if A will
erect a house upon a certain lot of land belonging to B, A
shall have the land, is within the statute, and cannot be en-
forced although A erects the house.^

Sec. 219. instances of Agreements not Within the Statute.
— A verbal agreement to pay for any damage done to the

49; 2 N. & P. 224; Vaughan v. Han- ^ Smith v. Smith, 28 N. J. L. 208.

cock, 3 C. B. 766 ; Simmons v. Sim- In a South Carolina case, Jones v.

mons, 12 Jur. 8. McMichael, 12 Eieh. (S. C.) 176, a

' Buttermere v. Hayes; 5 M. & W. parol contract between A and B,
455 ; 7 Dowl. 489 ; and see Vaughan v. whereby A agreed to erect a, saw-
Hancock, 3 0. B. 766 ; Earl of Fal- mill on B's land and manage it at
mouth V. Thomas, 1 Cr. & M. 89. his own cost, B agreeing to deliver

2 Hoby V. Eoebuck, 7 Taunt. 157 ; at the mill, at his own cost, certain

2 Marsh. 433 ; and see Donellan v. timber from his land to be sawed by

Read, 3 B. & Aid. 899, 904 ; Seago v. A, the profits of the sawing to be

Deane, 1 Moo. & P. 227 ; 4 Bing. 459. equally divided between them, was

2 Stuart V. Smith, 7 Taunt. 158. held to be within the statute and

* Wright V. Stavert, 2 E. & E. 721. void.

400

STATUTE OF FEAUDS.

[chap. TE.

surface in working a quarry is not within the statute.^ Nor
is an agreement that B may dig and carry away cinders
from a cindertip, the property of A, B paying a certain
price per ton.^ Nor an agreement to use a dock for the
purpose of repairing a ship.^ Nor for damage sustained
by the plaintiff in consequence of a road having been
made through his land ; such an interest in land within the
meaning of the statute as to require that a submission to
arbitration to ascertain how much the defendant should pay
therefor, should be in writing.* Thus, an agreement not to
claim damages for the flowing of lands if another will erect
a dam and mill at a certain point on a stream, is not an agree-
ment conferring an interest in land, but merely a waiver of
a claim for pecuniary damages, which is valid, although by
parol ; * and the same rule has also been adopted as to a parol

1 Grifath V. Jenkins, 10 Jur. (N. S.)
207; 3 Bos. & P. N. R. 489.

2 Smart v. Jones, 15 C. B. (N. S.)
717.

' Wells V. Kingston-upon-HuU, L.
E. 10 C. P. 402.

* Gillanders v. Lord Eossmore, 1
Jones, Ex. E. 504 ; and see Griffith i;.
Jenkins, supra ; 8 Ad. & El. 716.

6 Smithu. Goulding, 6Cush.(Mass.)
154. See also Johnson v. Skillman,
29 Minn. 95, in which it was held that
where one orally promised others that
if they would erect a good custom mill
at a certain point on their own land,
he would give them the privilege of
flowing his land so long as they would
maintain such mill, and they relying
on that promise, and partly induced
by it, erected a dam and a mill ac-
cordingly, at large expense, the prom-
ise was a mere license, and was re-
vocable even after it had been acted
upon. The court said : " The parol
agreement set forth in the decision of
the trial court created no easement in
the land of plaintiff, but took effect
as a parol license only. A license
creates no estate in lands. It is a
mere power or authority founded on
personal confidence, not assignable,
and revocable at pleasure, unless
subsidiary to a valid grant, to the
beneficial enjoyment of which its

exercise is necessary, or unless exe-
cuted under such circumstances as
to warrant the interposition of equity.
This is the result of the best consi-
dered cases. The doctrine of the
early cases, which converted an ex-
ecuted license into an easement, is
now generally discarded as being ' in
the teeth of the statute of frauds.'
The cases of Eicker v. Kelly, 1 Me.
117, and Clement u. Durgin, 5 id. 9,
cited by defendants' counsel, have
now little following ; and the case of
Eerick v. Kern, 14 S. & E. (Penn.)
267, also relied on, which was an ac-
tion at law for damages in favor of
the licensee, is followed in but few
States. Houghtaling v. Houghtaling,
5 Barb. (N. Y.) 383; Jamieson v.
Millemann, 3 Duer (N. Y.) 255 ; "Wash.
Easem. 24.

A simple reference to some of the
more important cases, in support of
the views herein expressed, will suf-
fice. Cook ■!). Stearns, 11 Mass. 333;
Mumford v. "Whitney, 15 "Wend. 380 ;
Wolfe V. Frost, 4 Sandf. Ch. (N. Y.)
72 ; Foot V. New Haven & Northamp-
ton Co., 23 Conn. 214 ; Bridges v. Pur-
cell, 1 D. & B. (W. C.) L. 492 ; Hazle-
ton V. Putnam, 3 Pin. (Wis.) 107;
Woodward v. Seely, 11 111. 157 ; Wood
17. Leadbitter, 13 M. & W. 838 ; Wise-
man V. Lucksinger, 84 N. Y. 31 ; 38

SEC. 219.]

INTEREST IN LANDS.

401

agreement to take a certain sum annually as a compensation
for flooding lands,^ although it would seem that in the latter
case an easement is created, and the doctrine cannot be sus-
tained if the agreement is treated as amounting to anything
more than a license to continue the dam, revocable at the
pleasure of the owner of the land. An agreement to release
damages for the taking of lands under a statute for public
purposes ^ is not within the statute, unless the statute con-

Am. Rep. 479. In cases where the,
license is connected with a valid grant,
as of chattels or fixtures, upon the
land of the licensor, susceptible of
being removed, it is subsidiary to the
right of property, and irrevocable to
the extent necessary to protect the
licensee, and save to him the right of
entry — the right of possession follow-
ing the right of property. Nettleton
V. Sikes, 8 Met. (Mass.) 34; Heath v.
Randall, 4 Cush. (Mass.) 195 ; Wood
Leadbitter, supra. But where it is
sought to couple with a license a
parol grant of an interest in the realty,
the attempted grant being void, the
transaction remains a mere license.
Wood V. Leadbitter, supra. A license
is, of course, always a protection for
acts done under it, and before revoca-
tion. Pierrepont v. Barnard, 6 N. Y.
279. In cases, however, of what are
sometimes called negative easements,
which are executed on the land of the
licensee, a different rule prevails ; as
where a man has an easement of light
and air upon or over an adjacent lot,
he may abandon the same, and license
the erection, by his neighbor, of a
building which shall extinguish such
right, and the license become irre-
vocable. Morse v. Copeland, 2 Gray
(Mass.) 302; Godd. Easem. 472. Nor
is it material that a mere license is or
is not in writing, or upon a considera-
tion. In Jackson v. Babcock, 4 John.
(N. Y.) 418, there was a sealed instru-
ment, and in Wiseman v. Lucksinger,
84 N. Y. 31 ; 38 Am. Eep. 479, there
was both a writing and a considera-
tion ; but both were held licenses, and
revocable. In such cases the question
is one of interpretation as to the in-

tent of the parties as evidenced by
the writing, and as Chancellok Kent
remarks, the distinction between an
easement and a license is sometimes
quite subtle. And so, in a suit in
equity brought to confirm rights and
assure an interest, as upon a part per-
formance of a parol agreement alleged
to be taken out of the statute of frauds
(and otherwise void as a grant, but
valid as a license), the question of in-
terpretation of the terms of the agree-
ment, and the intent of the parties,
becomes a material one in the case.
Jackson & Sharp Co. v. Philadelphia
&c. R. Co., 11 Am. Law Reg. (N. S.)
374," to be reported in 4 Del. Ch.

Mr. Goddard says (Easements,
471 ) : "A license is also irrevocable if
the licensee, acting upon the permis-
sion granted, has executed a work of
a permanent character, and has in-
curred expense in its execution. This
rule of law appears to be based on the
injustice which would be inflicted upon
the licensee, if after he had laid out
money and executed a permanentwork,
the licensor were permitted to revoke
his license and make him destroy his
work, and so lose the money expended,
or if he were allowed to treat him as
a wrong-doer, and recover damages
for the very act for which he gave
permission."

In the latter American cases stress
is laid on the statute of frauds, and
the early English cases are distin-
guished on the ground that they were
decided before the enactment of that
statute.

1 Short V. Woodward, 13 Gray
(Mass.) 86.

2 Fuller V. Plymouth Commission-

402 STATUTE OP FEATJDS. [CHAP. VI.

templates a contract between the parties, in which case the
agreement must, be in writing.^ A parol promise by a
municipal corporation to pay a land-owner for damages for
illegally appropriating his land for the widening of a street,
is not within the statute.^ An agreement, for a valuable
consideration, not to use a certain mill after a certain date,
is held not to be within the statute ; and this rule would
apply to all contracts by which the owner of land agrees not
to use it for certain specified purposes,^ where the agreement
does not attempt to impose a burden upon the land, but
merely to bind the owner thereof, so long as he remains the
owner, or retains control over it.

Sec. 220. Parol Sales of Buildings, Fixtures, Improvements,
etc. — An agreement for the sale of a building erected upon
the lands of another, and which the person erecting has a
right to remove, is valid, alt}iough by parol ; * and the same
rule prevails as to any improvements made by a tenant or
licensee, or fixtures put by him upon the lands of another,
which he has a right to remove, although at the time the
agreement is entered into they are annexed to the land, and
apparently form a part thereof.^ In such cases the sale is
treated as amounting simply to a transfer of the right of the
seller to sever certain chattels from the soil, and not as con-
ferring any interest to the vendee in the land itself.^ The
fact that a chattel is annexed to the freehold by a person

ers, 15 Pick. (Mass.) 81; Embury ti. defendant their church building, which

Connor, 3 N. Y. 511; Clement v. Dur- had been severed from the land and

gin, 5 Me. 14; Fitch v. Seymour, 9 placed upon rollers, for the sum of

Met. (Mass.) 462. $500. It was held that the sale was

1 Phillips V. Thompson, 1 John, not within the statute. Lower v.
Ch. (K Y.) 131. "Winters, 7 Cow. (N. Y.) 263; Howard

2 Coleman v. Chester, 14 S. C. 286. v. Easton, 7 John. (N. Y.) 205 ; Thouv-
8 Bostwick 1). Leach, 3 Day (Conn.) enin v. Lea, 26 Tex. 612. Such fix-

476 ; Leinan v. Smart, 11 Humph, tures, while annexed to the land, are

(Tenn.) 308. not either goods, wares, or merchan-

* Keyser v. School District, 35 N. dise under the 17th section, nor upon

H. 477 ; Scoggin v. Slater, 22 Ala. 687. the other hand do they form an in-

^ Scoggin V. Slater, 22 Ala. 687 ; terest in land within the 4th section.
• Cassell V. Collins, 23 id. 676; Bost- Lee v. Eisdon, 7 Taunt. 188; Primer
wick V. Leach, 3 Day (Conn.) 476; v. Donald, Tr. & Gr. 1; Hallen v.
Clark V. Shultz, 4 Mo. 235 ; Benedict v. Bunder, 1 C. M. & B. 266.
Beebe, 11 John. (N. Y.) 145. In Beach « Keyson v. School District, ante;
V. Allen, 7 IJun (N. Y.) 439, the trus- Horsfall v. Hey, 2 Excheq. 778; Hal-
tees of a religious society sold to the len v. Rtmder, 1 C. M. & R. 266.

SEC. 220.] INTEREST IN LAKDS. 403

who has a right to remove it, does not destroy the character
of the article so annexed, as a chattel ; and in this country,
whatever may be the rule in England, the rule seems to be
well settled that improvements put upon land, although
incorporated with it, are not necessarily to be regarded as
land.i In a New York case,'-* a promise made by the owner
of land to an intruder thereon, to pay him for improvements
made by him thereon, — as for tillage, and certain buildings
erected thereon by him, — it was held by the court that the
promise was not within the statute as relating to an interest
in land. " This was not," said Spencer, J., " a contract
or sale of lands, tenements, or hereditaments, or any interest
in or concerning them, but related to the labor only which
has been bestowed upon the land under the denomination of
improvements." In such cases, the doctrine of constructive
severance applies, the same as it does where the owner of the
land by a valid contract, sells a thing annexed to his land
to a third person, or upon the sale of the land reserves the
growing crops, or timber, or fixtures, or buildings thereon.^
In such cases, the crops, timber, or fixtures are treated as
constructively severed from the land, and are treated as
chattels in the hands of the person severing them, so that
a parol sale thereof, answering the requirements of the stat^
ute as to the sale of goods, is valid, and sufficient to convey
the title thereto.* But where a chattel is annexed to lands,
without authority from the owner, so that no right of removal
exists in the person making it, it immediately becomes a part
of the land; and a parol sale thereof by the person so annex-
ing it to the land would be within the statute, and invalid
upon that ground, as well as because of a total lack of title
to the thing sold.^ There is also a constructive severance,
where the thing annexed to the land has never assumed the
character of realty, as where the title to the land, and to the

1 Green u. Vardiman, 2 Blackf. « barren u.Leland, 2 Barb. (N.Y.)
(Ind.) 324; Scoggin o. Slater, ante; 542; Bank of Laneingburg v. Crary,
Forbes v. Hamilton, 2 Tyler (Vt.) 1 Barb. (N. Y.) 542; Smith t;. Bryan,
356 ; Ziekafosse v. HuUick, 1 Morris 5 Md. 141 ; Teal v. Anty, 2 B. & B. 99.
(Iowa) 175; Mitchell v. Bush, 7 Cow. * Kingsley v. Holbrook, 45 N. H.
{N. Y.) 185; Benedict v. Beebe, 11 313; Warren v. Leland, ante; Smith
John. (N. Y.) 145. v. Bryan, ante.

2 Prear v. Hardenburgh, 5 John. ^ J'rear v. Hardenburgh, ante.
(N. Y.) 272.

404 STATUTE OP FKATJDS. [CHAP. VI.

thing annexed thereto, were originally, and have always been,
distinct and vested in different persons. Thus, where land is
demised to be used as a nursery garden, trees and shrubs
planted therein are mere chattels,^ as between the lessor
and lessee, and the lessee may maintain an action of de
bonis exportatis against the lessor, or any other person who
wrongfully takes and converts them ; and an oral agreement
for their sale while growing or standing in the land, is not
an agreement for the sale of an interest in or concerning
land.^ But as between the heir and an executor, and a
grantor and grantee of the land, the rule would doubtless
be otherwise if the title to the trees or shrubs was in the
grantor;^ and upon principle we should say that if the
nurseryman should buy the land, the trees and shrubs
would at once become a part of the realty.

Sec. 221. Contracts for 'Work to be Done upon or for Land.

— A contract to do certain work upon the land of another, as
to cut a certain number of cords of wood thereon, or certain
timber, or to clear up a certain tract, is not a contract con-
cerning an interest in land, and, if to be performed within
one year, is valid, although by parol;* and the same rule
would apply as to a contract to erect a house, build a fence,
or perform any other labor upon the land, although when
completed the fruits of the labor may become a part of the
realty. So, too, it has been held that an agreement to employ
a person to dispose of certain lands, and to pay him a com-
pensation dependent upon the price obtained therefor, is not

1 Miller v. Baker, 1 Met. (Mass.) contract was made the roots were in
27 ; Wiley v. Bradley, 60 Ind. 62. the ground. See also Smith v. Price,

2 Whitmarsh v. Walker, 1 Met. 39 111. 28 ; Penton v. Eobert, 2 East,
(Mass.) 313. In this case a parol sale 88; Wyndham v. Way, 4 Taunt. 316.
of mulberry trees growing in a nursery. In Indiana, Heavilon u. Heavilon, 29
and raised to be sold and transplanted, Ind. 509, it has been held that a parol
was held not to be within the 4th sec- agreement on the sale of land that the
tion of the statute. So in Webster v. crops growing thereon are to be re-
Zielly, 52 Barb. (N. Y.) 482, a parol served is valid, and that an execution
contract for the sale and delivery of of the deed is a performance of the
a certain number of bushels of hop contract by the vendor.

roots growing on the lands of the ' Lee v. Eisdon, 7 Taunt. 191;

vendor, was held not to be a con- Miller v. Baker, ante.
tract for the sale of an interest in * Forbesu. Hamilton, 2 Tyler (Vt.)

land, although at the time when the 356.

SEC. 221.J rNTEKBST IN LANDS. 405

within the statute ;i and in Texas ^ it has been held that
an agreement to locate certain land certificates and procure
patents therefor in consideration of a good title to one-half
of the land patented, is not within the statute ; but this doc-
trine is doubtful, as it seems to be quite well settled that
a contract to pay for labor in land is within the statute,
and invalid as the measure of the laborer's right, unless in
writing.* This question has been quite recently considered
by the House of Lords in England,* and a doctrine conso-
nant with that just stated, held. In that case, an intestate
induced a woman to serve him many years as his house-
keeper without wages, and to give up other prospects of
establishment in life, by a verbal promise to make a will
leaving her a life estate in land, and afterwards signed a
will, not duly attested, by which he left her such life estate.
The court held that there was no contract, and that she could
not maintain an action against the heir upon a declaration
stating that she was entitled to a life estate in the land. In a
recent Ohio case,^ a parol promise to compensate a person
for services, by will,- either in land or money, was held to
be within the statute. But while no recovery could be had
upon the contract for compensation in money, yet a recovery
might be had upon a quantum meruit therefor, and the con-
tract could be proved, for the purpose solely of showing that
the services were rendered at the request of the other party,
and were not intended to be gratuitous. But although the
contract as to payment in land is void, yet the person ren-
dering such service may recover therefor upon a quantum
meruit;^ but in order to arrive at the value of the services
he will not be permitted to show the value of the land
agreed to be given therefor,'^ but is confined to the actual

1 Fiero v. Fiero, 52 Barb. (N. Y.) « Howard v. Brown, 37 Ohio St.
288. 402.

2 Watkins v. Gilkerson, 10 Tex. * Bannonv.TJrton, 3 Green (Iowa)
340. See also Davis v. Walker, 4 228 ; Jack k. McKee, 9 Penn. St. 235 ;
Hayw. (Tenn.) 295. Burlingame v. Burlingame, 7 Cow.

3 Watson V. Watson, 1 Houst. (N. Y. ) 92 ; Watson !.. Brightwell, 60
(Del.) 209; Ham v. Goodrich, 37 N. Ga. 212.

H. 185 ; King v. Brown, 2 Hill (N. Y.) ^ Erben u. Lorrillard, 19 N. Y. 299.

48&; Lisk k. Sherman, 25 Barb. (N. Y.) In Clarke u. Davidson, 53 Wis. 317,

433 ; Sutton v. Rowley, 44 Mich. 112. A went into possession of a farm un-

* Maddison v. Alderson, L. E. 8 der a parol agreement to purchase;

App. Cas. 465. it was agreed between A and the ad-

406 STATUTE or PEATJDS. [CHAP. VI.

Talue of his services in view of all the circumstances.^ In
a Massachusetts case,^ it was held that if a person agrees
to work for another and take his pay in land, while the
contract is within the statute and therefore not enforce-
able, yet if the person for whom the service is render.ed is
ready and willing to perform it by conveying the land, the
employee is bound to accept performance, and cannot recover
for his services on an account annexed. A parol agreement
entered into between a father and son, or between the owner
of land and any third person, that if he will carry on a cer-
tain farm and support such land-owner and his family during
his life, he may have the use of the farm, is valid ; ^ and in
Indiana it is held that a parol agreement between a land-
owner and another, that if the latter will support such land-
owner during his life he will convey his land to him, or de-
vise it to him by will, is not within the statute.* Thus, in
the latter case, in an action for the partition of certain lands,
one of the defendants answered, claiming title thereto, and
setting up a verbal contract between himself and the former
owner of the lands, who had died intestate, by which said
defendant was to board and care for such intestate during
her life, and in consideration therefor said intestate was to
convey said lands to the defendant, or devise the same to him
by will; it was also alleged that the defendant had performed
his part of such contract, and that said intestate had put him
into possession of the lands under the same, and it was held
that such contract was not within the statute of frauds. But
it is not believed that at law^ such contracts have any valid-

ministrator, from whom he purchased, upon the farm and used by him, and

that, in case A failed to get title to the use of the buildings, pasturage,

the farm, he should be paid a certain etc., yet the recovery in the case

sum per day for the work of himself having been based upon the void

and team thereon, and certain prices agreement, the court would not as-

per bushel for seed used thereon. He "sume that the amount recovered

did not acquire title. It was held that would have been the same on a

the agreement of purchase and that guanium meruit.
for payment for A's labor, etc., were i See Wood's Law of Master and

so connected as considerations for each Servant, 123.

other as to constitute one indivisible 2 RUey v. Williams, 123 Mass. 506.

contract, which was void because not " MoCormick v. Drummett, 9 Neb.

in writing ; and that while A might, 384.

however, recover on a quantum meruit * Mauck v. Melton, 64 Ind. 414.
the fair value of his labor, etc., over ^ In Johns v. Johns, 67 Ind. 440,

and above that of the crops grown the owner of land agreed verbally

SEC. 222.] INTEREST IN LANDS. 407

ity ; but in equity, where the contract has been fully performed
by the third person, the court would under certain circum-
stances direct a specific performance by the executors of the
land-owner, by a conveyance of the land. But an agree-
ment made by the grantee of lands, in consideration of the
grant, that he will support the grantor during the balance of
his life, is not a contract relating to an interest in lands, and
is valid, although by parol.'' Such a contract merely relates
to the mode in which payment for the lands shall be made,
and does not require any writing to give it validity.

Sec. 222. Contract to Fay Taxes on Land. Mortgages.
Collateral Agreement, Instances of, etc. — A parol agreement
by the vendee of land to pay the taxes then or thereafter to
be assessed thereon, is not a contract relating to an interest
in land, and is not within the statute ; ^ nor, indeed, is any
special agreement to pay the price of land, made either at the
time when the conveyance is made, or afterwards,^ or to do
any merely collateral act, in consideration of such conveyance,
which does not operate as a conveyance of an estate or interest
in land. Thus, an agreement to pay an outstanding mort-
gage thereon,* or to pay the indebtedness of the grantor to
a certain person,^ or to pay the expenses of investigating the
title to the land,^ or not to use the premises for the prosecu-
tion of a certain trade or business,'' have all been held not
to be within the statute. But so far as the validity of a

with his sons, then living with him. Cow. (N. Y.) 266; McCabe v. Fitz-
that if they would support him and patrick, 2 Leg. Gaz. 138; Miller v.
his wife, he would convey to them. Roberts, 18 Tex. 16; Geraltney «.
They did so, the family continuing to "Wheeler, 26 Ind. 415; Daggett v.
reside together. No conyeyance was Patterson, 18 Tex. 158 ; Ford v. Fin-
ever made, and the father died in- ney, 35 Ga. 258 ; Evans v. Hardman,
testate. It was lield that the verbal 16 Tex. 480; Graves i'. Graves, 45 N. H.
contract was not taken out of the 323 ; Natchez v. Vandervelde, 31 Miss.
statute by performance on their part. 706; Stark v. Wilson, 3 Bibb. (Ky.)

1 Lyman v. Lyman, 133 Mass. 414 ; 476.

Bassford v. Pearson, 9 Allen (Mass.) « Ante, p. ; Ely „. McKnight,

387 ; Nutting v. Dickinson, 8 id. 541. 30 How. Pr. (N. Y.) 97.

2 Brackett D.Evans, 1 Cush.(Mass.) ^ Morgan v. Overman Silver Min-
79 ; Carr v. Dooley, 119 Mass. 294 ; ing Co., 37 Cal. 534.

Preble v. Baldwin, 6 Cush. (Mass.) « Jenks v. White, 6 Excheq. 873.

549. ■ Bostwick v. Leach, 3 Day (Conn.)

8 Nutting V. Dickinson, 8 Allen 476; Fleming <;. Kamsay, 46 Penn.

(Mass.) 540; Bassford v. Pearson, 9 St. 252; Linan v. Smart, 11 Humph,

id. 387; Whitbeck v. Whitbeck, 9 (Tenn.) 308.

408

STATUTE OP FRAUDS.

[chap. VI,

parol agreement not to use the premises for certain purposes
is concerned, it seems that no permanent restraint upon the
use of the premises can be thus imposed; and it has been
held that an agreement not to build upon the premises within
a certain distance upon the street, is within the statute,^ as
also is an agreement by the vendor to open a street adjacent
to his land,2 or any agreement which imposes a permanent
burden upon the estate.

Sec. 223. Agreement to Pay Additional Price, etc. — Where
lands are sold by the acre and conveyed by metes and
bounds, and described as containing a certain number
of acres of land, a parol agreement to discount pro rata
for each acre or part of an acre which the premises shall
fall short of the number of acres which it is described
as containing in the deed, is not a contract relating to
an interest in land, but merely relates to the price thereof,
and is not within the statute,* because in such a case

1 Wolfe V. Frost, 4 Sandf. Ch.
(IS. Y.) 72; Rice u. Roberts, 24 "Wis.
461.

2 Richter v. Irwin, 28 Ind. 26.

8 Seward v. Mitchell, 1 Cold.
(Tenn.) 87. In Connecticut this
question has been decided both ways.
Mott V. Hurd, 1 Root (Conn.) 73, hold-
ing in conformity with the text ; and
Bradley v. Blodgett, Kirby 22, the con-
trary. See also Gillett v. Burr, 1 Root
(Conn.) 74; Graves v. Dyer, 37 Vt.
369; Green v. Vardiman, 2 Blaekf.
(Ind.) 324; and Frazer v. Child, 4 E.
D. S. (N. Y. C. P.) 153, in the two last
of which cases the dofctrine of Mott v.
Hurd,an«e, is treated as authoritative.
In Green v. Vardiman, ante, A and B
jointly purchased a land-oflSce certi-
ficate, which was assigned to A alone.
They agreed upon a division of the
land by which A was to receive a few
more acres than B, and was to allow
a certain sum for the excess, and each
entered upon and held the portion al-
lotted him ; and it was held that the
agreement was not within the statute.
In Eraser v. Child, ante, A procured
money of B, and conveyed certain
land to him, upon the understanding

that if, upon a sale of the land B was
not reimbursed for the loan, B would
make up the deficiency ; and it was
held that the contract was not within
the statute. In Garrett v. Malone, 8
Rich. (S. C.) L. 835, the plaintiff con-
veyed to the defendant a tract of land
as containing 110 acres, at .$8 per acre ;
and it was verbally agreed between
them that the land should be sur-
veyed, and if it ttirned out that it
contained less than the number of
acres named, the plaintiff should re-
fuse ^jro rata ; and if it contained more,
the defendant should pay for the ex-
cess at the-rate named. The lot con-
tained more than 110 acres ; and in an
action to recover for such excess, the
court held that the contract was not
within the statute, and that the plain-
tiff's promise was a good considera-
tion for the defendant. In Dyer v.
Graves, ante, such an agreement is
held to be within the statute. In
Schriver v. Eckenrode, 94 Penn. St.
456, S purchased from the assignee
of E, for the benefit of creditors, a
farm which E, by parol, guaranteed
to contain a certain number of acres.
S paid to the assignor the full amount

SEC. 223.] INTEREST IN LANDS. 409

the grantor is legally bound to make good the deficiency
in an action at law,^ and his promise being merely to do
what he was before legally or equitably bound to do, is
predicated upon a good consideration, and does not relate
to an interest in land ; and this applies as well to an agree-
ment on the part of the grantee to pay for any excess of land
over the quantity contracted for. In a case previously cited,^
the defendant sold the plaintiff a tract of land described in
the deed by metes and bounds, and as containing five hun-
dred and twenty-one acres. After the deed was made the
parties, differing as to the quantity of land embraced in the
tract, entered into a parol agreement that it should be sur-
veyed, and if there were more than five hundred and twenty-
one acres, the vendee should pay for the excess, and if less,
the vendor should pay for the deficiency; and it was held
that the agreement did not relate to the sale of an interest
in land, and was binding upon the parties. In some of the
States, where land is sold hy the acre, and there is no agree-
ment relative thereto, equity will give relief upon the ground
of mistake, either where the quantity falls short of or exceeds
the quantity intended to be conveyed.^ But no liability
exists, either at law or in equity, where the sale is in gross ; *
consequently in the latter instance, while a promise to make
up the deficiency, or pay for the excess of lands conveyed,
would not be void because within the statute, yet it would
be of no validity because not supported by a consideration.
A parol agreement to pay an increased price for land upon a
certain contingency, as, if coal is found in it, is held to be
within the statute.® So is a contract to reconvey and divide

of the purchase-money, and received Va. 347 ; Cravens v. Riser, 4 Ind. 512 ;

a deed of the farm which conveyed a Keytonw. Crawford, 5 Leigh. (Va.) 39;

less number of acres. In suit by S Metcalf v. Putnam, 9 Allen (Mass.)

against E on his parol guaranty, it 100.

was held that he could recover, the * Zeringue v. Williams, 15 La. An.

statute having no application to such 76 ; Dalton «. Kust, 22 Tex. 133 ;

a case. Clark v. Carpenter, 19 N. J. Eq. 328.

1 Cleaveland o. Rogers, 1 A. K. But see Grundy v. Grundy, 12 B. Mon.
Mar. (Ky.) 193 ; Bell v. Thompson, (Ky.) 269, where it was held that
34 Ala. 633 ; Kelley V.Allen, 34 id. 193. equity would relieve where the defi-

2 Seward v. Mitchell, 1 Coldw. ciency is great, although the land
(Tenn.) 87. was not sold by the acre.

« Hendricks v. Mosby, 3 Yerg. ^ Heth a. Woolridge,6 Band (Va.)
(Tenn.) 74; Nichols «. Cooper, 2 "W. 606.

410 STATUTE OF PEAUDS. [CHAP. VI.

the increase of price, if the grantor can find a purchase at
an increased price within a year.^ But in North Carolinai^
where a debtor conveyed lands to his creditor under a parol
agreement that the latter should resell the land, and after
reimbursing himself, pay over the balance to the debtor, was
held not to be within the statute.

Sec. 224. Contract to Sell Lands. — A contract to sell lands
for another, for a certain sum or upon commission, is not
within the statute ; ^ but while it has been held in Tennes-
see * that a parol contract between the owner of a land-war-
rant and a locator, that the latter shall have a portion of the
land for locating the warrant, is not within the statute,* yet
the only ground upon which this doctrine can be sustained is
that the parties thereto become partners in the land, and that
the land was given, not as compensation for the services of
the locator, but as his share of the joint venture, and, that
an agreement to pay a person in lands for his services in sell-
ing other land is within the statute as much as any other
contract for services to be so compensated.* In a California
case,'' the defendant orally agreed with the plaintiff to give
him a certain portion of the purchase-money, and also a cer-
tain piece of land, for his services in effecting a sale of the
defendant's land. The court held that the portion of the con-
tract relating to the land to be given to the plaintiff being
within the statute, the whole contract was void, and that no
action could be maintained for the money.*

1 Ballard v. Bond, 32 Vt. 355. See ^ An agreement to procure a con-
S. P. Dyer v. Graves, 37 id. 369. veyance of lands is held, in Iowa, not

2 Massey «. Holland, 3 Ired. (N. C.) to be within the statute. Bannon t.
L. 137. Bean, 9 Iowa, 395. In Vermont a

8 Lesley v. Rosson, 39 Miss. 368; contract by the vendee of lands to

Watson V. Brightwell, 60 Ga. 212. reconvey and divide the increase of

* Davis V. Walker,4 Hayw. (Tenn.) price if the vendor can find a pur-

295. chaser at an increased price within a

^ See also Miller v. Roberts, 18 year, is held to be within the statute.
Tex. 16, where it was held that an ' Fuller v. Reed, 38 Cal. 99.
agreement between A and B that if ^ Holding that a contract partly

B would remove A and his family within the statute is invalid in toto.

from Tennessee to Texas, B should See Hobbs v. Wetherwax, 38 How.

have one-half of all the land which Pr. (N. Y.) 385.
A should acquire by such immigra-
tion and settlement, was not within
the statute.

SEC. 225.] INTEREST IN LANDS. 411

Sec. 225. Land-Warrants, Possessory Rights, etc. — The sale
of an unlocated land-warrant or land-certificate is not within
the statute, and may be made by parol ; ^ and the same has
also been held as to a parol assignment of a title bond,^ and
to the parol transfer of a certificate of the entry of a certain
tract of land,* or of a judgment constituting a lien on land.*
But a "possessory right," or a right acquired by actual occu-
pancy, is an interest in land, and although the party has no
legal or equitable title beyond that acquired by being in pos-
session, as a "squatter's right "is an interest in land and can-
not be sold by parol,^ so is a right to dig and carry away ore
from the mine of another,^ as coals,''' or a mining claim,^ or
any possessory right in lands.® This is upon the ground that
possession in the case of real estate, as in respect to chattels,
is prima facie evidence of title, and as is stated in a case pre-
viously cited,i° " no title is complete without it." Under this
rule it is held in Connecticut ^^ that a verbal agreement made at
the delivery of a deed, that the grantee shall not take posses-
sion nor record his deed until he has paid the first instalment
of the purchase-money, is an agreement relating to an interest
in land, and within the statute ; and the same rule prevails
in those States where by law the mortgagee may enter before
condition broken, as to a verbal agreement on his part not
to enter until there has been a breach of the condition,^^ un-
less, from the language used, an agreement that the mortgagor
shall retain possession until breach of the condition is fairly
implied, in which case such verbal agreement is only auxil-

1 Cox V. Bray, 28 Tex. 247. Supp. {N. Y.) 129 ; Rice v. Eoberts,

" Bullion V. Campbell, 27 Tex. 653. 24 Wis. 461 ; Sutton v. Sears, 10 Ind.

8 Reed v. McGrew, 5 Ohio, 275. 223; Whittemore v. Gibbs, 24 N. H.

< Winbeny o. Koonoe, 83 N. C. 484 ; Smart v. Harding, 15 C. B. 652 ;

351. But the interest acquired by an MiranviUe v. Silverthorne, 1 Grant's

execution purchaser cannot be sold Cas. (Penn.) 410.

verbally. Whiting v. Butler, 29 Mich. i" Howard v. Easton, ante.

122. " Gilbert v. Bulkley, 5 Conn. 262.

6 Hayes v. Skldmore, 27 Ohio St. ^ Norton v. Webb, 35 Me. 218 ;

331. Colman v. Packard, 16 Mass. 39. But

s Riddle v. Brown, 20 Ala. 412. the latter case was overruled by Wales

' Lear v. Chateau, 23 El. 39. v. Mellen, 1 Gray (Mass.) 512, upon the

* Copper &c. Co. v. Spencer, 25 ground that this rule does not apply

Cal. 18. where there is an implied agreement

5 Howard v. Easton, 7 John. (N. Y.) that the mortgagor shall retain posses-

205 ; Lower ;;. Winters, 7 Cow. (N. Y.) sion imtil breach of the condition.

263; Onderdonk v. Lord, Hill & D.

412

STATUTE OF FEAUDS.

[chap. VT.

iary to that implied, and gives the latter no additional force.^
In an English case^ there is a dictum to the effect that a mere
agreement to relinquish possession might, not amount to a
contract for an interest in land ; but as the question did not
arise in that case, and as the expression of Paeke, B., did
not amount even to an expression of an opinion that such
a rule would be adopted if the question was before the
court, it cannot be regarded as lending any authority to a
doctrine contrary to that expressed swpra.^ Where the title
has once passed by the execution and delivery of a valid deed,
it is held in some of the States that the title cannot be recon-
veyed to the grantor by parol, nor, although the deed has
never been recorded, by a destruction or cancellation of the
deed.* But the rule is otherwise where the deed is held in
escrow, and the condition upon which it was to be delivered
to the grantee has not been performed.^ But in some of the

1 Wales V. Mellen, ante.

a Buttennere v. Hayes, 5 M. & W.
465.

' Smart v. Harding, ante; Smith
17. Lambs, 3 Jut. 72.

* Gilbert v. Bulkley, ante; Bats-
ford V. Morehouse, 4 Conn. 550 ; Coe
V. Turner, 5 id. 86 ; Hine u. Robbins,
8 id. 347; "Washington v. Ogden, 1
Black. (U. S.) 450; Eaynor u. Wil-
son, 6 Hill (¥. Y.)469; Kearsing v.
Killian, 18 Cal. 491 ; Girgins v. Van
Gorger, 10 Mich. 523; Morgan v.
Elam, 4 Yerg. (Tenn.) 375; Chess-
man V. Whittemore, 23 Pick. (Mass.)
231; Parker v. Kane, 22 How. (U. S.)
1; Cravener v. Bowser, 4 Perm. St.
257; Holmes u. Trout, 7 Pet. (U. S.)
171 ; Rogers v. Rogers, 53 Wis. 36 ;
Taliafero «. Ratton, 34 Ark. 503;
Jeffers u. JefEers, 35 Ohio St. 119;
Schutt V. Large, 6 Barb. (N. Y.) 373.
In Orth V. Jennings, 8 Blackf . (Ind. )
420, A sold and conveyed a tract of
land to B. Afterwards A purchased
back the land from B, paid him for
the same, and took possession ; B, at
the same time, delivering up to A, to
be cancelled, the deed which had been
executed to him by A, and which had
not been recorded. No conveyance
was executed by B to A. It was held

that the legal title to the land re-
mained in B. It was held also that
judgment rendered against A, after
said deed was delivered up to him to
be cancelled, was not a lien on the
land. Schaffer v. Fithian, 17 Ind. 463 ;
HinchelifE v. Hinman, 18 Wis. 130 ;
Bogie V. Bogie, 35 id. 659 ; Parker v.
Kane, 4 id. 1 ; Wilke v. Wilke, 28 id,
296 ; Hilmart v. Christian, 29 id. 104.
The tearing off of the names of the
grantors in a deed, with, the mutual con-
sent of all the parties, will not operate
to revest the title, although done un-
der the supposition that such will be
the effect. Steel v. Steel, 4 Allen
(Mass.) 417. Nor does the cancella-
tion of a deed by consent of parties
divest the grantee of an estate once
vested. Thus, title to lands vested
in a married woman by an unrecorded
deed cannot be divested by her parol
consent that such deed may be can-
celled, and a conveyance made by her
grantor to her husband. Wilson v.
Hill, 13 N. J. Eq. 143.

6 Shep. Touch. 59; Bushnell v.
Passmore, 6 Mod. 217; Jackson t'.
Sheldon, 21 Me. 569; White v. Bailey,
14 Conn. 271 ; Shirley v. Ayres, 14
Ohio, 807 ; Hinman v. Booth, 21 Wend.
(N. Y.) 267; Coe v. Turner, 5 Conn.

SEC. 225.]

INTEREST IK LAIHJS.

413

States it is held that where a deed has not been recorded, the
grantee by delivering up the deed to the grantor and cancelling it,
revests the estate in him,^ where the transaction is fair, and
the intent of the parties to revest the estate is clear,
and the redelivery and destruction of the deed takes place
before the grantee has entered into possession under the deed, as
thereby Ids inchoate title is destroyed, and the grantor is left
in possession under his former title.^ But where the grantee
has entered into possession under the deed, the title cannot
be revested in the grantor by a mere redelivery and cancel-
lation of the deed to him,^ nor when the rights of third par-
ties have intervened,* or a mortgage given for the purchase-
money is outstanding.^ Under the rule that an equitable
interest in land cannot be conveyed by parol, it is held that
an interest in an executory contract for the purchase of a
specific piece of land can only be made in writing.® But
where a person merely has a refusal of a certain tract of
land, an agreement to find a purchaser for it has been held
valid although not in writing.'^

92 ; Kuggles v. Lawson, 13 John. (N.
y.) 285; Russell v. Rowland, 6 Wend.
{N. Y.) 666.

1 Mallory v. Stodder, 6 Ala. 801;
Holbrook v. Tirrell, 9 Pick. (Ma^s.)
105 ; Foulks v. Burns, 2 N. J. Eq. 250 ;
Nason v. Grant, 21 Me. 160 ; Patter-
son V. Yeaton, 47 id. 314; Dodge v.
t)odge, 33 N. H. 487; Sherburne v.
Fuller, 5 Mass. 133 ; Trull v. Skinner,
17 Pick. (Mass. ) 213 ; Lamson v. Ward,
1 N. H. 9; Parrar o.Parrar, 4 id. 191.

2 Lamson W.Ward, IN.H. 9. Where
the grantee enters into the actual oc-
cupation and improvement of the
premises under his deed, but does
not record it, the title cannot be re-
vested in the grantor, by the delivery
back of the deed, for one purpose, and
yet remain in the grantee for another ;
and if the grantee consents to the de-
livery back of such unrecorded deed
to the grantor, for the purpose of
having security given by mortgage
for a portion of the consideration
money remaining upaid, no author-
ity is thereby given to the grantor
to make an absolute conveyance of
the estate. Hall v. McDuff, 24 Me. 311.

' Chessman w.Whittemore, 23 Pick.
(Mass.) 231; Steel u. Steel, 4 Allen
(Mass.) 417 ; Howe v. Wilder, 11 Gray
(Mass.) 267; Garver v. McNulty, 39
Penn. St. 473 ; Lawrence v. Stratton,
6Cush. (Mass.) 103; Mallory «. Stod-
der, 6 Ala. 801 ; Morgan v. Elam, 4
Yerg. (Tenu.) 375. But see Cone v.
Dudley, 10 Mass. 403, contra.

* Hall V. McDufE, 24 Me. 311 ; Na-
son V. Grant, 20 id. 160. Trull v.
Skinner, ante ; Marshall v. Pisk, 6
Mass. 24 ; and in any event a man
may show his incapacity to vacate
his deed. Doe u. Dignowitty, 12
Miss. 57.

^ Patterson v. Yeaton, 47 Me. 308.

6 Smiths. Bumham,3 Sum. (U.S.)
435; Whiting v. Butler, 29 Mich. 122;
Hughes V. Moore, 7 Cranch (U. S.)
176; Richards v. Richards, 9 Gray
(Mass.) 313; Simms v. IfilUan, 12
Ired. (N. C.) 252 ; Toppin v. Lomas,
16 C. B. 145; Grover v. Buck, 34
Mich. 519; Daniels w. Bailey, 42 Wis.
566.

' Hosford u. Carter, 10 Abb. Pr.
(N. Y.) 452.

414 STATUTE OF FRAUDS. [CHAP. VI.

Sec. 226. instances of Contracts -which are Within the Stat-
ute.— An agreement to establish the title to land,! Qp ^^
release a covenant running with the land, ^ or an agreement
to execute an agreement to sell at some future time,^ or a
parol agreement to purchase land* are all within the statute.
But, unless expressly made so by statute, such contracts are
not void, but only voidable, and unless the party against
whom it is sought to be enforced sees fit to object upon that
ground, the court will not refuse to enforce it simply because
it is verbal.^ A contract to abate a tenant's rent is within
the statute.^ So is an agreement that an arbitration shall
determine as to a lease to be granted,^ and an agreement by a
beneficed clergyman to permit the profits of his living to be
received by a trustee for the benefit of creditors.^

Sec. 227. Eq-ultable Interests. — An agreement to convey an
equity of redemption will .not be binding unless in writing,
for the equity of redemption is considered to be an interest
in land.^ "It must be admitted," said Rolfe, B.,!" "that no
agreement to convey an equity of redemption would be bind-
ing, unless in writing, because a court of equity treats the
equity of redemption as the land itself — at all events, as an
interest in land." This rule has been extended to contracts

1 Bryan v. Johnson, 7 Mo. 106 ; ' O'Connor u. Spaight, 1 Sch. &
Duvall V. Peach, 1 Gill. (Md.) 172. Lef. 306.

2 BUss V. Thompson, 4 Mass. 488. ' Walters v. Morgan, 2 Cox, 369.

' Gould V. Mansfield, 103 Mass. ^ Alchin u. Hopkins, 4 M. & Sc.

408; Sands v. Thompson, 43 Ind. 18; 615; 1 Bing. (N. C.) 99.

Yates V. Martm, 1 Chand. (Wis.) 118; » Massey v. Johnson, 1 Ex. 255;

Ledford u. Farrell, 12 Ired. (K C.) Toppin i;. Lomas, 16 0. B. 145; Bur-

285 ; Lawrence v. Chase, 54 Me. 196 ; net v. Dougherty, 32 Penn. St. 371 ;

Trammell v. Trammell, 11 Eioh. (S. Eichards v. Richards, 9 Gray (Mass.)

C.) L. 471; White v. Coomhs, 27 Md. 313; Hogg v. Wilkins, 1 Grant's Cas.

489. Or a parol agreement to con- (Penn.) 67; Holmes v. Holmes, 86

vey. Taintor v. Brockway, 1 Root N. C. 205; Eawdon v. Dodge, 40

(Conn.) 59; MacKuhbin v. Clarkson, Mich. 697; Cowles u. Marble, 37 Mich.

5 Minn. 247; Thompson w. Elliott, 28 158; Scott v. McFarland, 13 Mass.

Ind. 55. 309; Marble v. Marble, 5 N. H. 374;

* Doe V. Cochran, 2 111. 209; Kelley u. Stanberry, 13 Ohio, 408;

Minus V. Morse, 15 Ohio, 568; Sims Van Keuren v. McLaughlin, 19 N. J.

V. Hutchins, 16 Miss. 328. Eq. 187; Clark v. Condit, 18 id. 358;

« Nelson v. Forgey, 4 J. J. Mar. Odellw. Montrose, 68 N. Y. 499; Agate

(Ky.) 569; Doe f. Cochran, ante. In v. Gignough, 1 Bob. (N. Y.) 278;

Pennsylvania parol executory con- Hughes «. Moore, 7 Cr. (U. S.) 176.

tracts for the sale of land, are not But contra, see Danforth v. Lowry,

void. Abell v. Douglass, 4 Den. (N. 3 Hayw. (Tenn.) 61.

Y.) 305. 10 Massey v. Johnson, 1 Exchq. 253.

SBC. 229.] INTEREST IK LANDS. 415

for the sale of executory agreements for the sale of land,
because it is a contract for the sale of an equitable interest in
land}

Sec. 228. Agreement to make Mutual 'Wills devising Real
Estate. — A devise at common law is considered in the nature
of a conveyance by way of appointment ^ of particular lands
to a particular devisee, and in this respect differs from the
civil law, by which a will is an institution of the heir. A
will, devising lands, transfers the title and passes the property
of lands or goods as effectually as a deed,* and a person
taking lands under a devise is treated as coming under the
legal definition of one who takes by purchase ; * consequently
a parol agreement between two parties that each will make a
will of his or her real estate and personal chattels in favor of
the other, and that neither shall alter such will, is within the
fourth section of the statute of frauds, and the fact that the
wills were executed by both parties in conformity with such
agreement, but one of them afterwards made another will,
and died, the survivor, however, not changing his will, is not
such a part performance as takes the agreement out of the
statute so as to warrant a specific performance in equity .^

Sec. 229. Agreements for the Exchange or Partition of Lands.

— An agreement by parol for the exchange of lands is within
the statute.^ But where the exchange is carried into effect
by a mutual change of possession, and the parties continue
in such possession for a long time, making changes and im-
provements thereon, a court of equity would hold it to be
binding upon the parties ; and in Pennsylvania under such
circumstances it is treated as valid at law, the custom in that
State being for courts of law to administer equity through

1 Stoky, J., in Smith v. Burnham, * Gould v. Mansfield, 103 Mass.
3 Sum. (TJ. S. C. C.) 435 ; Whitney v. 408 ; Hander v. Hander, 2 Sandf . Ch.
Butter, 29 Mich. 122 ; Grover a. Buck, (N. Y.) 17; Caton v. Caton, L. K. 1
34 id. 519; Simms v. Killian, 12 Ired. Ch. 137.

(N. C.) 252; Daniels v. Bailey, 43 « Lane r. Shackford, 5 N. H. 130;

Wis. 566; Richards v. Richards, 9 Newell u. Newell, 13 Vt. 24 ; Maydwell

Gray (Mass.) 313; Tappin v. Lomas, v. Carroll, 3 H. & J. (Md.) 361; Clark

16 C. B. 145. V. Graham, 6 Wheat. (U. S.) 577;

2 Harwoodt). Goodright, Cowp. 87. Lindsley v. Coates, 1 Ohio, 243; Stark
8 Shepherd's Touch, 402. v. Cannady, 3 Litt. (Ky.) 399.

* Watkins on Descents, 155.

416 STATUTE OF TEAUDS. [CHAP. VI.

the forms of law.^ Thus in the case first cited in the pre-
ceding note,^ the parties by parol mutually agreed to ex-
change lands, and in pursuance thereof each party entered
into possession, and occupied undisturbed nineteen years,
when the plaintiff brought ejectment for the lands so occu-
pied by the defendant. The court held that such exchange,
accompanied by such a long-continued and exclusive change
of possession, operated to transfer the title, and was not within
the statute. " It is true," said Agnew, J., " there is no dif-
ference between a parol sale and an exchange in regard to
the requisites to take it out of the statutes of frauds and
perjuries. A clear, explicit, and unambiguous contract, and
a taking of possession under and in pursuance of the con-
tract, are as much requisites of a parol exchange as of a sale.
But there is a marked difference in the evidence which estab-
lishes the possession. A sale is confined to a subject coming
fi'om a single side. It has no relation to, or dependence on,
any other subject. The evidence of possession taken of it is
therefore confined to the single subject, and if not taken in a
reasonable time, or so as to make it doubtful whether it is
attributable to the contract, the parol sale is not taken out of
the statute. But an exchange necessarily has a subject on
each side which stands related to the other. One is the rep-
resentative of the other, so much so that the law implies a
contract of warranty by the act of exchanging. If, there-
fore, the evidence shows a clear, unequivocal, and complete
taking possession of one of the subjects of an exchange, by
the party owning the other subject, it strengthens the evi-
dence of a possession taken by the opposite party of the
correspondiag subject. Evidence of possession that might
seem weak and inconclusive in the case of a parol sale, is
thus made clear and convincing in the case of an exchange."
It must be remembered, however, that the doctrine expressed
in this case is peculiar to Pennsylvania and the equitable
powers of its courts, and that in the other States, while such a
contract under similar circumstances would doubtless be held
binding in a court of equity, it would not be treated as valid
in a court of law, unless the occupancy had continued for the

1 Moss V. Culver, 64 Penn. St. 614 ; Reynolds v. Hewett, 27 Penn. St. 176.
Miles V. Miles, 8 W. & S. (Penn.) 135; ^ jiqss v. Culver, ante.

SBC. 229.] INTEREST IN LANDS. 417

period requisite to acquire title by adverse possession.^ In a
New York case,^ B and H verbally agreed to exchange real
estate, B to pay H 1500 as the difference in value. B gave
a check for that amount in payment, receiving therefor a
receipt signed by H. In an action on the check, which was
lost, there was parol proof that it specified the lands, the
price of each piece, and the amount of the mortgages to be
executed, but it did not appear that the terms of credit were
specified. B refused to enter into the written contract, and
stopped payment of the check. It was held that the bur-
den was upon B to show a failure of consideration ; that the
receipt and check, taken together, showed a good considera-
tion for the check, and a sufficient memorandum so that the
contract was valid under the statute of frauds, and enforce-
able in equity against H. At the common law, partitions
of land could be made by joint-tenants only by deed, and
by tenants in common only by livery, without deed, and by
coparceners by parol only, without deed or livery,^ but by the
statute of frauds such partition cannot in any of these cases
be effected without writing.* But in several of the States it

1 Stark V. Cannady, 3 Litt. (Ky.) 2 vol. 324, assigns the reason for the
399 ; Roberts on Frauds, 285. validity of a partition at common law,

2 Raubitschek v. Blank, 80 N. Y. though made by word of mouth alone.
478. But the reason given by Hawkins, in

s Roberts on Frauds, 283; Litt. his Abridgment of Coke Litt. 250,

250 ; Whaley v. Dawson, 2 Sch. & L. seems to be more satisfactory, " that

367 ; Johnson v. Wilson, Willes, 248 ; partitions between parceners were

Ireland v. Rattle, 1 Atk. 541. much favored and privileged, because

* Porter v. Hill, 9 Mass. 34 ; 4 their undivided estate was created
Greenl. Cruise, 77 ; Perkins v. Pitts, and cast on them merely by act of
11 Mass. 125. There are some cases law." Partitions, therefore, between
in which a different view has been parceners, might at law be made by
adopted, and it has been said that parol; and what more particularly
a joint-tenancy may be severed marked this favor of the law towards
like a tenancy in common. Haugha- them, rent, estovers, and such like in-
baugh V. Honald, 1 Tread. (S. C.) 90. corporeal things, might, upon such
But this appears to be mere dictum, partition, be reserved or granted for
and certainly exhibits a misconception equality of division without deed or
of the law by the court. Joint-ten- writing, notwithstanding they lay in
ants and tenants in common were not grant only, which was a privilege with-
compellable among themselves to out a parallel in the law. But then
make partition until the 31 H. 8, c. 10, such reservation or grant ought to be
and 32 H. 8, i;. 32, gave a remedy for out of the lands descended, and not
enforcing it ; but parceners were al- out of other lands, and the rent so re-
ways at common law subject to a served or granted was distrainable of
coercive partition by the writ de parti- common right though it was not a
tione /acienda ; to which Blackstone, rent-servioe.

418

STATUTE OF FEAUDS.

[chap. vr.

is held that verbal partitions between tenants in common are
Valid at law, at least for some purposes, as in New York,i
Illinois,^ Mississippi,^ Texas,* Indiana,^ Pennsylvania,^ and

Joint-tenants, by reason of the par-
ticular nature of their estate, which is
held by them in perfect unity, each
being seized in tlie language of the
law per my et per tout, cannot enfeoff
each other of their respective parts of
the land, for each already holds all
the land subject to the interest of his
companion, and the conveyance by
livery of seizin cannot apply to one
who is already in possession ; neither
can they surrender to each other, even
though he is only tenant for life who
attempts to make the surrender, and he
who atteoips to take the surrender, be
tenant in fee simple of his part. Though
it is true that if there are two joint-
tenants, and one of them have the
particular estate, and the other the
fee simple, as where the estate is lim-
ited to two, and the heirs of one of
them, and he that has the estate for
life, aliens his part to a stranger, the
alienee may surrender to the other
joint-tenant ; or if there are three
joint-tenants for life, and the fee sim-
ple is limited to the heirs of one of
them, and one of the joint-tenants for
life releases to the other, and he to
whom this release is made surrenders
to him who has the fee simple, this- is
a good surrender for a third part. Vid.
Perk. §§ 586, 587. The proper me-
dium of mutual translation of each
other's parts is a release, the reason of
which easily occurs by adverting to
the nature of their estate. But, on
the other liand, as tenants in common
have several and distinct freeholds,
they may enfeoff each other, but can-
not release to each other, for a release
supposes the party to have the thing
in demand, Co. Litt. 193, 200, J., and
the estates having come to them by
distinct liveries, must pass to each
other by distinct liveries. But if one
joint-tenant grants, bargains, and sells,
or gives, grants, and confirms his es-
tate to his companion, either of these
may operate in law as a release. 1

Ven. 78; 1 Sid. 452. And if there are
three joint-tenants, and one of them
releases to one of the other two, in
such cases there is no need of any
limitation of the estate, for the release
is good without it. Shep. Touch. 324.
At common law, therefore, one tenant
in common might convey to his com-
panion by parol with livery of seizin,
but not so a joint-tenant.

It seems, therefore, to be an inad-
vertence upon Blaokstone's part
when he says, that in the case of joint-
tenants and tenants in common, the
conveyance must have been perfected
by livery of seizin ; for which he cites
the text of Littleton, § 250, and Co.
Litt. 169. The words of Lord Coke
are: "A partition by joint-tenants is
not good without deed, but tenants in
common may make partition by parol,
and if they execute the same in sever-
alty by livery, this is good and suffi-
cient in law; and therefore when the
books say that Joint-tenants may make
partition without deed, it must be intend-
ed of tenants in common, and executed
by livery." It seems now, however, to
be clear that the statute has made it
necessary, both with respect to tenants in
common and coparceners, that a partition
of their lands must be effected by writing,
and that among joint-tenants a deed
is necessary as it stood at the common
law. Roberts on Frauds, 284.

1 Wood V. Fleet, 36 N. Y. 499;
Jackson v. Bradt, 2 Cai. (N. Y.) 169;
Ryass ■„. Wheeler, 25 Wend. (N. Y.)
434 ; Jackson v. Harder, 11 John. (N.
Y.) 202 ; Jackson v. Vosburgh, 9 id.
270.

2 Grimes v. Butts, 65 111. 347;
Shepard v. Rinks, 78 id. 188.

' Natchez v. Vanderudde, 31 Miss.
706 ; Piper v. Buckner, 51 id. 848.

* Stuart V. Baker, 17 Tex. 417;
Dement v. Williams, 44 id. 158.

6 Moore v. Kerr, 46 Ind. 468.

^ Long's Appeal, 77 Penn. St. 151.

SEC. 229.] INTEREST IN LANDS. 419

Wisconsin,^ but even in these States the partition must be
followed by possession, and in most of them by such acts
of occupation as would be suificient to secure a decree for
specific performance in equity. In Maine,'* North Carolina,^
New Jersey,* Massachusetts,^ New Hampshire,^ and South
Carolina,^ such partitions are held to be invalid at law unless
followed by an adverse possession for the requisite statutory
period, although, even where the possession is for a less
period, the parties may acquire an equitable right which
will be enforced in equity.® In Missouri it is held that a
parol partition between tenants in common is good as be-
tween the parties, but that only the equitable title passes,
I » and that this does not ripen into a legal title except when
followed by adverse possession for the requisite period.^ In
California ^^ it is held that a parol partition of lands of such
a character that possession cannot follow, is void, and upon
the general question practically the same rule exists as in
Missouri,!! ^nd such also is the rule in Alabama.!^ Thus, in
the case last cited it was held that where A and B make
an oral partition of lands, the legal title to which is in B,
and take possession accordingly, A has no defence in an
action brought by B to recover the land, unless his pos-
session has been for such a length of time as to acquire a
title by adverse possession, but that he has an equitable right
which is not bound by a judgment recovered by B. It has
been held that a partition of an equitable estate may be made

1 Buzzell 0. Gallagher, 28 Wis. 678. Marcy v. Marcy, 6 Met. (Maes.) 360;

" Duncan u. Sylvester, 16 Me. 388; Dow v. Brown, 5 Cush. (Maes.) 289;

John V. Sabbatis, 69 Me. 473; Che- Moore ti. Kerr, 46 Ind. 468; Duncan

nery ». Dole, 39 id. 162. v. Sylvester, 16 Me. 388 ; Hazen v.

^ McPherson v. Seguine, 3 Dev. Barnett, 50 Mo. 506 ; Pringle v. Stur-

(N. C.) L. 153; Medlin v. Steele, 75 geon, Litt. (Ky.) Sel. Cas. 112; Moore

N. C. 154. V. Kerr, 46 Ind. 468 ; Polhemus v.

« WoodhuU V. Longstreet, 18 N. Hodson, 19 N. J. Eq. 63.

J. L. 405; Watson v. Keely, 16 id. » Hazen v. Barnett, 50 Mo. 506.

517 ; Lloyd v. Conover, 25 id. 47 ; In Bourgeoise v. Blank, 8 Mo. App.

Richmau u. Baldwin, 20 id. 896. 484, it was held that a parol partition

* Porter v. Hill, 9 Mass. 34 ; Por- followed by long-continued possession

ter V. Perkins, 5 id. 233. will not be set aside.

6 Ballou V. Hale, 47 N. H. 347. i» Lanterman v. Williams, 55 Cal.

' Goodhue !>. Barnwell, Eice(S.C.) 60.

Eq. 198. " Gates v. Salmon, 46 Cal. 361.

8 Woodhull V. Longstreet, ante; ^^ Yarborough v. Avant, 66 Ala.

Townsend v. Dawson, 32 Vt. 183; 526.

420 STATUTE OP PEATJDS. [CHAP. VI.

by parol ; ^ but this doctrine is opposed to that' which holds
that an equitable interest is within the statute, and is unten-
able, except in those States where courts of law either by-
statute or custom administer equity, and then only in those
cases where the partition has been followed by such acts as
would warrant a decree for a specific performance of the con-
tract. Indeed, where a parol partition has been made in any
case, and the parties have entered into possession under it,
and made extensive improvements, or done other acts which
equity regards as sufficient to compel a specific performance,
such partitions will be held good in equity.^ In the case of
the proprietors of townships, or of common and undivided
land, holding by grant from the sovereign, it is held that »
they may make partition hy vote merely ; ^ but this doctrine
is exceptional, and can only be supported upon the ground
of public necessity, and a custom, a departure from which
would work great mischief in unsettling and overturning
the title to lands in that section of country where this
species of grants existed.

Sec. 230. Disputed Boundaries. — The settlement of dis-
puted boundaries by adjoining owners, by parol, followed
by the erection and maintenance of fences in accordance
therewith, or an actual occupancy by the adjoining owners
up to the line as agreed upon, during the period requisite to
acquire title hy possession, will be operative to confer an inde-
feasible title ; * but at law, in the absence of fraud, it is held
in some of the States that such an agreement, though fol-
lowed by long-continued occupancy under it, but short of

1 Maul V. Rider, 51 Penn. St. 377 ; ' Codman v. "Winslow, 10 Mass.
Daw V. Jewell, 18 N. H. 340. 146; Springfield v. MiUer, 12 id. 415;

2 Rhine v. Eobinson, 27 Pcnn. St. Polger v. Mitchell, 3 Pick. (Mass.)
30 ; Bussell v. Gallagher, 28 "Wis. 396 ; Cobum v. Elmwood, 4 N. H. 99 ;
678 ; Weed v. Terry, 2 Doug. (Mich.) Stiles v. Curtis, 4 Day (Conn.) 328 ;
344; Young t). Frost, IMd. 377; Good- Corbett v. Norcross, 35 N. H. 99;
hue V. Barnwell, Eice (S. C.) Eq. 198 ; Abbott v. Mills, 3 Vt. 521 ; Thorndike
Cummins v. Nutt, Wright (Ohio) 713; v. Barrett, 3 Me. 380; Gary v. Whit-
Sweeney «. Miller, 34 Me. 388; Mc- ney, 48 id. 526.

Mahont). McMahon, 18Penn. St. 376; * Jones v. Smith, 64 N. Y. 180;

Ehodes v. Prick, 6 Watts (Penn.) 315; Boyd v. Graves, 4Wheat. (TJ. S.) 513;

Ebert v. Wood, 1 Binn. (Penn.) 216; Davis w. Judge, 46 Vt. 655; Wakefield

Calhoun v. Hays, 8 W. & S. (Penn.) v. Eoss, 5 Mass. 16 ; Moody w. Mchols,

127 ; Galbreath v. Galbreath, 5 Watts 16 Me. 23.
(Penn.) 146.

SEC. 230.J INTEREST IN LANDS. 421

the statutory period, has no v<alidity, and although good as a
license to protect the parties from liability in trespass, it is
no defence in an action of ejectment.^ But the rule is other-
wise where the line is settled by referees under a rule of
court,^ or under an award of arbitrators when the submis-
sion is in writing.* But in some of the States it is held that
a parol agreement fixing a dividing lin^j which is in dispute,
and ascertaining its position, with poss^gsion immediately fol-
lowing, is conclusive upon the parties, and cannot be con-
troverted upon the ground that it is' within the statute of
frauds,* because in such cases no title is conveyed, but the
parties merely fix upon the true limits of their grant, and
from that time hold up to such agreed line, under their
deeds,* and a line so established cannot be disturbed except
upon the ground of fraud or mistake.® But in order to give
effect to such an agreement the line must he in dispute^ and
if it is a mere attempt to set up a new line in place of the
original, which is not in dispute, it will have no validity
unless in writing.* The agreement must also be between
the owners of the land at the time, and,> an agreement in that
respect made by one who at the time was only an occupant
is not binding upon him, although he subsequently becomes
owner.' Jj

1 Eaynor «. Timerson, 51 Barb. (N. 25 Ohio St. 115; Blair v. Smith, 16
Y.) 517 ; Reed u. Farr, 35 N. Y. 113 ; Mo. 273 ; Turner v. Balcer, 64 id. 218 ;
Proprietors &c. v. Prescott, 4 Allen Lindsay v. Springer, 4 Harr. (Del.)
(Mass.) 22; Talman i'. Sparhawk, 5 547; McNamara k. Seaton, 82 111. 498.
Met. (Mass.) 469; Brewer v. Boston ' Hagey v. Detweiler, 35 Penn. St.
&c. R. R. Co., 5 Met. (Mass.) 478; 409.

Warner v. Fountain, 28 Wis. 405 ; Du- ^ Bailey v. Jones, 14 Ga. 384 ;

pont V. Starring, 42 Mich. 492. In Houston v. Sneed, 15 Tex. 307 ; Coon

such cases, however, it is held that v. Smith, 29 N. Y. 392 ; Colby v. Nor-

the division established is good as a ton, 19 Me. 412 ; Gray v. Convillon,

license until revoked. Dewey jj. Bard- 12 La. An. 7.S0; Avery v. Baum,

well, 9 Wend. (N. Y.) 65; Selliek u. Wright (Ohio) 576.
Adams, 15 John. (N. Y.) 197 ; Palmer ' Nichols v. Lyth, 4 Yerg. (Tenn.)

V. Anderson, 63 N. C. 365; Davis v. 456; Wilson v. Hudson, 8 id. 398;

Townsend, 10 Barb. (N. Y.) 333; Houston u. Matthews, 1 id. 116 ; Boyd

Whitney v. Holmes, 15 Mass. 152. v. Graves, 4 Wheat. (U. S.) 513 ; Vaa-

2 Goodridge o. Dustin, 6 Met. burgh v. Teator, 32 N. Y. 561.
(Mass.) 363. » Miller v. McGlann, 63 Ga. 435.

s Davis V. Henry, 121 Mass. 150. » Crowell v. Maugh, 17 111. 419;

* Grey v. Berry, 9 N. H. 473 ; Orr Lewellen v. Overton, 9 Humph,

V. Hadley, 36 id. 575; Cutler v. Colli- (Tenn.) 76.
son, 72 111. 113 ; Baba v. Richmond,

422 STATUTE OF FEATJDS. [CHAP. VI.

Sec. 231. Dower, Right of, Interest in Lands. — A widow's
right. of dower is an interest in land, within the meaning of
the statute, which cannot be waived, discharged, or released
by parol.^ Thus an agreement by a widow not to claim
dower upon the happening of a certain contingency,^ or of
a person to procure the release of a widow's dower, is within
the statute ; ^ but it is held that a mere assignment of dower
may be made by parol, as the estate is conferred upon the
widow by the act of the law.* Thus in the case last cited,
an agreement by parol between a widow and the heirs as to
the division between them of the rents and profits of a mine,
was held to be valid, as it should be regarded as an assign-
ment of dower.

Sec. 232. Pews in churches. — Pews in churches, being
regarded as real estate, can only be sold by a contract in
writing ; ^ and in the case first cited in the last note it was
held that an assignment of a certificate of ownership in the
manner provided by the by-laws of the society, if not suf-
ficient under the statute of frauds, will not protect the
assignee against the attaching creditors of the assignor.

Sec. 233. Partnership in Lands. — A partnership constituted
without writing is as valid as one constituted by writing ; ^
and when the partnership is proved to exist, it may be shown
by parol evidence that its property consists of lands,^ and
that it was established for the purpose of buying and selling
lands for speculation.^

1 Wright V. De Graff, 14 Mich. De G. & J. 52; and 1 Lindley on

164; Gordon v. Gordon, 56 N. H. 170 ; Partnership, 3d ed. 90.
Hall V. Hall, 2 McCord ( S. C . ) Eq. 269 ; s Dale w. Hamilton, ante ; Essex v.

Shotwell V. Sedam, 3 Ohio, 5 ; White Essex, ante ; Gibbons v. Bell, 45 Tex.

V. White, 16 N. J. L. 202 ; Finney v. 417 ; Chester v. Dickinson, 54 N. Y.

Finney, 1 Wils. 34 ; Keeler v Tatnall, 1 ; Morrill v. Colehour, 82 111. 618 ;

23 N. J. L. 62. Henderson u. Hudson, 1 Muni. (Va.)

^ Wright t'. De Graff, ante. 510 ; hut see Walker v. Herring, 21

" Martin v. Wharton, 38 Ala. 637. Gratt. (Va.) 678, contra. Dudley v.

* Lenfer v. Henke, 73111.406; 24 Littlefield, 21 Me. 418; Claggett v.

Am. Eep. 263. ICilboume, ante ; TibbettS v. Tibbetts,

6 Barnard w. Whipple, 29 Vt. 401; 6 McLean (U. S.) 80; Ludlow v.

Vielew. Osgood, 8 Barb. (N. Y.) 130. Cooper, 4 Ohio St. 1; Kramer u.

" Essex V. Essex, 20 Beav. 442. Arthurs, 7 Penn. St. 165. In Per-

' Forster v. Hale, 5 Ves. 309 ; Dale sonette «. Pryme, 34 N. J. Eq. 26,

V. Hamilton, 5 Hare, 369; affd. 2 Ph. two owners of land agreed by parol

266 ; but see Caddick v. Skidmore, 2 that the same should be considered

SEC. 234.]

INTEEEST IN LANDS.

423

Sec. 234. Agreement merely Collateral. — An agreement that
is merely collateral to an intended transfer of an interest in
land is not witHn the statute.^ Thus, where the defendant,
on a negotiation for a mortgage, promised to pay the plain-
tiff (the intended mortgagee) his costs of investigating the
title, in case the defendant changed his views, or the title
proved to be bad, it was held that the contract did not relate
to an interest in land.^ So where the plaintiff agreed to hire
of the defendant some grass-land on the terms of a lease to
be signed at some future time, entered upon the land and ,
found it overrun with rabbits, and on the lease being pre-
sented to him for signature, refused to sign it, unless the
rabbits were destroyed, and the plaintiff verbally promised
to destroy them, it was held that the parol agreement was
collateral to the written lease, and was valid.^

Where a contract consists of two collateral agreements,
one only of which relates to an interest in land, then, if that
part of the contract has been executed, the fact of the whole

and conducted as partnership prop-
erty, each contributing equally to
the support of a, widow, whose sup-
port was a charge on the land, and to
the expenses and taxes ; that an ac-
count should he kept of the proceeds
derived from the sale of the produce,
and from the sale of any sand there-
from ; that one owner might lire on
the land, and any advancements for
her support should be charged against
her, and at the death of either a final
account should be taken. On a bUl
for such an account, filed by the ad-
ministrator of one owner, after the
widow's death, it was held that the
agreement was not within the statute.
Evans v. Green, 23 Miss. 294; Bun-
nell V. Tainter, 4 Conn. 568 ; Bruce v.
Hastings, 41 Vt. 380 ; Brown v'. Morris,
83 N. C. 251 ; Trowbridge v. "Wether-
bee, 11 Allen (Mass.) 361.

1 Wetherbee v. Potter, 99 Mass.
454; Essex v. Essex, 20 Beav. 442;
Jeffreys v. Small, 1 Vern. 217; Boyers
V. Elliott, 7 Humph. (Tenn.) 204;
Wells V. Stratton, 1 Tenn. Ch. 328;
Dyer o. Clark, 5 Met. (Mass.) 562;
Howard v. Priest, 5 id. 582 ; Bvirnside

V. Merrick, 4 id. 437; Fall River
Wlialing Co. v. Borden, 10 Cush.
(Mass.) 458; Claggett v. Kilbourne, 1
Black (U. S.) 348 ; Waugh v. Mitchell,
1 Dev. & B. (N. C.) Eq. 510; Mc-
Allister V. Montgomery, 3 Hayw.
(Tenn.) 94; Moderwell v. MuUison, 21
Penn. St. 257 ; Ludlow i.. Cooper, 4
Ohio St. 1 ; Coles v. Coles, 15 John.
(N. Y.) 159; Galbraith v. Gedge, 16
B. Mon. (Ky.) 031 ; Henderson v.
Hudson, 1 Munf . (Va.) 510 ; Hauff v.
Howard, 3 Jones (N. C.) Eq. 44;
Jones V. MeMiehael, 12 Eich. (S. C.)
L. 176; Fairchild v. Fairchild, 64 N.
Y. 471 ; Crawshay v. Maule, 1 Swanst.
495; Smith v. Tarlton, 2 Barb. Ch.
(N. T.) 336; Traphagen v. Burt, 67
N. Y. 30; Black v. Black, 15 Ga. 449;
Shanks v. Klien, 104 (XJ. S.) 18;
Wiegander v. Copeland, 7 Sawyer
(U. S. C. C.) 442.

2 Jenks V. White, 6 Exch. 873; 21
L. J. Ex. 265.

s Morgan v. Griffith, L. E. 6 Exch.
70 ; and see Angell v. Duke, L. E. 10
Q. B. 174 ; Erskine u. Adeane, L. E.
8 Ch. 756.

424 STATUTE OP FEAUDS. [CHAP. VI.

contract not having been in writing will not preclude an
action on the other part, founded on a promise to be per-
formed after such execution. But one contract founded
upon one consideration cannot be bisected, so as to make a
new contract and a new consideration out of one-half.^ In
Mayfield v. Wadsley,^ the occupier of a farm quitted it in
March, and was succeeded in possession by B. A had sown
forty acres with wheat, and it appeared that at a meeting
between A and B in February in the same year, A asked B
if he would take the forty acres of wheat at ^£200, telling
him that if he did not he should not have the farm. B said
that he would take it ; and a person present then valued the
dead stock, and, having so done, asked to whom he was to
value it ; B said that it was to be valued to him, and then
promised to pay A for the wheat and the dead stock on a
given day, and paid a sum of money on account. B after-
wards had possession of the farm, the growing wheat, and
the dead stock. It was held that the contract for the dead
stock was distinct from any contract for the sale of the
wheat and the possession of the farm, and therefore that A
was entitled to recover to that amount.

Sec. 235. Actions in Respect of Void Contracts. — Where a
void contract directly concerning an interest in land has been
executed, an action will lie upon a special promise to be per-
formed after such execution? Where a lessee agreed with
his lessor that if she would accept another tenant in his
place (he being restrained from assigning the lease without
her consent) he would pay her £40 out of £100 which he
was to receive for the good will, and consent was given, and
he received the £100, but refused to pay over the £40, on
the ground that there was no written agreement; it was held
that the lessor might recover the £40 in an action for money
had and received.* Again, where the plaintiff had verbally

1 Hodgson V. Johnson, E. B. & E. Crane v. Gough, 4 Md. 316 ; McCue
689; 28 L. J. Q. B. 88, per Lord v. Smith, 9 Minn. 252; Andrews v.
Campbell. Jones, 10 Ala. 400; Watrons v.

2 3 B. & C. 357. Chalker, 7 Conn. 224 ; Craig v. Van

" Eyan v. Tomlinson, 39 Cal. 639
Stone t). 'Dennison, 13 Pick. (Mass.) 1
Mushat V. Brevard, 4 Dev. (N. C.) 73
Beal 0. Brown, 13 Allen (Mass.) 114

Pelt, 3 J. J. Mar. (Ky) 489 ; Shaw «.
■Woodcock, 7 B. & C. 73; Paul v.
Gunn, 4Bing. (N. C.) 445.

« Griffith V. young, 12 East, 513.

SBC. 235.]

nSTTBREST IN LANDS.

425

agreed with J S for the purchase of houses, and the defend-
ant agreed to give the plaintiff ^640 for his bargain, and the
conveyance was afterwards made by J S to the defendant's
wife at her request ; it was held that the defendant was liable
to pay the £40.i

The plaintiff may, after he has performed his part of the
contract, sue upon an account stated, if after such performance
the defendant has admitted that he is indebted to him in the
amount of the consideration.^ If an agent enters into a con-
tract for purchase, and pays the purchase-money, and pro-
cures a conveyance, his principal cannot, in answer to an
action for money paid to his use, object that the contract was
not in writing as required by the statute.* This rule is well
illustrated in a New York case* in which the plaintiff's

^ Seaman v. Price, 10 Moo. 34 ; 2
Bing. 437; Ey. &-Moo. 195; and see
Cocking V. Ward, 1 C. B. 868 ; 15 L.
J. C. P. 245, overruling Price v. Ley-
burn, Gow. N. P. E. 109; Kelly v.
Webster, 12 C. B. 283 ; Green v. Sad-
dington, 7 E. & B. 503; Sanderson v.
Graves, L. E. 10 Ex. 234.

2 Cocking o. Ward, 1 C. B. 858;
Kelly V. Webster, 12 C. B. 283 ; Smart
V. Harding, 3 C. L. H. 351 ; 15 C. B.
652; 24 L. J. C. P. 76. In Lavery v.
Turley, 6 H. & N. 239, to an order for
goods sold, the defendant pleaded
that he was possessed of a public,
and it was agreed that, in consider-
ation that the defendant would give
up possession thereof the plaintiff
would pay him £100, and discharge
the defendant from the debt. That
plaintiff quit the house and paid the
defendant the £100. The agreement
was not in writing. It was held that
the agreement having been executed
was receivable as evidence to sustain
the plea. Pollock, C. B., said : " The
objection is that the agreement is one
which, by the statute of frauds, is re-
quired to be in writing ; and that
would be so if it were sought to en-
force it as an agreement. But it is
pleaded as a fact that the defendant
performed the agreement, and the
plaintiff accepted such performance
in satisfaction. The objection that
the agreement was not in writing is

got rid of. The 4th section of the
statute of frauds does not exclude
unwritten proof in the case of exe-
cuted contracts. A familiar instance
is that of letting land for a period
longer than three years, where, if the
premises have been occupied, evidence
may be given of the terms of the
holding." Angell v. Duke, L. E. 10
Q. B. 174; Green v. Saddlington, 7
CI. & B. 503 ; Souch v. Strawbridge,
2 C. B. 814; Price v. Leybum, Gow.
109; Leago u. Deane, 4 Bing. 459;
Eemington v. Palmer, 62 N. Y. 31;
Wetherbee v. Potter, 99 Mass. 360;
Jewel V. Bicker, 68 Me. 377 ; Worden
V. Sharp, 56 111. 104; Allen v. Aquire,
7 N. Y. 543 ; Eastman v. Anderson,
119 Mass. '526; Bosford v. Pearson,
9 Allen (Mass.) 387 ; Nutting v. Dick-
inson, 8 id. 540 ; Whitbeck v. Whit-
beck, 9 Cow. (N. Y.) 266; Preble v.
Baldwin, 6 Cush. (Mass.) 549; Page
V. Monks, 5 Gray (Mass.) 492;
Brackett t. Evans, 1 Cush. (Mass.)
79; and see Knowles v. Michel, 13
East, 249; Highmore v. Primrose, 5
M. & Sel. 65.

» Peacock v. Harris, 10 East, 104
Pinchon v. Shilcott, 3 C. & P. 236
Dynes v. O'Neil, Crawf . & D. Abr. 329
Wilson V. Marshall, 2 Ir. R. Ch. 356
Buck V. Hurst, L. E. 1 C. P. 297
Savage v. Canning, 1 Irish, C. L. 434.

* Van Valkenburgh v. Croffut, 15
Hun (N. Y.) 145.

426 STATUTE OF FRAUDS. [CHAP. VI.

father, the plaintiff being then only eleven years old, entered
into a contract with the defendant that the plaintiff should
live with him until he was twenty-one years old. The plain-
tiff was to work for the defendant, and was to be clothed by
him, and sent to school. The defendant also was to take a
calf belonging to the plaintiff, and when the latter attained
his majority, was to deliver him a cow, in lieu of the calf.
There was also evidence of a conflicting character that the
defendant was also to pay the plaintiff when he became of
age, fifty, one hundred, or two hundred dollars, or nothing.
When the plaintiff arrived at the age of twenty-one, the de-
fendant gave him the cow, but refused to give him any
money. The plaintiff thereupon brought an action against
the defendant on a quantum meruit, for the value of his ser-
vices. The court held that the plaintiff having fully performed
the contract on his part, could not repudiate it upon the ground
that it was void under the statute of frauds, and maintain an
action for the value of his services, but was restricted to Ms remedy
upon, and the compensation fixed by, the contract. In speaking of
the effect of performance by the plaintiff and the defendant's
recognition of his contract liability, Laened, P. J., said:
" The contract is no longer liable to any objection under the
statute of frauds. The oral contract was void because not
to be performed within a year. But the party who contracted
to render the service has in fact fully rendered them under
the contract, and the other party has fully accepted them. The
contract, then, has been actually treated by the parties as
valid, until all has been done by the plaintiff which he was
bound to do, and this has been done with the consent of the defend-
ant. He is then liable to pay for the services rendered, ac-
cording to his agreement. The effect of the statute is not
to make a new contract between the parties,^ but, when the
contract has been fully performed upon one side, and its performance
is accepted upon the other, the original contract is re-adopted."
But when there has been a full performance upon one side, and a
refusal to perform upon the other, or performance by the other party
has become impossible, no remedy can be had upon the contract,
but the party must bring an action upon a quantum meruit
in the case of services, or for money had and received in the

1 Galvin v. Prentice, 45 N. Y. ^ xhomas v. Dickinson, 12 N. T.
162. 364.

SEC. 235.] INTEEEST IN LANDS. 427

case of expenditures, or must seek his remedy according to
the nature of his claim ^ for the value of his performance
independent of the contract. Thus in the case last cited
the plaintiff brought an action to recover for certain services
rendered to the defendant under parol agreement that if the
plaintiff would render the services, the defendant would give
him a lease of certain premises for the term of twenty-one
years, but after the services were rendered, the defendant
refused to perform, and the court held that the plaintiff, for
the purpose of showing the value of his services, could not
show the value of the lease, upon the ground that where, in
an action to recover for a complete or partial performance by
the purchaser, upon a contract for the purchase of land or
other property within the statute of frauds, he is not entitled
to recover the value of the land or property contracted for, but
only for the actual value of the services rendered or property
given towards the performance of the contract.^ Where a
person is let into possession of land or other property under a
contract to purchase, in an action to recover for expenditures
which he has made under the contract, his recovery is limited
to the amount of expenditures less the profits he has derived
from the use of the property.^ In other words, he is restricted
in his recovery to his actual loss,* and the value of the land is
not an element to be considered.^ Thus, the plaintiff pur-
chased a certain field of growing grass of the defendant for
the sum of twenty-five dollars, which he paid to him, and
aftei-wards entered upon the land and mowed and carried
away a part of the grass, but while he was mowing the re-
mainder of the grass, the defendant interfered and prevented
him from continuing to cut or harvest it, and the plaintiff
brought an action for the money paid by him for the grass ;
upon the trial the defendant offered evidence of the value of
the grass cut and taken away by the plaintiff, which was re-

1 Erben v. Lorillard, 19 N. Y. Dlx v. Marcy, 116 Mass. 416; Lock-
302. wood V. Barnes, 3 Hill (N. Y.) 128.

2 Shute V. Dorr, 5 Wend. (N. Y.) * Moore v. Small, 19 Penn. St.
204; Bartlett v. Wheeler, 44 Barb. 461; Wilson v. Clark, 1 W. & S.
(N. Y.) 165; Jones v. Hay, 52 Barb. (Penn.) 554; EUet a. Paxon, 2 W. &
(N. Y.) 165. S. (Penn.) 418.

8 Shreve v. Grimes, 4 Litt. (Ky.) ^ Herzog v. Herzog, 34 Penn. St.

220 ; Rucker v. Abell, 8 B. Mon. (Ky.) 418 ; Bash v. Bash, 9 id. 360 ; Malain
566; Richards v. Allen, 17 Me. 296; v. Ammon, 1 Grant (Penn.) 123.

428 STATUTE OF FKATJDS. [CHAP. VI.

jected, but upon appeal the court held that the evidence
should have been received. " The plaintiff," said Dwight,
J., " had received a portion of the property. He cannot main-
tain his action to recover the whole of the purchase-price mthout
making restitution or compensating the defendant for the benefit which
he has had." i

A person who has entered into a parol contract for the
purchase of lands, and who expends money in investigating
the title, cannot recover money so spent.^ But he may re-
cover the deposit and auction-duty as money paid upon a
consideration that has failed.^ Money paid, labor done, or
expenses incurred in the part performance of a contract of a
stipulation thereof within the statute of frauds which the
other party refuses or is unable to perform, may if made in
pursuance of a stipulation of the contract be recovered at law,
in a proper action upon the ground of a failure of the considera-
tion.* The rule is, that if one pays money, renders services, or
delivers property in part or complete performance of a con-
tract which is invalid under the statute of frauds, he may re-
cover the money so paid, or the value of his services, or the
property, delivered in an action upon an implied assumpsit, if
the other party has refused, or from any cause become unar
ble to perform, the plaintiff being ready and willing to do
so.^ Thus, in Wood v. Shultis,® the plaintiff sold the de-

1 Watkins w. Kush, 2 Lans. (N. Y.) id. 84; Gillett v. Maynard, 5 John.
235; Abbott u. Draper, 4 Dev. (N. Y.) (N. Y.) 85; Welsh ^. Welsh, 5 Ohio,
51 ; Dix V. Marcy, 116 Mass. 416. See 425 ; Shreve v. Grimes, 4 Litt. (Ky.)
also Kosenpaugh v. Vredenburgh, 16 220; KembleB. Dresser, 1 Met. (Mass.)
Hun (N. Y.) 60, statement of which is 271 ; Wells v. Bannister, 4 Mass. 514.
given post, p. 429. * Dowling v. Mcliinney, 124 Mass.

2 Pawle V. Gunn, 4 Bing. (N. C.) 478; Williams v. Bemis, 108 id. 91;
445. Seymour v. Burnett, 14 Mass. 266;

8 Gosbell V. Archer, 2 Ad. & El. Kidder .,. Hunt, 1 Pick. (Mass.) 331;

500; Cookw. Daggett, 2 Allen (Mass.) Sherburne v. Fuller, 5 Mass. 133;

439. The rule is that no recovery Cook r. Daggett, 2 Allen (Mass.) 439;

can be had for expenditures made Thompson v. Gould, 20 Pick. (Mass.)

without any express stipulation that 134; Barrickman v. Kuykendall, 6

they should be made, but which were Blackf. (Ind.) 21; Goar v. Lockridge,

made rather for the plaintiff's own 9 Ind. 92; White v. Wieland, 109

benefit, and in reliance upon, and the Mass. 291 ; Palbrook v. Lawes, 1 Q.

expectation that the defendant would B. D. 284 ; Gray v. Hill, Ry. & M.

convey the lands to him. Farnam v. 421 ; Smith v. Smith, 25 N. J. L. 208.

Davis, 32 N. H. 362 ; Harden v. Hays, ' Day v. New York Cent. R. R.

9 Penn. St. 151 ; Miller v. Tobie, 41 Co., 51 N. Y. 590 ; Baldwin v. Palmer,

8 Wood V. Shultis, 4 Hun (N. Y.) 309.

SEC. 235.] INTEREST IN LANDS. 429

fendant forty-five trees standing upon his land by a verbal
sale, in payment for which the defendant agreed to dig a
ditch upon his own land to carry off the water from the
plaintiff's land. The defendant cut and carried away the
trees, but refused to dig the ditch. In an action to recover
for the value of the trees the defendant insisted that, inas-
much as the contract was within the statute of frauds, no
recovery could be had, but the court held that the plaintiff
was entitled to recover the value of the trees, the law imply-
ing a promise to pay the value of property so received.
Gilbert, J., said: "The timber was the consideration for
the defendant's part of the contract. He failed to perform
the contract and repudiated it altogether. The law affords
no sanction to such a mode of appropriating the property of
another, but, on the contrary, implies from such circumstances
a promise to pay for it. If the contract had not only been
void, but illegal, the plaintiff, on that account would have
had no remedy, but being invalid only by reason of its not
being in writing, the plaintiff has a clear remedy." In another
New York case ^ this rule was applied. In that case the
plaintiff and one Simmons worked a blue stone quarry be-
longing to the defendant, under a verbal agreement with him
that, as long as there was any blue stone in a certain direc-
tion they should be allowed to quarry it, paying him a certain
royalty or rent therefor. The lower end of the quarry filled
with water, and the plaintiffs were obliged, in order to get
out the stone, to dig a ditch, and they also uncovered a por-
tion of the stone at an expense altogether of about five hun-

10 N. Y. 232; King v. Brown, 2 Hill Greer v. Greer, 18 id. 16; Julison v.

(N. Y.) 485; Lisk v. Sherman, 25 Jandon, 69 id. 373; Lucy v. Bundy,

Barb. (N. Y.) 433 ; Erben v. Lorillard, 9 N. H. 298 ; Gray v. Gray, 2 J. J.

19 N. Y. 299; Harris v. Frink, 49 id. Mar. (Ky.) 21 ; Davenport v. Gentry,

24; Galvin v. Prentice, 45 id. 162; 9 B. Mon. (Ky.) 927; Humble v.

Baker v. Scott, 2 T. & C. (N. Y.) 606 ; Hamilton, 3 Dana (Ky.) 501 ; "Wood

Bosford V. Pearson, 9 Allen (Mass.) v. Shultis, 4 Hun (N. Y.) 309; Bur-

387; Parker u. Tainter, 123 Mass. lingame ti. Burlingame, 7 Cow. (N. Y. )

185; Moody v. Smith, 70 N. Y. 598; 92; Sims v. McEwen, 27 Ala. 184;

Eaton V. Eaton, 35 N. J. L. 290; Shute o. Dorr, 5 "Wend. (N. Y.)204;

Keeler v. Tatnell, 23 id. 62 ; Eutan v. King v. Welcome, 5 Gray (Mass.) 41 ;

Hinchman, 30 id. 255; Kidder v. Souch v. Strawbridge, 2 C. B. 808;

Hunt, 1 Pick. (Mass.) 328;. Seymour Knowlman v. Bluett, L. K. 9 Exchq.

I). Bennett, 14 Mass. 266; Rosenpaugh 307.

V. "Vredenburgh, 16 Hun (N. Y.) 60; i Rosenpaugh v. "Vredenburgh, 16

lineeland v. Fuller, 51 Me. 618; Hun (N. Y.) 60.

430 STATUTE OP FEAXTDS. [CHAP. VI,

dred dollars to drain the quarry, and after this had been
done, the defendant repudiated the contract and notified
them to quit the quarry. The court held that the defendant
was liable for the amount of the services rendered and ex-
penses so incurred by them. " It is conceded," said Boaed-
MAN, J., " that the contract under which plaintiff worked in
the defendant's quarry was void by the statute of frauds.
So far, however, as such contract had been executed by and
between the parties, the terms of the contract would de-
termine their respective rights, and the court will not disturb
them in relation thereto. The defendant having taken ad-
vantage of the invalidity of the contract to discharge the
plaintiff, and forbid his performance of further labor under
it, becomes liable to plaintiff on a quantum meruit for services
rendered and not paid for. To the extent that the contract
was performed and plaintiff's services paid for, he may retain
such pay or profits.^ But services rendered and not paid for
constitute a basis for damages. One who renders services
under a contract void by the statute of frauds may recover
the value of such services, if he has been ready to perform
the contract, and the other party has refused.^ In this case
the plaintiff cannot recover damages so far as his services
were compensated by the stone taken out under the contract.
But for services not thus compensated, he is entitled to re-
cover their value. The measure of damages is the value of
the services, and not the value of the stone in the quarry, or
of the void contract.^

The action was tried upon the law as here stated, and we
think the rule of damages adopted by the court justified the
rulings upon the admission of evidence on that subject. The
defendant could not deduct the plaintiff's profits already
realized from the value of services thereafter rendered. In
regard to the ditch dug to drain the quarry, it is not clear
that the jury allowed the plaintiff anything for digging it.
But we think he was plainly entitled to make that proof, and
to recover some portion of that expense ; such proportion as
the stone to be taken out bore to that already removed. There

1 Harris v. Frink, 49 N. Y. 24. ' King v. Brown, ante ; Brben v.

2 liing K.Brown, 2 Hill (N.Y.) 485; Lorillard, 19 N. Y. 299, 302, 304;
Galvin v. Prentice, 45 N. Y. 162; Day Day v. N. Y. C. K. E. Co., 51 N. Y.
V. N. Y. C. K. E. Co., 51 id. 583. 590.

sec' 235.] INTEREST IN LANDS. 431

is no reason why the whole expense of the ditch should be
charged to plaintiff, and the defendant have all its benefits
for future works. The plaintiff was allowed to recover for
so much of the top removed as was over the stone, which he
was not allowed to get out, and which the defendant can
now get out without the expense of uncovering. It is evi-
dent, therefore, that upon any just rule of damages, the
plaintiff recovered no more than a fair compensation for the
services rendered and benefits bestowed upon defendant."
So where the landlord promised a tenant a lease of the
premises, in consideration of which the tenant made repairs
upon the building, the landlord having refused to perform,
and the contract being within the statute, it was held that
the tenant was entitled to recover the cost of the repairs;^
and where buildings are erected upon premises by a person
to whom the owner or lessee has promised a lease, but which
the latter refuses to give, it has been held that the former is
entitled to recover the cost of the buildings notwithstanding
the agreement to give the lease is within the statute.^ But
no such recovery can be had if the other party is ready and
willing to perform.* Thus if a person enters into the pos-

^ White V. Wieland, 109 Mass. 291. binding upon him; upon the faith of
^ Parker v. Tainter, 123 Mass. 185. the defendant's agreement the plain-
But where the expense is incurred in tiff had done various things towards
making repairs or improvements clearing the land from incumbrances,
under a promise of a lease or convey- On a bill for specific performance it
ance by a lessee, no recovery can be was held that there was such •■ part
had at law therefor from the owner of performance as to take the case out
the land, although he told the lessee of the statute, and that the defendant
he might make such an agreement, was estopped from asserting the legal
and the entry and improvements were effect of general provisions of a writ-
made with the knowledge of the ten contract, that the stoves shojild
owner. • Stone v. Crocker, 19 Pick, be paid for on delivery. Galvin v.
(Mass.) 292. Prentice, 45 N. Y. 162 ; Lockwood .,.
8 Hawley ^. Moody, 24 Vt. 603; Barnes, 3 ffill (N. Y.) 128. In Green
Shaw V. Shaw, 6 id. 69. In Adams v. v. N. C. R. R. Co., 77 N. C. 95, the
SmUie, 50 Vt. 1, the defendant sold plamtiff and defendant entered into a
and delivered to the plaintiff ninety verbal contract by which the plaintiff
stoves for which the plaintiff paid him agreed that the defendant might cut
$1,000 cash, and executed and ten- from his land a certain quantity of
dered him a deed of certain land wood, in payment Jbr which, the de/end-
which the defendant had agreed to ant was to convey to the plaintiff a cer-
take in payment for the balance, but tain tract of land. The defendant
which he refused to accept, claiming entered under this contract and cut
that this part of the agreement was the wood in question, and the plaintiff
within the statute of frauds and not brought an action to recover the

432

STATUTE OP PEAITDS.

[CHAP; VI.

session of land under a parol contract to purchase, and after
having made improvements thereon, or paid a part of the
purchase-money, he voluntarily abandons the contract, without
calling upon the other' party to perform, and the other party is
in such a situation to the property that he can, and is ready and
willing to perform, he cannot recover either for the cost of the
improvement, or the purchase-money which he has paid?- In
an early New .York case ^ there was an oral contract for the
purchase of land, and after the purchaser had made some
payments in goods, under the contract he sued the vendee

value thereof, claiming that he was
not bound to apcept the land, as the
contract was within the statute of
frauds. But the court held that the
plaintifE could not recover in assump-
sit for the wood cut and taken by the
defendant, but was bound by the terms
of the original contract, the defendant
being ready to perform it. In Galway
v.. Shields, 66 Mo. 313, a similar doc-
t^ne was held, and where the plaintifE
sold and delivered goods to the de-
fendant under a verbal agreement
that the price thereof should be paid
in specified land, to be conveyed by
the buyer to the plaintifE, and the
buyer had ofEered to convey the land,
and was ready and willing to do so, it
was held that the plaintiff could not
repudiate this part of the contract on
the ground that it was within the
statute, and sue for the price of the
goods in money. See also, to the
same effect. Miller v. Tobie, 41 N. H.
84; Donaldson v. Waters, 30 Ala.
175; Mitchell «. McNab, 1 Brad. (111.)
297; Sims v. Hutchins, 16 Miss. 328;
Abbott V. Draper, 4 Den. (N. Y.) 51 ;
Hummer v. Breckman, 55 Me. 105.
In Allis V. Read, 46 N. Y. 142, at
the time of making a verbal agree-
ment for the sale of goods, no pay-
ment of purchase-money or delivery
of goods, sufficient to take the case
out of the statute of frauds, took
place; but at a subsequent time,
when, under the agreement, a pay-
ment became due, the parties again
met, and made a further contract,
varying in some respects their original

agreement, and, in pursuance of this
agreement, the purchaser delivered to
the sellers a promissory note to be
collected and applied by them on the
purchase-price of the goods, and also
consigned to them merchandise, which
they were to sell, the proceeds to be
applied to the same purpose. It was
held that the minds of the parties met
upon all the terms and conditions of
this latter agreement, and by the
purchaser's transfer of the note and
consignment of merchandise, it be-
came, under the statute, a binding
contract. That it adopted the terms,
in part, of the original void contract
did not affect its validity. Barrick-
man v. Kuykendall, 6 Blackf. (Ind.)
21; Richards v. Allen, 17 Me. 290;
Bedinger v. Whittemore, 2 J. J. Mar.
(Ky.) 652 ; Collier v. Coates, 17 Barb.
(N. Y.) 471; Green v. Green, 9 Cow.
(N. Y.) 46; Dowdle v. Camp, 12 John.
(N. Y.) 451. But in Michigan a con-
trary doctrine is held, and money
advanced on a verbal contract for the
purchase of land may be recovered
back at any time before conveyance,
at the option of the party advancing
it. Scott V. Bush, 26 Mich. 418; 13
Am. Rep. 311 ; Grimes v. Van Vechten,
20 id. 410; Hall v. Soule, 11 id. 494;
and see to the same effect Collins v.
Thayer, 74 111. 138 ; and Harriston v.
Jordan, 42 Miss. 380.

1 Day V. Wilson, 83 Ind. 463; 43
Am. Rep. 76.

2 Abbott V. Draper, 4 Den. (N. Y.)
51.

SEC. 235.] INTEREST IN LANDS. 433

for the value of the goods, but the court held that, as long as
the vendor was ready to perform the contract on his part,
the vendee could not recall the payments which he had made
under the agreement. In a Massachusetts case,i Dewey, J.,
in an able opinion gave expression to the rule, as follows :
" The provisions of the statute are not so broad as to entitle
a party, who has entered into a verbal contract, by which he
is to receive a conveyance of land, and towards payment for
which he has made advances in money, to set aside such a
contract as a nullity, and reclaim the money so advanced,
the other party being in no way in fault, but being both able
and ready to make the conveyance in the manner stipulated
by the oral agreement. The principle is well settled that no
such right exists in the case just supposed, to reclaim the
money, upon the ground that the contract is within the
statute of frauds." ^ The rule is, that no recovery can be
had for money paid, services rendered, or improvements put
upon land, until the other party is put in default,^ either
by a refusal to convey, or because he is unable to do so.*
" The law is," says Caton, J., in the Illinois case last cited,^
" that one who advances money in part payment of a parol
purchase of land, cannot recover till he has offered to fulfil
the parol agreement, and the other party has repudiated it
by refusing to perform. If he repudiates it himself without
the default of the other party, he must lose what he has paid."
This is said to be put upon the ground that a contract within
the statute is not absolutely void, but is voidable only, and
is binding upon both parties and may be enforced either at
law or in equity, unless the statute is interposed as a defence.®
From what has been said, however, it must not for a moment
be supposed that part performance of a contract within the
statute of frauds, at law, deprives the other party of the
defence of the statute, or gives it validity, or that the rules
stated or cases cited supra sustain any such doctrine, for such

1 Coughlin u. Knowles, 7 Met. « Crabtree v. Welles, 19 111. 55;
(Mass.) 57. Rhodes v. Starr, 7 Ala. 346, Meredith

2 Sims V. Hutchins, 16 Miss. 328; v. Naish, 3 Stew. (Ala.) 207.

Lane v. Shackf ord, 5 N. H. 130 ; Ab- * Bamckman v. Kuykendall, ante.
bott V. Draper, 4 Den. (N. Y.) 51; ^ Crabtree w. Welles, onie.

Shaw V. Shaw, 6 Vt. 69 ; Gammon v. « Philbrook v. Belknap, 6 Vt. 383 ;

Butler, 48 Me. 344; Cobb v. Hall, 29 Shaw v. Shaw, 6 id. 69; Crabtree v.

Vt. 510. Welles, ante.

434 STATUTE OF PEAUDS. [CHAP. TI,

is not tlie law.^ The only effect of part performance of
such a contract, according to the rules stated, is to leave it
optional with the other party to perform it or not, and to
require of the person who has performed as a condition pre-
cedent to his right to recover for such performance, that he
should put the other party in default, either by requesting
him to perform or showing that it had become impossible for
him to do so. If the other party refuses to perform, or if it
is impossible for him to do so, the person who has performed
does not thereby becbme entitled to a remedy upon the con-
tract, but only /or what he has paid or done towards perform-
ance of the contract. This rule is illustrated by a New York
case.^ In that case the defendant received one dollar under
an agreement to invest it in sheep and double them every
four years until the plaintiff became of age, and then to de-
liver them to him. He made the investment according to
the agreement, but upon the plaintiff becoming of age re-
fused to deliver the sheep to him. The plaintiff brought an
action to recover the value of the sheep. The court held
that no recovery could be had upon the contract, as it was
within the statute of frauds, because not to be performed in
one year, but that the plaintiff's recovery was limited to the
money received by the defendant for investment. The dis-
tinction between the rule in this case and those previously
referred to is, that in this case, although the agreement had
been performed so upon the plaintiff's part, yet the defendant
elected not to perform, but to avail himself of the defence of
the statute, while in those cases the defendant was ready and
willing to perform, and waived the privilege of the statute.
It may be said that part performance of a contract within the
statute of frauds rnay render it valid and binding so far as that ex-
tends, but it can have no such effect upon the stipulation of the con-
tract still remaining executory.^ Where property has been deliv-
ered to the defendant in performance of such a contract, he

1 Hebbard v. Whitney, 13 Vt. 21; 93; Campbell v. Campbell, 11 N. J.

Norton v. Preston, 16 Me. 14 ; Patton Eq. 268.

V. McClm'e, 1 M. & Y. (Tenn.) 333; 2 Weir v. Hall, 2 Lans. (N. Y.)

Kidder v. Hunt, 1 Pick. (Mass.) 328; 278.

Baldwin v. Palmer, 10 N. Y. 232; » Bartlett u. Wheeler, 44 Barb. (N.

Adams v. Townsend, 1 Met. (Mass.) Y.) 162; Lockwood v. Barnes, 3 Hill

483; Jackson v. Pierce, 2 John. (N. (N. Y.) 128; Broadwell v. Getman, 2

Y.) 221; Box v. Stanford, 21 Miss. Den. (N. Y.) 87.

SEC. 236.] rNTBKBST IN LANDS. 435

cannot, upon refusing to perform, return the property to the
other party, and escape liability for its value in money, in an
action for goods sold ; ^ but it seems that the party delivering
property in part performance of such a contract, which the
other party refuses to perform, may at his election recover
its value, or in proper proceedings, the property itself.^
"Where services have been rendered under such a contract,
they may be recovered for upon a quantum meruit.^ At
equity, even where the part performance is not sufficient to
warrant a decree for specific performance, if the party enter-
ing under a verbal contract has made improvements which
increase the value of the land, the court will compel the
other party to make proper remuneration therefor.* In all '
cases where a person has gone into the possession of land
under a verbal contract, which the other party refuses to per-
form, before he can maintain an action for the purchase-money
paid by him, or improvements put by him upon the land, he
must surrender the possession ; ® and such also is the rule
where he has given a note or other obligation for the pur-
chase-money of the land, before he can be permitted to de-
fend against the note upon the ground of a failure of the con-
sideration, because the payee refuses to convey, he must show
that he is not deriving any advantage or benefit from the
contract.®

Sec. 236. Lien for Repayment of PurchaBe-Money. — If the

vendor of land cannot make a title thereto, and the vendee has
paid the whole or only a part of the purchase-money, it is
held that he has a lien upon the lands not only for the money
paid by him, but also for the cost of improvements put by
him thereon,^ even though he has taken a distinct security

1 Hawley v. Moody, 24 Vt. 693. Draper, ante ; Johnson v. Hanson, 6

" See note 3, ante, p. 431. Ala. 351.

s King V. Welcome, 5 Gray (Mass.) « Gillespie v. Battle, 15 Ala. 276;

41 ,' Williams v. Bemis, 108 Mass. Curnutt v. Roberts, 11 B. Mon. (Ky.)

91. 42.

4 Pindley v. Wilson, 3 Litt. (Ky.) ' Busker v. Abell, 8 B. Mon. (Ky.)
390; Bellamy t>. Ragsdale, 14 B. Mon. 566; McCampbell v. McCampbell, 5
(Ky.) 364; Thompson v. Mason, 4 Litt. (Ky.) 92. But quere, does this
]Bibb. (Ky.) 195 ; Vaughanw. Cravens, lien exist where he refuses to convey,
1 Head (Tenn.) 108. although able to do so'! It would

5 Cope V. Williams, 4 Ala. 362; seem that the rule would extend to
Ott V. Garland, 7 Mo. 28 ; Abbott a. such cases, but the point does not

seem to be covered by the cases.

436 STATUTE OP FEATIDS. [CHAP. VI.

therefor.^ But in Tennessee it- is held that no such lien exists,
and that a court of equity has no authority to direct a sale
of the land to reimburse the vendee for the purchase-money,
etc., advanced by him.^

Sec. 237. Liability on Implied Contract. — If the purchaser
of a growing crop, or of growing trees, under a parol con-
tract, void by reason of the statute, takes away the crop, or
fells and carries away the trees, although he cannot be made
liable under the original contract, he will become liable on a
new implied contract for goods sold.^ Where the plaintiff
repaired certain leasehold premises held by the defendant
under a covenant to repair, on a parol promise by the defend-
ant to assign him his lease, it was held that the defendant,
upon refusal to assign, was liable, on an implied assumpsit,
to pay the plaintiff for such repairs.* The statute does not
apply to implied contracts or covenants. Thus if A conveys
to B certain realty by a deed poll in which specified rents
are reserved for periods of time described, and B enters
under the deed, by his entry he contracts to pay the rents
as reserved, and the contract being an implication of law, is
not within the statute. The contract to pay the rent reserved
is not an express but an implied contract, or a contract raised
by law from the nature of the transaction, and such contracts
are not within the statute.^ In Goodwin v. Gilbert, ante, the

1 Sugden'sVendors and Purchasers, of the plaintiff from year to year,
857 ; Turner v. Mariatt, L. E. 3 Eq. upon special terms mentioned in some
744. printed rules, and to commence occu-

2 McNew V. Toby, 6 Humph, pation at a future day ; the plaintiff's
(Tenn.) 27. attorney then signed a memorandum

3 Mayfield v. Wadsley, 3 B. & C. of the hiring at the back of the
357 ; Poulter v. Eallingbeck, 1 E. & printed rules. It was held that, after
P. 397; Bragg v. Cole, 6 Moo. 114; the tenancy had actually commenced the
Teall V. Auty, 4 Moo. 547 ; Knowles terms of the agreement might be
V. Michel, 13 East, 249 ; Earl of Fal- shown by reference to the printed
mouth V. Thomas, 1 C. & M. 109. rules and memorandum, although as

* Gray v. Hill, Ky. & Moo. 420. a mere agreement for a lease it was

6 Goodwins. Gilbert, 9 Mass. 510 ; void under the statute, and that a

Fletcher v. McParlane, 12 id. 43 ; parol lease for a period admitted by

Felch V. Taylor, 13 Pick. 133 ; Sage the statute might be as special in its

V. Wilcox, 6 Conn. 81 ; Allen v. Pryor, terms as a vrritten. " It seems absurd

3 A. K. Marsh. 305. In Bolton v. to say," said Lord Denman, "that a

Tomlin, 2 H. & W. 367, the defendant's parol lease shall be good, and that it

testator agreed by parol with the cannot contain any special stipu-

plaintiff's steward to hire some land lations or agreements. ... It has

SEC. 238.] INTEREST IN LANDS. 437

doctrine is broadly laid down that where land is conveyed by
deed poll and the grantee enters under the deed, certain
duties being reserved to be performed, as no action lies against
the grantee on the deed, the grantor may maintain assumpsit
for the non-performance of the duties reserved, and the
promise being raised by the law is not within the statute of
frauds. In a Massachusetts case,^ Shaw, C. J., in delivering
the opinion of the court, instances the case of rent reserved
in a lease by deed poll as a signal and familiar illustration of
the doctrine. Occupation under the lease is not indispensa-
ble to the recovery, if the lease has been accepted.^ The
court say, it is enough that they accepted the conveyance
which gave them the right of immediate and exclusive occu-
pation. The law would imply from such acceptance a promise
to comply with the terms of the lease, and such a promise is
not within the statute of frauds.^

Sec. 238. Mortgages. — A mortgage of land is within the
statute, and so is an agreement to execute a mortgage.* A.
mortgage that has been satisfied, or otherwise become de-
funct, or indeed any defunct agreement relating to the pur-
chase or sale of land cannot be reinstated by parol,^ nor can
a mortgage be extended by parol to cover other indebtedness
than that named therein,® or to embrace other lands than
those conveyed therein.' Not only is a parol mortgage within
the statute, but so also is an agreement to execute a mort-
gage,^ or indeed any agreement by which rights in real estate
are qualified or enlarged,^ as an agreement to convert a mort-
gage into a conditional sale,^" or a defeasance into an absolute
conveyance.^^ But while an agreement to foreclose a mort-

always been assumed that a parol ^ Davis v. Parish, Litt. Sel. Cas.

lease may be as special in its terms as (Ky.) 153.

a written one, and we are of the '^ Curie «. Eddy, 24 Mo. 117; Stod-

opinion that such is the case." dard v. Hart, 23 N. Y. 556 ; Williams

1 Pike V. Brown, 7 Cush. (Mass.) ti. Hill, 19 How. (IT. S.) 246.
133. ' Castro v. lilies, 13 Tex. 229.

2 Kabley v. Worcester Gas Light » Clabaugh v. Byerly, 7 Gill. (Md.)
Co., 102 Mass. 392. 334.

* Providence Christian Union v. ^ Irwin v. Hubbard, 49 Ind. 350;
Elliott, E. I. Sup. Ct. 1833. McEwan v. Ortman, 34 Mich. 325.

* Marquat v. Marquat, 7 How. Pr. ^o Woods v. Wallace, 22 Penn. St.
(N. T.) 417. 171.

11 Boyd V. Stone, 11 Mass. 342.

438

STATUTE OP FEAtlDS.

[chap. VI.

gage is held to be within the statute,^ yet an agreement to
extend the time of payment thereon is not, nor,^ except in
those States where a mortgage is treated strictly as a convey-
ance of the land, rather than as a mere incident of the
debt, is a verbal release of a mortgage within the statute.'

strict but proper rule relating to real
estates, viz., that no interest for any
longer than three years should pass
in them without writing, nor any trust
in them for a longer time, unless the
trust arose by operation of the law.
That where a mortgage was made of
an estate, it was only considered as a
security for money due ; the land there
was the accident attending upon the
money ; and when the debt was dis-
charged, the interest in the land fol-
lowed, of course. In ejectment, where
a title was made under a mortgage,
if evidence was given that the debt
was satisfied, this was considered as
defeating the estate which the mort-
gagee had in the land; and in such
cases, especially where the mortgage
was ancient, the court would presume
that the money was paid at the day,
and would direct the jury to give their
verdict accordingly, unless it clearly
appeared that the money could not
be paid at the day. No writing was
in these cases necessary, wlilch showed
that, even at law, the debt was con-
sidered as the principal, and the land
only as the incident. Equity goes
farther, and in all cases holds that
when the debt appears to be satisfied,
there arises a trust by operation of
law for the benefit of the mortgagor ;
that the case is within the exception
in the statute of frauds as to trusts
arising by operation of law, and, in
this sort of cases, the court receives
any kind of evidence of payment ;
therefore, if a mortgage is made by
one partner to another, and the mort-
gagor agrees with the mortgagee that
he shall take a certain part of the
profits of the partnership in discharge
of the mortgage, that of itself would
discharge it. Here was a mortgage
made, and a bond at the same time
entered into for the performance of
covenants. Suppose an obligee deliv-

1 Cox V. Peeble, 2 Bro. C. C. 334.

2 GriflSn V. Cofiey, 9 B. Mon. (Ky.)
452 ; Hamilton v. Terry, 11 C. B. 954.

' Leavitt v. Pratt, 53 Me. 147;
Phillips V. Leavitt, 54 id. 405 ; Haven
V. Adams, 4 Allen (Mass.) 80. In
Hunt V. Maynard, 6 Pick. (Mass.)
489, it was held that a court of
equity would not prevent a mort-
gagee from proceeding at law to re-
cover possession, because of a parol
agreement made by him with the as-
signee of the mortgagor that the as-
signee should hold the property dis-
charged from the mortgage. See also
Parker v. Barker, 2 Met. 423, where it
was held that where a morgagee en-
tered into a parol agreement with the
creditors of the mortgagor to relin-
quish his claim to the land mortgaged
if they would accept another mort-
gage upon the same land and give
him time for payment, was within
the statute; and that, although the
creditors acted upon the faith of
such agreement, and took the mort-
gage, etc., the mortgagee did not lose
his rights under his mortgage, and
that the creditors acquired no right
against the first mortgage. In Rich-
ards u. Sims, Bernard, 90, the mort-
gagor went to the house of the mort-
gagee with the box of writings, wherein
the mortgage and bond were, and of-
fered them to the mortgagee, but the
mortgagee put the deeds back, saying,
"Take back your writings; I freely f oi>
give you the debt " ; and then speak-
mg to the mortgagor's mother, who
was present, said : " I always told you
I would be kind to your son ; now you
see I am as good as my word." The
Lord Chancellob, upon this evi-
dence, observed, that the rule on this
head was the same, both at law and
in equity, and that his opinion was
that it might be admitted. That the
statute, indeed, had laid down a very

SEC. 238.J

INTEEEST IN LANDS.

439

The discharge of a mortgage may be proved by parol both
at law and in equity.^ A parol agreement that if the
mortgagor will make no defence to the foreclosure of a
mortgage, that his equity of redemption shall not thereby
be barred, is not within the statute, but it will only be
treated as effective, when the evidence is clear and con-
clusive. Thus in a case in the United States Supreme
Court,2 A mortgaged land to B, and B foreclosed the same

ered up a bond, with intent to dis-
charge a debt, the debt would be cer-
tainly discharged ; and, if the bond
was discharged in the present case,
the debt would be discharged with it.
Accordingly, his lordship directed an
issue to inquire whether these expres-
sions were used or not, the evidence .
as to this point being doubtful.

When it was said by the Chan-
cellor, in the above case, that the
rule was the same both at law and in
equity, we must suppose him to advert
to the presumption of the reconvey-
ance or surrender of the interest at
law, and the annexation of the trust
in equity, as the media, by which the
interest in the land is made to follow
the debt in those respective judica-
tures ; and when his lordship is made
to say that equity goes farther, he
must be understood to mean that in
all cases, and consequently in some
where, from certain repelling circum-
stances, the presumption at law could
not arise to produce the effect of a
reconveyance of the legal estate, the -
courts of equity would compel the
formal transfer of the interest at law,
and in the meantime clothe it with a
trust for the party entitled. And it
seems that we must so understand
LoBD Mansfield, when, in speaking
on the same subject, his lordship ob-
serves : " That whatever will give the
money, will carry the estate in the land
along with it, to every purpose. The es-
tate in the land is the same thing as the
money due upon it ; it will be liable to
debts ; it will go to executors ; it will
pass by will not made and executed with
the solemnities required by the statute of
frauds. The assignment of the debt,

or forgiving it, will draw the land af-
ter it as a consequence ; nay, it will
do it, though the debt were only for-
given by parol, for the right to the
land would follow, notwithstanding
the statute of frauds." Martin o.
Mowlin, 2 Burr. 978.

If the mortgage debt is assigned
for valuable consideration, the benefit
of all the securities, including the in-
terest in the land, will pass from the
assignor to the assignee in equity.
The assignment is a contract in the
view of the courts of equity, which,
being grounded on a consideration of
value, these courts will carry into full
effect. And if such debt is assigned,
by parol, by the mortgagee, all the
securities for the debt become bene-
ficially vested in the assignee, so that
in this manner the interest in land may
be consequentially transferred, and a
contract concerning it be effectuated
without writing, notwithstanding the
1st, 3d, and 4th sections of the stat-
ute of frauds, and, not withstand-
ing courts of equity, are as much
bound by the statute as courts of
law. Green v. Hart, 1 John. (N. Y.)
580; Johnson v. Hart, 3 Johns. Cas.
(N. Y.) 322 ; Brownson v. Crosby, 2
Day (Conn.) 425 ; Austin v. Burbank,
2 Day (Conn.) 474; Boberts on
Frauds, 273.

1 Howard v. Gresham, 97 Ga. 347 ;
Wentz V. Durhaven, 1 S. & R. (Penn.)
312 ; Hemenway v. Bassett, 13 Gray
(Mass.) 378; Ackla v. Ackla, 6 Penn.
St. 288; Richards v. Sims, Bern, 90;
McDaniels v. Lapham, 21 Vt. 222;
Baker v. Wimpee, 22 Ga. 69.

2 Howland v. Blake, 97 U. S. 624.

440 STATUTE OP FEATTDS. [CHAP. VI.

by a decree of court, and the land was afterwards conveyed
to C. Eight years after B's death, A filed a bill against C,
alleging an oral agreement whereby A agreed to make no
defence to the suit for foreclosure, and B agreed that the
equity of redemption should not thereby be barred ; that C
took with full knowledge of the agreement, and also agreed
that when he, C, was reimbursed out of the rents and profits
of the land, he would convey it to A. It was held : 1st. That
in order to make out his alleged agreement with B, the bur-
den was upon A to produce evidence of such weight and
character as would justify a court in reforming a written in-
strument which, upon the ground of mistake, did not set
forth the intention of the parties thereto. 2d. That such
evidence not having been produced to show the alleged
agreement, and A's continuing interest in the land, his oral
agreement with C was void under the statute of frauds. A
question sometimes arises as to whether property covered by
a mortgage is real estate or personalty. Thus, a mortgage
of growing grass by the owner of the land does not Work a
constructive severence of the grass, until the mortgage has
become absolute ; therefore, up to that period, at least, it is
treated' as a mortgage of realty,^ and the same rule prevails
as to trees and growing timber. But where the title of the
land is in one and that of the grass or growing timber is in
another, it is treated as severed, and as personal property,
and may be sold or mortgaged by parol,^ or in any event may
be mortgaged as personal property, and the same rule applies
as to fixtures.^

Sec. 239. Parol Gift of Mortgage. — A mortgage will not
pass under a parol gift either of the debt or the security, for
the reason that, in order to give effect to a gift, there must
be an actual delivery, of which the security is incapable.
Mk. Robbets, in his excellent treatise on the statute of frauds,
says : " As a mere gift must be effectuated or proved by de-

1 Bank of Lansingburgh v. Crary, 580 ; Douglass v. Shumery, 13 Gray
1 Barb. (N. Y.) 542 ; Smith v. Jenks, (Mass.) 498.

1 Den. (N. Y.) 586. See also, upon = Thompson u. Pettitt, 10 Q. B. 101.

this question, Pierce v. Goddard, 22 In New Hampshire, by statute, per-

Pick. (Mass.) 559; Eastman v. Foster, sonal property and crops are subject

8 Met. (Mass.) 19, as to buildings. to mortgage.

2 Claflin!).Carpenter,4Met.(Mass.)

SEC. 240.] INTEREST IN LANDS. 441

livery, the question seems to be simply this, Is a mortgage
a thing capable of being delivered? ... A mortgage is
composed of two things, the debt and the security. The
debt is a chose in action, and as such, is incapable of delivery,
being an incorporeal existence ; and the statute seems very
plainly and emphatically to preclude any primary or direct
transfer of the interest in land, which, as has been endeavored
to be shown, can only pass in equity as consequential to the
debt, which assignment takes place in the nature of a con-
tract in equity, where it is supported by a valuable consider-
ation. But the delivery of the mortgage deed, by way of
gift, can only transfer the debt as an accessory, regarding the
mortgage as the principal ; but the truth being that the debt
is the principal, and the mortgage of the land the accessory,
we cannot suppose the debt to follow the gift or delivery of
the mortgage deed, without reversing the maxim of law and
logic accessorium sequitur principale" ^ But if a bond ac-
companied the mortgage, its delivery might be good to per-
fect the gift, it being for many purposes considered as goods.^

Sec. 240. Equitable Mortgage by Deposit of Title-deeds. —

Notwithstanding the statute of frauds, it has long beert set-
tled that a deposit of title-deeds by the owner of an estate,
either for the purpose of securing a debt already due, or a sum
of money advanced at the time the deposit is made, operates as
a mortgage, and gives the mortgagee not only the right of
keeping the deeds until repayment of the money due, but
also an interest in the land itself to which the deeds relate,
sufficient to enable him to maintain an action for a sale.
The leading case on this branch of the law is Russel v. Rus-
sel.^ There, a lease having been pledged by a person (who
afterwards became a bankrupt) to the plaintiff, as a security
for a sum of money lent to the bankrupt, the pledgee filed a
bill for a sale of the estate. The assignees contended that
the claim was against the law of the land, for that it would
be charging land without writing, which is against the fourth
clause of the statute of frauds. Loed LoTrGHBOKOTTGH,
L. C, said that it was a delivery of the title to the plaintiff

1 Roberts on Frauds, 279. ' 1 Bro. C. C. 269.

2 Snelgrow v. Bailey, 3 Atk. 214.

442 STATUTE OP FEAUDS. [CHAP. VI.

for a valuable consideration, and that the court had nothing
to do but to supply the legal formalities; and Ashuest,
L. C, that it was open to explanation upon what terms the
lease was delivered. An issue was directed to try whether
the lease was deposited as a security for the sum advanced
hy the plaintiff to the bankrupt, and the jury found that it
was. In a marginal note the reporter adds that he was in-
formed that the cause came on afterwards before Loed
Thuelow on the equity reserved, when his lordship ordered
that the lease should be sold and the plaintiff paid his money.

The doctrine of equitable mortgage by deposit of title^
deeds was much disapproved of by Loed Eldon ; ^ but the
case of Russel v. Russel ^ has been uniformly followed, and
considered to be of binding authority .^

In Lacon v. AUen,* Kindeesley, V.C, said: "Now, since
the case of Russel v. Russel, this is well established, that
supposing A, owing money to B, deposits the title-deeds of
his estates with B for the purpose of a security, even with-
out any writing, it is a good equitable mortgage ; it gives B
a lien; and notwithstanding the expressions of regret of
Loed Eldon that the law should be so, even in his time we
find him saying he could not disturb it ; since that time it
has been acted upon over and over again. That doctrine
cannot now, then, be disturbed." ^ In this country the doc-
trine that an equitable mortgage may arise from a deposit
of title-deeds, etc., does not generally prevail, although it Is
recognized in New York,^ Rhode Island,'^ Wisconsin,* Maine,®
South Carolina,!" and in Mississippi," for such a length of time
only as a lease of land may be made by parol. In Vermont ^
the question has not been definitely settled. In Pennsyl-

1 See ex parte Coming, 9 Ves. 117 ; Eockwell t'. Hobby, 2 Sandf. Ch. (N.
ex parte Haigh, 11 Ves. 403; ex parte Y.) 9; Mandeville v. Welch, 5 Wheat.
Hooper, 1 Mer. 9 ; ex parte Whitbread, (TJ. S. ) 277.

1 Rose, 299. « Rockwell v. Hobby, 2 Sandf. Ch.

2 1 Bro. C. C. 269. (N. Y.) 9.

' See cases above cited and ex parte ' Hackett v. Keynolds, 4 R. I. 512.

Wetherell, 11 Ves. 401 ; ex parte Mount- * Jarvis v. Butcher, 16 Wis. 307.

fort, 14 Ves. 606 ; ex parte Kensington, ^ Hall v. McDufE, 24 Me. 311.

2 v. & B. 79; 2 Rose, 138. m Welsh ,,.. XJsher, 2 Hill (S. C.)

4 3 Drew. 582. Eq. 166.

6 And see National Bank of Aus- " Gothard v. Flynn, 25 Miss. 58.

tralasia v. Cherry, L. R. 3 P. C. C. ^ Bicknell v. Bicknell, 31 Vt. 498.
299; Carey w. Eawson, 8 Mass. 159;

SEC. 242.] INTEBEST IN LANDS. 443

vania, where the deposit is accompanied hy a certificate under
seal, describing the property and the particular debt for the
security of which the deposit is made, with a farther agree-
ment to convey the land if the debt is not paid within a
reasonable time, it is held to amount to a mortgage,^ but
the English doctrine relative to the creation of an equitable
mortgage by a deposit of the title-deed, is rejected,^ and
such also is the case in North Carolina,* Ohio,* Tennessee,®
and Kentucky.®

Sec. 241. Special Agreement not Necessary. — The mere fact
of deeds being dqoosited with the intention to create a security is
sufficient; it is not necessary that there should have been a special
agreement to mortgage, the deposit creates a presumption that such
was the intention of the parties,'^ at least as against strangers, in
cases where the possession of the title-deeds can be accounted
for in no other manner except from their having been depos-
ited by way of equitable mortgage, or the holder being other-
wise a stranger to the title and to the deeds.^ In Ex parte
Moss, Me Davies,^ an equitable mortgagee, by deposit of
shares in a public company, without a written memorandum,
was held to be entitled to his costs on evidence of a custom
not to give a written memorandum.

Sec. 242. 'What interest Passes. — The deposit of title-
deeds prima fade creates an equitable mortgage upon the
whole property comprised in them.i** The depositee is only
entitled to the depositor's interest in the property, and there-
fore an equitable mortgagee from a vendee who has not paid
the purchase-money, can only sell the depositor's interest

1 Luck's Appeal, 44 Penn. St. 579. ' Featherstone u. Fenwick, 1 Bro.
But equity will not enforce the return C. 0. 269, n. ; Hurford v. Carpenter, ib.;
of deeds so deposited. Sidney v. Ste- Richards o. Borrett, 3 Esp. 102 ; ex
venson, 11 Phila. (Penn.) 178. parte Kensington, 2 V. & B. 83; 2

2 Shitz !). Dieffenbach, 3 Penn. St. Rose, 138 ; Hankey v. Vernon, 2 Cox,
233 ; Bowery v. Oyster, 3 Penn. 239. 12 ; ex parte Mountfort, 14 Ves. 606 ;

3 Harper v. Spainhour, 64 N. C. 629. ex parte Wright, 19 Ves. 258.

* Probasco v, Johnson, 2 Dis. (Ohio) ' Bozon v. Williams, 3 Y. & J. 150 ;

96. Rockwell v. Hobby, 2 Sandf . Ch. (N.

' Meador v. Meador, 3 Heisk. Y.) 9.

(Tenn.) 562. « 3 De G. & Sm. 599.

6 Vanmeter v. McFaddin, 8 B. Mon. '» Ashton v. Dalton, 2 Coll. 565.
(Ky.) 435.

444 STATUTE OV FEATTDS. [CHAP. VI.

unless the vendee consents.-' The charge will extend to an
interest accruing after the date of the deposit ; as by ihe dis-
charge of an incumbrance,^ or by a partition.^

Where the unexpired term in a lease and the good will of
a business established in it, were sold in a creditor's suit,
with the consent of a person with whom the lease had been
deposited as a security, and brought a price less than the
amount of his debt, it was held that the equitable mortgagee
was entitled to the whole of the purchase-money, whether
arising from the value of the good will, or from the value of
the lease independently of the good will.*

Seo. 243. Explanation of Extent of Charge. — The inten-
tion to give a general charge upon all the property comprised
in the deeds deposited, may be explained when the memo-
randum is defective, by other written memoranda of the
agreement.*

Sec. 244. Deposit of Copies of Court Rolls, etc. — An
equitable mortgage may be created by the deposit of a
copy of court roUs,^ or by the deposit of a contract for
a sale of land.''

Sec. 245. Deposit of Shares in Joint-Stock Company. — In

the case of shares in a company, the instrument creating the
company usually contains provisions for the transfer of the
shares in a particular form. But notwithstandiag such pro-
visions, and the provisions in various statutes that no notice
of any trust, express, implied, or constructive, shall be en-
tered on the register, it is now settled that an equitable
mortgage may be created by the deposit of share certificates
iu a joint-stock company, such as an insurance,^ mining,®

1 Ex parte 'Wright, re Watts, 3 M. Pryce v. Bury, 2 Drew. 11 ; ex parte

& A. 49; and see ex parte Smith, re Warner, re Cooke, 19 Yes. 202; 1

Hildyard, 2 M. D. & De G. 587. Rose, 286 ; Whithread v. Jordan, 1 Y.

'2 Ex parte Bisdee, re Baker, 1 M. & C. Exch. Ca. 303.
D. & De G. 333. 7 xhe Unity Joint Stock Mutual

" Ex parte Farley, re New, 1 M. D. Banking Association v. King, 25 Beav.

and De G. 683. 72.

* Chissum v. Dewes, 5 Euss. 29. ^ Ex parte Masterman, in re Litt. 2

^ Ex parte Glyn, re Medley, 1 M. D. M. & A. 209 ; ex parte Littledale, re

& De G. 29 ; ex parte Loyd, re Ogden, Pearse, 6 D. M. G. 714.
1 M. & A. 494; 3 D. & C. 765. » Ex parte Eichardson, in re Rioh-

8 Winter v. Lord Anson, 3 Euss. ardson, M. & C. 43.
493; Tylee «. "Webb, 6 Beav. 552;

SEC. 247.] INTEKBST IN LANDS. 445

merchant sliipping,^ railway ,2 or dock company.' The object
of the prohibition is simply that the title of the shareholders
in the books of the company shall be kept wholly unincum-
bered and unaffected by any notice of equitable dealings.*
But as the shares are still in the case of traders, in the
possession, order, and disposition of the mortgagor, notice
of the deposit must be given by the mortgagee to the com-
pany, in order to take the property out of the order and
disposition of the mortgagor ; otherwise the shares wUl, in
case of his bankruptcy, pass to his assignees.^

Sec. 246. PoUoy of insurance. — An equitable mortgage
may also be created by the deposit of a policy of insurance.^
Formerly it was necessary to give the com-pany notice of the
deposit, in order to take the policy out of the reputed owner-
ship and disposition of the debt or in case he became bankrupt
or insolvent.'^ But in England, since the bankruptcy act,*
this is not necessary, as policies of insurance are choses in
action, and not within the doctrine of reputed ownership.^

Sec. 247. Deeds Relating to Property Abroad. — Where, by
the law of a foreign country, no lien or equitable mortgage
is created by the deposit of deeds, the mortgage will, if the
parties are resident in this country, be enforced to this ex-
tent, that, if the property comes into the hands of assignees,
they will be compelled to pay the debt out of the proceeds

1 Ex parte Pooley, in re Atkinson, * Ex parte Lancaster Canal Co., in
2 M. D. & De G. 505. re Dilworth, 1 D. & C. 411 ; ex parte

2 Ex parte Harrison, re Medley, 3 Boulton, in re Sketchley, 1 De G. & J.
M. & A. 506 ; ex parte Dobson, re 163 ; ex parte Stevens, in re Stevens, 4
Boult, 2 M. D. & De G. 685. D. & C. 117 ; ex parte Pooley, in re At-

' Ex parte Littledale, re Pearse, 6 kinson, 2 M. D. & De G. 505 ; Union

D. M. G. 714. Bank of Manchester, in re Jackson, L.

* Ex parte Stewart, in re Shelley, E. 12 Eq. 354.
11 Jur. (N. S.) 25; 34 L. J. Bkcy. 6; « Ferris v. Mullins, 2 Sm. & Giff.

13 W. E. 356 ; and see Binney v. Ince 378.

Hall Coal Co., 35 L. J. Ch. 363 ; over- ' Ex parte Boulton, re Sketchley,

ruling a doubt raised in ex parte Boul- 1 De G. & J. 163 ; 3 Jur. (N. S.) 425.
ton, in re Sketchley, 1 De G. & J. 163, 8 32 & 33 vict, c. 71, § 15, sub § 5.

as to whether an equitable mortgage ' Edwards v. Martin, L. R. 1 Eq.

valid against assignees in bankruptcy 121 ; Green v. Ingram, L. R. 2 C. P.

of the mortgagor could be made of 525; re Webb's Policy, L. R. 2 Eq.

railway shares, having regard to the 456 ; in re Russell's Policy Trusts, L.

Companies Clauses Consolidation Act, E. 15 Eq. 26 ; Alletson v, Chichester,

1845, § 20. L. E. 10 C. P. 328.

446 STATUTE OP FKATTDS. [CHAP. VI.

of the sale of the property.^ Where an agreement to deposit
deeds of a house in Shanghai was begun in Prussia, but con-
cluded in England, and the deposit was made in England, it
was held that the contract must be governed by English law
and that the depositees had a good security on the house.^

A deposit of a " minute " of a lease of a house and land,
and an agreement to pledge chattels in Scotland, does not
require to be registered under the Bills of Sales Act.*
Where according to the law in a colony, a deposit of title-
deeds would not amount to a mortgage, but the parties con-
tract without reference to any particular law, and the general
law of the colony is English, an equitable mortgage may be
created by the deposit of title-deeds.*

Sec. 248. whether Mortgagor Bound to Execute Legal
Mortgage. — By the deposit the mortgagor contracts that his
interest shall be liable to the debt, and that he will make
such conveyance, or assurance, as may be necessary to vest
his interest in the mortgagee. He does not contract that he
will make a perfect title, but he does bind liimself to do all
that is necessary to have the effect of vesting in the mort-
gagee such interest as he, the mortgagor, has.^ But the
mortgagor will not in every instance be entitled to compel
the mortgagee to execute a formal mortgage ; the course of
dealing between the parties may show that it was never in-
tended that there should be anything more than a deposit of
the deeds. Thus where title-deeds were deposited by the
defendant with the plaintiff as an indemnity against contin-
gent payments, but there was no agreement to execute a
formal mortgage, and before the plaintiff had made any pay-
ment, he filed a bill to have a formal mortgage executed ; it
was held that he was not entitled, thereto, but only to a
memorandum signed by the defendant, specifying the terms
of the deposit.^

Sec. 249. Adverse Possession. — Some doubt has been
thrown upon Lord Eldon's dictum in Ex parte Coming,^

1 Ex parte Pollard, in re Courtney, * Varden Seth Sam v. Luckpathy
Mon. & C. 239. Eoyjee Lallah, 9 Moo. Ind. App. 303.

2 Ex parte Holthausen, re Soheib- ^ pyyce v. Bury, 2 Drew. 42, per
ler, L. R. 9 Ch. 722. Kinderslet, V. C.

8 17 & 18 Vict. c. 36; Coote v. 6 Sporle k. Whayman, 20 Bear. 607.
Jecks, L. K. 12 Eq. 597. ' 9 Ves. 115.

SEC. 250.] INTEREST IN LANDS. 447

that the fact of the adverse possession of the deeds in the
person claiming a lien, was a fact that entitled the court to
give an interest.^ In the case of Chapman v. Chapman,^ the
bill which was filed in 1846 alleged that in 1827 the plaintiff
had lent to the testator, Robert Chapman, the sum of £1,900
upon his bond and the deposit of the title-deeds of a freehold
estate, that the testator died in 1831, and that interest on the
debt had been paid by the testator and his executors down
to 1843. The only evidence given by the plaintiff was the
bond and the production of the title-deeds ; but no evidence
whatever was given of the circumstances under which the
deeds had come into the plaintiff's possession ; and the equi-
table deposit was not admitted by the parties entitled to the
estate. It was held that no equitable mortgage had been
constituted, and that there was not sufficient ground for an
inquiry before the master. But in Smith v. Constant,^ the
defence to a claim, seeking the usual order in the case of an
equitable mortgage, was, that no money had ever been ad-
vanced, but that the deeds were placed in the plaintiff's
hands with a view to a future loan ; Knight Beuce, V.C,
however, thought that the retention of the deeds was con-
sistent with probability if an advance had been made, but
utterly inconsistent if it had not.*

Sec. 250. Subsequent Advances. — An equitable mortgage
by deposit of title-deeds will cover subsequent advances by
the same person upon evidence that they were made upon
the existing security, and it is not necessary that there should
be a return and fresh deposit of the deeds in order to take a
case out of the statute.* And a deposit of deeds as a secur-

1 Norris V. Wilkinson, 12 Ves. 197, pointed out that in Chapman v. Chap-

per Sir W. Grant, " to connect a man, the plaintiff, in the then state of

debt of long standing with the pos- the law, could not have been allowed

session of the debtor's deeds, the to give evidence as the plaintiff in the

creditor must proceed upon a dis- cause ; and the judgment of Lord

tinct allegation, supported by proper Cairns in the recent case of Shaw v.

evidence, that they were delivered to Foster, L. E. 5 H. L, 337.
him by way of security." 1 Fisher on ^ Ex parte Langston, 17 Ves. 227 ;

Mortgages, 2d ed.,. p. 32. ex parte Heam, re Hamlyn Buck, 165 ;

' 13 Beav. 308. ex parte Nettleship, re Burkhill, 2 M.

« 4 De G. & Sm. 213. D. & De G. 124 ; Ede v. Knowles, 2

* And see Burgess v. Moxon, 2 Jur. Y. & C. C. C. 172 ; Baynard v. Wool-

(N. S.) 1059; Maugham v. Ridley, 8 ley, 20 Beav. 586; Maugham v. Rid-

L. T. (N. S.) 309, where Wood, V. C, ley, 8 L. T. (N. S.) 309.

448 STATUTE OP FEAXTDS. [CHAP. VI.

ity for any advance which " may " be made, will extend to
past as well as future advances.^ The evidence must be
clear that the advance was made upon security of the de-
posit.2

In Hx parte Kensington,^ Loed Eldon said, that where the
deposit originally was for a particular purpose, that purpose
may be enlarged by a subsequent parol agreement ; and the
distinction appeared to him to be too thin, that you should
not have the benefit of such an agreement, unless you added
to the terms of that agreement the fact that the deeds were
put back into the hands of the owner, and a redelivery of
them required, on which fact there is no doubt that the de-
posit would amount to an equitable lien within the principle
of the cases.

Where money was advanced at £6 per cent on a promis-
sory note and a deposit of title-deeds of freehold property as
a collateral security, and afterwards it was agreed by parol
that a legal mortgage should be executed by the borrower to
secure the amount advanced with interest at £5 per cent,
but no mortgage was executed, it was held that the parol
agreement was sufficient to change the contract to a legal
one, and that a return and fresh deposit of the title-deeds
was not necessary to take the second contract out of the
statute of frauds, Tttener, L. J., saying : " The deeds being
in the hands of the plaintiff, and there being a parol agree-
ment to give him a legal mortgage, I think the case falls
within the principle of Ex parte Kensington,* and that the
plaintiff is entitled to a decree." ^

Sec. 251. Sub-Mortgage. — To create an equitable sub-
mortgage by redeposit of deeds originally deposited by way
of equitable mortgage, it is not necessary that the written
memorandum accompanying the first transaction should be
deposited upon the second.^ Where a debtor deposited his
title-deeds with his creditor until such time as his account

1 Ex parte Parley, re New, 1 M. D. * 2 V. & B. 79 ; 2 Eose, 138.

& be G. 683 ; ex parte Smith, re Hild- « James v. Rice, 5 D. M. G. 461,

yard, 2 M. D. & De G. 587 ; Whitworth overruUng S. C. Kay, 231 ; and see

V. Gaugain, 3 Hare, 416. National Bank of Australasia i>.

2 Ex parte Whitbread, 19 Ves. 209 ; Cherry, L. E. 3 P. C. 304.

James v. Bydder, 4 Beav. 600. ^ ^jx parte Smith, re Hildyard, 2

8 2 V. & B. 84; 2 Rose, 138. M. D. & De G. 587.

SEC. 254.] INTEEEST IN LANDS. 449

should not exceed jBlOO, at which time they were to be re-
stored to him, and died indebted to the creditor in £274, it
was held that the creditor's lien extended to the whole
£274.1

Sec. 252. Legal Mortgage not Security for Subsequent Ad-
vances. — A legal mortgage will not be considered as a secur-
ity for subsequent advances, made on the strength of a parol
agreement. The mortgagee is not entitled to say that he
holds the conveyance as a deposit; because the contract
under which he holds is a contract for conveyance only, and
not for deposit.2 But where a trader execiited a mortgage
of real estate, with a borrowing clause, and deposited the
title-deeds with the mortgagee, and subsequently accepted a
bill drawn by third parties, and being unable to pay the bill
when at maturity, wrote to the drawer to say that it should
be paid out of the produce of the mortgaged premises, and
that he would not take his title-deeds out of the mortgagee's
hands until the bill was paid, and the mortgagees communi-
cated to the drawers their consent to this arrangement, it was
held that the drawers were entitled to an equitable mort-
gage.*

Sec. 253. Rectification of Accompanying Instrument. —

Where an instrument accompanying the deeds has been, by
mistake, so prepared as to be illegal, it may be reformed, so
as to give effect to the equitable deposit. Thus, where the
plaintiff had lent the defendant a sum of , money on his bond
and an equitable deposit, and the bond on the face of it was
usurious, and the plaintiff (who had failed on this ground in
an action at law) came into equity showiag that the bond
had been erroneously prepared, and that in fact, the contract
was not usurious, and praying that the instrument might be
reformed and effect given to his equitable deposit, the court,
being satisfied of the error, held that the plauitiff was en-
titled to the relief he asked.*

Sec. 254. 'Whether a Deposit of Deeds for Purpose of Pre-
paring a Legal Mortgage Creates an Equitable Mortgage. — Some

1 Ashton V. Dalton, 2 Coll. 565. ' Ee Henry, ex parte Crossfield, 3

^ Ex parte Hooper, re Hewett, 1 Ir. Eq. 67.
Mer. 7 ; and see Shepherd h. Titley, * Hodgkinson v. Wyatt, 9 Bear.

2 Atk. 348. 566.

450 STATUTE OP FKATJDS. [CHAP. VI.

doubt has been raised as to whether the deposit of title-deeds
for the purpose of preparing a legal mortgage creates an
equitable mortgage.^- But the later authorities have decided
that under these circumstances, a valid equitable mortgage
is created. In Edge v. Worthington,^ A offered to give the
plaintiff a legal mortgage, and sent the title-deeds to C, the
plaintiff's solicitor. The mortgage was prepared and exe-
cuted, but it was alleged that before the execution, A had
committed an act of bankruptcy. Sir Lloyd Kbnyon, M.R.,
held that there was a valid equitable mortgage from the time
of the deposit.

In Ux parte Bruce,^ where a petition for a sale was resisted
on the ground that the deeds had been delivered to him, not
as the security, but in order that a legal mortgage might be
prepared, Loed Eldon said: "The principle of equitable
mortgage is, that the deposit of the deeds is evidence of the
agreement ; but if they are deposited for the express purpose
of preparing the security of a legal mortgage, is not that
stronger than an implied intention?" and in Ux parte
Wright,* his lordship said that the deposit of title-deeds until
a mortgage is evidence of an agi'eement for a mortgage, and
that an equitable title to a mortgage is in equity as good as
a legal title. Again, in Hockley v. Bantock,^ Lord Giffokd
held that an agreement to give a legal mortgage, together
with the delivery of the title-deeds, for the purpose of having
a legal mortgage prepared, constituted, an equitable mort-
gage.^

Sec. 255. Presumption of Mortgage may be Rebutted by
Evidence. — Though a deposit of deeds without any express
agreement will create an equitable mortgage, yet, if the cir-
cumstances under which they are left raise an inference that
such was not the purpose of the party delivering them, the

1 See Brander u. Boles, Prec. Ch. " 1 Rose, 374.
275 ; Brizeck v. Manners, 9 Mod. 284 ; « 19 Ves. 258.
ex parte Bulteel, 2 Cox, 243; Norris » 1 Russ. 141.

V. Wilkinson, 12 Ves. 192 ; R. v. Ben- 6 gge also Keys v. 'WiUiams, 8 Y.

son, cited 6 Price, 467 ; ex parte Pearse & C. Exch. 62 ; James v. Rice, 5 De

& Prothero, 1 Buck. 525 ; ex parte G. M. & G. 461 ; Fenwiek v. Potts, 8

Hooper, 1 Mer. 7 ; 19 Ves. 477 ; Pain ib. 506 ; Lloyd v. Attwood, 3 De G. &

V. Smith, 2 My. & K. 417. J. 614; Bulfin v. Dunne, 11 Ir. Ch.

2 1 Cox, 211. 198.

SEC. 256.] INTEKEST IN LANDS. 451

deposit will not have this effect.^ Thus where A, who was
indebted to certain bankers for advances made on sugars,
afterwards applied to them with the lease in question, re-
questing them to advance money on it, which they declined
to do, but he left it with them without making any declara-
tion of his reasons for so doing, it was held that the bankers
had no lien upon the lease for their debt.*

Again, the possession of a client's deeds by a solicitor is
so usual and so much in the ordinary course of transactions,
that where a person purchases an estate, and is informed that
the deeds are in the hands of the solicitors of the owner of
the estate, there is nothing in that circumstance which ren-
ders it necessary for him to inqidre under what circumstances
the solicitor holds the deeds.^

Where one Oakley by deed mortgaged freeholds to Phil-
lips, and at the same time the title-deeds, not only of the
freeholds, but of leaseholds belonging to Oakley, were deliv-
ered to Phillips, it was held, in the absence of proof to the
contrary, that Phillips had no lien on the leaseholds for the
money advanced.*

Sec. 256. Parol Evidence not Admissible to Contradict Mem-
orandum.— Parol evidence is not admissible to contradict a
memorandum or statement in writing of the circumstances
under which a deposit has been made.® But parol evidence
is admissible to extend the lien evidenced by a written mem-
orandum,^ or to show that the depositee is a trustee for an-
other.'' In England it is held that a memorandum in writing
accompanying a deposit of title-deed, it seems, requires an

1 Byth. Free. 3d ed. Ill ; and see Lloyd v. Attwood, 3 De G. & J. 651 ;
ex parte Langston, 17 Ves. 227 ; Edge 5 Jur. (N. S.) 1322.

V. Worthington, 1 Cox, 211 ; Ede v. * Wardle v. Oakley, 36 Beav. 27.
Knowlcs, 2 T. & C. C. C. 172; and « Ex parte Coombe, 17 Ves. 369;

where the mortgagee fails at the ex parte Borrcdaile, re Bucker, 2 M.

hearing to produce satisfactory eri- & A. 398; Baynard v. WooUey, 20

dence of the deposit, he will not be Beav. 583, where the document was

entitled to an inquiry upon the sub- attempted to be contradicted by the

ject. Holden v. Heam, 1 Beav. 445. answer.

2 Lucas V. Dorrien, 1 Moo. 29 ; 7 * Ex parte Kensington, 2 V. & B.
Taunt. 278. 79 ; 2 Rose, 138 ; ex parte Nettleship,

3 Bozon V. Williams, 3 T. & J. 150. 2 M. D. & De G. 124.

As to the solicitor holding the deeds '' Ex parte Whitbread, 19 Ves. 209 ;

as trustee for another person, see ' 1 Eose, 209.

452 STATUTE OF FRAUDS. [CHAP. VI.

ad valorem stamp.^ But the fact of the memorandum being
inadmissible as an agreement unstamped, does not prevent
parol evidenoe, otherwise admissible, being given to prove
the mortgage.^

Sec. 257. Sale in Bankruptcy. — The common order for
sale was refused in bankruptcy where there was no memo-
randum, the deeds having been deposited twelve years pre-
viously, and the bankrupt being dead.* But where, on the
petition of an equitable mortgagee with a memorandum of
deposit for the usual order for a sale, it appeared that the
space of time between the alleged deposit and the issuing of
the fiat was very short, an inquiry as to the nature of the
transaction was ordered.*

Sec. 258. Parol Agreement to Deposit Deeds does not Con-
stitute Equitable Mortgage. — A parol agreement to deposit
title-deeds as a security for a sum advanced does not consti-
tute an equitable mortgage. Thus, where money was ad-
vanced on the deposit of a lease, and a further sum was
advanced to enable the lessee to obtain a renewal, upon a
parol agreement to deposit the renewed lease when obtained,
and the lessee became bankrupt before the lease was given
up by the lessor's solicitor, it was held that there was no
equitable deposit.^ There must be some actual deposit, and
therefore an order on a third party to deposit a lease when
executed is not sufficient.®

Sec. 259. Delivery to 'Wife of Depositor. — A delivery of
deeds to the wife of the depositor to be held between him
and the creditor, was decided in Ex parte Coming,'^ not to be
a deposit so as to create a lien, the possession of the wife
being in law the possession of the husband. " No case," said
his lordship, " has gone the length, though I do not see the
reason that, if the deposit is in the hands of a person who
could fairly be called a third person, abstracted from both,

1 Wisew. Charlton, 4 Ad. &E1. 786; 6 Ex parte Coombe, 4 Madd. 249;
6 N. & M. 364. ex parte Halifax, re Eidge, 2 M. D. &

2 Hiem v. Mill, 13 Ves. 114. De G. 544.

8 Ex parte Jones, re Oliver, 3 M. & ^ jgj; parte Perry, re Collins, 3 M.

A. 152, 327. D. & De G. 252.

* Ex parte Clouter, re Lindon, 7 ' 9 Ves. 115.
Jur. 135.

SEC. 260.] rNTUBEST IN LANDS. 463

that can be considered a deposit for the creditor, provided
that is proved to be the intention. But it is very delicate,
vrhen the deposit remains in the hands of the mortgagee him-
self ; and I doubt much whether a mere memorandum, kept
in his own possession, and not parted with to the man in
whose favor it is expressed, would take it out of the statute.
It is very nearly the same where the deeds are put into the
hands of the wife of the mortgagor, to keep them as between
her husband and the creditor."

Sec. 260. Deeds Remaining in Possession of Debtor. — An

equitable mortgage may be created although the deeds re-
main in the possession of the debtor, when there is a written
memorandum or agreement showing an intention to deposit
the deeds or to charge the property comprised in them.^
Thus, an agreement to deposit a lease when granted, and which
is granted, creates an equitable mortgage, unless the bona
fides of the agreements is questioned.^ In Ferris v. Mullins,*
the secretary of a banking company had a credit account
with the bank to the extent of ^3,000, secured by a memo-
randum specifying certain securities deposited by way of
equitable mortgage. On his dying a debtor to the bond in
^4,000, there was found in his office in the banking-house
the securites mentioned in the memorandum, with others
tied up in a bundle, and indorsed and labelled as securities.
There was evidence that he had stated that the bank was
secured in ^6 6,000 ; it was held that the bank was equitable
mortgagee of all the securities.

Where freehold title-deeds were intended to be deposited
with an equitable mortgagee, together with deeds relating to
leasehold property, and were accordingly specified in the
memorandum, it was held that the freehold property was in-
cluded in the mortgage.* But where the deeds remain in the
possession of the debtor, an equitable mortgage wUl not be
created by the fact of a memorandum attached to them de-

^ Ex parte Smith, re Hildyard, 2 * Ex parte Leathes, re Leathes, 3
M. D. & De 6. 587 ; ex parte Sheffield D. & C. 112 ; and see ex parte Ed-
Union Banking Co., re Carter, 13 L. wards, re Moore, 1 Dea. 611 ; ex parte
T. (N. S.) 477. Heathcote, re Ogbourne, 2 M. D. &

'' Ex parte Orrett, re Pye, 3 M. & De G. 711 ; Daw v. Terrell, 33 Beav.

A. 153. 218 ; Eyre v. McDowell, 9 H. L. C.

» 2 Sm. & G. 378 ; 18 Jur. 718. 619.

454 STATUTE or PEAUDS. [CHAP. VI.

clariiig that they are appropriated to a particular debt, that
not being an assignment.^

Sec. 261. Deposit with Firm. — Where deeds have been
deposited with a firm, it is necessary, in order that, if any
new partners are admitted into the firm, they may have the
benefit of the security, that the memorandum accompanying
the deposit (if any) should state that such was the intention
of the parties when the deposit was made, or that it should
be clearly proved by parol evidence.^ But the dealings with
the new firm may be such as to recognize their right to the
security to cover the original advance as well as subsequent
advances by the new firm.^ " The leaving the deeds in the
custody of each successive firm is equivalent to a re-
deposit." *

Sec. 262. V7hether all the Title-Deeds Should be Deposited.

— It was at one time considered doubtful whether it was not
necessary that all the deeds relating to the property should
be deposited.® But it seems now to be clear that a deposit
of part of the deeds only is enough to create a valid equita-
ble mortgage, there being evidence that the object was to
create a security upon the whole.^ In Lacon v. Allen,'' Sik
R. T. KiNDEKSLEY, V. C, said : " The question is, is it neces-
sary that every title-deed should be deposited ? Suppose the
owner has lost an important deed, could he not deposit the
rest ? In each case we must judge whether the instruments
deposited are material parts of the title ; and if they are, it
is not necessary to say there are other deeds material, if there
is sufBcienf evidence to show that the deposit was made for
the purpose of creating a mortgage."

Sec. 263. Good Title Need not be Shown. — To constitute
a good equitable mortgage it is not necessary that the deeds
deposited should show a good title in the depositor. Thus,

1 Adams v. Claxton, 6 Ves. 230. 6 Ex parte Wetherell, 11 Ves. 401 ;

2 Ex parte Kensington, 2 V. & B. ex parte Pearse, Buck, 525.

79, 83 ; 2 Rose, 138. 6 Ex parte Arkwright, re Daintry,

8 Ex parte Oakes, re Worters, 2 M. 3 M. D. & De G. 129, sc. nora. ; ex parte

D. & De G. 234 ; ex parte Smith, re Pott, 7 Jnr. 159 ; ex parte Chippendale,

Gye, ib. 314 ; ex parte Lloyd, re Ablett, 1 Deac. 67 ; 2 Mont. & A. 299 ; Whit-

1 Gl. & J. 389 ; ex parte Alexander, re bread u. Jordan, 1 Y. & C. Exch. Ca.

Till, ib. 409. 303.

* Pisher on Mortgages, 2d ed. 36. ' 3 Drew. 582.

SEC. 26S.] INTEREST IN LANDS. 455

where the debtor deposited the title-deeds of his estate, and
omitted the conveyance to himself, which he subsequently-
deposited with his bankers, it was held that the first depositee
had priority over the bankers.^

But it seems to be doubtful whether an equitable mortgage
will be created by the deposit of an attested copy of a deed,
even when the depositor cannot deposit the original, as in
the case of a partnership.^

Sec. 264. Part of Deeds Deposited ■with One Creditor and
Part with Another. — ^Where part of the deeds are deposited
with one person, and subsequently the other part with an-
other, if the equities between the incumbrancers are equal,
the first mortgagee will have priority.^ In the recent case
of Dixon V. Mucklestone,* the owner in fee of a farm de-
posited deeds of conveyance of the farm dated 1774, by way
of security for money then due, writing at the same time a
letter which stated that the deeds were the title-deeds of the
farm, and were to be a security. He afterwards deposited
the subsequent title-deeds of the farm, the earliest being
dated 1787, with bankers by way of security for money due
to them ; the title was investigated by the bankers, and they
had no notice of the prior charge. It was held that the
letter created an equitable charge on the farm, and that under
the circumstances credit must be taken to have been given
by the owner of the prior charge to the statement made by
the mortgagor, that the deposited deeds were the Avhole of
the title-deeds, and that the owner of the prior charge had
therefore not been guilty of negligence, so as to deprive her-
self of her priority.

Sec. 265. Deeds relating to Part of an Estate. — Where
deeds are deposited which relate only to a portion of an es-
tate, the depositee will only have a charge on the lands in-
cluded in the deeds deposited, even though he has been led
to believe from the depositor's statement that the whole of
the property was comprised. If this were not so, any deed

1 Roberts v. Croft, 24 Beav. 223 ; » Roberts v. Croft, 24 Beav. 233 ;
afEd. 2DeQ.& J. 1. 2 De G. & J. 1.

2 Ex parte Broadbent, re Borron, 1 * L. R. 8 Ch. 155 ; see also Rat-
M. & A. 635 ; 4 D. & C. 3. cliffe v. Barnard, 19 W. B. 340 ; 40 L.

J. Ch. 147; 24L. T. (N. S.) 215.

456 STATUTE OF FKATTDS. [CHAP. VI.

might be deposited, with an allegation that it should be held
as a deposit to charge any lands which were the property of
the depositor.! But the court will, under another head of
equity, compel the depositor to make good his words.^

Sec. 266. Meraorandum Referring to Different Deeds than
those Deposited. — Where certain deeds are deposited with a
creditor as security for a loan with a memorandum of charge,
and the deeds do not answer the description in the memoran-
dum, the creditor has a valid lien upon the deeds so deposited
for the amount of his advances. Thus, where certain title-
deeds were found among the effects of a deceased person,
with a memorandum of charge, and the deeds were not the
same as those described in the memorandum, and there was
no evidence that others were deposited, the court held that
there was a good lien for the amount of the loan, upon the
property comprised in the deeds so found.^ But where deeds
are deposited relating to two diflferent properties with a mem-
orandum pledging only one of them as a security, the lien
will only apply to the estate described in the memorandum.*

Sec. 267. Direction to Third Person to Hand Over Deeds. —
An equitable mortgage may be created by a direction to hand
over deeds belonging to the depositor to another person. Thus,
where A being entitled to three estates, the title-deeds of
one of which were held by his bankers as a security, deposited
the title-deeds of the other two with B as a security for a
debt, and he gave him an order upon his bankers (written by
himself, but not signed) to deliver over the deeds of the
third estate, when their lien had been satisfied, it was held
that this gave B a valid equitable mortgage on the property
covered by the deeds deposited with the bankers, subject to
their prior lien.^

Sec. 268. Sales of Lands by Auction. Judicial Sales.
Sheriff's Sales, etc. — Sales of lands by auction are within
the statute, ^ and so are sales in bankruptcy,^ and by sheriffs

1 Jones V. Williams, 24 Beav. 47. ' Buckmaster v. Harrop, 7 Ves.

2 Eoberts v. Croft, 24 Beav. 230 ; 341 ; ffigginson v. Clowes, 15 Id. 521 ;
Eateliffe v. Barnard, 40 L. J. Ch. 147. Blagden v. Brodbear, 15 id. 472.

« Ex parte Powell, 6 Jur. 490. ' Carroll v. Powell, 48 Ala. 298

* "Wylde V. Eadford, 9 Jur. (N. S.) Tate v. Greenlee, 4 Dev. (N. C.) 149

1169. King V. Gunniou, 4 Penn. St. 171

5 Dow V. Terrell, 33 Beav. 218. Emley v. Drumm, 36 id. 123; "Wolfe

SEC. 268.J INTEREST IN LANDS. 457

and constables,^ although in some of the cases cited they
are held not to be affected by the statute, iipon the ground
that they are quasi judicial sales. Sales by loan officers
are held to be within the statute,^ and such also is the
case as to all sales at auction, except in the case of judicial
sales ; and in order to be operative, a memorandum of the
sale sufficient in all respects must be made.* But sales under
an order of court are not, for the object of the statute being
to prevent frauds and perjuries, any agreement in which
there is no danger of either is considered as out of the stat-
ute,* but in some of the cases it is held that the purchaser
must sign.^

It was at one time thought that by reason of their pub-
licity, sales of land or goods at auction did not come within
the statute ; but, whatever may formerly have been the rule,
it is now well settled that such sales not only come within
the letter, but also within the spirit of the statute.® And no
exceptions are made in this respect, except in favor of what
are strictly judicial sales. That is, sales made under an order
or decree of a court of chancery, or subject to its confirmation
and control.^ The first case in which this question arose
was Attorney General v. Day, ante, in which Loud Haed-
"WICKE held that the statute had no application to chancery
sales, or, as he calls them, judicial sales, and this doctrine has

V. Sharp, 10 Bich. (S. C.)Ii. 60; In- 11 Minn. 220. A sale under fore-
gram V. Dowdle, 8 Ired. (N. C.) 455; closure proceedings is not within the
Brent v. Green, 6 Leigh. (Va.) 16; statute. Willets r. "Van Alst, 26 How.
"Warfield v. Dorsey, 30 Md. 299; Pr. (N. Y.) 325. But see Hutton v.
Buckle V. Barbour, 48 Ind. 274 ; Williams, ante, where it is held that
Thomas v. Trustees, 3 A. K. Mar. (Ky.) a judicial sale is not taken out of the
298; Gratz v. Catlin, 2 John. (N. Y.) statute until after confirmation.
248; Catlin v. Gratz, 8 id. 520. « Leroux v. Brown, 12 C. B. 801;

1 Emleyt). Drumm, an«c; NichoUu. Williams «. Wheeler, 8 id. 299. See
Ridley, 6 Yerg. (Tenn.) 68. Chap, on "Memorandum or Note in

2 Jackson v. Bull, 1 John. Cas. (N. Writing."

Y.) 81. ' Sir Wm. Geant in Blagden v.

■ ' .Ba:;)arte Cutts, 3 Dea. 267. Bradhear, 12 Ves. 466; Attorney

^ Atty. Genl. v. Day, 1 Ves. Sr. General v. Day, 1 Ves. Sr. 218 ; Trice

218; Lord v. Lord, 1 Sim. 503; Blag^ v. Pratt, ID. & B. (N. C.) Eq. 626;

den V. Brodbear, ante ; Sutton v. Moore, Smith v. Arnold, 5 Mass. (U. S. C. C.)

25 Penn. St. 468 ; Watson v. Violett, 474.

2 Duer. (Ky.) 33; Halleck i^. Guy, 9 ' Attorney General v. Day, ante;

Cal. 181 ; Hutton v. Williams, 35 Ala. KaufCman v. Walker, 9 Md. 240 ;

503; Smith u. Arnold, 5 Mas. (U. S. Warfleld v. Dorsey, 39 Md. 299.
C. C.) 420; Armstrong v. Vroman,

468

STATUTE OF FEAITDS.

[chap. TI.

remained unquestioned, except that, in an early New York
case^ in which Chancellor Kekt criticised the ruling of
Lord Habdwicke as being too broad, but his remarks were
mere dicta, and the question before him was in reference to
a sheriff^s sale, which was clearly within the statute, while
Lord Haedwicke was disposing of a chancery sale, where
the statute did not apply, being a judicial sale, that is, a sale
made by the court, or under its direction, and upon the terms
and rules provided by a decree or order®; and which it
has the power to enforce by order, attachment, or other
summary process; and Chancellor Kent himself in
a later case,* in which it was sought to coerce a pur-

1 Simmonds v. Cottin, 2 Cai. {N.
Y.) 61.

2 Jenkins v. Hogg, 2 Const. (S. C.)
835 ; Brent v. Green, 6 Leigh ( Va.)
16; Barney W.Patterson, 6 H.& J. (Md.)
182 ; Harrison v. Harrison, 1 Md. Cli.
331 ; Kauffmau v. Walker, 9 Md. MO;
Andrews u. Scotten, 2 Bland's Oh.
(Md.) 29; Anderson v. Faulke, 2 H.
& G. (Md.) 346.

* Brasher v. Cortland, 2 John. Ch.
(N. Y.) 505. See, also, in Warfield v.
Dorsey, 39 Md. 299; 17 Am. Rep.
562, the appellee was tlie assignee of
two mortgages, each of which con-
tained a power of sale, as provided by
statute, and under the provision of
the statute and in all respects com-
plying therewith, he advertised the
property for sale at public auction,
and it was bid in by the appellant,
and four days afterwards filed his re-
port of the sale in the Circuit Court,
for Howard County. Some time
afterwards the appellant files excep-
tions to the ratification of the sale,
not questioning its fairness, but rely-
ing specifically upon the statute of
frauds. The exceptions were over-
ruled, and the sale ratified. Stewart,
J., saying : " If there was any irregu-
larity or unfairness about the sale
reported in this case, to the prejudice
of the appellant, he had the right and
ample opportunity to have shown it.
This has not been done, but he relies
upon the statute of frauds, 29th Ch.
II, ch. 3, as a sufficient defence for

his non-compliance with the terms of
sale ; and the question now involved
is, whether that statute, requiring a
memorandum in writing as to certain
sales of land, applies to a chancery
sale ; or sale under mortgage, as pro-
vided by the 64th article of the code.
The learned judge of the Circuit
Court, in delivering his opinion, has
shown much and commendable re-
search, and furnished a conclusive
argument as to the inapplicability of
the statute to sales of this description.
Chancery sales are neither within
the letter of the statute nor embraced
by its policy. In regard to such sales,
its provisions are not obligatory upon
the court, nor is there any reason why
they should be implied upon any
principles of analogy. Such sales are
conducted under the decrees or orders
of the court, which prescribes the
terms, and are always guarded by its
superintendence, and, therefore, can-
not be considered within the mischief
intended to be provided against by
that celebrated statute. Every in-
tendment will be made to support
them. The court acts for all the
parties through its officer, the trustee,
and they look to it for protection
against the consequences of his acts
or omissions. Kauifman v. Walker,
9 Md. 240. Whether the sale is made
by a trustee, according to Our practice,
or by a master, as in England, we
have been referred to no case, where
the sale, if made under the authority

SEC. 268.]

INTEKEST IN LANDS.

459

chaser of lands under a sale by a master in chancery, by
attachment, to perform his contract, said: "I do not mean at
present to lay down any general rule on the subject of co-
ercing a purchaser by attachment ; but I ought not to hesi-
tate under the circumstances of this case, and I have no doubt
the court may in its discretion do it in every case where the
previous conditions of the sale have not given the purchaser an
alternative. Here it has become necessary, in order to give
due effect to the authority and process of the court, and to
prevent them from being treated with contempt." In a case
involving this question,^ Judge Stoey said : " No doubt is

of the court, has been set aside upon
the ground that the sale was not evi-
denced by a memorandum in writing,
as provided by the statute. On the
contrary, the authorities are all the
other way, so far as we have dis-
covered. Chancellor Bland, in An-
drews V. Scotton, 2 Bland's Ch. (Md.)
29, has very fully discussed the sub-
ject as to the authority and practice
of the court in regard to sales made
in pursuance of its decrees or orders,
and his rulings have been affirmed by
this court in Anderson v. Foulke, 2 H.
& G. (Md.) 346. Throughout the
extent of his opinion, which displays
laborious research, and which is in-
corporated at length in the report of
that case, there is no allusion by the
chancellor or the Court of Appeals to
the statute of frauds, as affecting
sales made by the court, or under its
direction. In such case it is well
settled the court is in truth the ven-
dor, and not the trustee, who is its
mere agent, and there is no sale until
its approval. The public auction of
the property is a part of the proceed-
ing constituting the sale ; and the
bidders make themselves parties, and,
as such, have the right to interfere in
the proceedings ; their bids are propo-
sitions, and when accepted by the
trustee acting for the court, and when
the property is struck off accordingly,
they have no power, at their pleasure,
to retract them, and thus baffle and
defeat the sale. If they fail to com-
ply with all or any pf the" terms pro-
posed and accepted, the court has

the power to compel compliance by
attachment or other suitable process,
according to the nature of the case.
Code, art. 16, § 131. The provisions
were intended to clothe the court with
adequate authority, if there was any
doubt of its existence before, to com-
pel compliance with the terms pre-
scribed by its decree or order for the
sale of the property. In the case of
Richardson v. Jones, 3 G. & J. 164,
before the enactment of the code,
these powers of the court were fully
recognized. It was distinctly held by
this court that, where a sale is made
under a decree or order in chancery,
and no bond or security is given for
the payment of the purchase-money,
it was the practice, sanctioned by this
court in Anderson o. Foulke, 2 H. &
G. 346, to compel the purchaser to
compel his purchase by an order on
him, in a, summary way, to pay or
bring the money into court ; and that
from necessity, arising from the
peculiar character of the transaction.
Before the ratification the trustee
cannot sue, because the sale is not
complete and binding — the contract
is not perfect — nor can he sue at law
after the ratification, because it be-
comes thereby a sale by the court —
a contract with the court, and the
whole reasoning of the court is utterly
inconsistent with any theory, that the
contract of sale was affected by the
statute of frauds."

1 Wood V. Mann, 3 Sum. fU. S. C.
C.) 310.

460 STATUTE OP TKAUDS. [CHAP. VI.

now entertained that a court of equity may, by attachment,
compel a purchaser, at a sale by the master, to complete his
purchase by paying in the purchase-money. It stands upon
the plainest principle of the court, that he who makes himself
a party to the proceedings of the court, and undertakes to do
a particular act, under the decretal orders of the court, may
be compelled to perform what he has undertaken. It is a
mere incident to the due exercise of the principal jurisdiction,
and indispensable to the enforcement of the orders of the
court upon persons who have submitted themselTes to its
jurisdiction ; a sale might otherwise become a mere mockery,
and give entire immunity to purchasers to speculate upon the
chances of the sale. The notion is utterly groundless, that
no person but a direct party to the suit can be made subject
to the orders or process of the court." In a later case ^ before
the same court, under the Rhode Island Statute of Frauds,
the same doctrine is reiterated by Stoky, J., who said : " In
sales directed by the Court of Chancery, the whole business
is transacted by a public officer under the guidance and
superintendence of the court itself; the sale is not final until
a report is made to the court and approved. Either party
may object to the report, and the purchaser himself, who be-
comes a party to the sale, may appear before the court, and
if any mistake has occurred, may have it corrected. He
becomes a party in interest, and may represent and defend
his own interests ; and if he acquiesces in the report, he is
deemed to adopt it, and is bound by the decree of the court
confirming the sale. He may be compelled, by the process
of the court, to comply with the terms of the contract. So
that the whole proceedings are under the direction of the
court ; and the case does not fall within the mischiefs sup-
posed by the statute." But in this case the question was
whether an administrator's sale was to be regarded as a
judicial sale, and therefore not within the statute, and it was
held that such sales are not judicial sales, and are within the

1 Smith V. Arnold, 5 Mas. (TJ. S. 626 ; Hutton v. Williams, 35 Ala. 503 ;

C. C.) 420. See, also, Jenkins v. Brent v. Green, ante; Watson v.

Hogg, 2 Treadw. (S. C.) 821; Boykin Violett, 2 Duv. (Ky.) 332; Fulton v.

V. Smith, 3 Munf. (Va.) 102; Arm- Moore, 25 Penn. St. 468; Halleck v.

strong V. Vroman, 11 Minn. 220 ; Guy, 9 Cal. 181.
Trice v. Pratt, 1 D. & B. (N. C.) Eq.

SEC. 268.] INTEEEST IN LANDS. 461

statute. "In the case of an administrator," said Stoey, J.,
" the authority to sell is indeed granted by a court of law.
But the court when it has once authorized the administrator to
sell, is functus officio. The proceedings of the admuiistrator
never come before the court for examination or confirma-
tion. They are mere matters in pais over which the court
has no control. The administrator is merely accountable to
the court of Probate for the proceeds acquired by the sale, in
the same manner as for any other assets. But whether he
has acted regularly or irregularly in the sale, is not matter
into which there is any inquiry by the court granting the
license, or by the court of Probate having jurisdiction over
the administrator of the estate. So that the present case is
not a judicial sale in any just sense, but it is execution of a
ministerial power. The sale is not the act of the court, but
of the administrator." But if the statute made it obligatory
upon the administrator to make a report of the sale to the
court, and the court had authority to confirm it or not, the
rule would be otherwise.^ Other sales at auction, as we
have seen, whether by individuals, town officers or sheriffs,
constables or marshals, under executions, or other legal pro-
cess, are, as before stated, held to be within the statute*
Tinless by statute they are made judicial sales.

1 See Warfield v. Dorsey, ante, son, 4 Penn. St. 171 ; Wolf t>. Sharp,
where a sale vmder a power in a mort- 10 Eich. (S. C.) L. 60; Carroll v.
gage, under the provisions of the Powell, 48 Ala. 298 ; Emley w. Drum,
statute, was held to be a judicial sale, 36 Penn. St. 123 ; Warfield i<. Dorsey,
the seller being required to file a re- ante; Tate v. Greenlee, 4 Der. (N. C.)
port of the sale, and the court having 149 ; Buckle v. Barbour, 48 Ind. 274 ;
the power to confirm or reject it. Ingram v. Dowdle, 8 Ired. (N. C.)

2 Barney v. Patterson, ante; Sim- 455.
monds v. Cottin, ante ; King v. Gunni-

SECTION VI.

" No action shall be brought whereby to charge any person upon any
agreement, that is not to be performed within the space of one year from
the making thereof."

CHAPTER VII.

COKTKACT NOT PERFORMABLE IN A TEAR.

BECTIOir.

269. Contract must be One Not to be Completed within the Year.

270. Contract which may Possibly be Performed within a Year.

271. Agreement to be Performed on a Contingency.

272. Contract for Service to Commence at a Future Day.

273. Hiring for One Year.

274. Contracts not to be Performed within a Year.

275. When Contract may or may not be Performed within a Year.

276. Contract, when Presumed to Commence at Once.

277. Performance on one side, Effect of.

278. Contract Defeasible within a Year.

279. Contract Executed by one of the Parties.
280. ' Agreement not to do Certain Things.

Section 269. Contract must be One Not to be Completed
within the Year. — In order to bring a contract within this clause
of the statute it must be one which from its very terms shows that
the parties intended that it was not to be completed within the year,
and therefore part performance within the year will not take
the (5ase out of the statute.^ This was decided in BoydeU v.

1 Herrin v. Butters, 20 Me. 119 ; may be performed within the year by

Harris v. Porter, 2 Harr. (Del.) 27; A ceasing to be agent. Roberts v.

Comstock V. Ward, 22 III. 248. An Rockbottom Co., 7 Met. (Mass.) 46.

agreement to pay money after the But a contract to work for another

lapse of a year, for land to be five years in consideration of certain

presently conveyed, is within the things to be done by him, is within

statute. Marcy v. Marcy, 9 Allen the statute. Pitcher v. Wilson, 5 Mo.

(Mass.) 8. An agreement made Dec. 46; Drummond v. Burrell, 13 Wend.

14, 1856, to rent a house for the (N. Y.)307; so also is an agreement

year 1857 is within the statute. At- to sell the crops of this and the suc-

wood V. Norton, 31 Ga. 507. So is a ceeding year at a certain price. At-

contract to marry within Jive years, wood v. Fox, 30 Mo. 499. See also

Derby v. Phelps, 2 N. H. 515 ; Paris Emery v. Smith, 46 N. H. 151 ; Hill

V. Strong, 51 Ind. 339; or to labor for v. Hooper, 1 Gray (Mass.) 131. So a

another three years. Tuttle v. Swett, contract for board for one year to

31 Me. 555. But an agreement to begin at a future day is within the

work for another five years, or so long statute. Spencer v. Halstead, 1 Den.

as A shall remain agent for the company, (N. Y.) 606. So a contract for a lease

is not within the statute, because it for more than one year, to commence

464 STATUTE OF FEATJDS. [CHAP. VII.

Drummond.^ There the defendant subscribed to the " Boy-
dell Shakespeare," which it was intended to publish in num-
bers, at least one number to be published annually, and it
was the intention of the parties that the period of publica-
tion should extend over several years. No suiBcient contract
was signed by the defendant, and after receiving and paying
for several numbers, he refused to continue his subscription.
It was held that no action could be maintained against him.
LoKD Ellenbokough, C. J., said : " The whole scope of the
undertaking shows that it was not to be performed within a
year; and if, contrary to all physical probability, it could
have been performed within ihat time, yet the whole work
could not have been obtruded upon the subscribers at once,
so as to have entitled the publishers to demand payment of
the whole subscription from them within the j'^ear. It has
been argued that an inchoate performance within a year is
sufficient to take the case out of the statute ; but the word
used in this clause of the statute is ' performed,' which ex vi
termini must mean the complete performance or consimima-
tion of the work : and that is confirmed by another part of
the statute requiring only part performance of an agreement,
to supersede the necessity of reducing it to writing ; which
shows that when the legislature used the word ' performed '
they meant a complete, and not a partial performance. . . .
Here by the very terms of the contract, and clearly in the
contemplation of the parties, from the whole scope of it, it
was not to be performed within a year ; for the agreement
was, to publish at least one number annually, after the de-
livery of the first, and according to the number of pictures
to be published, at the rate of two for each play, the work
would consist of many numbers." And Bayley, J., said : ^
" It was clearly the understanding of all parties that the con-
tract was not to be performed within a year, and if the pub-
lishers could by possibility have completed the work within
that time, they could not have compelled the defendant to

at a future day, is invalid as being a Tunnell, 3 T. B. Mon. (Ky.) 247 ;

contract not to be performed in one Wilson v. Martin, 1 Den. (N. Y.) 602;

year, although by statute a parol Atwood v. Norton, 31 Ga. 507 ; Com-

lease for a longer period would be stock v. Ward, 22 111. 248.
valid if to commence instanter. Streht i 11 East, 142.

V. D'Evens, 66 111. 77 ; Roberts v. ^ p. 159.

SEC. 269.] CONTEACT NOT PEEFORMABLB IN A YEAK. 465

have taken and paid for it immediately. I use tlae word
' completed ' because I think that is the true meaning of the
word 'performed' used in the statute. The cases have de-
cided that in order to bring a contract within this branch of
the statute, it must either have been expressly stipulated, or
it must appear to have been the understanding of the parties,
that it was not to be performed within a year. That does
appear in the present case, and I cannot say that a contract
is performed, when a part of it remains unperformed within
the year ; or in other words, that part performance is per-
formance." ^ So where the following memorandum was made
between the plaintiff and defendant, and signed with their
respective initials: "Diet of Practice £80 per annum, for
five years, commencing Michaelmas, 1828 : £60 per annum
for the remainder of Mr. Lee's life, if he survive the first five
years: payable in either case quarterly, the first payment
Michaelmas, 1828. • Mr. Lee to separate the practices K B,
and C P ; " it was held that inasmuch as the memorandum
appeared to be of a contract that was not to be performed
within a year, and no consideration was stated on the face of
it, it came within the fourth section of the statute, and was
therefore not capable of being enforced by action.^

In Eley v. The Positive Assurance Company,^ the articles
of association of a company contained a clause in which it
was stated that the plaintiff should be solicitor to the com-
pany, and should not be removed from his office unless for
misconduct. The articles were signed by seven members of
the company, and were duly registered. The plaintiff was
not appointed solicitor by any instrument under the seal of
the company. It was held that the contract was one "not

1 And see Bracegirdle v. Heald, was held, and the doctrine of this latter

1 B. & Aid. 726. A parol promise to case is sustainable upon the ground

pay a father flOO, in four annual in- that the contract is terminable upon a

stalments of $25 each, if he will name contingency, to wit, the death of the

his son after the promisor, is within child. See also, to the same effect,

the statute, as not to be performed Dresser v. Dresser, 35 Barb. (N. Y.)

within a year. Parks u. Francis, 50 573; Peters v. Westborough, 19 Pick.

Vt. 626. So in Indiana is an agree- (Mass.) 364.

ment to support a young child until ^ Sweetw. Lee, 4 Sc. (N. K.) 77-90;

it attains the age of majority. Good- and see Roberts v. Tucker, 6 Exch.

rich u. Johnson, 66 Ind. 258. Although 632.
in McICinney v. McCloskey, 8 Daly « L. E. 1 Ex. D. 20.
(N. Y. C. P.) 368, a different doctrine

466 • STATUTE OF FRAUDS. [CHAP. VII.

to be performed within a year," and must therefore be in
writing, and that the signatures to the articles of association,
which were affixed alio intuitu, were not signatures to a
memorandum of the contract within the statute so as to
bind the company. With great deference to the court, it
seems to us that this decision is wrong, according to all the
American and English authorities, and upon principle, be-
cause the contract might be terminated within a year by the
misconduct of the plaintiff, and stands upon the same footing
as a contract by which one agrees to serve another as long as
they are mutually satisfied,^ or so long as the parties shall
respectively please,^ which are held not to be within the
statute.

Where a contract is void by reason of the statute, but ser-
vices have been rendered and things actually done in pursu-
ance of the contract, the terms upon which the services were
rendered and the things done, may be proved by parol evi-
dence.^

Sec. 270. Contract 'Which may Possibly be Performed within
a Year. — But where the contract is such that the whole may be per-
formed within a year, and there is no express stipulation to the con-
trary, the statute does not apply.* Thus, a contract for the
maintenance of a child at the defendant's request, to con-

1 Greene v. Harris, 9 E. I. 401. man, 10 Wis. 59; Thompson v. Gor-

2 Beeston v. CoUyer, 4 Bing. 309; don, 3 Strobh. (S. C.) 196; EUicott
Giraud v. Richardson, 2 C. B. 835. v. Peterson, 4 Md. 476; Scoggins v.

» Souch V. Strawbridge, 2 C. B. Heard, 31 Miss. 426; Gladsden v.

808; 15 L. J. C. P. 172; CoUis v. Lance, 1 McMull. (S.C.) Eq. 87; Peters

Bothamley, 7 W. R. 87 ; and see Add. v. Westborough, 19 Pick. (Mass.) 364 ;

on Contrs. 7th ed. 153. Broadwell v. Getman, 2 Den. (N. Y.)

* Where a contract may or may 87; Moore c. Fox, 10 John. (N. Y.)

not be performed in a year, it is not 244 ; Lockwood v. Barnes, 3 Hill (N.

within the statute. In order to bring Y . ) 128 ; Houghton v. Houghton, 14

it within the statute it must appear Ind. 505; Doyle v. Dixon, 97 Mass.

from the agreement itself, that it is 208; Scoggin v. Blackwell, 36 Ala.

not to be performed within a year. 351 ; Dresser v. Dresser, 35 Barb. (N.

Russell V. Slade, 12 Conn. 455; Blan- Y.) 573; Howard v. Burgen, 4 Dana

chard v. Weeks, 34 Vt. 589 ; Sherman (Ky.) 137 ; Bull v. McCrea, 8 B. Mon.

V. Champlain Transn. Co., 31 id. 162; (Ky.) 422 ; Worthy v. Jones, 11 Gray

Izard V. Middleton, 1 Dessau (S. C.) (Mass.) 168; Richardson v. Pierce, 7

116; Burney v. Ball, 24 Ga. 505; R. I. 330; Lyon v. ICing, 11 Met.

Estyu. Aldrich, 46N. H. 127; Bland- (Mass.) 411; Smalley v. Greene, 52

mg V. Sargent, 83 N. H. 239 ; Wiggins Iowa, 241 ; 35 Am. Rep. 267 ; Blair

V. Kisser, 6 Ind. 252; Thourwin v. &c. Co. v. Walker, 30 Iowa, 406;

Lea, 26 Tex, 612 ; Rogers a. Bright- Riddle v. Backus, 38 id. 81.

SEC. 270.] CONTRACT NOT PBRFORMABLE IN A YEAR. 467

tinue "so long as the defendant shall think proper," is a
contract upon a contingency, the performance of which is
not necessarily to take place beyond the space of a year, and
therefore is not within the statute.^ So where the defend-
ant, who was the father of seven illegitimate children of the
plaintiff, agreed with her verbally to pay her £300 per annum
by equal yearly instalments, for so long as she should main-
tain and educate them, the eldest child being then fourteen
years old, it was held that the agreement was binding.^ So
where a person contracts to support another during his or
her life,^ or not to carry on a certain trade in a certain place,*
or to work for a person as long as he lives,^ or so long as a
certain person remains agent for the employer,® the contracts
are not within the statute, because they may be performed
within a year.

And an ag;reement whereby, in consideration of A not
taking proceedings against B's son, B agreed to maintain
and clothe A, and supply him with the grass for two sheep
during his life, was held not to be within the statute, as the
life of A was an uncertain event which might determine
within a year.'' But an agreement to maintain a child
known to be about five years old until she could "do for
herself," was held to be within the statute, as it clearly
contemplated an event not to be performed within a year,
although it might be determined by the death of the child
within a year.^

So where a testator promised by parol for valuable con-
sideration to leave his brother's children a certain amount by
will, it was held that a binding obligation was constituted

1 Souch 17. Strawbridge, 2 C. B. 54 N. H. 518, Blanding v. Sargent,
808. 33 id. 239 ; Packet Co. v. Sickles, 5

2 Knowlmanu.Bluett,L.E. 9Ex.l. Wall (U.S.)580; Somerby w. Buntin,
" Bull u. McCrea, 8 B. Mon. (Ky.) 118 Mass. 279; Guerard v. Daudelet,

422 ; Dresser v. Dresser, 35 Barb. (N. 32 Md. 561.

Y.) 573; Howard v. Burgen, 4 Dana ^ Updike v. Ten Broeck, 32 N. J.

(Ky.) 151 ; Hutchinson v. Hutchinson, L. 105.

46 Me. 154. ^ Roberts v. Bockbottom Co., 7

* Smalley v. Greene, 52 Iowa, 241 ; Met. (Mass.) 46.
.35 Am. Rep. 267; Richardson v. ' Murphy w. O'SuUi van, 11 Ir. Jur.

Pierce, 7 E.I. 330; Doyle .. Dixon, 111.

97 Mass. 208 ; Lyon v. King, 11 Met. ^ Farrington v, Donohoe, 1 Ir. Eep.

(Mass.) 411; Worthy v. Jones, 11 C. L. 675.
Gray (Mass.) 168; Perkins v. Clay,

468

STATUTE OP FRAUDS.

[chap. vn.

which could be specifically performed.^ And where a parol
promise was made to pay so much money upon the return of
such a ship, which ship happened not to return within two
years' time after the promise was made, it was held that this
was a good promise, and not within the statute, as by possi-
bility the ship might have returned within a year.^

Sec. 271. Agreement to be Performed on a Contingency. —

Where an agreement is to he performed on a contingency which may

1 Ridley v. 'Ridley, 34 Bear. 478 ;
6 N. R. 11 ; 34 L. J. Ch. 462 ; and see
Fenton v. Emblers, 3 Burr. 1282; 1
"W. Bl. 358.

2 Anon. 1 Salk. 280 ; and see Fran-
cam V. Foster, Skin. 326. Tlie statute
does not extend to contracts which
are to he performed upon the happen-
ing of some uncertain event, and
which may not consequently be com-
pleted within a year. An agreement
consequently to pay the plaintiff so
many guineas on the day of his mar-
riage, was held not within the statute,
although the marriage did not take
effect for nine years, for" it might
hare happened within a year. Peter
V. Compton, Skin. 353; Holt, 326;
Smith V. Westall, 1 Raym. 316; Souch
V. Strawbridge, 2 C. B. 808 ; 15 Law
J. C. P. 172.' And where an oral
promise was made to pay so much
money on return of a ship, which ship
happened not to return witliin two
years after the time of the making of
the promise, it was held that the
promise was not within the statute,
for that, by possibility, the ship might
have returned within the year, though
by accident it happened that it did
not, and that the clause in the statute
only extended to such promises and
agreements as were, by the express
appomtment of the parties, not to be
performed within a year from the
time of making thereof. Anon. Salk.
280 ; Fenton v. Emblers, 3 Burr. 1282.
And it has been laid down, that
"where the agreement is to be per-
formed upon a contingency, and it
does not appear, within the agree-
ment, that it is to be performed after

a year, there a note in writing is not
necessary, for the contingent and un-
certain event might happen within
the year ; but where it appears by the
whole tenor of the agreement, that it
is to be performed after the year,
there a note is necessary, otherwise
not." "Wells V. Horton, 12 Moo. 182,
183 ; 4 Bing. 43, 44 ; Moore v. Fox, 10
John. (N. Y.) 244; Harris v. Porter, 2
Harr. (Del.) 27; Broadwell v. Get-
man, 2 Den. (IS. T.) 87; Linscott v.
Mclntire, 3 Shep. 201; Peters ;;.
"Westborough, 19 Pick. (Mass.) 364;
Kent V. Kent, 18 Pick. (Mass.) 569;
Roberts v. Rockbottom Co., 7 Met.
(Mass.) 46; Russel v. Slade, 12 Conn.
455; Thompson v. Gordon, 3 Strobh.
(S. C.) 196; Ellicott v. Peterson, 4
Md. 476. Neither does the statute
apply where the contract is wholly
executed, or intended to be so, by one
of the parties thereto, within the year,
although there are some acts to be
done by the other party beyond the
prescribed limit. Thus, where a land-
lord agreed to lay out £50 in improve-
ments upon the demised premises,
and the tenant agreed to pay £5 per
annum for the remainder of his term,
of which several years were then un-
expired, in addition to the reserved
rent, and the £50 was expended with-
in the year, and the landlord after-
wards brought his action for the
arrears of the £5, it was held that he
was entitled to recover, though the
agreement had not been put into
writing and signed. Donellan v. Read,
8 B. & Aid. 906; Cherry v. Hemmg, 4
Exch. 681; 19 Law J., Exch. 63;
Mavor v. Pyne, 11 Moore, 2.

SEC. 271.J CONTRACT PEEFOEMABLE ON CONTINGENCY. 469

happen witJiin the year after it is made, and it does not appeal' on
the face of the agreement that it is to be performed after the year,
it does not fall within the statute.^ Where, therefore, a
debtor to the plaintiff stated to the plaintiff's solicitor, on
being applied to for payment, that he, the debtor, could not
pay then or during his lifetime, but that he had provided for
payment by his will, and directed his executor to pay, it was
held that the promise was binding on the executor, although
there was no promise in writing by him to pay.^

So where the defendant promised for one guinea to give
the plaintiff so many at the day of his marriage, and the
marriage did not take place for nine years, it was held that a
writing was not necessary, and the court said, that where the
agreement is to be performed upon a contingent, and it does
not appear within the agreement that it is to be performed
after the year, then a note in writing is nat necessary, for the
contingent might happen within the year. Under this head
is an agreement to pay a certain sum in consideration of
acting as an agent for the defendant for "a reasonable
time,"* or to pay any excess over the purchase-price of land
which may be sold "within five years,"* or a contract of

1 Doyle ■/. Dixon, 97 Mass. 208; 66 Ala. 162; East Tenn. &O.E.E. Co.
Eichardson v. Pierce, 7 E. I. 330; u. Staet, 7 Lea (Tenn.) 397; Parker
Dresser v. Dresser, 35 Barb. (N. Y.) v. Siple, 76 Ind. 345; Niagara F. Ins.
573 ; Wells v. Horton, 4 Bing. 40 ; Co. v. Greene, 77 id. 590 ; Sherman v.
Eidley v. Eidley, 34 Beav. 478 ; Jilson Champlain Transn. Co., 31 Vt. 162 ;
V. Gilbert, 26 Wis. 637 ; King v. Knowlman v. Bluett, L. E. 9 Exchq.
Hanna, 9 B. Mon. (Ky.) 369; Izard 1; ElUcott v. Turner, 4 Md. 476;
V. Middleton, 1 Dessau (S. C.) Eq. Wilhelm v. Hardman, 13 id. 140;
116; Clark v. Pendleton, 26 Conn. Erost v. Tarr, 53 Ind. 390; Bull v.
495; Eiddle v. Backus, 38 Iowa, 81 ; McCrea, 8 B. Mon. (Ky.) 422; Hutch-
Walker V. Metropolitan Ins. Co., 56 inson v. Hutchinson, 46 Me. 154;
Me. 371 ; Houghton v. Houghton, 14 Updike v. Ten Broeck, 32 N. J. L.
Ind. 505; Esty v. Aldrieh, 46 N. H. 105; Berry v. Doremus, 30 id. 399;
127; Greene v. Harris, 9 E. I. 401; Ehodes d. Ehodes, 3 Sanf. Ch. (N. Y.)
Abbott V. Inskep, 29 Ohio St. 59; 285; Talley v. Greene, 2 id. 91; Har-
Bumey v. Ball, 24 Ga. 505 ; Wiggins per v. Harper, 57 Ind. 347 ; Howard
V. Keizer, 6 Ind. 252; Blakeney v. u. Burgen, 4 Dana (Ky.) 137; Blake
Goode, 30 Ohio St. 350; Heath v. w. Cole, 22 Pick. (Mass.) 97 ; Sword k.
Heath, 31 Wis. 223 ; Trustees v. Keith, 31 Mich. 247.
Brooklyn F. Ins. Co., 19 N. Y. 305 ; = Wells v. Horton, 12 Moo. 177 ;
Alderman v. Chester, 34 Ga. 162; 4 Bing. 40; and see Smith w. Neale, 2
Thompson v. Gordon, 3 Strobh. (S. C. B. (N. S.) 67 ; Smith v. Westall,
C.) L. 196; Talmadge v. Eens. & Bar. Ld. Eaym. 316; 3 Salk. 9.
E. E. Co., 13 Barb. (N. Y.) 493; Gil- ' Niagara F. las. Co. v. Greene, 77
bert V. Sykes, 16 East, 150 ; .lordan v. Ind. 590.
Miller, 75 Va. 442; Derrick v. Brown, < Parker v. Siple, 76 Ind. 346. But

470 STATUTE or FRAUDS. . [CHAP. VII.

partnership without any fixed or definite duration and the
business of which may .be terminated within a year,^ or an
agreement to employ a person in ill health until he gets
well,2 or to pay for lands when a certain pending suit is ter-
minated,^ or by a tenant for a term of three years to build a
fence during the term,* or to take all the wood a person may
cut not exceeding one thousand cords,'' or to print and sell
the products of a certain mill until the owner has realized a
profit of 150,000,^ or a contract to continue as long as the
parties are mutually satisfied,'' or to work for another as long
as he lives,^ to educate a child,^ to support a person during
his life,^" to pay a debt when a certain person dies,^'^ to marry
when a certain voyage is ended, ^^ to pay a certain sum
annually during coverture,^^ not to carry on a certain trade
in a certain place,^* to pay for services at the death of the
employer or by will,^^ or to pay a person a certain sum
annually as long as he lives,i^ or so long as another person
lives,!^ or, indeed, any contract the duration of which de-
pends upon an uncertain event or contingency which may
happen within one year, however improbable it may be that
it will happen ; hut where it appears by the whole tenor of the
agreement that it is to he performed after the year, there a note
is necessary?-^ Thus, where a person verbally agreed to work
for another, and that he would not leave him for "two years,"
nor in the summer, nor without two weeks' notice, it was held
to be a contract not to be performed within a year, and there-

see Derby v. Phelps, 2 N. H. 515, i" Bull v. McCrea, 8 B. Mon. (Ky.)

where a promise to marry "within 422; Hutchinson v. Hutchinson, 46

five years " was held to be within the Me. 154.

statute. ^^ Thompson v. Gordon, ante.

1 Jordan v. Miller, 75 Va. 442. 12 ciark v. Pendleton, 20 Conn. 495.

^ East Tenn. &c. R. R. Co. v. See statement of ease ante, p. 313.

Staub, 7 Lea (Tenn.) 397. " Houghton v. Houghton, 14 Ind.

8 Derrick v. Brown, 66 Ala. 162. 505.

* Marley v. Noblett, 42 Ind. 85. " Richardson v. Pierce, 7 R. I. 330 ;

5 Van Woert v. Albany &e. R. R. Smalley v. Greene, 52 Iowa, 241 ; 35
Co., 1 T. & C. (N. Y.) 266. See also Am. Rep. 267.

S. P. Larimer v. Kelley, 10 Kan. 298. 1= Kent i>. Kent, ante ; Bell v.

6 Hodges V. Richmond Mf' g Co., 9 Hewitt, 24 Ind. 280.

R. I. 482. 18 Hutchinson v. Hutchinson, ante.

' Greene v. Harris, 9 R. I. 401. " Gilbert v. Sykes, 16 East, 150.

8 Kent tf. Kent, 62 N. Y. 560 ; Up- " Peter v. Compton, Skin. 353;
dike V. Ten Broeck, 32 N. J. L. 116. Holt, 326; and see Gilbert v. Sykes,

9 EUicott V. Turner, 4 Md. 476. 16 East, 154.

SEC. 272.] CONTRACT TO COMMENCE AT FUTURE DAY. 471

fore within the statute.^ The rule is that, if the agreement
cannot be fully performed within a if ear, the fact that it may
be terminated or further performance rendered impossible by
the death of one or both the parties, is not sufBcient to take
it out of the statute, because the instances in which the death
of one of the parties within the year takes the case out of the
statute are where the person^s death leaves the contract fully
performed? It was upon this rule that the doctrina of Hill
V. Hooper ^ was predicated. In that case, an agreement to
employ a boy for five years, and to pay his father certain
sums at stated periods during that time, was held to be
within the statute, for, although by the death of the boy
the services which were the consideration of the promise
would cease, and the jjromise thereby be determined, yet the
contract would not be completely performed. In a California
case,* an agreement to pay certain money borrowed when
certain nut-bearing trees, about to be planted upon the bor-
rower's farm, yield an income sufficient to pay the same over
and above the expenses of the borrower's family, being im-
possible of performance within one year, was held to be
within the statute. A contract to work for another two
years, for $100 for the first year and #200 for the second
year, is within the statute, because it cannot possibly be
fully performed in one year.^ So also is a contract that a
horse sold by the promisor shall prove sound for one year,
and that if after the expiration of that time it proves un-
sound he will take it back and pay the purchaser flOO,
because from the very terms of the contract it is not to be
operative until after a year has elapsed.^ A contract to
deliver a crop of hemp raised the present year, and what
may be raised in two succeeding years, is clearly within the
statute, because impossible of performance in one year.''

Sec 272. Contract for Service to Commence at a Future
Day. — A contract for a year's service to commence at a
future day, being a contract not to be performed within a

1 Bemier v. Cabot Mf g Co., 71 ^ Emery v. Smith, 46 N. H. 151.
Me. 506 ; 36 Am. Eep. 343. « Shipley v. Patton, 21 Ind. 169.

2 Doyle V. Dixon, 97 Mass. 212. ' Holloway v. Hampton, 4 B. Mon.
8 Hill V. Hooper, 1 Gray (Mass.) (Ky.) 415. See also Kellogg w. Clark,

131. 23 Hun (N. Y.) 393; Day v. N. Y.

* Swift V. Swift, 46 Cal. 266. Centl. R. R. Co., 22 id. 412.

472 STATUTE OP FRAUDS. [CHAP. Vn.

year from the making, is within the statute. In Bracegirdle
V. Heald,! Lord Ellenborough said : " If we were to hold
that a case which extended one minute beyond the time
pointed out by the statute, did not fall within its prohibi-
tion, I do not see where we should stop; for in point of
reason, an excess of twenty years will equally not be within
the act. Such differences rather turn upon the policy than
the construction of the act."^ In Cawthorne v. Cawdrey,^
it was held that a contijact of hiring made on the 24th of
March for a year's service to commence on the 26th, was not
void by the statute ; but that case was decided on the ground
that there was evidence upon which the jury were at liberty
to find that there was a contract on the 24th for a year's
service. Although no action can be brought on the parol
agreement, the servant may, in the event of sufficient' service
under it, acquire a settlement.*

Sec. 273. Hiring for One Year. — A general hiring for a
year, and so on from year to year, for so long a time as the
parties shall respectively please, is not within the statute.^

A contract for personal service which by its terms is to
continue for a longer period than one year, even to the
extent of one minute,^ is within the statute. Thus, a con-
tract to labor for another three hundred and sixty-six days
would clearly be within the statute : '' so when the master

^ 1 B. & Aid. 722. year, and by the statute must be in

^ And see Snelling v. Lord Hunt- writing; therefore no action can be

ingfield, 1 C. M. & R. 20 ; 4 Tyr. 606 ; maintained for the breach of a verbal

Banks v. Crossland, L. E. 10 Q. B. 97. contract made on the 27th May, for

' 18 C. B. (N. S.) 406; Dickson v. a year's service, to commence on the

Frisbie, 52 Ala. 165 ; Eussell v. Slade, 30th June following. Bracegirdle v,

12 Conn. 455. Heald, 1 B. & Aid. 722.

* Bracegirdle t. Heald, 1 B. & In Snelling v. Huntingfield, 1 C.

Aid. 727, per Baylev, J. M. & E. 20 ; 4 Tyr. 606, A, on the

6 Beeston v. CoUyer, 12 Moo. 20th of July, made proposals in writ-

552 ; 4 Bing. 309 ; Giraud v. Rich- ing (unsigned) to B, to enter his ser-

mond, 2 C. B. 835. viee as bailiff for a year ; B took the

" Addison on Contracts, 40 ; Brace- proposals and went away, and entered

girdle v. Heald, 1 B. & Aid. 722 ; into A's service on the 24th of July.

Snelling v. Lord Huntingford, 1 C. Held, that this was a contract on the

M. & E. 25. 20th, not to be performed within the

' Tuttle V. Sweet, 31 Me. 55. A space of one year from the making,

contract for a year's service, to com- and within the 4th section of the

mence at a subsequent day, is a con- statute of frauds,

tract not to be performed within the In Davenport v. Gentry, 9 B. Mon.

SEC. 273.J CONTRACT OF HIEING FOE A YEAE.

473

loans the servant a certain sum, as £100, and the servant
agrees to work it out at the rate of j£60 a year;i so where
the service is for one year, but part is to be performed in one
year and part in another.^ Thus a contract to deliver a crop
of hemp raised the present year, and what may be raised the
two succeeding years, is an entire contract, and within the
statute ; * and, indeed, any contract which by its terms carries
the performance beyond one year, for however short a period,
is within the statute and cannot be enforced.* A parol agree-

(Ky.) 427, several slaves agreed with
the plaintlfE that if he would purchase
their freedom they would work for
him five years. He sold his claim to
the defendant for §500. In an action
to recover the amount, it was held
that the contract was within the stat-
ute, and that the defendant was only
liable for the actual value of the
slaves' labor.

In Hall V. Rowley, 2 Root (Conn.)
161, in December, 1787, A made a
parol agreement with C, that B, his
minor son, should serve C five years.
Within those five years B, having
attained his majority, left the service
of C. In an action on the case,
brought by C against A, in January,
1793, it was held that the case was
within the statute, and as the action
was commenced more than three years
after the making of the contract, it
was not sustainable.

1 Currie v. McLean, 2 Macph. (Sc.)
1076.

2 Hinckley i>. Southgate, 11 Vt.
428; Foote v. Emerson, 10 id. 338.

* Holloway v. Hampton, 4 B. Mon.
(Ky.) 415.

* Comstock !). Ward, 22 III. 248;
llerrin v. Butters, 20 Me. 119; Harris
V. Porter, 2 Harr. (Del.) 27. In Nones
V. Homer, 2 Hilt. (N. Y.) 116, the
court say : " A contract to enter into
the employ of another, and remain a
day more than a year, is a contract
not to be performed within a year,
and is therefore void. But," say the
court, " the employer having derived
a benefit from the servant's part per-
formance under such a contract, is
liable to an action for the services

actually rendered." But in such
bases the contract does not control,
nor generally is it admissible in evi-
dence to establish the value of the
services. Lang v. Henry, 54 N. H.
57; Kelley v. Terrell, 26 Ga. 551;
Hearne v. Chadboume, 65 Me. 302;
Shipley v. Fatten, 21 Md. 169 ; Klee-
man ». Collins, 9 Bush. (Ky.) 460;
Sharp V. Ehiel, 55 Mo. 97.

Where an agreement distinctly
shows upon the face of it that the
parties contemplated its performance
to extend over a greater space of time
than one year, it is within the statute ;
but where the contract is such that
the whole may be performed within a
year, and there is no stipulation to
the contrary, the statute does not
apply. Per Tindal, C. J., Souch v.
Strawbridge, 2 C. B. 815; Boydell t>.
Drummond, 11 East, 142. The cases
on this subject will be found collected
in 1 Smith's Lead. Cas., note to Peter v.
Compton ; and see Cherry v. Heming,
4 Exch. 631.

Accordingly, where the defendant
verbally agreed on the 27th of May, to
take the plaintiff into his service, as
groom and gardener, for a year, to
commence on the 30th of June follow-
ing, but afterward refused to receive
him, it was held that the plaintiff
could not sustain any action for such
breach of contract, as there was no
written agreement; Lord Ellen-
borough, C. J., saying : " If we were
to hold that a case which extended
one minute beyond the time pointed
out by the statute did not fall within
its prohibition, I do not see where we
should stop ; for, in point of reason,

474'

STATTJTB OP FBAXnJS.

[chap. VII.

ment that the son of A shall serve B four years is void, and
a service of five months under it does not take the case out
of the statute.^

Sec. 274. Contracts not to be Performed 'within a Year. —
The rule is, that all contracts which by their express terms are not
to be performed within one year,^ or contracts in which perform-
ance within one year is impossible, are within the statute : as

an excess of twenty years will equally
not be within the act." Bracegirdle
V. Heald, 1 B. & Aid. 722.

So where the defendant, on the
20th of July, proposed to hire the
plaintiff as bailiff for one year, to com-
mence on the 24th of July, and the
defendant at that time wrote a memo-
randum (but which was signed by
neither of the parties), which was de-
livered to the plaintiff and by him
taken away, stating the terms on
which the plaintiff was to serve ; and
the plaintiff entered the defendant's
service on the 24th, but before the ex-
piration of the year, the defendant
being displeased with the plaintiff,
gave him a month's warning to quit
his service; and the plaintiff left be-
fore the expiration of the year ; it was
held that he could not maintain an
action against the defendant for not
continuing the plaintiff for the year,
as there was no agreement in writing,
in conformity with the statute of
frauds. Snelling v. Lord Hunting-
field, 1 C. M. & K. 20. In Hearne v.
Chadbourne, 65 Me. 302, a contract
made on Friday, for one year, to begin
the following Monday, was held to be
within the statute. See also Kleeman
V. Collins, 9 Bush. (Ky.) 460; Wilson
V. Martin, 1 Den. (N. Y.) 602; Broad-
well V. Getman, 2 id. 87 ; Lewis v.
Wilson, 4 E. D. S. (N. Y. C. P.) 422;
Amburger v. Marvin, 4 id. 393.

And where the plaintiff entered
into the service of the defendant
under the following agreement; "I
agree to receive you as clerk or book-
keeper in my establishment, in con-
sideration of your paying me a
premium of £300, and to pay you a
salary at the following rates, viz. ; for
the first year, £70; for the second,

£90; for the third, £110; for the
fourth, £130 ; and £150 for the fifth
and following years that you remain
in my employment ; and I also agree,
in case of the death of either of us,
to return £150." It was held that
the agreement was one that, by the
statute of frauds, was required to be
in' writing; and that, there being a
precise stipulation for yearly pay-
ments, evidence was not admissible to
show a verbal agreement for quarterly
payments. Giraud v. Kichmond, 2 C.
B. 835.

1 Squire v. Whipple, 1 Vt. 69.

2 Herriu v. Butters, 20 Me. 119;
Comstock V. Ward, 22 HI. 248 ; Squire
V. Whipple, 1 "Vt. 69 ; Drummand v.
Burrell, 13 Wend. (N. Y.) 307; Shute
t. Dorr, 5 id. 204 ; Broadwell i>. Get-
man, 2 Den. (N. Y.) 87; Fenton v.
Emblers, 3 Burr. 1281.

A parol agreement, which is not
wholly to be performed within one
year, is void, although some of the
stipulations are to be executed within
the year. And it seems that it is
void, although one of the parties is to
perform every thing, on his part with-
in the year, if a longer time than a
year is stipulated for the performance
by the other.

A, in January, agreed by parol to
clear a piece of woodland for B, and
partly to fence one end of it, which
he was to complete, the whole to be
done in one year from the ensuing
spring, when A was to put in a crop,
which, with the wood and timber, ex-
cept that used for the fences, he was
to have for his compensation. In an
action against A for non-performance,
it was held that the contract was with-
in the statute and void. Broadwell v,
Getman, 2 Denio (N. Y.) 87.

SEC. 274.] CONTRACT KOT PEEFOKMABLE IN A YEAE. 475

■where a railroad company entered into an arrangement -with
an individual to stop their trains at a certain place, as a per-
manent arrangement ; ^ or where A contracted with B in
January, 1841, that if he would clear a certain piece of land
of A's, and make a fence around a part of it, he should have
the use of the land for the summer of 1842, it was held that
the contract was void, because performance within a year was
impossible.^ So where it is the manifest understanding and inten-,
tion of the parties that the contract shall not be performed within a
year, although it is possible that it may be completed within that time,
it is within the statute. The true test as to whether such a
contract is within the statute is, not whether it may be per-
formed within a year, but whether performance within a year oper-
ates as a full and complete performance of the contract according to
the true intent and understanding of the parties. The leading case
upon this point is Boydell v. Drummond,^ which has been
before referred to, in which the court laid down the doctrine
that, if it appears to have been the understanding of the parties to a
contract that it was not to be completed within a year, though it might
be and was in fact in part performed within that time, it is within
the statute, and cannot be enforced. In that case the plain-
tiffs proposed to publish large prints, illustrative of scenes

1 Pitken v. L. I. R. E. Co., 2 Barb, tude which was to be binding upon the
Ch. (N. Y.) 221. In Day w. N. Y. &c. real property of the defendant, as the
E. R. Co., 31 Barb. (N. Y.) 548, an servient tenement, for the benefit of
agreement was made between the the plaintiff and his land, and those
plaintiff and the defendant, a railroad who should succeed the plaintiff in
company, by which the former was to his real estate. That the negative
convey to the latter a strip of land easement acquired by the plaintiff in
adjoining the railroad, and to erect the lands of the defendant, by virtue
on his own lands cattle-pens, a house, of the agreement, was an incorporeal
etc., and to provide for feeding the hereditament, the right or title to
stock; and the latter was to build a which could only pass by grant, or
track on its own land, alongside of the deed under seal, or be acquired by
plaintiff's land, and there deliver all prescription ; and that the contract in
of certain stock ; to the end that the this case, being by parol, was void,
plaintiff might enjoy the profits to That the agreement, being oral, was
arise from keeping and feeding the void by the statute of frauds, because,
stock. The business contemplated by from its nature and terms, it was not to
the contract could not be done with- be performed withiij one year, but
out connecting the lands of the plain- was to continue in operation, as a per-
tiff with those of the defendant, by manent arrangement, during the ex-
means of a platform or bridge resting istence of the corporation,
partly upon the land of each party. ^ Broadwell v. Getman, ante.
Held, that the contract, if valid, in ' Boydell u, Drummond, 11 East,
effect created an easement or servi- 142.

476 STATUTE OP PRAtTDS. [CHAP. VH.

from Shakspeare, to be issued in numbers at the rate of two
to eacli play, and to embrace seventy-two scenes. The defend-
ant became a subscriber to the series and paid two guineas in
advance. The manner in which the defendant became a sub-
scriber was by writing his name in a book entitled " Shak-
speare's subscribers, their signatures." The plaintiffs had
issued a prospectus of the work, with reference to wMch'
the parties appeared to have contracted, but which was not
referred to or in any wise made a part of the subscription.
In this prospectus it was stated that " one number at least
should be published annually, and the proprietors were confi-
dent that they should be able to produce two numbers within
the course of every year." The defendant received two num-
bers, and, declining to take any more, the plaintiffs brought
this action to recover the price of the remaining numbers of
the series. The court were unanimous in their judgment that
the case was within the statute. Loed ' Ellenboeough,
C. J., said : " The whole scope of the agreement shows that
it was not to be performed within a year, and if, contrary to
all physical probability, it could Jiave been performed within
that time, yet the whole work could not have been obtruded
upon the subscribers at once, so as to have enabled the pub-
lishers to demand payment of the whole subscription from them
within the year. It has been argued that an inchoate per-
formance within a year is sufficient to take the case out of
the statute ; but the word used in the clause of the statute is
"performed,^ which must mean ex vi termini, complete per-
formance, or a consummation of the work. If this were not
the true construction of the statute, great inconvenience
would ensue in the execution of contracts for large works,
which must necessarily require a long time for their comple-
tion, as in the case of the Somerset House, which occupied
many years in the building. If one stone were laid within a
year from the making of the contract by parol, it would,
according to the argument, have taken the case out of the
statute," and thus have precipitated all the evils which the
statute was intended to avoid.^

1 Hinckley v. Southgate, 11 Vt. (Ky.) 17; Unsoott v. Mclntlre, 15
428; Herrin ». Butters, 20 Me. 119; Me. 201 ; Peters v. "Westborough, 19
Saunders v. Kastenbine, 6 B. Mon. Pick. (Mass.) 365.

SBC. 274.J COKTEACT NOT PEEFOEMABLE IN A YBAE. 477

The performance contemplated by the statute is a full and
complete performance, and not a performance that is partial
or inchoate, and therefore, where from the stipulations of the
contract it is evident that the parties intended that its per-
formance should extend over a year, the agreement is within
the statute.^ As to whether the parties understood and in-
tended that the contract might be performed within a year is
to be gathered from the terms of the contract, and the sub-
ject-matter to which it relates. Thus, in a Maine case ^ the
defendant entered into a contract with the plaintiff to clear
eleven acres of his (the plaintiff's) land in three years from
date. One acre to be seeded down the present spring, one
acre the next spring, and one acre the following spring, for
doing which the defendant was to have all the proceeds of .the
land during the entire three years, except 'of the two acres
first seeded down. It was held that the contract was clearly
within the statute, the court observing: "It is urged that the
defendant might have cleared up the land and seeded it down
in one year, and thereby performed his contract. But we are
not to inquire what, by possibility, the defendant might have
done by way of fulfilling his contract. We must look at the
terms of the contract itself and see what he was bound to
do, and what, according to the terms of the contract, it was
the understanding of the parties he should do. "Was it the
understanding and intention of the parties that the contract
might he performed in one year ? If not, the case is clearly
with the defendant."

In all cases, in order to take a contract out of the statute,
it must not only be capable of complete performance within
the year, but it must also be such a performance as is within
the evident understanding and intention of the parties. That
is, there must be nothing in the contract to prevent the
enforcement of the claim for compensation for such per-
formance.^

1 Souch V. Strawbridge, 2 C. B. 815. of one year from the making thereof
At law nothing short of a full and shall be in writing, means an agree-
complete performance by one party of ment expressly stipulated, and so ap-
an agreement within the statute of pearing within the instrument not to
frauds will take it out of the operation be performed within the year. Thomp-
of that statute. Eaton v. Whitaker, son v. Gordon, 3 Strobh. (S. C.) 196.
18 Conn. 222. The provision of the ^ Herrin v. Butters, 20 Me. 119.
statute, that any agreement that ia ' Boydell v. Drummond, ante ; Her-
not to be performed within the space rin v. Butters, ante.

478

STATUTE OF FRAUDS.

[chap. VII.

There seems to be no doubt that in all the States, where a
person renders services under a contract within the statute,
he may recover for such services what they are reasonably
worth, if the defendant himself puts an end to the contract.^

1 In White v. Wieland, 109 Mass.
291, the defendant was a tenant of
certain premises belonging to the
plaintiff, paying therefor a monthly
rent. In an action to recover the rent
he declared in set-ofi for money, work
and labor to the plaintiff's use in mak-
ing repairs upon the premises, which
were made under an oral agreement
that the plaintiff should let him the
house at $8 a month ; that he (the de-
fendant) should make certain repairs
on the house, and that the plaintiff
should give him a lease for five years,
and that the plaintiff, in violation of
such agreement, ejected him from the
premises and refused to give him the
lease. The defendant had a verdict
for a balance on his declaration in set-
oflE of .$75.10, which was sustained on
appeal. Chapman, C. J., remarking:
" The plaintiff's contract to give the
defendant a lease for five years was
within the statute of frauds and could
not be enforced. But if he broke it
before the defendant had broken the
contract on his part, and expelled him
from the premises, the defendant
would thereby be entitled to recover
of him for the repairs which he had
made on the premises in conformity
with the contract." Williams v.
Bemis, 108 Mass. 91. See McElroy v.
liUdlum, 32 N. J. Eq. 828.

In Mavor v. Payne, 2 C. & P. 91,
the defendant subscribed for Payne's
History of the Royal Residences,
which was published in numbers at
intervals of two months, at the price
of £1 Is. each, and consisted of
eighteen numbers. Eight of these
were delivered to the defendant, at
the plaintiff's residence, but he never
called for the remaining numbers. It
was objected that the contract was
within the statute of frauds, as it was
not to be performed within a year,
and that, not having been performed,

no recovery could be had for the
numbers delivered.

Best, C. J., said: "If this case
touched upon the principles laid down
in Boydell v. Drummond, I should
feel myself bound by the authority of
that case. And even if I differed in
opinion, it would govern me, sitting
at nisi prius. But I subscribe to every
word of it. If any inference at all
can be deduced from that judgment
bearing upon this case, it is an infer-
ence imfavorable to the objection
which has been made to-day. I will
state my brother Vaughan's propo-
sition, and then he will see how mon-
strous a proposition it is, and how
inconsistent with common sense and
common justice, and how unlikely it
is that a court of justice should ever
have entertained it. He says, 'it is
an entire contract.' I agree with him
that it is so. But he says, ' that if
there were twenty-four numbers, and
twenty-three of them were delivered,
and the twenty-fourth was not, the
publisher could not recover for the
twenty-three.' I am of opinion that
there is a subordinate contract; an
understanding that each number is to
be paid for on delivery. It must be
well known to the gentlemen of the
jury, that in this city a similar course
is constantly adopted in the cases of
contracts for the sale of corn. It is
necessary that publishers should have
the money for each number as it
comes out, in order that they may be
able to go on with the work. This is
always their object, and my brother
Vaughan's argument goes to over-
throw this. The object of publishers
is the same, because it is not con-
venient for them to pay for the whole
work at once. Taking it to be a con-
tract for the whole, yet it is in part
executed. But I will put this case on
another ground. The evidence is,

SEC. 275.] CONTRACT PBEPOEMABLE IN A YEAR. 479

But in some of the States, as has been previously observed,
is is held that, if a person commences to labor under a con-
tract for a term, within the statute of frauds, he cannot
recover for part performance if he puts an end to the con-
tract without a sufficient legal excuse. The theory upon
whioh these cases proceed is, that the contract is not void,
but that it is simply non-enforceable at law, hence, in order
to entitle the servant to a recovery for any part of his ser-
vices upon a quantum meruit even, full performance, or a legal
excuse for a failure in that respect, must be shown. But the
reasoning upon which this doctrine is predicated is not gen-
erally adopted, nor is it believed to be such as commends
itself to favorable adoption by the courts. The statute in
many of the States, it is true, does not, in express terms, de-
clare such contracts void, but it deprives them of all legal
validity as contracts, and cuts off any remedy upon the con-
tract itself ; but the doctrine of the courts in the cases re-
ferred to, practically gives validity to such contracts, permits
them to be used in evidence, and measures the rights of par-
ties by them.^

A contract for services, void under the statute of frauds,
cannot be enforced, nor can an action be maintained for wages
earned in pursuance of it. The servant must sue upon a
quantum meruit, and the contract is not admissible to control
the damages.^

Sec. 275. when the Contract may or may not be Performed
within a Year. — An agreement which may be performed
within a year is not within the statute,^ however improbable

that the defendant agreed to take the i Mack v. Brigga, ante.

numbers, and actually took and kept ^ Emery v. Smith, 46 N. H. 151 ;

six, seven, or eight. He said, I shall Galvin v. Prentice, 45 N. Y. 162; Car-

not pay, because you have not given ter v. Bro?ni, 3 S. C. 298.

me the whole. To this it was » Esty v. Haldrich, 46 N. H. 127 ;

answered ? ' You may have the re- Blanding v. Sargent, 33 id. 239 ; Sher-

mainder ; but we did not agree to de- man v. Champ. Trans. Co., 31 Vt.

liver.' In common sense can a man 162; Moore ». Fox, 10 Johns. (N. Y.)

say : ' I will not pay for the eight 244 ; Russell v. Slade, 12 Conn. 455 ;

which I have had, and I will not take Clark v. Pendleton, 20 id. 508 ; Lins-

any more ' \ When the first contract cott v. Mclntire, 15 Me. 201 ; Gadsden

was broken off, when the defendant v. Lance, 1 McMuU (S. C.) 87;

said: 'I will not take the whole,' I Rogers o. Brightman, 10 Wis. 55;

think an implied contract was raised, Foster v. McO'Blenis, 18 Mo. 88 ;

which may be enforced in this form Ellicott v. Peterson, 4 Md. 476 ; Bar-

of action." ney v. Ball, 24 Ga. 505 ; Soggins v.

480

STATUTE OP PEATTDS.

[chap. VII.

it may be that it will be performed within that period.^ Thus,
in Fenton v. Emblers, ante, it was held that an agreement by

Heard, 31 Miss. 426; Blanchard v.
Weeks, 34 Vt. 589. An agreement
that a policy of fire insurance shall be
renewed from year to year, either
party heing at liberty to give notice
at any time that the arrangement shall
hot be continued, is not within the
statute. Trustees of First Baptist
Church V. Brooklyn Fire Insurance
Co., 19 N. Y. 305. But an agreement
by parol to employ a person for the
term of one year, to commence in
futuro, and to enter into a contract in
writing so to employ, is not an agree-
ment to be performed within one year
from the making of it, and is, there-
fore, void by the statute. Amburger
V. Marvin, 4 E. D. Smith (N. Y.) 393.
Such a contract to employ is void,
under the statute of frauds, if not in
writing. Little v. Wilson, 4 E. D.
S. (N. Y. C. P.) 422. An agreement
by an 'infant to work seven years for
his board is not within the statute.
Wilhelm v. Hardman, 15 Md. 140.
When a contract to be performed de-
pends upon a contingency which may
happen within a year, it is not with-
in the statute. Barney v. Ball, 24 Ga.
505.

A contract to work for another as
long as they are mutually satisfied,
Greene v. Harris, 9 R. I. 401, or to
print and sell the products of a fac-
tory, to continue two years, if neces-
sary, until the contractor has made a
profit of 150,000, is not within the
statute. Hodges v. Kichmond Manuf.
Co., 9 E. I. 482.

An agreement to support one during
his life is not within the statute.
Hutchinson v. Hutchinson, 46 Me. 154.
See Houghton v. Houghton, 14 Ind.
505, as to contracts dependent on »
contingency. Also, Rogers v. Bright-
man, 10 Wis. 55 ; Atwood v. Pox, 30
Mo. 499. Promise to pay for boiler
by first forty thousand feet of lumber
sawed at defendant's mill, Woodford
V. Patterson, 32 Barb. (N. Y.) 630;
agreement to furnish and set up a

monument, Mead v. Case, 33 id. 202 ;
agreement to furnish and prepare mar
terial for portable houses, are not
within the statute, Phipps v. McFar-
lane, 3 Minn. 109; as they are not
contracts for the sale of articles ex-
clusively, but for work.

1 In Ellicott V. Peterson, 4 Md. 476,
it was held that the statute of frauds
does not apply to any contract which
can, by any possibility, be fulfilled or
completed in the space of a year,
though the parties may have intended
that its operation should extend
through a much longer period. Thus,
where a grandfather of two minor
children agreed, by parol, to pay the
plaintiff, their step-father, whatever
expense he might incur for their sup-
port and education, it was held that
the agreement was not within the
statute, because the death of the chil-
dren might occur within a year and
terminate the contract. In Compton
V. Martin, 5 Rich. (S. C.) 14, the de-
fendant let a negro to the plaintlif for
two years, for |140, and put the plain-'
tiff in possession. In a few days the
negro went back to defendant, and he
sold him. Held, that the contract of
hiring having been performed by the-
defendant, it was not within the
statute. In Missouri it is held that
only those contracts are intended,
which, by express stipulation, are not
to be performed within that time.
Foster v. McO'Blenis, 18 Mo. (3 Ben-
nett) 88.

A contract by one not to sell, or
assist others in selling, musical instru-
ments, is not invalid under the statute
of frauds, as being a contract not to
be finished within one year, as it may
be ended by the death of the contrac-
tor within that time. Hill u. Jamie-
son, 16 Ind. 125. If the thing promised
may be performed within the year,
the contract is not within the provision
of the statute relative to time of per-
formance. Linscott V. Melntire, 3
Shep. 201. Where the time for the

SEC. 275.] CONTRACT PEEFOEMABLE IN A YEAE.

481

which the defendant employed the plamtiff to serve him as
his housekeeper as long as it should please him, and to pay

complete performance of a contract is
to be extended beyond a year, the fact
that a part performance is to be made
within the year by agreement, does
not take the contract out of the stat-
ute of frauds. To bring a case within
the statute of frauds, it must have
been expressly stipulated by the
parties, or it must, upon a reasonable
construction of their contract, appear
to have been understood by them,
that the contract was not to be per-
formed within a year.

A agreed, in writing, with B to do
certain work in three years, a certain
part to be done in each year. A ver-
bally assigned one-half of his interest
in the contract to C, who verbally as-
signed to D, C and D respectively
agreeing, verbally, to perform one-
half of the contract. A and D par-
tially performed the contract. B
recovered damages of A for non-per-
formance. C paid one-half thus re-
covered to A, on demand, and then
sued D for the same. Held, that the
contract between C and D was void
by the statute of frauds, and that the
plaintiff was not entitled to recover.
Herrin v. Butters, 20 Me. 119.

A contract for work and labor to
be begun, but not completed, within
one year from the making thereof, is
within the statute of frauds, and must
be in writing. Hinckley v, Southgate,
11 Vt. 428. A and B were co-trustees
of the estate of a minor, and it was
verbally agreed between them that,
in consideration that A should be per-
mitted to employ the trust fund in
trade, on his own account, for the
term of three years, he would pay the
interest thereon to the cestui que trust,
and would also pay in goods to B
$150 per year for three years. Held,
that the whole contract was void by
force of the statute of frauds, it being
to be performed in part within one
year, and in part thereafter. Foote v.
Emerson, 10 Vt. 338. A parol con-
tract is not void, as an agreement not

to be performed within a year from
the making thereof, if the perform-
ance of it depends upon a contingency
which may happen within the year,
although, in fact, it do not happen
till after the expiration of the year.
Thus, a parol contract to support a
person for a certain number of years,
is not within the statute ; for, if he dies
within one year, having been sup-
ported under the contract until his
death, the contract will have been
fully performed. Peters v. West-
borough, 19 Pick. (Mass.) 364; Dres-
ser V. Dresser, 35 Barb. (N. Y.) 573.
So, where one party agreed that
another might cut certain trees on her
land at any time within ten years, it
was held not to be within the statute,
for such an agreement may be per-
formed within one year. Kent v.
Kent, 18 Pick. (Mass.) 569. In an
action by a surety on an administra-
tion bond against a co-surety for
contribution, it appeared that the
defendant signed the bond at the re-
quest of the plaintiff, and upon the
plaintiff's verbal promise to save him
harmless. Held, that, as this promise
might be performed within a year, it
was not required by the statute of
frauds to be in writing. Blake v.
Cole, 22 Pick. (Mass.) 97.

Where a contract within the stat-
ute is lawfully rescinded, either party
may have an action against the other
for the repayment of money advanced,
or for labor performed, or the return
of anything delivered under the con-
tract, and may support such action by
parol evidence. Sherburne k. Fuller,
5 Mass. 133, 139; Kidder v. Hunt, 1
Pick. (Mass.) 328. A, on the sale to
B of a share in a patent right for a
certain sum paid therefor by B, made
an oral agreement with B to repay
him said sum, if he should, within
three years, not realize said sum out
of the profits arising from said', share.
Held, that this agreement was within
the statute of frauds, as it was not to

482

STATUTE OP FKATJDS.

[chap. VII.

her at the rate of £6 a year, and also to bequeath to her the
sum of £16 a year, payable to her yearly for each year of her
life after his decease, was held not to be within the statute,
although the employment might, and in point of fact did,
extend beyond one year. Dennison, J., in passing upon the
question, laid down the doctrine which has been generally
adopted ever since. He said: "The statute of frauds plainly
means an agreement not to be performed within a year, and
expressly and specially so agreed. A contingency is not within
it, nor any case that depends upon a contingency. It does not
extend to cases where the thing only may be performed with-
in the year." ^

In Peter v. Compton,^ an action was brought upon an
agreement by which the defendant, in consideration of one

be performed within one year from
the making thereof. Lapham v.
Whipple, 8 Met. (Mass.) 59. A prom-
ise which arises by operation of law
is not within the statute of frauds.
Smith V. Bradley, 1 Root (Conn.) 150.
A promise to pay for boarding a son
two years is not within the statute of
frauds. Ives o. Gilbert. 1 Root
(Conn.) 89. A verbal contract, which
it was agreed should go into effect on
the 1st of April, 1854, and continue
" as long as the parties are mutually
satisfied " ; held, not to be a contract
within the statute of frauds, as it
might be performed within one year.
Greene v. Harris, 9 R. I. 401. In
Hodges i>. Richmond Manuf. Co., 9
R. I. 482, the plaintiff alleged that a
contract was made between him and
the defendant, that the defendant
should print and sell, at cost, the pro-
ducts of the plaintiff's mill, and that
a memorandum of the terms of the
contract was made by him, but not
signed by the defendant, concluding
as follows: ^'This agreement to con-
tinue two years, or longer if necessary,
until I (plaintiff) have made the net
profit of fifty thousand dollars. This
contract is to take the place of the
one I had previously made to sell
them production of my mill for four
months, at twenty cents per yard."
Held, that, as the consideration of the

contract was the release of a former
contract which might have been dis-
advantageous to the defendant, and
as the object appeared to be to let the
plaintiff make a sum of money from
the new one, the money, and not the
time, was the principal object of the
contract, and, therefore, it might be
performed within one year, and was
not within the statute of frauds.
Held, further, that the contract should
be taken as if it was expressed to con-
tinue until the plaintiff had made a
net profit of fifty thousand dollars,
even if it took two years, or longer,
to do it.

' Fenton v. Emblers, 3 Burr. 1278.

2 Peter v. Compton, Skin. 353. In
Packet Co. <■. Sickles, 5 Wall. (U. S.)
580, the coiirt held that an agreement
to pay ascertain sum annually for the
right to use an invention on a certain
steamboat during the term of the
patent, which had twelve years to
run, if the boat should last so long, was
within the statute, notwithstanding it
rested upon a contingency. But the
doctrine of this case is not reconcil-
able with the authorities either of the
English or American courts, and
cannot be regarded as an authority to
overthrow a doctrine sustained by
such a mass of unbroken authorities
as sustain the opposite doctrine. Its
authority was questioned and denied

SBC. 275.] CONTRACT PERFOEMABLE IN A YEAR. 483

guinea, promised to give the plaintiff so many on the day of
his marriage. The marriage did not happen within a year,
and it was objected that it was void under the statute of
frauds because the marriage did not happen within a year
after the agreement was made. Lord Holt said: "Where
the agreement is to be performed upon a contingent, and it
does not appear by the agreement that it was to be per-
formed after the year, then a note in writing is not neces-
sary, for the contingent might happen within the year ; but
when it appears from the whole tenor of the agreement that
it is to be performed after the year, then the note is neces-
sary, otherwise not."

Thus, a contract to pay a certain sum of money on the
return of a certain ship, although it does not return within
two years ; ^ a contract to employ one so long as he ILves,^ or
to work for another as long as he lives ; ^ for five years, or so
long as a certain person. remains the agent for the employer;*
or so long as the employer shall chose ; ^ or so long as the
parties are mutually satisfied ; ® or until the servant attains a
certain age, which would involve several years if he lived,^ nor
a parol contract not to engage in a particular business witliin
a certain district, as a contract not to engage in the staging

by Gkat, J., in Somerby i;. Buntin, lands, that the tenant move " during

118 Mass. 286j and an opposite doc- the term" (three years), is not within

trine announced in a case involving the statute, for it may be performed

quite similar questions. A contract within the first year. Larimer v.

for labor to be performed and paid Kelley, 10 Kan. 298.

for after the death of the employer, ^ Anon., Salk. 280.

may be proved by parol. Such a con- ' Hutchinson v. Hutchinson, 46

tract is not within the statute, for the Me. 154.

death may occur witliin the year. ^ Updike v. Ten Broeck, 32 N. .T.

Kiddle v. Backus, 38 Iowa, 81. In L. 105.

Blair &c. Land Co., 39 id. 406, it * Roberts v. Rockbottom Co., 7

was held that in order to exclude Met. (Mass.) 46.

parol evidence to prove a contract on ' Souch v. Strawbridge, 2 C. B.

the ground that it was not to be per- 808.

formed within a year, it must appear ° Greene v. Harris, 9 R. I. 401.

either from the express terms of the ' In Wilhelm u. Hardman, 15 Md.

contract or necessary implication, that 140, a contract made by an infant to

its performance within the year is work until he should attain the age

prohibited or impossible. Van Woert of twenty-one, which would not occur

V. Albany &c. R. R. Co., 1 T. & C. for seven years, for his board, 'was

(N. T.) 256. In Marley v. Noblett, held not within the statute. Peters

42 Ind. 85, it was held that an agree- v. Westborough, 19 Pick. (Mass.) 865

ment connected with the letting of

484

STAa?UTE OF FEATTDS.

[chap. VII.

business;^ or to practise as a physician ;2 or to carry on the
butchering business, or sell meat from a cart;^ an agreement
not to run a mill or store, are not within the statute,* be-
cause in all such cases the contract may be terminated withm
the year by the death of the party, or any contract which
may be completed within a year by the happening of any
event, is not within the statute.* The rule is, that if the
time of performance may, although it is highly improbable
that it will, arrive within the year, the case is not within the
statute.^ The fact that performance within a year is highly
improbable does not bring it within the statute. The simple
test is, whether it may be performed within the year, and
whether such performance, although not expected to occur
within that time, answers the contract ; ^ and the important
question is, whether the contract, hy its terms, is necessarily
incapable of performance within a year? When it may by its

^ Lyon V. King, 11 Met. (Mass.)
411.

2 Blanding v. Sargent, 33 N. H.
239; Blanchard v. "Weeks, 34 Vt. 589.

8 Richardson v. Pierce, 7 R. I. 330.

* Worthy v. Jones, 11 Gray
(Mass.) 168.

6 White V. Hanchett, 21 Wis. 415 ;
McLees v. Hale, 10 Wend. (N. Y.)
426; Clark o. Pendleton, 20 Conn.
495 ; Houghton v. Houghton, 14 Ind.
505; Gilbert v. Sykes, 16 East, 150;
Alderman u. Chester, 34 Ga. 153;
King V. Hanna, 9 B. Mon. (Ky.) 369;
Bell J). Hewitt, 24 Ind. 280; Wells j).
Horton, 4 Bing. 40.

^ Penton u. Emhlers, ante ; Plimp-
ton V. Curtiss, 15 Wend. (N. Y.) 336;
Lockwood V. Barnes, 3 Hill (N. Y.)
128.

7 Derby v. Phelps, 2 N. H. 515;
McLees r. Hale, 10 Wend. (N. Y.)
426; Wells u. Horton, 4 Bmg. 10;
Lockwood V. Barnes, 3 Hill (N. Y.)
128; Blake v. Cole, 22 Pick. (Mass.)
97; Fenton v. Emhlers, 3 Burr. 1278;
Linscott V. Mclntire, 15 Me. 201.

8 In Roberts v. Rockbottom Co., 7
Met. (Mass.) 46, the plaintifE entered
the service of the defendants under
an agreement to labor for the fire
years, from the 6th day of May, 1839,

or so long as John A. Leforest should
continue their agent, at f 2 a day, pay-
able- quarterly. After serving a little
more than a year he was discharged.
There were two counts in the declar-
ation, one for the wages earned and
another for damages by being pre-
vented from performing. The de-
fendant insisted that the contract was
within the statute, and that no re-
covery could be had for its breach.
The jury returned a verdict for the
plaintiff upon the first count for
$24.88, and upon the second count for
$475, but under direction from the
court they reversed their verdict as to
the second count and found for the
defendant, upon the ground that the
contract was within the statute of
frauds. Upon appeal the verdict was
set aside, the court holding that the
contract, being dependent upon a con-
tingency, was not within the statute,
Shaw, C. J., observing : " We think it
now settled by recent cases, that
where the contract may by its terms
be fully performed within the year, it
is not void by the statute of frauds,
although in some contingencies it may
extend beyond a year." Lapham v.
Whipple, 8 Met. (Mass.) 59; Blake v.
Cole, 22 Pick. 97 ; Artcher v. Zeh, 6

SEC. 275.] CONTBACT PEEFOEMABLE IN A YEAR. 485

terms be performed within that time, the fact that it is not
performed within that period does not bring it within the
statute.! Thus, in a New York case,^ the plaintiff entered
into a verbal agreement with the trustees of a school district,
in October, 1876, to teach its school for the year ending
October 1, 1877, at a fixed salary, and to teach the school for
another year at the same salary, if no notice to the contrary
should he given hy either party, and it was held that the con-
tract was not within the statute.^ The fact that performance
is to begin within the year, and in fact does begin within that
time, does not take the case out of the statute, if it is not to
he completely executed within that time.*

The statute does not apply to a case where a contract of
hiring is implied from circumstances, however long con-
tinued.^ Nor to a contract when no time for performance
is named ; ^ nor when the agreement is by deed.'' But the
mere fact that the contract may possihly be performed within
a year, if by its terms it is to continue longer than a year,
does not save it from the operation of the statute.^ Nor the
fact that it in point of fact is performed.^ A verbal contract
to labor for another one year, to commence in the future, is
void under the statute of frauds, and no action can be main-
tained for its breach so long as it remains executory, !" and a

Hill (N. Y.) 200; Doyle v. Dixon, 97 ' Couch i>. Goodman, 2 Q. B. 580;

Mass. 208. Cherry v. Hemlng, 4 Ex. 631.

1 Clarkw.Pendleton, 20Conn. 495; » Roberts v. Tucker, 3 Ex. 632;
Penton ' v. Emblers, ante ; Blake v. Herrin v. Butters, 20 Me. 119 ; Harris
Cole, 22 Pick. (Mass.) 97. w. Porter, 2 Harr. (Del.) 27; Com-

2 Smith u. Conlin, 19 Hun (N. Y.) stock v. "Ward, 22 111. 248.

234. ^ Lapham v. Whipple, 8 Met.

" Trustees v. B. P. Ins. Co., 19 N. (Mass.) 59; Marcy v. Marcy, 9 Allen

Y. 305 ; S. C. 28 id. 153 ; Kent v. Kent, (Mass.) 8.

62 id. 560; Moore v. Pox, 10 John. i" Hinckley v. Southgate, 11 Vt.

(N. Y.) 244 ; McLees v. Hale, 10 Wend. 429 ; Scoggin v. Blackwell, 36 Ala. 351 ;

(N. Y.) 426; Kelley v. TerreU, 26 Ga. Nones v. Homer, 2 Hilt. (N. Y.) 116 ;

561. Little V. Wilson, 4 E. D. S. (N. Y. C.

* Boydell v. Drummond, 11 East, P.) 422; Amburger v. Marvin, id.

142 ; Bracegirdle v. Heald, 1 B. & Aid. 393; Squire v. Whipple, 1 Vt. 69. In

722; Birch v. Liverpool, 9 B. & C. Banks v. Crossland, L. R. 10 Q. B.

392; Lockwood v. Barnes, 3 Hill (N. 97; 11 Eng. Eep. (Moak's Ed'n) 168,

Y.) 180; Eeg. v. Lord. 12 Q. B. 762. an information was filed against the

5 Beeston v. CoUyer, 4 Bing. 309. respondent under section 4 of the

" Russell V. Slade, 12 Conn. 455; "Master and Servant act," that the

Adams v. Adams, 26 Ala. 272 ; Sug- respondent, at Howden, on the 11th

gett V. Cason, 26 Mo. 224; Soggins v. of Nov. 1873., entered into a contract

Heard, 31 Miss. 426. with the appellant to serve him one

486

STATUTE OF FRATTDS.

[chap. vir.

contract partly in writing and partly by parol is within the
statute if required to be in writing, as, in order to take a
case out of the statute, all the essential elements, of the con-
tract must be in writing,^ and parol evidence is not admissible
to supply the defects in the written portion of it.^

Sec. 276. Contract, when Presumed to Commence at Once. —

When a contract for service for one year is entered into, and
no time is named when the term is to commence, the pre-
sumption is that it was to commence at once, and it is not
within the statute.^ But the doctrine of this case is denied

year for a certain compensation, which
time had not expired, and which ser-
vice the respondent refused to per-
form. It was proved that the hiring
was by parol only, entered into Nov.
11, to commence Nov. 22. It was
held that the contract being for a
term to commence in the future, was
within the statute of frauds, and
therefore not enforceable under the
act of 1867. A contract to labor for
another a year from the following
month, or day, is within the statute.
Scoggin V. Blackwell, 36 Ala. 351;
Squires v. Whipple, 1 Vt. 67 ; Little
V. Wilson, 4 E. D. S. (N. Y. C. P.) 422.
As an agreement made before Christ-
mas of one year, to serve as overseer
for the next year. Kelley v. Terrell,
26 Ga. 551. See, also, Taggard v.
Koosevelt, 2 E. D. S. (N. Y.) 100.

1 Frank v. Miller, 38 Md. 450.

2 Lang V. Henry, 54 N. H. 57. The
same principle was adopted in Wilson
v. Martin, 1 Den. (N. Y.) 602, when it
was held that an agreement made in
April for the hire of board and rooms
for one year from the 1st of May next
ensuing, was within the statute of
frauds, and that part performance
would not take the case out of the
statute. An agreement to employ a
person for a term which commences
at a future day is within the statute
of frauds and void. Lavaux v. Brown,
12 C. B. 701 ; Bracegirdle v. Heald, 1
B. & Aid. 722 ; Comes v. Lamson, 16
Conn. 246; Tuttle v. Sweet, 31 Me.
555; Kelly v. Terrell, 26 Ga. 551;
Drummond v., Burrell, 13 Wend. (N.

Y.) 307; Kleeman v. Collins, 9 Bush
(Ky.) 460. A parol agreement made
by the plaintiff a week prior to August
1, 1857, with the defendant, to enter
his employment from August 1, 1857,
to August 1, 1868, is an agreement
which by its terms is not to be per-
formed within one year from the
making of it, and is therefore void.
Nones v. Homer, 2 Hilt. (N. Y. C.
P.) 116. A verbal agreement be-
tween parties, by which the one agrees
to employ the other to work for one
year, commencing in futuro, and to
enter into a written agreement to that
eilect, is void by the statute of frauds.
Amburger v. Marvin, 4 E. D. S. (N.
Y. C. P.) 398. A verbal contract to
employ a party to work for one year,
to commence in future, is void, and
even if the employment is entered
upon, it may be terminated at any
time by either party, and the em-
ployee is liable for the services ren-
dered upon a quantum meruit. Little
V. Wilson, 4 E. D. S. (N. Y. C. P.)
422.

s In Eussell ». Slade, 12 Conn. 455,
the plaintiff entered into a contract to
work for the defendant in his factory
one year for one dollar a day. No
time was fixed when he should com-
mence. In an action against the de-
fendant for not furnishing labor under
the contract, it was objected that the
contract was void under the statute of
frauds. The court held that, as the
plaintiff had a right to commence at
once, the contract was not within the
statute, and that the fact that he did .

SEC. 276.] CONTRACT PRESUMED TO COMMENCE AT ONCE. 487

in a recent case in Rhode Island,^ and it was held that, while
the plaintiff under the contract might have commenced at
once, but ia point of fact did not commence until a week

not commence for some days after
did not bring it within the statute. So,
where a contract was made on Sunday
to work one year, commencing the
following Monday, it was held not to
be within the statute, because it
would be presumed that the parties
had reference to a service to com-
mence at once. Wood «. Benson, 2
Cr. & J. 95 ; Chater v. Beckett, 7 T.
K. 201 ; Thomas v. Williams, 10 B. &
C. 664.

1 Suteliffe v. Atlantic Mills, 13 E. I.
480; 43 Am. Hep. 89. In Levison „.
Stix, N. Y. C. P., in June, 1881, it ap-
peared that the plaintiff was by verbal
contract, made on the 31st of Decem-
ber, 1879, engaged by defendant as a
clerk for the term of one year, which
year was to end December 31, 1880.
Before the expiration of this time de-
fendant discharged plaintiff from his
employment, without cause, as it was
alleged. From a judgment in favor
of plaintiff the defendant appealed,
and the judgment was reversed, the
court saying: "In support of the
position claimed upon the part of the
respondent are cited the cases of
Marvin v. Marvin, 75 N. Y. 242 ; Kent
V. Kent, 62 id. 560; Smith v. Conlon,
19 Hun (N. Y.) 236 ; and certain other
cases, holding that where an act is
not to be done until a certain length
of time has elapsed, that the day
upon which the time is set running is
to be excluded in the computation of
time. The case of Marvin v. Marvin
simply decides that where an act is to
be done after the expiring of four
days from the filing of a decision, the
day of the filing of the decision must
be excluded, because four full calen-
dar days must elapse after the filing
of the decision, before the act contem-
plated can be done ; and that was all
that was decided in that ease. In the
case of Kent v. Kent, the principle is
recognized which was asserted in the
case of Boydell v. Drummond, 11

East, 141, that a contract which may
by its terms be performed within a
a year, is not within tlie statute of
frauds ; but where the agreement by
Its terms is not to be performed with-
in one year, it is. To the same
effect is the case of Smith u. Con-
lon, and in that case the various
decisions of this State seem to be
carefully collated, which established
the proposition above mentioned. It
is clear that the employment in the
case in question was not to commence
until the 1st of January, 1880, and
upon precisely such a state of facts
in the case of Cawthors v. Garden, 13
C. B. (N. S.) 406, it was decided that
the contract was witliin the statute.
In that case it was held that a eon-
tract entered into on the 24th to serve
for twelve months, commencing on
the 25th, is within the statute; and
the case of Bracegirlde v. Heald, 1 B.
& Aid. 722, is there cited, in which it
was held that a contract for a year's
service, to commence at a subsequent
day, being a contract not to be per-
formed within a year, is within the
statute of frauds. In fact it is impos-
sible to see, if the term of service is
to commence at any time subsequent
to the time of making the contract,
and the contract is for a full year,
how it is possible that it should be per-
formed within a year. It is undoubt-
edly the intention of the statute to re-
quire that all contracts which are not
to be performed within the year from
the time of making shall be in writing,
and in order that they shall be com-
pleted within the year it is absolutely
necessary that the time of making
and the year of performance must be
within the same year ; and if the time
of making is to be excluded and the
time of performance is to be a full
year, the contract cannot be performed
within the year. See Dickson v. Pris-
bie, 52 Ala. 165 ; 23 Am. Eep. 565.

488 STATUTE OF PEATJDS. [CHAP. VH.

after the contract was made, it was within the statute as
a contract not to be performed in one year, and such
also was the rule adopted in Snelling v. Lord Hunting-
ford.^ In that case A on the 20th of July made proposals
in writing, unsigned, to "B to enter his service as bailiff for a
year. B took the proposals, and went away and entered A's
service on July 24. The court held that the contract was
made on the 20th, and that it was not to be performed within
a year, and therefore was within the statute. Where there is
no evidence when the contract was in fact made, or was to
begin, the rule adopted in the Connecticut case would apply ;
but where the time when the contract was made, and the
time when the performance commenced, are shown, it would
seem that the rule adopted in the Rhode Island case is more
in conformity with the authorities.^ In the case last cited,
which the court in Russell v. Slade relied upon as an author-
ity, there was a written contract and an absence of both of
these elements, and the court held that it must be treated as
a contract commencing in praesenti, and that parol evidence
was not admissible to show that it was agreed that it should
commence at a future time. It will be observed that in this
case there was a contract in writing, and consequently that
parol evidence could not be admitted to alter or vary its
apparent meaning or intent ; but, on the other hand, had it
been a contract by parol, no one can doubt that the evidence
would not only have been admissible, but also controlling.*'
A contract by which a person agrees to serve another for
" twelve months certain, after which time either party may
terminate the agreement by giving three months' notice," is
held a mere agreement for twelve months, and either party
may, at the expiration of such time, put an end to the con-

1 Snelling v. Lord Huntingford, 1 Dec. 22, 1871, was held not to be
C. M. & R. 19. within the statute, because the court

2 See Williams v. Jones, 5 B. & would presume that the service com-
Ald. lOS. menced Dec. 21, and that the con-

' See Sharp v. Ehiel, 55 Mo. 97, tract did not contemplate that the

where it was held that the year must plaintiff should serve on the 22d of

begin at the date of the contract. In Dec, 1871, but that the term expued

Dickson v. Frisbiej 52 Ala. 165f it was at the close of the 21st and the com-

held that a verbal contract entered ing in of the 22d. Upon no other

into Dec. 21, 1870, to serve the de- ground can the doctrine of this case

fendant as clerk for one year, ending be supported.

SBC. 276.] CONTEACT PRESUMED TO COMMENCE AT ONCE. 489

tract without any notice, and that the notice only applies in
case the service is prolonged beyond the twelve months.^

"When a contract is void under the statute, as when services
are to be paid for in land, while the contract cannot be en-
forced by compelling a conveyance of the land, yet a i^cov-
ery may be had for the actual value of the services, and in
such a case, where the services are to be paid for in land or
other property, which is fixed and determinate in its nature,
and possessed at the time a determinable value, the contract
may be referred to as a means of ascertaining the value of
the services ; ^ but a contract to give all the property, real
and personal, as compensation for services, is void, and the
value of the property cannot be shown as the measure of the
value of the services.^

A parol agreement, with good consideration, that one of
the owners of adjoining lands will build and maintain the
division fence between them, is not within the statute ; * but
an executory agreement between an individual and a railroad
company, that the latter shall continue to stop with their cars
at a particular place adjacent to the property, as a permanent
arrangement, is, in substance, the grant of an easement or
servitude, binding upon the property of the company, and is
an interest in land, which is required by the statute of frauds
to be in writing, and such an agreement by parol would also
be void by the statute of frauds, as being an agreement not
to be performed within one year from the making thereof.^

So, an oral contract to work for another for a year from the
following month is void under the statute of frauds, and no
action can be founded upon it for its breach or non-perform-
ance, so long as it remains executory.®

An agreement which may or may not be performed within
a year is not required by the statute of frauds to be in writing;
it must appear from the agreement itself that it is not to be

1 Langton v. Carleton, L. E. 9 ' Lisk v. Sherman, ante.

Exch. 57 ; Brovm u. Symons, 8 C. B. * Talmadge v. The Rensselaer &

(N. S.) 208; Thompson v. Maberly, 2 Saratoga Railroad Co., 12 Barb. (N.

Camp. 573. Y.) 493.

2 Lisku. Sherman, 25 Barb. (N. Y.) * Pitkin v. Long Island Railroad
433; Burlingame v. Burliugame, 7 Co., 2 Barb. Ch. (N. Y.) 221.

Cow. (N. Y.) 92; Fort v. Gooding, 9 « Scoggin v. Blackwell, 36 Ala.
B. & Aid. (N. Y.) 371; Thomas v. 351.
Dickinson, 6 N. Y. 364.

490

STATUTE OP FBAXTDS.

[chap. VII.

performed within a year.^ Thus, where A delivered to B six
cows, which, by parol agreement, were to be returned to him
at the end of two years, or their value in money, unless A
should be dissatisfied with a certain trade or exchange of
farms made between them, in which case they were to remain
the property of A forever, it was held that the contract was
not within the statute, though not in writing, and in part not
to be performed within one year.^

The fact that a person who has contracted to serve another
one year, to commence at a future day, enters upon the per-
formance of his contract, does not take the case out of the
statute, and the servant may quit at any time during the term
and recover the value of the services rendered upon a quantum
meruit, without deduction for loss to the employer, and the
master may discharge the servant at any time without incur-
ring any liability therefor.^

1 Russell V. Slade, 12 Conn. 455.

^ Holbrookw.Armstrong, lOMe. 31.

^ In King v. Welcome, 15 Gray
(Mass.) 41, the plaintiffl entered into a
contract with the defendant to work
for him one year, to commence at a
future day. Two or three days after
the making of the contract, he quit
before his term was ended, without
cause, and in an action to recover the
value of his services, the defendant
set up the damages resulting to him
from a breach of the contract by the
plaintiff. The court held that the de-
fendant could not avail himself of this
defence. Thomas, J., in disposing of
the question, said: "Looking at the
mere letter of the statute, the sugges-
tion is obvioiis that no action can be
brought upon this contract. But the
defendant seeks to charge the plaintiff
therewith, to establish it by proof, to
enforce it in a court of law and to
avail himself of its provisions. . . .
A construction of the statute which
would sanction this use of the contract
would lose sight of the obvious pur-
poses of the statute. It would adhere
to the letter, at the expense of the
spirit. It would operate unequally
upon the parties. The weight of au-
thority is against it."

On the 26th of October, 1841, A
made a parol contract with B to labor
one year for $360, and to commence
the service upon A's return from New
York, which was to be in the course
of a week or ten days thereafter. B,
on the 9th of November following,
after his return from New York, com-
menced his labor under the contract,
and so continued _ until the 26th of
June, 1842, when . he left B's employ-
ment. In an action of book debt
brought by A against B for his ser-
vices, it was held that the contract,
not being one which, by its terms, was
to be performed within one year from
the making thereof, and not beingre-
duced to writing, was within the stat-
ute of frauds and perjuries ; that the
part performance of this contract by
A, by serving under it more than six
months, did not take it out of the
statute so as to give it validity; that
being thus within the statute, it was
not available to defeat the claim of
A, and that A's entering into B's ser-
vice on the 9th of November furnished
no presumption, to go to the jury,
that the parties recognized the con-
tract as one perfected and completed
on that day. Comes o. Lamson, 16
Conn. 246.

SEC. 276.] CONTEAOT PKESX7MED TO COMMENCE AT ONCE. 491

A different doctrine is held in Vermont ^ and in Illinois,^
but it is not believed that the doctrine of these courts can be
sustained upon any reasonable grounds either of principle or
authority.

There is no validity to such a contract, and it cannot be
enforced in any respect. Thus, if the wages are payable
monthly, no action upon the contract can be maintained
therefor, and the statute would be a complete defence there-
to.^ Neither party can enforce its provisions;* but if the
servant goes on and performs his contract, he cannot, upon
a quantum meruit, recover more than the contract price. The
contract executed by him is a complete answer to such a
claim.^ Such contracts are not absolutely void unless so
declared by the statute, and where they are not, they may
be availed of for certain purposes by the parties thereto as
evidence.® This is upon the principle that, while such con-
tracts, as executory contracts, cannot be enforced, yet, when
fully performed, the statute does not apply, following the

In New Tork an agreement that is
not, by its terms, to be completely
executed within one year, is void
unless in writing. One who refuses to
complete an agreement which is void
by the statute of frauds, after receiv-
ing a benefit from a part performance,
must pay for what he has received.
Lockwood u. Barnes, 3 ffiU (N. Y.)
128.

When a contract is by parol to
work for one year, to commence at a
future day, the fact that the servant
enters upon the discharge of his duties
will not take the contract out of the
statute so that a recovery can be had
for non-performance ; but the parties
will be' at liberty to put an end there-
to at any time, and a recovery can
only be had upon a quantum meruit
for the services actually rendered.
Thus in Palmer v. Marquette Rolling
Mill Co., 32 Mich. 274, on August 7,
1872, the plaintifE entered into the ser-
vice of the defendants under a tele-
gram : " You may come on at once at
salary of two thousand, conditional
only upon satisfactory discharge of
business." He went into their service

August 14, 1872, and was discharged
January 1, 1873. In an action for
breach of. contract, held there coujd
be no recovery.

When a person has begun the per-
formance of a contract, void under
the statute, if the other party, after
having derived a benefit from the con-
tract, refuses to perform, he must pay
for what benefit he has received,
Mavor v. Pyne, 3 Bing. 285 ; Kidder
V. Hunt, 1 Pick. (Mass.) 328; Lane v.
Shackford, 5 N. H. 133, upon a quan-
tum meruit. Stone v. DeUnison, 13
Pick. (Mass.) 1; King v. Brown, 2
Hill (N. Y.) 485.

1 Mack V. Bragg, 30 Vt. 571. See
King V. Welcome, 15 Gray (Mass.)
41, for a contrary, and as we believe,
the true rule in such cases.

2 Swanzey v. Moore^ 22 111. 63.

' Hill V. Hooper, 1 Gray (Mass.)
131.

* Comes V. Lamson, 16 Conn. 246 ;
Beade v. Lamb, 6 Exch. 130 ; Carring-
ton V. Roots, 2 M. & W. 248.

5 Stone V. Dennison, 13 Pick.
(Mass.) 1.

8 Laroux v. Brown, 12 C. B. 801.

492 STATUTE OP PEATJDS. [CHAP. Vn.

doctrine announced by Ttndax, C. J., in Souph v. Straw-
bridge, ante, that the statute does not apply to an executed
consideration, but only to prevent the recovery of damages
for its non-performance.

When a person enters into the employ of another under a
valid contract for a year, if he remains beyond the time for
which he is employed, he is entitled to recover for such ser-
vices pro rata at the price provided in the former contract,
and the statute of frauds does not apply to such a case. The
continuance of service is not under the provisions of the orig-
inal contract, except by inference of law. The original con-
tract is merely evidence of the understanding of the parties
as to the price, etc., which should be paid for such additional
services, and when the original contract is proved, it does not
afford conclusive evidence of the rights of the parties, but
raises a presumption merely, which the defendant may rebut
by any facts or circumstances that tend to show a different
understanding.^

Sec. 277. Performance on One Side Does not'Take the Con-
tract out of the Statute. — The fact that a servant has fully
performed a contract for service void under the statute of
frauds does not entitle him to recover upon the contract, but
his remedy is upon a quantum meruit, and, except in those
States where such contracts are declared void, the measure
of his recovery would be the contract price, the law implying
a promise to pay according to the terms of the agreement.^
But where the contract has been fully performed on both
sides, the statute does not apply .^ Full performance by the
plaintiff and part performance by the defendant does not take
the contract out of the statute, as to what remains to be
done, but an action Ues to recover the balance due.* Only
the party who has not performed can avail himself of the

1 Tatterson v. Suffolk Manuf . Co., what the services are reasonahly
106 Mass. 60. worth. Annan v. Merritt, 13 Conn.

2 Carter v. Brown, 3 Rich. (S. C.) 478; Miller w. Hower, 2 Eawle (Penn.)
298; Stone i-. Dennison, 13 Pick. 53; Pugh u. Good, 3 W. & S. (Penn.)
(Mass.) 1; Schieffelin v. Carpenter, 15 56.

Wend. (N. Y.) 400; King v. Brown, 2 * Stone v. Dennison, ante; McCue

Hill (N. Y.) 485. v. Smith, 9 Minn. 262.

He is not deprived of all remedy * Thomas v. Dickinson, 14 Barb,

for his services, hut the law implies a (N. Y.) 90.
request and promise to pay therefor

SEC. 277.] CONTRACT PEEFOEMED ON ONE SIDE. 493

statute. One who has voluntd,rily performed cannot allege
its invalidity.^ The privilege is personal, and cannot be
made available by a third person, a stranger to the con-
tract,2 and it may be waived, and is regarded as waived,
unless the party avails himself of it either by his pleadings,
or under the general issue where advantage may be taken of
it without a special plea.^

A defendant, demurring to a bill, setting up a parol agree-
ment, and admitting the agreement, will, nevertheless, be
entitled to the protection of the statute of frauds, if, in his
demurrer, he claims such protection. The demurrer will, in
this respect, be treated like an answer. If the complainant
relies on a part performance, he must allege the facts consti-
tuting it in his declaration. These facts are admitted by the
demurrer, and it wOl then be the duty of the court to de-
termine whether they are sufficient to constitute a part
performance.* A defendant can never shelter his fraudulent
conduct behind the statute of frauds.^ The courts, of course,
take judicial notice of the statute, but they will not take
judicial notice that a given contract is void because not in

^ Westfall V. Parsons, 16 Barb. (N. be enforced. Patterson v. Ware, 10

T.) 645. Ala. 444.

'^ In McCoy v. Williams, 6 111. 584, In New Jersey the statute must be

the court held that the plea of the relied on; that this, the party must

statute of frauds is a personal privi- either plead it specially or urge it as

lege, which the party may waive ; a ground of defence. Thus, a def end-

another cannot plead it for him, or ant may insist upon the benefit of the

compel him to plead it. statute of frauds, although he admits

' In Vermont, if a plea avers that the parol agreement ; but if he does
the promise sued on was a promise to not insist upon the statute, he is not
pay the debt of another, to wit, B, a entitled to its benefit. Ashmore v.
replication that the promise was not a Evans, 11 N. J. Eq. 151.
promise to pay the debt of said B is In Missouri the statute must not
good, and the defence of the statute only be pleaded, but the plea must set
may be shown under the general issue, forth the grounds that bring the Con-
or pleaded specially. Hotchkisa t. tract within the statute. Thus, when
Ladd, 36 Vt. 593. the statute of frauds is pleaded in de-

In Illinois the statute must be fence, it is not sufficient to allege that

pleaded, if it is to be relied upon by the account stated is void by the stat-

the defendant. He cannot set it up, ute ; the facts relied upon in defence

for the first time, in an instruction, under the statute should be set out.

Warren c. Dickson, 27 111. 115. Dinkel «. Gundelfinger, 35 Mo. 172.

So in Alabama, the defence arising See, also, Rabsuhl v. Lack, id. 316.

imder the statute must be pleaded ; * Van Dyne v. Vreeland, 11 N. J.

and, if waived, and the contract is ad- Eq. 370.

mitted or established by proof, it will ^ Hidden v. Jordan, 21 Cal. 92.

494 STATUTE OF FKAUDS. [CHAP. VH.

writing. The party must allege and prove such ground of
defence.-'

Sec. 278. Contract Defeasible within the Year. — The fact
that a contract, not to be performed within a year, is defeas-
ible within the year, will not take a case out of the statute.
Thus it was held that a contract, whereby a coachmaker
agreed to let a carriage for a term of five years, in consider-
ation of receiving an annual payment for the use of it, but
which, by the custom of the trade, was determinable at any
time within that period, upon the payment of a year's hire,
was an agreement not to be performed within a year, within
the meaning of the statute, and must be in writing.^

Sec. 279. Contract Executed by One of the Parties. — In

England, and most of the States of this country, it is held
that the statute only applies to contracts which are not to he
performed hy either side within a year, and therefore where a
contract has been completely performed on one side within the
year, the case will not he within the statute.^ The doctrine
as stated in the text is adopted in Kentucky,* Missouri,^
Maine,^ Maryland,'' Indiana,^ Illinois,® New Jersey,^" Ala-
bama," Georgia,^2 South Carolina,^^ Texas,i* Wisconsin,^^ and

1 Bumard v. Nerat, 1 C. & P. 578. Clay, 54 N. H. 518; Holbrook v.

2 Birch V. Earl of LiTerpool, 9 B. Armstrong, 10 Me. 31.

&C. 392; S. C. nom. Burch B. Earl of * Gully v. Grubbs, 1 J. J. Mar.

Liverpool, 4 Man. & Ry. 380 ; and see (Ky.) 887; Montague v. Garrett, 3

Roberts v. Tucker, 3 Ex. 682 ; Dobson Bush. (Ky.) 297.

V. Collis, 1 H. & N. 81 ; re Pentre- ' Self v. Cordell, 45 Mo. 345 ; Sug-

guinea Coal Co., 4 De G. E. & J. 54i. gett v. Casson, 26 id. 221 ; Blanton v.

s Suggett V. Casson, 26 Mo. 212 ; Knox, 3 id. 241.

Pinney v. Pinney,2 Root (Conn.) 191; ^ Holbrookw. Armstrong, 10 Me. 31.

Watrous v. Chalker, 7 Conn. 224; ' Hardesty v. Jones, 10 G. & J.

Cody u. Cadwell, 5 Day (Conn.) 67; (Md.) 404; EUicott v. Turner, 4 Md.

Berry u. Doremus, 80 N. J. L. 399; 476.

Curtis V. Sage, 35 Dl. 22 ; McCIellan « Haugh v. Blythe, 20 Ind. 24.

V. Sandford, 26 Wis. 595 ; Ellicott v. » Curtis v. Sage, 35 III. 22.

Turner, 4 Md. 476 ; Hardesty u. Jones, i" Berry v. Doremus, 30 N. J. L.

10 G. & J. (Md.) 404; Haugh a. 399.

Blythe, 20 Ind. 24; Blanton v. Knox, " Rake v. Pope, 7 Ala, 161.

3 Mo. 241 ; Suggett v. Casson, 26 Mo. ^^ Johnson v. Watson, 1 Ga. 348.
221; Self w. Cordell, 45 id. 845; John- !» Compton v. Martin, 5 Rich. (S.
son V. Watson, 1 Ga. 848; Zabel v. C.) L. 14; Bates a. Moore, 2 Bailey
Schroder, 85 Tex. 808; Miller v. (S. C.) 614.

Roberts, 18 id. 16; Rake v. Pope, 7 " Miller v. Roberts, 19 Tex. 16;

Ala. 161 ; Compton v. Martin, 5 Rich Zabel v. Schroder, 35 id. 308.

(S. C.) L. 14; HoUoway v. Hampton, " McCIellan o. Sanford, 26 Wis.

4 B. Mon. (Ky.) 415; Perkins v. 595.

SEC. 279.] CONTEACT PERFORMED ON ONE SIDE.

495

New HampsHre,^ while in Massachusetts^ and Vermont ^
the doctrine is distinctly repudiated, and in New York the
question does not seem to be definitely settled,* and in
Ohio * and Mississippi " it is criticised. It will thus be
seen that the tendency of our courts is to sustain the rule
as stated, and whatever might be said as to the sound-
ness of the rule, it is quite too late to effect a change by any
line of argument that might be pursued. The meaning of
the section is, that no action shall be brought to recover
damages in respect of the non-performance of such con-
tracts as are referred to in it; its design was to prevent
the setting up, by means of fraud and perjury, of contracts
or promises by parol, upon which parties might otherwise
have been charged for their whole lives, and for that pur-
pose it requires that certain contracts shall be evidenced
only by the solemnity of writing, and has no application to
actions founded upon an executed consideration.'' Where a

1 Perkins v. Clay, 54 N. H. 518;
Blanding v. Sargent, 33 id. 239. But
see Emery v. Smith, 40 id. 151, contra.

2 Marcy v. Marcy, 9 Allen (Mass.)
8; Cabot v. Haskins, 3 Pick. (Mass.)
83; Frary v. Sterling, 99 Mass. 46.

« Pierce v. Paine's Est., 28 Vt. 34.

4 Dodge V. Crandall, 30 N. Y.
294; Bartlett v. Wheeler, 44 Barb.
(K Y.) 162; Weir v. Hill, 2 Lans.
(N. Y.) 278; Adams u. Honess, 62
Barb. (N. Y.) 326.

* Reinheimer o. Carter, 31 Ohio
St. 579.

6 Duff V. Snider, 54 Miss. 245.

' Donellan v. Read, 3 B. & Ad. 899 ;
Souch ... Strawbridge, 2 C. B. 814,
per TiNDAL, C. J. ; and see re Pentre-
guinea Coal Co., 4 De G. F. & J. 541 ;
Smith V. Neale, 2 C. B. (N. S.) 67.
It was hinted in Bracegirdle v. Heald,
and decided in Donellan u. Read, 3
B. & Ad. 899, that an agreement is
not within the statute, provided that
all that is to be done hy one of the parties
is to be done within a year. There the
defendant was tenant to the plaintiff
under a lease of 20 years, and in con-
sideration that the plaintiff would lay
out i50 in alterations, the defendant
promised to pay an additional £b a

year during the remainder of the term.
The alterations were completed with-
in the year, and an action brought
for the increased rent. It was objected
among other things, that the contract
could not possibly be performed with-
in a year, and therefore ought to have
been in writing. The court, however,
held that it was not within the statute.
"We think," said Littledale, J.,
delivering the judgment of the court,
"that as the contract was entirely
executed on one side within the year,
and as it was the intention of the
parties, founded on a reasonable ex-
pectation, 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 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." See
Hoby w. Roebuck, 7 Taunt. 157.

But the contrary seems to have
been taken for granted in Peter v.
Compton, Skin. 353, and other of the
older cases ; for instance, in Peter v.
Compton, there would have been no

496

STATUTE OF FEATJDS.

[chap. VII.

landlord who had demised premises for a term of years at
^50 a year, agreed with his tenant to lay out £60 in making

occasion to argue the question,
whether the possibility that the plain-
tiff's marriage might not happen for
a year brought the case within the
statute or no, if the payment of the
guinea, which took place immediately,
Tiad been considered suflBcient to ex-
empt the agreement from its oper-
ation. The decision in Donellan v.
Head, ante, makes the word agreement
bear two different meanings in the
same section of the statute of frauds.
But it seems to be qtdte well settled
that the word agreement, when lastly
used in the section, means what is to
be done on both sides ; and it has fre-
quently been held upon that very
ground, that guaranties are void, if
they do not contain the consideration
as well as the promise. Wain i;.
Warlters, 6 East, 10; Jenkins v.
Eeynolds, 3 B. & B. 14 ; Saunders v.
"Wakefield, 4 B. & Ad. 595 ; Sykes v.
Dixon, 9 Ad. & El. 693 ; but a much
more confined sense appears to be be-
stowed upon the word agreement when
it is held that an agreement is capable
of being executed within a year,
where one part only of it is capable of
being so. In the case put by Little-
dale, J., of goods deliyered imme-
diately, to be paid for after the ex-
piration of a year, great hardship
certainly would be inflicted on the
Tcndor, if he were to be unpaid be-
cause he could not show a written
agreement. But it may be worthy of
consideration, whether, even if he
were to be prevented from availing
himself of the special contract under
which he sold the goods, he might not
still sue on a quantum meruit. See
Teal V. Auty, 2 B. & B. 99; Earl of
Falmouth v. Thomas, 1 C. & M. 109;
Knowles v. Mitchell, 13 East, 249. In
Boydell v. Drummond, 11 East, 159,
it is expressly settled that part per-
formance will not take an agreement
out of the statute, and that upon
principles which seem not inapplicable
to the question in Donellan v. Read.

"I cannot," said Lord Ellen-
borough, "say that a contract is
performed, when a great part of it
remains wn-performed within the year;
in other words, that part performance
is performance. The mischief meant
to be prevented by the statute was
the leaving to memory the terms of a
contract for a longer time than a year.
The persons might die who were to
prove it, or they might lose their
faithful recollection of the terms of
it." Smith V. Westall, L. Ray. 316.
These observations seem applicable
to such a case as Donellan v. Read.
The performance of one side of the
agreement within the year could not
be said to be more than part perform-
ance of the agreement; and the
danger that witnesses may die, or
their memories fail, seems to be pretty
much the same in every case where
an agreement is to be established,
after the year is past, hy parol evidence.
Indeed, if there is any difference at all
in the danger of admitting oral testi-
mony after the year, it seems greater
in a case where one side of the agree-
ment only has been performed, than in
such a case as Boydell v. Drummond ;
since, where the agreement has been
partially performed on both sides, as
in the latter case, a witness giving a
false or mistaken account of its terms,
would have to render his tale con-
sistent with what had been done by
both the contractors; whereas, if the
part performance had been on one
side only, the witness would only have
to make his tale consistent with what
had been done on that side. It is true
that in Donellan v. Read there was a
part performance on both sides ; but
BO there was in Boydell v. Drummond :
and the reason assigned for the de-
cision in Donellan v. Read, viz., that
the whole of one side of the agree-
ment was performable within the
year, would equally apply in a case
where there had been, and could be,
no part performance on the other side

SEC. 280.] CONTRACT NOT TO DO CERTAIN THINGS. 497

certain improvements upon them, the tenant undertaking to
pay him an increased rent of £5 a year during the remainder
of the term, it was held that the landlord having done the
work might recover the arrears of the i£5 a year, although
the agreement had not been signed by either party.^

Sec. 280. Agreement not to do Certain Things. — An agree-
ment to refrain from doing a certain act in a certain locality,
for an indefinite period, as we have seen, is not within the
statute, although the parties may really have expected that
the contract would be in force for many years, because it
may be determined within a year by the death of the party
contracting.^ But if a definite period is fixed upon, as if the
party engages uot to exercise a certain trade at a certain
place " for three years," then as the parties do not contem-
plate a performance in one year, the contract is within the
statute.* But this is only the case when the contract
shows that it is not to be performed within a year, or that
it is impossible of performance within that time.* If it

for twenty years. Donellan v. Head
is fully confirmed in Cherry v, Hem-
ing, 4 Exchq. 631 ; and Bakon Parke
there says : " The learned obseryations
of Mr. Smith are not sufficient to in-
duce me to say that it was wrongly
decided." The case of Peter v. Comp-
ton, which he relies on, does not sup-
port his view. 41 Smith's Leading
Case, 433.

1 Donellan v. Read, 3 B. & Ad.
906; Mavor v. Pyne, 3 Bing. 285;
Cherry v. Heming, 4 Exchq. 631.

2 Hill V. Jamieson, 16 Ind. 125 ;
Blanchard v. "Weeks, 34 Vt. 384.

' Davey </. Shannon, 4 Ex. Div.
81. In Wilson v. Martin, 1 Den. (N.
Y.) 602, a parol agreement for board
and lodging for one year, made before
the commencement of the year, is
within the statute. See also Spencer
V. Halstead, 1 id. 606. So in Kelley v.
Terrell, 26 Ga. 551, an oral agreement
made before Christmas, 1854, to serve
as overseer during the year 1855, was
held to be within the statute ; and the
same rule was applied to a contract
made Dec. 14, 1856, to rent a house
for the year 1857. Atwood v. Norton,

31 Ga. 507. And also to a contract to
serve three years, at it certain sum
per day. Tuttle v. Sweet, 31 Me. 565.
In Bartlett i'. Wheeler, 44 Barb. (N.
Y.) 294, A delivered to B four sheep,
B agreeing, by parol, to return twenty
sheep therefor at the end of four
years. At the expiration of four years,
the parties entered into another parol
agreement by which B, instead of de-
livering the twenty sheep, was to deliver
forty, of equal quality, at the end of
four years. The last contract was
held to be within the statute, because
not possible of performance within a
year.

* Thomas v. Hammond, 47 Tex.
42 ; McPherson v. Cox, 96 U. S. 404 ;
Duff t'. Snider, 54 Miss. 247 ; Blakeney
V. Goods, 80 Ohio St. 350 ; Walker t'.
Johnson, 96 U. S. 424 ; Van Woert v.
Albany &c. R. R. Co., 67 N. Y. 538;
Paves V. Strong, 51 Ind. 339 ; Rogers
V. Brightman, 10 Wis. 55 ; Hodges v.
Strong, 3 Greg. 18; Blackburn v.
Mann, 85 111. 222 ; Marley v. Noblett,
42 Ind. 85 ; Adams v. Adams, 26 Ala.
272; Plimpton v. Curtis, 15 Wend.
(N. y.) 336; Saunders v. Kastebine,6

498

STATUTE OF FEATJDS.

[chap. VII.

may be performed within that time, the circumstance that
it is improbable that it will be so performed does not bring it
within the statute,^ nor even although it was not expected hy
the parties that it would be performed within the year?' Courts
will not weigh probabilities, but simply inquire whether per-
formance is possible, and the contract is one which can be
fully met and satisfied by a performance within the year.^
But while an agreement to refrain from doing a certain act
for an indefinite time is not within the statute, because it
maybe fully performed within the year by the death, of one
of the parties, a contract not to do a certain act for a definite
time, exceeding one year, as for thirteen months, two years,
etc., is held to be within the statute because not possible of
performance within a year^ and it affirmatively appears in the
contract itself that it cannot in law^ or in the common
course of nature, be performed within a year.^ Thus in the
case last cited the parties orally agreed that the defendant
should have a colt at a certain sum agreed upon, and to be
paid for on delivery, to be got out of the defendant's mare

B. Mon. (Ky.) 17 ; Artcher a. Zeh, 5
Hill (N. Y.) 200.

1 Gault V. Brown, 48 N. H. 183.

2 Kent V. Kent, 62 N. Y. 560 ; Clark
V. Pendleton, 20 Conn. 495; Koberts
Rockbottom Co., 7 Met. (Mass.) 46
Eandall v. Turner, 17 Ohio St. 262
Southwell V. Breezeley, 5 Oreg. 143
Lockwood (,-. Barnes, 3 Hill (N. Y.)
128. In Gault v. Brown, ante, the
contract was for the sale of all the
cord-wood on a certain lot to be
delivered all that was possible that
winter, and the rest the next. The
court held that it was not within the
statute, because it might possibly be
completed within the year.

8 Southwell 0. Breezeley, 5 Oreg.
458. In Kent v. Kent, ante, a contract
to labor for another, the services to
be paid for at the death of the em-
ployer, was held not to be within the
statute, although the parties did not
expect the contract to be performed
within the year. It is not what the
parties expect, but is performance within
a year possible. Southwell v. Breeze-
ley, 5 Oreg. 143; S. C. 5 id. 458; Frost

V. Tarr, 53 Ind. 390. In District &e.
V. Moorhead, 43 Iowa, 466, a school-
house was erected, and a parol agree-
ment made with the owner of the land
that the district should have free
use of the land as long as the school-
house stood thereon; and it was held
that as the user depended upon a
contingency which might occur within
a year, it was not within the statute.
See also White v. Smith, 51 Ala. 405,
where a parol agreement to give a
person the use of land during his life,
was held not to be within the statute.

* Davey v. Shannon, 4 Exchq. Div.
81; Perkins v. Clay, 54 N. H. 518;
Self V. Cordell, 45 Mo. 345; Gotts-
Bchalk V. Wittes, 25 Ohio St. 76. But
see Doyle v. Dixon, 97 Mass. 208,
where a contract not to engage in a
certain trade in a certain place for
five years, was held not to be within
the statute.

^ Lawrence v. Cooke, 56 Me. 187;
Walker v. Johnson, 96 U. S. 424.

•^ Lockwood V. Barnes, 3 Hill (N.
Y.) 128.

SEC. 280.] CONTRACT NOT TO DO CERTAIN THINGS. 499

by the plaintiff's stallion. The latter was to take the mare
and keep her in his possession during the period of gestation
and until the ordinary weaning time, or until it was four or
six months old. In an action upon this contract held that
as the usual period of gestation for horses was eleven months,
and the common weaning time from four to six months more,
the contract could not possibly be performed within the
year, and was therefore within the statute. This rule is
also illustrated by a California case ^ in which the defendant
promised to pay money loaned him by the plaintiff, when
certain nut-bearing trees to be set out that season, should
bear nuts sufficient so as to yield a sufficient income for that
purpose over and above the expenses of the family. The
court held that this was clearly within the statute, because
in the common course of events the trees would not bear and
produce nuts within the year. The rule may be illustrated
thus. A contract to labor for another as long "as wood
grows and water runs " would clearly be within the statute,
because in the common course of nature, wood will continue
to grow, and water continue to run until the end of time.
But a contract to labor for another as long as he lives, is not
within the statute, because although that person may con-
tinue to live for many years, yet in the common course of
nature he may die within the year, so that however improba-
ble the happening of the contingency upon which the dura-
tion of the contract depends within a year, may be, yet it is
possible, and therefore not within the statute. Therefore it
may be said that where in the common course of events it is
possible that the contract may he performed within a year, it is
not within the statute however improbable it may be that
such performance will be accomplished within that period.^
But if performance within a year, either because of the exr
press terms of the contract, or in the ordinary course of events
is impossible, then the contract is within the statute, and
inoperative unless in writing.^ Thus an agreement made

1 Swift V. Swift, 46 Cal. 266. would take nearly, if not qtiite, two

2 Gault V. Brown, 48 N. H. 183. years, was held not to be within the
In Clark v. Pendleton, 20 Conn. 495, a statute, because, possibly, it might
promise by the defendant to marry end within the year. See also Bandall
the plaintiff upon his return from a v. Tvimer, 17 Ohio St. 262.

certain voyage, which it was expected ' Davey v. Shannon, 4 Exchq. Diy.

500 STATUTE - OP PKAUDS. [C HAP. VII.

March 31, 1883, to pay money April 1, 1884, would clearly
come within the statute, or to pay a sum of money in annual
instalments,^ or in quarterly or semi-annual instalments, if
the whole sum is not to be paid in one year,^ or to pay a
mortgage when certain land is sold, which the promisor is
bound by his contract not to sell for three years,^ or to sell
the product of land for two years,* because they are not capa-
ble of performance within a year ; because however ready
one party might be to perform, the other party is not bound
to accept such performance within the year.^

Sec. 281. Venaition of Right. — An agreement entered into
by a contractor to share in the profits of an undertaking is
not, although the contract is not capable of being performed
within a year, required to be in writing, and may be proved
by parol. The contract is merely one for the vendition of a
right ; it is performed as soon as the agreement is entered into,
and from that time the parties have all the mutual rights and
liabilities of partners in the concern.^

85; Tiernan v. Granger, 65 III. 351; Y.) 307; Giraud v. Eichmond, 2 C. B

Lower i-. Winters, 7 Cow. (N. Y.) 263 ; 835.

Lapham v. Whipple, 8 Met. (Mass.) ' Jlill v. Hooper, 1 Gray (Mass.)

89; Cowles v. Warner, 22 Minn. 449; 131. But see Moore u. Fox, 10 John.

Curtis V. Sage, 35 111. 22; Frary v. (TS. Y.) 244.

Sterling, 99 Mass. 461 ; Hill v. Hooper, * Frary v. Sterling, ante.

1 Gray (Mass.) 131; Lawrence w. ^ HoUoway u. Hampton, 4 B. Mon.

Woods, 3 Bos. (N. Y.) 354. (Ky.) 415.

1 Lower v. Winters, 7 Cow. (N. Y.) « McKay v. Rutherford, 6 Moo. P.
263. C. 414 ; Essex v. Essex, 20 Beav. 449 ;

2 Park V. Francis, 50 Vt. 626 ; Hoare v. Hindley, 49 Gal. 274.
Drummond v. Burrell, 13 Wend. (N.

SECTION XVII.

SALE OF GOODS.

" No contract for the sale of any goods, wares, or merchandises, for the
price of ten pounds sterling or upwards, shall be allowed to be good, ex-
cept 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 pay-
ment, 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."

CHAPTER VIII.

WHAT IS SALE OP GOODS.

SECTION.

282. Exceptions Contained in the Statute.

283. "What are Goods, etc.

284. Contracts to Make up Materials and Affix them to Land.

285. What is a Sale.

286. Defeasible Contracts of Sale.

Section 282. Exceptions Contained in the Statute. — The
general intention of the statute is that there should be a
writing,! ^^^ there are certain instances named, in which a
writing may be dispensed with.

1st. Where the buyer shaU " accept part of the goods so
sold, and actually receive the same. 2d. Or give some-
thing in earnest to bind the bargain or in part payment.^
3d. 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 author-
ized."

Sec. 283. "What are Goods, Wares, or Merchandise. — The

question as to whether choses in action, as bills of exchange,
promissory notes, bank bills, stocks in corporations, etc.,
come within this section of the statute, has been variously
decided in the courts of this country, as well as in England ;

' Bushel 0. Wheeler, 15 Q. B. 445, Iowa the words are "where the pur-
ser Denman, C. J. chase-money, or any portion thereof,

^ In California, the expression is has been received by the vendor."

" or pay at the time some part of the The omission of the words " or give

purchase-money," § 2794, sub-div. 4, something in earnest," in these stat-

and also in Dakota, Minnesota, § 7 ; utes, is important under this head,

Mississippi, § 2895; Montana, § 13; and entirely defeats the efficacy of

Nebraska, § 9 ; Nevada, § 62 ; New " earnest " in giving validity to such

York, § 2, tit. 2, sub-div. 3 ; Oregon, contracts, except when it is given as a

§ 775, sub-div. 5 ; Utah, §6; Wiscon- part of the purchase-money.
sin, § 2308 ; and Wyoming, § 2. In

SEC. 283.]

WHAT IS SALE OF GOODS.

603

but, whatever may formerly have been the rules in England,
it is now well settled that choses in action do not come
under this head, and contracts for their sale are not within
the statute.^ But in this country, so far as the question has
been before the courts, there seems to be considerable con-
flict. In New Hampshire,^ Indiana,^ Georgia,* and Alabama,^
the English rule seems to prevail. But in Massachusetts,^
Maine,^ Maryland,** Vermont,® and Connecticut,!" choses in

1 Benjamin on Sales, 3d Eng. ed.,
§ 111. In Powell V. Jessop, 18 C. B.
336; and Watson v. Spratley, 10
Exchq. 222, a sale of shares in a
mining company, on the cost-book
plan, was held not to be within the
statute ; and the same was held in
Humble v. Mitchell, 11 Ad. & El. 205,
as to shares in a banking company ;
and in Heseltine v. Siggers, 1 Exchq.
856, as to stock of a foreign State;
and in Duncroft v. Albrecht, 12 Sim.
189; Tempest i'. Itilner, 3 C. B. 249;
Bradley v. Holdsworth, 3 M. & W.
422 ; and Bowlby v. Bell, 3 C. B. 284,
as to sales of railway shares. But see
CruU V. Dodson, Sel. Cas. in Ch. 41 ;
and Mussel v. Cook, Pre. Ch. 538,
early cases, holding that shares in a
corporation were goods, wares, or mer-
chandise within the meaning of the
statute.

2 Whittemore v. Gibb, 24 N. H.
484. Promissory notes were held not
to be goods, wares, or merchandise
within the meaning of the statute.

8 Vawter v. Griffin, 40 Ind. 593. In
this State the statute omits the words
" wares or merchandise," and extends
only to sales of " goods " ; but the same
effect is given to the statute as though
those words were included.

* Beers v. Crowell, Dudley (Ga.)
28. An agreement to transfer treasury
checks was held not to be within the
statute.

s Hudson V. Weir, 29 Ala. 294. In
this case, a contract for the sale of
notes, for a price not exceeding $200,
was held not to be within the statute.

6 In Baldwin v. Williams, 3 Met.
(Mass.) 365, a contract for the sale of
promissory notes ; in Somerby v. Bun-

tin, 118 Mass. 279, an agreement for
the sale of an interest in an invention ;
and in Eastern R. R. Co. v, Benedict,
10 Gray (Mass.) 212 ; Bffardman v.
Cutter, 128 Mass. 390 ; Tisdale v. Ha>
ris, 20 Pick. (Mass.) 9, a contract for
the sale of shares in a corporation
were held to be within the statute, as
being contracts for the sale of " goods,
wares, or merchandise."

' In Gooch V. Holmes, 41 Me. 323,
and in Riggs v. Magruder, 2 Cr. (U.
S. C. C.) 143, which arose, in that
State, a sale of bank bills was held
to be a sale of " goods, wares, or mer-
chandise."

8 Calvin v. Williams, 3 H. & J.
(Md.) 38.

9 Fay V. Wheeler, 44 Vt. 292.

10 North V. Forest, 15 Conn. 400.
In this case, a contract for the sale of
the plaintiff's stock in a corporation
was held to be within the statute, as
being a contract for the sale of " goods,
wares, or merchandise." But by stat-
ute, in Connecticut, the shares of such
stock are made personal property ; but
from the language of the court, it is
evident that this circumstance did not
affect the question. Waite, J., said :
" In consequence of the great increase
in corporations, and the amount of
capital invested in them, the stock of
such companies has become a large
and valuable portion of the personal
estate of our citizens. Contracts for
the sale of such property are almost
daily made, and often to a very large
amount. Such contracts fall clearly
within the mischiefs which the legis-
lature, by the statute, intended to
remedy. There is as much danger of
fraud and perjury in the parol proof

504 STATUTE OP FEAtTDS. [CHAP. Tin.

action seem to be regarded as "goods, wares, or merchan-
dise " within the meaning of the statute, and contracts for
their sale for a price, beyond that fixed in the statute, are
required to be in writing. In many of the States, this ques-
tion has been decisively put at rest by an express' provision
including "things in action" therein, as in California,
Dakota, Nebraska, Nevada, New York, Minnesota, Montana,
Utah, Wisconsin, and Wyoming; while in Connecticut,
Florida, Mississippi, and Oregon, the statute is extended to
sales of "personal property." In some of the States, the
statute does not extend to contracts for the sale of goods,
wares, or merchandise, or other personal property, as in Ala-
bama, Delaware, Illinois, Kansas, Kentucky, North Carolina,
Ohio, Pennsylvania, Rhode Island, Tennessee, Texas, Vir-
ginia, and West Virginia. Any species of personal property,
subject to the limitations stated in this and the following
section, come under the head of goods, wares, and merchan-
dise within the meaning of the statute.

Sec. 284. Contracts to Make Up Materials and AfSz them
to Land. — A Contract to make up materials and afSx them
to land, as, a contract to build a house or to manufacture
an engine to be fixed to realty, is not a contract for the
sale of goods, and the contractor cannot recover for the
materials in an action for goods sold and delivered, even
though by a deviation from the original plan, the con-
tract is superseded as to price,^ because, in such a case,
as soon as the chattels are annexed to the land, they
become a part thereof, but, until they are so annexed,
they remain chattels. Thus, in a case cited in the last
note,^ B, a builder, contracted with A and others, trustees
of a new hotel about to be erected by a company of pro-
prietors, to build the hotel, except as to the ironmonger's,
plumber's, and glazier's work, for a specified sum, and cove-

of such contracts as in any other, falls within the letter as well as

The statute is highly important and within the spirit of the act."
beneficial in its operation, and ought ' Cottrell v. Apsey, 6 Taunt. 322 ;

not to be narrowed by any very rigid Tripp v. Armitage, 4 M. & "W. 687 ;

construction. Howe v. Palmer, 3 B. Clark v. Bulmer, 11 id. 243.
& Ad. 321. And we think it no 2 Tripp v. Armitage, 4 M. & W.

strained construction of its language 687.
to say that the contract in question

SEC. 284.] -WHAT IS SALE OF GOODS. 506

nanted to complete certain portions of the work within
certain specified periods, being paid by instalments at corre-
sponding dates ; and that if he should neglect to complete
any portion within the time limited, he should forfeit and
pay the sum of £250 as liquidated damages. The agreement
then contained a clause empowering the trustees, in case
(^inter alia) B should become bankrupt, to take possession of
the work already done by him, and to put an end to the
agreement, which should be altogether null and void ; and
that the trustees, in such case, should pay B or his assignees
only, so much money as the architect of the company should
adjudge to be the value of the work actually done and fixed
by B, as compared with the whole work to be done. The
course of business during the progress of the work was for
the clerk of the works to inspect every article which came in
under the contract, and none were received except on his
approval. After the works had proceeded some time, B
became bankrupt. Before his bankruptcy, certain wooden
sash-frames had been delivered by him on the premises of
the company, approved by the clerk of the works, and
returned to B for the purpose of having iron pulleys, belong-
ing to the trustees, affixed to them ; and at the time of the
bankruptcy, these frames, with the pulleys attached to them,
were at B's shop. He afterwards, but before the issuing of
the fiat, redelivered them to the trustees; and the sash-
frames being afterwards demanded of them by B's assignees,
they gave an unqualified refusal to deliver them up. It was
held that the property in the wooden sash-frames had not
passed to the trustees at the time of the bankruptcy, and
that they were not entitled to hold them under the agree-
ment as being work already done, they not having been fixed
to the hotel. Lord Abingbr, C. B., said: "This is not a
contract for the sale and purchase of goods, as movable chat-
tels. It is a contract to make up goods and fix them, and,
until they are fixed, by the nature of the contract, the prop-
erty will not pass." Upon the same principle a sale of ten-
ant's fixtures, while they are still connected with the land, is
not a sale of " goods, wares, or merchandise." ^ But a sale of
growing crops fructus industriales, is treated as a sale of

1 Lee V. GaskeU, 1 Q. B. D. 700.

506

STATUTE OF FEAXJDS.

[chap. vm.

goods,^ etc., but as to orops fructus naturales, as we have
seen, considerable conflict exists as to whether contracts for
their sale come within the fourth or the seventeenth section
of the statute, with the weight of authority in favor of the
latter.2

Sec. 285. what is a Sale. — It is not necessary in order to
constitute a sale of property, that there should be an agree-
ment to pay for it in money, and contracts of barter or for
the exchange of one article for another, come clearly within
this section of the statute,' and so do contracts for the deliv-
ery of certain property in discharge of a previous indebted-
ness,* although in one case the Supreme Court of New York^
has held that such a contract is not within the statute. But
the latter ground is not sustainable because the agreement of
the creditors to take such property is clearly a contract for
its purchase, and in no sense can it be said that the previous
indebtedness can be regarded as a payment of earnest, or as
a part payment within the meaning of the statute.* A mort-

1 Eoss V. Welch, 11 Gray (Mass.)
235 ; Kingsley v. Holbrook, 45 N. H.
313; Moreland ,;. Myall, 14 Bush.
(Ky.) 474; Purner v. Plercy, 40 Md.
212 ; Buck v. Pickwell, 27 Vt. 157 ;
Bull V. Griswold, 19 111. 631 ; Howe v.
Batchelder, 49 N. H. 204 ; Brittain v.
McKay, 1 Ired. (N. C.) 265; White v.
Frost, 102 Mass. 375; Miller v. State,
39 Ind. 267 ; Cutler v. Pope, 13 Me.
377; Bryant v. Crosby, 40 id. 9;
Stewart v. Doughty, 9 John. (N. Y.)
112; Marshall v. Ferguson, 23 Cal. 65.

2 See chap. 6.
* Dowling V. McKenney, 124 Mass.

478 ; Rutan v. Hinchman, 30 N. J. L.
255 ; and this is the rule both as to
personal property and real estate.
Maydwell v. Carroll, 3 H. & J. (Md.)
361; Newell v. Newell, 13 Vt. 24;
Lane v. Shackf ord, 5 N. H. 130 ; Linds-
ley V. Cootes, 1 Ohio, 245 ; Clark v.
Graham, 6 Wheat. (TJ. S.) 577.

4 Sawyer v. Ware, 36 Ala. 675.

^ Woodford v. Patterson, 32 Barb.
(N. Y.) 630. But see Walrath v.
Richie, 5 Lans. (N. Y. ) 362, in which
a different doctrine was held. In this
case, A being the owner of a mowing
machine, and being indebted to B in

the sum of $55, proposed to B, ver-
bally, the machine being present, that
he should take it t6 satisfy his in-
debtedness, to which B assented. The
machine remained in the hands of A
for sometime, when, without B's re-
quest, it was delivered into C's pos-
session, from whom it was taken un-
der an execution against A. In an
action by B to recover the value of
the machine from the constable who
levied upon it, it was held that there
was not a valid sale of the machine to
B under the statute of frauds. See
also Brabin v. Hyde, 32 N. Y. 519,
where there was a sale of property to
apply on a previous debt, and the
court said : " If the purchase-money
is to be applied to pay an open ac-
count, in whole or in part, the cred- "
itor and purchaser should part with
some written application of such ap-
plication, which will bind him, and
put it in the power of his debtor and
vendor to enforce the contract. With-
out this, or something like it, the con-
tract is a mere collection of words,
and the statute is evaded." •
^ See Brabin v, Hyde, ante.

SEC. 286.] WHAT IS SALE OF GOODS. 507

gage of chattels is not a sale -within the statute, as the stat-
ute only applies to an actual or absolute sale ; ^ and conse-
quently an agreement to mortgage chattels to secure a debt,
is not within the statute,^ nor is any agreement by a pur-
chaser of property covered by a valid mortgage, but which
does not operate as against him in consequence of the mort-
gagee's failure to comply with certain statutory require-
ments, to deliver up the property to the mortgagee upon his
performing certain conditions, come within the statute;
because instead of amounting to a contract of sale, it is a
mere agreement to waive his claim to the property and allow
the mortgage to take effect.^

Sec. 286. Defeasible Contracts of Sale. — The rule seems
to be that, where an agreement for the sale of an article is
made defeasible upon certain conditions, such conditions form
a part of the agreement, and an acceptance of the article by the
vendee takes the whole contract out of the statute.^ In other
words, where the vendor, at the time the property is sold,
agrees with the vendee that he will take the property back,
if the vendee is dissatisfied with it, or from any cause desires
to return it, and refund the whole or a part of the purchase-
money, upon such redelivery, this part of the contract is not
affected by the statute, because the contract was taken out
of the statute by the delivery and receipt of the property
and the payment of the purchase-money by the vendee.^ In
an English case,® where the plaintiff entered into a parol
agreement to send the defendant a mare for £20, subject to
the condition that, if she should prove to be in foal, the
defendant should, on receiving £12 from the plaintiff, return
it on request; and the plaintiff delivered the mare and
received the X20, and on its proving to be in foal, he ten-
dered i£12 to the defendant and requested him to return the
mare, which the defendant refused to do, it was held that
the contract to return it on payment of £12 was not a dis-
tinct contract of sale, but one of the conditions of the original

1 Gleason v. Drew, 9 Me. 79. * Williams v. Burgess, 10 Ad. & El.

2 Alexander v. Ghislen, 5 Gill. (Md.) 499 ; Callis v. Bothamley, 7 W. K. 87.
180. ^ Wooster v. Sage, 9 Hun (N. Y.)

8 Clark V. Duffy, 24 Ind. 271; 285 ; Fay t;. Wheeler, 44 Vt. 292.
Phelps V. Hendrickson, 105 Mass. « Williams k. Burgess, 10 Ad. &
106, El. 499.

508 STAl^UTB OF PEATTDS. [CHAP. VIII.

sale to the defendant, and that the delivery of the mare to the
defendant took the whole agreement out of the statute^ so as to
enable the plaintiff to sue the defendant for the refusal to
return it. The application of this rule is well illustrated by
a New York case ^ in which the defendant sold the plaintiff
two bonds of the Des Moines Valley R. R. Co. of the par
value' of $2,000, for the sum of |1,800, with the agreement that
if the plaintiff at any time became sick of the bonds he might
redeliver them to the defendant and he would return him
the purchase-money therefor. The plaintiff immediately
sold the bonds to other parties upon the same terms that he
purchased them, and those parties having kept the bonds
nearly two years, became dissatisfied with them and returned
them to the plaintiff who reimbursed them the purchase-
money, and then took the bonds to the defendant and offered
to return them to him and demanded a return of the pur-
chase-money. The defendant refused to accept the bonds or
return the purchase-money, and an action was brought
against him therefor. Among other things the defendant
insisted that the contract was void under the statute of
frauds ; but the court held otherwise, Talcott, J., saying :
" We understand the rule to be that such a contract being
taken out of the statute by having been consummated by the
delivery and receipt of the property and the payment of the
price, the statute has no application."^ In such cases the
return of the goods does not amount to a resale of them, but
merely to a rescission of the contract according to its terms.
If, instead of a contract to take the goods back and return
the purchase-money, the vendor should agree to buy them
of the vendee within a certain time, or whenever he desired
to sell them, at another and different price, or even at the
same price, there can be no question but that the latter con-
tract would come within the statute, because instead of being
a contract for the rescission of the original contract of sale, it
is an independent agreement to buy the goods. But, so long

1 Wooster v. Sage, 9 Hun (N. Y.) and the seller agrees to take it back,
285. and repay the purchaser for the same,

2 White V. Knapp, 47 Barb. (N. Y.) or request a tender of the stock, and
549 ; Eno v. Woodworth, 4 N. Y. 249. demand for repayment, is such a part
In Fay v. Wheeler, 44 Vt, 292, it was performance of the contract as takes
held that where one purchases stock it out of the operation of the statute.

SEC. 286.] WHAT IS SALE OF GOODS. 609

as it is merely an agreement to rescind the original contract,
it is not within the statute. And it seems that in equity an
agreement to take back goods sold, made after the contract of
sale, at the same price, or in discharge of the debt created by
their sale, amounts merely to a rescission of the original con-
tract and is not within the statute. In a Connecticut case ^
the plaintiff, upon entering into a partnership with the
defendants, sold certain goods to the firm. Shortly after
the formation of the partnership, it was dissolved by mutual
consent, and it was orally agreed between them that the
plaintiffs claim for the goods should be cancelled by his
taking them back. The plaintiff orally assented to this
arrangement, but did not take the goods away, but obtained
the consent of the defendants to let them remain where they
were for a short time, when he would take them away, but
which he did not do. Afterwards he brought a bill in equity
to compel the defendants to pd,y their share for these goods,
but the court held that the arrangement by which the goods
were to be taken back, was not to be regarded as a resale of
the goods, or as an independent transaction, but as a mutual
rescission of the original contract of sale, and that therefore
the agreement on the part of the plaintiff to take back the
goods and cancel his debt against the firm therefor, was
valid, although not in writing, especially as the dissolution,
of which the agreement to take back the goods was a part,
was not in writing. "There was nothing written between
these parties," said HoTMAN, J., " in respect to the formation
of their partnership or its dissolution, or in respect to the
sale of these goods or the rescission of the sale, or of any of
their transactions between themselves ; and his rescission is
not to be viewed in the light of an independent sale or resale
of the goods." This was a proceeding in equity, and there
were quite strong equitable grounds against the plaintiff's
claim, but whether such a transaction at law would be
regarded as a rescission of the original contract and therefore
not within the statute, or as an agreement for a resale of the
goods at the original price, and therefore within the statute,
may be regarded as doubtful, with the preponderance of rea-
sons strongly in favor of the latter view.

^ Dickinson v. Dickinson, 29 Conn. 600.

CHAPTER IX.

PRICE OK VALUE OF .£10.

SECTION.

287. Purchase of Several Articles at Distinct Prices.

288. Sales at Auction of Distinct Articles.

289. When Value is Uncertain.

SeCTIOI^T 287. Purchase of Several Articles at Distinct Prices.

— Where several articles are purcliased at the same time, so
that the contract can be said to be entire, it will, if the aggre-
gate price or value exceeds the sum designated in the statute,
be within the statute, although the price or value of each
particular article is less than that amount.^ Thus, in Baldey
V. Parker, ante, the defendant went to the shop of the plain-
tiffs, who were linen drapers, and contracted for the purchase
of several articles at distinct prices for each, the price of no
one of which amounted to ^610, but the aggregate of which
was £70. Some were measured in the defendant's presence,
others were marked with a pencil, and others he assisted to
cut from a larger bulk. He then desired that an account of
the whole should be sent to his house, and went away. Upon
the goods being sent with the account, the defendant asked
for a discount of £20 per cent. This was refused, and there-
upon the defendant refused to accept the goods. The court
held that this was all one contract, and within the statute.
" Looking at the whole transaction," said Abbott, C. J., " I
am of the opinion that the parties must be considered to
have made one entire contract for the whole of the articles."
Said Baylby, J., " It is conceded that on the same day, and
indeed at the same meeting, the defendant contracted with
the plaintiffs for the purchase of goods to a much greater

1 Baldey v. Parker, 2 B. & C. 44; (N. Y.) 333; S.C. 20 id. 431; Gault u.

Gilman v. Hall, 36 N. 11.311; Price Brown, 48 N. H. 183; Doming v.

B.Lea, lid. 156; AUard v. Greasart, Kemp, 4 Sandf. (N. Y.) 147; Sey-

61 N. Y. 1 ; Jenness v. Wendell, 51 mour v. Davis, 2 id. 289 ; Aldrich v.

N. H. 63; Mills v. Hunt, 17 Wend. Pyatt, C4 Barb. (N. Y.) 391.

SBC. 287.] PRICE OR VALUE OF £10. 611

amount than jElO. Had the entire value been set upon the
whole goods together, there cannot be a doubt of its being
a contract for a greater amount than £10, within the seven-
teenth section ; and I think that the circumstance of a separate
price being fixed upon each article makes no such difference
as wUl take the case out of tlie operation of that law." "This
was all one transaction," said Holkoyd, J., "though com-
posed of different parts. At first it appears to have been a
contract for goods of less value than £10, but in the course
of the dealing it grew intp a contract for a much larger
amount. At last, therefore, it was one entire contract with-
in the meaning and mischief of the statute of frauds, it being
the intention of that statute that where the contract, either
at the commencement or the conclusion, amounted to or ex-
ceeded the value of £10, it should not bind, miless the requi-
sites there mentioned were complied with. The danger of
false testimony is quite as great where the bargain is ulti-
mately of the value of £10, as if it had been originally of
that amount." Said Best, J., "Whatever this might have
been at the beginning, it was clearly at the close one bargain
for the whole of the articles. The account was all made out
together, and the conversation about discount was with refer-
ence to the whole account." In New Hampshire,^ it has been
held that an acceptance of a part of the articles takes the
whole contract out of the statute.^ In Gault v. Brown,^ a
contract was made for the sale of wood, part in one winter
and part in the winter next following, each winter's lot to be
paid for respectively on delivery. It was held that this con-
stituted an entire contract of sale of the whole quantity, and
that the acceptance of the first lot took the whole contract
out of the statute.* But, in a New York case,^ it was held
that where there is a purchase of different articles, deliverable
at different times, the subsequent delivery of one will not take

1 Jenness v. "Wendell, 51 N. H. 63. to be performed in one year, as it was

2 See also Mills v. Hunt, 17 Wend, possible that the whole quantity would
(N. Y.) 33-3; S. C. 20 id. 431; Allard be delivered within a year.

V. Greasart, 61 N. Y. 1. '' Aldrichu. Pyatt, 64 Barb. (N. Y.)

3 Gault V. Brown, 48 N. H. 183. 391. See also Wells v. Day, 124 Mass.
* In this case there was a stipula- 38, where a sale of separate lots of

tion by the seller to deliver all the real estate at auction constituted sep-
wood he could the first winter, so that arate sales,
it was held not to be a contract not

512 STATUTE OP FKAUDS. [CHAP. IX.

the case out of the statute as to the other. The distinction
between this and the preceding case consists in the circum-
stance that in this case only one article could be delivered at
the same time, -wliile in the former it was the privilege of the
vendor to deliver the whole at one time if he could.

Sec. 288. Sales at Auction of Several Articles. — In Eng-
land it is held that where several articles are sold at auction
to the same person at distinct and separate prices, a distinct
contract arises for each lot ; and if the price of no one of the
articles amounts to <£10, the fact that the aggregate prices
exceed that sum does not bring the case within the statute.^
But in this country the rule is generally otherwise,^ and no
distinction is made in this respect between sales at auction
and ordinary sales, and the entire transaction is treated as
one contract ; and consequently, if the aggregate prices of all
the articles bid off in separate and distinct lots exceeds the
limit named in the statute, the contract is within the statute.^
"In this country," says Saegbnt, J.,* "where the household
furniture, farming tools, and such like articles about a farm
or a hotel are sold, or where the sale also includes the stable
stock, as in this case, or the farm stock and produce, we think
there is ordinarily very little difference, in fact, between sales
at an auction and a sale at any other place, or contracted in
any other way, of several articles at an agreed price, which
are all put together in one amount."

Sec. 289. Sales, when Value is Uncertain. — Where, at the
time when a contract of sale is entered into, the value of the

1 Emerson v. Heells, 2 Taunt. 38 ; a separate memorandum of the purchase

Causton v. Chapman, L. R. 2 Sc. Div. of each, which states the price of each,

250; Eugg K. Minett, 11 East, 218 ; and binds him to the terms of the sale,

Roots V. Lord Dormer, 4 B. & Ad. 77 ; the purchase of each parcel is a dis-

Watts V. Friend, 10 B. & C. 446 ; Wells tinct contract, and the failure of the

V. Hunt, 17 Wend. (N. Y.) 333 ; Lamp- vendor to tender in season, a deed of

kins V. Hoos, 2 Penn. St. 74 ; Messer one parcel does not discharge the

V. Woodman, 22 N. II. 172 ; Coffman vendee from his obligation to per-

V. Hampton, 2 W. & S. (Penn.) 377. form his contract respecting the other

^ But see Wells v. Day, 124 Mass. parcels.

88, in which it was held that, where a ' Messer u.Woodman, 22 N. H. 172 ;

person, at a sale by auction of distinct Jenness v. Wendell, ante ; Lampkins

parcels of land, which were separately v. Hoos, 2 Penn. St. 74 ; Coffman v.

described in the advertisement of the Hampton, 2 W. & S. (Penn.) 377 ;

sale, and separately sold, purchases a Wells v. Hunt, 17 Wend. (N. Y.) 333.

certain number of the parcels, signing * Jenness v. Wendell, ante.

SEC. 289.] PRICE OR TALUB OF .£10. 613

property is uncertain, and, when the property is ready for
delivery, its value may be less or more than the statutory
limit, the contract will be valid if the value is less than the
amount named in the statute, and will be invalid if in point
of fact it turns out to be more ; but the burden is upon the
vendor to show that the value is not beyond the amount lim-
ited in the statute. Thus, in an Indiana case,^ it was held
that a verbal agreement to purchase all the mules which may
be bred from a certain jack during a certain season, at |46
each, is within the statute and cannot be enforced, unless the
amount claimed is shown to be less than 150, the statutory
limit in that State.^ In a Minnesota case,* a contract for the
sale of all the flax straw M'hich might be raised from forty-
five bushels of flax seed, at $5 a ton, was held to be within
the statute, it appearing that in fact from twenty-five to fifty
tons of straw were raised.*

^ Carpenter v. Galloway, 73 Ind. ' Brown v. Sanborn, 21 Minn. 402.

418. * See Watts v. Friend, 10 B. & C.

" See also Bowman f. Conn, 8 Ind. 446, where a similar doctrine was held

58, where a contract to sell all the as to a contract for the sale of a future

broom-corn which might be raised in crop of turnip seed, which might, or

1853, on twenty-five acres of land, at might not, exceed the value of £10.
$60 a ton, was held to be within the
statute.

CHAPTER X.

EARNEST AND PAET PAYMENT.

BECTION.

290. Effect of Payment of Earnest before the Statute.

291. Conditionally, Alters the Property.

292. Effect of the Statute on Bargains and Sales.

293. What is Payment of Earnest and Effect of, since the Statute.

294. Part Payment ; When must be Made ; What is ; Effect of.

Section 290. Effect of Payment of Earnest before the Statute.
— Before, as well as since the statute, payment of earnest
was always considered as perfecting the bargain, so as to pre-
clude the retraction by the one without the consent of the
other, and to give to the buyer an action for the goods, and
to the seller an action for his money, the property being
changed bj^ such payment of earnest, no matter how small
the sum. If I say that I will sell my horse for a certain
price, and a person offers to buy it at that price, but does
not at once tender the money, it is no contract ; and although
he afterwards comes with the money, I am at liberty to
accept it, or to refuse to sell it, or to demand a larger sum,
according to my pleasure. But if he had proceeded forth-
with, upon the price being named, to count out his money,
and in the m,eantime I had sold the horse to another, he
might take his remedy against me by action upon the case.^
In the language of an old and reputable author, " If a man,
by word of mouth, sell to me his horse, or any other thing,
and I give or promise him nothing for it, this is void, and
will not alter the property of the thing sold. But if one
sells me a horse, or any other thing for money, or other valu-
able consideration, and the same thing is to be delivered to
me at a day certain, and by our agreement a day is appointed
for the payment of the money, or all or part of the money

■ Noy's Max. c. 42 n. 87 ; Dyer, 30, 76 ; Shep. Touchstone, 222 ; Hob. 41, 42 j
Plowd. 432.

SEC. 291.] EARNEST AUp PART PAYMENT. 615

is paid in hand, or I give earnest money to the seller, or I
take the thing bought by agreement into my possession,
where no money is paid, earnest given, or day appointed for
the payment ; in all these cases there is a good bargain and
sale of the thing to alter the property thereof. And in the
first case, I may have an action for the thing, or the seller
for his money ; in the second case, I may sue for and recover
the thing bought ; in the third case, I may sue for the thing
bought, and the seller for the residue of his money ; in the
fourth case, i.e., where earnest is given, we may have recip- .
rocal remedies against each other ; and in the last case, the
seller may sue for his money." ^

Sec. 291. Payment of Earnest Alters the Property Condition-
ally, but does not Give a Right to' the Possession without Pay-
ment. — By the payment of earnest the bargain is complete,
and the property is conditionally transferred from the vendor
to the vendee, and the price to be given for it is vested in the
vendor, and the vendee may, upon performance of the condi-
tions, bring his action for the goods, and the vendor his
action for the price of them. But neither the title nor the
absolute right to the immediate possession is so transferred
with the property in the thing, as that the vendee may take
the goods without first paying or tendering the price agreed
upon; 2 but if he tenders the price to the vendor, and he
refuses it, the vendee may seize the goods, or have an action
against the vendor for detaining them. The rule was stated
in Langfort v. Tiler,^ by Holt, C. J., to be that, notwith-
standing the earnest, the money must be paid upon fetching
away the goods, where no other time for payment was appointed.
That earnest only binds the bargain,* and gives the party a

' Shep. Touchstone, 222. The « 1 Salk. 113.

question whether money was paid in * A considerable difference exists

earnest or not must be determined by between the effect of earnest (arrha)

the destination expressly given to it in the cirll law and in our own, to

by the person paying, for quidquid which probably another striking dif-

solvitur ad modum solventis, Pinnel's ference in the circumstances consti-

Case, 5 Coke, 117. But then it seems tuting the perfection of the contract

he ought to declare on what account upon the emptio et venditio and our

he pays it at the time of paying it. bargain and sale has given birth. A

See Manning v. Western, 1 Vem. 606 ; bargain and sale, by the common law,

2 Esp. 666. where no future day is assigned by

2 Hob. 41. the parties for the payment or de-

516

STATUTE OP FEAXTDS.

[chap.

right to demand ; biit a demand without payment of the pur-
chase-money does not give a right of action for the goods,

livery, nor any earnest given, requires
an immediate delivery or payment to
fix the contract and make it obligatory
upon the parties; and upon ready
money contracts (and every contract
must be so understood unless the con-
trary be expressed), if the buyer
makes no payment or tender upon
the spot, the owner is at liberty to
dispose of the goods to whom he
pleases. The dread of perjury, char-
acteristic of the earliest legal ordi-
nances, required some ostensible act
to assure the bargain, and the pay-
ment of earnest had this effect given
t'o it, the law considering that without
this act of confirmation the transac-
tion imported not a settled bargain,
but only a communication about a
bargain.

But in the civil law neither pay-
ment nor delivery nor earnest was
necessary to conclude the bargain,
but simply the convention of the con-
tracting parties. The perfection of
the contract was one thing and the
consummation or fulfilment another.
Agreement concerning the thing pur-
chased and the price to be given es-
tablished the emptio et venditio, which
was consummated by the payment
and delivery. As soon as the bargain
was struck the obligation of perform-
ance reciprocally attached, and a right
of action respectively to enforce it.
TJt primum de re et pretio convenit,
emptio perfecta intelligitur, quamvis
nee res traditur, nee pretium numera-
tum, nee arrha data sit. Atque in
contractibus qui consensu perfici-
untur, distinguenda perfectio contrac-
tus a consummatione sive implemento.
Emptionem et vendltionem perficit
solus consensus de re et pretio ; con-
summat rei traditio et pretii numera-
tio, qui extremus est contrahentium
finis ; simul atque autem emptio per-
fecta est, nascitur utrinque obligatio,
teneturqne emptor actione ex ven-
dito, ut nummos, quos pretii nomine
pro re vendita promisit, solvat ; ven-

ditur actione ex empto, ut rem ven-
ditam tradat emptor! — Vin. lib. 3,
tit. 24.

But though the perfection of the
contract arose upon the agreement
without payment, delivery, or earnest,
yet this was not a mere loose and cas-
ual agreement, but was required to be
negotiated in certain stipulatory forms
of question and answer, which served
to mark a deliberate purpose in the
parties, and therefore could better
dispense with the circumstances of
authentication made necessary by the
common law; and though the solem-
nia verba, the determinate forms of
interrogation and response, as spondes 1
spondee ; promittes ? promitto ; fide pro-
mittis ? promitto ; fide jubes ? fide ju-
beo; dabis? dabo; Jacies? faeio; set-
tled by the earlier jurisconsults of the
Roman law, were relaxed by the
Leonine constitution, their substance
and I effect always remained essential
to the constitution of a binding bar-
gain. Etsi autem scrupulosa haec
verborum observatio a Leoni postea
sublata est, illud tamen ad vinx atque
substantium stipulationis adhuc requi-
situr, ut fiat utroque loquente, ac
proinde verba ex utraque parte inter-
veniant, ut promittens respondeat
conguenter interrogatloni, idque sine
notabili intervallo, et animo ac pro-
posito contrahendae verborum obliga-
tionis. — Id. Lib. 3, tit. 16.

There being no such solemn verbal
ratification of a bargain in our law, an
effect is given to the earnest which
did not belong to it in the civil law,
viz., that of specifically binding the
bargain. According to the text and
commentaries of the civil lawyers,
the arrha or earnest is given, not to
perfect the contract, which is complete
without it by virtue of the stipulation,
but it is given for the better manifes-
tation of the agreement, quo facilius
probari possit convenisse de pretio. It
is, say those writers, either symbolical,
as where a ring is given, or it may be

SEC. 292.] EARNEST AND PART PAYMENT. 517

or for a breach of the contract; but after the payment of
earnest, the vendor cannot sell the goods to another, -without
a default in the vendee ; and, therefore, if the vendee does
not pay for and take the goods, the vendor must request him
to do so ; and then, if he does not pay for and take them
away within a reasonable time, the agreement is dissolved,
and the seller is at liberty to sell them to any other person.

Sec. 292. Effect of the Statute on Bargains and Sales of
Goods. — The statute gives no new efficacy to the payment
of earnest ; it only excepts cases where earnest has been paid
out of the new requisition it has made for written evidence
of a contract for the sale of goods above a certain price. In
respect to executed bargains, in which the nature of the
dealing between the parties implies an immediate delivery of
the thing and payment of the price, where there is hardly
room to interpose a written contract, the transactions of
mankind continue the same ; but their rights and obligations,
even in these hourly dealings, are materially varied. If
before the statute a man offered to sell his horse for $ 100,
and another offered to buy him at that price, and at once
tendered the money, the bargain was cancelled, and the party
disposing of the horse was not at liberty to dispose of him to

a part of the purchase ; and if it is in locus penitentiae to both parties if the
part payment, yet this is not consid- bargain has been otherwise left in-
ered as a part execution of the con- complete ; but it does not give or
tract ; so that if the agreement be not create any locus penitentiae, as seems
otherwise perfected, as for example, if by some commentators to have been
it was part of the agreement that the erroneously conceired, so that if the
contract should be reduced into writ- bargain has been by other means rcn-
ing, which is not yet done, whereby dered perfect, by the payment of
the perfection of the contract is sus- earnest the remedy is doubled to the
pended, the anticipated payment of a parties, who may either sue upon
part of the price by way of earnest their rights reciprocally to have the
will not prevent the contract from bargain completed, or may resort to
being integral, as it is called ; the con- the compensation afforded them re-
sequence whereof is that either party spectively by the payment of earnest,
may recede from the bargain. But the seller to the forfeiture thereof,
such refusal after earnest given must, and the buyer to his action for com-
if made on the part of the buyer, he pelling the restoration of what he has
followed by the forfeiture of the earn- so paid, with a duplication of its
est so paid, and if on the part of the amount. See Dig. lib. 18, 19, tit. 1,
seller, by a return of the earnest with C. lib. 4, tit. 38, 40 ; and see the Com-
a duplication of its value. With this mentary of Vinnius thereon, lib. 24,
consequence the payment of earnest, tit. De emptione et venditione.
according to the civil law, leaves a

618 STATTJTE OF FRAUDS. [CHAP. X.

another. But since the statute, the owner of the horse would
be at liberty to sell the horse to another, unless the person
first offering to purchase at the price named could substan-
tiate the first bargain by the production of a note or memo-
randum in writing, signed by the seller, of the terms of such
bargain ; and the same rule would prevail, even though the
owner of the horse had agreed to keep it for a day or two,
to enable the first purchaser to get the money. The statute,
in such cases, affords a locus penitentiae, and without a note
in writing, signed by the seller, the buyer would lose his
bargain by the delay, as under the statute, there being neither
earnest, delivery, nor agreement in writing, the title to the
property does not vest in the purchaser.^

Sec. 293. ■what is Payment of Earnest. — The words of the
statute, — "give something in earnest to bind the bargain or
in part payment," — clearly indicate that it was intended
by the legislature that the thing given should be something
of value, as money or its equivalent, although the amount may
be merely nominal.^ It must be given to bind the bargain,
and consequently it must he accepted and received by the ven-
dor of the goods for that purpose, because, being a substitute
for the written evidence required by the statute, it must afford
evidence of a complete contract between the parties, which is
not the case unless it is shown that the minds of the parties
met. Therefore, proof that the vendee tendered money in
earnest, or part payment, which the vendor refused to accept,
is of no value to take the sale out of the statute.^ Not only
must the thing given in earnest be accepted and received as

' Alexander v. Combes, 1 H. Bl. 54. In Shep. Touch. 224, the giving

20; Roberts on Frauds, 165-170. of one penny Is said to be suflScient.

2 Artcher v. Zeb, 6 Hill (N. Y.) See also Noy's Maxims, 87 ; and even
200; Combs v. Bateman, 10 Barb, a half-penny is sufficient; Bach v.
(N. Y.) 573; Goodall v. Skelton, 2 Owen, 5 T. R. 409 ; or indeed anything
H. Bl. 316 ; Blakey v. Dinsdale, 2 of value, however small the value
Cowp. 664 ; Bach v. Owen, 5 T. R. may be, if the value is real.
409. Money deposited with a third 8 Edgerton v. Hodges, 41 Vt. 676.
person by the parties to an oral con- Thus, in this case the vendee sent to
tract, to be by him paid to either of the vendor in a letter a sum of money
them as a forfeiture, if the other to bind a bargain, and the court held
should neglect to fulfil his part of the that upon its receipt the vendee was
contract, is not given in earnest to at liberty to keep it to bind the bar-
bind the bargain within the statute of gain, or to return it and repudiate the
frauds. Howe v. Hayward, 108 Mass. verbal agreement.

SEC. 293.] EARNEST AND PART PAYMENT. 519

such, but it must be actually handed over to the vendor, and
merely giving it and taking it back again, or, in other words,
" crossing the hand " with it, is held insufficient.^ Thus, in
the case last cited, the purchaser drew the edge of a shilling
over the hand of the vendor, and returned the money to his
own pocket, which in the north of England is called " strik-
ing off a bargain " ; and it was held insufficient. If a bargain
is made, and bound by the giving of earnest, without any
agreement as to the time of payment, the money must be
paid before the goods can be removed, and a demand of
the goods without a tender of the money is void, because
it is not according to the intent of the bargain, which the
only effect of the tender was to bind ; ^ and, as before stated,
if the vendee does not take the goods within a reasonable
time, the vendor should request him to do so, and if he then
fails to take and pay for them, the bargain is dissolved.*
Where a contract is taken out of the statute by the payment
of earnest, it is held not to contravene the spirit or policy of
the statute to permit parol evidence to vary its terms as to
the time of performance.* The distinction between the giv-
ing of earnest and a part payment is marked. A part pay-
ment, in its very nature, presupposes a previous contract or

1 Blenkinsop v. Clayton, 7 Taunt, tain, and by our agreement a day is
597. That the money or other valua- set for the payment of the money ; or
ble thing must be actually handed all or part of the money is paid in
over to the vendor is shown by several hand ; or I give earnest money, albeit it
cases, and is a necessary inference is only a penny, to the seller, or I take
from the language of the statute, the thing bought by agreement into
Thus it has been held that the deposit my possession, where no money is
of the money with a third person, to paid, earnest given, or day set for the
be handed over when the goods are payment ; in all these cases there is a,
delivered, is not a giving of earnest, good bargain and sale of the thing to
and does not take the case out of the alter the property thereof, and in the
statute. Noakes v. Morey, 30 Ind. first case I may take an action for the
103 ; Howe v. Hayward, 108 Mass. 54. thing and the seller for his money. In

2 Langford v. Tyler, 6 Mass. 162. the second case I may sue for and
In a work of high authority the author recover the thing bought. In the
says : " If a man, by word of mouth, third I may sue for the thing bought,
sell to me his horse or any other thing, and the seller for the residue of his
and I give him or promise him noth- money ; and in the fourth case, where
ing for it, this is void, and will not earnest is given, we may have recip-
alter the property of the thing sold, rocal remedies one against another."
But if one sell me a horse or any other Shep. Touch. 224.

thing for money or any other valuable ' Langford v. Tyler, ante ; Blakey

consideration, and the same thing is v. Dinsdale, 2 Cowp. 604.

to be delivered to me at a day cer- * Parker v. Steward, 34 Vt. 127.

520 STATUTE OF FRAUDS. [CHAP. X.

liability, while the giving of earnest merely shows that at
that time the minds of the parties met, and a contract was
entered into and concluded by the giving of earnest.^ As
previously stated, the giving of earnest does not in all cases
change the title to the property, but only vests in the person
giving it ,the right to have it, upon performance of the con-
ditions of the bargain. If the sale is upon credit, and the
articles are ready for delivery, and nothing remains to he done
to complete the transaction, as between the parties, the title to
the property passes to the purchaser by the giving of the
earnest ;^ hut, if no mode or time of payment is agreed upon, or
anything remains to he done to the property,^ the title to the
property is not changed by the payment of earnest, hut only
a right to have it when it is ready, upon payment of the price,
or performance of any other conditions of the contract. Me.
Benjamin, in his excellent treatise upon Sales,* expresses
the opinion which we believe is well sustained by the princi-
ples upon which the effect of contracts is based, that the title
to the property in such cases does not pass, where the " com-
pleted bargain, if proved in writing, or any other sufficient
manner, would not equally have altered the property," . . .
and " that the inquiry whether the property has passed in
such cases is to be tested, not by the fact that earnest was
given, hut hy the true nature of the contract concluded by the
giving of earnest."

Sec. 294. Part Payment; 'Wlien Must Be Made; 'What Is;
Effect Of. — The statute evidently contemplates that the part
payment shall he made at the time when the contract is entered
into, and shall he in money or something of value which is
accepted as its equivalent, and must be such as amounts to a
payment in other transactions, and it must be a payment of
part of the purchase-money of the ver-y goods purchased.*

1 Groot V. Gile, 51 N. Y. 481 ; Jen- ^ In Organ v. Stewart, 60 N. Y.

nings u..Flanagan, 4 Dana (Ky.) 217 ; 413, the defendant being the owner

Nesbitt u. Barry, 25 Penn. St. 208; of threi lots of wool, the plaintiffs

Joyce V. Adams, 8 N. Y. 291. entered into a verbal agreement with

' Bach V. Owen, 5 T. R. 409. him for their purchase, in pursuance

8 Acraman v. Morris, 8 C. B. 449; of which two lots were delivered, and

Logan V. Le Mesuvier, Mas. P. C. 116. payment therefor demanded by the

* Benjamin on Sales, 4th Am. Ed. defendant, and was refused by the

(Bennett's), § 357. plaintiffs, who claimed that the third

SEC. 294.J EARNEST ANB PABT PAYMENT. 521

In New York, the statute in express terms provides that ear-
nest or part payment shall be made at the time the contract
is entered into. But in that State, a part payment made at
a subsequent time, and accepted hy the vendor, the contract
being re- stated, is held to be sufficient to validate the con-
tract ; ^ and in all the States, while a payment subsequently
made and accepted will be sufficient to take the sale out of
the operation of the statute, yet it must be shown to have been
understandingly made and accepted with reference to such pre-
vious contract, so that it can be said to operate as a payment
upon a present contract, and not upon a past void transac-
tion.2 If goods are sold for a certain price, and the vendor
agrees to accept from the vendee a horse at a certain price,
in part payment, the delivery of the horse by the vendee
operates as a part payment under the statute to take the
contract out of its operation, and the same may be said as to
any kind of property.^ So the delivery and acceptance of a
check, drawn against funds deposited in a bank, by the
vendee, which is paid upon presentation, has been held suffi-
cient as a part payment, even in New York under its pecu-
liar statute, although it was not, in fact, presented and paid

lot was included in the sale, but which \ Hunter v. Wetzell, 84 N. Y. 549 ;
the defendant denied. Subsequently 38 Am. Rep. 544; Bissell v. Balcom,
a further agreement was entered into 39 N. Y. 275 ; Webster v. Zeilley, 52
by the parties, embracing the third Barb. (N. Y.) 482. But see Thompson
lot of wool, which was to be delivered u. Alger, 12 Met. (Mass.) 428, in which
at the store of one Eankin in May, the construction of this clause of the
and assorted and shrunk by the as- New York statute was involved, and
sorters of said Rankin, and delivered it was held that a part payment made
to the plaintiffs, who were to accept ajler the contract was entered into,
the same at the shrinkage as made by and the contract was expressly re-
them at the price originally agreed newed, was not sufficient to vali-
upon. The plaintiffs thereupon sued date the contract. But it is evident
the defendant for the two lots of that the New York cases are not
wool delivered. The defendant re- open to criticism, because the con-
fused to deliver the third lot of wool, tract, being re-stated at the time of
and the plaintiff brought this action such part payment, may well be
to recover damages therefor. The treated as a contract made at that time.
defendant set up the statute of frauds, Artcher v. Zeb, ante ; Hawley v. Keeler,
and the court held, reversing the 53 id. 114. '
judgment at General Term, 1 Hun '^ "Whitwell o. Wyer, 11 Mass. 6 ;
(N. Y.) 411, that the payment could Gault u. Brown, 48 N. H. 183 ; Sprague
not be said to have been made in v. Blake, 20 Wend. (N. Y.) 01; Vin-
part payment for the third lot of cent v. Germond, 11 John. (N. Y.)
wool, and consequently that the con- 283.

tract, as to that, was within the stat- ' Bates v. Chesboro, 36 Wis. 636 ;

ute and void. Paine v. Fulton, 34 id. 83.

522 STATUTE OP PKAUDS. [CHAP. X.

for two or three days afterwards.^ In the case last cited,
the parties entered into a verbal contract for a lot of hops,
which were to be delivered where the defendants determined
and requested, and even to be paid for within a few weeks,
upon such delivery at the rate of fifty cents a pound, with
$10 additional on the whole lot. No part of the purchase-
money was paid at the time, but subsequently the defend-
ant delivered to the plaintiff in part payment for the hops a
check for 1200, which the plaintiff accepted, the contract on
that occasion being re-stated. Finch, J., said : " It is now
objected that, conceding the fact of such re-statement, there
was no payment of any part of the purchase-money at that
time. It is admitted that the check was then given, and it
cannot be denied that it was both delivered and received as a
payment upon the contract price of the hops, but it is claimed
that the check was not in and of itself payment, and, having
been drawn upon a bank, could not have been in fact paid
until afterwards, and so there was no payment "at the
time " ^ to satisfy the requirements of the statute. It is quite
true, that a check, in and of itself, is not payment, but it may become
so when accepted as such and in due course actually paid. While
not money, it is a thing of value, and is money's worth when
drawn against an existing deposit, which remains until the
check is presented. We must assume that the check of the
vendee in this case was good when drawn, and was duly
paid upon presentation in the usual and regular way, for it
appears in the possession of the drawers, and they practically
assert the fact of its payment by their counter-claim in the
action, by which they seek to recover back the money so
paid. There was, therefore, an actual and real payment
made by the vendees to the vendor, upon the purchase-price
of the hops."

So, too, the delivery of the note of a third person to a
vendor in part payment under such a contract which is re-
ceived and accepted by him as a part payment, and not as merely
collateral, has been held sufficient under the statute,^ but

1 Hunter v. Wetsell, 84 N. Y. 549 ; statute, see Hunter v. Wetsell, 57
38 Am. Rep. 544. N. Y. 375; 15 Am. Rep. 508.

2 As required by the New York = Coombs v. Bateman, 10 Barb.

(N. Y.) 573.

SEC. 294.J EARNEST AND PART PAYMENT. 623

the giving of the vendee's own note is not,' at least unless
it is expressly agreed between the parties that it shall be
accepted as a payment, so as to merge the vendor's claim for
the property sold pro tanto, so that he cannot sue upon the
original claim for that portion of it represented by the note.
An agreement to apply or set ofP a debt due from the vendor
to the vendee, in part payment for the goods, is not a suffi-
cient part payment to take a contract out of the statute,
unless the debt is then discharged and a receipt or other evidence of
its satisfaction is given therefor.^ In the words of CowEN, J.,^
the object of the statute is to have something pass between
the parties besides mere words ; some symbol, like earnest-
money, and not leave everything resting in parol. Until a
receipt for the debt is given, or it is actually endorsed or
credited, the agreement amounts to no more than a contract
to pay in that mode ; and, so far as the statute is concei-ned, it
no more aids to prove the contract valid than does an agree-
ment to pay the price in an ordinary sale, where actual pay-
ment is expected.* In an English case,^ which seems to be
the only case involving that question which has been before
the English courts, it was held that a mei* agreement of the
vendee that a debt due to him from the vendor should be
deducted from the price of the goods purchased, made at the
time when the contract of purchase was entered into, no

' Ireland v. Jackson, 18 Abb. Pr. also stating that the defendant ac-

(N. T.) 392; Coombs v. Bateman, cepted the barrel of flour upon the

ante. But see Phillips v. Ocmulgee butter. It was held not a sufficient

Mills, 55 Ga. 633, where it was held part payment to take the case out of

that the giving of the buyer's own the statute of frauds. In Mattia v.

note takes the sale out of the statute. Allen, 33 id. 543, the seller borrowed

2 Matthieson Refining Co. v. Mc- money, agreeing that if a proposed

Mahon, 38 N. J. L. 537 ; Gaddis v. sale should be made it should be ap-

Leeson, 55 111. 83. plied in payment. A few days after-

' Artcher v. Zeb, 5 Hill (N. Y.) wards the parties agreed to make the

205. sale and that the money should be

* Clarke v. Tucker, 2 Sandf. (N. Y.) applied thereto. It was held that this

157; Brabin v. Hyde, 32 N. Y. 519; was a payment at the time of the

Gilman v. Hill, 36 N. H. 319. In Leed agreement, under the New York stat-

V. Leed, 44 Barb. (N. Y.) 96, the de- ute, and therefore operative to take

fendant agreed orally to deliver a the case out of the statute. But this

quantity of butter to the plaintiff, and was reversed by the Court of Appeals,

to apply, in part payment therefor, a 3 Keyes (N. Y.) 492, and the doctrine

sum due from himself to the plaintiff stated in the text was applied,

for a barrel of flour charged in ac- ^ Walker v. Nussey, 16 M. & W.

count. The plaintiff entered the sale 302.
in his memorandum-book ; the entry

624 STATUTE OF FRAUDS. [CHAP. X.

receipt or other discharge of the debt being given, did not
amount to a part payment within the meaning of the statute.
In that case, the plaintiff owed the defendant a debt, and,
while it remained due, sold him goods by sample, to a larger
amount, and exceeding JEIO, without a -note or a memoran-
dum in writing. Part of the bargain was that the debt due
from the plaintiff was to go in part payment by the defend-
ant to him, but no actual payment of money was made nor
was any receipt given by the defendant for the plaintiff's
debt due to him. The goods were supplied to the defend-
ant, who returned them as inferior to the sample, and the
jury found that he never accepted them. It was held that
nothing had been given in part payment to make the con-
tract binding on the defendant.^ When the plaintiff sent
the goods to the defendant, he sent with them an invoice
charging him with the price, under which was an entry as
follows: "By your account against me, £4: 14s. lid."
Platt, B., said : " You rely on a part of the contract itself
as being part performance of it." Pollock, C. B., said:
"Here was nothing but one contract, whereas the statute
requires a contrac*, and if it be not in writing, something
besides." Pakke, B., said : " Had there been a bargain to
sell the leather at a certain price, and subsequently au agree-
ment that the sum due from the plaintiff was to be wiped off
from the amount of that price, or that the goods delivered
should be taken in satisfaction of the debt due from the
plaintiff, either might have been equivalent to payment of
money. But as the stipulation respecting the plaintiff's debt
was merely a portion of the contemporaneous contract, it was
not a giving something to the plaintiff by way of earnest or
in part payment, then or subsequently." Aldbeson, B.,
said : " The seventeenth section of the statute of frauds
implies that to bind a buyer of goods of £10 value, without
writing, he must have done two things : first, made a con-
tract ; and next, he must have given something as earnest,
or in part payment or discharge of his liability." The doc-
trine of this case is substantially that the contract to sell, and
the contract to set-off, must be distinct contracts made in the

1 See also Hart v. Nash, 2 C. M. & R. 337 ; Hopper v. Stephens, 4 Ad. &
El. 71.

SEC. 294.] EARNEST AND PART PAYMENT. 525

order given, and that the set-off should have been completed
by the extinguishment of the debt by the giving of a receipt
or other discharge therefor. But our courts adopt a more
sensible rule, and one much more in the interest of the com-
mercial world, by holding that such contracts, although con-
temporaneous, are sufficient, if the debt or obligation is at that
time discharged. In other words, if the set-off is actually
made ; and this certainly seems fairly to meet the require-
ments of the statute, and to be the most sensible and satis-
factory doctrine.

The same rules apply where there is an agreement to apply
the price of the goods or a part thereof in liquidation of a
debt due from the vendor to a third person. In such a case,
the third person must not only assent to the arrangement, but
must also, at the time, discharge the indebtedness of the vendor,
by the giving of a receipt for the amount, or other evidence that
the vendor is released from the debt. It is not enough that
there is an express agreement to that effect between the par-
ties, unless this agreement is in some manner evidenced in
writing. Thus, in a New York case,i which is regarded as a
leading case upon this point, the defendant was indebted to
a third party, who was in turn indebted to the plaintiff in a
larger sum, upon a promissory note, and it was mutually
agreed between the three that the defendant should pay to
the plaintiff directly the amount he owed to the third party,
and that the plaintiff should credit the amount upon such
third party's note. The agreement was by parol, and the
statute of frauds, which in New York extends to the sale of
choses in action as well as goods, was relied on. It was
insisted upon the trial that the terms of the agreement were
such as to extinguish pro tanto the debt due from the third
party, and consequently that there was a part payment.
But it was held by the court that so long as the matter
merely rested in agreement, however well understood by the
parties, it was not sufficient to take the case out of the stat-
ute, because no endorsement or receipt was ever acttially made.
CowBN, J., said : " The object of the statute was to have
something pass between the parties besides mere words;
some symbol like earnest-money. Here everything lies in

1 Artcher v. Zeb, 5 HUl (N. Y.) 205.

526

STATITTE OP FBATJDS.

[chap. X.

parol." ^ But where the creditor of the vendor under such
an agreement discharges the debt against him, and accepts
the vendee as debtor in his place and stead, it is held to be
a part payment within the meaning of the statute,^ and the
question is for the jury whether there was an actual transfer
of money or money's worth, from the buyer to the seller,
made in pursuance of the agreement.^

' This doctrine is sustained by the
later cases. Brabin v. Hyde, 32 N. Y.
519, reversing S. C. 30 Barb. (TS. Y.)
265 ; Mattice v. Allen, 3 Keyes (N. Y. )
492, reversing S. C. 33 Barb. (N. Y.)
343; Walrath v. Richie, 5 Lans. (N.
Y.) 362; Buskirk o. Cleaveland, 41
Barb. (N. Y.) 610 ; Leed v. Leed, 44
id. 96; Paine v. Fulton, 34 Wis. 83;
Geddis v. Leeson, ante ; Gilman v. Hall,
ante; Walrath v. Ingles, 64 Barb.

(IS. Y.) 265. In Canada it has been
held that an actual payment made by
the vendee subsequent to the contract
to such third person takes the case
out of the statute. Brady v. Hanahy,
21 N. C. Q. B. 340 ; Fumiss v. Sawers,
3 id. 77.

2 Cotterell v. Stevens, 10 Wis. 422.

' Cotterell w. Stevens, a«<e ; Worthen
V. Dow, 37 Vt. 108; Organ v. Stewart,
ante.

CHAPTER XI.

EXECUTOEY SALES.

BXCTION.

295. What Contracts are within the Statute.

296. When for Sale of Goods, and when for Work, etc. English Bule.

297. American Rule, as to Purely Executory Sales.

298. Contracts of Sale or for Work and Labor. Rule in New Hampshire.

299. Rule in New York.

300. Rule in Maine.

301. Rule in Massachusetts, New Jersey, and Wisconsin.

302. The Essence Rule.

303. Contracts to Produce and Deliver.

304. Wlien the Property Vests in the Vendee.

Section 295. 'What Contracts are within the Statute. — In
England, before Lord Tenterden's Act^ was passed in 1829, the
decisions were conflicting as to whether or not an executory
agreement was within the statute of frauds.'^ By the seventh
section of Lord Tenterden's Act, after reciting that it had
been held that the provisions of the seventeenth section of
the statute of frauds "do not extend to certain executory
contracts for the sale of goods, which nevertheless are within
the mischief therebj'^ intended to be remedied," it was enacted
that the provisions of the seventeenth section " shall extend
to all contracts for the sale of goods of the value of ten pounds
sterling and upwards, notwithstanding the goods may be in-
tended to be delivered at some future time, or may not at the
time of such contract be actually made, procured, or provided,
or fit or ready for delivery, or some act may be requisite for
the making or completing thereof, or rendering the same fit
for delivery."

These two sections are construed as incorporated together,

1 9 Geo. rv. c. 14. v. Wyatt, 2 H. Bl. 63; Cooper v. Els-

2 In Towers v. Osborne, 1 Str.506; ton, 7 T. R. 14; and Garbutt v. Wat-
Clayton V. Andrews, 4 Burr. 2101 ; son, 5 B. & Aid. 613, in which case
and Groves v. Buck, 3 M. & Sel. 178, Clayton v. Andrews was expressly
it was held that such agreements were overruled, it was held that such
not within the statute. In Rondeau agreements were within the statute.

528 STATUTE OF FEAtTDS. [CHAP. XI.

the word " value " being substituted for " price." ^ In Arkan-
sas, the word " price " is retained,^ so in California,* Dakota,*
Indiana,* Massachusetts,® Michigan,'^ Minnesota,^ Mississippi,^
Missouri,^" Montana,^i Nebraska,^ Nevada,^* New Hampshire,^*
New Jersey,^* New York,^® Oregon,^^ Vermont,^^ Utah,!^ Wis-
consin,^'' and Wyoming.^^ In Connecticut,^ neither the word
"price" nor "value" is used, but "an agreement for the sale
of personal property for fifty dollars or upwards " is declared
not to be good " unless, etc." ; such also is the case in Florida^
and Maine.^ In Iowa the words are, "when no part of the
property is delivered, and no part of the price is paid " ; ^ and
the statute applies to all contracts for the sale of personal
property, without reference to the price. By section 3,665,
it is provided that this section shall not apply in cases where
the personal property at the time of the contract is not owned
by the vendor, and ready for delivery, "but labor, skill, or
money are necessarily to be expended in producing or pro-
curing the same." In Georgia, Maryland, and South Caro-
lina, the statute is substantially the same as the English
statute. In Alabama, this clause of the statute does not
exist, having been repealed in 1862, nor is there any provi-
sion in this respect in the statute of Delaware, Illinois, Kan-
sas, Kentucky, North Carolina, Ohio, Pennsylvania, Rhode
Island, Tennessee, Texas, Virginia, West Virginia, and Wy-
oming. Thus it will be seen that in twenty-nine of the
States and Territories of this country the seventeenth sec-
tion of the statute is in force, while in fourteen of them it
has no application whatever.

1 Scott V. Eastern Counties Rail- i" § 6.
way Co., 12 M. & "W. 38 ; Harman v. " § 13.
Eeeve, 18 C. B. 587 ; 25 L. J. C. P. 12 § 9.
257. M § 62.

2 § 2952. " § 14.
' § 2794, sub-div. 4. ^ § 6.

* § 626. M § 3, tit. 2.

5 § 7. But the words " accept and " § 775, sub-div. 5. ,
actually receive " are not contained in ^^ § 982.

the statute of this State, but the words w § 6.

" shall receive part of such property " 20 g 2307.

are substituted. 21 § 2.

6 § 5. =2 § 41.

' § 3. 28 § 2, c. 29.

8 § 7. 24 § 4.

9 § 2895. 26 § 3664, sub-div. 1.

SEC. 296.] EXECT7T0EY SALES. 529

Sec. 296. When Contract is for Sale of Goods, and iivhen for
Work and Labor done, and Materials Furnished. English Rule. —
It is often a question as to whether a contract is for the sale
of goods, wares, and merchandises, or whether it is for work
and labor done, and materials furnished.^

In England the rule now appears to be, that if the subject-
matter of the contract is such that it will result in the sale of a
chattel to be afterwards delivered, then the action must be for
goods sold and delivered; if, however, the subject-matter of the
contract is such that when completed it will not result in any-
thing which can properly be said to be the subject of a sale,
then the action must be for work and labor done, and materials
furnished? Thus, it has been held that a contract to print
so many copies of a treatise at a certain price per sheet is
not a contract for the sale of goods within the statute, but a
contract for work, labor, and materials.^ In the case in which
this rule was adopted,* the defendant entered into a contract
with the plaintiff, a printer, to print for him a second edition
of a work previously published by the defendant, the plain-
tiff to find materials, including paper. The court held that
the contract was for work, labor, and materials, and not for
goods to be delivered at a future time within Lord Tenter-
den's Act. Pollock, C. B., said: "As to the first point,
whether this is an action for goods sold and delivered, and
requiring a memorandum in writing within the seventeenth
section of the statute of frauds, I am of opinion that this is
properly an action for work and labor and materials found.
I believe that it is laid down in the commencement of Chitty
on Pleading, that that is the count that may be resorted to
by farmers, by medical men, by apothecaries, and I think he
mentions surveyors, distinctly, and that is the form in which
they are in the habit of suing. The point made in the case,^

1 See Towers v. Osborne, 1 Str. burn, J., in Lee v. Griffin, 1 B. & S.
506 ; Clayton o. Andrews, 4 Burr. 272, was approved.

2101 ; Groves v. Buck, 3 M. & S. 178 ; » Clay v. Yates, 1 H. & N. 73 ; 25

Rondeau v. Wyatt, 2 H. BI, 63; Gar- L. J. Ex. 237, approving of Grafton v.

butt V. Watson, 5 B. & Aid. 613; and Annitage, 2 C. B. 336 ; 15 L. J. C. P.

Benj.onSales,4thAm.Ed.(Bennett's) 20; and dissenting from a dictum of

§ 90, et seq. Batley, J., in Atkinson u. Bell, 8 B.

2 In Prescott v. Locke, 51 N. H. & C. 277 ; 2 M. & B. 301.

•98, this rule, as laid down by Black- * Clay v. Yates, 1 H. & N. 73.

6 Atkinson v. Bell, 8 B. & C. 277.

630 STATUTE OF FEATJDS. [CHAP. XI.

in which Baylby, J., gave an opinion, I think may be an-
swered by the opinion of Maule, J., in the court of com-
mon pleas,^ and then we have to decide the matter as if it
were now without any authority at all. It may be that In
all these cases part of the materials is found by the party for
whom the work is done, and the other part found by the
person who is to do the work. There may be the case
where the paper is to be found by the one and the printing
by the other, and so on ; the ink, no doubt, is always found
by the printer. But it seems to me the true rule is this:
whether the work and labor is of the essence of the contract,
or whether it is the materials that are found, my impression is
that in a case of a work of art, whether it be silver or gold,
or marble or common plaster, that is a case of the application
of labor the highest description, and the material is of no sort
of importance compared with the labor,^ and therefore that all
this would be recoverable as work and labor, and materials
found. I do not mean to say the price might not be recov-
ered as goods sold and delivered, if the work were completed
and sent home. No doubt it is a chattel that was bargained
for and delivered, and it might be recovered as goods sold
and delivered ; but still it would not prevent the price being
recovered as wofk and labor, and materials found. It appears
to me, therefore, that this was properly sued for as work and
labor, and materials found, and that the statute of frauds
does not apply ; and / am rather inclined to think that it is
only where the bargain is merely for goods thereafter to be made,
and not where it is a mixed contract of work and labor, and
materials found, that the act of Lord Tenterden applies ; and "

1 Grafton v. Armitage, 2 C. B. 336. a chattel, and not one for work and

^ But in Wolfenden v. Wilson, 33 labor, and waa therefore within the

U. C. Q. B. 442, where the materials statute. The text thus stated byPoL-

formed the principal value, and the lock, C. B., was rejected by Ceamp-

labor was only a small element of the ton and Blackburk, JJ., in Lee v.

value, it was held that the contract Griffin, 1 B. & S. 272, but it has been

must be treated as for a chattel. In followed and applied in several of the

this case, a tombstone was verbally States of this country. Edwards v.

ordered by the defendant to be put up Grand Trunk E. R. Co., 48 Me. 379 ;

at her husband's grave, and work was 54 id. 105 ; Prescott v. Locke, 51 N.

commenced upon it before the hus- H. 94; Pitkin v. Noyes, 48 N. H. 294;

band's death, and was put up after Passaic Manuf. Co. v. Hoffman, 3

his death arid burial. The court held Daly (N. Y. C. P.) 495.
that the contract was for the sale of

SEC. 296.] EXECUTORY SALES. 531

oue of the reasons why you can find no cases on this subject
in the books is, that before Lord Tenterden's Act passed, the
statute of frauds did not apply to the case of a thing begun,
whatever it might be." Alderson, B., concurred, and Mar-
tin, B., said : " There are three matters of charge well known
in the law: for labor simply, for work and materials, and
another for goods sold and delivered. And I apprehend
every case must be judged of by itself. What is the pres-
ent case ? The defendant, having written a manuscript,
takes it to the printer to have it printed for him. What
does he intend to be done? He intends that the printer
shall use his types, and that he shall set them up by put-
ting them in a frame ; that he shall print the work on paper,
and that the paper shall be submitted to the author ; that the
author shall correct it and send it back to the printer, and
then the latter shall exercise labor again, and make it into a
perfect and complete thing, in the shape of a book. I think
the plaintiff was employed to do work and labor, and supply
materials for it, and he is to be paid for it, and it really seems
to me that the true criterion is this : Supposing there was no
contract as to payment, and the plaintiff had brought an action,
and sought to recover the value of that which he had delivered,
would that be the value of the book as a book ? I apprehend
not, for the book might not be worth half the value of the
paper it was written on. It is clear the printer would be
entitled to be paid for his work and labor, and for the mate-
rials he had used upon the work; and, therefore, this is a
case of work, labor, and materials, done and provided by the
printer for the defendant." The learned baron also put this
case : " Suppose an artist paints a portrait for 300 guineas,
and supplies the canvas for it worth 10 «., surely he might re-
cover on a count for work and labor."

The case which may be considered to have settled the law
on this point is that of Lee v. Griffin.^ There the action wae
brought against an executor to recover a sum of money for
two sets of artificial teeth ordered by his testatrix. It was
held that the contract was for the sale of goods, wares, or
merchandises, and that the plaintiff could not recover in
an action for work and labor done, and materials provided.

1 1 B. & S. 272 ; 30 L. J. Q. B. 262.

532

STATUTE OF FEATJDS.

[chap. XI.

Ceompton, J., said : " The main question which arose at the
trial was, whether the contract in the second count could be
treated as one for work and labor, or whether it was a con-
tract for goods sold and delivered. The distinction between
these two causes of action is sometimes very fine ; but, where
the contract is for a chattel to he made and delivered, it clearly
is a contract for the sale of goods.^ There are some cases in

1 The doctrine relative to this sec-
tion of the statute has undergone many
changes in the English courts as well
as our own. It was formerly so nar-
row as to regard executory contracts
for goods as entirely out of its reach.
Towers v. Osborne, 1 Str. 506 ; Clay-
ton V. Andrews, 4 Burr. 2101 ; Groves
V. Buck, 3 M. & S. 178. Thus, in
Towers v. Osborne,
'^'"'"'im.'*°"^'«»'«. decided in 1722,
the defendant, in the
quaint language of the reporter, be-
spoke a chariot, and when it was com-
pleted, refused to accept it ; and in an
action for its value, the statute was
pleaded, no note in writing or earnest
having been given. Pkatt, C. J., hold-
ing that the statute applied only to
contracts for the actual sale of goods
where the buyer is immediately liable^
without time given him by special agree-
ment, and the seller was to deliver the
goods immediately. Upon the author-
ity of this case, the nisi prius case of
Clayton v. Andrews,
Clayton !>. Andrews, 4 b„„ glOl, was de-
termined, in 1767, by
LoKD Mansfield, C. J. In this case,
the defendant agreed to deliver a cer-
tain quantity of wheat to the plaintiff
within three weeks or a month from
the time of the agreement, at a cer-
tain rate, to be paid on delivery, which
wheat was understood by both parties
tj be at that time unthrashed. No
part of the wheat so sold was deliv-
ered, nor any money paid by way of
earnest for the same, nor any memo-
randum thereof made in writing, and
the question for the opinion of the
court was, whether this agreement was
within the statute of frauds. Lord
Mansfield held, upon the authority
of the case in Strange, that it was not.

And Yates, .1., observed that the clause
of the statute relates only to executed
contracts. Here wheat was sold to be
delivered at a future time. It was un-
thrashed at the time when the con-
tract was made ; therefore, it could
not be delivered at that time. See
Eichelberger v. McCauley, 5 H. & J.
(Md.) 213; and Brown ^. Wiman, 10
Barb. (N. Y.) 406, to same effect. In
Eondeau v. Wyatt, 2 H. Bl. 63, decided
in 1792, and Cooper v. Elston, 7 T. R.
14, in 1796, this doctrine was practi-
cally denied; but in
*^™™?8li^°°''' Groves V. Buck, 8 M.
& S. 178, the doctrine
of Towers v. Osborne and Clayton v.
Andrews was reiterated. In that case
the defendant agreed to purchase of
the plaintiff a quantity of oak pins
not then in existence, but which were to
be thereafter cut by the plaintiff out
of slabs owned by him, and to be deliv-
ered at a future time. The case was
tried before Giebs, C. J., who cited
and followed Towers o. Osborne, ante,
and a verdict having been found for
the plaintiff, it was sustained on ap-
peal to the King's Bench. Lord El-
LENBOROUGH saying: "The subject-
matter of this contract did not exist
in rerum natura ; it was incapable of
delivery and part-acceptance ; and
where that is the case, the contract
has been considered as not within the
statute."

As previously stated, the doctrine
of the first two cases cited, so far as
it exempted all executory contracts from
the operation of the statute, was not
merely shaken, but decisively over-
thrown by Eondeau u. Wyatt and
Cooper V. Elston, ante ; but in Buck
V. Groves, ante, the court treated the
doctrine of the first two cases as not

SEC. 296.]

EXECUTORY SALES.

533

which the supply of the materials is ancillary' to the contract,
as in the case of a printer supplying the paper on which a
book is printed. In such a case an action might perhaps be
brought for work and labor done, and materials provided, as

having been impugned by the two last-
named cases, because the court, in
those cases, attempted to distinguish
them from those under consideration,
upon the ground that in the former
there was some work to be done before
the goods were ready f&r delivery ^ while
in Rondeau v. Wyatt,
Rondeau ».Wyatt. „„(,^ the contract was

simply for the deliv-
ery of articles already existing. In
this case the contract was for the sale
of 3,000 sacks of flour, to be delivered
at a future day, at a certain price per
sack. LoKD Loughborough, in com-
menting upon the doctrine of Towers
r. Osborne, and Clayton v. Andrews,
ante, while disapproving that portion
of it which held that executory con-
tracts were not within the operation of
the statute, nevertheless said : " The
case of Towers v. Osborne was clearly
out of the statute, because it was for
work and labor to be done, and materials
and other necessary things to be found,
which is different from a mere contract
of sale, to which alone the statute is
applicable."

In Cooper u. Els-
Cooper^v^^lBlou, j^j,^ „„(^_ ^1,^ contract

was by parol for fifty
quarters of wheat at four guineas per
quarter, to be thereafter delivered by
the defendant. No earnest was paid,
nor was any part of the goods de-
livered. The defendant refused to
deliver the wheat, and in an action to
recover damages for this breach of
the contract, it was held that the con-
tsact was within the statute, the coiu-t
following Rondeau v. Wyatt, and dis-
tinguishing between merely executory
contracts of sale, and those where
work and labor were to be performed
to bring the goods into existence.
Opinions were given by Lokd Kenyon,
C. J., and by Grose and Lawrence,
JJ., and this point of distinction was
observed by all of them.

In Garbutt v. Wat-
Garbutt^j.. Wat«on,go„_ 53^ ^^,j g^g^

a verbal contract for
the sale of 100 sacks of flour, to be
manufactured by the plaintiffs, who
were millers, and thereafter delivered
to the defendant, was held to be with-
in the statute, notwithstanding the
flour, at the time the contract was
entered into, had not been manufac-
tured, the court proceeding upon a
distinction not before noticed between
articles to be manufactured, in the regu-
lar course of the vendor's business, and
those which would not have been manu-
factured except for the order of the
party desiring to acquire it. " This,"
said Bayley, J., " was substantially a
contract for the sale of flour, and it
seems to me immaterial whether the
flour was, at the time, ground or not.
The question is, whether this was a
contract for goods, or for work and
labor and materials found. I think it
was the former, and if so, it falls
within the statute of
'^■^"Tsm''" ■^''"' frauds." In Atkin-
son V. Bell, 8 B. &C.
277, decided in 1828, the action was
for goods ^old and delivered, and
work and labor and materials fur-
nished. The facts were, that one Kay
had patented a. certain pinning ma-
chine, and the defendants, who were
thread manufacturers, desired to try
it, and wrote him ordering him to
procure to be made for him as soon
as possible some spinning frames, in
the manner he most approved of. Kay
employed one Sleddon to make them
for the defendants, informing him of
the order received by him, and he
superintended the work. After the
frames 'were made, they lay for a
month on Sleddon's premises, while
he was doing some other work for the
defendants under Kay's superintend-
ence. Kay then ordered Sleddon to
make some changes in the frames,

534

STATtriE or TEADDS.

[chap. XI.

it could hardly be said that the subject-matter of the contract
was the sale of a chattel ; perhaps it is more in the nature of

ajj'd after this was done, the frames
were put into boxes by Kay's direc-
tions, and remained in the boxes for
some time on Sleddon's premises. On
the 23d June, Sleddon wrote to the
defendants that the machines had
been ready for three weeks, and asked
how they were to be sent. On the
8th August, Sleddon became bank-
rupt, and his assignees required the
defendants to take the machines ;
but they refused, whereupon action
brought. The judges were all of
opinion that the property in the goods
had not vested in the defendants :
Hazeltine v. Rice, 62 Barb. (N. Y.)
593-8; Mixer v. Howarth, 21 Pick.
(Mass.) 205; and that a count for
goods bargained and sold could not be
maintained; but Batlet and Hol-
ROYD, JJ., expressed the opinion that
a count for not accepting would have
supported the verdict in the plaintiff's
favor. On the count for work and
materials, the judges were also unani-
mous that these had been furnished
by Sleddon for his own benefit, and
not for the defendants', that is to say,
that the contract was an executory
agreement for sale, and not one for
work, etc. Bayley, J., said : " If you
employ a man to build a house on
your land, or to make a chattel with
your materials, the party who does
the work has no power to appropriate
the produce of his labor and your
materials to any other person. Hav-
ing bestowed his labor at your request,
on your materials, he may maintain
an action against you for work and
labor done. But if you employ
another to work up his own materials
in making a chattel, then he may ap-
propriate the produce of that labor
and materials to any other person.
No right to maintain any action vests
in him during the progress of the
work; but when the chattel has as-
sumed the character bargained for,
and the employer has accepted it, the
party employed may maintain an

action for goods sold and delivered.
Gooderham v. Dash, 9 U. C. C. P. 418.
Or if the employer refuses to accept,
a special action on the case for such
refusal; but he cannot maintain an
action for work and labor, because his
labor was bestowed on his own materials,
and for himself, and not for the per-
son who employed him." Mb. Ben-
jamin, in his work on Sales, says in
reference to this case: "The con-
eluding passage of this opinion is no
doubt too broadly expressed ; for,
although true generally, it is not uni-
versally the case that an action for
work and labor will not lie when per-
formed on materials that are the
property of the workman. This in-
accurate dictum had the efiect for a
time of weakening the authority of
Atkinson ;;. Bell, subjecting it to the
criticism of Maule and Eble, JJ., in
Grafton v. Armitage, ante, and of
Pollock, C. B., in Clay v. Yates, 1
H. & N. 73 ; but it was fully recognized
in the subsequent case of Lee v. Grif-
fin, 1 B. & S. 270. In Smith v. Sur-
nam, 9 B. & C. 561, the question arose
as to whether executory contracts
were within the statute, and the doc-
trine of Towers v. Osborne, ante, was
distinguished, but not questioned.
This was the state of the law in Eng-
land upon the question whether
executory contracts are within the
statute or not, down to the passage of
what is known as Lord Tenterden's
Act in 1829, being Stat. 9 Geo. 4 c.
1487, by which it was expressly pro-
vided that the act " shall extend to all
contracts for the sale of goods of the
value of £10 sterling and upwards,
notwithstanding the goods may be in-
tended to be delivered at some future
time or may not at the time of such con-
tract be actually made, procured, or pro-
vided, or Jit or ready for delivery, or
some set way be requisite for the making
or completing thereof, or rendering the
same fit for delivery," thus forever
putting this question at rest, and put-

SEC. 296.] BXECUTOEY SALES. 535

a contract merely to exercise skill and labor. Clay v. Yates
turned on its own peculiar circumstances. I entertain some
doubt as to the correctness of that decision ; but I certainly
do not agree to the proposition that the value of the skill and
labor, as compared to that of the material supplied, is a crite-
rion by which to decide whether the contract be for work and
labor, or for the sale of a chattel. Here, however, the sub-
ject-matter of the contract was the supply of goods. The
case bears a strong resemblance to that of a tailor supplying
a coat, the measurement of the mouth and fitting of the teeth
being analogous to the measurement and fitting of the gar-
ment." Hill, J., said : " I think that the decision in Clay v.
Yates is perfectly right. That was not a case in which a
party ordered a chattel of another which was afterwards
to be made and delivered, but a case in which the subject-
matter of the contract was the exercise of skill and labor.
Wherever a contract is entered into for the manufacture of
a chattel, there the subject-matter of the contract is the sale
and delivery of the chattel, and the party supplying it cannot
recover for work and labor. Atkinson v. Bell is, in my opinion,
good law, with the exception of the dictum of Bayley, J.,
which is repudiated by Maitlb, J., in Grafton, v. Armitage."
And Blackbuen, J., said : " I think that in all cases, in order
to ascertain whether the action ought to be brought for goods
sold and delivered, or for work and labor done and materials
provided, we must look at the particular contract entered into
between the parties. If the contract be such that when car-
ried out it would result in the sale of a chattel, the party can-
not sue for work and labor ; but if the result of the contract
is that the party has done work and labor which ends in noth-
ing that can become the subject of a sale, the party cannot
sue for goods sold and delivered. ... In the present case,
the contract was to deliver a thing which, when completed,
would have resulted in the sale of a chattel ; in other words,
the substance of the contract was for goods sold and deliv-
ered. I do not think that the test to apply to these cases is

ting an end to the vacillating ten- question open to judicial construction,

dency of the court upon the question, which has given rise to the rule stated

But this statute did not affect the in the text, which now seems to be

question as to contracts for the manu- firmly established in the English

facture of articles, and leaves the courts.

536 STATUTE OF FRAITDS. [CHAP. XI.

whether the value of the work exceeds that of the materials
used in its execution, for if a sculptor were employed to exe-
cute a work of art, greatly as his skill and labor, supposing
it to be of the highest description, might exceed the value of
the marble on which he worked, the contract would, in my
opinion, nevertheless be a contract for the sale of a chattel."
In Grafton v. Armitage,i the plaintiff was a working engi-
neer, and the defendant was the inventor of a life-buoy, ia
the construction of which curved metal tubes were used.
The defendant employed the plaintiff to devise some plan
for a machine for curving the tubes. The plaintiff made
drawings and experiments, and ultimately produced a drum
or mandrel, which effected the object required. His action
was deht for work, labor, and materials, and for money due
on accounts stated. The particulars were : " for scheming
and experimenting for, and making a plan-drawing of a
machine, etc., engaged three days, at one guinea per day,
£3 38. ; for workman's time in making, etc., and experiment-
ing therewith, £1 5 s.; for use of lathe for one week, 12 «. ;
for wood and iron to make the drum, and for brass tubing
for the experiments, 5 s." The defendant insisted, on. the
authority of Atkinson v. Bell, that the action should have
been case for not accepting the goods, not debt for work and
labor, etc., citing the dictum at the close of Baylby J.'s
opinion. But Mattlb, J., said : " In order to sustain a count
for work and labor, it is not necessary that the work and
labor should be performed upon materials that are the prop-
erty pf the defendant, or that are to be handed over to him."
Ekle, J., said : " Suppose an attorney were employed to pre-
pare a partnership or other deed, the draft would be upon
his own paper, and made with his own pen and ink. Might
he not maintain an action for work and labor in preparing
it ? " In delivering the decision, Tindal, C. J., pointed out
as the distinction, that in Atkinson v. Bell the substance of
the contract was that the machines to be manufactured were
to be sold to the defendant, but that in the case before the
court, the substance of the contract was not that plaintiff
should manufacture the article for sale to the defendant, but
that he should employ his skill, labor, and materials in devis-

1 Grafton v. Armitage, 2 C. B. 336.

SEC. 297.] EXECUTORY SALES. 537

ing for the use of the defendant a mode of attaining a given
object. CoLTMAN, J., concurred, and said that the opinion
of Bayley, J., was on precisely the same ground as the Lord
Chief Justice put this case. The claim of a tailor or a shoe-
maker is for the price of goods when delivered, and not for
the work and labor bestowed by him in the fabrication of
them. In this ease, it will be observed, the contract was for
the exercise of the plaintiff's skill and ingenuity in produc-
ing something out of his usual line of business, and the
plaintiff's right to compensation did not depend upon the
successful result of his labor. But being successful, and the
article invented and produced by him being suitable for the
purpose for which it was ordered, there can be no reason to
doubt that a recovery could be had for the material fur-
nished, as well as the labor, whether the person ordering it
took it or not ; and, in view of the grounds upon which the
doctrine of the case was put by Tijstdal, C. J., it cannot be
said to be seriously at variance with that of the subsequent
cases of Clay v. Yates, or Lee v. Grrififin, post, as the contract
was in no sense for the sale of an article, but purely one for
work and labor, which must be paid for, whether any useful
result or product ensued or not.

Sec. 297. Rule in this Country. — In all the States of this
country it is held that merely executory contracts are within
the statute, and are not taken out of it hy the mere circum-
stance that the goods are not ready for delivery, or that some-
thing remains to he done before they will he} Thus, in a New

* Casson v. Cheeley, 6 Ga. 554; the yeniorihut the payment and delivery

Edwards v. Grand Trunk E. K. Co., are postponed to a future day, it is no

48 Me. 379 ; Crookshank is Burrell, sale within the statute of frauds. In

18 John. (N. Y.) 58. In Waterman u. Reutch v. Long, 27 Md. 188, a parol

Meigs, 4 Cush. (Mass.) 497, a contract sale of corn, to be gathered and husked,

for the delivery of a quantity of was held not to amount to a sale of

planks for ship-building, at a future goods within the statute. But see

time, and at a specified price, was Downs v. Ross, 23 Wend. (N. Y.) 270,

held to be within the statute. In and Jackson v. Covert, 5 id. 139, where

Kirby v. Johnson, 22 Mo. 354, it was it was held that a sale of wheat not

held that if a bargain be made be- then threshed was a sale of goods,

tween two for the sale of cattle which In Bennett v. Nye, 4 Greene (Iowa)

they are looking at in the field, and it 410, it was held that a parol contract

is agreed that the cattle shall be from to deliver hogs at a future day might

that time the property of the pur- be taken out of the statute on the

chaser, and be kept at his expense by ground that " labor, skill, or money,"

538 STATUTE OF FEAUDS. [CHAP. XI.

York case,^ the plaintiff had in his warehouse sofas and chairs
already manufactured, but not upholstered, but left uncov-
ered, in order that the purchaser might have a covering
according to his taste. The defendant selected a sofa and
some chairs, and gave orders to have them covered with a
certain material. The price was agreed upon, amounting to
jnore than |50. It was held to be a contract for the sale of
goods within the statute .^ In a later New York ease,^ the
doctrine stated supra-, that the mere circumstance that some-
thing remains to be done to the article contracted for, and
although it is done hy the order and direction of the vendee,
does not change the character of the transaction from a sale
to a mere contract for skill and labor, is well illustrated. In
that case, the defendant being desirous of purchasing a stal-
lion colt owned by the plaintiffs, verbally agreed that, if they
would castrate him, and keep him until he got well, he would
give them $1,000 for him. To this the plaintiffs assented,
and afterwards caused the colt to be castrated, and after his
recovery tendered him to the defendant, who refused to
receive him. The court held that the contract was essen-
tially one of sale, and therefore within the statute. Bockes,
J., in a very able opinion, said: "When the subject of the
contract exists in solido, hut something is agreed to he done to

was to be expended in producing the 115 Mass. 450, yet it is entirely incon-
same, within the meaning of tlie pe- sistent with the doctrine of the later
culiar provisions of the statute of that cases, and has partially been over-
State, ruled, and is clearly opposed to the

1 Flint V. Corbitt, 6 Daly (N. Y. C. rule established in qiark v. Nichols,
P. ) 429. 107 Mass. 507, where a verbal contract

2 In a Massachusetts case. Mixer v. for the delivery of a certain quantity
Howarth, 21 Pick. (Mass.) 407, the of planks, to be sawed from the logs into
defendant went to the plaintiff's car- various dimensions under the defendant's
riage shop, where the plaintiff had the directions, was held to be within the
unfinished body of a carriage, and statute as being a contract for the
gave him directions to finish it and trim sale of goods. In Goddard v. Binney,
it with a certain lining, selected by him. ante, it was held, however, that where
The carriage was to be finished in a person ordered a buggy to be built
about a fortnight. The court held for him by the plaintiff, to be painted
that this was not a contract of sale and lined in a certain way, and pro-
within the statute, but rather an agree- vided with a seat to be made of certain
ment on the part of the plaintiff to build materials, and marked with the defend-
a carriage, and upon the defendant's ant's initials, was not a contract for the
part to take and pay for it when fln- sale of goods, and consequently not
ished. But, while the court of that within the statute.

State seemed to recognize the author- s Bates v. Coster, 1 Hun (N, T.)
ity of this case, Goddard v. Binney, 400.

SEC. 297.]

EXECUTOKY SALES.

539

it, to put it in condition for use, or to make it marketable, the
contract is held to be one of sale, and void within the stat-
ute.i ... It is said in many of the cases when this question
has been considered, that the true test for determining
whether the contract was one of sale, or for work and labor,
is to inquire whether the work to be performed, in order to
prepare the property for delivery, was to be done for the
vendor or the vendee. If for the former, the contract is one
of sale, and void under the statute. According to the above
cases, it must be quite obvious, I think, that the contract
here under consideration was one of sale, not one for work
and labor. It was a simple contract for the sale of the colt,
to be delivered at a future time, gelded and well, at the price
of i 1,000. The animal was present before the contracting
parties, and was the precise property agreed to be delivered.
True, an operation was to be performed of great hazard,
involving however little labor and trifling expense. The
plaintiffs assumed the expense and risk, for they were to
deliver the colt gelded and well. It was the animal that

1 The court referred to Mead v.
Case, 33 Barb. (N. Y.) 202, in which
it was held that a contract for a
marble monument, which was then com-
plete in form, but was to be polished,
lettered, finished, and set up, for |200,
was held to be a contract for the
manufacture of a monument, and not
within the statute. But Bockes, J.
(in Bates v. Coster, ante), says: "The
decision was by a divided court, and
is of doubtful authority on the facts
proved." In Fitzsimmons v. Wood-
ruff, 1 N. Y. Superior Ct. 3, a contract
for a marble mantle was entered into,
the defendant selecting a mantle which
was to he altered in certain respects, and
set up by the plaintiff in the defend-
ant's house in another town, for the
price of $80. The court held that the
contract was one of sale, and within
the statute. In Cooke v. Millard, 5
Lans. (N. Y.) 243, the defendants
verbally ordered, at a price exceeding
$50, from the yard of the plaintiffs,
who were lumber dealers, and also had
a planing mill at which they cut and
dressed lumber for sale, certain lum-

ber to be cut and dressed from lots
examined by the defendants according
to certain directions given by them,
and when ready the lumber was di-
rected to be placed on the plaintiff's
dock, and to notify one P, a forwarder,
who would send a boat for it. The
lumber was prepared and placed on
the dock according to the instructions
given by the defendants, and the for-
warder notified to send a boat for it.
The next day the lumber still remain-
ing on the dock was consumed by fire,
and in an action for the price agreed
upon, it was held that the contract
was one of sale, and void within the
statute. In Smith v. N. Y. Cent. E.
E. Co., 4 Keyes (N. Y.) 180, a contract
was entered into for the sale of a
quantity of wood which at the time
was growing upon the plaintiff's land.
The wood was to be cut by the plain-
tiff. The court held that it was a
contract for the sale of goods, and
within the statute. See also Downs
V. Boss, 23 Wend. (N. Y.) 270; Gar-
butt V. Watson, 5 B. & Aid. 613.

540 STATUTE OP FEATTDS. [CHAP. XI.

was contracted for, not the incident of castration. The
labor, expense, and risk of the operation were for the plain-
tiffs. The animal was the subject of the purchase and sale,
to be gelded before deliyery. The language of Bayley, J.,
in Smith v. Surman,i well applies here ; he says : ' the vendor,
so long as he was felling it (the timber) and preparing it for
delivery, was doing work for himself, and not for the defend-
ant ; ' and he adds : ' it was a contract for the future sale of
the timber when it should be in a fit state for delivery.'
There was not, certainly, any idea of manufacture involved
in the agreement in this case ; no idea of compensation for
work and labor, as such. In no fair and just sense can this
contract be deemed one for work and labor ; it was mani-
festly a contract of sale for the price of fl,O0O, and, not
being in writing, was void by the statute of frauds."

Sec. 298. Contracts of Sale, or for 'Work and Labor. Rule
in New Hampshire. — We have previously stated that it is held
in all the States, that a contract for the sale of goods which
is purely executory is as much within the statute as one to
be executed in praesenti ;^ but when we get beyond that, and
look for the rule in cases where work and labor enter into
the contract as an element, or rather where goods contracted
for are to be manufactured, we enter a field where the con-
flict is sharp, and where much inconsistency is evinced, even
in the same courts. It may be stated here that, as a matter
of course, where a person furnishes materials, and procures
another to manufacture them into a chattel, or even furnishes
any considerable part of the materials, although not all, the
cases all agree that the contract is for work and labor, and
not of sale. But when a chattel is ordered from a manufac-
turer, which, at the time, does not exist in solido, and for the
construction of which he furnishes the materials, the ques-
tion as to whether the contract is one of sale or for work and
labor is of grave importance, upon which there is consider-
able conflict in our courts. As we have seen, the question is
decisively settled in England, partly by 9 Geo. 4, Cap. 14,
and partly by the case of Lee v. GrifiSn.* It is proper to
state here that the doctrine of the English case last cited

1 9 B, & C. 561. 2 Finney v. Apgar, 31 N. J. L. 270. » 2 B. & S. 272.

SEC. 298.] EXECUTORY SALES. 541

does not prevail in any of our courts, as applied in that case.
In New Hampshire,! the rule as stated in Lee v. Griffin, by
Blackburn, J., was applied to the facts of that case, Foster,
J., saying : " "Where the contract is for a chattel to be made
and delivered, it clearly is a contract for the sal« of goods.
In such case, the party supplying the chattel cannot recover
for the- labor in making it." In that case, the defendant
entered into a verbal Contract with the plaintiff, to purchase
of him such walnut spokes as the plaintiff should saw at
his mill, not exceeding 100,000, at #40 a thousand, in lots
of 10,000 each, subject to the defendant's selection. It is
true that Foster, J., in the course of his opinion, says,
that the rule stated by him supra applies "even where
the peculiar skill of the maker is considered to be an im-
portant element in the consideration of the contract ; for,"
he adds, " the value of the skill and labor, as compared with
that of the material supplied, is not a criterion to deter-
mine what the contract is." And this language would seem
to involve a repudiation of the rule known as the " essence
test," which had previously been adopted and acted upon in
that State.^ But the language thus used by him, and the doc-
trine expressed therein, are mere dicta, and have no real appli-
cation to the facts of the case, and the actual judgment in the
case is consistent with the rule as adopted in the cases cited in
the last note; and it is believed that, in that State, the rule as ex-
pressed by Bellows, J.,^ still prevails. In that case, the defend-
ant verbally contracted with the plaintiff to raise three acres
of potatoes, and deliver them to the plaintiffs, who were starch
manufacturers, at a certain price per bushel, and the court
left it to the jury to say whether, in view of all the circum-
stances, the work and labor of the vendor was of the essence
of the contract, and upon appeal this was held not to be
erroneous, Bellows, J., saying : " If a person contracts to
manufacture and deliver at a future time certain goods, at
prices then fixed, or at reasonable prices, the essence of the
agreement being that he will bestow his own labor and skill
upon the manufacture, it is held not to be within the statute.

1 Prescott V. Locke, 51 N. H. 98. " In Pitkin v. Noyes, 48 N. H.

2 Pitkin V. Noyes, 48 N. H. 294; 294.
Oilman v. Hill, 3(3 id. 311.

542

STATUTE OP KEAUDS.

[chap. XI.

If, on the other hand, the bargain be to deliver goods of a
certain description at a future time, and they are not exist-
ing at the time of the contract, hut the seller does not stipvr
late to manufacture them himself, or procure a particular- per-
son to do so, the contract is within the statute. The distinc-
tion is, that in the one case the party stipulates that he wHl
himself manufacture the article, and the buyer has the right
to require him to do it, and cannot be compelled to take one
as good, or even better, if made by another ; while in the
other case the seller only agrees to sell and deliver the article,
and is under no obligation to make it himself, but may pur-
chase it of another."

Sec. 299. Rule in New York. — In New York, in a recent
case,^ the court speaks approvingly of the rule adopted in
Lee V. Griffin, ante, but admits that it is too late to adopt it,
and virtually adopts the " essence test," and states the rule
in that State to be that when the chattel is in existence, so as
not to be governed by Parson v. Loucks,^ the contract should

1 Cooke V. Millard, 65 N. Y.359;
22 Am. Rep. 619.

2 In Parsons v. Loucks, 48 N. Y.
17; 8 Am. Rep. 517, an action was
brought for an alleged breach of a
yerbal contract to manufacture and de-
liver a quantity of paper, and the con-
tract was held not to be within the
statute. The distinction is stated in
that case to be between the sale of
goods in existence at the time when
the contract is made, and an agreement
to manufacture goods. The former is
within the prohibition of the statute,
and void unless it is in writing, or
there has been a delivery of a portion
of the goods sold, or a payment of the
purchase-price. This case follows the
doctrine of Crookshank v. Burrell, 18
John. (N. Y.) 58; Sewall i-. Fitch, 8
Cow. (N. Y.) 215 ; Robertson v.
Vaughan, 5 Sandf . (N. Y.) 1 ; Donno-
van V. Wilson, 26 Barb. (N. Y.) 138;
Parker d. Schenck, 28 id. 38, and
Mead v. Case, 33 id. 202. In Crook-
shank V. Burrell, ante, a contract for
the woodwork of a wagon, to be manu-
factured by the plaintiff by the special
order of the defendant, was held not

to be within the statute. Spencer,
C. J., said : " In Bennett ,;. Hull, 10
John. (N. Y.) 364, we declared that
the statute applied to executory as
well as other contracts, and we recog-
nized the cases of Rondeau v. Wyatt,
and Cooper v. Elston (ante), as con-
taining a just and sound construction
of the statute. In giving the opinions
in those cases, the judges referred to
the case of Towers v. Osborne with
approbation. . . . The distinction
taken by Lohd LouGHBOROuon in
Rondeau v. "Wyatt, ante, and by the
judges who gave opinions sereatim in
Cooper V. Elston, was between a con-
tract for a thing existing in solido and
an agreement for a thing not yet
made, to be delivered at a future day.
The contract in the latter case they
consider not to be a contract for the
sale and purchase of goods, but a con-
tract for work and labor merely.
However refined this distinction may
be, it is well settled, and it is now too
late to question it." In Sewall v.
Eitoh, ante, a contract for nails, to be
thereafter manufactured; in Mead
V. Case, ante, a contract for a monu-

SEC. 299.]

EXECUTORy SALES.

548

he deemed to he one of sale, even though it may have been
ordered from the seller, who is to do some work upon it to adapt
it to the uses of the purchaser. This rule makes but a single
distinction, and that is between existing and non-existing chat-
tels.^ In the case in question," the rule was applied to a ver-
bal contract for the purchase of lumber exceeding fifty dol-
lars in value, which was to be dressed and cut by the plain-
tiffs, according to directions given by the defendants, and
then to be placed on the plaintiffs' dock, to be taken away
by a boat to be sent for that purpose by the defendants.
The lumber was dressed, cut, and delivered on the dock as
directed; but the next day, and before the defendants had an

ment to be made from blocks of
marble then in the yard to be polished,
lettered, and finished ; in Robertson
u. Vaughan, 5 Sandf. (N. Y.) 1, a con-
tract to make and deliver one thou-
sand molasses shooks; in Wright v.
O'Brien, 5 Daly (N. Y. C. P.), a
contract to make a crayon drawing
from a photograph; in Webster v.
ZeUley, 62 Barb. (N. Y.) 482, a con-
tract to furnish the defendant with
hop roots, to be thereafter purchased
by the plaintiff, and dug; and in
Stephens v. Santee, 51 id. 532, a con-
tract to cut and deliver railroad ties
at a certain price, were all held not to
be within the statute. But in Downs
V. Ross, 23 Wend. (N. Y.) 270, a con-
tract for wheat to be thereafter
threshed ; in Flint v. Corbett, 6 Daly
(N. T. C. P.) 529, a contract for fur-
niture to be thereafter upholstered;
and in Bates v. Coster, 1 Hun (N. Y.)
400, a contract for a colt to be cas-
trated by the vendor, and kept until
he recovered from the effects thereof,
were held to be within the statute.
See also Miller v. Fitzgibbons, 9 Daly
{N. Y. C. P.) 505 ; Seymour v. Davis,
2 Sandf. (N. Y.) 239; Bronson v.
Wyman, 10 Barb. (N. Y.) 406 ; Court-
wright V. Stewart, 19 id. 455 ; Kellogg
V. Wetherhead, 4 Hun (N. Y.) 273.

1 Downs V. Ross, 23 Wend. (N. Y.)
270; Deal u. Maxwell, 51 N. Y. 652;
Bates V. Coster, 1 Hun (N. Y.) 400.

2 Cooke V. Millard, ante. In this
case at General Term, see 5 Lans,

(N. Y.) 246, Pakker, J., said: "The
work to be done upon the lumber,
was not work which the defendants
had hired the plaintiffs to do for them,
but was manifestly work which the
plaintiffs were to do for themselves,
in putting their lumber in condition
for sale to the defendants. Defend-
ants did not hire the plaintiffs to slit
and plane the lumber. They agreed
for the lumber in such a condition,
and though it was to be lumber from
certain piles in the plaintiffs' yard,
yet it was no less a purchasing of
lumber, and not a hiring of the plain-
tiffs to manufacture it. There is a
marked distinction between such a,
transaction and an agreement for the
manufacture of an article. This was
not a manufacture of lumber. That
existed in solido, and what was to be
done was to put it into marketable
condition. It was part of it in the
rough, and this was to be planed and
matched. It was not of the desired
size, and it was to be slit. It was in
this respect like the unthreshed wheat,
a sale of which by parol, with an
agreement that it should be threshed
by the vendors, was held to be within
the statute. Downs v. Ross, 23 Wend.
(N. Y.) 270. The doctrine stated in
that case is, that if the thing sold
exists in solido, the mere fact that
something remains to be done to put it
in a, marketable condition will not
take the contract out of the operation
of the statute."

544 STATUTE OF FRAUDS. [CHAP. XI.

opportunity to take it away, it was burned; and the court
held that the contract was within the statute, and that the
loss fell upon the plaintiffs. From this case, and those pre-
viously cited, it will be seen that after all, in New York, in
effect, the question as to whether a contract of sale is within
the statute or not, depends upon the circumstance whether
the work, labor, and skill to he bestowed upon the article by the
vendor is the essence of the contract, or whether the contract is
essentially for a chattel. If the former, the statute does not
apply ; if the latter, it does.^ The language of the judges in
the different cases cited might be construed to support a
multitude of rules, but the actual decision of the cases,
applied to the facts in hand, invariably supports the rule as
stated supra. This is well illustrated by a recent case,^ in
which the defendant contracted verbally for the purchase of
a sofa, two arm-chairs, and four other chairs. The articles
in question were selected by the defendant from patterns
shown him, which were not covered, or only in part. The
defendant selected the material with which they were to be
covered, selecting brocatelle, which was not a usual cover-
ing. When the chairs were covered and varnished, and
ready for delivery, the defendant refused to take them ; and
in an action therefor, he set up the statute of frauds in
defence. The court held that the contract was within the
statute,^ Daly, C. J., saying: "When the contract is for the

1 Downs V. Ross, 23 Wend. (N. Y.) in the statute. In Passaic Manufac-
270 ; Flint v. Corbitt, 6 Daly (N. Y. turing Co. v. Hoffman, 3 Daly (N. Y.
C. P.) 429. C. P.) 495, the court attempted to

2 Flint V. Corbitt, ante. establish the rule that a contract for
^ In Kilmore v. Hewlett, 48 N. the manufacture of an article of goods,

Y. 569, a contract to cut trees grow- such as the vendor usually makes and
ing upon the contractor's laud into sells in the course of his business, is
cordwood, and deliver them at so within the statute, but that, where it
much a cord, was held to be with- is manufactured under a special order,
in the statute. See also Smith and when produced is unfitted for
V. N. Y. Central R. R. Co., 4 general sale, it is not within the
Keyes (N. Y.) 180, where the same statute, thus attempting to overrule
doctrine was held. In Courtwright Donovan v. Wilson, 26 Barb. (N. Y.)
V. Stewart, 19 Barb. (N. Y.) 455, a 138, and Ferren v. 0'Har|i, 67 id. 517.
contract with a mechanic, to furnish But this doctrine is cleai<ly opposed
materials and do the carpenter work to that held by the Court of Appeals
and turning for a building to be in Cooke v. Millard, ante; Deal o.
erected upon the land of another, was Maxwell, 51 N. Y. 652 (where a con-
held to be a contract for work, labor, tract to make and deliver a certain
and materials, and therefore not with- quantity of paper at a future day was

SEC. 300.] EXEODTORY SALES. 546

purchase of an article which the vendor usually has for sale
in the course of his business, which he keeps in his ware-
house substantially made, but not entirely finished, that the
taste or wish of the customer may be consulted as to the
final finish, the finishing of it in the way that the purchaser
prefers does not change it from a contract of sale into a con-
tract for work and labor. What is in contemplation of the
parties is the purchase and sale of an article which is exam-
ined and selected, but upon which something more is to be
done, which, as a matter of taste, choice, or expense, is left
to the purchaser." ,

Sec. 300. Rule in Maine. — In Maine, the rule appears to
be that a contract for an article to be thereafter manufactured
hy the vendor, where the work, labor, and skill of the vendor or
those in his employ, or the peculiar mode and manner or mate-
rial is of the essence of the contract, is a contract for work
and labor rather than of sale, and so not within the statute.^
In Hight V. Ripley, ante, which was the case of a verbal con-
tract by the defendants to furnish the plaintiff as soon as
practicable 1,000 to 1,200 pounds of malleable hoe-shanks,
agreeably to certain patterns left with them by the plaintiff,
and to furnish a larger amount, if required, at a diminished
price, it was held that the contract must be treated as one

held not to be within the statute), and recovery In Deal v. Maxwell, ante, and
Parsons v. Loucks, 48 id. 17, where a the plaintiff should have been per-
contract quite similar to that in Deal mitted to recover in Cooke v. Millard,
V. Maxwell, ante, except that the paper ante, because, by the special direction
was to be of such a description, sizes, of the defendant the vendor changed
and weights, as directed by the the character of the lumber, and fitted
vendee ; and also held not to come it for the special use of the defendant,
within the operation of the statute, and presumably rendered it unfit for
In these last two cases, there was no the general trade, and under this rule
evidence that the paper, wlien pro- there should have been a recovery in
duced, was, by reason of the quality, Flint v. Corbett, ante, because it ap-
sizes, or weights, unfit for the general peared in that case that by the direc-
trade, but the doctrine was rested tion of the defendant the vendor
upon the broad ground that the con- covered the furniture with brocatelle,
tract was for work, labor, and skill in which the ease shows was not usually
the making of the paper, and for employed for that purpose,
materials used in the manufacture, i Edwards v. Grand Trunk R. R.
under the rule as stated in Passaic Co., 48 Me. 379; S. C. 54 id. 105;
Manufacturing Co. v. Hoffman, ante, Pickett v. Swift, 41 id. 68 ; Hight v.
while it might be held that there could Ripley, 19 id. 137 ; Abbott v. Gil-
be a recovery in Parsons v. Loucks, christ, 38 id. 260 ; Cummings v. Den-
ante ; yet there could have been no nett, 26 id. 397.

546 STATUTE OP FKATIDS. [CHAP. XI.

for the manufacture of the hoe-shanks, and therefore not
within the statute. Shipley, J., in the course of the opin-
ion delivered by him, 'said: "A contract for the manufacture
of an article differs from a contract of sale, in this : the per-
son ordering the article to be made is under no obligation to
receive as good or even a better one of the like kind pur-
chased from another, and not made for him. It is the pecu-
liar skill and labor of the other party, combined with the mate-
rial, for which he contracted, and to which he is entitled.
This rule was reiterated and reaffirmed in a later case.^ In
that case the defendants verbally contracted to take all the
wood the plaintiffs should cut and put on the line of their
road during the season, at the same price they had paid him
before for wood, or more, if better. The court held that the
contract was within the statute, saying : " The fact that the
article contracted for does not exist at the time of the con-
tract, but is to be made or manufactured, will not necessa-
rily take the case out of the statute. It must also appear
that the particular person who is to manufacture it, or the
mode and manner or material, enter into and make a part of
the contract.^ A test, in some cases, is whether the person
contracting to take the article is bound to receive one which
may be bought or procured by the other party after the con-
tract. If he is, then it is a case of sale." In a later case,^ it
was held that a contract to manufacture an article out of a
particular lot of timber already cut for the purpose, and belong-
ing to the manufacturer, was not within the statute. Under
this rule, it will be observed that three elements are
embraced: first, the skill or labor of the vendor;* second, the
mode or method of manufacture ; ^ and third, the materials^
either one of which may be sufficient, when shown to be an
element of the contract, to take it out of the statute.

Sec. 801. Rule in Massachusetts, New Jersey, and 'Wiscon-
sin.— In Massachusetts and the other' States named in the
head-line, a mere contract to manufacture an article and fur-

1 Edwards v. Grand Trunk R. E. * Hight v. Ripley, ante; Edwards
Co., 48 Me. 879; S. C. 54 id. 105. v. Grand Trunk R. R. Co., ante.

2 Hight V. Ripley, 19 Me. 137 ; 6 Abbott v. Gilman, 38 Me. 260.
Eickett V. Swift, 41 id. 68. 8 Crockett v. Scribner, ante.

8 Crockett v. Scribner, 64 Me. 447.

SEC. 301.J EXECUTORY SALES. 547

nish materials,, such as are usually manufactured hy the vendor^
is treated as a sale of a chattel, rather than as a contract for
work and labor ; hut where a special order is given for the man-
ufacture of an article, to be made from materials furnished hy
the manufacturer according to directions given, or a model
selected hy the purchaser, and not for the general market, the
contract is treated as one for labor and materials, and not of
sale, and therefore not within the statute.^ TJie cases com-
ing under the iirst head are illustrated by Gardner v. Joy,^
in which the plaintiff verbally contracted with the defendant
to manufacture and deliver to him, at a future day, one hun-
dred boxes of candles at twenty-one cents a pound. The
contract was held to be one of sale, and within the statute.
In Lamb v. Crafts * a similar doctrine was held as to a verbal
contract to furnish at a future day a certain quantity of pre-
pared tallow, the business of the seller being to gather tallow
in the rough and prepare it for the market. In a later case,^
the same rule was applied to a contract to saw certain logs
into plank of various dimensions under the plaintiff's direc-
tions, Chapman, C. J., saying : " We think this was a con-
tract to sell and deliver the bending stuff and plank, and not
a contract for labor in manufacturing the articles."

The rule itself is illustrated by Mixer v. Howarth,^ which
has been referred to in a previous section, in which the
defendant selected from the plaintiffs stock the body of a
carriage which was nearly completed, and selected the lining
for it, and which he agreed to take at a certain price when
finished, and which the plaintiff agreed to have finished in a
fortnight. The plaintiff finished the carriage accordingly,
and notified the defendant thereof, and requested him to take
it away, which he refused to do. The court held that the
contract was not within the statute, Shaw, C. J., saying :
" It is very clear, we think, that by the contract no property

1 Lamb v. Crafts, 12 Met. (Mass.) » Gardner «. Joy, 9 Met. (Mass.)
356 ; Gardner v. Joy, 9 id. 177 ; Water- 177.

man v. Meigs, 4 Gush. (Mass.) 497; * Lamb v. Crafts, 12 Met. (Mass.)

Clark f. Nichols, 107 Mass. 547. 356.

2 Goddard v. Binney, 115 Mass. « Clark v. Nichols, 107 Mass. 547.
450; 15 Am. Rep. 112; Mixers. How- 'Mixer v. Howarth, 21 Pick.
arth, 21 Pick. (Mass.) 207 ; Pinney v. (Mass.) 205.

Apgar, 31 N. J. L. 270; Meincke v.
Talk, 55 Wis. 427 ; 42 Am. Kep. 722.

548 STATUTK OF FKAUDS. [CHAP. XI.

passed to the defendant. The carriage contemplated to be
sold by the plaintiff to the defendant did not then exist. It
was to be constructed from materials partly wrought indeed,
but not put together. It was therefore essentially an agree-
ment by the defendant with the plaintiff to build a carriage
for him, and on his part to take it when finished, and pay for
it, at an agreed or at the reasonable value. This is a valid
contract, and made on a good consideration, and therefore
binding on the defendant. But it was not a contract of sale
within the meaning of the statute of frauds, and therefore
need not be proved by a note in writing ; when the contract
is a contract of sale, either of an article then existing, or of
articles which the vendor usually has for sale in the course of
his business, the statute applies to the contract, as well where
it is to be executed at a future time, as where it is to be
executed immediately. But where it is an agreement with a
workman to put material together and construct an article for
the employer, whether at an agreed price or not, though in
common parlance it may be called a purchase and sale of the
article to be completed in futuro, it is not a sale until an
actual or constructive delivery and acceptance, and the
remedy for not accepting is on the agreement."^ In God-
dard v. Binney^ the plaintiff and defendant entered into a
verbal contract by which the plaintiff was to build a buggy
for the defendant, and deliver it at a certain time. The
defendant gave directions as to the style and finish of the
buggy, and it was built in conformity with his directions and
marked with his monogram. When the buggy was com-
pleted, the plaintiff sent the defendant a bill therefor, and he
retained the bill and promised to see the plaintiff about it.
The buggy was destroyed by fire while in the plaintiff's pos-
session, and in an action for its price, the court held that the
contract was not one of sale within the statute, and that the
property in the buggy had passed to the defendant. Ames,
J., said : " The carriage was not only built for the defendant,
but in conformity, in some respects, with his directions, and
at his request was marked with his initials. It was neither
intended nor adapted for the general market." ^ In New Jer-

1 See Spencer v. Cone, 1 Met. (Mass.) 283.

2 Goddard v. Binney, 115 Mass. 450.

8 See also May v. AVard, 134 Mass. 84.

SEC. 302.] EXECUTOKY SALES. 549

sey,^ the same rule is adopted, and in the case last cited, the
court states the rule to be that "whpre a contract is made
for an article not existing in soUdo, and when such article is
to be made according to order and as a thing distinguished
from the general business of the maker, then such contract is
in substance and effect not for a sale, but for work and mate-
rial." And in Wisconsin,^ the court, after a verj' full and able
review of the authorities, adopts this rule. In that case the
defendant, through his agent, ordered from the plaintiff, who
was a carriage maker, a carriage to be manufactured by the
plaintiff according to the description given and model
selected by such agent, the carriage to be completed about
May 1, 1879, and the cost not to exceed |900. The car-
riage was completed according to the model selected, and
ready for delivery at the time stated. The jury found spe-
cially the facts as stated supra, also that, in giving such order,
Louis Folk (the defendant's agent) intended to procure a car-
riage of the plaintiff's manufacture, and his skill, labor, and
workmanship on it were the special inducements for giving the
order, and that without such order such carriage would not
have been manufactured by the plaintiff and kept by him for
sale as a part of his general stock. The court held that the
contract was not within the statute.^

Sec. 302. The " Essence Rule." — In the other States, so far
as the question has been decided, the rule seems to be that
where the work, labor, and skill to he bestowed upon an article
is of the essence of the contract, that is, the inducement

1 Finney v. Apgar, 31 N. J. L. 270. must have regarded the circumstance

2 Meincke v. Falli, 55 Wis. 427 ; that the. buggy was marked with the
42 Am. Rep. 722. defendant's initials as sufficient to take

' The doctrine of this case, under the case out of the statute, or must
the special verdict, is much better have held that the simple fact that
sustained than tliat applied in God- the buggy was made in pursuance of
dard v. Binney, 115 Mass. 450. lu a, special order was sufficient for that
that case there was nothing beyond purpose, and in either view we are In-
the mere circumstance that the buggy clined to regard the doctrine as
was marked with the defendant's applied in that case not sustainable,
initials (which of itself was a trivial But in Meincke u. Falk, ante, the
matter, and could be readily changed special verdict covered not only every
at slight expense) to show that the requirement of the rule usually called
buggy was not in all respects such as the Massachusetts rule, but also the
the plaintiff was in the habit of mak- Maine rule, and is in all respects con-
ing, so that in order to arrive at their sistent with both, whereas the former
judgment under the rule, the court case is consistent with neither.

550 STATUTE OF FEATJDS. [CHAP. XI.

thereto, the contract is one for work and labor, and not of
sale, and not within the statute,-^ whether the article is or is
not such as is usually manufactured by the vendor, or kept
by him in stock. But, under this rule, as under all the others
referred to, the contract must he for the manufacture of an
article hy the vendor, or those in his employ, or under his super-
vision; and a contract for an article to he manufactured hy
another than the seller is a contract of sale, and within the
statute.^ It will be observed that this is substantially the
rule in all the States, and that whatever may be said by the
courts, the only ground upon which this class of contracts
can, with any show of reason, be excepted from the operation
of the statute is, that they are essentially contracts for the
labor and skill of the seller in making the article, rather than
for an article of the kind contracted for. That is, that the
labor and skill of the seller, combined with the materials is the
principal consideration which the purchaser had in view.^
The point of distinction is, that in the States where this, rule
prevails, the circumstance that the article is not in esse, but
is to be thereafter manufactured hy the seller, is conclusive
upon the question;* while in others* something more is re-

' Gorham v. Fisher, 30 Vt. 428 ; the statute has no application. Brown

Ellison V. Brigham, 38 id. 64 ; Phipps v. Allen, 35 Iowa, 306 ; Patridge v.

V. McFarlane, 3 Minn. 109; Bird v. Wilsey, 8 id. 459.

Muhlinbrink, 1 Rich. (S. C.) L. 199; 2 Millar v. Fitzgibhons, 9 Daly

Suter V. Pullin, 1 S. C. 273; Cason v. (N. Y. C. P.) 505; Cason v. Chesley,

Chesley, 6 Ga. 554; Eichelberger v. 6 Ga. 554; Hight i-. Ripley, 19 Me,

McCauley, 5 H. & J. (Md.) 213; 137 ; Edwards u. Grand Trunk E. R.

Eeutch V. Long, 27 Md. 188 ; Atwater Co., 48 Me. 379.

V. Hough, 29 Conn. 508; Allen .,. » pitkin v. Noyes, 48 K H. 94;

Jarvis, 20 id. 38. In Story on Sales, Edwards v. Grand Trunk E. E. Co.,

§ 260 c, it is said that, where the labor 48 Me. 379; Fickett v. Swift, 41 id,

and seryice are the essential consid- 68; Flint o. Corbitt, 6 Daly (N. Y.

erations, as in the case of the manu- C. P.) 429; Deal v. Maxwell, 51 N. Y.

f acturer of a thing not in esse, the 652 ; Parsons v, Loucks, 48 id. 17 ;

statute does not apply, but that where Cooke v. Millard, 65 N. Y. 352 ; O'Neil

the labor and services are only inci- v. N. Y. Mining Co., 3 Nev. 141.

dental to a subject-matter in esse, the * Millard v. Cooke, 65 N. Y. 352 ;

statute does apply. See also Clay v. Deal o. Maxwell, ante ; Gorham v.

Yates, ante. In Iowa, under the Fisher, ante ; Suter v. Pullin, 1 S. C.

peculiar provisions of the statute, in 273 ; Phipps v. McFarlane, 3 Minn,

all cases where the article sold is not 109 ; Atwater v. Hough, ante.

at the time owned by the vendor, and ^ Mixar v, Howorth, ante ; Goddard

ready for delivery, and labor, skill, v. Binney, ante; Apgar u. Finney,

or money is necessary to be expended ante ; Meincke v. Falk, ante.
in producing or procuring the same,

SEC. 302.] EXECUTORY SALES. 551

quired to warrant this irrebuttable presumption ; to wit, that
the article is to be, in some of its features, of a character not manu-
factured or kept by the seller as a part of his general stock. That
is, it must be a contract for the production of an article which, when
completed, as it then exists, would not have been manufactured in
that form, except for the special order given by the purchaser, and is
not adapted to the sellers general trade,^ and the rule applies as
well where the article is in part manufactured, but is finished
according to special directions given by the purchaser, as
where the article is to be wholly made.^ To attempt to
ascertain the principles upon which these rules rest would be
a useless task, as they are all of them without any apparent
foundation in reason, and merely expedients for evading the
statute. Indeed, the courts do not, . in any of the cases,
attempt to give any reason for the rule, beyond the circum-
stance that a similar doctrine had been held in some English
case. In Eichelberger v. McCauley,* the court simply say
that the rule has been too long settled to be changed. In
Spencer v. Cone,* the contract was for ten stave machines, at
$150, to be made by the plaintiff, and paid for by the defend-
ant on delivery. The opinion is per curiam, and simply
" the agreement was essentially a contract for work and labor
and materials, and not a contract of sale " ; and so through
all the cases the court seems satisfied to let the doctrine go
upon the ground of precedent, without attempting to give
any reason therefor, and often with an intimation that they
do not regard the rule favorably.^ In Cason v. Chesley,® the
court seem to proceed upon the most reasonable ground, con-
fining the application of the rule to that class of cases where
the article to be produced is of such a character as not to be
marketable, as a portrait, and articles of that character, for
which there is no sale ; and in such cases there is some pro-
priety in saying, as Nesbitt, J., does, in that case, that such
contracts are for work and labor, and that the work, labor, and
skill of the person employed is the prime consideration. In
such cases, the value of the article is limited to the immedi-
ate friends of the person whose portrait is painted, and even

' Meincke v. Ealk, ante. * Spencer v. Cone, 1 Met. (Mass.)

2 Mixer v. Ho worth, ante. 283.

' Eichelberger u. McCauley, 5 H. ^ Cooke r. Millard, ante.

& J. (Md.) 213. « Cason v. Chesley, 6 Ga. 554.

552 STATUTE OF FRAUDS. [CHAP. XI.

to them is dependent upon the skill of the painter. , Gene-
rally, there is no value whatever in the article produced
beyond the persons named, and to them the value is intrin-
sic ; and if the rule was narrowed down to this extent, and
held only to apply to cases where the article produced had
no marketable value, but was specially adapted for use by
the person ordering it, it might with some reason be said
that the contract was one for the work, labor, and skill of
the seller, rather than of sale. But no such restriction is
imposed, and in the case referred to, the statements of the
court are mere dieta, as the only pretence for taking the case
out of the statute was, that the cotton was to be gathered by
the seller, and prepared for market, a service which would
have been performed,' althouglj no contract for its sale had
been made. But the court suggested a rule, as stated supra,
which has a fail' support in reason, and is quite similar to
that adopted in Lee v. Griffin, although it would not have
been applied to defeat a recovery under the facts of that
case, but would defeat a recovery in most of the cases which
are now excepted from the operation of the statute. When
the courts say that a contract for a chattel, to be thereafter
manufactured, is a contract for the work, labor, and skill of
the seller, and not a contract of sale, the statement is nothing
more nor less than a legal fiction, and justifiable upon no
other ground than that it opens up a method of avoiding the
operation of the statute as to a class of contracts which are
clearly within the mischiefs sought to be avoided by it, and
are included in its letter and spirit. I do not say this with
any expectation that it will produce any change in the doc-
trine, because it is evident that the inconsistency of the
doctrine has often suggested itself to the courts ; ^ but, being
hampered by precedents, they do not feel justified in chang-
ing it ; but my purpose is merely to suggest legislative action,
with a view to relieve the courts from the inconsistent and
groundless rules which have grown up under this clause of
the statute.

1 See Cooke v. Millard, 63 N. Y. State has been so long settled the

859 ; 22 Am. Rep. 619, where the rule other way as to require legislation to

in Lee v. Griffin is recognized as the that end. Eichelberger v. MoCaulej,

true rule, but the court does not ante.
adopt it because the rule in that

SEC. 304.] BXECUTOEY SALES. 553

Sec. 303. Contracts to Procure and Deliver. — If a person
engages an article from a person, which is to be afterwards
manufactured by some person other than the seller, the con-
tract, as we have seen, is treated as one of sale. But the
question as to whether a contract to procure and deliver cer-
tain articles is a contract of sale or not, is one which has
been variously decided, and the solution of which must
largely depend upon the language of the contract itself. In
Cobold V. Caxton,^ the master of a vessel agreed to carry cer-
tain corn belonging to the plaintiff to a certain port, and
then go to another, and procure and fetch back a cargo of
coal, and deliver it to the plaintiff at the first port, at a cer-
tain sum per chaldron. The court held that this was not a
contract of sale, but simply a contract to procure and deliver
the coals. " It is clear," said Giffoed, C. J., " that if no
coals could be found at the port specified, the plaintiff could
not have maintained an action against the defendant for
goods bargained and sold, or for the breach of the contract
in not delivering them." In a New York case,^ the plaintiff
agreed to procure and deliver to the defendant a certain
quantity of hop roots, at a certain price per bushel, and it
was held to be a contract for the sale of goods, etc. So, in a
later case,^ a contract to supply the plaintiff with milk for
one year was held not to be within the statute. But in an
earlier case,* a contract for cider to he obtained by the seller
from farmers, and refined before delivery, was held to be a
contract of sale. In cases of this character, if the contract
contemplates the performance of certain services by the seller
in procuring the article, for which he is to be paid in such
profits as he can make by procuring the article at a less
price, the contract is fairly one for work and labor, rather
than of sale, and an action for work and labor and money
paid would lie, notwithstanding the statute.^

Sec. 304. when Property vests in the Vendee. — In cases
of this character, the contract being held to be for work,

1 Cobold V. Caxton, 8 Moo. 460. < Seymour v. Davis, 2 Sandf. (N. Y.)

2 Webster .-. Zeilley, 52 Barb. 239.

(N. Y.) 482. ' See Bird v. Muhlenbrink, 1 Rich.

8 Baumgarten v. Fowler, 19 Law (S. C.) L. 199; Crockett v. Scribner,

Rep. (N. Y.) 38. 64 Me. 447; Atwater u. Hough, 29

Conn. 508.

554 STATUTE OF FRAUDS. [CHAP. XI,

labor, and materials, neither acceptance nor receipt on the
part of the vendee is necessary to vest the property in him ; ^
but when the article is finished, and the vendee is notified
thereof, or some equivalent act is done, the seller is entitled
to the price, and may sue for and recover it, although the
article has not in fact been delivered to the vendee,^ even
though no price is specified, or time fixed for its completion,^
and the seller's lien thereon for the price has not been waived,*
or even though after such notice the article is destroyed by
fire or other casualty, so that delivery becomes impossible.^
In such cases the only question is, had the seller completed
the work when the loss occurred?® In the ease last cited,
the plaintiff had printed some books for the defendant, which
were destroyed by fire while they were in the printer's pos-
session, and the question was submitted to the jury to find
whether the printer had completed the work before the fire
occurred; and they having fouild that he had not, the defend-
ant had the verdict. In Hunter v. Murray,'^ the plaintiff
made some circus tents for the defendant, and completed
them in all respects according to the order, and while they
were in transit to the defendant, they were destroyed by fire.
The tents were sent with a bill of lading, which required
payment to be made for the tents before delivery to the
defendant. The court held that the plaintiff was entitled to
recover the value of the tents of the defendant.^ But until

1 Goddard v. Binney, 115 Mass. ° Adlard v. Booth, ante.
450 ; Higgins v. Murray, 4 Hun (N. Y.) ' Hunter v. Murray, ante.

565; Muckey v. Howenstine, 3 N. Y. ^ Daniels, J., said: "The- agree-

Superior Ct. 28. ment for the manufacture of the tent

2 Crookshank v. Burrill, 18 John, not being within the statute of frauds,
(N. Y.) 58; Mixer v. Howorth, 21 it was valid -and binding on the par-
Pick. (Mass.) 205; Forsyth v. Dick- ties althougli no note or memorandum
son, Grant (Penn.) Cas. 26 ; Schneider was made of it in writing, and conse-
V. Westerman, 25 111. 514; Comfort quently bound the defendant to re-
V. Kierstead, 26 Barb. (N. Y.) 472; ceive and pay for the tent. When it
Pettingill v. Merrill, 47 Me. 109 ; West was completed and he had notice of
Jersey &c. R. R. Co. v. Trenton &c. that fact, the plaintiff's right accrued
R. R. Co., 22 N. J. L. 517. for the recovery of the price, and

' Mixer v. Howorth, ante; Crook- from that time the property was at

shank v. Burrell, ante. the risk of the defendant. That re-

* Hunter v. Murray, 4 Hun (N.Y.) suited from the fact that the contract

565. was valid and had been fully per-

' Goddard v. Binney, ante ; Adlard formed by the plaintiff. What he

V. Booth, 7 C. & P. 108 ; Hunter v. afterward retained was simply a lien

Murray, ante. for the price, which was not incon-

SEC. 304.]

EXECUTORY SALES.

555

notice of completion is given, the property and the conse-
quent risk remains in the maker,^ except possibly where a
time for its completion is specially agreed upon, and it is
completed accordingly.

slstent with its recovery by action.
And all that he did by eliippiug it,
subject to the payment of the price,
was to retain and preserve that lien
as his security upon the property.
By the fair import of the agreement,
delivery and payment were to be
simultaneous acts, and that was all
which the bill of lading secured.
The defendant could have his prop-
erty by making that payment. And
the plaintiff had the right to maintain
his possession until such payment
should be made, as long as no credit
was to be given by the agreement.

At common law, a mere agreement
to sell specified articles of personal
property at once, and without deliv-
ery of actual possessionj vested the
title in the vendee, and the right to
the price in the vendor; but the
former could not take the goods with-
out either payment or tender of the
price. This principle is quite analo-
gous to the one which governs the
rights and liabilities of the parties
under a contract for the manufacture
of a specified article. As soon as the
article has been completed and notice
given to the other party of that fact,
the latter becomes obligated to take
it and pay the price for it. If he

does not do so, a right of action ac-
crues to the manufacturer for the re-
covery of the amount due to him.
And that right cannot be lost by
sending it according to the direction
of the person for whom it has been
made, merely by subjecting it to the
payment which the manufacturer may
insist shall be made before the prop-
erty passes beyond his control.

The shipment in the manner it was
made, was no more than a continuance
of the previous relations existing be-
tween the parties. The plaintiff held
the possession of the property as the
bailee of the defendant, to be deliv-
ered over to him whenever the price
was paid. And in securing the preser-
vation of that right, while he complied
with the defendant's directions to send
it to him, he did nothing more than
he was entitled to insist upon. The
property has been subject to the defend-
ant's risk from the time he had notice
of its completion, and that was not
transferred to the plaintiff by ship-
ping it, as he did conformably to the
defendant's directions and his own
lien for the price of it." See also
Goddard v. Binney, ante.

1 Baker v. Bourcicault, 1 Daly
(N. Y. C. P.) 23.

CHAPTER XII.

ACCEPTANCE AND RECEIPT.

SECTIOIf.

305. Acceptance and Keceipt must be Shown.

306. Acceptance may be before Receipt.

307. After Action Brouglit.

308. Test of.

309. Acceptance of Sample Amounts to, When.

310. When not.

311. Constructive Acceptance, etc.. What is.

312. Must be Acta of Acceptance.

313. Acts of Ownership Amounting to.

314. Need not be Express Acceptance.

315. Instances of Constructive Acceptance, etc.

316. Using Goods as Owner.

317. Morton v. Tibbetts.

318. Taylor v. Mueller.

319. Marking Goods in Name of Vendee.

320. Acceptance of One of Several Articles is Acceptance of All, When.

321. When not.

322. Goods not Made.

323. Goods Sold by Principal, as if Agent.

324. Mixed Contract.

325. "Vendee must have Opportunity to Judge Whether Goods Correspond

with Order.

326. User or Experiments to Ascertain Quality.

327. Goods Need not be Eeturned.

328. Delay in Rejecting, May be Evidence of Acceptance.

329. Acceptance Cannot be Withdrawn.

330. Acceptance by Agents. Eule in Eodgers v. Jones.

331. Carriers have no Authority to Accept.

332. Disputed Terms, Though Acceptance.

333. What is an Actual Receipt.

334. Special Lien or Interest.

335. Goods in Possession of Vendee at Time of Sale.

336. Goods in Hands of Third Person.

387. Receipt by Acceptance of Delivery Order, etc.

338. Possession Taken by Vendee.

339. Symbolical Delivery. What is. When Valid.

340. Delivery to Carrier may be Delivery to Vendee.

341. Executory Contract Partly Executed.

SEC. 305.] ACCEPTANCE AND RECEIPT. 557

Section 305. Acceptance and Receipt Must be Shown. —
The statute 29, Car. 2, provides that no contract for the sale
of goods, etc., shall be allowed to be good, unless the buyer
shall accept part of the goods so sold, and actually receive the
same, or etc., and this is the language generally used in the
statute of the several States of this country. Thus it will be
seen that acceptance without receipt or receipt without accept-
ance is not sufficient, but, where this is the ground upon which
a contract of sale is to be taken out of the statute, both must
be shown to exist. That is, neither an acceptance without
receipt of the goods, nor a receipt without an acceptance
thereof, will satisfy the statute.^ Mk. BiyACKBUEN, in his
work on Sales,^ says: "If we seek for the meaning of the
enactment, judging merely from its words, and without refer-
ence to decisions, it seems that this provision is not com-
plied with unless the two things concur: the buyer must
accept, and he must- actually receive part of the goods ; and
the contract will not be good unless he does both. And this
is to be borne in mind, for as there may be an actual receipt
without any acceptance, so may there be an acceptance with-
out any receipt.^ In the absence of authority, and judging
merely from the ordinary meaning of language, one would
say that an acceptance of part of the goods is an assent by
the buyer, meant to be final, that this part of the goods is to
be taken by him as his property under the contract, and as so
far satisfying the contract. So long as the buyer can, with-
out self-contradiction, declare that the goods are not to be
taken in fulfilment of the contract, he has not accepted them.

1 Blackburn on Sales, 22, 23. But Jordan, 39 Md. 472 ; Maxwell v
in Indiana the statute makes a receipt Brown, 39 Sle. 101 ; Edward r. Grand
of the property sufficient ; so also in Trunk E. R. Co., 54 Me. Ill ; Denny
Mississippi. In California, Dakota, v. Williams, 5 Allen (Mass.) 3; John-
Montana, Nevada, and Utah the stat- son v. Cuttle, 105 Mass. 449 ; Prescott
ute makes either an acceptance or v. Locke, 51 N. H. 94; Boardman t.
receipt of a part of the goods suffi- Spooner, 13 Allen (Mass.) 357 ; Rem-
cient. In Iowa the contract isinoper- ick v. Sandford, 120 Mass. 309; Dole
atlve unless a part of the property is v. Stimpson, 21 Pick. (Mass.) 384;
delivered or a part of the price paid, see Ross v. Welch, 11 Gray (Mass.)
In all the other States acceptance and 235 ; SafEord u. McDonough, 120
receipt is required. The fact that the Mass. 211.
property has been delivered is not ^ Blackburn on Sales, 22.
enough, but an acceptance and receipt ' Foster, J., in Prescott v. Locke,
6y the purchaser must be shown. Gibbs 61 N. H. 94.
V. Benjamin, 46 Vt. 124; Hewes v.

558 STATUTE OP FKAITDS. [CHAP. XII.

And it is immaterial whether his refusal to take the goods be
reasonable or not. If he refuses the goods, assigning grounds
false or frivolous, or assigning no reasons at all, it is still clear
that he does not accept the goods, and the question is not
whether he ought to accept, but whether he has accepted
them.^ The question of acceptance or not is a question' as
to what was the intention of the buyer as signified by his
outward acts.

Tlie receipt of part of the goods is the taking possession of them.
When the seller gives to the buyer the actual control of the goods, and
the buyer accepts such control, he has actually received them. Such
a receipt is often evidence of an acceptance, but it is not the
same thing; indeed, the receipt by the buyer may be, and
often is, for the express purpose of seeing whether he will
accept or not. If goods of a particular description are
ordered to be sent by a carrier, the buyer must in every case
receive the package to see whetheir it answers his order or
not ; it may even be reasonable to try part of the goods by
using them ; but though this is a very actual receipt, it is no
acceptance so long as the buyer can consistently object to the
goods as not answering his order. It follows from this that
a receipt of goods by a carrier or on board ship, though a
sufficient delivery to the purchaser, is not an acceptance hy
him so as to bind the contract, for the carrier, if he be an
agent to receivp, is clearly not one to accept the goods.^

On the whole the cases are pretty consistent with these
suggestions, and with each other, as to what forms an accept-
ance within the statute, though not as to the strength of the
proof required to establish it. On the question of what con-
stitutes an actual receipt there is some difficulty in reconciling
the cases, which will be considered hereafter."

1 Redfield, J., in Gibbs v. Benjar nated by him is a receipt by him.

min, 45 Vt. 124 ; Hill v. Heller, 27 Cross v. O'Donnell, 44 N. Y. 661 ; 4

Hun (N. Y.) 416 ; Knight .,. Mann, Am. Rep. 721 ; Spencer v. Hale, 30

118 Mass. 143. Vt. 314 ; Cutwater v. Dodge, 6 Wend.

2 Rodgers v. Jones, 129 Mass. 420
Atherton v. Newhall, 123 Mass. 141
Rodgers v. Phillips, 40 N. Y. 519
Caulkins i>. Hellman, 47 N. Y. 449

(N. Y.) 897; Maxwell v. Brown, 39
Me. 98; People v. Haynes, 14 Wend.
(N. Y.) 546; Glen v. Whitaker, 51
Barb. (N. Y.) 451; Hanson v. Armi-

Frostburgh Mining Co. v. N. E. Glass tage, 5 B. & Aid. 657 ; Morton v. Tib-
Co., 9 Cush. (Mass.) 115. But when bets, 15 Q. B. 441 ; Coats u. Chaplin,
there has been an acceptance by the 3 B. & C. 483 ; Acebal v. Levi, 10
vendee, a deliyery to a carriOT desig- Bing. 876.

SEC. 306.]

ACCEPTANCE AND RECEIPT.

659

Sec 306. Acceptance may be before Receipt. — It is not
necessary that the acceptance of the goods should follow or
even be contemporaneous with the receipt of them,i and an

' It is sufficient if they take place
within a reasonable time of each other.
Van Woert <•. Albany &c. R. E. Co.,
67 N. Y. 538; McKnight v. Dunlop, 6
id. 537 ; Vincent v. Gerraond, 11 John.
(N. Y.) 283; Sprague v. Blake, 20
"Wend. (N. Y.) 61 ; Sale o. Darrah, 2
Hilt. (N. Y. C. P.) 184; Chapin .,.
Potter, 1 id. 366. In Buckingham v.
Osborn, 4i Conn. 133, Parke, C. J.,
says : " Where a contract of sale of
personal property is inoperatiye under
the statute of frauds for want of de-
liyery, a tender made afterwards and
an unconditional acceptance have the
same effect between the parties as if the
delivery had been made at the time of the
sale." Bush v. Holmes, 53 Me. 417 ;
Phillips V. Ocmulgee Mills, 55 Ga.
633; Danforth v. Walker, 37 Vt. 239;
Richardson i>. Squires, 37 id. 640 ;
Amson ;'. Dreber, 35 Wis. 615 ; Pink-
ham V. Mattox, 53 N. H. 604 ; McCar-
thy u. Knapp, 14 Minn. 127. In
Hewes v. Jordan, 39 Md. 484, Al-
VEY, J., says: "The act of accept-
ance is not confined to any particular
order of time in reference to the actual
receipt of the goods. On the contrary,
acceptance may precede, as in cases
where the vendee has inspected and ap-
proved the specific goods purchased, as
well as be contemporaneous with or
subsequent to the actual receipt of
the goods." Davis v. Moore, 13 Me.
424; Thompson v. Alger, 12 Met.
(Mass.) 435; Damon i. Osborn, 1
Pick. (Mass.) 480; Morse v. Chis-
holm, 7 U. C. C. P. 131.

In Marsh v. Hyde, 3 Gray (Mass.)
331, BiGELOw, J., in commenting upon
the time when acceptance might be
made, said : " There is nothing in the
statute which fixes or limits the time
within which a purchaser is to accept
and receive part of the goods sold, or
give something in earnest to bind the
bargain, or in part payment. It would
fully satisfy its terms if the delivery
or part payment were made in pursu-

ance of a contract previously entered
into. . . . The great purpose of the
enactments, commonly known as the
statute of frauds, is to guard against
the commission of perjury in the
proof of certain contracts. This is
effected by providing that mere parol
proof of such contracts shall be in-
sufficient to establish them in a court
of justice. In regard to contracts for
sales of goods, one mode of proof
which the statute adopts to secure
this object is the delivery of part of
the goods sold. But this provision
does not effectually prevent the com-
mission of perjury ; it only renders it
less probable, by rendering proof in
support of the contract more difiicult.
So in regard to other provisions of
the same statute ; perjury is not en-
tirely prevented by them ; the hand-
writing of the party to be charged, or
the agency of the person acting in his
behalf, may still be proved by the
testimony of witnesses who swear
falsely. Absolute prevention of per-
jury is not possible. In carrying this
great purpose of the statute into prac-
tical operation, it can add no security
against the danger of perjury, that
the act, proof of which is necessary
to render a contract operative, is not
contemporaneous with the verbal
agreement. A memorandum in writ-
ing will be as effectual against per-
jury, although signed subsequently to
the making of a verbal contract, as if
it had been executed at the moment
when the parties consummated their
agreement by word of mouth. So
proof of the delivery of goods, in pur-
suance of an agreement for their sale
previously made, will be as efficacious
to secure parties against false swear-
ing as if the delivery had accom-
panied the verbal contract. It is the
fact of delivery under and in pursu-
ance of an agreement of sale, not the
time when the delivery is made, 1hat
the statute renders essential to the

560 , STATUTE OP FEATJDS. [CHAP. XII.

acceptance prior to their receipt will he sufficient wJiere it applies to
the specific articles received, and nothing remains to he done except
to deliver the articles. This qxiestion was raised in an English
case,i in which the defendant verbally agreed to buy some
sheep which he selected from the plaintiff's flock, and di-
rected them to be sent to a field of his, which was. accord-
ingly done. Two days afterwards he sent his man to remove
the sheep from the field to his farm, which was some miles
distant, and on their arrival he counted them over and said,
"It is all right." The court considered that it was not neces-
sary to decide whether there could be an acceptance before
receipt, but held that there was evidence for the jury of
acceptance by the defendant of the sheep. But in a later
English case,^ it appeared that the defendant went with one
of the plaintiffs to the cellar of the firm, where he was shown
a lot of 156 firkins of butter, six of which he opened and
inspected. Afterwards, on the same day, the defendant
agreed to buy that specific lot. The plaintiffs, by the direc-
tions of the defendant's agent, forwarded the butter by car-
rier to an address given. It was held that there was nothing in
the statute to imply an intention that an acceptance prior to the re-
ceipt would not suffice. BLACKBtTRN, J., in delivering the judg-

prool of a valid contract. It is to be and acceptance, whenever they took

borne in mind that, in all cases where place, were in persuance of a previous

there is no memorandum or note in agreement. If the verbal contract is

writing of the bargain, the verbal proved, and a delivery in pursuance

agreement of the parties must be of it is shown, the requisites of the

proved. The statute does not pro- statute are fulfilled." Townsend v.

hibit verbal contracts. On the con- Hargraves, 118 Mass. 336; also. Sale

trary, it presupposes that the terms v. Darragh, 2 Hilt. (N. Y. C. P.) 184;

of the contract rest in parol proof, Chapin i-. Potter, 1 Hilt. (N. Y. C. P.)

and only requires, in addition to the 366 ; Walker v. Nussey, 16 Mees. &

proof of such verbal agreement, evi- W. 302 ; Field v. Eunk, 22 N. J. L.

dence of a delivery or part payment 525; McKnight v. Dunlop, 5 N.Y.

under it. It does not, therefore, 537; Davis v. Moore, 13 Me. 424;

change the nature of the evidence to Sprague v. Blake, 20 Wend. (N. Y.)

be offered in support of the contract. 61 ; Buckingham v. Osborne, 44 Conn.

It merely renders it necessary for the 133. See Whitwell v. Wyer, 11 Mass.

party claiming under it to show an 6; Damon u. Osborne, 1 Pick. (Mass.)

additional fact in order to make it 476.

'good and valid.' ... In all cases i Saunders t. Topp, 4 Exchq. 390;

like the present, a single inquiry oper- Hewes v. Jordan, 39 Md, 472 ; 17 Am.

ates as a test by which to ascertain Eep. 478.

whether a contract is binding upon ^ Cusack u. Eobinson, 1 B. & S.

the parties under the statute of 209.
frauds. It is whether the delivery

SEC. 306.]

ACCEPTANCE AND RECEIPT.

561

ment of the court, distinguished the case from Nicholson v.
Bower,! where 141 quarters of wheat, sent by railway, ad-
dressed to the vendees, arrived at their destination, and were
there warehoused by the company under circumstances that
might have been held to put an end to the unpaid vendors'
rights, saying: " Tlie contract was not originally a sale of specific
wheat, and the vendees had never agreed to take those particular
quarters of wheat; on the contrary, it was shown to be usual,
before accepting them warehoused, to compare a sample of
the wheat with the sample by which it was sold; and it
appeared that the vendees, knowing they were in embar-
rassed circumstances, purposely abstained from accepting
the goods." 2 But in order that an acceptance prior to the
receipt of the goods shall be good, the goods must be ascer-
tained and identified, and it is not enough that there is a con-
tract for unascertained goods to answer a particular description.
The vendee must have had an opportunity to examine all the goods,
so that no right of rejection remains.^ WlLLES, J., in the case

1 Nicholson o. Bower, 1 E. & E.
172.

2 See Bog Lead Mining Co. v.
Montague, 10 C. B. N. S. 481, where
the doctrine of this case was a£Srmed.

' Bog Lead Mining Co. i: Mon-
tague, 10 C. B. N. S. 481 ; Knight v.
Mann, 118 Mass. 143; Lloyd v. Wright,
25 Ga. 215. In Heermance v. Taylor,
14 Hun (N. T.) 149, an action was
brought to recover the agreed price
of a quantity of butter alleged to have
been sold by the plaintiff to the de-
fendant. The price of the butter ex-
ceeded fifty dollars, and the contract
was not reduced to writing. At the
close of the evidence the court dis-
missed the complaint on the ground
that there was no proof of the accept-
ance of the butter by the defendant.
The plaintiff and the defendant went
into the cellar of the store in the city
of New York, where several firkins of
butter were bored into and examined
by the parties, after which the defend-
ant said he would take, at the price
named (which was twenty-three cents
per pound), twenty firkins out of the
lot of forty from which the firkins ex-
amined had been taken, and directed

them to be sent as above stated. The
firkins actually examined, and enough
more to make up twenty, were taken
from the lot of forty and delivered to
the carman, who delivered them to the
boat of the Peoyle's Line. The Peo-
ple's Line delivered them to the car-
man in Albany, who carried them to
the defendant's store. They were re-
ceived and placed in the defendant's
cellar in a pile by themselves. The
defendant was still absent in the city
of New York, and returned home two
or three days thereafter; and on the
morning following his return, having
an application for the purchase of
butter, took his customer down to the
cellar and showed him this lot, and
bored into one of the firkins ; but on
examination said, "This will not suit,"
and went to another lot of buttet in
the cellar, from which he made a sale,
and then and within half an hour
thereafter shipped the butter back to
the plaintiff at New York, notifying
him in substance that he should not
accept it because it was not the butter
he had purchased. The court at
General Term said : " It is well set-
tled by authority that a more delivery

662

STATUTE OP FRAUDS.

[chap. XII.

first cited in the last note, says: "It may be that in the case
of unascertained property to answer a particular description, no
acceptance can properly be said to take place before the purchaser
has had an opportunity of rejection.^ In such a case the offer to
purchase is subject not only to the assent or dissent of the
seller, but also to the condition that the property to be deliv-
ered to him shall answer the particular description. A right
of inspection to ascertain whether such condition has been
complied with is in the contemplation of both parties to such
a contract ; and no complete arid final acceptance, so as irrevocably
to vest the property in the buyer, can take place before he has exer-
cised or ivaived tliat right.^ In order to constitute such a final
and complete acceptance, the assent of the buyer should fol-
low and not precede that of the seller. But where the con-
tract is for a specific ascertained chattel, the reasoning is
altogether different. Equally where the offer to sell and
deliver has been first made by the seller and afterwards
assented to by the buyer, and where the offer to buy and

is not sufficient to take the case out of
the statute of frauds. The delivery,
therefore, to the carman, and to the
carrier, and by the carrier to the
carman at Albany, and by him at the
store of the defendant, do not in
themselves amount to the acceptance
required by law. In Stone o. Brown-
ing, 51 N. Y. 211, when first before
the Court of Appeals, it was held that
' It is not enough that the goods were
delivered to the purchasers ; they must
also have accepted them. A delivery
of property, to satisfy the requirement
of the statute of frauds, must be a
delivery by the vendor with the intent
of vesting the right of possession in
the vendee, and there must be an
actual acceptance by the latter, with
the intention of taking possession as
owner.' That case was again before
the Court of Appeals, and a new trial
was granted, although the jury had
found as a question of fact that there
had been an acceptance. It was held
that ' it was necessari/ that the defendant
should have made the examination and
pronounced the goods satisfactory, or that
they should have dealt with them, or done
some unequivocal act, showing that they

intended to accept them unconditionally
as their own property,' in order to supply
the place of a written contract. Per-
formance by plaintiffs of their part of
the contract was not enough. Stone
V. Browning, 51 N. Y. 211 ; Caulkins
V. Hellman, 47 id. 449. Evidence that
the goods were as represented, and cor-
responded with the samples, was not
material upon the question of accept-
ance. It was immaterial whether the
defendant's refusal to take the goods
was reasonable or not." It will be
observed that this case differs from
Cusack V. Robinson in the circum-
stance that the specific property had
not been identified.

1 In Shepherd v. Pressley, 32 N. H.
55, Bell, J., says : " There is no ac-
ceptance unless the purchaser has exer-
cised his option to receive the goods sold
or not, or has done something to de-
prive him of this option." See also
Clark V. Tucker, 2 Sandf . (N. Y.) 157 ;
Gilman v. Hill, 36 N. H. 311 ; Belt v.
Marriott, 9 Gill. (Md.) 831 ; Messer v.
Woodman, 22 N. H. 181 ; Gorham v.
Fisher, 30 Vt. 428.

" Cusack V. Robinson, 1 B. & S.
299.

SEC. 306.] ACCEPTANCE AND BBCEIPT. 563

accept has been first made by the buyer and afterwards
assented to by the seller, the contract is complete by the
consent of both parties, and it is a contract the expression of
which testifies that the seller has agreed to sell and the buyer
to buy and accept the chattel ; and, indeed, it has been ex-
pressly decided that in the latter case the statute of frauds
may be satisfied by an acceptance preceding the delivery."
In Kershaw v. Ogden,^ the defendants purchased four specific
stacks of cotton waste at a certain sum per pound, and agreed
to send their own packer, sacks, and cart to remove it. The
packer and eightj'-one sacks were sent, and he, with the aid
of the plaintiff's men, packed the four stacks into the sacks
sent. Two days afterwards, twenty-one of the sacks were
weighed and sent to the defendant's premises, and were re-
turned the same day by the defendant, who objected to the
quality. The rest of the sacks wei-e not weighed. The cart,
loaded with the waste returned, was left at the plaintiff's
warehouse, and he put the waste into the warehouse to prevent
its spoiling. In an action for not accepting, and for goods
bargained and sold, and goods sold and delivered, that the
plaintiff was entitled to recover. Pollock, C. J., saying:
"The property in the four stacks (under the facts found)
became the property of the buyers, and the plaintiff became
entitled to an action for the price in an action for goods bar-
gained and sold." ^ The rule that there can he no acceptance
and actual receipt of goods unless the vendee has an opportunity of
judging whether the goods correspond with the order, is illustrated
by an English case ^ in which the plaintiff agreed to purchase
bones- of a particular kind, to be separated from a heap of various
bones of oxen, cows, and other inferior bones, and gave to the
plaintiff a note addressed to a wharfinger, to receive and ship
the bones. The plaintiff sent fifty bags of the bones to the
wharf, which the wharfinger received, but the defendant was
not aware that they had been sent until the next day, when
the invoice was received. The defendant then examined the
bones, and refused to accept them on the ground that they

1 Kershaw v. Ogden, 3 H. & C. 717. of those weighed, and upon this ground

2 The plaintiffs in this case were the case is distinguishable from Sim-
excused from weighing the balance of mens v. Swift, 5 B. & C. 857.

the sacks by the refusal of the de- ' Hunt v. Hecht, 8 Exchq. 814.
f endants to receive ant/, and the return

564 STATUTE OF FEAUDS. [CHAP. XII.

were not what he bargained for. In an action for goods sold
and delivered, it was objected on the part of the defendant
that there was no evidence of an acceptance and receipt, and
Martin, B., being of that opinion, non-suited the plaintiff,
and upon a hearings in Exchequer the non-suit was sustained.
Pollock, C. B., said: "I am of opinion that there was no
evidence of an acceptance and receipt to satisfy the requi-
sites of the statute. All that the defendant agreed to buy-
was a quantity of bones of a particular description, to be
separated from others in the heap. He afterwards sent to
the plaintiff a note addressed to a wharfinger, authorizing the
latter to receive and ship the bones; but when the defendant
saw them at the wharf, he found that they did not corre-
spond with his order, and refused to accept them. There-
fore, although there was a receipt of the goods by a person
who had authority from the defendant to receive them, there
was no acceptance. A person cannot accept a commodity
which is not in a condition to be accepted, by reason of its
requiring to be separated from a larger bulk. If the con-
tract be for the purchase of a certain quantity of flour or
wheat, part of a larger quantity, there can be no acceptance
until it is measured and set apart. It seems to me that the
requisites of the statute have not been complied with, and
the rule must be discharged." Aldeeson, B., said : " I am
of the same opinion. If a person agrees to buy a quantity
of goods to be taken from the bulk, he does not purchase
the particular part bargained for until it is separated from
the rest; and he cannot be said to accept that which he
knows nothing of, otherwise it would make him the acceptor
of whatever the vendor chose to send him, whereas he has
a right to see whether in his judgment the goods sent corre-
spond with the order. The statute requires an acceptance
and actual receipt of the goods ; here there has been a de-
livery, but no acceptance." Platt, B., said: "I am of the
same opinion. Until a separation took place, the thing bar-
gained for was incapable of being accepted." Martin, B.,
said : " The question is, whether the defendant has accepted
and actually received the goods bargained for. The contract
was to buy such bones as were ordinary merchantable bones.
It appears that there were various sorts of bones intermixed

SBC. 306.] ACCEPTAKCB AND EECEIPT. 665

in a heap, and that there was no purchase of the bulk, but of
a certain article to be selected from it. The defendant was
only bound to accept merchantable bones ; and an order is
given to a wharfinger to receive those bones. No doubt in
one sense the goods were received by the defendant, because
they were received by a wharfinger directed by him to re-
ceive them. But the question is, whether there has been an
acceptance to satisfy the statute. There are various authori-
ties to show that, for the purpose of an acceptance within the
statute, the vendee must have had the opportunity of exer-
cising his judgment with respect to the article sent. Morton
V. Tibbett has been cited as an authority to the contrary ;
but, in reality, that case decides no more than this, that
where the purchaser of goods takes upon himself to exercise
a dominion over them, and deals with them in a manner in-
consistent with the right of property being in the vendor,
that is evidence to justify the jury in finding that the vendee
has accepted the goods, and actually received the same. The
court indeed there say, that there may be an acceptance and
receipt within the statute, although the vendee has had no
opportunity of examining the goods, and although he has
done nothing to preclude himself from objecting that they
do not correspond with the contract. But, in my opinion,
an acceptance, to satisfy the statute, nrvust he something more than a
mere receipt; it means some act done after the vendee has exercised,
or had the means of exercising, his right of rejection."

In a carefully considered American case ^ this doctrine is
well illustrated. In that case, the defendent went to the
plaintiff's store to purchase some rough calf-skins. The
plaintiff had a large quantity of them in stock, and the de-
fendant, after examining thirty or forty skins, entered into a
verbal agreement for the purchase of six hundred and thirty-
nine of them,_at a certain price per pound, which he directed
the plaintiff to count oiit, weigh, and set apart for him, but
did not himself afterwards see. The sale was on time, and
the defendant was to send for the skins and take them away.
In the defendant's absence the plaintiff counted out and set
apart the number of skins, corresponding in quality and value
to those seen by the defendant, and, according to a usage of

1 Knight V. Mann, 118 Mass. 143; S. C, 120 id. 219.

566 STATUTE OF FRAUDS. [CHAP. XII.

the trade, selected one in twenty as " trials," the weight of

which, before and after exposure to the air, determined the

percentage of shrinkage to be deducted from the gross

weights, and thus fixed the number of pounds to be paid

for by the defendant. The defendant afterwards called at

the plaintiff's store, and asked if the skins he had bought

were ready, to which the plaintiff replied,," Yes, all except

weighing the trials " ; and the defendant said he would send

for them immediately. The plaintiff weighed the trials

and placed all the skins in the doorway of his store, ready to

be taken awaj' by the defendant, who returned later in the

day for a biU of the skins, which was given him, and he was

then told that they were all ready for him. The plaintiff did

all that was required of him by the contract. The skins were

not sent for, and were destroyed by fire the following night.

It was held, reversing the judgment below, that there was not

an acceptance within the statute, and that the court below

was not warranted in finding that the plaintiffs held the skins

as bailee for the defendant, Endioott, J., very clearly stating

the grounds upon which the reversal was based. He said :

" In this case, the contract was not for the purchase of a spedfic,

ascertained chattel, which the buyer injected and examined at the

time of the agreement, but for skins to be selected by the seller from

a larger number of similar skins lying in bales, and to be set

aside, and sent for by the buyer. In such case there can be

no acceptance before the goods are delivered, and the buyer

has had an opportunity to examine them." ^ In a New York

case,^ the defendant went into the plaintiffs' store and selected

four chandeliers, and agreed to pay for them on delivery. The

chandeliers were delivered, but not paid for, the defendant at

1 He cited in support of this prop- Hill, 3 N. H. 382 ; Gllman v. Hill, 36
osition Cusack v. Robinson, 1 B. & S. N. H. 311 ; Fuller v. Bean, 34 id. 290 ;
299; Bog Lead Mining Co. ^. Mon- Eapelyw. Maekle, 6 Cow. (N. Y.) 250;
tague, 10 C. B. N. S. 480; Coombs v. Beller „. Black, 19 Ark. 566; Cun-
Bristol & Exeter Railway, 3 H. & N. ningham o. Ashbrook, 20 Mo. 553 ;
510. See also supporting the proposi- Moffat v. Green, 9 Ind. 198 ; Martin
tion that if there is anything remain- v. Hurlburt, 9 Minn. 142 ; Stone v.
ing to be done to identify the goods. Peacock, 35 Me. 385 ; Haudlette v.
or the quantity, or price, the title Tallman, 14 Me. 400; Stone v. Pea-
does not vest in the purchaser until cock, 35 id. 285 ; Riddle v. Varnum,
such things are done. Hudson c. 20 Pick. (Mass.) 280; Davone v. Fin-
Wier, 22 Ala. 294 ; Lester v. McDow- nell, 2 Ired. (N. C.) L. 36.
ell, 18 Penn. St. 91 ; Andrews v. Die- 2 United States Reflector Co. v.
trlch, 14 Wend. (N. Y.) 31 ; Davis v. Rushton, 7 Daly (N. Y. C. P.) 410.

SEC. 306.] ACCEPTANCE AND RECEII>T. 567

the time making no objection. The court held that accept-
ance must be presumed. Daly, C. J., said : " If a man goes
into a store and selects a particular article of household fur-
niture, at a certain price, which he agrees to pay for on deliv-
ery, and the proof is that that particular article was delivered,
it is, in the absence of any objection on his part, to be assumed
that there was both a delivery and acceptance of the article,
within the meaning of the statute." If the article contracted
for is not complete, although the vendee has inspected and approved
it, and even has furnished some of the materials for it, yet, his right
of rejection still remaining, his acts do not operate as an acceptance,
although they tvould have liad that effect if the article had been com-
plete. Thus, in an English case,i in an action for goods sold
and delivered, it was proved that the defendant ordered a
wagon to be made for him by the plaintiff, and during the
progress of the work furnished the iroro^ork and sent it to
the plaintiff, and sent a man to help the plaintiff in fitting the
iron to the wagon, and afterwards bought a tilt and sent it
to the plaintiff to be put on the wagon. It was insisted by
the plaintiff that the defendant had thereby exercised such
dominion over the goods sold as amounted to an acceptance.
The plaintiff was non-suited, and the non-suit was sustained,
upon the ground that the acts of the defendant had not been
done after the wagon was finished, and capable of delivery, but
merely while it was in progress ; so that it still remained in
the plaintiff's yard for further work till it was finished. "-5^,"
said TiNDAL, C. J., " the wagon had been completed and ready for
delivery, and the defendant had then sent a workman of his own to
perform any additional work upon it, such contract on the part
of the defendant might have amounted to an acceptance." ^
In all cases where anything remains to be done to the property by the
vendor before it is ready for delivery, the title does not pass ; *

1 Maberly v. Sheppard, 10 Bing. Wend. (N. Y.) 135; Eussell «. NicoU,
99. 3 Wend. (N. Y.) 112. A sale of goods

2 See Wegg v. Drake, 16 U. C. Q. " to arrive," even though paid for,
B. 252. In Halterline v. Rice, 62 does not pass the title until they actu-
Barb. (N. Y.) 593, it was held that the ally arrive: Russell ■/. NicoU, ante;
purchase of an article before it is com- Fay v. Smith, 3 Daly (N. Y. C. P.)
pleted, and a payment of the price, does 186. But if the contract is otherwise
not pass the title until delivery. executed, the fact that the vendor is

» Evans v. Harris, 19 Barb. (N. Y.) to deliver the property at a certain
416 ; McDowell v. Hewett, 15 John, place aoes not prevent the title pass-
(N. Y.) 349; Johnson v. Hunt, 11 tag. Terry w. Wheeler, 25 N. Y. 520.

568 STATUTE OF FRAUDS. [CHAP. Xn.

and this is the case where the article is complete, but has not
been identified, being a part of a number of similar articles,
to be selected by the vendor ; ^ or where something remains
to be done by the parties for the purpose of ascertaining the
quantity or price.^ But if the goods are identified, and are sold
at a designated price each, and nothing remains to he done except to
ascertain the exact number, so as to ascertain the total value, it has
been held that this circumstance does not prevent the title
from passing.^

Sec. 307. Acceptance after Action Brought. — In an English
case,* it was held that an acceptance of the whole or a part of
goods under a contract void under the statute, would be opera-
tive to take the contract out of the statute, although occurring
after action brought. But this doctrine was exploded by a
later case.^ In that case, the defendant ordered goods of H,
the del credere agent of the plaintiff, at a fixed price, to be
paid for on delivery, and, on receiving notice that the goods
had arrived at H's warehouse, directed a boy whom he saw
there to put a certain mark on them. A dispute about the
price having occurred, the defendant refused to receive the
goods, and an action was commenced against the defendant
for the price, after which, thef defendant, at H's request, wrote
in H's ledger at the bottom of a page containing the state-
ment of the goods in question, and headed with the plain-
tiff's name, the words, "Received the above," which he
signed. The court held that this afforded no evidence to

And if there is a valid sale of a part a judicial sale. Stevens v. Houghta-
of grain in bulk, as 1,000 bushels out ling, 10 Barb. (N. Y.) 95.
of a mass, the title passes without ^ Groat v. Gile, 51 N. Y. 431 ;
separation, because in such a case no Bradley v. "Wheeler, 44 id. 495; Tyler
choice can be exercised, and the ven- v. Strong, 21 Barb. (N. Y.) 198. In
dee could derive no possible benefit Iron ClifE's Co. v. Buhl, 42 Mich. 86, a
from the exercise of his choice. Eus- quantity of ore was sold to the plain-
sell V. Carrington, 42 N. Y. 118. But tiff and paid for. It was, at the time
see Gardiner v. Snydam, 7 N. Y. 357, of sale, piled in a mass larger than
where it was held that a warehouse- that contracted for, and nothing re-
man's receipt for a quantity of flour mained to be done except for them to
does not pass the title until it is actu- take the quantity purchased. The
ally separated from the mass. court held that the title passed, and

1 Rapelye v. Mackie,6 Cow. (N. Y.) that the ore was delivered to them.
250. * Fricker v. Tomlinson, 1 M. & G.

2 Stephens v. Sauter, 49 N. Y. 35 ; 722.

Gibbs V. Benjamin, ante ; and this has ^ Bill v. Baraent, 9 M. & W. 36.
been held to apply even in the case of

SEC. 308.] ACCEPTANCE AND RECEIPT. 669

go to the jury to establish an acceptance to satisfy the stat-
ute. Paeke, B., said: "I concur in thinking that there was
no evidence to go to the jury to satisfy the statute of frauds.
With regard to the point which has been made by Mr. Mar-
tin, that a memorandum in writing after action brouglit is
sufficient, it is certainly quite a new point, but / am clearly of
opinion that it is untenable. There must, in order to sustain
the action, be a good contract in existence at the tim.e of
action brought ; and to make it a good contract under the
statute, there must be one of the three requisites therein
mentioned. I think, therefore, that a written memorandum, or
part payment, after action brought, is not sufficient to satisfy the
statute. Then, to take the case out of the seventeenth sec-
tion, there must be both delivery and acceptance; and the
question is, whether they have been proved in the present
case. I think they have not. I agree that there was evi-
dence for the jury of acceptance, or rather of intended accept-
ance. The direction to mark the goods was evidence to go
to the jury quo animo the defendant took possession of them ;
so, also, the receipt was some evidence of an acceptance. But
there must also be a delivery ; and to constitute that, the
possession must have been parted with by the owner, so as
to deprive him of the right of lien. Harvey might have
agreed to hold the goods as the warehouseman of the de-
fendant, so as to deprive himself of the right to refuse to
deliver them without payment of the price; but of that
there was no proof. There was no evidence of actual
marking of the goods, or that the order to mark was
assented to by Harvey. I am of opinion, therefore, that
there was no sufficient proof of acceptance to satisfy the
statute."^ But an acceptance made of goods after the time
has expired when they were to have been delivered, is oper-
ative to validate the contract,^ as such acceptance operates
as a waiver of such objection.^

Sec. 308. Test of Acceptance. — In order to constitute an
acceptance under the statute, there must be a delivery of the

1 See remarks of Colt, J., in ^ Marsh v. Hyde, 3 Gray (Mass.)
Townsend v. Hargreaves, 118 Mass. 331 ; Knight v. Mann, 118 Mass. 145.
336 8 Bock V. Healy, 8 Daly (N. Y. C.

P.) 156.

570 STATUTE or FRAUDS. [CHAP. XII.

goods by the vendor, with an intention of vesting the right of pos-
session in the vendee ; and there must be an aottial acceptance by
the latter, with an intention of taking possession as owner, by virtue
of a contract of sale, which intention is to be gathered from his out-
ward acts.^ Something more than mere words is necessary.
Tliere must be some act of the parties amounting to a tfansfer of the
possession, and an acceptance thereof by the buyer;, and the case
of cumbrous articles is not an exception to this rule. Thus,
A and B bargained respecting the sale, by A to B, of a quan-
tity of lumber, piled apart from other lumber, on a dock in
view of the parties at the time of the bargain, and which
had before that time been measured and inspected. The
parties having agreed as to the price, A said to B, "The
lumbei is yours." B then told A to get the inspector's bill,
and take it to one C, who would pay the amount. This was
done the next day, but payment was refused. The price was
over fifty dollars. In an action by A against B to recover the
price, it was held that there was no delivery and acceptance
of the lumber, within the meaning of the statute of frauds,
and that the sale was therefore void.^

The doctrine of the New York case ^ does not preclude evi-
dence of what was said by the parties, but requires that there
should be some act of the vendee, in connection therewith, which
evinces a purpose to accept the goods, thus carrying out the pur-
pose and intent of the statute by requiring evidence of some-

1 Rodgers v. Jones, 129 Mass. 420 ; Railway, 54 Me. 105, the court says

Agnew's Statute of Frauds, 193 ; Dole that tliere must be some act of the par-

V. Stimpson, 21 Pick. (Mass.) 384; ties which amounts to a transfer of

Knight V. Mann, 118 Mass. 143 ; Rem- possession, and an actual receipt by the

icl? V. Sanford, 120 id. 316; Safford v. vendee depriving the seller of his lien ft>r

McDonough, 120 id. 290 ; Marsh v. the price, to constitute an acceptance.

Rouse, 44 N. Y. 643 ; Gray v. Davis, In Shepherd v. Pressey, 34 N. H. 57,

10 id. 285; Brand ». Focht, 3 Keyes Bell, J., says: "Mere words consti-

(N. Y.) 409; Stone v. Browning, 51 tuting a part of the original contract

N. Y. 211 ; Hewes v. Jordan, 39 Md. do not constitute an acceptance," and

479; 17 Am. Rep. 578; Jones u. Me- this is so as to mere words afterwards

chanics Bank, 29 Md. 293 ; Shepherd used, looking to the future, to acts

V. Pressey, 32 N. H. 49. afterwards to be done by the pur-

2 Shindler v. Houston, 1 N. Y. 261
Moore r. Bixby, 4 Hun (N. Y.) 802
Good V. Curtis, 31 How. Pr. (N. Y.) 4
Caulkins i;. Hellman, 47 N. Y. 449

chaser towards carrying out the con-
tract : id. ; Gorham u. Fisher, 30 Vt.
428; Clark ;>. Tucker, 2 Sandf. (N.
Y.) 157 ; Gilman v. Hill, 36 N. H. 311 j

Ham t' Van Orden, 4 Hun (N. Y.) Dole k. Stimpson, 21 Pick. (Mass.)

709 ; Rodgers v Phillips, 40 N. Y. 884.

509. In Edwards v. Grand Trunk ' Shindler v. Houston, ante.

SEC. 308.] ACCEPTANCE AND RECEIPT. 571

thing more than mere words to give validity to the contract ;
and this is the doctrine generally held by the courts. In the
case of ponderous articles, not susceptible of manual delivery,
slight acts, in connection with words evincing an intention to
accept the property, will be sufficient. Thus, in a Connecticut
case,^ the subject of sale was ninety-three tons of iron, lying
by itself. The parties met at the place where the iron was,
and agreed upon the price and mode of payment ; they then
stepped up to the iron, and the vendee said, " / deliver you this iron
at that price " ; and the vendee then stepped up and claimed
the iron. And the court held that this amounted to an actual
delivery by the vendor, and an actual acceptance by the ven-
dee. Here it will be noticed that the words of the parties were
affirmed by their acts, which, although slight, were decisive of
the vendee's intention, particularly when coupled with the
circumstance that he soon afterwards removed the ore.^ The
statute is silent as to the delivery of the goods sold, which
is the act of the seller,^ consequently no act of the vendor alone
is sufficient to take the contract out of the statute;* but there must
also be an actual acceptance and receipt by the purchaser, by some
act which not only transfers the possession, but which, in fact or in
law, operates to vest the title to the goods in him.^ In other words,
he must accept and receive the goods with the intention of talcing
possession as owner.^ Thus, where the defendant purchased

1 Calkins v. Lockwood, 17 Conn. Brabin v. Hyde, 35 N. Y. 615. Neither
155. acceptance or receit alone will be

2 See Green v. Merriam, 28 Vt. suflBcient, but both must be shown.
301 ; "Wylie v. Kelley, 41 Barb. (N. Y.) The words of the statute are " accept
594 ; Garfield v. Paris, 96 U. S. 557 ; and receive." Caulkins v. Hellman,
Bass V. Walsh, 39 Mo. 192. 47 N. Y. 449 ; Ham o. Van Orden, 4

» Foster, J., in Boardman v. Hun (N. Y.) 709. But they need not

Spooner, 13 Allen (Mass.) 357. concur in point of time. Cross v.

* Shepherd J). Fressey, 32 N.H. 49; O'Donnell, 44 N. Y. 661. An agree-

Prescott V. Locke, 51 id. 94 ; Gibbs v. ment to accept does not amount to an

Benjamin, 45 Vt. 122 ; Johnson u. acceptance : Brabin v. Hyde, 32 N. Y.

Cuttle, 105 Mass. 449 ; Bowens v. An- 519; Brandt v. Focht, 3 Keyes (N. Y.)

derson, 49 Ga. 143 ; Hawley v. Keeler, 409. In Castle v. Sworder, G Exchq.

53 N. Y. 114 ; and the mere intention 831, Cockburn, C. J., said that he

of the vendor to vest the title in the doubted whether there was much dis-

vendee does not operate to do so. tinction between an acceptance and a

The Francis, 8 Cranch (U. S.) 359; receipt, but it seems the courts think

Rider v. Kelley, 32 Vt. 268. otherwise.

5 Maxwell v. Brown, 39 Me. 101 ; « Shindler v. Houston, ante ; Caulk-

Brewster v. Taylor, 63 N. Y. 587; ins v. Hellman, ante; Dooley v. Eil-

Denny ti, Williams, 5 Allen (Mass.) 3 ; bert, 47 Mich. 615.

672 STATUTE OF FRATJDS. [CHAP. XH.

some earrings at an auction, and they were immediately de-
livered to him, and he received them without making any
objection, hjit after they had been in his hands a few minutes
he stated that he had been mistaken in the price, and refused
to keep them, the court set aside a verdict for the plaintiff
and granted a new trial,^ the court observing : " To satisfy
the statute there must be a delivery of the goods by the
vendor, with the intention of vesting the right of possession
in the vendee ; and there must he an actual acceptance hy the
latter, with an intention of taking to the possession."^ But
where the vendee of several hogsheads of sugar, upon re-
ceiving notice from the carrier of their arrival, took samples
from them, and for his own convenience desired the carrier
to let them remain in his warehouse until he should receive
further directions, and before they were removed he became
bankrupt, it was held that the transaction was at an end as
soon as the samples were taken from the hogsheads, as that
was a complete act of ownership, and that the vendor was
not entitled to stop the goods.^ In this case it will be ob-
served that the vendee not only drew samples from the bulk,
but assumed dominion over the goods, and made the carrier
bailee of the goods for him. But where the defendant gave
a written order for ten firkins of butter, which were to be
sent to him by a particular carrier, and the plaintiff sent by
that carrier twelve firkins instead of ten, and the defendant
refused to receive more than ten firkins, and as the carrier
could not deliver less than the whole number sent, he refused
to take the butter at all, but, however, drew a sample from
one of the firkins, it was held that there had been no accept-
ance,* because in such a case the act could not be regarded
as one of ownership, or as done with a view to taking pos-
session of a part of the bulk.

Sec. 309. Acceptance of Sample Amounts to Acceptance of
the Goods, When. — When a sample accepted hy the vendee

1 Phillips V. BistoUi, 2 B.&C. 511. 428; Nicholson v. Bower, 1 E. & E.

2 See also Bowes v. Pontifex, 3 F. 172 ; Gardner v. Grout, 2 C. B. N. S.
& F. 739 ; CunUfEe ti. Harrison, 12 W. 340 ; Klinitz v. Surry, 5 Esp. 267 ;
R. 748 J Smith v. Hudson, 6 B. & S. Talver ». West, Holt. 178.

431. * Gorman v. Boddy, 2 C. & K. 145 ;

8 Foster v. Frampton, 6 B. & C. Cunliefe v. Harrison, 6 Exchq. 903;
107 ! Heinekey v, Earle, 8 E. & E. Bacon v. Eccles, 42 Wis. 227.

SEC. 309.] ACCEPTANCE AND RECEIPT. 573

forms a part of the bulk of the goods, and was taken hy him
to make up the whole amount, it amounts to an acceptance of
the goods themselves.! Thus, in Hinde v. Whitehouse, ante,
which is the leading case on this point, sugar was sold by-
samples drawn from the bulk, and after the sale the samples
were delivered to, and accepted hy the purchaser, to make up the
quantity purchased ; and it was held that such acceptance was
sufficient to take the sale out of the statute,'' Lord Ellen-
borough saying, " Inasmuch as the half-pound sample out of
each hogshead, in this case, is hy the terms and conditions of
sale so far treated as part of the entire hulk to he delivered that
it is considered in the original weighing as constituting a part
of the hulk actually weighed out to the huyer, and to he allowed
for specifically if he should choose to have the commodity
reweighed, I cannot hut consider it as a part of the goods sold
under the terms of the sale, accepted, and actually received as
such hy the huyer ; and although it be delivered partly alio
intuitu, namely, as a sample of quality, it does not therefore
prevent its operating to another consistent intent ; also, in
pursuance of the purposes of the parties as expressed in the
condition of sale, namely, as a part delivery of the thing it-
self, as soon as, in virtue of the bargain, the huyer should be
entitled to retain, and should retain it accordingly." In a later
English case,^ the defendant agreed to buy one hundred quar-
ters of wheat, " not to weigh less than nine and a half stone
neat imperial measure, to be made up eighteen stone neat,"
from the plaintiff, and sent his servant for three sacks of the
wheat, which were accordingly delivered; on that occasion
these sacks weighed eighteen stone neat, but the weight was
not then tested according to the imperial measure, nor had
it received a final dressing, which it is usual for wheat to re-
ceive before it is delivered to the buyer. The huyer did not
return the sacks; and it was held that there was only one
contract between the parties, that the defendant had received

1 Hinde v. Whitehouse, 7 East, in amount, it is suffleient. Garfield v.

558 ; Atwood v. Lucas, 53 Mc. 508 ; Paris, 96 U. S. 557 ; Smith v. MilU-

Daris v. Eastman, 1 Allen (Mass.) ken, 7 Lans. (N. Y.) 326.
422 ; Danforth v. Walker, 40 Vt. 257 ; " Klintz v. Surry, 5 Esp. 207 ; Tal-

Bush e. Holmes, 53 Me. 417. The ver v. West, Holt, 178.
statute makes a receipt of a part of ' Gallairt v. Eoberts, 19 L. J.

the goods sufficient, consequently if a Exchq. 410.
part of them is received, however small

574 STATUTE or FEAtTDS. [CHAP. XII.

the three sacks, which were a portion of the hulk, and that this
was a part acceptance within the statute. In another case,i
the contract was for certain sacks and bags. Four days after
the sale, the plaintiff, who was the buyer, went ttf the defend-
ant's warehouse and asked for samples of the goods, which
were given him by the defendant's foreman, and lohich he
promised to pay for when the bulk — which was all there — was
taken away. The samples so given to the plaintiff were, by the
defendant's order, weighed, and entered in his order hook. It
was held that under this state of facts the plaintiff had re-
ceived a part of the bulk, and that there was a sufficient
acceptance.

Sec. 310. "When Receipt of Sample Is not an Acceptance. —

If the sample delivered is not a part of the hulk, hut is merely
a collateral thing, a specimen of what the seller is endeavoring
to dispose of, then the acceptance of it is not sufficient to take
the case out of the statute,^ and the question as to whether the
sample was accepted and received as a part of the bulk or as
a mere specimen of the goods, not to be accounted for in the
final settlement, is for the jury.^ In an English case,* the
plaintiff showed the defendant samples of wine, which
the latter agreed to buy; and after the bargain was com-
pleted, the buyer asked to have the samples handed over to
him, and wrote upon the labels the price agreed upon. An
action having been brought against him for not accepting
the wine, the taking of the samples was relied upon by the
plaintiff as a part acceptance to take the case out of the stat-
ute. But WiGHTMAN, J., directed a non-suit. In Gardner
V. Grout,^ this case was distinguished, Cockbuen, C. J.,
saying : " That is a very different case from this. There, the
buyer never saw the bulk, the things handed to him, really

1 Gardner v. Grout, 2 C. B. N. S. » Dawesw.Eastman.l Allen (Mass.)
340. But it must appear that the ac- 422 ; Atwood u. Luoas, 58 Me. 508 ;
ceptance and receipt of a part of the Bush v. Holmes, 53 Me. 417 ; Dan-
hulk was in recognition of the con- forth v. Walker, 40 Vt. 257 ; Pratt v.
tract sought to he enforced. Ather- Chase, 40 Me. 269.

ton V. Newhall, 123 Mass. 141. i Simonds v. Fisher, cited in

2 Carver v. Lane, 4 E. D. S. (TS. Y. Gardner v. Grout, 2 C. B. N. S. 342.
C. P.) 168; Klintz v. Surry, 5 Esp. » Gardner v. Grout, 2 C. B. N. S.
267; Talver v. West.Holt, 178; Coop- 349.

er V. Elston, 7 T. E. 14; Moore v.
Love, 57 Miss. 565.

SEC. 311.J

ACCEPTANCE AND EECEIPT.

675

were mere samples. But here, the plaintiff receives part of the
very things which he had already bought" Where goods are
sold by sample, and subsequently are received by the vendee,
proof that the goods received were equal to the sample does
not establish an acceptance.-'

Sec. 311. Constructive Acceptance and Receipt ; Whether is,
or not, Question for Jury. — It is well settled that there may be
a constructive acceptance" of either the whole or a part of the
goods sold under a verbal contract, which will be sufficient
to take the case out of the statute, and that the question as
to whether the facts proved amount to a constructive deliv-
ery or not, is one wholly within the province of the jury.^
Lord Denman, C. J., in a leading case^upon this head, said,
in substance, that the evidence of the acceptance in such
cases must be unequivocal, but that the question whether it
is so or not, under all the circumstances of the case, is ordi-
narily one of fact for the jury, and not a matter of law for
the court; or, in the language of Coleridge, J.,* "it is a

' Bemick v. Sandford, 120 Mass.
309.

2 Simpson v. Krumdick, 28 Minn.
352; Pinkham o. Mattox, 53 N. H.
605; Frostburly Mining Co. v. N. E.
Glass Co., 9 Cush. (Mass.) 118; Edan
c. Dudfield, 1 Q. B. 306.

3 Edan v. Dudfield, ante,

* Tibbett v. Morton, 15 Q. B. 442 ;
Parker v. Wallis, 6 E. & E. 21 ; Clark
V. Wright, 11 Irish, C. L. 402 ; Mar-
shall V. Green, 1 0. P. Div. 41 ; Healey
V. Tenant, 13 Irish, C. L. 394 ; Houd-
lettew. Tallman, 14 Me. 400; Nicholls
V. Plume, 1 C. & P. 272 ; Simmonds v.
Humble, 13 C. B. N. S. 258. In
Baines ». Jevons, 7 C. & P. 288, it
appeared that the defendant had
bought of the plaintiff a fire-engine,
at the price of £25 ; and to prove the
acceptance of it by the defendant, a
witness was called, who stated that
the defendant took him into a yard
where the fire-engine stood, to show
it to him ; and that, on his asking the
defendant what he meant to do with
it, as no one would want it, the de-
fendant replied, that the parish of
Dudley would want an engine, as

well as two other persons, whom he
named. It was also proved, that, on
another person asking the defendant
what he meant to do with it, he re-
plied, " I know what I am going to do
with it " ; and it further appeared,
that on Mr. Neal asking if the plain-
tiff would sell the engine, the defend-
ant said, " Never mind that, I have a
concern in thut engine." Aldekson,
B., in summing up, said : " The ques-
tion here is, whether the defendant
has accepted this fire-engine 1 We
find that the defendant takes a person
to look at it, and says who is likely
to want it. You will say whether
that is not a dealing with it as his
own ; and when another witness asks
him what he is going to do with it,
the defendant does not say that it is
not his ; but he replies, ' I know what
I am going to do with it.' And in his
observations to Mr. Neal, he speaks
as if it were his own. You will con-
sider whether this convinces you that
the defendant treated this fire-engine
as his own, and dealt with it as such ;
for, if so, the plaintiff is entitled to a
verdict." See also Saunders u. Topp,

576

STATUTE OP FKAI7DS.

[chap. XII.

question for the jury, whether, under all the circumstances,
the acts which the buyer does or forbears to do, amount to
an acceptance." ^ But when the facts are not disputed, the
question whether or not they amount to an acceptance, is
for the court.2 So too it is the province of the court to
decide upon the competency of the evidence, and to withhold
it from the jury when its legal effect, although tending to do
so, is not sufficient to establish an acceptance ; ^ and, as an
acceptance is required to be established hy some clear and
unequivocal act of the purchaser, it follows that, even though
there might be some evidence tending to show it, yet if it is
on the whole insufficient, the court would be at liberty, and
are bound to set aside a verdict finding an acceptance there-
from.*

4 Exchq. 390; Vanderbukgh, J., in
Taylor v. Mueller, 30 Minn. 343; 44
Am. Eep. 203.

1 Bushel V. Wheeler, 15 Q. B. 442.
Houghtating u. Ball, 19 Mo. 84;
Wylie V. Kelly, 41 Barb. (N. Y.) 594;
"Williams v. Evans, 39 Mo. 201 ; Lilly-
white V. Devereux, 15 M. & W. 285;
Hunt V. Hecht, 8 Exchq. 814 ; Chap-
lin V. Rogers, 1 East, 192; Edan v.
Dudfield, 1 Q. B. 302. In Garfield v.
Paris, 96 U. S. 557, A contracted by
parol in New York, for the purchase of
a large quantity of spirituous liquor
of B, who, by the agreement, was to
furnish certain labels. B delivered
them, pursuant to instruction, to A in
New York, and shipped the liquor to
A in Michigan, where he resided. A,
when sued for the price of the liquor,
no part of which had been paid, in-
sisted that the contract was not com-
pleted until the delivery of the liquor
in Michigan, and he relied upon the
prohibitory liquor law of that State
which declares that all such contracts
are null and void. The jury found
that the labels added to the value of
the liquor, and formed part of the
price, and that A accepted them in
New York as a part of the goods sold.
It was held that, the finding of the jury
upon the question of acceptance being
final and conclusive, the contract was
executed in New York, and was by the
laws thereof valid.

2 Wartman v. Breed, 117 Mass. 18 ;
Rappalye v. Adee, 65 Barb. (N. Y.)
589; Bailey v. Ogden, 3 John. (N. Y.)
339; Borrowscale v. Bosworth, 99
Mass. 381 ; Sawyer v. Nichols, 40 Me.
212.

8 Bell, J., in Shepherd v. Pressey,
32 N. H. 56; Howard v. Borden, 13
Allen (Mass.) 299. In Houdlette v.
Tallman, 13 Me. 400, the court held
that where the law can pronounce on
a state of facts relative to a sale of
goods, that there is not a delivery
and acceptance, it is a question of
law to be decided by the court ; but
where there may be uncertainty and
difliculty in determining the true in-
terest of the parties respecting the
delivery and acceptance, from the
facts proved, the question of accept-
ance is to be passed upon by the
jury. " Where the undisputed facts,"
says Vandekbukgh, J., in Taylor v.
Mueller, 30 Minn. 343 ; 44 Am. Eep.
203, " are insufficient, as in this case,
to warrant such a finding, the ques-
tion would not be submitted to the-
jury." Stone v. Browning, 68 N. Y.
598; Ham v. Van Orden, 4 Hun
(N. Y.) 709; Denny .;. Williams, 5
Allen (Mass.) 1; Norman v. Phillips,

14 M. & W. 277 ; Bushel o. Wheeler,

15 Q. B. 442.
* Dennyt).Williams,5 Allen (Mass.)

1. In Holmes v. Hoskins, 9 Exchq.
152, the defendant verbally agreed to

SEC. 312.]

ACCEPTANCE AND BECEIPT.

577

Sec. 312. Must be Act3 of Acceptance. — An acceptance
cannot be found /toto the mere words of the vendee} hut there
must be some act in reference to the property, or dealing there-
with, which he would only have authority to do as owner^ or the
vendee must have exercised such dominion over the property
as owner as would deprive the seller of his lien for the price.^

purchase of the plaintifE some cattle
then in his field. After the bargain
was completed, the defendant felt in
his pocket for his check-book, in order
to pay for the cattle, but finding he
had not got it, he told the plaintiff to
come to his house in the evening for
the money. It was agreed tliat the
cattle should remain in the ' plaintiff's
field a few days, and that the defend-
ant should feed them with the plain-
tiff's hay, which was accordingly done.
The defendant, upon being afterward
asked for the money, said he had
offered too much for the cattle, and
would not have them. It was held
that there was no evidence of an ac-
ceptance, and that the plaintifE was
properly non-suited. It was insisted
by the plaintiff's counsel that there
was some evidence of an acceptance,
upon which Pollock, C. B., said :
" Assuming that there is a scintilla of
evidence, tliat is not enough. The
general rule is, that where the evi-
dence is so slight that, supposing the
jury found one way, the court would
set aside the verdict; if in such case
the judge directs anew suit; the court
will not interfere." See also Taylor
V. Mueller, 30 Minn. 343; 44 Am.
Eep. 199.

1 Denny v. Williams, ante ; Haward
V. Borden, ante; Pollock, C. B., in
Holmes v. Hoskins, 9 Exchq. 754.

2 In Shindler v. Houston, 1 K Y.
261, it is said that the acts of part
payment, of delivery and acceptance,
mentioned in the statute, are something
over and bei/ond the agreement, of which
they are a past performance, and
which they assume as already exist-
ing. In Rogers v. Phillips, 40 N. Y.
519, it is said th.at acceptance, requires
"" that the vendee should act, and that
his act should be of such a nature as

to indicate that he received and ac-
cepted the goods delivered as his
property." Ham o. Van Orden, 4
Hun (N. Y.) 709; Moore v. Bixby,
4 id. 802; Good v. Curtiss, 31 How.
Pr. (N. Y.) 4. In Hallenback u.
Cochran, 20 Hun (N. Y.) 416, H
and C, when near two stacks of H'a
hay, and in sight of one, orally con-
tracted for a sale of the hay, C agree-
ing to pay H §190 therefor, and §10
more if he should do well with it. H
then said to C : " Tlie hay is yours ; "
and C said: "Yes." Afterwards H
called on C for payment for " that
hay," and C promised to see B and
obtain money with which to make the
payment. The day following, C beck-
oned H to him, and handed him •'525,
saying he had not seen B, and adding,
" If hay does not do better than it is
doing now, I don't know but I shall
have a pretty tough bargain." It was
held, 1. That there was no delivery
or acceptance to take the case out of
the statute of frauds. 2. That the
payment was not made at the time of
the oral contract, and did not render
it valid. But as to the last proposi-
tion, it must be remembered that the
peculiar doctrine in this respect in
New York is due to the fact that the
statute only gives eflicacy to part
payment where it is made at the time
the contract is entered into. As to
the rule that there may be a symboli-
cal delivery when the goods are pon-
derous, and a constructive acceptance,
it will be observed that no act of the
parties at the time was done which
would make the rule applicable in
this case.

' Benjamin on Sales, § 145 (4th
Am. Edn. Bennetts) ; Ekle, J., in
Parker v. Wallis, 5 E. & B. 21 ;
Shindler v. Houston, 1 N. Y. 261. In

578

STATUTE OF FEATJDS.

[chap. XII.

Therefore, it must be shown that the aets of the vendor and
vendee have concurred, that is, that the vendor has delivered
the property, and that the vendee by some decisive act, has
accepted it, and waived all right of objection thereto^ Alvey,
J., very clearly states the rule ^ as follows. He said: "From

Caulkins v. Hellman, 47 N. Y. 449,
the court say: "Even the receipt of
goods without an acceptance is not
sufficient. Some act or conduct on the
part of the vendee or his authorized
agent manifesting an intention to accept
the goods in part performance of the
oontractj and to appropriate them, is re-
quired." Phillips V. Ocmulgee Mills,
55 Ga. 633.

1 Pabke, B., in Holmes v. Haskins,
9 Exchq. 755. In Castle v. Sworder,
6 Exchq. 832, Welsbt, in the course
of his argument, said : " It is a good
test whether there has been a receipt
of the goods, whether the seller's
right of lien remains," to which Cock-
BUEu, C. J., said: "That is another
way of putting the question, wheth-
er he has parted with the posses-
sion."

2 Alvey, J., in Hewes v. Jordan, 39
Md. 472. In this case the defendants
purchased of the plaintiff, verbally,
3148 pounds of butter grease at eight
cents a pound under a representation
of the plaintiff that it was all right
and free from dirt and salt. On the
day of the sale the defendants gave a
written order directing the plaintiff
to deliver the grease to their dray-
man, upon which the grease was de-
livered to the drayman and taken to
the store of the defendants, who, upon
examination, immediately notified the
plaintiff that the grease was not as
represented, and that they declined to
accept the same, and tendered the
grease to him. The court held that
the grease was not accepted by the
defendants so as to take the case out
of the statute. Brawell, B., in
Coombs V. Bristol & Exeter Railway
Co., 3 H. & N. 517, says, " the party
must have done something to waive his
right to reject the goods." In Phillips
V. BistoUi, 2 B. & C. 513, the court

held that, "in order to satisfy the
statute there must be a delivery of
the goods by the vendor with an in-
tention of vesting the right of possession
in the vendee; and there must be an
actual acceptance by the latter with an
intention of talcing possession as owner."
In Smith v. Roots, 9 C. & P. 405, it
appeared that the defendant, being
about to paper his house, called at
the plaintiff's premises, and was shown
some paper, and the party who showed
it him, wrote on the back of the pat-
tern piece the following words as a
memorandum of the terms agreed
upon : " The paper 2s. 8d., at Is. 4d.
per piece to put up." The plaintiffs
only claimed the 2s. 8d. for the paper
itself, which had been delivered at
the defendant's premises, but not put
up. Maule, J., told the jury that
there were two questions for their
consideration : First, was there in fact
an order given by the defendant for
the goods in question 'i Secondly, if
such order was given, then was there
an acceptance by him of the goods with
an intent to take them as owner ? The
jury found for the defendant. In
Clarke v. Marriatt, 9 Gill (Md.) 331,
the court held, adopting the rule laid
down by Stakkie, in the 2d Vol. p.
490, of his work on Evidence, that
in order to satisfy the statute, there
must be a delivery of the goods with
intent to vest the right of possession
in the vendee, and there must be an
actual acceptance by the latter with intent
to take possession as owner. See also
Jones V. Mechanics' Bank, 29 Md.
293, where this rule is re-adopted;
also Hewes v. Jordan, ante. This rule,
of course, contemplates that the ven-
dee's right to reject the goods under
the contract is gone. That he has so
dealt with them as to waive this right,
and that the property in the goods

SEd 312.] ACCEPTANCE AND RECEIPT. 579

the plain meaning of the terms of the statute itself, independ-
ent of all authority, the concurrence of two distinct acts on
the part of the vendee would seem to be required ; he must
accept, and he must actually receive part of the goods, in
order to render the contract binding on him. There may he
an actual receipt without any acceptance, and there may be an
acceptance without any receipt. But if both these acts concur
with the intention of the parties that the vendee shall take
possession of the goods under the contract as owner, then the
latter must be taken as having made a final election to accept
the goods, or such part of them as he may have actually
received, as his property, and, at the same time, assent to
their being such as will gratify the contra.ct; and acceptance
and receipt being thus complete, to bind the contract, the
vendee cannot afterward withdraw his acceptance and reject
the goods, except it be on the ground of fraud." " So long,
however," says Blackburn, J., in his work on Sales, " as the
buyer can, without self-contradiction, declare that the goods
are not to be taken in fulfilment of the contract, he has not
accepted them. And it is immaterial whether his refusal to
take the goods be reasonable or not. If he refuses the goods,
assigning grounds false or frivolous, or assigning no reasons
at all, it is still clear that he does not accept the goods, and
the question is not whether he ought to accept, but whether
he has accepted them. The question of acceptance or not is a
question as to what was the intention of the buyer as signified by his
outward acts." Where goods are delivered subject to exami-
nation, the receipt thereof by the vendor is not an acceptance
which will take the case out of the operation of the statute.
To constitute an acceptance giving validity to the contract,
it is requisite that the purchaser shall have made the exami-
nation and pronounced it satisfactory, or shall have dealt
with the goods, or done some unequivocal act evincing his
intent to accept them unconditionally as his own, and the
fact that the goods are as represented by the vendor, and
that the contract on his part has been fully performed, does
not affect the question of acceptance. Although the refusal
to accept be unreasonable, without an acceptance the con-

haa vested in him, and that his only deficiency in quantity, is upon the
remedy, for any defect in quality, or contract.

580

STATUTE OF FEATJDS.

[chap. XII.

tract is not validated. By reposing upon a contract void
under the statute, the vendor exposes himself to the risk of
an unjust refusal.'^

Sec. 313. Acts of O-wnersMp by Vendee, Evidence of Accept-
ance; When, Unpacking Goods, etc., are. — "The receipt of part
of the goods is the taking possession of them. WJien the seller
gives to the buyer the actual control of the goods, and the buyer
accepts such control, he has actually received them.^ Such a receipt
is often evidence of an acceptance, but it is not the same
thing ; indeed, the receipt by the buyer may be, and often is,
for the express purpose of seeing whether he will accept or
not." ^ The delivery, therefore, of the goods to the intended
purchaser, and the unpacking of them by him, although it
may to a certain extent injure the goods, are not sufficient,
if it appears that he has taken them and had them in his possession
for no greater time than was reasonably necessary to enable him to
examine their quantity and quality, and to declare Ms approval or
disapproval of them.* Nor does the fact that the buyer has used

1 Stone V. Browning, 68 K Y. 598.
The rule is that taking possession of
goods for examination, followed by a
refusal to accept them communicated
within a reasonable time, is not an
acceptance within the statute. Bacon
V. Eccles, 43 Wis. 227. Where goods
are sold by sample, proof that they
are equal to the sample, and went into
the possession of the vendee, is not
sufficient to show acceptance. Eemiok
V. Sandford, 120 Mass. 309.

^ Damon v. Osborn, 1 Pick. (Mass.)
476. But according to this case an
acceptance and delivery of part after
the time stipulated, will not take the
contract out of the statute as to the
remainder, unless the vendee then ex-
pressly agrees to take the remainder.

* Blackbukn on Sales, 22.

« In Curtis v. Pugh, 10 Ad. & El.
Ill, the defendant ordered of the
plaintiff, orally, three hogsheads of
Scotch glue, which was to be of the
description called " Cox's best." The
plaintiff, on Oct. 31, sent two hogs-
heads {which were all he was able to
supply at the time) to a wharf in
London, from which the defendant

removed them to his own warehouse,
and there unpacked the whole of the
glue and put it into twenty bags. On
examination, the defendant consid-
ered the glue inferior in quality to
"Cox's best glue"; and this was
communicated to the plaintiff's agent
on Nov. 1. The plaintiff's brother, on
his behalf, inspected the glue on
Monday, Nov. 3, and admitted that
some part of the glue (but not an
unusual proportion) was of inferior
quality ; and, on the plaintiff's part,
he offered to make an allowance in
the price, but refused to take the
glue back, because it had been un-
packed and put into bags; and he
stated in evidence that -it was quite
unnecessary to do more than take a
cake or two out for the purpose of
examining the contents of the hogs-
heads. The defendant repacked the
whole, and sent it back to the plain-
tiff, who declined to receive it. It
was stated in evidence, that glue, it
taken out of the barrels in which it is
packed, cannot be replaced there in
the same condition. Upon the argu-
ment, it was insisted by CKOWDBB,ion

SEC. 313.]

ACCEPTANCE AND EECEIPT.

581

more of the goods than was necessary for ascertaining whether they
are fit for his use, amount to an acceptance.^ The question in
all such cases is, whether the acts done by the buyer were
done for the purpose of examining the goods, to ascertain
whether they corresponded in quantity and quality with
those ordered, or whether they were acts of ownership,
which would be wrongful if he had not accepted ; and the
question of acceptance or not, where the facts are in dispute,
is for the jury, and it is error for the court to non-suit the

behalf of the plaintiff, that the plain-
tiff had done more than was necessary
for a fair examination, and thereby
altered the condition of the goods,
and therefore had in effect accepted
them. Phillips v. BistoUi, 2 B. & C.
511, was cited as showing that it is a
question for the jury whether there
was a deliTcry or not. Lord Den-
MAN, C. J., said : " There must be both
a delivery and an acceptance proved.
Here the evidence showed a rejection.
I thought at the trial that if there
had been any unnecessary alteration
in the state of the thing while in the
defendant's hands, he must be taken to
have accepted it. But in that I think
I went too far." Pattesost, J., said :
" A confusion sometimes arises in ap-
plying the statute of frauds to the
case of goods sold and delivered. If
the purchaser actually takes the goods
into his possession, that is an accept-
ance independent of the statute. But
there may be an acceptance sufficient
to satisfy the statute, which may yet
not support an action for goods sold
and delivered." Crowder continued :
" The plaintiff here does not rely on
an acceptance of part. The whole
quantity oi goods is put into his
hands ; and he is to explain why he
does not pay for them." Patteson,
J. : " If he had looked them over and
selected them long before, and, when
they came to his warehouse, had re-
fused to have them, that would not
be a case of goods sold and delivered."
Wightman, J. : " When do you say
the delivery here was complete ? "
Crowder : " On the 31st of October.
A«party must not have an unlimited

time to decide whether he will accept
goods or not ; and here the defendant
had so dealt with them that they
could not be restored in the state in
which they were sent." Patteson,
J. : " Was not it for the jury to say
whether the acts of the defendant
were done with the intention of tak-
ing the goods t " Lord Denmax, C.
J. : " The strongest way of putting
the case, for you, would have been that
his conduct amounted to a provisional
acceptance if the glue should prove
to be ' Cox's best glue.' " Crow-
der : " After taking the whole out
and putting into bags, it was too late
to insist on that proviso." Wight-
man, J. : " According to you the de-
fendant was bound, whether the glue
turned out to be ' Cox's best ' or not."
Coleridge, J. : " If the party examines
the goods, bona fide, with a view of as-
certaining the quality, hut so carelessly
as to do them great harm, can you say
that that amounts to an acceptance, what-
ever be the result of the examination ? "
Wightman, J. : "Elliott v. Thomas, 3
M. & W. 170, was cited in moving."
That case, as to the point decided, is
rather in favor of the plaintiff here
than of the defendant. If the pur-
chaser takes goods professedly for
the purpose of examination, and keeps
them a month, can it be said that he
does not accept them? Wightman,
J. ; "If the time were quite unreasonable,
the plaintiff might perhaps treat the de-
tention as an acceptance." See also
Lucy V. Mouflet, 5 H. & N. 229.

1 Alderson, B., in Elliott v.
Thomas, 3 M. & W. 174.

582 STATUTE OF FEAUDS. [CHAP. XH.

plaintiff wliere there is any evidence from which an accept-
ance might be found. This rule is well illustrated by Parker
V. Wallis,^ in which the facts were that the defendant re-
ceived some turnip seed under a verbal contract of sale, but
at once sent word to the plaintiff that it was " out of condi-
tion " ; which the plaintiff denied, and refused to receive it
back. The defendant then took the seed out of the bags,
and spread it out thin, alleging that it was hot and mouldy,
claiming that the plaintiff had given him authority to do so.
The plaintiff denied both these facts. The plaintiff was non-
suited by WiGHTMAN, J., with leave to enter a verdict for
iG140, the price of the seed, if the evidence was deemed sufS-
cient to show an acceptance and actual receipt of any part of
the goods. The court made the rule absolute for a new trial,
but refused to enter a verdict for the plaintiff for the price of
the seed, upon the ground that the act of taking the seed out
of the bags was susceptible of various constructions. It might
have been because the seed was hot, or because the plaintiff
authorized it. But that as the evidence stood when the non-
suit was entered, these were not the facts. There remained
a third construction, namely, that spreading out the seed
was an act of ownership, a wrongful act, if the defendant had
not accepted as owner, and that this wa,& a question for the
jury. The court, Lord Campbell, C. J., Ekle and Ceomp-
TON, JJ., WiGHTMAN, J., dissenting, thought that, although
the evidence was too slight to warrant entering up a verdict
for the price, under the rule, yet regarded it as sufficient to
go the jury upon the question whether the seed was spread
out thin by the defendant, as an act of acceptance, or because
it was out of condition, or by the plaintiff's authority. In
this case, it will be observed that the act of spreading out
the seed was done after the defendant had notified the plain-
tiff of his refusal to accept, so that, unless done in pursuance
of authority from the plaintiff, the act was wrongful, and
afforded evidence from Avhich the jury might find that the
defendant had waived his objections and accepted the seed.
Having declared his disapproval of the goods, by dealing with
them afterwards, as owner, he must be treated as having
reconsidered his rejection of the goods, unless authorized to

1 Parker v. ■Wallis, 5 B. & B. 21.

SEC. 313.J ACCEPTANCE AND RECEIPT. 583

SO deal with them by the buyer, or necessarily done to save
them from deterioration or damage. In Kent v. Huskinson,^
the subject of the action was a bale of sponge sent by the plain-
tiff, a wholesale dealer in that article, residing in London, to
the defendant,- a retail dealer residing in Staffordshire. A
short time before the sponge was sent by the plaintiff, he had
been at the place where the defendant resided, and received
from him a verbal order, under which he had acted in send-
ing the sponge, and the price charged was lis. per pound.
Soon after the sponge had been sent, the defendant wrote
the following letter to the plaintiff: "After receiving a
letter from your house in town, stating that the bale of
sponge was sent by your direction, I called in a friend or two
who are competent judges of the article, and asked them to
say, according to the present price of sponge, what it was
worth ; the answer was, not more than 68. per pound : I have
therefore returned it to you by the same conveyance it was
forwarded by to this place. In future, I will select what
sponge I may want, personally ; otherwise will appoint some
confidential friend for that purpose." The plaintiffs sou
being at the defendant's house soon after the sponge was
returned, was told by him that he had resolved not to keep
the article, because it was not so good as was expected. It
was objected for the defendant, that as this was a contract
for the sale of goods of more than j£10 value, the case fell
within the seventeenth section of the statute of frauds, and
Lord Alvanley, who tried the cause, was of that opinion ;
and, upon a motion to set aside this non-suit, declared that
he still continued of opinion, that the evidence did not take
the case out of the statute ; for how was any judgment to be
formed as to the nature of the contract between the parties :
possibly the order was for the best, possibly for the second
best sponge, or for sponge of some peculiar quality; all
which circumstances are left in a state of uncertainty. It
was this very uncertainty, and the frauds to which it might
lead, that the statute was meant to guard against. The only
affirmance of any contract to be collected from the evidence,
was an affirmance of some sort of order for some sort of
sponge, and it appeared, that the moment the article reached

1 Kent V. Huskinson, 3 B. & P. 233.

684 STATUTE OF FKAXTDS. [CHAP. XII.

the defendant, and was examined, he sent it back to the
plaintiff, saying that it was not that sort of sponge which he
wanted and had ordered. The defendant's letter, therefore.
Lord Alvanley said, could not be construed into an
acceptance ; and Chambeb, J., said that certainly there was
no acceptance of the goods by the defendant, unless a refusal
could be considered as amounting to an acceptance.

There must he an acceptance which completely affirms the
contract?-

Sec. 314. Weed not be Express Acceptance. — But, as we
have previously stated, this acceptance need not be express,
but may arise constructively out of the acts of the vendee, espe-
cially where the goods are ponderous and incapable of being
handed over one to another, but it may be done by that
which is tantamount, such as the delivery of the hey of a ware-
house in which the goods are lodged, or by the delivery of other
indicia of property, or the performance of some act of owner-
ship by the vendee ; ^ for the larger the bulk, the more im-
practicable it is that there should be a manual receipt ; some-
thing there must be in the nature of constructive receipt, as
there is constructive delivery.^ And therefore the question
as to whether there has been acceptance or not is one of
"fact for the jury, not matter of law for the judge."* The
acceptance required by the statute must be very clear and
unequivocal ; and it is a question for the jury whether, under
all the circumstances, the acts which the buyer does, or for-
bears to do, are an acceptance or otherwise.^

Sec. 315. instances of Constructive Acceptance and Receipt.
— The acceptance and retention of a bill of lading by the consignee
may be equivalent to an actual acceptance of the goods, if lie exer-
cises dominion and ownership over it, or deals with it so as to trans-
fer the right of property in the goods to a third party. ^ So, if after

' 1 Chaplin v. Kogers, 1 East, 194, 14 Jur. 6G9; 19 L. J. Q. B. 382, per

per Lord Kenyon, C. J. Lord Campbell citing Bushel u.

2 Packard v. Dunsmore, 11 Cush. Wheeler, ib. 442 n. ; and see Parker

(Mass.) 282; Gray o. Davis, 10 N. Y. v. Wallis, 5 E. & B. 21; Nicholle ^.

285. Plume, 1 C. & P. 272; Simmonds v.

8 Bushel V. Wheeler, 15 Q. B. 442, Humble, 13 C. B. (N. S.) 258.
per Williams, J. ; see also Marshall ' Meredith v. Meigh, 2 E. & B.

;;. Green, L. K. 1 C. P. D. 35. 364; 22 L. J. Q. B. 401 ; Currie v.

* Edan v. Dudfleld, 1 Q. B. 306, Anderson, 2 E. & E. 592; 29 L. J.

307, per Denman, C. J. Q. B. 87. See Quintard v. Bacon, 99

5 Morton a. Tibbett, 15 Q. B. 441 ; Mass. 185 ; Erostburgh Mining Co. v.

SEC. 315.]

ACCEPTANCE AND RECEIPT.

585

goods have arrived the vendee does any act to the goods, of wrong if
he is not owner of the goods, and of right if he is owner, the doing
of that act is evidence that he has accepted them;^ as, for instance,
if he sells or attempts to sell the goods, or if he disposes absolutely
of the whole or any part of them, or attempts to do so, or alters the
nature of the property.^ Thus, in Chaplin v. Rogers,* the par-

1 Parker v. Wallis, 5 E. & B. 28,
per Ekle, J.

^ Lillywhite u. Devereux, 15 M. &
W. 291, per Aldekson, B. In Blin-
kinsop v. Clayton, 7 Taunt. 597, the
defendant bought a horse and took a
third person to the vendor's stable,
where the horse then was, and offered
it to him. Held, an- acceptance. See

N. E. Glass Co., 9 Cush. (Mass.) 118,
where the retention of the bill of
lading by the vendee was held under
the circumstances not to amount to
an acceptance. To satisfy the statute
there must be both a delivery to and
acceptance by the buyer of the goods.
In Bill V. Bament, 9 M. & W. 36, the
defendant ordered goods of the plain-
tiff's agent, and went to the agent's
warehouse, where the goods were de-
posited, and directed a mark to be
placed upon them ; but having subse-
quently refused to receive the goods,
and an action having been commenced
against him, he wrote in the agent's
ledger, at the bottom of a page con-
taining the statement of the goods,
and headed with the plaintiff's name,
the words "Received the above,"
which he signed. The court held,
that this was no evidence of a de-
livery and acceptance. Parke, B.,
there says, after observing that the
written receipt was some evidence of
an acceptance, "But there must also
be a delivery ; and to constitute that,
the possession must have been parted
with by the owner, so as to deprive him
of the right of lien." In Hanson v.
Armitage, 5 B. & Aid. 557, the evi-
dence was, that a party resident in
the country had been in the habit of
biiying goods of a London merchant,
whose habit it was to deliver them to
a wharfinger in London, to be for-
warded to the buyer by the first ship.

also Chapman v. Morton, 11 M. & W.
534 ; Harnor v. Groves, 15 C. B. 667.
See also Baines v. Jevons, 7 C. & P.
288, the facts of which are given,
ante.

» Chaplin v. Rogers, 1 East, 192.
The acceptance in this case was sus-
tained because the defendant had re-
sold a part of the hay.

It was held that the receipt of such
goods by the wharfinger was not an
acceptance by the buyer, sufficient to
satisfy the statute of frauds; and
Abbott, C. J., in giving judgment,
referred to Howe u. Palmer, 3 B. &
Aid. 321, where it was held that there
could be no actual acceptance, so
long as the buyer retained the right
to object to either the quantum or
the quality of the goods. And in
Bentall v. Burn, 3 B. & Cr. 428, it
was held, that a vendee's acceptance
of a delivery order of the London
Dock Company was not an accept-
ance of the goods themselves, within
the statute of frauds. See also
Zwinger v. Samuda, 7 Taunt. 265.
In Farina t>. Home, 16 M. & W. 119,
goods were shipped by the plaintiff
from abroad to this country, on the
verbal order of the defendant, at a
price exceeding ^£10. They were sent
to a shipping agent of the plaintiffs
in London, who received them and
warehoused them with a wharfinger,
informing the defendant of their ar-
rival. The wharfinger handed to the
shipping agent a deli very- warrant,
whereby the goods were made deliv-
erable to him or his assignees by en-
dorsement, on payment of rent and
charges. The agent endorsed and
delivered this warrant to the defend-
ant, who kept it for several months,
and, notwithstanding repeated appli-
cations, did not pay the price of or

586 STATUTE OF FKATJDS. [CHAP. XII.

ties being together in the farm-yard of the plaintiff, negotia-
tions took place between them for the purchase of a stack of
hay standing therein, and after some doubts expressed ^ by
the buyer, as to the quality of the hay, it was sold to him at
the price of 2s. 6d. per hundred pounds. About two months
after this transaction, a farmer agreed with the buyer for the
purchase of part of the hay, which was still standing un-
touched in the farm-yard of the original owner. L was told
by the first purchaser to go and see what condition the hay
was in, as he had only agreed for it in case it was good. L
having examined it repotted it to be in a good state, and
agreed to give the first purchaser 38. 6d. per hundred pounds,
being told by him that he had agreed to give Ss. 6c?. per hun-
dred pounds to the original owner. L brought away tliirty-six
hundred weight of the hay, in virtue of this sub-contract; but this act
of the second purchaser was without the knowledge and against the
direction of the first. The original seller brought an action
against the first purchaser for goods sold and delivered. Two
grounds were made for the defendant on the trial ; first, actual
fraud in the sale ; and secondly, the non-compliance, with the
statute of frauds. The judge left it to the jury to decide,
whether the sale was fraudulent, and whether, under the circum-
stances, there had been a sufficient acceptance by the defendant. And
they found for the plaintiff upon both points, and gave Mm
damages to the value of the hay, at the price agreed for. A
rule nisi was obtained for setting aside this verdict, and for a
new trial, on the grounds that the judge had left that as a
question of fact to the jury, which he himself ought to have
decided as an objection in point of law, arising on the stat-
ute of frauds, and because the evidence did not warrant the
verdict ; but the rule was discharged ; Lord Kenyon, C. J.,
observing, that it loas proper to leave the question specifically to the
jury, whether or not there was an acceptance of the hay by the de-
fendant; and that they had found that there was, which had put
an end to any question of law. That he did not mean to
disturb the settled construction of the statute ; that in order

charges upon the goods, nor return they would remain for the present in

the warrant, but said he had sent it bond. Held, that there was no such

to his solicitor, and that he intended delivery to and acceptance by the

to resist payment, for that he had defendant of the goods, as to satisfy

never ordered the goods ; and that the statute.

SEC. 316.] ACCEPTANCE AND EECEIPT. 587

to take a contract for the sale of goods of this value out of
it, there must either be a part-delivery of the thing, or a
part-payment of the consideration, or the agreement must be
reduced to writing, in the manner therein specified; but he
was not satisfied in that case, that the jury had not done
rightly in finding a delivery, and that the goods being pon-
derous and incapable of being passed over to the buyer, an
actual delivery was not necessary, but that a delivery and
acceptance might be found from the circumstance th&.t the
buyer had subsequently dealt with the property as though it
was in his actual possession, to wit, by selling a part of it.^
But such resale or attempt to sell does not of itself neeessa^
rily constitute an acceptance, but is evidence thereof from
which, in connection with the circumstances, the jury may
find an acceptance.^ The question in all these cases must
be submitted to the jury as one of fact, to find whether there
was a delivery by the vendor and an actual acceptance and receipt
by the vendee, intended by both parties to have the effect of transfer-
ring the right of possession from the one to the other. ^

Sec. 316. trsing Goods as Owner. — If the buyer takes
the goods into his possession, and uses them as owner, the fact
that it is understood that they will again be returned to the pos-
session of the seller, does not prevent such act from amounting to
an acceptance and receipt of the property. Thus, in an English
case,* the defendant agreed to purchase a carriage from
the plaintiff, at the same time desiring that certain altera-
tions might be made in it. The alterations were made, and
the defendant used it, in order that, as he was going to take

^ See Marshall v. Green, L. R. 1 an absolute owner, there is eTidence to

C. P. D. 35, where Brett, J., said : go to the jury of an actual receipt of

" If the sub-sale stood alone, I should the thing.

have doubted whether it would have " Morton v. Tibbetts, 15 Q. B. 428 ;

been evidence of an actual receipt ; Johnson v. Cuttle, 105 Mass. 407 ;

but here he did something to the things Prostburgh Mining Co. v. N. E. Glass

themselves. I should be inclined to Co., 9 Gush. (Mass.) 118; Taylor v.

say that where there is no actual re- Mueller, 30 Minn. 343 ; 44 Am. Eep.

moval of the things sold, the question 203.

depends on the proposition, that where ' Phillips u. Bistolli, 2 B. & C.

there has been, during the existence 5142 ; Taylor on Evidence, Sec. 753 ;

of the verbal contract, for however Caulkins v. Hellman, 47 N. Y ; Alvet,

short a time, an actual possession of the J., in Hewes v. Jordan, 39 Md. 472.
thing sold, and something has been done * Beaumont u. Brengari, 5 C. B.

to the things themselves by the buyer, 301.
which would only properly be done by

688 STATUTE OP FRAUDS. [CHAP. XH.

it abroad, it might pass the custom-house as a second-hand
carriage. He then returned it to the custody of the plain-
tiff. It was held that there was evidence of a specific bar-
gain for the particular carriage ; that the defendant assumed
to be the owner ; that the plaintiff kept the carriage as agent
for the defendant, and that there had been a sufficient accept-
ance.^ But the rule is otherwise where the goods are not
ready for delivery, and the buyer never actually takes them
out of the custody or possession of the seller. Thus, where
the defendant employed the plaintiff to construct a wagon,
and while the vehicle was in the plaintiff's yard unfinished,
procured a third person to fix on the iron-work and a tilt, it
was held that there had not been any acceptance, though it
might have been otherwise, if the work had been done after
the wagon was finished.^ Where A contracted with B to
purchase of him the trunks of certain oak trees, then felled
and lying at Hadnock, about twenty miles from Chepstow,
the course of dealing being for A's agent to select and mark
those portions which he intended to purchase, and for B to
sever the tops and sidings, and float the trunks down the
river Wye to A's wharf at Chepstow, and there deliver them,
and after a portion of the timber had been so delivered, and
the whole paid for, B became bankrupt, whereupon A sent
his men to B's premises at Hadnock, and severed and carried
away the marked portion of certain trees, it was held that
no property in the trees, or any portion of the trees, which
had not been delivered by B, passed to A by the contract,
and that there was no delivery or acceptance to satisfy the
statute, and consequently the assignees of B were entitled
to recover the value in trover.'

Sec. 317. Morton v. Tibbetts. — In an English case,* the
defendant purchased wheat of the plaintiff by sample, and
directed that the bulk should be delivered on the next morn-
ing to the carrier named by himself, who was to carry it to
the market-town of W., and the defendant himself took the
sample away with him. On the next morning the bulk, was

1 And see "Wright v. Percival, 8 L. & W. 155 ; Lucy v. Mouflet, 5 H. &

J. (N. S.) Q. B. 258. N. 229.

^ Maberley v. Sheppard, 10 Bing. 8 Acraman v. Morrill, 8 C. B. 449;

100 ; and see Laidler v. Burlinson, 2 Smith v. Surman, 9 B. & C. 561.
M. & W. 615; Jordan v. Norton, 4 M. « Morton v. Tibbetts, 16 Q. B. 428.

SEC. 317.] ACCEPTANCE AND RECEIPT. 689

delivered to the carrier, and the defendant resold it at W. on that
day by the sample. The carrier conveyed the wheat by order of
the defendant, who had never seen it, to the sub-vendor, who
rejected it as not corresponding with the sample ; and the
defendant, on notice thereof, repudiated his contract with
the plaintiff on the same ground. And on this state of facts
it was held by the court of Queen's Bench, that there was evi-
dence to warrant the jury in finding an ' ' acceptance and actual re-
ceipt" of the wheat hy the defendant, so as to gratify the statute
of frauds. This case established the doctrine that there may
be an acceptance and receipt without an examination of the
property by the buyer, and a waiver by him of the right of
rejection, because it does not correspond in quality or quan-
tity with the goods called for under the contract. In other
words, that when the parties have done that which effectually trans-
fers theproperty in the goods, and the right of dominion over them,
to the vendee, he having neglected to examine the goods, is treated as
having waived his right of rejecting them, because they do not answer
the requirements of the contract, and is left to his remedy upon
the contract itself.^ If this decision is sustainable at all, it is
upon the ground that, as the defendant had taken upon him-
self to exercise dominion over the wheat, and dealt with it
in a manner wholly inconsistent with the right of property
being in the vendor, those facts of themselves furnished evi-
dence to justify the jury in finding that the defendant had
waived his right to reject the same, and accepted the wheat,
and actually received the same. LoED Campbell, however, in
the course of his very elaborate judgment, maintained that
the case did not really require to be maintained, that the
acceptance contemplated by the statute is, in all cases, to
precede, or at any rate to be contemporaneous with the
actual receipt of the goods, and not a subsequent act ; that
there may be an acceptance and receipt within the statute, without
the purchaser having examined the goods, or done anything to pre-
clude him from contending that they do not correspond with the con-
tract; and that the acceptance to let in parol evidence of the

1 That this right may be waived, and the defendant was not to be liable

see Mason v. Whitbetk Co., 35 Wis. for the price until they were counted

164, in which it was held that where by C, and upon their deposit there

by a contract of sale of both by the they were accepted without count or

plaintiff to the defendant, the plaintiff inspection, he became liable for the

was to deposit them at a certain place, price.

590 STATUTE OF FRAUDS. [CHAP. XII.

contract is a different acceptance from that which affords
conclusive evidence of the contract having been fulfilled^
Says Alvey, J.,^ in commenting upon the doctrine of this
case : " Now, it may be readily conceded that the question
whether there has been, in any particular case, such accept-
ance and actual receipt of a part of the goods as will bind
the contract, may be quite different and distinct from that
as to whether the contract has been fulfilled in respect to
quantity and quality of the residue of the goods, where the
vendee has had no opportunity of examining the goods that
may be offered in fulfilment of the contract,' and where he
has done nothing to preclude himself from the exercise of
' the right to object that they do not correspond with those
actually received by him. The effect of the acceptance and
actual receipt of part of the goods, however small, is to
prove the contract of sale, and it is not inconsistent with
this that the vendee should have the right, with respect to
the residue of the goods when offered in fulfilment of the
contract, to object that they are not such in quantity and
quality as the contract requires ; and in such case the ques-
tion in dispute can only be determined by the aid of parol
evidence. But in all cases where the goods bargained for
have been accepted and actually received by the vendee, he is
thereby precluded, in the absence of fraud, from objecting
that they do not correspond with the contract. Any other
construction would certainly tend to let in all the evils that
were intended to be excluded by the particular provision of
the statute ; and hence the proposition maintained by Lord
Campbell in Morton v. Tibbett, that there may be an accept-
ance and receipt within the statute, without the purchaser
having examined the goods, or done anything to preclude
him from contending that they do not correspond with the
contract, has found biit^ partial favor with the judges of
Westminster Hall. Some of those judges have openly ex-
pressed their dissent from it, and while it may be taken as
the established construction of the statute by the Queen's
Bench, it has failed to receive the sanction of the Court of
Exchequer." 2 The doctrine of Morton v. Tibbett, ante, was

1 In Hewes v. Jordan, ante. Coombs v. Bristol & Exeter R. Co., 3

2 Hunt V. Hecht, 8 Exch. 814 ; H. & N. 510. But in these cases the

SBC. 317.] ACCEPTANCE AND RECEIPT. 591

fully sustained by a later English case,^ decided by the Court
of Appeals. In that case, the plaintiff verbally agreed to
sell barley to the defendant, the same to be well dressed and
equal to sample. In the defendant's absence his foreman
received the barley, which was delivered in several instal-
ments, examined it, and gave a receipt for each instalment,
with the words, "Not equal to sample." The defendant
afterwards personally examined the barley, and rejected it on
the ground that it was not properly dressed and not equal to
sample. In an action for goods sold and delivered, the jury
found, in answer to questions left to them by Pollock, B., at
the trial : 1st, that there was an acceptance by the defendant
of part of the barley ; and, 2dly, that the barley was equal
to sample and properly dressed. Upon the argument of a
rule for a new trial, obtained on the ground of misdirection,
and that the verdict was against the weight of evidence, it
was argued for the defendant that there was misdirection on
the parfr of the judge in holding that there was any evidence
to go to the jury of acceptance under the statute of frauds,
upon the ground, apparently, that the defendant's foreman,
having given a receipt with the words, " Not equal to sam-
ple," upon it, could not be held to have accepted it within
the meaning of the statute, and that the question, therefore,
whether it was equal to sample or not, never arose, because
there was no valid contract between the parties. The author-
ity of Morton v. Tibbett was attacked, but aU the lords jus-
tices (Bkamwell, Bkett, and Cotton) referred with ap-
proval to the principle there laid down, and held that there
was evidence for the jury of an acceptance sufficient to satisfy
the statute. That being so, the question whether the barley
was equal to sample or not was clearly one for the jury to
decide, and they had answered it in favor of the plaintiff.
LoKD Justice Brett refers in these terms to the acceptance
necessary under the statute : " There must be an acceptance
and an actual receipt ; no absolute acceptance, but an axxeptance
ivhich could not have been made, except on admission of the con-

criticism was wholly unnecessary, as i Kibble v. Gough, 38 L. P. N. S.

in those cases there was no act of 204. See also Currie v. Anderson, 2

the buyer which amounted to an ac- B. & E. 592 ; Meredith v. Meigh, 2 B.

ceptance, or which would have war- & B. 364 ; Grimoldby v. Walls, D. R.

ranted the jury in finding one. 10 C. P. 391.

592 STATUTE OV FEAT7DS. [CHAP. XH.

tract, and that tJie goods were sent under it. I am of opinion
there was a sufficient acceptance under the statute of frauds,
although there was (still) a power of rejection," And then,
after reviewing the cases, and referring with approval to
Morton v. Tibbett, he adds: "The goods then were sold by
valid contract, actually delivered and received, and after this
the Vendee objects to them. If they had not been equal to the
sample, I say that it was not even then too late to object; but they
were equal to sample and they were (properly) dressed."
And Cotton, L. J., says : "All that is wanted is a receipt, and
such an acceptance of the goods as shows that it has regard
to the contract; but the contract may yet be left open to
objection." In Rickard v. Moore,^ decided in the same year
(1878), the plaintiff verbally sold by sample to the defendant
six bales of wool. The goods were sent off by the plaintiff,
and delivered at a railway station, and were received there
and taken home by the defendant, who then unpacked the
wool, and wrote the same day to the plaintiff that two bales
were inferior to sample, asking what was to be done in the
matter. Plaintiff replied, denying that the bales were not
equal to sample. The defendant was away from home when
this letter arrived. Four days afterwards he returned home,
and after reading the plaintiff's letter, sent the goods back
to the railway station, and telegraphed to the plaintiff reject-
ing them. During these four days the defendant admitted
that he had offered the goods for sale in the market, stating,
however, that he had not accepted them, and that he would
,have to make other arrangements before he could sell. In
an action for goods sold and delivered, the defendant set up
in his plea that there was ' no acceptance and receipt, and
secondly, that the goods were not equal to the sample, and
that upon that ground he had properly rejected them. The
jury found that two of the bales were not equal to the
sample, and Hawkins, J., thereupon ordered a verdict to be
rendered for the defendant. Upon appeal, the case was dis-
tinguished from Kibble v. Gough, ante, upon the ground that
in that case the jury had found an acceptance in fact.
Beamwell, L. J., based his judgment upon the ground
that whether there was an acceptance or not, the defendant

1 38 L. T. N. S. 841.

SEC. 318.] ACCEPTANCE AND EECEIPT. 593

had done nothing to waive his right to reject the goods, because
not equal to the sample, and the jury had found that they were
not equal to the sample. Although Morton v, Tibbett was
not referred to by the court, it is evident that the court
recognized the distinction expressed therein between a condi-
tional acceptance and absolute one sufficient to take the case
out of the statute. As has previously been stated, the rule
is, that in order to constitute an acceptance which will satisfy
the statute, the defendant's right of rejection because the
goods do not correspond in quantity or quality with those
called for by the contract must be gone,^ and we insist that
the doctrine of the principal case does not conflict with this
proposition, because the acts of the buyer were such as to
show a waiver of this right. It is immaterial what judges
may have said in commenting upon the doctrine of this case.
The fact still remains that, the jury found that the defendant
not only accepted, but had also actually received the wheat, and this
being the case, the statute was satisfied, and the only remedy
left to the buyer was upon the contract itself, because by those
acts, the contract became valid in law, precisely the same as though
it had been in writing, and the rights and remedies of the par-
ties were the same. The doctrine of this case, as we have
seen, has been attacked in the Court of Exchequer ; ^ nor in
the broad sense in which it is usually cited, is it adopted by
the courts in this country,^ but the actual doctrine of the
case, that there may be a waiver of the right to examine the
goods, and that there was evidence to show both an acceptance
and receipt of the wheat, can hardly be questioned.

Sec. 318. Taylor v. Mueller. — In a recent Minnesota
case,* the parties entered into a verbal agreement of
sale, by sample, of two carloads of barley, which the
plaintiff was to deliver. The grain had been consigned to
the plaintiff, and at the time of the sale was in the cars, and
was deposited by him in an elevator, in his own name and on

1 Remick v. Sandford, 120 Mass. v. Crumdick, 28 Minn. 352 ; Edwards
309; Currie v. Anderson, 2 E. & E. v. Grand Trunk* Eailway, 54 Me. Ill;
592 ; Simpson v. Crumdick, 28 Minn. Maxwell v. Brown, 39 id. 98 ; Shep-
352. herd v. Pressey, 32 N. H. 55.

2 Ante, p. 590. * Taylor v. Mueller, 30 Minn. 343 ;
8 Remick v. Sandford, 120 Mass 44 Am. Rep. 199.

309 ; Hewes v. Jordan, ante ; Simpson

594 STATUTE OF FRAUDS. [CHAP. XH.

his own account. The barley remained in the elevator for a
period of about two months, when the defendant requested
that it be sent to the station on the railroad where they usu-
ally received their freight, which was accordingly done, the
defendants having furnished the manager of the elevator a
delivery order, and upon an examination of the barley, they
found it unfit for their use, and immediately rejected it, and
notified the plaintiffs of the fact. The jury found upon the
facts submitted to them, that the defendants had not accepted
or received the barley, and the court having refused to in-
struct the jury that the acts of the defendant constituted
sufficient evidence of an acceptance and receipt of the grain,
the ruling was sustained upon appeal, VANDEEBUiiGH, J.,
in a carefully considered opinion, saying: "Whether there
was sufficient evidence of such acceptance as to warrant or
support a verdict in, plaintiff's favor is the principal question
for our consideration. Defendants had a short time pre-
viously ordered and received at Second Street two other car-
loads of barley, bought in the same way. The evidence
relied on as tending to prove such acceptance appears in the
testimony of the manager of the elevator, a witness in plain-
tiffs behalf, and is as follows: ",The circumstances under
which I shipped the last two cars are as follows : The defen-
dants ordered it by telephone, same as before, and gave me
the number of the cars. I told them I had no order to
deliver the grain to them ; that I had already delivered them
two cars, and that I must insist upon having a written order
before delivering any more ; and they got me one ; that is the
order upon which I sent out the last two cars, and which
gave me authority to send them all out ; 2,460 was one of
the cars for which I had no order. So I got this order for
all of them. . . . They were ordered to Second Street.
There is where they get at them with teams." The order
was a direction to the manager to deliver to defendants the
two cars previously ordered and sent, and the two cars then
delivered and referred to by the witness. Except as above,
and save as to previous requests by defendants of plaintiff
to send the barley down to Second Street, where they insisted
upon having it delivered, there is no evidence of an accep-
tance by defendants. The evidence shows that the barley

8EC. 318.] ACCEPTANCE AND RECEIPT. 595

was examined by defendants the next morning after it was
ordered from the elevator. Delivery, according to the terms
of a written contract, passes the title, but delivery under a
contract invalid by the statute of frauds is at the vendor's
risk. No act of the vendor alone is sufficient.^ While the
grain remained in the elevator, in the name of the plaintiff,
there had been neither delivery nor acceptance. The mere
issuance of the delivery order did not constitute an actual
delivery of the grain. It was merely a written authority to
receive the possession.** The manager requested the order
to cover past deliveries and this also, and it was accordingly
issued. It would hardly be claimed that the defendants were
precluded from rejecting the former two car-loads at Second
Street, if found inferior to sample. Nor would it be reason-
able, under the circumstances, to construe their omission to
examine this grain at the elevator into a waiver or conclusive
acceptance. Defendants might have gone and inspected the
grain before it was put in the elevator. Doubtless they might
have examined it in the elevator also ; but manifestly, if, as
the jury have found, it was to be delivered at Second Street,
this was not contemplated by the parties in making the con-
tract for the delivery of grain at that place to correspond
with the sample. Dealing with the property as owner, as by
a sale, pledge, or otherwise, or detention of the property, or
its control beyond a reasonable time for inspection and rejec-
tion, is evidence of an acceptance. This is not, we think,
shown to be the case here, upon a fair construction of the
evidence. A constructive receipt by the carrier at the ele-
vator, upon plaintiff's order, though upon defendant's request
to send it to Second Street, followed as it was by a season-
able inspection and rejection, because not equal to the sample,
falls short of an acceptance.^ To constitute an acceptance,
within the meaning of the statute, there must have been
some act on the part of the defendants showing their inten-
tion to accept and appropriate the grain unconditionally as
owners.* Now, in this case, whether it be claimed that the

1 Stone V. Browning, 68 N. Y. 598. 449, 455 ; 7 Am. Rep. 461 ; Knight v.

2 Tanner v. Scovell, 14 M. & W. Mann, 120 Mass. 219.

28; Benjamin on Sales (3d Am. ed.), * Simpson v. Crumdick, 28 Minn.

§§ 776, 806, 815. 352, 355 ; Stone v. Browning, supra.

8 Caulkins v. Hellman, 47 N. Y.

596 STATUTE OF FRAUDS. [CHAP. XU.

manager of the eleTator delivered the grain to the defen-
dants, through the carrier, at Second Street, and he says
" the order was his authority for sending the cars out," or
that he delivered it to the carrier for the defendants, in either
case the defendants had not so far received the actual pos-
session of the grain as to constitute an acceptance of the
goods as satisfying the contract.^ It is well settled that
delivery to a carrier, not selected or designated by the buyer,
does not constitute an acceptance within the statute.^ If the
buyer does not accept in person, he must do so tlirough an
authorized agent.^ Nor is it material that the buyer has
agreed or directed that it should be sent by carrier.* As
they did not order or control the cars, and did not remove or
disturb the grain, it was sufficient to give notice of their
refusal to accept it, leaving it in the custody of the carrier
on the transfer track.* The distinction between a mere
delivery or receipt, and an acceptance, is not to be lost sight
of ; and where the goods are sold by sample, the fact must be
considered as an element in the case in determining whether
the buj'er has taken actual or constructive possession as
owner, so as to indicate an acceptance thereby ; and the bur-
den of proof rests on the vendor to show the intent on the
buyer's part to take possession as owner.® If the plaintiff
intended to deliver the grain at the elevator, it is manifest
the defendants did not intend to accept and receive it there.
And as soon as they discovered that he had not delivered
what they agreed to buy, they refused to accept it. There
was no understanding that the barley was to be inspected at
the elevator. Considering the manifest understanding of
the defendants as to the proper place of delivery, and the
usual course of dealing between the parties, it was not un-
reasonable for them to request, nor for the plaintiff to send
these cars in the usual way, out on a transfer track in the
same city. They had a right to rely, as they unquestionably
did, upon plaintiff's agreement that the bulk would cor-

1 Blackburn on Sales, 22-3. v. Cuttle, 105 Mass. 447 ; 7 Am. Eep.

2 Caulkins v. Hellman, 47 N. Y. 545.

449, 454; 7 Am. Eep. 461. 6 Grimoldby v. Wells, L. R. 10 C.

8 Allard u. Greaaert, 61 N. Y. 1, 6. P. 391 ; Caulkins v. Hellman, 47 N.

* Norman v. Phillips, 14 M. & W. Y. 449, 455, 4^; 7 Am. Rep. 461.
277; Frostburg Mining Co. v. N. E. « Remick v. Sandford, 120 Mass.

Glass Co., 9 Cush. 115, 120; Johnson 809, 316.

SEC. 319.] ACCEPTANCE AND EECEIPT. 597

respond with the sample. No complaint is made of defen-
dants' laches in not promptly rejecting and notifying the
plaintiff after they discovered the condition of the grain.
Ordinarily, it is considered a question for the jury, whether
the acts or conduct of the buyer amount to an acceptance.
But where the undisputed facts are insufficient, as in this
case, to warrant such a finding, the question would not be
submitted to the jury.^ Here, we think, the defendants, in
good faith, were seeking a delivery of the grain purchased
by them, and their act in procuring the delivery order, under
the circumstances, in ignorance of its condition, had refer-
ence solely to its delivery, and was not a decisive and
unequivocal act of acceptance thereof as owner. In Morton
V. Tibbett,^ relied on by the plaintiff's counsel, the defendant
himself sent a carrier for the grain purchased hy sample, and
previous to its arrival resold it hy the same sample, before he
had inspected it; and it was held that its receipt by the car-
rier was not an acceptance, but that his resale of it was
evidence of an acceptance."^

Sec. 319. Marking Goods in Name of Vendee. — The mark-
ing of goods with the name of a purchaser with his consent,
will, if the other terms of the bargain have been settled, amount
to an acceptance of the goods, although the goods remain in the
possession of the vendor. But there must also be a delivery,
and to constitute that the possession must have been parted
with by the vendor, so as to deprive him of his right of lien.*
In Anderson v. Scot,* the plaintiff went into the defendant's
cellar and selected several pipes of wine, for which he agreed

1 Stone V. Browning, 68 N. T. 598, Walden v. Murdock, 23 Gal. 540 ;

601-2 ; Ham v. Van Orden, 4 Hun Kealey v. Tennant, 13 Ir. C. L. Rep.

(N. Y.) 709; Shepherd w. Pressey, 32 394; Byasse v. Reese, 4 Met. (Ky.)

N. H. 49, 56-7. 372 ; Dyer v. Libby, 61 Me. 45.

'^ 15 Q. B. 428. ' 1 Camp. 235. Where goods have

' Frostburg Mining Co. v. N. E. been weighed in the presence of the

Glass Co., 9 Cueh. 115, 120 ; Johnson vendee, and placed by themselves in

u. Cuttle, supra. the vendor's warehouse, marked with

* Dyer v. Libby, 61 Me. 45 ; Rap- the vendee's name, and to be delivered

pleye v. Adee, 65 Barb. (N. Y.) 589; when sent for, it was held to be such

Hodgson V. Le Bret, 1 Camp. 233 ; an acceptance as would take the sale

Baldey v. Parker, 2 B. & C. 37 ; 3D. out of the Massachusetts statute of

& R. 220 ; Proctor v. Jones, 2 C. & P. frauds. Exp. Safford, 2 Low. (U. S.

632; Boulter v. Amott, 1 Cr. & M. C. C.) 463; 15 Bankr. Reg. 564.
333; Bill v. Bament, 9 M. & W. 36;

598 STATUTE OF FEAUDS. [CHAP. Xn.

to pay a certain price : the spills or pegs by whicli the wine
is tested were then cut off; plaintiff's initials were iharked,
on the casks by defendant's clerk in his presence, and the
plaintiff took the gauge numbers. Loed Ellenboeoxtgh
held that upon these facts there had been an incipient
though not perfected delivery. This case, however, has
been disapproved of.^ In Proctor v. Jones,^ it was held
that the marking by the vendor of casks of wine lying
in the docks with the initials of the purchaser, at his
request, and in his presence, the terms of payment not having
been settled at the time, and consequently the contract not
being complete, was not an acceptance under the statute.

SeO. 320. Acceptance of One of Several Articles, Acceptance
of All, if Contract Entire. — Where several articles are bovght at
the same time, and the contract is proved to be entire, the accep-
tance of some of them is an acceptance of the wholet Thus, where
the plaintiff sold to the defendant twenty hogsheads of sugar
out of a larger quantity which he had in bulk, and filled four
hogsheads and delivered them to the purchaser, who accepted
them, and afterwards filled sixteen other hogsheads, and
requested the defendant to take them away, which he prom-
ised to do, it was held that the property in the sixteen hogs-
heads thereby passed to the defendant, and that his accep-
tance of the four was a part acceptance of the twenty.^ So
where the plaintiff and defendant went in one day to several
places distant a few miles from each other, where they agreed
for the purchase and sale of several lots of timber, and at
the last a memorandum of the whole transaction was made
and signed by the plaintiff, and part of the timber was
accepted by the defendant, but he refused to take the rest,
it was held that the whole formed one joint contract, and
that there had been a sufficient acceptance.* So where the
defendant verbally gave a joint order for thirty-five bundles
of common steel at 348. a bundle, and for five bundles of
cast steel at 48 s. a bundle, of a specified thickness, and the

1 4 Exch. 890 ; 18 L. J. Exch. 374. Scott v. Eastern Counties Eailway Co.,
See Saunders v. Topp, ante. 13 M. & "W. 38. Field v. Runk, 22 N.

2 2 C. & P. 532. J. L. 525.

' Ehodes «. Thwaites, 9 D. & E. « Bigg v. Wheeling, 14 C. B. 195.
293 ; Baldey v. Parker, 2 B. & C. 37 ;

SEC. 320.] ACCEPTANCE AND EEUBIPT. 599

common steel was accepted, and the question was whether
the acceptance of the common steel operated also as an
acceptance of the cast steel, it was held that it did,i Paekb,
B., saying : " The first question in this case is, . . . whether
there was a sufficient part acceptance of the goods ordered
to take the case out of the statute of frauds. There was a
joint order for common steel and cast steel: the effect of
such joint order, unless explained, would be to make it one
entire contract, since we must assume that one article would
not have been furnished at one stipulated price, unless the
other had been agreed to be paid for at the other price.
There was no explanation in this case, and therefore it must
be taken to be a joifit contract. Then one of the articles,
the common steel, was certainly accepted ; and the question
is, whether that acceptance is suflScient to take the case out
of the statute as to the cast steel also ; and I am clearly of
opinion that it is. The object of the statute was to prevent
perjury in proving by parol a contract which was never made
in fact; but none of its provisions effectually exclude per-
jury ; they only tend to diminish the probability of its being
committed. There may be perjury in swearing to the hand-
writing of the party charged, or in proving the agency of
the party signing on his behalf: neither does the acceptance
of the goods or the giving of earnest operate as a certain
prevention of perjury. Looking, then, at the words of the
statute, and assuming that there is but one contract, I am of opin-
ion that there was an acceptance of part of the goods sold, witliin
the words and also within the principle of the statute. I should
have been of this opinion, supposing that there were no
decided case on the subject. Several cases have, however,
been referred to on the part of the defendant, for the pur-
pose of proving that this was not a sufficient part accep-
tance. In Thompson v. Maceroni,^ the court held that the
acceptance of a small part of goods to the value of £144,
made to order, was not sufficient to enable the seller to
recover against the buyer for the price of the whole, as for
goods sold and delivered. The court there say, in effect, that
there was no proof of actual delivery, nor such proof of actual

' Elliott V. Thomas, 3 M. & W. ^ Thompson v. Maceroni, 3 B. &
176. C. 1.

600 STATUTE OF FEAX7DS. [CHAP. XII.

acceptance as to take the case out of the statute of frauds,
i.e., the defendant had not accepted the whole, so as that a
count for goods sold and delivered could be maintained for
the whole. That case seems to me to have turned entirely
on the form of the action ; the plaintiff could not succeed
unless there was a delivery of the whole, or at least an actual
acceptance and receipt of the whole, so as to be equivalent
to a delivery. In Hodgson v. Le Bret,^ Loed Ellen-
BOEO0GH formed his opinion apparently on the ground of
there having been separate contracts ; but that case is greatly
shaken by Baldey v. Parker,^ which shows that the contract
in Hodgson v. Le Bret ought to have been eonsidered as a
joint one, and that the act of the purchaser's writing her
name on the goods was no acceptance. Hodgson v. Le Bret,
therefore, is no binding authority. No other case was cited
in argument which bears upon the point ; and that of Price
V. Lea,^ referred to by my brother Aldeeson, is rather an
authority the other way. Holeoyd, J., there says : ' There
was not then one entire contract for both the articles, so as
to make the acceptance of one the acceptance of the whole.'
The inference, therefore, is (I do not say it is conclusive),
that if the contract had been entire, the acceptance of part
would have been deemed sufficient to take the case out of
the statute as to the whole. I am of opinion, therefore, that
there was in this case a sufficient acceptance of part to bring
the case within the exception of this section of the statute
of frauds ; and that the defendants may be made responsible
upon this joint contract for two articles, by the receipt of
one ; provided both the articles were furnished according to that con-
tract, and were such as ought to have been delivered pursuant to it.
That was to be proved by the plaintiff, and he did give evi-
dence of it for the consideration of the jury." Where a
vendee has accepted a part of the goods under a contract of
sale, he cannot refuse to accept the residue upon the ground
that those accepted were of inferior quality, but if, when the
residue of the goods are tendered, they prove to be of inferior
quality, he may reject them, otherwise he must receive them.*

1 Hodgson V. Le Bret, 1 Camp. 233. Scott v. Eastern Co. Railway Co., 12

2 Baldey v. Parker, 2 B, & C. 37. M. & W. 33.

s Price v. Lea, 1 B. & C. 156 ; * Cohen v. Piatt, 69 N. Y. 348.

SEC. 322.] ACCEPTANCE AND RECEIPT. 601

Sec. 321. when Contract is not Entire. — But if the contract
is not entire, or if goods are sent in excess of tJie order, the accep-
tance of part will not be an acceptance of all. Thus, where the
traveller of A and Co. in London, having called upon B in
the country for orders, B gave an absolute order for a quan-
tity of cream of tartar, and offered to take a quantity of lac
dye at a certain price, and the traveller said the price was
too low, but that he would write to his principals, and if B
did not hear from them in one or two days, he might con-
sider that his offer was accepted, and A and Co. never wrote
to B, but sent all the goods, it was held that there was not
one entire contract for both the articles, and therefore that
the acceptance of one was not equivalent to the acceptance
of the whole.^ So where a purchaser ordered four dozen of
wine, and the vendor sent him eight dozen, and the purchaser
kept thirteen bottles and returned the rest, it was held that
there was no part acceptance, but a new contract as to the
wine kept, and the purchaser was only liable upon that.^ In
a Massachusetts case;^ the defendant ordered a cargo of coal
of three hundred and seventy-five tons. The vendor shipped
to him three hundred and ninety-two tons. The court held that
the defendant was not bound to receive the substituted cargo.*

Sec. 322. Goods not Made. — Where an order is given for
goods, some of which are ready made at the time of the con-
tract, and the rest are to be manufactured according to order,
and the goods which are ready made are afterwards delivered
and paid for, the acceptance of them is a part acceptance of the
whole to satisfy the statute, as the contract is entire. Thus,
where certain lamps were ordered by the defendants, all of
which were of a well-known and ordinary description, with
the exception of a triangular lamp, which was very peculiar,
and the ordinary lamps were delivered and paid for, but the
triangular lamp was not finished for two years, and when
delivered the defendants refused to receive or pay for it, it

» Price V. Lea, 1 B. & C. 156. man v. Free, L. R. 4 Q. B. 600 ; Tarl-

' Hart ». Mills, 15 M. & W. 85 ; ing v. O'Riandorn, L. R. Ir. 82.

and see Cunliffe v. Harrison, 6 Ex. * Rounnel v. Wingate, 103 Mass.

903 ; Gorman », Boddy, 2 C. & K. 145 ; 327.

Levy V. Green, 8 E. & B. 575 ; Dixon * Hill u. Heller, 27 Hun (N. Y.)

V. Fletcher, 3 M. & W. 145 ; Borrow- 416.

602 STATUTE OF FEAT7DS. [CHAP. Xir.

was held that there was but one contract, and that the accep-
tance of some of the goods was enough to take the case out
of the statute.^ Alderson, B., saying : " The articles bar-
gained to be made are treated for this purpose as goods
actually made, although they are not in existence at the time
of the agreement." In a Colorado case,^ this rule was ap-
plied in the case of a verbal contract for the sale of lumber,
and it may be said to be well established in our courts, and
to be in strict conformity with the letter and spirit of the
statutes.^

Sec. 323. Goods Sold by Principal as if Agent. — Where a
principal enters into a contract for the sale of goods, in
which he describes himself as an agent, and the buyer
accepts and pays the price of a portion of the goods, he
cannot, after notice that the alleged agent was himself the
real principal in the transaction, refuse to accept the residue
of the goods ; and the principal may sue in his own name for -
the non-acceptance of and non-payment for the residue.*

Sec. 324. Mixed Contract. — A contract for the sale of
goods, for a sum equal to that named therein, is not the less
within the statute of frauds, because it also embraces some-
thing to which the statute does not extend, as an exchange.^
Thus, where it was agreed by parol between the plaintiff and
defendant that the plaintiff should sell the defendant a mare
and foal, and should keep them until a certain day at his own
expense, and that the plaintiff should also for a given time
keep and feed a mare and foal belonging to the defendant,
aiid that in consideration of all this the defendant should
fetch away the plaintiff's mare and foal on the day named,
and pay him £30, it was held that this, so far as it related to
the sale of the plaintiff's mare and foal, was a contract within
the seventeenth section of the statute, and void for want of
writing.^

1 Scott V. Eastern Counties Rail- Welsh, 11 id. 235 ; Oilman v. Hill, 36
way Co., 12 M. & W. 33. N. H. 311.

2 Sloan Saw Mill &o. Co. „. Gutth- * Rayner v. Grote, 15 M. & W. 359.
sail, 3 Cal. 8. ^ Bach v. Owen, 5 T. R. 409.

« Gault i>. Brown, 48 N. H. 183 ; e Harman v. Reeve, 18 C. B. 586 ;

Phelps V. Cutter, 4 Gray (Mass.) 137; 25 L. J. C. P. 257; see alsoBenj. on

Knight V. Dunlop, 5 N. Y. 537 ; Marsh Sales, 2d ed. 108.
V. Hyde, 3 Gray (Mass.) 331 ; Ross v.

SEC. 326.J ACCEPTANCE AND llECEIPT. 603

Sec. 325. Vendee Must Have an Opportunity of Judging
■Whether G-oods Correspond with Order. — There can be no ac-
ceptance and actual receipt of goods, unless the vendee has had an
opportunity of judging whether the goods sent correspond with the
order,^ or the buyer must have done something which amounts to a
waiver of this riglit.^ Therefore, where the defendant agreed
to purchase of the plaintiff bones of a particular kind, to be
separated from a heap of various bones, and gave the plain-
tiff a note addressed to a wharfinger to receive and ship the
bones ; and the plaintiff accordingly sent to the wharf some
bones, which, on inspection, the defendant refused to accept,
on the ground that they were not'what he bargained for ; it
was held that although there was a receipt, there was no
acceptance to satisfy the statute, as the purchaser of goods
to be separated from the bulk could not be said to have
accepted them tUl they were separated, and Maetin, B.,
said : " In my opinion, an acceptance, to satisfy the statute,
must be something more than a mere receipt ; it means some
act done after the vendee has exercised, or had the means of
exercising his right of rejection."* In Coombs v. The Bristol
and Exeter Railway Company,* Pollock, C. B., said : " There
is a decision in this court, Norman v. Phillips,^ that in order
to satisfy the statute of frauds, the consignee must have had
the power to reject the goods" ; and Bramwell, B., said:
" There must he some affirmative act of acceptance to make the
contract good" ; and referring to the judgment of Lokd
Campbell in Morton v. Tibbett,^ that there may he an accept-
ance and receipt of goods hy a purchaser within the statute,
although he has had no opportunity of examining them, and
although he has done nothing to preclude himself from object-
ing that they do not correspond with the contract, his lordship
said : " / agree with that, hut in such a ease the party must
have done something to waive his right to reject the goods."''

Sec. 326. User or Experiments to Ascertain Quality. — When
the nature of the goods is such that their quality cannot he

1 Smith V. Surman, 9 B. & C. 561 ; son, 6 B. & S. 431 ; 34 L. J. Q. B. 145;
Norman v. Phillips, 14 M. & W. 277. Heilbutt v. Hickson, L. R. 7 C. P. 438.

2 Bkamwell, B., in Coombs v. * 3 H. & N. 510; 27 L. J. Ex. 401.
Bristol &c. Railway Co., 3 H. & N. ^ i4 M. & W. 277.

517 ; Morton v. Tibbetts, ante. « 15 Q. B. 441.

8 Hunt V. Hecht, 8 Exch. 814; 22 ' BogLeadMiningCo.u.Montagiie,

L. J. Ex. 293; and see Smith u. Hud- 10 C. B. N. S. 481.

604 STATUTE OF FRAUDS. [CHAP. XII.

ascertained at once, the purchaser is entitled to keep them for
a reasonable time, for the purpose of examination. And if a
small quantity of the goods have been experimented upon
for the purpose of testing their quality, that does not amount
to an acceptance, and the purchaser will be entitled, if they
are defective, to return them within a reasonable time.^
Jlven if the purchaser has used more of the goods than was
absolutely needful to ascertain their quality, it appears that
this will not necessarily amount to an acceptance.^ Where the
plaintiff sold the defendant a hogshead of cider by sample,
as good draught cider, and after the arrival of the cask the
defendant on the 28th of May wrote to the plaintiff, " The
cider differs from the sample, and the little I have sold has
been complained of in every instance ; should this continue,
I shall be obliged to return it," and the plaintiff did not
answer this letter till the 24th of June ; and the defendant,
in trjdng to sell the cider, used twenty gallons ; but finding
it unserviceable, refused to pay for the rest, which he returned
to the plaintiff ; and it was found as a fact that the twenty
gallons were more than sufficient to enable the defendant to
test the quality of the bulk ; it was held that the omission of
the plaintiff to answer the letter of the 28th of May was
evidence from which a jury might presume that the plaintiff
acquiesced in the further trial of the cider, and that the
defendant had not so accepted the bulk as to be bound to
pay for the whole.'

Sec. 327. Goods Need Not Be Returned. — It is not necessary
thai there should be a return of the goods, either actual or consU-uc-
tive.* Thus, where goods were sold by sample, and the bulk
was found by the purchaser, on inspection after delivery, not
to be equal to sample, it was held that the purchaser might
reject the goods by giving notice to the vendor that he would not
accept them, and that they were at the vendor's risk ; and that
he was not bound to send back, or offer to send back, the
goods to the vendor, or place them in neutral custody.^

1 Cunliffe v. Harrison, 6 Exeh. 903 ; » Lucy v. Mouflet, 5 H. & N. 229 ;
20 L. J Ex. 325; Heilbutt v. Hickson, and see Grimoldby v. "Wells, L. R. 10
L. R. 7 C. P. 438. C. P. 391.

2 Elliott V. Thomas, 3 M. & "W. 170 ; * Lucy v. Mouflet, 5 H. & N. 233.
Curtis V. Pugh, 10 Q. B. Ill ; Toulmin ' Grimoldby v. Wells, L. R. 10 C.
II. Hedley, 2 Car. & K. 157. P. 391 ; Taylor v. Mueller, 30 Minn. 343.

SEC. 328.] ACCEPTANCE AND EECEIPT. 605

Sec. 328. Delay in Refusing may Amount to Acceptance. —

It appears to be clear that where goods are forwarded to a vendee,
he is bound to notify his refusal, in case he objects to take the goods,
to the vendor within a reasonable time, otherwise he may be con-
sidered to have accepted them ; whether or not the refusal
was within a reasonable time is of course a question of fact
for the jury.i In Bushel v. Wheeler ^ it appeared that the
plaintiffs were the assignees of bankrupts who had carried
on business as manufacturers of iron. The defendant had
ordered of the bankrupts, before their bankruptcy, certain
mill machinery, to be forwarded to him at Hereford by the
Hereford sloop. The machinery was forwarded on the 23d
of April. On the 25th of April a letter of advice with an
invoice at three months' credit was sent to the defendant.
The goods arrived at Hereford, and were there placed in the
warehouse on the wharf of the owner of the sloop, and the
defendant was informed of this immediately. On the 7th of
October the goods were repudiated. The defendant proved
that after the arrival of the goods at the warehouse he had
seen them, and had informed the warehouseman that, he, the
defendant, did not intend to take them. Eeskine, J., directed
the jury to find a verdict for the defendant, reserving leave
to move \o enter a verdict for the plaintiff. It was held that
the judge ought not to have told the jury that there was no
acceptance, and a new trial was directed. Loed Denman,
C. J., said that " such a lapse of time, connected with the
other circumstances, might show an acceptance ; whether
there was an acceptance or not is a question of fact." Wil-
liams, J., said : " Something there must be in the nature of
constructive receipt, as there is constructive delivery. It
being, then, once established that there may be an actual
receipt by acquiescence, wherever such a case is set up it
becomes a question for the jury whether there is an actual
receipt." And Coleeidgb, J., said : " In almost all cases it
is a question for the jury whether particular instances of
acting, or forbearing to act, amount to acceptance and actual
receipt. Here goods are ordered by the vendee to be sent by

1 Coleman v. Gibson, 1 Mood. & Blake, 2 C. & P. 514 ; Downs v. Marsh,

Kob. 168; Bowes v. Pontifex, 3 F. & 29 Conn. 409; Hirchborn v. Stewart,

r. 739 ; Richardson v. Dunn, 1 G. 49 Iowa 418.
& D. 417; 2 Q. B. 218; Perciral v. ^ 15 Q. B. 442, n.

606 STATUTE OF FRAUDS. [CHAP. XII.

a particular carrier, and in effect, to a particular warehouse ;
and that is done in a reasonable time. That comes to the
same thing as if they had been ordered to be sent to the
vendee's own house, and sent accordingly. In such a case
the vendee would have had the right to look at the goods,
and to return them if they did not correspond to order. But
here the vendee takes no notice of the arrival, and makes no
commxinication to the party to whom alone a communication
was necessary." ^ In Norman v. Phillips ^ the defendant, a
builder at Wallingford, gave the plaintiff, a timber merchant
in London, a verbal order for timber, directing it to be sent
to the Paddington Station of the Great Western Railway, to
be forwarded to him at Wallingford, as had been the practice
between the parties on previous dealings between them. The
timber was accordingly sent, and arrived at the Wallingford
Station on the 19th of April, and the defendant was informed
by the railway clerk of its arrival, upon which he said he
would not take it. An invoice was sent a few days after,
which the defendant received and kept, without making any
communication to the plaintiff himself until the 28th of May,
when he informed the plaintiff that he declined taking the
timber. It was held that although there might be a scintilla
of evidence for the jury of an acceptance of the timber, yet
that there was not sufficient to warrant them in finding that
there was such an acceptance ; and the court set aside a verdict
found for the plaintiff as not warranted by the evidence.^ But
the dealings between the parties may be such as to prove that there has
been an agreement that the vendee may delay exercising his right of
rejection. Thus in Cunliffe v. Harrison * the action was for
goods sold and delivered, to recover the price of ten hogs-
heads of claret. It appeared that the defendants having
ordered some hogsheads of claret, the plaintiff in October
sent them fifteen, whereupon the defendants by letter informed
the plaintiff that they had requested that ten only should be
shipped, and that they could take that number only on their

1 And see Morton v. Tibbett, 15 Q. 2 14 M. & W. 277.

B. 428 ; 19 L. J. Q. B. 382 ; Parker v. » And see NichoUs v. Plume, 1 C.

Wallis, 5 E. & B. 21 ; Smith v. Hud- & P. 272 ; Gorman v. Boddy, 2 C. &

son, 6 B. & S. 431 ; 34 L. J. Q. B. 145 ; K. 145.
in all of which it was considered that * 6 Exch. 903.
delay in rejecting amounts to some
evidence of acceptance.

SEC. 330.] ACCEPTANCE AND RECEIPT. 607

proving satisfactory, and that they would hold the other five
on the plaintiffs account. The plaintiff replied : " You will
ascertain in the spring whether you have room for it." The
defendants placed the wine in a bonded warehouse in their
own names, and shortly afterwards tasted the wine and
disapproved of it, and gave the plaintiff notice in April that
they would not take any part of it. It>was held that there
was no acceptance, inasmuch as the defendants under the
contract had the option of rejecting the wine in the spring,
and they had availed themselves of that option. The same
rules apply in cases where the acts of acceptance relied upon
are the retention of the bill of lading or other indicia of
ownership, and the vendee's dealing therewith.^

Sec. 329. Purchaser Cannot after Acceptance 'Withdraw
unless Fraud. — After the purchaser of goods has once accepted
and received them, he cannot withdraw from his bargain
except on the ground of fraud,^ because the contract by such
acts becomes as valid as though it had originally been in
writing, and the rights, liabilities, and remedies of the parties
become the same as they would be under a valid written
contract,^ and the power of rescission, except for fraud, is
gone. In a Connecticut case* the court held that a party
has no power to rescind a contract of purchase unless there
is a provision in it, giving him the right to do so, and that if
the property purchased does not answer the terms of the
contract, there being no fraud in the case, his only remedy is
by an action for a breach of the contract.

Sec. 330. Vendor's Consent to Acceptance Necessary. — In
order to satisfy the statute there must be an acceptance and
actual receipt of the goods, or part of them, with the consent
of the vendor, and if before such acceptance the vendor
rescinds the contract, the assignees of the buyer, in the case
of his bankruptcy, cannot claim them, although they have
been delivered to a carrier, consigned to the buyer. In Smith
V. Hudson^ the defendant, on the 3d of November, 1863,

1 Quintard v. Bacon, 99 Mass. 185; ' Marsh v. Hyde, 3 Gray (Mass.)
Farina v. Howe, ante. 333 ; Townsend v. Hargreaves, 118

2 Saunders v. Topp, 4 Exch. 390 ; Mass. 325 ; Knight i;. Mann, 118 Mass.
18 L. J. Ex. 874 ; Buckmgham v. Os- 145 ; Atherton v. Newhall, 123 id. 141.
borne, 44 Conn. 133 ; Jackson v.WaXtB, * Buckingham v. Osborne, ante.

1 McCord. (S. C.) L. 288. » 6 B. & S. 431 ; 34 L. J. Q. B. 145.

608 STATUTE OF FEAUDS. [CHAP. XII.

entered into a verbal contract with W to sell him barley by
sample. The bulk was taken on the 7th of November by the
defendant to a railway station, and left there with a delivery
note. It is the custom of the trade for the buyer to compare
the sample with the bulk as delivered, and if the examination
is not satisfactory, to strike it, that is, either refuse to accept
it, or allow it to remain as the property of the vendor ; and
it was in the power of W to strike the corn if it had not
proved according to sample. On the 9th of November W
was adjudicated a bankrupt, and on the 11th the defendant
gave notice to the station-master not to deliver the corn to
the bankrupt or his assignees, or any other person without
his written consent. At the time of the notice the bankrupt
had given no order or direction respecting the corn, nor had
he examined it to see whether the bulk corresponded with
the sample, nor had he given any notice to the defendant
that he accepted or declined it. On the 1st of December the
assignees of W claimed the corn ;■ on the 5th the railway
company, on an indemnity from the defendant, delivered it
to him. It was held that there was no acceptance sufficient
to satisfy the statute.^

Sec. 331. Contract Disaffirmed by Vendor. — If at the time
when the purchaser of goods takes to them as owner the parol con-
tract has been already disaffirmed by the vendor, there can be no
acceptance. Thus, where it was verbally agreed between the.
owner of goods and a person who was in possession of them
as his tenant, that the tenant might, if he pleased, purchase
them at the termination of his tenancy, but that he was not
to take them till the money was paid, and at the expiration
of the tenancy the buyer tendered the price, but it was
refused by the vendor, who denied the validity of the bargain,
and after this the vendee proceeded to take away the goods,
and the vendor prevented him and took possession of them ;
it was held that there was no evidence to go to the jury of
acceptance and receipt.^

Sec. 382. Acceptance by Agents. Rule in Rodgers V.
Jones. — In order to bind a principal by the acceptance
of an agent, of property sold to him, it m,ust appear that he

1 And see Bolton v. Lancashire ^ Taylor i'. Wakefieldj 6 E. & B.

Hallway Co., L. R. 1 C. P. 431. 765.

SEC. 332.]

ACCEPTANCE AND KECEIPT.

609

had authority to accept, or that the principal has under-
slandingly ratified his act in that respectA But authority to
buy necessarily carries with it authority to accept.^ Thus,
in a New York case,* it was held that an acceptance
by a broker of stock which he was authorized to purchase
by the principal, was operative to take the case out of
the statute. But authoritj'^ to receive does not necessarily
import authority to accept,* nor can this authority be dele-

' Bodgers v. Jones, 129 Mass. 420;
Caulkins v. Hellman, 14 Hun (N. Y.)
330; AfE'd, 47 N. Y.; Berkley v. R.
& S. R. R. Co., 71 N. Y. 205. An
acceptance by a clerk or a shop boy
will not bind the principal- Smith v.
Mason, Anth. N. P. (N. Y.) 225. But
in all cases auihority to accept, express
or implied, must be shown : Dyer v.
Forrest, 2 Abb. Pr. (N. Y.) 282; Out-
water V. Dodge, 6 Wend. (N. Y ) 397 ;
Remick v. Sandf ord, 120 Mass. 309 ;
Safford o. McDonough, 120 id. 290;
Spencer v. Hale, .30 Vt. 314 ; Barney
V. Brown, 2 id. 374 ; Frostburg Mining
Co. u. N. E. Glass Co., 9 Cush. (Mass.)
115. In a New York case, it appeared
that G and other directors of a fair
association ordered goods to be sent
by express for the use thereof ; that
they were sent addressed to G, on his
agreement to be individually respon-
sible ; and that they were received by
T without any objection on the part
of G, and used by the association. It
was held, to warrant a finding that T
was authorized to accept the goods ;
that the acceptance was sanctioned
by G, and that there was a valid de-
livery within the statute of frauds.
Wilcox Silver Plate Co. v. Green, 72
N. Y. 17; Field v. Runk, 22 N. J. L.
525 ; Berkley v. R. & S. R. R. Co., 71
N. Y. 205; Rogers v. Gould, 4 Hun
(N. Y.) 229.

2 Snow V. Warner, 10 Met. (Mass.)
132.

' Rogers v. Gould, 6 Hun (N. Y.)
229.

* In Jordan v. Norton, 4 M. & W.
155, it appeared that after some ne-
gotiation between the plaintiff and
defendant (who lived at the distance

of about thirty miles from each other)
for the purchase by the defendant of
the plaintiffs mare, she was sent on
the 16th of October, 1837, at the de-
fendant's request, to a public-house
called the World's End, nearly half-
way between their houses, for trial by
the defendant. The defendant's son,
in his presence, rode the mare, and
the defendant then offered twenty
guineas for her, which was refused by
the plaintiff's servant who had her in
charge, he having directions from the
plaintiff not to take less than £22,
and lie took her back. The plaintiff,
however, was afterwards willing to let
the defendant have her for twenty
guineas, and wrote to liim to that
effect. The defendant wrote in
answer as follows :

" Uxbridge, October 17, 1837.

"Sir, — I will take the mare at
twenty guineas, of course warranted ;
but as you say you have another horse
that I shall buy, the same expense
will bring the two up; therefore, as
the mare lays out, turn her out my
mare; and I will meet you at West
Wycombe, Saturday or Monday,
which day you like and pay you at
once. — W. NoBTON."

The mare was sent to Wycombe
accordingly, but the defendant was
not there ; two appointments also
which were subsequently made, one
at the World's End, and the other at
Wycombe, not having been kept by
him, the plaintiff wrote to him on the
subject, and received the following
answer :

"Uxbridge, October 26, 1837.

"Sir, — Of course I mean to have
the mare, and if you had read my

610

STATUTE or PRAUDS.

[chap. xn.

to another. Thus, in a Massachusetts case,^ the
defendant made an oral agreement with the plaintiff to

1 Eodgers v. Jones, 129 Mass. 420.

note properly it would have saved
you a great deal of trouble. I now
say, my son will be at the "World's
End on Monday, the 30th instant,
when he will take the mare and pay
you. If you want to go elsewhere,
send anybody with a receipt, and the
money shall be paid ; only say in the
receipt sound, and quiet in harness."

On the 27th of October, the plain-
tiff wrote in answer: "I will send
the mare as desired ; she is warranted
sound, and quiet in double harness; I
never put her in single harness, as I
never wanted it." On the 30th the
mare was sent to the World's End,
according to the appointment ; but the
defendant's son not being there, the
plaintiff's servant left her in the care
of the landlord, with directions not to
give her up to the defendant without
payment of the price. After he had
gone, the defendant's son came, took
away the mare without paying for
her, rode her home (a distance of
eighteen miles) to the defendant's
stable, where she was kept two days,
and then sent back as being unsound,
her legs being at that time swelled ;
but the plaintiff refusing to receive
her, she was turned out of his yard,
and it did not appear what had be-
come of her.

The son, who was called as a wit-
ness for the defendant, said that his
father had given him directions not
to bring the mare away from the
World's End without the warranty,
and was angry with him for having
done so. He also, as well as the
person who took her back to the
plaintiff's, spoke to her unsoundness
at that time. This evidence was ob-
jected to by the plaintiff's counsel,
but the learned judge held that it was
receivable in mitigation of damages.
In summing up, his lordship told the
jury that the plaintiff was bound, in
order to recover, to prove a delivery
of the mare; but there could not.

under the circumstances of the case,
be a complete delivery unless there
had been an acceptance on the part of
the defendant, whereby he had waived
the conditions he had previously re-
quired, and which the plaintiff had
not complied with, namely, the giving
of a receipt, and of a warranty in-
serted in it : that the question whether
there had been such acceptance would
depend on whether the defendant had
returned the mare within a reasonable
time or not ; and if they thought he
had returned her within a reasonable
time, that they should find for the de-
fendant ; if not, for the plaintiff. He
also desired them to state their opinion
whether the defendant's son had
authority to take away the mare
without a warranty. The jury found
that the defendant had not accepted
the mare, and that the son had no
authority to take her away. The
judge thereupon directed a verdict for
the defendant, giving the plaintiff
leave to move to enter a verdict for
the sum of £21, in case the court
should think the direction to the jury,
and the admission of evidence of tm-
soundness, to have been wrong.

Upon appeal the verdict was sus-
tained, Pakke, B., saying : " The first
question to be disposed of is whether
there is any evidence of a complete
contract in writing between the parties.
If there was, then the only step neces-
sary to be proved in order to entitle
the plaintiff to recover in this action,
was to prove the delivery of the mare,
and it was not competent to the de-
fendant to annex to it any conditions.
It certainly appears that the mare
was seen by the defendant, and ridden
in his presence, and twenty guineas
offered by him for her, prior to the
first material letter to which I am
about to advert ; that is, on the 16th
of October. Then, on the 17th, the
defendant writes a letter to the plain-
tiff, which amounts to a proposal to

SEC. 332.]

ACCEPTANCE AND RECEIPT.

611

purcliase of him a lot of skins at an agreed price per pound
for merchantable skins, and directed one Koehler to see them
put up and taken away, but directed him not to take them
away before the following Friday or Saturday. Koehler only
remained to see apart of the skins packed, telling the plaintiff:
" There is no need of my staying here any longer. This is a
good lot of skins. There is no chance for any question as to
quality of skins, and you go ahead and put them up. ... I
know you well enough. I'll take the risk of your doing it all
right. You go ahead and put up the skins." The plaintiffs
did go ahead, and packed the skins ready for delivery on the
next Saturday, and marked each bundle with the defendant's
initials. Koehler had previously told them that he would

take the mare on new terms, one of
which was not yet arranged between
the parties. This letter amounts only
to a proposal to give twenty guineas
for the mare, proTided she were war-
ranted ; but the terms of the warranty
still remained to be agreed upon. If
the parties do not agree upon a war-
ranty which shall be satisfactory to
both, there is no complete contract.
We are to see, then, whether there
was a warranty subsequently agreed
on. Next comes the letter of the
26th of October. By that letter the
defendant agrees to be bound by the
contract, if the plaintiff will give a
warranty of a particular description,
viz., that the mare is quiet in harness ;
that is, prima facie, in all descriptions
of harness. The plaintiff replies, that
he will agree, not to the precise terms
of the warranty asked for, but only
that she is quiet in double har-
ness. The correspondence, therefore,
amounts altogether merely to this :
that the defendant agrees to give
twenty guineas for the mare, if there
is a warranty of her being sound and
quiet in harness generally, but to that
the plaintiff has not assented. The
parties never have contracted in writ-
ing ad idem.

We are then to ascertain, in the
next place, whether this is supplied
by the parol evidence, or by the acts
or conduct of the parties. There is

nothing in the parol evidence to sup-
ply it ; the question therefore is, first,
whether the conduct of the defendant's
son at the World's End amounts to
an acceptance. It is contended that
the defendant is bound by the son's
acts on that occasion ; but I think he
is not, because the son had only a
limited authority ; and if a party con-
tracts with another through his agent,
he can take only such rights as the
agent can give ; and this is no hard-
ship on the plaintiff, because he was
distinctly informed that the son was
authorized to receive the mare if a
warranty were given that she was
quiet in harness. Then the only re-
maining question is, whether she was
in fact accepted by the defendant on
the terms of the limited warranty pro-
posed by the plaintiff. That question
was left to the jury, and they found it
in favor of the defendant. I agree,
that if there was a complete contract
in writing before, the direction of the
learned judge would not have been
quite correct; but the question being
whether there was an acceptance in
fact, the contract not being complete
before, the direction was perfectly
unexceptionable. The case comes
therefore to this : there was no com-
plete contract in writing by which
both parties were bound, there was no
sufficient delivery to the defendant,
and there was no acceptance."

612 STATUTE OF FEATIDS. [CHAP. Xn.

send his team around Saturday morning and take away the
skins, but did not do so, and on Saturday night the skins
were destroyed by fire. The court held that no sub-accept-
ance of the skins by the defendants had been shown as would
satisfy the statute. In order to constitute an acceptance and
receipt under the statute it is not enough to show that the title
has passed to the vendee, but it must also be shown that he has
assumed the legal possession of them, either by taking them into the
custody and control of himself or of his authorized agent, so as to
terminate the vendor's possession of them and lien for the price. ^
A person cannot act in the double capacity of agent for the
vendor in selling and for the vendee in accepting the goods,
as the law will not tolerate any man becoming both buyer
and seller at the same time, of the same article, and this is so
whether his action was attended by the utmost fairness or
not.^ Thus, in the case first cited in the last note an action
was brought to recover of the defendant for twenty-three
casks of wine, sold by the plaintiffs through their agent,
Gordon, to the defendant by parol contract. The wine was
sold in New York City, and by the terms of the contract
was to be delivered at Blood's Station, and Gordon was
engaged by the defendant to see to the shipping of the wine
to him from Blood's Station to New York City. The wine

' Grey, C. J., in Rodgers v. Jones, gain in duplicate, one part of which

129 Mass. 422 ; Atherton v. Newhall, he headed with the name of the de-

123 id. 141 ; Saiford v. McDonough, fendant, and the other part with the

120 id, 290. name of tlie plaintiff. The defendant

2 Calkins v, Hellman, ante ; N. T. requested that the date might be
Cent'l Ins. Co. v. Nat. Protection Ins. altered, so that by the custom of the
Co., 14 N. Y. 85 ; Claflin v. Farm &c. hop trade he would haye a week's
Bank, 24 How. Pr. (N. Y.) 15. But more time for payment. The plaintiff
this rule does not prevail as to the consented, and the alteration was
making of a memorandum of a con- made by the factor, who tore from his
tract under the statute, at least as to book the part of the memorandum
factors and brokers. Thus, in Durrell headed with the name of the defendant
o. Evans, 1 H. & C. 174, the plaintiff, and delivered it to him, and kept the
a hop-grower, having sent samples of counterfoil in his possession. It was
his hops to his factor, the defendant held that there was evidence for the
went to the factor and offered to buy jury that the factor was the agent of
some at j£16 16 s. a cwt. After some both parties for the purpose of draw-
negotiation between the defendant, ing a record of the contract binding
the factor, and the plaintiff, the latter on them ; and that, if he were, the
agreed to sell the hops at that price, name of the defendant at the head of
and the factor wrote in his book, in that part of the memorandum de-
the presence of the plaintiff and de- livered to him was sulScient.
fendant, a memorandum of the bar-

SEC. 333.]

ACCEPTANCE AND RECEIPT.

613

was sold by sample, and the defendant retained the sample at
his place of business in New York. The wine was delivered
at Blood's Station, and shipped by Gordon from thence to
the defendant at New York, who refused to receive it. In
action for the price of the wine the plaintiffs relied upon the
defendant's arrangement with Gordon, and Gordon's acts
thereunder, to establish an acceptance of the wine by the
defendant. The court held that there was no evidence of an
acceptance, as Gordon could not act as agent for the plain-
tiffs and the defendant both at the same time, relative to the
same transaction.

Sec. 333. A Carrier of Goods has no Authority to Accept. —
A carrier of goods, although named by the vendee, has no
authority to accept the goods ; he is only an agent for the pur-
pose of receiving and carrying.^ Neither a wharfinger, or any

1 DeliTery to a carrier does not
operate to take a contract, invalid
under the statute of frauds, out of the
statute. The delivery of the goods to
a carrier does not constitute an accept-
ance of them by the vendee, tliereby
validating the contract. Nor does the
designation of a carrier in such void
contract or order clothe him with
power to make such acceptance for the
vendee. The vendor, being charge-
able in law with knowledge of the
invalidity of such contract or order,
who delivers the goods to the carrier
upon it, takes the risk of their accept-
ance by the vendee on arrival. Kei-
wert V. Meyer, 62 Ind. 587 ; Krudler v,
Ellison, 47 N. Y. 36; 7 Am. Rep. 402.
Where the contract of purchase and
sale is not valid.or complete by reason
of the statute of frauds, the goods
being over the value of ilO, the title,
still remains in the consignor, though
the goods have been delivered to the
carrier, and the contract still resting
in parol, the action must be brought
by the consignor. Coombs v. The
Br. & Ex. R. Co., 3 Hurl. & Nor. 510.
But in this case all the judges, in de-
livering opinions, admitted the rule
to be, that the consignee must have
brought the action had the order been
in writing, and the sale valid. The

question was whether the property
passed to the vendee. If it did, he
must sue.

In Allard v. Greasert, 61 N. Y. 1,
it is expressly decided, that a delivery
to a specified carrier does not consti-
tute an acceptance by the vendee,
and will not take the contract out of
the statute. There being no valid
contract at the time of the delivery,
the carrier, in such case, has no power
to bind the vendee by an acceptance
of the goods ; though it is held that a
vendee may accept before delivery,
as if a buyer examines and selects
particular articles of goods, and after-
ward sends a legal, valid order for
♦hose selected articles. Cross v.
O'Donnell, 44 N. Y. 661; 4 Am.
Rep. 721.

In Johnson v. Cuttle, 105 Mass.
447 ; 7 Am. Rep. 545, the court uses
this language : " Mere delivery is
not sufiScient ; there must be un-
equivocal proof of an acceptance and
receipt by him " (the buyer). "Such
acceptance and receipt may indeed be
through an authorized agent. But a
common carrier (whether selected by
the seller or by the buyer), to whom
the goods are intrusted without ex-
press instructions to do anything but
to carry and deliver them to the

614

STATUTE OF FEAUDS.

[chap. XII.

other person authorized to receive and keep goods for a ven-
dee, has any authority of acceptance, and if the vendee refuses
to take the goods, the person to whom they have been intrusted
holds them as agent for the vendor. Where the purchaser
of goods ordered them to be forwarded to him in a particular
manner, and desired a third person, who then had possession
of them, to see them delivered, measured, and put up prop-
erly, and they were sent to another warehouse belonging to
the vendor, when one of his clerks gave an invoice to the
purchaser, who took it and requested a week longer to pay
the money, and on the same day gave notice that he would
not accept the goods, it was held that there had not been an
acceptance.^ The delivery of goods bought abroad, on board

buyer, is no more than an agent to
carry and delirer the goods, and
has no implied authority to do the
acts required to constitute an accept-
ance and receipt on the part of the
buyer and to take the case out of the
statute of frauds. Snow v. Warner, 10
Mete. (Mass.) 1.32; Frostburg Mining
Co. V. New England Glass Co., 9 Cush.
(Mass.) 115; Boardman u. Spooner, 13
Allen, 353 ; Quintard i-. Bacon, 99
Mass. 185; Norman v. Phillips, 14 M.
& W. 277 ; Nicholson v. Bower, 1 El.
& El. 172 ; Caulkins v. Hellman, 47 N.
Y. 449; Hausman v. Nye, 62 Ind. 485.
There is no acceptance, although the
goods have been delivered to a car-
rier designated by the vendee, so long
as there remains in the vendee a right
to object to the quantity or quality
thereof, Lloyd v. Wright, 25 Ga. 215 ;
and no act of the seller alone can be
sufficient, Shepherd v. Pressey, 32 N.
'K. 49; but there must be some act of both
parties, which amounts to a transfer of
possession, and an actual receipt of
the goods which deprives the seller of
hie lien for the price. Edwards v. Gd.
Trunk Railway Co., 54 Me. 105. And
although an intention of the consignor
of goods to vest the right of property
in the consignee is clearly proved, still,
until the goods are received by the con-
signee, or some evidence is given of
his agreement to take them on his
own account, the goods are at the risk

of the shipper, and if the shippers
are enemies, they are good prize, if
captured. The Francis, 8 Cranch (IT.
S.) 359. Goods are received and ac-
cepted by the purchaser, within the
statute of frauds, when they are trans-
ported by the seller to the place of
delivery appointed by the agent who
contracted for them, and are there
delivered to another agent of the pur-
chaser, and are by him shipped to a
port where the purchaser had given
him general directions to ship goods
of the same kind. Snow v. Warner,
10 Met. (Mass.) 132. Thus, under a
contract for the purchase of railroad
ties, to be counted, inspected, and ac-
cepted by the purchaser, the ties were
delivered at the place agreed on, taken
by the purchaser, loaded on cars, and
sold ; and it was held this was such an
acceptance as rendered the purchaser
liable on the contract. White v. Han-
chett, 21 Wis. 415.

1 Astey V. Emery, 4 M. & Sel. 262;
Johnson v. Cuttle, 105 Mass. 447;
Frostburg Mining Co. v. N. E. Glass
Co., 9 Cush. (Mass.) 115; Denmead
V. Glass Co., 30 Ga. 637 ; Lloyd u.
Wright, 25 Ga. 212; Boardman v.
Spooner, 13 Allen (Mass.) 363; Shep-
herd w. Pressey, 32 N. H. 49; Haus-
man 17. Nye, 62 Ind. 485 ; AUard v.
Greasart, 61 N. Y. 1; Maxwell v.
Brown, 39 Me. 98; Grimes v. Van
Vechten, 20 Mich. 410; Jones v. Me-

SEC. 334.] ACCEPTAITCB AND RECEIPT. 615

a ship chartered by the purchaser, is not a sufficient accept-
ance.^ Nor does the delivery at a railway station named by
the purchaser, in pursuance of a parol order by him, amount
to evidence of acceptance.^ While a carrier, even though
designated by the vendee, has no authority to accept the
goods,* yet, under such circumstances, the receipt of the
goods by the carrier, is a receipt by the vendee,* and to this
extent, the doctrine of some of the earlier cases holding that
a delivery to a designated carrier concludes the bargain, are
sustainable,^ but the doctrine of these cases to the effect that
the carrier may accept the goods, as we have seen, is exploded.
Sec. 334. Disputed Terms though Acceptance. — Where
goods have been delivered by the vendor arid accepted by the vendee,
that is evidence of the existence of a contract between the parties.^
There may, however, be terms of the contract which may be
disputed, and these are questions of fact to be determined by
the jurj"^. Thus, where the plaintiffs sold a piano to the
defendant, and delivered it to the defendant, who kept it,
but refused to pay for it, alleging that it was delivered upon
an agreement that it should remain as security for the pay-
ment of certain outstanding bills which he had discounted
for the plaintiff, it was held that there was a sufficient accept-
ance within the statute, and that parol evidence was admissi-
ble to show the terms of the bargain.'^

chanics Bank, 29 Md. 287 ; Snow v. * Wilcox Silver Plate Co. v. Green,

Warner, 10 Met. (Mass.) 132; Spencer 72N. Y. 18; Allardi-. Greasart,61 id.l.

V. Hale, 30 Vt. 315; Rodgers v. * Hart v. Sattley, 3 Camp. 528;

Phillips, 40 N. Y. 519. Dames v. Peck, 8 T. R. 330.

^ Acebal v. Levy, 10 Bing. 367 ; * In Townsend ;;. Hargreaves, 118

4 M. & Sc. 217; and see Hanson o. Mass. 325, Colt, J., said: "An accept-

Armitage, 5 B. & Aid. 557 ; Johnson ance implies the existence of a completed

V. Dodgson, 2 M. & W. 656; Bushel contract, sufficient to pass the title,

». Wheeler, 15 Q. B. 445; Norman v. which is not to be confounded with

Phillips, 14 M. & W. 277 ; Meredith that actual transfer of possession nec-

V. Meigh, 2 E. & B. 364 ; 22 L. J. Q. essary to defeat the vendor's lien, or

B. 401 (overruling Hart v. Sattley, 3 right of stoppage in transitu, or to

Camp. 528) ; Hunt v. Hecht, 8 Exch. show an actual receipt under the stat-

814; Hart v. Bush, E. B. & E. 494; ute." Marsh v. Hyde, 3 Gray (Mass.)

27 L. J. Q, B. 271 ; Cusack v. Eobin- 33. It proves the existence of a. cou-

sdn, 1 B. & S. 299 ; 30 L. J. Q. B. 261 ; tract of sale. Williams v. Burgess,

Stevens v. Stewart, 3 Cal. 140. 10 Ad. & El. 499; Atherton v. New-

2 Smith V. Hudson, 6 B. & S. 431 ; hall, 123 Mass. 141.

34 L. J. Q. B. 145. '' Tomkinson v. Staight, 17 C. B.

« Johnson v. Cuttle, ante ; Ather- 697 ; 25 L. J. C. P. 85. In this case,

ton V. Newhall, 123 id. 141 ; Nicholson Jakvis, C. J., said : " My mind has

ti. Bower, 1 El. & E. 172. wavered considerably during the dis-

616

STATUTE OF FEAUDS.

[chap, XII.

Sec. 335. what is an* Actual Receipt. Distinctiou between
and " Acceptance." Test of, Vendor's Lien. — The statute, it
will be seen, requires that the goods shall be accepted and
received, and it is important to remember that acceptance and
receipt are distinct matters, for there may be a constructive
acceptance of goods without receipt, and there may be an
actual receipt of goods without acceptance.^ The test for

cussion of this case. At one time
I was inclined to think that there
had heen no acceptance under the
statute ; but after looking into the
matter, I now think that there was,
and that the rule, therefore, ought to
be discharged. In order to satisfy
the statute on a sale of goods for £10
or more, there must be a writing, or a
part payment, or a delivery and accep-
tance of the goods sold. I think those
words mean an acceptance of goods
sold at a price of £10, or more. In
this case there is no doubt that there
was a delivery and an acceptance. It
is just as if the defendant had said he
accepted on six months' credit. The
terms of the contract as to the time
when the money is to be paid would
then be the question in dispute, there
being no doubt about the acceptance.
The jury has found the acceptance,
and the terms set up by the plaintiffs.
This case really does not differ from
the ordinary case where a man says to
another, 'I have sold you goods for
present payment,' and the other an-
swers, ' You sold them on a month's
credit, and you have brought your
action too soon.' The fact that there
is no case to be found in the books to
support the defendant's view affords
a strong argument to show that it is
not in accordance with the meaning
of the statute. I think, in this case,
the defendant is precluded by the find-
ing of the jury, and tliat, therefore,
the rule ought to be discharged."
Williams, J. : "I think there is no
doubt there was a delivery and accept-
ance under the statute of frauds. No
doubt the acceptance was accompa-
nied by a denial by the defendant of
one of the terms necessary to support
this action, and for some time I felt

great difSculty in saying that any
proof could be offered, in lieu of writ-
ing, which amounted, instead of a cor-
roboration of the contract, to a denial
of it. But, upon the whole, I am of
opinion that nothing was intended in
the statute, except that the defendant
should have accepted in the quality
of vendee. The legislature has thought
that where there is a fact so consistent
with the alleged contract of sale as
acceptance, it would be quite safe to
dispense with the necessity of a writ-
ing. The statute does not mean that
the thing which is to dispense with
the writing is to take the place of all
the terms of the contract, but that the
acceptance is to establish the broad
fact of the relation of vendor and
vendee. Here the relation of vendor
and vendee was established, and that
was sufficient to satisfy the statute."
Chowder, J. : "I think there was
an acceptance within the statute of
frauds. The jury having found the
acceptance, there is no doubt there
was a delivery and acceptance, and
that enables the plaintiff to lay before
the jury evidence of the terms of the
contract. It seems to me, that all
that was necessary under the statute
was that there should have been a
contract of sale, and that, under that
contract, the vendee should have
accepted ; it being a question for the
jury on the parol evidence, what were
the precise nature and terms of the
contract." Danf orth v. Walker, 40 Vt.
257.

1 See Castle v. Sworder, 6 H. & N.
833 ; Marvin v. Wallace, 6 E. & B.
726 ; 25 L. J. Q. B. 369 ; and Smith v.
Hudson, 6 B. & S. 431 ; 34 L. J. Q. B.
145. When the purchaser or his as-
signs and the vendor come to an agree-

SEC. 33S.]

ACCEPTANCE AND RECEIPT.

617

determining whether there has been &n actual receipt by the
vendee, that has been laid down in many cases, is to inquire

ment that the vendor shall cease to
hold the goods as vendor, and shall
hold them as an agent of the owner
of the goods, his rights as vendor are
gone ; and though the cases now show
that such an agreement between the
vendor and the original purchaser
himself must be proved by stronger
evidence than one between him and a
subvendee, it does not seem disputed
that such an agreement may be made.
At one time, the weight of authority
was that such an agreement was to be
readily presumed ; now the weight of
authority is, that such an agreement
must be very distinctly proved, and
- that unless the vendor's lien on some
part of the goods be gone there can-
not be an actual receipt. In Chaplin
V. Rogers, 1 East, 195 a, the plaintiff,
by a verbal agreement, sold to the
defendant for more than ilO, a stack
of hay, which he represented to be
good. The hay remained in the plain-
tiff's stack-yard. The defendant'seems
to have expressed an opinion that the
hay was bad, but some time after, one
Loft, having agreed for the purchase
of part of the hay from him at an
advanced price, the defendant told
him to go and see if it was good.
Loft not only thought it good, but
took away part without the knowledge
or assent of the defendant. The part
resold to Loft seems to have been for
less than i£10, in which case the bar-
gain between him and the defendant
may have been binding, so that the
defendant could not have revoked the
authority given to Loft by it, but the
case does not seem to have turned on
that. It was left to the jury to say,
if there had been an acceptance, and
they having found there was, the
King's Bench would not disturb their
verdict. The expressions used by
Lord Kenyon in delivering judgment
show that he thought there might be
an acceptance and actual receipt with-
out a removal of the goods ; and that
the conduct of the defendant, in bar-

gaining about the resale, was an ad-
mission that the contract was good ;
but he winds up by saying, " as upon
the whole justice has been done, the
verdict ought to stand ; " which almost
means that the verdict was contrary
to evidence. This case, therefore,
does not decide much. In Anderson
V, Scott, 1 Camp. 235, n., decided in
1805, at nisi prius, the action was by
the purchaser against the vendor for
not delivering wine, according to a
verbal agreement for the sale of it
for a price exceeding £10. The spills
had been cut in the presence of both
parties, and the purchaser's initials
were marked on the casks, which re-
mained in the vendor's cellars. It
was objected, that the bargain was
void by the statute of frauds, but
Losi) ELLEirBOROUGH held that the
marking of the casks in the presence
of all parties amounted to a delivery,
and that though there had been an
incipient delivery sufficient to take
the case out of the statute of frauds,
yet that delivery not having been per-
fected, the plaintiff had a right of
action to recover damages for the
non-completion of the contract. In
Hodgson V. lie Bret, 1 Camp. 233, in
1808, the same judge ruled that the
purchaser having written her name on
some goods to denote that she had
purchased them, though they remained
in the vendor's shop, took the case out
of the statute. Pabke, J., has ob-
served, "that in the older cases the
Court did not advert to the words of
the statute, 9 B. & C. 577. Certainly,
in Anderson v. Scott, Lokd Ellen-
borough, if the words of the statute
were present to his mind, must have
thought that there might be an actual
receipt without any delivery, which is
not the popular meaning of the words.
It appears from Hurry v. Mangles, 1
Camp. 452, that Lord Ellenborough
considered the vendor's rights gone
under circumstances but little stronger
than those existing in Hodgson v. lie

618

STATUTE OF FEATTDS.

[chap. xri.

whether the vendor has parted with the possession of the
goods, and placed them under the control of the purchaser, so

Bret, and Anderson v. Scott. He
seeme to have thought that the cir-
cumstance of the purchaser exercis-
ing acts of ownership with the assent
of the vendor, proved a complete
agreement between them to consider
the possession of the vendor as thence-
forward that of a mere agent of the
purchaser. In Elmore u. Stone, 1
Taunt. 458, in 1808, the common pleas
acted upon this principle. In that
case the defendant, the purchaser of
horses under a verbal agreement from
the plaintiff, a livery-stable keeper,
had sent him word that he would have
the horses, but that as he had neither
servant or stables, the plaintiff must
keep them at livery for him. The
plaintiff assented, and moved the
horses into another stable (which,
however, seems material only as an
indication of assent). The common
pleas, after taking time to consider,
held that the bargain was bound.
Mansfield, C. J., in delivering the
opinion of the court, said, " After the
defendant had said that the horses
must stand at livery, and the plaintiff
had accepted the order, it made no
difference whether they stood at liv-
ery in the vendor's stable, or whether
they had been taken away and put in
some other stable. The plaintiff pos-
sessed them from that time not as
owner (vendor 1) of the horses, but as
any other livery-stable keeper might
have them to keep. Under many
events, it might appear hard if the
plaintiff should not continue to have
a lien upon the horses which were in
his own possession, so long as the
price remained unpaid ; but it was for
him to consider that before he made
his agreement. After he had asseilted
to keep the horses at livery, they
would on the decease of tlie defend-
ant have become general assets ; and
so if he had become bankrupt, they
would have gone to his assignees.
The plaintiff could not have retained
them, though he had not received the

price.'' In Blenkinsop v. Clayton, 7
Taunt. 597, in 1817, after a verbal
sale of a horse, the purchaser offered
to resell it to a tliird party, but after-
wards refused to go on with the bar-
gain: the vendor brought an action
for the price, and on proof of the
facts above stated had a verdict sub-
ject to leave to move to enter a non-
suit, on the ground that there was
nothing to satisfy the statute. The
court of common pleas thought that
there might be some evidence of a
delivery, and therefore granted a new
trial, not a nonsuit.

In all these cases there seems to
have been ample evidence of an ac-
ceptance of the goods, but scanty
evidence of any actual receipt, it by
that is to be understood a taking of
possession : indeed, in Blenkinsop r.
Clayton, as reported, there seems to
have been none. After the decision
of that last case, the current of au-
thority set the other way. In Howe
V. Palmer, 3 B. & A. 321, in 1820,
there was a verbal sale of 12 bushels
of tares at £1 per bushel, the pur-
chaser to send for them. The pur-
chaser said he had seen the tares, and
had no immediate use for them; he
therefore requested that they might
remain at the vendor's till seed time,
to which the vendor assented. The
vendor then went home, measured
out 12 bushels, and set them aside for
the purchaser. The King's Bench
held that these facts did not amount
to an acceptance and receipt. The
case was distinguished by the court
from Elmore v. Stone (1 Taunt. 458),
but Bavlet, J., expressed a doubt if
that case was well decided.

In Tempest v. Fitzgerald, 3 B. & A.
680, in the same year, the facts were,
that a horse was sold by parol for
£45 ready money ; after the sale, the
purchaser mounted him and tried him,
and made some changes in his har-
ness; he then asked the vendor to
keep him another week ; the vendor

SEC. 335.]

ACCEPTANCE AND RECEIPT.

619

as to deprive himself of the right of lien ; for so long as the
vendor retains his right of lien there can be no receipt. In

said he would to oblige him. Before
the week expired the horse died, and
the question was who should bear the
loss ? The King's Bench decided that
these acts could not amount to an ac-
ceptance and receipt, unless the pur-
chaser had a right under the bargain
to take away the horse. He could
not take away the horse unless he
paid the price, or the vendor waived
Ms right of lien, which the facts did
not show.

In Carter v. Touissaint, 5 B. & Ad.
855, A.D. 1822, the facts approached
very nearly indeed to those in El-
more V. Stone (1 Taunt. 458). The
defendant purchased by parol from
the plaintiffs a horse for £30; the
horse was by the defendant's consent
and approval fired, and the plaintiffs
agreed to keep him for twenty days
without charge ; at the end of the
twenty days the plaintiffs sent the
horse to grass at the defendant's re-
quest, but entered it in their own
name, as the defendant wished to con-
ceal his having bought it. The King's
Bench held that the plaintiffs must be
taken to have kept possession in their
character of vendors imtil something
showed an abandonment of their lien,
and that so long as there was nothing
to divest them of their possession in
the character of vendors, there could
be no receipt by the purchaser within
the statute of frauds. The court
made some attempt to distinguish the
case from Elmore v. Stone, on the
ground that in that case there was a
change of stables ; but that fact the
common pleas had expressly declared
to be immaterial. The two cases are
agreed in this, that there could not be
a receipt till the vendor's lien was di-
vested, but they differ as to what is
sufScient to divest the lien.

In Baldey v. Parker, 2 B. & C. 37,
in 1823, the defendant bargained in
the plaintiff's shop for goods above
the value of £10 : some of the articles
were measured in his presence, some

he marked in pencil, some he assisted
in cutting from a larger piece. The
King's Bench decided that there was
no evidence that the bargain was
bound. The ground of their decision
is concisely stated by Holroyd, J.
" Upon a sale of specific goods for a
specific price, by parting with the pos-
session the seller parts with his lien.
The statute contemplates such a part-
ing with the possession, and therefore
as long as the seller preserves his con-
trol over the goods so as to retain his
lien, he prevents the vendee from ac-
cepting and receiving them as his own
within the meaning of the statute."
This case very closely resembles An-
derson V. Scott (1 Camp. 236, n.), and
Hodgson V. Le Bret (1 Camp. 233), in
the facts. It seems that the difference
between the decisions is rather on the
practical application of the law than
its nature ; Lord Ellenbojiolgh
seems to have thought that the ven-
dors had abandoned their lien imder
circumstances which in Baldey v. Par-
ker were held not to be any evidence
of such abandonment.

In Smith v. Surman, 9 B. & C. 561,
in 1829, the ICing's Bench of which
LiTTLEDALE, J., and Pakke, J., had
become members, acted on the princi-
ple laid down in Baldey v. Parker.
In Maberly u. Shepherd, 10 Bing. 99,
in 1833, the plaintiff, under a verbal
contract, was building a wagon for the
defendant ; the defendant furnished a
tilt and iron-work, which he fixed on
the wagon whilst it was building. The
plaintiff brought an action for goods
sold and delivered, and was nonsuited.
The court of common pleas refused
to set aside the nonsuit. It is difficult
to see how £»ny question on the statute
of frauds could arise, as according to
the report there was not the shadow
of proof that the goods were delivered,
and there was no count for goods bar-
gamed and sold, or for not accepting
goods. But the report probably is in
some respect inaccurate, for the court

620

STATUTE OF FRAUDS.

[chap. XII.

Baldey v. Parker,^ Holboyd, J., said: "Upon a sale of
specific goods for a specific price, by parting with the posses-
sion the seller parts with his lien. The statute contemplates
such a parting with the possession ; and therefore as long as the
seller preserves his control over the goods so as to retain his lien, he

did consider the question of whether
the bargain was bound, and they de-
cided it was not. "The plaintiff,"
said TiNDAL, C. J., " retained his lien
upon the wagon, and there was noth-
ing in the facts that denoted any in-
tention either to deliver or accept.
The circumstances of the case cer-
tainly leave it open to doubt whether
the statute has been complied with or
not, but we think it the duty of the
plaintiff to free the .case from aU
doubt, and where any remains, that it
is safer to adhere to the plain intelli-
gible words of the statute, which
point as clearly as words can to an
actual delivery and an actual receiv-
ing of part or the whole of the goods
sold."

In Bill V. Bament, 9 M. & W. 37,
in 1841, the defendant having bar-
gained for a quantity of brushes from
the plaintiff, saw them at the ware-
house of the plaintiff's agent, Harvey
(by name), and directed a boy to alter
the mark on them, and to send them
to St. Catharine's Wharf. There was
a signature obtained by a trick after
action commenced to a receipt for the
goods. The exchequer set aside a
verdict which the plaintiff had ob-
tained for goods sold and delivered
and entered a nonsuit. Pakke, B.,
said, "To take the case out of the
17th section there must be both de-
livery and acceptance, and the ques-
tion is, whether they have been proved
in the present case. I think they have
not ; I agree that there was evidence
for the jury of acceptance, or rather
of intended acceptance. The direc-
tion to mark the goods was evidence
to go to the jury quo animo, the de-
fendant took possession of them, so
also the receipt" {i.e. the receipt in
writing, signed by the defendant)
" was some evidence of an accept-

ance ; but there must also be a deliv-
ery, and to constitute that, the pos-
session must have been parted with
by the owner, so as to deprive him of
the right of lien ; Harvey might have
agreed to hold the goods as the ware-
houseman of the defendant, so as to
deprive himself of the right to refuse
to deliver them without payment of
the price, but of that there was no
proof." In Edan v. Dudfield, 1 Q. B.
306, in 1841, the case was reversed:
the vendor sold the goods to his factor,
who had the goods in his possession
at the time of sale. The Queen's
Bench held, that if the jury thought
he had taken to them as purchaser, it
was sufficient to satisfy the statute.
In Marvin v. Wallis, 6 E. & B. 726,
decided in 1856, after the delivery of
a horse by the vendor, he borrowed it
of the vendee and retained it as a bor-
rowed horse. It was held that there
had been an actual receipt by the
vendee, that there had been a change
of character in the vendor from that
of owner to bailee and agent of the
purchaser. This case was almost
identical with that of Elmore i\ Stone,
ante, and is a complete reaffirmance
of the doctrine of that case, and if
Tempest v. Fitzgerald and Carter v.
Toussaint, ante, could in any sense be
said to touch upon the doctrine of
Elmore v. Stone, the decision in Mar-
vin V. Wallis restores it. See Queen
V. Merriam, 28 Vt. 801; Vincent v.
Germond, 11 John. (N. Y.) 283; Bul-
lard V. Wait, 16 Gray (Mass.) 55;
Ely V. Ormsbee, 12 Barb. (N. Y.) 570;
Whipple V. Thayer, 16 Pick. (Mass.)
28; Tuxworth v. Moore, 9 id. 347;
Olyphant v. Baker, 5 Den. (N. Y.)
879; Carter v. Willard, 19 Pick.
(Maes.) 1; Appleton u. Bancroft, 10
Met. (Mass.) 286.

1 2B. &C. 44; 3 D. & R. 220.

SEC. 336.]

ACCEPTANCE AND RECEIPT.

621

prevents the vendee from accepting and receiving tliem as his own
within the meaning of the staiute."^ It maybe said to be the
rule according to the best considered cases, that in order to
constitute an acceptance and receipt sufficient to take a verbal con-
tract of sale out of the statute, the title to the goods must vest in the
vendee freed from the vendor's lien for the price, and of such an
unequivocal character that the vendee's right to reject the goods,
except for fraud, is gone.^ So, too, the goods must be received
by the vendee, with the assent of the vendor, with the inten-
tion of vesting the title to, and control over, the goods in the
vendee in pursuance of the contract.*

Sec. 336. Special Lien or Interest. — When it is said that
in order to constitute an acceptance and receipt of goods
there must be such an actual delivery as destroys the vendor's
lien for that price, the rule must be understood as applying
only to the general lien which the vendor has, so long as he
retains possession, and has no application where he has parted
with the title, hut has the right to resume the possession of the
goods before they come into the actual possession of the vendee,* or

1 Marsh v. Bouse, 44 N. Y. 643 ;
Bailey v. Ogden, 3 John. (N. Y.) 399;
Russell V. Minor, 22 Wend. (N. Y.)
659; Brand v. Focht, 3 Keyes (N. Y.)
409; Eathbern v. Rathbern, 6 Barb.
(N. Y.) 98; Safford u. McDonough,
120 Mass. 290; Rodgers v. Jones, 129
Mass. 420 ; Townsend v. Hargreayes,
118 id. 325; Mann v. Williams, 37
Me. 555; Green v. Merriam, 28 Vt,
801 ; Knight v. Mann, 118 Mass. 143
Janvrin v. Maxwell, 35 Wis. 615
Howe V. Palmer, 3 B. & Aid. 321
Tempest u. Fitzgerald, 3 B. & Aid
680 ; Carter v. Toussaint, 5 B. & Aid
858 ; Phillips v. BistoUi, 2 B. & C. 514
Hawes u. Watson, 2 B. & C. 542
Smith V. Surman, 9 B. & C. 577 ; Ma-
berley v. Sheppard, 10 Bing. 101 ; Bill
V. Bament, 9 M. & W. 41 ; Acraman
V. Morrice, 8 C. B. 449; Morton v.
Tibbett, 15 Q. B. 428; 19 L. J. Q. B.
382 ; Holmes v. Hoskins, 9 Exch. 756 ;
23 L. T. 70 ; Castle v. Sworder, 6 H.
& N. 833 ; 30 L. J. Ex. 310 ; Cusack
V. Robinson, 1 B. & S. 308; 30 L. J.
Q. B. 264.

2 Johnson v. Cuttle, 105 Mass. 447 ;

Keiwert v. Meyers, 62 Ind. 587; 30
Am. Rep. 206; Hausman i>. Nye, 62
Ind. 485; Gibbs v. Benjamin, 45 Vt.
130; Kirby v. Johnson, 22 Mo. .354;
Stone V. Browning, 68 N. Y. 598; Ed-
wards 1). Grand Trunk Railway Co.,
54 Me. 105 ; Hooker v. Knabe, 20 Wis.
511; Hewes v. Jordan, 39 Md. 472;
Maxwell v. Brown, 39 Me. 98; Rus-
sell V. Minor, 22 Wend. (N.Y.) 659;
Brand v. Focht, 3 Keyes (N.Y.) 409;
Jackson v. Watts, 1 McCord (S. C.)
288; Rathbun v. Rathbun, 6 Barb.
(N.Y.) 98; Young v. Blaisdell, 60
Me. 272 ; Shindler v. Houston, 1 N. Y.
261; Safford v. McDonough, 120
Mass. 290; Mechanics &c. Bank u.
Farmers &c. Bank, 60 N. Y. 40.

' Leven v. Smith, 1 Den. (N. Y.)
571 ; Baker v. Cuyler, 12 Barb. (N. Y.)
667; Davis v. Eastman, 1 Allen
(Mass.) 422 ; Mechanics &c. Bank v.
Farmers &c. Bank, 60 N. Y. 46.

* Earl, C, in Cross v. O'Donnell,
44 N. Y. 661 ; 4 Am. Rep. 721 ; Hodg-
son V. Lee, 7 T. R. 436 ; see also Pink-
ham V. Mattox, 53 N. H. 600.

622

STATUTE OF FBAtTDS.

[chap. XII,

to cases where he has parted with the title, hut still retains the posses-
sion as agent or bailUefor the purchaser, togetJier with a special
interest in the goods arising either out of a usage of the business or
created by the contract itself, which entitles him to retain them until
the price is paid. Thus, in an English case,^ wool was bought,

1 Dodsley v. Varley, 12 Ad. & EI.
632. In this case the judgment of the
court was delivered by Lord Denman,
who said : " It was contended that
there was no contract completed by
delirery and acceptance so as to sat-
isfy the statute of frauds. The facts
were, that the wool was bought while
at the plaintiff's, the price was agreed
on, but it would have to be weighed ;
it was then removed to the warehouse of
a iAiVrf/ferson, where Bamf ord collected
the wools which he purchased for the
defendant from various persons, and
to which place the defendant sent
sheeting for the packing up of such
wools. Then it was weighed together
with the other wools, and packed, but
was not paid for ; it was the usual course
for the wool to remain at this place till
paid for. No wish was expressed to
take the opinion of the jury on the
fact of Bamford's agency, the defend-
ant's counsel acquiescing in that of
the judge, provided the circumstances
would amount to it in point of law ;
we agree that they might ; therefore
all these must be taken to be the acts
of the defendant. Then he has re-
moved the plaintiff's wool to a place
of deposit for his own wools ; he has
weighed it with his other purchases of
wools; he has packed it in his own
sheeting ; everything is complete but
the payment of the price. It was ar-
gued, tliat because by the course of
dealing he was not to remove the
wool to a distance before payment of
the price, the property had not passed
to him, or that the plaintiff retained
such a lien upon it as was inconsistent
with the notion of an actual delivery.
We think that, upon this evidence,
the place to which the wools were re-
moved must be considered as the de-
fendant's warehouse, and that he was
in actual possession of it there as soon

as it was weighed and packed ; tljat it
was thenceforward at his risk, and if
burnt must have been paid for by him.
Consistently with this, however, the
plaintiff had, not what is commonly
called a lien determinable on the loss
of possession, but a special interest
sometimes but improperly called a lien
growing out of his original ownership,
independent of the actual possession,
and consistent with the property being
in the defendant. This he retained in
respect of the term agreed on, that
the goods should not be removed to
their ultimate place of destination
before payment ; but this lien is con-
sistent, as we have stated, with the
possession having passed to the buyer :
so that there may have been a delivery
to and actual receipt by him. This
we think is the proper conclusion upon
the present evidence, and there will be
no rule."

It seems perfectly clear, that if
Bamford was the defendant's agent,
there was ample evidence of such an
appropriation of the specific wools as
would convert the agreement to sell
into a bargain and sale, and (if the
statute of frauds were out of the way)
transfer the property and consequent
risk to the defendant. The only ques-
tion, therefore, in the case was, whether
the facts showed such a receipt of the
goods as is contemplated by the statute
of frauds. The argument for the de-
fendant seems to have been that the
agreement by which the purchaser
was not to remove the wool till paid
for, showed that the acts done to the
wool could not be done with the inten-
tion to give him possession. The
court, however, seem to have thought
that the facts showed an unequivocal
delivery of the actual possession, and
consequently that the agreement could
only operate by giving such rights to

SEC. 336.] ACCEPTANCE AND KECBIPT. G23

the price was agreed on, but it would have to be weighed ; it
was then removed to the warehouse of a third person, where
the defendant's agent collected the wools which he purchased
for the defendant from various persons, and to which place
the defendant sent sheeting for the pacldng up of such wools.
There it was weighed together with the other wools, and
packed, but it was not paid for. It was the usual course for
the wool to remain at this place till paid for. It was argued
that because, by the course of dealing, the defendant was not
to remove the wool to a distance before payment of the price,
the property in it had not passed to the defendant, or that
the plaintiff retained such a lien on it as was inconsistent with
the notion of an actual delivery. It was held that the defend-
ant was in actual possession of the wool as soon as it was
weighed and packed, and that it was thenceforward at his
risk ; but that the plaintiff had, not what is commonly called
a lien determinable on the loss of possession, but a special
interest, sometimes but improperly called a lien growing out of
his original ownership, independent of his actual possession,
and consistent with the property being in the defendant, and
that he retained this in respect of the terms agreed on, that the
goods should not be removed to their ultimate place of destina-

the vendor as were consistent with an the vendor's rights in the part of the

actual delivery of possession to the goods so received, and consequently

purchaser. In Howes v. Ball, 7 B. & the case does not affect the authority

C. 484, it was decided that an agree- of Baldey v. Parker (2 B. & C. 37)

ment of tliis kind did not confer on and the other cases before quoted,
the vendor any right either of property It may therefore be considered as

or possession in the goods actually de- settled, that the construction of the

livered, but at most operated as a per- statute is that so concisely and clearly

sonal license from the purchaser, stated by Holroyd, J., in Baldey i'.

Probably the Queen's Bench, in Dods- Parker, 2 B. & C. 37, and repeated in

ley V. Varley, would have come to the almost the same terms by Pahke, B.,

same decision if it had been material in Bill v. Bament, 9 M. & W. 37,

to determine what rights Dodsley had namely, that the facts which prove

in the wool, but that being perfectly that part of the goods have been

immaterial to the question then before delivered and taken into the pur-

the court, they did not consider that chaser's control, so as to determine the

point. The judgment, therefore, in vendor's possession of that part, prove

Ilodsley v. Varley cannot be taken to that he has actually received them,

show that the Queen's Bench thought and that nothing short of such a de-

that there might be an actual receipt livery and taking can amount to an

of goods by the purchaser within the actual receipt by the purchaser within

meaning of the statute of frauds with- the meaning of the statute of frauds,

out such a taking of possession by Blackburn on Sales, 15, 18.
him as would completely determine

624 STATUTE OP FKAUDS. [CHAP. XII.

tion before payment} In a New Hampshire case,^ eveii where
the property was sold conditionally, that is, upon the condi-
tion that the title should remain in the vendor until it is
paid for, it was held by the court that an acceptance and
receipt of the property, in this case a sewing machine, upon
thepe terms was sufficient to take the case out of the statute,
and to enable the vendor to sue upon and recover the contract
price .^

Sec. 337. Goods in Possession ofVendee at Time of Sale. —

When goods are already in the possession of the vendee at the
time of sale, it is a question of fact for tht Jury whether he has
so dealt with them since the sale as to show that he considered
himself to be the owner. Thus, where goods of the plaintiff
were in the defendant's hands for the purpose of being sold
by the defendant for the plaintiff, and the defendant told the
plaintiff that he would take them himself at a price then
named, and the defendant sold them to a third party, and
after that, in a written account current delivered to the
plaintiff, debited himself with the price of the goods as "sold,"
not adding to it for whom, it was argued that statute could

1 Howes V. Ball, 7 B. & C. 484; 558; Goodwin v. May, 23 Ga. 205;
Aldridge v. Johnson, 7 E. &B. 885; Shireman v. Jackson, 14 Ind. 459;
Dows V. Montgomery, 5 Robt. (N. Y.) Bailey v. Harris, 8 Iowa, 331 ; Patton
445; Spencer u. Hale, 30 Vt. 314. v. McCane, 15 B. Mon. (Ky.) 555;

2 Pinkham v. Mattox, 53 N. H. 600. Comstock v. Smith, 23 Me. 202; Hus-
" The rule is, that on a sale of per- sey v. Thornton, 4 Mass. 405 ; Reed v.

sonal property where the right to re- Upton, 10 Pick. (Mass.) 522; Heath

ceivepa3Tnent before deliyery is waived y. Randall, 4 Cush. (Mass.) 195; Sar-

by the seller, and immediate possession gent v. Metcalf, 5 Gray (Mass.) 306;

is given to the purchaser, and yet, by Blanehard v. Child, 7 id. 155 ; Deshon

express agreement, the title is to re- v. Bigelow, 8 id. 159 ; Dannefelser u.

main in the seller until the payment "Weigel, 27 Mo. 45 ; McFarland v.

of the price, such payment is strictly Farmer, 42 N. H. 286 ; Herring u.

a condition precedent, and until per- Willard, 2 Sandf . (N. Y.) 418 ; Piser

formance, the right of property is not v. Stearns, 1 Hilt. (N. Y. C. P.) 86 ;

vested in the purchaser. Putnam v. Price i,-. Jones, 3 Head (Tenn.) 84;

Lamphier, 36 Cal. 151, S. P. ; McBride Bigelow v. Huntley, 8 Vt. 154 ; Max-

V. Whitehead, Ga. Dec. Parti., 165; well v. Briggs, 17 id. 176; Luey v.

Marston v. Baldwin, 17 Mass. 606; Bundy, 9 N. H. 298; Buekmaster ti.

Dudley v. Sawyer, 41 N. H. 326 ; Flee- Smith, 22 Vt. 203 ; Root v. Lord, 23

man«. McKean, 25Barb. (N. Y.) 474; Vt. 568; Armington w. Houston, 38

Herring a. Hoppock, 3 Duer (N. Y.) Vt. 448; but according to the prln-

20; Bennett u. Sims, 1 Rice (S. C.) cipal case, the seller may waive his

421 ; Reeves v. Harris, 1 Bailey (S. G.) right under the conditional sale, and

563; Bradshaw v. Thomas, 7 Yerg. treating the title as having passed,

(Tenn.) 497 1 West v. Bolton, 4 Vt. sue for the price.

SEC. 337.] ACCEPTANCE AND EECEIPT. 625

not be satisfied in the case of one 'at the time of the bargain
possessed of the goods, inasmuch as that circumstance pre-
vented them from being delivered to him, or actually received
by him, in virtue of the sale.^ But Lord Denmam, C. J.,
said : " We have no doubt that one person in the possession
of another's goods may become the purchaser of them -by
parol, and may do subsequent acts, without any writing
between the parties, which amount to acceptance ; and the
effect of such acts, necessarily to be proved by parol evidence,
must be submitted to the jury. We entertain this opinion
after fully considering all the cases cited, especially Elmore
V. Stone,^ NichoUs v. Plume,^ Maberley v. Sheppard,* agreeing
that such evidence must be unequivocal, but thinking the
question, whether it is so or not under all the circumstances,
fact for the jury, not matter of law for the court. It was
indeed contended that parol evidence was inadmissible to
explain the character of the acts relied on to prove accept-
ance ; for that to admit it would let in all the inconvenience
which the statute was intended to prevent. No case, how-
ever, warrants the holding the rule so strict, nor does conven-
ience require it; for where there is the foundation of an act
done to build upon, the admission of declarations to explain
that act lets in only that unavoidable degree of uncertainty
to which all transactions to be proved by ordinary parol
evidence are liable. Upon this principle, stat. 9 Geo. 4, c. 14,
§ 1, on a very analogous matter, has been construed in the
Court of Exchequer. For, whilst in Willis v. Newham ^ it
was held that part payment, to take a case out of the Statute of
Limitations, could not be proved by verbal acknowledgment
onli/, it was held in Waters v. Tompkins^ that, where a sum
had been paid without any statement on what account, declara-
tions were admissible to explain on what account." And in
a subsequent case Aldekson, B., said : "No doubt can be
entertained after the case of Edan v. Dudfield, which was
well decided by the Court of Queen's Bench, that this is a
question of fact for the jury, and that if it appears that the

1 Edan v. Dudfield, 1 Q. B. 302- * 3 Y. & J. 518.

306. 6 2 C. M. & R. 723; S. C. Tyrwh. &

2 1 Taunt. 458. Gr. 137.

8 10 Bing. 09 ; and see Dodsley v. « x C. & P. 272.
Varley, 12 Ad. & El. 632.

626

STATUTE OF FRATTDS,

[chap. xri.

conduct of a defendant, in dealing with goods already in Lis
possession, is wholly inconsistent with the supposition that
his former possession continues unchanged, he may properly
be said to have accepted and actually received such goods
under a contract, so as to take the case out of the operation
of the statute of frauds ; as for instance if he sells or attempts
to sell goods, or if he disposes absolutely of the whole or any
part of them, or attempts to do so, or alters the nature of the
property or the like." ^

Sec. 338. Goods in Hands of Third Person. — When, at the
time of sale, the goods are in the possession of a third per-
son, there may be a constructive possession in the buyer,
if the goods are accepted hy him, and notice given to the bailee
of such transfer of title? In some of the cases it is held
that, in order to make a valid sale of personal property in
the possession of a third person, such person must not only
be notified - of the change of title, hut must also consent to
hold it for the buyer? But this doctrine has n6 support in

1 Lillywhite v. Devereux, 15 M. &
"W. 291.

2 Gushing i'. Breed, 14 Allen
(Mass.) 376; Bass v. Walsh, 39 Mo.
192 ; Zachrisson v. Pope, 3 Bas. (N. Y.)
171 ; Franklin v. Long, 7 G. & J. (Md.)
407 ; Boardman v. Spooner, 13 Allen
(Mass.) 353 ; Townsend v. Hargreayes,
118 Mass. 325; Burton v. Curyea, 40
111. 320 ; Simmonds v. Humble, 13 C.
B. N. S. 262 ; Leonard v. Davis, 1
Black (U. S.) 476; Bentnall k. Burn,
ante ; Farina v. Home, ante ; "Williams
V. Evans, 39 Mo. 201 ; Harkins v. Baker
46 N. Y. 666 ; Godts u. Rose, 17 C. B
229 ; Boynton v. Veazie, 24 Me. 286
Jewett V. "Warren, 12 Mass. 300
Cooper V. Bill, 3 H. & C. 722.

8 Bassett o. Camp, 64 Vt. 232
Bentnall v. Bum, ante. In Blackburn
on Sales, 28, that learned author says
"There can be no question that an
actual removal of the goods by the
purchaser is an actual receipt by him ;
and when the goods are in the hands
of a third party it is pretty clear that
as soon as the vendor, the purchaser,
and the bailee agree together, that
the bailee shall cease to hold the goods

for the vendor and shall hold them
for the purchaser, that is an actual
'receipt by the purchaser, though the
goods themselves remain untouched.
They were in the possession of an
agent for the vendor, and so, in con-
templation of law, in that of the ven-
dor himself, and they become in
the possession of an agent for the
purchaser, and so in that of the
purchaser himself ; and it can
make no difference, whether tliis is
by a change in the person of the
holder of the goods or merely in his
character. So far the question of
whether there has been a receipt of
part of the goods by the purchaser or
not is identically the same as whether
the vendor has so parted with pos-
session, as to put an end to his lien as
to that part of the goods. Thus, in
Bentall v. Burn, ante, in 1824, the
King's Beiich decided that the accept-
ance and receipt of a delivery order,
not lodged with the warehousemen,
did not bind the bargain : till the ware-
housekeepers assented to hold the
property as agents to the vendee, they
held it as agents of the vendor, and

SEC. 339.] ACCEPTANCE AND RECEIPT. 627

reason, and places it within the power of a naked bailee to
prevent a valid sale of the property without an actual change
of possession, and clothes him with an authority and con-
trol over the property never contemplated, and for which, at
least as affecting the validity of the sale as between the par-
ties, there is no conceivable reason, however it might be as to
attaching creditors. In the case of warehousemen, whose
business is peculiar and largely regulated by usage, and who,
by law, are given powers which individuals not warehoiise-
men do not possess, the rule might be applicable, but in the
case of individuals holding the goods of another as a mere
bailee, there is no sort of reason for holding that the validity
of the sale, is dependent upon the circumstance of his refus-
ing or assenting to hold the property for the buyer.

Sec. 339. Receipt by Acceptance of Delivery Order or Dock
■Warrant. — The acceptance and receipt hy the vendee of a
delivery order or dock warrant is not sufficient acceptance and^
receipt until the warehouseman or dock-keeper has accepted the
order or warrant, and has agreed to hold the goods for the
vendee. And the delivery order or warrant may be counter-
manded before it has been accepted by the warehouseman or
dock-keeper.^ But after such acceptance the warehouseman or
dock-keeper becomes the agent of the vendee, and there is a
complete constructive delivery to him.^ Where, on the sale of

whilst they did so, there could be no and sale of a lot of cotton consisting
actual acceptance (receipti) of the of six hales' weight, and stored in a
goods " Boardman u. Spooner, 13 warehouse, and the seller gave the
Allen (Mass.) 357; Appleton u. Ban- purchaser an order on the warehouse-
croft, 10 Met. (Mass.) 236; Tuxworth man for it. The seller notified the
V. Moore, 9 Pick. (Mass.) 347; Chap- warehouseman of the sale, and the
man v. Searle, 3 id. 38 ; Chase v. Wil- purchaser applied to him for the cot-
lard, 57 Me. 157 ; Warren v. Milliken, ton, hut delivery was postponed hy
57 id. 97 ; Linton v. Butz, 7 Penn. St. agreement of the warehouseman and
89 ; Hatch v. Lincoln, 12 Cush. (Mass.) the purchaser until the next morning.
31 ; Hatch u. Bayley, 12'id. 27. During the night the warehouse, to-

1 Lackington v. Atherton, 7 M. & gether with all the cotton but one
Gr. 360; Boardman o. Spooner, 13 bale, was destroyed by fire. It Was
Allen (Mass.) 353. held that there had been a sufficient

2 Pearson v. Dawson, E. B. & E. acceptance and receipt of the cotton
456 ; Harman v. Anderson, 2 Camp, to take the contract out of the statute,
243 ; Dickinson v. Marrow, 14 M. & and that the loss fell upon the pur-
W. 713 ; Chapman, J., in Hunter u. chaser. In Harkins v. Baker, 46 N.
Wright, 12 Allen (Mass.) 548. In Y. 666, a broker offered to the defend-
King V. Jarman, 35 Ark. 190, the par- ants ten casks of prunes, which they
ties orally agreed for the purchase orally agreed to take. The broker

628 STATUTE OF FEAtTDS. [CHAP. XII.

wine in the warehouse of the London Dock Company, a
delivery order was given to the vendee, it was held that the
acceptance of the delivery order by the vendee was not an
actual acceptance (receipt ?),i the court saying : " There
could not have been any actual acceptance of the wine by
the vendee until the dock company accepted the order for
delivery, and thereby assented to hold the wine as the
agents of the vendee. They held it originally as the agents
of the vendors, and as long as they continued so to hold it
the property was unchanged. It has been said that the
London Dock Company were bound by law, when required,
to hold the goods on account of the vendee. That may be
true, and they might render themselves liable to an action for
refusing so to do, but if they did wrongfully refuse to trans-
fer the goods to the vendee, it is clear that there could not
then be any actual acceptance of them b}' him until he actu-
ally took possession of them."^ So where goods were sent to
a shipping agent of the plaintiffs in London, who received
them and warehoused them with a wharfinger, informing the
defendant of their arrival, and the wharfinger handed to the
shipping agent a delivery-warrant whereby the goods were
made deliverable to him or his assignees by indorsement, on
payment of rent and charges, and the agent indorsed and
delivered the warrant to the defendant, who kept it for sev-
eral months, and, notwithstanding repeated applications, did
not pay the price of or charges upon the goods, nor return
the warrant, but said he had sent it to his solicitor, and that
he intended to resist payment, for that he had never ordered
the goods, and that they would remain for the present in
bond. It was held on the authority of Bentall v. Burn,

executed and delivered to the plaintiffs flcient acceptance and receipt by the

a bought and sold note in the defend- defendants.

ants' name for the prunes, and re- ^ See Blackburn on Sales, 29 ; Ben-
ceived from the plaintiffs a warehouse jamin on Sales, 2d ed. 133.
order of delivery therefor, which ^ Bentall v. Burn, 3 B. & C. 423;
order ho delivered to the defendants, Ey. & M. 107 ; 5 D. & E. 284. See
who received and retained it, and re- also Harman v. Anderson, 2 Camp,
quested the broker to sell the goods 243 ; Lucas v. Dorrien, 7 Taunt. 278
for them. The ten casks had been Bill «. Bament, 9 M. & W. 36 ; Lack-
weighed and separated from the others ington v. Atherton, 7 M. & Gr. 3
for the defendants, and were all 8 Sc. (N. E.) 42 ; Woodley v. Coven-
which they owned at the warehouse, try, 2 H. & C. 164.
It was held that there had been a suf-

SBC. 340.] ACCEPTAKCE AKD RECEIPT. 629

supra, that though there was evidence of acceptance there
was none of receipt.^ In Farina v. Home,^ the foregoing case
was followed. There the wharfinger gave the vendor a deliv-
ery-warrant, making the goods deliverable to him or to his
assignee by indorsement on payment of rent and charges.
The vendor forthwith indorsed and sent it to the purchaser,
who kept it ten months, and refused to pay for the goods or
to return the warrant, saying he had sent it to his solicitor,
and intended to defend the suit, as he had never ordered the
goods, adding that they would remain for the present in bond.
Held to be no actvial receipt, but sufficient evidence of accept-
ance to go to the jury. In Godts v. Rose,^ the vendor had
the goods transferred by his warehouseman, on the books of
the latter, to the buj'er's order, and took the certificate of
transfer, which he sent by his clerk to the buyer with an
invoice for the goods. The clerk handed the invoice and
warehouseman's certificate together to the buyer, and asked
for a check for the amount of the invoice, which was refused,
the buyer alleging that he was entitled to fourteen days'
credit. The clerk then asked for the warehouse certificate
back again, but the buyer refused to give it up, and the
vendor thereupon countermanded the order on the ware-
houseman ; but the purchaser had already got part of the
goods, and the warehouseman, thinking that the property had
passed, delivered the remainder to the purchaser. The
vendor then brought trover against the purchaser, and the
court held that the delivery to the purchaser of the ware-
houseman's certificate was conditional only, and dependent
upon his giving a check ; that the actual receipt, therefore,
had not taken place, the tripartite contract not being com-
plete.

Sec. 340. Possession Taken by Vendee. — Goods in the
possession of a third person may be delivered by the vendor,
allowing the vendee to take possession of them, and to per-
form acts of 6wnership, though they are not actually removed.
Thus, where trees on the land of a third person were sold,

1 Farina w. Home, 16 M. iW. 119; lams, 2 Man. & Gr. 650; Godts v.
and see Meredith v. Meigh, 2 E. & B. Rose, 17 C. B. 229.
364; 22 L. .J. Q. B. 401; Searle v. ^ Farina w. Home, 16 M. & W. 119.

Keeves, 2 Esp. 598 ; Salter v. "Wool- ' Godts v. Rose, 17 C. B. 229, and

25 L. J. C. P. 61.

630 STATUTE OF FBAUDS. [CHAP. Xn.

the vendee to have the power o£ removing them when he
pleased, and the vendee performed acts of ownership over
them, it was held that the transfer of the whole was com-
plete.^ But the acts of the parties must be of such a charac-
ter as to unequivocally place the property within the power,
and exclusively under the control of the buyer as owner, dis-
charged of all lien for the price. ^

Sec. 341. Symbolical Delivery. Goods Need not be Re-
moved from Possession of Vendor. — It is not necessary, in
order to constitute a valid receipt of goods within the statute, that
they should be removed from the possession of the vendor; as, if
the contract is complete, and by their acts the parties evince an
intention to change the character of the holding by the seller from
that of owner to that of bailee for the purchaser, the delivery is
complete, and from that time the title to the goods is in
tlie vendee, and the contract is taken out of the statute.^
In the language of Blackbuen, J., "though the goods
remain in the personal possession of the vendor, yet if it
is agreed between the vendor and the vendee that the pos-
session shall thenceforth be kept not as vendor, hut as bailee
for the purchaser, the right of lien is gone, and then there is

1 Tansley i>. Turner, 2 Bing. (N. C.) Grey v. Cary, 9 Daly (N. Y. C. P.)
151 ; and see Cooper v. Bill, .3 H. & C. 363 ; Yale v. Seeley, 15 Vt. 221.

722. In Marshall v. Green, 1 C. P. D. 8 Webster v. Anderson, 42 Mich.
85, where timber was sold growing 554 ; Green v. Merriam, 28 Vt. 801 ;
upon land in the possession of a ten- Beaumont v. Brengeri, 5 C. B. 301 ;
ant, and the buyer cut down some of Anderson v. Scott, 1 Camp. 235 ;
the trees and sold the tops and stumps Chaplin v. Eogers, 1 East, 192 ; Mar-
to a third person before any of the vin v. Wallis, 6 EI. & B. 726 ; Bar-
,trees had been removed, it was held rett v. Goddard, 3 Mass. (N. S.) 107;
that there was sufficient evidence of Wild u. Came, 98 Mass. 152 ; Janvrin
an actual receipt and acceptance of a v. Maxwell, 23 Wis. 51 ; Eappleye v.
part of the goods. Adee, 65 Barb. (N. Y.) 589. But in

2 Marsh u. Rouse, 44 N. Y. 643; all such cases the contract must be
French v. Freeman, 43 Vt. 93. Thus, complete in all its details, and there
in one case C orally agreed to buy a must nothing be left for future settle-
scale of G for ®60, payable on deliv- ments, and the lien of the vendor for
ery. G's carman took the scale on a the unpaid purchase money must
truck to C's office, said he had it on have been waived. Safford v. Mc-

, the truck, handed G's bill to C, and Donough, 120 Mass. 280 ; Means v.

was directed to drive it into the back Williamson, 37 Me. 556; Green v.

' yard. In attempting to do so he ac- Merriam, 28 Vt. 801 ; Elmore v. Stone,

cidentally caused the scale to be ante ; Brown v. Hall, 5 Lans. (N. Y.)

broken. It was held that there was 177 ; Janvrin v. Maxwell, 23 Wis. 51 ;

no receipt of the scale by C sufficient Marsh v. Rouse, ante ; Safford v. Mc-

to take the case out of the statute. Donough, 120 Mass. 290.

SEC. 341.]

ACCEPTANCE AND RECEIPT.

631

a sufficient receipt to satisfy the statute." ^ In Webster v.
Anderson ^ it was orally agreed between a farmer and his
employee that the latter should accept certain hogs in pay-
ment for his services. They were pointed out, but were to
remain in the pasture with other hogs until the employee
found ail opportunity to sell them ; and it was held a sufficient
delivery against the seller's creditors.^ In Ex parte Safford *
a lot of specified hides were sold, weighed, marked with the
vendee's name, and placed by themselves m the vendor's ware-
house, and he was to send for them when he pleased, and it
was agreed that they shovild be considered as insured for his
benefit by the vendor's general insurance. It was a sufficient
acceptance and receipt, Lowell, J., remarking that "there
is no doubt that the vendor may himself be the warehouse-
man or bailee." ^ In a Vermont case ^ the plaintiff sold to

' Cusack ». Robinson, 1 B. & S.
308, per Blaokbukn, J. ; Sloan Saw
Mill &o. Co. V. Guttshall, 3 Col. 8;
Safford i-. McDonough 120 Mass. 290 ;
Wild 0. Came, 98 id. 152 ; Knight v.
Mann; 118 id. 143; Janvrin v. Max-
well, 35 Wis. 615 ; Means v. William-
son, 37 Me. 556; Chase v. Willard, 57
Me. 157 ; Barrett v. Goddard, 3 Mas.
(U. S.) 107; Hatch v. Lincoln, 12
Gush. (Mass.) 31.

2 Webster v. Anderson, 42 Mich.
554.

3 See also Jewett v. Warren, 12
Mass. 300 ; Green v. Merriam, 28 Vt.
801 ; Arnold ;;. Delano, 4 Cush.
(Mass.) 40.

4 Ex parte Safford, 2 Lowell (U. S.
C. C) 563.

6 Elmore u. Stone, 1 Taunt. 458;
Calkins v. Lockwood, 17 Conn. 154.
See statement of case ante, p. 671. In
Maryin v. Wallis, 6 El. & B. 726,
the plaintiff sold a horse to the de-
fendant, and requested the defendant
to lend it to him, and kept it with the
defendant's consent. It was held that
there had been a sufficient delivery.
In Phillips V. Hummell, 4 Me. 376,
under a similar state of facts except
that the subject of the sale was a yoke
of oxen, it was held that there had

been no delivery. In Bailey v. Ogden,
2 John. (N. Y.) 399, the rule that so
long as the contract is incomplete in
any of its requirements there can be
no acceptance and receipt while the
goods are in the hands of the vendor
was well illustrated. In that case the
sugar, which was the subject of the
sale, was in the possession of the ven-
dor, an agreement of sale was entered
into, and all the terms agreed upon, a
minute of the import entry was deliv-
ered, indorsed notes were to be given
for the price, and the goods were to
be stored by the vendor at the pur-
chaser's expense. It was held that
there was no actual delivery, Kent,
C. J., saying : " The circumstances
which are to be tantamount to an
actual delivery should be very strong
and unequivocal, so as to take away
all doubt as to the intent and under-
standing of the parties. The agree-
ment about storage might have been
conditional, and depending upon the
final completion of the contract, as to
the giving of the notes with a compe-
tent indorser, and the taking of the
minute of the import entry was at
least but an equivocal act. It was not
an indicium of ownership." In Vincent
v. Germond, 11 Johns. (N. Y.) 282,

6 Green v. Merriam, 28 Vt. 301.

632

STATUTE OP FEATJDS.

[CHAP. XXI.

the defendant sixteen sheep, then in his (the plaintiff's) yard.
All the terms of the sale were agreed upon, and the sheep
were then driven into another yard of the plaintiff, and the
defendant agreed that if the plaintiff would keep them for
him until a certain day, he would call and get them, and pay
for the sheep aiid for the keeping of them. The court held that
this constituted a sufficient acceptance and receipt.^ In
Chaplin v. Rogers ^ the fact that the vendee of a stack of
hay had resold part of it to a third party, who had taken
away such part, was held to be sufficient to prove that the
hay had been received by the purchaser, though he had not
attempted to remove it from the vendor's premises. In
Elmore v. Stone ^ it appeared that the plaintiff, a livery-stable

cattle were sold to remain in posses-
sion of the vendor, at the vendee's
risk, until he called for them, and he
afterward took them without saying
anything to the vendor. It was held
a sufficient delivery. "It may be
questioned," said the court, " whether
what took place between B. Germond
and the plaintiff, if standing alone,
would amount to a delivery ; but the
subsequent conduct of the other de-
fendant in taking away the three
oxen, without any new contract, af-
fords sufficient ground to infer a de-
livery. The defendants dealt with the
oxen as their own, and as if in their
actual possession."

1 In Janvrin v. Maxwell, 23 Wis.
61, there was a sale of six barrels of
beef. The purchaser requested the
seller to roll it into the back yard of
the shop and store it for him, and sell
it for him if he had an opportunity,
and subsequently promised to take it
away. He gave specific directions
for its disposal, and it was held that
there had been a sufficient delivery
and acceptance. In Bass v. Walsh,
30 Mo. 192, there was a sale of 223
bales of hay lying by themselves on
the levee. The seller gave the buyer
a descriptive ticket, authorizing him
to take the hay as soon as weighed.
The buyer requested that the hay
should not be weighed on that day,
to which the seller assented, upon the

condition that the hay should remain
at the buyer's risk. It was held that
these facts warranted a finding that
there had been an acceptance and
delivery. A sale, by a broker, of
logwood, at the time in bond, was in-
valid under the statute of frauds.
The purchaser hired vessels, and noti-
fied the seller to deliver the goods at
the wharf where they lay, and re-
ceived from him a custom-house order,
which the custom-house officers re-
fused to act upon, on the ground that
no logwood appeared on their books
as belonging to the purchaser. The
seller was notified of this, and re-
quested to remedy the difficulty by
making the proper entries, which he
promised, but entirely neglected to
do. Part of the logwood was sent to
the wharf, and part put on board the
purchaser's vessel. The purchaser
refused to pay a bill for the logwood
sent to him, and finally notified the
seller that unless the proper custom-
house entries were made on or before
a certain day, he would deem the
contract dissolved. It was held that
there was no delivery to take the case
out of the statute of frauds. Zach-
risson v. Poppe, 3 Bosw. (N. Y.) 171.

" 1 East, 192 ; and see Marshall v.
Green, L. E. 1 C. P. D. 35.

' 1 Taunt. 458 ; and see Jacobs v.
Latour, 2 Moo. & P. 205 ; Webster v.
Anderson, 42 Mich. 654. In Shindler

SEC. 341.J

ACCEPTANCE AND RECEIPT.

G83

keeper, sold horses to the defendant, who told him that he
(the plaintiff) must keep the horses at livery, whereupon the

V. Houston, 1 Den. (N. Y.) 52, the
plaintiff and the defendant bargained
respecting the sale, by the former to
the latter, of a. quantity of lumber
piled apart from other lumber on a
dock, and in view of the parties at
the time of the bargain, and which
had been measured and inspected.
The parties having agreed as to the
price, the plaintiff said to the defend-
ant, "The lumber is yours." The
defendant then told the plaintiff to
get the inspector's bill and take it to
H, who would pay the amount. This
was done next day, but payment was
refused. The price was above $50.
This was held, by the Supreme Court,
a valid delivery and acceptance. The
court said : " Delivery in a sale may
be either real, by putting the thing
sold into the possession or under the
power of the purchaser, or it may be
symbolical, where the thing does not
admit of actilal delivery; and such
delivery is sufficient and equivalent in
its legal effects to actual delivery.
It must be such as the nature of the
case admits." This was reversed by
the Court of Appeals in 1 N. Y. 261,
the court holding that something more
than mere words is necessary; that
superadded to the language of the
contract there must be some act of
the parties amounting to a transfer of
possession, and an acceptance thereof
by the buyer, and that the case of
cumbrous articles is not an exception.
Gardiner, J., said : " I am aware that
there are cases in which it has been
adjudged that where articles sold are
ponderous, a symbolical or construc-
tive delivery will be equivalent in
legal effect to an actual delivery. The
delivering of the key of a warehouse
in which goods sold are deposited,
furnishes an example of this kind.
But to aid the plaintiff, an authority
must be shown that a stipulation in the
contract of the sale, for the delivery of
the key or other indicia of possession,
will constitute a delivery and accept-

ance within the statute. No such case
can be found." Bronson, J., who
was one of the court below, delivered
an opinion renouncing his former
judgment. He said : " There may be
a delivery without handling the prop-
erty or changing its position. But
that is only where the seller does an
act by which he relinquishes his do-
minion over the property, and puts it
in the power of the buyer ; as by de-
livering the key of the Avarehouso in
which the goods are deposited, or by
directing the bailee of the goods to
deliver them to the buyer, with the
assent of the bailee to hold the prop-
erty for the new owner." "Here
there was no delivery, either actual or
symbolical." Weight, J., also pro-
nounced an opinion the same way.
He said of Elmore v. Stone, supra,
that it "was doubted in Howe v.
Palmer, 3 B. & Aid. 324, and Proctor
V. Jones, 2 C. & P. 534, and virtually
overruled by subsequent decisions."
He distinguishes it, however, by re-
moval of the horses from the sale
stable to the livery stable, and,
Chaplin v. Rogers, by the buyer's sale
of part of the hay which the pur-
chaser took away. So that in both
these cases there were acts in addition
to mere words. As to the doubts
about Elmore v. Stone, of which
Wright, J., speaks, Bayley, J., in
Howe 0. Palmer, said : " That case
goes as far as any case ought to go,
and I think we ought not to go one step
beyond it. ... I must say, however,
that I doubt the authority of that
decision." This is purely obiter, for
he had clearly distinguished the case
as above. In Proctor v. Jones, the
case of Elmore v. Stone was not men-
tioned. Best, J., did there doubt
Scott V. Anderson, supra, but without
any reason, for there the terms of the
contract had been agreed on. Th^
decision in both cases was clearly
right, and there are no signs of any
overruling of it." See Hollingsworth

634

STATUTE OF FEATJDS.

[chap. XII.

latter removed them from his sale-stable to his livery-stable
and there kept them at livery. It was held that from that
time the plaintiff possessed the horses not as owner, but as
any other livery-stable keeper might have them to keep. In
Marvin v. Wallis ^ the plaintiff sold a horse to the defendant
by verbal agreement. The bargain was for immediate deliv-
ery, but the plaintiff requested the defendant to lend him the
horse, and by the defendant's consent kept it for a short
time. Afterwards the defendant refused to take the horse.
It was held that there was an acceptance of the horse within
the statute.^

In Tempest v. Fitzgerald,^ the defendant in August agreed
to purchase a horse at the price of 45 guineas, and to fetch it
away in September. The parties understood it to be a ready-
money bargain. The defendant returned on the 20th Sep-
tember. He then tried the horse, and his servant, at his
direction, made some alteration in the harness. The defend-
ant then asked that the horse might remain in the plaintiff's
possession for another week, at the end of which he promised

V. Napier, 3 Cai. (N. Y.) 183. In
Fallo V. Miller, 2 Cr. & Dix, 416, the
defendant bought a number of pigs
of the plaintiff on Saturday. He said
he had no change about him and
could not pay any earnest, but he
wished the plaintiff's servant to keep
the pigs without any food from that
time until the Monday following,
when he would call for and take them
away. His directions were followed,
but the defendant never took tliem
away. The plaintiff afterwards sold
the pigs, and sued the defendant for
the difference between the sum for
which they were sold and what he
was to pay for them. It was held
that there had been no such delivery
as took the case out of the statute.

1 6 E. & B. 726.

^ And see Martin v. Reid, 11 C. B.
(N. S.) 730 ; 31 L. J. C. P. 126 ; Beau-
mont V. Brengeri, 5 C. B. 301. These
cases show that if the bargain is com-
plete, the fact that goods remain in
the possession of the vendor will not
prevent him from proving that they
have been actually received. But

there cannot be an actual receipt by
the vendee so long as the goods con-
tinue in the possession of the seller as
unpaid vendor. Cusack v. Robinson,
1 B. & S. 308, per Blackburn, J. In
Dale V. Stimpson, 21 Pick. (Mass.)
384, the defendants offered the plain-
tiff a certain price for a steam-engine,
a part of the price to be paid when
the engine was taken away by him,
which was to be done within two or
three weeks, and the balance to be
secured by note. The plaintiff ac-
cepted the offer and said : " Then you
consider the engine yours? " to which
the defendant answered "Yes." The
boiler was set in bricks in the plain-
tiff's shop, and could not be removed
until they were taken away, and the
plaintiff was to take them away, which
he did the next week. The defendant
told a witness he had bought the en-
gine, and made inquiries as to the
terms on which he could get it carried
to another place. It was held that
there was no delivery and that the
sale was within the statute.
8 3 B. & Aid. 680.

SEC. 341.J ACCEPTANCE AND RECEIPT. 635

to fetch it away and pay the price. The horse died before
the defendant paid the price or took it away. It was held
that there had been no acceptance, upon the ground that the
defendant had no right of property in the horse until the
price was paid, and that until then he could not exercise any
acts of ownership.! Again, in Carter v. Toussaint,^ the
plaintiffs, who were farriers, sold to the defendant a race-
horse which at the time of the sale required to be fired ; this
was done with the approbation of the defendant and in his
presence, and it was agreed that the horse should be kept by
the plaintiffs for twenty days without any charge being made
for it. At the expiration of the twenty days the horse was,
by the defendant's directions, taken by a servant of the
plaintiffs to a certain park for the purpose of being turned
out to grass there. It was there entered in the name of one
of the plaintiffs, which was also done by the direction of the
defendant, who was anxious that it might not be known that
he kept a race-horse. It was held that there had been no
acceptance, as the vendor was not compellable to deliver the horse
until the price was paid, though if it had been sent to the park
and entered in the defendant's name by his directions, that
would have been an acceptance.

In Castle v. Sworder ^ the plaintiffs, wine and spirit mer-

1 And see Holmes v. Hoskins, 9 house of the plaintiffs for six months
Exch. 753 ; 23 L. T. 70. without payment, and afterwards sub-

2 5 B. & Aid. 855. ject to the payment of rent. The
5 Castle c. Sworder, 6 H. & N. plaintiffs had a bonded warehouse in

828 ; 30 L. J. Ex. 310. Cockburn, which they kept not only their own
C. B., said : " We are all of opinion goods but those of other people. The
that the judgment of the court below plaintiffs appropriated particular
must be reversed, and the rule made goods to the defendant, and sent him
absolute to enter a verdict for the an invoice specifying the goods so
plaintiffs. The question for us is not appropriated. Some time after this
how the jury would have found it if it the defendant, finding that it did not
had been left to them, but whether suit his convenience to keep the goods,
there was any evidence of an accept- proposed to the plaintiffs' traveller to
ance and receipt of the goods to satisfy take them back, and wrote to the
the statute. I think that those terms plaintiffs suggesting that they should
are equivalent, and in my opinion do so. The question is whether these
there was such evidence. It appears facts amount to evidence of a con-
that the defendant had entered into a structive acceptance of the goods by
contract with the plaintiffs' traveller the defendant. Tlie important partic-
to buy the goods, and he was to have ular which has existed in several of
a right to take them whenever he the cases, viz., a lien on the part of
thought fit. In the meantime the the seller, which imports a right of
goods were to remain in the ware- possession incompatible with the pes-

636

STATUTE OP FBATTDS.

[chap. XII.

chants, kept a bonded warehouse, where they took in other
persons' goods as well as their own, chargipg warehouse rent.
Of this warehouse the plaintiffs had one key and the custom-

session of the purchaser, did not exist
here. The goods were sold on credit,
and it is incontestable that during six
months the buyer might have claimed
these specific goods. The first point,
then, is wliether upon these facts the
possession which the sellers retained
was a possession by virtue of their
original property, or as bailees of the
buyer. / think there was evidence that
the possession of the plaintiffs, which had
originally been as owners and sellers,
had been converted into a possession by
them as bailees for the buyer; for as
soon as the goods had been specifically
appropriated, the defendant, by virtue
of his right as purchaser, evidenced
by the terms of the invoice, availed
himself of his right by having the
goods warehoused in the general
warehouse of the sellers, and by re-
questing the sellers to take back the
goods, and failing that to resell them
for him. Under the contract he was
entitled to have the goods ware-
housed for a certain period free of
charge, and after that at a rent ; and
he dealt with the goods as if they had
been warehoused for him. This was
a constructive possession in the buyer,
and u. constructive acceptance of the
goods by him. It is unnecessary to
consider whether, if the goods had
not been according to the contract,
the defendant might have repudiated
them ; or whether the case falls with-
in the rule that where a person
chooses to accept goods without exer-
cising his right to inspect them, he
waives his right to reject them, and
must be taken to have accepted them
without examination. The defendant
was content that the goods should re-
main in the plaintiffs' warehouse till
it suited him to deal with them as
owner. Therefore that difficulty does
not arise. A buyer may well waive
his right to examine goods and accept
them, trusting to his remedy by action
if they turn out not according to con-

tract. I am clearly of opinion that
there was evidence for the jury."

Crompton, J., said : " I am of the
same opinion. The only question in
the court below was whether there
was any evidence to go to the jury in
support of the plaintiffs' case. We
do not differ from the Court of Ex-
chequer except in thinking that there
was some evidence of the plaintiffs'
character being changed from that of
seller to that of warehouse-keeper.
I take it to be clear that where goods
are left by a buyer in the hands of the
seller, who is also a warehouse-keeper
or livery-stable keeper, there may be a
change in the character in which he holds
the goods so as to make him the agent for
the buyer. Here I think that there
was evidence to show that the defend-
ant had admitted that the goods had
become his, and remained in the plain-
tiffs' hands as warehouse-keepers.
After that I think he could not have
rejected them, though he might have
had a remedy by' action for damages
if they were not according to contract.
I think it is settled by the cases that
where the goods are left by the pur-
chaser with the seller his cliaracter
may be changed ; and that where he
becomes the bailee for the purchaser
the statute is satisfied. In Earina v.
Home, 16 M. & W. 119 it was held
that the mere giving of a transfer
order for the goods was not sufficient,
because they were held by a ware-
house-keeper as agent for the seller;
but where a delivery order is lodged
and attorned to by the bailee he holds
for the buyer, and the statute of
frauds is out of the question. The
only peculiarity of this case is that
the same person was both seller and
warehouse-keeper. In such case, in
order to satisfy the statute, it is necessary
that there should be some evidence of a
change in the character in which the
plaintiffs held the goods. Now it is
impossible to say that there was not

SEC. 341.] ACCEPTANCE AND RECEIPT. 637

house oiBcer another. The defendant agreed to buy of the
plaintifPs two puncheons of rum, which were to remain in
bond till wanted, the defendant to have six months' further
credit. The plaintiffs sent the defendant an invoice describ-
ing the puncheons by marks and numbers, with the words
" free six months," which was explained to mean that they
might remain in the plaintiffs' warehouse without charge for
six months. The plaintiffs entered in the rum-book of their
warehouse the puncheons of rum as sold to the defendant,
and proved that after the entry they had no power to get the
goods out. The rum remained in the warehouse for two
years; during which time the defendant on several occasions
asked the plaintiffs to take back the goods or buy them of
him. It was held that there was evidence to go to the jury
that the character in which the plaintiffs held the goods was
changed, and that if they held as warehousemen for the
defendant, there was evidence of an acceptance and receipt
of the goods by the defendant to satisfy the statute.

The rule may be said to be that where articles are ponder-
ous and incapable of manual delivery, a delivery sufficient to
vest the title to the property in the vendee, and which gives to
him the exclusive dominion over it, is sufficient, although the
actual possession is not changed ^ to satisfy the reason and

some evidence to show that the goods him for the rum. That is strong evi-
were in the hands of the plaintiffs as dence of acceptance. When this is
warehouse-keepers. The defendant taken in connection with the entries
made statements and wrote letters in the rum and brandy books, and the
which show that he acquiesced in the proof that after that entry the plain-
plaintiffs holding the goods as his tiffs could not get out the goods, there
agents. Particular casks were appro- is evidence of a change of character,
priated to the defendant by the in- After that I think that the defend-
voice. The defendant kept the in- ants could not say that these goods
voice, and may be presumed to have did not pass to them, though they
assented to the terms of it. The might have brought an action if they
invoice states that the goods were to were not according to contract."
remain ' free for six months.' This ' Atwell v. Miller, 6 Md. 10 ; Cooke
shows that the plaintiffs would keep v. Chapman, 6 Ark. 197 ; King v. Jar-
the goods as warehouse-keepers free man, 3 id. 190; Pleasants v. Pendlc-
of charge for a certain time. It may ton, 6 Band (Va.) 473; Jordan v.
therefore be inferred that the defend- James, 5 Ohio, 88 ; Leishcrness v.
ant knew that the plaintiffs were ware- Berry, 38 Me. 83 ; Taylor v. Richard-
house-keepers, and assented to their son, 4 Houst. (Del.) 300; Peoples'
keeping the goods in that capacity for Bank v. Gridley, 91 111. 457 ; Shurtleff
him. When applied to for payment i;. Willard, 19 Pick. (Mass.) 210 ;
he asks what the plaintiffs will give Adams v. Foley, 4 Clarke (Iowa) 52;

638

STATUTE or FKAUDS.

[chap. XII.

the policy of the statute.-' The rule may be said to be, that
if the goods sold are ponderous, and not capable of actual
delivery, and the buyer accepts them,, and in virtue of such
transfer of the property, proceeds to exert ^ right over them,
disposing of them, or giving orders and directions respecting
them, as the owner thereof, such proceedings ma}"- counter-
vail the actual delivery, and vest the property of the buyer,
without any written contract or earnest paid, notwithstand-
ing the statute ; and though it is proper for the court to say
whether a case does or does not fall within the statute, yet it
may be specifically put to the jury to say whether upon the
evidence there was or was not an acceptance of the thing by
the purchaser.^ In order, however, to make such a delivery
operative, the minds of the parties must have met upon all the
essential details of the contract, and there must he nothing left
undone which interferes with the exclusive dominion of the

Bethel Steam Mill Co. u. Brown, 57
Me. 9; Hayden v. Dunets, 53 N. Y.
426 ; Boynton i.. Veazie, 24 Me. 286 ;
Taylor v. Eichardson, 4 Houst. (Del.)
300; Calkins v. Lockwood, 17 Conn.
174 ; Leonard v . Davis, 1 Black. (U.
S. C. C.) 476.

1 Puckett V. Keed, 31 Ark. 131;
King V. Jarman, 35 id. 190.

2 Vincent v. Germond, 11 John. (N.
Y.) 283; Babcock r. Stanley, 11 id.
178 ; Wightman v. Caldwell, 4 Wheat.
{IT. S.) 85; Bailey a. Ogden, 3 John.
(N. Y.)399; Calkins t>. Lockwood, 17
Conn. 174; King v. Janvrin, ante.
The law relating to the delivery of
personal property does not require
parties to a sale to perform acts ex-
tremely inconvenient, if not impossi-
ble ; but accommodates itself to their
business, and the nature of the prop-
erty. Thus, where all the logs and
boards designated by a particular
mark are sold while afloat, a construc-
tive or symbolical delivery only is re-
quired, and this may be done by the
performance of any act which shows
that the seller has parted with the
right and claim to control the prop-
erty, and that the purchaser has ac-
quired that right. In such ease, the
delivery of one raft of boards upon

the water, having the same mark as
of the logs upon it, for the whole lum-
ber thus marked, would afford suffi-
cient evidence of such a delivery;
And the same raft may be used to
make such a delivery of the whole
lumber having the same marks, al-
though it had before been used to
make a delivery of a portion thereof,
between the same parties. Boynton
u. Veazie, 24 Me. 286. See also Leon-
ard V. Davis, 1 Black. (U. S.) 476.
Property in chattels may be trans-
ferred in writing without delivery, the
delivery of the writing being a sym-
bolical delivery of the property.
Southworth v. Sebring, 2 Hill (S. C.)
587. A delivery of part of a number
of chattels, and a symbolical delivery
of the remainder. Is a sufficient trans-
fer of possession. Chappel v. Mar-
vin, 2 Aik. (Vt.) 79.

An order on the depositary of
goods sold, given ■ by the vendor to
the vendee, constitutes a good deliv-
ery as between themselves. Sigerson
V. Harker, 15 Mo. 101 ; McCormick v.
Hadden, 37 111. 370; How v. Barker,
8 Cal. 603 ; 11 Cal. 893 ; Cushing v.
Breed, 14 Allen (Mass.) 376 ; Anthony
V. Wheatons, 7 E, I. 490.

SEC. 341. j

ACCEPTANCE AND EECEIPT.

639

purchaser over the property. The property must bo of a spe-
cific character, and clearly identified and separated from other
property of the same kind, and the sale must not be depen-
dent upon any conditions or contingencies, and the possession
must he the best which the nature and the situation of the prop-
erty admits of?- In the words of Lord Ellenbokough,^
" where goods are ponderous and incapable of being handed
over from one to another, there need not be an actual .deliv-
ery, but it may be done by that which is tantamount, such as
the delivery of the key of a warehouse,^ or other indication of
property." * In such cases, the delivery is constructive, and

' Wilkes V. Ferris, 5 John. (N. Y. )
335; Chappel v. Marvin, 2 Aik. (Vt.)
79; Gibbs o. Benjamin, 45 id.; King
V. Jarman, 25 Ark. 190; Chaplin v.
Rogers, 1 East. 192. In Rieder v.
Machen, 57 Md. 66, a sale was made
of a part of u, quantity of coal.
The part sold was not separated from
the rest, and was neither weighed nor
measured. It was held that the sale
was merely executory. If the whole
or a part of the price is to be paid
before it is to be taken away, there
is no delivery until such payment is
made. Dole u. Stimpson, 21 Pick.
(Mass.) 384.

^ Chaplin v. Rogers, ante.
8 Gray v. Davis, 10 N. Y. 285;
Packard;;. Dunsmore, 11 Cush. (Mass.)
282; Wilkes v. Ferris, 5 John. (N. Y.)
335. Upon the sale of a safe, weigh-
ing some 2000 pounds, a delivery of
its key, as well as a key of the room
in which it is situated, is sufficient to
constitute a valid sale as against cred-
itors. Benford v. Schell, 55 Penn.
St. 393; Chappel v. Marvin, 2 Aik.
(Vt.) 79.

* Bentnall u. Bum, 3 B. & C. 423 ;
Lucas V. Dorreen, 7 Taunt. 278 ; AVoad-
lyu. Coventry, 2 H. & C. 164; Harmon
V. Anderson, 2 Camp. 243; Lacking-
ton V. Atherton, 7 M. & G. 360.
Where the owner of lumber sells it,
and indorses and delivers to the pur-
chaser the receipt of the proprietor
of the lumber yard in which it is de-
posited, this symbolical delivery is
sufficient to pass the title as between

the vendor and vendee. Mitchell u.
McLean, 7 Fla. 329. The delivery of
a shop, SO separated from the realty
as to be an article of personal prop-
erty, may well be effected by delivery
of the key, though that delivery take
place at a distance from the shop it-
self. Vining v. Gilbreth, 39 Me. 496.
The delivery of the invoice of goods
shipped, with an assignment of the
goods indorsed upon it, the assignor
having no bill of lading, was held to
be a symbolical delivery of the goods.
Gardner v. Rowland, 2 Pick. (Mass.)
599. Delivery of the key of a build-
ing in which personal propert}' is
stored, by the vendor to the vendee,
with intent to surrender possession of
the property, is a sufficient delivery
as against subsequent attaching cred-
itors of the vendor. Packard v. Duns-
more, 11 Cush. (Mass.) 282; Wilkes
V. Ferris, 5 Johns. (N. Y.) 335; Gray
t . Davis, 10 N. Y. 285. But plucking
a handful of half-grown grass, and
delivering it to a purchaser in a field
upon a sale of the grass, witli an
agreement that the vendor shall cut
it for the vendee at a proper time, is
not a constructive delivery of the hay
as a chattel, which will pass a title to
it, as against third persons. Lamson
v. Patch, 5 Allen (Mass.) 586. In the
sale of oxen, a delivery of brass knobs
which had been worn upon their horns
is not a symbolical or constructive de-
livery of the oxen, unless specially so
agreed. Clark v. Draper, 19 N. H.
419.

640

STATUTE OF FRAUDS.

[chap. XII.

is sufficient for the purpose of taking the contract out of the
statute. But if anything remains to be done before the con-
tract is complete, as if the goods have not been separated from
others of the same kind,^ or if they have not been weighed
or measured,^ or some precise means of ascertaining the
value agreed upon, which only leaves the ascertainment of

1 Dunlop V. Perry, 5 111. 327 ; Cleve-
land V. "Williams, 29 Tex. 204 ; Gard-
ner V. Snydam, 7 N. Y. 357 ; Eager v.
Eichelberger, 6 Watts (Penn.) 29. A
sale of property is not fully completed
so long as anything remains to be done
to the thing sold to put it in a condi-
tion for sale, or to identify it, or dis-
criminate it from other things, or to
determine its quantity, if the price
depends on this, unless this is to be
done by the purchaser. ^McClung v.
Kelley, 21 Iowa, 508. Thus, if sev-
eral barrels of mackerel have been
inspected, and marked as of different
qualities, and the whole of those hav-
ing a particular mark are sold, a bill
of sale being given and a formal deliv-
ery made, the property will pass with-
out further separation or designation,
though such barrels are intermingled
with others. But if the whole of such
barrels are not sold, the title will not
pass without some future separation
or designation, notwithstanding a stor-
age receipt is given. Ropes v. Lane,
9 Allen (Mass.) 502. If a verbal con-
tract is made for the sale and delivery
of certain specified quantities of dif-
ferent kinds of spirituous liquors, at
agreed prices, the property will not
pass, and the sale is not complete until
the liquors are separated and set apart
for the purchaser. Banchor «. Wai^
ren, 33 N. H. 183. If one joint owner
of a crop sells to the other his share
of it to pay a debt, and it is divided
in the presence of both, for the pur-
pose of ascertaining the amount to be
credited on the debt, there is no tres-
pass in the purchasing partner's re-
moving the property, though forbid-
den by the other. Warbitton v. Sav-
age, 4 Jones (N. C. ) L. 382. Where
the part of an undivided lot of prop-

erty is sold, and an order given for its
delivery, there must be some act of selec-
tion under the order before the right of
property is changed. Woods v.
M'Gee, 7 Ohio, Part II. 127.

2 Everett v. Clements, 9 Ark. 478;
Courtright v. Leonard, 11 Iowa, 32.
In Ockington v. Richey, 41 N. H. 275,
it was held that a sale of lumber to
be taken and measured from a larger
bulk, and to be an average lot as to
thickness and quality, is not com-
plete, even as between the parties,
until selected and measured. The
question of delivery or non-delivery
of the thing sold is a question of what
was the intention of the parties ; and
where, out of five or six hundred bales
of cotton stored in a warehouse, 125,000
pounds are bargained and sold for the
purpose of being used in a factory
near thereto, and the buyer, after the
bargain and sale to him, sells one-half
to his partner in the factory, and a
portion of that first bought is con-
sumed in the factory by the partner-
ship, and the first buyer receives from
his partner full payment for his half
in another lot of cotton of the same
quantity at another place, such use
and acts and circumstances show the
intention of the parties to treat the
entire 125,000 pounds as delivered for
consumption in the factory, to be
weighed as needed from time to time,
and altogether amount to a sufficient
delivery thereof, though the whole
quantity sold was not weighed and
severed from the bulk. 1876, Phillips
V. Ocmulgee Mills, 55 Ga. 633. And
it must be a delivery under the con-
tract and in pursuance of it. Mat-
thiessen &e. R. R. Co. v. McMahon,
38 N. J. L. 537.

SEC. 342.]

ACCEPTANCE AND BECEIPT.

641

the price a mere matter of computation,^ there is no delivery,
because the elements do not exist which give to the buyer
exclusive dominion over the property, and divest the seller
of the right to recede from the contract.

Sec. 342. Delivery of Goods to a Carrier may be Delivery
to Vendee. — The delivery of goods by the vendor to a com-
mon carrier for the purpose of transmission to the vendee
may, in the absence of any special arrangement, and where
the contract is otherwise binding, amounts to a delivery to
the vendee, so as to vest the property in the goods in him,
and in the case of loss or damage he will be the proper
person to bring an action against the carrier.''^

In a New York case,^ it was held that "upon a verbal con-
tract for the sale of goods of more than fifty dollars in value,
a delivery of them, in accordance with such contract, to a

^ Gibbs V. Benjamin, 45 Vt. ; Tyler
c: Strange, 21 Barb. (N. Y.) 198.

2 Dawes v. Peck, 8 T. R. 330;
Fragano v. Long, 4 B. & C. 219;
Button V. Solomonson, 3 B. & P. 584 ;
Johnson v. Dodgson, 2 M. & W. 053 ;
Uunlop V. Lambert, 6 C. & E. 600;
Norman v. Phillips, 14 M. & W. 277;
Wait o. Baker, 2 Ex. 1 ; Meredith v.
Meigh, 2 E. & B. 364 ; Hart v. Bush,
3 E. B.& E. 494; 27 L. J. Q. B. 271;
Cusack 0. Robinson, 1 B, & ij. 299;
Smith V. Hudson, 6 B. & S. 431 ; 34
L. J. Q. B. 145. In Hausman v. Nye,
62 Ind. 485, an agent of a principal
residing in Ohio contracted with a
person residing in Indiana, to sell him
goods exceeding |50 in price. Noth-
ing was said as to the manner of
shipment. There was no memoran-
dum, earnest money, nor payment,
and the vendee did not receive any
part of the goods. The principal
afterward in Ohio, without the knowl-
edge or assent of the vendee, shipped
a part of the goods to the vendee, who
refused to receive them. It was held
that the contract was an Indiana
contract; that it was an entire con-
tract, and the vendee was not bound
to accept part; that the delivery to
the carrier under the circumstances
was not a legal delivery to the ven-

dee ; and that the contract was void
under the statute of frauds. As to
acceptance, see Johnson v. Cuttle, 106
Mass. 447 ; Kirby v. Johnson, 22 Mo.
354; Edwards v. Grand Trunk Rail-
way Co., 54 Me. 105 ; Hewes v. Jor-
dan, 39 Md. 472 ; Stone v. Browning,
68 N. Y. 598 ; Hooker o. Knabe, 26
Wis. 511 ; Everett v. Parks, 62 Barb.
(N. Y.) 9 ; Magruder i-. Gage, 33 Md.
344 ; Cobb v. Arundell, 26 Wis. 533 ;
Foster „. Rockwell, 104 Mass. 167;
Strong V. Dodds, 47 Vt. 348 ; Hunter
V. Wright, 12 Allen (Mass.) 348; Put-
nam t>. Tilleston, 13 Met. (Mass.) 517 ;
Merchant v. Chapman, 4 Allen
(Mass.) 362; Orcutt v. Nelson, 1 Gray
(Mass.) 536. But it must not be for-
gotten that a delivery to a. carrier
appointed by the purchaser only
amounts to a receipt and not to an ac-
ceptance of the goods. AUard v. Greas-
art, 61 N. Y. 1 ; Snow o. Warner, 10
Met. (Mass.) 132; Maxwell v. Brown,
39 Me. 98 ; Denmead v. Glass, 30 Ga.
637; Rodgers v. Phillips, 40 N.Y.
519 ; Froetburgh Mining Co. v. N. E.
Glass Co., 9 Gush. (Mass.) 115; Ath-
erton v. Newhall, 123 Mass. 141 ;
Quintard v. Bacon, 99 id. 185 ; Board-
man V. Spooner, 13 Allen (Mass.) 353.
a Rogers v. Phillips, 40 N. Y. 519.

642 STATUTE OF FRAUDS. [CHAP. XII.

general carrier, not designated or selected by the buyer, does
not constitute such a delivery and acceptance, under the
statute of frauds, as to pass the title to the goods. Although
in the case of a contract, itself valid, such a delivery might
be sufficient to transfer the title and risk to the purchaser. " i

In a Georgia case,^ it is said in the opinion of the court ;
" Under the proof, was this case within the seventeenth section
of the statute of frauds ? The statute requires that the pur-
chaser shall ' actually receive ' the goods. And although
goods are forwarded to him hy a carrier by his direction, or
delivered abroad on 'board of a ship chartered by him, stUl
there is no actual acceptance to satisfy the act, so long as the
huyer continues to have the right, either to object to the quanr
turn or quality of the goods." ^

In Maxwell v Brown,* the court say: "From the language
of this statute it is apparent, that when there is no written
contract, a mere delivery will not be sufficient. There must
further be an acceptance by the purchaser, else he will not
be bound. In Baldey v. Parker,^ ' it was formerly consid-
ered,' observes Best, J., 'that a delivery of goods by the seller
was sufficient to take a case out of the seventeenth section of
the statute of frauds : but it is now clearly settled, that there
must be an acceptance by the buyer as well as a delivery by
the seller.' " In the same case Holroyd, J., said : " As long
as the seller preserves his control over the goods, so as to retain his
lien, he prevents the vendee from accepting and receiving them as
his own, within the meaning of the statute."

In Cross v. O'Donnell,^ an action was brought by the
plaintiffs to recover the price of 24,000 hoops at fll.50 per
1,000, bought by the defendants of the plaintiffs, at Balti-
more in 1863. There was no memorandum of the contract
and no part of the purchase-money was paid by the pur-
chaser. But the purchaser inspected and accepted the hoops
and designated the steamer upon which they should be con-
veyed to New York. The hoops were thus delivered to the

1 Strong V. Dodds, 47 Vt. 348 1 & Co., 20 Ga. 574 ; Shepherd v. Pres-
Bacon v. Eccles, 43 Wis. 227 ; AUard sey, 32 N. H. 49.

V. Greasart, 61 N. Y. 1. < Maxwell v. Brown, 39 Me. 98.

2 Lloyd V. "Wright, 25 Ga. 215. = 2 B. & C. 37.

8 Acebal v. Levy, 10 Bing. 376; •> Cross n. O'Donnell. 44 N. Y. 661 ;

Howe V. Palmer, 3 B. & Aid. 321 ; 4 Am. Eep. 721.
Lloyd & Pulliam v. Wright, Griffith,

SEC. 342.] ACCEPTANCE AND EECEIPT. 643

steamer ; but she was sunk on her voyage in the Chesapeake
Bay. The defendants refused to pay for the hoops, and
pleaded the statute of frauds. It was held that the plaintiffs
were entitled to recover as the hoops had been accepted by
the defendant, and that their delivery to the carrier desig-
nated by him was a delivery to the defendant and a receipt
of the hoops by him, EAel, C, saying : " In this case, the
purchasers designated the agents of the ' Curlew ' to receive
and transport the hoops to them. They were the agents of
defendants for the purpose of receiving the hoops from the
plaintiffs. It is not necessary to determine in this case that
a mere carrier, designated by the buyer, can both accept and
receive for him, so as to make a compliance with the statute ;
but I can find no reason, founded upon principle or authority,
to doubt that, after the buyer has accepted the article pur-
chased, a carrier, designated by him to take and transport it,
can bind him as his agent by receiving it. While there is
not upon this question entire harmony in the views of
judges, and while the authorities cannot all be reconciled,
the general drift of them is toward the conclusion I have
reached.^

It is said by some writers that, to create such an appro-
priation of the goods by the buyer as will answer the mean-
ing attached to the words 'accept and receive' in the statute,
there must be such an actual delivery by the seller as will
destroy all lien for the purchase-price, or right of stoppage
in transitu. This, to the full extent, is not true. The seller
has a lien for the purchase-price of the goods while they
remain in his possession. And this lien he loses when he
voluntarily parts with the possession, except when he de-
livers them to a carrier. In the latter case, his lien is ex-
tended and lasts, although the title has passed to the buyer,
until the carrier has delivered the goods to the actual posses-
sion of the buyer. This lien is an arbitrary one, created by
law. As observed by Lord Kenyon,^ it is ' a kind of equi-
table lien adopted by the law for the purpose of substantial

1 Outwater v. Dodge, 8 Wend. (N. Hanson v. Armitage, 5 B. & Aid. 557 ;
y.) 397; The People v. Haynes, 14 Acebal v. 'Levy, ante; Coats v. Chap-
id. 546; Glen v. Whitaker, 51 Barb, lln, 3 Q. B.483; Morton v. Tibbett,
(N. Y.) 451 ; Spencer v. Hale, 30 Vt. ante.
314 ; Maxwell „. Brown, 39 Me. 98; = In Hodgson v. Lay, 7 T. R. 436.

644 STATUTE OF FRAUDS. [CHAP. XII.

justice.' When the seller retakes the property in the exer-
cise of this right of stoppage, he is not reinvested with the
title, but simply placed in the actual possession of the goods,
holding them as security for the purchase-price. The stop-
page must be while the goods are in transitu, and that is
usually when they are not in the actual possession of either
party ; and yet they may be in the- actual possession of the
buyer under such circumstances as not "to take away the
right of stoppage. This right exists, although the goods are
shipped upon the buyer's own vessel, consigned to him at
his place of residence.-"- The fact that the right of stoppage
exists is no evidence that both the title and possession have
not passed to the buyers. The contract of sale may be in
writing, part of the purchase-money may have been paid,
and there may have been a part delivery, and yet, if the
seller consigns th^ goods by a carrier to the buyer, to be
delivered to him at the place of their destination, the right
of stoppage exists. And this may be so, even if the buyer
is also master of the vessel, and he in person takes the goods
and loads them upon his own vessel, provided, as in this
case, the seller consigns the goods to the buyer, to be carried
by him to their place of destination.^ Hence I hold that
a carrier designated by the buyer may receive the goods purchased,
so as to make a compliance with the statute of frauds."

Sec. 343. Executory Contract partly Hzecuted. — Upon an
executory contract for the delivery of goods periodically,
which is void under the statute for want of writing, the
vendor may sue for goods actually delivered.^ The claim
in such case is not upon the terms and footing of the con-
tract, but upon a quantum meruit,^

1 Stubbs V. Lund, 7 Mass. 453 ; » Mavor v. Pyne, 3 Bing. 285.
lUsley V. Stubbs, 9 id. 65 ; Story on * Earl of Falmouth v. Thomas, 1
Sales, §336. Cr. & M. 109.

2 Pars, on Mar. Law, 335.

CHAPTER XIII.

THE MEMOKANDUM OR NOTE IK WRITING.

SECTION.

344. Difference between Fourth and Seventeenth Sections.

345. Perm of Memorandum.

346. When Mutuality is Requisite.

347. May be in Form of Letters Addressed to Third Persons.

348. Records of Corporations.

349. Alteration of Memorandum.

350. Filling Blanks, etc.

351. When Price must be Stated.

352. Formal Agreement to be Prepared.

353. What is Sufficient Description of Property.

354. Both Parties must be Named.

355. Reference to Conditions or Particulars of Sale. Executors, etc.

356. When Description is Indefinite.

357. Entry in Order-Book.

358. Both Parties Named, but Seller not Named as Seller.

359. Reference to other Documents to Describe Parties.

360. Letter Repudiating Contract.

361. Letter Suggesting Abandonment of Contract.

362. Letters Written During Dispute as to Terms.

363. Affidavits.

364. Contract may be Gathered from Several Writings.

365. Insufficient Reference.

366. Recital of Agreement Sufficient.

367. Reference must be Clear.

368. Part only, of Documents Referred to, to be Incorporated in Contract.

369. Reference in Case of Letters Need not be Express.

370. Terms of Contract must Appear from Writing.

371. Auctioneers, Sales by.

372. Sheriffs, Constables, etc.. Sales by.

373. Recognition of Contract.

374. Must be Concluded Agreement.

375. Additional Terms.

376. Immaterial Addition to Acceptance.

377. Conditional Acceptance.

378. Parol Acceptance of Written Offer.

379. Special Acceptance.

380. Withdrawal of Offer.

381. Determination of Offer.

382. Rejection of Offer.

383. Acceptance must be Witliin Reasonable Time.

384. Parol Evidence not Admissible to Vary Contract.

646 STATUTE OF FEATJDS. [CHAP. XIII.

385. When Admissible to Prove Stipulations of Contract.

386. Not, to Connect Separate Documents.

387. To Explain Imperfect Reference.

388. Cases where Parol Evidence not Admissible.
889. To Show that no Contract- was Intended.

390. That Agreement does not State Contract.

391. To Prove that Price was Agreed Upon.

392. To Show Abandonment of Contract.

393. To Explain Latent Ambiguity.

394. To Explain Omission in Bought and Sold Notes.
895. To Show Situation of the Parties.

396. Explain Subject-Matter.

397. To Show Trade Usage.

398. To Show Alterations in Articles Ordered.

399. To Prove Date.

400. To Show that Contract Signed by Agent in His Own Name was Signed

for a Principal.

401. To Prove Assent to Alterations in Memorandum.

402. To Prove Assent of Principal.

403. Effect of Parol Variations in Memorandum upon Remedy of Parties.

404. Lost Memorandum.

Section 344. Difference between the Fourth and Seventeenth
Sections. — Both the fourth and seventeenth sections of the
statute of frauds use the words " memorandum or note in
writing" , to indicate the means by which contracts are to be
authenticated. The wording of the two sections in other
respects is slightly different. The words of the fourth sec-
tion are : " Unless the agreement on 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."
Those of the seventeenth are : " Except that some note or
memorandum in writing of the said bargain be made, and
signed by the parties to be charged with such contract, or
their agents thereunto lawfully authorized." The meaning
of the two sections is substantially the same,^ but this dis-
tinction has been drawn : that if the memorandum states all
that is to be done by the party to be charged, that is suffi-
cient within the seventeenth section, though not enough to
make a valid agreement in cases within the fourth section.^

1 Kenworthy v. Schofield, 2 B. & 0, " Sari v. Bourdillon, 1 C. B. (N.
947. S.) 188; 26 L. J. C. P.; Egerton u.

SBC. 345.] MEMORANDUM OB NOTE IN WBITING.

647

Sec. 345. Form of the Memorandum. — If the memoran-
dum contains all the essential elements of a contract, the
form in which it is written is of no account, as any instru-
ment, however informal, or bunglingly constructed, which
describes the property, the price to be paid therefor, if the
price has been agreed upon,^ the parties and the essential
terms of the agreement,^ either by its own terms or by refer-
ence to other writings, so that parol evidence is not neces-
sary to establish or explain it, is as valid and binding as the
most formal instrument which could be constructed.^ The
statute only contemplated that such a note or memorandum
should be made as men in the hurry of business may be sup-
posed to be likely to make ; * but, nevertheless, of such a defi-

Matthews, 6 East, 307 ; Laythroop v.
Bryant, 6 Bing. (N. C.) 735; Hinds v.
Waterhouse, 7 East, 558 ; Bailey v.
Sweeting, 9 C. B. (N. S.) 843.

1 But the omission -of the price
has heen held not to render a memo-
randum invalid, when sufficient in
other respects. Thus, a writing as
follows : " Please get us 360 hogs,
instead of 250, if you can, so as to
make three carloads at your place.
Be careful about the weight," signed
by the defendant, was held to be suf-
ficient, although the price was not
stated, the court holding that the price
might be shown by parol. O'Neil v.
Cram, 67 Mo. 250. But this must only
be understood as being the rule where
either by statute, or the decisions of
the courts, a statement of the consid-
eration is unnecessary. But if the
price has been agreed upon, it must
be stated. Ires v. Hazard, 4 K. I. 14 ;
Norris v. Blair, 39 Ind. 90 ; McElroy
< . Buck, 35 Mich. 434; Soles v. Hick-
man, 20 Penn. St. 180; Wright v.
Cobb, 5 Sneed (Tenn.) 143; Parker
V. Bodly, 4 Bibb. (Ky.) 102; McFar-
son's Appeal, 11 Penn. St. 503; Par-
well r. Lowther, 18 111. 252 ; Brown v.
Bellows, 4 Pick. (Mass.) 178; Fugate

0. Hanaford, 3 Litt. (Ky.) 262; Holman

1. Bank, 12 Ala. 369. But see John-
son V. Ronald, 4 Munf. (Va.) 77.

^ It must state the contract so that
the substance of it can be understood
with reasonable certainty from the

writing itself. Abeel v. RadclifEe, 13
John. (N. Y.)297; Parkhurst r. Van
Cortlandt, 1 John. Ch. (N. Y.) 274 ;
Dodge V. Lean, 13 John. (N. Y.) 297 ;
Vanderbergh v. Spooner.L. R. 1 Exchq.
317. It need not contain a detail of
all the particulars. Ives o. Hazard, 4
R. I. 14. A memorandum of a con-
tract for the sale of a cargo of coal
which states the kind, the price per
ton, the place of delivery, and the
draft of the vessel in which it is to be
carried, and of which duplicate copies
are made, one of them only being
signed by the buyer alone and kept
by the seller, the other accepted by
the seller, and given to the buyer,
sufficiently describes the quantity,
and the two papers are properly
submitted in evidence together, and
thus form a sufficient memorandum
under the statute of frauds. Rhoades
V. Castuer, 12 Allen (Mass.) 130.

8 Bailey v. Ogden, 3 John. (N. Y.)
399; Shaw v. Finney, 13 Met. (Mass.)
453 ; Ide v. Stanton, 15 Vt. 685 ; Adams
u. McMillan, 7 Port. (Ala.) 73; Wood
V. Davis, 82 111. 311 ; Holmes i;. John-
ston, 12 Heisk. (Tenn.) 155; Lang v.
Henry, 54 N. H. 57. In Beckwith v.
Talbot, 95 U. S. 289, it was held that
parol evidence is admissible to iden-
tify the agreement referred to in the
instrument to supply the defect of
signature.

* TiNDAL, C. J., in Acebal v. Levy,
4 M. & Sc. 220.

648

STATUTE OF FRAUDS.

[chap. xnr.

nite character in all the essentials of the contract, that the interi-
tion of the parties, their names, and relation to each other under
the contract, can he gathered from the memorandum itself,
leaving nothing to he supplied hy parol?- But a memorandum
which is deficient in any of these respects, is insufficient to
take the contract out of the statute. Thus, an agreement
for the plaintiff to act for the defendant as travelling sales-
man, as follows: "The understanding with Mr. A, is as
follows : §2,000 for the first year ; $2,600 for the second year
sure, and provided the increase in sales shall warrant it, he
is to have $3,000 ; 3 year in proportion to business as above,"
and signed by both parties, was, inasmuch as it contained no
mention of the nature of the services, held insufficient to take
the case out of the statute of frauds.^ So in an action against

1 Sievewright v. Archibald, 17 Q.
B. 102. In Reid v. Kenworthy, 25
Kan. 701, it was held that a paper
containing merely the date of an
agreement, the name and place where
written, certain figures, and the names
of certain parties, and the signature
of the party intended to be charged,
Is not a memorandum of agreement
within the statute of frauds. In Graf-
ton f. Cummings, 99 U. S. 100, it was
held that a memorandum not identi-
fying the otlier party thereto, was not
sufficient, as parol evidence is not
admissible for that purpose. So it
has been held that parol evidence is
not admissible to show who was the
seller or who the buyer under a mem-
orandum of the sale of goods, where
the word " sold " was omitted from
the memorandum by mistake. Lee v.
Hills, 6 Ind. 474. If it refers to let-
ters or other documents, they may be
used as a part of the memorandum ;
but taken as a whole, they must con-
tain all the essentials of the contract.
And it must be a completed contract.
Rossitur V. Mills, L. R. 3 H. L. 1128;
Gaunt V. Hill, 1 Stark, 10 ; Oakman v.
Rogers, 120 Mass. 214 ; Winn v. Bull,
7 Ch. Div. 29 ; Ballingall v. Bradly, 16
111. 373 ; Roberts v. Tucker, 3 Exchq.
632 ; Barry v. Coombs, 1 Pet. (U. S.)
640; Hazard v. Day, 14 Allen (Mass.)
48; Williamsy. Robinson, 73 Me. 186;
40 Am. Rep. 352.

2 Drake v. Seaman, 27 Hun (N. Y.)
63. Letters showing a marriage en-
gagement, without stating the time there-
for, are not a sufficient note or memo-
randum within the statute of frauds,
of an agreement by its terms not to be
performed within one year. UUman
V. Meyer, 10 Abb. (N. Y.) N. C. 281.
Nor is a letter referring generally to a
contract as existing, without stating
any of its terms or otherwise identify-
ing it, sufficient under the statute of
frauds to bind the writer to a con-
tract, the terras of which must be
supplied by parol evidence. Smith
V. Jones, 66 Ga. 338 ; 42 Am. Rep. 72.
Telegrams signed by the defendant,
merely stating the terms of pajrment
and directing the plaintiff to draw a
contract, together with the written
agreement so drawn, are not sufficient
memoranda within the statute, that
agreement being executed in violation
of the Sabbath. Hazard c. Day, 14
Allen, 487. A telegram sent by one
of the parties accepting an ofEer made
by the other, is sufficient evidence of
a subscription to take the case out of
the statute. Trevor v. Wood, 36 N. Y.
307. That the names of both parties
are required in a memorandum, see
Calkins v. Talk, 39 Barb. (N.Y.) 620.
But they need not both be in the same
paper if the memorandum is made up
of two or more. It is enough if it
appears in one of them. Lerned v.

SEC. 345.] MEMORANDUM OR NOTE IN WRITING. 649

L to recover for goods sold and delivered, a memorandum
written on a bill-head of L, and, by an averred mistake,
omitting the word^ sold before L's name, and set up in his
answer and offer of set-off, denying delivery, etc., was held
not to be a "note or memorandum in writing of the bargaii^,"
within the statute of frauds, and that parol evidence was
not admissible to supply the word.^ There is a distinc-
tion between evidence of a contract, and evidence of a compli-
ance with the statute of frauds. The effect of the statute is,
that although there is a contract which is good and valid, no
action can be maintained upon it, if made by parol only,
unless there be a note or memorandum in writing of the
contract, signed by the party to he charged.^ In the case of a
written contract, the statute has no application. In the case
of other contracts, the compliance may be proved by part
payment, or part delivery, or memorandum in writing.
Where a memorandum in writing is to be proved in compli-
ance with the statute, it differs from a contract in writing in
that it may be made at any time after the contract, and before
action is brought. It is not necessary that the memorandum
should be contemporaneous with the contract, but it is suffi-
cient if it has been made at any time afterwards, and then
anything under the hand of the party sought to be charged,

"Wannemacher, 9 Allen (Mass.) 412 ; tract itself, but the evidence thereof,

Grafton u. Cummings, 99 XJ. S. 100. which the statute has made indispen-

A memorandum cannot be partly in sable. Bird v. Munroe, 66 Me. 337.

writing and partly by parol, conse- Sievewright v. Archibald, 17 Q. B.

quently every essential part of the 107 ; Bill v. Boment, 9 M. & W. 36 ;

agreement must be contained therein. Pricker v. Thomlinson, 1 M. & G. 772 ;

Wright V. Weeks, 25 N. Y. 153. Gibson u. Holland, L. R. 1 C. P. 1 ;

1 Lee o. Hills, 66 Ind. 474. In Jones v. Victoria Graving Dock Co.,
Wiemer v. Whipple, 53 Wis. 298, it 2 Q. B. Div. 314; Parton v. Crafts, 33
was held that a valid memorandum is L. J. C. P. 189; Barkworth v. Young,
not open to parol proof to explain, 4 Drew, 1 ; Hart v. Carroll, 85 Penn.
vary, or change its terras. See also St. 508 ; Lerned v. Wannemacher, 9
Peet V. Railroad Co., 19 Wis. 118; Allen (Mass.) 412; Williams i'. Bacon,
Whiting r. Gould, 2 id. 552; Lowber 2 Gray (Mass.) 287; Ide v. Stanton,
V. Connit, 36 id. 176 ; Hubbard v. Mar- 15 Vt. 685 ; Benziger v. Miller, 50 Ala.
shall, 50 id. 322 ; Shultze v. Coon, 51 206 ; Batturs v. Sellers, 5 H. & J. (Md.)
id. 416 ; Meyer v. Evereth, 4 Camp. 117 ; Old Colony R. R. Co., 6 Gray
22; Meres v. Ansell, 3 Wil. 375; (Mass.) 25; Lanz ,.. McLaughlin, 14
Gardiner v. Gray, 4 Camp. 144. Minn. 72 ; Mizell v. Burnett, 4 Jones

2 Ridgway v. Wharton, 6 H. L. (N. C.) L. 249; Thayer v. Luce, 22
305; Bailey v. Sweeting, 9 C. B. N. S. Ohio St. 62.

859. The memorandum is not the con-

650 STATUTE OF PEAITDS, [CHAP. Xin.

admitting that he had entered into the agreement, ■will be suffi-
cient to satisfy the statute, which was only intended to pro-
tect parties from having parol agreements imposed upon
them.^ Thus, in the case first cited in the last note, it
appeared that the parties entered into an agreement for a
lease of certain premises for fifteen years, and an attorney
was employed to prepare the lease, which he did. After-
wards the defendant, finding himself unable to perform,
requested the plaintiff to cancel the lease. The plaintiff
consented to do this, if the defendant would reimburse him
for his expenses and inconvenience in the matter, and would
relinquish the agreement in writing. The defendant there-
upon endorsed upon the draft of the lease the following:
"I hereby request Mr. Shippey (the plaintiff) to endeavor
to let the premises to some other person, as it will be incon-
venient for me to perform my agreement for them, and .for
doing so, this shall be a sufficient authority. J. Derrison."
And this was held to be a sufficient note or memorandum in
writing to satisfy the statute. This rule is forcibly illus-
trated in a recent English case.^ In that case, in an action
for breach of a contract for the hire of a carriage for more
than a year from the date of the agreement, at a specified
sum per month, it was proved that the plaintiff agreed to let
the carriage to the defendant ; a memorandum of the terms
of the agreement was signed by the plaintiff, but not by the
defendant. The defendant subsequently wrote a letter to
the plaintiff, desiring to terminate the agreement, in which
he referred to "our arrangement for the hire of your car-
riage," and "my monthly payment." There was no other

1 Shippey v. Derrison, 5 Esp. 193; Miss. 678; 1873, Marqueze v. Caldwell,

Bailey v. Sweeting, 9 C. B. N. S. 857 ; 48 Miss. 23 ; Brooklyn Oil Refinery v.

Tawney v. Crowtlier, 3 Bro. C. C. 161 ; Brorni, 33 How. Pr. (N. Y.) 444. A

Bradford v. Eoulston, 8 Ir. C. L. (N. written proposal containing the names

S.) 468; Webster v. Zeiley, 52 Barb, of both parties, and signed by a duly

(N. Y.) 482; Lerned u. Wannemacher, authorized agent of the proponent, is,

9 Allen (Mass.) 416 ; Sanborn v. Cham- within the meaning of the Ohio statute

berlin, 101 Mass. 416. It is the uni- of frauds, " an agreement in writing

form doctrine of the courts of this and signed," and the assent thereto

country and England that it is a suffi- may be proved by parol testimony,

cient compliance with the statute of Himrod Furnace Co. v. Cleveland &c.

frauds if only " the party charged " R. R. Co., 22 Ohio St. 451.
shall have signed tlie memorandum ^ Cave u. Hastings, 45 L. T. N. S.

or agreement, whether the other party 848.
sign or not. Williams v. Tucker, 47

SEC. 34S.] MEMORANDUM OK NOTE IN WRITING. 651

arrangement between the parties to which the expressions of
the defendant could have any reference, except the agree-
ment contained in the memorandum signed by the plaintiff.
It was held that the letter of the defendant was so connected
by reference to the document containing the terms of the
arrangement, as to constitute it a note and memorandum of
the contract signed by him within the fourth section of the
statute of frauds. As has previously been stated, the statute
does not require that the contract itself shall be in writing,
but that it shall be evidenced by a writing under the hand
of the party to be charged. Consequently, if an agreement
in writing exists, which is signed only by one of the parties,
so long as this condition of things exists, it is enforceable
only against the party so having signed it; but, if subse-
quently, at any time before action is brought, the other party
in any manner admits in writing, under his own hand, or that
of an authorized agent, the existence of such contract, it
becomes binding upon him because the two papers are to be
taken together as forming the note or memorandum required
by the statute. Therefore, in this view, which seems to be
the result of the better authorities, it is immaterial in what
form the memorandum is made, or whether it was ever deliv-
ered to the other party or not, provided that, in itself, or by
reference to other writings, it embraces all the essential ele-
ments of the contract. Nor is it material in what form the
writing admitting the existence of a contract, a memoran-
dum of which is signed by one party, is made by the other
party. If it admits the contract, and refers to the memoran-
dum in 8ueh a manner that the court can connect it therewith,
and ascertain the terms of the contract without the aid of parol
evidence, it is sufficient to hind him, although he did not intend
thereby to ratify the contract. The moment written evidence
of the contract, under his hand, in whatever form, exists, the
contract is taken out of the statute,^ even though such admis-

1 In Townsend v. Hargreaves, 118 tional evidence, some written memo-
Mass. 325, the court said : " The pur- randum signed by the party sought to
pose of this celebrated enactment, as be charged, or proof of some act con-
declared in the preamble and gathered firmatory of the contract relied on.
from all its provisions, is to prevent It does not prohibit such contract. It
fraud and falsehood, by requiring a does not declare that it shall be void
party who seeks to enforce an oral or illegal, unless certain formalities
contract in court, to produce, as addi- are observed. If executed, the effect

652

STATUTE OP FRAUDS.

[chap. XIII.

sion is in the form of a letter repudiating the contract.^ But
in order to make a writing of this character sufficient, it must

of its performance on the rights of
the parties is not changed, and the
consideration may be recovered. Stone
V. Dennison, 13 Pick. (Mass.) 1 ; 23
Am. Dec. 654 ; Basford v. Pearson,
9 Allen (Mass.) 387 ; Nutting v.
Dickinson, 8 id. 540. The memo-
randum required is the memoran-
dum of only one of the parties ; the
alternative acts of the 17 th section
proceed from one only; they pre-
suppose a contract, and are in affirm-
ance or partial execution of it ; they
are not essential to its existence ; need
not be contemporaneous, and are not
prescribed elements in its formation.
It is declared in the 4th section that
no action shall be brought upon the
promises therein named, unless some
memorandum of the agreement shall
be in writing ; and in the 17th, that no
contract for the sale of goods ' shall
be allowed to be good,' or, as in our
statute, ' shall be good and valid,' un-
less the buyer accepts and receives
part or gives earnest, or there is some
memorandum signed by the parties to
be charged, or, as in our statute, by
the party to he charged. It is true
there is difference in phraseology in
these sections ; but in view of the pol-
icy of the enactment, and the neces-
sity of giving consistency to all its
parts, this difference cannot be held
to change the force and effect of the
two sections. 'Allowed to.be good'
means good for the purpose of a
recovery under it ; and the clause in
the last part of the latter section,
which requires the memorandum to
be signed by the party or parties to
be charged, implies that the validity
intended is that which will support an
action on the contract. We find no
case in which it is distinctly and
authoritatively held otherwise. See
Leroux v. Brown, 12 C. B. 801 ; Car-
rington v. Roots, 2 M. & W. 248;
Reade v. Lamb, 6 Exch. 130. In car-
rying out its purpose, the statute only
affects the modes of proof as to all

contracts within it. If a memoran-
dum or proof of any of the alterna-
tive requirements peculiar to the 17th
section be furnished; if acceptance
and actual receipt of part be shown,
then the oral contract, as proved by
the other evidence, is established with
all the consequences which the com-
mon law attaches to it. If it be a com-
pleted contract, according to common-
law rules, then, as between the parties
at least, the property vests in the pur-
chaser, and a right to the price in the
seller, as soon as it is made, subject
only to the seller's lien and right of
stoppage in transitu. Many points
decided in the modern cases support
by the strongest implication the con-
struction here given. Thus, if one
party has signed the memorandum,
the contract can be enforced against
him, though not against the other,
showing that the promise of the other
is not wholly void, because it affords
a good and valid consideration to sup-
port the promise which, by reason of
the memorandum, may be enforced.
Reuss u. Picksley, L. R. 1 Ex. 342.
The memorandum is sufficient, if it
be only a letter written by the party
to his own agent; or an entry or
record in his own books ; or even if
it contain an express repudiation of
the contract. And this because it is
evidence of, but does not go to make
the contract. Gibson v. Holland, L.
R. 1 C. P. 1 ; Buxton v. Rust, L. R. 7
Ex. 1, 279; Allen v. Bennet, 2 Taunt.
169; Tufts V. Plymouth Gold Min-
ing Co., 14 Allen, 407 ; Argus Co. v.
Albany, 55 N. Y. 495 ; S. C, 14 Am.
Rep. 296."

1 Buxton u. Rust, L. R. 7 Exchq.
279 ; Wilkinson v. Evans, L. R. 1 C.
P. 407. In Leather Cloth Co. o. Hie-
ronimus, L. R. 10 Q. B. 140, the defen-
dant wrote a letter, admitting the pur-
chase and referring to the plaintiff's
letter containing the invoice, but de-
nied any liability, because the goods
had been sent by a wrong route. The

SEC. 34S.] MEMOKANDUM OK NOTE IN WRITING.

653

admit the existence of a previous completed contract be-
tween the parties. It cannot be used to make, but only to
prove a contract already made ; and although it admits the
contract, if it annexes conditions to it, or otherwise varies it,
it has no effect as a memorandum.^ The statute simply
requires some note or memorandum of the agreement entered
into, in writing, signed by the party to be charged. There-
fore it is only necessary that the essential terms of the con-
tract should be evidenced by some writing which is ratified
by the party to be charged under his own signature, or that
of an authorized agent; and, as before stated, the form of the
writing is not material, but any writing or number of written
documents may be used to constitute a memorandum under
the statute, if they are connected with each other by proper
reference,^ although such writings were not signed by the

court held that the letter was a suffi-
cient note of the bargain to satisfy
the statute, because it did not deny
any of the terms of the contract, but
merely sought to avoid it because, it
had not been properly performed.
Bailey v. Sweeting, 9 C. B. N. S. 843 ;
Cave V. Hastings, ante.

1 Nesham v. Selby, L. R. 7 Ch. 406 ;
Jenness v. Mt. Hope Iron Co., 53 Me.
20; Smith v. Surman, 9 B. & C. 561;
Williams r. Bacon, 2 Gray (Mass.)
387 ; Williams v. Morris, 95 U. S. 444.
Eossiter v. Miller, ante; Bailey i/.
Sweeting, 9 B. &; C. 843 ; McLean v.
NicoU, 7 H. & N. 1124.

2 The requisite written evidence
of the contract may be established
through the medium of letters and
separate documents containing refer-
ences to each other. Any printed
papers or communications in writing
which may have passed between the
parties, forming on the face of them
part of one connected transaction,
may be incorporated and construed
together, and made to establish the
requisite written evidence of an
"agreement" within the statute.
Bird V. Blosse, 2 Ventr. 361 ; Dobell
V. Hutchinson, 3 Ad. & EI. 355;
Home V. Booth, 4 Sc. N. R. 559. But
the terms of the agreement must ap-

pear upon the face of the written
instruments themselves, when placed
in juxtaposition, and cannot be estab-
lished in any way througli the me-
dium of oral testimony. Coe v.
DuflSeld, 7 Moore, 252 ; Stead u. Lid-
dard, 1 Bing. 4 ; Kenworthy v. Scho-
field, 2 B. & C. 945; Ridgeway !•.
Wharton, 22 Law T. E. 2C5. The
note or memorandum of the agree-
ment for the sale and purchase of
lands, or of any interest in or concern-
ing them, need not be drawn up in
technical language, or in words of
form, but there must be written evi-
dence of an aggregatio meniium, or mu-
tual agreement, on the part of the
vendor and pvirchaser to sell and to
buy; and both the subject-matter of
the sale and the price to be paid for
it must be specified. It would not be
sufficient to say, " I agree to sell A B
my lands," without specifying the terms
or the price, and if those could be
supplied by oral evidence, we should
let in all the mischief against which
the statute of frauds was meant to
guard, viz., of having important parts
of the contract proved by oral evi-
dence. Bayley, J., in Saunders v.
Wakefield, 4 B. & Aid. 601 ; Ogilvie
V. Foljambe, 3 Mer. 53. If upon ne-
gotiations for the purchase and sale

654

STATUTE OF PEATJDS.

[chap. XIII.

party to be charged, if they were in existence before the writing
which is signed by him was executed;^ and it is sufficient, if

1 Wood V. Midgley, 5 De G. M. &
G. 41 ; Jackson t . Lowe, 1 Bing. 9 ;
Eishton v. "Whatmore, 8 Ch. Div. 467 ;
Dobell I'. Hutchinson, 3 Ad. & El.
371 ; Williams c. Jordan, 6 Ch. Div.
517; Scarlett v. Stein, 40 Md. 512;
Drury v. Young, 58 id. ; Mayer v,
Adrian, 77 N. C. 8-3 ; Washington Ice
Co. V. Webster, 62 Me. 341 ; Williams
V. Morris, 95 U. S. 444; Briggs u.
Munchon, 56 Mo. 467; Tallman v.
Franklin, 14 N. Y. 584; Kronheim v.
Johnson, 7 Ch. Div. 60 ; Wilkinson v.
Evans, L. E. 1 C. P. 407 ; Eidgway v.
Ingram^ 50 Ind. 145, and so many of
them as of themselves show a rela-
tion to each other may be taken
together as a memorandum. Buxton
V. East, L. E. 7 Exchq. 279; Lemed
V. Wannemacher, 9 Allen (Mass.) 412 ;
Beckwith v. Talbot, 95 U. S. 289;
Ide V. Stanton, 15 Vt. 685 ; Work v.
Cawhick, 81 111. 317 ; Thayer v. Luce,

of an estate the owner writes a letter
which amounts to a distinct offer to
sell the property upon certain terms,
and the party to whom the letter is
addressed answers it and accepts the
offer within a reasonable period, the
contract is complete, and an action
may be maintained upon it at com-
mon law, or the owner may be com-
pelled to perform It in specie in equity.
Coleman v. Upcot, 5 Vin. Abr. 627, pi.
17; Dunlop v. Higgins, 1 H. L. C.
381. But if there has not been a
clear offer and acceptance of one and
the same set of terms, if the property
has not been clearly described and
defined, and any material particulars
are left unsettled between the parties,
there is not a concluded contract ca-
pable of supporting an action, or a
bill for specific performance. Ken-
nedy V. Lee, 3 Mer. 451 ; Thomas v.
Blackman, 1 Coll. 312. Where a draft
agreement had on the back of it, " We
approve of this draft," and this was
signed by the intended parties to the
agreement, it was held that it merely

22 Ohio St. 62 ; Peabody v. Speyers,
56 N. Y. 230, but not otherwise, as
parol or extrinsic evidence is not
admissible to connect them. Board-
man i;. Spooner, 13 Allen (Mass.)
353; Stocker u. Partridge, 2 Eob.
(N. Y.) 193; Morton v. Dean, 13 Met.
(Mass.) 385; Johnson j;. Buck, 35 N.
J. L. 338 ; Preeport r. Bartol, 3 Mo.
340; Schafer v. Farmer's Bank, 59
Penn. St. 144 ; Johnson v. Kellogg,
7 Tenn. 262 ; Wiley v. Eobert, 27 Mo.
388; Clark v. Chamberlin, 112 Mass.
19 ; Eidgway v. Ingram, 50 Ind. 145 ;
O'Donnell v. Seeman, 43 Me. 158;
Jacob V. Kirk, 2 Moor. Ey. 221;
Hinde v. Whitehouse, 7 East, 558;
Counnins o. Scott, L. E. 20 Eq. 11;
Tawney v. Crowther, 3 Bro. C. C. 318 ;
Peirce v. Corf. L. E. 9 Q. B. 210;
Jackson r. Lowe, 1 Bing. 9 ; Coles v.
Trecothick, 9 Ves. 234.

amounted to evidence of something
they intended to agree to, and not
to an actual agreement. " If the
words," observes Lokd Tentekden,
"imported an agreement, there would
never be any necessity for any other
instrument." Doe v. Pedgriph, 4 C.
& P. 312. "Still," observes Sm E.
SuGDEN, "where the parties them-
selves not being professional persons
sign such a memorandum, it is a ques-
tion to be decided in each case whether
they signed in that form, as simply
approving of the draft as such, or
whether they intended to give validity
to it as an agreement." Sugd^ Vend.
129. "It is not necessary that the
note in writing should be cotemporary
with the agreement. It is sufficient if
it has been made at any time before
action is brought thereon, and adopted
by the party afterwards, and then
anything under the hand of the party
expressing that he had entered into
the agreement will satisfy the statute,
which was only intended to protect
persons from having oral agreements

SEC. 345.] MEMOEAKDTJM OR NOTE IN WEITING.

655

the writing which is signed admits tlie contract, there being
a memorandum thereof in writing, previously executed by
the other partj'', although it is a mere request to be absolved
therefrom.^ A stated account in which the vendor charges
himself with the price of land,^ a receipt for money, or a bill
of parcels * may, if signed by the party to be charged, or

imposed upon them." Shippey v.
Derrison, 5 Esp. 192.

If it relates to a bargain for the
sale of goods, it must state the names
of the contracting parties or their
agents : Champion v. Plummer, 4 B. &
P. 25i; Graham v, Musson, 5 Bing.
(X. S.) 605; 7 Sc. 769; Sherburne v.
Shaw, 1 N. H. 157 ; Nichols v. John-
son, 10 Conn. 192 ; Godet v. Cowdry,
1 Buer (N. Y.) 132; and the price to
be paid, if the price was fixed and
agreed upon at the time of the mak-
ing of the contract : Elmore v. Kings-
cote, 5 B. & C. 583 ; 8 D. & R. 343 ;
Smith V. Arnold, 5 Mas. (U. S.) 414;
Ide V. Stanton, 15 Vt. 685 ; Adams v.
McMillan, 7 Port. (Ala.) 73 ; but if no
price was positively and definitely
fixed and agreed upon, the note or
memorandum will be sufficient, in the
case of the sale of a chattel, without
any statement of price, and the law
will infer that a reasonable price was
to be paid. Hoadley v. Maclaine, 10
Bing. 482; Acobal v. Levy, ib. 227,
376; Valpy v. Gibson, 4 C. B. 864;
16 Law J. C. P. 248. It is not neces-
sary that all the minutiae and particu-
lars of the contract should appear
upon the face of the written memo-
randum; any note, or an entry in a
book or ledger, acknowledging the
fact of the sale, mentioning the name
of the vendor and the thing sold, and
signed by the purchaser or his agent,
will take the case out of the statute.
The contract may be authenticated
and established through the medium
of bills of parcels, entries in books,
letters, and separate writings, provided
they refer to each other and to the same
persons and things^ and manifestly relate
to the same contnict and transaction.
Saunderson v. Jackson, 2 B. & P. 238 ;
Allen o. Bennett, 3 Taunt. 169.

Where goods were sold by auction to
an agent acting on behalf of an un-
disclosed principal, and the auctioneer
wrote the initials of the agent's name,
together with the prices, opposite the
lots purchased by him, in the printed
catalogue ; it was lield, that the entry
in the catalogue and a letter after-
wards written by the principal to the
agent, recognizing the purchase, might
be coupled together to constitute and
establish the requisite written memo-
randum of the contract. Phillimore
u. Barry, 1 Campb. 513. And where
a buyer wrote to the seller : " I give
you notice that the corn you delivered
to me, in part performance of my con-
tract with you for one hundred sacks
of good English seconds flour, at 45 s.
per sack, is so bad, that I cannot make
it into saleable bread." And the sel-
ler replied : " I have your letter or
notice of the 24th September, in reply
to which I have to state that I con-
sider I have performed my contract
as far as it has gone." It was held,
that the first letter and the answer
might be coupled together, and incor-
porated, and were sufficient evidence
in writing to satisfy the terms of the
statute of frauds, and enable the
buyer to sue the seller for the non-
delivery of an article corresponding
with that mentioned and described in
the buyer's letter. Jackson v. Lowe,
1 Bing. 9.

' Cave V. Hastings, 45 L. T. Rep.
N. S. 348.

2 Bourland u. County of Peoria,
16 111. 538 ; Barry v. Coombs, 1 Pet.
(U. S.) 640.

' Williams v. Morris, 95 U. S. 444 ;
Barickman v. Kuykendall, 6 Blackf.
(Ind.) 2; Evans v. Prothero, 1 De G.
M. & G. 572; Ellis v. Deadraan, 4
Bibb. (Ky.) 466, as to bill of parcels.

656 STATUTE OF FEATJDS. [CHAP. XIII.

recognized by some other writing under his hand, amount to
a sufficient memorandum,' provided it contains a description
of the property sold, and the essential terms of the agreement,
and this is the rule both as to chattels and land.^ But a
memorandum, in whatever form, which does not in itself, or
by reference to other written papers, contain all the essential
terms of the contract as well as a sufficient description of the
property, is not sufficient.^ But, to comply with the statute,
the memorandum need only contain the substance of the con-
tract, and need not set forth all the details or particulars. It
is enough if the names of the parties, the price (if it has been
agreed upon), such a description of the property that it can
be identified, and such other special terms, if any, as have
been agreed upon are set forth, so as to make a complete
agreement without the aid of parol evidence.* If terms of
credit are agreed upon, they should be stated in the memo-
randum, otherwise it will be treated as a sale for cash.® So
if a special time for delivery has been agreed upon, it must
be stated in the memorandum or it will be treated as a con-
tract to deliver at once.^ In the case of a lease, or rather an
agreement for a lease, the term should be stated in the
memorandum, and cannot be shown by parol evidence.''

The fact of the making of a note or memorandum presup-
poses the existence of a prior parol contract, and whUe there

Hawkins v. Chace, 19 Pick. (Mass.) f Wright w. Weeks, 3 Bos. (N. Y.)

602 ;. Batturs v. Sellers, 5 H. & J. 372 ; Davis v. Shields, 26 Wend. (N.

(Md.) 117; Saundersonti. Jackson, 2 B. Y.) 341 ; Elfe v. Gadsden, 2 Rich. (S.

& P. 238; Drurya. Young, 58 Md.546. C.) L. 373; Smith v. Jones, 7 Leigh.

' Barickman v. Kuykendall, ante ; (Va.) 165; Fessenden v. Mussey, 11

Cosack V. Descourdes, 1 McCord (S. Gush. (Mass.) 127. So if a time for

C.) 425; Shooftstall v., Adams, 2 the delivery of the goods is agreed

Grant (Penn.) 209. upon, it should be stated. Davis v.

2 Sherburne v. Sha:w, 1 N. H. 157 ; Shields, 26 Wend. (N. Y.) 341. So if

Stafford v. Lick, 10 Cal. 12 ; Sheid v. the goods are warranted as to qual-

Stamps, 2 Sneed. (Tenn.) 172 ; Kay v. ity : Newberry v. Wall, 65 N. Y. 454 ;

Curd, 6 B. Mon. (Ky.) 100; Ferguson Smith v. Dallas, 35 Ind. 255; Peltier

V. Storer, 33 Penn. St. 411 ; Nichols v. v. Collins, 3 Wend. (N. Y.) 459.
Johnson, 10 Conn. 192. ^ Williams v. Robinson, 73 Me.

8 McCarty v. Kyle, 4 Cold. ' Clarke v. Fuller, 16 C. B. (N. S.)

(Tenn.) 348; Knox w. King, 36 Ala. 24; Abeelv. EadclifEe, 13 John. (N

367; Doty v. Wilder, 15 111. 407; Y. ) 297 ; Riley w. Williams, 123 Mass.

White V. Watkins, 13 Mo. 423 ; Kurtz 506 ; Hodges r. Howard, 5 R. I. 149

V. Cummings, 24 Penn. St. 35. Parker u. Tainter, 123 Mass. 185

1 Knox V, King, 36 Ala. 367 ; Doty Fitzmaurice v. Bayley, 9 H. L. Cas,

V. Wilder, 15 111. 407 ; Ives v. Hazard, 79.
4 R. I. 4.

SEC. 34S.] MEMORANDUM OR NOTE IN WRITING.

657

is a distinction between the note or memorandum, and the
contract itself, yet tlie note or memorandum being required
to embody all the essential terms of the contract, excludes
parol evidence as to any of the essential terms of such prior
contract.^ The object of the statute, in requiring a note or
memorandum in writing to be made, is to prevent disputes
as to what the parties had agreed to and intended, and there-
fore the memorandum or note supersedes the prior parol
agreement, and excludes all proof as to what was said by
the parties, or even to show a mistake in the writing itself.^

1 See §§ 384-401, as to instances
in which parol evidence is admissible
to explain, etc., memorandums.

2 Watkins v. Eymill, 10 Q. B. Div.
178; Stoops V. Smith, 100 Mass.
63; Ridgway v. Bowman, 7 Cush.
(Mass.) 268; Grout «. Story, 44 Vt.
200; Pitcher v. Hennessey, 48 N. Y.
415; Clark v. N. Y. L. Ins. & F. Co.,
7Lans.(N.Y.)322. In Eden «. Blake,
13 M. & W. 614, the defendant bought
at auction for less than £10 a dress-
ing-case, which in the printed cata-
logue was described as having silver
fittings, but which before the sale the
auctioneer stated was a mistake, and
that the fittings were plated. The
court held that as the contract was
not in writing, parol evidence was ad-
missible to show that the dressing-
case was sold as having only plated
fittings although the catalogue itself
was not altered. Pollock, C. B.,
said ; "I am of opinion that this rule
ought to be discharged. I accede al-
together to the authorities cited by
the defendant's counsel, and to the
proposition, that, whatever be the
value of the goods sold, whether it be
such as calls for a memorandum in
writing under the statute of frauds
or not, if there has been a memorandum
in writing, it cannot be altered by extrin-
sic evidence ; and consequently, the plain-
tiff could not be allowed to prore that,
at the time of the sale, the auctioneer
made declarations contradicting the
printed conditions of sale. In Shelton
V. I/ivius, 2 C. & J. 411, the catalogue
as it originally stood formed part of

the contract entered into ; for there,
although the auctioneer announced in
the sale-room an alteration in the con-
ditions of sale, he afterwards signed
the book without making any altera-
tion in the printed catalogue ; and
that signature bore reference to the
catalogue, which contained the condi-
tions of sale, and constituted the con-
tract. In this case no question arises
on the statute of frauds, for the
amount sold being less than £10, no
writing was requisite, and the question
is what in point of fact was bargained
and sold; and that is altogether a
question for the jury. According to
the evidence, it appears that, before
this article was put up for sale, the
auctioneer stated publicly that the
fittings were not silver, as stated in
the catalogue, but plated, and that the
dressing-case would be sold as having
plated fittings. Now it was for the
jury to say whether the defendant
bargained for these things as being
only plated, or as silver, what, in
point of fact, was the article bargained
and sold. It is the same as if the
auctioneer had put up and sold an
article not named in the catalogue at
all. The objection taken in the cases
which have been cited does not arise
in the present."

Alderson, B., said : " I am of the
same opinion. The question turns
entirely on the facts, for the law on
the subject is clear. If the auctioneer
had signed a book containing or ref er-
ing to the catalogue, without making
any alteration in it relative to these

658

STATUTB OF FKAUDS.

[chap. XIII.

The legal effect of a note or memorandum is left precisely as
it was at the common law, hut the whole contract must he em-
hraced in the writing or other collateral writings connected
therewith, and no part of it left resting in parol, because in
such an event, all the mischiefs which the statute was in-
tended to prevent might ensue.-'^ Therefore a memorandum

fittings being plated, and not silver, I
should agree that it would not be
competent to the opposite party to
show that, previous to the bidding,
the auctioneer had declared that the
goods to be sold were only plated;
because, having subsequently signed
in the book a statement that they
were silver, it is that subsequent act
of signing which binds the purchaser,
and not the mere proceedings at the
sale. That would be in accordance
with the case of Shelton u. Livius,
ante, because there the auctioneer
signed the book without making any
alteration in the particulars of sale,
although he had stated verbally that
the alteration was to be made.
Whether the subject-matter of the
sale be land or goods is immaterial
for this purpose. The sole question
is, what were the terms upon which
this article was sold. Are those terms
in writing 1 If they are, they cannot
be varied by parol testimony ; but if
they exist only in parol, they of course
may be varied by parol; and as it
appears that the article was not sold
under an agreement in writing, it is
for the jury to say whether the con-
tract existed in the printed particulars
alone, or partly in them and partly in
parol; namely, that the auctioneer
stated that there was an inaccirracy
in the particulars, which declaration
was heard by the defendant, who, after
hearing it, bid for the article. This
the jury have found. I am therefore
of opinion that the rule ought to be
discharged."

KoLFE, B., said: "I am of the
same opinion. Where there is a sale
of land, the party cannot be bound,
except by a contract signed either by
himself, or by some person either . ex-
pressly or impliedly constituted his

agent to sign for him. After the pass-
ing the statute of frauds, the ques-
tion arose, whether the express words
of that statute, that an agreement for
the sale of land, or of goods above
the value of £10, should be ' signed
by the party to be charged therewith,
or some person thereunto by him law-
fully authorized,' could be got over
by holding that an auctioneer might
act as agent for both parties. It has
however been settled, that if he signs
the printed particulars of sale, he
signs them as the agent of the pur-
chaser; but if, before the sale, he
gave a parol intimation of an altera-
tion in the particulars, there might be
great doubt whether the party who
bid simpliciter at a sale of land would
be bound by that intimation, unless
he gave an express authority to the
auctioneer to sign the altered particu-
lars as agent for him ; but where, as
is the case here, the chattel to be sold
is under the value of £10, and conse-
quently no writing is required by the
statute of frauds, the auctioneer
might very well say, ' I have no such
article to sell as that described by the
catalogue to have silver fittings, but I
will put this up as a plated article
which does not appear in the cata-
logue.' A party bids for it, and when
the auctioneer strikes do^vn his ham-
mer, the contract is complete. It is
not clear to me that what the auction-
eer signs afterwards makes any differ-
ence, for the contract is completed by
the act of sale; but, as the case
stands, there is no pretence for this
rule." Taylor v. Kiggs, 1 Pet. (U. S.)
591 ; Hakes v. Hotchkiss, 23 Vt. 291 ;
Carter v. Hamilton, 11 Barb. (N. Y.)
147 ; Small v. Quincy, 4 Me. 497.

1 In Bird v. Munroe, 66 Me. 337, it
was held that a writing ante-dated as

SEC. 345.] MEMORANDUM OR NOTE IN WRITING.

659

or note in writing which does not contain the terms of the
agreement, but is an agreement to take the property " upon
the terms specified,^'' and the terms referred to rest in parol, is
incomplete and inoperative.^ But as we shall see hereafter.

an original contract of the date of the
verbal contract first made, is not in
law the contract itself, but is merely
the necessary evidence by which the
contract may be proved and the stat-
ute satisfied, and that parol evidence
is admissible to show that the contract
was ante-dated. In McElroy v. Buck,
35 Mich. 434, it was held that where
a verbal contract had been entered
into by an agent for the purchase of
property, a telegram from the princi-
pal accepting the action of the agent,
but which did not express the terms
of the contract, leaving the terms of
the contract to be proved by parol,
did not constitute a sufficient memo-
randum under the statute.

1 Wright V. Weeks, 25 N. Y. 153 ;
McElroy v. Buck, 35 Mich. 434;
, Whelan v. Sullivan, 102 Mass. 204 ;
Frank v. Miller, 38 Md. 450. The con-
tract must be certain in itself, or capable
of being made so by reference to some
other written evidence. Abeel v. Rad-
clifEe, 13 John. (N. Y.) 300 ; Parkhurst
V. Van Cortlandt, 1 John. Cas. (N. Y.)
274 ; Hagan v. Domestic Sewing Ma-
chine Co., 9 Hun (N. Y. ) 73. In Clark
V. Chamberlin, 112 Mass. 250, a memo-
randum of a sale of land described the
land as being " lots No. 1 and 2 on F
Street," and did not refer to any plan
by which the premises could be iden-
tified, and it was held insufficient,
because it left the land (the subject-
matter of the contract) to be identified
by parol. See also Wheeler v. Sullivan,
102 Mass. 204. But in Scanlan v. Ged-
des, 112 Mass. 15, a memorandum as
follows: "Boston, Nov. 10,1870. Re-
ceived of Scanlan 120.00 as forfeit-
money and part payment of the price
of house on Fifth Street, between D
and E Street. The price agreed on
to be paid for the house is $3,400.
The purchaser agrees to pay $2,000
when the house is finished, the bal-
ance of $1,400 to remain on mortgage

for a term of three years. The un-
dersigned agrees to have the house
completed by Dec. 1, 1870 ; also to
give a warranty deed of the property,
free from incumbrance," was held
sufficient, provided the promisor
owned but one house upon the street.
In a later case. Mead v. Parker, 115
Mass. 413, a memorandum which
merely described the property as being
" a house on Church Street," was held
sufficient, and parol evidence to iden-
tify the property was held admissible.
See also Slater v. Smith, 117 Mass.
96. If the last cases cited contain
the true rule, it is difficult to under-
stand upon what principle the doctrine
of Clark u. Chamberlin, ante, can be
sustained. If parol evidence was
admissible to identify the " house "
in Mead u. Parker, and Scanlan v.
Geddes, ante, it was equally admissible
in Clark c. Chamberlin. It is true
that no particular plan was referred
to, neither was any plan referred to
in the other cases, but the data for
ascertaining the identity of the prop-
erty was as perfect in the one case as
in the other. And the whole contract
must appear from the writings. A writ-
ten acceptance of an oral offer will
not, unless it states the terms of the
contract, be sufficient.. Thus, in Palmer
V. Marquette & Pacific Rolling Mill
Co., 32 Mich. 274, the defendant sent
a telegram to the plaintiff, as follows :
" You may come on at once, at salary
of two thousand, conditional only upon
satisfactory discharge of business " ;
and in an action for damages for re-
fusing to take the plaintiff into ser-
vice this was held insufficient, because
it did not state either the time, price,
or business with definiteness. In Sweet
W.Lee, 4 Scott (N. R.) 77, the following
memorandum was made between the
plaintiff and the defendant, and signed
with their respective initials : " Die. of
Practice, £80 per annum for five years.

660

STATUTE OF FKATJDS.

[chap. xin.

the same rules preyail in reference to the admissibility of
parol evidence to explain and apply a note or memorandum

commencing Michaelmas, 182^ ; £Q0
per annum for tlie rest of Mr. Lee's
life, if he survive the five years, pay-
able, in either case, quarterly, the first
payment Michaelmas, 1828, Mr. Lee
to separate the practices K. B. and
C. P." Held, that parol evidence was
admissible to explain the document;
but that, inasmuch as it appeared to
be a memorandum of a contract that
was not to be performed within a year,
and no consideration was stated on the
face of it, it came within the fourth
section of the statute of frauds, and
was, therefore, not capable of being
enforced by action. The plaintiff
having paid the annuity for several
years under this memorandum, held,
that he could not (upon the defend-
ant's setting up the above objection to
its legality) recover back the money
as upon a failure of consideration. In
McLean v. Nieoll, 7 H. & N. 1024, the
true rule as to what should be em-
braced in a memorandum was an-
nounced. It was an action for goods
sold, etc., and it appeared that the
plaintiff was a looking-glass manufac-
turer, and that, on the 18th December,
1860, the defendant called at his shop
and ordered the goods mentioned in
the invoice. He desired that the goods
might be sent to Jersey, to be deliv-
ered there, and it was agreed that the
glass should be plate-glass of the best
quality, and that the plaintiff should
insure it from breakage. The plaintiff,
on shipping the goods, sent an invoice
as follows :

Januaby 8, 1861.
Mr. Nieoll bought of diaries M'Lean, 78

Fleet Street and 144 Oxford Street:
1861.
Jan. 7. Two compo chimney-glaasee,

gilt, 70x60, and 60x50, stock, £22 00

" Insur. of glass from breakage, 1 15

" Six 8-lncb silvered plates, at

2s 12

" Loan of cases for ditto, to be

returned 1 10

" 18-ft. table and slab, stock . . 8 05

" Carved chimney-glass, C. C.

T.,stock, plate 68x48 . . . 9 00

" Insurance of breakage of glass

to Jersey 1 00

" Loan of cases, to be returned, 1 00

ITetcash £45 2

To which the defendant replied in
the following letter :

"MiDVALE House,

Jeeset, Jan. 18, 1861.

Sir : — You advise having for-
warded a printed list, patterns, and
prices; it has not reached. In your
account I apprehend there must be
some mistake; your charge for loan
of cases and packing is equivalent to
their value. Please rectify this.
Yours truly, ^

Edward Nicoll.
Mr. M'Lean, London."

The ship by which the goods were
sent was lost, and the goods were
rendered useless. On this evidence,
Beamwell, B., ordered the plaintiff
to be non-suited, for want of a memo-
randum,' as required by the seven-
teenth section of the statute of
frauds, with leave to move for a
rvJe to set aside the non-suit, and
enter a verdict for £48 10 s., if the
court should be of opinion that the
documents in evidence constituted a
sufficient memorandum. A rule hav-
ing been obtained, the defendant con-
tended that the documents put in at
the trial did not set out the actual
contract. They cited Cooper v. Smith,
15 East, 103; Bailey v. Sweeting, 9
Weekly Rep. 273 ; Archer v. Baynes,
5 Exch. 625; and Goodman v. Grif-
fiths, 1 H. & N. 574. And the plain-
tiff contended that the defendant, by
his answer to the invoice, acquiesced
in its accuracy as a statement of the
real contract.

Pollock, C. B. : "We are all of
opinion that the rule must be dis-
charged. We all think the memo-
randum must contain all the terms of
the contract. Now, the invoice, taken
with the answer, does not contain all
the terms of the contract. No doubt
cases have decided that an invoice,
responded to by a signed letter, may
form a memorandum to satisfy the
statute of frauds ; but in those cases
it was held that the memorandum
must contain all the terms of the con-

SEC. 343.] MEMORANDUM OR NOTE IN WRITING.

661

under the statute, as exist at common law in reference to
any written contract. The statute simply requires that the

tract ; and the invoice, taken with the
answer, does not contain all the terms
of the contract, according to the evi-
dence of the plaintiff. One term of
the contract, relating to the gualiti/ of the
glass, is not mentioned in the invoice at
all ; and as the memorandum should con-
tain all the terms of the contract, we
cannot hold that the statute of frauds
has been complied with. We are first
to inquire what was the real contract,
and then whether the invoice and an-
swer together furnish a memorandum
of what was the real contract. We
can hold that it does, for the reasons
I have stated. It is to he regretted
that we should he under the necessity
of entering upon such frequent in-
stances of non-compliance with the
statute. The cases have gone very
far in putting the correspondence of
parties together, and constituting a
memorandum to satisfy the statute.
But I think we should not be always
searching for something equivalent to
a memorandum ; and in this case, cer-
tainly, we could not on any principle
hold that any had been shown."

In Justice v. Lang, 47 N. Y. 493,
the plaintiffs brought action upon the
following memorandum, signed by
the defendants :

"New York, May 13, 1861.

We agree 'to deliver P. S. Justice
one thousand Enfield pattern rifles,
with bayonets, no other extras, in
New York, at 'eighteen dollars each,
cash upon such delivery; said rifles
to be shipped from Liverpool not later
than July 1, and before, if possible.
W. Bailey Lang & Co."

Held, that when accepted by the
other party, it was suflicient to take
the case out of the statute. The ends
and objects of the statute are attained
by written proof of the obligation of
the defendant, and the statute is com-
plied with when the note or memoran-
dum is signed by the parties to be
charged thereby, and the fact that the
party who does not sign is not liable

thereon, does not daetroy or annul the
consideration and terms which form
the inducement of the other party to
make it obligatory on himself, by
complying with all the requirements
of the law to make it so. The con-
tract must not only be in writing, but
all the essential elements of the con-
tract must be in writing. Thus, in
Tuttle «. Sweet, 31 Me. 555, the de-
fendant by parol employed the plain-
tiff to work for liim making powder-
casks for the term of three years.
Held, that the contract being within
the statute of frauds, no recovery
could be had for its breach. In that
case it appeared that the plaintiff
verbally offered to labor for the de-
fendant three years, at a certain price.
The defendant wrote the plaintiff
three letters as follows :

"June 12, 1847.

I have concluded to hire you at
your offer; shall depend on you as
you talked."

" October 10, 1847.

I have talked with Jones about
your coming. Have concluded to
keep on a year longer without you."
"January 31, 1848.

I received yours. If anything is
wrong and of damage to you, let it
stand until I come and I will endeavor
to do right."

Held, that the letters were not a
sufficient memorandum to take the
contract out of the statute. The
memorandum must be signed by the
party to be charged, and the names
of both parties must be contained
therein. Sams v. Fripp, 10 Rich. Eq.
(S. C.) 447. In Old Colony R. R. Co.
V. Evans, 6 Gray (Mass.) 25, the court
say: "A written contract, signed by
one and acted upon by both, may be
enforced in equity against the one
who did not sign it." Allen v. Ben-
net, 3 Taunt. 176 ; Douglass v. Spears,
2 N. & Mc. (S. C.) 207; Pennemari v.
Hartshorn, 13 Mass. 91 ; Clason o.
Bailey, 14 Johns. (N, Y.) 484; Roget

662

STATUTE OP FRAUDS.

[chap. XIII.

contract shall be evidenced by writing, but it leaves the law
relating to the effect of the written contract, and the admis-
sibility of parol evidence to explain or apply it, as it existed
at the common law.^

V. Merritt, 2 Cai. (N. Y.) 120; Rey-
nolds V. Dunkirk &c. K. R. Co., 17
Barb. (N. Y.) 61.3. In Lang v. Henry,
54 N. H. 57, the defendant took a bill
of sale of the entire stock of boots
and shoes finished and unfinished,
belonging to Charles A. Lang, the
plaintiff's son. But by the terms of
the sale the boots and shoes were to
be finished by Lang. This sale was
made in August, 1851, and in the fol-
lowing September the workmen be-
came uneasy about their pay, when
Charles A. Lang went to Boston to
see the defendant, and he gave the
plaintiff the following letter :

" Boston, Sept. 25, 1869.
Charles A. Lang :

Dear Sir. — In relation to your
workmen's pay, have no fear; they
shall be paid for all their labor on
the shoes made and sent to me.
Yours truly,

John J. Henry."

This letter was shown to the plain-
tiff, who was one of the workmen to
whom Lang was indebted for work on
the shoes. The workmen intended
to have secured their claims by at-
tachment of the shoes, but on the
strength of this letter they forbore
their suits, and the next day about
f 1,200 worth of shoes were forwarded
to the defendant. The court held
that the undertaking not being an
original one, and a part of the terms
of the sale, and the plaintiff not
being privy thereto, and no sum being
named as due to him, no action could
be maintained by him, the undertak-
ing being within the statute of frauds.
Wood's Master and Servant, 377-380.
A memorandum : " Received of L
$408.35, being his proportion of the
first payment on the Bradley Sand
Bank purchase, I having agreed to
give him an interest of four-fifths of
said purchase at cost, and hereby bind
myself, when the purchase-money

shall have been all paid, to cause a
deed of general warranty to be made
to him and myself in like proportion,
to wit, L four-fifths and myself one-
fifth," although duly dated and signed,
was held to be insufficient within the
statute of frauds, as not showing the
time of purchase nor the locality of the
property, nor referring to any writing to
determine if the purchase was of the
entire property. Johnson v. Kellogg,
7 Heisk. (Tenn.) 262. And the same
was also held where F agreed to pay
certain notes of K & Co., and gave a
written memorandum to that effect in
which the notes, so to be paid, were
not specified with any accuracy or
particularity, for the reason that parol
evidence was required to show what
notes were meant. The rule that a
contract required by the statute of
frauds to be in writing, cannot be
partly in writing and partly in parol,
was also applied. Frank v. Miller,
38 Md. 450. So a writing : " I to-day
made the agreement with 0 to let
liim take the sand out of the pit fifty
feet wide, the entire length, for the
sum of $650, and give him one year's
time to take it out, from the date
above," signed by the landowner only,
was held void as to 0, fie not having
signed it as required by the statute of
New Jersey. O'Donnell v. Brehen,
36 N. J. L. 257.

1 Blackburn on Sales, 46 ; Benja-
min on Sales, Sec. 205; Williams v.
Robinson, 73 Me. 186; 40 Am. Rep.
352. "To satisfy the statute," says
Virgin, J., in the case last cited, " the
memorandum must contain within
itself, or by some reference to other
written evidence, the names of the ven-
dor and vendee, and all essential terms
and conditions of the contract, ex-
pressed with such reasonable certainty
as may be understood from the mem-
orandum and other written evidence
referred to, if any, without aid from

SEC. 346.] MEMOEANDUM OH NOTE IN WRITING.

663

Sec. 346. When MutuaUty is Requisite. — Ordinarily, if
one party signs the memorandum, and it is accepted orally
by the other party, he is bound, although the other party is
not.^ Thus, a proposal in writing, signed hy the party to he
charged^ and accepted hy parol hy the party to whom it is

parol testimony. O'Donnell v. Seman,
43 Me. 158 ; Jenness v. Mt. Hope Iron
Co., 53 id. 20 ; Horton v. McCarty, 53
id. 394 ; Washington Ice Co. v. Web-
ster, 62 id. 341 ; 18 Am. Rep. 462.
And when a memorandum is made,
signed, and delivered between the par-
ties as and for a, complete memoran-
dum of the essential terms of the
contract, and it is capable of a clear
and intelligible exposition, it is conclu-
sive between the parties, and parol
evidence is incompetent to contradict
or vary its terms and construction;
and if in fact some of the conditions
actually made be omitted from it, the
defendant cannot avail himself of
them." Small v. Quincy, 4 Me. 497 ;
Coddington v. Goddard, 16 Grey
(Mass.) 436; Hawkins u. Chase, 19
Pick. (Mass.) 502 ; Ryan v. Hall, 13
Met. (Mass.) 523 ; Warren v. Wheeler,
8 id. 97; Cadet v. Winsor, 1 Allen
(Mass.) 546; Remick w. Sandford, 118
Mass. 102. A telegram from a prin-
cipal, saying he would take certain
property "for the purchase of which
his agent had negotiated, was held not
a su£Scient memorandum to satisfy
the statute of frauds, where it did not
express the terms of the contract, but
these would have to be ascertained
from the oral negotiations between
the agent and the seller. McElroy v.
Buck, 35 Mich. 434. And, generally,
a memorandum, to take a contract
out of the statute, must express all
the essential terms of the contract
with such certainty as to render it
unnecessary to resort to parol evidence
to determine the intent of the parties.
Hagan v. Domestic S. M. Co., 9 Hun
(N. Y.) 73. The statute does not
require the memorandum to be drawn
in any particular form, but one which,
either in its own terms, or by refer-
ence to other writings, shows the names

of the parties, a sufficiently clear des-
cription of the subject-matter to render it
capable of identification, the terms and
conditions of the contract, and price to
be paid, or other consideration given,
is sufficient. Wood v. Davis, 82 111.
311.

• Getchell «. Jewett, 4 Me. 350;
Barstow v. Gray, 3 id. 409 ; Small v.
Quincy, 4 id. 497 ; Atwood v. Cobb,
16 Pick. (Mass.) 227 ; Rogers v. Saun-
ders, 16 Me. 92 ; Laythoarp v. Bryant,
2 Bing. (N. C.)469; Old Colony R. R.
Co. I.. Evans, 6 Gray (Mass.) 25; Hat-
ton • V. Gray, 2 Ch. Cas. 164 ; Ives v.
Hazard, 4 R. I. 14 ; Coleman v. ITpcot,
5 Vin. Ab. 528; Sams v. Tripp, 10
Rich. (S. C.) Eq. 447; Bowen v. Mor-
ris, 2 Taunt. 374 ; Martin v. Mitchell,
2 Jac. & W. 413 ; Clason v. Bailey, 14
John. (N. Y.) 484; Hunter v. Seton, 7
Ves. 265; Ballard !•. Walker, 3 John.
Cas. (N.Y.) CO; Lowry v. Mehaffy,
10 Watts. (Penn.) 287; Varley v.
Shirley, 7 Blackf. (Ind.) 452; Parrish
V. Koons, 1 Pars.' Cas. (Penn.) 79;
Gale V. Nixon, 0 Cai. (N. Y.) 445;
Roget V. Merritt, 2 Cai. (N.Y.) 117;
Flight t,. Bolland, 4 Russ. 298; Or-
mond V. Anderson, 2 B. & B. 363;
Child V. Comber, 3 Swanst. 423;
Hunter v. Giddings, 97 Mass. 41 ;
Mason v. Decker, 72 N. Y. 598 ; Cook
».. Anderson, 20 Ind. 15; McFarson's
Appeal, 11 Penn. St. 503; Williams
V. Robinson, 73 Me. 186; 40 Am.
Rep. 352; Gartrell v. Stafford, 12
Neb. 545; 41 Am. Rep. 767. The
statute simply requires that the party
sought to be charged should sign. Fowle
V. Freeman, 9 "Ves. 351 ; Seton v.
Slade, 7 id. 265 ; Lowber v. Connit, 36
Wis. 176; McCrea v. Purmont, 16
Wend. (N.Y.) 460; Thayer v. Luce,
22 Ohio St. 62; Justice v. Lang, 42
N.Y. 493; 1 Am. Rep. 576.

664

STATUTE OP FRAUDS.

[chap: XIII.

made, has been held sufficient to satisfy the statute,^ although

1 In Eeuss v. Picksley, L. R. 1 Bx-
cheq. 343, this rule was well illus-
trated. In that case it appeared that
the plaintiffs carried on business at
Manchester and the defendants carried
on business as agricultural implement
makers, at Leigh, near Manchester,
under the style of Picksley, Sims &
Co. In the autumn of 1864 an indus-
trial exhibition was fixed to be held
at Moscow, and the defendants were
desirous of exhibiting some of their
machines there. Accordingly they
entered into negotiations with the
plaintiffs, with the yiew of the plain-
tiffs undertaking to look after the
. goods sent by the defendants whilst
at the exhibition. The plaintiffs at
first declined the responsibility, but
upon the defendants proposing to
make an agency for ten years with
them if they would bear a part of the
expense of the exhibition, one of the
plaintiffs, Mr. Ernst Reuss, stated
that he would go to Moscow and him-
self superintend the arrangements
necessary for exhibiting the defend-
ants' goods. With that intention he
went to Moscow in July, 1864, and
remained there for a month. Mean-
time a quantity of goods were sent by
the defendants to the plaintiffs for
the purpose of being forwarded to the
exhibition. On Mr. Eeuss's return he
requested an interview with Mr. Sims,
one of the defendants, with reference
to the Russian agency. An interview
thereupon was had, at which the terms
of the agency were discussed, and
.afterwards the plaintiffs wrote to the
defendants the following letter : —
" Manchester,
8th September, 1864.

Messrs. Picksley, Sims & Co.,
Leigh : — Referring to our conversa-
tion with Mr. Sims, respecting the
machinery for the Moscow exhibition,
it was arranged that we take charge
of all the machines, etc., in Hull, and
pay for your account all freight
charges. Insurances, etc., till delivered
in Moscow. That we sell in Moscow
as many of the machines as possible.

and that after the close of the exhibi-
tion the unsold remainder be at your
risk and expense, either to keep in
Moscow or return home as you think
fit at your expense. That we pay you
here cash for all machines sold during
the exhibition, the price to be calcu-
lated at list price less the full trade
discount for cash, that you pay the
travelling expenses there and back of
Mr. Smith, but that we pay his addi-
tional salary whilst in Moscow of 10s.
per day, and his hotel bill. That the
agency for Russia be for ten years
from date on following conditions.
You to allow us full discount for cash
on all orders received by us direct,
and that you hand over to us to be
dealt with in the same way all orders
you receive from Russia (excepting
those from Odessa). On all orders
executed by you from Russia, except-
ing Odessa, that may come through
any other agent in Great Britain, you
allow us a commission of £5 per cent.
That we act as and are hereby ap-
pointed your sole agents for the king-
dom of Italy, on the same conditions
as for Russia. Awaiting your reply,
we are, etc.,

Eknst Reuss & Co."

To that letter the defendants re-
plied as follows : —

" Bedford Pousdry,
Leigh, Lancashire,
September 9th, 1864.

Our Mr. Sims desires me to ac-
knowledge the receipt of your favor
dated the 8th inst., and to say as far
as the agency for Russia goes he con-
siders it satisfactory, except that you
must confine yourselves to us for
every description of machinery we
manufacture, and which you sell in
Russia. With respect to Italy, Mr.
Sims cannot at present say anything
about it, in consequence of the change
which is likely to take place in our
firm shortly. I am, etc.,

p.p. Picksley, Sims & Co.,
Joseph Smith.
Messrs. Ernst Reuss & Co."

The plaintiffs sent no reply to this

SEC. 346.] MEMOEANDXJM OE NOTE IN WETTING.

665

the party accepting such proposal is not bound, provided he
is ready to perform upon his part, as must always be the

letter, but after the date of it goods
were sent to them by the defendants,
and were forwarded by the plaintiffs
to Moscow, where they were shown at
the exhibition, which took place on
the 7th September, 1864. At the
close of the exhibition a great propor-
tion of the goods remained unsold,
and in respect of these, as well as in
respect of those sold, the plaintiffs
incurred considerable expenses.

On the 8th December, 1864, the
defendants transferred their business
to a Joint Stock Company, and in the
February following the plaintiffs'
Moscow agent died. Shortly after-
wards the plaintiffs and defendants
entered into a correspondence with a
yiew to a settlement of the matters
connected with the Moscow exhibi-
tion, but the parties were unable to
come to any agreement. The plain-
tiffs thereupon brought this action.
No orders for machinery from Eng-
land had been received by either
plaintiffs or defendants for Russia
(except Odessa) at the time of the
alleged breach. Upon the trial the
judge directed the jury that the Mos-
cow and Russian stipulations in the
letters of the 8th and 9th September
were parts of one and the sanje con-
tract, and the jury found that the
plaintiffs did accept and accede to the
terms of that contract. A verdict
was accordingly entered under the
direction of the learned judge for the
plaintiffs, damages £850. Leave was
reserved to the defendants to move to
set aside the verdict and enter a non-
suit on the ground that there was no
sufficient memorandum in writing of
the contract under the statute of
frauds.

The verdict was sustained, Willes,
J., saying; "We are all of opinion
that the judgment of the Court of
Exchequer should be affirmed. It
appears that the plaintiffs, through a
member of their firm, had some nego-
tiations with the defendants, through

a member of their firm, with reference
to so much of the contract declared
upon as related to the Moscow exhibi-
tion. In the course of these negotia-
tions, the plaintiffs refused to encoun-
ter the expenses of this exhibition
unless the defendants would under-
take in some way or other to reim-
burse them, and accordingly com-
munications as to the manner in which
this object could be effected were
entered into between the parties. It
was suggested by the plaintiffs that
they should be employed for a term
of ten years as agents in Russia for
the sale' of machinery. But when
first broached that negotiation did not
come to a head. One of the plaintiffs
went abroad, and on his return sent
word that he wished to see one of the
defendants, Mr. Simi, on business,
that business being with reference to
the agency in Russia. An interview
was thereupon had, at which the
terms of the agency, were discussed,
and letters afterwards passed relating
to the Moscow exhibition, the agency
in Russia, and an agency which the
plaintiffs desired in Italy. On the 8th
September, 1864, one letter was writ-
ten by the plaintiffs, and on the 9th
an answer was sent by the defendants.
The letter of the plaintiffs was to this
effect. [The learned judge read so
much of the letter as refers to the
Moscow exhibition.] Then tlie letter
proceeds to speak of the Russian
agency in terms not applicable to a
distinct or separate contract. Having
dealt with the matters connected with
the Moscow exhibition, which was to
operate as accessory to the general
agency, and as an advertisement, the
letter goes on to detail the terms of
the agency for Russia; and as to this
part of tlie arrangement the plaintiffs
do not state that they are to abstain
from taking orders from other per-
sons. To this, and to this alone, the
defendants objected in the letter of
the 9th. Then follows, in the letter

666

STATUTE OF FRAUDS.

[chap. XIII.

case when a party seeks to enforce a contract,^ and the fact
of such acceptance may be proved by parol evidence.^

1 Laythroap v. Bryant, 2 Bing. {N.
C.) 735; Morin v. Murtz, 13 Minn.
191 ; Brumfleld v. Karson, 33 Ind. 94 ;
Clason V. Bailey, 14 John. (N. Y.)
484; Shirley v. Shirley, 7 Blaekf.
(Ind.) 452; Penniman v. Hartshorn,
13 Mass. 87; Fenley o. Stewart, 5
Sandf. (N. Y.) 101; Douglass v.
Shears, 2 N. & M. (S.C) 207; Bar-
stow u. Gray, 3 Me. 409; Justice v,
Lang, 42 N. Y. 493; 1 Am. Rep. 576.

of the 8th, the paragraph respecting
the Italian agency.

In answer to this letter comes the
letter of the 9th September. So far,
therefore, as the Russian agency goes,
the letter of the 8th was otherwise
satisfactory to the defendants. Now,
the letter of the 8th dealt with the
Russian agency and also with the
arrangement respecting the Moscow
exhibition. There was no reference
to the one as distinct from the other,
and the conclusion is, that as to the
Moscow exhibition no observation was
required, and as to tlie Russian agency
the sole objection was that the plain-
tiffs, instead of having the agency
given to them without limitation, were
to be prevented from being agents for
any one else. As to the Italian
agency, that is put out of the ques-
tion. The meaning, therefore, of the
whole is this: 'True, we made a cer-
tain arrangement yesterday as to
Russia, but we meant it to be with a
limitation, and as to Italy, we made
no arrangement at all.'

Now, this was either a memoran-
dum of agreement, or at least u, pro-
posal with the terms of the letter of
the 8th as a basis ; a proposal, that is,
that the plaintiffs should act as agents
at Moscow, and become agents for
Russia, pledging themselves to take
no other agency. Therefore, I say
these letters constitute either an
agreement or at least a proposal.
Assume it in favor' of the defendants
to be the latter. We must now con-

2 Reuss V. Picksley, L. R. 1 Ex-
cheq. 342 ; Western Union Tel. Co. v.
Chicago &c. R. E. Co., 86 HI. 246 ;
Ward V. Kirkman, 27 Miss. 823 ; San-
born V. Flagler, 9 Allen (Mass.) 474;
Justice V. Lang, 42 N. Y. 493 ; Argus
Co. V. Albany, 55 N.Y. 495; Griffith
V. Rembert, 2 S. & C. 410; Lanz v.
McLaughlin, 14 Minn. 72; Ivory u.
Murphy, 36 Mo. 534 ; De Cordova c/.
Smith, 9 Tex. 129; Dresel u. Jordan,
104 Mass. 412.

sider what followed. The Moscow
exhibition took place, and the goods
intended for exhibition were forwarded
and dealt with by the plaintiffs as they
undertook to deal with them. Ex-
penses were incurred by the plaintiffs
which they certainly would not have
incurred without a promise of the
Russian agency; and these expenses
were incurred with reference to the
Moscow exhibition. Was this evi-
dence of assent on the part of the
plaintiffs to the terms of the letter of
the 9th September ■? The defendants
maintain that it was not, and their
argument depends on a dissection of
the terms of the letter of the 8th.
But we see no reason for dissevering
those terms. The whole appears to
have been one arrangement. When
taking the two letters together we find
the second silent as to the Moscow
exhibition, and when we find more-
over that the exhibition was accessory
to and connected by way of advertise-
ment with the rest of the Russian
agency, we conclude that the whole
transaction between the parties was
one and indivisible. Therefore there
was a performance of their part by
the plaintiffs, which was evidence of
an assent to the terms of the letters
of the 8th and 9th September, or,
treating the letter of the 9th as a
modified proposal, there was evidence
that the plaintiffs assented to it.

Now in point of law what was the
effect of this assent "! Putting for the
moment the statute of frauds out of

SEC. 346.] MEMOEANDtTM OK NOTE IN WKITING.

667

But where the contract is one which imposes the performance of
mutual recurring acts and services from time to time on the

the queation, no inquiry would be
made as to the precise time at which
the different parts of one single tran-
saction took place. The question
would be, was it or was it not one
transaction, and was an assent con-
tained in it ? and in this case we are
of opinion that the transaction was
one, and did contain an assent. But
the statute of frauds introduces a new
element, because it makes it necessary
by § 4 that an agreement not to be
performed by either party within a
year must be in writing, signed by
the party to be charged therewith.
Now all that was signed here was not
a formal agreement, but a proposal on
one side, and there was an assent to
that proposal on the other. All diffi-
culty as to the terms of the proposal
is out of the case. It contained the
names of the parties and all the terms
by reference to the letter of the 8th
September, which must be taken to
be recited in the letter of the 9th.
The only question is, whether it is suffi-
cient to satisfy the statute that the party
charged should sign what he proposes as
an agreement, and that the other party
should ajlerwards assent without writing
to the proposal f As to this it is clear,
both on reasoning and authority, that
the proposal so signed and assented
to does become a memorandum or
note of an agreement within the
4th section of the statute. Many
cases might be put in illustration of
this proposition, but one or two will
be sufficient. Take for example a
case arising under the Joint Stock
Companies Act, whereby it is pro-
vided that no person shall be deemed
to have accepted any share in the
company unless he testifies his accept-
ance by writing under his hand. It
was at first supposed that something
must be done by the shareholder in
writing after allotment, and that
otherwise he would not be a share-
holder because he proposed in writing
to become one and to accept his

shares upon allotment. But the Court
of Common Pleas, when the case was
brought before them, said that it was
a mistake to suppose that under these
circumstances there was no acceptance
in writing. The true mode, they said,
of regarding such a transaction was
that it was from beginning to end one
transaction, and accordingly they held
that the acceptance was complete, and
the statute satisfied by a proposal in
writing to accept the shares, followed
by an allotment. The court there
acted on a judgment delivered in the
Court of Queen's Bench by my
Brother Blackbukn to the effect that
the 'acceptance' of goods to satisfy
the statute of frauds, § 17, may be
prior to the actual delivery of them.
Cusack V. Robinson, 1, B. & S. 209;
^he Bog Lead Mining Company v.
Montague, 10 C. B. (N. S.) 481. It is
indeed quite a fallacy to suppose that
because certain acts happen at differ-
ent periods they cannot be so con-
nected as to form one transaction.
That was the ground of the Lord
Keeper's decision in Coleman v. Up-
cot, 5 Vin. Abr. 527; where he held
that an offer to sell an estate, made
in writing and afterwards accepted by
parol, bound as a contract. The prin-
ciple of that case was recognized and
assented to by Kindersley, V. C, in
Warner v. Willington, 3 Drew, 523;
he did not, however, treat it as pre-
cisely in point, probably on account
of the note in Viner, stating that, in
fact, there was an acceptance in writ-
ing. The judgment, however, was
founded on the consideration that the
parol acceptance was sufficient, and it
is cited to support that position by
Lord St. Leonards (Sugden, Ven-
dors and Purchasers, lOtli ed. vol. I.
p. 164). The case of Warner v. Wil-
lington was followed by the Court of
Common Pleas in Smith v. Neale, 2
C. B. (N. S.) 07, and by the Court of
Exchequer in Liverpool Borough
Bank v. Eccles, 4 11. & N. 139.

668

STATUTE OF FRAUDS.

[chap. XIII.

parties, both must be bound by the contract, or neither can
be made liable upon it, except in respect to acts done and
services actually rendered.^ Thus, where a servant con-

So far as to agreements which
must be mutual, but where the statute
only requires the signature of the
party to be charged. But we may
usefully consider two classes of con-
tracts. One class includes cases
where a proposal is made which may
or may not be acted on. The most
ordinary example is a guarantee,
which by § 4 of the statute must be in
writing. The creditor may supply
goods to the person whose credit is
guaranteed or not as he pleases ; but
if he does supply them, the surety is
bound to accept in cases like Mozley
V. Tinkler, 1 C. M. & R. 692, where on
the true construction of the guaran-
tee, which was in the form of a letter
to the plaintiffs, it was held that
notice of the plaintiffs' acceptance of
it should have been given. But in
that case it does not seem to have
occurred to any of the court that the
acceptance need be in writing. In-
deed, the judgment of Lord Wensley-
dale (Parke, B.) rather points to the
opposite conclusion. That case, there-
fore, is confirmatory of our decision
that the whole evidence of an agree-
ment need not be in writing, but only
all the terms along with the signature
of the party to be charged.

It has been urged upon us that
this conclusion will lead to fraud and
perjury, and to the very mischiefs the
statute was passed to prevent. We
do not concur in that view, because
no one will be able to enforce an
agreement of the sort we are now dis-
cussing, without proving that he did
or was ready to do his part to entitle
him to performance on the part of the
other contracting party. Moreover,
if good for anything, that argument
is good to show that a regular agree-
ment or memorandum of it, signed by
one party only, ought not to bind him.
The reason we have given is a, good
answer to the argument, but that
argument was also considered by the

Court of Common Pleas in Laythoarp
w. Bryant, 2 Bing. (N. C.) 735, where the
court held, in spite of a weighty dic-
tum of SiK W. Grant in Martin v.
Mitchell, 2 Jac. & Walk. 428, that only
the party to be charged need sign, the
other party, however, at the same time
being ready to fulfil his- own part of the
agreement before suing.

Again, take another case, viz.,
the case of a contract where both
parties must sign, of which the most
familiar example is an ordinary lease
for years not under seal which, by the
conjoint operation of §§ 1 and 4
of the statute, must be in writing,
signed by the parties making the
same. I am referring for the moment
to leases before the 7 & 8 Vict. c. 76,
and the 8 & 9 Vict. c. 106, which
enacted that leases required to be in
writing by the statute of frauds shall
thenceforth be under seal. Where
such a lease was signed by the lessee
only, he took no interest, and was not
bound according to the principle laid
down in Soprani v. Skurro, Yelv. 18.
Now, suppose the lessee were to sign
before the lessor. Every argument
which has been urged to show that a
subsequent act cannot turn what is
not an agreement into an agreement
would apply ; but could any one seri-
ously contend that it would make any
difference whether the lessor or lessee
signed a lease first ? The law is clear
upon the point. We are not to look
at the precise moment at which an
assent is given, but at the entire tran-
saction, and if the assent when given
does make a contract, that is enough ;
for the proposal though prior in time
is, in fact, a memorandum or note of
the terms of that contract, signed by
the party to be charged within the
meaning of the statute."

1 Haddeson Gas Co. v, Haslewood,
6 C. B. (N. S.) 239; Souch v. Straw-
bridge, 2 C. B. 808; Callis u.Botham-
ley, 7 W. E. 87.

SEC. 347.] MEMOKANDTJM OR NOTE IN WRITING.

tracted in writing to work for A at his trade, and for no
other person during twelve months, and so on for twelve
months until he should give notice of quitting, and the mem-
orandum was not signed by A, it was held that the agree-
ment was invalid for want of mutuality.'

Sec. 347. Memorandum may be in the Form of a Letter Ad-
dressed to Third Party. — It is not necessary that the memo-
randum should he made between the parties to the contract only,
hut it may he addressed to a third person, who is the agent of
one of the parties. Thus, letters addressed by the person to
be charged to a third party, who is the authorized agent of
either party relating to the transaction, or who is made so
by the terms of the letter, may be sufficient to bind the
sender, if they either contain or refer to documents which con-
tain the terms of the agreement? In Gibson v. Holland,^ a

1 Sykes v. Dixon, 9 Ad. & El. 693.

2 Smith V. Watson, Bunb. 55 ; Wel-
ford V. Beazley, 3 Atk. 503 ; 1 Ves. 6 ;

I Wils. 118 ; Cooke v. Tombs, 2 Ans.
420; Longfellow k. Williams, Peake
Add. Gas. 225 ; Rose v. Cunynghame,

II Ves. 550; Owen v. Thomas, 3 M. &
K. 353 ; Goodwin v. Fielding, 4 D. M.
G. 90.

8 L. R. 1 C. P. 1. In this case the
objection relied upon was that the
note or memorandum was a note pass-
ing between the party to be charged
and his own agent. But the court held
it to be suiScient, and Stone, J., in
commenting upon this case in Drury
V. Young, 58 Md. 546; 42 Am. Rep.
343, says: "The object of the statute
of frauds was the prevention of per-
jury in tlie setting up of contracts by
parol evidence, which is easily fabri-
cated. With this view, it requires
the contract to be proved by the pro-
duction of some note or memorandum
in writing. Now a note or memoran-
dum is equally corroborative, whether
it passes between the parties to the
contract themselves or between one
of them and his own agent. Indeed,
one would incline to think that a
statement made by the party to his
own agent would be the more satis-
factory evidence of the two." Ar-

gus Co. V. Albany, 55 N. Y. 495;
Buck V. Pickwell, 27 Vt. 167 ; Town-
send V. Hargreaves, 118 Mass. 335;
Buxton V. Rust, L. R. 7 Excheq.
279 ; Tufts v. Plymouth Gold Mining
Co., 14 Allen (Mass.) 407 ; Goodwin v.
Fielding, 4 De G. M. & G. 90; Leroux
V. Brown, 12 C. B. 801 ; Bradford v.
Roulston, 8 Ir. C. L. R. 473 ; McMil-
lan V. Bentley, 10 Grant (Ont.) 387.

Quere? Why, then, is not a letter
to ani/ person, whether an agent or
not, suflScient, if it admits the contract
in such a manner tliat its terms are
clearly deducible therefrom 1 Is it
quite correct to say that the note or
memorandum is merely evidence of
the contract ? Is it not, when com-
plete, tlie contract ? If not, why is it
necessary, in order to give effect to a
letter so written by the party to be
charged to a third person, that such
person should be the agent of one of
the parties in reference to the transac-
tion 1 And see Moss «. Atkinson, 44
Cal. 3, 16, where it was held that a
letter signed by the owner of land
and addressed to A, stating that he
has agreed with B to sell B the land,
and giving the general terms of the
agreement, with a general description
of the land and its price, is a sufficient
memorandum of a contract for the

670 STATUTE OP PEAT7DS. [CHAP. XIII.

letter signed by the party to be charged, written to his own
agent, referring to letters of the agent, stating the terms
upon which the latter had made a contract on his behalf
with the other party for the purchase of goods, was held
to be a sufficient note or memorandum of the bargain to
satisfy the statute. So where a guarantee was addressed by
the defendant to the plaintiffs attorney, it was held that the
plaintiff was entitled to the benefit of it.^ And a guarantee
addressed to one of several partners in a firm will enure for
the benefit of all, if the partner to whom it is addressed does
not carry on any separate business, or if there is evidence
that it was given for the benefit of all.^ But a letter ad-
dressed to a third person, who is not the agent of either party, rela-
tive to the transaction, or clothed with any power as such by the
terms of tAe letter, is not a sufficient note or memorandum to
satisfy the statute.^ Nor is a letter addressed to an agent,
or to the other party even, sufficient, unless it contains
within itself, or by reference to other writings, the essential
terms of the agreement.* But a letter of credit directed to
any person who may act upon it, or, in other words, to a person
unnamed, agreeing to be responsible for the amount of any
bill which the bearer may contract not exceeding a certain
sum, has been held sufficient to enable a person who acted
upon the faith of it, to maintain action against the writer.^
Thus, in a South Carolina case,^ the defendant signed a letter
addressed to F, as follows : " As you request, we are willing
to help you in the purchase of a stock of goods. We will
therefore guarantee the payment of any hills which you may

sale of the land within the statute of ' Walton v. Dodson, 3 C. & P. 162;

frauds, and may be enforced hy B in Garrett v. Ilandley, 4 B. & C. 664.
equity. If the terras of the contract, ' Davis v. Moore, 9 Rich. (S. C.)

the consideration, the subject of the 215; Loed Hakdtvick in Wilf ord r.

sale, etc., are stated with reasonable Beazely, 3 Atk. 503; Ayliffe v. Tracy,

certainty, the memorandum is suffi- 2 P. Wms. 64; Seagood v. Meale,

cient. Form is not important. The Prec. Ch. 560.

fact that the memorandum was found * Clark v. Wright, 1 Atk. 12;

only in a letter addressed to a third Whaley v. Bagnel, 6 ; Bro. C. C. 45 ;

person by the party to be charged was Jackson v. Titus, 2 John. (N. Y.) 430;

held not to defeat its validity. But Ayliffe v. Tracy, ante.
see Davis v. Moore, 9 Rich. (S. C.) ^ Griffin v. Rembert, 2 S. C. 410;

215, where such a letter was held not Williams v. Brynes, 8 L. T. N. S. 69.
sufficient, unless such third person was " Griffin v. Eembert, ante. See also

the agent of one of the parties. Williams v. Brynes, ante.
1 Bateman v. Phillips, 15 East, 272.

SEC. 347.] MEMORANDUM OR NOTE IN WRITING. 671

make, under this letter of credit, in Baltimore, not exceeding,
in the whole, fifteen hundred dollars." It was held that any
party in Baltimore, advancing goods to F, upon the faith of
the promise contained in the letter, could maintain an action
thereon against defendants as guarantors, though his name
did not appear therein. The fact that he became a party to
the agreement could be shown by parol. Because in such a
case, the name of the other party could not be given until
he acted upon the faith of the letter ; the letter itself being
in the nature of an open letter of credit, available to any
person who, in good faith and in reliance upon it, furnished
the credit sought thereby, who thereupon became a party
thereto, and the ambiguity being latent, the name of such
party may be shown by parol, because it is plain that the
writer intended the letter for no person in particular, but for
any one who might act upon it. But where it is evident
upon the face of the instrument that the writer intended it
for a particular person, whose name is omitted through mis-
take or otherwise, or even is erroneously given, the letter is
inoperative under the statute, because the ambiguity in this
respect is patent, and the name of the party intended cannot
be shown by parol.^ So a letter which is signed, and contains
the terms of the agreement, or which refers to other writings
which contain such terms, although they are not signed'^ or,
to something else which is certain, as to a custom of the
country or well-established usage of trade, is sufficient.^
But it is held by some of the cases that in order to make a
letter written by a principal to his own agent operative as a
memorandum, it must appear thai it was seen by and read and
assented to by the other party, and it is not enough to show that
its contents were communicated to such party by the agent.*
Thus, in the case last cited, the plaintiff, who sought to com-
pel the specific performance of a contract relating to the pur-
chase of land, alleged that the defendants were the owners
of certain lands described in the petition, and that the

1 In Grant v. Naylor, 4 Cr. (U. S.) 2 Tawney v. Crowther, 3 Bro. C. C.

224, the letter was addressed to John 318; Sanderson v. Jackson, 2 B. & P.

and Joseph, and was delivered to John 288.

and Jeremiah. Held not sufficient, and ' Brodie v. St. Paul, 1 Ves. Jr.

that parol evidence was not admissible 336.

toshowthat Johnand Jeremz'aAwerethe * Steel v. Fife, 48 Iowa, 99.
partiesforwhomtheletterwas intended.

672 STATUTE OF FEAITDS. [CHAP. XIII.

plaintiff applied to one Johnson, who was agent for the
defendant, to purchase the same, and that afterward Johnson
informed him that he had received a letter from the defend-
ant stating that they would sell a certain portion of the land
for 1650, and that the plaintiff thereupon accepted the pro-
posal and requested Johnson to procure a deed thereof, and
the defendant refused to execute it. It was not shown that
the plaintiff ever saw the letter, nor was it produced or its
contents proved upon the trial, except as to what was stated
by Johnson. The court held that the letter was not suffi-
cient as a note or memorandum under the statute, Seeveks,
J., saying : " It is not alleged in the petition that Johnson
was the agent of the plaintiffs, but that he was the agent of
the defendant. This being true, the delivery of the letter to
Johnson could have no other or greater effect than if it had
been written and retained in the possession of the defendant.
It is unquestionably true that a memorandum, agreement, or
deed must be executed by the party to be bound, or his
authorized agent, and delivered to and accepted hy the other
party, to take the case out of the operation of the statute
and its clear intent and meaning." He cited and approved
the doctrine of a Pennsylvania case,-' in which it appeared
that there was found among the papers of Robert Martin,
deceased, a plot of certain lands, on which was endorsed, in
his handwriting, " These lands sold to Robert Morris, Esq.,
of Philadelphia. Deeds fall to him. Purchase-money paid
me, Robert Martin. The over measure to be cast up and
accounted for." It was sought to compel a specific perform-
ance. The defence was the statute of frauds. The court
say : " An agreement is the assent of two minds to the same .
thing ; it requires that the written evidence of it, when it is
reduced to writing, as well as the agreement itself, should be
seen and assented to by both parties. ... It may 'be evi-
denced by a letter sent from the one to the other, and ac-
cepted as well as acted upon as an offer of terms, or by a
receipt or memorandum sufficiently stating the conditions;
hut in these instances the paper is parted with as evidence of
the thing agreed to. The principle that delivery is necessary
to give effect to a written agreement is not confined to spe-

1 Grant v. Levan, 4 Penn. St. 393.

SEC. 347.] MEMORANDUM OR NOTE IK "WRITING. 673

cialties." But in these cases the court lost sight of the fact
that the note or memorandum is treated as merely evidence of
the contract, and not the contract itself y&wdi that the statute
only requires written evidence of the contract under the hand
of the parties to he charged, and is "wholly silent upon the
question of its delivery. Therefore there would appear
to be no good reason why such evidence, produced from
the custody of the defendant himself, or any other person,
is not as efficacious as though it had been in the custody
of the plaintiff. In a Maryland case^ the note or memo-
randum relied upon was made by the book-keeper of
the defendants, by the direction of one of them, and was
deposited in their safe upon the day of its date, and
remained there until it was produced in court. It did not
appear that it was ever seen by the defendants, or even its
existence known to. them until the time of trial. It vras
insisted by the defendants that the memorandum was not
sufficient iinder the statute, because it had never been de-
livered. But the court held that the memorandum, being
otherwise suificient, satisfied the statute whether it had ever
been delivered or not. "It must be borne in mind," said
Stone, J., " that the statute of frauds was not enacted for
cases where the parties have signed a written contract .: for in
these cases the common law affords quite a sufficient guar-
antee against frauds and perjuries. The intent of the statute
was to prevent the enforcement of parol contracts unless the
defendant could be shown to have executed the alleged con-
tract by partial performance, or unless his signature to some
written note or memorandum of the bargain, not to the bar-
gain itself, could be shown.

1 Drury v. Young, 58 Md. 546 ; 42 the contract will not affect his rights

Am. Eep. 343. In Peabody v. Spey- in a particular in which tlie writings

ers, 56 N. Y. 230, it was held that a known to the parties are sufficient

paper stating the terms of a contract, and definite, wliere there is no abso-

signed by a party to be charged and lute incompatibility between them,

addressed to a third person, though it "Where, therefore, by the written

did not, at the time', come to the T;nowl- memoranda known to the parties, the

edge of the other party, may be deemed party to be charged appears as princi-

as part of the sufficient memorandum pal, the fact that such other paper

of the contract required by the statute shows him to have contracted for

of frauds ; and the fact that the latter another does not prevent his being

is compelled to resort to such paper charged as principal,
to complete the written evidence of

674 STATUTE OF FRAUDS. [CHAP. XIII.

The existence of the note or memorandum presupposes an
antecedent contract by parol, of which the writing is a note
or memorandum. Now the statute itself is entirely silent
on the question of the delivery of the note or memorandum
of the bargain, and its literal requirements are fulfilled by
the existence ■ of the note or memorandum of the bargain,
signed by the party to be charged thereby. The statute
itself deals exclusively with the existence, and not with the
custody, of the paper. If the non-delivery of the note does
not violate the letter of the statute, would it violate its spirit
and be liable to any of the mischiefs which the statute was
made to prevent?

The statute was passed to prevent fraud practised through
the instrumentality of perjury. It was passed to prevent the
defendant from suffering loss, upon the parol testimony of
either a perjured or mistaken witness, speaking of a bargain
different from the one in fact made. It made the defendant
only liable when a note or memorandum of the bargain
signed by himself was produced at the trial. If produced
from the defendant's own custody, it guards against the mis-
chief that the statute was passed to prevent, just as well as
if produced from the custody of the plaintiif. The plaintiff
is the one likely to suffer by leaving the evidence of his bar-
gain in the hands of the defendant — not the defendant him-
self." In an English case before cited ^ the only note or
memorandum of the bargain was a letter addressed by the
defendant to his own agent ; the court decided that to be
sufficient, and Eele, C. J., in delivering his opinion, said :
" But the objection lelied on is, that the note or memoran-
dum of that contract was a note passing between the defend-
ant, the party sought to be charged, and his own agent, and
not between the one contracting party and the other." The
object of the statute was the prevention of perjury by setting
up parol contract: with this view it requires the contract to
be proved by written evidence. Now there can be no good
reason why a note or memorandum in writing is not equally
efficacious whether it passes between the parties themselves
or between one of them and his own agent. In another
English case ^ the defendant made a note of the sale in his

1 Gibson v. Holland, L. K. 1 C. P. 1. ^ Johnson v. Dodgson, 2 M. & "W. 653.

SEC. 348.] MEMORANDUM OR KOTB IN WRITING. 675

own book, and got the plaintiff's agent to sign it, and it was
held to be sufficient, although it had never been delivered.

Sec. 848. Records of Corporations. — The record of the
vote of a corporation containing the terms of a contract
which the corporation voted to make, attested by the clerk,
is a sufficient memorandum within the statute,^ and this is
the rule as well in reference to municipal as other corpo-
rations.2 Thus, a vote of an authorized committee of a city,
electing their clerk, city engineer, for a year from a subse-
quent day, duly recorded and signed by Mm as clerk, has
been held sufficient to take the appointment out of the
statute, although the amount of compensation was not stated
in the vote,* the court saying : " If the agreement was within
the statute, we are of the opinion that the recorded vote of
the committee on streets, passed on the 21st February, 1854,
and signed by the plaintiff as clerk, was a sufficient note or
memorandum thereof in writing." In a New York case* a
similar view was adopted. In that case the common cbuncil
of the city of Albany, -on the 10th December, 1862, adopted
a resolution referring it to the printing committee of the
council to consider and report as to the propriety of estab-
lishing an official organ for the city and the proper compen-
sation for the same. This committee afterward reported a
resolution that the proceedings of the board should be
reported for, and published in one daily paper, to be desig-
nated by the board at an annual expense not to exceed
f 1,000, and that all city advertising should be published at
the rates prescribed by law for the publication of legal

' Johnson u. Trinity Church So- indebted to him by the terms of the

ciety, 11 Allen (Mass.) 123; Tufts v. agreement until November following."

Plymouth Gold Mining Co., 14 id. 407. Held, that there was a sufScient mem-

The secretary of a religious society orandum of a contract extending to

wrote to a minister informing him the 1st of February. Johnson a.

that the society had voted, on the 1st Trinity Church Society, 11 Allen

of January, to employ him for one (Mass.) 123.

year from that date, for a sum in ^ Chase v. Lowell, 7 Gray (Mass.)

gross. He accepted the offer, stipu- 33 ; District of Columbia v. Johnson,

lating, however, that the year should 1 Mackey (D. C.) 51; The Argus Co.

begin on the 1st of February, and the v. Albany, 7 Lans. (N. Y.) 264; afEd.

payTnents be made quarterly. In the 55 N. Y. 495.

December following the societypassed ^ chase v. Lowell, ante.

a vote, which was duly recorded, re- * Argus Co. v. Albany, ante.
citing that they should not " become

676 STATUTE OF PEAUDS. [CHAP. XIII.

notices in the same paper, the designation to be for the term
of three years ; also, that all printing and binding, chargeable
to the city, should be done by the proprietor or proprietors
of such paper, for the like term, at the rates current in the
city, and that the chambel-lain should be and he was thereby
authorized to enter into contract accordingly with such pro-
prietor or proprietors as the board might designate. This
resolution was adopted on the 26th of January, 1863, by a
two-tliirds vote, taken by yeas and nays.

The newspaper of the plaintiff was, on motion, designated
as such official paper on the 26 th of January, 1863, and a con-
tract in writing, pursuant to such resolution, was entered into
between plaintiff and defendants on the 27th of January, 1863,
for three years from that date, such contract being signed
and sealed on the part of the defendants by the chamberlain.
On January 16, 1866, the common council adopted a reso-
lution "that the Argus be and hereby is designated as the
offici^il paper, in accordance with the former resolution of the
common council establishing an official organ for this city."
This resolution was not adopted by a vote taken by yeas' and
nays, but it was entered on the minutes of the minutes of
the board, which were signed by the clerk of the common
council, and, after the adoption of the resolution, the plain-
tiff subscribed a written acceptance thereof, wliich was iiled
by the plaintiff with the clerk of the common council January
27, 1866.

After such acceptance the plaintiff proceeded to publish
the proceedings of the common council in the Argus, and
continued so to do for the space of three years thereafter.
On the 4th of June-, 1866, the common council passed a
resolution purporting to rescind that of January 16, 1866,
and also resolutions modifying that of January 26, 1863, and
awarding the printing, binding, and advertising to three other
papers.

After the adoption of these resolutions the plaintiff, having
protested in writing against their being carried into effect,
the defendant refused to furnish the plaintiff with any print-
ing, etc., under the original resolution. The court held that
the resolution under which the plaintiff was appointed city
printer for the term aforesaid, having been entered in the

SEC. 349.] MEMOEANDUM OR NOTE IN WRITING. 677

minutes of the council, and signed by the clerk in the dis-
charge of his official duties, and accepted by a writing signed
by the plaintiff, created a valid Contract in writing under the
statute of frauds, entitling the plaintiff to recover the com-
pensation agreed upon for the whole period of three years,
and that, even though it might have been contemplated by
the resolution, that a more formal contract should be entered
into in behalf of the city, by its chamberlain, yet the parties
could waive, and had waived this formality, by entering at
once upon the performance of the agreement. In a case
before the Supreme Court of the District of Columbia,^ the
city in December, 1867, passed an ordinance granting
authority to the defendants to erect a wharf at a point on
the river front of the city, for the yearly rent of |1,000, for
the term of ten years. The ordinance was to take effect on
the execution by the grantees of a bond to fulfil the require-
ments of the ordinance. The grantees gave the bond and
went into possession. In 1878, the city brought an action to
recover the accrued rent. It was held that the grantees, by
entering into possession of the premises and accepting the
ordinance, made the latter the written memorandum of the
contract, which was of itself sufficient to take the case out of
the statute, and that the execution of the bonds under the
requirements of the ordinance also would be sufficient as a
memorandum. An entry made by the plaintiff or his agent
in the defendant's book, at his request, does not constitute a
memorandum under the statute, unless the defendant actually
signed it.^

Sec. 349. Alteration of Memorandum. — A material altera-
tion in a contract, after the agreement is entered into, with-
out the consent of the other party to the contract, annuls
the instrument, so as to preclude the party making the alter-
ation from recovering upon the contract evidenced by the
instrument so altered by him.^ Thus, the affixing a seal to a
guaranty so as to give it the appearance of a deed,* and

' District of Columbian. Johnson, ham v. Musson, 5 Bing. (N. C.) 603;

1 Mackey (D. C.) 51. Groover v. Warfield, 50 Ga. 644.

2 Champion v. Plummer, 5 Esp. ^ Powell v. Divelt, 15 East, 29.
240; Barry v. Low, 1 Cr. (U. S. C. C.) * Davidson v. Cooper, 13 M. & W.

77 ; Newby v. Eogers, 40 Ind. 9 ; Gra- 343.
ham V. Fretwell, 3 M. & G. 368 ; Gra-

678 STATUTE OF FRAUDS. [CHAP. XIII.

the addition of words to a sold note, which would make it
import that the goods sold were to be of the vendor's own
manufacture,^ have been considered such material alterations
as to invalidate the contract. If the memorandum is made
in duplicate, for the sale of goods, the party selling signing
one and the buyer signing the other, and the plaintiff adds
a stipulation to the copy signed by him only, the original
contract may be enforced by him.^

Sec. 350. Filling Blanks in Deed, etc. — Blanks left in a
memorandum, which do not change its character or terms,
such as filling in the date, etc., may be filled without vitiating
it. Thus, where a mortgagor executed a mortgage deed to
A B, the solicitor who prepared it, and on the following
morning A B fiUed in the date of the deed, the names of the
tenants, and the date of the proviso for redemption, it was
held that this alteration did not render the deed void.^ So it
seems that, where an alteration in a memorandum is written
across its face, merely correcting an error, will bind the party
writing it, although he does not sign it. Thus, in Bluck v.
Gompertz,* it was held that a memorandum written across
the face of a signed agreement correcting an error in one of
its terms, would bind the writer although he did not sign it,
and that the agreement thus corrected was vaUd under the
statute.

Sec. 351. 'When Price must be stated. — Ordinarily, except
in those States in which the statute expressly requires
the consideration to be stated, the price to be paid for
goods need not be stated in the memorandum, but if
when the verbal contract is entered into the parties agree upon
the price to he paid, the memorandum must state the price,
as it is then of the essence of the contract. Thus where,

1 Mollett V. Wackerbarth, 6 C. B. (S. C.) 472 ; Ellis v. Deadman, 4 Bibb.
181. (Ky.) 467 ; Ives v. Hazard, 4 R. I. 14

2 Lemed v. Wannemacher, 9 Allen Williams u. Norris, 95 U. S. 444
(Mass.) 412. Shied v. Stamps, 2 Sneed (Tenn.) 172

' Adsetts V. Hives, 33 Beav. 52. M'Farson's Appeal, 11 Penn. St. 503;

* 7 Exch. 862; Ide v. Stanton, 15 Norris v. Blair, 39 Ind. 90; Farwell

Vt. 685; Soles v. Hickman, 20 Penn. v. Lowther, 18 111. 252; Barickman v.

St. 180 ; Kay v. Curd, 6 B. Mon. (Ky.) Kuykendal, 6 Blackf . (Ind.) 21 ; Smith

103; Adams v. McMillan, 7 Port. v. Arnold, 4 Mas. (U. S. C. C.) 414;

(Ala.) 73; Waul v. Kirkman, 27 Mo. McElroy v. Buck, 35 Mich. 434; Buck

823 ; Kinloch v. Savage, Spears Eq. v. Pickwell, '27 Vt. 157.

SEC. 351.] MEM0EANDt7M OE KOTE IN WEITING. 679

after a verbal contract for the sale of a horse for 200
guineas, the defendant wrote to the plaintiff as follows:
" Mr. Kingscote begs to inform Mr. Elmore that, if the horse
can be proved to be five years old on the 13th of this month,
in a perfectly satisfactory manner, of course he shall be most
happy to take him ; and if not most clearly proved, Mr. K.
will most decidedly have nothing to do with him," and there
was no other memorandum of the contract ; it was held that
the above letter was not sufficient, as the price constituted a
material part of the contract.-' So, where the defendant
agreed to purchase of the plaintiff certain goods at a discount
of £5 per cent, from a list of goods with prices annexed, and
he signed an order for the goods referring to the list, but not
mentioning the discount, it was held that the order was not
a sufficient memorandum within the statute, as it did
not contain the price.^

But if the verbal contract is silent as to the price, then it
is not necessary/ that it should be stated in the memorandum,
for a contract for the sale of a commodity, in which the price is
left uncertain, is in law a contract for what the goods shall be
found to be reasonably worth? Thus, where the defendant
gave the plaintiff an order as follows : " Sir Archibald Mc-
Laine orders Mr. Hoadley to build a new, fashionable, and
handsome landaulet, with the following appointments, etc.,
the whole to be ready by the 1st of March, 1833," and nothing
was said as to the price, it was held that the memorandum
was sufficient, Tindal, C. J., sajdng : " What is implied by
law is as strong to bind the parties as if it were under their
hand. This is a contract which is silent as to price, and the
parties therefore leave it to the law to ascertain what the
commodity contracted for is reasonably worth "; and Pabk,
J.: "It is only necessary that price should be mentioned
when price is one of the ingredients of the bargain ; the dicta
in Elmore v. Kingscote are applied to the facts of that case,
in which the bargain was for a specific price, and it is admit-

1 Elmore v. Kingscote, 5 B. & C. v. Muir, 33 Mich. 223, it was held that
583. a memorandum of an executory con-

2 Goodman v, Griffiths, 1 H. & N. tract, which is within the statute, must
674 ; see also Kaiu v. Old, 2 B. & C. state the price as well where a reason-
627. able price is agreed upon as any

8 Blackst. bk. 2, c. 30. In James other.

680 STATUTE OF PEAUDS. [CHAP. XHI.

ted on all hands that if a specific price be agreed on, and that
price is omitted in the memorandum, the memorandumi is
insufficient.! The price may be stated in any form, either by
letters or figures which clearly indicate, as applied to the
subject-matter, what the price is, and it is sufficient, if the
figures or letters, or both, by the aid of a prevailing usage,
afford the means by which to ascertain the price. ^

Sec. 352. Formal Agreement to be Prepared. — A memo-
randum which contains the terms of the proposed contract,
and is signed by the party to be charged, will bind him,
although the contracting parties have agreed that a more
formal agreement shall be prepared. Whether the parties
intend to bind themselves is a question of fact which must
depend on the particular circumstances of each case.^ Thus
where the purchaser of an estate wrote to the vendor's
solicitor, asking him when he would forward the agreement
to be entered into with the vendor, " relative to the purchase
I have concluded with him " ; the solicitor having a memo-
randum containing the terms of the proposed agreement, as
was shown by the evidence, it was held that there was a
sufficient contract within the statute.*

Where the alleged contract was founded on expressions in
a letter written by the defendant's agent to the intended
lessee, to the effect that instructions had been given for the
preparation of the lease in conformity with terms arranged,
specific performance was refused, no agreement having been
actually signed.^

Sec. 353. what is Sufficient Description of Property. — It

is not necessary that the agreement should cbntain a very pre-

1 Hoadly v. M'Laine, 10 Bing. 482; (n.) ; Fowle v. Freeman, 9 Ves. 351 ;
Acebal ti. Levy, 10 Bing. 376; Joyce Card .;. Jaffray, 2 Sch. & Lef. 374;
0. Swann, 17 C. B. (N. S.) 84; Ash- Thomas v. Dering, 1 Keen, 741; Gib-
croft !'. Morrin, 4 M. & Gr. 451 ; Valpy bins u. North Eastern Metropolitan
V. Gibson, 4 C. B. 864. Asylum, 11 Beav. 1 ; Cliinnock v.

2 Gowen v. Klous, 101 Mass. 449; Marchioness of Ely, 4 De G. J. & S.
Carr v. Passaic &c. Co., 19 N. J. Eq. 646.

424 ; Salmon Falls Mf 'g Co. v. God- ^ Morgan v. Holf ord, 1 S. & G. 101 ;

dard, 14 How. (U.S.) 446; Smith v. and see Crossley a. Maycock, L. R. 18

Arnold, ante ; Bird v. Richardson, 8 Eq. 180.

Pick. (Mass.) 252; Atwood v. Cobb, ^ Ridgway b. "Wharton, 3 D. M. G.

16 id. 227. 677 ; 6 H. L. C. 238, 264.
8 Child V. Comber, 8 Swanst. 423

SEC. 353.] MEMORANDUM OK NOTE IN WRITING. 681

cise description of the property to be sold, as parol evidence is
admissible to identify it^ where the memorandum or note con-
tains sufficient data to apply the description to the subject-
matter by the aid of such evidence, without requiring any
aid from such evidence as to. the intention of the person
sought to be cliarged, where he owns other property to which
the writing might apply .^ If reference is so made thereto in
the memorandum, that it can be applied to the subject-matter
of the agreement with reasonable certainty, "facts existing
at the time of making the agreement may," said Wigram,
V. C, " be admissible to assist the court in determining the
meaning of the language, an act done or letter written at
the time material to the right interpretation of the agreement.
But no point of law can, I apprehend, be better settled than
this : that in construing the agreement, no acts of the parties
subsequent to the making of it are (as such) admissible for
the purpose of determining its meaning. The acts of the
parties subsequent to the agreement may be material to show
that a writing does not express that which the parties in-
tended to express in it ; and proof of that may be a reason
why this court should refuse to act upon the written agree-
ment." But that is a very different thing from deducing
from the acts of the party the meaning of the agreement
itself."^ If the note or memorandum does not contain
either in itself or by reference to any other writing, the means
of identifying the property, it is insufScient.* Thus, a simple
description of premises as "lots No. 1 and 2," without refer-
ring to any particular plan or data by which the lots can be
identified, is insufficient because in such a case it would be

1 Scanlan v. Geddes, 112 Mass. 15. missible to show to what an agreement

^ Ogilvie V. Foljambe, 3 Mer. 53; to buy "your wool" applied. Mac-

McMurray v. Spicer, L. R. 5 Eq. 527 ; donald v. Longbottom, 1 E. & E. 197.

and see Daniels v. Davison, 16 Ves. But such evidence is only admissible

249. Parol evidence is admissible to when the writing does not distinctly

identify the subject-matter of the define the property so as to admit of

writing. Miller v. Stevens, 100 Mass. its being applied without the aid of

518 ; Caulkins v. Hellman, 14 Hun such proof. Pike v. Pay, 101 Mass.

(N. Y.) 330; Bateman v. Phillips, 15 134; Hill v. Rowe, 11 Met. (Mass.)

East, 272; Chambers v. Kelly, 7 Ir. 268; Hart ti. Hammett, 18 Vt. 127.
K. Ch. 231 ; Stoops u. Smith, 100 3 Monro v. Taylor, 8 Hare, 56.
Mass. 63 ; Shortridge v. Check, 1 Ad. * Whelan v. Sullivan, 102 Mass.

& El. 57 ; Sweet v. Shumway, 102 204 ; Egglestou v. Wagner, 46 Mich.

Mass. 357 ; Mumford v. Gething, 7 C. 610.
B. (N. S.) 305. Thus, it was held ad-

682 STATUTE OF FRAUDS. [CHAP. Xni.

necessary to show what the party intended to convey, as well
as the location, by parol.^ But where the writing, within
itself or by reference to other writings, contains sufficient
data so that by the aid of parol evidence no question as to
the intention of the party can arise, it is sufficient.^ Thus, a
memorandum describing the property as "my estates" located
in certain towns, is sufficient, if it is shown that the p'arty
owned no other estates in the towns named, because the
writing can be definitely applied to the subject-matter, by
the aid of parol evidence without raising any question as to
the real intention of the party, except such as is apparent
from the writing itself.^ So such descriptions as " the land
bought of Mr. Peters,"* "Mr. Ogilvie's house," « "the
property in Cable Street," ® or " a house on Church Street," ^
or " the house in Newport " * " my house," ^ " the intended
new public-house at Putney," ^^ " the mill property, including
cottages in Esher village," -"^ have been held to be sufficient.
A description of the property in a title bond, as " a steam-
mill and distillery, with all the machinery," etc., " situate in
the county of Smith, and State of Tennessee, near the village
of Rome, in civil district No. 13, on the banks of the Cum-
berland River, supposed to contain one and a half ac'res of
land," was held to be sufficient, and parol evidence to be

1 Clark V. Chamberlin, 112 Mass. 545. But, if he owned more than one
19. house on the street, the tnemorandum

2 Slater v. Smith, 117 Mass. 96 ; would be insufficient, because in such
Hurley v. Brown, ante ; Scanlan v. a case parol evidence is not admissible
Geddes, 112 Mass. 15. to show which house the party in-

8 Slater v. Smith, 117 Mass. 96 ; tended to sell. Mead v. Parker, 115

Scanlan v. Geddes, ante ; Mead v. Par- id. 413.

ker, 115 id. 413. '' Mead v. Parker, 115 Mass. 413;

* Rose V. Cunynghame, 11 Ves. Scanlan v. Geddes, 112 id. 15.

550. 8 Owen w. Thomas, 3 M. &. K. 853.

5 Ogilvie V. Poljambe, 3 Mer. 53. ^ Cowley v. Watts, 17 Jur. 172.

« Bleakley v. Smith, 11 Sim. 150; i» Wood v. Scarth, 2 K. & J. 33.

Scanlan v. Geddes, 112 Mass. 15. But in King v. Wood, 7 Mo. 389, it

Where, in a written contract, the words was held that a memorandum describ-

are " house and lot on " a certain street, ing the estate as " all that piece of

it is presumed that the words relate to property known as The Union Hotel

a house and lot owned by the person property," was insufficient because it

signing the contract, and, although required parol evidence to show what

there are other houses on the street, property was comprehended under the

and oral evidence is admissible to words " Union Hotel property."

show which house and lot such person " McMurray v. Spicer, L. E. 5 Eq.

owned. Hurley v. Brown, 98 Mass. 527.

SEC. 353.] MEMORANDUM OB NOTE IN WEITING. 683

admissible for the identification of the premises.^ So a written
contract to convey a house on a certain street named is a
contract to convey the house of the grantor there, and is
sufficiently definite within the statute; and if it is shown
aliunde that there are other houses on that street, it may
be shown that there is no other owned by the grantor.® So
an auctioneer's memorandum of sale of "the lot or lots
of land situate at the corner of C and G streets in D, belong-
ing to the estate of Thomas Gowen, deceased, delineated on
a plan by L. B. and adjacent to " certain estates named, in
which the number of the lot is written against the name of
the purchaser, sufficiently describes the land sold, although
the land belonged to the estate of Thomas W. Gowen.^ A
memorandum describing the estate in this form was also held
sufficient: "Ellsworth, Dec. 15, 1854; received of D. B.
and C. S. C. $1,000 to be accounted for, if they shall furnish
me satisfactory security for certain lands on the Naraguagus
Rivers, say 119,000 acres for $113,000, on or before Friday
morning next; otherwise to be forfeited. John Black";*
because in such a case parol evidence is admissible to show
what land John Black owned on the river named, and that
he owned no other land there than that described. In order
to render a written contract for the sale of real estate bind-
ing under the statute of frauds, it is not essential that the
description should have such particulars and tokens of identi-
fication as to render a resort to extrinsic aid entirely needless
when the writing comes to be applied to the subject-matter.
The terms may be abstract and of a general nature, but they
must be sufficient to fit and comprehend the property which
is the subject of the transaction ; so that with the assistance
of external evidence the description, without being contracted
or added to, can be connected with and applied to the very
property intended and to the exclusion of all other property.
The circumstance that in any case a conflict arises in the
outside evidence cannot be allowed the force of proof that
the written description is in itself insufficient to satisfy the
statute. "Whether the description answers the requirement
of the statute is a question which occurs on the face of the

1 White V. Motley, 4 Baxt. (Tenn.) " Gowen v. Klous, 101 Mass. 449.
544. 4 Clark v. Bumham, 2 Story (U.

2 Hurley v. Brown, 98 Mass. 545. S. C. C.) 1.

684

STATUTE OF FKAUDS.

[chap. xni.

papers and is naturally preliminary to the introduction of
testimony to connect the contract with the property, and the
decision of it would regularly seem to be required on an
inspection of the documents, and before the arrival of oppor-
tunity for any conflict of the kind referred to. Moi-eover, it
would hardly be deemed reasonable to allow the validity of
the written description to depend on the ability of a party to
bring about a conflict in the outside testimony. ^ If the de-

1 Tallman o. Franklin, 14 N. Y.
584 ; Hurley v. Brown, 98 Mass. 545 ;
Scanlan v. Geddes, 112 id. 15; Mead
V. Parker, 115 id. 413; Slater v. Smith,
117 id. 96 ; "White v. Hermann, 51 111.
243; Nichols v. Johnson, 10 Conn.
192; Colerich „. Hooper, 3 Ind. 316;
Waring v. Ayers, 40 N. Y. 357 ; King
V. Ruckman, 20 N. J. Eq. 316 ; Ogilvie
V. Foljambe, 3 Mer. 53-60 ; Bleakley
V. Smith, 11 Sim. 150; Owenu.Thomas,

3 My. & K. 358^ White v. Bradshaw,
16 Jur. 738 ; Stuart v. London & N.
W. R. Co., 1 D. M. & G. 721 ; Com-
mins u. Scott, L. R. 20 Eq. Cas. 11;
Barry v. Coombe, 1 Pet. (U. S.) 640;
Dobson V. Litton, 5 Coldw. (Tenn. ) 616 ;
Eggleston v. Wagner, 46 Mich. 610.
If land is the subject of sale, it must
be described with such certainty that
it can be identified. White v. Motley,

4 Baxt. (Tenn.) 544 ; Fisher v. Kerlin,
54 Miss. 480; Force v. Dutcher, 18
N. J. Eq. 401 ; Baldwin v. Kerlin, 46
Ind. 426; Church &c. v. Farrow, 7
Rich. (S. C.) Eq. 378; McMurry v.
Spicer, L. R. 5 Eq. 527 ; Ferguson v.
Stover, 33 Penn. St. 411 ; Carmack v.
Masterton, 3 S. & P. (Ala.) 311; Pip-
kin V. James, 1 Humph. (Tenn.) 325;
Clinan v. Cooke, 1 Sch. & L. 22 ; Hart-
nell V. Yeilding, 2 id. 549 ; Lindsay v.
Lynch, 2 id. 1. But it is sufficient if
it is described in such a manner that
it can be certainly identified by parol,
as the land purchased by me of A.
Atwood V. Cobb, 16 Pick. (Mass.) 227 ;
Johnson v. Kellogg, 7 Heisk. (Tenn.)
262; Simmons v. Spruill, 3 Jones (N.
C.) Eq. 9; Grace v, Dennison, 114
Mass. 16 ; or, indeed, in any way that
leaves no doubt as to the property in-
tended to be conveyed. Hurley v.

Brown, 98 Mass. 545 ; Mead v. Parker,
115 id. 413. But see Holmes v. Evans,
48 Miss. 247, in which a receipt for
§100 for lot on corner of Main and
Pearl Streets, city of Natchez, etc.,
was held insufficient. Where a memo-
randum, purporting to contain the
terms of a contract for the sale of
land, and signed by both parties, is
not sufficiently certain to satisfy the
reqtiirements of the statute, its de-
fects may be supplied by instruments
reciprocally executed by the parties
a few days afterwards, only inopera-
tive as deeds for want of delivery ; and
the connection between the memoran-
dum and deeds maybe shown by parol
proof of the attendant circumstances.
Jenkins v. Harrison, 66 Ala. 345. A
receipt for a part of the purchase-
money, for "one house and lot, in
the town of H.," without any other
description of the property to be con-
veyed, is not a sufficient note or memo-
randum of an agreement, under the
statute of frauds, and cannot be helped
out by parol evidence. Murdock v.
Anderson, 4 Jones Eq. (N. C.) 77.
But see Hurley v. Brown, 98 Mass.
545, where it was held that a written
contract to convey a certain house
imports an agreement to convey the
fee. Hurley v. Brown, 98 Mass. 545.
This seems to conflict with and over-
rule Farwelli). Mather, 10 Allen(Mass.)
322. See also Scanlan ;;. Geddes, 112
Mass. 15; Mead u. Parker, 115 id. 413;
and Slater v. Smith, 117 id. 96, from
the doctrine of which it would seem
that, under such circumstances, parol
evidence would be admissible to show
whether the person giving the receipt
owned more than one house and lot

SEC. 353.] MEMOEANDUSr OE KOTE IN "WKITING. 685

scription is such that it can be identified beyond a doubt, it is
sufficient. Thus, where land was described as " ten acres of
land adjoining B on the north," it was held sufficiently
definite.^ So " I will give J S 100 acres of the land next to
either S or N, for f450, or I will give him 200 acres with a
clear title, for his hoiise and lot."^ But a writing which
furnishes no data by which to identify the land is not suf-
ficient. Thus, the following : " January 4, 1808, received of

J E $ , in part pay of a lot he bought of me in the town

of V, it being the cash part of the purchase of said lot.
Nathan Deadman, Test, Will Atwood," was held insufficient.^
But there is a tendency to relax the rigor of the rule as to the
admissibility of parol evidence in such cases, and where the
note or memorandum contains sufficient data, so that it can,
with the aid of parol testimony, be certainly applied to the land,
it is, in some of the States, held to be sufficient. Thus, in a
Massachusetts case,* S, in a writing signed by himself and P,
agreed to convey to P " my estates located as follows : Three
houses in the town of R, as shown this day ; two are French-
roof, and valued at f 3,000 each; the other is a pitch-roof
house, and valued at $6,000 ; together with all the land as
now fenced; the whole being valued at $12,000. Also, three
tenement houses on B street, in C, as shown this day, and
valued at $8,000, subject to a $2,000 mortgage ; all the afore-
mentioned estates having an equity of $18,000." On a bill
brought by P and wife for specific performance, it was held
that the contract, though not signed by the wife, was a
sufficient memorandum within the statute of frauds, and that
a demurrer to the bill must be overruled. So in an Illinois
case,® a letter from a vendor to his agent, sent by the pur-

in the town, and if he did not, to iden- the lot," describing it, on a ground

tify it. Peltier v. Collins, 3 Wend, rent of §60, it was held to be an agree-

(N. Y.) 459. ment in writing, under the statute of

1 Hurly r. Blackford, 1 Dana (Ky.) frauds, for a lease of the land on
1. A receipt as follows : " Received ground rent. Cadwalader v. App, 81
of L. Anderson ^300 cash on payment Penn. St. 194.

on house," was held insufficient. Pat- ' Ellis v. Deadman. 4 Bibb. (Ky.)

terson v. Underwood, 29 Ind. 607. 466 ; Murdock v. Anderson, 4 Jones

2 Simpson v. Breckennidge, 32 (N. C.) Eq. 77 ; Holmes v. Evans, 48
Penn. St. 287. A paper signed by Miss. 247; S. P. Gigas w. Cochran, 54
parties in possession of a lot that had Ind. 593.

been leased for ten thousand years, * Slater v. Smith, 117 Mass. 96.
but without seals, agreeing " to take ^ Spangler v. Danforth, 65 111. 162.

686 STATUTE OF FRAUDS. [CHAP. XIH.

chaser and stating that the latter had " agreed to take the
pasture lot for $2,400 — $1,000 cash, |400 Dec. 1, 1871, at 10
per cent; |1,000 July 1, 1872, at 10 per cent, secured by
mortgage," and directing the agent to "make the papers," and
acknowledging the receipt of |20 on the contract, was held
to be a sufficient memorandum under the statute of frauds,
and to give a superior equity to that of a person who, earlier
on the same day, had verbally contracted with the agent for
the same land without paying any money until after notice
of the rival purchase.^ So, a receipt stating that the sum
received was for " the Fleming farm, on French Creek," was
held to be a sufficient memorandum under the statute.^ But
in all cases where the memorandum or note is of an agreement
to sell certain land, it is sufficient although it does not set
forth whether an estate in fee simple or a less estate is in-
tended, as in such cases, it is presumed that the vendor
intends to convey the estate or title which he has in the land,
and that the other party knows what the nature of that estate
is.* A memorandum of an agreement for a lease, which ex-
cepts a portion of the premises, without specifying what part

1 See also Crutchfield v. Donothan, |1,000 may remain by bond and mort-
49 Tex. 691. In White i/. Hermann, gage; the balance the 1st of May,
51 111. 243, it was held that a descrip- when the' deed will be executed and
tion of land in a contract will not be possession given," amounts to a
held to be invalid if sufficient to en- valid written contract for the sale of
able a surveyor to locate the premises, the land, under the statute in New
as where a description of land as " Sec. York. Westervelt v. Matheson, 1
27, T, 38, 14 E. of 3d P. M.," omitted Hoffm. (N. Y.) 37. An assignment of
to state the range and the position of a certificate of entry in these words,
the land as to the base line ; the gov- " I, B, do sine, the within certificate
ernment surveys showing that no town- over to A, which is to empower him
ship 38 lay south of the base line and to lift the deed in his own name," was
14 east of that meridian which would held sufficient upon proof of a valid
locate the land in the given county. consideration. Halsa v. Halsa, 8 Mo.

2 Eoss V. Baker, 72 Penn. St. 186. 303. Where A bought of B some
But see King v. Wood, 7 Mo. 389, groceries and an ice-house and lot,
where a memorandum describing the and a memorandum of the sale was
property as that " known as the Union made as follows : " Invoice of articles
Hotel " was held insufficient because purchased by A of B August 29, 1836,"
it required the aid of parol evidence and one of the items stated was " ice-
to identify it. See also Farwell u. house and lot .'J140," it was held void
Mather, 10 Allen (Mass.) 322. A re- as to them, because it did not describe
ceipt in these terms, " Received from them with any certainty. Pipkin v.
A 120 on account of the purchase of Lames, 1 Humph. (Tcnn.) 325.

the house and lot No. 38 Hammond, ^ Atwoodu. Cobb, 16 Pick. (Mass.)
at |2,900, subject to a lease to B for 227 ; Howe v. Deming, 2 Gray (Mass.)
four years from the 1st of May next; 476.

SEC. 353.] MEMORANDUM OR NOTE IN WRITING. 687

is excepted, is good. Thus, where the lessor agreed to let a
farm " except 37 acres thereof," which were not specified, it
was held that the agreement was not void for uncertainty, as
the lessor had the right of selection.^ So, where an agree-
ment for a lease reserved to the lessor the right to search for
and work mines and minerals, " etc.," it was held that these
stipulations did not render the agreement uncertain.^ Again,
the terms, " good will, etc.," in a contract for the sale of a
foundry, have been considered not to be so uncertain as
alone to prevent a decree for specific performance, for the
words et caetera point to things necessarily connected with
and belonging to the good will, and to be defined in the con-
veyance.*

Where the contract was for a lease of " those two seams of
coal known as ' the two-feet coal,' and ' the three-feet Coal,'
lying under lands hereafter to be defined in the Bank End
Estate," it was held that the contract was sufficiently definite
to be enforced, and that the true construction of it was, that
the boundaries of the estate were to be thereafter defined.*
And if it can be shown that the parties knew of the tenure
of the property, it is immaterial that the agreement is silent
on this point.® So an agreement to take a farm, paying so
much rent per acre, is not void because the number of acres
is not mentioned.^

But an agreement for letting and taking coals, "etc.,"
under certain lands,^ or for the purchase by a railway com-
pany of " the land required," ^ or a statement that a party
has disposed of his title-deeds,* is too indefinite to be speci-
fically enforced. The rule that, in order to admit parol
evidence to apply a note or memorandum to the subject-
matter of the contract, it must contain within itself or by
reference to other data, sufficient to show the real intention
of the party, is well illustrated in a Massachusetts case ^* in
which there was a memorandum in writing agreeing to give.

1 Jenkins v. Green, 27 Beav. 437. ^ Shannon v. Bradstreet, Sch. &

2 Parker v. Taswell, 2 De G. & J. Lef. 73.

559. ' Price v. Griffith, 1 D. M. G. 80.

8 Cooper V. Hood, 26 Beav. 293. 8 Stewart v. L. & N. W. R. Co., 1

* Haywood v. Cope, 25 Beav. D. M. G. 721.

140. 9 Seagood v. Meale, Prec. Ch. 560.

5 Monro v. Taylor, 8 Hare, 51 ; lo Farwell v. Mather, 10 Allen

Cowley V. Watts, 17 Jur. 172. (Mass.) 322.

688 STATITTE OF FRAUDS. [CELiP. Xin.

a certain sum "for the whole property, from cellar to top,
including lease, press, boiler and engine, type, fixtures, fur-
niture," etc., and to pay a certain sum quarterly until the
principal and interest are paid, and " in addition, pay over
the 11,215 to be received from A, and the proceeds and good
will of the ' Times,' all of which shall be deducted from " the
gross sum to be paid. The court held that the memorandum
was not sufficient to take the case out of the statute, because
it contained no such data as would warrant the introduction
of parol evidence to apply to it the subject-matter.

Where one of the articles sold on a purchase of goods was
described as " candlestick complete," and it was proved that
at the time the goods were selected, it was arranged that a
" gallery " should be added to the top of the candlestick for
the purpose of receiving a "mosquito shade," it was held
that the memorandum was sufficient without mentioning the
"gallery."!

Sec. 354. Both Parties Must be Named or Described. —
In order that there may be a binding contract it is necessary that
both buyer and seller shall be either named or described expressly, or
by sufficient reference, in such a manner that their identity cannot be
fairly disputed,^ and must also shoio who is the seller and who is

1 Sari !;. Bourdillon, 1 C. B. (N. S.) 272 ; Thayer ;;. Luce, 22 Ohio St. 62 ; ■
188. Williams t.. Bacon, 2 Gray (Mass.)

2 Grafton v. Cummings, 99 U. S. 387 ; Comm'ins v. Scott, L. R. 20
100 ; Coddington v. Goddard, 16 Gray Eq. 11 ; Beer <,. London & Paris
(Mass.) 442; Harvey v. Stevens, 43 Hotel Co., L. R. 20 Eq. 412; Potter
Vt. 653; Brown v. Whipple, 58 N. H. v. Duffield, 18 id. 4; Earwell v. Low-
229; Osborne v. Phelps, 19 Conn. 73; ther, 18 111. 252; Sherburne v. Shaw,
Waterman w. Meigs, 4 Cush. (Mass.) 1 N. H. 167; Waterman v. Meigs, 4
497; Harvey I). Stevens, 43 Vt. 653; Cush. (Mass.) 497. Williams u. Jor-
Webster v. Ela, 3 N. H. 229 ; Johnson dan, 6 Ch. Div. 517 ; Nichols v. John-
V. Buck, 35 N. J. L. 338; Barry v. son, 10 Conn. 192. A memorandum
Law, 1 Cranch (U. S. C. C.) 77; Cham- of the sale of goods containing the
pion V. Plummer, 1 B. & P. 252 ; Wil- stipulation " buyer paying insurance
liam V. Lake, 2 El. & E. 349 ; Griffin to N. Y." is sufficient, although the
V. Rembert, S. C. 460; Webster v. amount of Insurance is not stated nor
Ela, 5 N. H. 540; Jacob v. Kirk, 2 for whose benefit, if it does not ap-
Moo. & K. 221 ; Allen v. Bennett, 3 pear that these were agreed upon.
Taunt. 169 ; Thomas v. Brown, 1 Q. And a memorandum reading " W. W.
B. Div. 714 ; Gowen a. Klaus, 101 Goddard to T. B. Coddington & Co.,"
Mass. 449; Cutting u. King, 5 Ch. followed by a description of the
Div. 660; Thornton v. Kelley, 11 R. goods, etc., sufficiently shows who
I. 498 ; Sale v. Lambert, L. R. 18 was vendor and who vendee. Cod-
Eq. 1 ; Walsh v. Barton, 24 Ohio St. dington v. Goddard, 16 Gray, 436.
28; Bateman u. Phillips, 15 East,

SEC. 354.] MEMOKANDUM OR NOTE IN WHITING.

689

thebuyer.^ Thus in an English case^ it appeared that the
plaintiff had purchased at a sale of wreck a quantity of
marble ; this the defendant agreed to buj', but afterwards
repudiated his bargain, and refused payment. The value of
the goods was above £10, and the only note or memorandum
of the contract in writing, signed by the defendant, was as
follows : " D. Spooner agrees to buy the whole of the lots of
marble purchased by Mr. Vandenbergh, now lying at the
Lyme Cobb, at Is. per foot. D. Spooner."

Evidence was also given to the effect that, after the
defendant had 'signed this document, he wrote out what he
alleged to be a copy of it, which at his request the plaintiff,
supposing it to be a genuine copy, signed. This was m the
following words : " Mr. J. Vandenbergh agrees to sell to D.
Spooner the several lots of marble purchased by him now
lying at Lyme, at one shilling the cubic foot, and a bill at
one month. Julius Vandenbergh." The jury, however, were
of opinion that the first document stated the contract actually

' Lee i: Hills, 66 Ind. 474; Lin-
coln V. Erie Preserving Co., 132 Mass.
129; Bailey v. Ogden, 3 John. (N. Y.)
399; Nichols v. Johnson, 10 Conn.
198; Caulkins v. Falk, 1 Abb. App.
(N. Y.) 291; Cameron v. Spiking, 25
Grant (Ont.) 116 ; Salmon Falls Mf g
Co. V. Goddard, 14 How. (U. S.) 446;
Osborne v. Phelps, 19 Conn. 73 ; Brown
V. Whipple, 58 N. H. 232; Newberry
V. Wall, 84 N. Y. 576.

^ Vandenbergh v. Spooner, L. R.
1 Exchq. 316. In a, recent English
case the plaintiff was the lessee of
vaults in the city of London under a
lease granted by the mayor and cor
poration of London and the Mercers'
Company. The defendant company
entered into a negotiation for the pur-
chase of the lease. The secretary of
the company wrote to the house-
agents acting for the plaintiff a letter
in which he said that the directors
thereby offered to purchase the vaults
for £2,500 cash, and to take over a
mortgage for £3,500 on the lease,
these terms to include the lease, good-
will, fixtures, etc. The house-agents
answered as follows ; " In reply to
your letter of the 7th instant we are

now instructed to accept the offer
therein contained, and will forward
contract as soon as we obtain it from
the solicitor." Differences subse-
quently arose respecting the time
when possession should be given, and
eventually the plaintiff brought an
action against the defendants, claim-
ing damages for breach of contract.
Malins, V. C, held that the letters
contained a binding contract between
the parties. But this was reversed
by the Court of Appeals, and it was
held that no binding contract had
been entered into, first, because the
name of the vendor had not been dis-
closed or a sufficient description given
so as to satisfy the statute of frauds ;
and secondly, because the letters men-
tioned only what was the property to
be purchased and the price to be
given for it, but left the other neces-
sary terms of the agreement, such as
the time when possession was to be
given, to be settled by a formal con-
tract to be prepared by a solicitor in
the ordinary way. Donnison v. Peo-
ple's Caf^ Co., 45 L. T. Rep. N. S.
187.

690 STATUTE OP FRAUDS. [CHAP. Xin.

made, and found a verdict for the plaintiff for £35; leave
being reserved to the defendant to move to enter a non-suit,
on the ground (amongst others) that there was no sufficient
note or memorandum of the contract within the statute of
frauds. The verdict was set aside. Bkamwbll, B.,
saying: "The question we have had to consider in this
case is, whether the document relied upon by the plain-
tiff was a sufficient note or memorandum in writing to
bind the defendant under section seventeen of the statute
of frauds. The document was signed by the defendant,
and was in the following terms, ' D. Spooner agrees to buy
the whole of the lots of marble purchased by Mr. Vanden-
bergh, now lying at the Lyme Cobb, at Is. per foot.' Can
the essentials of the contract be collected from this docu-
ment by means of a fair construction or reasonable intend-
ment? We have come to the conclusion that they cannot,
inasmuch as the seller's name as seller is not mentioned in it,
but occurs only as part of the description of the goods." ^
In Coleman v. Upcot,^ Loed Cowper said "that if a man
(being in company) makes offers of a bargain, and then
writes them down and signs them, and the other party takes

1 But in Newell v. Radford, L. E. of the parties are inaccurately given,
3 C. P. 52, there was a memorandum it will not be sufficient. Thus, where
as follows : " Mr. Newell, 32 sacks a letter of credit was erroneously ad-
culasses at 39 s., 280 lbs. to await dressed to John and Joseph, and de-
orders. John Williams," and the court livered to John and Jeremiah, who
held that parol evidence was admis- were the parties intended, and who
sible to show what trade each party furnished the goods under it, it was
was engaged in, and thus create an held that John and Jeremiah could
inference as to which was the buyer not maintain an action upon it for the
and which the seller, and this seems goods furnished by them. Grant v
to be a reasonable rule. The names Naylor, 4 Cr. (U. S.) 224. But if
and relation of the parties to each such a letter is addressed to a person
other under the contract should ap- unnamed, it seems that any person
pear with reasonable certainty, furnisliing goods upon it can main-
Thomas V. Brown, 1 Q. B. Div. 714 ; tain an action thereon. Williams v.
Beer v. London & Paris Hotel Co., Brynes,8L.T.N. S. 69; Griffinv.Eem-
L. E. 20 Eq. 412 ; Cutting v. King, 5 bert, 2 S. C. 410. Where the names
Ch. Div. 660 ; Potter v. Duffield, L. R. of the plaintiffs appeared upon the
18 Eq. 4 ; Sale v. Lambert, id. 1 ; title-page of their order-book in which
Williams v. Jordan, 6 Ch. Div. 517 ; the defendant's order was written, it
Webster v. Ela, 5 N. H. 540 ; Griffin v. was held sufficient. Sari v. Bourdil-
Rembert, 2 S. C. 410; Farwello.Low- Ion, 1 C. B. (N. S.) 188; Havey v.
ther, 18 111. 252; Thornton v. Kelly, Stevens, 43 Vt. 653; Newell v. Rad-
ii R. I. 498; Gowen v. Klaus, 101 ford, L. R. 3 C. P. 62.
Mass. 449. And in the case of a ^ 5 Vin. Abr. 527.
guaranty it seems that, if the names

SKC. 35S.] MEMORANDUM OE NOTE IN WRITING. 691

them up, and prefers his bill, this shall be a good bargain." ^
But where the memorandum signed by the vendor was as
follows: "Sold 100 mining Purdys at 17 «. Qd." it was
held to be insufficient, as the names of both parties to the
contract did not appear? So where, on the sale of an
estate by auction, the name of the owner did not appear
in the particulars or conditions of sale, and the agree-
ment signed by the purchaser did not mention the
owner's name, and was not signed either by him or the
auctioneer, it was held that there was no contract on
which the vendor could maintain an action for non-com-
pletion.^ Where the plaintiff's agent wrote down the terms
of a sale by the defendant, which the defendant signed, as
follows: "Bought of W. Plummer, etc.," but the name of
the purchaser did not appear, it was held that there was no
contract, Mansfield, C. J., saying: "How can that be said
to be a contract, or memorandum of a contract, which does
not state who are the contracting parties? By this note it
does not at all appear to whom the goods were sold. It
would prove a sale to any other person as well as to the
plaintiff."* So where a memorandum in these words: "I
will furnish H with funds for the purchase of a steam-engine,
and machinery for a flour-mill, on his suiting himself with the
same, and notifying the purchase to me," was signed by J,
but not addressed to any one, and was delivered to B with
the consent of J, and afterwards orally acknowledged to B by
J ; it was held that there was no contract within the statute.^

Sec. 355. Reference to Conditions or Particulars of Sale.
Executors. Proprietor. — But the rule as stated in the pre-
vious section is satisfied, if the memorandum sufficiently shows
who are the parties to the contract, hy description, instead of hy
name. Thus, if the memorandum is written upon, or clearly

' And see Sugd. V. & P. 131 ; Dart. Musson, 5 Bing. (N. C.) 603 ; Skelton

5th ed. 217. v. Cole, 1 De G. & J. 596.

2 Boyce v. Green, Bat. 608; and » Williams v. Byrnes, 2 N. R. 47;

see Seagood v. Meale, Free. Ch. 560. 9 Jur. (N. S.) 363; and see Williams

s Wheeler v. Collier, M. & M. 123 ; v. Lake, 2 E. & E. 349 ; 29 L. J. Q. B. 1 ;

and see Jacob v. Kirk, 2 Moo. & Rob. over-ruling on this point, it would

221. seem, Walton v. Dodson, 3 C. & P.

* Champion v. Plummer, 1 Bos. & 162.
P. (N. E.) 252; and see Graham v.

692 STATUTE OP FKATJDS. [CHAP. XIII.

refers to conditions or particulars of sale, which show who is
the vendor, or if it refers to an advertisement for sale con-
taining the name, that will be sufficient.^

Where the particulars of sale of a leasehold house stated
that it was the property of Admiral F, deceased, and that
the sale was by direction of his executors (who did not
accept office until after the sale), not naming them, and a
memorandum of the sale endorsed on the particulars was
signed by the auctioneers as agents of the vendors, it was
held that there was a sufficient contract.^

In the case of Sale v. Lambert,^ the particulars stated that
the sale was by direction of the " proprietor," and it was held
that the vendor was sufficiently described, Jessel, M. R.,
saying : " The question is can you find out from the memoran-
dum, who the vendor is ? The property is stated to be put up
for sale 'by direction of the proprietor.' Therefore, the pro-
prietor is the vendor, and is referred to as the person who
employs the auctioneer to sell. What more do you want?
It is said that the term 'proprietor' is not a sufficient descrip-
tion. I think it is an excellent description ; certainly in Acts
of Parliament the proprietor or owner is frequently mentioned
as the person on whom notices are to be served and the
like." *

Sec. 356. when Description is Indefinite. Illustrations. —
When, however, the description of either of the parties is in-
definite, and is equally applicable to two or more persons, it is
insufficient. Thus, where the only description of the pur-
chaser was contained in a letter to his solicitor from the
vendor, in which he was spoken of as " your client," it was
held that the description was insufficient.* And where real
estate was put up for sale under particulars and conditions
of sale which did not disclose the vendor's name, but stated
that B was the auctioneer, and the purchaser of one of the
lots signed a memorandum acknowledging his purchase ; and
B signed at the foot of his memorandum another in these

1 Warner v. 'Willington, 3 Drew. * See also Commlns v. Scott, L. R.
530, per Kinderslet, V. C. 20 Eq. 11 ; Beer v. London & Paris

2 Hood V. Lord Barrington, L. E. Hotel Co., ib. 412.

6 Eq. 218. 6 Skelton ... Cole, 1 De G. & J.

3 L. R. 18 Eq. 1 ; Eossiter v. Mil- 587.
ler, 49 L. J. Ch. 228.

SEC. 358.] MEMOEANDTJM OR NOTE IN WRITING. 693

words, " confirmed on behalf of the vendor, B,"' it was held
that the memorandum did not sufficiently show who the
vendor was, and a bill for specific performance of the con-
tract for sale was dismissed.^ Where, however, an agreement
for the sale of real estate did not disclose the name of the
vendors, but it appeared therefrom that the vendors were a
company in possession of the property offered for sale, and
that they had carried on operations thereon, it was held that
the vendors were sufficiently described.^

Sec. 357. Entry in Order Book. — Where the defendant
purchased several articles at the plaintiff's shop, which, with
their respective prices, were entered in the plaintiff's " order-
book " on the fly-leaf, at the beginning of which were written
the names of the plaintiffs; and the defendant wrote his
name at the foot of the entry, for the purpose of verifying
the bargain, it was held that there was a sufficient memoran-
dum of the contract.^ But where a memorandum in writing
of a contract for the purchase of flour by the defendant from
the plaintiff, a miller, was taken by the plaintiff's rider in his
common order-book in these terms, " 19th February, 1811, of
John Smith £64" (which was explained by the witness to
mean so much received of the defendant in satisfaction of a
former order), " Do 40 of 3 — 58," (which was explained to
mean a new order for 40 sacks of flour called thirds, at 58 s.
a sack), and the order was not signed by the defendant, it
was held that this was not a sufficient memorandum to bind
him, though it was read over to him by his desire at the time
it was written.*

Sec. 358. Both Parties Named, but Seller not Named as
Seller. — The memorandum or note must in some way indicate

' Potter V. Duffield, L. R. 18 Eq. 4. in a book headed, on the inside of the

2 Commins v. Scott, L. R. 20 Eq. front cover, " John Harvey's Auction

11 ; and see Beer v. tondon & Paris Sale Book." It was held that this

Hotel Co., ib. 412. memorandum vras sufficient to satisfy

' Sari V. Bourdillon, 1 C. B. (N. S.) the requirements of the statute of

188 ; 26 L. J. (C. P.) 78. In Harvey v. frauds, and therefore bound the parties

Stevens, 43 Vt. 653, G, the auctioneer upon a contract of sale made by the

at an auction sale of the property of auctioneer.

H, caused to be entered by his clerk, * Cooper v. Smith, 15 East, 103 ;

as the sales were made, the articles and see Jacob v. Kirk, 2 Moo. & Rob.

sold, the names of the buyers, and the 221.

prices at which the articles were sold,

694 STATUTE OF FRAUDS. [CHAP. XIII.

who is the buyer, and who the seller. But it may be shown
by parol what business the respective parties are engaged in,
and if an inference can be drawn therefrom as to who is the
vendor and who the vendee, the memorandum will be suf-
ficient. Thus, where the memorandum signed by the de-
fendant was as follows : " D. Spooner agrees to buy the
whole lot of marble purchased by Mr. Vandenbergh, now-
lying at the Lyme Cobb, at 1 s. per foot," it was held that the
memorandum was insufficient, as the seller's name as seller
was not mentioned in it.^ In a subsequent case, however, a
duly authorized agent of the defendant made the following
entry in a book belonging to the plaintiff, " Mr. Newell, 32
sacks culasses at 39 «., 280 lbs. to wait orders. John WiUiams."
It was argued on the authority of Vandenbergh v. Spooner,
that it was not* possible to tell which was the buyer and
which seller, but it was held that it might be proved what
the parties would have understood to be the meaning of the
words used in the memorandum, and that parol evidence
was admissible to show that the plaintiff was a baker and the
defendant a dealer in flour. Letters between the parties also
were held to show that they stood in the position of buyer
and seller.^

Sec. 359. Reference to Other Documents to Describe Parties.

— If the memorandum is defective in that one of the contract-
ing parties is not described in it, the defect may be corrected by
other documents having a clear reference to the memorandum.
Thus, an order for goods written and signed by the seller in
a book of the buyer's, but not naming the buyer, may be
connected with a letter of the seller to his agent, mentioning
the name of the buyer, and with a letter of the buyer to the
seller claiming the performance of the order, so as to consti-
tute a complete contract within the statute.^ But the refer-
ence must be clear.* "No doubt, as a general rule," said
KiNDERSLEY, V. C, "in order to maintain an action upon a
memorandum of agreement, signed by a purchaser or in-
tended lessee, the name of the vendor or intended lessor

1 Vandenbergh .*. Spooner, L. E. ' Skelton w. Cole, 1 De G. & J. 596 ;
1 Ex. 316. and see Jackson v. Oglander, 2 H. &

2 Newell V. Radford, L. E. 3 C. P. M. 465 ; Newell v. Radford, L. R. 3 C.
52. P. 52.

8 Allen V. Bennett, 3 Taunt. 169.

SEC. 360.] MBMORAKDTJM OR NOTE IN WRITING. 695

must appear in the memorandum, as well as in the other
terms of the agreement. But though this is the general rule,
there is this exception, that if it can he ascertained who is the
vendor, or intended lessor, from some other document which is
sufficiently/ connected with the memorandum by clear reference,
that will cure the defect of the memorandum." ^ In the case
of a letter, Mr. Dart is of opinion ^ that, if an envelope be
used, and the name of the person to whom the letter is
addressed does not appear in it, the court would receive
evidence connecting the letter with the envelope.
' Sec. 360. Letter Repudiating Contract may be Sufficient
Memorandum. — A letter Written for the purpose of repudiating
a contract may, nevertheless, amount to a memorandum of it, if
there is an admission of the contract, and its substantial terms
are stated. Thus, where the defendant purchased goods,
some of which were damaged in the carriage, and he declined
to receive them, and wrote to the plaintiffs as follows : " The
only parcel of goods selected for ready money was the
chimney-glasses, amounting to £38 10 «. 6d., which goods I
have never received, and have long since declined to have,
for reasons made known to you at the time," it was held that
the letter, inasmuch as it contained an admission of the bar-
gain and of all the substantial terms of it, was a sufficient
memorandum.^ So where the defendant refused goods,
returning the invoice with a note signed by hiin on the back
as follows : " The cheese came to-day, but I did not take
them in, for they were very badly crushed. So the candles
and cheese is returned." It was held that there was a suf-
ficient memorandum of the contract.* The principle upon
which these cases rest is, that the letter furnishes, not the
contract, but what the statute requires through the admission
contained in the letter, written evidence of a prior parol con-
tract which was before not enforceable because it could only
be proved by parol, and the soundness of the doctrine cannot
be questioned.*

' Warner v. Willington, 3 Drew. p. 66, in which the contrary opinion is

529. expressed.

2 Dart. V. & P. 5th ed. 218, citing « Wilkinson v. Evans, L. R. 1 C.P.
Sari V. Bourdillon, 5 W. R. 196. 407 ; and sec Gibson v. Holland, ib. 1 ;

3 Bailey K. Sweeting, 9 C.B. (N.S.) Buxton v. Rust, L. R. 7 Ex.279;
857; 30 L. J. (C. V.) 150, dissenting McClean v. Nicolls, 9 W. R. 811.
from a passage in Blackburn on Sales, ' Care v. Hastings, 45 L. T. N. S. 348.

696

STATUTE OP FBAUDS.

[chap. xm.

Sec. 361. Letter Suggesting Abandonment of Parol Con-
tract. — But a letter written to suggest the abandonment of
a parol contract will not take a case out of the statute.
Thus, where the defendant being unable to make a title to
lands sold by auction, his agent wrote a letter to the plain-
tiff's attorney, naming both the plaintiff and defendant,
saying that a title could not be made to the property, and
advising the plaintiff "to relinquish his purchase," it was
held that there was no contract within the statute.^ But in

1 Gosbell V. Archer, 2 Ad. & El.
500 ; and see Fyson v. Kitton, 3 C. L.
R. 705 ; Tanner v. Smart, 6 B. & C.
603; Pain v. Coombs, 1 De G. & J. 34;
Buckmaster v. Eussell, 8 Jur. (N. S.)
155. In Cave v. Hastings, 45 L. T.
Rep. N. S. 348, jt appeared that the
terms of the agreement actually made
(and sued on) were contained in a
memorandum dated 1st of December,
1879, and signed by the plaintiff (but
not by the defendant), which was as
follows : " I hereby agree to provide
you with a victoria (selected), horse, '
harness, and coachman, to your satis-
faction, for one year from 1st Jan-
uary, 1880, for the sum of £ 18 10 s. a
month ; occasionally, in wet weather,
the use of a brougham."

A carriage was supplied by the
plaintiff in accordance with the terms
of the agreement, and the defendant
used It for six weeks, and then re-
fused to keep it any longer. On the
11th of February, 1880, the defend-
ant wrote the following letter to the
plaintiff (and this was the only docu-
ment signed by the defendant), which
was as follows : " You no doubt re-
member that it was agreed at our
interview on the 28th January, that
our arrangement as to the hiring of
your carriage was at an end, and that
you were not to send to me after the
end of this month. I now find that I
can dispense with your services after
this week, and shall be glad to know
what deduction you feel inclined to
make from my monthly payment, if I
agree to give you your carriage on
Saturday next." The defendant ad-
mitted that he did refer in this letter

to the arrangement, the terms of which
were contained in the memorandum of
the 1st December, 1879, and it was
proved that there was no other ar-
rangement with reference to the hire
of a carriage entered into between
the parties. The jury found that the
agreement was not rescinded, and
assessed the damages at £25. The
judge did not give judgment, and the
case was set down for motion by the
plaintiff. The verdict was upheld.
Field, J., saying ; " This was an action
tried before Lopez, J., who did not
give judgment; and the question ar-
gued before us on motion for judg-
ment was whether there was a suffi-
cient memorandum in writing signed
by the defendant of the agreement
sued upon, within the 4th section of
the statute of frauds. It is clear that
there was an agreement in fact made
between the plaintiff and the defend-
ant, on the 1st December, 1879, for
the hire by the defendant of a car-
riage for a year from the 1st January,
1880, upon the terms contained in the
memorandum of the 1st December,
1879, which was signed by the plain-
tiff. The plaintiff supplied a carriage
in accordance with the agreement, but
an interview which took place be-
tween the plaintiff and the defendant
on the 28th January, 1880, resulted
in the letter which the latter wrote on
the 11th February, in which he refers
to ' our arrangement as to the hiring
of your carriage,' and to ' my month-
ly payment.' There is abundant evi-
dence that there was an agreement
which was not rescinded; but the
defendant now contends that he is

SEC. 361.] MEMORANDUM OR NOTE IN WRITING.

697

this case it will be observed that the letter did not refer to
any other writing, nor did it appear that any other writing
relating thereto was in existence when the letter was

not liable, because he signed no mem-
orandum in writing of the contract.
It has, however, been long settled that
the whole of the agreement need not
appear on one document, but the
agreement may be made out from
several documents. The only docu-
ment signed in this case by the defend-
ant was the letter of 11th February,
which does not in itself contain the
terms of the contract. In Dobell v.
Hutchinson, 3 Ad. & El. 355, Lohd
Denman states the law on this sub-
ject to be as follows : ' The cases on
this subject are not at first sight uni-
form; but on examination it will be
found that they establish this princi-
ple, that when a contract or note exists
which binds one party, any subsequent
note in writing signed by the other
is sufficient to bind him, provided it
either contains in itself the terms of
the contract, or refers to any writing
which contains them.' This letter in
question refers to ' our arrangement.'
Mb. Gully, in his argument, con-
tended that that might refer to some
other and different parol arrangement ;
but it seems to us that this reference to
the former document is sufficient, in
accordance with the principle laid
down in Ridgway v. Horton, ubi supra,
where 'instructions' were referred
to, and it was held that parol evidence
might be given to identify the instruc-
tions referred to, with certain instruc-
tions in writing. This principle was
applied in Baumann v. James, 16 L. T.
Rep. (N. S.) 165, and carried still fur-
ther in Long v. Millar, 41 id. 306, in
•which Bramwell, L. J., says : ' The
first question to be considered is,
whether there is a contract valid
according to the provisions of the
statute of frauds, § 4. ' I think that
there is sufficient memorandum. The
plaintiff has signed a document con-
taining all the terms necessary to
constitute a binding agreement, so
that if he committed a breach of it,

he would be liable to an action for
damages, or to a suit for specific per-
formance. But the point to be estab-
lished by the plaintiff is, that the
defendant has bound himself, and a
receipt was put in evidence, signed by
hira, and containing the name of the
plaintiff, the amount of the deposit,
and some description of the land sold.
The receipt also uses the word " pur-
chase," which must mean an agree-
ment to purchase, and it becomes
apparent that the agreement alluded
to is the agreement signed by the
plaintiff, so soon as the two docu-
ments are placed side by side. The
agreement referred to may be identi-
fied by parol evidence.' He then
goes on to add : ' I may further illus-
trate my view by putting the follow-
ing case : Suppose that A writes to
B, saying that he will give £1,000 for
B's estate, and at the same time states
the terms m detail, and suppose that
B simply writes back in return, "I
accept your offer." In that case there
may be an identification of the docu-
ments by parol evidence, and it may
be shown that the offer alluded to by
B is that made by A without infring-
ing the statute of frauds, §4, wliich
requires a note or memorandum in
writing.' Under the circumstances
of this case, we think that the two
documents of the 11th February and
the 1st December are connected. We
may exclude the evidence of the de-
fendant as to what was passing in his
mind when he wrote the letter, for it
is clear on the evidence that there was
no other arrangement between the
parties other than this particular one.
We therefore hold that the defend-
ant's letter is so connected with the
former letter of the plaintifi as to
make it a note and a memorandum of
the contract signed by the defendant,
so rendering him liable to fulfil the
contract. For these reasons our judg-
ment must be for the plaintiff."

698 STATUTE OF ¥KAUDS. [CHAP. Xni.

written, and that it did not contain within itself the essen-
tial terms of the contract, consequently upon that ground
it was insufficient. But where a letter repudiating a con-
tract, or relinquishing one, refers to a written memoran-
dum thereof, or is susceptible of being directly connected
therewith, it will be operative as a note or memorandum if
signed by the party to be charged. Thus, in Drury v.
Young,! tjjg jjote or memorandum was as follows : " Office of
Drury, Ijams & Rankin, Wholesale and Retail Grocers, and
Dealers in Flour, Feed, and Fertilizers, cor. Gay and High
Streets; E. T. Drury, W. H. Ijams, Jr., S. M. Rankin, Jr.

Baltimore, Aug. 27, 1881.

Sold W. H. Young & Co., 2,500 cans, say 5,000 dozen C.
C. C. tomatoes at $1.10 per dozen, cash ; cars at Philadelphia
Depot, Baltimore, Md. 5,000 dozen at fl.lO, $5,500."

Subsequently the defendants sent the plaintiffs a letter as
follows : [Same heading as the previous note.]

"Baltimore, Aug. 29, 1881.
Messes. W. H. Yottng & Co. — Q-ents : We regret to say
it is impossible for the Chase Canning Co. to furnish the
2,500 cases 3c tomatoes purchased of us on the 27th inst., at
fl.lO per dozen. Nor do we think it possible to fill order
this season, as the fruit cannot be procured. Hoping this
may be entirely satisfactory, we are very respectfully,

Dexjey, Ijams & Rankin."

The court held that, even though the first paper was not
a sufficient note or memorandum, it became so when taken
in connection with this letter, which sufficiently refers in its
terms to the former note or memorandum.^

Sec. 362. Letters Written during Bispute as to Terms. —

Letters written during a dispute as to whether a parol con^
tract has been duly performed, in which the purchaser men-
tions the terms of the contract and the vendor does not
repudiate, but constructively assents to the terms as so
stated, have been held to constitute a sufficient memoran-
dum.^ So it would seem that a bond of reference to a sur-

• Drury v. Young, 58 Md. 546; 42 « Fysou v. Kitton, 3 C. L. E. 705.

Am. Eep. 343. = Cooth v. Jackson, 6 Ves. 17,

SEC. 362.] MEMOEANDXJM OE NOTE IN WRITING.

veyor, the price to depend upon his -valuation, would be
sufficient.^ And a receipt for purchase-money, signed by the
Yendor,® or for a deposit signed by an auctioneer, may, if it
contains or refers to documents which contain the terms of
the contract, have the effect of an agreement.^ But neither
a receipt for purchase-money, nor anj other paper writing
which is not signed hy the party to he charged, will take the
contract out of the statute, nor will it be aided by a letter
written and signed by such party, which only refers generally
to an existing contract, but does not by itself or in connec-
tion with such receipt, embrace the essential terms thereof.

1 Coles V. Trecothick, 9 Ves. 234.

' Blagden v. Bradbear, 12 Ves. 466 ;
Emmerson v. Heelis, 2 Taunt. 38 ; Gos-
bell V. Archer, 2 A. & E. 500 ; 4 N. &
M. 485.

3 Smith V. Jones, 66 Ga. 338; 42
Am. Rep. 72. In this case an action
was brought to recover the balance
due on the alleged purchase of a house
and lot. The plaintiff introduced in
evidence a receipt for ninety-five dol-
lars paid for the house and lot, but
only signed by himself, and not by
the defendant, who was the party
sought to be charged by the contract
and sued in this action for the balance
of the money. The receipt set out
the price and designated the house
and lot sold. The plaintiff also intro-
duced a letter from defendant in re-
gard to some house, but not designat-
ing that described in the receipt, or
the price to be paid, or any of the
terms of the contract. It was written
to the wife of plaintiff, and contained
these expressions, and these only, on
the subject :

" Please ask the Captain if he will
let the rent go this year on the pay-
ment of the house ; if he will, I can
make the payment this year, and ask
him to please let me know as early as
possible, as I have another object in
view. I almost know he will, as I
have no one to help me, and people
are dyingout so fast I want the mat-
ter settled. Tell him I can send him
all the money I have made if he wants
it, or if not, send him at Christmas all

I will have up to that time, as I am
living very economical. Please let
me know very soon, and oblige, very
respectfully,

Easter Joites.''

The defendant pleaded that she
did not make the contract, and that
no note or memorandum of it in writ-
ing was made by her, or by any one
for her authorized to sign it. The
court granted a non-suit on the ground
that the case was not taken out of the
statute of frauds by the receipt and
letter construed together, and the
question before the court was whether
these papers furnish such a note or
memorandum of the contract as will
take the case without that statute?
Jackson, C. J., said : " It is clear that
the receipt is not such a note or mem-
orandum as will bind the defendant,
because it is a paper which she did
not sign. Does her letter help or
heal the difficulty? We think not.
It does not refer to the receipt at all ;
nor does it otherwise describe the
thing bought, nor the price, nor any
of the terms of the contract. There
is therefore nothing in writing signed
by her which complies with the stat-
ute so as to bind her, and taking the
two papers together, unless the parol
testimony be let in to connect them
and show that the letter referred to
the receipt, there is nothing signed by
her to bind her to the contraet set out
in the receipt. If the parol testi-
mony could show that, away would
go the statute, and it might as well be

700

STATOTE OF FRAUDS.

[chap. XIII.

Sec. 363. Affidavit. — In Barkworth v. Young,^ a state-
ment of the terms of the agreement made in an affidavit
filed by the party to be charged in another suit, was held to
be a sufficient memorandum within the statute. "It can
signifj'- nothing," said Kindebslby, V. C, "what is the
nature or character of the document containing such writ-
ten statement, provided it be signed by the party sought to
be charged, whether it was a letter written by that party to
the person with whom he contracted, or to any other person,
or a deed or other legal instrument, or an answer to a bill, or
an affidavit in chancery, or in bankruptcy, or in lunacy." It
is not necessary in such a case to allege that the affidavit
was signed, as an affidavit must be signed before it is sworn,
and the court will presume that this was done.

Sec. 364. Contract May Be Collected from Several Writings.
— A complete binding contract may he made hy letters, or other
documents relating to one connected transaction, from which the
names or descriptions of the parties, the svhj ect-matter of the
contract, and its terms, may be collected? The same con-

admitted to show the whole contract.
And such we understand to be the full
current of authority, whether cited by
the one or the other side here. The
rule should not be relaxed now when
the flood-gates are open wide as to
the competency of witnesses, and
the only breakwater left is the requi-
sition to put this class of contract,
and others of similar character, in
writing. It is well to observe that
the contract was made in 1875; it
seems from the parol testimony, and
the receipt is dated the 1st of Janu-
ary, 1878, and the letter the July fol-
lowing. Whilst if the trade had been
acknowledged in writing afterward, it
could make no material difference, yet
the subsequent writings appear by
their dates not to have been executed
to make a note or memorandum of
the sale, but the receipt simply to
acknowledge the payment of money
on it, and the letter seems a proposi-
tion to modify or alter its terms in
regard to rent. The defendant was
not put in possession, and there was

no part performance of the contract
by plaintiff so as to take the case
without the statute.

Under these views of the law,
there could be no recovery for the
plaintiff, no matter what was the parol
testimony, and the non-suit was prop-
erly awarded. The case turned on
the single point, do the letter and
receipt, without the assistance of
parol testimony, show a note or mem-
orandum of the sale signed by the
defendant so as to bind her "i We
think they do not, and the judgment
is affirmed."

1 4 Drew. 13.

2 Eedhead o. Cator, 1 Stark. 14.
The first case (reported) in which a
signed paper referring to another writ-
ing was held to be sufficient to satisfy
the statute was Saunderson ti. Jackson,

2 B. & P. 238, decided in 1800. In
this case, however, the report fails
to show the connection between the
papers, or how the reference was
made. But in 1810, Allen v. Bennett,

3 Taunt. 169, was decided, and in that

SEC. 364.] MEMORANDUM OR NOTE IN WRITING.

701

struction must be put upon a letter, or a series of letters,
that would, be applied to the case of a formal instrument, the

case we find an intelligible Btatement
of the facts shows how the reference
was made, and what was deemed essen-
tial to connect the papers. In that
case, the agent of the defendant sold
rice to the plaintiff, and entered all the
terms of the bargain on the plaintiff's
book, but did not mention the plain-
tiff's name. Subsequently the defend-
ant wrote to his agent, mentioning
the plaintiff's name, and authorizing
his agent to give credit according to
the memorandum in the plaintiff's
book, saying, also, that to prevent
dispute he sent a "sample of the
rice." It was held that the letter re-
ferred to the memorandum of the bar-
gain sufficiently to render the two
together a signed note of the bargain.
In 1812, Cooper v. Smith, 15 East. 103,
was distinguished from the foregoing
case, because the letter offered to
prove the contract, as entered on the
plaintiff's books, falsified instead of
confirming the entry, by stating that
the bargain was for delivery within a
specified time, a fact denied by the
plaintiff. Le Blanc, J., tersely said :
" The letter of the defendant referred
to a different contract from that
proved on the part of the plaintiff,
which puts him out of court, instead
of being a recognition of the same
contract, as in a former case." Haugh-
ton V. Morton, 5 Ir. C. L. R. 329,
where also it is stated by Crampton,
J., at p. 342, that since the case of
Jackson v. Lowe, supra, it is for the
jury, in case of dispute, to decide
whether the signed does or does not
refer to the unsigned document. And
see on this McMullen v. Helberg, 4 L.
R. Ir. 94, at p. 104. In Jackson v.
Lowe and Lynam, 1 Bing. 9, the com-
mon pleas, in 1822, held it perfectly
clear that a contract for the sale of
flour was fully proven within the stat-
ute by two letters : the first from the
plaintiff to the defendants, reciting
the contract, and complaining of the
defendants' default in not delivering

flour of proper quality; and the
second from the defendants' attorney
in reply to it, saying that the defend-
ants had " performed their contract
as far as it has gone, and are ready to
complete the remainder," and tlireat-
ening action if " the flour " was not
paid for within a month. Richards v.
Porter, 6 B. & C. 437, was decided in
the king's bench in 1827, and on the
face of the report it is almost impos-
sible to reconcile it with the other
decisions on this point. The facts
were, that the plaintiff sent to the de-
fendant, by order of the latter, from
Worcester to Derby, on the 25th Jan-
uary, 1826, five pockets of hops, which
were delivered to the carriers on that
day, and an invoice was forwarded
containing the names of the plaintiff
as buyer and of the defendant as
seller. The defendant was also in-
formed that the hops had been for-
warded by the carriers. A month
later, on 27th February, the defend-
ant wrote to the plaintiff : " The
hops (five pockets) which I bought of
Mr. Richards on the 23d of last month
are not yet arrived, nor have I ever
heard of them. / received the invoice.
The last was much longer than they
ought to have been on the road.
However, if they do not arrive in a
few days, I must get some elsewhere,
and consequently cannot accept
them." The plaintiff was non-suited,
and the king's bench held the non-
suit right, Lord Tenterden saying :
" I think this letter is not a sufficient
note or memorandum in writing of
the contract to satisfy the statute of
frauds. Even connecting it with the
invoice, it is imperfect. If we were
to decide that this was a sufficient
note in writing, we should in effect
hold that, if a man were to write and
say, 'I have received your invoice,
but I insist upon it the hops have not
been sent in time,' that would be a
memorandum in writing of the con-
tract sufficient to satisfy the statute."

702

STATUTE OF PEATJDS.

[chap, xin.

only difference between them being that a letter or a corre-
spondence is generally more loose and inaccurate in respect

The facts, as reported, certainly are
not the same as those used in illustra-
tion by Lord Tenterden. No doubt,
if the defendant had said, " Our bar-
gain was that you should send the
hops in time, and you delayed beyond
the time agreed on," there would have
been no proof of the contract in writ-
ing as alleged by the plaintiff. But
the report shows that the goods were
delivered in due time to the carrier,
which, in contemplation of law, was a
delivery to the purchaser, and the
complaint was not that the goods had
not been sent in time, but that they
did not arrive in time ; that a previous
purchase also was delayed "on the
road." The dispute, therefore, does
not seem to have turned in the least on
the terms of the bargain, which were
completely proven by the letter and
invoice together, but on the execution
of it. In the case of Wilkinson v.
Evans, L. R. 1 C. P. 407 ; 35 L. J. C.
P. 224, the judgment in Richards v.
Porter is said to be reconcilable with
the current of decisions, by Eele, C.
J., on the ground "that the letter
stated that the contract conta,ined a,
term, not stated in the invoice ; that
the term was that the goods should be
delivered within a given time." It is
difficult to find in the letter, as quoted
in the report, the statement said by
the learned chief justice to be con-
tained in it. The decision in Richards
V. Porter seems to be reconcilable with
settled principles only on the assump-
tion that there was some proof in the
case that the carrier was by special
agreement the agent of the vendor,
not of the vendee. Richards v. Por-
ter seems also irreconcilable with the
opinion of the court as expressed by
Ekle, C. J., in Bailey v. Sweeting,
ante, but the doctrine as stated in the
text is now well established. Bird v.
Blosse, 2 Vent. 361; Bac. Abr. tit.
Agreements (c), 3 ; Coe v. Duf-
fleld, 7 Moo. 252; Stead v. Liddard,
8 Moo. 2; Dobell v. Hutchinson, 3

Ad. & El. 355; Jones v. "Williams, 7
M. & W". 493; Inge u. Birmingham,
Wolverhampton & Stour Valley Rail-
way Co., 8 D. M. G. 658 ; Baumaun v.
James, L. R. 3 Ch. 508. If instru-
ments contain in themselves no refer-
ence to each other, a connection
cannot be shown by parol evidence so
as to form a memorandum. Board-
man V. Spooner, 13 Allen (Mass.) 353.
In order that letters may furnish a
sufficient memorandum within the
statute it must appear that the parties
meant to complete the contract by the
correspondence. And letters settling
the terms of a contract which the
parties propose to afterwards draw up
formally are insufficient. Lyman w.
Robinson, 14 Allen (Mass.) 242. Pos-
ter V. Sleeper, 29 Ga. 294. Where
two memoranda of a contract for the
sale of goods worth more than fifty
dollars are signed, one by each party,
and the plaintiff adds a stipulation to
the copy signed by him only, the orig-
inal contract may be enforced by him.
Lerned v. Wannemacher, 9 Allen,
412. In Montague v. Hayes, 10 Gray
(Mass.) 609, it was held that a letter
of instruction to an attorney signed,
dated, and addressed, running as fol-
lows : " The agreement between M.
and myself is simply this : we have
purchased an estate of H. and M., Jr.,
on Washington Street, which has by
mutual consent been conveyed to me
(I having paid and secured the pur-
chase-money) ; whatever disposition is
made of the property, the profit and
loss is to be divided between us, de-
ducting interest. You will please
make such papers as are necessary to
carry this agreement into effect," is
a sufficient memorandum within the
statute of frauds to create a trust in
real estate if acted on by the parties.
But the principle of this case seems
overruled by Hazard v. Day, 14 Allen
(Mass.) 487, in which it was held that
a written contract drawn up for signa-
ture, but unsigned, is not a sufficient

SEC. 364.] MEMORANDUM OK NOTE IN ■WRITING.

703

of terms, and creates a greater difficulty in arriving at a
precise conclusion.^ In an Illinois case',^ a written contract
between a railroad company and a telegraph company for
the building and operating of a telegraph along the railway,
was signed by the telegraph company, and a copy §i it sent
to the railroad company, which accepted it by letter of its
agent, but did not sign the contract. The telegraph com-
pany made large expenditures under the contract, and for
more than a year both parties executed it. It was held that
the contract was binding upon the railway company, and that
the acceptance of it by the letter before referred to amounted
to a sufficient signing to take the contract out of the statute.^
A letter from a person sought to be charged, which merelj'
refers to a parol agreement, without containing the essential
terms of the contract, is not sufficient as a memorandum,*
and the same rule prevails as to telegrams,^ or, indeed, any
writings. There is nothing in the statute which requires
that the whole terms of the contract should be contained in

memorandum within the statute, al-
though drawn by the written order of
the defendant. Hazard o. Day, 14
Allen, 487 (1867). See also Board-
man V. Spooner, 13 id. 353 ; Lyman v.
Robinson, 14 id. 242 ; Sanborn o.
Chamberlin, 101 Mass. 416.

1 Kennedy v. Lee, 3 Mer. 451, per
Lord Eldon ; and see Saunderson v.
Jackson, 2 B. & P. 238 ; Ogilyie v. Fol-
jambe, 3 Mer. 53 ; Thomas v. Black-
man, 1 Coll. 301 ; Greene v. Cramer,
2 Con. & L. 54, 63; Fitzraaurice v.
Bayley, 9 H. L. 78; 6 Jur. (N. S.)
1215.

2 Western Union Tel. Co. v. Chi-
cago &c. R. R. Co., 86 111. 246; 29
Am. Rep. 28. Several writings of dif-
ferent dates may be read in connec-
tion to show a memorandum of an
agreement, and where a, contract was
signed by one party and retained by
the other, letters subsequently written
by the latter, in which the contract
was clearly referred to, are sufiScient
to show his assent, and that he sub-
scribed the contract within the mean-
ing of the statute. Beckwith c/. Tal-
bot, 2 Col. T. 6.39. A parol contract,
required to be in writing by the stat-

ute of frauds, if treated as obligatory
by the parties until it is executed, is
not void. A parol contract within
the provisions of the statute cannot
be made the ground of a defence, nor
does part performance of a verbal
contract within the statute have any
effect at law, to take the case out of
its provisions. This can only be done
in equity. Wheeler v. Frankenthal,
78 111. 124. A writing signed by the
party sought to be charged, although
in the form of a letter addressed to a
third party, is held a sufficient " mem-
orandum," if explicit enough as to the
terms of the contract. Moore v.
Mountcastle, 61 Mo. 424. A proposi-
tion by letter for the assignment of a
judgment, if accepted by letter, and
stating the consideration and the
names of the contracting parties, is
not within the statute of frauds. Ab-
bott V. Shepard, 48 N. H. 14.

8 McConnell v. Brillhart, 17 El.
354 ; Cassit v. Hobbs, 56 id. 231.

* Waterman v. Meigs, 4 Cush.
(Mass.) 497.

' Hazard a. Day, 14 Allen (Mass.)
487 J McElroy v. Buck, 35 Mich. 434.

704 STATTJTE OP PEATJDS. [CHAP. XIII.

one paper. It only makes it necessary there should be, at
the time when the action is brought, a complete contract in
existence, which is evidenced in writing ; ^ and this may be
done by several papers, as well as one, and if they contain
the whole^ha,Tga.m, they form together such a memorandum
as will satisfy the statute, provided the contents of the signed
paper make such reference to the other written paper or
papers, as to enable the court to construe the whole of them
together, as constituting all the terms of the bargain.^ And
the same result will follow if the other papers were attached
or fastened to the signed paper at the time of the signature.^
But if it be necessary to adduce parol evidence, in order to
connect a signed paper with others unsigned, by reason of
the absence of any internal evidence in the contents of the
signed paper to show a reference to, or connection with, the
unsigned papers, then the several papers taken together do
not constitute a memorandum in writing of the bargain so as
to satisfy the statute.* But where the reference contained
in the signed paper is ambiguous, parol evidence will be
admitted to explain the ambiguity and identify the docu-
ment to which the signed paper must and does refer. Thus,
parol evidence was held admissible to identify the docu-
ments which were respectively referred to by the following
ambiguous expressions : " instructions," ^ " terms agreed
upon," 8 "purchase,"^ "our arrangement,"* "purchased."^
It is submitted, therefore, that since the decision in Bau-
mann v. James, the principle of which case has been adopted
in the most recent cases illustrating this subject, the rule as
laid down by the earlier authorities must be taken to have
been enlarged to the following extent: it is no longer neces-
sary for the signed paper to refer to any unsigned paper as
such ; it is sufficient to show that a particular unsigned paper

1 Bill V. Bament, 9 M. & "W. 36; Pierce v. Corf, L. R. 9 Q. B. 210;
Phillips I). Ocmulgee Mills, 55 Ga. Smith v. Jones, 66 Ga. 338.

633 ; Gibson v. Holland, L. R. 1 C. P. ^ Ridgway v. "Wharton, 6 H. L. C.

1; Horton v. McCarty, 53 Me. 394; 238.

Bird V. Munroe, 66 id. 337. « Baumann v. James, 3 Ch. 508.

2 See Khoades v. Castner, 12 Allen, ' Long v. Millar, 4 C. P. D. 450,
130, 132 ; Johnson v. Buck, 338, 344, C. A.

345. 8 Care v. Hastings, 7 Q. B. D. 125.

= Tallman v. Pranklin, 14 N. Y. » Shardlow v. Cotterell, 18 Ch. D.

584. 280 ; S. C. 20 Ch. D. 90, C. A.

4 Ridgway v. Ingram, 50 Ind. 145 ;

SBC. 364.] MEMOKANDTTM OR NOTE IN "WEITING.

705

and nothing else can he referred to, and parol evidence is admis-
sible for this purpose. In Long v. Millar,^ the principle was
carried still farther, Thesigeb, L. J., saying : " When it is
proposed to prove the existence of a contract by several docu-
ment, it must appear upon the face of the instrument signed
hy the party to be charged, that reference is made to another
document, and this omission cannot be supplied by verbal
evidence."^ In Ridgway v. Whartonj^ Loud Ceanv?^oeth

1 4 C. P. D. 450.

a See Beckwith v. Talbot, 95 V. S.
389 ; Cave v. Hastings, ante ; Jenkins
V. Harrison, 66 Ala. 345 ; Thayer v.
Luce, 22 Ohio St. 62 ; Lerned v. "Wan-
nemacher, 9 Allen (Mass.) 416; Bux-
ton V. Rust, L. E. 7 Exchq. 279 ; Bau-
mann p. James, 3 Ch. App. 508 ; Work
r. Cowthick, 81 III. 317 ; see Brown v.
Wliipple, 58 N. H. 229, in which Doe,
J., questions the doctrine expressed
by Bradley, J., in Beckwith v. Tal-
bot, ante. In that case (Brown v.
Whipple), the plaintiff brought an
action against the defendant for not
accepting certain lumber. As evi-
dence of the memorandum required
by the statute of frauds, the plaintiff
introduced, subject to exception, »
letter written and signed by the de-
fendant, a memorandum written by
the defendant, and a letter written
and signed by the plaintiff.

The defendant's Letter.

"Lancaster, Dec. 21, 1867. J. B.
Brown, Esq. — Dear Sir : Can you
get 20 M. feet maple, the best quality,
the coming winter, saw it in the spring
(or winter), and deliver it at the depot
at your place in July next ? If so, for
how much per M. t Please call at my
place when you are at Lancaster, and
we will talk it over, or write me all the
particulars. Respectfully yours,

J. M. Whipple."
The Defendant's Memorandum.

" Rock maple, clear, for J. M. Whip-
ple, 15,000 feet ; 10,000 feet 2 inches
thick; 5,000 feet \\ inches thick. To
be delivered at the railroad track.
Price, $20 per M."

The Plaintiff's Letter.

" May, 1868. John M. Whipple :
The maple lumber which I agreed to
get out for you is ready for delivery.
Would like to have you call up and
take the account of it, as I wish to
draw it over to the railroad track.
James B. Brown.''

The plaintiff had a verdict ; but it '
was set aside upon appeal. Doe, C. J.,
saying : " When one document refers
to another, the latter is, for the pur-
pose of such reference, incorporated
vfith the former. 1 Starkie Ev. 359 ;
Simons u. Steele, 36 N. H. 73, 83;
Church 0. Brown, 21 N. Y. 315, 330-
334. A list of taxes may, by annex-
ation and reference, be made a part of
a tax-collector's warrant. Bailey v.
Ackerman, 54 N. H. 527. In Tallman
0. Franklin, 14 N. Y. 584, it was held
that a document was made a part of
a memorandum by being fastened to
it by a pin before the memorandum
was signed, a blank column of the
memorandum being headed 'Terms
of sale,' and the annexed document
having the same heading, and con-
taining terms of sale. In this case,
the letter written by the plaintiff to
the defendant is no part of the mem-
orandum required by the statute of
frauds, because it is neither signed by
the defendant, nor made by annexa-
tion or reference, a part of a writing
signed by him. 2 Kent Com. 511 ;
Benjamin on Sales, §§ 222-237 ; Black-
bum on Sale, 46-54 ; authorities cited
in Morton v. Dean, 13 Met. 385; Fitz-
maurice u. Bayley, 9 H. L. Cas. 78;
Skelton v. Cole, 1 De Gex & J. 587.

» 3 D. M. G.

706

STATUTE OF FRAUDS.

[chap. XIII.

said : " The statute is not complied with, unless the whole
contract is either embodied in some writing signed by the

If it was held in Salmon Falls Mf g
Co. 0. Goddard, 14 How. (U. S.) 446,
and in Lerned v. Wannemacher, 9
Allen (Mass.) 412, that, by a writing
signed by the plaintiiT, not signed
by the defendant (the party to be
charged), and not made a part of a
memorandum signed by the defendant,
the plaintiff may prove a fact which
the statute requires to be proved by a
memorandum signed by the defend-
ant, those cases are in coniliet with
a mass of authority too great to be
overthrown. The soundness of the
contrary doctrine was, in the former
case, demonstrated in the dissenting
opinion of two judges, and was in the
latter case substantially admitted.

In Beckwith v. Talbot, 95 U. S.
289, 292, it was a question of legal con-
struction, whether the written agree-
ment, signed by the plaintiff, was suf-
ficiently identified and referred to by
the defendant, in his letters, to make
it a part of a memorandum signed by
him. It was held that the general
rule is, that collateral papers, adduced
to supply the defect of signature of
a written agreement, should on their
face sufficiently demonstrate their
reference to such agreement, without
the aid of parol proof. In what was
said of an exception, in cases where
parol evidence leaves no ground for
doubt, we do not concur. Unless the
essential terms of the sale can be
ascertained from the writing itself, or
by reference in it to something else,
the writing is not a compliance with
the statute ; and if the agreement be
thus defective, it cannot be supplied
by parol proof, for that would at once
introduce all the mischiefs which the
statute was intended to prevent. Wil-
liams V. Morris, 95 U. S. 444, 456. A
defective reference can no more be cured
by parol than any other defective part
of the memcyrandum.

The writing, called in this case the
defendant's memorandum, is insuffi-
cient, because, if it is signed by the

defendant, and if it shows that he
bought lumber of some one, it does
not show of whom he bought it. The
defendant's letter of inquiry is insuffi-
cient, because it does not show that he
bought or agreed to buy anything of
anybody. If the necessary memoran-
dum were described in the statute
(Gen. St., Chap. 201, § 14) as a scin-
tilla of proof of the essentials of the
bargain, and if the question were,
whether, in fact, the plaintiff is the
person with whom the defendant con-
tracted, one question of law would be,
whether the defendant's memorandum
and letter (with or without other evi-
dence) are competent for the consid-
eration of a jury. But the question
is, not whether there is an infinitesi-
mal or other amount of circumstan-
tial evidence from which a jury may
find the fact not stated in the writ-
ings, but whether the court does find,
upon a fair legal construction of the
writings, that the fact is stated in
them. Taken together, with all the
meaning that is expressed, and all
that can be implied, by the most
strained construction, in favor of the
plaintiff, the defendant's memoran-
dum and letter state, that at some
time the defendant agreed to buy of
somebody 15,000 feet of clear rock
maple boards of certain dimensions,
to be delivered at the railroad track,
at $20 a thousand; and that on the
21st day of December, 1867, the de-
fendant inquired of the plaintiff by
letter, whether he could get for the
defendant 20,000 feet of the best
maple lumber the coming winter, saw
it in the winter or spring, and deliver
it at the depot at the plaintiff's place
the next July, and at what price the
plaintiff woiJd do this. We do not
think the legal import of this state-
ment is, that the plaintiff is the per-
son with whom the ■ defendant con-
tracted. A memorandum, consisting
of one or more writings, may be read,
like other documents, in the light of

SEC. 364.J MEMORANDUM OE NOTE IN WRITING. 707

party, or in some paper referred to in a signed document, and
capable of being identified by means of the description of it
contained in tlie signed paper. Thus, a contract to grant a
lease on certain specified terms is of course good. So, too,
even if the terms are not specified in the written contract,
yet if the written contract is to grant a lease on the terms
of the lease or written agreement .under which the tenant
now holds the same, or on the same terms as are contained
in some other designated paper, then the terms of the statute
are complied with. The two writings in the case I have put
become one writing. Parol evidence is, in such a case, not
resorted to for the purpose of showing what the terms of the
contract are, but only in order to show what the writing is
which is referred to. When that fact, which it is to be
observed is a fact collateral to the contract, is established by
parol evidence, the contract itself is wholly in writing signed
by the party."

Where an agreement was made and reduced into writing,
but not signed, and the defendant, on being asked by letter
to sign the agreement, wrote, saying that " his word should
be as good as any security he could give," it was held that
this was sufficient to take the case out of the statute.' So
where the purchaser of an estate wrote to the vendor's solic-
itor, asking him when he would forward the agreement to be
entered into with the vendor, "relative to the purchase I
have concluded with him," the solicitor having a memoran-
dum containing the terms of the proposed agreement, as was
shown by the evidence, it was held that there was a sufficient
agreement within the statute.^ So where a memorandum of
agreement for a lease for twenty-one years was signed by the
intended lessee, but not by the lessor, and named referees,
and the lessor's agents prepared a draft lease, and wrote to

the circumstances in which it was construction of the law, or a liberal

written, for the explanation of its construction of the memorandum."
latent ambiguities, and the applica- i Tawney v. Crowther, 3 Bro. C. C.

tion of its terms to the persons and 318. This case, however, was disap-

things sufficiently described in it. proved of by Lord Redesdale in

But this rule does not admit parol evi- Clinan v. Cooke, 1 Sch. & Lef. 34.
dence to supply an essential part of the " Morgan v. Holford, 1 S. & 6. 101 ;

contract, the omission of which is patent and see Hamilton v. Terry, 11 C. B.

on the face of the memorandum; and 954; Wood u. Scarth, 2 K. & J. 83 ;

the inequitable operation of the stat- Alcock w. Delay, 4 E. & B. 660.
ute is not to be avoided by a narrow

708 STATUTE OP FEATJDS. [CHAP. XIII.

the lessee saying they hoped on a certain day to have the
agreement prepared and ready for inspection ; and to this the
lessee replied by a letter making an appointment, and hop-
ing all would be satisfactorily arranged, it was held that
there was an agreement sufficiently signed by the lessor.^ So
also a letter written bj' the solicitor to the purchaser to the
vendor's solicitor, headed with the names of the clients, and
agreeing to settle the purchase personally in two months, if
that would be satisfactory to the vendor, was held binding
on the writer.^ But a reference to "the agreement which
your client alleges he has entered into," in a signed docu-
ment, is not a sufficient acknowledgment of the existence of
an agreement at all to take a case out of the statute.^

Skc. 365. Insufficient Reference, Rent-RoUs, Abstract, Par-
ticulars.— Where A agreed by parol with B for the purchase
of lands, and B delivered a rent-roll which was dated and
altered in his own handwriting, and showed by the title of
it that an agreement had been made between them for the
sale of the estate at twenty-one years' purchase ; and an
abstract of title was also delivered to A, together with the
deeds, in order to be compared with the rent-roll ; and B also
wrote to several of his creditors, informing them that he had
contracted with A for the sale of his estate at twenty-one
years' purchase, and sent the tenants to treat with A for a
renewal of their leases ; it was held, nevertheless, that there
was no sufficient memorandum.* So where the defendant
gave a particular of the property signed by him, which was
sent to an attorney with instructions to prepare a convey-
ance, it was held that there was no agreement of which spe-
cific performance could be enforced.^

Sec. 366. Recital of Agreement Sufficient. — Where an
agreement was produced as follows : " Mr. Hall [the plain-
tiff] having agreed to purchase of Mr. Betty [the defendant]
two leasehold houses, situate, etc., Mr. Betty hereby agrees

1 Warner v. Willington, 3 Drew. 465 ; and see Skelton v. Cole, 1 De G.
523. &J. 587.

2 Powers I). Fowfer, 4 E. & B. 511 ; « Whaley v. Bagenal, 1 Bro. P. C.
and see Baumann v. JaUes, L. B. 3 S45.

Ch. 508. ■ 6 Cooke v. Tombs, 2 Ans. 420; and

' Jackson v. Oglander, 2 H. & M. see Cass v. Waterhouse, Prec. Ch. 29.

SEC. 367.] MEMOKANDUM OR NOTK IN WRITING.

709

to paper and paint, etc.; Mr. Hall to pay £230 at the time
of the conveyance, and the remaining j620 on the comple-
tion of the painting," it was held that the agreement to pur-
chase, though recited as an existing agreement, was to be
considered as forming part of the agreement produced.^

Sec. 367. Reference must be Clear. — In order to embody
in a memorandum any other document or memorandum or in-
strument in writing, so as to make it part of a special contract
contained in that memorandum, the memorandum must either
set out the writing referred to, or so clearly and definitely refer
to the writing, that hy force of the reference the writing itself
becomes part of the instrument it refers to? The leading case
on this point is Boydell v. Drummond.^ There the defendant

1 Hall V. Betty, 4 Man. & Gr. 410 ;
and see De Porquet v. Page, 20 L. J.
Q. B. 28.

^ Peek V. North Staffordshire Rail-
way Co., 10 H. L. C. 473, 568, fer
LoED WESTBCRr; and see Jacob u.
Kirk, 2 Moo. & Rob. 221 ; Price ...
Griffith, 1 D. M. G. 80; Ridgway v.
Wharton, 3 D. M. G. 677 ; Boyce v.
Green, Batty, 608. Where there are
several writings relating to a transac-
tion, so many of them as of them-
selyes show their relation to each
other are treated as together, form-
ing the memorandum. Wilkinson v.
Erans, L. R. 1 C. P. 407. In Bcck-
with i;. Talbot, 95 U. S. 289, the gen-
eral rule was held to be that collat-
eral papers, adduced to supply the
defect of signature of a written agree-
ment under the statute of frauds,
should on their face sufficiently de-
monstrate their reference to such
agreement without the aid of parol
proof, is subject to exceptions. Parol
proof, if clear and satisfactory, may
be received to identify the agreement
referred to in such collateral papers.
But if the relation between the differ-
ent papers does not appear from the
writings themselves, such relation can-
not be established by parol. Stocker
V. Partridge, 2 Robt, (N. Y.) 193;
Johnson v. Kellogg, 7 Tenn. 262; Mor-
ton v: Deane, 13 Met. (Mass.) 385;
Schafer v. Farmer's Bank, 59 Penn.

St. 144; Freeport v. Bartol, 3 Me.
340 ; Ridgway v, Ingram, 50 Ind.
145 ; Boardman v. Spooner, 13 Allen
(Mass.) 353; O'Donnell v. Lehman,
43 Me. 158 ; Johnson v. Buck, 35 N.
J. L. 338 ; Wiley v. Roberts, 27 Mo.
388 ; Clark v. Chamberlin, 112 Mass.
19 ; Hinde v. Whitehouse, 7 East, 058 ;
Jacob «. Kirk, 2 M. & R. 221 ; Leonard
V. Wannemacher, 9 Allen (Mass.) 412 ;
Buxton t). Rust, L. R. 7 Exchq. 279 ;
Allen V. Bennett, 3 Taunt. 169 ; Pea-
body V. Speyers, 56 N. Y. 230 ; Ide v.
Stanton, 15 Vt. 685 ; Thayer ;;. Luce,
22 Ohio St. 62; Work v. Cowhick, 81
lU. 317.

8 11 East, 142. Any letter or other
document that is signed, which refers
to other writings, authorizes the read-
ing of such papers : Rushton v. What-
mere, 8 Ch. Div. 467 ; Buxton v. Rust,
L. R. 7 Exchq. 279; Williams o. Jor-
dan, 6 Ch. Div. 517; Jackson v. Lowe,
1 Bing. 9; Laythoarp v. Bryant, 2
Bing. (N.C.) 735; Williams D.Morris,
95 U. S. 444; DeBeil v. Thompson, 3
Beav. 469 ; Pierce v. Corf, L. R. 9 Q.
B. 210 ; Mayer v. Adrian, 77 N. C. 83 ;
Scarlett v. Stein, 40 Md. 512 ; Wash-
ington Ice Co. V. Webster, 62 Me. 341.
If they were in existence when the
writing referring to them was signed ;
Wood V. Midgeley, 5 De G. M. & G.
41 ; Briggs v. Munchon, 56 Mo. 467 ;
Coles V. Trecothick, 9 Ves. 224 ; Taw-
ney v. Crowther, 3 Bro. C. C. 318.

TIO STATUTE OF PEAUDS. [CHAP. XUI.

was a subscriber to a proposed edition of Shakespeare's plays.
The terms of the contract were set out in a printed prospec-
tus which was delivered to the subscribers. This was not
signed, but the subscribers' signatures were written in a book
entitled, "Shakespeare subscribers — their signatures," and
this book did not refer to the prospectus. It was held that
the book and prospectus could not be connected so as to take
the case out of the statute, as such connection could only be
established by parol evidence.^ In Cooper v. Smith,^ the
defendant wrote a letter recognizing an order entered in the
plaintiff's order-book, but insisted that the goods had not
been delivered in time, thus introducing a new term, which
was denied by the plaintiff, and it was held that the plain-
tiff could not prove by parol that no such term existed.
LbBlanc, J., said : " The letter of the defendant referred to
a different contract from that proved on the part of the
plaintiff, which puts him out of court instead of being a
recognition of the same contract." In Jackson v. Lowe,' the
purchaser of flour wrote to the vendors as follows : " I hereby
give you notice that the corn you delivered to me in part per-
formance of my contract with you ... is of so bad a qualitj'-
that I cannot sell it or make it into saleable bi'ead. The
sacks of flour are at my shop, and you will send for them,
otherwise I shall commence an action." To this letter the
vendors answered by their attorney : " Messrs. Lowe and
Lynam consider they have performed their contract with
you as far as it has gone, and are ready to complete the
remainder, and unless the flour is paid for at the expiration
of one month, proceedings will be taken for the amount."
It was held that the two letters constituted a sufiicient mem-
orandum.* In Smith v. Surman,^ the owner of trees grow-
ing on his land verbally agreed with the defendant to sell
him the timber at so much per foot. The vendor's attorney
subsequently wrote to the purchaser, requiring payment "for

1 See also Allen v. Bennett, 3 Hieronimus, L. R. 10 Q. B. 140; Bux-
Taunt. 169; Crane v. Powell, L. R. 4 ton v. Eust, L. R. 7 Ex. 279; see the
C. P. 123 ; Llewellyn u. Earl of Jer- remarks on Richards v. Porter, 6 B. &
Bey, 11 M. & W. 189. C. 437, in Benjamin on Sales, 2d ed.

2 15 East, 103. 165.

' 1 Bing. 9. 5 9 B. & C. 561, 570 ; 4 Mann. & R.

* And see Wilkinson v. Evans, L. 455.
R. 1 C. P. 407 ; Leather Cloth Co. v.

SEC. 367.] MEMOKANDUM OR NOTE IK WEITING.

711

the ash timber you purchased. . . . The value at 1 s. 6 d. per
foot amounts to £VI %s. %d. I understand your objection
to complete your contract is on the ground that the timber
is faulty and unsound, but there is sufficient evidence to
show that the same timber is very kind and superior." The
purchaser answered : " I have this moment received a letter
from you respecting Mr. Smith's timber, which I bought of
him at 1 s. 6 d. per foot to be sound and good, which I have
some doubts whether it is or not, but he promised to malce it
so, and now denies it." It was held that, as the purchaser did
not in his letter recognize the absolute contract described in the
vendor'' s letter, but stated one condition as to quality, there was
no note in writing to satisfy the statute.^

1 And see Archer v. Baynes, 5 Ex.
625 ; Thornton v. Kempster, 5 Taunt.
786. If the njemorandum does not con-
tain enough to make out a completed
agreement, the defect cannot be sup-
plied by parol, but the contract will
be void because it is not evidenced by
a writing under the hand of the party
to be charged. Thus in Archer v.
Baynes, ante, the defendant verbally
agreed to purchase of the plaintiff
certain barrels of flour. The defend-
ant afterwards wrote to the plaintiff,
stating that he had received some
barrels, which were not so fine as the
sample, and were not the barrels he
had bought, and that he would not
have them. In answer the plaintiff
wrote as follows : " Annexed you have
invoice of the flour sold you last
Friday. I am very much astonished
at your finding fault with the flour.
It was sold to you subject to your
examining the bulk ; and it was not
until after you had examined it, and
satisfied yourself both of quality and
condition, that you confirmed the pur-
chase. What was forwarded you was
the same you saw. Under these cir-
cumstances you cannot, therefore,
object to fulfil your agreement." The
defendant replied as follows : " I beg
to say the barrels I have received is
not the same I saw. I took a sample
with me from the sample I have, and
the barrels I saw was quite as fine as

I compared them with, nor was they
lumpy. Now the barrels I have re-
ceived is all very lumpy, and none of
them so fine as the same. If you will
take them back and pay charges, I
will with pleasure send them. There
must be some mistake about them."
Held, that the letters did not consti-
tute a sufficient note or memorandum
in writing of the contract within the
17th section of the statute of frauds.
In this case Aldersos, B., said: " We
have no difficulty, therefore, in com-
ing to the conclusion that these let-
ters may be looked at for the purpose
of seeing whether or not they contain
a sufficient contract to take the case
out of the statute ; but looking at
them, we do not think they do. They
do not express all the terms of the
contract; and the case is in truth
governed by Richards v. Porter, which
was cited in the course of the argu-
ment, and in which Lord Tknteeden
gave a similar decision as to a docu-
ment of a. similar nature which was
then before him. There is a distinct
refusal on the part of the defendant
to accept the flour which he had
bought of the plaintiff. It is clear
from the letters that he had bought
the flour from the plaintiff upon some
contract or other; but whether he
bought it on a contract to take the
particular barrels of flour which he
had seen at the warehouse, or whether

712

STATUTE OF FEAUDS.

[chap. XIII.

SeO. 368. Part Only of Documents Referred to, to be Incor-
porated in Contract. — If a part only of documents referred
to are to be incorporated in the contract, the reference must
show clearly what part is to be so incorporated. Thus,
where an agreement for a lease of a farm referred to a paper
containing the terms, a bill for specific performance accord-
ing to such clauses as had been read to the plaintiff was dis-
missed.^

he had bought them on a particular
sample which had been delivered to
him, on the condition that they should
agree with that sample, does not
appear; and that which is in truth
the dispute between the parties is not
settled by the contract in writing;
and therefore the rule must be dis-
charged." In Richards v. Porter" 6
B. & C. 437, the plaintiff sent to the
defendant an invoice of hops, and
delivered the invoice to a carrier to
be conveyed to the defendant. In
the invoice the plaintiff was described
as the seller, and the defendant as
the purchaser, of the hops. The de-
fendant afterwards wrote to the plain-
tiff as follows: "The hops which I
bought of Mr. Richards (the plaintiff)
on the 23d of last month are not yet
arrived, nor have I heard of them.
I received the invoice. The last was
much longer than they ought to have
been on the road; however, if they
do not arrive in a few days, I must
get some elsewhere, and consequently
cannot accept them"; and it was
held that the invoice and letter taken
together did not constitute a sufficient
note in writing within the statute.
Where, however, the vendee, by his
letter in answer, recognizes and adopts
the terms of a contract specified in
the vendor's letter, that is a sufficient
memorandum to satisfy the statute:
Jackson v. Lowe, 1 Bing. 9 ; Smith v.
Surman, 9 B. & C. 561. The rule is
that a subsequent recognition in writ-
ing, of a contract otherwise void
under the statute of frauds, for want
of a sufficient writing, will be suffi-
cient: Gale V. Nixon, 6 Cow. (N. Y.)
445. In Ide «. Stanton, 15 Vt. 685, the

writings relied on to satisfy the
statute, consisted, as in the principal
case, of the correspondence of the
parties after the contract had been
made ; which was decided to be com-
petent as a note in writing, but insuf-
ficient because the letters did not
state the price. "The statute has
never required," said the court, " that
the written evidence of the purchase
should be created at the time of mak-
ing the contract. A written admis-
sion of a previous verbal contract will
satisfy the statute. Neither is it
essential that all the written evidence
necessary to constitute a sufficient
note or memorandum of the bargain
should be comprised in a single paper
or document. Distinct writings, and
of different dates, if signed by the
party to be charged, and properly
conducing to prove the contract, are
competent evidence in this class of
cases. But since the whole object
of the statute is to guard against the
danger of fraud and perjury in prov-
ing the contract, it is obviously indis-
pensable that enough should appear
in writing to show that a contract of
purchase has been concluded, which
is legally binding upon the party
sought to be charged. The written
note or memorandum must therefore,
either by its own language or by ref-
erence to something else, contain such
a description of the contract actually
made as shall obviate the necessity
of resorting to parol evidence, in
order to supply any term of the con-
tract which was essential to give it
validity."

1 Brodie v. St, Paul, 1 Ves. Jr. 326;
and see Clinan v. Cooke, 1 Sch. & Lef.

SEC. 370.] MEMORANDUM OE NOTE IN WRITING. 713

Sec. 369. Reference in Case of Letters need not bo Sxpress.
— The reference in the case of letters need not be express, hut
it will he sufficient if the court can he satisfied that a reference
was intended} Thus, where A, the owner of property, wrote
to B on the 5th July in the third person, informing him that
C applied for the purchase of the W farm at a certain price,
but that if B chose to have the farm at the price mentioned,
C would decline the purchase in his favor ; and the bill stated
that B accepted the terms in a letter, which, however, was
not proved, and that A wrote to C on the 11th July, saying :
" I have just received yours, and am glad you have deter-
mined to purchase the W farm. ... I will write to Mr. C
to inform him you have agreed to purchase the estate," Sir
William Grant said: "Determination and agreement upon
the part of the plaintiff to purchase does seem necessarily to
presuppose some proposal to sell ; for it would be absurd to
speak of an original proposal from the plaintiff as a determi-
nation and agreement bringing the business to such a close,
that it only remained to the solicitors to confer upon the
title. This letter (of the 11th July) therefore clearly im-
plies an antecedent proposal to which it is an assent. As to
the nature of the proposal there is no controversy. It is in
A's handwriting, and coupling that with the letter, they
amount to an agreement signed by the party to be charged." ^

Sec. 370. Terms of Contract must Appear from Writing. —

The letters or documents must either definitely state the terms
of the contract, or must enahle the court to ascertain what the
terms of the contract are.^ "In order," said Lord Eldon,

36; Vonillon ». States, 2 Jur. (N. S.) tains sufficient for that purpose, the

845. court will give effect to it according to

1 But see contra Fyson v. Kitten, 3 the intent of the parties as gathered there-
C. L. K. 705. from, and extrinsic evidence will not be

2 Western v. Russell, 3 V. & B. 187 ; admitted to show a different intent.
and see Verlander v. Codd, T. & R. Williams v. Robinson, 73 Me. 186 ; 40
352; Greene v. Cramer, 2 Con. & L. Am. Rep. 852; Washington Ice Co.
54 ; Skinner v. McDouall, 2 De G. & v. Webster, 62 id. 341 ; 10 Am. Rep.
S. 265. 462 ; Horton v. McCarty, 53 Me. 394 ;

' It may be stated as a general Jenness v. Mt. Hope Iron Co., 53 id.

rule, that, in order to make a note or 50 ; O'Donnell v. Leeman, 43 id. 158 ;

memorandum sufficient to take the Mason v. Decker, 72 N. Y. 595; 28

contract out of the statute, enough Am. Rep. 190; Bacon v. Daniels, 37

must be stated to enable the court to give Ohio St. 279 ; Clark v. N. Y. Life Ins.

effect to it as a contract, and if it con- Co., 7 Lans. (N. Y.) 322 ; Groat v.

714

STATUTE or PEAUDS.

[chap. xin.

" to form a contract by letter, I apprehend nothing more is
necessary than this ; that when one man makes an offer to

Story, 44 Vt. 200; Stoops v. Smith,
100 Mass. 63; Pitcher v. Hennessey,
48 N. Y. 415 ; Taylor v. Riggs, 1 Pet.
(U. S.) 591; Pord v. Yates, 2 M. & G.
549 ; Ridgway u. Bowman, 7 Cush.
(Mass.) 268; Carter v. Hamelton, 11
Barb. (N. Y.) 147; Lee v. Hills, 66
Ind. 474. In other words, enough of
the contract must be stated so that it
can be enforced, and a part of it can-
not be shown by the loriting, and a part
of it by parol. It must be evidence of
a completed bargain. Weeks v. Wright,

25 N. Y. 153; Kossitur v. Miller, L. R.
3; H. L. 1128; Winn v. Bull, 7 Ch.
Div. 29; Roberts v. Tucker, 3 Exchq.
632 ; Gaunt v. Hill, 1 Stark. 20 ; Wha-
ley V. Bagnel, 1 Bro. P. C. 345 ; Strata
ford u. Bosworth, 2 V. & B. 341;
Symes v. Huntley, 2 L. T. N. S. 509;
Oakman v. Rogers, 120 Mass. 214;
Barry v. Coombe, 1 Pet. (U. S.) 046;
Hazard v. Day, 14 Allen (Mass.) 487;
Ballingall v. Bradley, 16 111. 373 ; Elfe
V. Gadsden, 2 Rich. (S. C.) L. 373;
Merton v. Dean, 13 Met. (Mass.) 385.
For, while the memorandum is said
not to be the contract itself, yet it is
the only evidence of the contract which
the statute permits to be used. Williams
V. Robinson, ante ; Ellis v. Deadman,
4 Bibb. (Ky.) 466; Dawes v. Shields,

26 Wend. (N. Y.) 341; Buck v. Pick-
well, 27 Vt. 157; Soles v. Hickman,
20 Penn. St. 180 ; Parker v. Bodley, 4
Bibb. (Ky.) 466; Farwell v. Mather,
10 Allen (Mass.) 322; Riley v. Wil-
liams, 123 Mass. 506; May v. Ward,
134 Mass. ; Hodges v. Howard, 5 R. I.
149; Parker v. Tainter, 123 Mass. 185.
And if the real intent of the parties is
not expressed therein, yet, if it con-
tains sufficient to enable the courts to
carry it out according to a legal in-
tent gathered from the instrument
itself, it will, in the absence of fraud,
be given effect to, if sufficient upon
its face, however much it may con-
flict with the real intention of the par-
ties. Thus, in a Maine case, Williams
V. Robinson, ante, a memorandum of a

contract was made as follows : " Au-
gusta, June 8, 1880. I hereby agree
to furnish M. P. Williams of New Ha-
ven (post-office address West Haven)
eight hundred to one thousand tons
of ice, delivered on board vessels at
Augusta, Maine, properly packed for
a voyage to New Haven for the sum
of two dollars per ton.

Bond Brook Ice Co.,
J. E. Robinson, Augusta, Me."
The defendant upon the trial
claimed, and introduced evidence to
prove, that it was agreed that the ice
should all be delivered by the last of
the next July, and that the plaintiff
was to forward a, draft for seven or
eight hundred dollars immediately
upon his return home, and before any
ice was shipped, and that the ice was
to be shipped by successive shipments
at different times, and that the plain-
tiff was to forward a, draft covering
the amount of each shipment before
any such shipment was made; and
upon this proof, asked the court to in-
struct the jury that, inasmuch as the
memorandum did not contain these
essential elements of the agreement,
it was insufficient. But the court re-
fused so to charge, and the plaintiff
had a verdict which was sustained
upon appeal, the court holding that,
as the memorandum upon its face
contained a sufficient enforceable
contract, it must be enforced accord-
ing to its legal intent, without the aid
of extrinsic facts. It will be observed
that in this case, the party who made
the memorandum was the one who
sought to invalidate it by showing
that it did not contain the actual
terms of the agreement, so that no
claim of fraud in their apprehension
could be made, and upon this ground
we believe that the decision is right,
and in no wise obnoxious to the rule
relating to the introduction of parol
evidence to avoid a memorandum
upon the ground that it does not con-
tain the terms of the agreement actu-

SEC. 370.] MEMOEANDTJM OE NOTE IN WRITING.

716

another to sell for so much, and the other closes with the
terms of his offer, there must be a fair understanding on the
part of each as to what is to be the purchase-^money, and how
it is to be paid, and also a reasonable description of the subject-
matter of the bargain.^ Where a receipt for the deposit

ally entered into by the parties, as
stated post, p. 736, or as is held in El-
more V. Kingscote, 5 B. & C. 583 ;
Goodman v. Griffith, 1 H. & N. 574 ;
Hussey v. Horner Payne, 4 App. Cas.
311 ; Wake v. Harrop, 6 H. & N. 768.
It would hardly be becoming in a
party who drew a memorandum, to
set up, when it was sought to be en-
forced against liim, as a defence, that
it was void because he had neglected
to state all the terms of the contract
therein, and, if he has stated enough,
so that effect can be given to it, he
will not be permitted to stultify the
instrument upon the ground of his
own fraud. Such an objection can
only come from the other party.

1 Kennedy «. Lee, 3 Mer. 447. The
general rule of determining the ques-
tion in the majority of instances is
furnished by the early case of Sea-
good V. Meale, Free. Chan. 560, that
a letter will never operate as a writ-
ten agreement so as to satisfy the
statute, unless it distinctly specijies or
ascertains the terms of the agreement;
for if it contains only evidence of the
existence of an agreement, without
fully declaring its purport, the sub-
stance of the contract is left to be
explored tlirough the medium of ver-
bal testimony, in direct opposition to
the statute of frauds. In the case
last mentioned, a person had verbally
agreed with another to sell him some
houses, and in consequence of such
agreement had written a note to a
mortgagee of the premises, request-
ing him to deliver the writings relat-
ing to the property to the bearer, as
he had agreed to dispose of them, it
was contended that this letter was a
recognition of the contract in writing,
and ought to be considered as suffi-
cient to answer the intention of the
statute ; but the court thought other-

wise, grounding its opinion on the
want of a proper specification of the
terms in the letter; though some
doubts may be entertained whether a
letter written to a third person, and a
stranger to the contract, could, how-
ever explicit it might be in describing
the terms of the contract, be received
as a memorandum or note within the
meaning of the statute. It was said
by LoED Hakdwicke in Welford v.
Beazely, 3 Atk. 503, that " there have
been cases where a letter written to a
man's own agent, setting forth the
terms of the agreement as concluded
by him, has been deemed to be a sign-
ing within the statute." But such an
act is supposed to be done with the
direct purpose of carrying the treaty
into effect, and not as a mere commu-
nication by letter. See also Ayliffe v.
Tracy, 2 P. Wms. 64. In Seagood v.
Meale, thougli the letter did not im-
mediately pass between the parties to
the contract, it directed something to
be done in pursuance of the contract,
and preparatory to its accomplish-
ment, and was tlius, in effect, a me-
dium of negotiation between the orig-
inal parties. In Clerk v. Wright, 1
Atk. 12, the defendant had verbally
agreed to sell an estate to the plain-
tiff, in confidence of which agreement
the plaintiff had been several times
to view the premises, and had given
orders for conveyances' to be drawn
and engrossed. The defendant after-
wards sent a letter to the plaintiff, in-
forming him, that at the time of his
contracting for the sale of the estate,
the value of the timber was not known
to him, and the plaintiff should not
have the estate unless he would give
a larger price for it. The bill was
brought to have the agreement car-
ried into execution, but the statute of
frauds was pleaded, and allowed ; the

716

STATUTE OF FKAITDS.

[chap. XIII.

money did not state what the price was, nor what proportion
the deposit bore to the price, it was held to be insufficient.^

' Blagden v. Bradbear, 12 Ves.
466 ; and see Clerk v. Wright, 1 Atk.
12 ; Elmore v. Kingscote, 5 B. & C.

Chancellor observing that the letter
could not be sufficient evidence of the
agreement, the terms of the . agree-
ment not being therein specified.
Jackson v. Titus, 2 John. (N. Y.) 430;
Abeel v. Eadcliff, 13 John. (N. Y.) 297 ;
Johnson v. Ronald, 4 Munf. (Va.) 77.
Upon similar grounds, a letter
promising a marriage portion, but not
reducing it to any certainty, was con-
sidered as insufficient to satisfy the
third clause of the 4th section ; and a
letter written by. a father to his daugh-
ter, promising to give her £ 3,000 on
her marriage, but which was not shown
to the intended husband, was held to
afford no foundation for a decree, as
having no ingredient of equity. Ay-
liffe V. Tracy, 2 P. Wms. 65. Although,
if the intended husband had seen this
letter, and had married the daughter
on the encouragement it gave him,
this would have materially altered
the case in respect to the statute ; and
it has been held that the statute will
not prevail where this is the state of
the transaction. See Eq. Ca. Abr. 49 ;
Wankeford v. Fottherly, 2 Vern. 822 ;
Taylor v. Beech, 1 Ves. 297. But if
a letter contains the terms of an agree-
ment, distinctly set forth, 3 Atk. 503,
or refers to another paper which con-
tains the terras of the agreement ex-
plicitly stated, even though such prior
written document be without a signa-
ture, Tawney v. Crowther, 3 Bro. C.
R. 318, or if it refers to something
in itself certain, as to the custom of
the country in an agreement for a
lease, Brodie v. St. Paul, 1 Ves. Jr.
330, the statute has been held to be
satisfied. So in a later case, where an
order had been given for a, quantity
of goods, and a bill of parcels deliv-
ered at the same time to the buyer, a
subsequent letter written and signed
by the vendor, referring to the order.

583 ; Clinan v. Cooke, 1 Sch. & Lef .
33 ; Morgan v. Milman, 3 D. M. G. 24.

was connected with the bill of parcels,
so as to create a sufficient contract in
writing within the statute. Saunder-
son V. Jackson, 2 B. & P. 238. But
where the parol evidence is to ascer-
tain what is referred to, the subject
of the reference being not sufficiently
decided and distinct upon the face of
the document itself, as where a paper
is referred to as containing the terms
of a lease, if the certainty does not
sufficiently appear by referring to the
paper without further evidence, the
agreement is not ascertained in writ-
ing according to the statute ; thus, if
parol evidence be necessary to show
which of the clauses contained in the
paper referred to was read at a meet-
ing between the parties, the statute is
in direct opposition to such proofs,
and accordingly they cannot be admit-
ted. Brodie v. St. Paul, 1 Ves. Jr.
326. Thus, too, if an instrument has
been designed as a deed, but from the
omission of circumstances requisite to
its validity, or from a change in the
relative situation of the parties, it is
deprived of its specific operation, it
will nevertheless be received in equity
as an agreement, or as evidence of an
agreement ; as where a woman, being
about to marry, gave bond to her in-
tended husband, with a condition that
in ease the marriage should take effect,
she would convey all her lands to her
husband and his heirs ; and the mar-
riage ' having taken eifect, the wife
died, and then the husband died, and
the heir of the husband brought his
bill against the heir of the wife to
compel a conveyance ; it was deter-
mined that the bond was a written
evidence of the agreement of the
party, and that that agreement, being
for a valuable consideration, should
be executed in equity. Cannel v.
Buckle, 2 P. Wms. 242. But to be

SEC. 370.J MEMORANDUM OE NOTE IN WEITIN-G. 717

Where a lessee agreed to grant an underlease, and signed
the following receipt : " Received of Mr. Dolling the sum of
£10 as part purchase-money of £390, of four cottages (de-
scribing them), the lease and counterpart to be paid for by
Mr. Dolling " ; it was held that the receipt was not a suffi-
cient memorandum to satisfy the statute, as the interest
to be granted was not specified.^ So a letter, from the
terms of which the exact quantity of goods said to be con-
tracted for can be ascertained by subsequent measurement,
hut from which it cannot he ascertained that the goods are the
special goods contracted for, is not sufficient.^ Where the
agreement was for a sale according to the valuation of two
persons, one to be chosen by each party, or an umpire to be
appointed by those two in case of disagreement, a bill for
specific performance, praying that the court would appoint a
person to make the valuation or otherwise ascertain it, was
dismissed. "The only agreement," said Sir William
Grant, " into which the defendant entered, was to. purchase
at a price, to be ascertained in a specified mode. No price
ever having been fixed in that mode, the parties have not
agreed upon any price. Where, then, is the complete and
concluded contract which this court is called upon to exe-
cute? The price is of the essence of a contract of sale."^

binding within this statute, u, writing were furnished on the faith of the

should always import the assent and promise to indorse. Held, that tlie

privity of both the parties in respect to acceptance of the terms of the letter,

the transaction itself. A mere entry, written on the back of it, was a sufficient

therefore, in a steward's book of con- writing, within the statute of frauds,

tracts with the tenants, was not al- to bind the party who thus promised

lowed to be evidence itself of an to become indorser. Ome v. Cook, 31

agreement for a lease between a lord 111. 238 ; S. P. Otis v. Hazeltine, 27

and tenant. Charlewood i/. Bedford, Cal. 80. A dated writing running

1 Atk. 497. " received of " J. " fifty dollars in part

1 Dolling t). Evans, 36 L.J. Ch. 474. payment of a house" described.

2 Carroll v. Cowell, 1 ,Tebb. & Sy. "The full amount is §1,700. This
43 ; and see Morgan v. Sykes, cited in bargain is to be closed inside of ten
Coats V. Chaplin, 3 Q. B. 486. A days from date hereof," is a sufficient
party desiring to purchase goods memorandum of sale within the stat-
wrote a letter to his merchant, stating ute. Hurley v. Brown, 98 Mass. 545.
the terms upon which he wished to The officer's return of a sale of an
buy, and offering a certain person as equity of redemption on execution is
the indorser of his notes ; on the back » sufficient memorandum thereof in
of this letter, the party offered as in- writing to bind the purchaser under
dorser wrote a note accepting the the statute of frauds. Sanborn v.
terms mentioned in the letter, and Chamberlin, 101 Mass. 409.

signed his name to it. The goods ' Milnes v. Gery, 14 Ves. 406 ; and

718 STATUTE OF rKATTDS. [CHAP. Xin.

Again, an agreement between A, a lessee of a mine, and B,
to become partners in the mine, was held not to be suffi-
ciently proved by a receipt signed by A, and given to B for
a sum as B's share of the head rent of the mine, although
the sum Avas exactly one-half of the rent. "Though the
court," said Lord Ckanwoeth, "has struggled to bring
within the description of a signed agreement any instrument,
however informal, which does in truth disclose what the
terms of the contract were, it has never repealed the statute
of frauds by holding a writing to be within its meaning
which has not that effect ; that is to say, which does not hy
plain words or reasonable inference disclose what was the con-
tract of the parties." ^ In a case where the bill was brought
for a specific performance from letters which had passed
between the parties, it appeared that a certain number of
years' purchase was to be given for the land, but it could not
be ascertained whether the rents upon a few cowgates were
5s. or Is., and although there was no other doubt, Loed
Hakdwicke held that such an agreement could not be car-
ried into execution. He said that in these cases it ought to
be considered whether at law the party could recover dam-
ages ; for, if he could not, the court ought not to carry such
agreements into execution.^ An agreement for a lease which
does not state the commencement or duration of the pro-
posed term, is" not sufficient,^ even when ratified by the
proposed lessee.'* Where the plaintiff relied on a letter writ-
ten by the defendant, in which the defendant agreed to take
a house for seven years on certain terms, but in which the
day of the commencement of the lease was not mentioned;
and on another letter from the defendant, mentioning a day
of commencement, and adding terms to which the plaintiff
did not agree ; it was held that there was no memorandum of
an agreement sufScient to satisfy the statute." But an agree-

see Wilks v. Davis, 3 Mer. 507 ; Vick- Davis v. Jones, 25 L. J. C. P. 91 ;

ers V. Vickers, L. R. 4 Eq. 529. Clarke v. Fuller, 16 C. B. (N. S.) 24;

1 Caddick u. Skidmore,^2 De G. & Gardner v. Hazleton, 121 Mass. 494.
J. 56. ^ * Bayley v. Fitzmaurice, 8 E. & B.

2 Lord Middleton o. Wilson, Sugd. 679 ; Eitzmaurice v. Bayley, 9 H. L. C.
V. & P. 13th ed. 109 ; and see Dart V. 78.

& P. 5tli ed. 220. = Nesham v. Selby, L. R. 7 Ch.

8 Cox V. Middleton, 2 Drew. 209; 406, affg. S. C. L. R. 13 Eq. 191 ; and

Gordon v. Trevelyan, 1 Price, 64 ; see Beaumann v. James,L. R. 3 Ch. 508.

SEC. 371.1 MEMORANDUM OR NOTE IN "WRITING. 719

nient for a lease at three lives on thirty-one years is not
invalid because the agreement does not name the lives, nor
provide by whom they are to be nominated, provided the
lives nominated by the person seeking specific performance
were in existence when the agreement was entered into.^ So
an agreement that a royalty of 6 d. per ton should be paid on
any minerals, and that any mines required to be left by a
certain railway company were to be paid for as if gotten, was
held to be too uncertain to be enforced, there being no means
provided for ascertaining what amount would have to be paid
for.2 So specific performance of an agreement to purchase
one-third of a foundry was refused on the ground of uncer-
tainty ; the contract not specifying what portion of the pur-
chase-money was to be left in the business, but only a "large
portion," and not stating when it was to be paid, or how to
be secured, nor what interest was to be allowed in the
meantime.^

In Wood V. Midgley,* a memorandum that A had paid to
B £50 as a deposit in part payment of £1,000 for the pur-
chase of a house, the terms to be expressed in an agreement
to be signed as soon as prepared, was held not to be suffi-
cient. But where the agreement was for the sale of an
estate for £3,000, "and the further sum of £20 per cent on
any sum the property may realize above that sura at the sale
by auction advertised to take place " the next day, it was
held that the contract was sufficiently certain, and might be
enforced;^- and where at the time the contract was entered
into, it was agreed that the goods purchased should be paid
for by a check on the defendant's brother, it was held that
the omission of that stipulation did not vitiate the memoran-
dum.®

Sec. 371. Sale by Auction; Memorandum must be Attached
to, or Refer to Conditions of Sale. — Upon a sale hy auction,
under conditions of sale, the document signed hy the auctioneer
must either he attached to, or clearly refer to, the conditions, in

1 Fitzgerald o. Vickere, 2 Dr. & * 5 D. M. G. 41 ; and see Ridgway
Wal. 298. V. Wharton, 3 D. M. G. 677.

2 Williamson v. Wootton, 3 Drew. ^ LangstaflE u. Nicholson, 25 Beav.
210. 160.

8 Cooper V. Hood, 26 Beav. 293. « Sarl v. Bourdillon, 1 C. B. (N.

S.) 188.

720 STATUTE OP PKATJDS. [CHAP. XIII.

order to constitute a valid contract?- The memorandum of an
auctioneer of a sale of real estate must describe the estate
with such definiteness, that it can be identified without
recourse to parol evidence. Thus, a memorandum as fol-
lows: "Lot No. 2, 113 acres, W. R. Scales, at $30 per acre,"
was held to be insufficient, although a plan having a lot num-
bered " 2 " upon it was shown to the bidders.^ So on an
order of sale issued on a judgment and decree of foreclosure
of a mortgage of real estate, an endorsement thereon by the
sheriff, " Sold to A B for $ 2,400, October 16, 1869, C. D.
Sheriff," was held insufficient as a memorandum or note.^
But an indorsement made by an auctioneer upon a mort-
gage, of the sale of the lands described in, and which were
sold by him under it, as follows : " The within property was
this day sold by me as agent of G, as administrator of the
mortgagee, J, deceased, for $2,300 at public auction, to E,
March 23, 1869," was held sufficient.* While an auctioneer
may bind the parties by a memorandum of sale, either of
goods or land, if made at the time of sale, and after the bid is
publicly announced;® yet it seems that this is not the rule
when the vendor himself acts as auctioneer, or even when
the sale is made by any person who has an interest therein.
Thus, a trustee who, at an auction sale, under a deed of
trust, acts as his own auctioneer, cannot bind his purchaser
by a memorandum of the sale made by himself, because such
memorandum is not executed by the "party to be charged
"therewith, or some other person by him thereto lawfully

1 Hinde v. Whitehouse, 7 East, ' Eidgway v. Ingram, 50 Ind. 145.
558 ; Kenworthy v. Scofleld, 2 B. & C. « Lewis v. Wells, 50 Ala. 198.
945; Coles «. Trecothick, 9 Ves. 234; ''Walker v. Herring, 21 Gratt.
Eiley ■■. Farnsworth, 116 Mass. 223; (Va.) 678. In this case an auctioneer
Tallman v. Franklin, 14 N. Y. 684. while conducting a sale of real estate

2 Adams v. Scales, 57 Tenn. 337. entered the name of W in his book as
It was also held in this case that where the purchaser of the property. On
the owner of the property is present the following day his partner, who
at the sale and directing it, the auc- was not present at the sale, entered
tioneer engaged merely to cry the the name of H as joint purchaser
bids and knock off the property, had with W. He did this without com-
no authority to make a memorandum municating with H, and without au-
of the sale. But this would depend thority from him. Held that H was
upon the circumstances, and ordinarily not bound. Morton v. Dean, 13 Met.
such a memorandum would he suifi- (Mass.) 385; Eiley v. Farnsworth,
eient. Gill v. Hewitt, 7 Bush. (Ky.) 116 Mass. 223.

10.

SEC. 371.J MEMORANDUM OB NOTE IN "WRITING. 721

authorized," as required by the statute of frauds.^ The rule
with reference to memorandums of such sales is the same as
in reference to others, and a memorandum, to be sufficient
within the statute of frauds, must set out the contract with
such reasonable certainty that its terms may be understood
from the writing itself, without recourse to parol proof. The
fact that such memorandum is indorsed on the order of sale,
but ivithout any reference to it for the ascertainment of the thing sold,
is no better than if indorsed on any other paper.^ A general
memorandum entered in a book by the auctioneer at the com-
mencement of an auction sale, showing the name of the per-
son on whose account the sale is made, the nature of the
property, the terms of payment, referring to entries follow-
ing for the names of purchasers and lots struck off to each,
and signed by the auctioneer, under which he enters the
name of each purchaser, the description of the goods sold,
and the price, is a sufficient memorandum of each sale within
the statute of frauds. It is not necessary that such general
memorandum should be made as often as a parcel of goods is
sold, even though the sale is adjourned to and continues on
the second day without any repetition of the memorandum.^
It must be one which contains, expressly or by necessary
implication, all the material terms of the contract. A
draft of a deed poll, to be executed by the grantors, and

^ TuU V. David, 45 Mo. 444. In sufficient certainty. A memorandum

Bent V. Cobb, 9 Gray (Mass.) the same sufficient in other respects is not ren-

rule was adopted where a guardian dered invalid because it omits the

acted as auctioneer. middle letter of the vendee's name, as

2 Ridgway v. Ingram, ante; John- "Benjamin Mussey" when his name
son V. Buck, 35 N. J. L. 338. In Mor- was Benjamin B. Mussey, if it is
ton V. Dean, 13 Met. (Mass.) 385, an shown by parol that he is known by
auctioneer on selling real estate to S one name as well as the other. Fes-
D at auction, after exhibiting written senden v. Mussey, 11 Cush; (Mass.)
conditions of sale made a memoran- 127. Where the buyer of real estate
dum as follows : " Sale on account of at auction then signs an agreement of
Messrs. Morton and Dean, assignees sale mth a stipulation for a deposit
of the Taunton Iron Company, of the in which the amount of deposit an-
real estate, nail works, water privilege, nounced by the auctioneer has not
buildings, and machinery agreeably been inserted, but which is otherwise
to the plans and schedule herewith, sufficient, there is a sufficient memo-
Sale to Silas Dean for |30,300 April randum to enable the auctioneer to
5th, 1843," and it was held not suffi- sue for the amount of the deposit,
cient because it did not contain the Thompson u. Kelly, 101 Mass. 291.
essential terms of sale, nor refer to ^ Price v. Durin, 56 Barb. (N. Y.)
the written conditions of sale vfith 647.

722

STATUTE OF FEAITDS.

[chap. XIII.

which does not contain the purchaser's obligations, is not
sufficient ; still less is such a draft which is only partly
completed at the time when the purchaser revokes his bid.
The capacity in which the auctioneer acts should appear, the
rule being that to make such an execution of a written con-
tract for the sale of real estate valid and effectual, it must
appear from the paper signed by the agent that the agent
acted in that capacity, and it must also appear who the. prin-
cipal was.^ In reference to the requirements of a memoran-

1 InPinckney v. Hagadorn, 1 Duer.
(N. Y.) 89, which was affirmed by the .
Court of Appeals, it was held that
the statute was sufficiently complied
with, where the entry by an auction-
eer of the sale in which the name of
the principal appears, is signed by
the auctioneer with his own name,
without any reference to his character
as agent. The court say : " The auc-
tioneer's entry furnishes the name of
the principal ; and although that name
does not appear in the subscription,
the intention to bind him, and not the
auctioneer personally, is perfectly
plain, and makes it the contract of
his principal." It will be seen that
the name of the principal was incor-
porated in the memorandum, and the
intention was manifest. In Tallman
r. Franklin, U N. Y. 584, the auc-
tioneer attached a letter, signed by
the ownfer, which stated the terms of
the sale, on a page of his sale book,
then made the residue of the entries
requisite to constitute a memorandum
of the contract and- subscribed his
name to it, and it was held that the
letter was to be taken as a part of
the memorandum subscribed by the
auctioneer, and rendered it sufficient
within the statute. The name of the
principal was here also incorporated
in the contract. In Bush v. Cole, 28
N. Y. 269, the action was brought by
the purchaser against the auctioneers,
who sold the house for a less sura,
than was authorized by the owner,
who refused to give title, and it was
held that the contract was not binding
upon the owner, for the reason among
others, that the contract of sale " did

not show who the owner of the premi-
ses was."

In Townsend v. Corning, 23 Wend.
(N. Y.) 435, it was decided that a
covenant for a sale of land, as well
as a deed passing an interest in land,
where the contract is made by an
attorney/ in fact, to be valid, must be
executed in the name of the principal
by his attorney, and that his own name
is not enough. Bronson, J., who de-
livered the opinion of the court, cites
from Combe's case, 9 Coke, 76, where
the rule is laid down " that when any
one has authority, as attorney, to do an
act, he ought to do it in his name who
gives the authority, for he appoints the
attorney to be in his place, and to
represent his person; and therefore,
the attorney cannot do it in his own
name, nor as his proper act, but in the
name and as the act of him who gives
the authority." He also cites from
Bac. Abr. and numerous cases sus-
taining this doctrine. If this rule be
applicable, then the defendant not
being named in any way in the con-
tract, and it being in the name of her
husband, she would not be liable for
his acts, even if authorized.

In St. John v. Grfflth, 2 Abb. (K
Y.) 198, there was a part performance
of the contract by the defendant and
an entire performance by the plaintiff,
and it was decided that the defendants
would be liable, in an action of this
nature, upon the facts presented. It
is nowhere decided that an agent or
attorney can bind his principal in a
contract for the sale of lands where
he enters into the contract in his own
name, and there is an understanding

SEC. 371.J MEMORANDUM OE NOTE IN "WRITING.

723

dum made by an auctioneer, it may be said that in order to
be valid, it must have been made contemporaneously ivith the s«Ze,'
must contain the names of the vendor and vendee,/^ a description of

by the vendee that he was the owner
of the premises. He may be liable
personally in damages for a failure to
fulfil, but to hold that such a con-
tract is binding upon the party not
named or referred to in any form, and
not known at all as a contracting
party, would be in direct violation of
the statute of frauds before cited.
Where there is nothing in the body
of the instrument, or in the form of
a party's signature to indicate that the
obligation thereby created was in-
tended to be any other than a personal
obligation on liis part, parol evidence
is inadmissible to show that the agree-
ment was in fact the obligation , of
third persons, and that such party
signed it as their agent. Babbett v.
Young, 51 Barb. (N. Y.) 466 ; Chap-
pell I. Dann, 21 Barb. (N. Y.) 17;
Williams v. Christie, 10 How. (N. Y.)
12; Lincoln v. Crandell, 21 Wend.
(N. Y.) 101.

1 Smith V. Arnold, 5 Mass. (XJ. S.)
414; Buckmaster v. Harrop, 13 Ves.
456; Gill v'. Bickell, 2 Cush. (Mass.)
355 ; Horton v. McCarty, 53 Me. 394.
And it must have been made by the
auctioneer or his clerk. If it was
made by the vendor or his agent, it
has no validity. Thus, in Bawber v.
Savage, 56 Wis. 110; 38 Am. Eep.
723, it appeared that soon after real
property of the plaintiff had been bid
off by defendant at an auction sale,
the defendant orally agreed with the
plaintiff to pay a certain part of the
price the next day, and the remainder
a few days later. Soon after the sale,
also, the plaintiff's agent requested the
defendant to make a deposit with him
for the plaintiff of some portion of the
purchase-money; and upon the defend-
ant's excusing herself from so doing,
and promising to make it all right with
the plaintiff, he drew up a memoran-
dum of the sale, and signed it for the
plaintiff ; but this was never delivered
to, or accepted, or assented to, by the

defendant. No other memorandum of
the sale was made by the auctioneer
or any other person. It was lield that
the sale was invalid under the statute.
In Price v. Durin, 56 Barb. (N. Y.) 647,
the auctioneer's clerk entered the pur-
chaser's name as each lot was knocked
off, and at the close of each day's sales
signed the book, and it was lield to be
ii memorandum made at the time of
sale, within the statute. The time
when a memorandum was in fact
made may always be shown by parol.
Hewes v. Taylor, 70 Penn. St. 387.
That an auctioneer's memorandum
should be made at the time, see, in
addition to the cases cited, Williams
V. Bacon, 2 Gray (Mass.) 387 ; Means
c. Carr, 1 H. & N. 484. But this is not
the rule as to sales made by sheriffs
or other ofllcers upon an execution,
and it has been held that it need not
in all cases be signed by the identical
deputy who made the sale. This would
depend upon the provisions of the stat-
ute as to who should make the return.
Barclay v. Bates, 2 Mo. App. 139 ;
Hanson v. Barnes, 3 G. & J. (Jld.)
359.

^ Knox V. King, ante. See Walsh
V. Barton, 24 Ohio St. 28; Grafton
V. Cummings, 99 U. S. 100. Where a
pew in a church was sold at auction,
and the only memorandum of the sale
was an entry made by the auctioneer
on a chart or plan of the ground floor
of the church, exhibited at the sale, of
the name of the purchaser, and of
the sum bid by him, — held, that the
memorandum was not sufficient with-
in the requirements of the New York
statute ; although, at the time of the
auction, a written or printed adver-
tisement, containing the conditions of
sale, was exhibited and read to the
purchasers. Baptist Church v. Bige-
low, 16 Wend. (N. Y.) 28. A letter
containing the terms of an auction
sale was pinned into the auctioneer's
book, and entries of purchasers were

724

STATUTE OF FKATJDS.

[chap. XIII.

the property sold and the terms of sale^ so that the resort to
extrinsic evidence will be unnecessary ; and if aid is required
iiova. the posters, or advertisements of the sale, they must be
referred to in the memorandum or they cannot be regarded
as a part thereof or used in evidence. Thus at a sale by
auction, the plaintiff was declared the purchaser, and the
following memorandum was added to the conditions of sale,
and handed to the plaintiff : " The property duly sold to Mr.
S., butcher, Pinxton, and. deposit paid at close of sale. H.

afterwards made therein and signed
by the auctioneer, and it was held
that these papers should be taken
together as a memorandum of the
sale. Tallman v. Franklin, 14 N. Y.
584. A vendee of goods under an
oral contract signed an order for
them on the terms and conditions of
a printed memorandum which was de-
livered by the vendor to the vendee
as a statement of the bargain, and
which spoke of " this contract." The
order mentioned a place for delivery,
that the vendee would send his own
vessels for the goods, and, taken all
together, a contract, a seller, a pur-
chaser, a thing sold, a price, and
terms of payment, appeared. A pre-
cisely similar paper was signed simul-
taneously by the vendor, except that
it did not contain the name of the
vendee. Held, that the two papers
might be taken together as a memo-
randum of the sale so signed by the
vendor as to charge him, notwith-
standing that both of them con-
tained the words " we will send our
own vessels," and that after they
were signed the vendor wrote on the
back of the one signed by the vendee
the words " to be shipped immedi-
ately, if vessels are not sent." Lerned
V. Wannemacher, 9 Allen (Mass.).

1 Shied V. Stamps, 2 Sneed (Tenn.)
172; Doty v. Wilder, 15 111. 407;
Stafford v. Lick, 10 Cal. 12 ; Nichols
V. Johnson, 10 Conn. 192; Riley v.
Farnsworth, 116 Mass. 223. In Cali-
fornia and Oregon by statute, an entry
by an auctioneer of a sale at auction
in his sales-book, at the time of sale,
of the kind of property sold, the

terms of sale, the price, and the
names of the purchaser and person
on whose account the property is
sold, is a good memorandum, and it
may be understood that this is the
rule as to the elements required in
such memorandums in all the States.
An imperfect memorandum of the
sale of real estate by an auctioneer,
and a letter written by the purchaser
to the seller, cannot be connected to-
gether by parol so as to take the case
out of the statute, there being no ref-
erence in the one to the other. An
auctioneer is the agent of the pur-
chaser of either lands or goods at
auction, to sign a contract for him
as the highest bidder. And if he
signs the memorandum of sale in
the name of the purchaser immedi-
ately on receiving the bid and knock-
ing down the hammer, this is a suffi-
cient signing of the contract within
the statute of frauds. But such
memorandum cannot have the effect
to take a contract out of the statute
where neither the auctioneer, nor his
clerk, nor the vendor or vendee has
signed the same. A writing, what-
ever its particular form, will be a
sufficient memorandum or note in
writing, as required by the statute
of frauds, provided it contains the
essential terms of the contract, ex-
pressed with such certainty that they
may be understood from the instru-
ment itself, or from some other writing
to which it refers, without recourse to
parol proof, and be signed by the
party to be charged. If it is a sale
of lands, it must state the price.
Adams v. McMillan, 7 I"ort. (Ala.) 73.

SEC. 371.] MEMORANDUM OE NOTE IN WRITING. 725

M., auctioneer." At the same time the auctioneer gave the
plaintiff the following receipt: "Received of Mr. S. the sum
of £21 as deposit on property purchased at ^£420, at Sun
Inn, Pinxton, on the above date. Mr. C. Pinxton, owner.
Received by H. M., 29th March, 1880. H. M." The conditions
contained no description of the property sold. Posters describing
the property to be sold had been previously published, but
there was not one of such posters in the room at the sale.
In an action by purchaser against the vendor for a declara-
tion that the two documents signed by the auctioneer con-
stituted a contract, and for specific performance, it was
held, first, on the authority of Long v. Millar,^ that the two
documents signed by the auctioneer might be taken together ;
second, that the word " property " was not a sufficient de-
scription of the thing sold ; third, that the poster or parol
evidence could not be broi^ght in to supply the description,
and the action was dismissed.^ Of course, in a memorandum
of this character no formality is required. It is not expected
that the terms of sale will be set forth with technical preci-
sion, but it is sufficient if it contains within itself, or by
reference to other writings, the names of the parties, a de-
scription of the property, and the essential terms of the sale
stated in any form so that they can be ascertained without
resort to parol proof thereof,^ and it may be written with ink,
a pencil, or anything which intelligibly sets forth the terms
of the agreement.* If the sale is of real estate, in those
States where the statute requires authority to sign the mem-
orandum to be in writing, neither a sale or memorandum
made by an auctioneer has any validity unless authority is
conferred upon him in writing, and the matter is not aided
by the circumstance that the vendor was himself present at
the sale and orally assented thereto. But where no such

^ 41 L. T. Kep. (N. S.) 306; L. E. 4 memorandum unless the memoran-

C. P. Div. 450. dum made by the auctioneer refers

2 Ogilvie V. Foljambe, 3 Mer. 58; to them. O'Donnell v. Leeman, 43

Wood V. Scarth, 26 L. T. Eep. 87; Met. 58. The purchaser need not

Sale V. Lambert, L. E. 18 Eq. 1 ; sign at an auction sale. Bleecker v.

Potter V. Duffield, id. 4 ; Eossiter v. Franlclin, 2 E. D. S. (N. Y. C. P.) 93.
Miller, L. E. 3 App. Cass. 1140 ; » Daly v. Wilder, ante.

Shardland v. Cotterill, 44 L. T. N. * Clason i>. Bailey, 14 John. (N. Y. )

S. 549. The notices of sale, whether 484 ; Merritt v. Clason, 12 id. 102 ;

posters or newspaper advertisements, Geary v. Physic, 5 B. & C. 234.
cannot be used as a part of the

726 STATUTE OF FEAT7DS. [CHAP. XIII.

statutory provision exists, both in the sale of real and personal
estate, the auctioneer acts as the agent of both parties in the
making of the memorandum.^ An auctioneer is the agent
of the vendor alone until the bid is knocked off, when he
becomes also the agent of the vendee for the purpose of
perfecting the sale, and it is upon the ground of this dual
capacity that his memorandum of a sale made by him at the
time thereof, and before this agency ceases, is binding upon
both,^ provided, however, that this rule extends only to third
persons, acting as auctioneers, either professionally or by
authority, and does not extend to sales made by a party
himself, or his agent,^ but it does apply to sales made by
sheriffs or other public officers, who by law are empowered
to sell property at public sale ; * and according to the pre-
ponderance of authority, this power extends to auctioneer's
clerks, and a memorandum of a sale made by them will bind
the parties.^

In Pierce v. Corf,^ the plaintiff sent a mare to bie sold by
auction at the defendant's repository ; the defendant adver-
tised the mare for sale by auction on the 28th March, 1872,
and circulated a printed catalogue of the horses to be sold at

' Endicott v. Penny, 22 Miss. 144 ; Jenkens v. Hogg, 2 Tread. (S. C.) 821 ;

McComb V. Wright, 4 John. Ch. (N. Y.) Christie v. Simpson, 1 Rich. (S. C.) L.

659; Gill u. Hewitt, 7 Bush. (Ky.) 407; Ennis y. Waller, 3 Blackf. (Ind.)

10 ; Singstack v. Harding, 4 H. & J. 472 ; Conington v. Anderson, 5 Munf .

(Md.) 186; Adams v. McMillan, 7 (Va.) 32; Robinson w. Garth, 6 Ala.

Port. (Ala.) 73; Cleaves u. Foss, 4 204; Hutton v. William, 35 id. 503;

Me. 258; Smith v. Jones, 7 Leigh. Hart v. Woods, 7 Blackf. (Ind.) 568;

(Va.) 165; White v. Proctor, 4 Gordon u. Sims, 2 McCord (S. C.) Ch.

Taunt. 209; Parton v. Crofts, 'l6 C. 151.

B. (N. S.) 11; Stansfield r. Johnson, 1 » Adams f. McMillan, 7 Port. (Ala.)

Esp. 101. 73; Frost v. Hill, 3 Wend. (N. Y.) 386;

2 Episcopal Church v. Wiley, 2 Christie v. Simpson, 1 Rich. (S. C.) L.
Hill (S. C.) 584; Burke u. Haley, 7 407; Doty r. Wilder, 15 111. 407; Smith
111. 614; Baptist Church v. Bigelow, v. Jones, 7 Leigh. (Va.) 165; Alna v.
16 Wend. (Mass.) 28; Smith v. Jones, Plummer, 4 Me. 258; Gill ;;. Bicknell,
7 Leigh. (Va.) 165; Bennett v. Car- 2 Cush. (Mass.) 355; Coles .-. Treco-
ter, Dudly (S. C.) 142; Anderson v. thick, 9 Ves. 234 ; Henderson w. Barn-
Chick, 1 Bail. (S. C.) 118; Meadows wall, 1 Y. & J. 387. But this rule has
V. Meadows, 3 McCord (S. C.) 458; been held not to apply to brokers'
Champlin v. Parrish, 11 Paige Ch. clerks. Johnson v. Mulry, 4 Rob.
(N. Y.) 405. (N. Y.) 401 ; Henderson o. Barnwall,

8 Adams v. Scales, 1 Baxt. (Tenn.) ante; Boardman u. Spooner, 13 Allen

387 ; Walker y. Herring, 21 Gratt.(Va.) (Mass.) 353. But see Townsend v.

678. Drakeford, 1 C. & K. 20.

4 Brent v. Green, 6 Leigh. (Va.) 16; ^ l. r. 9 q, -q 210.

SEC. 371.J MEMOBAJ^DTJM OE NOTE IN WRITING. 727

his sale, with conditions of sale annexed, in which the plain-
tiff's mare was described as " lot 49." The defendant had a
sale ledger which was headed, "Sales by auction, 28th March,
1872," in which the plaintiff's mare was also numbered 49 ;
but neither the catalogue nor the conditions of sale were
annexed to the sales ledger, nor were they referred to therein.
On the 28th March, 1872, the lots described in the catalogue
were put up by the defendant for sale under the conditions.
The plaintiff's mare was put up for sale, and knocked down
to M for £33, and thereupon the defendant's clerk wrote in
the columns of the sales ledger left blank for this purpose
the name of M as purchaser, and the price. M afterwards
refused to take the mare. It was held that the catalogue and
conditions of sale were not sufficiently connected with the
entries in the sales ledger to make a note or memorandum in
writing of a contract by M to satisfy the statute. The
ground upon which a memorandum made by an auctioneer
is made binding is, that he acts as the agent of the parties ;
therefore it follows that a memorandum in order to be bmd-
ing, must be made at the time of the sale, as when the sale is
completed and he has left the premises, his agency, and con-
sequently his authority, is gone.^ A memorandum made by

1 Walker w. Herring, anf€ ; Mussey the statute of frauds. But in the nisi
V. Fessenden, ante. In the case of prius case of Stansfield v. Jolinson, 1
Simon v. Motives, 3 Burr. 1921, Esp 107, where the case of Simon o.
it appeared that an auctioneer had Motivos was cited, Eyre, C. J., was of
knocked down a lot to the highest opinion that the authority of that
bidder, and put down his name in the case applied only to the sale of goods,
usual manner as the purchaser of the The same distinction was recognized
goods, and the purchaser came the by the court of Common Pleas, in
next day and saw the goods weighed; Walker v. Constable, 1 B. & P. 306,
an objection was made that the con- and in the case of Buckmaster v. Har-
tract not being in writing, was void by rop, 7 Ves. Jr. 344, was ratified by the
the statute of frauds ; but the court adoption of Sir William Grant, M.
were clearly of opinion that the auc- R., who observed that whatever is the
tioneer must be considered as the authority of the case of Simon v. Mo-
agent for the buyer after knocking tivos or Metivier, it has been held not
down the hammer, as well as for the to extend to land. It appears from
seller, and that his setting down the the cases concerning sales by auction,
buyer's name and the price was sufli- that the agent's authority need not be
cient to take it out of the statute, in writing, which point was directly
They laid also some stress upon the determined in Waller v. Hendon, and
buyer's coming the next day and sde- Cox, Vin. Abr. tit. contract and agree-
ing the goods weighed ; and they in- ment (H) 45, in which the decree of
clined generally to think that buying the Master of the Rolls was affirmed
and selling at auctions was not within on appeal by Lord Macclesfield, who

728

STATUTE OP PEAUDS.

[chap. XIII.

the auctioneer must be produced, and it will not be presumed
that he made one, as the presumptions in favor of the per-
formance of official duties will not stand for proof that there
was a written memorandum.^

said that, an authority to treat or buy
for another may be good without writ-
ing, though the contract itself must
be in writing. Wedderburne v. Carr,
in the Exchequer, T. T. 1775, cited in
3 Woddeson's Lect. 427. See Coles v.
Trecothiclc, 9 Ves. Jr. 251.

It should be remembered that the
ground of the decision of Simon v.
Motivos was the constructive agency
of the auctioneer for the buyer after
knocking down his hammer. Accord-
ing to Payne v. Cave, 3 T. E. U8, the
bidder might retract his bidding at
any time before the hammer was
knocked down, till which time there
was the locus penitentiae. So that upon
a sale of chattels for the price of £W
or upwards, within the 17th section of
the statute, if the person making the
memorandum of the purchase by the
best bidder, is not in a capacity to be
considered by law as the agent for
both parties, the sale cannot be en-
forced for want of a memorandum or
note in writing, such as the statute
requires. Thus in Symonds v. Ball,
8 T. E. 151, where the aftermath of
land was sold by auction, by the cor-
poration of a borough, and the town
clerk, who acted as agent for the sel-
lers, wrote down the name of the pur-
chaser in the printed catalogue, and
the price to be given, for which the
purchaser at the same time gave his
promissory note ; the court were
clearly of opinion, that neither the
memorandum so made by the town
clerk, nor the note given by the pur-
chaser, could be deemed a sale or
demise in writing to answer the stat-
ute, nor could they be coupled together
in construction for that purpose. If
the inclination of the bench in the
above cited case of Simon v, Motivos
were to prevail, it would reduce all
these cases to a level by taking them
all out of the operation of the statute.
But that case was decided in favor of

the seller, not upon the broad ground
of treating it as out of the purview
of the statute of frauds, but on the
inference of agency in the auctioneer
on the part of the buyer as well as
the seller, and the validity of his
entry of the buyer's name, as a mem-
orandum and signature to satisfy the
requisition of the statute in question.
The case in the text of Symonds v.
Ball, it is plain, did not adopt the hint
afforded by the judges in Simon v.
Motivos, of emancipating the case of
auctions altogether out of the statute ;
for the want of a signing by the defen-
dant himself, or by an agent properly
authorized by him, was the reason of
the judgment of the court in his favor.
These cases, with a distinction be-
tween sales of land and goods, sup-
pose the efficacy of the signature of
one of the parties, without that of the
other to bind the person signing ; a
doctrine recognized expressly in chan-
cery in the case of Seton v. Slade, 7
Ves. Jr. 265. But are we to hold,
that the buyer is bound by such entry
of his name by the auctioneer, with-
out also understanding that the seller
is become bound at such stage of the
transaction to the buyer ■? Or are we
warranted in concluding that the name
of the seller is sufficiently signed by
being printed on the particular of sale?
The knot in which these and some
other difficulties have entangled this
question, may be cut by adopting the
opinion of the judges in Simon v.
Motivos, and understanding it as ex-
tending to sales of land as well as of
goods ; it is not likely to be unloosed
by the multiplication of artificial dis-
tinctions. A line of some breadth
should be taken in deciding questions
upon a law framed for the prevention
of fraud and perjury, and for promot-
ing honor and certainty in the trans-
actions of property.

1 Baltzer v. Nicolay, 53 N. Y. 467.

SEO. 373.] MEMOEANDUM OE NOTE IN WRITING. 729

Sec. 372. Sheriffs, Constable's, etc.. Returns of Sale on Execu-
tion. — The return of a sheriff or other officer authorized by
law to sell property upon mesne or final process, properly made
and containing the material elements of the sale, is a suffi-
cient note or memorandum thereof to bind the parties under
the statute,^ because in such cases the officer's return becomes
a matter of record, and is conclusive upon all the parties
thereto.^ The certificate required by statute is the proper
evidence of a sale of land upon execution, etc., and no other
note or memorandum of such sale is required.^

Sec. 373. Recognition of Contract. — TVhere a contract in
writing, or note, or memorandum exists, which binds one party,
any subsequent note in writing signed by the other party is
sufficient to bind him, provided it either contains in itself the
terms of the contract, or refers to any writing which contains
them.* Thus, 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, and afterwards
wrote to the vendor complaining of a defect in the title, re-
ferring to the contract expressly, and renouncing it, and the
vendor wrote and signed several letters, mentioning the
property sold, the names of the parties, and some of the con-
. ditions 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 memorandum in

1 Robinson o. Garth, 6 Ala. 204 ; Eq. 151. And also as to an admin-
Stewart V. Garvin, 31 Mo. 36 ; Nichol istrator's sale made at auction under
V. Redley, 5 Yerg. (Tenn.) 63 ; Hand leave of the ordinary. Wolfe v.
V. Grant, 13 Miss. 508; Hanson v. Sharpe, 10 Rich. (S. C.) L. 60. But
Barnes, 3 G. & J. (Md.) 359; Seecrist not if the administrator acted as auc-
V. Twitty, 1 McMull (S. C.) 255; tioneer. Smith v. Arnold, 5 Mas.
Barney v. Patterson, 6 id. 182; Fen- (U. S.) 414. But a memorandum of
wick ». Eloyd, 1 H. & G. (Md.) 182; a sale by a commissioner appointed
Elf V. Gadsden, 2 Rich. (S. C.) L. 373. hy the court for that purpose is
And it has also been held that an binding upon the parties. Jenkens
entry by a master in chancery of a u. Hogg, 2 Treadw. (S. C.) Const. 821.
sale of land at auction by him under ^ Bott v. Burnell, 11 Mass. 163.
a decree is sufficient evidence of the ' Armstrong v. Vroman, 11 Minn,
sale, under the statute of frauds, 220.

whether made in his regular books * Drury v. Young, 58 Md. 546 ; 42

or on a separate piece of paper. Am. Rep. 343.
Gordon o. Sims, 3 McCord (S. C.)

730 STATUTE OF FEAT7DS. [CHAP. XIII.

writing binding the vendor under the statute, though neither
the original conditions and particulars, nor the memorandum
signed by the purchaser, mentioned or were signed by the
vendor.^

Sec. 374. Must be Concluded Agreement. — Although a con-
tract may he deduced from letters, or from various documents
containing the terms, there must he a clear accession on hoth
sides to one and the same set of terms,^ for if it appears that
the parties have never got beyond mere negotiation, no relief
can be obtained.^ "The court," said Loud Eldon, "is not to
decree specific performance unless it can collect, upon a fair
interpretation of the letters, that they import a concluded
agreement; if it rests reasonably doubtful whether what
passed was only treaty, let the progress towards the confines
of agreement be more or less, the court ought rather to leave
the parties to law than specifically to perform what is doubt-
ful as a contract. But it is also clear that the court is to put
the same interpretation upon correspondence, with reference
to this subject, as other persons would, reading the corre-
spondence fairly, with a view to collect ,the sense of it.*

Where the agent for the purchaser wrote to the agent of
the vendor, offering a price for a house, and the vendor wrote
across the letter " I agree to sell my house upon these terms,"
and thereupon his agent wrote to the purchaser's agent, " My
employer will take your offer," and added, " Make an appoint-
ment to meet and draw the agreements," it was held that
there was a sufficient contract.^ When an offer in writing is
made to sell on specified terms, and this is unconditionally
accepted or acted upon by the party to whom it is made
without express acceptance, there is a binding contract, which

1 Dobell V. Hutchinson, 3 Ad. & El. » See Felthouse o. Bindley, 11 C.
355; and see Powell r. Dillon, 2 Ball B. (N. S.) 869; Jordan ^. Norton, 4
& B. 416 ; Clinan v. Cooke, 1 Sch. & M. & W. 155 ; Hutchinson v. Bowker,
Lef . 33 ; Blagden v. Bradbear, 12 Ves. 6 M. & W. 535 ; Kennedy v. Lee, 3
466; Allen v. Bennett, 3 Taunt. 169; Mer. 451; Foster v. Rowland, 7 H. &
Verlander v. Codd, T. & R. 352 ; Lay- M. 103.

thoarp V. Bryant, 2 Bing. (N. C.) 735 ; * Huddlestone v. Briscoe, 11 Ves.

3 Sc. 238 ; Hammerley v. De Biel, 12 591 ; and see Stratford v. Bosworth, 2

C. & F. 45 ; Ridgway v. Wharton, 3 V. & B. 341 ; Ogilvie v. Foljamhe, 3

D. M. G. 696, per Lord Cranwokth. Mer. 53 ; Cheveley v. Fuller, 13 C. B.

2 Thomas v. Blackman, 1 Coll. 312, 122 ; Archer v. Baynes, 5 Exeh. 625.
per Knight BRnoE, "V. C. ^ Cowley v. Watts, 17 Jur. 172.

SEC. 375.] MEMORANDUM OR NOTE IN WRITING. 731

neither party can vary ; i but if the terms are not settled,
and anything remains to be done, the contract will not be
binding.2 " If," said Lord "Westbtjry, " there has been a
final agreement, and the terms of it are evidenced in a man-
ner to satisf}' the statute of frauds, the agreement shall be
binding, though the parties may have declared that the writ-
ing is to serve only as instructions for a formal agreement, or
though it may be an express term that a formal agreement
shall be prepared and signed by the parties. As soon as the
fact is established of the final mutual assent of the parties to
certain terms, and those terms are evidenced by any writing
signed by the party to be charged, or his agent lawfully
authorized, there exist all the materials which this court
requires to make a legally binding contract." ^

Where, after negotiations for the purchase of certain
tithes, in which the terms were discussed, but not finally
settled, the vendor wrote to his solicitor a letter which con-
tained the following passage : " Previously to paying the
amount (then followed an illegible word) for tithes, glebe,
etc., it would be advisable to have some information as to
title," it was held that the letter did not amount to a note or
memorandum in writing of a contract for the sale of lands
within the statute.*

Sec. 375. Additional Terms. — In order to constitute an
agreement, the answer to the written proposal must he a simple
acceptance of the terms proposed without the introduction of a
new and different term.^ Thus, an offer to grant an under-

1 Bird V. Blosse, 2 Vent. 361 ; Bac. between the letters and entries, as if
Abr. tit. Agreements (c) 3 ; Honey- they describe the quality and quantity
man v. Marryat, 21 Beav. 14 ; 1 Jur. of the thing sold differently, or vary
(N S.) 857; 6H. L. C. 112; Liverpool in the statement of the terms of the
Borough Bank v. Eccles, 4 H. & N. contract, and do not recognize the
139. same contract and refer to tlie same

2 Wood V. Midgeley, 5 D. M. G. transaction, they will, of course, fail
41 ; Rummens v. Robins, 3 De G. J. in establishing the bargain. Thus in
& S. 88. an action for the price of goods sold,

8 Chinnock v. The Marchioness of the plaintiff offered in evidence an

Ely, 4 De G. J, & S. 647. entry in a book of an order for flour,

* Savile v. Kinnaird, 11 Jur. (N. which had been read over to the de-

S.) 195. fendant, the alleged purchaser, at the

s Routledge v. Grant, 4 Bing. 653 ; time of the booking thereof, and

Hyde v. Wrench, 3 Beav. 334 ; Thorn- which purported to be a mere general

bury V. Bevill, 1 Y. & C. C. C. 654. order for forty sacks of flour called

If there is any material discrepancy thirds, at 58 s. per sack, and this order

732 STATUTE OP FRAUDS. [CHAP. XIII.

lease in reply to a proposal to take an assignment is not
sufficient.! So, where an offer by letter to supply goods is
accepted, but the answer adds a further stipulation to the
effect that goods already supplied shall be paid for at the
rate contained in the offer, that is a new term in the agree-
ment, and must be shown to be accepted.^

Sec. 376. immaterial Addition to Acceptance. — A.n immOr
terial addition to an acceptance of an offer will not vitiate a
contract? Where a proposal by a purchaser to take the
remainder of a lease was answered by a letter which, after
acceding to the proposal, added, " We hope to give you pos-
session at half quarter-day," it was held that the addition did
not introduce a new term, but that the acceptance was un-
conditional.*

Sec. 377. Conditional Acceptance. — If there is a simple
acceptance of an offer to purchase, accompanied by a state-
ment that the acceptor desires that the arrangement should
be put into more formal terms, the mere reference to such a
proposal will not prevent the court form enforcing the final
agreement arrived at. But if the agreement is made subject
to certain conditions then specified, or to be specified by the
party making it or by his solicitor, then, until those condi-
tions are accepted, there is no final agreement such as the
court will enforce.^ Thus, where the vendors of land, in a

being insufficient as a memorandum that he must take it altogether, and
for want of signature, the plaintiff then it was no recognition, but a re-
endeavored to satisfy the statute by pudiation of the contract sought to
connecting it with a. letter signed by be established by the entry. Cooper
the defendant, addressed to him, stat- v. Smith, 15 East, 103 ; Eichards v.
ing, " Your not sending the flour I Porter, 6 B. & C. 437 ; Archer u.
agreed with you -for, according to Baynes, 5 Exchq. 625; Smith i;. Sur-
time, I am now provided for. I ex- man, 9 B. & C. 561.
pected yours in the course of a week. i Holland v. Eyre, 2 S. & S. 194.
If I buy of any man I expect it ac- 2 Hey ward v. Barnes, 23 L. T. 68 ;
cording to time, or the bargain is and see Smith v. Surman, 9 B. & C.
void " ; but it was held, that the entry 561 ; 4 Mann. & R. 455.
and the letter referred to different s Gibbins v. North East Metropoli-
contracts, the one was evidence of an tan Asylum District, 11 Beav. 1.
absolute and unconditional contract 4 Clive v. Beaumont, 1 De G. & S.
of sale, and the other of a qualified 397.

and conditional bargain, and that the 6 Crossly v. Maycock, L. R. 18 Eq.
plaintiff could not avail himself of 180, per Jessel, M. R. If a memo-
the letter for one purpose, to bind the randum is only to become opera-
defendant within the statute, and re- tive upon a condition, it is not suffl-
nounce it for another purpose ; but cient. Thus, after the defendant had

SEC. 378.] MEMOKANDUM OR NOTE IN WRITING. 733

letter acknowledging tlie receipt of an offer by intending
purcliasers, wrote as follows : " Which offer we accept, and
now hand joii two copies of conditions of sale," and there-
. with enclosed a formal agreement, with conditions of a special
character, it was held that the acceptance was only condi-
tional, and that there was no final agreement of which specific
performance could be enforced as against the purchasers.^ In
Lucas V. James,^ on a treaty for an under-lease, a memorandum
of the terms of the intended agreement was prepared, stipulat-
ing that the lease should contain all usual covenants, and also
the covenants in the leases of the ground landlord ; and the
proposed lessee signed the memorandum accompanying his
signature, with the qualification that he agreed thereto, sub-
ject to there being nothing unusual in the leases of the ground
landlord. A draft of the proposed lease was afterwards sub-
mitted by the lessor's solicitors to the proposed lessee, who
made some alterations and returned the draft with a request
that the lessor would at once grant the lease so altered, or
refuse it. The lessor's solicitors sent the draft back the same
day, assenting to all the alterations except one, whereby the
proposed lessee had expunged a clause in the draft restrain-
ing any assignment or demise by him without the consent of
the lessor. It was held that, upon the return of the draft
lease, not acceding to all the alterations, and in the absence
of any proof that the lessor was previously bound by the
terms as to unusual covenants, introduced by the proposed
lessee on his signing the memorandum, the contract was
incomplete, and the proposed lessee was at liberty to deter-
mine the treaty.*

Sec. 378. Parol Acceptance of 'Written Offer. — A proposal
in writing, containing the terms of the proposed contract, signed

agreed verbally with the plaintiff's the part of the defendant, and there-
agent to transfer shares in a manu- fore parol evidence of his contract
facturing corporation to the plaintiff, was not objectionable on that ground,
and had written a letter to an agent Tisdale v. Harris, 20 Pick. (Mass.) 9.
to transfer the shares into the plain- ^ Crossley v. Maycock, L. R. 18
tiff's name, and transmit the certifi- Eq, 180 ; see also Stanley v. Dowdes-
cate to the defendant, the plamtiff's well, L. R. 10 C. P. 102.
agent signed a memorandum, agree- ^ 7 Hare, 410.
ing to pay the defendant the price of ^ And see Warner u. Willington,
the shares when the defendant should 3 Drew, 523 ; Ridgway v. Wharton, 6
furnish the certificate. Held, that H. L. C. 264; Smith u. Neale, 2 C. B.
there was not a contract in writing on (N. S.) 67.

734 STATUTE OF PKAUDS. [CHAP. XIII.

by the party to he charged, and accepted hy parol, by the party
to whom it is made, is a sufficient memorandum or note in
writing, to satisfy the statute.^ But a parol proposal, however
full and explicit, is not taken out of the statute hy any accept-
ance in writing? In Warner v. Willington,^ Kindeeslby,
V. C, said : " I think upon principle, that parol acceptance
is sufficient ; because when one party has signed - a written
proposal, and the other expressly accepts it by parol, as if he
says in express terms, ' I accept the proposal,' it appears that
that reduces it to a case of parol agreement come to between
the parties, and a memorandum of the agreement signed by
one, in which case it is clear that the signature of one party
is sufficient to bind him, although the other has not signed."-*
In a Massachusetts case ^ a memorandum as follows : " Will
deliver S. R. & Co. best refined iron, 50 tons within 90 days
at 5 cents per pound, 4 per cent cash. Plates to be 10 to 16
inches wide and 9 feet to 11 long. This offer good tiU
2 o'clock, Sept. 11, 1862. J. H. F., J. B. R," was held suffix
cient to bind J. H. F., he having signed the same in behalf
of a firm of which he was a member, and the plaintiff having
orally accepted the same within the time specified.

1 Ashcroft V. Morrin, 4 M. & Gr. writing expressed to be made between

451 ; Reuss v. Picksley, L. R. 1 Exch. the plaintiffs and tlie defendants, in

342 ; Watts v. Ainsworth, 3 F. & F. consideration of the agreement there-

12; 1 H. & C. 83; Smith v. Neale, 2 inafter contained on behalf of the

C. B. {N. S.) 67; Horsfall i'. Gamett, plaintiffs, agreed that they would pay

6 W. R. 387 ; Peek v. North Stafford- all moneys which then were or at any

shire Railway Co., 29 L. J. Q. B. 97. time should be due from J. E. & Co.

' Washington Ice Co. v. Webster, to the plaintiffs, not exceeding ^£35,000
62 Me. 341. A written offer by the by instalments of .£3,000 a year for
plaintiff, orally accepted by the de- five years, and two subsequent annual
f endant, cannot be enforced under the instalments of £10,000 ; and in con-
statute of frauds. Smith v. Gowdy, 8 sideration of the above the plaintiffs
Allen (Mass.) 566. But a written agreed that they would not charge
offer by the defendant, orally accepted more than five per cent interest to J.
by the plaintiff, is a sufficient memo- E. & Co.; and when all debts of J. E.
randum within the statute. Lerned v. &, Co., except £15,000, should have
Wannemacher, 9 Allen (Mass.) 412; been paid, would grant them a full
Sanborn v. Flagler, 9 id. 474. release. This agreement was signed

8 3 Drew, 532. by the defendants and handed by

* And see Benecke v. Chadwick, 4 them to the plaintiffs who had pressed

W. R. 687 ; Forster v. Rowland, 7 for it. The plaintiffs had acted upon

H. & N. 103; 30 L. J. Ex. 396. but never executed it. It was held

In Liverpool Borough Bank v. Ec- binding upon the defendants,
cles, 4 H. & N. 139, J. E. & Co. ^ Sanborn u. Flagler, 9 Allen

being indebted to the plaintiffs, who (Mass.) 474.
were bankers, the defendants by a

SEC. 383.] MEMOEANDtTM OR NOTE IN WRITING. 735

Sec. 379. Special Acceptance. — Where a letter contains
the entire terms of an agreement, it is not necessary for the
plaintiff to prove that he accepted the terms. If it require
the plaintiff to supply a term in the agreement, there must
be a special acceptance in writing supplying that term, in
order to take a case out of the statute.^

Sec. 380. Withdrawal of Offer. — When an offer in writing
is made by a vendor to sell on specified terms, and this is
unconditionally accepted, there is binding contract, which
neither party can vary ; but the vendor is entitled, at any
time before his offer has been definitely accepted, to with-
draw or add any new terms to his proposal. If these be
refused the treaty is at an end,^ and this, although a time is
fixed for acceptance.^

Sec. 381. Determination of Offer. — If the person making
an offer dies, becomes bankrupt, or sells before acceptance,
the contract is at an end.*

Sec. 382. Rejection of Offer. — Where an agreement has
been commenced by letter, but in the course of the treaty
an offer made in writing has been verbally rejected, the party
who has made the offer is relieved from his liability unless he
consents to renew the treaty.^ And the party who has re-
jected an offer cannot afterwards, at his own option, convert
the same offer into an- agreement by acceptance without a
renewed offer from the other party .^

Sec. 383. Acceptance must be in Reasonable Time. — In
order that an offer to sell may be binding upon the person
making it, it must be accepted within a reasonable time, and if
a person communicates his acceptance of an offer within a
reasonable time after the offer is made, and if within a rea-
sonable time of the acceptance being communicated no varia-

1 Boys V. Ayerst, 6 Madd. 316 ; and « Meynell v. Surtees, 25 L. J. Ch.
see Taylor v. Portington, 7 D. M. G. 257; 1 Jur. (N. S.) 737.

328. 5 Sheffield Canal Co. v. Sheffield &

2 Honeyman v. Marryat, 21 Beav. Rotherham Railway Co., 3 Rail. Cas.
14; 1 Jur. (N. S.) 857; 6 H. L.C.112; 121; Honeyman v. Marryatt, 21 Beav.
Chinnock v. Marchioness of Ely, 4 14; 6 H. L. C. 14.

De G. J. & S. 647 ; 6 N. R. 1. 6 Sheffield Canal Co. v. Sheffield &

2 Martin v. Mitchell, 2 Jac. & W. Rotherham Railway Co., 3 Rail. Cas.

428 ; Routledge v. Grant, 4 Bing. 653 ; 121.
Lucas V. James, 7 Hare, 410.

736 STATUTE OP FRAUDS. [CHAP. XIII.

tioii has been made by either party in the terms of the offer
so made and accepted, the acceptance will be taken as simul-
taneous with the offer, and both together constituting such
an agreement as the court will execute.^

Sec. 384. Parol Evidence not Admissible to Add to or Vary
Memorandum. — Not Only is it contrary to the statute of
frauds, but to the common law before the statute to add
anything to an agreement in writing by parol,^ for the court
cannot draw distinctions between stipulations that are mate-
rial and those that are not.^ So parol evidence cannot be
adduced by the plaintiff to show that certain stipulations or
terms were to come between the parties at the time of making
the contract or afterwards, and that they have been omitted
from the writing.* Thus, where the written agreement on a
contract of hiring and service provided that the servant's
salary should be paid yearly, it was held that, there being
this precise stipulation for yearly payments, parol evidence
was not admissible to show that at or after the time the
contract was entered into in writing it was verbally agreed
between the parties that the salary should be paid quarterly,
and that the fact of the payments having been made quarterly
did not vary the rights of the parties under the agreement.^
So, in an action for a breach of warranty on the sale of goods
upon a written contract, parol evidence is not admissible to
show that the seller's agent at the time of the sale repre-
sented the goods to be of a particular quality. " The rule
is," said Maulb, J., "that where a contract, though com-
pletely entered into by parol, is afterwards reduced into
writing, we must look at that and at that alone, even though
part of the terms previously agreed upon are not inserted in
the written contract. But, while parol evidence is not admis-
sible to add to or vary the terms of the memorandum, it is
held to be admissible to show that the memorandum is not a

1 Kennedy v. Lee, 3 Mer. 455, per * Marshall o. Lynn, 6 M. & W.
Lord Eldon ; Thornbury v. Eeyill, 1 116 ; Emmett v. Dewhirst, 21 L. J.
Y. & C. C. C. 654; Williams v. Wil- Ch. 497.

liams, 17 Beav. 213 ; Powers v. Fowler, * See, as to admissibility of evi-

4 E. & B. 519, n. ; Meynell v. Surtees, deuce on behalf of a defendant resist-

25 L. J. Ch. 257; 1 Jur. (N. S.) 737. ing specific performance, post, chap-

2 Parteriche v. Powlet, 2 Atk. 383 ; ter on Specific Performance.
Omerod v. Hardman, 5 Ves. 722 ; 5 Giraud v. Richmond, 2 C. B. 835.
"WooUam v. Kearn, 7 Ves. 211.

SEC. 385.] MEMOEANDTJM OR NOTE IN WRITING. 737

record of any antecedent parol bargain because, as was said
by Lord Selbourne,^ the statute of frauds is a weapon of
defence, not offence, and does not make any signed instru-
ment a valid contract by reason of the signature if it is not
according to the good faith and real intention of the parties.
So parol evidence is admissible to show that the memorandum
is not a note of the whole bargain, as that a price was agreed
upon which is not stated therein, and therefore that the note
is invalid.^ So that the goods were sold by sample,* or as
being in a certain condition,* or subject to the purchaser's
approval.^ But this evidence is not admissible to add new
terms or conditions to the memorandum, but only to show
that it is not a complete and valid memorandum, because it
does not embrace the terms of the contract.^ Omissions in a
memorandum cannot be supplied by parol,^ and if it is defec-
tive in any essential particular, it is inoperative as a memo-
randum.^ It is by the written contract alone, subject of
course to be interpreted by the usages of trade, as in Syers v.
Jonas,' that the parties are bound, and more especially is
that so in a case where as here the contract is one which by
the statute of frauds is required to be in writing. The inten-
tion of the legislature was that the writing should be the
evidence and the only evidence of the contract, and that
tliere should be no occasion to look beyond it." ^^ Nor is
parol evidence admissible to show the name of the person to
whom a guaranty is given.^^

Sec. 385. 'When Parol Evidence Admissible to Prove Stipu-
lations of Contract. — But although where there is a concluded

1 In Jervis v. Berridge, 10 Ch. 360. mon Falls Mf g Co. v. Goddard, 14

2 Acebal v. Levy, 10 Bing. 376; How. (U.S.) 446; Williams v. Kobin-
Elmore v. Kingscote, 6 B. & C. 583; son, 73 Me. 186.

Goodman v. GriflBths, 1 H. & M. 574. ^ Lee v. Hills, ante ; Boardman v.

8 McMuUen v. Helberg, 6 L. R. Spooner, ante; May v. Ward, 134

Jr. 463; Boardman v. Spooner, 18 Mass. 127.

Allen (Mass.) 358. 9 2 Ex. 111.

4 Pitts V. Beckett, 13 M. & W. 743. m Harnor v. Groves, 15 C. B. 667 ;

^ Boardman v. Spooner, ante; 24 L. J. C. P. 53; and see Boydell v.

Davis V. Shield, 26 Wend. (N.Y.) 341. Drummond, 11 East, 142; Pitzmau-

8 McMuUen v. Helberg, ante ; rice v. Bayley, 9 H. L. C. 78 ; Holmes

Remick v. Sandford, 118 Mass. 102; i,. Mitchell, 7 C. B. (N. S.) 861; 28 L.

Pitts V. Beckett, ante. J. C. P. 301.

' Lee V. Hills, 66 Ind. 474; Jen- " Williams v. Lake, 2 E. & E. 349;

ness V. Mt. Hope Iron Co., 53 Me. 20 ; 29 L. J. Q. B. 1.
Dana v. Hancock, 30 Vt. 616; Sal-

738 STATUTE OF FRAUDS. [CHAP. XIII.

contract between the parties parol evidence is not admissible
to add to or vary the terms, if there has been no actual mem-
orandum, but writings are simply offered as evidence of the
terms, parol evidence is admissible to show an additional
stipulation. Thus in Ford v. Yates ^ the contract was as
follows : " Of E. Y. 39 pocket Sussex hops, Springett's five
pocket, Kenward's 78 J. Springett's to wait orders," it was
held in an action for non-delivery of the hops that the con-
tract imported a sale for ready money, and that parol evi-
dence was not admissible to show that by the usual course of
dealing between the parties, the hops were sold on a credit
of six months. And when the memorandum is silent as to
the time of payment or delivery, parol evidence is not admis-
sible to show that a particular time was agreed upon.^ The
memorandum must contain within itself, or by reference to
other written evidence, all the essential elements of the con-
tract, and neither party will be permitted to show that a
different contract was in fact made.^ But where the writing
is not sufficient as a memorandum under the statute, and the
case has been taken out of the statute by a delivery and
acceptance of the goods, parol evidence is admissible to
supply terms not provided for in the writing. Thus, in
Lockett V. Nocklin,* on the other hand, the defendant ordered
goods by letter which did not mention any time for payment,

1 2 Man. & Gr. 549. ish Oil Co., 8 Ir. Eep. C. L. 17, an

2 Williams v. Robinson, 73 Me. action was brought for the non-de-
186 ; 40 Am. Rep. 352. And if some livery of oil sold by the defendant to
of the conditions of the contract are the plaintiff. The contract was for
omitted from the memorandum, they 100 barrels to be delivered as wanted,
cannot be supplied by parol proof or The plaintiff proved a parol bargain,
relied upon by the defendant : Rem- and, in order to take the contract out
ick V. Sandford, 118 Mass. 102 ; Small of the statute, gave in evidence a
V. Quincy, 4 Me. 497 ; Cabot v. Win- memorandum of the alleged contract
sor, 1 Allen (Mass.) 546; Coddington signed by the defendant's agent. The
V. Goddard, 16 Gray (Mass.) 4.36; memorandum was silent as to price,
Hawkins v. Chace, 19 Pick. (Mass.) which had been agreed on. Some
502 ; Warren v. Wheeler, 8 Met. ten casks of oil were delivered to the
(Mass.) 97; Ryan v. Hall, 13 id. 523. plaintiff after the contract was made,

8 Riley v. Farnsworth, 116 Mass. and were accepted and paid for, and

223 ; Washington. Ice Co. v. Webster, it was held that, though the memoran-

62 Me. 341 ; 16 Am. Rep. 362 ; O'Don- dum was defective, parol evidence

nell V. Lehman, 43 id. 158; Horton was admissible as to the price, be-

V. McCarty, 53 id. 394 ; Jenness v. Mt. cause the statute had been satisfied

Hope Iron Co., 53 id. 20. by the part performance.

4 2 Ex. 93. In Jeffcot o. N. Brit-

SEC. 386.] MEMOEANDTJM OR NOTE IN WRITING.

739

the plaintiff sent the goods and an invoice. It was held that
parol evidence was admissible to show that the goods were
supplied on credit, the letter not amounting to a valid con-
tract within the statute of frauds. Parol evidence is admis-
sible to show the situation of the parties at the time the
writing was made, and the circumstances attending the 1;rans-
action,! and to show the meaning which certain words have
acquired by usage,^ and also to show the time when the bar-
gain was made.*

Sec. 386. Parol Evidence not Admissible to Connect Sepa-
rate Bocuments. — Parol evidence is not admissible to connect
separate documents, but they must either be actually attached to each
other or they m,ust distinctly refer to each other.* In Baumann v.

1 Sweet !•. Lee, 3 M. & G. 466.

2 Bold V. Raynor, 1 M. & "W. 343;
Sievewright, 17 Q. B. 124; Stewart v.
Eddowes, L. E. 9 C. P. 311 ; Salmon
Fall Mf'g Co. V. Goddard, 14 How.
(U. S.) 455 ; Spioer v. Cooper, 1 Q. B.
424.

3 Lobb V. Stanley, 5 Q. B. 574;
Edmunds <,. Downs, 2 C. & M. 459;
Hartley v. Wharton, 11 Ad. & EI.
934.

* Tallman v. FrankHn, 14 N. Y.
584; Kaitling v. Parkin, 23 N. C. C. P.
569 ; Lemed v. Wannemacher, 9 Allen
(Mass.) 417 ; Ridgway v. Ingram, 50
Ind. 145 ; Williams v. Bacon, 2 Gray
(Mass.) 391 ; Smith v. Arnold, 5 Mass.
(U. S.) 416; Johnson u. Buck, 35 N.
J. L. 344; Freeport v. Bartol, 3 Me.
340; Knox v. King, 36 Ala. 367;
Fowler v. Radicon, 52 111. 405 ; Moale
V. Buchanan, 11 G. & J. (Md.) 314;
Kurtz V. Cummings, 24 Penn. St. 35;
Morton r. Dean, 13 Met. (Mass.) 385;
Adams v. McMillan, 7 Port. (Ala.)
73; Rishton v. Whatmore, 8 Ch. D.
467 ; Care v. Hastings, 7 Q. B. D. 125 ;
Long V. Millar, 4 C. P. D. 450 ; Price
V. Griffith, 1 De G. M. & G. 80;
Hinde o. Whitehouse, 7 East, 558;
Cooper V. Smith, 15 East, 103; Ken-
worthy V. Schofield, 2 B. & C. 945;
Richards v. Porter, 6 B. & C. 437;
Sari V. Bourdillon, 1 C. B. (N. S.)
188; Chapman v. Callis, 9 C. B.
(N. S.) 769; 30 L. J. C. P. 241 ; Peek

V. North Staffordshire Railway Co., 10
H. L. C. 473; 32 L. J. Q. B. 241;
Pierce v. Corf, L. R. 9 Q. B. 210.
Hinde i\ Whitehouse, 7 East, 558, was
the case of a sale by auction. The
auctioneer had a catalogue, headed,
" To be sold by auction, for particu-
lars apply to Thomas Hinde," and
wrote down opposite to the several
lots on the catalogue the name of the
purchaser. The auctioneer also had
a separate paper containing the terms
and conditions of the sale, which lie
read and placed on his desk. The
catalogue contained no reference to
the conditions. Held, that the signa-
ture to the catalogue was not suffi-
cient to satisfy the statute, on the
ground that it did not contain the
terms of the bargain, nor refer to the
other writing containing those terms.
Pierce v. Corf, L. R. 9 Q. B. 210.
A few years later the same question
came before the same court in Ken-
worthy c: Schofield, 2 B. & C. 945,
and was decided in the same way.
HoLKOYD, J., there said ; " It appears
to me that >jou cannot call that a mem-
orandum of a bargain which does not
contain the terms of it. The argument
for the plaintiff is, that the conditions
being in the room were virtually at-
tached to the catalogue ; but I think,
as then '"^''^ w' actually attached or
clearly referred to, they formed no part
of the thing signed. In the case put of

740

STATUTE OF FRAUDS.

[chap. xiri.

James ^ the Lords Justices held that parol evidence was
admissible to connect separate documents. In that case a

1 L. R. 3 Ch. 508.

the separation of the conditions from
the catalogue, during the progress of
the sale, I should say that the signa-
tures to the latter made after the sep-
aration were unavailing. It occurred
to me at first that this might be lik-
ened to a will, consisting of several
detached sheets, when a signature of
the last, the whole being on the table
at the time would be considered a
signing of the whole, but there the
sheet signed is a part of the whole.
Here the catalogue was altogether
independent of the conditions."

This is still the rule, and neces-
sarily must be so long as the statute
requires written evidence of the con-
tract. To permit different papers to
be connected by parol evidence, they
containing no internal evidence of
any connection with each other, would
result in permitting a contract to be
made out by parol evidence, which is
the very miscnief the statute intended
to avoid. In Saunderson v. Jackson,
2 B. a B. 238, a, bill of parcels was
delivered at the time of the bargain,
which was in itself a sufficient memo-
randum, but there was some doubt
whether it was seized by the defend-
ant. The court thought the defect
was supplied by a letter signed by
the defendant and addressed to the
plaintiff as follows : " Sir, we wish to
know what time we shall send you a
part of your order, and shall be
obliged for a little time in delivery of
the remainder ; must request you to
return our pipes. We are, etc." Lord
Eldon, C. J., said : " Although it be
admitted that the letter, which does
not state the terms of the agreeinenty
would not alone have been sufficient,
yet as the jury have connected it with
something else Which does, and the letter
is signed by the defendant, there is then
no written note or memorandum of
the order which was originally given
by the plaintiff, signed by the defend-
ants." It is to be regretted that the

report does not more fully state what
were the facts which Lord Eldon
allowed to go to the jury, as evidence
to enable them to connect the letter
with the bill of parcels. In Johnson
V. Dodgson, 3 M. & W. 653, there had
been a written memorandum made in
a book of the defendant's, signed by
the plaintiff's agent, as follows : " Sold
John Dodgson 27 pockets Playsted
1836, Sussex, at 103 s. The bulk to
answer the sample, i Pockets Selme
Beckleys, at 95 s.; samples and in-
voices to be sent per Rockingham
Coach ; payment in bankers at two
months. Leeds, 19th October, 18-36."
There was a doubt whether this was
signed by the defendant, and the
plaintiffs to meet that doubt proved
the f oUovring letter from the defend-
ant to them :

" Leeds, Wednesday Evening,
October 19, 1836.

GiJntlemen : — Please to deliver
the 27 pockets Playsted and the 4
pockets Selmes, 1836, Sussex, to Mr.
Robert Pearson or bearer to be carted
to Stanton's Wharf; 20 pockets of
Playsted to be forwarded per first
ship and the remaining 11 pockets
per the second ship, and you will
oblige gentlemen your most obedient,
John Dodgson."

The court were unanimously of
opinion that the first paper was signed
by the defendant, which disposed of
the case ; but Lord Abinger said ;
" If it depended on the recognition of
the contract by the letter, there might
be some doubt, though even upon that
I should have thought the reference
to the only contract proved in the
case sufficient." Pakke, B., said : "If
the question turned on the recognition
by the subsequent letter, I own I
should have had very considerable
doubt whether it referred sufficiently
to the contract. It refers to the sub-
ject-matter, but not to the specific
contract." In Allen v. Bennett, there

SBC. 386.] MEMORANDUM OR NOTE IN WRITING.

741

tenant applied to his landlord's solicitors as to the renewal of

his lease. The solicitors sent hira a report by a surveyor,

who recommended the granting of a lease at a given rent if

certain repairs were done by the tenant. The tenant wrote

back assenting to the repairs and rent, but asking for a term

that the same timber is very kind and
superior." The defendant replied, " I
have tliis moment received a letter
from you respecting Mr. Smith's tim-
ber, wliielx I bought of him at 1 s. 6 d.
per foot to be sound and good, which I
have some doubts whether it is or not,
but he promised to make it so, and
now denies it." It was held that the
letters were not consistent, and did not
satisfy the statute, Bayley, J., say-
ing ; " What the real terms of the
contract were is left in doubt, and
must be ascertained by verbal testi-
mony. The object of the statute was
that the note in writing should ex-
clude all doubt as to the terms of the
contract, and that object is not satis-
fied by the defendant's letter." In
Pierce i>. Corf, L. R. 9 Q. B. 210, an
action to recover damages from an
auctioneer, for negligence in not mak-
ing a binding contract for tlie sale of
the plaintiff's mare, the defendant
had a sales ledger, which was headed
" Sales by auction, 28th March, 1872,"
in which the plaintiff's mare was num-
bered 49. A printed catalogue of the
horses to be sold, with the conditions
of the sale annexed, was circulated,
and the plaintiff's mare was therein
also numbered 49 ; but neither the cata-
logue nor conditions were annexed to the
sales ledger nor referred to therein.
The mare was put up for sale and
struck off to Thomas Maguire for
thirty-three guineas. Thereupon, the
defendant's clerk wrote in the col-
umns of the sales ledger, left blank
for that purpose, the name of the
purchaser and the price. The pur-
chaser refused to take the mare, and
it was held that the catalogue and
sales ledger were not sufficiently con-
nected to form a memorandum suffi-
cient to satisfy the statute. Eishton
0. Whatmore, 8 Ch. Div. 468.

was a note defective from not giving
the name of the purchaser; there
was also a correspondence between
the parties which is not set out in the
report. It appears, however, to have
shown that there was a contract of
sale of some sort between the parties
concerning goods of the same sort as
those mentioned in the contract note,
and to have been in itself defective
as a memorandum, and to have made
no specific allusion to the contract
note. The court held, that the corre-
spondence was sufficiently connected
with the note, and supplied its defi-
ciencies. Jackson v. Lowe, 1 Bing.
9; Cooper v. Smith, 15 East, 103 .
Richards u. Porter, 6 B. & C. 437 J
Smith V. Surman, 9 B. & C. 561.
Lord Westbury, in Peek v. North
Staffordshire Railway Company,
10 H. L. Cas. 472, clearly stated the
general principle, in a case which
arose under a similar clause in the
railway and canal traffic act in these
words : " In order to embody in the
letter any other document or memo-
randum, or instrument in writing, so
as to make it part of a special con-
tract contained in that letter, the letter
must either set out the writing re-
ferred to, or so clearly and definitely
refer to the writing, that, by force of
the reference, the writing itself be-
comes part of the instrument it refers
to." Johnson v. Buck, 35 N. J. L.
338. In Smith v. Surman, 9 B. & C.
561, the written memorandum was
contained in two letters, one from the
vendor's attorney, who wrote to ask
for payment "for the ash timber
which you purchased of him. . . .
The value at 1 s. 6 d. per foot ampunts
to the sum of .£17 Ss. 6d. I under-
stand your objection to complete
your contract is on the ground that
the timber is faulty and unsound, but
there is sufficient evidence to show

742

STATUTE OF FRAUDS.

[chap. XIII.

of twenty-one years. No final agreement was come to, but
some months afterwards, a negotiation having proceeded
between the tenant and the landlord, without the interven-
tion of the solicitor, the landlord wrote a letter promising the
tenant a lease for fourteen years, " at the rent and terms
agreed upon," to which the tenant wrote back an unqualified
acceptance. It was argued on the authority of Shelton v.
Cole ^ and Clinan v. Cooke ^ that parol evidence was not
admissible to connect the report and the tenant's previous
letter with the subsequent letters; but the court, on the
authority of Ridgway v. Wharton,^ admitted the evidence,
and held that its being conclusively established that there
never had been any other rent or terms agreed upon than those
mentioned in the report, there was a sufficient memorandum
in writing to satisfy the statute.* It does not appear, how-
ever, from the report that any of the cases referred to above
were cited to the court, and it is submitted that the case of
Ridgway v. Wharton is not in fact an authority for admitting

1 1 De 6. & J. 587.

2 1 Sch. & Lef. 22.
8 6 H. L. C. 238.

< In Beckwith v. Talbot, 95 IT. S.
289, Beadle Y, J., said: "It is un-
doubtedly a general rule that collat-
eral papers, adduced to supply the
defect of signature of a written agree-
ment under the statute of frauds,
should on their face sufficiently de-
monstrate their reference to such
agreement without the aid of parol
proof. But the rule is not absolute.
There may be cases in which it would
be a violation of reason and common
sense to ignore a reference which
derives its significance from such
proof. If there is ground for any doubt
in the matter, the general rule should
be enforced. But where there is no
doubt, its enforcement would aid
instead of discouraging fraud. Sup-
pose an agreement be made out and
signed by one of the parties, the other
being absent. On the following day
the latter vprites to the party who
signed it, as follows: 'My son in-
forms me that you yesterday exe-
cuted our proposed agreement as

prepared by J S. I will write this
to let you know that I recognize and
adopt it.' Would not this be a suffi-
cient recognition, especially if the
parties should act under the agree-
ment 1 And yet, parol evidence
would be necessary to show what
agreement was meant." Jenkins v.
Harrison, 66 Ala. 345; Work v. Cow-
hick, 81 111. 317 ; Thayer v. Luce, 22
Ohio St. 62 ; Lerned v. Wannemacher,
9 Allen (Mass.) 416; Buxton v. Eust,
L. R. 7 Exchq. 279. Doe, C. J.,
criticises the doctrine expressed by
Bkadley, J., supra, in Brown v.
Whipple, 58 N. H. 229 (see ante, page
705, for full statement of case and
opinion), as follows: "In what was
said (in Beckwith „. Talbot) of an
exception in cases where parol evi-
dence leaves no room for doubt, we
do not concur." But the drift of
authority, especially in the English
courts, is the other way. See also
Mead v. Parker, 115 Mass. 41.<? ; Hur-
ley V. Brown, 9^ id. 545 ; Seanlan v.
Geddes, 112 id. 15. But see Farwell
u. Mather, 10 Allen (Mass.) 322.

SEC. 388.] MEMORANDUM OR NOTE IN WRITING. 743

parol evidence to connect separate papers which do not refer
to each other. All that was decided in that case was that if
there is a signed paper which, though agreeing to do some-
thing, leaves the subject-matter of the agreement unexplained,
but refers to another paper which contains the full particulars
of the explanation, the two may be connected together so as
to constitute a valid contract.

Sec. 387. Parol Evidence Admissible to Explain Imperfect
Reference. — Parol evidence is admissible to explain an imper-
fect reference in one document to another.^ Thus, where an
agreement refers to a plan as the plan agreed upon, parol
evidence is admissible to identify it.^ But if the memoran-
dum does not refer to any plan, but describes the property as
lot " No. 2," it cannot be shown by parol that a plan was
used by the vendor at the sale to show the location of the
lot in question for the purpose of identifying the land.^

Sec. 388. Cases 'where Parol Evidence not Admissible. —
Parol evidence is not admissible to show a waiver of or alter-
ation in any of the stipulations in a contract,* nor to prove
that a portion of the price agreed to be paid for goods was, in
ponsideration of an undertaking to deliver them at a specified
time, fixed above the market price ; ^ nor to prove a parol
agreement for extending the time for delivery of goods,® or
for changing the place of delivery of goods, nor, where the
memorandum is silent in that respect, to show that a particu-
lar time for payment and delivery was agreed upon,^ nor

1 Saunderson v. Jackson, 2 B. & P. 6 Moore v. Campbell, 10 Ex. 323.
238 ; Clinan v. Cooke, 1 Sch. & Let ' In Williams v. Robinson, 73 Me.
33 ; Monro v. Taylor, 8 Hare, 56 ; 180 ; 41 Am. Rep. 352, an action was
Bolckow V. Seymour, 17 C. B. (N. S.) brought upon a contract as follows :
117 ; Jackson v. Oglander, 2 H. & M. " Augusta, June 8, 1880.
472. I hereby agree to furnish Mr. F.

2 Horsfall v. Hodges, 2 Coop. C. C. -Williams, of New Haven (post office
115 n. (a.) address West Haven), eight hundred

8 Harvey v. Grabham, 5 Ad. & El. to one thousand tons of ice, delivered

61. on board vessels at Augusta, Me.,

* Brady v. Oastler, 3 H. & C. 112, properly packed, for a voyage to New

per Pollock, C. B., and Bramwell Haven, for the sum of two dollars a

and Channell, B. B., diss. Martin, ton.
B. Bond Brook Ice Company,

5 Stead V. Dawber, 10 Ad. & El. J. E. Robinson.

57 ; Marshall v. Lynn, 0 M. & W. 109 ; Augusta, Me."

Noble V. Ward, L. R. 1 Ex. 117 ; ib. 2 Upon the trial the defendant in-

Ex. 135, in error. sisted that by the terms of the con-

744

STATUTE OF FEAtTDS.

[chap. xin.

where the number or quantity of articles to be furnished
under the contract is indefinite, is parol evidence admissible
to show what number or quantity was agreed upon. Thus,
a memorandum by which a party agreed to send " the bal-
ance of twelve carloads of sheet iron " was held to be insuffi-
cient, because it did not state the number of carloads to be
sent, and parol evidence was held not to be admissible to
supply the defect.^ Where the day for the completion of

tract as agreed upon the ice was all
to be deliyered by the last of July,
also that the sum of seven or eight
hundred dollars was to be forwarded
by the plaintiff immediately on his
return home, and that, as the memo-
randum contained none of these stipu-
lations, the memorandum relied on
was insufficient and did not take the
contract out of the statute. The
plaintiff "had a verdict, which was
sustained upon appeal, the court hold-
ing that as the memorandum on its
face was sufficient to ascertain the
rights of the parties, parol evidence
was not admissible to vary or change
its terms, Vikgin, J., saying : " When
a memorandum is made and signed
and delivered between the parties as
and for a complete memorandum of
the essential terms of a contract, and
it is capable of a clear and intelligible
exposition, it is conclusive between
the parties, and parol evidence is in-
competent to contradict or vary its
terms or construction ; and if in fact
some of the conditions actually made
be omitted from it, the party defend-
ant cannot avail himself of them.
Small V. Quincy, 4 Me. 497 ; Codding-
ton V. Goddard, 16 Gray (Mass.) 436;
Hawkins v, Chace, 19 Pick. (Mass.)
502 ; Ryan ./. Hall, 13 Mete. (Mass.)
623 J Warren ... Wheeler, 8 id. 97;
Cabot V. Winsor, 1 Allen (Mass.) 546,
551 ; Eemick v. Sandford, 118 Mass.
102.

Such is the general rule governing
written contracts ; and the statute of
frauds leaves it together with its ex-
ceptions as it found them. Benj.
Sales, §205. By the enactment of
this statute, the legislature interposed

a few safeguards against mistakes and
frauds in certain kinds of contracts,
by making certain additional things
indispensable to the remedy. The
security thereby afforded makes the
remedy depend upon proof which
shall not rest upon the recollection or
integrity of witnesses, but upon some-
thing reliable, to which the parties
may resort for a solution of all their
doubts and disputes, the signature
thereto serving, inter alia, to identify
the evidence by which the signer is to
be bound. And when a memoran-
dum, like the one now before us, has
been deliberately made, executed, and
delivered in conformity with the staj^
ute, and its terms are sensible and
free of all ambiguity, it cannot be
varied as to its substance by parol;
otherwise the great purpose of the
legislature would be thwarted. Ap-
plying these principles to the case at
bar, and the exceptions, so far as the
question of consideration and the
three requested instructions are con-
cerned, must be overruled.

The jury must have found under
the charge that the memorandum was
made, signed and unconditionally de-
livered by the defendant to the plain-
tiff, as and for a complete memoran-
dum of the contract, so far as the
matters contained in the request go,
and that the consideration was
proved. Its terms are clearly ex-
pressed, and contain all the elements
necessary to give it legal effect as a
written contract."

1 May V. Ward, 184 Mass. 127.
But see Ehoades v. Castner, 12 Allen
(Mass.) 136, where a written order to
ship " cargo loc. Mtn. W. A. Stove

SEC. 389.] MEMOBANDTJM OR NOTE IK WEITING. 745

the purchase of an interest in land is inserted in a written
contract, it cannot be waived by oral agreement and
another day substituted in its place, " for to allow the substi-
tution of a new stipulation as to the time of completing the
contract, by reason of a subsequent oral agreement between
the parties to that effect, in lieu of a stipulation as to time
contained in the written agreement signed by the parties, is
virtually and substantially to . allow an action to be brought
on an agreement relating to the sale of land, partly in writ-
ing signed by the parties, and partly not in writing, but by
parol only, and amounts to a contravention of the statute of
frauds." ^ Most of the foregoing cases were discussed in
Hickman v. Haynes,^ where Lindley, J., said : " The result
of these cases appears to be that neither a plaintiff nor a
defendant can at law avail himself of a parol agreement to vary or
enlarge the time for performing a contract previously entered into in
writing, and required to be so by the statute of frauds."

So also parol evidence is not admissible to show a verbal
agreement between the parties that the vendee should waive
his right to a good title as to one of severa;l lots of land sold
under an agreement in writing.^

Sec. 389. Farol Evidence Admissible to Show that No Con-
tract was Intended, or that It was Conditional. — A document pur-
porting to be a contract signed by the parties is not necessa-
rily so ; and it is competent for either of the parties to show
by parol evidence that it was not their intention in signing

coal, price §6.90 per ton, water 9J number of pounds of "copper, 24^
feet," accepted in writing, signed and a 9 mos. from delivery," sufficiently-
dated, was held to be a sufficient shows that the price was twenty-four
memorandum ; and that the amount of and a half cents per pound, to be paid
coal designated might be shown by parol, in nine months. Coddington v. God-
But see Smith v. Gowdy, 8 Allen dard, 16 Gray (Mass.) 436. So a
(Mass.) 566, in which A wrote to B mAiorandum of sale of real estate at
as follows : " Say how many white, ".9J cts." is not insufficient for want
colored and woollen rags you have on of allegation that the price was nine
hand, and your prices for them." B and a half cents for each square foot,
replied: "I have about a ton each, Gowen u. Klous, 101 Muss. 454.
white and colored rags, and my prices i Stowell v. Robinson, 3 Bing.
are three and one-half cents for col- (N. C.) 928; 5 Sc. 212.
ored and seven cents for white." A 2 L. R. 10 C. P. 598, 605 ; Plevins
replied: " I will take the rags at the j,. Downing, L. R. 1 C. P. D. 220.
price you name," and it was held that » Goss v. Lord Nugent, 5 B. &
there was no written contract. A Ad. 58 ; Harvey v. Grabham, 6 Ad. &
memorandum of sale of a certain El. 74.

746 . STATUTE OF FEATJDS. [CHAP. XHI.

that it should operate as a contract, and that the real contract
between them was not in writing,^ or to show that the con-
tract was only to bind upon the happening of a certain
eveut.2

Sec. 390. Or that the Agreement does not State Contract.— >-

So, although parol evidence is not admissible to add to or
vary the written agreement, it is admissible on the part of the
defendants to show that the writing only contains some of
the terms of the contract. Thus, where a sample of wool
was left at a broker's for sale, and on the sale it was stipu-
lated by the purchaser that the wool should be delivered in
good dry condition, and on the same day the broker sent the
vendor a sold note of the contract, which, however, omitted
all mention of the stipulation that the wool was to be in good
dry condition, and no note of it was sent by the broker to
the purchaser, parol evidence was admitted to show the omis-
sion of the stipulation.^ And where a term is not expressly
contained in a contract, but is implied in it, upon the assump-
tion of an intention in the parties not declared in the written
instrument, parol evidence, with reference to such a term
introduced into the contract from an assumed intention of
the parties, of extrinsic facts to negative or qualify such
intention, is admissible.*

Sec. 391. To Prove that Price was Agreed Upon.- — Again,
where on a sale of goods the price is not stated, parol evi-
dence is admissible to show that a price was in fact agreed
upon, the result of which is to invalidate the contract ; for it
is one of the requisites to the validity of the memorandum
that the price if agreed upon should be stated.^

Sec. 392. whether Admissible to Shcvir Abandonment of
Contract. — It is not quit| clear whether parol evidence is

1 Rogers v. Hadley, 2 H. & C. 227 ; « Surges e,. "Wickham, 3 B. &. S.
and see Bolckow v. Seymour, 17 C. B. 669, per Cockburn, C. J. ; and see
(N. S.) 120. Clapham v. Langton, 34 L. J. Q. B.

2 Pym V. Campbell, 6 E. & B. 370 ; 46.

25 L. J. Q. B. 277 ; Furness v. Meek, ^ Elmore v. Kingscote, 5 B. & C.

27 L. J. Ex. 34. 583; Goodman v. Griffiths, 1 H. & N.

a Pitts V. Beckett, 13 M. & "W. 743. 574 ; 26 L. J. Ex. 145 ; Acebal v.

See further, post, chapter on Specific Levy, 10 Bing. 376.
Performance. But see Williams u.
Bobinson, 73 Me. 186.

SEC. 392.] MEMOKANDTJM OK NOTE IN WRITING.

747

admissible to show a verbal agreement that a contract in
writing shall be abandoned.^ If the parol agreement is invalid
under the statute, it will not affect an implied rescission of the
contract in writing. "Where," said Willes, J., "parties
enter into a contract which woiild have the effect of rescind-
ing a previous one, but which cannot operate according to
their intention, the new contract shall not operate to affect
the previously existing right." ^ In equity it is a well settled

1 See Bell v. Howard, 9 Mod. 305
Goss V. Lord Nugent, 5 B. & Ad. 6i
Harrey v. Grabham, 5 A. & E. 61
Price !>. Dyer, 17 Ves. 356; Sander-
son V. Graves, L. R. 10 Ex. 234.

2 In Noble v. Ward, L. R. 1 Ex.
117, it appeared that the plaintiff was
a manufacturer, and the defendants
merchants at Manchester. On the
12th August, 1864, the defendants
gave to the plaintiff's agent an order
for 500 pieces of 32-inch gray cloth
at 38 s. 9 rf., and 1,000 pieces of 35-inch
gray cloth at 42 s. IJrf., the deliveries
to commence in three weeks, and to
be completed in eight to nine weeks.
On the 18th of the same month a sec-
ond order was given by the defend-
ants for 500 pieces of .32-inch gray
cloth at 39 s. and 100 pieces of 35-inch
gray cloth at 42 s. 3 d., to be delivered
" to follow on after order given 12th
instant, and complete in ten to twelve
weeks." The plaintiff, on the 10th
and 19th September, made a first and
second delivery on account of the first
order. Considerable discussion en-
sued, both as to the time of delivery
and as to the quality of the goods
delivered ; and eventually, on the
27th September, the plaintiff had an
interview with the defendants, at
which it. was agreed that the goods
delivered under the first order should
be taken back, that that order should
be cancelled, and that the time for
delivering the goods under the second
order should be extended for a fort-
night. Goods were tendered to the
defendants by the plaintiff in time
either for the fulfilment of the agree-
ment of the 18th August or that of
the 27th September ; but the defend-

ants refused to accept them on vari-
ous grounds — amongst others, on the
ground that they were not of the
stipulated quality. The plaintiff
thereupon brought this action. The
declaration was framed so as to fit
either the agreement of the 18th
August or that of the 27th September.
The judge directed a non-suit to be
entered, being of opinion that the
contract of the 18th August was no
longer in existence, the parol agree-
ment of the 27th September having
rescinded it; and that the latter
agreement could not be resorted to,
not being in writing, in accordance
with the statute. Upon a rule to set
aside the non-suit, it was set aside.

Bramwell, B., said: "This case
was tried before me at Manchester,
and the plaintiff was non-suited. The
case comes before us on a rule to set
aside that non-suit. I think it was
wrong, at least on the ground on
which it proceeded. The action was
for not accepting goods on a sale by
the plaintiff to the defendants. The
defendants pleaded, among other
things, that the contract had been
rescinded, and that the plaintiffs were
not ready and willing to deliver. The
facts were, that a contract for the
sale and delivery of goods from the
plaintiff to the defendants, at a future
day, was entered into on the 12th of
August, which may be called contract
A ; that another contract for sale and
delivery by the plaintiff to the defend-
ants, also at a future day, was entered
into on the 18th of August, say con-
tract B ; that before any of the days
of delivery had arrived the plaintiff
and defendants agreed, verbally, to

748

STATUTE OP FEAUDS.

[chap. XIII.

rule that a contract required to be in writing to satisfy the
statute may be rescinded by a parol agreement, and such

rescind, or do away with, contract A,
and to extend for a fortnight the time
for the performance of contract B;
that is to say, the plaintiff had. a fort-
night longer to deliver, and the de-
fendants a fortnight longer to take
and pay for those goods. This, on
principle and authority, was a third
contract, call it C. It was a contract
in which all that was to be done and
permitted on one side was the consid-
eration for all that was to be done
and permitted on the other. See per
Parke, B., in Marshall v. Lynn, 6 M.
& W. 117. It remains to add that the
declaration would fit either contract
B or contract C, and that goods were
tendered by the plaintiff to the de-
fendants in time for either of those
contracts. My notes, and my recollec-
tion of my ruling are that contract B
was rescinded, and contract C not
enforceable, not being in writing. I
think that was wrong. Either con-
tract C was within the statute of
frauds or not. If not, there was no
need for a writing ; if yes, it was be-
cause it was a contract for the sale of
goods, and so within the 17th section
of the statute. That says that no
contract for the sale of goods for the
price of :£10 or upwards shall be al-
lowed to be good, except there is an
acceptance, payment, or writing. The
expression 'allowed to be good' is
not a very happy one, but, whatever
its meaning may be, it includes this
at least, that it shall not be held valid
or enforced. But this is what the
defendant was attempting to do. He
was setting up this contract C as a
valid contract. He was asking that
it should be allowed to be good to
rescind contract B.

It is attempted to say that what
took place when contract C was made
was twofold. First, that the old con-
tracts were given up ; secondly, a new
one was made. But that is not so.
What was done was all done at once
— was all one transaction, one bar-

gain ; and had the plaintiff asked for
a writing at the time, and the defend-
ants refused it, it would all have been
undone, and the parties remitted to
their original contracts.

I think, therefore, that on princi-
ple it was wrong to hold that the old
contract was gone. Moore v. Camp-
bell, 10 Ex. 323 ; 23 L. J. Ex. 310, is
an authority to the same effect. It is
true that case may te distinguished
on the facts, namely, that there what
was to be done under the new ar-
rangement in lieu of the old was to
be done at the same time, so that it
might well be the parties meant, not
that the new thing should be done,
but if done it should be in lieu of the
old. Such an argument could not be
used in this case. But it was not the
ground of the judgment there, which
is that the new agreement was void.
The cases of Goss v. Lord Nugent, 5
B. & Ad. 58 ; Stead v. Dawber, 10 Ad.
& El. 57, and others, only show that
the new contract C cannot be en-
forced, not that the old contract B is
gone. I think it was not. Inconven-
ience and absurdity may arise from
this. For instance, if the defendants
signed the new contract, and not the
plaintiff, the plaintiff would be bound
to the old and the defendants to the
new. Or, if in the course of the cause
a writing turned up, signed by the
plaintiff, then they could first rely on
the old and afterwards on the new
contract. But this is no more than
may happen in any case within the
17th section, where there has been
one contract only.

But then it was said before us
that the plaintiff was not ready and
willing to deliver under contract B.
Probably not, and he supposed con-
tract C was in force. In answer to
this the plaintiff contended before us
that this point was not made at the
trial, to which the defendants replied
neither was the point that the old
contract was in force. My recoUec-

SEC. 395.] MEMOKANDTJM OE KOTE IN "WKITING. 749

rescission would be a sufficient defence to an action by either
party for a specific performance.^

Sec. 893. Parol Evidence Admissible to Explain Latent but
not Patent Ambiguity. — Parol evidence is admissible to
explain a latent but not a patent ambiguity in a written
agreement. Thus, where to an action for not accepting
cotton which the defendant bought of the plaintiff, " to arrive
ex Peerless from Bombay," the defendant pleaded that he
meant a ship called the " Peerless," wTbich sailed from Bom-
bay in October, and the plaintiff was not ready to deliver any
cotton which arrived by that ship, but only cotton which
arrived by another ship called the " Peerless," which sailed
from Bombay in December, it M'as held that the plea was a
good answer to the action.^ But where an agreement for a
lease of a farm referred to a paper containing the terms, and
a bill was filed for specific performance according to such
clauses as had been read over to the plaintiff, it was held that
parol evidence was not admissible to show what were the
clauses.^

Sec. 394. Parol Evidence Admissible to Explain Omission in
Bought and Sold Notes. — Parol evidence has been admitted
to show, in an action of trover for goods, that by the mistake
of a broker the bought and sold notes were so worded as not
to include stock in trade and materials, which were intended
to be included by both the plaintiff and the defendant, and
which the plaintiff had taken possession of.*

Sec. 395. To Show Situation of Parties. — So also parol
evidence has been admitted to show the situation of the

tion is so, — that the case was opened ^ Marsh v. Bellew, 45 Wis. 36 ;

and maintained as on the new con- Stevens v. Cooper, 1 John. Ch. (N. Y.)

tract, — but I agree with Mr. Mellish, 425 ; Van Syckel v. Dalrymple, 32 N.

that a non-suit ought to be main- J. Eq. 233 ; Plielps v. Seely, 22 Gratt.

tained on a point not taken at the (Va.) 573.

trial only when it is beyond all doubt. ^ Baffles v. Wiehelhaus, 2 H. & C.

I cannot say this is. Consequently, I 906; and see Stokes v. Moore, 1 Cox,

think the rule should be absolute." 221 ; and aa to the admissibility of

And see Moore c. Campbell, 10 Ex. parol evidence to explain a latent am-

323 ; see further Ogle v. Earl Vane, biguity in a guaranty, see Haigh v.

L. E. 2 Q. B. 275 ; Leather Cloth Co. Brooks, 10 A. & E. 309 ; Butcher v.

V. Hieronimus, L. R. 10 Q. B. 140 ; Stewart, 11 M. & W. 857 ; Goldshede

Hickman v. Haynes, L. R. 10 C. P. v. Swan, 1 Exch. 154.

598 ; Plevins v. Downing, L. R. 1 C. » Brodie v. St. Paul, 1 Ves. Jr. 326.

P. D. 220. * Steele v. Haddock, 10 Ex." 643.

750

STATUTE OP FEATTDS.

[chap. XIII.

parties at the time the writing was made and the circum-
stances, e.g. to show the trades carried on by the plaintiff
and defendant, in order to prove that the relation of buyer
and seller existed ; ^ to explain the meaning of abbreviations
used in the written agreement;^ to prove that a written
contract for the sale of goods purporting to be made between
a vendor and purchaser was on the part of the alleged pur-
chaser made by him only as agent for a third party;,* to
prove facts material to the construction of the agreement ; *
to show that, according to mercantile usage, apparent vari-
ances between bought and sold notes are in fact immaterial,
and not such as would deceive merchants.*

Sec. 396. To Explain Subjeot-Matter. — Upon the same
principle, parol evidence is admissible to identify the subject-
matter of the contract,^ e.g. to explain the meaning of the

1 Newell V. Eadford, L. R. 3 C. P.
62.

« Sweet V. Lee, .3 Man. & G. 466 ; 4
Sc. (N. R. ) 77 ; and see Bainbridge v.
"Wade, 16 Q. B. 99 ; Stoops v. Smith,
100 Mass. 63.

8 Wilson I'. Hart, 7 Taunt. 295.

* Monro v. Taylor, 8 Hare, 56.

6 Bold V. Rayner, 1 M. & W. 343 ;
Sievewright v. Archibald, 17 Q. B.
103 ; Rogers v. Hadley, 2 H. & C.
227; Kempson v. Boyle, 3 H. & C.
763; 34L. J. Ex. 191.

« Stoops V. Smith, 100 Mass. 63;
Caulkins i. Hellman, 14 Hun (N. Y.)
330; Pike v. Fay, 101 Mass. 1.34;
Sweet V. Shumway, 102 id. 367 ; Hart
0. Hammett, 18 Vt. 127. But this
class of evidence is admissible only
when the writing does not distinctly
define the property so as to enable its
identity to be seen on its face, and is
confined to the question of identity in
kind, and will not be extended to com-
parisons in degree or quality. Pike
V. Fay, ante. Such evidence has been
admitted to show what house was
owned by a vendor "on Church
Street," where the memorandum only
described it as " a house on Church
Street." Mead v. Parker, 115 Mass.
413; Seanlan v. Geddes, 112 id. 15;
Slater tf. Smith, 117 id. 96 ; Hurley v.

Brown, 98 id. 545. But such evidence
is only admissible when the memo-
randum affords within itself the
means of identifying the property
beyond a doubt.

Where the following receipt was
given : " Received of James Hender-
son $ 300 in part payment of a certain
tract of land, being my own head-
right, lying on Rush Creek, in cross
timbers, this 23d March, 1859." Held,
that it was a sufficient memorandum
under the statute of frauds, and the '
consideration could be proved by
parol. Fulton v. Robinson, 55 Tex.
401 . In this case it will be observed
that the identity of the lot must be
shown by parol. In Farwell v. Mather,
10 Allen (Mass.) 322, a memorandum
in writing, agreeing to giye a certain
sum "for the whole property, from
cellar to top, including lease, press,
boiler and engine, type, fixtures, fur-
niture," etc, and to " pay the ground
rent," is not sufficient to avoid the
statute, even if a lease containing a
sufiicient description of the land be
admitted as a part thereof, for want
of description of the title to be
passed. But the doctrine of this case
seems to have been overruled by the
cases cited ante in this note.

As previously stated, the memo-

SEC. 397.J MEMOEANDTTM OE NOTE IN WRITING.

751

words "for iron received " in a guaranty; ^ to ascertain the
number of acres " to be let " in an agreement for a lease ; ^ to
prove the amount of a debt guaranteed,^ the locality over
which a covenant in restraint of trade extends,* or what is
" the lease " referred to in an agreement to obtain a lease. ^
So parol evidence of a conversation between the plaintiffs
and defendant's agents has been admitted to show what was
meant by the expression "your wool " in a letter written by
defendant's agent to the plaintiff, upon which letter the con-
tract was based ; ® and where the vendor of leasehold prem-
ises wrote a letter to his solicitor, stating, " I have closed with
Mr. W for this place," it was held that parol evidence was
admissible to show what " this place " was.''

Sec. 397. To Show Trade TTsage. — So parol evidence has
been held to be admissible to show that by the custom of
the hop trade the following contract, " sold 18 pockets Kent

randum must point so clearly to the
property, and the parol evidence be
of such a character as to leave no
doubt as to what property was meant
to be sold. Thus a written agree-
ment to convey " a piece of land in "
W. S., not otherwise describing the
land, is void under the statute, it ap-
pearing that the promisor had other land
in W. S. Whelan v. Sullivan, 102
Mass. 204. But if the evidence shows
that the party had no other land in
the town or street named, the memo-
randum is good, because the identity
is established beyond a doubt. Hur-
ley V. Brown, 98 Mass. 545 ; Mead v.
Parker, ante ; Scanlan v. Geddes, ante.
In a receipt for the purchase-money
of land, dated at "Memphis," a de-
scription failing to show in what
county or State the land was situated,
was held not to satisfy the require-
ment of the statute of frauds, as in
such a case the identity of the land
cannot be shown by parol. Holms v.
Johnston, 12 Heisk. (Tenn.) 155. So a
memorandum dated and signed, " Re-
ceived of J. $300 on town lot," is in-
sufficient to establish a sale of land.
Johnson v. Granger, 51 Tex. 42. So
where the only description in a memo-
randum of the sale of land was " lot

adjoining," it was held that the memo-
randum did not satisfy the statute of
frauds. Scarritt v. St. John's M. E.
Church, 7 Mo. App. 174. Because in
these cases the memorandum fur-
nishes no data wliich enable the
identity of the land to be established
beyond a doubt. But tlie writing re-
lied upon to establish such a contract
for the sale of land need not describe
the lands which are the subject of
the sale, otherwise than by a reference
therein to some extrinsic fact or instru-
ment by means of which the land can be
known with sufficient certainty. Wash-
burn V. Fletcher, 42 Wis. 152.

1 Colbourn u. Dawson, 10 C. B.
765.

2 Shannon v. Bradstreet, 1 Sch. &
Lef. 73.

' Bateman v. Phillips, 15 East,
272 ; Shortrede v. Cheek, 1 Ad. & El.
57,

* Mumford «. Gething, 7 C. B. (N.
S.) 305.

^ Horsey v. Graham, L. E. 5 C. P.
9.

' Macdonald v. Longbottom, 1 E.
& E. 977 ; affd. Exch. Ch. ib. 987.

" Waldron v. Jacob, 5 I. R. Eq.
131.

752 STATUTE OP FEATJDS. [CHAP. XUI.

hops at 100 s. ; " a pocket containing more than a cwt. meant a
sale at 100 s. per cwt.,i and generally, it may be said that,
where a well-known custom or usage exists in reference to a
particular business, which is reasonable, and such as the law
will recognize and uphold, it may be shown as well to affect
contracts affected by the statute, as ordinary contracts in
writing,^ as it will be presumed that the parties contracted in
reference thereto.^

Sec. 398. To Prove Alterations in Articles Ordered. —

Where an executory contract was entered into for the fabri-
cation of goods, parol evidence of alterations and additions
ordered by the purchaser in the course of manufacture was
admitted, Gaslbe, J., saying that " otherwise every building
contract would be avoided by every addition." *

Sec. 399. To Prove Date. — Where a written instrument
contains no date, parol evidence is admissible to show when
it was written,^ or from what date it was intended to
operate."

Sec. 400. That Contract Signed by Agent in O-wn Name •was
Signed for Principal. — When a contract is signed by an agent

1 Spicer v. Cooper, 1 Q. B. 424; inson v. Gay, 7 Allen (Mass.) 29
and see as to commercial usages Wig- Clark v. Baker, 11 Met. (Mass.) 186
glesworth v. Dallison, 1 Sm. L. Cas. Snelling a. Hall, 107 (Mass.) 134
546. Marshall v. Perry, 67 Me. 78 ; Barker

2 Johnson i>. Roylton, 7 Q. B. Div. v. Borzone, 48 Md. 474; Mears a.
438 ; Brown v. Foster, 113 Mass. 1-36 ; Waples, 4 Houst. (Del.) 62 ; Converse
Smyth V. Ward, 46 Iowa, 339; Has- v. Harzfeldt, 11 Brad. (111.) 173; Coff-
kins V. Warren, 115 Mass. 535; Morse man v. Campbell, 87 111. 98; Doane v.
V. Brackett, 98 id. 209; Boardman v. Dunham, 71 id. 131; Lyon v. Culbert-
Spooner,an(e,- Swift t). Gifford, 2 Low. son, 83 id. 33; Wliite v. Puller, 67
(U. S.) 110. If by an oral contract Barb. (N. Y.) 267; Polhemrs v. Heil-
goods are sold subject to the pur- man, 50 Cal. 438 ; Swift &c. Co. v. U.
chaser's approval of them on delivery, S., 105 U. S. 691 ; Swift's Iron &c. Co.
a broker's written memorandum of v. Dewey, 37 Ohio St. 242 ; Branch v.
the sale which omits tliat stipulation Palmer, 65 Ga. 210. As to what
is insufficient to take the case out of usages are admissible and when, see a
the statute ; nor, in such case, can the very excellent treatise on that sub-
vendor be allowed to prove a usage ject. Clarke's Beowne on Usages
of trade that sales of such goods are and Customs.

subject to the purchaser's approval of * Hoadly v. McLaine, 10 Bing. 482.

them on delivery, in order to supple- ^ Edmunds v. Downes, 2 C. & M.

ment the memorandum. Boardman 459; Hartley rj. Wharton, 11 Ad. & El.

V. Spooner, 13 Allen (Mass.) 353. 934; 3 P. & D. 529; Lobb v. Stanley,

» Harris v. Tunbridge, 83 N. Y. 92 ; 5 Q. B. 574,

Bailey v. Bensley, 87 III. 556; Dick- « Davis v. Jones, 25 L. J. C. P. 91.

SEC. 401.] MBMOEANDTJM OR NOTE IN WETTING. 763

in his own name, parol evidence, upon an action brought to
charge the principal, may be adduced to prove that the con-
tract was signed by the agent on behalf of the principal.
" Parol evidence," said Lord Denman, C. J., " is always
necessary to show that the party sued is the person making
the contract and bound by it. Whether he does so in his
own name, or in that of another, or in a feigned name, and
whether the contract be signed by his own hand or by that
of an agent, are inquiries not different in their nature from
the question who is the person who has just ordered goods
in a shop. If he is sued for the price and his identity made
out, the contract is not varied by appearing to have been
made by him in a name not his own." ^ But it is not admis-
sible on behalf of the agent for the purpose of showing that
he merely acted as agent.^ "Where the defendant, a broker,
signed a note as broker as follows : " Sold this day for (plain-
tiff's broker) to our principals," etc., and the note did not
disclose the name of the principal, parol evidence of a custom
in the trade that where a broker purchased without disclos-
ing the name of his principal he was liable to be looked to as
purchaser was admitted, as the evidence did not contradict
the written instrument, but only explained its terms.^ An
agent may, however, show by parol evidence that the con-
tract by mistake described him as principal.*

Sec. 401. To Prove Assent to Alterations in Memorandum.
— Parol evidence is admissible to prove, when alterations
have been made in a document signed by one of the parties,
that they were assented to by the other ; for as there never
was a contract till such assent on his part, the effect of the
evidence is not to vary a written contract, but merely to
show what was the condition of the document when it
became a contract.^

1 Trueman v. Loder, 11 Ad. & El. 646; Fleet v. Murton, L. E. 7 Q. B.
589, 594; see also Lindus v. Bradwell, 126; Hutchinson v. Tatham, L. E. 8
5 C. B. 583; Edmunds v. Bushell, L. C. P. 482.

E. 1 Q. B. 97. * Wake v. Harrop, 6 H. & N. 768 ;

2 Higgins V. Senior, 8 M. & W. 1 H. & C. 202 ; 30 L. J. Ex. 273 ; 31
834 ; Fawkes u. Lamb, 31 L. J. Q. B. L. J. Ex. 451 ; see further notes to
98 ; Cropper v. Cook, L. E. 3 C. P. Thompson v. Davenport, 2 Sm. & C.
194 ; Calder v. Dobell, L. E. 6 C. P. 486. 7th ed. 377 ; Benj. on Sales, 2nd ed.

8 Humfrey y. Dale, 7 E. & B. 266; 159.
affd. in Exch. Ch. E. B. & E. 1004 ; ^ Stewart v. Eddowes, L. E. 9 C. P.
Mollett V. Eobinson, L. E. 5 C. P. 311.

754 STATTJTK OF FRAUDS. [CHAP. XIH.

Sec. 402. To Prove Assent of Principal. — When a memo-
randum is signed by an agent the assent of the principal
thereto may be proved by parol,^ and a written notice to an
agent to conclude a sale on certain terms, and a written
agreement by a purchaser subscribed thereon to purchase
upon those terms constitutes a sufficient memorandum within
the statute of frauds to bind the purchaser.^

Sec. 403. Parol Variation of a Written Contract affected by
the Statute of Frauds. Effect of upon Remedies of the Parties.

— It appears to be quite well settled that the terms of a writ-
ten contract falling within the statute of frauds cannot be
altered or varied by parol ^ in any essential respect so as to
give a right of action to either party upon the contract as
varied.'^ In an early case,^ a contrary doctrine was held,
LoKD Ellenborough proceeding upon a distinction between
the contract, which the statute requires to be in writing, and
the performance of it, to which the statute has no applica-
tion ; and, in that case, under a written contract for the deliv-
ery of goods, at certain specified times, a verbal change in
the time of delivery was made, and it was held that a recov-
ery could be had upon the contract as varied.^ But the doc-
trine, at least in England, is quite well settled that no verbal
changes, in a written contract affected by the statute of
frauds, can be made, which are binding upon the parties, and
this, whether the change relates to the "performance of the
contract, or of its essential terms. Thus, in Goss v. Lord
Nugent,'^ by agreement in writing, A contracted to sell B
several lots of land, and to make a good title to them ; and a
deposit was paid. It was afterwards discovered that a good
title could not be made to one of the lots, and it was then

1 Himrod Furnace Co. v. Cleve- * Goss v. Lord Nugent, 5 B. & Ad.
land &c. E. R. Co., 22 Ohio St. 451. 58; Harvey v. Grabham, 5 Ad. & El.

2 Forbes v. Shattler, 2 Cin. (Ohio) 61 ; Stead v. Dawber, 10 id. 57 ; Noble
95. V. Ward, L. R. 1 Exchq. 117; Sander-

8 Marshall v. Lynn, 6 M. & W. son v. Graves, 10 id. 234.
109 ; Goss V. Lord Nugent, 5 B. & Ad. = Cuff v. Penn, 1 M. & S. 21.
58 ; Harvey v. Grabham, 5 Ad. & EI. « This ease was overruled by
61 ; Blood V. Goodrich, 9 "Wend. (N. Stead v. Dawber, ante.
Y.) 68; Grafton Bank v. Woodward, ' Goss v. Lord Nugent, 5 B. & Ad.
5 N. H. 99; Dana v. Hancock, 30 Vt. 58.
616; Bryan v. Hunt, 5 Sneed. (Tenn.)
543.

SEC. 403.] MEMORANDUM OR NOTE IN WRITING. 755

verbally agreed between the parties, that the vendee should
waive the title as to that lot. The vendor delivered posses-
sion of the whole of the lots to the vendee, which he ac-
cepted. In an action brought by the vendor to recover the
remainder of the purchase-money, the declaration stated that
the defendant agreed to deduce a good title to all the lots
except one, and that the vendee discharged and exonerated
him from making out a good title to that lot, and waived his
right to require the same. It was held that oral testimony
was not admissible to show the waiver of the vendee's right
to a good title as to that lot, inasmuch as the effect of such
waiver was to substitute a different contract for the one in
writing ; and by the statute of frauds, in every action brought
to charge a person on a contract for the sale of lands, tlie
agreement must be in writing. LoRD Denman, C. J., said :
" By the general rules of the common law, if there be a con-
tract which has been reduced into writing, verbal evidence
is not allowed to be given of what passed between the par-
ties, either before the written instrument was made, or dur-
ing the time that it was in a state of preparation, so as to
add to or subtract from, or in any manner to vary or qualify
the written contract; but after the agreement has been
reduced into writing, it is competent to the parties, at any
time before breach of it, by a new contract not in writing,
either altogether to waive, dissolve, or annul the former agree-
ments, or in any manner to add to, or subtract from, or vary
or qualify the terms of it, and thus to make a new contract ;
which is to be proved, partly by the written agreement, and
partly by the subsequent verbal terms engrafted upon what
will be thus left of the written' agreement. And if the pres-
ent contract was not subject to the control of any act of
parliament, we think that it would have been competent for
the parties, by word of mouth, to dispense with requiring a
good title to be made to the lot in question, and that the
action might be maintained. . . . But we think the object of
the statute of frauds was to exclude all oral evidence as to
contracts for the sale of lands, and that any contract which
is sought to be enforced must be proved by writing only."
In Marshall v. Lynn,^ it appeared that on the 15th of

1 Marshall v. Lynn, 6 M. & W. 109.

756 STATtTTE OF FEATJDS. [CHAP. XIII.

December, 1838, the plaintiff and defendant entered into a
written contract, as follows : —

" Wisbech, 15th December, 1838.
Bought of Mr. Thomas Marshall, as many potatoes as
will load his brig the Kitty, Captain William Scott, say from
sixty to seventy lasts, to be shipped on board the above ves-
sel on her arrival here the next time — say what pink kid-
neys he has at 4 s. 6 d. per sack, and the round, white, and
blue ones at 4 s. 6 d. per sack, of fifteen ounces net merchants'
ware, free on board the said ship — payment, cash on deliv-
ery.

(For William Lynn),

Robert Lynn.
Witness :

T. Marshall."

On the 25th of December, the Kitty arrived at Wisbech,
that being the next arrival after the making of the contract,
and on the following day, the plaintiff's son informed the
defendant that the Kitty would be ready to take in the pota-
toes on the 28th, when the defendant requested that the
plaintiff would let the vessel go to Lynn and load a cargo of
potatoes which he had purchased there, and for which he
could not obtain a vessel, and take them to London ; and he
then promised the plaintiff to take the plaintiff's potatoes
the next time the Kitty came to the port of Wisbech. This
proposal was agreed to, on the understanding that the plain-
tiff's potatoes should be taken the next time the Kitty came.
In pursuance of this arrangement, the Kitty sailed to Lynn,
and, after proceeding to London, and there discharging her
cargo, she returned to Wisbech, and arrived there on the 7th
of February. On the 8th of February the vessel was ready
to receive the potatoes, of which the defendant had full
notice, and was requested to take them ; but the defendant
said he could not take them then, nor did he know when he
could ; and he ultimately declined taking them. They were
afterwards shipped to London, and there sold by the plain-
tiff, who brought this action to recover the loss sustained by
the defendant's non-performance of the contract. It was
contended at the trial, on the part of the defendant, that the
alteration in the time fixed by the terms of the original con-

SEC. 403.] MEMORANDUM OK NOTE IN WRITING. 757

tract for shipping the potatoes, was a variation of it in a
material part, and ought to liave heen in writing. The judge
directed the jury to find a verdict for tlie plaintiff, giving
the defendant leave to move to enter a non-suit. This ver-
dict was set aside and a non-suit ordered. " It seems to me,"
said Paeke, B., " to be unnecessary to inquire what are the
essential parts of the contract, and what not, and that every
part of the contract, in regard to which the parties are stip-
ulating, must be taken to be material ; and perhaps, therefore,
the latter part of the judgment in Stead v. Dawber may be
considered as laying down too limited a rule. Every thing
for which the parties stipulate as forming part of the con-
tract must be deemed to be material. Now, in this case, by
the original contract, the defendant was to accept the goods,
provided they were sent by the first ship : the parties after-
wards agreed by parol that the defendant would accept the
goods if they were sent by the second ship, on a subsequent
voyage : that appears to me to be a different contract from
what is stated before. Such was my strong impression, inde-
pendently of any decision on the point : but the case of Stead
V. Dawber is precisely in point with the present, and on look-
ing at the judgment, it does not appear to proceed altogether
upon the time being an essential part of the contract, but on
the ground that the contract itself, whatever be its terms, if
it be such as the law recognizes as a contract, cannot be
varied by parol. It has been said that the adoption of this
rule will produce a great deal of inconvenience ; I am not,
however, aware of much practical inconvenience that can
result from it, and none that furnishes any reason for alter-
ing the rule of law in respect of these mercantile contracts.
They frequently vary in terms, and admit of some latitude
of construction, but the expressions used in them generally
indicate the intention of the parties sufficiently well ; there
is a sort of mercantile short-hand, made up of few and short
expressions, which generally expresses the full meaning and
intention of the parties. On the whole, it appears to me
that no reasonable distinction can be made between this case
and that of Goss v. Lord Nugent. This is a new contract,
incorporating new terms, and I think it cannot be enforced
by action, unless there is a note in writing, expressing those

758

STATUTE OF FRAUDS.

[chap. XIII.

new terms distinctly, or in the mercantile phraseology which,
as I have already said, admits of some latitude of interpreta-
tion. This action, therefore, cannot be maintained, and a
non-suit must be entered." ^

But the original contract remains, and if the plaintiff can
show his readiness to perform according to the contract, it can
be sued upon the same as though no parol change had been
attempted.^ From what has been said it will be seen that

1 A contrary doctrine is held in
Massachusetts, where the parol agree-
ment relates merely to the perform-
ance of the contract. Cummings c.
Arnold, 3 Met. (Mass.) 486; Stearns
V. Hall, 2 Cush. (Mass.) 31; Norton v.
Simonds, 124 Mass. 19. See also, to
the same effect, Gault v. Brown, 48
N. H. 183 ; Buell v. Miller, 4 id. 196 ;
Eichardsou i). Cooper, 25 Me. 450;
Knibs V. Jones, 44 Md. 396 ; Negley v.
Jeffers, 28 Ohio St. 90; Eaffensbur-
ger V. CuUison, 28 Penn. St. 426.
But holding the doctrine of the prin-
cipal ease, see Schultz v. Bradley, 57
N. y. 646; Ladd .,. King, 1 R. I. 224;
Dana v. Hancock, 30 Vt. 616 ; Swain
V. Seamans, 9 "Wall. (U.S.) 224; Em-
erson V. Slater, 22 How. (U.S.) 42;
Musselman u. Storer, 31 Penn. St.
265 ; Espy v. Anderson, 14 Penn. St.
308 ; Hickman o. Haynes, L. R. 10 C.
P. 598 ; WilUams v. Robinson, 73 Me.
186.

2 Noble V. Ward, L. R. 1 Exchq.
117 ; Ogle V. Earl Vane, L. E. 3 Q. B.
272 ; Hickman v. Haynes, L. E. 10 C.
P. 598. But not otherwise : Plevin v.
Downing, 1 C. P. Div. 220; Tyers v.
Eosedale Iron Co., L. E. 10 Exchq.
195. Although neither party can
avail himself of a parol agreement to
vary or enlarge the time of perform-
ance, yet, if the seller has postponed
delivery at the verbal request of the
buyer J or the buyer has forborne to claim
delivery at the verbal request of the
seller, neither the seller in the former,
nor the buyer in the latter, case is
precluded from afterwards suing on
the original contract. In Ogle v.
Earl Vane, ante, the defendant con-
tracted to sell to the plaintiff 500

tons of iron, delivery to extend to
the 25th of July, 1865. Owing to
an accident to the defendant's fur-
naces, he had delivered none of the
iron by that date. Afterwards negoti-
ations passed between the parties,
but eventually, in February, 1866, the
plaintiff went into the market. The
price of iron had risen since July,
and the plaintiff sought to recover
from the defendant the difference
between the contract and the market
price in February. The defendant
paid into court the difference between
the contract and the market price in
July. The judge at the trial left it
to the jury to say whether on the
evidence they thought that the de-
fendant had held out that he should
be able to deliver the iron, and that
the plaintiff had waited accordingly,
in which case they might return a
verdict for damages beyond the
amount paid into court. The jury
returned a verdict for the full amount
claimed. Upon the argument of a
rule to enter the verdict for the de-
fendant, on the ground that there was
no evidence to go to the jury, of then
plaintiff being entitled to more dam-
ages than were represented by the
sum paid into court, it was objected,
on behalf of the defendant, that any
agreement for postponement ought to
have been in writing to satisfy the
statute of frauds ; but it was held by
the Court of Queen's Bench, and af-
firmed by the exchequer chamber,
first, that there was evidence from
which the jury might infer that the
plaintiff's delay in going into the mar-
ket was at the defendant's request;
and, secondly, that as the evidence

SEC. 403.] MEMORANDUM OR NOTE IN WRITING.

759

parol evidence is not admissible to change any of the terms
of the contract, all the terms, about which the parties have

went to show, not a new contract, but
simply a forbearance by the pluintiff at
the request of the defendant, the statute
of frauds did not apply. The cases
bearing upon this point are consid-
ered in tlie judgment of the Court of
Common Pleas in Hickman c. Haynes,
ante. The contract was for the sale by
the plaintiff to the defendants of 100
tons of pig-iron by monthly deliveries
of twenty-five tons, in March, April,
May, and June, 1873. Seventy-five
tons of iron were delivered during
the months of March, April, and May,
respectively, in accordance with the
contract, but early in June the de-
fendants verbally requested the plain-
tiff, and the plaintiff consented, to
postpone delivery of the remaining
twenty-five tons. Upon the expira-
tion of the contract time the plain-
tiff tendered the residue of the iron,
but the defendants then refused to
accept it. In an action for damages
for breach of contract the plaintiff
was held entitled to succeed. It was
contended, on behalf of the defend-
ants, that a new agreement for the
delivery and acceptance of the re-
maining twenty-five tons of iron had
been substituted for the original writ-
ten contract, and that this new agree-
ment, being verbal, could not be en-
forced; but the court held that the
original contract still subsisted, and
that the plaintiff could maintain an
action upon it; that the assent to the
defendants' request to give time was
not a valid agreement binding the
plaintiff, but a voluntary forbearance
on his part ; and the same distinction
was drawn between a substitution of
one agreement for another, and a vol-
untary forbearance to deliver at the
request of another, which had already
been recognized in Ogle v. Earl Vane.
In Plevins v. Downing, ante, the plain-
tiffs contracted to deliver 100 tons of
pig-iron, " 25 tons at once, and 75 tons
in July next." By the end of July
the plaintiffs had delivered, and the

defendant had accepted, 75 tons in
all. There was no evidence that the
defendant had requested the plain-
tiffs, before the end of July, to witlihold
delivery of the remaining 25 tons;
but there was evidence that in October
the defendant verbally requested the
plaintiffs to forward 26 tons, wliich,
when forwarded, he declined to ac-
cept. Held, that the plaintiffs could
not sue on the original contract, inas-
much as they were unable to prove that
they were ready and willing to deliver
the 25 tons at the end of July, and had
only withheld delivery at the defend-
ant's request ; neither could they rely
upon the request to deliver made to
them by the defendant in October, as
that would have been to substitute a
parol for a written agreement. " It
is true," said Buett, J., in delivering
the judgment of the court, " that a
distinction has been pointed out and
recognized between an alteration of
the original contract in such cases
and an arrangement as to the mode
of performing it. If the parties have
attempted to do the first by words
only, the court cannot give effect in
favor of either to such attempt; if
the parties make an arrangement as
to the second, though such arrange-
ment be only jnade by words, it can
be enforced. The question is, what
is the test in such an action as the
present, whether the case is within
the one rule or the other. Where
the vendor, being ready to deliver
within the agreed time, is shown to
have withheld his offer to deliver till
after the agreed time, in consequence
of a request to him to do so made by
the vendee before the expiration of
the agreed time, and where after the
expiration of tlie agreed time, and
within a reasonable time, the vendor
proposes to deliver, and the vendee
refuses to accept, the vendor can re-
cover damages . . . but if the alter-
ation of the period of delivery were
made at the request of the vendor.

760

STATUTE OP' FRAUDS.

[chap. XIII.

seen fit to contract, being regarded as material.^ But the
inconvenience of this rule has led even the English courts to
look about for means to evade it, and it is held that, while
parol evidence is not admissible to prove a substituted con-
tract, yet, when performance under the contract is completed, evi-
dence of a substituted mode of performance is admissible.^ Thus
where by the contract goods were to be forwarded to Ostend,
but they were in fact forwarded to Rotterdam, evidence was
admitted to show that the purchaser by his conduct had
assented to such substituted mode of performance.^ Mk.
Benjamin, in his work on sales,* says : " The following prop-
ositions may fairly be deduced from the authorities where, in
contracts for the delivery of goods by instalments, there
have been applications for postponement of deliveries by
seller or purchaser, and a subsequent tender of or request
for delivery : A. Where the tender or request is within the
contract time. 1. The defendant is bound to accept or deliver,
although there has been postponement at the plaintiff's re-
quest. 2. It has not yet been decided whether the defendant

though such request were made
during the agreed period for delivery,
so that the vendor would be obliged,
if he sued for a non-acceptance of an
offer to deliver after the agreed
period, to rely upon the assent of the
vendee to his request, he could not aver
and prove that he was ready and willing
to deliver according to the terms of the
original contract. The statement shows
that he was not. He would be driven
to rely on the assent of the vendee to
a substituted time of delivery, that is
to say, to an altered contract or a new
contract. This he cannot do, so as to
enforce his claim. This seems to be
the result of the cases which are
summed up in Hickman v. Haynes."
In Tyers v. The Rosedale Iron Co.,
ante, the defendants were the sellers,
and the plaintiffs the purchasers, of
iron, deliverable in monthly quanti-
ties over 1871. The defendants with-
held delivery of various monthly
quantities at the plaintiffs' request.
Afterwards, in December, 1871, the
last month fixed in the contract for
delivery, the plaintiffs demanded im-

mediate delivery of the whole of the
residue of the iron deliverable under
the contract. The defendants refused
to deliver any more than the monthly
quantity for December. In an action
by the plaintiffs for non-delivery, it
was held by the exchequer chamber,
reversing the decision of the majority
of the Court of Exchequer, that the
defendants were not entitled to refuse
to deliver more than the monthly
quantity.

^ Pakke B., in Marshall v. Lynn,
6 M. & W. 116. But see Hoadley v.
McLean, 10 Bing. 489, where changes
made in a laundalet which the plain-
tiff was manufacturing for the de-
fendant under a written contract,
made by the direction of the purchaser,
were permitted to be shown to have
been made by the purchaser's direc-
tion, as an excuse for not making it
according to the contract.

2 Hoadley v. McLean, 10 Bing.
489.

8 The Leather Cloth Co. v. Hie-
ronimus, L. R. 10 Q. B. 140.

* Benjamin on Sales, § 217.

SEC. 403.] MEMOKANDtJM OE KOTE IN WRITING. 761

is bound to accept or deliver all the quantities within the
contract time, or only within some reasonable time after-
wards, though the latter appears to be the better opinion .^
B. Where the tender or request is after the contract time.
1. If the postponement has taken place at the defendant's
request, he is estopped from denying that the plaintiff
was ready and willing to deliver or accept within the con-
tract time.^ 2. If the postponement has taken place at the
plaintiff's request, he cannot maintain his action on the original
contract, because he cannot prove that he was ready and will-
ing to deliver or accept pursuant to the contract.^ 3. In the
last case, if suing on a substituted contract, such contract must
have been reduced to writing in order to satisfy the statute
of frauds." * The contrary dictum of Martin, B., in Tyers v.
Rosedale Iron Co.,^ must, it is submitted, be considered as
overruled in Plevins v. Downing. Proof of approval, after
performance of a substituted mode of performance, is a dif-
ferent thing from proof of a substituted contract, and may
be given by parol.^ And it may be said that these rules, or
exceptions, do not contravene the statute, and seem to be
justified both in principle and reason. But any parol change
ill any of the terms of the contract as they exist in the writ-
ing, opens the door to all the mischiefs which the statute
was intended to prevent. Because if, after a contract has
been reduced to writing so as to avoid the statute, it can be
varied by parol, the statute can always be evaded by the very
fraud and perjury which the statute was designed to avoid.
Where a written contract has been varied by parol, and the
parol variation has been performed, equity will enforce the parol
modification of the original contract. Thus a purchaser of
land under a written contract, which provided that he should
build a saw-mill on the land to be conveyed, afterward ob-
tained oral permission from the vendor to erect the mill on
an adjoining piece of land not mentioned in the contract, and

1 Tyere v. Eosedale Iron Co., L. R. ' Plevins v. Downing, 1 C. P. D.
10 Ex. 195, in Ex. Ch., reversing S. C. 220.

L. B. 8 Ex. .305. * Plevins <.. Downing, 1 C. P. D.

2 Ogle V. Earl Vane, L. R. 3 Q. B. 220.

272, in Ex. Ch., affirming S. C. L. R. 2 ^ l. r. g Ex., at p. 319.

Q. B. 275 ; Hickman v. Haynes, L. R. " The Leather Cloth Co. v. Hie-

10 C. P. 598. ronimus, L. R. 10 Q. B. 140.

762 STATUTE OP FRAUDS. [CHAP. XIII.

the purchaser agreed to pay at a certain rate for the addi-
tional land. The mill having been built, it was held that
equity would enforce the oral modification of the original
contract.^

Sec. 404. Lost Memorandum. — The question whether,
where a memorandum answering the requirements of the
statute has once been made, but is lost before action brought,
or the trial, its contents can be proved by parol, is of con-
siderable importance. In a Wisconsin case,^ where it was
shown that A sent by mail a letter,' making a proposal for a
contract with B, and B deposited in the post-office, prepaid,
a letter addressed to A at his proper post-office address,
accepting such proposal, it was held that the contract was
thereby completed, although A never received the letter of
acceptance. But it will be observed that in this case, the
proof only went to the execution of the contract, and did not
involve parol proof of any of its terms. And as the object of the
statute seems to be to require proof in writing of the terms of
the contract, it is difficult to understand how parol proof can
be admitted as a substitute, except possibly, where there is no
conflict in the evidence as to what the terms of the lost instrument
really were; and where there is any conflict in that respect,
although the paper lost is only one of several, going to make
up the completed memorandum, it will prevent a recovery.^

1 Marsh v. Bellew, 45 Wis. 36. In rescission of a sale of land, the pur-

Phelps V. Seeley, 22 Gratt. (Va.) 573, chase-money not having been paid,

it was hold that a written contract, acecompanied by a return of the

although under seal, rhay be rescinded possession toUhe vendor, is not within

by a subsequent parol agreement fully the statute.

carried out. See, also. Marsh v. Bel- ^ Washburn v. Fletcher, 42 Wis.

lew, 45 Wis. 36, where it was held 152. See also Ryan v. Salt, 3 U. C.

that a person might waive a provision C. P. 83 ; Davis o. Robertson, 1 Mill,

of a written contract by parol. In (S. C.) 71 ; Jelks v. Barrett, 52 Miss.

Arrington v. Porter, 47 Ala. 714, it 315.

was held that a parol contract for the ^ Ballingall v. Bradley, 17 111. 373.

CHAPTER XIV.

THK SIGNATURE TO THE MEMOEANDUM.

405. Need be Signed only by Party to be Charged.

406. Approval of Draft of Agreement.

407. By Agent.

408. Alteration of Draft of Agreement.

409. What is a SuflSeient Signature.

410. Signature as Witness.

411. By Partner.

412. May be by Pencil, Stamp, or Printed.

413. Mark or Initials Sufficient.

414. Instructions for Telegram.

415. Place of Signature not Material.

416. Signature at Beginning.

417. Signature upon Goods in Catalogue or Order-Book.

418. Signature in the Third Person.

419. Kule in Caton v, Caton.

Section 405. Memorandum need only be Signed by the
Party to be Charged. — The fourth section of the statute of
frauds requires that the note or memorandum shall be signed
" by the party to be charged," and the seventeenth " by the
parties to be charged." The object of the statute is to
afford protection against fraud and perjury, and the means
emploj'ed are requiring a written memorandum and prevent-
ing a recovery by mere oral proof. The end and object of
the statute are attained hy written proof of the obligation of the
defendant. He is the party to be charged with a liability,
and the one intended to be protected against the dangers of
false oral testimony. To say that the plaintiff or the party
seeking to enforce a contract is himself a party to be charged
therewith is a perversion of language. The term " parties "
is used in connection with the words " to be charged thereby,"
and does not include all the parties to the contract. It is, on
the contrary, limited and restricted by the qualifying words
to such only of those - parties as are to be bound or held

764 STATUTE OF FEAXIDS. [CHAP. XIV.

chargeable, and legally responsible on the contract, or on'
account of a liability created by or resulting from it. If to
include all the parties had been iutended, those words " to be
charged thereby " would have been unnecessary and super-
fluous. The appropriate language to express such intention
would have been that the note or memorandum should be
subscribed " by all the parties thereto," or " by the parties
thereto," or some such general terms. Mutuality of ohligor
tion is not essential to render a party liable upon a contract.
If there is a consideration for his undertaking, he is bound ;
and the fact that the contract may not be enforceable against
one party, because not subscribed by him, is no defence to
the other, by whom it is' subscribed.^ Under both these
sections it has long been well settled that an agreement signed
by one party only is sufficient to charge him within the statute,
and therefore, upon a contract for the sale of land or of
goods, if the purchaser alone has signed the contract, he
cannot refuse to execute the conveyance or to accept the
goods upon the ground that the purchaser has not signed
also.^ And it is no objection that the party signing can

1 Justice V. Lang, 42 N. Y. 493. "Wis. . 176 ; Waul v. Kirkman, 27

2 Shirley v. Shirley, 7 Blackf. Miss. 823 ; Stewart w. Eddowes, L. E.
(Ind.) 452; Crutchfield v. Donathan, 9 C. P. 311; Brettel v. Williams, 4
49 Tex. 691;. Anderson v. Harold, 10 Exchq. 623; Bird v. Blosse, 2 Vent.
Ohio, 399 ; Davis v. Shields, 26 Wend. 361 ; Marqucze t . Caldwell, 48 Miss.
(N. Y.) 341 ; Douglass u. Spiers, 2 N. 23 ; Williams v. Eobinson, 73 Me.
& M. (S. C.) 207 ; Fenly v. Stewart, 2 186; 42 Am. Eep. 352; Getchell v.
Sandf. (N. Y.) 101 ; Morin v. Murtz, Jewett, 4 Me. 350. It is well settled
13 Minn. 191 ; McCrea v. Purmort, 16 that under this statute the agreement
Wend. (N. Y.) 460; Rhodes v. Cast- need only he signed hy him who is to
ner, 12 Allen (Mass.) 130; Penniman he charged by it. Seton u-. Slade, 7
V. Hartshorn, 13 Mass. 87 ; Gartnell v. Ves. 265 ; Fowle v. Freeman, 9 id.
Stafford, 12 Met. 545 ; Smith v. 351 ; Martin v. Mitchell, 2 Jac. & W.
Smith, 8 Blackf. (Ind.) 208; Worrall 426; Laythoarp v. Bryant, 2 Bing.
!). Munn, 5 N. Y. 229 ; Ivory w. Mur- N. C. 735; Ballard v. Walker, 3
phy, 36 Mo. 534; Mason v. Decker, Johns. Gas. (N. Y.) 60; Clason v.
72 N. Y. 595; Newby v. Rogers, 40 Bailey, 14 Johns. (N.Y.) 484; McCrea
Ind. 9; Lent w. Paddleford, 10 Mass. v. Purmort, 16 Wend. (N.Y.) 460;
236 ; Barstow v. Grey, 3 Me. 409 ; Penniman v. Hartshorn, 13 Mass. 87 ;
Justice V. Lang, 52 N. Y. 423 ; Lowry Thayer v. Luce, 22 Ohio St. 62 ; Jus-
V. Mehafeey, 10 Watts (Penn.) 503; tice v. Laug, 42 N. Y. 493; 1 Am.
De Cordova v. Smith, 9 Tex. 129 ; Eep. 576 ; Lowher v. Connit, 36 Wis.
Himrad Furnace Co. v. Cleveland 176. Kent, Ch., in Clason ;;. Bailey,
E. E. Co., 22 Ohio St. 451 ; Western ante, said that the weight of the argu-
Union Tel. Co., 86 111. 246 ; Griffin v. ment was in favor of the construction
Eemhert, 2 S. C. 410 ; Thayer v. Luce, that the agreement concerning lands
22 Ohio St. 62 ; lyowber v. Connit, 36 should be mutually binding, and the

SEC. 405.J SIGNATUEE TO THE MEMORANDUM.

765

enforce the contract while the other caymot ; ^ for, if it is said
that unless the plaintiff also signs there is a want of mutual-

same views were expressed by Vbb-
PLANK, Senator, in the court of errors
in Davis v. Shields, 26 Wend. 362, but
both agreed that the law was well
settled the other way both in this
country and England. A change to
conform to the views of Chancellor
Kent was afterward recommended by
the revisers of the New York statutes,
but the legislature rejected the alter-
ation and adhered to the old words.
See Willard's Eq. 267, 8. The same
objection was made in the case of
Laythoarp v. Bryant, ante, where it
was said tliat unless the agreement
was signed by both parties there
would be a want of mutuality ; but the
chief justice said, " Whose fault is
that ? The defendant might have
required the plaintiff's signature, but
the object of the statute was to secure
the defendant's. The preamble runs
'for prevention of many fraudulent
practices which are commonly en-
deavored to be upheld by perjury and
subornation of perjury,' and the whole
object of the legislature is answered
when we put this construction upon
the statute. Here, when the party
who has signed is the party to be
charged, he cannot be subject to any
fraud. And there has been a little
confusion in the argument between
the consideration of an agreement and
the mutuality of claims. 1 find no
case nor any reason in saying that
the signature of both parties is that
whicli makes the agreement." It is
sufficient if the contract or memoran-
dum thereof is signed by the party to
be charged, that is, by the vendor.
Hatton V. Gray, 2 Ch. Ca. 164 ; Seton
B. Slade, 7 Ves. 264; Fowle v. Free-
man, 9 Ves. 351 ; Western v. Russell,
3 V. & B. 187 ; Egerton v. Matthews,
6 East, 30.7 ; Boys «. Ayerst, 6 Madd.
316; Owen u. Thomas, 3 My. & K.
353 ; Field v. BoUand, 1 Dru. & Wal.
37 ; Liverpool Borough Bank u.
Eccles, 4 H. & N. 139 ; Reuss v. Picks-
ley, L. R. 1 Exchq. 342 ; Beer v. Lon-

don & Paris Hotel Co., L. R. 20 Eq.
423.

1 In Williams v. Robinson, ante,
Virgin, J., says ; " The memorandum
need be signed only by one of the
parties, the party to be charged: Bars-
tow V. Gray, 3 Me. 409 ; Getchell o.
Jewett, 4 id. 350 ; or by both : Atwood
... Cobb, 10 Pick. (Mass.) 227 ; or coun-
terpart memoranda may be made and
signed by the respective parties:
Sewall V. Quincy, 4 Me. 497. So that
if a mutual oral executory contract
valid at common law be made, and one
of the parties obtain from the other
the note or memorandum thereof con-
templated by the statute, but does not
give a corresponding one, he mag enforce
It, although the other cannot, the
former having secured while the other
has not the evidence which the stat-
ute has made indispensable to its en-
forcement. Rogers v. Saunders, 16
Me. 92 ; Laythoarp v. Bryant, 2
Bing. (N.C.)469;" and in Old Colony
R. R. Co. V. Evans, 9 Gray (Mass.)
25, it was held that a written contract
signed bg one partg and acted upon bg
both may be enforced in equity against
the signer by one who has not signed.
Dressel v. Jordon, 104 Mass. 407 ;
Slater v. Smith, 117 id. 96. In Jlizell
V. Burnett, 4 Jones (N. C.) L. 249, it
was held that under the statute of
frauds a contract in writing, to sell
land, signed by the vendor, is good
against him, although the correlative
obligation of the buyer to pay the
price is not in writing, and cannot be
enforced against him. Where an
action is brought upon a note given
by a vendee, although it may not be
such a note or memorandum as satis-
fies the statute, the maker cannot
avoid the note which he has given,
because he has omitted to bind the
vendor. Rhodes v. Starr, 7 Ala. 347.
In Crutchfield v. Donathan, 49 Tex.
691, the defendant executed to the
plaintiff a negotiable note which
stated that the consideration was land

766 STATUTE OP FRAUDS. [CHAP. XIV.

ity, the answer is that the defendant might have required the
plaintiff's signature to the contract ; or, that if he has not
done so it is his own fault ; the object of the statute was to
secure the defendant's.^ The party signing may, it appears,
require the other to accept or refuse the contract in writing,
and if this is not done may himself rescind it,^ at least before
the other has done some act to bind himself.^ Where articles
of association contained a clause entering into a contract
required by the statute to be in writing, and the articles
were signed by seven members of the company, but no con-
tract was entered into under the seal of the companj-, it was
held that the articles were a contract between the sharehold-
ers inter se, and did not create any contract between the
plaintiff, who was not a party, and the company, and that the
signatures to the articles which were afSxed, alio intuitu,
were not signatures to a memorandum of the contract within
the statute, so as to bind the company.*

Sec. 406. Approval of Draft Agreement or Conveyance by
Parties, "Whether Sufficient Signature. — It seems to be doubt-
ful whether the signature, by way of approval, of a draft
agreement or conveyance, by a party to be bound, is a suffi-
cient signature within the statute.^ Where a draft agree-
ment had on the back of it the following memorandum, " We
approve of the within draft," and this was signed by the
parties, it was argued that this draft, though not of itself an

sold him by the plaintiff. In an ' Martin v. Mitchell, 2 Jac. & W.

action thereon it was held that the 428. The foregoing cases overrule

action was upon the note and not dicta in Lawrenson v. Butler, 1 Sch.

upon the contract, and that it was en- & Lef . 13 ; and O'Eourke v. Perceval,

forceable as a note, although not 2 Ball & B. 58. As to when a cov-

sufficient as a memorandum under the enantee may sue for a breach of

statute because not signed by the covenant, although he has not exe-

vendor. McGowen «. West, 7 Mo. cuted the deed, see Wetherell 17.

569; Gillespie ./. Battle, 15 Ala. 276; Langston, 1 Ex. 634; Pitman v.

Allen V. Bennett, 3 Taunt. 169 ; Lord Woodbury, 3 Ex. 4 ; Swatman u.

Ormund u. Anderson, 2 Ball &B. 370; Ambler, 8 Ex. 72; British Empire

Thornton v. Kempster, 5 Taunt. 786. Mutual Life Assurance Co. v. Browne,

1 Laythoarp v. Bryant, 2 Bing. (N. 12 C. B. 723 ; Morgan v. Pike, 14 C.
C.) 743, per TiNDAL, C. J. See as to B. 473; Taylor on Evid. 6th ed. 904.
alterations made after signature by * Eley v. The Positive Assurance
one of the parties, Stewart v. Eddowes, Co., L. R. 1 Ex. D. 20. But see Jones
L. R. 9 C. P. 311. V. Victoria Graving Dock Co., 2 Q. B.

2 Lord Ormund u. Anderson, 2 D. 314, holding a contrary doctrine.
Ball & B. 371 ; Williams v. Williams, » Parker v. Smith, 1 Coll. 608.
17 Beav. 213, 216.

SEC. 408.] SIGNATTJKE TO THE JIEMORANDUJI. 7G7

agreement, was evidence of an agreement. But the court
held the contrary, Lord Tenterden, C. J., saying that the
words in question did not import an agreement, for if they
did there would not have been any necessity for any other
instrument.^ " Where the parties themselves, not being
professional persons, sign such a memorandum, it is a ques-
tion to be decided in each case Avhether they signed in that
form as simply approving of the draft as such, or whether
they intended to give validity to it as an agreement." ^

Sec- 407. By Agent. — It seems that the written approval
by a professional agent of a draft agreement, or conveyance,
which recites the agreement, is not sufficient, the signing
being alio intuitu? Where, the defendant having proposed
to take a lease of certain premises for the term of seven
years, a draft lease was prepared to which the defendant
made some objections, and ultimately took it away to be
settled by his solicitors, who returned it to the plaintiffs
solicitors with the following letter : " We have seen our
client, and have altered the draft lease in accordance with
his instructions. We trust there will be no impediment to
prevent an early completion, and shall be glad to receive the
draft as soon as you can, that we may engross the counter-
part " ; and the plaintiff's solicitors replied, returning the
draft and engrossment of the lease and counterpart, stating
that, according to the practice where there is no stipulation
on the subject, the lessor's solicitor invariably prepares both
lease and counterpart, it was held that there was no evidence
of any contract binding the defendant to take the lease, and
no memorandum of any contract sufficient for that purpose
within the statute.*

Sec. 408. Alteration of Draft Conveyance by Party to it. —
The alteration of a draft conveyance by one of the parties in
his own hand is not a sufficient signature, even though the

1 Doe V. Pedgriph, 4 C. & P. 312. Bishop of Norwich, 1 Kop. H. & W.

2 Sugd. V. & P. 14th ed. 144 ; and by Jac. 308, n. ; Jackson v. Oglander,
see Poligno v. Martin, 22 L, J. Ch. 2 H. & M. 472 ; and see Thornbury v.
502. Bevill, 1 Y. & C. C. C. 554 ; Card v.

3 Dart. V. & P. 5th ed. 234, citing JafEray, 2 Sch. & Lef. 374. '

Lady Thynne v. Earl of Glengall, 2 « Forster v. Rowland, 7 H. & N.
H. L. C. 131; Lord Townshend v. 103.

768 STATUTE OP FEAUDS. [CHAP. XIV.

seller afterwards executes it, and causes it to be registered,^
nor will it be sufficient if the whole conveyance is drawn by
the defendant if not signed, for the statute has made signing
absolutely necessary for the completion of the contract,^ and
the mere circumstance of the name of a party being written
by himself in the body of a memorandum of agreement for
a lease will not constitute a signature within the statute.^
The rule therefore appears to be that the mere approval or
alteration of a draft agreement or conveyance by one or both
of the parties, or by a professional agent, unless with the
intention to contract, is not a sufficient signing within the
statute. In Shippey v. Derrison,* the defendant had entered
into a parol agreement for a lease, and a draft was prepared
and sent to him on which he endorsed and signed a memo-
randum requesting the plaintiff to relet the premises, and it
was held that this was a sufficient signature. The ground of
decision was that the defendant admitted that he had entered
into the agreement.

Sec. 409. what is a Sufficient Signature. — It is not enough
to identify : there must be a signing, that is to say, either an
actual signature of the name or something intended by the
writer to be equivalent to a signature, such as a mark by a
marksman. Thus a letter from a mother to her son, begin-
ning "My dear Robert," and concluding "your affectionate
mother," was held not signed so as to constitute a binding
contract within the intention of. the statute.^

Sec. 410. Signature as Witness. — It appears that a person,
whether principal or agent, signing an agreement as witness
with knowledge of its contents, and with the intention of authen-
ticating the instrument, will he hound.^ In one case,'^ LoRD
Eldon said that " where a party principal, or person to be
bound, signs as what he cannot be, a witness, he cannot be
understood to sign otherwise than as principal." Where,
however, an auctioneer's clerk, whose signature if on behalf

1 Hawkins v. Holmes, 1 P. Wms. ^ Selby v. Selby, 3 Mer. 2 ; and see
770. Skelton v. Cole, 1 De G. & J. 587.

2 Ithel V. Potter, 1 P. Wms. 771. « Welford v. Beazley, 3 Atk. 504 ;
8 Stokes u. Moore, 1 Cox, 219 ; 1 Ves. 6 ; Symons v. Symons, 6 Madd.

Caton V. Cfaton, L. E. 1 Ch. 137; affd. 207.

L. R. 2 H. L. 127. '' Coles v. Trecothick, 9 Ves. 251.

* 5 Esp. 190.

SEC. 412.] SIGNATURE TO THE MEMOllANDUM.

769

of the vendor would have bound him, attestetl the purchaser's
signature to a written memorandum of the contract, it was
held that this was not sufficient to bind the vendor. And
Lord Denman, C. J., said that " he thought tlie above
remark of Lord Eldon open to much observation ; that no
such decision had been actually made ; and that if it had, he
should pause, unless he found it sanctioned by the very
highest authority, before he held that a party attesting was
bound by the instrument.^

Sec. 411. By Partner. — One of a partnership firm may
bind the other partners, on a purchase of goods required by
the firm in the course of their business, by signing the usual
style of the firm.^

Sec. 412. Signature may be in Pencil, by a Stamp, or
Printed. — The signature may be written in pencil instead of
ink, for signature in pencil is not necessarily deliberative,* or

question of fact, in view of all the
circumstances the principal of which
are the purpose for which the writin;^
was stamped, and also whether the
stamp had been adopted as a signa-
ture. Boardman v. Spooner, 13 Allen
(Mass.)353;Druryi'.Young,58Md.540.
See Zachrisson v. Poppe, 3 Bos. (N. Y.)
171, for instance ii) which a printed
signature was held not sufficient.
Where the name of a party is written
at the commencement of a contract,
as "J S hereby agrees, etc.," and is
also signed at the end thereof, but the
signature is marked off, it cannot be
treated as a signed contract by reason
of the name at the commencement,
nor by reason of the actual signature,
unless it is shown that the contract
was signed for the purpose of perfect-
ing the contract, and that it became
a valid contract. McMillen v. Terrell,
23 Ind. 168. A memorandum of a
sale of land written by the vendor in
his own memorandum book, and
signed by him and by the agent of the
vendee,.h valid, and not open to vari-
ance by parol proof, Wierner v.
Whipple, 53 Wis. 298 ; but an entry
made by the vendor in his memoran-
dum book of the name of the pur-

1 Gosbell V. Archer, 2 Ad. & El.
500 ; 5 N. & M. 485 ; and see Doe ;;.
Burdett, 9 Ad. & El. 971 ; S. C. 6 M.

6 Gr. 386; and Bult v. Morrell, 12
Ad. & El. 745. Upon these cases
LoKD Si. Leonards remarks, Sugd.
V. & P. 13th ed. 116, that "there ap-
pears to be no foundation for the
doubt thus thrown upon the dictum of
Lord Eldon, for he cgnfines his ob-
servation to the case where the person
to be bound signs as, what he cannot be,
a witness, and must therefore be con-
sidered to sign in his proper charac-
ter. By the rule as expressed by
Lord Eldon, the person signing is
assumed to be really the contracting
party. In the case put by way of
objection there would be no real con-
tract by the party to sign."

2 Norton v. Seymour, 2 C. B. 792.

3 Geary v. Physic, 5 B. & C. 234 ;

7 D. & R. 653; Lucas v. James, 7
Hare, 410; Draper v. Pattina, 2
Speers (S. C.) 292; Clason v. Bailey,
14 John. (N. Y.) 484; Merritt v.
Clason, 12 id. 102; McDowell v.
Chambers, 1 Strobh. (S. C.) Ch. 347.
The question as to whether a. name
stamped or printed on a paper was
intended as and for a signature is a

770 STATUTE OF FRAUDS. [CHAP. XIV.

it may be made by means of a stainp.^ The ordinary mode
of aii&xing a signature to a document is not by the hand
alone, but by the hand coupled with some instrument, such
as a pen or a pencil, and there is no distinction between using
a pen or a pencil and using a stamp, where the impression is
put upon the paper by the proper hand of the party signing.
In each case it is the personal act of the party, and to all
intents and purposes a signing of the document by him.^ So
also the signature may be printed if recognized by the party
to be charged, and appropriated by him to the particular
contract.^ Thus, in Saunderson v. Jackson, it was held that
a bill of parcels in which the vendor's name was printed,
delivered to the vendee at the time of order given for the
future delivery of goods, was a sufficient memorandum of the
contract within the statute ; and at all events, that a subse-
quent letter written and signed by the vendor referring to
the order might be connected with the bill of parcels so as to
take the case out of the statute. In a Maryland case,* the
court say : " It is therefore a sufficient signing if the name Ic
in print, and in any part of the instrument, provided that the
name is recognized and appropriated hy the party to be his.
. . . " It is for the jury to determine the question whether the
printed names were adopted and appropriated by the defend-
ants as theirs." *

chaser and of the terma of the eon- ' 2 B. & P. .238 ; and see Schneider
tract of sale, which was read to the v. Norris, 2 M. & Sel. 286; Drury !>.
agent of the vendee, who made the Young, 58 Md. 546.
purchase, and assented to hy him as ^ Drury v. Young, ante.
correct, is not sufficient, it not being ^ The civil law did not require
signed by the party to be charged, or by the signature of a party to a writ-
his agent. Bailey v. Ogden, 3 Johns- ten contract of sale if the contract
(N. Y.)399. See also Barry 2!. Law, 1 was in his own handwriting. "With
Cr. (U. S. C. C.) 77. But where a regard to those contracts of sale and
person who has sold land or goods to purchase which are perfected by
another, and renders an account to writing, we have ordained," ohserves
him in which the price thereof is- the emperor in the Institutes, " that
charged, and he signs the account, it they shall not be valid and binding
is held a sufficient memorandum ; unless they be written by the contract-
otherwise not. . Denton v. McICenzie, ing parties, or signed by them if
1 Dessau (S. C.) 289. written by another." Lib. iii. tit. 24.

1 Bennett v. Brumfitt, L. E. 3 C. Butbythecommonlaw,if thedefendant
P. 28; Brayley v. Kelly, 25 Minn, has written the whole contract with
160 ; Boardman u. Spooner, 13 Allen his own hand, without signing it as a
(Mass.) 353. concluded agreement, this is not suf-

2 Bennett u. Brumfitt, L. E. 3 C. ficient, as the statute has made signing
P. 28, per Bovill, C. J. absolutely necessary for the com-

SEC. 414.] SIGNATURE TO THE MEMOKANDUM.

771

Sec. 413. Mark or Initials Sufficient. — It is not necessary
that the name of the party to be charged should be actually
written by him, but it is sufficient if the memorandum is
authenticated by him by means of a mark, or it would appear
by his initials, and parol evidence is admissible to apply
them.^ In Hubert v. Moreau,^ Best, C. J., said : " Undoubt-
edly a signing by a mark would satisfy the meaning of the
statute ; but here there is nothing intended to denote a
signature." Where an agent, being unable to write, held
the top of the pen while another person wrote his name to
the agreement, it was held that there was a sufficient signa-
ture.*

Sec. 414. instructions for Telegram. — The signature to
instructions for a telegram is sufficient to' bind the person
signing, so as to render him liable on a contract accepted by
the telegram, whether as principal or agent.*

pletion of the contract. Ithel v.
Potter, cited 1 P. Wms. 771. A party
may, under certain circumstances, be
bound by his signature, altliough he
subscribed in form as a witness.
Welford v. Beazley, 1 Ves. 6 ; Goshell
«. Archer, 2 Ad. & El. 508. " What,
within the legal intent of the statute,
will amount to a signing, is the same
question in equity as at law." Morri-
son V. Turnour, 18 Ves. 183. In the
case of contracts for the sale and
purchase of goods and chattels and
movables it has been held, that if a
man writes his name against an entry
or memorandum in a book or ledger,
or endorses his name on printed par-
ticulars of sale, printed handbills, or
printed descriptions, or on packages
containing goods, with intent to
denote that he has purchased the
contents, this is a sufficient signature,
and the name may, as previously
mentioned, be written in pencil as
well as in ink. Geary v. Physic, 5
B. & C. 234 ; Hodgson v. Le Bret, 1
Camp. 283; Jeffrey v. Walton, 1
Stark. 267. A man may sign also by
his initials, or by his mark : Jacob v.
Kirk, 2 M. & E. 221; Hubert u.
Moreau, 12 Moo. 219; Hyde v. John-
son, 2 Bing. (N. C.) 780 ; Phillmore v.

Barry, 1 Camp. 513; and it is quite
immaterial upon what part of the
paper the mark or signature is to be
found. But the signature must of course
be made with a view of authenticating
the document as a concluded contract,
and not with a view mere!// of altering
or settling a drafl, or approving of
propositions and proposals not fnalltj
arranged and decided upon. Coldhara
V. Shawler, 3 C. B. 320; Hawkins v.
Holmes, 1 P. Wms. 770.

' Sanborn v. Flagler, 9 Allen
(Mass.) 474; and as to initials, see
Phillmore v. Barry, 1 Camp. 513;
Hyde v. Johnson, 2 Bing. (N. C.) 776;
Jacob v. Kirk, 2 Moo. & Rob. 221 ;
Sweet V. Lee, 4 Sc. (N. R.) 77 ; Gorrie
V. Woodley, 17 Ir. C. L. E. 221 ; Chi-
chester V. Cobb, 14 L. T. (N. S.) 433 ;
Parker v. Smith, 1 Coll. 608.

2 12 Moo. 216 ; 2 C. & P. 528 ; in
re Field, 3 Curties, 752; Selby v.
Selby, 3 Mer. 2; Jackson v. Van
Dusen, 5 John. (N. Y.) 144; Schneider
V. Norris, 2 M. & S. 286 ; Taylor v.
Dening, 3 M. & P. 228; Hubert v.
Moreau, 2 C. & P. 528.

8 Helshawv.Langley.ll L. J.Ch. 17.

* Godwin v. Francis, L. R. 5 C. P.
295; McBlain v. Cross, 25 L. T. (N.
S.) 804.

772 STATUTE OF FEAITDS. [CHAP. XIV.

Sec. 415. Place of Signature Immaterial. — It does not
matter in what part of the instrument the signature of the
party to be charged is found, whether on one side of tlie
paper or the other; provided it is inserted in such a manner
as to have the effect of authenticating the instrument, the requi-
sition of the act with respect to signature is complied with.i
The purposes of the statute are met if the names of the par-
ties and the terms of .the contract are authenticated by-
written evidence, and this is done when the name of the
person sought to be charged is inserted in the instrument in
such a way as to indicate that he intended it to stand for his
signature.^ In New York, the statute requires that the note
or memorandum shall be " subscribed " by the person sought
to be charged, and in that State the name of the party to be
charged is required to be signed at the end of the instrument.^

Sec. 416. Signature at Beginning. — Thus an agreement
beginning "I, A B," though not further signed, is good within
the statute.* So, where the traveller of the plaintiffs agreed
with the defendant for the sale to him by sample of goods,
and the defendant wrote in his own book, which he kept, a
memorandum of the transaction, commencing "Sold John
Dodgson," and this memorandum was signed by the traveller
on behalf of the plaintiffs, it was held that there was a sufli-
cient memorandum of 'the contract. " The cases have
decided," said Lord Abingee, C. B., "that although the
signature be in the beginning or middle of the instrument,
it is as binding as if at the foot of it; the question being
always open to the jury whether the partj-, not having signed

> Ogilvie V. Foljambe, 3 Mer. 53; v. Mussey, 11 Gush. (Mass.) 127; Bat-

Coldham v. Showier, 3 C. B. 312; turs t. Sellers, 5 H. & J. (Md.) 117;

Hararaersley u. De Biel, 12 C. & F. Salmon Falls Mf'g Co. v. Goddard,

63; Bleakley v. Smith, 11 Sim. 150; 14 How. (U.S.) 446; Anderson k. Har-

Hawkins v. Chase, 19 Pick. (Mass.) rold, 10 Ohio, 399; Penniman v.

502 ; Ogilvie v. Foljambe, 3 Mer. 53 ; Hartshorn, 13 Mass. 87.
Western v. Russell, 3 V. & B. 187 ; » Viele v. Osgood, 8 Barb. (N. Y.)

Penniman v. Hartshorn, 13 Mass. 87 ; 130 ; Davis v. Shields, 24 Wend. (N.

Morrison v. Surman, 18 Ves. 187; Y.) 322.

Yerby v. Grigsby, ante ; Kronheim v. * Knight ii. Crockf ord, 1 Esp. 190 ;

Johnson, 7 Ch. D. 60. But see con(ra, Taylor v. Dobbins, 1 Str. 399; Mor-

Higdon V. Thomas, 1 H. & G. (Md.) ison v. Tumour, 18 Ves. 183; Drury

139. I'. Young, 58 Md. 546; Lemayne t'.

2 Coddington v. Goddard, 16 Gray Stanley, 3 Lev. 1 ; Yerby v. Grigsby,

(Mass.) 444; Argenbright v. Camp- 9 Leigh. (Va.) .387.
bell, 3 H. & M. (Va.) 144; Fessenden

SBC. 418.] SIGNATURE TO THE MEMORANDUM. 773

it regularly at the foot, meant to be bound by it as it stood,
or whether it was left so unsigned because he refused to com-
plete it. 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 con-
tract, and recognized by him. I think in this case the requi-
sitions of the statute are fully complied with. The written
memorandum contains all the terms of the contract ; It is in
the defendant's OAvn handwriting, containing his name, and
it is signed by the plaintiffs through their agent." ^ But the
mere circumstance that the instrument is in the handwriting
of a party, will not dispense with his signature,^ even though
his name is inserted in some part of the instrument, unless
it is in such part of the instrument as to authenticate it, and
shows an intention on his part to admit his liability under it.^

Sec. 417. signature upon Goods or in Catalogue or Order-
Book. — A purchaser's signature upon particular goods,
denoting that he has purchased them,* or opposite lots in a
printed catalogue,^ or in an order-book, the goods being spe-
cified in the book, and the signature being made for the pur-
pose of authorizing the vendor to send the goods,* may be
sufficient to bind him.

Sec. 418. Signature in Third Person. — So also the signa-
ture is enough if the agreement is in the third person and
written by the person to be charged himself, though there is
no other signature.^

Where articles of agreement containing the terms of a
contract purporting to be made between certain persons
whose names were stated at the commencement of the arti-

1 Johnson v. Dodgson, 2 M. & W. Stokes v. Moore, 1 Cox, 219; Hubert
653 ; see also Saunderson v. Jackson, v. Turner, 4 Scott, 486.

2 B. & P. 238 ; Schneider v. Norris, 2 * Hodgson v. Le Bret, 1 Camp. 233.
M. & Sel. 286; Holmes v. Mackrell, » Phillimore «. Barry, 1 Camp. 513 ;

3 C. B. (N. S.) 789; Durrellu. Evans, and see Emmerson v. Heelis, 2 Taunt.
1 H. & C. 174. 38.

2 Wade V. Newbem, 77 N. C. 460; « Sari v. Bourdillon, 1 C. B. (N. S.)
Anderson u. Harrold, 10 Ohio, 399; 195; 26 L. J. C. P. 78; Newell o.
Barry v. Law, 1 Cr. (U. S. C. C.) 77; Radford, L. R. 3 C. P. 52.

Bawdes v. Amhurst, Finch, P. C. 402; ' Western v. Russell, 3 V. & B.

Bailey V. Ogden, 3 John. (N. Y.) 399; 187; Propert t>. Parker, 1 R. & M.

Hawkins v. Holmes, 1 P. Wms. 770. 625; Bleakley v. Smith, 11 Sim. 150;

3 Walker v. Walker, 1 Mer. 503; Lobb v. Stanley, 6 Q. B. 574.
Cabot V. Haskins, 3 Pick. (Mass.) 95;

774 STATUTE OP FEATTDS. [CHAP. XIV.

cles, and who were described as the contracting parties, con-
cluded " as witness our hands," without being followed by
any name or signature, it was held that they were not suffi-
ciently signed within the statute.^

Sec. 419. Rule in Caton v. Caton. — In Caton V. Caton,^
previously to a marriage, the intended husband and wife
agreed, by a memorandum drawn up in the husband's hand-
writing, that the husband should have the wife's property
for life, paying Jier £80 a year for pin-money, and that she
should have it after his death : and he gave instructions for
a settlement upon that footing. The settlement was accord-
ingly prepared, when they agreed that they would have no
settlement, the husband promising as the wife alleged, that
he would make a will giving her all her property. The
name of the husband appeared in various parts of the mem-
orandum. It was held that though it is not necessary that
the signature of a party should be placed in any particular
part of a written instrument, it is necessary that it should be
so introduced as to govern or authenticate every material and
operative part of the instrument; and where therefore, the
name of the party against whom specific performance was
sought to be enforced appeared in different parts of the
paper, but only in such a way that in each case it merely
referred to the particular part where it was found, and that
part was in the form of reference or description, and not of
promise or undertaking, the signature was not sufficient.
Lord Westbuky said : ^ " What constitutes a sufficient sig-
nature has been described by different judges in different
words. In the original case upon this subject, though not
quite the original case, but the case most frequently referred
to as of earliest date, that of Stokes v. Moore,* the language

1 Hubert v. Treherne, 3 M. & Gr. ceived from them a bill of parcels.
743 ; S. C. nom. Hubert v. Turner, 4 The heading of the bill was printed
Sc. (N. H.) 486. as follows: "London: Bought of

2 L. R. 2 H. L. 127, affg. S. C. L. Jackson & Hanson, distillers, No. 8
R. 1 Ch. 137. Oxford Street " ; and then followed in

8 L. R. 2 H. L. 127. writing, " 1,000 gallons of gin, 1 in 5

* 1 Cox, 219 ; Salmon Falls Manuf . gin, 7s., ^£350." There was also a

Co. V. Goddard, 14 How. (U. S.) 456. letter signed by the defendants, in

In Saunderson v. Jackson, 2 B. & P. which they wrote to the plaintiff,

238, the plaintiff, on giving to the about a month later, "We wish to

defendants an order for goods, re- know what time we shall send you

SEC,

419.]

SIGNATURE TO THE MEMORANDUM.

775

of the learned judge is, that the signature must authenticate every
part of the instrument. Or again, that it must give autheu-

a, part of your order, and shall be
obliged for a little time in delivery of
the remainder. Must request you to
return our pipes." Lord Eldon said :
" The single question is, whether, if a
man be in the habit of printing in-
stead of writing his name, he may
not be said to sign by his printed
name as well as his written name '
At all events, connecting this bill of
parcels with the subsequent letter of
the defendants, I think the case is
clearly taken out of the statute of
frauds." Thus far the case would
not amount to much as an authority
on the point under discussion. His
lordship went on to say : " It has been '
decided in Knight v. Crockford, 1 Esp.
190 (see also, Lobb v. Stanley, 5 Q.
B. 474 ; Durrell v. Evans, 1 H. & C.
174, and 31 L. J. Ex. 337), that if a
man draw up an agreement in his own
handwriting, beginning ' I, A B, agree,'
and leave a place for signature at the
bottom, but never sign it, it maybe con-
sidered as a note or memorandum in
writing within the statute. And yet
it is impossible not to see that the
insertion of the name at the beginning
was not Intended to be a signature,
and that the paper was meant to be
incomplete until further signed. This
last case is stronger than the one now
before us, and affords an answer to,
the argument that this bill of parcels
was not delivered as a note or memo-
randum of the contract." This .last
sentence refers to the argument of
Lens, Serjt., who admitted that the
printed name might have amounted
to a signature, if the bill of parcels
had been intended to expressi the con-
tract, gu'a contract, but contended that
this'was not the intention.

In Schneider i:. Norris, 2 M. & S.
286, the circumstances were the same
as in Saunderson v, Jackson, ante, ex-
cept that the name of the plaintiff as
buyer was written in the bill of par-
cels rendered to him in the defend-
ant's own handwriting, and all the

judges were of opinion that this was
an adoption or appropriation by tlie
defendant of the name, printed on
the bill of parcels, as his signature to
the contract. Lokd Ellenbokouoh
said : " If this case had rested merely
on the printed name unrecognized by
and not brought home to the party as
having been printed by him or by his
authority, so that the printed name
had been unappropriated to the par-
ticular contract, it might have afforded
some doubt whether it would not have
been intrenching upon the statute to
have admitted it. But here there is a
signing by the party to be charged,
by words recognizing the printed name
as much as if he had subscribed his
mark to it, which is strictly the mean-
ing of signing, and by that the party
has incorporated and avowed the thing
printed to be his ; and it is the same
in substance as if he had written
' Norris & Co.' with his own hand.
He has by liis handwriting, in effect
said, I acknowledge what I have writ-
ten to he for the purpose of exhibit-
ing my recognition of the written
contract." Lb Blanc, J., compared
the case to one where a party should
stamp his name on a bill of parcels.
Bayley, J., put Ills opinion on the
ground that the defendant had signed
the plaintiffs' names as purchasers,
and therebyrecognized his own printed
name as that of the seller. And Dam-
piEK, J., on much the same idea, that
is, that the defendant, by writing the
name of the buyer on a paper in which
he himself was named as the seller,
recognized his name sufficiently to
make it a signature. In Johnson v.
Dodgson, 2 M. & W. 653, the defend-
ant wrote the terms of the bargain in
his own book, beginning with the
words, " Sold John Dodgson," and
required the vendor to sign the entry.
The court held this to be a signature
by Dodgson, Lord Adinger saying
that, "The cases have decided that
though the signature be in the begin-

776

STATUTE OF PKATTDS.

[chap.

XIV.

ticity to every part of the instrument. Probably the phrases
' authentic ' and ' authenticity ' are not quite felicitous, but
their meaning is plainly this, that the signature must he so
placed as to shoiu that it was intended to relate and refer to,
and that in fact it does relate and refer to, every part of the
instrument. The language of Sir William Ghant, in
Ogilvie V. Foljambe ^ is (as his method was) much more felic-
itous. He says it m,ust govern every part, of the instrument. It
must show that every part of the instrument emanates from the indi-

ning or middle of the instrument, it
is as binding as if at the foot; the
question lieing always open to the
jury whether the party, not having
signed it regularly at the foot, meant
to be bound by it as it stood, or
whether it was left so unsigned be-
cause he refused to complete it."
Parke, B., concurred, on the author-
ity of Saunderson v. Jackson and
Schneider v. Norris, which he recog-
nized and approved. In Durrell u.
Evans in the exchequer chamber, 1
H. & C. 174; 32 L. J. Ex. 337, the
cases of Saunderson v. Jackson,
Schneidet v. Norris, and Johnson v.
Dodgson, were approved and followed.
Beckwith v. Talbot, 95 U. S. 289. In
Tourret v. Cripps, 48 L. J. Ch. 567,
under the 4th section, a letter con-
taining proposed terms of a contract
between the defendant and the plain-
tiff, written out by the defendant
upon paper bearing a printed head-
ing, " Memorandum from Kichard L.
Cripps," and sent bij him to the plaintiff,
was held to be a sufficient note in
writing to charge the defendant.

In Hubert v. Treheme, 3 M. & G.
743, which arose under the 4th sec-
tion, it appeared that an unincorpor-
ated company, called The Equitable
Gas Light Company, accepted a tender
from the plaintiff for conveying coals.
A draft of agreement was prepared
by the order of the directors, and a
minute entered as follows : " The
agreement between the company and
Mr. Thomas Hubert for carrying our
coals, etc, was read and approved,
and a fair copy thereof directed to
be forwarded to Mr. Hubert," The

articles began by reciting the names
of the parties, Thomas Hubert of the
one part, and Treheme and others,
trustees and directors, etc., of the
other part; and closed, "As witness
our hands." The articles were not
signed by anybody, but the paper was
maintained by the plaintiff to be suf-
ficiently -signed by the defendants,
because the names of defendants
were written in the document by their
authority. On motion to enter non-
suit, all the judges held that the in-
strument on its face, by the concluding
words, showed that the intention was
that it should be subscribed, and that
it was not the meaning of the parties
that their names written in the body
of the paper should operate as their
signatures. Maule, J., said : " The
articles of agreement do not seem to
me to be a memorandum signed by
anybody. Before tlie statute of frauds
no one could have entertained a doubt
upon that point. Since the statute
the courts, anxious to relieve parties
against injustice, have not unfre-
quently stretched the language of the
act. ... If a party writes I, A B,
agree, etc., with no such conclusion as
is found here ' as witness overhand,'
it may be that this is a sufficient sig-
nature within the statute to bind A
B. . . . But it would be going a great
deal farther than any of the cases have
hitherto gone to hold that this was an
agreement signed by the party to be
charged. This is no more . than if it
had been said by A B, that he would
sign a particular paper."
1 3 Mer. 53,

SEC. 419.] SIGNATUBK TO THE MEMOKANDUM. 777

vidual so signing, and that the signature was intended to have that
effect. It follows, therefore, that if a signature be found in an
instrument incidentally only, or having relation and reference only
to a portion of the instrument, the signature cannot have that
legal effect and force which it must have in order to comply
with the statute, and to give authenticity to the whole of the
memorandum. . . . An ingenious attempt has been made at
the bar to supply that defect (of signature) by fastening on
the antecedent words ' In the event of marriage the under-
named parties,' and by the force of these words of reference
to bring up the signature subsequently found and treat it as
if it were found with words of reference. My Lords, if we
adopted that device we should entirely defeat the statute.
You cannot by words of reference bring up a signature and give it
a different signification and effect from that which the signature has
in its original place in which it is found. What is contended for
by this argument differs very much from the process of incor-
porating into a letter or memorandum signed by a party
another document which is specially referred to by the terms
of the memorandum so signed, and which by virtue of that
reference is incorporated into the body of the memoran-
dum. There you do not alter the signature, but you apply
the signature, not only to the thing originally given, but also
to that which, by force of the reference is by the very con-
text of the original, made a part of the original memoran-
dum. But here you would be taking a signature, intended
only to have a limited and particular effect, and by force of
the reference to a part of that document you would be
making it applicable to the w"hole of the document, to which
the signature in its original condition was not intended to
apply, and could not, by any fair construction, be made to
apply."

CHAPTER XV.

CONTEACTS BY AGENTS.

SBCTIOK.

420. Appointment of Agent.

421. Contracting Party cannot be Agent for the Other.

422. Auctioneer at Public Sale.

423. Authority may be Negatived.

424. When Agency for Purchaser Begins.

425. Eyidence to Prove Agency.

426. Ratification of Agent's Acts.

427. Signature by Clerk of Auctioneer.

428. Signature by Telegraph Clerk.

429. Broker is Agent for Both Parties.

430. Signed Entry in Books.

431. Bought and Sold Notes.

432. Either Note may Prove Contract tTnless.

433. Variance between Entry and Notes.

434. Immaterial Variance.

435. Sale on Credit by Broker.

436. Broker Employed by Purchaser.

437. Revocation of Broker's Authority.

Section 420. Appointment of Agent. — An agent, whether
for the purchase or sale of lands or goods, may be appointed
by parol,^ unless, as is the case in some of the States, agents

1 Stansfield t'. Johnson, 1 Esp. v. Blair, 4 Cush. (Mass.) 309; Mc-
101 ; Rucker v. Cammeyer, 1 Esp. Whorten v. McMahon, 10 Paige Ch.
104; Emmerson t. Heelis, 2 Taunt. (N.Y.) 386; Yerby v. Grigsby, 9
38; Clinan v. Cooke, 1 Sch. & Lef. Leigh. (Va.) 387; Codman y. Bailey,
22; Coles w. Trecothick, 9 Ves. 234; 4 Bibb. (Ky.) 297; Johnson v. Mc-
Mortloek „. BuUer, 10 Ves. 292, Cruder, 15 Mo. 365 ; Talbot v. Bowen,
311; Dyas v. Cruise, 2 J. & Lat. 1 A. K. Mar. (Ky.) 436; Graham v.
460; Else v. Barnard, 28 Beav. 228; Musson, 5 Bing. (N. C.) 603; Montlock
Heard v. Pilley, L. R. 4 Ch. 549. Ex- v. Buller, 10 Ves. 292. The question
cept where the statute otherwise pro- of authority is one of fact, and must
vides, the agent may be appointed cover the act of signature. Taylor v.
andhisauthority established by parol. Merrill, 55 111. 52; Coleman v. Gar-
Lawrence V. Taylor, 5 Hill (N.Y.) rignes, 18 Barb. (N.Y.) 60; Ruten-
107 ; Ulen v. Kittredge, 7 Mass. 232 ; berg u. Main, 47 Cal. 213 ; Edwards
"Worrall v. Munn, 5 N.Y. 229; John- v. Johnson, 3 Houst. (Del.) 435; Rice
son u. Dodge, 17 111. 433; Hawkins v. v. Rawlings, Meigs (Tenn.) 496; Glen-
Chase, 19 Pick. (N.Y.) 502; Curtis gal u. Barnard, 1 Keen, 769 ; Dixon w.

SEC. 421.]

CONTRACTS BY AGENTS.

7T9

for the sale of lands are by the statute required to be author-
ized in writing,! but in any case such an appointment is, of
course, inexpedient.'^ Thus, in the case last cited where
a memorandum was written by the clerk of the plaintiffs,
in the presence of the defendant, stating that the defend-
ant had called to say that he would be responsible for
the plaintiff, it was held that there was not a sufficient un-
dertaking within the statute. But in Watkins v. Vince,^
evidence that the son of the defendant, a minor, had in sev-
eral instances signed bills of exchange for his father was held
sufficient in an action against the father on a guaranty in the
handwriting of the son.

Sec. 421. Contracting Party cannot be Agent for Other. —
One of the parties to a contract cannot sign the name of the
other as his agent so as to hind him within the statute ; the
signature as agent must be hy a third person and not the other
contracting party.'^ Thus, where the plaintiff wrote a memo-

Bromfield, 2 Chitty, 205. But it may
be shown by parol ratification after
the signature, although no authority
to sign existed when the act was done.
Hawkins v. Baker, 46 N. Y. 660; Hol-
land !;. Hoyt, 14 Mich. 238 ; Maclean
V. Dunn, 4 Bing. 722. Except where
the memorandum is to be sealed, in
which case authority under seal is
required. Blood v. Hardy, 15 Me. 61.
Where the authority of an agent to
sell land is required by the statute
of frauds to be evidenced by a writing,
that requirement is not fulfilled by
letters written by the owner of the
property to his son, showing merely
that a certain real-estate agent was
employed by him to solicit and nego-
tiate for prices, nor by a telegram to
such agent to "hold on," in reply to
one from him asking if he would take
a certain price. Albertson v. Ashton,
102 111. 50.

1 1 Dart. V. & P. 5th ed. 183.

2 Dixon V. Broomfield, 2 Chit. 205.
8 2 Stark, 368.

* Wright V. Dan^ah, 2 Camp. 203 ;
and see Earebrother v. Simmons, 5 B.
& Aid. 333 ; Sharman v. Brandt, L. R.
6 Q. B. 720 ; Johnson v. Buck, 35 N.
J. L. A memorandum made by one

having authority from both parties
to effect a sale, is sufficient to charge
both parties. Sale v. Darragh, 2 Hilt.
(N. Y. 0. P.) 184. The printed signa-
ture of the broker who makes the
sale is not a, sufficient signing within
the statute. Zachrisson v. Poppc, 3
Bosw. (N. Y.) 171. Signing by ini-
tials: Salmon Falls Manuf. Co. v.
Goddard, 14 How. (U. S.) 443; San-
born V. Flagler, 9 Allen (Mass.) 474;
Phillimore v. Barry, 1 Camp. 513;
Barry v. Coombe, 1 Pet. (U. S.) 640.
As to entry in a book, see Barry v.
Law, 1 Cr. C. C. (U. S.) 77 ; Cham-
pion V. Plummer, 5 Esp. 240 ; Graham
u. Musson, 5 Bing. (N. C.) 603. By
agent: Higgins v. Senior, 8 M. & W.
834; Minard v. Mead, 7 Wend. (N.
Y.) 68; Soames v. Spencer, 1 D. & R.
32; Stackpole v. Arnold, 11 Mass. 27.
In Hawkins v. Baker, 46 N. Y. 453,
one R., a broker for the sale of cer-
tain kinds of goods, and known to
defendants as such, offered ten casks
of goods, which they orally agreed to
take. R. then purchased the ten
casks of plaintiffs, and signed a memT
orandum of the sale, and took from
plaintiffs a warehouse delivery order.
He delivered his order to defendant,

780 STATtTTE 0¥ FEATIDS. [CHAP. XV.

randum of the contract, in which the defendant's name
appeared as purchaser, the defendant having overlooked the
plaintifp while writing, it was argued that the defendant had
made the plaintiff his agent for the purpose of signing the
memorandum by overlooking, and approving of what he had
written ; but LoKD Ellenbobough said that the agent must
be some third person, and could not be the other contracting
party.^

Sec. 422. Auctioneer at Public Sale is Agent for Both
Parties. — An auctioneer at a public sale is, during the con-
tinuance of the sale, by implication, an agent duly author-
ized to sign a contract for both parties, whether for the
purchase of real estate, or of goods ; and his writing down
the name of the highest bidder in the auctioneer's book is a
sufficient signature to satisfy the statute. In Emmerson v.
Heelis,^ Mansfield, C. J., said : " By what authority does
he write down the purchaser's name ? By the authority of
the purchaser? These persons bid, and announce their bid-
dings loudly and particularly enough to be heard by the
auctioneer. For what purpose do they do this? That he
may write down their names opposite to the lots ; therefore
he writes the name by the authority of the purchaser, and he
is an agent for the purchaser." ^ It follows, therefore, that

who received and retained it, and re- ber i!. Savage, 52 Wis. 110 ; 38 Am.

quested R. to sell the goods for them Rep. 723.

if he could get a profit. Afterward ^ Wright v. Dannah, ante.

defendants went and examined the ^ 2 Taunt. 38.

goods, and when called upon by the ^ And see Hinde v. Whitehouse, 7

plaintiffs did not deny liability, but East, 558 ; White v. Proctor, 4 Taunt,

asked for lenity. The warehouse 209 ; Kemeys v. Proctor, 1 Jac. & W.

order showed that it came from plain- 350 ; Farebrother v. Simmons, 5 B. &

tiffs. Held, that R. was defendants' Aid. 333 ; Kenworthy v. Schofield, 2

agent by adoption, and his sighing B. & C. 945 ; Walker v. Constable, 1

the memorandum of sale was suffl- B. & P. 306 ; Dnrrell v. Evans, 1 H. &

cient to bind them. The delivery of C. 174; 31 L. J. Ex. 337. An alie-

the warehouse receipt and separation tioneer is an agent for both parties,

of the ten casks from a larger quan- and can bind them by a memorandum

tity at the warehouse was a sufficient made by him at a public sale, and

delivery. The agent of the vendor of made at the time. Horton v. McCarty,

real estate sold at auction cannot 53 Me. 394 ; Alna v. Plummer, 4 id.

bind the purchaser by a memorandum 258 ; Eliutoft v. Elmore, 18 K. C. C. P.

thereof made and signed by him for 274; Gill w. Bicknell, 2 Cush. (Mass.)

the vendor alone, after the sale by 355; Harvey u. Stevens, 43 Vt. 655;

the auctioneer, and not in any way Cleaves y. Eoss, 4 Me. 1 ; Anderson v.

assented to by the purchaser. Bam- Chick, 1 Bai. (S. C.) Eq. 118; Hart v.

SEC. 424.J CONTRACTS BY AGENTS. 781

an auctioneer signing the defendant's name by his authority
cannot maintain an action against liim upon such a contract.^
But the rule does not apply to a private sale, for the auc-
tioneer then is only the agent of the seller, and the signature
of the seller or his agent cannot bind the buyer.^

Sec. 423. Authority may be Negatived by Pacts of Case. —
The implied authority given to an auctioneer at a public
sale, to act as the agent of the purchaser, may be negatived
by the facts of the particular case. Thus, where a party to
whom money was due from the owner of goods sold by auc-
tion agreed with the owner before the auction that the goods
which he might purchase should be set against the debt, and
became the purchaser of goods, and was entered as such by
the auctioneer, it was held that he was not bound by the
printed conditions of sale, which specified that purchasers
should pay a part of the price at the time of the sale, and
the rest on delivery ; Dbnman, C. J., saying : " We do not
overrule the former cases, but we consider them inappli-
cable." 3

Sec. 424. When Agency for Purchaser Begins. — Although
the auctioneer at a public sale may become the agent of the
purchaser for the purpose of signing a memorandum of the
agreement, his agency does not commence until the bidding

Woods, 7 Blackf. (Ind.) 568; O'Don- 1 H. & N. 484; Rosaiter v. Miller, 46

nell V. Sehman, 43 Me. 158 ; Craig v. L. J. Ch. 228 ; Beers u. London &c.

Godfrey, 1 Cal. 415 ; Smith v. Arnold, Hotel Co., L. R. 20 Eq. 412 ; and the

5 Mass. (U. S.) 414; Jenkins y. Hogg, same rule, under peculiar circum-

2 Tread. (S. C.) 821 ; Linn Boyd To- stances, prevails as to a memorandum

bacco AYareliouse Co. o. Terrill, 13 made hy an auctioneer's clerk. Bird

Bush. (Ky.) 413; Adams v. McMillen, ... Boulter, 4 B. & Aid. 443; Johnson

7 Port. (Ala.) 73; Bent «. Cobb, an<e ; v. Buck, 35 N. J. L. 338; Norris u.

Burke v. Haley, 7 111. 614 ; Gordon v. Blair, 39 Ind. 90 ; Fiske v. McGregory,

Sims,2MeCord(S.C.)Eq. 164; Brent 34N.H.414; Gill t. Bickell, 2 Cush.

V. Green, 6 Leigh. (Va.) 16; Pike v. (Mass.) 355; Meadows ii. Meadows, 3

Balch, 38 Me. 302; Pugh v. Chessel- McCord (S. C.) 418; Cothcart v. Ker-

dine, 11 Ohio, 109; White v. Crew, 16 nahan, 5 Strobh. (S. C.) 129.
Ga. 416 ; McComb v. Wright, 4 John. ' Farebrother o. Simmons, 5 B. &

Ch. (N. Y.) 659; Kenworthy v. Scho- Aid. 333.

field, 2 B. & C. 945 ; Hinde „. White- 2 Mews v. Carr, 1 H. & N. 484 ; 26

house, 7 East, 558 ; Farebrother v. L. J. Ex. 39.

Simmons, 5 B. & Aid. 333 ; Emmerson > Bartlett v. Purnell, 4 A. & E. 792 ;

V. Heelis, 2 Taunt. 38; White v. and see Lord Glengall f. Barnard, 1

Proctor, 4 id. 209 ; Walker v. Con- Keene, 769.
stable, 1 B. & P. 306 ; Mews v. Carr,

782 STATUTE OP FEAUDS. [CHAP. XV.

is accepted, and until the hammer is knocked down. Both
the bidder and the vendor are free and may retract if they
choose to do so. Therefore, wlien the owner of a mare sent
her to the defendants with instructions to sell her by auction
without reserve, and the plaintiff was the highest hona fide
bidder, but the mare was knocked down to the owner, who
made a higher bid, it was held that the plaintiff could not
maintain an action against the defendant on the ground that
he was his agent and was bound to complete the contract on
his behalf.^

Sec. 425. Evidence to Prove Agency. — Except in those
States where the statute expressly requires that authority to
sign a note or memorandum for another, shall be conferred
by writing, as is the case in some of the States as to the note
or memorandum relating to the leasing and sale of lands,^
the note or memorandum may be signed by an agent of the
party to be charged, as well as by the party himself, and such
agency as in other cases may be proved by parol,^ and may
be shown by the same class of evidence necessary to estab-
lish agency in other cases, that is, by proof of express
authority, or subsequent ratification.*

1 "Warlow V. Harrison, 28 L. J. Q. hon, 10 Paige Ch. (N. Y.) 386; New-
B. 18; 29 L. J. Q. B. 14; and see ton v. Bronson, 13 N. Y. 587; Long
Payne v. Cave, 3 T. R. 148. Hartwell, 34 N. J. L. 110 ; Johnson v.

2 Michigan, Montana, New Nevada, Dodge, 17 111. 433; Tomlinson v. Mil-
Hampshire, New York, Ohio, Oregon, ler, 1 Sheld. (N. Y.) 197 ; Yourt u.
Pennsylvania, Vermont, Utah, and Hopkins, 24 111. 236 ; Doty v. Wilder,
Wisconsin. 15 id. 407 ; Shaw v. Nudd, 8 Pick.

'The authority of an agent to (Mass.) 9; Blacknallw.Pariah.a Jones

sign a memorandum may be proved (N. C.) Eq. 70 ; Alna v. Plummer, 4

by parol. Rutenberg v. Main, 47 Gal. Me. 258 ; Blood v. Hardy, 15 id. 61 ;

213. In the case of a memorandum Worrall v. Munn, 5 N.Y. 229; Goshell

made by an agent, any letter signed v. Archer, 2 Ad. & El. 500; Titz-

by the principal, referring to the maurice v. Bayley, 6 E. & B. 868;

agent's authority to make the con- Graham v. Musson, 7 Scott, 769;

tract and adopting it, will render the Heard v. Pilley, L. R. 4 Ch. App.

contract valid. Newton ,>. Bronson, 548; Rucker u. Cammeyer, 1 Esp.

18 N. Y. 587. If a contract is signed 105 ; Acebal v. Levy, 10 Bing. 378 ;

by an agent in his own name, it may Harrison z;. Jackson, 7 T. R. 207 ; Dur-

be shown that he signed as agent, rell v. Evans, 1 H. & C. 174. An

Washburn v. Washburn, 4 Ired. (N. agent does not require, in the first

C.) Eq. 306. Instance, authority to sign the note ;

* Eggleston v. Wagner, 46 Mich, and in Maclean v. Dunn, 4 Bing. 722,

610 ; Hawkins v. Chace, 19 Pick, it was decided that in this, as well as

(Mass.) 502; McWhorter v. McMa- in other cases of agency, a subsequent

SEC. 425.]

CONTRACTS BY AGENTS.

78-^

A clerk or traveller cannot bind his principal without
express authority.^ Where a contract for the sale of goods

1 Blore V. Sutton, 3 Mer. 237.

ratification was equivalent to » pre-
vious authority. The fact of agency
may be established, and any person
may be proved to be an agent for this
purpose, in the same manner, and sub-
ject to the same rules, as in cases of
agency for any other purpose. It has,
indeed, been decided that the one
party cannot be an agent for the other,
but this is very doubtful law. It is
quite right and proper that such an
unusual thing as intrusting the other
with authority should be clearly
proved; but if it be clearly proved,
there is nothing either in the statute
or in reason to make it void.

In Wright v. Dannah, 2 Camp. 203,
the plaintiff had, in the presence of
the defendant, written down the de-
fendant's name, the goods, and the
price. The defendant looked it over,
and said one of the figures was wrong.
It seems clear that tliis was no memo-
randum; for the plaintiff's name did
not appear, and the proof of agency
was of the most meagre description.
Lord Ellenborough non-suited the
plaintiff, and is reported to have said
" that the agent must be some third
person, and could not be the other
contracting party."

In Farebrother v. Simmons, 5 B. &
Aid. 334, the King's Bench decided
that an auctioneer, who had taken
down the highest bidder's name, could
not use this as a signature when suing
in his own name ; and Abbott, C. J.,
on the authority of Wright v. Dannah,
said " that the agent contemplated by
the legislature, who is to bind a party
by his signature, must be some third
party, and not the other contracting
party on the record." In Wright v.
Dannah, Lord Ellenborough seems
to have been speaking of the diflSculty
of establishing such an agency in fact ;
but in Farebrother v. Simmons it was
supposed to be impossible in law. The
case was much questioned in Bird v.

Boulter, 4 B. & Aid. 443, but it has
not yet been overruled.

When an agent is authorized to
make a contract of sale, he has by
implication authority to make it ef-
fectually, by signing the note of it ;
but there is no reason why a special
authority should not be given to sign
a. particular contract, without giving
any authority to make a contract, or
to vary from the particular one al-
ready made. The distinction between
the two sorts of agency is material ;
for if an agent, having authority to
make a contract, makes a mistake in
reducing it to writing, neither he nor
his principal can show that the true
contract was different, for that would
be contradicting the written agree-
ment; but if the agent had only a
special authority to sign a particular
contract, it is open to the principal to
show tliat the agent has not pursued
his authority.

Sharman ^. Brandt, L. R. 0 Q. B.
720 ; Graham v. Musson, ante ; Gra-
ham !'. Fretwell, 5 Bmg. (N. C.) 603;
Bambier v. Savage, 52 Wis. 110 ; Bent
V. Cobb, 9 Gray (Mass.) 387 ; John-
son V. Buck, 30 N. J. L. 338 ; Smith v.
Arnold, 5 Mass. (U. S.) 414. In Dur-
rell V. Evans, 1 H. & C. 174, it ap-
peared that, on the 19th of October,
the defendant, J. C. Evans, called on
Messrs. Noakes and asked to see
samples of the plaintiff's hops, which
were shown to him. Upon asking the
price, Mr. J. T. Noakes replied that
he was instructed by the plaintiff not
to sell under X18 per cwt. The de-
fendant, J. C. Evans, said that was
too liigh a price for them, and he
should not give so high a price for
them. He then left Messrs. Noakes's
premises. On the afternoon of the
same day, Friday (October 19), the
plaintiff happened to be in the bor-
ough, and met the defendant, J. C.
Evans. A conversation took place

784

STATUTE OF PEAUDS.

[chap. XV.

was in the presence and at the desire of the buyer written
and signed by the seller's traveller in a book belonging to

between them with reference to the
plaintiff's hops. Mr. J. C. Evans of-
fered the plaintiff £16 16 s. per cwt.,
which the plaintiff refused, but ulti-
mately both parties went to Messrs.
Noakes's counting-house and saw Mr.
J. T. Noakes on the subject. Some
further conversation took place as to
the purchase of the hops, which ended
in Mr. J. C. Evans refusing to give
any more than £16 16 s. per cwt. The
plaintiff (in the presence and hearing
of Mr. Evans) asked Mr. J. T. Noakes
whether he would recommend him (the
plaintiff) to accept Mr. Evans's offer.
Mr. Noakes advised him to do so, and
the plaintiff agreed to sell the hops
at that price. Mr. Noakes then wrote
out a sale-note in duplicate.

By the custom of the hop trade,
hops are payable on the Saturday
week following the day of the sale.
This transaction took place on Friday,
the 19th day of October, and the mon-
ey would consequently have become
payable, in due course, on Saturday,
October 27. Mr. Noakes, therefore,
drew out the following memorandum,
and dated it the 19th day of October,
whereupon Mr. Evans requested him
to alter the date to the 20th, in order
that he might have another week's
time for payment. The plaintiff and
Mr. Noakes consented to this, and the
alteration was accordingly made by
Mr. Noakes, who then gave the said
memorandum so altered to Mr. J.
C. Evans, who took the same away
with him, and he has never yet re-
turned it. The said memorandum
was torn from a book which con-
tained a counterfoil, and which was
filled up in the following form, and
retained by Messrs. Noakes.

The following is a copy of the
memorandum first referred to : —

"Messrs. Evans..

Bought of J. T. & W. Noakes.

Bags. Pocks. T. Durrell. ?
Ryarsh & Addington. ^
20th
Oct. ;^th, 1860."

£16 16 s.

The following is a copy of the
counterfoil above referred to : —

" Sold to Messrs. Evans.

Bags. Pocks. D. Durrell. ) .,„ ^„
Ryarsh & Addington. j ^^^ ^^*-
20th
Oct. ^^fth, 1860."

No note or memorandum (except
as aforesaid) was signed or given by
the defendants or any person on their
behalf ; nor was there any writing re-
lating to the contract, except as above.
Upon the trial, the defendant insisted
that he had never signed or author-
ized the signing of his name to bind
the bargain. The plaintiff insisted
that the name " Messrs. Evans & Co.,"
written on the counterfoil, was so
written by Noakes as the defendant's
agent ; that if written by himself, it
would have been a sufficient signature
according to the authority of Johnson
t). Dodgson, ante, and that he was as
much bound by the act of his agent
in placing the signature there as if
done by himself. The Court of Ex-
cliequer were unanimously of opinion
that Noakes, throughout, had acted
solely in behalf of the vendor, and
that the request of the defendant, that
the memorandum should be changed
from the 19th to 20th, was to obtain
an advantage from the vendor, but in
no sense to make Noakes the agent of
the purchaser. They, therefore, made
absolute a rule for a non-suit, for which
leave had been reserved at the trial.
The Court of Exchequer Chamber,
with equal unanimity, distinguished
the case from Graham v. Musson, ante,
and held that there was evidence to
go to the jury that Noakes was the
agent of the defendant, as well as of
the plaintiff, in making the entries ;
and if so, that the writing of the de-
fendant's name on the counterfoil was
a sufficient signature according to the
whole current of authority. The
grounds for distinguishing the case
from Graham v. Musson, ante, were
stated by the different judges. Ckomp-
TON, J.: "I cannot agree with my

SBC. 425.]

CONTRACTS BY AGENTS.

785

the former, as follows : " Of North and Co., 30, Mats Maurs,
at 71 s. ; cash two months. Fennings Wharf (signed) Joseph

brother Wild and Mk. Lush that the
document in question was merely an
invoice, and that all that the defend-
ant did was simply taking an invoice,
and asking to have it altered ; and if
the jury had found that, a non-suit
would have been right. But, on the
contrary, I think that there was plenty
of evidence to go to the jury on the
question whether Noakes, the agent,
was to make a record of a. binding
contract between the parties, and that
there was at least some evidence from
which the jury might have found in
the affirmative." The learned judge
then pointed out that the memoran-
dum was in duplicate, — one " sold,"
the other "bought," — made in the
defendant's presence; that the latter
took it, read it, had it altered, and
adopted it ; all of which facts he con-
sidered as evidence for the jury that
Noakes was the agent of both parties.
Byles, J. : " What does the defend-
ant do ? First of all he sees a du-
plicate written by the hand of the
agent, and he knows it is a counter-
part of that which was binding on the
plaintiff. He knew what was deliv-
ered out to him was a sale-note in
duplicate, and accepts and keeps it.
The evidence of what the defendant
did, both before and after Noakes had
written the memorandum, shows that
Noakes was authorized by the defend-
ant." Blackeukn, J. : " The case in
the court below proceeded on what
was thrown out by my brother Wilde,
and I agree with the decision of that
court, if this document were a bill of
parcels, or an invoice in the strict
sense, viz., a document which the
vendor writes out, not on the ac-
count of both parties, but as being
the account of the vendor, and not a
mutual account. But in the present
instance I cannot, as a matter of course,
look at this instrument as an invoice,
a bill of parcels ; as intended orfly on
the vendor's account. Perhaps I should
draw the inference that it was, but it

is impossible to deny that there was
plenty of evidence that the instrument
was written out as the memorandum
by which, and by nothing else, both
parties were to be bound. There cer-
tainly was evidence, I may say a good
deal of evidence, that Noakes was to
alter this writing, not merely as the
seller's account, but as a document
binding both sides ... In Graham
V. Musson, the name of the defendant,
the buyer, did not appear on the doc-
ument. The signature was that of
Dyson, the agent of the seller, put
there at the request of Musson, the
buyer, in order to bind the seller ;
and, unless the name of Dyson was
used as equivalent to Musson, there
was no signature by the defendant ;
but in point of fact, ' J. Dyson ' was
equivalent to ' for or per pro North &
Co., J. Dyson,'" In Murphy f. Boese,
L. R. 10 Ex. 126, decided in 1875, it
appeared that the plaintiff brought
an action for the price of clocks sold
by him to the defendant ; and the
plaintiff's traveller, when he took
the order for the goods, wrote out,
in the presence of the defendant,
upon printed forms, two memoranda
of it, putting the defendant's name
upon them, and handing one of the
papers to the defendant, who kept it ;
and it was held (distinguishing Dur-
rell V. Evans) that there was no evi-
dence that the plaintiff's traveller
signed the memoranda as agent of
the defendant, so as to bind him
within § 17 of the statute of frauds.
Pollock, B., said : " I think Durrell
V. Evans can only be supported if it
decides that the agency did not com-
mence till after the memorandum was
vrritten out, and that will distinguish
it from the facts before us. It might
be said that the direction given by the
defendant to Noakes, the factor, to
alter the instrument, was an adoption
of his act in preparing it, or a recog-
nition ab initio of the whole document
as containing the contract. Or one

786 STATUTE OF FRAUDS. [CHAP. XV.

Dyson " ; it was held that this was not a sufficient note or
memorandum of the bargain to satisfy the statute, Dyson
not appearing on the evidence to be authorized to sign it as
an agent for the buyer .^

But where in an action to recover the price of goods sold
by the plaintiff to the defendant, it appeared that the plain-
tiffs traveller when he took the order for goods wrote out in
the presence of the defendant upon printed forms two mem-
oranda of it, putting the defendant's name upon them, and
handing one of the papers to the defendant who kept it, it
was held, distinguishing Durrell v. Evans, ante, that there
was no evidence that the plaintiff's traveller signed the
memoranda as agent of the defendant, so as to bind him
within the statute. The bare entry of a steward in his lord's
contract book with his tenants is not evidence of itself that
there was an agreement for a lease between the landlord and
tenant.^

Sec. 426. Ratification of Agent's Acts. — A subsequent ratifi-
cation hy a principal of a contract hy an agent is equivalent to
a previous authority? Where, therefore, a broker made a con-
tract in writing for the sale of goods, not being authorized
by his principals at the time, and the latter afterwards
assented to the contract, it was held that the broker was an
agent duly authorized to bind his principals under the statute,
at the time the contract was entered into.* So where by an
agreement a father and son, as mortgagees with power of
sale, agreed to sell to the plaintiff all their estate and interest
in a certain piece of land adjoining other land ,belonging to
the plaintiff, and this agreement was signed by the plaintiff
and by the son for himself and his father, and subsequently

might go farther and say that, from ^ Murphy v. Boese, L. R. 10 Ex.

the nature of the transaction, and the 126.

meeting of the parties at the office, it ^ Charlewood v. Diike of Bedford,

might be thoughts thatNoakes should 1 Atk. 497.

act as the scribe of both parties in * Maclean v. Dunn, 1 Moo. & P.

drawing up the memorandum. But 761 ; and see Acebal v. Levy, 4 M. &

here there is an entire absence of any Se. 217 ; 10 Bing. 376 ; Gosbell v.

act of recognition by the defendant of Archer, 2 Ad. & El. 500 ; 4 N. & M.

the traveller as his agent." 485 ; Fitzmaurice v. Bayley, 6 E. & B.

1 Graham v. Musson, 7 Sc. 769; 5 868; 9 H. L. C. 78; London & Bir-

Bing. (N. C.) 603; and see Graham v. mingham Railway Co. v. Winter, Cr.

Fretwell, 4 Sc. (N. R.) 25; 3 Man. & & Ph. 67.
Gr. 368.

SEC. 427.] OONTEACTS BY AGENTS. 787

the father and son sold the land to a third party who had
notice of the agreement, it was held that though the evidence
was insufficient to show any antecedent authority in the son
to bind the father, yet the latter had by his subsequent con-
duct ratified the contract.^

An agent cannot delegate his authority to another person.
But if he does so, the act may be ratified by the principal.^
Where the vendor of goods employed a broker for the pur-
pose of selling them, and an intending purchaser authorized
the broker's salesman to offer a certain price, who, in conse-
quence, brought the parties together, and the parties, having
concluded the contract in the absence of the salesman, dic-
tated the terms of it to him, and he made an entry of the
terms in his master's book, but did not sign it, and after-
wards communicated the circumstances to the broker, who
directed a clerk to enter and sign the contract in his book,
and sent a sale note signed by himself to the vendor, but no
sale note was sent to the purchaser, it was held that there
was no note or memorandum in writing signed by an agent
duly authorized to satisfy the statute.^

Sec. 427. signature by Clerk of Auctioneer. — A signature
by an auctioneer's clerk is sufficient to bind the purchaser.
" It is certainly irregular," said Littlbdale, J., " that the
contracting parties should act as each other's agent, but it is
very different where the contract is signed by an individual
who is not either of the contractors. Were it to be held
otherwise, no broker could maintain an action in his own
name, for the breach of a contract signed by him ; and at
every auction, if the auctioneer or his clerk were not allowed
to be the agent of the contracting parties, at ever}"- bidding
each purchaser would have to come to the table and sign his
own name." *

1 Biggt>. strong, 4 Jur. (N. S.) 983; Stevens, 43 Vt. 653. But the question
and see Dyas v. Cruise, 2 J. & Lat. as to whether he has authority or not
460 ; Norris v. Cooke, 7 Ir. C. L. R. must depend upon the circumstances
37. of each case. Cormaclc v. Masterton,

2 Blore V. Sutton, 3 Mer. 237. 3 S. & P. (Ala.) 411 ; AIna v. Plum-
' Henderson v. Barnewall, 1 Y. & mer, 4 Me. 258 ; Frost v. Hill, 3 Wend.

J. 387. (N. Y.) 386; Eutz v. Mills, 1 McNuU

* Bird «. Boulter, 1 Nev. &M. 316; (S. C.) 453; Gett v. Bickell, ante;

4 B. & Ad. 443 ; hut see Peirce v. Hart v. Wood, ante. As to the au-

Corf, L. E. 9 Q. B. 210 ; Harvey v. thority of a clerk of a telegraph

788 STATUTE OF FEAUDS. [CHAP. XV.

Sec. 428. Signature by Telegraph Clerk. — Where the in-
structions for a telegraphic message were signed by the
defendant, but the telegram received by the plaintiff merely
contained the names of the sender and receiver written by
the company's clerk in the usual printed form, it was held
that there was a sufficient signature by the defendant to
render him liable to be charged on the contract.^

Sec. 429. Broker is Agent for Both Parties. — A broker
who is employed to sell goods for any person, and who agrees
for the sale of them, and gives to the purchaser and to his
employer bought and sale notes of the bargain, is an agent
of both parties.^ He has only a special authority, not a
general one ; and if he is employed to buy one kind of
goods, and he buys another, the principal is not bound by
his act.^ Where the plaintiff instructed the defendants to
purchase for him fifty bales of cotton, and paid to the de-
fendants ^£800, part of the purchase-money, and the defend-
ants made a contract in their own names for the purchase of
a much larger quantity, viz., 300 bales on account of the
plaintiff' and other principals, it was held in an action for
money had and received that the plaintiff was entitled to
recover back the money paid, as the defendants had not
made a contract on which he could sue as principal.*

Sec. 430. signed Entry in his Books Constitutes Contract. —

A binding contract between ,t]ie parties employing a broker
is constituted by a signed entry in his books of a sale of the
goods from the one to the other.

Company, in signing a despatch, see treated as having such authority, and

Godwin v. Francis, L. E. 5 C. P. 295. their signature to a momorandum of

1 Godwin v. Francis, L. E. 5 C. P. sale binds the parties if the memoran-
295 ; and see McBlain v. Cross, 25 L. dum is in other respects suflScient.
T. (N. S.) 804. Lawrence v. Gallagher, 10 J. & S. (N.

2 Euckert). Cammeyer, 1 Esp. 104; Y.) 309; Newberry v. "Wall, 84 N. T.
Simon v. MotivoS; 3 Burr. 1921 ; 1 W. 576 ; Butler v. Thompson, 96 N. S.
Bl. 599. 412 ; Coddington v. Goddard, 16 Gray

» Pitts V. Beckett, 18 M. & W. 747, (Mass.) 442; Baines v. Ewing, L. E.

per Parke, B. Brokers and those 1 Exchq. 320; Dickinson v. Silwall, 4

buying and selling for others, neces- Camp. 279 ; Hinckley v. Arey, 27 Md.

sarily act as agent for such parties, 362; Shaw u. Finney, 13 Met. (Mass.)

and are treated as having authority 453.

to bind such parties in transactions in * Bostock v, Jardine, 34 L. J. Ex.

which they act for them, upon the 142.
same principal that auctioneers are

SEC. 430.] CONTRACTS BY AGENTS. 789

In Hinde v. Whitehouse,^ the question was whether an
entry made by an auctioneer on a catalogue of sale, not
attached to the conditions of sale, was a sufficient memoran-
dum. Lord Ellenborotjgh said : " In respect to sales of
goods it has been uniformly so holden ever since the case of
Simon v. Motivos,^ and it would be dangerous to break in
upon a rule which affects all sales made by brokers acting
between the parties buying and selling, and where the mem-
orandum in the broker's book and the bought and sold notes
transcribed therefrom, and delivered to the buyers and sellers
respectively, have been holden a sufficient compliance with
the statute to render the contract of sale binding on each."

In Heyman v. Neale,^ his Lordship said : " After the broker
has entered the contract in his book, I am of opinion that
neither party can recede from it. . . . The entry made and
signed by the broker, who is the agent of both parties, is
alone the binding contract." And in Thornton v. Charles,*
Parke, B., expressed an opinion to the same effect, saying
with reference to the case of Hawes v. Forster : ^ " Certainly
it was the impression of part of the court, that the contract
entered in the book was the original contract, and that the
bougth and sold notes did not constitute the contract."
~ Lord Abinger, C. B., however, held the contrary opinion,
and in Gumming v. Roebuck,^ and Thornton v. Meux,^ Gibbs,
C. J., and Abbott, C. J., also stated that the entry in the
broker's book was not the original contract.

In Sievewright v. Archibald,^ however, the question seems

1 7 East, 569. 9 M. & W. 802. Holding the contrary,

^ 3 Burr. 1921 ; 1 W. Bl. 599. Gibbs, C. J., in Gumming v. Roebuck,

3 2 Camp. 337. Holt, 172 ; Abbott, C. J., in Thornton

* 9 M. & W. 802. V. Meux, M. & M. 43 ; Denman, C. J.,

5 1 Moo. & Roh. 368. in Townsend v. Drakeford, 1 C. & K.

8 Holt, 172. 20; and Lokd Abinger in Thornton v.

' M. & M. 43. Charles, ante ; but they are all over-

8 17 Q. B. 103 ; 20 L. J. Q. B. 529. ruled in Seivewright y. Archibald,

Mr. Benjamin, in his work on Sales, ante.

after a careful review of the English Second. The bought and sold notes

cases, lays down the following rules : — do not constitute the contract. Fakke,

First. The broker's signed entry in B., in Thornton v. Charles, ante; Lord

his book constitutes the contract be- Ellenborouoh in Heyman v. Neale,

tween the parties. Heyman v. Neale, ante ; Sievewright o. Archibald, ante.

2 Camp. 337 ; Sievewright v. Archi- Contra. Thornton v. Meux, ante, and

bald, 17 Q. B. 115 ; Thompson v. Gard- dicta in Goom v. Afflalo, 0 B. & C. 117 ;

ner, IC. P.O. 177; Thornton y. Charles, and Trueman w. Lodcr, 11 Ad. & El.

790

STATUTE OF TEAUDS.

[chap. XV.

to have been finally settled. There a broker authorized by
the plaintiff, to sell 500 tons of Dunlop iron made a bargain

689, all of which are disapproved of
in Sierewright v. Archibald, ante.

Third. But the bought and sold
notes, when they correspond and state
all the terms of the bargain, are com-
plete and sufficient evidence to satisfy
the statute ; even though there be no
entry in the broker's book, or what is
equivalent, only an unsigned entry.
This was first settled by Goom v.
Afflalo, and reluctantly admitted to
be no longer questionable in Sieve-
■wright V. Archibald.

Fourth. Either the bought or sold
note alone will satisfy the statute, pro-
vided no variance be shown between
it and the other note, or between it
and the signed entry in the book.
This was the decision in Hawes v.
Forster, 1 Mood. & Rob. 368, of the
common pleas in Parton v. Crofts, 16
C.»B. (N. S.) 11; 33 L.J. C. P. 189;
Newberry v. Wall, 84 N. Y. 576 ; S.
C. 65 ib. 484; Butler v. Thompson,
92 U. S. 412 ; and of the common pleas
division in Thompson v. Gardiner, 1
C. P. D. 777.

Fifth. Where one note only is
offered in evidence, the defendant has
the right to offer the other note or the
signed entry in the book to prove a
variance. Hawes u. Forster, ante, is
direct authority in relation to the
entry in the book, and in all the cases
on variance, particularly in Parton v.
Crofts, supra, it is taken for granted
that the defendant may produce his
own bought or sold note to show
that it does not correspond with the
plaintiff's.

Sixth. As to variance. This may
occur between the bought and sold
notes where there is a signed entry, or
where there is none. It may also
occur when the bought and sold notes
correspond, but the signed entry dif-
fers from them. If there be a signed
entry, it follows from the authorities
under the Jirst of these propositions
that this entry will in general control
the case, because it constitutes the

contract of which the bought and sold
notes are merely secondary evidence,
and any variance between them could
not affect the validity of the original
written bargain. If, however, the
bought and sold notes correspond, but
there be a variance between them
taken collectively and the entry in
the book, it becomes a question of
fact for the jury whether the accept-
ance by the parties of the bought and
sold notes constitutes evidence of a
new contract modifying that which
was entered in the book. This is the
point established by Hawes v. Forster,
1 Mood. & R. 368, according to the
explanation of that case first given
by Pakke, B., in Thornton v. Charles,
9 M. & W. 802, afterwards by Patte-
SON, J., in Sievewright v. Archibald,
17 Q. B. 115; 20 L. J. Q. B. 529, and
adopted by the other judges in this
last named case.

Seventh. If the bargain is made
by correspondence, and there is a,
variance between the agreement thus
concluded and the bought and sold
notes, the principles are the same as
those just stated which govern vari-
ance between a signed entry and the
bought and sold notes, as decided in
Heyworth v. Knight, 17 C. B. (N. S.)
298 ; 33 L. J. C. P. 298.

Eighth. If the bought and sold
notes vary, and there is no signed
entry in the broker's book, nor other
writing showing the terms of the bar-
gain, there is no valid contract. 1
Chitty Contr. (11th Am. ed.) 551;
Suydam v. Clark, 5 Sandf . 133 ; But-
ters V. Glass, 31 U. C. Q. B. 379. This
is settled by Thornton v. Kempster,
5 Taunt. 786 ; Gumming v. Roebuck,
Holt, 172 ; Thornton v. Meux, 1 M. &
M. 43 ; Grant v. Fletcher, 5 B. & C.
436 ; Gregson v. Rucks, 4 Q. B. 747 ;
and Sievewright v. Archibald, 17 Q.
B. 115 ; 20 L. J. Q. B. 529. The only
opinion to the contrary is that of
Erle, J., in the last named case. In
one case, however, at nisi prius, Rowe

SEC. 431.] CONTRACTS BY AGENTS. 791

with the defendant to sell it to him for a price exceeding
£10. The broker sent a note to the plaintiff expressing that
he had sold him 500 tons Dunlop iron, and a note to the
defendant expressing that he had bought for him 500 tons
Scotch iron. Dunlop's is Scotch iron, but not the only kind of
Scotch iron. The broker made no signed entry in his book.
After this there was a negotiation between the plaintiff and
defendant as to the terms on which the defendant might be
let off the contract, in which both treated the contract as
binding ; but there was nothing to show whether they con-
sidered the contract to be for Scotch iron generally, or only
for Dunlop's, or that either was aware of the variance be-
tween the notes. The plaintiff brought an action on a con-
tract to deliver Dunlop's iron. Non assumpsit was pleaded,
and at the trial the variances between the notes appeared.
The declaration was then amended so as to make the con-
tract be to deliver Scotch iron ; and the jury found that the
defendant had ratified the contract contained in the bought
note, and the plaintiff obtained a verdict. On a motion to
enter a verdict for the defendant, it was held that the vari-
ance between the bought and sold notes was material ; and
that there was no sufficient memorandum of a contract to
satisfy the statute.

Sec. 431. Bought and Sold Notes do not Constitute Con-
tract, but are Proper Evidence of it. — It is now well settled
that the bought and sold notes do not constitute the con-
tract. In Heyman v. Neale,i Loed Ellbnboeough said:
" The bought and sold note is not sent on approbation, nor
does it constitute the contract. . . . What is called the
bought and sold note is only a copy of (the entry in the
broker's book) which would be valid and binding although

V. Osborne, 1 Stark. 140, Lohd Ellen- of usage is admissible to show that

BOROUGH held the defendant bound the vendor is not finally bound to the

by his own signature to a bought note bargain until he has had a reasonable

delivered to the vendor, which did time, after receiving the sold note, to

not correspond with the note signed inquire into the sufficiency of the

by the broker and sent to the defend- purchaser, and to withdraw if he dis-

ant. approves. Hodgson i). Davies, 2

Lastly. If a sale be made by a Camp. 531 ; Brandao v. Bamett, 3 C.

broker on credit, and the name of the & B. 519.

purchaser has not been previously ^ 2 Camp. 337.
communicated to the vendor, evidence

792 STATUTE OF FEAUDS. [CHAP. XV.

no bought or sold note was ever sent to the vendor and pur-
chaser." 1 In Groom v. Afflalo,^ on the other hand, Abbott,
C. J., thought the contrary, and in Thornton v. Meux ^ it
was expressly decided at nisi prius that the bought and sold
notes, and not the entry in the broker's book, were the proper
evidence of the contract.* In Sievewright v. Archibald^
these cases were disapproved of.

Although the bought and sold notes do not constitute the .
contract, nevertheless, it appears that they are the proper
evidence of the contract,^ but it must be shown that they
correspond with each other,^ and the rule applies even though
there is no entry in the broker's book or though the entry is
unsigned. In Gpom v. Afflalo,^ Abbott, C. J., said : " The
entry in the book has been called the original, and the notes
copies ; but there is not any actual decision that a valid con-
tract may not be made by notes duly signed if the entry be
unsigned. . . . We have no doubt that a broker ought to
sign his book, and that every punctual broker will do so.
But if we were to hold such a signature essential to the
validity of a contract, we should go further than the courts
have hitherto gone, and might possibly lay down a rule that
would be followed by serious inconvenience, because we
should make the validity of the contract to depend upon
some private act of which neither of the parties to the con-
tract would be informed, and thereby place it in the power
of a negligent or fraudulent man to render the engagements
of parties valid or invalid at his pleasure." ^

Sec. 432. Either Note may Prove Contract if no Variance. —

Where it is sought to establish a contract by means of
bought and sold notes, it is not necessary to produce both
the bought note and the sold note. If it can be proved by

' And see Thornton v. Charles, 9 ' Gumming v. Eoebuck, Holt, 172

M. & W. 802. Grant v. Fletcher, 5 B. & C. 436

2 6 B. & C. 117. Thornton v. Kempster, 1 Marsh, 355

8 M. & M. 43. Thornton v. Meux, M. & M. 43 ; Kemp-

* See also Trueman v. Loder, 11 Ad. son v. Boyle, 3 H. & C. 763.

& El. 589. 8 6 B ,j, c 117.

6 17 Q. B. 103; 20 L. J. Q. B. 529. » And see Sievewright v. Archi-

e Dickenson u. Lilwal, 1 Stark, bald, 17 Q. B. 103; 20 L. J. Q. B.

128; Gumming t). Roebuck, Holt, 172; 529; re Thorp, ex parte Thomas, 5

Goora V. Afflalo, 6 B. & G. 117; New Rep. 230.

Thornton v. Meux, M. & M. 48; Short

V. Spackman, 2 B. & Ad. 962.

SEC. 433.] CONTRACTS BY AGENTS. 793

the plaintiff that there is no variance between the notes them-
selves, and between the notes and the entry in the broker's
book, there is a sufficient contract. It is, of course, a good
defence to prove that there is such a variance. In Hawes v.
Forster,! Lord Denman, C. J., said: "I am of opinion that
the plaintiffs have proved a contract by producing the bought
note. ... It is not shown that the sold note delivered to
the defendants differed from the bought note delivered to
the plaintiffs : had that been shown to be the case, it would
have been very material ; but, in the absence of all proof of
that nature, I am clearly of opinion that I must look to the
bought note, and to that alone, as the evidence of the terms
of the contract." And in Parton v. Crofts, ^ Erlb, C. J.,
said: "In Sievewright v. Archibald the bought and sold
notes differed, and so the evidence of the contract failed.
Here the sold note only was produced, and there was nothing
to impeach it. That distinguishes the two cases. To satisfy
the seventeenth section of the statute, it is enough to pro-
duce a memorandum of the contract, signed by the party to
be charged thereby, or by an agent thereunto duly autho-
rized."

Sec. 433. Variance betiitreeii Signed Entry and Notes. —

Where there is a signed entry of the contract in the broker's
book, and the bought and sold notes differ from each other,
and one agrees with the signed entry, then the entry in the
broker's book, together with the note agreeing with it, consti-
tutes the contract. But where there is a signed entry, and
the bought and sold notes correspond with each other but
differ from the entry, then, according to Hawes v. Forster,^
if these documents have been delivered to the parties after
the entry in the book has been signed, it becomes a question
of fact for the jury to decide whether there has been a new
contract made between the parties on the footing of those
notes.*

Where a contract has been entered into by letters, defi-

1 1 Moo. & Rob. 368. bald, 17 Q. B. 115; 20 L. J. Q. B. 529;

2 16 C. B. (N. S.) 22 ; 33 L. J. C. Townsend v. Drakeford, 1 Car. & K.
P. 189. 22; Goom v. Afflalo, 9 D. & R. 148;

3 1 Moo. & Rob. 368. 6 B. & C. 117 ; Thornton v. Meux, 1

4 See also Thornton v. Charles, 9 M. & M. 43.
M. & W. 802 ; Sievewright v. Archi-

794 STATUTE OF FKAUDS. [CHAP. XV.

nitely fixing the terms, and subsequently bought and sold
notes containing different terms pass between the parties,
the letters, in the absence of any agreement to the contrary,
will constitute the contract.^

Where there is no signed entry in the broker's books, and
no writing from which the terms of the contract can be gath-
ered, and the bought and sold notes vary from each other,
no contract arises.

Thus, where a broker, employed by the plaintiff to sell
Petersburg clean hemp and by the defendant ts) buy hemp,
sold to the defendant, and by mistake gave him a sale note
of Riga Rhine hemp, a description of hemp of a different
quality from the Petersburg hemp, and gave the plaintiff a
note of the sale of Petersburg clean hemp, it was held that
no contract for the sale of the hemp in question subsisted
between the parties.^ In Grant v. Fletcher,^ Abbott, C. J.,
said : " The broker is the agent of both parties, and as such
may bind them by signing the same contract on behalf of the
buyer and seller. But if he does not sign the same contract
for both parties, neither will be bound. It has been decided
accordingly that where the broker delivers a different note of
the contract to each of the contracting parties there is no
valid contract." * In Rowe v. Osborne ^ it was held that a
vendee of goods was bound by the contract as stated in the
note signed by him, and delivered by the broker who effected
the sale to the vendor, although this note varied from the
note delivered by the broker to the vendee.

Sec. 434. immaterial Variance does not Avoid Contract. —

An unimportant or immaterial variation between the bought
and sold notes will not avoid a contract. Thus, where a
broker delivered to the vendor bought and sold notes written
on one sheet of paper, and the day for payment of the goods
was inserted at the end of the bought note only, but in those

1 Heyworth o. Knight, 17 C. B. « 5 B. & C. 437.

(N. S.) 298; 10 Jur. (N. S.) 866; 33 * And see Thornton w. Meux, M. &

L. J. C. P. 298, disapproving of the M. 43 ; Ileyman v. Neale, 2 Camp,

decision of the Privy Council in Cowie 337; Gregson v. Ruck, 4 Q. B. 747;

V. Kemfry, 5 Moo. P. C. C. 232. and Sieveright v. Archibald, 17 Q. B.

2 Thornton v. Kempster, 5 Taunt. 103 ; 20 L. J. Q. B. 529.
786 ; and see Gumming u. Roebuck, ^ i Stark, 140.
Holt, 172.

SEC. 437.] CONTRACTS BY AGENTS, 795

made out for the purchasers the day. was inserted at the end
of the bought as well as of the sold note, it was held that, as
the bought and sold notes delivered to the vendor were both
written on one sheet of paper, the whole must be considered
as forming one contract; and consequently that there was
no variance.^ So where the broker made a mistake in the
names of the contracting parties, it was held that the con-
tract was not thereby avoided, it not being shown that any
one was prejudiced thereby .^

Sec. 435. Sale on Credit by Broker. Vendor's Right to
Retract. — If goods in the City of London are sold by a
broker to be paid for by a bill of exchange, the vendor has a
right, within a reasonable time, if he is not satisfied with the
sufficiency of the purchaser, to annul the contract. But the
vendor must intimate his dissent as soon as he has had an
opportunity to inquire into the solvency of the purchaser ;
and five days has been considered too long a period for this
purpose.^

Sec. 436. Broker Bmployed by Purchaser, only his Sold
Note when Binding. — Where the plaintiff employed a broker
to purchase some hemp for him, and the broker having nego-
tiated with the defendant, signed and sent to Mm a sold note,
and the defendant afterwards signed and sent to the broker
a note differing in several material points from the note sent
to him, it was held that it was a question for the jury
whether both parties intended that the note signed by the
defendant should be the contract, in which case there was a
sufficient memorandum within the statute of frauds; or
whether the defendant never intended to be bound as seller
unless the buyer also signed a correlative note to bind him,
and if so, there was no valid contract.*

Sec. 437. Revocation of Broker's Authority. — The author-
ity of a broker may be revoked by his employer at any time
before he has signed a contract for him. Thus, the authority

1 Maclean u. Dunn, 1 Moo. & P. 224, citing Brandao v. Barnett, 3 C. B.
761. 519; 12 0. &F. 787; and 1 Sm. L. C.

2 Mitchell V. Lapage, Holt, 253. 549, ed. 1867.

« Hodgson y. Davies, 2 Camp. 530. * Moore v. Campbell, 10 Ex. 323;
As to whether this custom should be 23 L. J. Ex. 310.
proved, see Benj. on Sales, 2d ed.

796

STATUTE OP FKATTDS.

[chap. XV.

of a broker employed to effect a policy of insurance may be
revoked after the underwriters have signed the sHp, till such
time as they have actually subscribed the policy ; and if the
broker, having procured a slip to be written on terms within
the scope of his original authority, receives an intimation
from his principals that they wiU not submit to those terms,
and afterwards effects the policy, and pays the premium to
the underwriters, he can maintain no action against his prin-
cipals for commission or money paid.^

1 "Warwick v. Slade, 3 Camp. 127 ;
and see Farmer v. Eobinson, 2 Camp.
339, li. A broker's note or memo-
randum of sale of goods, containing
the names of both parties and the
terms of sale, and delivered to both
parties, makes a valid contract within
the statute of frauds. Newberry v.
"Wall. 84 N. Y. 576. H a broker
makes no entry in his books, the
bought and sold notes, together, con-
stitute a memorandum. Suydam v.
Clark, 2 Sandf. (N. Y.) 133; Peltier
V. Collins, 3 "Wend. (N.Y.)459; Davis
V. Shields, 26 Id. 341 ; Gregson v. Ruck,
4 Q. B. 735 ; Loomis o. Spencer, 1 D.
& R. 32 ; Grant v. Fletcher, 5 B. & C.
436. But If he makes an entry in his
books, the bought and sold notes must
agree therewith. Hawes v. Forster,
3 Moo. & E. 368; Short v. Spackman,

2 B. & Ad. 962 ; Loamer v. Dawson,
Cheeves (S. C.) 68. If either is pro-
duced alone, it will be presumed that
they do correspond. Parton v. Crofts,
16 C. B. (N. S.) 11 ; Hawes v. Forster,
ante. In "Wiener v. Whipple, 53 Wis.
298, the agent signed his own name,
and. It being shown that he acted as
agent, and had authority to do so, the
contract was binding on his principal.
But in Morgan v. Bergen, 3 Neb. 209,
It was held that a memorandum must
be signed by the agent in the principal's
name, and that if the name of the
agent only Is signed thereto, it must
be treated as the agent's contract.
See also Briggs v. Partridge, 64 N. Y.
357, where the same rule was adopted
as to a contract under seal. See also
Moody V. Smith, 70 N. Y. 598.

SEVENTH, EIGHTH, AND NINTH SECTIONS OF THE
STATUTE OF FRAUDS.

Section 7. All declarations or creations of trusts or confidences, of
any lands, tenements, or hereditaments, shall be manifested and proved
by some writing signed by the party who is by law enabled to declare
such trust, or by his last will in writing, or else they shall be utterly void
and of none effect.

Sec. 8. Provided always, that where any conveyance shall be made
of any lands or tenements, by which a trust or confidence shall or may
arise or result by the implication or construction of law, or be transfeiTed
or extinguished by an act or operation of law; then, and in every such
case, such trust or confidence shall be of the like force and effect as the
same would have been if this statute had not been made ; anything here-
inbefore contained to the contrary notwithstanding.

Sec. 9. All grants or assignments of any trust or confidence shall
likewise be in writing, signed by the party granting or assigning the
same, or by such last will or devise, or else shall likewise be utterly void
and of none effect.

CHAPTER XVI.

DECLAEATIONS OF TETJST.

SECTION.

438. All Declarations or Creations of Trust shall be in Writing.

439. Freeholds and Chattels Eeal within Statute. Charitable Uses.

440. Chattels Personal not.

441. Volunteer. Declaration must be Clear and Irrevocable.

442. Trust of Money Secured on Mortgage.

443. Parol Charge of Trust.

444. "What is Sufficient Declaration of Trust.

445. Statute not Allowed to Cover Fraud.

446. Lands in a Colony.

447. Pormalities Eequired.

448. Evidence of Trust.

449. Eequisites to Proof of Trust.

450. Signature.

Section 438. ah Declarations or Creations of Trust shall
be in 'Writing. — The seventh section of the statute of frauds
provides that " all declarations or creations of trusts or con-
fidences of any lands, tenements, or hereditaments shall be
manifested and proved by some writing signed by the party
who is by law enabled to declare such trust, or by his last
will in writing, or else they shall be utterly void, and of none
effect." 1 Before the statute of frauds a trust of lands might
have been declared by parol.^

Sec. 439. Freeholds and Chattels Real within the Statute.
Charitable Uses. — Trusts of freeholds, copyholds,^ and of

1 Adlington v. Cann, 3 Atk. 149, Langfielde v. Hodges, Lofft. 230
151 ; Fordyce v. Willis, 3 Bro. C. C. Acherley v. Acherley, 7 Bro. P. C
587 ; Thruxton v. Attorney General, 1 273 ; but see Devenish v. Baines,
Vern. 341 ; Bellasis v. Compton, 2 Prec. Ch. 5.

Vern. 294. In some of the States s g^ett v. Whitmore, Freem. 280

this (7th) section of the statute is Eiddle v. Emerson, 1 Vern. 108; Ec[.

omitted, as in Kentucky, Virginia, Cas. Abr. 381, pi. 3; Bellasis u

West Virginia, Wyoming, Tennessee, Compton, 2 Vern. 294 ; Eq. Cas. Abr.

Texas, Ehode Island, Ohio, North 881, pi. 5; Hutchins v. Lee, 1 Atk.

Carolina, Delaware, and Connecticut. 447 ; Forster v. Hale, 3 Ves. 696.

2 Withers v. Withers, Amb. 152;

SEC. 441.J DECLARATIONS OF TEUST. 799

chattels real are within this section of the statute, and
therefore a trust relating to such interests must be proved
in the manner provided by the act.^ Gifts to charitable uses
are within the statute, and, therefore, a trust for a charity
cannot be set up without a declaration in writing, even
though there are such circumstances in favor of the charity
that a testator could not mean anything else.^

Sec. 440. Chattels Personal not. — But chattels personal
are not within the statute, and a declaration of trust relat-
ing to them may therefore be made by parol, either by the
donor declaring himself, or some other person, a trustee.^

Sec. 441. Volunteer. Declaration must be Clear and Irre-
vocable.— There may be a valid declaration of trust in favor
of a volunteer.* The words of the declaration must be clear,
unequivocal, and irrevocable,^ and if there is no doubt about
it, the court will give effect to the trust as readily as if it
were in writing.® Remarks made in the course of conversa-
tion are not sufficient. " It may be doubtful," said Sir W.
P. Wood, V. C, " whether the court would hold that a vol-
untary trust could be created by merely oral expression ; so
much might depend on a correct report of the words. If, as
part of a verbal communication by a proposed settlor, he had
used words of this sort : ' I propose to do so and so,' or, ' it
is my present intention to do it,' the effect might be to show
that he had not at the time absolutely determined to create
the trust ; and in such a case, I can well imagine that the
court would require extremely strong evidence before it
would say that an irrevocable trust was created." Where a

1 Lloyd V. Spillett, 3 P. "Wms. 344, Peckham v. Taylor, 31 Beav. 250 ;
affd. 2 Atk. 148 ; Barn. 384 ; Adling- Grant v. Grant, 34 Beav. 623 ; Lister
ton V. Cann, 3 Atk. 150; Boson v. v. Hodson, L. E. 4Eq. 30; Parker v.
Statham, 1 Eden, 513. Stones, 38 L. J. Ch. 46 ; Roberts v.

2 Fane v. Fane, 1 Vem. 31; For- Roberts, 15 W. R. 117; 15 L. T. (N.
dyce V. WilUs, 3 Bro. C. C. 587; Nab S.) 260. .

V. Nab, 10 Mod. 404 ; Lucas v. Lucas, ' Jones v. Lock, 1 Ch. 28, overrul-

1 Atk. 270 ; West, 456 ; Bayley o. ing a dictum contra in Scales v. Maude,

Boulcott, 4 Russ. 347 ; Thorpe «. 6 D. M. G. 51.
Owen, 5 Bear. 224 ; Benbow v. Town- * Grant v. Grant, 34 Beav. 623.
send, 1 M. &K. 510; George !). Bank ^ Peckham v. Taylor, 31 Bear,

of England, 7 Price, 646 ; McFadden 254.

V. Jenkyns, 1 Hare, 461; 1 Ph. 157
Hughes V. Stubbs, 1 Hare, 476
Hawkins v. Gardiner, 2 Sm. & G. 451

" Paterson v. Murphy, 11 Hare,
88; and see Dipples u. Corles, ib.
184.

800 STATUTE OF FEATTDS. [CHAP. XVI.

father put a check into the hand o£ his son, an infant of nine
months old, saying : " I give this to baby for himself," and
then took back the check and put it away, and also expressed
his intention of giving the amount of the check to the son,
and the check was found among his effects after his death ;
it was held that there had been no valid declaration of trust.^

Sec. 442. Trust of Money Secured on Mortgage. — A parol
declaration of a trust of a sum of money secured upon a
mortgage of real estate has been supported. Thus, where A
took a mortgage in the name of B, declaring that the princi-
pal sum should be for the benefit of B, and received the
interest during his life, it was held that the money after the
death of A belonged to B by force of the parol declaration.^

Sec. 443. Parol Change of Trust. — If a trust is once de-
clared of personalty by parol, the donor cannot afterwards
change it b}'^ a parol declaration.^

Sec. 444. ViThat is Sufficient Declaration of Trust. — The
parol approval of a draft declaration of trust, subject to
instructions as to alterations in some of the particulars, is
not a sufficient declaration of a trust of personalty.* Where
the settlor of a fund directs an additional sum to be invested
in the names of the trustees of the fund, and the dividends
are treated as if they accrued from the original fund, there
will be no resulting trust for the settlor, but the additional
sum will be considered as impressed with the trusts of the
settlement as an augmentation of the trust fund.*

Sec. 445. statute not Allowed to Cover Fraud. — The stat-
ute of frauds cannot be used by a defendant to cover a fraud-
ulent act. Therefore, where the plaintiff conveyed an estate
to the defendant by a deed, in which the conveyance was
expressed to be absolute in consideration of a sum of money

1 Jones b. Lock, L. R. 1 Ch. 25 ; » Crabb v. Crabb, 1 M. & K. 511 ;
and see Hughes v. Stubbs, 1 Hare, Kilpin c;. Kilpin, ib. 533, per Sik J.
476 ; Maguire v. Dodd, 9 Ir. Ch. Eep. Leach.

452 ; Moore v. Moore, L. E. 18 Eq. * Re Sykes's Trusts, 2 J. & H.

476. 415.

2 Benbow v. Townsend, 1 M. & K. ^ Re Curteis' Trusts, L. E. 14 Eq.
506 ; and see Bellasis v. Compton, 2 217.

Vern. 294.

SEC. 445.] DECLARATIONS OP TRUST. 801

paid by the defendant, but no purchase-money actually
passed, and the plaintiff alleged that he conveyed the estate
to the defendant as a trustee for him ; and the defendant in
his answer admitted that he gave no consideration for the
estate, but stated that the plaintiff made the conveyance,
fearing that an adverse decision would be made against him
in a suit then pending in chancery ; and that it was under-
stood that the defendant should account to the plaintiff for
the rents until he could make arrangements for paying the
purchase-money, and if no such arrangements could be made,
that he should reconvey the estate ; but nevertheless claimed
to hold it discharged of any trust, and claimed the benefit of
the statute ; it was held that the statute could not be pleaded
in answer to the plaintiff's claim, and that the defendant
must reconvey the estate to the plaintiff.^ But where A,
the owner of estates in the Bedford Level, wishing to give
his son a qualification as bailiff, for which, according to the
Bedford Level Act, it is necessary to "have" 400 acres in
the Level, wrote to the registrar of the Level, stating his
wish, and asking him to find a qualification ; and the regis-
trar thereupon, without any further instructions, selected out
of A's land the smallest lot that exceeded 400 acres, and sent
to him a deed, by which he purported to convey it to the son
in fee, in consideration of natural love and affection, and the
deed was at once executed by A and registered; and the son
died soon after without ever having heard of the transaction;
it was held on a bill filed by A to establish his title to the
land, against the infant heiress-at-law of the son, that, on the
ground of trust, or of mistake, or on both grounds, he was
entitled to the relief sought, as it clearly appeared that
neither he nor the registrar intended or considered the trans-
action to have the effect of making the son the beneficial
owner, nor intended any fraud or illegality.^ In May v.
May,^ a conveyance of property by a father to his son to give
him a qualification to vote, was held not invalid, but a bountyr
In Groves v. Groves,* property was purchased by one person
and conveyed to another, in order to give the latter a vote at
parliamentary elections, and the court would not assist the

1 Haigh V. Kaye, L. K. 7 Ch. 469; ^ Childers v. Childers, 1 De G. &
and see Lincoln v. Wright, 4 De G. & J. 482.
J. 16 ; Davies v. Otty, 35 Beav. 208. = 33 Beav. 81. ^ 3 Y. & J. 163.

802 STATUTE OF FRAUDS. [CHAP. XVI.

purchaser, and his bill seeking to make the grantee a trustee
was dismissed.

In Rex V. Portington,i it was held that the statute of frauds
did not bind the Crown, but took place only between party
and party. In Adlington v. Cann,^ however. Lord Hakd-
WICKE said that lie was doubtful as to this doctrine that the
king was not bound by a statute unless he was expressly
named, but referred to a case upon the sixteenth section of
the statute in which it had been determined that he was not.

Sec. 446. Lands in a Colony. — The statute does not apply
to lands in a colony acquired before the statute was passed.
English subjects, wherever they go, carry their laws with
them, and therefore a new colony is to be governed by the
laws of England existing at the time when possession is
taken, though afterwards acts of parliament made in England
without naming the colony will not be binding there.^

Sec. 447. what Formalities Required. — It will be observed
that the statute does not require that a trust shall be declared
in writing, but that it shall be " manifested and proved " by
writing, which must be signed.* " It is not required by the
statute," said Lord Alvanley, " that a trust should be cre-
ated by a writing ; and the words of the statute are very par-
ticular in the clause respecting declarations of trust. It
does not by any means require that all trusts shall be created
only by writing ; but that they shall be manifested and proved
by writing ; plainly meaning, that there should be evidence
in writing, proving that there was such a trust. Therefore,
unquestionably it is not necessarily to be created by writing,
but it must be evidenced by writing, and then the statute is
complied with ; and, indeed, the great danger of parol declara-
tions, against which the statute was intended to guard, is
entirely taken away." ^

Sec. 448. Evidence of Trust. — A trust may be manifested
and proved by a declaration made by the trustee even after

1 1 Salk. 162. BORonOH; Davies v. Otty, 35 Beav.

2 3 Atk. 154. 540 ; Smith v. Matthews, 3 De G. F.
8 See 2 P. Wms. 75 ; Gardiner v. & J. 151, per TuRNfiK, L. J. ; Donohoe

Fell, 1 Jac. & W. 22. > v. Conrahy, 2 J. & Lat. 696. As to

* Denton v. Davies, 18 Ves. 503. whether these cases carry out the

6 Forster v. Hale, 3 Ves. 707 ; and intention of the framers of the stat-

see S. C. 5 Ves. 315, per Lobd Lough- ute, see Lewin on Trusts, 6th ed. 49.

SEC. 450.] DKCLAEATIONS OF TRUST. 803

the death of the cestui que trust^ by letters written by the
settlor,^ by an affidavit,^ a recital in a bond,* or deed,^ even
though the deed may be inoperative," or by a mere memoran-
dum promising to declare a trust.'^ Where a lease was granted
to W, who afterwards committed an act of bankruptcy, and
then executed a declaration of trust in favor of R ; it was
held, it having been found on an issue directed by the court
that Ws name was used in trust for R, that the lease did not
pass to Ws assignees.^

Sec. 449. Requisites to Proof of Trust. — When it is sought
to establish a declaration of trust from informal documents,
there must be demonstration that they relate to the subject-
matter,^ and the trust must be shown to be certain in its
nature and in its object, otherwise it must fail.^<* Parol evi-
dence is admissible to show the position in which the writer
of letters stood when he wrote them, the circumstances by
which to his knowledge he was then surrounded, and the
degree of weight and credit which, independently of any
question of construction, may belong to the letters.^^

Sec. 450. signature. — The declaration of trust must be
signed " by the party who is by law enabled to declare such
trust " ; and it is now settled that the signature must be by
the beneficial owner, and not by a trustee who has the legal
estate ; ^^ and the rule applies to personal as well as to real
estate.^^

1 Ambrose v. Ambrose, 1 P. Wms. * Re Bennett's Settlement Trust,
321 ; Crop v. Norton, 9 Mod. 233 ; 2 16 W. R. 831 ; 17 L. T. (N. S.) 438.
Atk. 74; Bam. 179. ' Bellamy u. Burrow, Cas. temp.

2 O'Hara v. O'Neill, 7 Bro. P. C. Talb. 98.

227 ; Forster v. Hale, 3 Ves. 696 ; S. » Gardner v. Rowe, 2 S. & S. 340,

C. 5 Ves. 308 ; Gardner v. Rowe, 2 S. affd. 5 Euss. 258 ; see also Earl of

& S. 354 ; Morton v. Tewart, 2 T. & Plymouth v. Hickman, 2 Vern. 167.

C. 67 ; Bentley v. Mackay, 15 Beav. » Forster v. Hale, 3 Ves. 708 ;

12; Childers o. Childers, 1 De G. & Smith v. Matthews, 3 De G. F. & J.

J. 482. 151.

3 Barkworth v. Young, 4 Drew, 1. i» Morton v. Tewart, 2 Y. & C. C.
Under the old practice an admission C. 80, per Knight Bruce, V. C. ;
in an answer was sufficient: Hampton Forster v. Hale, 3 Ves. 707; Smith v.
V. Spencer, 2 Vern. 288; Nab v. Nab, Matthews, 3 De. G. F. & J. 151, 2.

10 Mod. 404; Ryall ;;. Ryall, 1 Atk. " Morton v. Tewart, 2 Y. & C. C.

59 ; Cottington v. Fletcher, 2 Atk. C. 77.

155; Wilson v. Dent, 3 Sim. 385. 12 Tierney v. Wood, 19 Beav. 530;

* Moorecroft v. Dowding, 2 P. Donohoe v. Conrahy, 2 J. & Lat. 688.

Wms. 314. 18 Ex parte Pye, 18 Ves. 140 ,

5 Deg V Deg, 2 P. Wms. 412. Bridge v. Bridge, 16 Beav. 315.

CHAPTER XVII.

EESTJLTING TKTJSTS.

BECTIOK.

451. Trusts Arising, etc., by Act of Law not within Statute.

452. Trust of Part of Estate.

453. Devise of Residue.

454. Vague Trusts, Lapsed, Unlawful.

455. Purchase made in Name of Stranger,

456. Eule Applies to First Purchase.

457. To Personal as well as Real Estate.

458. Purchase in Fictitious Name.

459. Parol Eyidence Admissible on Part of Person Paying Purchase-Money.

460. On Behalf of Person to Whbm Conveyance is Made.

461. To Eetut Presumption as to Part of Property.

462. Not Admissible to Prove Agency.

463. Conveyance without Consideration.

464. Purchase in Name of Wife or Child.

465. Reputed Wife.

466. Person in Loco Parentis.

467. Purchase by Mother.

468. Fiduciary Relationship.

469. When Avoided as against Creditors.

470. Rule Applies to Personal Estate.

471. Surrounding Circumstances to be Considered.

472. Purchase-Money Unpaid.

473. Joint Tenancy, when Created.

474. Purchase in Name of a Child and a Stranger.

475. Evidence to Rebut Presumption of Advancement.

476. Possession by Father.

477. Devise, Bequest, or Lease.

478. Child fully Advanced.

479. Purchase in Pursuance of Covenant.

480. Transfer of Trusts.

Section 451. Trusts Arising, Resulting, Transferred, or Ex-
tinguished by Act of Law Excepted. — The eighth section of
the statute of frauds provides " that where any conveyance
shall be made of any lands or tenements by which a trust or
confidence shall or may arise or result by the implication or
construction of law, or be transferred or extinguished by an
act or operation of law, then and in every such a case, such

SEC. 453.] RESULTING TRUSTS. 805

trust or confidence shall be of the like force and effect as the
same would have been if this statute had not been made ;
anything hereinbefore contained to the contrary notwith-
standing." *

Sec. 452. Trust of Part of Estate. — If a trust is declared
of a part only of an estate, and the instrument creating the
trust, whether a deed or will, does not mention the residue,
the equitable interest therein will result to the settlor.^

Where the whole legal interest of a grantor is given for
the purpose of satisfying trusts expressed, and those trusts
do not in their execution exhaust the whole, so much of the
beneficial interest as is not exhausted results to the grantor
or to his heir of legal personal representatives. But where
the whole legal interest is given for a particular purpose, with
an intention to give to the grantee of the legal estate the
beneficial interest, if the whole is not exhausted by that
particular purpose, the surplus goes to the grantee, and
there is no resulting trust. Thus, a devise to A and his
heirs charged with the testator's debts is a beneficial devise,
subject to a particular purpose, and there will be no result-
ing trust ; but if the devise is upon trust to pay debts, that
being a devise for a particular purpose only, a trust will
result for the heir.^ Where estates are devised to executors
upon trust, to sell and to invest part of the proceeds of the
sale for a particular purpose, but no trust is declared of the
sum so reserved, after the purpose is satisfied, there will be a
resulting trust for the heir.* The fact that a trust given for
a particular purpose has lapsed will not prevent a trustee
from taking beneficially under the rule in Bang v. Denison.^

Sec. 453. Devise of Residue. — Under a devise of all the
residue of the testator's estate and effects whatsoever and
wheresoever, of what nature or kind so ever, to trustees upon

1 This section does not extend to ' King v. Denison, 1 V. & B. 272,
wills; see Lewin on Trusts, 6th ed. per TuO-rd Eldon; and see Wood v.
171. Cox, 2 M. & C. 684; Kogers w.Eogers,

2 Culpepper v. Aston, 2 Ch. Cas. 3 P. Wms. 193.

115 ; Cook V. Gwavas, cited in Roper * Stonehouse v. Evelyn, 3 P. Wms.

V. Eadcliffe, 9 Mod. 187 ; Lloyd v. 252 ; Watson v. Hayes, 5 M. & C. 125 ;

Spillet, 2 Atk. 150; Cottington v. Page v. Leapingwell, 18 Ves. 463;

Eletcher, ib. 156 ; Northen v. Came- Mariott v. Turner, 20 Beav. 557.

gie, 4 Drew, 587 ; Mapp v. Elcock, 3 ^ Supra, Tregonwell v. Sydenham,

H. L. C. 492. 3 Dow. 210.

806 STATUTE OF FRAUDS. [CHAP. XVII.

trusts applicable only to personal property, the real estate
will pass with a resulting trust for the heir.^ But if the
trusts may be applicable to real estate, then the real estate
will pass.^

Sec. 454. Trusts Vague, Lapsed, Unlawful. — If the trusts
declared are so vague that they cannot be executed,^ or if
they lapse,* or are void because of unlawfulness,^ they will
result. So also a trust will result when the instrument
creating the trust shows that it was not intended that the
grantee should take beneficially, as where the conveyance,
devise, or bequest is to A " upon trust," and no trust is de-
clared.®

Sec. 455. Purchases made in the Names of Strangers. —
Where property is bought by one person in the name of a
stranger, to whom the conveyance is made, there will be a
resulting trust for the person who paid the purchase-money.
" The clear result of all the cases," said Eyee, C. B., in Dyer
V. Dyer,^ " without a single exception, is, that the trust of a
legal estate, whether freehold, copyhold, or leasehold ; whether
taken in the names of the purchasers or others jointly, or in
the names of others without that of the purchaser ; whether
in one name or several ; whether jointly or successive, results
to the man who advanced the purchase-money. This is a
general proposition supported by all the cases, and there is
nothing to contradict it ; and it goes on a strict analogy to
the rule of the common law, that where a feoffment is made
without consideration, the use results to the feoffer."^ No
resulfing trust will be created by the mere expression of a

1 Dunnage v. White, 1 Jac. &W. « Dawson v. Clarke, 18 Ves. 254 ;
583 ; Lloyd v. Lloyd, L. R. 7 Eq. 458 ; Penfold v. Bouch, 4 Hare, 271 ; Attor-
Lougley v. Longley, L. R. 13 Eq. 183. ney General v. Dean and Canons of

2 D'Almaine v. Moseley, 1 Drew, Windsor, 24 Beav. 679 ; 8 H. L. C.
629; Coard u. Holderness, 20 Beav. 369; Aston v. Wood, L. R. 6 Eq.
147. 419 ; Barrs v. Fewkes, 2 H. & M. 60.

8 Stubbs V. Sargon, 2 Keen, 255 ; 3 '2 Cox, 93.
M. & C. 507 ; Williams v. Kershaw, 5 ' As to conveyance taken jointly,
C. & F. 111. see Ex parte Houghton, 17 Ves. 253;

* Ackroyd a. Smithson, 1 Bro. C
C. 503; Williams v. Coade, 10 Ves
500.

s Gibbs V. Rumsey, 2 V. & B. 294
Page ... Leapingwell, 18 Ves. 463
Tregonwell v. Sydenham, 3 Dow. 194.

Eider v. Kidder, 10 Ves. 367 ; and as
to several successive, see Howe v.
Howe, 1 Vern. 415 ; Withers v. With-
ers, Amb. 151 ; Smith v. Baker, 1
Atk. 385 ; Prankard v. Prankard, 1 S.
&S. L

SBC. 458.] RESULTING TRUSTS. 807

wish, on the part of the grantor, that the purchase-money
may be applied in a certain way.^ The rights of a purcliaser
may be barred by negligence or delay .^

Sec. 456. Rule Applies to First Purchase. — The rule that
a trust results from the person who pays the purchase-money
applies to the case of a joint purchase in the name of one. In
Crop V. Norton,^ Lord Hardwicke seemed to think that the
application of the rule was confined to an advance by one in-
dividual. In Wray v. Steele,* however. Sir P. Plumer de-
cided that a resultmg trust arose upon a joint advance, the
purchase being taken in the name of one. "Lord Haed-
wiCKE," said his Honor, " could not have used the language
attributed to him. What is there applicable to an advance
by a single individual, that is not equally applicable to a
joint advance under similar circumstances ? "

Sec. 457. To Personal as well as Real Estate. — The fore-
going doctrines apply as well to personal as to real estate,^
even though, when the property consists of shares in a com-
pany, the rules of the company provide that there shall be
no benefit of survivorship.^

Sec. 458. Purchase in Fictitious Name. — Where money
has been invested in the purchase of stock in a fictitious
name, for the purpose of defrauding creditors, the court will
order the fictitious name to be erased and the stock to be
transferred to the person who paid the purchase-money.'^
Where an intestate had executed transfers of railway shares
and stock to a fictitious person, the court, on a bill filed by
his administrator, declared that the intestate used the ficti-
tious name as another designation of himself, and that the
plaintiff, as administrator, was entitled to transfer the shares
and stock in questien, and to receive the dividends thereof.**

1 Delaneu.Delane, 7Bro. P. C.279. Sidmouth, 2 Bear. 447; Soar v. Eos-

2 Lewis V. Lane, 2 M. & K. 449, ter, 4 K. & J. 152 ; Beecher v. Major,
overruling Edwards v. Fidel, 3 Madd. 2 Dr. & Sm. 431 ; Batstone v. Salter,
237 ; and see Jeans v. Cooke, 24 L. R. 19 Eq. 250 ; affd. L. R. 10 Ch.
Beav. 613. 431.

8 2 Atk. 74 ; 9 Mod. 233; Bam. 184. » Garrick v. Taylor, 29 Beav. 79;

* 2 V. & B. 388. affd. 4 De G. F. & J. 163.

6 Ebrand v. Dancer, 2 Ch. Ca. 26 ; ' Green v. Bank of England, 3 Y.

Lloyd V. Read, 1 P. Wme. 607 ; Mor- & C. Exch. 722.

timer v. Davies, 10 Ves. 363 ; Rider ' Arthur v. Midland Railway Co.,

V. Kidder, 10 Ves. 360 ; Sidmoutli v. 3 K. & J. 204.

808 STATUTE OF FBATJDS. [CHAP. XVII.

Sec. 459. Parol Evidence Admissible on part of Person Pay-
ing Purchase-Money. — Parol evidence is admissible on behalf
of the person paying the purchase-money to show that it be-
longed to him. In Sir John Peacher's case/ Sik Thomas
Clakkb, M. R., laid it down, that if A sold an estate to C,
and the consideration was expressed to be paid by B, and the
conveyance made to B, the court would allow parol evidence
to prove the money paid by C.^ But such proofs must be
very clear.^

Sec. 460. On Behalf of Person to whom Conveyance Made.
— Parol evidence is admissible on behalf of the person to
whom the conveyance is made, to rebut the presumption of
a resulting trust for the person paying the purchase-money.
In Beecher v. Major,* where A purchased and transferred
.£1,000 stock in the name of her niece, and wrote her a
letter stating that she had done so, and that she intended . it
for the niece's benefit, and in the letter A inclosed a bank
power, which she stated was to enable her to receive the
dividends for her life, which power she requested the niece
to execute and return to her and also to destroy the letter,
both of which the niece accordingly did, it afterwards turned
out that the bank power authorized A to sell out the stock
as well as receive the dividends. It appeared that A had
always been very kind to the niece, and by her will made
before the transfer had given her an annuity of £30. It was
held that parol evidence of the contents of the letter was ad-
missible to rebut the general presumption that the stock still
belonged to A.

Sec. 461. To Rebut Presumption as to Part of Property. —

Parol evidence is admissible for the purpose of rebutting the
presumption of a resulting trust as to a part, as well as to
the whole, of the property.^

1 Rolls E. T. 1759, M. S. Sugd. V. 103 ; Gascolgne v. Thwing, 1 Ver.
& P- 366 ; Willis V. Willis, 2 Atk. 71.

2 See also Ryall v. Ryall, 1 Atk. ■> 2 Dr. & Sm. 431 ; and see Groves
59; Amb. 413; Willis v. Willis, 2 k. Groves, 3 Y. & J. 163.

Atk. 71; Bartlett v. Pickersgill, 1 6 Bellasis <-. Compton, 2 Vern.

Eden, 516 ; Lane v. Dighton, Amb. 294 ; Benbow v. Townsend, 1 M. & K.

409; Groves v. Groves, 3 Y. & J. 506; Deacon w.Colquhoun, 2 Drew, 21;

163. Garrick v. Taylor, 29 Beav. 79; afid.

' Newton v. Preston, Prec. Cli. 4 De G. F. & J. 163.

SEC. 463.J KEStTLTING TRUSTS. 809

Sec. 462. Not Admissible to Prove Agency. — Parol evi-
dence is not admissible to show that, where land has been
paid for by one person, the purchase was made on behalf of
another. This was decided in Bartlett v. Pickersgill,i where
Lord Keeper Henley said : " I think the allowing this evi-
dence would be to overturn the statute. The statute says
there shall be no trust of land unless by memorandum in
writing, except such trusts as arise by operation of law.
Where money is actually paid, there the trust arises 'from
the payment of the money, and not from any agreement of
the parties. But this is not like the case of money paid by
one man and the conveyance taken in the name of another ;
in that case the bill charges that the estate was bought with
the plaintiff's money. If the defendant says he borrowed it
of the plaintiff, then the proof will be whether the money
was lent or not ; if it was not lent, the plaintiff bought the
land ; but as here the trust depends on the agreement, if I
establish the one by parol, I establish the other also. ... If
the plaintiff had paid any part of the purchase-money, it would
have been a reason for me to admit the evidence ; or if there
had been any fraud used by the defendant to prevent an exe-
cution of the agreement; but as it is, I think that it is a case
within the statute, and that the bill must be dismissed with
costs." 2 •

Sec. 463. Conveyance ■without Consideration. — In some
cases it has been held that where a conveyance is made
to a stranger without any valuable consideration being ex-
pressed, that a resulting trust arises for the grantor. ^ In
Young V. Peachy, Lord Hardwicke said : * " If a trust by
implication was to arise in the present case, it would be to
contradict the statute of frauds ; for it might be said in every
case where a voluntary conveyance is made, that a trust shall
arise by implication ; but that is by no means the rule of the
court ;^ trusts by implication, or operation of law, arise in

1 1 Eden, 516; see also Crop v. Prec. Ch. 80; Warman o. Seaman,
Norton, 9 Mod. 235 ; 2 Atk. 74 ; Barn. Freem. 308 ; Sculthorp v. Burgess, 1
179; Chadwick v. Maden, 9 Hare, Ves. Jr. 93 ; Davies u. Otty (No. 2), 35
188. Beav. 208.

2 And see Heard v. Pilley, L. E. 4 * 2 Atk. 256.

Ch. 548. 6 See Fordyce v. WllUs, 3 Bro. C.

8 Duke of Norfolk v. Browne, C. 577.

810 STATUTE OF FEAtTDS. [CHAP. XVn.

such eases, where one person pays the purchase-money, and
the conveyance is taken in the name of another, or in some
other cases of that kind ; but the rule is by no means so large
as to extend to every voluntary conveyance." ^ Where a son
conveyed an estate to his father nominally as purchaser, but
really as a trustee, and in order that the father, who was in
better credit than the son, might raise money upon it by way
of mortgage for the use of the son; and the father died
shortly afterwards and before any money was raised, having
by a will subsequent to the conveyance made a general devise
of all his real estates ; it was held that the case was within
the statute, and that parol evidence was not admissible to
prove the trust ; but that the son had a lien on the estate as
vendor for the apparent consideration, no part of which was
paid.2

Sec. 464. Purchases in the Name of a VTife or Child no Re-
sulting Trust. — No resulting trust arises upon a purchase in
the name of a wife alone,^ nor upon a joint purchase in the
names of a husband and wife,* nor upon a purchase in the
name of a child.^ The presumption in these cases is that a
gift to the wife or an advancement for the child was intended.
If a mortgage is made in the joint names of a husband and
wife, this will be considered as being in the nature of a joint
purchase, and the wife will, if the husband dies, be entitled
to the mortgage-money by survivorship.®

Sec. 465. Reputed Wife. — A purchase in the name of the
purchaser and of a woman whom in form he has gone through
the ceremony of marrying, but who could never become his
lawful wife, does not come within the rule, and therefore
such a purchase will not raise a presumption that it was in-
tended as an advancement or provision for her.'i

1 And see 1 Sand. Uses, 5th ed. v. Gosling, 3 Drew, 335; Lloyd v.
365; Wms. R. P. 10th ed. 159; Lloyd Pughe, L. R. 8 Ch. 88.

V. Spillet, 2 Atk. 150. 4 Drew v. Martin, 2 H. & M. 130.

2 Leman v. Whitley, i Euss. 423. 6 Dyer v. Dyer, 2 Cox, 92 ; Finch
This case was doubted by Lord St. v. Finch, 16 Ves. 60 ; Murless v.
Leonards, Sug. V. & P. 14th ed. 702. Franklin, 1 Swanst. 13 ; Grey v. Grey,

8 Kingdon v. Bridges, 2 Vern. 67 ; 2 Swanst. 597 ; Finch, 340.
Back!). Andrew, 2 Vern. 120; Christ's e Christ's Hospital v. Budgln, 2

Hospital V. Budgin, 2 Vern. 683 ; Vern. 683.
Eider v. Kidder, 10 Ves. 360 ; Gosling ' Soar v. Foster, 4 K. & J. 152.

SBC. 467.] EESULTING TETJSTS. 811

Sec. 466. Person In Loco Parentis. — The presumption of
advancement may arise in the case of a purchase by a person
who has placed himself in loco parentis to the person in whose
name the purchase is made. Thus the presumption has been
held to apply in the case of an illegitimate son,^ of a grand-
chUdj^ of the nephew of a wife.^

But the presumption of advancement will not arise in the
case of a purchase in the name of an illegitimate grandchild,
although the grandfather has placed himself in loco parentis
to the child.*

Sec. 467. Purchase by Mother. — In the case of re De
Visme,* it was said that a mother does not stand in such a
relationship to a child as to raise a presumption of benefit
for the child. In Sayre v. Hughes,® a mother, after making
her will in favor of her two daughters, transferred stock
which had stood in her own name into the names of herself
and one of the daughters, and died, and it was held that
there was a presumption of intended benefit to the daughter
which was unrebutted, and that the stock belonged abso-
lutely to her. Me De Visme was cited as an authority for
the proposition that there could be no presumption of ad-
vancement as between a mother and child, but Stitakt, V.
C, pointed out that the word "father" does not occur in
Lord Chief Bakon Eyre's judgment in Dyer v. Dyer,^ and
said that it was not easy to understand why a mother should
be presumed to be less disposed to benefit her child in a
transaction of this kind than a father. Where stock was
transferred by a mother into the names of herself, her
daughter, and her daughter's husband, and the dividends on
the stock were received by the son-in-law and paid over to
the transferor during her life, and the mother died leaving
the son-in-law only surviving, it was held that there was no
resulting trust, and that the son-in-law was entitled to the

1 Beckford v. Beckford, Lofft. 490

Kilpin V. Kilpin, 1 M. & K. 520; and Jur. (N. S.) 317 ; 13 W. E. 380; see,

see Soar v. Foster, 4 K. & J. 152
Tucker v. Burrow, 2 H. & M. 515.
2 Ebrand v. Dancer, 2 Ch. Ca. 26

515; and see Forrest v. Forrest, 11

however, Powys v. Mansfield, 3 My. &
Cr. 359, as to double portions.
6 2 De G. J. & S. 17.

Lloyd V. Read, 1 P. Wms. 607. " L. B. 5 Eq. 377 ; see also Hep-

8 Currant v. Jago, 1 Coll. 261. worth v. Hepworth, L. K. 11 Eq. 10.

* Tucker v. Burrow, 2 Hem. & M. '2 Cox, 92.

812 STATUTE OF FKATJDS. [CHAP. XVII.

stock, the court being of opinion that the evidence showed
that the mother intended to create a beneficial interest in
each of the three persons into whose names the stock was
transferred.!

Sec. 468. Fiduciary Relationship. — Where a fiduciary
relationship, such as that of solicitor and client, subsists
^between a parent and child, and the parent's money is ad-
vanced by the child in her own name, the ordinary presump-
tion in favor of the transaction being a gift is excluded, and
the onus is thrown upon the child of proving that a gift was
in fact intended.^

Sec. 469. "When Avoided as against Creditors. — Purchases
in the name of a wife or child by way of gift or advance-
ment are, it appears, within the 13 Eliz. c. 5, and may be
avoided as against creditors,^ but they are not within the
27 Eliz. c. 4, and are therefore good as against subsequent
purchasers.*

Sec. 470. Rule Applies to Personal Estate. — The foregoing
rules apply also to personal estate, and therefore where a
husband transfers stock into the names of himself and his
wife, no resulting trust will arise for the husband, but the
wife will be entitled to the whole fund by survivorship;^
so also in the case of a transfer of stock into the names
of a parent and child, the stock will belong to the child
surviving.^

Sec. 471. Surrounding Circumstances to be Considered. —
The mere circumstance that the name of a wife or child is
inserted on the occasion of a purchase of stock is not suffi-
cient to rebut a resulting trust in favor of the purchaser, if
the surrounding circumstances lead to the conclusion that a
trust was intended. Although a purchase in the name of a

1 Batstone v. Salter, L. R. 19 Eq. K. & J. 110; Drew v. Martin, 2 H. &
250, afed. L. R. 10 Ch. 431 ; and see M. 130.'

Fowkes V. Pascoe, L. R. 10 Ch. 343. i Glaister v. Hewer, 8 Ves. 195;

2 Garrett v. Wilkinson, 2 De G. & Drew v. Martin, 2 H. & M. 130.

, S. 244 ; see also Hepworth v. Hep- ' Dummer v. Pitcher, 2 M. & K.

worth, L. R. 11 Eq. 14. 262 ; Low v. Carter, 1 Beav. 426;

' Glaister v. Hewer, 8 "Ves. 195; Vance v. Vance, ib. 605; Poole v.

Townsend v. Westacott, 2 Beav. 340 ; Odiing, 31 L. J. Ch. 439.

4 Bear. 58 ; Christy v. Courtenay, 13 ^ Sayre v. Hughes, L. R. 5 Eq.

Beav. 96; Barrack ■/. McCuUoch, 3 376; BeereDeVisme,2DeG. J.&S. 17.

SEC. 471.J KESTJLTING TKXTSTS. 813

wife or a child, if altogether unexplained, will be deemed
a gift, yet the surrounding circumstances may be taken into
consideration, so as to say that it is a trust and not a gift.
Thus, in Marshall v. Crutwell,^ the husband of the plaintiff,
being in failing health, transferred his banking account from
his own name into the joint names of himself and his wife,
and directed the bankers to honor checks drawn eitlier by
himself or his wife, and he afterwards paid in considerable
sums to their account. All checks were afterwards draAvn
by the plaintiff at the direction of her husband, and the
proceeds were applied in payment of household and other
expenses. The husband never explained to the plaintiff
what his intention was in transferring the account, but he
was stated by the bank manager to have remarked at the
time of the transfer that the balance of the account would
belong to the survivor of himself and his wife. After the
death of her husband (which took place a few months after
the transfer) the plaintiff claimed to be entitled to the
balance. It was held that the transfer of the account was
not intended to be a provision for the plaintiff, but merely a
mode of conveniently managing her husband's affairs, and
consequently that she was not entitled. Jessel, M. R., said :
" In all the cases in which a gift to the wife has been held to
have been intended, the husband has retained the dominion
over the fund in this sense, that the wife during the lifetime
of the husband has had no power independently of him, and
the husband has retained the power of revoking the gift. In
transferring a sum of stock there is no obvious motive why
a man should put a sum of stock into the name of himself
and his wife. She cannot receive the dividends, he can and
must, and it is difQcult to see any motive of convenience or
otherwise which should induce a man to buy a sum of stock
or transfer a sum of stock (if there is any difference between
the two) in or into the names of himself and his wife, except
the motive of benefiting her in case she survives. But here
we have the actual fact, that the man was in such a state of
health that he could not draw checks, and the wife drew
them. Looking at the fact that subsequent sums are paid in

1 Marshall v. Crutwell, L. R. 20 Fowkes v. Pascoe, L. R. 10 Ch. 343.
Eq. 329, per Jessel, M. R. ; and see = l. r. 20 Eq. 329.

814 STATUTE OP PEAUDS. [CHAP. XVII.

from time to time, and taking into view all the circumstances
(as I understand I am bound to do), as a juryman I think
that the circumstances show that this was a mere arrange-
ment for convenience, and that it was not intended to be a
provision for the wife in the event which might happen, that
at the husband's death there might be a fund standing to the
credit of the banking account."

Sec. 472. Purchase-Money Unpaid. — Where a purchase
either of real or personal property is made in the name of a
wife or child, and the purchaser dies before the whole of the
purchase-money is paid, the purchase will enure for the ben-
efit of the wife or child, and the unpaid purchase-money is
payable out of the purchaser's personal estate.''

Sec. 473. Joint Tenancy, when Created. — A purchase in
the joint names of father and son creates a joint tenancy.^
In one case where the father had no other estate to which a
judgment creditor could resort, the creditor was relieved in
equity against the survivorship at law.'

Sec. 474. Purchase in the Name of a Child and a Stranger.

— If a purchase is made by a parent in the name of a child
and of a stranger, whether of real or personal estate, it will
be considered as an advancement; the stranger will be
treated as a trustee for the child, and there will not be any
resulting trust to the father.*

Sec. 475. Evidence to Rebut Presumption of Advancement.

— In certain cases where a purchase is made in the name of
a child, the presumption of advancement may be rebutted.
Thus, where a father tenant, by copy of court roll for his
life, took according to the custom of the manor a grant from
the lord of the reversion to his sons for the terms of their

1 Eedington v. Eedington, 3 Ridg. ' Stileman v. Ashdown, 2 Atk. .

P. C. 106; Vance v. Vance, 1 Beav. 477; see Pole v. Pole, 1 Ves. 76. This

605 ; Drew v. Martin, 2 H. & M. 130 ; case, however, is doubted by Mr.

Skidmore v. Bradford, L. E. 8 Eq. Lewia in his work on Trusts, 6th ed.

134 ; Nicholson v. Mulligan, 3 J. E. 153.
Eq. 308 ; see 30 & 31 Vict. c. 69. * Lamplugh v. Lamplugh, 1 P.

^ Scroope v. Scroope, Frcem. Ch. Wins. Ill ; Mumma v. Mumma, 2

171 ; 1 Ch. Cas. 27 ; Back v. Andrews, Vem. 19; Finch v. Pinch, 15 Ves. 43 ;

2 Vem. 120 ; Grey v. Grey, 2 Swans. Crabb v. Crabb, 1 M. & K. 511 ; Col-

599 ; Dummer v. Pitcher, 2 M. & K. linson v. CoUinson, 3 D. M. G. 403.
272.

SBC. 476.] RESULTING TRUSTS. 816

lives, in trust for himself " as the purchaser," it was held
that the sons were trustees of the reversion for him.' The
antecedent and contemporaneous acts and declarations of
the parent are admissible in evidence to rebut the presump-
tion of advancement, but his subsequent acts and declara-
tions are inadmissible for that purpose.^ In Devoy v. Devoy,^
the presumption that the transfer (by a father) of stock into
the joint names of himself, his wife, and child, was intended
to be an advancement, was allowed to be rebutted by the
evidence upon oath of the transferor that no trust was
intended, but that the transfer was made under a misappre-
hension of its legal effect.* Although subsequent acts and
declarations of the parent are not evidence to support the
trust, subsequent acts and declarations of the child may be

Sec. 476. Possession by Father. — The presumption of
advancement will not be rebutted by the fact of the father
having continued in possession of the estate during his life,®
nor by the fact that the father has expended money in re-
pairs on the estate.'^

Where a father purchases stock or shares in the name of k
child, and receives the dividends during his life under a
power from the son, this alone will not rebut the presump-
tion of advancement.^ In Smith v. Warde,^ a father directed
stock to be purchased in the names of himself and his wife
in trust for his infant son. The purchase was ma,de in the
joint names without any trust being declared, and the father
received the dividends down to his decease. It was held

1 Keats V. Hewer, 10 Jur. (N. S.) ' Sidmouth v. Sidmouth, 2 Beav.
1040 ; 13 W. E. 34. 455, per Lord Langdale.

2 Reddington w. Reddington, 3 « Q^ey v. Grey, 2 Swanst. 600;
Ridg. 177 ; Lloyd v. Read, 1 P. Wms. Lamplugh v. Lamplugh, 1 P. Wms.
607 ; Murlcss u. Franklin, 1 SwanBt. Ill ; Taylor v. Taylor, 1 Atk. 386 ;
13 ; Sidmouth u. Sidmouth, 2 Bear. Christy v. Courtenay, 13 Beav. 96.
447; CoUinson v. CoUinson, 3 D. M. ' Shales t>. Shales, Freem. 252 ; see
G. 409; Dumper v. Dumper, 3 GifE. further Elliot v. Elliot, 2 Ch. Cas.
583; Williams u. Williams, 32 Beav. 231; Scawin o. Soawln, 1 Y. & C. C.
370; Tucker v. Burrow, 2 H. & M. C. 65.

515. 8 Sidmouth v. Sidmouth, 2 Beav.

8 3 Sm. & G. 403. 447 ; Scawin v. Scawin, 1 Y. & C. C.

* See Stone v. Stone, 3 Jur. (N. S.) C. 65.
708. ' 15 Sim. 56.

816 STATTJTE OP FEAtTDS. [CHAP. XTII.

that neither his son nor his wife (who survived him) were
entitled to the stock, but that it formed part of his assets.^

Sec. 477. Devise, Bequest, or Lease. — If, after a purchase
of property by a parent or by a husband in the name of a
child or wife, the purchaser devises or bequeaths it,^ or leases
it,^ the prima facie presumption of advancement will not be
rebutted. Where a testator by his will settled £1,000 re-
duced annuities on each of his granddaughters, the children
of his only son, and two years afterwards he transferred a
sum of £3,200 reduced annuities, which was all the property
he possessed, into the name of his son, and died at the age
of ninety-four, having resided the last ten years of his life
with his son, who was a man of considerable property, it was
held that the transfer to the son operated as an absolute gift
to him free from any trusts.*

When stock invested in the joint names of a husband and
wife is sold out, the proceeds, though retained by the wife,
are nevertheless the property of the husband. Thus, where
a sum of money was invested in the funds in the joint names
of a husband and wife, and she, by power of attorney from
him', sold out a portion, and with his knowledge kept it
locked up in her own special custody until his death, it was
held that the portion which remained in the funds in the
joint names of the husband and wife survived to the wife,
but that the other portion which was sold out by her and
kept in her custody, formed, on the husband's death, a part
of his general personal estate.^

Sec. 478. Child FuUy Advanced. — If a purchase is made
in the name of a child who is already fully advanced, by the
parent, there will be a resulting trust for the father ; ^ but if
the child be not at all or only in part advanced, the presump-
tion of advancement will not be turned into a trust.^

1 See also Hayes u. Kindersley, 2 * Hepworth v. Hepworth, L. E. 11
Sm. & G. 195; Bone v. Pollard, 24 Eq. 10.

Bcav. 283, which turned upon the ^ jig Gadbury, 11 W. E. 895.
special circumstances of the cases. * Lloyd v. Bead, 1 P. Wms. 608 ;

2 Crabb .;. Crabb, 1 M. & K. 511 ; Pole v. Pole, 1 Ves. Sr. 76.
Dummer v. Pitcher, 2 M. & K. 262; ' Grey v. Grey, 2 Swanst. 600;
Jeans v. Cooke, 24 Beav. 513. Elliot v. Elliot, 2 Ch. Cas. 281.

' Murless v. Franklin, 1 Sw. 13.

SEC. 480.] RESULTING TRUSTS. 817

Sec. 479. Purchase in Pursuance of Covenant. — Where
lands are purchased in a certain place in the name of a child
by a father, but it appears that the father is bound to settle
lands so purchased in a particular manner, there will not be
any advancement, but the child will be a trustee merely.^

Sec. 480. Transfer of Trusts. — By the ninth section of the
statute of frauds " all grants and assignments of any trust
or confidence shall likewise be in writing signed by the party
granting or assigning the same, or by such last will or devise,
or else shall likewise be utterly void and of none effect."

This section refers to assignments by the cestui que trust.^
Before the statute the transfer of an equitable interest might
have been made by parol. A writing is all that is now nec-
essary, but it is the practice to employ the same species of
instrument and the same form of words in the transfer of
equitable as of legal estates.^

1 Blake v. Blake, 7 Brp. P. C. 241.

2 Jerdein v. Bright, 2 J. & H. 325.
' Lewin on Trusts, 6th ed. 673.

CHAPTER XVIII.

SPECIFIC PEEFOEMAJirCB.

SECTION.

481. Part Performance as Ground of.

482. Principles on which Court Acts.

483. Position of Parties must be Altered.

484. Acquiescence.

485. Acts must be Unequivocal.

486. Part Payment of Purchase-Money.

487. Effect of Part Payment.

488. Admission to Possession.

489. Express Assent not Necessary.

490. Either Party may Enforce Agreement.

491. Expenditure of Money.

492. Expenditure under Terms of Lease not Part Performance.

493. Acquiescence in Expenditure.

494. Parol Contract by Tenant for Life under a Power, Remainder Man not

Bound.

495. Whether Change of Residence Sufficient Part Performance.

496. Acts of Part Performance must be Referable to an Agreement.

497. Trustee with Power of Leasing.

498. Wrongful Possession.

499. Contract with Wife Adopted by Husband.

500. Continuance in Possession not in general Part Performance.

501. Payment of Increased Rent.

502. Laying out of Money Part of Consideration.

503. Agreement must be Complete.

504. Terms of Contract must be Certain.

505. Contradictory Evidence, When Specific Performance Decreed.

506. Surrounding Circumstances Considered.

507. Immaterial Terms need not be Proved.

508. Family Arrangements by Parol.

509. Corporation.

510. Fraud takes Case out of Statute.

511. Partnership.

512. Statute cannot be Pleaded after Admission of Agreement by Defendant.

513. Demurrer.

514. Agreement Admitted by Defendant.

515. Executory Contract.

516. Statute Insisted upon.

517. Defendant Denying Agreement but not Claiming Benefit of Statute.

518. Different Agreement Admitted.

519. Rule of Law as to Admissibility of Parol Evidence on Behalf of a De-

fendant before Statute.

SEC. 481.J SPECIFIC PEEFOKMANCE. 819

SECTION.

620. When Parol Evidence Admissible on Behalf of Defendant Resisting
Specific Performance.

521. Grounds upon whicli Parol Evidence Admitted on Behalf of Defendant.

522. Cases where Parol Evidence Admitted.

523. Grounds upon which Parol Evidence not Admitted on Behalf of Plaintiff.

524. Whether Parol Evidence Admissible on Behalf of Plaintiff when Objec-

tion taken before Agreement Signed.

525. Parol Variation of Written Contract may be Enforced where Part

Performance.

526. Parol Evidence not Admissible on Behalf of Plamtiff unless Part

Performance.

527. Term Omitted by Mistake may be Proved by Parol by Defendant.

528. Inadvertent Omission.

529. Mistake must be Clearly Proved.

530. Parol Evidence Admissible to Prove Promised Alterations.

531. Term Omitted, Plaintiff Offering to Perform.

532. Subsequent Variation, Plaintiff Offering to Perform.

533. When Parol Evidence not Admissible to add Term.

534. Terms of Agreement Ambiguous.

535. Mistake in Law.

536. Fact that Vendor cannot make Title.

Section 481. Specific Performance on the Ground of Part
Performance. — Notwithstanding the provisions of the fourth
section of the statute of frauds, that no action shall be
brought whereby to charge any person upon any contract or
sale of lands, tenements, or hereditaments, or any interest in
or concerning them, 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; the court will in some cases decree
specific performance of a parol contract, where there have
been acts of part performance on the part of the plaintifp.
The leading case on this point is Lester v. Foxcraft,^ where

' 1 Coll. P. C. 108; S. C. nom. ; of the land so released, was held to
Foxcraft v. Lyster, 2 Vern. 456. In be an agreement relating to an inter-
Barnes u. Boston & Maine E. R. Co., est in land and the building of fences
130 Mass. 388, an oral agreement by the company, afterwards dividing
made by a railroad company to re- the land released from that used for
lease to a person one of two parcels the railroad, and the digging of a new
of land, included in its location and channel for a brook along the divid-
owned by him at the time the location ing line between the land, nor the
was filed, in consideration that he refraining by the owner from collect-
should waive damages for the taking ing compensation for the taking of

820 STATUTE OP FEATTDS. [CHAP. XVIII.

the acts of part performance consisted in the plaintiff's pull-
ing down an old house and building new houses according to
the terms of the agreement.

Sec. 482. Principles on which Court Acts. — The princi-
ples upon which the court acts were thus laid down by Loed
Redesdale, in Bond v. Hopkins : ^ " The statute of frauds
says that no action or suit shall be maintained oii an agree-
ment relating to lands which is not in writing, signed by the
party to be charged with it, and yet the court is in the daily
habit of relieving, where the party seeking relief has been
put into a situation, which makes it against conscience in
the other party to insist on the want of writing so signed as
a bar to his relief. The first case (apparently) of this kind
was Foxcraft v. Lyster.^ That case was decided on a prin-
ciple a,cted upon in courts of law, though not applicable by
the modes of proceeding in a court of law to the particular
case. It was against conscience to suffer the party who had
entered and expended his money on the faith of a parol
agreement to be treated as a trespasser, and the other party
to enjoy the advantage of the money he had laid out. At
law fraud destroys rights. If I mix my corn with another's,
he takes all ; but if I induce another to mix his corn with
mine, I cannot then insist on having the whole. The law in
that case does not give me his corn. The case of Foxcraft v.
Lyster, therefore, I conceive was decided on clear principle,
though whether the cases founded on that case have been all
so well considered I will not take upon me to saJ^ But it
appears from these cases that courts of equity have decided

the land corered by the agreement, contract, the terms, and the acts of

and the continued occupation by him part performance, are sustained by

of the land, was held not to eonsti- clear and satisfactory proof. Hop-

tute such part performance as to war- kins v. Roberts, 54 Md. 312. The

rant a decree for specific perform- court will decree specific performance

ance. In all cases an oral contract of a contract to give a mortgage upon

for the sale of land, to be specifically lands, where the contract, although

executed, must be plain, just, reason- by parol, has been executed on com-

able, bona fide, mutual, and certain in plainant's part. Dean u. Anderson,

all its parts ; and if it be wanting in 34 N. J. Eq. 496.

any one of these essentials, it cannot ^ 1 Sch. & Lef. 433.

be enforced. Nor will a court of ^ Cited 2 Vern. 456 ; and reported

equity enforce contracts 'depending in CoUes's Pari. Cas. 108 ; Agnew on

upon parol evidence and part per- Statute of Prauds, 461.
formance, unless the existence of the

SEC. 482.J SPECIFIO PEEFOEMANCE. 821

on equitable grounds, in contradiction to the positive enact-
ment of* the statute of frauds, though their proceedings are
in words included in it." ^ In the case of the Duke of Leeds
V. the Earl of Amherst,^ Shad well, V. C, said : " I take it
that the general wisdom of mankind has acquiesced in this,
that the author of a mischief is not the party who is to
complain of the result of it, but he who has done it must
submit to have the effects of it recoil upon himself. This, I
say, is a proposition wliich is supported by the Holy Scrip-
tures, by the authority of profane writers, by the Roman
civil law, by subsequent writers upon civil law, by the com-
mon law of this country, and by the decisions in our own
courts of equitj'."

And in McCormick V. Grogan,^ Loed Westbuey defined
the principles upon which the court acts in decreeing specific
performance as follows : " The Court of Equity has from a
very early period decided that even an Act of Parliament
shall not be used as an instrument of fraud ; and if in the
machinery of perpetrating a fraud an Act of Parliament
intervenes, the Court of Equity, it is true, does not set aside
the Act of Parliament, but it fastens on the individual who
gets a title under that act, and imposes on him a personal
obligation, because he applies the act as an instrument for
accomplishing a fraud. In this way the Court of Equity has
dealt with the statute of frauds." The general rule has long
been settled that a part performance by the purchaser, of an
oral contract for the sale and purchase of land, may take the
contract out of the operation of the statute of frauds, and
authorize a court of general equity powers, in the exercise of
a sound discretion, to decree specific performance of the con-
tract on the part of the vendor.* This is said to be upon

1 See also Clinan v. Cooke, 1 Sch. and the proof established a contract
& Lef . 41 ; Dillwyn v. Llewellyn, 10 materially variant from that set forth
W. E. (L. C.) 742. in either the bill or answer, it was

2 20 Beav. 239. Specific perforin- held that the court might, with the
ance of a parol contract will not be plaintiff's consent, decree perform-
granled unless it is substantially the ance of the contract as proved, or re-
contract set forth in the bill and is scind it, and put the parties in statu
clearly proved. Brown u. Brown, 47 quo.

Mich. 378. But in West Va. Oil Co, 8 l. E. 4 H. L. 97.

u. Vinal, 14 W. Va. 037, where the * 2 Story's Eq. Jur., § 259 et seq. ;

contract set up in the bill was denied 1 Sugd. Vend. (8th Am. ed.), ch. 18,

in the answer to be as there set forth, § 7; 4. Kent's Com. 451.

822

STATUTJE OF FRAUDS. [CHAP. XVIII.

the ground that one party shall not interpose the statute of
frauds to defraud the other party, it appearing that it would
be a fraud upon the latter, who has acted in good faith, rely-
ing that the former would do the same, if the "contract is not
completed.^

Sec. 483. Position of Parties must be Altered. — It is in
general of the essence of an act of part performance that the
court shall by reason of the act itself, without knowing
whether there was an agreement or not, find the parties
unequivocally in a position different from that which, accord-
ing to their legal rights, they would be in if there were no
contract.^

Sec. 484. Acquiescence. — Where ' the parties have for a
great length of time acted under the impression that a bind-

1 "Wilton V. Harwood, 23 Me. 131 ;
Potter W.Jacobs, 111 Mass. 32; Pul-
sifer V. Waterman, 73 Me.

2 Dale V. Hamilton, 5 Hare, 381,
per WiGEAM, V. C. ; see also Att.
Gen. V. Day, 1 Ves. Sr. 218 ; Taylor v.
Beach, ib. 297. As soon as the fact
is established of the final mutual
assent of the parties to certain terms,
and those terms are evidenced by any
writing signed by the party to be
charged or his agent, there exist all
the materials required to make a
legally binding contract, in a case
within the provisions of the statute of
frauds, so that specific performance of
the same may be decreed. Delivery
of possession by a vendor or lessor,
accepted and acted on by vendee or
lessee, is such an act of part perform-
ance by the former as to take the
contract out of the statute of frauds,
and justify a decree of specific per-
formance against the latter. Wharton
V. Stoutenburgh, 35 N. J. Eq. 266. A
parol contract may be specifically
enforced although the purchaser is
unable to show that he has made im-
provements for which he cannot be
compensated in damages. As where
in pursuance of a contract made in
December, 1874, A erected a house
on the lot before B, in October, 1875,
took possession. Jamison v, Dimock,

95 Penn. St. 52. In O'Niel v. Martin, 25
Kan. 494, O was in possession of 160
acres of school land, with the expec-
tation of purchasing the same. He
made, in 1871, an oral contract with
M to sell the latter -6 acres of the
tract for a valuable consideration
agreed upon. Possession was taken
by M, who made payment, and placed
lasting and valuable improvements
upon the land, 0 agreeing to execute
a warranty deed as soon as he should
obtain title. In 1872, O purchased
the whole quarter-section from the
State, paying one-tenth of the pur-
chase-money in cash, and receiving a
certificate. In 1879, 0 died; his ad-
ministrator completed the payment
and took a patent from the State for
the benefit of O's heirs. Held that
M could compel from O's "heirs a
specific performance of the agreement
made with O. Where the promisor
in an oral agreement to convey land
died three days after its execution,
leaving minor children, and the
promisee subsequently entered on
the land, and made valuable improve-
ments, held, that the performance of
such agreement could not be enforced
against the children, even though they
did not notify the promisee not to put
on the improvements. Ryan v. Wil-
son, 56 Tex. 36.

SEC. 486.] SPECIFIC PEBFOEMAJ^CE. 823

ing contract existed, the court will not allow the defence of
the statute of frauds to be set up, although the acts of part
performance relied on are such as probably would not have
been considered sufficient in themselves to take the case out
of the statute.^

Sec. 485. Acts of Part Performance must be Unequivocal,
not Introductory or Ancillary. — An act merely introductory
or ancillary to the agreement, though attended with expense,
does not amount to part performance,^ and an act which,
though in truth done in pursuance of a contract, admits of
explanation without supposing a contract, is not in general
admitted to constitute an act of part performance taking the
case out of the statute.* Thus, the giving instruction to a
solicitor to prepare a lease,* or a conveyance,^ even though
the defendant has altered the draft in his own hand, and sent
it back to be engrossed,® admeasurements by a surveyor,'^
going to view the estate,^ the delivery of an abstract of title,^
the appointment of a person to appraise stock,^" or of an
arbitrator to value the land,ii registering the conveyance,^^
are not acts of part performance to take a case out of the
statute. Nor will the preparation and signature by the de-
fendant of a deed, which has never been parted with by his
solicitor amount to an act of part performance.^^ In the case
of a purchase of different lots by different parol contracts,
part performance as to one of the lots will not take the agree-
ments as to the other lots out of the statute.^*

Sec. 486. Part Payment of Purchase-Money not take Case
out of statute. — The payment of part or even the whole of

1 Blachford D. liirkpatrick, 6 Bear. ' Pembroke t. Thorpe, 3 Swanst.
232. 441, n.

2 Whitbread v. Brockhurst, 1 Bro. s cierk v. "Wright, 1 Atk. 12.

C. C. 412. « Whitbread v. Brockhurst, 1 Bro.

» Dale V. Hamilton, 5 Hare, 381, C. C. 412; Thomas u. Blackman, 1

per WiGRAM, V. C. ; and see Guntcr v. Coll. 301.

Halsey, Amb. 586 ; Lacon .,■. Mertins, ^ Whitchurch v. Bevis, 2 Bro. C.

3 Atk. 4; ex parte Hooper, 19 Ves. C. 659.

479. 11 Cooth V. Jackson, 6 Ves. 17, 41.

* Cole V. White, cited 1 Bro. C. C. i^ Hawkins u. Holmes, 1 P. Wms.

409. 770.

6 Clerk V. Wright, 1 Atk. 12 ; Whit- i» Cooke v. Tombs, 2 Anst. 420 ;

church V. Bevis, 2 Bro. C. C. 559 ; Whaley v. Bagenal, 1 Bro. P. C. 345 ;

Eeddmg v. Wilkes, 3 Bro. C. C. 400. Phillips v. Edwards, 33 Beav. 440.

6 Hawkins v. Holmes, 1 P. Wms. " Buckmaster v. Harrop, 13 Ves.

770 ; Stokes v. Moore, 1 Cox, 219. 474.

824

STATUTE OF FEAUDS.

[chap. xvin.

the purchase-money is not such an act of part performance as
alone to take a case out of the statute?- Thus in Clinan v.
Cooke,^ the act of part performance on which the plaintiff
relied was the payment to and acceptance by the defendant
of the sum of fifty guineas, but it was held that this was not

1 "Wood V. Jones, 35 Tex. 64;
Temple v. Johnson, 71 111. 1-3 ; Glass
V. Hulbert, 102 Mass. 28; Lanz v.
McLaughlin, 14 Minn. 72; Crouk v.
Trumble, 66 111. 428 ; Ham v. Good-
rich, 33 N. Y. 32 ; Kidder v. Barr, 35
id. 235 ; Thompson 6'. Todd, Pet. (U.
S. C. C.) 380; XJnderhill v. Allen, 18
Ark. 466; Eaton v. Whittaker, 18
Conn. 222 ; Purcell v. Miner, 4 'Wall.
(U. S.) 413 ; Allen's Estate, 1 W. & S.
(Penn.) 383; Parke v. Leewright, 20
Mo. 85; Cole v. Potts, 10 N. J. Eq.
67; Hyde v. Cooper, 13 S. C. 250;
Glvens v. Calder, 2 Dessau (S.C.) Eq.
174; Smith v. Smith, 1 Rich. (S. C.)
Eq. 130; Anderson v. Chick, 1 Bail.
(S. C.) Eq. 118 ; Church &c. v. Par-
ron, 7 Rich. (S. C.) Eq. 378; Litcher
V. Crosby, 2 A. K. Mar. (Ky.) 106;
McKee v. Phillips, 9 ^yatts (Penn.)
85; Rankin v. Simpson, 19 Penn. St.
471 ; Parker v. "Wells, 6 "Whart. (Penn.)
153 ; "Wilber v. Paine, 1 Hamm. (Ohio)
252 ; Sites v. Keller, 6 id. 528 ; Hart
V. McClellan, 41 Ala. 251. Mere pay-
ment, even if it be payment in full of
the consideration, is not such a part
performance of a parol contract for
the conveyance of land as will justify
a decree of specific performance in a
case where the payment alleged con-
sisted partly of services rendered and
partly of moneys advanced. A spe-
cific performance will be decreed only
where the purchaser has done some
other act, such as taking possession
of the land under the agreement, or
has been induced to act in such man-
ner that if the contract be abandoned
he cannot be restored to his former
position, and the refusal to perform
will operate as a fraud. Where the
complaint avers that plaintiff ad-
vanced moneys and performed ser-
vices under an oral agreement with
defendants for the conveyance to him
of an interest in certain lands, and

demands judgment against them for
a specific performance, and the facts
alleged do not show him entitled to
the remedy demanded, he cannot have
in such action a judgment at law for
the amount of such moneys and the
value of such services. Horn v. Lud-
ington, 32 "Wis. 73 ; Semmes v. "Worth-
ington, 38 Md. 298 ; Lane v. Schack-
ford, 5 N. H. 130 ; Temple v. Johnson,
71 111. 13. It makes no difference that
the vendee has been compelled to make
sacrifices to obtain the money to pay
for the land, and that he made them
under an assurance from the vendor
that he would convey the land. Thus
A, the owner of certain real estate, in
order to procure means to purchase
certain* other real estate of B, would
be compelled to dispose of his own
real estate, which could only be done
at a certain sacrifice, of which he in-
formed B. B verbally agreed with
A that if the latter would so dispose
of his property, and apply the pro-
ceeds of such sale to purchasing B's
real estate, he, B, on a certain day,
for a fixed price, would sell and con-
vey his real estate to A. The latter,
thereupon, disposed of his real estate,
making such sacrifice, tendered to B
the proceeds of such sale, demanded
of him that he so convey his said real
estate to A, and, upon B's refusal to
sell and convey, brought an action
for damages for a breach of such
agreement. It was held ; 1. That B's
agreement to convey was within the
statute of frauds, and that such ac-
tion could not be maintained. 2. That
A's disposal of his property, at such
sacrifice, was not such a part perform-
ance as would take B's agreement
out of the operation of such statute.
Parker v. Heaton, 55 Ind. 1.

2 1 Sch. & Lef. 22 ; and see "Watt
V. Evans, 4 Y. & C. 679.

SEC. 486.] SPECIFIC PEKFOEMANCE. 825

sufficient to take the case out of the statute. " It has always,"
said Lord Redbsdale,i " been considered that the payment
of money is not to be deemed part performance to take a
case out of the _statute. Seagood v. Meale^ is the leading
case on that subject ; there a guinea was paid by way of earn-
est, and it was agreed clearly that that was of no conse-
quence in case of an agreement touching lands. Now if
payment of fifty guineas would take a case out of the stat-
ute, payment of one guinea would do so equally, for it is paid
in both cases as part payment, and no distinction can be
drawn, but the great reason, as I think, why part payment
does not take such agreement out of the statute is that the
statute has said, that in another case, viz., with respect to
goods, it shall operate as part performance. And the courts
have therefore considered this as excluding agreements for
lands, because it is to be inferred that when the legislature
said it should bind in the case of goods, and were silent as
to the case of lands, they meant that it should not bind in
the case of lands." So in O'Herlihy v. Hedges,^ the pay-
ment of ,£100 fine upon the renewal of a lease was held not
to be sufficient ground upon which to decree specific per-
formance. In Hughes v. Morris,* the rule was even further
extended, Knight Bruce, L. J., saying that " a parol con-
tract for the sale of land, though all the money be paid with-
out part performance (/or the payment of the money is no part
performance'), cannot be carried into effect if the person sued
chooses to avail himself of the defect." So the procuring a
release from a stranger by the payment of a valuable con-
sideration is not an act of part performance.^ But services
rendered and money expended in taking care of a person
under an agreement that such person will convey his lands
to the person rendering such services, etc., is held to be such
a part performance as will justify a decree for a specific per-
formance, because, although given in payment for the land,
they are of such a character that their value cannot be esti-
mated in money.®

1 p. 40. 271 ; see observations on this case

2 Free. Chanc. 560. in Parker u. Smith, 1 Coll. 624, per

3 1 Sch. &. Lef. 123. Knight Bruce, V. C.

* 2 D. M. G. 356. ^ Rhodes i-. Rhodes, 2 Sandf. (N.

6 O'Reilly u. Thompson, 2 Cox, T.) Ch. 279; Webster o. Gray, 37

826

STATUTE OF PKAUDS.

[chap. xvin.

Sec. 487. Effect of Part Payment on Executory Contract. —

WTiere the owner of an estate contracts with a purchaser for
the immediate sale of it, the ownership of the estate is in equity,
transferred hy that contract. Where the contract undoubt-
edly is an executory contract, in this sense, namely, that the
ownership of the estate is transferred subject to the payment
of the purchase-money, every portion of the purchase-money
paid in pursuance of that contract is a part performance and
execution of the contract, and, to the extent of the purchase-
money so paid, does in equity finally transfer to the pur-
chaser the ownership of a corresponding portion of that
estate.^

Sec. 488. Admission to Possession is Part Performance. —

Admission into possession of land in pursuance of a parol
agreement is held by the English courts and most of our own
to be a sufficient act of part performance to take a case out
of the statute.^ "Admission into possession," said Sir

Mich. 37 ; Watson v. Maban, 20 Ind.
228 ; Gupton v. Gupton, 47 Mo. 37 ;
Davison v. Davison, 13 N. Y. Eq. 246.

1 Rose V. "Watson, 10 H. L. C. 678,
per LoKD Westbukt.

2 Borrett v. Gomserra, Bunb. 94;
Earl of Aylesford's Case, 2 Str. 783 ;
Pyke V. Williams, 2 Vern. 455 ; Lacon
V. Mertins, 3 Atk. 1 ; Wills v. Strad-
ling, 3 Ves. 381 ; Bowers v. Cator, 4
Ves. 91 ; Gregory v. Mighell, 18 Ves.
328; Kine v. Balfe, 2 Ball & B. 343;
TJngley ;;. Ungley, 4 Ch. Div. 73;
Hunt II. Wimbledon &c., 4 C. P. Div.
48 ; Coles v. Pilkington, L. R. 19 Eq.
174 ; Pain v. Coombs, 1 De G. & J. 34 ;
Coles V. Pilkington, L. R. 19 Eq. 174 ;
Clinan i-. Cooke, 1 Sch. & Lef. 22, 41,
per LoKD Redebdale ; Morphett v.
Jones, 1 Sw. 181 ; Bowers v. Cator, 4
Ves. 91 ; Gregory v. Mighell, 18 Ves.
328; Shilliber v. Jarvis, 8 De G. M. &
G. 79; Butcher v. Stapely, 1 Vern.
363; Seagoodw. Meale, Prec.Ch.560;
Boardman u. Mostyn, 6 Ves. 467 ; Til-
ton V. Tilton, 9 K. H, 386 ; Pindall v.
Trevor, 30 Ark. 249; Eaton v. Whita-
ker, 18 Conn. 222 ; Murray v. Jayne, 8
Barb. (N. Y.) 612; Malins «. Brown,
4 N. Y. 403 ; Pugh v. Good, 3 W. & S.

(Penn.) 56,61; Allen's Estate, 1 W.
& S. (Penn.) 383, 386 ; Jones v. Peter-
man, 3 S. & R. (Penn.) 543; Reed „.
Reed, 12 Penn. St. 17; Johnston v.
Johnston, 6 Watts. (Penn.) 370;
Rhodes v. Frick, 6 Watts. (Penn.) 315;
Stewart v. Stewart, 3 Watts. (Penn.)
253; Miller v. Hower, 2 Rawle
(Penn.) 53; Bassler v. Niesly, 2 S. &
R. (Penn.) 352; Johnston o. Glancy,
4 Blackf. (Ind.) 94; Anderson v.
Simpson, 21 Iowa, 399 ; White v.
Watkins, 23 Mo. 423 ; Catlett v. Ba-
con, 33 Miss. 269; Danforth v. La-
ney, 28 Ala. 274 ; Reynolds v. Johns-
ton, 13 Tex. 214 ; Harris v. Crenshaw,
3 Rand. (Va.) 14; Wells v. Stratton,
1 Tenn. Ch. 328; Arrington v. Porter,
47 Ala. 714; Pindall v. Trevor, 30
Ark. 249 ; Reed v. Reed, 12 Penn. St.
117 ; Sands v. Thompson, 43 Ind. 18 ;
Wharton v. Staughtenbaugh, 35 N. J.
Eq. 266; Graham v. Thers, 47 Ga.
479. But letting a person into pos-
session under a parol gift of land is
not enough of itself. The donee must
also have made expenditures upon the
faith of the gift. Stewart v. Stewart,
3 Watts. (Penn.) 253; Shelhame v.
Ashbaugh, 83 Penn. St. 24 ; Lower v.

SEC. 488.] SPECIFIC PEEPORMANCE. 827

Thomas Plttmee, M. R., " having unequivocal reference to
contract, has always been considered an act of part perform-
ance. The acknowledged possession of a stranger in the
land of another is not explicable, except on the supposition
of an agreement, and has therefore constantly been received
as evidence of an antecedent contract, and as sufficient to
authorize an inquiry into the terms, the court regarding what
has been done as consequence of contract or tenure." '
Where, upon a verbal agreement for a mortgage, it was
agreed that the mortgagor (the plaintiff) should remain in
possession of the property, and an absolute conveyance was
made, it was held that the plaintiffs continuance in posses-
sion after the conveyance, being referable only to the verbal
agreement, amounted to part performance of that agreement,
and excluded the operation of the statute.^ But in several
of the States, merely letting the purchaser into possession
under a parol agreement is not treated as sufficient to war-
rant a specific performance,^ but something more is required,
as possession and part payment,* or the making of valuable
and permanent improvements, either with or without part
payment of the purchase-money,^ and the instances will be

WeaTcr, 84 id. 262 ; Bright v. Bright, In this case there was possession,
41 III. 97 ; Guyn v. McAuley, 32 Ark. part payment, and improvement. In
97. But see, questioning the rule that Ingles v. Patterson, 36 Wis. 373, there
possession by the purchaser is sufficient were the same elements. Hoffman r.
to warrant a decree for specific per- Fett, 39Cal. 109; Adamsj;. FuUam, 43
forraance, Galbreath v. Galbreath, 5 Vt. 592; Wiswell v. Lefft, 5 Kan. 263;
Watts. (Penn.) 146; Wood w.Farmare, Moss v. Culvert, 64 Penn. St. 89;
10 Watts. (Penn.) 194; Dougan v. Poland i;. O'Conner, 1 Neb. 50; Cag-
Blocher, 25 Penn. St. 28 ; Shepherd ger v. Lansing, 43 N. Y. 530 ; Sackett
u. Shepherd, IMd. Oh. 244; OwingsiJ. d. Spencer, 65 Penn. St. 89. In Mis-
Baldwin, 8 Gill. l(Md.) 337; Morris K. sissippi, no action can be maintained
Harris, 9 Gill. (Md.) 19 ; Glass v. Hul- to charge another with a contract for
bert, 102 Mass. 25, 32 ; Tatum v. the sale of lands, unless the promise
Brooker, 51 Mo. 148. or agreement upon which the action

1 Morphett v. Jones, 1 Swanst. 81 ; is brought, or some memorandum or

and see Dale v. Hamilton, 5 Hare, note thereof, is in writing and signed

381 ; Pain v. Coombs, 3 Sm. & GifE. by the party to be charged, or by his

449 ; 1 De G. & J. 34. agent. There is no exception con-

' Lincoln v. Wright, 4 De G. & J. tained in the statute of frauds, and

16. the courts will not create any. Hairs-

8 Glass V. Hulbert, 102 Mass. 32 ; ton v. Jaudon, 42 Miss. 380.
Dougan w. Bloucher, 25 Penn. St. 28 ; ' Potter y. Jacobs, 111 Mass. 32;

Johnson v. Dimock, 95 id. 52 ; Moore Freeman v. Freeman, 43 N. Y. 34.

c. Small, 19 id. 461. In Richmon v. Foote, 3 Lans. (N. Y.)

< Green v. Finin, 35 Conn. 178. 244, the court held that "part pay-

828 STATUTE OF FEATJDS. [CHAP. XVIII.

found to be very rare indeed, where the courts latterly, will
decree a specific performance, because of the naked circum-
stance that the vendee has been let into possession under a
parol contract, as the tendency of the courts is in the direc-
tion of requiring something more than that to take the con-
tract out of the operation of the statute,^ and the former
excuse for this doctrine, that otherwise the vendee would be
liable as a trespasser, is regarded as insufficient because he
can shield himself from such liability, under the license to
enter which, as we have seen, is a complete protection until
revoked.^

Sec. 489. Express' Assent not Necessary. — It is not neces-
sary that there should have been express assent by the ven-
dor to the taking possession, if he acquiesces in it, and there
have been acts of part performance.^ Thus, where part of
the agreement for a lease was that the plaintiff should exe-
cute certain repairs before the lease was granted, and he was
put into possession by the defendant's solicitors and executed
some repairs, it was held that although he might have been
let into possession without authority from the defendant,
therie was a concluded agreement for a lease on the part of
the defendant, and a sufficient part performance to take the
case out of the statute.*

Sec. 490. Either Party may Enforce Agreement. — An agree-
ment may be enforced, on the ground of part performance

ment of the purchase-money, ivith pos- specific performance. Northrop v.

session and other acts of the vendee," Boone, 66 111. 368 ; Tatum v. Brooke,

was sufficient. Lowry v. Bufflngton, 51 Mo. 148; Johnson v. Bowden, 37

6 W. Va. 249. In Tracy a. Tracy, Tex. 621 ; Gregg v. Hamilton, 12 Kair.

14 id. 243, possession for twenty years, 333 ; McCarger i'. Road, 47 Cal. 138

and making valuable improvements, was Welsh v. Bayard, 21 N. J. Eq. 186

held sufficient. See also Hibhert ,;. Neale v. Neale, 9 Wall. (U. S.) 1

Aylott, 62 Tex. 530. Possession and Peckham v. Barber, 8 E. I. 17 ; Fall

payment of the purchase-money was v. Hazleregg, 45 Ind. 576.
held sufficient in Hanlon ;•. Wilson, i Woodward, J., in Dougan v.

10 Neb. 138. In Ann Berta Lodge v. Blocher, 24 Penn. St. 28.
Lenerton, 42 Tex. 18, tender of pur- 2 Gjags „. Hulbert, 102 Mass. 32.
chase-money improvements by the » Qregory v. Mighell, 18 Ves. 328;

vendee, and possession, it not appear- Pain v. Coombs, 3 Sm. & Giff. 449 ;

ing that the value of the improve- 1 De G. & J. 34.
ments was beyond the value of the * Shillibeer v. Jarvis, 8 D. M. G.

rents for the time of occupancy, was 79; and see Powell v. Lovegrove, ib.

held not to be sufficient to warrant a 357.

SEC. 491.J SPECIFIC PEEFOKMANCE. 829

by admission into possession, by the vendor as well as the
vendee.^

Sec. 491. Expenditure of Money. — The laying out of money
on land and making improvements on the faith of the contract,
and with the knowledge of the owner, amounts to part perform-
ance.^ Thus, where a tenant entered into possession of a
farm, and expended moneys under an agreement that the
landlord would grant a lease for twenty-one years, and make
such improvements and repairs as he and the landlord should
jointly agree, it was held on demurrer to a bill for specific
performance, that the stipulation as to repairs was not of
the essence of the agreement, and that the impossibility of
the strict performance of that stipulation in consequence of
the death of the landlord was no reason for allowing a de-
murrer to a bUl for specific performance where the plaintiff
had so long a possession, and had expended money on the
faith of the agreement.^ Although the earlier decisions do
not harmonize with each other, yet it is now held in this
country that all parol contracts for the sale of lands are not
invalidated by the statute of frauds. Where possession has
been taken in pursuance of the contract, and there has been
such part performance that the purchaser cannot reasonably be
compensated in damages, the case is taken out of the statute
in equity, so that the contract will be specifically enforced.
Possession and payment of purchase-money only are not
sufficient, for the vendee may be compensated in damages ;
but when to possession are added permanent improvements of
considerable value which cannot be reasonably compensated in
damages, the rule is held otherwise. This constitutes such a
part performance as to take the case out of the statute.*
When the plaintiff relies on an equitable title, tender of the
money due must generally precede the action. Yet the rule
has its exceptions. It does not apply when the vendor,
before payment, has put the vendee into possession under

• Kine v. Balf e, 2 Ball & B. 343. Wheeler v. D'Esterre, 2 Dow. 359 ;

2 Floyd V. Buckland, 2 Freem. 268 ; Crook v. Corporation of Seaf ord, L.

Lester v. Foxcraft, 1 CoUes P. C. 108 ; R. 6 Ch. 551.
S. C. nom. Foxcraft u. Lyster, 2 Vern. " Norrls v. Jackson, 3 Giff. 396.
456 ; Mortimer v. Orchard, 2 Ves. J. * McGibbeny <^. Burmaster, 53

243 ; Wills o. Stradling, 3 Ves. 381 ; Penn. St. 332.
Toole V. Medlicott, 1 Ball & B. 401 ;

830 STATUTE OF PKAtJDS. [CHAP. XVIII.

the contract, and induced him to make valuable improve-
ments, and afterward, by collusion or other unfair practice,
regains the possession.^

Sec. 492. Expenditure under Terms of Lease not Part Per-
formance. — Expenditure by a tenant under the terms of his
lease is not an act of part performance. Thus where the
plaintiff was in possession, and was under an engagement
which bound him to make a fence and wall of a particular
description, for which he was to have an allowance, and
which ought to have been made during the term of the lease
which he had, and they were not completed during the term,
but the allowance was made notwithstanding, it was held
that this alone would not entitle the plaintiff to a decree.^

Sec. 493. Acquiescence in Expenditure. — Where a colliery
proprietor constructed a railway from his colliery across the
lands of several other persons, by agreement, and his solici-
tors wrote a letter to the defendant, across whose lands he
desired to carry the railway, referring to the powers of a local
act of Parliament, supposed to enable him to take lands
within a certain area for roadways, and offering on the part
of the plaintiff to pay him for the land at a fair valuation,
and the defendant did not reply to the letter, and the rail-
way was made across his land without further communicar
tion with him, and after three or four years, the parties being
unable to agree upon the price to be paid for the land, the
defendant brought ejectment ; the action was restrained
upon the plaintiff giving judgment in the ejectment and pay-
ing a sum not less than the utmost valuation of the land into
court.^

Again, where a canal was made in 1794 through land of
which A was the owner, and B lessee, "with the full consent
and approbation of, and in accordance with the wishes of A,"
and compensation was paid to the lessee but not to A ; his
representatives were in 1844, when the tenancy expired, re-

1 Harris v. Bell, 10 S. & E. (Penn.) 2 Lindsay v. Lynch, 2 Sch. & Lef.

39; Dixon v. Oliver, 5 Watts. (Penn.) 1 ; and see Frame v. Dawson, 14 Ves.

509; Gregg n. Patterson, 9 W. & S. 386.

(Penn.) 197 ; Wykoff v. Wykoff, 3 i^ ? Powell v. Thomas, 6 Hare, 300;

481 ; D'Arras v. Keyser, 26 Penn. St. and see Clavering's Case, cited 5 Ves.

249 ; Eberly v. Lehmam, 96 Penn. St. 690 ; Duke of Devon o. Eglin, 14

000. Beav. 530.

SEC. 494.] SPECIFIC PEEPOEMAKCE. 831

strained from asserting their legal rights, the court consider-
ing that they were entitled to compensation to be deter-
mined by the agricultural value of the land taken as calcu-
lated in 1844, and not in 1794.^

But where a person knowing the rights of the owners of
land is induced to build on the land without entering into a
binding contract, he will not be entitled to relief. Thus,
where the agent of a railway company made a verbal agree-
ment with the contractor for the line, that if he would build
on land of the company certain cottages more substantially
than would be required for his own purposes, and would
leave them for the use of the company, then the company
would pay him £5,000, and the cottages were built and left
on the land, it was held that the contractor could not claim
compensation for having been induced to build on the land.^

Sec. 494. Parol Contract by Tenant for Life under a Povrer,
Remainder Man not Bound. — And it appears that the parol
contract under a power of sale of a tenant for life, followed
by expenditure on the part of the purchaser, will not bind the
remainder man who has not acquiesced in the expenditure.^
" It is," said Sie W. Grant, M. R., " considered as a fraud
in a party permitting an expenditure on the faith of his parol
agreement to attempt to take advantage of its not being in
writing. But of what fraud is a remainder man guilty who
has entered into no agreement, written or parol, and has
done no act on the faith of which the other party could have
relied? The only way in which he could be affected with
fraud would be -by showing that an expenditure had been
permitted by him, with a knowledge that the party had only
a parol agreement from the tenant for life. Without that
knowledge there is nothing but the mere circumstance of
expenditure. For the prima facie presumption is that he
who is making it has a valid lease under the power, or at
least a binding agreement for a lease. That the remainder
man in this case, or those acting on his behalf, had any such
knowledge is neither alleged nor proved. The reason, there-

» Duke of Beaufort u. Patrick, 17 ^ Trotman v. Flesher, 3 Giff. 1 ;

Beav. 60. Morgan u. Milman, 3 D. M. G. 33 ;

2 Crarapton v. Varna Railway Co., Lowry v. Lord Duiferin, 1 Ir. Eq.

L. R. 7 Ch. 562. Rep. 281.

832 STATUTE OF FEATTDS. [CHAP. XVOI.

fore, fails, on which the case of a parol agreement in part
performed is taken out of the statute of frauds." ^

Sec. 495. whether Change of Residence SufBcient Part Per-
formance. — In Millard v. Harvey ^ the plaintiff removed his
place of business to a house belonging to the defendant, his
father-in-law, upon the faith, as he alleged, of a parol promise
by the defendant that he should occupy the house rent free
during his life. During the period of his occupation he
expended money in repairs. Upon a bill to restrain an
action of ejectment, it was held that the change of the plain-
' tiff's place of business did not constitute a sufficient consider-
ation to support the parol agreement, and that he was not
entitled to any lien in respect of the money spent in repairs.
In Coles V. Pilkington ^ it was decided that the statute could
not be pleaded to a verbal agreement to allow the occupa-
tion of a leasehold house for life on payment merely of
ground-rent, rates, and taxes, where there had been a part
performance by possession under the agreement, and the
agreement had affected the mode of living of the occupying
party. It does not appear, however, from the report that
Millard v. Harvey was cited in this case.

Sec. 496. Acts of Part Performance must be Referable to an
Agreement. — In order that a case may he taken out of the
statute hy acts of part performance, the acts must unequivocally
refer to a contract the non-execution of which would be a fraud.*
"In order," said Sm T. Plttmbe, "to amount to part per-
formance, an act must be unequivocally referable to the
agreement, and the ground on which courts of equity have

1 Blore V. Sutton, 3 Mer. 246. 15 ; Wilmer v. Farres, 40 Iowa, 309 ;

2 10 Jur. (N. S.) 1167. German y. Macliin, 6 Paige, Ch. (N.
8 L. R. 19 Eq. 174. Y.) 289 ; Ham v. Goodrich, 33 N. H.
* Richmond v. Foote, 3 Lans. (N. 32 ; Hollis v. Edwards, 1 Vern. 159 ;

Y.) 244; Wood v. Thomby, 58 III. Cox v. Cox, 27 Penn. St. 375; Poor-

464 ; Robertson v. Robertson, 9 Watts man v. Kilgore, 27 id. 365 ; Hollis v.

(Penn.) 32; Stoddard u. Tuck, 4 Md. Edwards, 1 Vern. 159; Hawkins v.

Ch. 475; Moore u. Higbee, 45 Ind. Holmes, 1 P. Wms. 770; Walker v.

487 ; Hood v. Bowman, Freem. Ch. Walker, 2 Atk. 100 ; Att. Gen. v. Day,

(111.) 290 ; Welsh v. Bayard, 21 N. J. 1 Ves. 221 ; Whitbread v. Broekhurst,

Eq. 186 ; Smith v. Smith, 1 Rich. 1 Bro. C. C. 417 ; Wills v. Stradling,

(S. C.) 130; Edwards v. Fry, 9 Kan. 3 Ves. 378; Buckmaster v. Harrop,

417; Moore t>. Scriven, 33 Mich. 500; 7 Ves. 346; Frame v. Dawson, 14

Jacobs V. E. R. Co., 8 Cush. (Mass.) Ves. 386,
223; Atkin v. Young, 12 Penn. St.

SEC. 496.] SPECIFIC PERFORMANCE. 833

allowed such acts to exclude the application of the statute is
fraud; a party who has permitted another to perform acts
on the faith of an agreement shall not insist that the agree-
ment is bad, and that he is entitled to treat those acts as if
it had never existed. That is the principle, but the acts
must be referable to the contract." ^ And in Clinan v.
Cooke ^ Lord Redesdale laid doAvn the principles upon
which the court acts,, as follows : " I take it that nothing is
considered as a part performance which does not put the
party into a situation that is a fraud upon him, unless the
agreement is performed ; for instance, if upon a parol agree-
ment a man is admitted into possession, he is made a tres-
passer, and is liable to answer as a trespasser if there be no
agreement. This is put strongly in the case of Foxcraft v.
Lyster ; ^ there the party was let into possession on a parol
agreement, and it was said that he ought not to be liable as
a wrong-doer, and to account for the rents and profits, and
why? because he entered into pursuance of an agreement.
Then for the purpose of defending himself against a charge
which might otherwise be made against him such evidence
was admissible, and if it was admissible for such purpose,
there is no reason why it should not be admissible through-
out. That, I apprehend, is the ground on which courts of
equity have proceeded in permitting part performance of an
■agreement to be a ground for avoiding the statute, and I
take it, therefore, that nothing is to be considered as part
performance which is not of that nature. Payment of money
is not part performance, for it may be repaid, and then the
parties will be just as they were before, especially if repaid
with interest. It does not put a man who has parted with
his money into the situation of a man against whom an
action may be brought, for in the case of Foxcraft v. Lyster,
which first led the way, if the partj' could not have produced
in evidence the parol agreement, he might have been liable
in damages to an immense extent." In Ramsden v. Dj'^son *

1 Morphett v. Jones, 1 Swanst. 181 ; Richmond u. Foote, 3 Lans. (N. Y. )

and see Farrall v. Davenport, 3 Giff. 244.
363; Price v. Salusbury, 32 Beav. ^ i Seh. & Lef. 41.

459; affd. ib. 461. If there is but s 2 Vern. 456 ; Colles, P. C. 108 ;
one contract to which it can relate, it * L. R. 1 H. L. 170.
will be presumed that it refers to that.

834 STATUTE OF FBAUDS. [CHAP. XVIII.

Lord Wensleydalb stated the principle as follows : " If a
man under a verbal agreement with a landlord for a certain
interest in land, or what amounts to the same thing, under
an expectation created or encouraged by the landlord that
he shall have a certain interest, takes possession of such land
with the consent of the landlord, and upon the faith of such
promise or expectation, with the knowledge of the landlord
and without objection by him, lays out money upon the land,
a court of equity will compel the landlord to give effect to
such promise or expectation." ^ And where the possession is
fairly referable to an express agreement to give a fair consid-
eration, the exact amount of which has not been settled, the
court will, in favor of possession, expenditure, and enjoyment,
referable to an agreement or to an offer honestly accepted,
endeavor by every means within the legitimate bounds of its
jurisdiction to ascertain the amount of rent and considera-
tion. But this can only be where there is sufficient evidence
of essential terms in the agreement to enable the court to
reach the amount.^ But if a tenant builds on his landlord's
land, he does not, in the absence of special circumstances,
acquire any right to prevent the landlord from taking pos-
session of the laud and buildings when the tenancy has deter-
mined.^

Sec. 497. Trustee with Power of Leasing. — In Phillips V.
Edwards,* it was said that the doctrine of part performance
of a parol agreement is not to be extended by the court, and
is inapplicable to a case where a trustee has a power to lease
at the request in writing of a married woman, which has not
been made. In this case, however, the acts on which the
plaintiffs based their case were held not to be acts of part
performance, and the point was not expressly decided.

Sec. 498. 'Wrongful Possession. — Specific performance will
not be decreed where the possession of the land has been ob-
tained wrongfully.^ Nor where the plaintiff, after filing his
bill, but before the hearing, has obtained by an Act of Par-

1 See also Baukart v. Tennant, L. ' Eamsden v. Dyson, L. E. 1 H. L.
R. 10 Eq. 146. 129.

2 Meynell v. Surtees, 3 Sm. & GifE. * 33 Beav. 440.

115, per Stuart, V. C. ; and see Greg- ' Cole v. White, cited 1 Bro. C. C.
ory V. Mighell, 18 Ves. 333. 409.

SEC. 500.J SPECIFIC PERFORMANCE. 835

liament the means of securing and keeping his possession
without the aid of the court. " The jurisdiction in cases of
specific performance is discretionary, and it is sought in this
case only as ancillary to quieting the possession. If that
purpose has been accomplished, and if by acts of a plaintiff
subsequent to the institution of such a suit, he has obtained
the means of quieting his possession without further assist-
ance from this court, this must materially affect the right to
a decree for specific performance where it depends on the
principle of protecting the possession." ^

Sec. 499. Contract with "Wife Adopted by Husband. —

Where a wife, unknown to her husband, took £150 out of
her private savings to the defendant, and asked him to sell a
field for the purpose of pasturing her husband's horse, and the
defendant said he would not sell it, but received aud retained
the money, and shortly afterwards let the plaintiff into pos-
session, telling him he might have it to put his horse in, and
the plaintiff remained in possession, and the defendant re-
tained the money for ten years, during which time the plain-
tiff paid no rent, and the defendant no interest, and at the
end of that time the defendant attempted to eject the plain-
tiff, it was held that there had been a contract with the wife,
adopted by the husband, and such part performance as to
justify a decree for specific performance.^

Sec. 500. Continuance in Possession not in General Part
Performance. — Between landlord and tenant, when the tenant is in
possession at the date of the agreement, contimmnce in possession is
not an act of part performance.^ In Wills v. Stradling,* Lord

1 Meynell v. Surteea, 3 Sm. & G v. Blunt, 20 id. 142 ; "Workman v.
101, 116, per Stuart, "V. C. ; and see Guthrie, 29 Penn. St. 595 ; Armstrong
Somersets. Coal Co. v: Harcourt, 2 k. Katterhorn, 11 Ohio, 265; Greenlee
De G. & J. 696. o. Greenlee, 22 Penn. St. 225 ; John-

2 Millard v. Harvey, 34 Bear. 237. ston „. Glaney, 4 Blackf. (Ind.) 94
' Mophett V. Jones, 1 Swanst. 181. Anthony v. Leftwych, 3 Rand. (Va.

The possession must be attended by 238; Cole v. Potts, 10 N. J. Eq. 67
some act on the part of the tenant "Wills v. Stradling, 3 Ves. 381 ; Kine v.
which is of a decisive character and Balfe, 2 B. & B. 343 ; Savage v. Car-
connected with the contract. Dan- roll, 1 id. 265 ; "Wilde v. Fox, 1 Rand
forth V. Laney, 28 Ala. 474; "West t). ("Va.) 265; "Williams t>. Evans, L. K.
Flanagan, 4 Md. 36; Rosenthal v. 19 Eq. 547; Mahon v. Baker, 26
Freeburger, 26 Md. 76; Anderson v. Penn. St. 519; Howe v. Hall, 4 Jr.
Simpson, 21 Iowa, 399 ; Mahana Eq. 242 ; Mundy v. JollifEe, 5 My. &

4 8 Ves. 381.

836

STATUTE OF PKAUDS. [CHAP. XVIII.

LouGHBOBOTTGH said : " As to . . . the possession in the
case of a tenant, who of course continues in possession,
unless he has notice to quit, the mere fact of his continuance
in possession (which is all the plea can admit, quo animo he
continued in possession is not a subject of admission) would
not weigh. The delivery of possession by a person having
possession to the person claiming under the agreement is a
strong and marked circumstance, but the mere holding over
by the tenant, which he will do of course, if he has no notice
to quit, would not of itself take the case out of the statute,
or even call for an answer." ^ But if the tenant in posses-
sion upon the faith of an agreement upon the landlord's part
to convey to him, when the lease has expired, goes on and
makes permanent improvements, this is such part performance
as entitles him to a decree for a specific performance of the
contract.^ So where a married woman, being entitled under

C. 167; Spear v. Orendorf, 26 Md.
37; Shepheard r. Walker, L. E. 20
Eq. 659 ; Williams v. Landman, 8 W.
& S. (Penn.) 55; Brown w. Jones, 46
Barb. (N. Y.) 400; Morrison v. Pery,
21 Ark. 110; Watson a. Mahan, 20
Ind. 223; Howe d. Rogers, 32 Tex.
218; Edwards o. Fry, 9 Kan. 417;
Blunt V. Tomlin,27 111. 93; Holmes w.
Holmes, 44 id. 168 ; Lincoln v. Wright,
4 De G. & J. 16.

1 See also Smith v. Turner, Prec.
Ch. 561 ; Savage v. Carroll, 1 Ball &
B. 282 ; Brennan v. Bolton, 2 Dru. &
War. 349.

2 Hibhert v. Aylott, 52 Tex. 530.
See also Brennan v. ^olton, 2 Dru. &
W. 349 ; Frame i'. Dawson, 14 Ves.
385; Mundy v. JoUiffe, 5 My. & Cr.
167 ; Mahon v. Baker, 26 Penn. St. 519.
In Sutherland v. Briggs, 1 Hare, 26,
the plaintiff was the lessee of a house
and other premises for thirty-one
years, at rent of .£60, and was bound
to make certain improvements. He
also held an adjoining meadow be-
longing to another owner, from year
to year, for .£9 rent. The landlord of
the house, etc., bought the meadow,
and verbally agreed to grant a lease
of the same to the plaintiif. In pur-
suance of the stipulations- of this

parol bargain, the improvements were
made more extensive than was before
contemplated ; part of the house was
made to project over the meadow,
and part of the meadow was attached
to the original premises of which
plaintiff held the lease. One-half of
the expense of these alterations was
paid by the plaintiff, which far ex-
exceeded the amount he had cove-
nanted to expend for improvements
by his lease, and he also signed a
written promise to pay £80 a year
rent for the whole property. In a
suit for a specific performance of the
contract to lease the meadow, Sik
James Wigkam, V. C, held that the
extension of the house into the meadow
by the plaintiff, in connection with the
landlord, was evidence of a sufficient
consideration for an agreement to
lease the meadow ; that the building
the house upon the meadow was evi-
dence of a right which extended to
the whole of that field, and which
could not be restricted so as to reach
only that part of the meadow upon
which the building actually stood;
and that the extension of the house
into the meadow and the increase and
consolidation of the rents into one
annual sum was evidence that the

SEC. 500.]

SPECIFIC PERFORMANCE.

837

her marriage settlement to an interest in the settled lands
for her separate use for life, with a power of leasing for any
term not exceeding twenty-one years in possession, leased
part of the lands for fourteen years to D, and about a year
and a half before the expiration of that lease, signed and
delivered to D a written undertaking by which she engaged,
upon the expiration of the existing lease, to grant to D a
new lease upon the same terms and for the same period as
before, and after the expiration of the lease D continued in
possession without taking a new lease, but doing acts on the
premises which were solely referable to the written under-
taking ; it was held that the transaction between the parties
amounted to an agreement which was in part performed by
the continuance in possession of the tenant after the expira-
tion of the lease. ^ In Shepheard v. Walker,^ at the expira-
tion, in July, 1857, of a lease under which, by assignment, he
was in possession of property, B signed an agreement to
accept from A a new lease for thirty-one years at the same

meadow was to be had for the same
time as the premises of which the
plaintiff had the lease. In other
words, the verbal agreement coftcern-
ing the meadow had been part per-
formed by the plaintiff, and should
be specifically enforced. On the gen-
eral subject of the part performance,
the Vice Chancellor said : " The first
point suggested, rather than pressed,
was that the plaintiff, being in posses-
sion of the meadow as tenant from
year to year, the expenditure upon
the property did not unequivocally
show that it had proceeded upon some
antecedent contract with the landlord.
Undoubtedly it is, in general, neces-
sary that an act of part performance
which is to take a case out of the
statute of frauds, should unequivo-
cally demonstrate the existence of
some contract to which it must be
referred. Morphett v. Jones, 1 Sw.
172. But if the act of extending the
house, in which the tenant had an
interest for a term of years, into the
meadow, with the landlord's consent,
be not evidence of a contract between
them, I know not what act on the
part of a tenant in possession of prop-

erty could possibly be so considered.
Circumstances much less stringent
have been deemed sufficient ; and if
the case of Mundy i;. JoUifte, ante,
may be considered as correctly illus-
trating the rule of this court, as to
the acts of part performance which
will take a case out of the statute, the
alterations of the garden fence and
making the plantation in the meadow
would be sufficient. In that case, the
expenditure by the tenant was in drain-
ing the land, and the court decreed
Mr. JoUiffe to grant him a lease upon
the promise of which it was said
the expense of draining had been in-
curred."

1 Dowell V. Dew, 1 Y. & C. C. C.
345; and see Pain u. Coombs, 1 De
G. & J. 34, 46 ; Nunn v. Fabian, L. K.
1 Ch. 35. It is, of course, open for
the vendor to show that the acts of
part performance are properly refera-
ble to the pre-existing tenancy. Dart.
V. & P. 5th ed. 1025.

2 L. R. 20 Eq. 659; Nunn v. Fa-
bian, L. R. 1 Ch. 35 ; Spear v. Oren-
dorf, 26 Md. 37; Wilde v. Fox, 1
Rand. (Va.) 165; 'Williams u. Land-
man, 8 W. & S. (Penn.) 55.

838 STATUTE OF FKAXJDS. [CHAP. XVIII.

rent as was reserved by the old lease, and payment of ,£600
on the day fixed for completion (1st August, 1857), with
interest if the lease should not be completed on the day
fixed. A draft lease was sent to B for his approval, but was
not returned, and no steps were taken by A to press for com-
pletion. B remained in possession and paid rent, but no
payment of the X600 or interest was ever made or demanded.
In 1871 A died. On a bill by her legal personal representa-
tives it was held that, as B's possession and payment of rent
must be referred to the new agreement, and not to a holding
over after the expiration of the former lease, the lapse of
time did not operate as a bar to specific performance, which
was accordingly decreed, with interest on the £600 from the
1st of August, 1857.

Sec. 501. Payment of Increased Rent. — Payment of in-
creased rent, with reference to the contract, is an act of part
performance. In Wills v. Stradling,i Lord Loxtghboeough
said : " Payment of additional rent, per se, is an equivocal
circumstance, it is true. It may be that he shall hold over,
from year to year, the lease being expired. There may be
other inducements. But how stands the averment upon this
plea? It is that the landlord accepted the additional rent
upon the foot of the agreement. Then the acceptance upon
the ground of the agreement, which is the averment upon
this plea, is not equivocal at all. It is incumbent upon the
defendant to say whether it was merely accepted upon a
holding from year to year, or any other ground. How would
it stand at law ? Suppose this averment was proved by parol
evidence, it would be a good lease for three years, and would
defend the tenant against an ejectment brought within the
three first years. Charlewood v. Duke of Bedford,^ which
finally turned upon the want of authority in the steward, is
an authority upon which, under the circumstances alleged in
this bill, the benefit of the plea ought to be saved to the
hearing." ^ Where a landlord, who had verbally agreed with
his tenant to grant him a lease for twenty-one years at au
increased rent, with the option of purchasing the freehold,
died before the execution of the lease, and before his death

1 3 Ves. 382. s And see Lord Desart v. Goddard,

2 1 Atk. 497. 1 Wallis Rep. by Lyne, 847.

SEC. 502.]

SPECIFIC PERFORMANCE.

839

the tenant had paid one quarter's rent at the Increased rate,
it was held that this constituted a sufficient part perform-
ance of the agreement to take the case out of tlie statute.^
And wliere the tenant had contracted to sublet, and the
sublessee had expended money in alterations and repairs,
with the knowledge and approval of the landlord, it was
held that the outlay by the sublessee was as much a part
performance of the agreement as if made by the tenant.^

Sec. 502. Laying out of Money Part of Consideration. —

If it tvas part of the contract that money should be laid out,
and it is one of the considerations for granting the lease (the
laying out of which must then be with the privity of the
landlord), it is very strong to take it out of the statute.^

1 Nunn V. Fabian, L. R. 1 Ch. 35 ;
and see Clarke v. Reilly, 2 I. R. 0. L.
422 ; Howe v. Hall, 4 I. R. Eq. 242 ;
Archbold v. Lord Howth, 1 I. R. C. L.
608.

2 Williams v. Evans, L. R. 19 Eq.
547.

8 AA^ills V. Stradling, 3 Ves. 382,
per Lord Loughborough. The mak-
ing of valuable improvements upon
land is regarded as affording the
strongest ground for a specific per-
formance, and it would require pecu-
liar circumstances to dissuade a court
of equity from decreeing a specific
performance under that state of facts.
Savage v. Foster, 5 Vin. Abr. 524, pi.
43, when an intended lessee entered
and built ; Sutherland v. Briggs, 1 Ha.
26 ; Stockley v. Stockley, 1 V. & B.
23 ; Toole v. Medlieott, 1 Ball & B.
393; Mundy v. .JoUiffe, 5 My. & Co.
167 ; Surcome v. Penniger, 3 De G.
M. & G. 571 ; Floyd !■. Buckland, 2
Freem. 208; 2 Eq. Gas. Abr. 44;
Mortimer u. Orchard, 2 Ves. 243;
Wheeler v. D'Esterre, 2 Dow. 359;
Norris v. Jackson, 10 W. R. 228;
Crook V. Corporation of Seaford, L.
R. 6 Ch. 551 ; Williams v. Evans, L.
R. 19 Eq. 547; Coles v. Pilkiugton,
L. R. 19 Eq. 174; Wilson o. West
Harthlepool Ry. Co., 2 De G. J. & S.
475; AVilton v. Harwood, 23 Me. 133,
1.34 ; Newton v. Swazey, 8 N. H. 9, 14 ;
Miller .. Tobie, 41 N. H. 84; Wet-

more V. White, 2 Caine Cas. (N. Y.)
87, 109 ; Parkhurst v. Van Cortlandt,
14 Johns. (N. Y.) 15 ; Adams v. Rock-
well, 16 Wend. (N. Y.) 285; Harder
V. Harder, 2 Sandf. Ch. (N. Y.) 17;
Casler v. Thompson, 4 N. J. Eq. 59 ;
Martin v. McCord, 5 Watts, 493;
Syler v. Eckhart, 1 Bin. (Penn.) 378;
Simmons v. Hill, 4 H. & McH. (Md.)
252; Harrison v. Harrison, 1 Md. Ch.
331; Shepherd v. Bevin, 9 Gill. (Mil.)
32; Rowton v. Rowton, 1 H. & M.
(Va.) 92; Wilkinson o. Wilkinson, 1
Dessau. Ch. (S. C.) 201; Mims v.
Lockett, 33 Ga. 9 ; Byrd v. Odem, 9
Ala. 756, 764; Cummings u. Gill, 6
Ala. 562; Brock v. Cook, 3 Port.
(Ala.) 464; Finucane v. Kearney, 1
Freem. Ch. (111.) 05 ; Farley v. Stokes,
1 Sel. Eq. Cas. (Penn.) 422 ; Blakeney
V. Ferguson, 3 Eng. (Ark.) 272;
Ottenhouse v. Burleson, 11 Tex. 87;
Dugan V. Colville, 8 Tex. 126; John-
son V. McGruder, 15 Mo. 365; Des-
pain V. Carter, 21 Mo. 331 ; Cummins
V. Nutt, Wright (Ohio) 713; More-
land V. Le Masters, 4 Blackf. (Ind.)
383, 385 ; Underbill v. Williams, 7 id.
125 ; School District No. 3 v. McLoon,
4 Wis. 79 ; Morin i'. Martz, 13 Minn.
191 ; Johnson i;. Glancy, 4 Blackf.
(Ind.) 94; Tibbs t-. Barker, 1 Blackf.
58 ; Thornton y. Henry, 2 Scam. 218 ;
Boraier v. Caldwell, Harr. Ch. (Del.) 67.
In Crook v. Corporation of Seaford,
L. R. 6 Ch. 551 ; 10 Eq. 678, a muni-

840 STATUTE OF FRAUDS. [CHAP. XVIII.

Where the plaintiff, in pursuance of a parol agreement for a
lease, drained the lands on a farm of which he was tenant
from year to year, laid a piece of arable land into pasture,
and repaired the farm buildings, it was held that he was
entitled to a decree for specific performance.^ " Courts of
equity," said Lord Cottenham, " exercise their jurisdiction
in decreeing specific performance of verbal agreements where
there has been part performance, for the. purpose of prevent-
ing the great injustice which would arise from permitting a
party to escape from the engagements he has entered into,
upon the ground of the statute of frauds, after the other
party to the contract has, upon the faith of such engagement,
expended his money, or otherwise acted in execution of the
agreement. Under such circumstances, the court will
struggle to prevent such injustice from being effected ; and
with that object it has, at the hearing, when the plaintiff has
failed to establish the precise terms of the agreement, en-
deavored to collect, if it can, what the terms of it really
were." ^

In Sutherland v. Briggs,^ the plaintiff was the lessee of a
house and other premises for a term of thirty-one years at a
rent of £60, and was under a covenant to make certain im-
provements on the property. He was also tenant, from year
to year, of an adjoining meadow belonging to a different

cipal corporation passed a resolution expended money in repairs and alter-
in 1860, to lease to the plaintifE the ations, with the knowledge and ap-
flat part of the sea-beach opposite to proral of the lessor. Held, as much
his land for 300 years, at a nominal a part performance as if made by A,
rent. He took possession of the who was entitled to a specific per-
beach between lines drawn in pro- formance. In Coles v. Pilkington, L.
longation of the sides of his lot, R. 19 Eq. 174, a verbal agreement
and built a wall and terrace along was made to allow plaintiff to occupy
such part. In 1864, the corpo- a leasehold house for her life, on pay-
ration gave him notice to quit, and ment merely of the ground rent,
in 1869 brought ejectment. He then rates, and taxes. She took posses-
sued for a specific performance. Held, sion, and on account of the agree-
a good part performance, and the ment, changed her whole mode of
corporation bound, although their life; this was held a sufficient part
agreement was not under seal, and performance.

therefore not binding at law, and they i Mundy v. JoUiffe, 5 My. & Cr.

were ordered to execute a lease. In 167, reversing S. C. 9 Sim. 413.
Williams v. Evans, L. R. 19 Eq. 647, 2 ggg also Dale v. Hamilton, 5

A, a tenant in possession, made a Hare, 381 ; Gregory v. Wilson, 9

verbal contract for a lease of thirty Hare, 690 ; Ramsden v. Dyson, L. R.

years with defendant. A had con- 1 H. L. 170.
tracte'd to sublet to B, and B had » 1 Hare, 26.

SEC. 502.J SPECIFIC PERFORMANCE. 841

proprietor, at a rent of £9. The lessor of the house became
the purchaser of the meadow, and by arrangement between
him and the plaintiff, the improvements were extended, and
part of the house was made to project over the field, and part
of the field was attached to the demised premises, the plain-
tiff paying about half the expense of the alterations, which
far exceeded the sum he had originally covenanted to lay
out, and also signing a memorandum, which the lessor drew
up, whereby he agreed to pay an entire rent of ^80 a year
for the consolidated property. It was held that the extension
of the house into the meadow by the plaintiff, with the con-
currence of his landlord, was evidence of, and was sufficient
consideration for, a contract to demise the meadow. That
the act of building part of the house upon the meadow, if it
was evidence of any right, was evidence of a right which
affected the entire tenement, and that it could not be re-
stricted so as to affect only the part of the meadow actually
built upon. That the extension of the house, part of the
demised premises, into the meadow, and the increase and
consolidation of the rents, was evidence that the meadow
was to be held for the same term as the demised premises,
and that the doctrine with regard to the mutuality of con-
tracts had no application to such a case. " The first point,"
said WiGKAM, V. C, "suggested rather than pressed, was
that the plaintiff, being in possession of Lock's Meadow, as
tenant from year to year, the expenditure upon the property
did not unequivocally show that it had proceeded upon some
antecedent contract with the landlord. UndOubtedl)'- it is,
in general, necessary that an act of part performance, which
is to take a case out of the statute of frauds, should unequivo-
cally demonstrate the existence of some contract to which it
must be referred.^ But if the act of extending the house in
which the tenant had an interest for a term of years, into the
meadow, with the landlord's consent, be not evidence of a
contract between them, I know not what act on the part of
a tenant in possession of property cbuld possibly be so con-
sidered. Circumstances much less stringent have been
deemed sufficient.^ And if the case of Munday v. Jolliffe,^ in
which Lord Cottenham differed from the Vice Chancellor

1 Morphett v. Jones, 1 Swans. 172. « Sugden, V. & P. » 5 My. & Or. 167.

842 STATUTE OF FRAUDS. [CHAP. XVIIl.

of England, may be considered as correctly illustrating the
rule of this court as to the acts of part performance which
will take a case out of the statute, the alterations of the
garden fence, and making the plantation in the meadow,
would be sufficient. In that case the expenditure by the
tenant was in draining the land, and the court decreed Mr.
JoUiffe to grant him a lease, upon the promise of which it was
said the expense of draining had been incurred. It was next
said that the justice of the case would be satisfied by giving
to the plaintiff so much of the meadow as the house stands
upon, which the defendant offered to do. To the suggestion
that justice would be satisfied by doing this, I cannot acceed ;
for some additional portion of the meadow would be essential
to the enjoyment of the house. The rules of this court will
not, however, permit me so to consider the case. If the acts
done by the plaintiff are to be considered as acts of part
performance, taking the case out of the operation of the
statute, the rules of the court entitle him to prove the entire
agi*eement which the acts relied upon were intended partly
to perform. The act of building part of the house upon the
meadow was an act affecting the whole tenement — namely,
Lock's Meadow — and not that part of it only upon which
the house stands. The case of Munday v. JoUiffe will apply
also to this part of the present case." ^

In Frame v. Dawson ^ it was said that the money expended
might be returned, or that it might be got back from the
landlord by an action at law. But there the act done was
not distinctly referable to any agreement. It might and
would have been done without any agreement, — it was a
matter of duty independently of any agreement.^

In Parker v. Smith,* the landlord of a coal set, having four
tenants, partners, holding under a lease, of which there were
several years to come, and which reserved a rent that cir-
cumstances showed to be beyond the value, entered into an
agreement with the four lessees that two of the partners
should retire, so that the benefit of the lease and business of
the colliery should remain to the other two, that they should

1 See also Howe v. Hall, 4 1. R. Eq. Knight Bruce, V. C. ; and see "Wil-
242. liams v. Evans, L. E. 19 Eq. 557.

2 14 Ves. 386. « 1 Coll. 623.
8 Parker v. Smith, 1 Coll. 624, per

SBC. 504.]

SPECIFIC PERFOUMANCE.

843

release the outgoing partners from all liability, and that the
old lease should be surrendered, and a new lease granted at
a reduced rent. It was held that specific performance of
this agreement could be enforced. " It is part, of the entire
agreement," said Knight Beitce, V. C, " that the dissolu-
tion and release shall take place. They do take place. It
is impossible to treat these acts otherwise than as acts of
part performance, taking the case out of the statute of
frauds."

Sec. 503. Agreement must be Complete. — Part perform-
ance, in order to take a case out of the statute of frauds,
always supposes a completed agreement. There can be no
part performance where there is no completed agreement in
existence. It must be obligatory, and what is done must be
under the terms of the agreement, and by force of the agree-
ment.^

Sec. 504. Terms of Contract must be Certain. — The terms
of contract must be certain;'^ if there is uncertainty, it can-

1 Johnson v. Johnson, 16 Minn.
512 ; Stanton v. Miller, 68 N. Y. 192 ;
Graham v. Call, 5 Munf. (Va.) 396;
Northfleet v. Southall, 3 Murph. (N.
C.) 189; Baker u. Glass, 6 Munf.
(Va.) 212; Dike v. Green, 4 R. I.
285 ; Frith v. Midland Railway, L. R.
20 Eq. 100 ; Wilks v. Davis, 3 Mer.
507 ; Darnley v. London &c. Railway
Co., L. R. 2 H. L. 4.3; Collins v. Col-
lins, 26 Beav. 306; Richardson o.
Smith, L. R. 5 Ch. 648; Vickers v.
Tickers, L. R. 4 Eq. 529; Darhy v.
Whittaker, 4 Drew, 134 ; Morgan v.
Milman, 3 De G. M. & G. 24 ; Milnes
V. Gerry, 14 Ves. 400; Clark v. Clark,
49 Gal. 586; McGlynn v. Maynz, 104
Mass. 263 ; Grace v. Dennison, 114 id.
16; Riley v. Famsworth, 116 id. 223 ;
Nichols V. Williams, 22 N. J. Eq. 63 ;
Potts V. Whitehead, 20 id. 55 ; Tiernan
V. Gibney, 24 Wis. 190 ; Brown v.
Bellows, 4 Pick. (Mass.) 179; Peters
V. Newkirk, 6 Cow. 103, and McMahon
V. N. Y. & Erie R. R. Co., 20 N. Y.
463; Elmendorf v. Harris, 5 Wend.
(N. Y.) 521. The New York rule is
not adopted in Illinois. McAuley v.

Carter, 22 111. 53 ; Korf v. Lull, 70 id.
420. See also Leeds v. Burrows, 12
East, 1 ; Lee v. Hcmmingway, 3 Nov.
& M. 860; Collins v. Collins, 26 Beav.
306; Garred v. Macey, 10 Mo. 161;
Currey v. Lackey, 35 id. 389 ; Garr v.
Gomez, 9 Wend. (N. Y.) 049; Mason
V. Bridge, 14 Me. 468; Oakes v.
Moore, 24 id. 214; Rochester v.
Whitehouse, 15 N. H. 468; Norton v.
Gale, 95 111. ; Lady Thynne ;;. Earl of
Glengall, 2 H. L. C. 158 ; Parker v.
Smith, 1 Coll. 623; in re Thomas
Ryan, 3 I. R. Eq. 238.

^ As a condition precedent to the
exercise of such jurisdiction, the con-
tract must be complete and certain,
and the terms of it so precise as that
neither party could reasonably misunder-
stand it. If it is vague, indefinite, or
uncertain, or the evidence to establish
it is Insufficient, this remedy will be
withheld. Lockerson v. Stilwell, 13
N. J. Eq. 357 ; Bowman v. Stilwell, 78
111. 48 ; Colson v. Thompson, 2 Wheat.
(U. S.) 336; Minturn v. Bayliss, 33
Cal. 129 ; Odell v. Morin, 5 Oreg. 96 ;
Thynne v. Glengall, 2 H. L. Cas. 131 ;

844

STATUTE OF PEAtTDS. [CHAP. XVIII.

not be carried into execution, even though reduced into
writing, as the court cannot compel specific performance,

Martin u. Holley, 61 Mo. 196 ; Miller
V. Cottin, 5 Ga. 341 ; Burke v. Credit-
ors, 9 La. An. 57; Fitzpatrick v.
Beatty, 6 111. 464 ; and, unless partly
performed, the subject-matter must
be susceptible of identification from
the description in the contract, "the
120 acres in Shannon County, Mis-
souri," without any other words of
identification, was held insufficient, as
the land could not be identified with-
out a resort to parol evidence. Miller
V. Campbell, 52 Ind. 125. But if it
had been " the 120 acres of land
owned by me in A — , Shannon Coun-
ty, Missouri," it would doubtless have
been regarded as sufficient. Lynes v.
Hayden, 118 Mass. 482 ; Lewis v.
Reichy, 27 N. J. Eq. 240; Colerick v.
Hooper, 3 Md. 316. So when it was
sought to have a contract specifically
enforced, where the defendant agreed,
in consideration that certain land was
conveyed to him, to " erect a certain
building," it was held too uncertain.
Martin v. Holley, ante. The bill must
set out a contract which is clear and
definite in all essential details.
Wright V. Wright, 31 Mich. 380;
Stanton v. Miller, 58 N. Y. 192 ; Keese
v. Eeese, 41 Md. 554. Where the
contract is incomplete in any essen-
tial respect, and furnishes no means
of identifying the property with cer-
tainty, this remedy will be denied.
Patrick v. Horton, 3 W. Va. 23;
Hammer v. McEldowney, 46 Penn. St.
334 ; Southern Ins. Co. v. Cole, 4 Fla.
359; Ohio v. Baum, 6 Ohio, 383; Jor-
dan V. Deaton, 23 Ark. 704; Prater k.
Miller, 5 Jones (N. C.) Eq. 153.
" The houses in Smithfleld St.," with-
out other designation, held too uncer-
tain. Hammer v. McEldowney, ante.
When the writing appears only to be
the basis of an agreement and not the
agreement itself, there is no binding
agreement. Frost v. Moulton, 21
Beav. 496 ; or when it provides that
any of the terms shall be afterwards
settled. Wood u. Midgeley, 6 De G.

M. & G. 41; Honeyman v. Maryatt,
21 Beav. 14 ; or that further negotia-
tions are contemplated. Stratford v.
Bosworth, 2 V. & B. 341 ; Tawney v.
Crowther, 3 Br. & C. C. 318 ; and if it
is doubtful whether a positive agree-
ment exists, the court will not inter-
fere; all the terms must be settled.
Huddlestone u. Briscoe, 11 Ves. 592 ;
Jackson v. Oglander, 2 H. & M. 465.
But if all the terms are settled and
agreed upon, the fact that a more
formal instrument is contemplated is
not sufficient to defeat this relief.
Skinner v. McDowall, 2 De G. & S.
265. If there is a doubt as to whether
the parties understood the contract
alike, fairly arising from the language
of the contract, it will not be enforced.
Cowles V. Bawne, 10 Paige (N. Y.) Ch.
526; Buckmaster «. Thompson, 36
N. Y. 558. The term or duration of a
lease is an essential part of it, and
specific perfonnance will not be de-
creed when the contract does not
specify the term. Myers v. Forbes, 24
Md. 599. In an agreement to renew
a lease at as much rent as any one
else would pay, it was left optional
with the lessee to accept it or not, and
it was held lacking both in certainty
and mutuality. Galston v. Sigmund,
27 Md. 334; Heywood v. Cope, 25
Beav. 140; Taylor v. Parlington, 7
De G. M. & G. 328; Parker v. Taswell,

2 De G. & J. 559. Where the rent is
to be afterwards fixed, and this has
not been done, the contract is too
incomplete and uncertain. Graham v.
Call, 5 Munf. (Va.) 396. When a
contract of this character, or any
other, is uncertain and vague, the
court will leave the parties to their
legal remedies. Maddox v. McQueen,

3 A. K. Mar. (Ky.) 400 ; McKibbin v.
Brown, 14 N. J. Eq. 13 ; Dobson v.
Litton, 5 Cold. (Tenn.) 616; Sales v.
Hickman, 20 Penn. St. 180. Thus, a
clause in a lease which reads "and
the party of the first part agrees, in
case the said parties of the second

SEC. 504.]

SPECIFIC PEKFORMANCE.

845

when according to the agreement there is no contract ; and
the rule holds good although there have been acts of part
performance. In an early case it was laid down, that wher-
ever the court had decreed specified execution of a parol
agreement, the same had been supported and made out by
letters in writing, and the particular terms, stipulated therein,
as a foundation for the decree ; otherwise the court would
never carry such an agreement into execution. '

part shall then be tenants of said
premises, to first offer the property so
demised for sale to and purchase by
them for the sum of |2,000," was held
too uncertain for enforcement, be-
cause there was no time fixed within
which it was to be performed, nor any
agreement that tlie lessor should con-
vey to them at any time for that sum
while they were tenants. Buckmaster
V. Thompson, 36 N. Y. 558. So a
stipulation to renew a lease at its ex-
piration, " the rent to be proportioned
to the valuation of said premises at
said time," and providing no method
for determining the valuation, was
held too uncertain to be specifically
enforced. Pray v. Clark, 113 Mass.
283. Dobson v. Litton, ante, 113 ;
Hammer v. McEldowney, 46 Penn. St.
334. By this it is not meant that
parol evidence to identify the prop-
erty is never admissible, but that the
writing must furnish such a basis
therefor that by the aid of parol evi-
dence absolute certainty can be
arrived at. Thus, an agreement " for
the sale of houses on Smithflcld
Street " was held too uncertain, be-
cause the contract furnished no guide
by which to arrive at a certainty as to
what houses were intended. Hammer
V. McEldowney, ante. But if it had
been " for the sale of my houses,"
etc., or " houses owned by me," etc.^
absolute certainty could have been
arrived at, because tlie houses owned
by him could have been identified.
Colerick c. Hooper, 3 Ind. 316 ; Lewis
V. Reichy, 27 N. J. Eq. 240 ; Lynes v.
Hayden, 118 Mass. 482; Puttman v.
Haltey, 24 Iowa, 425. The term and
duration of the lease, Myers v. Forbes,

ante, as well as the amount of rent,
must be definitely stated. Gelston c.
Sigmund, 27 Md. 345. Lester v. Fox-
craft, 1 Coll. C. C. 108. In an Illinois
case an agreement to convey a right
of way 80 feet wide was held to have
become sufficiently certain to be en-
forced, after the guarantee, with the
acquiescence of the grantor, had
entered upon the land and laid out
the way. Purinton •/. Northern 111.
R. R. Co., 46 111. 297.

1 Wiswall V. Loft, 5 Kan. 263 ; John-
son V. Johnson, 16 Minn. 512 ; Buck-
master y. Thompson, 36 X. Y. 558 ; Mc-
Guire v. Stevens, 42 Miss. 724 ; Mc-
Clintosh .,■. Laing, 22 Mich. 212;
Munsell v. Loree, 21 id. 401 ; Hardes-
try V. Richardson, 44 Md. 617 ; Agard
V. Valencia, 39 Cal. 292 ; Dobson -.
Litton, 5 Cold. (Tonn.) 616; Huff u.
Shepherd, 58 Mo. 242; Gelston v.
Sigismund, 27 Md. 334; Whilan «.
Sullivan, 102 Mass. 204; Ferris u.
Irving, 28 Cal. 645 ; Matteson v. Sco-
field, 27 Wis. 671; Pilling v. Armi-
tage, 12 Ves. 78 ; Mortimer v. Orchard,
2 Ves. 243; Savage v. Carroll, 1 Ball
& B, 265, 551 ; 2 Ball & B. 451 ; Reese
V. Reese, 41 Md. 554 ; Townsend v.
Hawkins, 45 Mo. 286; Twiss v. George,
33 Mich. 253 ; Ackerman v. Acker-
man, 24 N. J. Eq. 315; Semmes v.
Worthington, 38 Md. 298; Long v.
Duncan, 10 Kans. 294 ; Hardesty v.
Richardson, 44 Md. 617; Lester v.
Kinne, 37 Conn. 9; Huff v. Shepard,
58 Mo. 242; Allen v. Webb, 64 111.
342 ; Wright v. Wright, 31 Mich. 380 ;
Blanchard v. Detroit &c. R. R., 31
Mich. 44; Newton v, Swazey, 8 N. H.
9, 13 ; Tilton v. Tilton, 9 N. H. 386,
391 ; Parkhurst „. Van Cortlandt, 1

846

STATUTE OF PEATTDS. [CHAP. XVUI.

The court will endeavor to put a reasonable interpretation
upon ambiguous expressions,^ though no decree can be made
if the material terms of the contract are left doubtful.^
Thus specific performance has been refused, when it could
not be shown whether timber was included in the purchase,^
when the term for which a lease was to be granted was not
mentioned in the agreement,* and when the period at which
the payment of increased rent was to commence could not
be ascertained.^

So also the words " land required " have been considered
too indefinite.^ Where the contract was for the sale of an

Johns. Ch. 273, 284; 14 Johns. 15;
Phillips V. Thompson, 1 Johns. Ch.
(N. Y,) 131; German v. Machin, 6
Paige Ch. (N. Y.) 288, 292; Lobdell
V. Lobdell, 36 N. Y. 327 ; Wallace v.
Brown, 10 N. J. Eq. 308, 311 ; Eyre v.
Eyre, 4 N. J. Eq. 102 ; Petrick v. Ash-
croft, 4 ib. 339 ; Force v. Dutcher, 4
N. J. Eq. 401; Brewer v. Wilson, 17
N. J. Eq. 180 ; Brown v. Finney, 53
Penn. St. 373 ; Sage v. McGuire, 4 W.
& S. (Penn.) 228, 229; Charnley v.
Hansbury, 13 Penn. St. 16, 21;
Moore v. Small, 19 Penn. St. 461, 470 ;
Bankin v. Simpson, 19 Penn. St. 471 ;
McCue V. Johnston, 25 Penn. St. 306 ;
Cox V. Cox, 26 Penn. St. 375 ; Frye v.
Shepler, 7 Barr. 91 ; Greenlee v.
Greenlee, 22 Penn. St. 224; Burns v.
Sutherland, 7 Penn. St. 103 ; Hugus
I'. Walker, 2 Jones (N. C.) 173;
Shepherd v. Bevin, 9 Gill. 32; Ow-
Ings V. Baldwin, 1 Md. Ch. 120 ; Shep-
herd V. Shepherd, 1 Md. Ch. 244;
Beard v. Linthicum, 1 Md. Ch. 345 ;
Chesapeake & Ohio Canal Co. v.
Young, 3 Md. 480; Wingate v. Dail,
2 H. & J. (Md.) 76; Minturn v. Bay-
lis, 33 Cal. 129 ; Shropshire v. Brown,
45 Ga. 175; Rowton v. Rowton, 1 H.
& M. (Va.) 91 ; McNeil v. Jones, 21
Ark. 277 ; Printup v. Mitchell, 17 Ga.
558 ; Kay v. Curd, 6 B. Mon. (Ky.)
100 ; • Stoddard v. Tuck, 5 Md. 18 ;
Hatcher v. Hatcher, 1 McMull,(S. C.)
Eq. 311 ; Goodwin v. Lyon, 4 Port.
(Ala.) 297; Bell v. Bruen, 1 How.
(U. S.) 169; Pearce «. "Watts, L. R.
20 Eq. 492; Allen v. "Webb, 64 111.
342 ; Tallraan v. Franklin, 16 N. Y.

584; Reese v. Reese, 41 Md. 554;
Symondson v. Tweed, Prec. Ch. 374 ;
Gilb. Eq. Rep. 35 ; see Allen v.
Bower, 3 Bro. C. C. 149 ; Clinan v.
Cooke, 1 Sch. & Lef. 36; Forster v.
Hale, 3 "Ves. 712; Boardman u. Mos-
tyn, 6 "Ves. 470; Lindsay v. Lynch,
2 Sch. & Lef. 7 ; Daniels v. Davison,
16 Ves. 256; Toole v. Medlicott, 1
Ball & B. 404; Morphett !•. Jones,
Swanst. 182 ; Price v. Assheton, 1 Y.
& C. Ex. 82 ; Reynolds ■,-. Waring, 1
You.346; Dale!;.Hamilton,6Hare,381. '

1 Saunderson v. Cockermouth Rail-
way Co., 11 Beav. 497 ; Richardson v.
Eyton, 2 D. M. G. 79:

2 Dart. V. & P. 5th ed. 1033; Mc-
Murray v. Spicer, L. R. 5 Eq. 527 ;
Kennedy i\ Lee, 3 Mer. 441 ; White v.
Henman, 51 111. 243 ; Ross v. Baker,
72 Penn. St. 186; Hurley 71. Brocon,
98 Mass. 545 ; Fowler v. Radican, 52
111. 405 ; Waring v. Ayres, 40 N. Y
357 ; Holmes v. Evans, 48 Miss. 247 ;
Lynes v. Hayden, 119 Mass. 482;
Purinton v. Northern 111. R. R. Co.,
46 111. 297; Miller v. Campbell, 62
Ind. 125; Bell v. Warren, 39 Tex.
106 ; King v. Rickman, 20 N. J. Eq.
316 ; Carr v. Passaic Land &c. Co., 22
id. 85 ; Chidister v. Springfield &c. R.
R. Co., 59 111. 87.

' Reynolds v. Waring, You. 346.

* Clinan k. Cooke, 1 Sch. & Lef. 22.

^ Lord Ormond v. Anderson, 2 Ball
& B. 363 ; and see Blore v. Sutton, 8
Mer. 237.

6 Lord Stuart v. L. & N. W. R. Co.,
1 D. M. G. 721 ; and see Tatham v.
Piatt, 9 Hare, 660.

SEC. 504.] SPECIFIC PERFOEMA.NCE. 847

estate, the vendor reserving " the necessary land for making
a railway " through the estate, it was held that the reserva-
tion was void for uncertainty and that the contract could
not be enforced.^ And an agreement to take a lease of a
house if put into thorough repair, and " the drawing-rooms
handsomely decorated according to the present style," was
held to be too uncertain for the court to enforce.^ In the
absence of special circumstances, the court will not enforce
specific performance of a contract for the purchase of land,
which is silent as to the means of access to it, when it is
reasonably uncertain whether any means of entering on the
land at all times can be conferred on the purchaser.^ So
also specific performance has been refused when the agree-
ment for a mining lease turned on the construction of an
" etc." * But in Cooper v. Hood ^ the terms " good will, etc.,"
in a contract for the sale of a foundry, were held not to be
so uncertain as alone to prevent a decree for specific per-
formance of it ; for the words et cetera point to things nec-
essarily connected with and belonging to the good will and
to be defined in the conveyance.

Where the terms for letting farms provided that all mate-
rials required for buildings proposed to be built or that might
thereafter be built, should be led at the expense of the
tenant; that the landlord should drain, the tenant leading
tiles ; that gates, buildings, " etc.," should be left in repair
by the tenant ; that the landlord reserved to himself all cus-
tomary rights, such as liberty to search for and work mines
or minerals, " etc.," it was held that these stipulations did
not render the agreement uncertain so as to be incapable of
being enforced specifically.^ Again, an agreement for a lease
for three lives or thirty-one years may be specifically enforced
although the lives are not named in the agreement, and it is
not provided by whom they are to be nominated ; ^ and
where the contractor was to take a lease of " those two seams
of coal known as ' the two-feet coal ' and ' the three-feet coal,'

1 Pearce v. "Watts, L. E. 20 Eq. 492. « Parker v. Taswell, 2 De G. & J.

2 Taylor v. Portington, 7 D. M. G. 559.

328; see, howerer, Samuda v. Law- ^ Fitzgerald v. Vickers, 2 Dr. &

ford, 8 Jut. (N. S.) 739. "Wal. 298; Kensington u. Phillips, 5

8 Denne v. Light, 8 D. M. G. 774. Dow. 61 ; overruling, it appears,

* Price V. Griffith, 1 D. M. G. 80. Wheeler v. D'Esterre, 2 Dow. 360.
6 26 Beav. 293.

848 STATUTE OF FEATJDS. [CHAP. XVIir.

lying under lands hereafter to be defined in the Bank End
Estate," and the lessor agreed to let " the before-mentioned
seams of coal," the contract was held to be sufficiently
definite to be enforced.^

Sec. 505. Contradictory Evidence, When Specific Perform-
ance Decreed. — Although the evidence is contradictory, specific
performance may he decreed, if the court is able satisfactorily
to ascertain what the terms are. A reference to ascertain the
terms will, however, only be directed when the evidence is
contradictory ; not when insufficient evidence has been pro-
duced by the person seeking to enforce the contract.^

In Mortimer v. Orchard ^ the only witness for the plaintiff
proved an agreement different from that stated in the bill ;
and two of the defendants by toswer stated an agreement
different from both. Lord Loughbokough said, that in
strictness the bill ought to be dismissed, but specific perform-
ance was decreed according to the agreements stated in the
answers. Again, "in a case that came from Malton, in
Yorkshire, possession having been delivered in pursuance of
a parol agreement, and a dispute arising upon the terms of
the agreement, Loed Thurlow thought proper to send it
to the master, upon the ground of the possession being de-
livered, to inquire what the agreement was. The difficulty
there was in ascertaining that. The master decided as well
as he could ; and then the cause came before Lord Rosslyn
upon further directions; who certainly seemed to thiiik
Lord Thtjrlow had gone a great way, and either drove them
to a compromise, or refused to go on with the decree upon
the principle upon which it was made." *

In Mundy v. Jolliffe,^ Lord Cottenham said: "Courts
of Equity exercise their jurisdiction in decreeing specific
performance of verbal agreements, where there has been

, 1 Hayward v. Cope, 25 Beav. 140 ; * Per Lord Eldon in Boardman v.

and see Monro v. Taylor, 8 Hare, 61 ; Mostyn, 6 Ves. 470, where his Lordship

affi'd. 3 Mac. & G. 713. said: "Perhaps if it was res integra

^ Savage v. Carroll, 1 Ball & B. the soundest rule would be that if the

283, 551 ; 2 Ball & B. 451 ; Hurper v. party leaves it so uncertain, the agree-

Laney, 39 Ala. 398 ; Long r. Duncan, ment is not taken out of the statute

10 Kan. 294 ; Parkhurst v. Vancort- sufficiently to admit of its being en-

landt, 11 John. (N. Y.) 15; Rhodes v. forced."
Rhodes, 2 Sandf. (N. Y.) Ch. 279. » 5 jiy, & Qj_ I77

3 2 Ves. Jr. 243.

SEC. 50S.] SPECIFIC PERFORMANCE. 849

part performance, for the purpose of preventing the great
injustice which would arise from permitting a party to escape
from the engagements he has entered into, upon the ground
of the statute of frauds, after the other party to the contract
has, upon the faith of such engagement, expended his money
or otherwise acted in execution of the agreement. Under
such circumstances the court will struggle to prevent such
injustice from being effected ; and with that object, it has at
the hearing, when the plaintiff has failed to establish the
precise terms of the agreement, endeavored to collect if it
can what the terms of it really were." ^

In Laird v. The Birkenhead Railway Company ,2 the plain-
tiff, in 1855, submitted to the directors of a railway company
a project for a private branch line, to be constructed at the
plaintiff's cost and for his accommodation ; to which the
directors expressed their consent and agreement generally,
but the terms and details were left for future arrangements.
In the year 1856, the plaintiff, at considerable cost, con-
structed the branch, and the company prohibited the user
until a definite understanding should be come to. Wood,
V. C, thought that at that time the company were bound to
assent to reasonable terms, and that the court, if possible,
would have decreed specific performance. His Honor said :
" Where one set of persons have said to another, ' You desire
to construct expensive works for purposes which will require
our consent ; we allow you to incur this outlay ; ' I have grave
doubts, looking to the authorities, whether these persons,
after having allowed the money to be laid out on reasonable
terms, can be permitted to say, ' The terms must be such as
we dictate ; we are masters of the situation, and all your
expenditure must go for nothing unless we can agree about
the terms.' " And in Wilson v. West Hartlepool Railway
Company ,3 Turner, L. J., said: "Where permission has
been given upon the faith of an agreement, it is, I think, the
duty of the court, as far as it is possible to do so, to ascertain
the terms of the agreement and to give effect to it." *

1 And see Gregory v. Wilson, 9 ^ Johns. 500.
Hare, 690; Pain v. Coombs, 1 De G. » 2 De G. J. & S. 494.
& J. 34; Nunn v. Fabian, L. B. 1 Ch. * See also Norris v. Jackson, 1 J.

35. & H. 319.

850 STATUTE OP FRAUDS. [CHAP. XVIII.

Sec. 506. Surrounding Circumstances Considered. — The
court, having regard to the terms of the agreement, will con-
sider the surrounding circumstances, and the conduct of the
parties in dealing with the property comprised in it, in the
interval between the making of the agreement and the com-
mencement of the suit for its enforcement.^

Sec. 507. immaterial Terms need not be Proved. — Imma-
terial terms need not he proved. Thus, it has been held that
the fact that an allegation' in the bill that the plaintiff, the
tenant, was to pay taxes and do necessary repairs, was not
proved, was no substantial variance, being an admission
against himself, and immaterial from the tenant's legal liabil-
ity.^ Nor is it necessary to prove matters which are imma-
terial so far as relates to anything remaining to be done.^

Sec. 508. Family Arrangements by Parol. — In the case of
family arrangements involving the giving up, partition, or
exchange of land, tlje court will, where there has been long
possession under the arrangement, decree specific perform-
ance, although the arrangement was made by parol.* Thus,
in the recent case of Williams v. Williams,^ A died in 1831
possessed of real estates of socage, gavelkind, and borough
English tenure, and also of leaseholds, stock-in-trade, and
other personal property, leaving a wife and two sons. He
made a will by which, after certain provisions for his wife,
he gave all his property to his two sons equally, but the will
was not admitted to probate, being incomplete. At an inter-
view between the brothers, shortly after the will had been
refused probate, the elder brother declared that the invalidity
of the will should make no difference, and that the property
should be " not mine or thine, but ours." No agreement in
writing was made, but for twenty years after the death of, A
the two sons carried on the partnership together, and dealt
with the whole property, real and personal, as if it belonged
to them equally, and the widow never insisted on her rights
in her husband's property. In 1851 the partnership was dis-

1 Oxford V. Provand, L. R. 2 P. C. « Stockley v. Stockley, 1 V. & B.
135 ; Baumann u. James, L. E. 3 Ch. 23 ; Neale v. Neale, 1 Keene, 672 ;
508. Persse v. Persse, 7 C. & F. 279 ; Good

2 Gregory v. Mighell, 18 Ves. 328. v. Good, 33 Beav. 314.
" Mundy v. JollifEe, 5 My. & Gr. ^ l. R. 2 Gh. 294.

176.

SEC. SIO.] SPECIFIC PERFORMANCE. 851

solved. The younger brother halving died, his representa-
tive filed a bill for the equal division of the property. It
was held, affirming the decree of Kinderslby, V. 0.,^ that
there was sufficient evidence of a family arrangement which
the court would uphold, although there was no formal con-
tract between the parties.

Sec. 509. Corporation. — A corporation may be bound by
an agreement not under seal where there have been acts of
part performance. In Crook v. Corporation of Seaford^ a
municipal corporation by a resolution agreed to let waste
land to the plaintiff for 300 years at a nominal rent, the
plaintiff to do certain acts, and to expend money on the
land, which was to be stumped out by a committee and by
the plaintiff. The corporation did not stump out the land,
and the plaintiff stumped it out himself, and did the acts
required by the corporation, and expended money. He also
paid the rent agreed upon. It was held, upon a bill filed to
restrain an action of ejectment brought by the corporation,
that, though the agreement was not under seal, the corpora-
tion was bound by acquiescence, and must perform the agree-
ment to grant a lease. Lord Hatherley, L. C, said:*
"Upon this bill being filed the corporation raised several
objections, one of which was that the agreement was not
under seal. But a corporation, although it may not have
eyes to see what is going on, has agents who can see, and if
the corporation allow a wall to be built and money to be
expended on the faith of a resolution regularly entered in
their books, they must be answerable. As to the power of
this corporation to grant such a lease, they are not within
the Municipal Corporations Act, and they get a wall and
terrace built upon land which was of no use to them, and
they thereby encourage people to build houses. It cannot
be said to be an improvident lease."

Sec. 510. Fraud takes Case out of Statute. — Where the
defendant has by his fraud prevented compliance with the
requisitions of the statute, he will not be entitled to plead it
as a defence to an action for specific performance.* In Mes-

1 2 Dr. & Sm. 378 ; 6 N. R. 60. » L. R. 6 Ch. 554.

2 L. R. 10 Eq. 678; aff'd. ib. 6 Ch. * Maxwell v. Montacute, Prec. Ch.
551. 526; 1 P. Wme. 618; 1 Str, 235;

862 STATUTE OF FKATJDS. [CHAP. XVIII.

taer v. Gillespie ^ Loed ELDOiir said : " Upon the statute of
frauds, though declaring that interests shall not be bound
except by writing, cases in this court are perfectly familiar,
deciding that a fraudulent use shall not be made of that stat-
ute, where this court has interfered against a party meaning
to make it an instrument of fraud, and said he should not
take advantage of his own fraud, even though the statute
has declared that in case those circumstances do not exist
the instrument shall be absolutely void. One instance is
the case of instructions upon a treaty of marriage, the con-
veyance being absolute, but subject to an agreement for a
defeasance, which, though not appearing by the contents of
the conveyance, can be proved aliunde, and there are many
other instances." Where the plaintiff and defendant had
entered into a written agreement for sale by the defendant
to the plaintiff of an estate at twenty-five years' purchase, on
an annual value to be estimated by referees on or before a
certain day, and it appeared that the defendant had pre-
vented the valuation from being made, it was held that
although the time of valuation was of the essence of the con-
tract, the defendant could not set up a defence which grew
out of his own misconduct, and that the agreement was to
be acted upon as if no time had been limited or the time had
not passed.^

In Lincoln v. Wright* the facts were as follows: A mort-
gagee, with a power of sale of real estate, informed L, the
mortgagor, that he should sell it for ^220, unless more wei'e
offered. It was thereupon verbally agreed between L and
W, that W should buy it on L's behalf for .£230, and have a
lien on it for that sum ; that L should pay interest, and con-
tinue to occupy the part he then occupied, and that W
should receive the rents of the rest to reduce the principal.
An offer by W to purchase for £230 was then sent by L's
agent to the mortgagee, who accepted it, and under his
power of sale conveyed to W's infant daughter by W's direc-

Thynn v. Tliynn, 1 Vera. 296 ; Old- Amb. 67 ; Hare v. Shearwood, 1 Ves.

ham u. Litchford, 2 Vern. 506; Sol- 243; Pym v. Blackburn, 3 Ves. 38;

lack V. Harris, 5 Vin. 521, pi. 31; Whitchurch w. Bevis, 2 Bro. C. C. 565.
Walker v. Walker, 2 Atk. 41 ; Joynes i 11 Yes. 627.

V. Statham, 3 Atk. 388; Eeech v. ^ Morse w. Merest, 6 Madd. 26.
Jtennegal, 1 Ves. 123; 1 Wlls. 227; » 4 De G. & J. 16.

SEC. 510.] SPECIFIC PERFORMANCE. 853

tion. L continued in occupation of the part he was to
occupy, and paid interest, W receiving the rents of the rest.
This Continued for about ten months, when W died. After
his death the daughter by her guardian brought ejectment,
claiming to be absolute owner. It was held that, without
reference to part performance, the statute was no defence,
because Ws insisting on the conveyance as absolute, when
it had been agreed that it should be a mortgage, was a fraud,
and the statute is not allowed to cover fraud.^

It is not fraud on the part of a purchaser, who has ap-
proved of a draft agreement and promised to sign a fair copy
of it, to refuse afterwards to sign the copy.^ In Jervis v.
Berridge^ the plaintiffs agreed to purchase an estate from
the Law Life Assurance Society, and to pay a deposit on the
signing of the contract. Before it had been signed the plain-
tiffs verbally agreed with Berridge to make it over to him
on certain terms. In order to enable Berridge to deal with
the Society, the plaintiffs signed, and gave to him a memo-
randum making over the contract to him in consideration of
his paying to the Society the deposit, and engaging to pay a
certain sum to the plaintiffs ; the other terms of the bargain
between the plaintiffs and Berridge, which were in favor of
the plaintiffs being, at Berridge's request, omitted from the
memorandum. ' On the same day the contract between the
plaintiffs and the Society was signed, and the part signed by
the Society was given to Berridge, who paid the deposit.
Berridge afterwards repudiated all the stipulations in favor
of the plaintiffs which had not been inserted in the memo-
randum. The plaintiffs then filed their bill against Berridge
and the Society, asking to have the memorandum between
Berridge and the plaintiffs cancelled, and for a conveyance
from the Society on payment of what was due to them. To
this bill Berridge demurred, and it was argued for him that
the written agreement was used only for the purpose for
which it was given, and that although. he was afterwards
advised that he was not bound to carry into effect the parol
terms, that was not fraud, and Wood v. Midgley was cited.
It was, however, held by the Court of Appeal (affirming the

1 And see Haigh w. Kaye, L. R. 7 ^ Wood v. Midgley, 5 D. M. G. 41.
Ch. 469 ; Booth v. Turle, L. R. 16 Eq. 3 L. R. 8 Ch. 351.

182.

854 STATUTE OF PEAITDS. [CHAP. XVIII.

decision of Malins, V. C.) that the demurrer was not sus-
tainable on the merits, for that the memorandum was only
ancillary to the verbal agreement between the plaintiffs and
Berridge, and any use of it by him for a purpose inconsistent
with that agreement was fraudulent. Loed Selborne, L. C,
in delivering the judgment of the court, p. 359, said : " The
written document signed by the plaintiffs was a mere piece
of machinery obtained by the demurring defendant from the
plaintiffs, as subsidiary to and for the purposes of the verbal
and only real agreement under circumstances which would
make the use of it, for any purpose inconsistent with that
agreement, dishonest and fraudulent."

Sec. 511. Partnership. — Where a partnership, or an agree-
ment in the nature of a partnership, exists between two
persons, and land is acquired by the partnership as a sub-
stratum for such partnership, the land is in the nature of the
stock-in-trade of the partnership, and the partnership being
proved as an independent fact, the court, without regarding
the statute of frauds, will inquire of what the partnership
stock consisted, whether it be of land, or of property of any
other nature.-'

Sec. 512. statute cannot be Pleaded after Admission of
Agreement by Defendant. — A defendant cannot, after admit-
ting an agreement and submitting to perform it, on the
pleadings being amended as to other circumstances, take
advantage of the statute,^ and he cannot join a plea of the
statute to another defence set up by his statement of defence.^

1 Dale V. Hamilton, 5 Hare, 382, (N. Y.) 178; Minns u. Morse, 15 Ohio,
per WiGKAM, V. C. ; 2 Ph. 266 ; Darby 568 ; HoUingshead v. McKenzie, 8 Ga.
V. Darby, 3 Drew, 495. 457; Dean v. Dean, 9 N. J.Eq. 426;

2 Spurrier v. Fitzgerald, 6 Ves. 548 ; Houser v. Lamort, 55 Penn. St. 311 ;
Beatson v. Nicholson, 6 Jur. 620. Switzer v. Skiles, 8 111. 529 ; Tarlton

8 Cooth I). Jackson, 6 Ves. 12 ; New- v. Victes, 5 id. 470*; Chetwood v.

ton V. Swanzey, 8 N. H. 9; Tilton v. Brittain, 2 N. J. Eq. 430; Sneed v.

Tilton, 9 id. 386; Burt v. Wilson, 28 Bradley, 4 Sneed (Tenn.) 301; Pat-

Cal. 132; McGowan u.West, 7 Mo. terson v. Ware, 10 Ala. 445; Albert

569 ; Vanpell v. Woodward, 2 Sandf . v. Ware, 6 Md. 66 ; Argenbright v.

Ch. (N. Y.) 143; Harris v. Knicker- Campbell, 3 H. & M. (Va.) 144; Kirk-

bocker, 5 Wend. (N. Y.) 638; Jervis sey t;. Kirksey, 30 Ga. 156; Baker t>.

V. Smith, HofE. Ch. (N. Y.) 476; Arz HoUobough, 15 Ark. 822; Garner v.

V. Grove, 21 Md. 456 ; Dyer v. Martin, Shebblefield, 5 Tex. 552 ; Esmay v.

4 111. 483; Hall v. Hall, 1 Gill. (Md.) Grotser, 18 111. 483; Gunta v. Hulsy,

383 ; Cozine «. Graham, 2 Paige Ch. Amb. 586.

SEC. 513,] SPECIFIC PEEFORMAIICE. 856

It does not appear to be settled wliether, when the defendant
is not required to put in a statement of defence, he may-
plead the statute orally at the hearing. In Lincoln v.
Wright^ the statute seems to have been pleaded orally at
the hearing ; and in Snead v. Green,^ Loed Romilly allowed
the statute of limitations to be so pleaded. But in Holding
V. Barton,^ Stuart, V. C, refused to allow a plea of the
statute of limitations at the hearing, on the ground that if
the statute had been pleaded properly, the plaintiff might
have stated matter to countervail the plea.

Sec. 513. Demurrer. — A defence that there is no written
agreeraent within the statute may be taken hy general demurrer
where the facts of the case appear on the pleadings^ The
function of a demurrer is to insist, summarily and simply,
that on the assumption of the truth of the facts alleged by
the pleadings the plaintiff is not, according to law, entitled
to the relief required, and there is no difference whether the
law to which the appeal is made is that which is founded on
general principles of law and equity, or that which rests on
the authority of a particular statute, or whether the statute
on which it rests is one which destroys the right, or only
precludes the remedy.®

Where the bill alleged in effect that the defendant held
certain real estate as a trustee for the plaintiff, but contained
no allegation that the trust was evidenced by writing, a
demurrer was disallowed with costs.*

If a defendant demurs, on the ground of the statute, to a
statement of claim, and the demurrer is overruled, and after-
wards the statement is amended, it is not necessary, in order
that the objection on the ground of the statute may be taken
at the trial, that the defendant should plead the defence on
the statute to the amended statement.^

1 4 De G. & J. 16. per Kindeksley, V. C. ; and see Pain

2 10 W. R. 36 ; 8 Jur. (N. S.) 4. v. Croombs, 3 Sm. & G. 449; 1 De G.
' 1 Sm. & G. App. XXV. & J. 34.

* WoodK.Midgley,2Sm. &G. 115; « Daries v. Otty, 12 TV. R. 682;

5 D. M. G. 41 ; Middlebrook v. Brom- affd. ib. 896.

ley, 2 N. R. 224 ; Rummens v. Robins, ' Johnasson v. Bonhote, L. R. 2

11 Jur. (N. S.) 631. Ch. D. 298.

5 Barkwortli v. Young, 4 Drew, 9,

856 STATUTE OF FRAUDS. [CHAP. XVIII.

Sec. 514. Agreement Admitted by Defendant. — Where the
defendant admits a verbal contract by his statement of defence,
the ease will he taken out of the statute, although there have
not been any acts of part performance, as in an action by pur-
chaser of lands against the vendor to carry into execution the
agreement, though not in writing, nor so stated by the plead-
ings, the vendor, by putting in a defence admitting the agree-
ment as stated in the pleadings, takes the case out of the
mischief sought to be provided against by the statute, there
being no danger of perjury, and the court will decree specific
performance ; and also, if the vendor should die, upon a bill
of revivor against his heir, the principle going throughout,
and equally binding on the representative.-'

A defendant admitting by his defence that at the date of
the contract the plaintiff was entitled, cannot at the hearing
object that no abstract was delivered and no title shown.^

Sec. 615. Executory Contract. — It seems to be doubtful
whether, consistently with the statute of frauds, the. court
can entertain an action for rectifying an executory contract
for the sale of lands, and carrying it, when rectified, into
execution, even where the mistake is admitted by the defend-
ant. In Attorney General v. Sitwell,^ Aldekson, B., said :
"I cannot help feeling that, in the case of an executory
agreement, first to reform and then to decree an execution of
it would be virtually to repeal the statute of frauds. The
only ground on which I think the case could have been put
would have been that the answer contained an admission of
the agreement as stated in the bill, and the parties mutually
agreeing that there was a mistake, the case might have fallen
within the principle of those cases at law where there is a
declaration on an agreement not within the statute, and no
issue taken upon the agreement by the plea ; because, in such
case, it would seem as if the agreement of the parties being
admitted by the record, the case would no longer be within
the statute. . . . But in my present view of the question, it

1 Gunter v. I-Ialsey, Amb. 586; Atk. 3; Huddleston v. Briscoe, 11

Child V. Godolphin, 1 Dick, 39 ; Cot- Ves. 583 ; Parker v. Smith, 1 Coll.

tington V. Fletcher, 2 Atk. 155 ; Att. 615; see ante, p. 000, n.
Gen. V. Day, 1 Vcs. S. 221 ; Potter v. = Phipps v. Child, 3 Drew, 709.
Potter, lb. 441 ; Whitchurch v. Bevis, ' 1 Y. & C. 559, 683.

2 Bro. C. C. 559; Lacon v. Merlins, 3

SEC. 517.] SPECIFIC PERPOEMANCE. 857

seems to me that the court ought not in any case, where the
mistake is denied or not admitted by the answer, to admit
parol evidence, and upon that evidence to reform an exe-
cutory agreement." Where a defendant admits the agree-
ment if he means to rely on the fact of its not being in
writing and signed, and so being invalid by reason of the
statute, he must say so, otherwise he is taken to mean that
the admitted agreement was a written agreement, good under
the statute, or else that, on some other ground, it is binding
on him.i

Sec. 616. statute insisted Upon. — Although the verbal
agreement is admitted by the statement of defence, the
statute may be used as a defence to the suit.^ It is imma-
terial what admissions are made by a defendant insisting upon
the benefit of the statute, for he throws it on the plaintiff to
show a complete written agreement, and it can no more be
thrown upon the defendant to supply defects in the agree-
ment than to supply the want of an agreement.*

Sec. 517. Defendant Denying Agreement but not Claiming
Benefit of Statute. — It seems now to be settled that when a
defendant alleges that no formal note of the agreement was
made, and denies that any binding agreement ever existed,
but does not expressly claim the benefit of the statute, he
will not be entitled to claim the benefit of the statute at the
hearing.* In Ridgway v. Wharton,^ Lord Craijwokth, C,
said that where the defendant denies or does not admit an
agreement, he need not plead the statute, and that the
burden of proof was altogether on the plaintiff, who must
then produce a valid agreement capable of being enforced;
but in Heys v. Astley,^ the Lords Justices declined to follow
Ridgway v. Wharton.'^

' Ridgway v. Wharton, 3 D. M. G. 375 ; Jackson i-. Oglander, 2 H. & M.

689 ; 6 H. L. C. 238, per Lord Cean- 465.

WORTH, C; and see Heys v. Astley, 4 * Skinner v. McDouall, 2 De G. &

De G. J. & S. 34 ; 3 N. R. 19 ; 12 W. R. Sm. 265 ; Baskett v. Cafe, 4 De G. &

2 Whitchurch v. Bevis, 2 Bro. C. S. 388.

C. 559; Moore v. Edwards, 4 Ves. = 8 D. M. G. 689.

23; Cooth v. Jackson, 6 Ves. 12. « 4 De G. J. & S. 37; 3 N. B. 19;

3 Blagden v. Bradbear, 12 Ves. 12 W. R. (L. J.) 64.

471 ; and see Rowe v. Teed, 15 Ves. ' And see Homfray v. Fothergill,

L. E. 1 Eq. 572.

858 STATUTE OP PBATJDS. [CHAP. XVIII.

Sec. 518. Different Agreement Admitted. — If the defendant
admits a different agreement to that stated in the pleadings,
the plaintiff may amend his statement by abandoning the
first stated agreement, and may have a decree for that ad-
mitted by the defendant.^ If the plaintiff relies on the
agreement admitted by the. defendant, he wUl not be allowed
to bring parol evidence to vary the term.^

Sec. 519. Rule of Iistvr as to Admissibility of Parol Evi-
dence on Behalf of a Defendant before Statute. — Before the
statute of frauds, a defendant might produce parol evidence
as a. defence to a suit for specific performance, and the
statute has not altered the law in this respect.^ " It should
be recollected," says Lord Redesdale, " what are the words
of the statute : ' No person shall be charged upon any con-
tract or sale of lands, etc., unless the agreement 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.' No person shall be
charged with the execution of an agreement who has not,
either by himself or his agent, signed a written agreement ;
but the statute does not say that if a written agreement is
signed, the same exception shall not hold to it that did before
the statute. Now, before the statute, if a bill had been
brought for specific performance, and it had appeared that
the agreement had been prepared contrary to the intent of
the defendant, he might have said, ' That is not the agreement
meant to have been signed.' Such a case is left as it was by
the statute : it does not say that a written agreement shall
bind, but that an unwritten agreement shall not bind." *

Sec. 520. when Parol Evidence Admissible on Behalf of
Defendant Resisting Specific Performance. — Parol evidence is
admissible on behalf of a defendant resisting an action seek-
ing the specific performance of a written agreement to show
that, upon the grounds of fraud, mistake, or surprise, the
written agreement does not express the real terms.^

1 Lindsay v. Lynch, 2 Sch. & Lef . 350, n. ; and the judgment of Eyee,
9- C. B., in Davis «. Symonds, 1 Cox,

2 Pym V. Blackburn, 3 Ves. 34. 402 ; see also Wallis ■;. Littel, 11 C.
" Clarke v. Grant, 14 Ves. 524. B. (N. S. ) 369.

* Clinan v. Cooke, 1 Sch. & Lef. » Rich «. Jackson, 4 Bro. C. C.

39; see also Eann v. Hughes, 7 T. R. 514; 6 Ves. 334, n. ; Joynes v. Stair

SEC. 522.] SPECIFIC PERFORMANCE. 859

Sec. 521. Grounds upon which Parol Evidence Admitted
on Behalf of Defendant. — Such evidence is admitted, not to
explain or alter the agreement, but consistently with its
terms to show the circumstances of fraud, mistake, or sur-
prise. "There is," said Sir T. Pltjmbe, "however, consid-
erable difficulty in the application of evidence under this
head, calling for great caution, especiallj-^ upon sales by auc-
tion, lest, under this idea of introducing evidence of mistake,
the rule should be relaxed by letting it in to explain, alter,
contradict, and in effect get rid of a written agreement. In
sales by auction the real object of introducing declarations
by the auctioneers or other persons is, to explain, alter, or
contradict the written contract; in effect, to substitute
another contract ; and, independently of authority, I should
be much disposed to reject such declarations, as open to all
the mischief against which the statute was directed, and also
violating the rule of law which prevailed previously, whether
offered by a plaintiff seeking a performance, or by a defend-
ant to get rid of the contract ; a distinction which it is diffi-
cult to adopt, where the evidence is introduced to show that
the writing purporting to be the contract is not the contract,
that there is no contract between them if that which is
proved by parol does not make a part of it." ^

Sec. 522. Cases where Parol Evidence Admitted. — In
Joynes v. Statham,^ the bill was brought to carry an agree-
ment into execution for a lease of a house, and on the face
of the agreement the plaintiff was to pay a rent of nine
pounds a year. The defendant insisted by his answer that
it ought to have been inserted in the agreement that the
tenant should pay the rent clear of taxes, but the plaintiff,
haxing written the agreement himself, had omitted to make
it clear of taxes; and that the defendant, unless this had
been the agreement, would not have sunk the rent from £14
to .£9; and offered to read evidence to show that this was
part of the agreement. For the defendant, it was insisted
that the defendant ought not to be admitted to parol proof

ham, 3 Atk. .388 ; the Marquis Town- Dover K. C, L. R. 2 H. L. 43; Snell-

shend o. Stangroom, 6 Ves. 328 ; ing v. Thomas, L. E. 17 Eq. 303.
Price f. Dyer, 17 Ves. 356 ; Clowes v. i Clowes v. Higginson, 1 V. & B.

Higginson, 1 V. & B. 524; Earl of 327.
Darnley v. London, Chatham, & ^ 3 Atk. 388.

860 STATUTE OP FRATTDS. [CHAP. XVIII.

toadd to the written agreement, which is expressly guarded
against by the statute of frauds. Lord Hardwicke said :
" I permitted this point to be debated at large, because it is
decisive in the cause, for I am very clear this evidence ought
to be read. This has been taken up by way of objection to
the plaintiff's bill. The constant doctrine of this court is,
that it is in their discretion whether in such a bill they will
decree a specific performance or leave the plaintiff to his
remedy at law. Now has not the defendant a right to insist,
either on account of an omission, mistake, or fraud, that the
plaintiff shall not have a specific performance ? It is a very
common defence in this court, and there is no doubt but it
ought to be received, and quite equal whether it is insisted
on as a mistake or a fraud." ^

The distinction between the case of a plaintiff seeking to
add to or vary a written agreement by parol evidence and
that of a defendant producing parol evidence for the same
purpose is well illustrated by the case of The Marquis
Townshend v. Stangroom,^ where cross bills were filed ; one
by the lessor, seeking specific performance of a written agree-
ment for a lease, and attempting to prove a variation in the
quantity of land to be let, by parol evidence ; the other by
the lessee, for a specific performance of the. written agree-
ment. Both bills were dismissed, that by the lessor on the
ground that parol evidence on behalf of a plaintiff was not
admissible to vary the written agreement ; that by the lessee
on the ground that the evidence, inadmissible on behalf of
the lessor in the character of plaintiff, was admissible on his
behalf when resisting specific performance.^

1 And see Ramsbottom v. Gosden, buy five acres owned by defendant in

1 V. & B. 165. a certain section. This offer was

* 6 Ves. 328. accepted in writing and a valid con-

* See also Wood v. Scarth, 2 K. & tract established. The writing con-
J. 33. Where several writings are tained a description, but a question
relied upon to establish a contract for might be raised as to its sufficiency,
the sale of land, the relation between In such case, however, it would be
the writings must appear on their competent to identify by extrinsic
face. The subject-matter of the con- evidence the five acres owned by
tract must appear from the memoran- defendant in the section, if he owned
dum, and the land must be so described but one five-acre tract, and to show
that it may be identified. Its location the identity of different forms of
and identification may be by parol, description of the same land. Hurley
Thus, in Sanborn I'. Nockin, 20 Minn. v. Brown, 98 Mass. 548. The connec-
178, the plaintiff by letter offered to tion and relation of several writings

SEC. 522.] SPECIFIC PBEFOEMANCE. 861

Again, in Clark v. Grant,i Sm W. GeaiJt, M. R., said :
" It has been ruled that it is not open to the plaintiff to
supply or correct a term of a written agreement by parol ;
but it has never been determined that a defendant cannot
set up a parol engagement in opposition to a party who,
having entered into it, seeks to have a written engagement
specifically performed independently of it. The statute of
frauds has not altered the situation of a defendant against
whom a specific performance is prayed. A defendant in
such a case may give the same evidence now wliich he might
have given before." In "Winch v. Winchester ^ an estate was
described in the particulars as "containing by estimation
forty-one acres, be the same more or less." After the sale
the land was measured and it was found that it amounted
only to between thirty-five and thirty-six acres. Upon a bill
for specific performance, the defendant, submitting to per-
form the agreement with an abatement, was allowed to pro-
duce parol evidence to prove that at the sale the auctioneer
had declared that the property contahied forty-one acres, and
that if the purchaser did not like to take it so, it should be
measured; and if it proved more, the excess must be paid
for ; if less, that an abatement should be made. In Manser
V. Back ^ premises were advertised to be sold according to
certain printed particulars and conditions of sale. Before
the sale took place, several of the printed copies were altered
by the vendor's solicitor, who introduced, in writing, a reser-
vation of a right of way to other premises belonging to the
vendor. Several of the altered copies of the particulars were
laid on the table in the auction-room, without any remark
with regard to the alteration, and an altered copy was deliv-
ered to the auctioneer, who read the same aloud before the
biddings commenced; but the party who became the pur-
assumed to constitute one contract be receiyed to aid in the interpreta-
must appear on their face either from tion of the contract, but the essential
the nature of their contents or subject- terms of the writing required by the
matter, or by reference, and cannot be statute of frauds cannot be supplied
shown by parol. Ridgway k. Ingram, by oral testimony of what the parties
50 Ind. 145. Parol evidence, showing intended or understood. Tice v. Free-
tlie fact of the delivery and receipt man, Minn. Sup. Ct.
of the several writings, including i 14 Ves. 524.
time, place, situation of property and ^ j y. & B. 375.
parties, and other circumstances, may ' 6 Hare, 443.

862 STATUTE OP FKATJDS. [CHAP. XVIIl.

chaser did not hear or notice the alteration. The contract
was inadvertently signed by the auctioneer and by the pur-
chaser, on a copy of the particulars of sale not containing
the reservation. After the purchase-money was paid and
possession given, the purchaser filed his bill for a specific
performance of the contract by a conveyance from the ven-
dor, without a reservation of the right of way, but the bill
was dismissed, Wigram, V. C, saying : " If the vendors had
been plaintiffs asking a decree for specific performance, with
an addition to the paper signed by Manser such as they say
ought to have been introduced, it is clear that no such decree
could have been made. The evidence to prove the additional
term would have been inadmissible. . . . The principle,
however, is general. Where the fraud, mistake, or surprise
cannot be established without evidence, equity will allow a
defendant to a bill for specific performance to support a
defence founded upon any of those grounds by evidence
dehors the agreement.^

Sec. 523. Grounds upon which Parol Evidence not Ad-
mitted on Behalf of Plaintiff. — The grounds Upon which the
court acts in refusing to allow a plaintiff to produce parol
evidence to contradict a written agreement were thus stated
by SiK W. Geant : " By the rule of law, independent of the
statute, parol evidence cannot be received to contradict a
written agreement. To admit it for the purpose of proving
that the written instrument does not contain the real agree-
ment would be the same as receiving it for every purpose.
It was for the purpose of shutting out that inquiry that the
rule of law was adopted. Though the written instrument
does not contain the terms it must in contemplation of law
be taken to contain the agreement, as furnishing better evi-
dence than any parol can supply." ^ Lord Hakdwicke
appears to have thought that by possibility a case might be

' And see Price v. Ley, 4 Giffi. Lord Imham v. Child, 1 Bro. C. C.

235, affd. 32 L. J. Ch. 530; Myers v. 92 ; Lord Portmore v. Morris, 2 Bro.

Watson, 1 Sim. (N. E.) 523; Eose v. C. C. 219; Hare v. Sherwood, 3 Bro.

Watson, 10 H. L. C. 672. C. C. 168; Jordan v. Sawklns, ib.

2 WooUam v. Hearn, 6 Ves. 211, 388 ; Binsted v. Coleman, Bunh. 65 ;

218; and see Parteriche v. Powlet, 2 Hogg v. Snaith, 1 Taunt. 347; Martin

Atk. 383; Tinney u. Tinney, 3 Atk. 8; v. Pycroft, 2 D. M. G. 795.
Lake u. Pliillips, 1 Ch. Eep. 110;

SEC. 525.] SPECIFIC PEEFORMANCE. 863

made in which even a plaintiff might be permitted to show
an omission in a written agreement either by inistal^e or
fraud.^ In Joynes v. Statham ^ his lordship is reported to
have said: "Suppose the defendant had been the plaintiff,
and had brought the bill for a specific performance of the
agreement, I do not see but that he might have been allowed
the benefit of disclosing this to the court."

This case was cited in Clinan v. Cooke,^ for the purpose of
showing that Lord Haedwicke thought that there might
be an addition to the agreement by parol. Loed Redesdale,
however, said : " I have found a reference to a note of the
same case by Mr. Brown, who was King's counsel in Lord
Hardwicke's time, and in great business, and the manner
in which he has put this case is thus : ' But query if, on a
bill for performance of an agreement, and an attempt to
add to the agreement by parol, whether plaintiff can do it in
that case ? ' Therefore Mr. Brpwn certainly did not under-
stand Lord Haedwicke as saying that it could be done, and
looking attentively at the words used by Atkyns, I do not
think they import anything positive." *

Sec. 524. Wliether Parol Evidence Admissible on Behalf of
Plaintiff when Objection Taken before Agreement Signed. — In

Pember v. Mathers ^ parol evidence was admitted on behalf
of the plaintiff, the written agreement having been entered
into upon the faith of a parol undertaking by the defendant ;
and Lord Thtjelow laid it down that where the objection is
taken before the agreement is executed, and the other side
promises to rectify it, it is to be considered as a fraud if such
promise is not kept.^

Sec. 525. Parol Variation of Written Contract may be En-
forced where Part Performance. — Where there have been
acts of part performance in pursuance of a parol contract
varying a written contract, and the defendant has acquiesced,
specific performance of the contract as varied by parol may
be enforced. In the Anonymous case,'^ W leased a house to

1 Walker v. Walker, 2 Atk. 98. « 1 Bro. C. C. 54.

2 3 Atk. 389. ' See, however, Clarke v. Grant,
' 1 Sch. & Lef. 38. 14 Ves. 525.

* And see Marquis of Townshend ' 5 "Vin. Ahr. pi. 88.

V. Stangroom, 6 Ves. 338.

864 STATUTE OF PEATJDS. [CHAP. XVIII.

N for eleven years, and was to allow <£ 20 to be laid out in
repairs. The agreement was reduced into writing, signed
and sealed by both parties. N repaired the house, and find-
ing it to take a much greater sum than £20, told W of it,
that he would nevertheless go on, and lay out more money
if he would enlarge the term to twenty-one years, or add
fourteen, or as many as N should think fit. W replied that
they would not fall out about that, and afterwards declared
that he would enlarge the term, without mentioning any
term in certain. The question was whether this new agree-
ment, made by parol, which varied from the written agree-
ment, should be carried into execution notwithstanding the
statute of frauds ? The Master of the Rolls said, that before
the statute written agreements could not be controlled by a
parol agreement contrary to it or altering it, but this is a
new agreement, and the laying out the money is a perform-
ance on one part, and ought to be carried into execution, and
built his decree upon these cases : first, where a parol agree-
ment was for a building lease, and before it was reduced
into writing the lessee began to build, and after differing on
the terms of the lease the lessee brought a bill, and the
lessor insisted on the statute of frauds, the Lord Keeper dis-
missed the bill, but the plaintiff was relieved in Dom. Proc. ;
and the second was a case in Lord Jeffkies' time.^

Sec. 526. Parol Evidence not Admissible on Behalf of
Plaintiff unless Part Performance. — Unless there have been
acts of part performance, parol evidence will not be admitted
on behalf of a plaintiff to vary a written agreement, although
the plaintiff alleges that the variation was fraudulent. Thus
parol evidence to prove that a particular estate was left out
of a lease under a parol agreement by the joint direction of
both parties was refused.*^ So parol evidence is not admissible
to prove declarations by an auctioneer at a sale made for the
purpose of explaining the particulars or conditions of sale.
In Jenkinson v. Pepys,^ upon the sale of an estate by auc-
tion, the particular was equivocal as to the woods, but it was

' M. S. Rep. Mich. 4 Geo. Cane. ; 2 Lawson v. Laude, 1 Dick. 346 ;

and see Legal v. Miller, 2 Ves. S. Fell v. Chamberlain, 2 Dick. 484.
299; Pitcairn u. Ogbourn, ib.'375; » Cited 6 Ves. 330 ; IV. &B. 528;

Marquis of Townshend v. Stangroom, 15 Ves. 521.
6 Ves. 628.

SEC. 528. J SPECIFIC PERFORMANCE. 865

clear that the purchaser was to pay for timber and timber-
like trees, and there was a large underwood upon the estate.
At the sale the auctioneer declared that he was only to sell
the land, and everything growing upon the land must be
paid for. The defendant, the purchaser, insisted that he was
only to pay for timber and timber-like trees, not for planta-
tion and underwood. The declaration at the sale was dis-
tinctly proved, but it was determined that the parol evidence
was not admissible.^

Sec. 527. Term Omitted by Mistake may be Proved by
Parol by Defendant. — A defendant who has previously had
negotiations with other persons in which the terms on which
he would sell have been discussed may prove by parol that a
term mentioned in the previous negotiations was omitted by
mistake from the agreement of which specific performance
is sought,^ or that he has by mistake agreed to sell at a less
price than the property is worth.^

Where the plaintiff agreed to take a lease of a public
house from the defendant, a brewer, but the written contract
said nothing as to the restrictive covenant of a brewer's
lease, and the plaintiff instituted a suit to obtain an unre-
stricted lease, the bill was dismissed upon the restricted
parol agreement being proved.*

Sec. 528. inadvertent Omission. — Although specific per-
formance of an agreement may not be enforced against a
defendant who reasonably misapprehends its terms, a mere
case of inadvertant omission to propose an intended term is
different ; and therefore where an occupant of land under an
expiring tenancy had always paid the tithe rent charge, and
afterwards entered into a written agreement with the land-
lord for a lease at the old rent, but without any stipulation
being introduced as to the tithe rent charge, it was held that
the landlord could not insist on such a stipulation being
inserted as a condition of specific performance, being enforced
against him. "In all the cases," said Loud Chelmsfoed,
L. C, " which have been cited on this point, there was clear
evidence of mistake. Here there is no evidence that the

1 See also Higginson v. Clowes, 15 ^ -Wood v. Scarth, 2 IC. & J. 33.
Ves. 516, affd. 1 V. & B. 424 ; Hum- » "Webster v. Cecil, 30 Beav. 62.
phries r. Home, 3 Hare, 277. * Barnard v. Caye, 26 Beav. 253.

866 STATUTE OF FKAUDS. [CHAP. XVIII.

parties intended anything, except to leave the payment of
the rent charge to be made according to the Act of Parlia-
ment." 1

Sec. 529. Mistake must be Clearly Proved. — Where an
agreement has been reduced into writing and signed by the
parties, the proof must be very clear which will induce the
court to refuse to enforce the written agreement upon the
ground that a term of the real agreement has been omitted
by mistake.^

If when the terms of a parol agreement are reduced into
writing it is agreed that a certain term shall be inserted, and
the agreement is executed without such term being inserted,
and no fraud is alleged, the omission cannot be set up as a
defence to an action for specific performance.*

Sec. 530. Parol Evidence Admissible to Prove Promised
Alterations. — If a person is induced to sign an agreement
upon representation that certain alterations shall be made in
the terms, and the person making the promise refuses after-
wards to fulfil it, parol evidence is admissible to show what
the promised alterations were, and specific performance will
be refused.*

Sec. 531. Terms Omitted, Plaintiff Offering to Perform. —
Specific performance, where there has been no fraud or mis-
take, may be decreed where a term has been omitted from
the written agreement, upon the plaintiff submitting to per-
form the omitted term. Thus, where the defendants agreed
in writing to grant the plaintiff a lease at a specified rent and
for a specified term, subject to the same covenants, clauses,
and agreements as were contained in an expiring lease, under
which he then held the property, and the plaintiff" filed a
iclaim for specific performance, stating the agreement, and
that it was further agreed that he should pay a premium of
£200, which he offered to do, it was held that this additional

1 Parker v. Taswell, 2 De G. & J. C. C. 350; Jackson v. Cator, 5 Ves.
659, 575. 688 ; Rich v. Jackson, 4 Bro. C. C.

2 Clay V. EufEord, 14 Jur. 803, 518.

805, per Wigeam, V. C. ; and see * Micklethwait v. Nightingale, 12

Alvanley v. Kinnaird, 1 Mac. & G. 1 ; Jur. 638 ; Clarke v. Grant, 14 Ves.

Earl of Darnley v. London, Chatham, 519 ; Vouillon v. States, 2 Jur. (N. S. )

& Dover E. C, L. R. 2 H. L. 43. 845.
' Shelbume v. Inchiquin, 1 Bro.

SEC. 532.] SPECIFIC PEEFOEMANCE. 867

term did not render the statute of frauds a valid defence to
the claim. " Our opinion is," said Knight Beitce, L. J.,
" that where persons sign a written agreement upon a subject
obnoxious or not obnoxious to the statute that has been so
particularly referred to, and there has been no circumvention,
no fraud, nor (in the sense in which the term ' mistake ' must
be considered as used for this purpose) mistake, the written
agreement binds at law and in equity, according to its terms,
although verbally a provision was agreed to, which has not
been inserted in the document ; subject to this, that either
of the parties sued in equity upon it may perhaps be entitled
in general to ask the court to be neutral, unless the plaintiff
will consent to the performance of the omitted term." ^

Where the written agreement only provided that the pur-
chaser should bear the expense of the conveyance, parol evi-
dence was admitted to show, that by the mistake of the
solicitor a provision that the purchaser should also bear the
expense of making out the title was omitted, and it was held
that the plaintiff must submit to have the agreement per-
formed in the way contended for by the defendant, or have
his bill dismissed.^ So, where in a suit for specific perform-
ance of a written agreement, a parol variation not set up by
the answer came out on the cross-examination of the defend-
ant's agent, who was one of the plaintiff's witnesses, it was
considered that there was a proper subject for inquiry before
the court finally disposed of the case ; but the plaintiff con-
senting to adopt it as part of the contract, specific perform-
ance with the parol variation was decreed.^

Sec. 532. Subsequent Variation, Plaintiff Offering to Per-
form.— Specific performance with a parol variation cannot be
obtained by a plaintiff.* But where a written agreement has
been subsequently varied by parol, or by an informal docu-
ment, and the plaintiff offers the defendant the benefit of

1 Martin v. Pycroft, 2 T>. M. 6. ' London & Birmingham Eailway
785, 795 ; and see Leslie v. Tompson, Co. v. Winter, 1 Or. & Ph. 57 ; and
9 Hare, 268 ; Barnard v. Cave, 26 see Flood v. Finlay, 2 Ball & B. 9 ;
Beav. 253 ; Vouillon v. States, 2 Jur. Garrard v. Grinling, 2 Swanst. 244.
(N. S.) 847. 4 Robson o. Collins, 7 Ves. 130;

2 Eamsbottom v. Gosden, 1 V. & Nurse v. Lord Seymour, 13 Beav.
B. 165 ; and see Lord Gordon v. Mar- 254.

quis of Hertford, 2 Madd. 121.

868 STATUTE OF FBATJDS. [OHAP. XVIJI.

the variations, the court will decree a specific performance of
the agreement with the Yariations if the defendant elects to
take advantage of them, and if he does not so elect, it will
decree a specific performance of the original agreement.^

But after an agreement has been correctly reduced into
writing, parol evidence is not admissible to add a term
omitted from the written agreement.^

Sec. 533. when Parol Evidence not Admissible to Add
Term. — In Croome v. Lediard,^ by a written agreement be-
tween the plaintiff and the defendant, the plaintiff agreed
to sell and the defendant agreed to purchase, upon the terms
stated, a certain property called the Leigh Estate, and by the
same agreement the defendant agreed to sell and the plaintiff
agreed to purchase another estate, called the Haresfield
Estate, and it was not expressed that the two contracts were
to be dependent on each other. The defendant was eventu-
ally unable to make a good title to the Haresfield Estate ; it
was held that the plaintiff was entitled to a specific perform-
ance of the contract as to the Leigh Estate. " The intention
of the parties," said Sir J. Leach, M. R., "must be collected
from the expressions in the written instrument, and no evi-
dence aliunde can be received to give a construction to the
agreement contrary to the plain import of those expressions."
On appeal the decree was affirmed, Lord Beougham saying :
" It had been argued that, although evidence of matter dehors
was not admissible for the purpose of raising an equity, and
that, therefore, it was competent to the defendant in a suit
for specific performance to avail himself of such evidence,
though it was not competent to the plaintiff to do so. The
distinction was sound within certain limits, and within those
limits the rule might be safely adopted. Parol evidence of
matter collateral to the agreement might be received, but no
evidence of matter dehors was admissible to ■ alter the terms
and substance of the contract." His lordship then com-
mented on Clarke v. Grant,* and continued : " In the present
case, the purpose for which the parol evidence was tendered

1 Robinson v. Page, 3 Euss. 114 ; Snelling v. Thomas, L. R. 17 Eq.
and see Price v. Dyer, 17 Ves. 356 ; 303.

Van V. Corfe, 3 My. & K. 277. s 2 My. & K. 251 ; see also Lloyd

2 Omerod v. Hardman, 5 Ves. 722 ; v. Lloyd, 2 M. & C.'192.
Jenkins v. Hiles, 6 Ves. 654, 655 ; * 14 Ves. 519.

SEC. 534.] SPECIFIC PEEFOKMANCE. 869

on the part of the defendant was, not to enforce a collateral
stipulation, but to show that the transaction was conducted
on the basis of an exchange, a circumstance which, if true,
was totally at variance with the language and plain import
of the instrument. Nothing could be more dangerous than
to admit such evidence ; for if the agreement between the
parties was in fact conducted upon the basis of an exchange,
why was the instrument so drawn as to suppress the real
nature of the transaction?" Upon this case Loed St.
Leonaeds remarks : " The decision was probably well
founded. The evidence, it is submitted, was inadmissible,
not because it was not to enforce a collateral stipulation, but
because it did not prove that by fraud, mistake, or surprise,
the agreement did not state the alleged real contract, viz.,
for an exchange between the parties. The defendant was an
attorney, and fraud was not alleged, nor indeed was mistake
or surprise ; for he had himself prepared the agreement, and
he preferred making it a mutual contract for sale and pur-
chase instead of an exchange, and of course he could not be
permitted to alter its character by parol evidence of the
mode in which the negotiation was conducted, and of the
views of the parties, in order to avoid the consequences
which attached to the nature of the contract which the par-
ties, with their eyes open, having regard to other objects, had
thought it proper to adopt." ^

So in Lord Irnham v. Child,^ parol evidence to prove that
it was part of an agreement that a grant of an annuity should
be redeemable, a proviso for redemption not having been
inserted with the knowledge of both parties, was refused, it
not being charged that the omission was fraudulent.*

Sec. 534. Terms of Agreement Ambiguous. — Where the
terms of the written agreement have been ambiguous, so
that, adopting one construction, they may reasonably be
supposed to have an effect which the defendant did not con-
template, the court has upon that ground only refused to
enforce the agreement.* Thus the court will not decree

' Sugd. V. & P. 13th ed. 134. « Manser v. Back, 6 Hare, 447 ;

2 1 Bro. C. C. 92 ; 2 Dick. 554. Calverley v. Williams, 1 Ves. Jr. 210 ;

8 And see Marquis Townshend v. Jenkinson v. Pepys, 15 Ves. 521 ; 1 V

Stangroom, 6 Ves. 332. & B. 528 ; 6 Ves. 330 ; Clowes v.

870 STATUTE OF FBAUDS. [CHAP. XVIII.

specific performance of an incomplete gift,^ nor where, by
adopting the construction of an ambiguous contract, the
effect of the decree would be to compel the vendor to convey
property not intended or believed by him to be included in
the contract,^ or to compel the defendant to accept less than
he actually contracted for.^ So specific performances will
not be decreed where the description on the plan of property
is misleading, and there is nothing to put the purchaser on
inquiry.* But specific performance will only be refused
when the description of the property is ambiguous, and the
purchaser swears he has made a mistake : if no ground for
mistake appears on the particulars, it is not sufficient for the
purchaser to swear that he made a mistake.^ So also it is
not a ground for refusing specific performance that no solici-
tor acted for the vendor, and that the contract was executed
under circumstances which might easily have led to fraud, if
no fraud is proved against the plaintiff.^

If at the time a written contract has been entered into, a
verbal contract has also been entered into which has been
admitted by the defendant to be a separate contract, a de-
fendant cannot resist a suit for specific performance of the
written agreement on the ground that the verbal contract
has not been executed by the plaintiff J Where the owner
of a plot. of ground agreed to grant a lease to A as soon as
the latter had erected a villa thereon, but it was stipulated
that if A should not perform the agreement on his part, the
agreement for a lease was to be void, and that the owner
might re-enter, and A was to insure in a particular office, and
to have the option of purchasing the fee in two years, and A
erected the villa, but insured in the wrong office ; it was held
that the contract for a lease was independent of the option
to purchase, and that notwithstanding the forfeiture of the

Higginson, 1 V. & B. 524; Neap v. * Weston v. Bird, 2 W. E. 145 ;

Abbott, C. P. Coop. 333. See the Swaisland v. Dearsley, 29 Beav. 430 ;

cases there collected. Denny v. Hancock, L. R. 6 Ch. 1.

1 Callaghan v. Callaghan, 8 C. & « Swaisland v. Dearsley, 29 Beav.

F. 374. 430.

2 Baxendale v. Seale, 19 Beav. « Lightfoot v. Heron, 3 Y. & C.
601 ; Alvanley v. Kinnaird, 2 Mac. & 586.

G. 1. ' Phipps V. ChUd, 3 Drew. 709.
' Moxey v. Bigwood, 8 Jur. (N. S.)

803, affd. 10 Jur. (N. S.) 597.

SEC. 53S.] SPECIFIC PEEFOEMANCB. 871

first, the latter still subsisted, and a specific performance of
the contract for sale was decreed.i

Where a purchaser contracts under a natural mistake,
which is not attributable to any negligence on his part, it is
the duty of the vendor to relieve him from that mistake.^

Where a mortgagee with power of sale obtained a fore-
closure decree, and then entered into an agreement to sell
the estate, with a clause providing that as the vendor was
mortgagee with power of sale, she would only enter into the
usual covenant that she had not incumbered, the purchaser
objected to the validity of the foreclosure decree, and insisted
upon having the conveyance under the power of sale, and on
the vendor declining to convey in that form, instituted a suit
for specific performance, in which the vendor adduced evi-
dence showing that the above-mentioned clause was inserted
by inadvertence and that she never intended to incur the
risk of opening the foreclosure by conveying under the
power, it was held, that the misapprehension was a sufficient
defence to the enforcement of a conveyance under the power,
the court being satisfied that the agreement would not have
been entered into, if its true effect had been known.*

Sec 535. Mistake in Law. — It is a maxim of equity that
parties making a mistake in matters of fact shall not be held
bound by acts committed by them under such mistake.
When, however, they make a mistake in law they cannot
afterwards be heard to say that the contract shall on that
account be set aside.* In the maxim " ignorantia juris haud
excusat" the word '■'■jus" is used in the sense of denoting
general law, the ordinary law of the country. But when the
word '■'■jus " is used in the sense of denoting a private right,
that maxim has no application.^ The court has refused an
injunction to restrain plaintiffs in an action-at-law from
taking money out of court, which the defendants-at-law had
paid into court in the action, in ignorance that upon such
payment the plaintiffs-at-law were entitled to stay their

1 Green v. Low, 22 Beav. 625. * Mildmay v. Hungerford, 2 Vern.

2 Moxeyi). Bigwood, 8 Jur. (N. S.) 243; Marshall v. CoUett, 1 Y. & 0.
803 ; affd. 10 Jur. (N. S.) 597. Exch. 232, 238. '

3 Watson V. Marston, 4 D. M. G. ^ Cooper v. Phibbs, L. E. 2 H. L.
230. 149, 170, />cr Lobd Westbujiy.

872 STATUTE OF FRAUDS. [CHAP. XVIH.

action, and take the sum so paid.^ So where a lessor's agent
had contracted to grant a lease for seven or fourteen years,
which the lessor understood to mean a lease determinable at
the lessor's option, and alleged that the agent had acted
without authority, it was held that the lessee was entitled to
have the agreement specifically performed, and to have a
lease for fourteen years, determinable at his own option at
the end of seven years.^

But where the heir-at-law of a shareholder in a company,
the shares in which were personal estate, being ignorant of
that circumstance, and supposing himself to be liable in
respect of the ancestor's shares, executed a deed of indemnity
to the trustees of the company, it was held that he was en-
titled in equity to have his execution of the deed cancelled,
as having been obtained under a mistake of fact and law.*

Sec. 636. Fact that Vendor cannot make Title. — That a
vendor has put himself in a position where he cannot make
title is no defence against an action for specific performance.
In such action the vendee is entitled to judgment that the
vendor make reasonable efforts to reacquire the title and
convey to him. In Love v. Camp, 6 Ired. (N. C.) Eq. 209,
Peakson, J., uses this language : " If the vendee does not
know that the vendor has not the title, there is then no
reason why he should not be decreed to perform his agree-
ment, and if he is put to great inconvenience and expense to
enable him to obey the decree, it will be the consequence of
his own act, and he will not be allowed to offer such an
excuse for not doing justice." "It is a defence that the
vendor is unable to convey the title, for want of it in him-
self, after reasonable efforts to obtain it."^ The rule prevails
when the vendor, after making his contract, sells to a bona
fide purchaser without notice.^ If the conveyance after con-
tract were made to one cognizant of its existence and pro-
visions, and a person, sui juris, the reconveyance can be
coerced from the purchaser.^ The party is not by such

1 Great "Western Railway Co. v. 449 ; Fry on Spec. Perf ., § 658 ; Pom.
Crippa, 5 Hare, 91. Cont., § 203.

2 Powell V. Smith, L. R. 14 Eq. 85. « Swepson v. Johnson, supra ; Den-
8 Broughton v. Hutt, 3 De G. & J. ton v. Stewart, 1 Cox, 258.

601. « Laverty v. Mason, 33 N. Y. 658 ;

* Swepson v. Johnson, 84 N. C. Foes v. Haynes, 31 Me. 81.

SEC. 536.] SPECIFIC PEBFOEMANCB. 873

means tlirown back upon his action for compensatory-
damages for a breach of the obligation, but he has a remedy
in its specific enforcement. "While on the one hand,"
remarks Pearson, J., "the vendee is not obliged to take
compensation in damages, but may insist on having the
thing contracted for, so on the other, the vendor is not
obliged to make compensation in damages, but may insist on
the vendee's taking the thing contracted for." ^

1 Bryson v. Peak, 8 Ired. (N. C.) Eq. 310; Welbom v. Sechrist, 88 N. C. 67.

CHAPTER XIX.

PLEADING.

SECTIOK.

537. Statute should be PJead.

538. Demurrer.

Section 537. statute should be Pleaa. — Although not
required in all the States, yet correct practice requires that
if a party intends to rely upon the statute of frauds as a
defence, he should set it up, either by plea or answer, and in
most of the States he must do so, or he is treated as having
waived the defect. Especially is this the case in those States
where the contract is not declared to be void but only that
no action shall be maintained thereon.^ But this is the rule
only in that class of actions where the declaration or com-

1 Boston V. Mcholls, 47 111. 353;
Lear v. Chateau, 23 id. 39 ; Burke v.
Haley, 7 id. 614 ; Thornton v. Vaughan,

3 id. 218 ; Patrick v. Ashcroft, 20 N.
J. Eq. 198; Lawrence v. Chase, 54
Me. 196 ; Thayer v. Reeder, 45 Iowa,
172; Adams v. Patrick, 30 Vt. 516;
Montgomery v. Edwards, 46 id. 151 ;
Talbot V. Bowen; 1 A. K. Mar. (Ky.)
436; Gwynn a. McCauley, 32 Ark.
97; Newton v. Swazey, 8 N. H. 9;
Harrison i.. Harrison, 1 Md. Ch. 331 ;
Huffman v. Ackley, 34 Mo. 277;
Vaupell V. Woodward, 2 Landf. Ch.
(N. Y.) 143; Clarke v. Callaw, 46 L.
J. Q. B. Div. 53 ; Williams v. Leper, 3
Burr. 1890; Dappa u. Mayo, 1 Wm.
Saund. 380, n.; Young w. Austin, L. R.

4 C. P. 553 ; Forth v. Stanton, 1 Wm.
Saund. 226, n. ; Myers v. Morse, 15
John. (N. Y.) 425; Rann v. Hughes,
7 T. R. 350, n. That the statute of
frauds must be pleaded in order to
avail as a defence to an action, see

Rabsuhl v. Lack, 35 Mo. 316 ; Patter-
son V. Ware, 10 Ala. 444 ; Osborne v.
Endicott, 6 Cal. 149; Tarleton v.
Vietes, 6 111. 470 ; Warren v. Dickson,
27 m. 115; Lingan t;. Henderson, 1
Bland (Md.) 236; Kinzie v. Penrose,

3 111. 520 ; Thornton v. Henry, id. 218.
To the contrary, Amburger v. Marvin,

4 E. D. S. (N. Y. C. P.) 393. If a
contract is set up in a petition which
is good at common law, the defence
that it is not in writing, as required
by the statute of frauds, etc., must be
pleaded by him who would avoid it ;
and if not so pleaded, it is waived.
Gardner v. Armstr(Jng, 31 Mo. 535.
When the statute of frauds is pleaded
in defence, it is not sufficient to allege
that the account stated is barred by
the statute of frauds ; the facts relied
upon in defence, under the statute
should be set out. Dinkel v. Gundel-
finger, 35 Mo. 172.

SEC. 537.]

PLEADING.

876

plaint sets forth the contract upon which the plaintiff seeks
recovery, and has no application in actions of book account
or general assumpsit where the nature of the claim is not
set forth, and does not appear until the evidence is actually-
put in ; and in this class of cases the statute may be relied
upon in defence, although not raised by any pleadings.^ So
too it has been held that the statute may be relied upon
under the general issue which denies that any such contract as
is set forth in the declaration was ever made, because in such
a case the plaintiff must, in cases where the statute requires
it, produce a contract in writing, or show such a special state
of facts as takes the case out of the statute if the contract
is by parol,^ and the same rule prevails as to an answer to a
bill in equity which denies the making of such a contract as
is set forth in the bill,^ unless the bill also sets up facts which,
if true, avoid the statute, in Avhich case, as well in the first
instance as when the answer sets up the statute in defence,
the answer must also traverse such allegations.*

1 Durant v, Rogers, 71 111. 121 ;
Hunter v. Randall, 61 Me. 423; Boston
Duck Co. u. Dewey, 6 Gray (Mass.)
446; Duffy v. O'Donovan, 46 N. Y.
226. In Alger v. Johnson, 4 Hun
(N. Y.) 412, it was held that it is only
where a complaint sets forth a con-
tract, and the answer admits that
allegation, that the plaintiff must
plead the statute of frauds. Beard
V. Converse, 84 111. 512.

2 Hotehkiss „. Ladd, 36 Vt. 593.
In an action for goods sold and de-
liTcred to the defendant, the defendant
may prove that the goods were sold
and delivered to a third person, and
that the defendant's promise to pay
for them was merely collateral, with-
out pleading the statute of frauds.
Boston Duck Co. v. Dewey, 6 Gray
(Mass.) 446. Buttermere v. Hayes, 5
M. & W. 456; Reade v. Lamb, 6
Exchq. 130 ; Elliott v. Thomas, 3 M.
& W. ] 70 ; Johnson v. Dodgson, 2 M.
& "W. 653. But now, in England,
under the new rules of pleading, the
statute must be plead specially.
When the defendant in his answer
denies the agreement or contract

alleged in the bill, it is not necessary
for him to insist in his answer upon
the statute of frauds. Trapnall v.
Brown, 19 Ark. 39 ; Wynn v. Garland,
19 id. 23; Hacker v. Gentry, 3 Met.
(Ky.) 463.

' Cozine v. Graham, 2 Paige Ch.
(N. y.) 181; Gwins v. Calder, 2
Dessau (S. C.) Eq. 171 ; Small v.
Owings, 1 Md. Ch. 363 ; Wynn v. Gar-
land, 19 Ark. 23 ; Trapnall v. Brown,
19 Ark. 39 ; Fowler v. Lewis, 3 A. K.
Mar. (Ky.) 343; Kay v. Curd, 6 B.
Mon. (Ky.) 100; Myers v. Morse, 15
John. (N. Y.) 425; Ontario Bank v.
Root, 3 Paige Ch. (N. Y.) 478;
Chicago &c. Coal Co. v. Liddell, 69
lU. 639.

1 Meach v. Stone, 1 D. Chip. (Vt.)
182; Hall v. Hall, 1 Gitt. (Md.) 383;
Chambers i. Massey, 7 Ired. (N. C.)
Eq. 286 ; Cooth v. Jackson, 6 Ves. 12 ;
Taylor v. Beech, 1 Ves. Sr. 297;
Rowe V. Leed, 15 Ves. 378 ; Bowers v.
Cator, 4 id. 91 ; Tarleton v. Vietes, 6
111. 470; Champlin <;. Parrish, 11
Paige Ch. (N. Y.) 405; Miller v. Cot-
ten, 5 Ga. 341; Harris v. Knicker-
bocker, 5 Wend. (N. Y.) 638.

876

STATUTE OF FKATJDS.

[chap. XIX.

Sec. 538. Demurrer. — If the declaration, complaint, or
bill, expressly states that the contract was made by parol, as
" entered into a parol contract with the plaintiff to sell and
deliver to him ... at and for the price of five hundred dol-
lars," advantage may be taken of the statute, by demurrer,
because upon its face it appears that no cause of action
exists ; ^ but if the declaration, complaint, or bill, simply sets
forth a contract, which if by parol would be within the
statute, but omits to state whether it is by parol or in writ-
ing, the statute must be plead, and cannot be availed of by
demurrers.^ In England, prior to the Supreme Court of

1 Lawrence u. Chase, 54 Me. 196 ;
Thomas v. Hammond, 47 Tex. 42;
Sanborn v. Chamberliu, 101 Mass. 417 ;
Richards v. Richards, 9 Gray (Mass.)
313; Randall v. Howard, 2 Black
(U. S.) 585; Price v. Weaver, 13 Gray
(Mass.) 272; ICibby v. Chetwood, 4
T. B. Mon. (Ky.) 91.

2 Burkham v. Mastin, 54 Ala. 122 ;
Dayton v. Williams, 2 Doug. (Mich.)
31; Elliott V. Jenness, 111 Mass. 29;
Walker v. Richards, 39 N. H. 259;
Walsh V. Kattenburgh, 8 Minn. 127;
Ecker v. Bohn, 45 Md. 278 ; Brown v.
Barnes, 6 Ala. 694 ; Cranston v. Smith,
6 R. I. 231 ; MuUaly v. Holden, 123
Mass. 583; Cross v. Everts, 28 Tex.
523 ; Carraway v. Anderson, 1 Humph.
(Tenn.) 61; Perrine v. Leachman, 10
Ala. 140 ; Richards v. Richards, 9
Gray (Mass.) 313; Price v. Weaver,
13 id. 272. But in those States where
the plaintiff is required to set forth
the fact whether the contract is in
writing or not, a demurrer would be
proper. Babcock v. Meek, 45 Iowa,
157. In Langford v. Preeman, 60
Ind. 46, it was held that, where a con-
tract is not alleged to be in writing, it
will be presumed to be by parol ; see
also Walsh v. Kattenbaugh, 8 Minn.
127. But in most of the States, if the
contract is not stated to be in writing
it sets forth a good cause of action,
until the contrary appears from the
proof. Price v. Weaver, ante ; Mul-
laly V. Holden, 123 Mass. 583 ; Elliott
V. Jenness, 111 id. 201. The rule
generally adopted is that, in declaring

upon a contract within the statute of
frauds, compliance with the statute
need not be alleged. Robinson v.
Tipton, 31 Ala. 595 ; Miller v. Upton,
6 Ind. 53 ; Baker v. Jameson, 2 J. J.
Mar. (Ky.) 547. In Cross v. Everts,
28 Tex. 523, it was held that a con-
tract for the sale of lands declared
upon generally will be presumed to
be in writing, and if the defendant
would avail himself of the statute as
a defence, he must plead it specially.
Gist V. Eubank, 29 Mo. 248 ; Daggett
V. Patterson, 18 Tex. 158; Lear v.
Choteau, 23 111. 39; Yourt v. Hopkins,
24 id. 326. The rule of the common
law, that it is not necessary, in de-
claring upon a contract which the
statute of frauds requires to be in
writing, to allege in terms that it was
reduced to writing, is changed by the
Code. Under the Code, if the con-
tract is in writing, a copy of it must
be filed with the complaint. If, there-
fore, the contract sued on is not
alleged to be in vrriting, and no copy
is filed with the complaint, the pre-
sumption arises that the contract is
not a written one. If, then, the con-
tract is such as is required by the
statute of frauds to'be in writing, the
objection may be taken by demurrer.
If, however, the contract is one which
may or may not be valid without a
writing, the demurrer will not be sus-
tained. Thus, as a contract for the
sale of goods, although not reduced
to writing, may have been rendered
valid by a part payment or by delivery,

SEC. 538.] PLEADING. 877

Judicature Act,^ the tendency was to hold that unless the
contract was stated in the bill to be in writing to permit
advantage to be taken of the statute by demurrers.^ But
now, the defence of the statute must be raised by pleading,
and cannot be availed of by demuiTer,* and such also is the
^ule in tills country unless the contract is expressly stated
to be by parol, and no further facts are stated taking it out
of the statute.* The statute does not alter the rules of
pleading. If the complainant, in his bill, states the making
of a contract, without alleging that it was by parol, the court
will presume that it was in writing, etc., if necessary ; and
defendant cannot demur. Where the agreement stated in
the bill is denied by the answer of the defendant, the com-
plainant must prove such an agreement as will be valid within
the statute of frauds ; although nothing is said in the answer
on that subject. But if the making of the agreement is
admitted by the answer, the defendant, in such answer, must
insist that it was not in writing, and therefore not binding
upon him.* The mere fact that the defendant admits the
making of the contract in his answer will not prevent him
from insisting upon the benefit of the statute.® The plea of

a complaint upon such a contract will verbal agreement is still an agree-

be sustained on demurrer, notwith- ment. You cannot, from a mere alle-

standing it does not aver that the gation of an agreement, infer or

contract was. reduced to writing. As presume that it was in writing; and

the statute operates as a rule of evi- as the fact that it was in writing is

dence, and not upon the pleadings in neither expressly alleged in the bill,

this respect, it is not necessary to arer nor necessarily to be inferred or pre-

in the complaint the receipt by the sumed from what the bill does allege,

purchaser of a part of the property, the mere allegation of an agreement

or the giving by him of something in amounts to nothing more than the

earnest or in part payment. Harper allegation of a verbal agreement, and

V, Miller, 27 Ind. 277. When it ap- then the defence was onli/ demurrer."

pears from the petition that the Jerdera v. Bright, 2 John. & H. 325 ;

promise is within the statute of Whitchurch v. Bevis, 2 Bro. C. C. 566.

frauds, the pleading of the statute But if a written agreement is alleged,

in avoidance is not waived by failure the statute must be plead. Spurrier

to answer or demur in the court be- u. Pitzgerald, 6 Ves. 555.

low, nor can judgment be rendered ^ Cotting i<. King, 5 Ch. Div. 660 ;

against the defendant in the court Lawle v. Lapham, .37 L. T. N. S. 309.

above. Smith o. Tah, 15 B. Mon. * Middlesex Co. v. Osgood, 4 Gray

(Ky.) 443. (Mass.) 447.

1 36 & 37 Vict. Chap. 66, and sub- ' Lewin v. Stewart, 10 How. (N.
sequent amendments thereto. Y.) Pr. 509; Coquillard v. Suydam, 8

2 Daniel's Ch. Prac. 306. In Bark- Blackf. (Ind.) 24; "Whiting v. Gould,
worth V. Young, 26 L. J. N. S. Ch. 2 Wis. 552,

156, KiNDERSLET, V. C, said: "A " Ashmore v. Evans, 11 N. J. Eq.

878 STATUTE OP PEAUDS. [CHAP. XIX.

the statute is a personal privilege which the party may waive,
and another cannot plead it for him, or compel him to plead
it, as, if he chooses to do so, a party may voluntarily perform
the contract.! It will not be advisable to discuss here the
method of pleading the statute, or the allegations necessary
to be set forth in the plea or answer, as those are mattei;^
belonging more properly to works upon pleadings. It is suf-
ficient to say that the plea or answer should clearly set forth
the fact, that the ground of action set forth by the plaintiff
is within the statute, and the facts that make it so, and if the
complaint or bill sets forth any facts which tend to take the
case out of the statute, these also should be traversed.^

151; Thompson v. Jameson, 1 Cr. Edwards, 4 Ves. 23; Whitchiirch v,

(U. S. C. C.) 296; Thompson v. Ladd, Bevis, 2 Bro. C. C. 559.
Pit. (U.S. C. C.)380; Winn K.Albert, ' McCoy v. Williams, 6 111. 584;

2 Md, Ch. 169; Stearns v. Hubbard, 8 Rickand v. Cunningham, 10 Neb. 417;

Me. 320; Barnes v. League, 3 Jones Chicago Dock Co. v. Kinzie, 49 111.

(N. C.) Eq. 277; Argenbright v. 289; Crawford v. Woods, 6 Bush.

Campbell, 3 H. & M. (Va.) 144; Hoi- (Ky.) 200; Godden k. Pierson, 42 Ala.

lingshead v. McKenzie, 8 Ga. 457 ; 370 ; Aicarde v. Craig, 42 id. 311.
Luckett V. Williamson, 37 Mo. 388; = Taylor v. Beech, 1 Ves. Sr. 297;

Burt V. Wilson, 28 Cal. 632 ; Walters Chambers v. Massey, 7 Ired. (N. C.)

V. Morgan, 2 Cox, 369; Bladgen v. Eq. 286; Hall v. Hall, 1 Gitt. (Md.)

Bradbear, 12 Ves. 466 ; Kine v. Balfe, 383 ; Miller v. Gotten, 5 Ga. 341 ;

2 B & B. 343; Whitbred v. Brack- Champlin v. Parrish, 11 Paige Ch.

hurst, 1 Bro. C. C. 416; Moore v. (N. Y.) 405.

APPENDIX.

STATUTE 29 CAR. II. CAP. 3. 1689.
An Act for Prevention of Frauds and Perjuries.

Foe prevention of many fraudulent practices which are com-
monly endeavored to be upheld by perjury and subornation of
perjury be it enacted by the King's most excellent Majest}-, by and
with the advice and consent of the Lords, spiritual and temporal,
and the Commons in this present Parliament assembled, and by
the authoritj- of the same, that from and after the four-and-twen-
tieth day of June, which shall be in the year of our Lord one thou-
sand six hundred seventy and seven, all leases, estates, interests
of freehold, or terms of years, or any uncertain interest of, in, to
or out of, any messuages, manors, lands, tenements or heredita-
ments, made or created by livery and seisin only, or by parole and
not put in writing and signed by the parties so making or creating
the same, or their agents thereunto lawfully authorized by writing,
shall have the force and effect of leases or estates at will onlj-, and
shall not, either in law or equity, be deemed or taken to have any
other or greater force or effect, any consideration for making any
such parol, leases or estates, or any former law or usage to the
contrary notwithstanding.

n. Except, nevertheless, all leases not exceeding the term of
three years from the making whereof, whereupon the rent reserved
to the landlord during such term shall amount unto two third parts
at the least of the full improved value of the thing demised.

III. And, moreover, that no leases, estates or interests, either
of freehold or terms of years, or any uncertain interest not being
copyhold or customary interest of, in, to or out of, any messuages,
manors, lands, tenements or hereditaments, shall, at any time
after the said four-and-twentieth day of June, be assigned, granted
or surrendered, unless it be by deed or note in writing signed by
the party so assigning, granting or surrendering the same, or then-
agents thereunto lawfully authorized by writing or by act and
operation of law.

880 STATUTE OP PKAUDS.

IV. And be it further enacted by the authority aforesaid that
from and after the said four-and-twentieth day of June no action
shall be brought whereby to charge any executor or administrator
upon any special promise to answer damages out of his own estate,
[2] or whereby to charge the defendant upon anj' special promise
to answer for the debt, default or miscarriages of another person,
[3] or to charge any person upon any agreement made upon con-
sideration of marriage, [4] or upon any contract or sale of lands,
tenements or hereditaments, or any interest in or concerning them,
[5] or upon any agreement that is not to be performed within the
space of one j^ear from the making thereof, [6] unless the agree-
ment upon which such action shall be brought, or some memoran-
dum or note thereof shall be in writing and signed by the party to
be charged therewith, or some other person thereunto by him law-
fully authorized.

VII. And be it further enacted by the authority aforesaid that
from and after the said four-and-twentieth day of June declara-
tions or creations of trusts or confidences of any lands, tenements
or hereditaments shall be manifested and proved by some writing
signed by the party who is by law enabled to declare such trust,
or by his last will in writing, or else they shall be utterly void and
of none effect.

VIII. Provided always that where any conveyance shall be
made of lands or tenements, by which a trust or confidence' shall
or may arise or result by the implication or construction of law or
be transferred or extinguished by an act or operation of law, then
and in every such case such trust or confidence shall be of the like
force and effect as the same would have been if this statute had
not been made, anything hereinbefore contained to the contrary
notwithstanding.

IX. And be it further enacted that all grants and assignments
of any trust or confidence shall likewise be in writing signed by
the party granting or assigning the same [or] by such last will or
devise, or else shall likewise be utterly void and of none effect.

XVI. And be it further enacted by the authoi-ity aforesaid that
from and after the said four-and-twentieth daj' of June no contract
for the sale of any goods, wares or merchandises, 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 of payment, or that some note or memorandum in writ-
ing of the said bargain be made and signed by the parties to be
charged by such contract or their agents thereunto lawfully author-
ized.

APPENDIX. 881

STATUTE 9 GEO. IV. Cap. 14.
Lord Tenterden's Act.

V. And be it further enacted, that no action shall be main-
tained whereby to eh.arge anj' person upon anj' promise made after
full age to pay any debt contracted during infancj', or upon any
ratification after full age of any promise or simple contract made
during infancy, unless such profnise or ratification shall be made
by some writing signed by the party to be charged therewith.

VI. And be it further enacted, that no action shall be brought
wherebj' to charge any person upon or by reason of any represen-
tation or assurance made or given concerning or relating to the
character, conduct, credit, ability, trade, or dealings of any other
person, to the intent or purpose that such other person may obtain
credit, money, or goods upon, unless such representation or assur-
ance be made in writing, signed by the party to be charged there-
with.

VII. " And whereas, by an act passed in England in the twentj--
ninth j-ear of the reign of King Charles the Second, entitled An
Act for the Prevention of Frauds and Perjuries., it is, among other
things, enacted that from and after the twentj'-fourth daj- of June,
one thousand six hundred and seventy-seven, no contract for the
sale of any goods, wares and merchandises, 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 aetuall}' receive
the same, or give something in earnest to bind the bargain, or in
part of 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 " :
and "whereas a similar enactment is contained in an act passed
in Ireland in the seventh 3-ear of the reign of King William the
Third : and whereas it has been held that the said recited enact-
ments do not extend to certain executory contracts for the sale of
goods, which nevertheless are within the mischief thereby intended
to be remedied ; and it is expedient to extend the said enactments
to such executory contracts " ; be it enacted, that the said enact-
ments shall extend to all contracts for the sale of goods of the
value of ten pounds sterling and upwards, notwithstanding the
goods may be intended to be delivered at some future time, or
may not at the time of such contract be actually made, procured,
or provided, or fit or ready for delivery, or some act may be requi-
site for the making or completing thereof, or rendering, the same
fit for delivery.

882 STATUTE OF PKAUDS.

X. And be it further enacted that this act shall commence and
take effect on the first day of January, one thousand eight hundred
and twenty-nine.

MERCANTILE LAW AMENDMENT ACT, 19 & 20 Vict. Cap. 97.

III. No special promise to be made by any person after the
passing of this act to answer for the debt, default, or miscarriage
of another person, being in writing, and signed by the party to be
charged therewith, or some other person by him thereunto law-
fully authorized, shall be deemed invalid to support an action,
suit, or other proceeding, to charge the person by whom such
promise shall have been made, by reason only that the considera-
tion for such promise does not appear in writing, or by necessary
inference from a written document.

SUPREME COURT OF JUDICATURE ACT AMENDMENT, 1873.
38 §• 39 Vict. Ch. 77.

23. "When a contract is alleged in any pleading, a bare denial
of the contract by the opposite , party shall be construed onl}- as
a denial of the making of the contract, in fact, and not of its legal-
ity or its sufficiency in law, whether with reference to the statute
of frauds or otherwise.

ALABAMA. Revised Code, 1876.

§ 2199. No trust concerning lands, except such as results by
implication, or construction of law, or which may be transferred
or extinguished by operation of law, can be created, unless by
instrument in writing, signed by the partj' creating or declaring
the same, or his agent or attorney, lawfully authorized thereto in
writing.

§ 2200. No such trusts, whether implied by law or created or
declared by the parties, can defeat the title of creditors, or pur-
chasers for a valuable consideration, without notice.

§ 2121. In the following cases every agreement is void, unless
such agreement, or some note or memorandum thereof, expressing
the consideration, is in writing, tind subscribed b}' the party to be
charged therewith, or some other person by him thereunto law-
fully authorized in writing :

1. Every agreement which, by its terms, is not to be performed
within one year from the making thereof.

2. Every special promise, by an executor or administrator, to
answer damaaies out of his own estate.

APPENDIX.

3. Every special promise to answer for the debt, default, or
miscarriage of anotlier.

4. Every agreement, promise, or undertaking, made upon con-
sideration of marriage, except mutual promises to marry.

5. Every eoatraet for the sale of lands, tenements, or heredita-
ments, or of any interest therein, except leases for a term not
longer than one year, unless the purchase money, or a portion
thereof, be paid, and the purchaser be put in possession of the
land by the seller.

§ 2122. When lands, tenements, or hereditaments are sold or
leased at public auction, and the auctioneer, hia clerk or agent,
makes a memorandum of the property, and price thereof at which
it is sold or leased, the terms of sale, the name of the purchaser
or lessee, and the name of the person on whose account the sale
or lease is made, such memorandum is a note of the contract,
within the meaning of the preceding section.

§ 2123. No action can be maintained to charge any person, by
reason of any representation or assurance made, concerning the
character, conduct, ability, trade, or dealings of any other person,
when such action is brought by the person to whom such represen-
tation or assurance was made, unless the same is in writing, signed
by the party sought to be charged.

§ 2948. A seal is not necessary to convey the legal title to land,
to enable the grantee to sue at law. Any instrument in writing,
signed by the grantor, or his agent having a written authority, is
effectual to transfer the legal title to the grantee, if such was the
intention of the grantor, to be collected from the entire instru-
ment.

§ 2145. Conveyances for the alienation of lands must be written
or printed, on parchment or paper, and must be signed at their
foot by the contracting party, or his agent having a written au-
thority ; or if he is not able to sign his name, then his name must
be written for him, with the words "his mark" written against
the same or over it ; the execution of such conveyance must be
attested by one, or where the part}' cannot write, by two witnesses
who are able to write, and who must write their names as wit-
nesses.

ARKANSAS. Gantt's Digest, 1874.
Chaptee 72.

Sec. 2951. No action shall be brought :

First. To charge any executor or administrator, upon any
special promise, to answer for any debt or damage out of his own
estate.

884 STATUTE OF FBATJDS.

Second. To charge any person, upon any special promise, to
answer for the debt, default or miscarriage of another.

Third. I'd charge any person upon an agreement made in con-
sideration of marriage.

Fourth. To charge any person upon any contract for the sale of
lands, tenements or hereditaments, or any interest in or concern-
ing them.

Fifth. To charge any person upon any lease of lands, tene-
ments or hereditaments for a longer terra than one year.

Sixth. To charge any person upon any contract, promise or
agreement that is not to be performed within one year from the
making thereof, unless the agreement, promise or contract upon
which such action shall be brought, or some memorandum or note
thereof, shall be made in writing, and signed by the party to be
charged therewith, or signed by some other person by him there-
unto properly authorized.

Sec. 2952. No contract for the sale of goods, wares and mer-
chandise, for the price of thirty dollars or upward, shall be binding
on the parties unless, first, there be some note or memorandum,
signed by the party to be charged ; or, second, the purchaser shall
accept a part of the goods so sold, and actually receive the same ;
or, third, shall give something in earnest to bind the bargain, or
in part payment thereof.

Sec. 2960. All leases, estates, interest of freeholds, or lease of
years or any uncertain interest of, in, to or out of any messuages,
lands or tenements, made or created by liverj' and seizin only, or
by parol, and not put in writing and signed by the parties so
making or creating the same, or their agents lawfully authorized
by writing, shall have the force and effect of leases or estates at
will only, and shall not, either in law or equity, be deemed or
taken to have any other or greater effect or force than as leases
not exceeding the term of one jear.

Sec. 2961. No leases, estates or interests, either of freehold or
of term of years, in, to or out of any messuages, lands or tene-
ments, except leases for a term not exceeding one year, shall at
any time hereafter be assigned, granted or surrendered, unless it
be by deed or notice in writing, signed by the party so assigning,
granting or surrendering the same, or by their agents lawfully
authorized bj- writing, or by operation of law.

Sec. 2962. All declarations or creations of trusts or confidences
of any lands or tenements shall be manifested and proven by some
writing signed by the party who is or shall be by law enabled to
declare such trusts, or by his last will in writing, or else they shall

APPENDIX. 885

be void ; and all grants or assignments of any trusts or confidences
shall be in writing, signed by the part}- granting or assigning the
same, or bj- his last will in writing, or else they shall be void.

Sec. 2963. When any conveyance shall be made of anj- lands
or tenements, by which a trust or confi;dence may arise or result
b}- implication of law, such trust or confidence shall not be affected
by anything contained in this act.

CALIFORNIA. Civil Code. 1875.

Sec. 852. No trust in relation to real propertj- is valid unless
created or declared :

1. By a written instrument, subscribed by the trustee, or by his
agent thereto authorized by writing ;

2. By the instrument under which the trustee claims the estate
affected ; or

3. By operation of law.

Sec. 853. When a transfer of real property is made to one per-
son, and the consideration therefor is paid by or for anotlier, a
trust is presumed to result in favor of the person by or for whom
such payment is made.

Sec. 856. No implied or resulting trust can prejudice the rights
of a purchaser or incumbrancer of real property for value and
without notice of the trust.

Sec. 1058. Redelivering a grant of real property to the grantor,
or cancelling it, does not operate to re-transfer the title.

Sec. 1091. An estate in real property, other than an estate at
will or for a term not exceeding one j'ear, can be transferred onlj-
by operation of law, or by an instrument in writing, subscribed by
the party disposing of the same, or by his agent thereunto author-
ized by writing.

Sec. 1095. When an attorney in fact executes an instrument
transferring an estate in real property, he must subscribe the name
of his principal to it, and his own name as attorney in fact.

Sec 1624. The following contracts are invalid, unless the same,
or some note or memorandum thereof, be in writing, and sub-
scribed by the party to be charged, or by his agent.

1. An agreement that by its terms is not to be performed within
a year from the making thereof ;

2. A special promise to answer for the debt, default or mis-
carriage of another, except in the cases provided for in section
twenty-seven hundred and ninety-four of this code ;

[Sec. 2794. A promise to answer for the obligation of another,
"in any of tlie following cases, is deemed an original obligation
of the promisor, and need not be in writing :

886 STATUTE OF FRAUDS.

1. Where the promise is made by one who has received property
of another upon an undertaking to apply it pursuant to such a
promise ; or by one who has received a discharge from an obliga-
tion in whole or in part, in consideration of such promise ;

2. Whei-e the creditor parts with value, or enters into an obli-
gation, in consideration of the obligation, in respect to which the
promise is made, in terms or under circumstances such as to ren-
der the party making the promise the principal debtor, and the
person in whose behalf it is made his suretj' ;

3. Where the promise, being for an antecedent obligation of
another, is made upon the consideration that the party receiving
it cancels the antecedent 'obligation, accepting the new promise as
a substitute therefor ; or upon the consideration that the party
receiving it releases the propertj- of another from a levy, or his
person from imprisonment under an execution on a judgment ob-
tained upon the antecedent obligation ; or upon a consideration
beneficial to the promisor, whether moving from either party to the
antecedent obligation, or from another person ;

4. Where a factor undertakes, for a commission, to sell mer-
chandise and guaranty the sale ;

5. Where the holder of an instrument for the payment of money,
upon which a third person is or may become liable to him, trans-
fers it in payment of a precedent debt of his own, or for a new
consideration, and in connection with such transfer, enters into a
promise respecting such instrument.]

3. An agreement made upon consideration of marriage, other
than a mutual promise to marry ;

4. An agreement for the sale of goods, chattels, or things
in action, at a price not less than two hundred dollars, un-
less the buyer accept or receive part of such goods and chat-
tels, or the evidences, or some of them, of such things in action,
or pay at the time some part of the purchase-money ; but when
a sale is made bj' auction, an entry by the auctioneer in his
sale-book, at the time of the sale, of the kind of property sold, the
terms of sale, the price, and the names of the purchaser and person
on whose account the sale is made, is a sufficient memorandum ;

5. An agreement for the leasing for a longer period than one
year, or for the sale of real property, or of an mterest therein ;
and such agreement, if made by an agent of the party sought to be
charged, is invalid, unless the authority of the agent be in writing,
subscribed by the party sought to be charged.

APPENDIX. 887

COLORADO. Revised Statutes, 1868.

Statute substantially the same as Sub-Division 1 and 2 of Section
1624, and Sub-Division 4 of same Section of California Statute.

See page 339, Sections 12 and 13, except that, as to sales, the
statute applies where the price, etc., is fifty dollars or more.

CONNECTICUT. Revised Statutes, 1875.

Title 18. Chapter 6.

Sec. 5. All conveyances of lands shall be in writing, sealed by
the grantor, and subscribed with his own hand, or with his mark
with his name thereto annexed, or bj- his attorney authorized for
that purpose by a power executed and acknowledged in the man-
ner provided for conveyances, and attested bj- two witnesses with
their own hands, and acknowledged by the grantor or by such
attorney to be his free act and deed, if in this State, before a
judge of a court of record of this State or of the United States,
justice of the peace, Commissionef of the School Fund, Commis-
sioner of the Superior Court, notarj- public, either with or without
his official seal, town clerk, or assistant town clerk ; and if in any
other State or Territory of the United States, before a commis-
sioner appointed by the Governor of this State and residing therein,
or anj'^ officer authorized to take the acknowledgment of deeds in
such State or Territory ; and if in a foreign country, before any
consul of the United States, or notar}- public, or justice of the
peace, in sucli foreign country ; but no officer shall have power to
take such acknowledgment, except within the territorial limits in
which he may perform the proper duties of his office.

Title 19. Chapter 12.

Sec. 40. No civil action shall be maintained upon any agree-
ment, whereby to charge any executor or administrator, upon a
special promise, to answer damages out of his own estate, or anj-
person .upon any special promise, to answer for the debt, default,
or miscarriage of another ; or upon any agreement made upon
consideration of marriage ; or upon anj- agreement for the sale of
real estate, or any interest in or concerning it ; or upon any agree-
ment that is not to be performed within one year from the making
thereof, unless such agreement, or some memorandum thereof, be
made in writing, and signed by the party to be charged therewith,
or his agent ; but this section shall not apply to parol agreements
for hiring or leasing real estate, or any interest therein, for one

888 STATUTE OF FRAUDS.

year or less, in pursuance of which the leased premises have been,
or shall be, actually occupied by the lessee or any person claiming
under him during any part of such term.

Sec. 41. No agreement for the sale of any personal property
for fifty dollars or upwards, shall be good, unless the buyer shall
accept and actually receive part of the property sold, or give
something to bind the bargain, or in part-payment, or unless some
memorandum in writing of such agreement shall be signed by the
parties to be charged therewith or their agents.

DAKOTA.

Statute substantially same as in California.

DELAWARE. Revised Code, 1852.
Chapter 63.

Sec. 5. All promises and assumptions, whereby any person
shall undertake to answer, or pay, for the default, debt, or mis-
carriage, of another, anj- sum under five dollars, being proved by
the oath, or affirmation, of the persons to whom such promise and
assumption shall be made, are good and available in law to charge
the party making such promise or assumption.

Sec. 6. No action shall be brought, whereby to charge anj-
executor, or administrator, upon any special promise to answer
damages out of his own estate, or whereby to charge any-defend-
ant, upon any special promise, to answer for the debt, default, or
miscarriage of another person, of the value of five dollars, and
not exceeding twenty-five dollars, unless such promise and assump-
tion shall be proved by the oath or affirmation, of one credible
witness, or some memorandum, or note in writing, shall be signed
by the party to be charged therewith.

Sec. 7. No action shall be brought whereby to chai'ge any per-
son upon any agreement made upon consideration of marriage, or
upon any contract or sale of lands, tenemen.ts, or hereditaments,
or any interest in, or concerning them, or upon anj' agreement
that is not to be performed within the space of one j-ear from the
making thereof, or to charge any person whereby to answer for
the debt, default, or miscarriage, of another in any sum of the
value of twenty-five dollars and upwards, unless the same shall be
reduced to writing, or some memorandum, or note thereof, shall
be signed by the party to be charged therewith, or some other
person thereunto by him lawfully authorized, except for goods,
wares, and merchandise, sold and delivered, and other matters
which are properly chargeable in an account, in which case the

APPENDIX. 889

oath or affirmation of the plaintiff, together with a book regularly
and fairly kept, shall be allowed to be given in evidence, in order
to charge the defendant with the sums therein contained.

Chapter 120.

Sec. 3. No demise, except it be by deed, shall be effectual for
a longer term than one year.

FLORIDA. Digest op Laws, 1822-1881.
Chapter 32, p. 214.

Sec. 1. No estate or interest of freehold, or for a term of years
of more than two years, or any uncertain interest of, in, or out
of any messuages, lands, tenements, or hereditaments, shall be
created, made, granted, conveyed, transferred, or released, in any
other manner than by deed in writing, sealed and delivered in the
presence of at least two witnesses, by the party or parties creating,
making, granting, conveying, transferring, or releasing such
estate, interest, or term of years, or by his, her, or their agent
thereunto lawfully authorized, unless by last will and testament,
or other testamentary appointment duly made according to law ;
and that from and after the day and year aforesaid, no estate or
interest, either of freehold or term of years, other than terms of
years for not more than two years, or any uncertain interest of,
in, to, or out of any lands, tenements, messuages, or heredita-
ments, shall be assigned or surrendered, unless it be by deed sealed
and delivered in the presence of at least two witnesses, by the
party or parties so assigning or surrendering, or by his, her, or
their agent thereto lawfully authorized, or by the act and opera-
tion of law.

2. All declarations and creations of trust and confidence of, or
in, any messuages, lands, tenements, or hereditaments, shall be
manifested and proved by some writing signed by the party
authorized by law to declare or create such trust or confidence, or
by his or her last will and testament, or else they shall be utterly
void and of none effect: Provided, always, that where any con-
veyance shall be made of any lands, messuages, or tenements, by
which a trust or confidence shall, or may arise, or result, by the
implication or construction of law, or be transferred or extinguished
by the act or operation of law, then, and in every such case, such
trust or confidence shall be of the like force and effect as the same
would have been if this statute had not been made, anything
herein contained to the contrary thereof in any wise notwith-
standing.

890 STATITTB OP FBATJDS.

3. All grants, conveyances, or assignments of trust or conii-
dence of or in anj' lands, tenements, or hereditaments, or of any
estate or interest therein, shall be by deed sealed and delivered in
the presence of two witnesses, by the party granting, conveying,
or assigning the same, or by his or her attorney or agent there-
unto lawfully authorized, or by last will and testament duly made
and executed, or else the same shall be void and of none effect.

Chapter 29, p. 208.

Sec. 1. No action shall be brought whereby to charge any exec-
utor or administrator upon any special promise to answer, or pay
any debt or damages out of his own estate, or whereby to charge
the defendant upon any special promise to answer for the debt,
default, or miscarriage of another person, or to charge anj^ person
upon any agreement made upon consideration of marriage, or
upon any contract for the sale of lands, tenements, or heredita-
ments, or of any uncertain interest in, or concerning them, or for
anjr lease thereof for a longer term than one year, or upon any
agreement that is not to be performed within the space of one
year from the making thereof, unless the agreement or promise
upon which such action shall be brought, or some note or memo-
randum thereof, shall be in writing, and signed by the party to be
charged therewith, or by some other person by him thereunto law-
fully authorized.

Sec. 2. That no contract for the sale of any personal property,
goods, wares, or merchandise, shall be good unless the buyer shall
accept the goods or part of them so sold, and actually receive the
same or give something in earnest to bind the bargain, or in part-
pa3'ment, or some note or memorandum in writing of the said
bargain or contract be made, and signed by the parties to be
charged by such contract, or their agents thereunto lawfully
authorized.

GEORGIA. Code, 1882. Part 2, Tit. 3, Chap. 2, Art. 1.

§ 1950. To make the following obligations binding on the
promisor, the promise must be in writing, signed by the party to be
charged therewith, or by some person by him lawfully authorized,
viz. :

First. A promise by an executor, administrator, guardian, or
trustee, to answer damages out of his own estate.

Second* A promise to answer for the debt, default, or miscar-
riage of another.

APPENDIX. 891

Third. Any agreement upon consideration of marriage except
marriiage articles as hereinbefore provided .

Fourth. Any contract for the sale of lauds or any interest in or
concerning them.

Fifth. Any agreement (except contracts with overseers) that is
not to be performed within one year from the making thereof.

Sixth. Any promise to waive a debt barred by the acts of limi-
tation.

Seventh. Any contract for the sale of goods, wares, and mer-
chandise in existence or not in esse to the amount of fifty dollars
or more, except the buyer shall accept part of the goods sold, and
actually receive the same or give something in earnest to bind the
bargain or in part-payment.

Eighth. An acceptance of a bill of exchange.

§ 1951. The foregoing section does not extend to the following
cases : —

First. When the contract has been fully executed.

Second. When there has been performance on one side accepted
bj- the other in accordance with the contract.

Third. Where there has been such part performance of the con-
tract as would render it a fraud of the party refusing to comply,
if the court did not compel a performance.

ILLINOIS. Revised Statutes, 1883.
Chapter 59.

§ 1. No action shall be brought, wherebj' to charge any exec-
utor or administrator upon anj' special promise to answer any
debt or damages out of his own estate, or whereby to charge the
defendant upon any special 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
agreement that is not to be performed within the space of one
year from the making thereof, unless the promise or 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.

§ 2. No action shall be brought to charge any person upon any
contract for the sale of lands, tenements or hereditaments, or any
interest in or concerning them, for a longer term than one year,
unless such contract or some memorandum or note thereof shall
be in writing, and signed by the party to be charged therewith, or

892 STATUTE OP FKAUDS.

some other person thereunto by him lawfuUj- authorized in writ-
ing, signed by such party. This section shall not apply to sales
upon execution or by any officer or person pursuant to a decree or
order of any court of record in this State.

§ 3. The consideration of any such promise or agreement need
not be set forth or expressed in the writing, but may be proved or
disproved by parol or other 'legal evidence.

§ 9. All declarations or creations of trusts or confidences of any
lands, tenements or hereditaments, shall be manifested and proved
by some writing signed by the party who is by law enabled to
declare such trust, or by his last will in writing ; or else they shall
be utterly void and of no effect: Provided, that resulting trust
or trusts created by construction, implication or operation of law,
need not be in writing, and the same may be proved by parol.

INDIANA. Revised Statutes, 1881.
Chapter 65.

Sec. 4904. No action shall be brought in any of the following
cases : —

First. To charge an executor or administrator, upon any special
promise, to answer damages out of his own estate ; or

Second. To charge any person, upon anj- special promise, to an-
swer for the debt, default, or miscarriage of another ; or

Third. To charge any person upon any agreement or promise
made in consideration of marriage ; or

Fourth. Upon any contract for the sale of lands ; or

Fifth. Upon any agi-eement that is not to be performed within
one year from the making thereof: unless the promise, contract, or
agreement, upon which such action shall be brought, or some memo-
randum or note thereof, shall be in writing and signed by the party
to be charged therewith, or by some person thereunto by him law-
fully authorized ; excepting, however, leases not exceeding the
term of three j-ears.

Sec. 4905. The consideration of any such promise, contract, or
agreement need not be set forth in such writing, but may be
proved.

Sec. 4906. Every convej'ance of any existing trust in lands, goods,
or things in action, unless the same shall be in writing, signed by
the party making the same, or his lawful agent, shall be void.

Sec. 4907. Nothing contained in any law in this State shall be
construed to prevent any trust from arising, or being extinguished,
by implication of law.

Sec. 4908. Nothing contained in any statute of this State shall be

APPENDIX.

construed to abridge the powers of courts to compel the specific
performance of agreements in cases of part-performance of such
agreements.

Sec. 4909. No action shall be maintained to charge any person by
reason of any representation made concerning the character, con-
duct, credit, ability, trade, or dealings of any other person, unless
such representation be made in writing, and signed by the party
to be charged thereby, or by some person thereunto by him legally
authorized.

Sec. 4910. No contract for the sale of any goods for the price of
fifty dollars or more shall be valid, unless the purchaser shall
receive part of such property, or shall give something in earnest
to bind the bargain, or in part-payment, or unless some note or
memorandum in writing of the bargain be made and signed by
the party to be charged thereby, or by some person thereunto by
him lawfully authorized.

Sec. 4925. All conveyances, bonds, and powers of attorney for
the conveyance of real estate, or of any interest therein, shall be
executed with a seal.

IOWA. Code, 1880, Page 865.

Sec. 1934. Declarations or creations of trusts or powers in rela-
tion to real estate must be executed in the same manner as deeds
of conveyance, but this provision does not ai)ply to trusts resulting
from the operation of construction of law. (Page n-24.)

Sec. 3663. Except when otherwise specially provided, no evi-
dence of the contracts enumerated in the next succeeding section
is competent, unless it be in writing and signed by the party
charged or by his lawfully authorized agent.

Sec. 3664. Such contracts embrace,

1. Those in relation to the sale of personal property, when no
part of the property is delivered, and no part of the price is paid ;

2. Those made in consideration of marriage ;

3. Those wherein one person promises to answer for the debt,
default, or miscarriage of another, including promises by executors
to pay the debt of their principal from their own estate ;

4. Those for the creation or transfer of any interest in lands,
except leases for a term not exceeding one year ;

5. Those that are not to be performed within one year from the
making thereof.

Sec. 3665. The provision of the first subdivision of the preced-
ing section does not apply when the article of personal property
sold is not at the time of the contract owned by the vendor and

8&4 STATUTE 0¥ FEATJDS.

ready for delivery, but labor, skill, or money are necessary to be
expended in producing or procuring the same ; nor do those of the
fourth subdivision of said section apply where the purchase-money,
or any portion thereof, has been received by the vendor, or when
the vendee, with the actual or implied consent of the vendor, has
taken and held possession thereof under and by virtue of the
contract, or when there is any other circumstance, which, by the
Jaw heretofore in force, would have taken a case out of the Statute
of Frauds.

Sec. 3666. The above regulations relating merely to the proof
of contracts, do not prevent the enforcement of those which are
not denied in the pleadings, unless in cases where the contract is
sought to be enforced, or damages to be recovered for the breach
thereof, against some person olher than him who made it.

KANSAS. Compiled Laws, 1879.

Chapter 22.

Sec. 8. Declarations or creations of trust or powers, in relation
of real estate, must be executed in the same manner as deeds of
conveyance ; but this provision does not apply to trusts resulting
from the operation or construction of law.

Chapter 43.

Sec. 5. No leases, estates or interests, of, in or out of lands,
exceeding one year in duration, shall at any time hereafter be as-
signed or granted, unless it be by deed or note, in writing, signed
by the party so assigning or granting the same, or titieir agents
thereunto lawfully authorized, by writing, or by act and operation
of law.

Sec. 6. No action shall be brought whereby to charge a part}'
upon any special promise to answer for the debt, default, or mis-
carriage of another person, or to charge any executor or adminis-
trator upon any special promise to answer damages out of his own
estate, or to charge any person upon any agreement made upon
consideration of .marriage, or upon any contract for the sale of
lands, tenements or hereditaments, or any interest in or concern-
ing 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 or her lawfully authorized.

APPENDIX. 895

KENTUCKY. General Statutes, 1873.
Chapter 22.

§ 1. No action shall be brought to charge any person —

First, for a representation or assurance concerning the character,
conduct, credit, ability, tirade, or dealings of another, made with
intent that such other may obtain thereby credit, money, or goods ;
nor,

Secondly, upon a promise to pay a debt contracted during in-
fancy, or a ratification of a contract or promise made during
infancy ; nor,

Thirdly, upon a promise of a personal representative as such to
answer any liability of his decedent out of his own estate ; nor,

Fourthly, upon a promise to answer for the debt, default, or
misdoing of another ; nor.

Fifthly, upon any agreement made in consideration of marriage,
except mutual promises to marry ; nor.

Sixthly, upon any contract for the sale of real estate, or any
lease thereof for longer term than one year ; nor.

Seventhly, upon any agreement which is not to be performed
within one year from the making thereof. Unless the promise,
contract, agreement, representation, assurance, or ratification, or
some memorandum or note thereof, be in writing, and signed
by the party to be charged therewith, or bj- his authorized agent.
But the consideration need not be expressed in the writing ; it
may be proved when necessary, or disproved by parol or other
evidence.

§ 2. A seal or scroll shall in no case be necessary to gi\e effect
to a deed or other writing. All unsealed writings shall stand
upon the same footing with sealed writings, having the same force
and effect, and upon which the same actions may be founded.
But this section shall not apply nor shall it alter any law requiring
the State or county seal, or the seal of a court, corporation, or
notary to any writing.

§ 20. No person shall be bound as the surety of another, by
the act of an agent, unless the authority of the agent is in writing
signed by the principal ; or if the principal do not write his name,
then by his sign or mark, made in the presence of at least one
creditable attesting witness.

Chapter 24.

§ 2. No estate of inheritance, or freehold, or for a term of
more than one year, in lands, shall be conveyed, unless by deed
or will.

896 STATUTE OF PKAUDS.

MAINE. Revised Statutes, 1871.
Chapter 73.

Sec. 10. There can be no estate created in lands greater than
tenancy at will, and no estate in them can be granted, assigned,
or surrendered, unless by some writing signed by the grantor, or
maker, or liis attorney.

Sec. 11. There can be no trust concerning lands, except trusts
arising or resulting by implication of law, unless created or de-
clared by some writing, signed by the party or his attorney.

Sec. 15. Deeds and contracts, execnted by an authorized agent
of an individual or corporation in the name of his principal, or in
his own name for his principal, are to be regarded as the deeds
and contracts of such principal.

Sec. 29. Pews and rights in houses of public worship are
deemed to be real estate. Deeds of them, and levies by execu-
tion upon them, maj' be recorded by the town clerk of the town
where the houses are situated, with the same effect as if recorded
in the registry of deeds.

Chaptek 111.

Sec. 1. No action shall be maintained in any of the following
cases :

First. To charge, an executor or administrator upon any special
promise to answer damages out of liis own estate.

Second. To charge any person upon any special promise to
answer for the debt, default, or misdoings of another.

Third. To charge any person upon an agreement made in con-
sideration of marriage.

Fourth. Upon any contract for the sale of lands, tenements, or
hereditaments, or of any interest in or concerning them.

Fifth. Upon any agreement that is not to be performed within
one j-ear from the making thereof.

Sixth. Upon any contract to pay a debt after a discharge there-
from under the bankrupt laws of the United States, or assignment
laws of this State.

Unless the promise, contract, or agreement, on which such
action is brought, or some memorandum or note thereof, is in
writing and signed by the party to be charged therewith, Or by
some person thereunto lawfully authorized ; but the consideration
thereof need not be expressed therein, but may be proved
otherwise.

Sec. 3. No action shall be maintained to charge any person by

APPENDIX. 897

reason of any representation or assurance concerning tlie char-
acter, conduct, credit, ability, trade or dealings of another, unless
made in writing, and signed by the party to be charged thereby or
by some person by hira legally authorized.

Sec. 4. No contract for the sale of anj^ goods, wares, or mer-
chandise, for thirty dollars or more, shall be valid, unless the pur-
chaser accepts and receives part of the goods, or gives something
in earnest to bind the bargain, or in part payment thereof, or some
note or memorandum thereof is made and signed by the party to
be chai^d thereby, or by his agent.

MASSACHUSETTS. Public Statutes, 1882.
Chapter 78.
Sec. 2. Estates or interests in lands, created or conveyed with-
out an instrument in writing signed by the grantor or his attornej-,
shall have the force and effect of estates at will onlj', and no
estate or interest in lands shall be assigned, granted, or surren-
dered, unless by a writing signed as aforesaid, or by the operation

of law.

Chapter 100.

Sect. 19. No trust concerning lands, except such as may arise
or result by implication of law, shall be created or declared, unless
by an instrument in writing signed by the party creating or declar-
ing the same, or his attorney.

Chapter 78.

Section. 1. No action shall be brought in any of the following
cases, that is to say : —

First. To charge an executor, administi-ator, or assignee under
any insolvent law of this commonwealth, upon a special promise
to answer damages out of his own estate :

Second. To charge a person upon a special promise to answer
for the debt, default, or misdoings of another :

Tliird. Upon an agreement made upon consideration of mar-
riage :

Fourth. Upon a contract for the sale of lands, tenements, or
hereditaments, or of any interest in or concerning them : or

Fifth. Upon an agreement that is not to be performed within
one year from the making thereof :

Unless the promise, contract, or agreement, upon which such
action is brought, or some memorandum or note thereof, is in
writing and signed by the party to be charged therewith, or by
some person thereunto bj' him lawfully' authorized.

898 STATUTE OF FBAUDS.

Sect. 2. The consideration of such promise, contract, or agree-
ment, need not be set forth or expressed in the writing signed by
the party to be charged therewith, but may be proved by any other
legal evidence.

Sect. 3. No promise for the payment of any debt made by an
insolvent debtor who has obtained his discharge from said debt
under proceedings in bankruptcy or insolvency, shall be evidence
of a new or continuing contract, whereby to deprive a party of
the benefit of relying upon such discharge in bar of the recovery
of a judgment upon such debt, unless such promise is made by
or contained in some writing signed by the party sought to be
charged, or by some person thereunto by him lawfully authorized.

Sect. 4. No action shall be brought to charge a person upon or
by reason of anj- representation or assurance made concerning the
character, conduct, credit, ability, trade, or dealings, of any other
person, unless such representation or assurance is made in writing
. and signed by the party to be charged thereby, or by some person
thereunto by him lawfully authorized.

Sect. 5. No contract for the sale of goods, wares, or merchan-
dise, for the price of fifty dollars or more, shall be good or valid,
unless the purchaser accepts and receives part of the goods so
sold, or gives something in earnest to bind the bargain, or in part-
payment ; or unless some note or memorandum in writing of the
bargain is made and signed by the party to be charged thereby, or
b}' some person thereunto by him lawfully authorized.

Sect. 6. Every contract, written or oral, for the sale or transfer
of a certificate or other evidence of debt due from the United States
or from an individual State, or of stock or a share or interest in
the stock of a bank company, city or village, incorporated under a
law of the United States or of an individual State, shall be void,
unless the party contracting to sell or transfer the same is, at the
time of making the contract, the owner or assignee thereof, or his
agent to sell or transfer the certificate or other evidence of debt,
share or interest, as contracted for.

MICHIGAlSr. Compiled Laws, 1871.

Chapter 166.

Sec. 6. No estate or interest in lands, other than leases for a
term not exceeding one year, nor any trust or power over or con-
cerning lands, or in any manner relating thereto, shall hereafter be
created, granted, assigned, surrendered, or declared, unless by act
or operation of law, or by a deed or conveyance in writing, sub-

APPENDIX. 899

scribed by the party creating, granting, assigning, surrendering, or
declaring the same, or by some person thereunto by him lawfully
authorized by writing.

Sec. 7. The preceding section shall not be construed to affect
in any manner the power of a testator, in the disposition of his
real estate by a last will and testament ; nor to prevent any trust
from arising, or being extinguished, by implication or operation of
law.

Sec. 8. Every contract for the leasing for a longer period than
one year, or for the sale of any lands, or any interest in lands,
shall be void, unless the contract, or some note or memorandum
thereof, be in writing, and signed, by the party by whom the lease
or sale is to be made, or by some person thereunto by him lawf uUj'
authorized by writing.

Sec. 9. The consideration of any contract or agreement, re-
quired by the provisions of this chapter to be in writing, need not
be set forth in the contract or agreement, or in the note or mem-
orandum thereof, but may be proved by any other legal evidence.

Sec. 10. Nothing in this chapter contained shall be construed
to abridge the powers of the court of chancery to compel the spe-
cific performance of agreements, in cases of part performance of
such agreements.

Chapter 167.

Sec. 2. In the following cases, specified in this section, every,
agreement, contract, andpromise shall be void, unless such agree-
ment, contract, or promise, or some note or memorandum thereof,
be in writing, and signed by the party to be charged therewith,
or by some person by him thereunto lawfully- authorized, that is
to say:

First. Every agreement that, by its terms, is not to be per-
formed in one year from the making thereof ;

Second. Every special promise to answer for the debt, default,
or misdoings of another person ;

Third. Every agreement, promise, or undertaking, made upon
consideration of marriage, except mutual promises to marry ;

Fourth. Every special promise made by an executor, or admin-
istrator, to answer damages out of his own estate.

Sec. 3. No contract for the sale of any goods, wares, or mer-
chandise, for the price of fifty dollars or more, shall be valid, un-
less the purchaser shall accept and receive part of the goods sold,
or shall give something in earnest to bind the bargain or in part
payment, or unless some note or memorandum, in writing, of the

900 STATUTE or FKAtJDS.

bargain be made and signed by the party to be charged thereby,
or by some person thereunto by him lawfully authorized.

Sec. 4. Whenever any goods shall be sold at auction, and the
auctioneer shall, at the time of sale, enter in a sale-book a mem-
orandum specifying the nature and price of the property sold, the
terms of the sale, the name of the purchaser, and the name of the
person on whose account the sale is made, such memorandum shall
be deemed a memorandum of the contract of sale, within the mean-
ing of the last section.

Sec. 6. No action shall be brought to charge anj' person, upon
or bj' reason of any favorable representation or assurance made
concerning the character, conduct, credit, ability, trade, or deal-
ings of any other person, unless such representation or assurance
be made in writing, and signed by the party to be charged thereby,
or by some person thereunto by him lawfully authorized.

Sec. 6. The consideration of any contract, agreement, or prom-
ise, required by this chapter to be in writing, need not be expressed
in the written contract, agreement, or promise, or in any note or
memorandum thereof, but may be proved by any other legal
evidence.

Chapter 168.

Sec. 2. Every grant or assignment of any existing trust in lands,
goods, or things in action, unless the same shall be in writing and
signed by the party making the same, or by his agent lawfully
authorized, shall be void.

MINNESOTA. Revised.
Chapter 41.

Sec. 6. No action shall be maintained in either of the following
cases upon any agreement unless such agreement or some note or
memorandum thereof expressing tbe consideration, is in writing,
and subscribed by the party charged therewith :

First. Every agreement that by its terms is not to be performed
within one year from the making thereof;

Second. Every special promise to answer for the debt, default,
or doings of another ;

Third. Every agreement, promise, or undertaking, made upon
consideration of marriage, except mutual promise to marry.

Sec. 7. Every contract for the sale of any goods, chattels, or
things in action, for the price of fifty dollars or more, shall be
void, unless,

APPENDIX. 901

First. A note or memorandum of such contract is made in
writing and subscribed b^' the parties to be charged therewith ;
or,

Second. Unless the buyer accepts and receives part of such
goods, or the evidences, or some of them, of such things in
action ; or.

Third. Unless the buj-er at the time pays some part of the
purchase-monej'.

Sec. 8. Whenever goods are sold at public auction, and the
auctioneer, at the time of sale, enters into a sale-book a memoran-
dum specifying the nature and price of the property sold, the
terms of the sale, name of the purchaser, and the name of the
person on whose account the sale is made; such memorandum
shall be deemed a note of the contract of sale within the meaning
of the last section.

Sec. 9. Eveiy grant or assignment of any existing trust in
goods, or things in action, unless the same is in writing, sub-
scribed by the party making the same, or by his agent, lawfully
authorized, shall be void.

Sec. 10. No estate or interest in lands other than leases for a
term, not exceeding one year, nor any trust or power over or con-
cerning lands, or in any manner relating thereto, shall hereafter
be created, granted, assigned, surrendered or declared, unless by
act or operation of law, or by deed or conveyance in writing, sub-
scribed by the parties creating, granting, assigning, surrendering
or declaring the same, or by their lawful agent thereunto author-
ized by writing.

Sec. 11. The preceding section shall not be construed to affect
in any manner the power of a testator in the disposition of his real
estate by a last will and testament ; nor to prevent any trust from
arising or being extinguished by implication or operation of law.

Sec. 12. Everj- contract for the leasing for a longer period than
one year, or for the sale of any lands, or any interest in lands, shall
be void, unless the contract, or some note or memorandum thereof,
expressing the consideration, is in writing, and subscribed by the
party by whom the lease or sale is to be made, or by his author-
ized agent.

Sec. 13. Nothing in this chapter contained shall be construed
to abridge the power of courts of equity to compel the specific
performance of agreements in cases of part performance of such
agreements.

902 STATUTE OP FEATTDS.

MISSISSIPPI. Revised Code, 1880.
Chapter 49.

§ 1292. No action shall be brought whereby to charge any
executor or administrator, upon any special promise, to answer
any debt or damages out of his own estate, or whereby to charge
the defendant, upon any special pi'omise, to answer for the debt
or default, or miscarriage of another person, or to charge anj' per-
son, upon any agreement, made upon consideration of marriage, or
upon any contract for the sale of laud, or the making any lease
thereof, for a longer term than one year, or upon any agreement
which is not to be performed within the space of one year from
the making thereof, unless the promise or 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 by him or her thereunto lawfully authorized.

§ 1293. No contract, for the sale of any personal property, goods,
wares and merchandise, for the price of fifty dollai'S or upwards,
shall be allowed to be good and valid, unless the buyer shall
receive part of the personal property, goods, wares, and merchan-
dise, or shall actually pay or secure the purchase money, or part
thereof, or unless some note or memorandum, in writing, of the
bargain, be made and signed by the party to be charged by such
contract, or his agent, thereunto lawfully authorized.

§ 1294. Hereafter, all declarations or creations of trusts or con-
fidence, of or in any land, shall be made and manifested by writing,
signed by the party who declares or creates such trust, or by his
last will, or else they shall be utterlj' void ; and every writing,
declaring or creating a trust, shall be acknowledged or proved as
other writings, and shall be lodged with the clerk of the chancery
court of the proper county, to be recorded, and shall only take
effect from the time it is so lodged for record : provided, that where
any trust shall arise or result, by implication of law, out of a con-
veyance of land, such trust or confidence shall be of the like force
and effect as the same would have been, if this article had not been
passed.

§ 1295. All grants, assignments or transfers of any trust or
confidence, shall likewise be in writing, signed by the party grant-
ing or assigning the same, or by last will and testament, or else
they shall likewise be utterly void ; and such grant or assignment
shall also be acknowledged or proved and recorded, and shall only
take effect from the time it is lodged with the clerk for record.

APPENDIX. 903

MISSOURI. Eevised Statutes.
Chapter 35, Page 420.

Sec. 2509. All leases, estates, interests of freehold or term of
years, or any uncertain interest of, in, to, or out of any messuages,
lands, tenements or hereditaments, made or created by liverj- and
seizin only, or by parol, and not put in writing and signed by the
parties so making or creating the same, or their agents lawfully
authorized by writing, shall have the force and effect &f leases or
estates at will only, and shall not, either in law or equity, be deemed
or taken to have any other or greater force.

Sec. 2610. No leases, estates, 'interests, either of freehold or
term of j'ears, or any uncertain interest of, in, to, or out of any
messuages, lands, tenements, or hereditaments, shall at any time
hereafter be assigned, granted or surrendered, unless it be by deed
or note in writing, signed by the party so assigning, granting or
surrendering the same, or their agents lawfully authorized by writ-
ing, or by operation of law.

Sec. 2511. All declarations or creations of trust or confidence of
any lands, tenements or hereditaments shall be manifested and
proved by some writing, signed by the party who is, or shall be,
by law, enabled to declare such trusts, or by his last will in writ-
ing, or else they shall be void ; and all grants and assignments of
any trust or confidence shall be in writing, signed b3' the party
granting or assigning the same, or by his or her last will in writing,
or else they shall be void.

Sec. 2512. Wiiere any conveyance shall be made of any lands,
tenements or hereditaments, by which a trust or confidence may
arise, or result by implication of law, such trust or confidence shall
be of like force as the same would have been if the act had not been
made.

Sec. 2513. No action shall be brought to charge any executor or
administrator, upon any special promise, to answer for any debt
or damages out of his own estate, or to charge an}- person upon
any special promise to answer for the debt, default or miscarriage
of another person, or to charge any person upon any agreement
made in consideration of marriage, or upon any contract for the
sale of lands, tenements, hereditaments, or anj^ interest in or con-
cerning them, or upon any agreement that is not to be performed
within one j-ear from the making thereof, unless the agreement
upon which the action shall be brought, or some memorandum or
note thereof, shall be in writing, and signed by the party to be

904 STATUTE OP FKAUElS.

charged therewith, or some other person by him thereto lawfully
authorized.

Sec. 2514. No contract for the sale of goods, wares, and mer-
chandise, for the price of thirty dollars or upwards, shall be allowed
to be good, unless 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 unless some note or memoran-
dum, in writing, be made of the bargain, and signed by the parties
to be charged with such contract, or their agents lawfully author-
ized. *

Sec. 2515. No action shall be brought to charge an}' person upon,
or by reason of, anj"^ representation or assurance made concerning
the character, conduct, credit,' ability, trade, or dealings of anj-
other person, unless such representation or assurance be made in
writing, and subscribed by the party to be charged therebj-, or by
some person thereunto bj- him lawfully authorized.

Sec. 2516. No action shall be maintained whereby to charge
any person upon any promise made after full age, to pay any debt
contracted during inf ancj', or upon any ratification after full age of
any promise or simple contract made during infancy, unless such
promise or ratification shall be made by some writing signed by the
party to be charged thereby.

MONTANA. Codified Statutes, 1872.
Chapter XVI.

Sec. 6. No estate or interest in lands other than for leases for
a term not exceeding one year, or any trust or power over or con-
cerning lands, or in any manner relating thereto, shall hereafter
be created, granted, assigned, surrendered, or declared, unless by
act or operation of law, or by deed or conveyance, in writing sub-
scribed by the party creating, granting, assigning, surrendering, or
declaring the same, or by his lawful agent thereunto authorized by
writing.

Sec. 7. The preceding section shall not be construed to affect
in any manner the power of a testator in the disposition of his real
estate by a last will and testament, nor prevent any trust arising
or being extinguished by operation of law.

Sec. 8. Every contract for the leasing for a longer term than

•one 3-ear, or for the sale of any lands, or interest in lands, shall be

void, unless the contract, or some note or memorandum thereof

expressing the consideration, be in writing, and be subscribed by

■ the ■paxty by whom the lease or sale is to be made.

APPENDIX. 905

Sec. 9. Eveiy instrument required to be subscribed by any per-
son mentioned in the last preceding section may be subscribed by
the agent of the party lawfully authorized.

Sec. 10. Nothing contained in this act shall be construed to
abridge the power of the court to compel the specifle performance
of such agreements.

Sec. 12. In the following cases any agreement shall be void
unless such agreement, or some note or memorandum thereof ex-
pressing the consideration, be in writing, and subscribed by the
party charged thereunto : First. Every agreement that by the terms
is not to be performed within one year from the making thereof.
Second. Every special promise to answer for the debt or default
or miscarriage of another. Third. Every agreement, promise, or
undertaking, made upon consideration of marriage, except mutual
promise to marry.

Sec. 13. Every contract for the sale of any goods, chattels, or
things in action, for the price of two hundred dollars and over
shall be void, unless : First. A note or memorandum of such con-
tract be made in writing, and be subscribed by the parties to be
charged therewith ; or second, unless they shall accept or receive
a part of such goods or the evidences or some of them of such
[things] in action. Third. Or unless the buj-er shall at the time
pay some part of the purchase-money.

Sec. 14. Whenever goods shall be sold at auction, and the
auctioneer shall at the time of the sale enter in a sale-book a mem-
orandum specifying the nature and the price of the property sold,
the term of sale, the names of the purchasers, and name of the
person on whose account the sale is made, such memorandum
shall be deemed a note of the contract of sale within the meaning
of the last section.

Sec. 17. Every instrument of writing required by any of the
provisions of this act to be subscribed by any party may be sub-
scribed by the lawful agent of such party.

Sec. 23. The term " conveyance," as used in this act, shall be
construed to embrace any instrument in writing except a last will
and testament, whatever may be its form and by whatever name
it may be known in law, by which any estate or interest in land
is created, alienated, assigned, or surrendered.

Chapter XVII.

Sec. 34. The term ' ' real estate," as used in this act, shall be con-
strued as co-extensive in meaning with lands, tenements, heredita-
ments, and possessory titles to public lands in this territory.

906 STATUTE OF FRAUDS.

Sec. 35. The term " conveyance," as used in this act, shall be
construed to embrace every instrument in writing by which any
real estate, or interest in real estate, is created^ alienated, mort-
gaged, or assigned, except wills, leases for a term not exceeding
one year, and executory contracts for the sale or purchase of lands.

NEBRASKA. General Statutes, 1873.
Chapter 25.

Sec. 3. No estate or interest in land, other than leases for a
term not exceeding one year, nor any trust or power over or con-
cerning lands, or in any manner relating thereto, shall hereafter
be created, granted, assigned, or surrendered or declared, unless
b.y act or operation of law, or by a deed or convej-ance in writing,
•subscribed by the party creating, granting, assigning, surrendering
or declaring the same.

Sec. 4. The preceding section shall not be construed to affect
in any manner the power of a testator in the disposition of his
real estate by a last will and testament, nor to prevent any trust
from arising or being extinguished by implication or operation of
law.

Sec. 5. Every contract for the leasing, for a longer period than
one year, or for the sale of any lands, or any interest in lands, shall
be void unless the contract, or some note or memorandum thereof,
be in writing, and be signed by the party by whom the lease or
sale is to be made.

Sec. 6. Nothing in this chapter contained shall be construed to
abridge the powers of the court of chancery to compel the specific
performance of agreements in cases of part performance.

Sec. 8. In the following cases every agreement shall be void,
unlegs such agreement, or some note or memorandum thereof, be
in writing, and subscribed by the party to be charged there-
with :

First. Every agreement that, by its terms, is not to be per-
formed within one year from the making thereof.

/Second. Every special promise to answer for the debt, default
or misdoings of another person.

Third. Every agreement, promise or undertaking made upon
consideration of marriage, except mutual promises to marry.

Fourth. Every special promise by an executor or administrator
to answer damages out of his own estate.

Sec. 9. Every contract for the sale of any goods, chattels, or
things in action, for the price of fifty dollars or more, shall be void,
unless —

APPENDIX. 907

First. A note or memorandum of such Contract be tnade in
writing, and be subscribed by the party to be cliarged tliereby ;
or,

Second. Unless tlie buyer stiall accept and receive part of such
goods or the evidences, or some of them, of such things in action ;
or,

Third. Unless the buyer shall, at the time, pay some part of the
purchase money.

Sec. 10. Whenever goods shall be sold at public auction, and
the auctioneer shall, at the time of sale, enter in a sale book, a
memorandum specifying the nature and price of the property sold,
the terms of the sale, the name of the purchaser, and the name of
the person on whose account the sale is made, such memorandum
shall be deemed a note of the contract of sale, within the meaning
of the last section.

Sec. 18. Everygrant or assignment of any existing trust in lands,
goods, or things in action, unless the same shall be in writing,
subscribed by the party making the same, shall be void.

Sec. 22. The term " lands," as used in this chapter, shall be
construed as co-extensive in meaning with " lands, tenements, and
hereditaments," and the terms " estate and interest in lands,"
shall be construed to embrace every estate and interest, freehold
and chattel, legal and equitable, present and future, vested and
contingent, in lands, as above described.

Sec. 23. The term " conveyance," as used in this chapter, shall
be construed to embrace every instrument in writing (except a
last will and testament) whatever may be its form, and by what-
ever name it may be known in law, by which any estate or interest
in lands is created, aliened, assigned, or surrendered.

Sec. 24. The consideration of am' contract or agreement, re-
quired by the provisions of this chapter to be in writing, need
not be set forth in the contract or agreement, or in the note or
memorandum thereof, but may be proved by any other legal
evidence.

Sec. 25. Every instrument required by any of the provisions of
this chapter to be subscribed by any party, may. be subscribed by
his agent, thereunto authorized by writing.

NEVADA. Compiled Laws, 1873.

Chapter 26.

Sec. 55. No estate, or interest in lands, other than leases for
a term not exceeding one year, nor any trust or power over or

908 STATUTE OF FRAUDS.

concerning lands, or in any manner relating thereto, shall hereafter
be created, granted, assigned, surrendered, or declared, unless by
act or operation of law, or by deed or conveyance, in writing, sub-
scribed by the party creating, granting, assigning, surrendering, or
declaring the same, or by his lawful agent thereunto authorized in
writing.

Sec. 56. The preceding section shall not be construed to affect
in any manner the power of a testator in the disposition of his
real estate, by a last will and testament, nor to prevent any trust
from arising or being extinguished by implication or operation of
law.

Sec. 57. Every contract for the leasing for a longer period than
One year, or for the sale of any lands, or any interest in lands,
shall be void, unless the contract, or some note or memorandum
thereof, expressing the consideration, be in writing, and be sub-
scribed by the party by whom the lease or sale is to be made.

Sec. 58. Every instrument required to be subscribed bj- any
person under the last preceding section, may be subscribed by the
agent of such party lawfully authorized.

Sec. 59. Nothing contained in this act shall be construed to
abridge the powers of courts to compel the specific performance
of agreements in cases of part performance of such agreements.

Sec. 61. In the following cases every agreement shall be void,
unless such agreement,, or some note or memorandum thereof,
expressing the consideration, be in writing, and subscribed b}' the
party charged therewith : First, every agreement that, by the
terms, is not to be performed within one year from the making
thereof; second, every special promise to answer for the debt,
default, or miscarriage of another ; third, every promise or under-
taking made upon consideration of marriage, except mutual prom-
ises to marry.

Sec. 62. Every contract for the sale of any goods, chattels, or
things in action, for the price of fifty dollars or over, shall be void
unless : First, a note or memorandum of such contract be made in
writing, and be subscribed by the parties to be charged therewith ;
or second, unless the buyer shall accept or receive part of such
goods, or the evidences, or some of them, of such things in action ;
or third, unless the buyer shall at the time pay some part of the
purchase-money.

Sec. 63. "Whenever goods shall be sold at auction, and the auc-
tioneer shall, at the time of sale, enter in a sale-book a memoran-
dum specifying the nature and price of the property sold, the
terms of the sale, the name of the purchaser, and the name of

APPBKDIX. 909

the person on whose account the sale is made, such memorandum
shall be deemed a note of the contract of sale, within the mean-
ing of the last section.

Sec. 70. Ever}- grant or assignment, of any existing trust in
land, goods, or things in action, unless the same shall be in writ-
ing, subscribed bj' the person making the same, or by his agent
lawfully authorized, shall be void.

Sec. 74. The term " conveyance," as used in this act, shall be
construed to embrace every instrument in writing, except a last
will and testament, whatever may be its form, and by whatever
name it may be known in law, by which any estate or interest in
lauds is created, aliened, assigned, or surrendered.

Sec. 75. The term " lands," as used in this act, shall be con-
strued as co-extensive in meaning with lands, tenements, and
hereditaments, and shall include in its meaning all possessory
right to the soil for mining and other purposes, and the term
"estate and interest in lands" shall be construed and embrace
every estate and interest, present and future, vested and contin-
gent, in lands as above defined.

Sec. 78. No lands within this Territory shall hereafter be
convej-ed by lease, or otherwise, except in fee and perpetual suc-
cession, for a longer period than ten years ; nor shall any town or
city lots, or other real property, be so convej-ed for a longer time
than twenty' years. All leases hereafter made, contrary to the
provisions of this act, shall be void.

Act or Dec. 17, 1862.

Section 1. The signature of a party, when required to a written
instrument, shall be equally valid if the party cannot write, pro-
vided the person make his mark, the name of the person making
the mark being written near it, and the mark being witnessed by
a person who writes his own name as a witness.

NEW HAMPSHIRE. General Laws, 1878.
Chapter 135.

Sec. 12. Every estate or interest in lands, created or convej-ed
without an instrument in writing signed by the grantor or his
attorney, shall be deemed an estate at will only ; and do estate or
interest in land shall be assigned, granted, or sun-endered except
bj' writing signed as aforesaid, or by operation of law.

Sec. 13. No trust concerning lands, excepting such as may
arise or result by implication of law, shall be created or declared
unless by an instrument signed by the party creating the same or
by his attorney.

910 STATUTE OF FEAUDS.

Chapter 220.

Sec. 14. No action shall be maintained upon a contract for the
sale of land, unless the agreement upon which it is brought or
some memorandum thereof is in writing, and signed by the party
to be charged, or by some person thereto authorized by writing.

Sec. 15. No action shall be brought to charge an executor or
administrator upon a special promise to answer damages out of
his own estate, nor to charge any person upon a special promise
*i,o answer for the debt, default, or miscarriage of another, or upon
any agreement made in consideration of marriage, or that is not
to be performed within one year from the time of making it, unless
such promise or agreement, or some note or memorandum thereof,
is in writing and signed bj' the party to be charged, or by some
person by him thereto authorized.

Sec. 16. No contract for the sale of goods, wares, or merchan-
dise, for the price of thirty-three dollars, or more, is valid unless
the buj-er accepts and actually receives part of the propertj- sold,
or gives something in part payment or in earnest to bind the bar-
gain, or unless some note or memorandum thereof is in writing,
and signed by the party tp be charged or by some person by him
thereto authorized.

NEW JERSEY. Revision of 1877.
Page 444.

1. That all leases, estates, interests of freehold or term of
years, or any uncertain interests of, in, to, or out of any messuages,
lands, tenements or hereditaments, made or created, or hereafter
to be made or created, by livery or seisin only, or by parol, and
not put in writing, and signed by the parties so making or creating
the same, or their agents thereunto, lawfully authorized by writ-
ing, shall have the force and effect of leases or estates at will only,
and shall not, either in law or equity, be deemed or taken to have
any other or greater force or effect, any consideration for making
such parol leases or estates notwithstanding ; except nevertheless
all leases not exceeding the term of three years from the making
thereof.

2. No lease, estate or interest, either of freehold or term of
years, or any uncertain interest of, in, to, or out of any messuages,
lands, tenements or hereditaments, shall be assigned, granted, or
surrendered, unless it be by deed or note in writing, signed by the
party so assigning, granting or surrendering the same, or his, her,

APPENDIX. 911

or their agent or agents thereunto, lawfully authorized by writing,
or by act and operation of law.

3. All declarations and creations of trust or confidence of or in
any lands, tenements or hereditaments shall be manifested and
proved bj- some writing, signed by the party, who is or shall be
by law enabled to declare such trust, or by his or her last will in
writing, or else they shall be utterly void and of no effect ; x>^o-
vided always, that where any conveyance hath been, or shall be
made of anj' lands, tenements or hereditaments, by which a trust
or confidence shall or may arise or result by implication or con-
struction of law, or be transferred or extinguished by act or oper-
ation of law, such trust or confidence shall be of the like force
and effect, as the same would have been if this act had not been
made.

4. All grants and assignments of any trust or confidence shall
likewise be in writing, signed by the party granting or assigning
the same, or bj- his or her last will in writing, or else shaU be
utterly void and of no effect.

5. No action shall be brought (1,) to charge anj' executor or
administrator, upon any special promise, to answer damages out
of his own estate ; or (2,) to charge the defendant, upon any
special promise, to answer for the debt, default or miscarriage of
another person; or (3,) to charge any person upon anj- agreement
made upon consideration of marriage; or (4,) upon any contract
or sale of lands, tenements or hereditaments, or any interest in or
concerning them ; or (5,) upon any agreement, that is not to be
performed within one year from the making thereof ; unless the
agreement upon which such action shall be brought, or some mem-
orandum or note thereof, shall be in writing, and signed by the
party to be charged therewith, or some other person thereunto by
him or her lawfully authorized.

6. Every contract for the sale of goods, wares and merchandise,
for the price of thirty dollars or upwards shall be void ; unless
(1,) a note or memorandum of such contract be made in writing,
and signed by the party to be charged thereby or by his agent
thereunto lawfully authorized ; or (2,) unless the buyer shall
accept part of the goods so sold, and actually receive the same ;
or (3,) unless the buyer shall give something in earnest to bind
the bargain or pay some part of the purchase-money.

9. The consideration of any promise, contract or agreement,
required by this act to be put in writing, need not be set forth or
expressed in such writing, but may be proved by any other legal
evidence.

912 STATUTE OF FKAUDS.

NEW YORK. Revised Statutes, 1830. Pakt II.
Chap. I. Article Second.

§ 51. "Where a grant for a valuable consideration shall be made
to one person, and the consideration therefor shall be paid by
another, no use or trust shall result in favor of the person by
whom such payment shall be made ; but the title shall vest in the
person named as the alienee in such conveyance, subject only to
the provisions of the next section.

§ 52. Every such conveyance shall be presumed fraudulent, as
against the creditors, at that time, of the person paying the con-
sideration ; and where a fraudulent intent is not disproved, a trust
shall result in favor of such creditors, to the extent that may be
necessary to satisfy their just demands.

§ 53. The provisions of the preceding fifty-first section shall not
extend to cases, where the alienee named in the conveyance, shall
have taken the same as an absolute conveyance, in his own name,
without the consent or knowledge of the person paying the con-
sideration, or where such alienee, in violation of some trust, shall
have purchased the lands so conveyed with monies belonging to
another person.

Chapter 7. Title 1.

§ 6. No estate or interest in lands, other than leases for a term
not exceeding one year, nor anj' trust or power over or concerning
lands, or in any manner relating thereto, shall hereafter be created,
granted, assigned, surrendered or declared, unless bj- act or opera-
tion of law, or by a deed or conveyance in writing, subscribed by
the party creating, granting, assigning, surrendering or declaring
the same, or by his lawful agent, thereunto authorized by writing.
• § 7. The preceding section shall not be construed to affect in
any manner, the power of a testator in the disposition of his real
estate, bj^ a last will and testament ; nor to prevent anj' trust from
arising, or being extinguished, by implication or operation of law ;
[nor to prevent any declaration of trust from being proved by any
writing subscribed by the party declaring the same ;] nor to pre-
vent, after a fine shall have been levied, the execution of a deed
or other instrument, in writing, declaring the uses of such fine.

§ 8. Every contract foi' the leasing for a longer period than one
year, or for the sale of any lands, or any interest in lands, shall be
void, unless the contract, or some note or memorandum thereof,
expressing the consideration, be in writing, and be subscribed by
the party, by whom the lease or sale is to be made.

APPENDIX. • 913

§ 9. Every instrument required to be subscribed bj- any partj',
under the last preceding section, may be subscribed by tiie agent
of such party lawfully authorized.

§ 10. Nothing in this title contained, shall be construed to
abridge the powers of Courts of Equity, to compel the specific
performance of agreements, in cases of part-performance of such
agreements.

Title 2.

§ 2. In the following cases, every agreement shall be void unless
such agreement, or some note or memorandum thereof, expressing
the consideration, be in writing, and subscribed by the party to be
charged therewith.

1. Every agreement that, by its terms, is not to be performed
within one j-ear from the making thereof :

2. Every special promise to answer for the debt, default, or mis-
carriage of another person :

3. Every agreement, promise, or undertaking, made upon con-
sideration of marriage, except mutual promises to marry.

§ 3. Every contract for the sale of any goods, chattels, or things
in action, for the price of fifty dollars or more, shall be void,
unless,

1. A note or memorandum of such contract, be made in writ-
ing, and be subscribed by the parties to be charged thereby : or,

2. Unless the buyer shall accept and receive part of such goods,
or the evidences, or some of them, of such things in action : or,

3. Unless the buyer shall, at the time, pay some part of the
purchase-money.

§ 4. Whenever goods shall be sold at public auction, and the
auctioneer shall, at the time of sale, enter in a sale-book, a memo-
randum specifying the nature and price of the property sold, the
terms of the sale, the name of the purchaser, and the name of the
person on whose account the sale is made, such memorandum shall
be deemed a note of the contract of sale, within the meaning of the
last section.

Title 3.

§ 2. Every grant or assignment of any existing trust in lands,
goods or things in action, unless the same shall be in writing, sub-
scribed by the party making the same, or by his agent, lawfully
authorized, shall be void.

914 STATTXTB OF FEATJDS.

NORTH CAROLINA. Battle's Revisal, 1873.
Chapter 50.

8. No action shall be brought whereby to charge an executor
or administrator upon a special promise to answer damages out of
his own estate, or to charge any defendant upon a special promise
to answer the debt, default or miscarriage of another person,
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 charged therewith or some other person thereunto by
him lawfully authorized.

10. All contracts to sell or convey any lands, tenements or
hereditaments, or any interest in or concerning them, shall be void
and of no effect unless such contract, or some memorandum or
note thereof, shall be put in writing and signed by the party to be
charged therewith, or by some other person by him thereto law-
fully authorized.

OHIO. Revised Statutes, 1880.
Title IV. Chapter 4.

Sec. 4198. That no leases, estates or interests, either of free-
hold or terms for years, or any uncertain interest of, in," or out of
lands, tenements, or hereditaments, shall at any time hereafter be
assigned, or granted, unless it be by deed, or note in writing,
signed by the party so assigning or granting the same ; or their
agents thereunto lawfully authorized, by writing, or by act and
operation of law.

Sec. 4199. That no action shall be brought whereby to charge
the defendant, upon any special promise, to answer for the debt,
default or miscarriage, of another person ; or to charge any exec-
utor or administrator upon any special promise, to answer damages
out of his own estate ; or to charge any person upon any agree-
ment made upon consideration of marriage, or upon any contract
or sale of lands, tenements or hereditaments, or any interest in,
or concerning of 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 there-
unto by him or hfer lawfully authorized.

APPENDIX, 916

OKEGON. Civil Code.
Title VIII. Chapter 8.

§ 771. No estate or Interest in real property- other than a lease
for a term not exceeding one year, nor any trust or power con-
cerning such property, can be created, transferred or declared
otherwise than by operation of law, or by a conveyance or other
instrument in writing subscribed by the party creating, transfer-
ring or declaring the same, or by his lawful agent, under written
authority, and executed with such formalities as are required by
law.

§ 772. The last section shall not be construed to affect the
power of a testator, in the disposition of his real property by a
last will and testament, nor to prevent a trust from arising, or
being extinguished by implication or operation of law, nor to
affect the power of a court to compel specific performance of an
agreement in relation to such property.

§ 775. In the following cases the agreement is void, unless the
same, or some note or memorandum thereof, expressing the con-
sideration, be in writing and subscribed by the partj- to be charged,
or by his lawfully authorized agent; evidence therefore of the
agreement shall not be received other than the writing, or second-
ary evidence of its contents, in the cases prescribeil by law :

1. An agreement that, by its terms, is not to be performed
within a year from the making thereof ;

2. An agreement to answer for the debt, default or miscarriage
of another ;

3. An agreement by an executor or administrator to pay the
debts of his testator or intestate out of his own estate ;

4. An agreement made upon consideration of marriage, other
than a mutual promise to marry ;

5. An agreement for the sale of personal propertj', at a price
not less than iifty dollars, unless the buyer accept and receive
some part of such personal property, or pay at the time some part
of the purchase money ; but when the sale is made by auction, an
entry by the auctioneer, in his sale-book, at the time of the sale,
of the kind of property sold, the terms of the sale, the price, and
the names of the purchaser and person on whose account the sale
is made, is a sufficient memorandum ;

6. An agreement for the leasing, for a longer period than one
year, or for the sale of real property, or of any interest therein ;

7. An agreement concerning real property, made by an agent

916 STATUTE OF FRAUDS.

of the party sought to be charged, unless the authority of the
agent be in writing.

§ 776. No evidence is admissible to charge a person upon a
representation, as to the credit,- skill or character of a third person,
unless such representation, or some memorandum thereof, be in
writing, and either subscribed by, or in the hand-writing of the
party to be charged.

PENNSYLVANIA. Brightley's Purdon (10th Ed. 1872), 723.

1. AH leases, estates, interest of freehold or term of years, or
any uncertain interest of, in or out of any messuages, manors,
lands, tenements or hereditaments, made or created by livery and
seisin only, or by parol, and not put in writing and signed by the
parties so making or creating the same, or their agents, thereunto
lawfully authorized by writing, shall have the force and effect of
leases or estates at will only, and shall not, either in law or equity,
be deemed or taken to have anj"- other or greater force or effect,
any consideration for making any such parol leases or estates, or
any former law or usage, to the contrary notwithstanding ; except,
nevertheless, all leases not exceeding the term of three years from
the making thereof.

2. And moreover, no leases, estates or interests, either of free-
hold or terms of j-ears, or any uncertain interest of, in, to or out
of any messuages, manors, lands, tenements or hereditaments,
shall at any time be assigned, granted or surrendered, unless it be
by deed or note in writing, signed by the party so assigning,
granting or surrendering the same, or their agents, thereto law-
fully authorized bj' writing, or by act and operation of law.

3. All declarations or creations of trusts or confidences of any
lands, tenements or hereditaments, and all grants and assignments
thereof shall be manifested by writing, signed by the party hold-
ing the title thereof, or by his last will in writing, or else to be
void : Provided, that where any conveyance shall be made of any
lands or tenements, by which a trust or confidence shall or may
arise or result by implication or construction of law, or be trans-
ferred or extinguished by act or operation of law, then and in
every such case, such trust or confidence shall be of the like force
and effect as if this act had not been passed.

4. No action shall be brought whereby to charge any executor
or administrator, upon any promise to answer damages out of his
own estate, or whereby to charge the defendant, upon any special
promise, to answer for the debt or default of another, unless the

APPENDIX. ■ 917

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 by him
authorized.

5. This act shall not go into eflfect until the first day of January
next ; or apply to or affect any contract made or responsibility
incurred prior to that time ; or for any contract the consideration
of which shall be a less sum than twenty dollars.

RHODE ISLAND. Public Statutes, 1882.
Chapter 173.

Sec. 3. No estate of inheritance or freehold, or for a term ex-
ceeding one year, in lands or tenements, shall be conveyed from
one to another by deed, unless the same be in writing, signed,
sealed, and delivered by the party making the same, and acknowl-
edged before a senator, judge, justice of the peace, notary pub-
lic, or town clerk, by the party or parties who shall have sealed
or delivered it ; . . . and recorded or lodged to be recorded in the
office of town clerk of the town where the said lauds or tenements
do lie.

Sec. 4. All bargains, sales, and other conveyances whatsoever
of any lands, tenements, or hereditaments, whether they be made
for passing any estate of freehold or inheritance, or for term of
years, exceeding the term of one year, and all deeds of trust and
mortgages whatsoever, which shall hereafter be made and executed,
shall be void unless they shall be acknowledged and recorded as
aforesaid : Provided, that the same, between the parties and their
heirs, shall be valid and binding.

Chapter 204.

Sec. 8. No action shall be brought, —

First. Whereby to charge any person upon any contract for the
sale of lands, tenements, or hereditaments, or the making of any
lease thereof for a longer time than one year.

Second. Whereby to charge any person upon any agreement
made upon consideration of marriage.

TJiird. Whereby to charge any executor or administrator upon
his special promise to answer any debt or damage out of his own
estate.

Fourth. Whereby to charge any person upon his special prom-
ise to answer for the debt, default, or miscarriage of another
person.

918 STATUTE OF FEATJDS.

Fifth. Whereby to. charge any person upon any agreement which
is not to be performed within the space of one year from the making
thereof.

Unless the promise or agreement upon which such action shall
be brought, or some note or memorandum thereof, shall be in writ-
ing, and signed by the party to be charged therewith, or by some
other person by him thereunto lawfully authorized.

TENNESSEE. Compiled Laws, 1871.
Chapter 2, Article 1.

1758. No action shall be brought —

1. "Whereby to charge any executor or administrator upon any
special promise, to answer any debt or damages out of his own
estate ;

2. Whereby to charge the defendant upon an}' special promise
to answer for the debt, default, or miscarriage of another person ;

3. Whereby to charge any person upon any agreement made
upon consideration of marriage ;

4. Upon any contract for the sale of lands, tenements, or here-
ditaments, or the making any lease thereof for a longer term than
one year ;

5. Upon any agreement or contract which is not to be performed
within the space of one year from the making thereof ;

Unless the promise or agreement, upon which such action shall
be brought, or some memorandum or note thereof, shall be in writ-
ing, and signed by the party to be charged therewith, or some other
person by him thereunto lawfully authorized.

TEXAS. Revised Statutes, 1879.
Title XL VI.

Article 2464. No action shall be brought in any of the courts
in any of the following cases, unless the promise or agreement
upon which such action shall be brought, or some memorandum
thereof, shall be in writing and signed by the party to be charged
therewith, or by some person by him thereunto lawfully author-
ized : ,

1. To charge any executor or administrator upon any special
promise to answer any debt or damages due from his testator or
intestate, out of his own estate ; or,

2. To charge any person upon a promise to answer for the debt,
default, or miscarriage of another ; or,

APPENDIX. 919

3. To charge any person upon anj- agreement made upon con-
sideration of marriage ; or,

4. Upon any contract for the sale of real estate or the lease
thereof for a longer term than one year ; or,

5. Upon any agreement which is not to be performed within the
space of one year from the making thereof.

VERMONT. Revised Laws, 1880.
Chapter 97.

Sect. 1932. Estates or interests in lands, created or conveyed
without au instrument in writing, signed by the grantor or by his
attorney, shall have the force and effect of estates at will onlj' ;
and no estate or interest in land shall be assigned, granted, or sur-
rendered, unless by a writing signed as aforesaid, or by operation
of law.

Sect. 1933. No trust concerning lands, excepting such as may
arise or result by implication of law, shall be created or declared,
unless by an instrument in writing, signed by the party creating or
declaring the same, or by his attornej'.

Sect. 1934. The assignment of any lease of lands, if the lease
shall be for a longer term than one year, shall be b}- deed, signed,
sealed, and witnessed, acknowledged and recorded, as is provided
in the case of deeds in the fourth section of this chapter ; and any
assignment, otherwise executed, shall be void as against all persons
but the assignor, his heirs or devisees.

Sect. 1935. No deed or other conveyance of any lands, or of any
estate or interest therein, made by virtue of a power of attornej-, shall
be of any effect, or admissible in evidence, unless such power of
attorney shall have been signed, sealed, attested, and acknowledged
and recorded in the ofHce where such deed shall be required to be
recorded, as provided in this chapter.

Chapter 57.

Section 981 . No action at law or in equity shall be brought in any
of the following cases :

Upon a special promise by an executor or administrator upon any
special promise to answer damages, out of his own estate.

Upon a special promise to answer for the debt, default or mis-
doings of another.

Upon an agreement made upon consideration of marriage.

Upon a contract for the sale of lands, tenements or hereditaments,
or of an interest in or concerning them.

920 STATUTE OF FEAUDS.

Upon an agreement not to be performed within one year from
the making thereof ;

Unless the promise, contract or 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 there-
with, or by some person thereunto by him lawfully authorized ; and
if the contract or agreement relate to the sale of real estate, or to
any interest therein, such authority shall be in writing.

Sect. 982. No contract, for the sale of any goods, wares, or mer-
chandise, for the price of forty dollars or more, shall be valid,
unless the purchaser accepts and receives part of the goods so sold,
or shall give something in earnest to bind the bargain, or in part-
payment, or unless some note or memorandum of the bargain be
made in writing, and signed by the party to be charged thereby,
or by some person thereunto by him lawfully authorized.

Sect. 983. No action shall be brought to charge any person upon,
or by reason of any representation or assurance made, concerning
the character, conduct, credit, ability, trade, or dealings of another
person, unless such representation or assurance be made in writing,
and signed by the party to be charged thereby, or by some person
thereunto by him lawfully authorized.

Sect. 984. "Where the performance of a contract is secured by
the obligation of a surety, no agreement made between the creditor
and the principal debtor for the extension of the time of payment
or the performance of the contract shall have at law, or in chan-
cery, anj- binding effect, unless such agreement is made upon a
valuable consideration, and is in writing, or some note or memo-
randum thereof is in writing, and signed by such creditor or per-
son thereunto duly authorized reciting briefly the consideration
upon which such contract is founded.

UTAH. Compiled Laws, 1876.
Title XV. Act Approved February 18, 1876.

(1010.) Sec. 1. That no estate or interest in lands, other than
leases for a term not exceeding one year, nor any trust or power
over or concerning lands, or in any manner relating thereto, shall
hereafter be created, granted, assigned, surrendered or declared,
unless by act or operation of law, or by deed or conveyance in
writing, subscribed by the party creating, granting, assigning,
surrendering or declaring the same, or by his lawful agent there-
unto authorized by writing.

(1011.) Sec. 2. The foregoing provision shall not be construed

APPENDIX. 921

to affect the power of a testator ia the disposition of his real
estate by last will and testament ; nor to prevent any trust from
arising or being extinguished by implication or operation of law ;
nor to abridge the powers of courts to compel the specific per-
formance of agi-eements in case of part performance thereof.

(1012.) Sec. 3. Everj' conve3-ance of any estate or interest in
lands, or the rents or profits of lands, and every charge upon
lands, or the rents and profits thereof made or created with intent
to defraud prior or subsequent purchasers thereof, for a valuable
consideration, shall be void as against such purchasers.

(1014.) Sec. 5. In the following cases every agreement shall
be void, unless such agreement or some note or memorandum
thereof, expressing the consideration be in writing and subscribed
by the party, to be charged therewith.

First. — Everj- agreement that by its terms is not to be per-
formed within one year from the making thereof.

Second. — Every promise to answer for the debt, default or
miscarriage of another.

Third. — Every agreement, promise or undertaking, made upon
consideration of marriage, except mutual promises to marry.

(1015.) Sec. 6. Every contract for the sale of anj' goods,
chattels, or things in action, for the price of three hundred dol-
lars, or over, shall be void, unless : 1st, a note or memorandum of
such contract be made in writing and subscribed by the parties to
be charged therewith ; or 2d, Unlerss the buyer shall accept or
receive part of such goods, or the evidences, or some of them, of
such things in action ; or 3d, Unless the buyer shall at the time
pay some part of the purchase money.

(1019.) Sec 10. Every instrument requu'ed by the provisions
of this act to be subscribed by any party may be subscribed by
the lawful agent of such party.

VIRGINIA. Code, 1873.
Chapter CXL.

1. No action shall be brought in any of the foUowinng cases :
First. To charge any person upon or by reason of a representa-
tion or assurance concerning the character, conduct, credit, ability,
trade, or dealings of another, to the intent or purpose that such
other may obtain thereby credit, money, or goods ; or,

Secondly. To charge any person upon a promise made, after
full age, to pay a debt contracted during infancy, or upon a ratifi-
cation after full age of a promise or simple contract made during
infancy ; or.

922 STATUTE OP FEAUDS.

Thirdly. To charge a personal representative upon a promise to
answer any debt or damages out of his own estate ; or,

Fourthly. To charge any person upon a promise to answer for
the debt, default, or misdoings of another ; or.

Fifthly. Upon any agreement made upon consideration of mar-
riage ; or,

Sixthly. Upon any contract for the sale of real estate, or the
•lease thereof for more than a }'ear ; or.

Seventhly. Upon any agreement that is not to be performed
within a year;

Unless the promise, contract, agreement, representation, assur-
ance, or ratification, or some memorandum or note thereof, be in
writing and signed by the party to be charged thereby, or his
agent ; but the consideration need not be set forth or expressed in
the writing, and it may be proved (where a consideration is neces-
sary) by other evidence.

2. Any writing to which the person making it shall affix a scroll
by way of seal, shall be of the same force as if it were actually
sealed.

WEST VIRGINIA. Kevised Statutes.

Chapter 95.

Same as in Virginia except that subdivison 2 as to seals is not embraced

therein.

WISCONSIN. Revised Statutes, 1878.
Title 22. Chapter CIV.

Sectiok 2302. No estate or interest in lands, other than leases
for a term not exceeding one year, nor any trust or power over or
concerning lands, or in any manner relating thereto, shall be
created, granted, assigned, surrendered or declared, unless by act
or operation of law, or by deed or conveyance in writing, sub-
scribed by the party creating, granting, assigning, surrendering,
or declaring the same, or by his lawful agent, thereunto author-
ized by writing.

Section 2303. The preceding section shall not be construed
to affect in any manner the power of a testator, in the disposition
of his real estate by a last will and testament, nor to prevent any
trust from arising or being, extinguished by implication or opera-
tion of law.

Section 2304. Every contract for the leasing for a longer period
than one year, or for the sale of any lands, or any interest in

APPENDIX. 923

lands, shall be void unless the contract, or some note or memoran-
dum thereof, expressing the consideration, be in writing, and be
subscribed by the party by whom the lease or sale is -to be made,
or by his lawfully authorized agent.

Section 2305. Nothing in this chapter contained shall be con-
strued to abridge the powers of courts to compel the specific per-
formance of agi-eements, in cases of part performance of such
agreements.

Chapter CV.

Section 2307. In the following case every agreement shall be
void, unless such agreement, or some note or memorandum thereof,
expressing the consideration, be in writing, and subscribed by the
party charged therewith :

1 . Every agi-eement that by its terms is not to be performed
within one j-ear from the making thereof.

2. Everj' special promise to answer for the debt, default or mis-
carriage of another person.

3. Every agreement, promise or undertaking made upon con-
sideration of marriage, except mutual promises to marry.

Section 2308. Every contract for the sale of any goods, chat-
tels or things in action, for the price of fifty dollars or more, shall
be void, unless :

1 . A note or memorandum of such contract be made in writing,
and be subscribed by the parties to be charged therewith ; or

2. Unless the buyer shall accept and receive part of such goods,
or the evidences, or some of them, of such things in action; or

3. Unless the buyer shall, at the time, pay some part of the
purchase money.

Section 2309. Whenever goods shall be sold at public auction,
and the auctioneer shall, at the time of sale, enter in a sale book
a memorandum specifying the nature and price of the property
sold, the terms of the sale, the name of the purchaser, and the
name of the person for whose account the sale is made, such mem-
orandum shall be deemed a note of the contract of sale, within
the meaning of the last section.

Chapter CVI.

Section 2321. Every grant or assignment of any existing trust
in lands, goods or things in action, unless the same shall be in
writing, subscribed by the party making the same, or by his agent
lawfully authorized, shall be void.

Section 2327. Every instrument required under any of the
provisions of this title to be subscribed by any party, may be sub-
scribed by the agent of such party lawfully authorized thereto.

924 STATUTE OP FEAtTDS.

WYOMING. Compiled Laws, 1876.
Chap. 57.

Section 1 . In the following cases every agreement shall be void
unless such agreement, or some note or memorandum thereof be
in writing, and subscribed by the party to be charged therewith :

First. Every agreement that by its terms is not to be per-
formed within one year from the making thereof ;

Second. Every special promise to answer for the debt, default
or miscarriage of another person ;

Third. Every agreement, promise or undertaking made upon
consideration of marriage, except mutual promises to marry, and
no action shall be brought to charge any person upon any breach
of promise of marriage, either upon mutual promises or promise
in writing, unless such action shall be brought within one year
after the making of such promise ;

Fourth. Every special promise by an executor or administrator,
to answer any demand out of his own estate ;

Fifth. Every agreement or contract for the sale of real estate,
or the lease thereof, for more than one year.

Sec. 2. Every contract for the sale of any goods, chattels or
things in action, for the price of .fifty dollars or more, shall be
void, unless :

First, a note or memorandum of such contract be made in writ-
ing, and be subscribed by the party to be charged thereby, or,
second, unless the buyer shall accept and receive part of such
goods, or the evidences or some of them, of such things in action
or, third, unless the buyer shall, at the tiniie, pay some part of
the purchase moneJ^

Sec. 3. TJo charge any person upon, or by reason of, a repre-
sentation or assurance concerning the character, conduct, credit,
ability, trade or dealings of another, to the intent or purpose that
such other may obtain thereby credit, money, or goods.

INDEX.

ABANDONMENT,

of premises by tenant, operates as surrender, when, 97-107.
See Reeve v. Bird, 98.
Pier V. Carr, 100.
uses of premises by landlord which amount to acceptance of posses-
sion and surrender, 97-107.
of contract, parol evidence admissible, when, to prove, 746.

ACCEPTANCE,

offer to guarantee does not bind untU there is, 190.

offer may be withdrawn before, 191.

implied when, 191.

express, 191.

waiver of references, 191.

of goods, what is, 556-616.

See Acceptance and Receipt.

of contract, how may be made, 733, 734 notes.

of terms of written contract by parol, effect of, 733.

special, 735.

when must be made, 735.

See Memorandum.
ACCEPTANCE OF GOODS. See Acceptance and Receipt.

ACCEPTANCE AND RECEIPT,
must be shown, 557.
statutory provisions as to, 557.
both must exist, 557, 571 n. 5.
acceptance may be without receipt, 557.
may be receipt without acceptance, 557.
can be no acceptance so long as buyer has right to reject, 557, 558,

561-568.
may be before receipt, 559.
need not be contemporaneous, 559 n. 1.

See Cusack v. Robinson, 560.
goods must be ascertained and identified, 561, 566 n. 1, 568.
right of rejection must be gone, 561.
may be waived, 561-568.

926 STATUTE OP FRAUDS.

ACCEPTANCE AND HECEIPT — Continued.

See Bog Lead Mining Co. v. Montague, 561.
Kershaw i'. Ogden, 563.
Hunt V. Hecht, 563.
Knight V. Mann, 565.

United States Reflector Co. v. Kushton, 566.
if article is not complete, can be no, 567.
See Maberley v. Sheppard, 567.
after action brought, 568, 569.
test of acceptance, 569-572.
mere words not sufficient to constitute, 570.
must be decisive acts of both of the parties, 570, 571, 577, 578.

See Calkins v. Lockwood, 571.
must be, with intention of taking possession as owner, 571.

See Phillips v. Bistoli, 571.
taking samples from bulk, amounts to, ■when, 572.
See Foster v. Frampton, 572.
Hinde v. Whitehouse, .573.
Gaillairt v. Roberts, 573.
Gardner v. Grout, 574.
when receipt of sample does not amount to, 572, 574.
See Gorman v. Boddy, 572.
Simonds v. Fisher, 574.
constructive, may be, what is, 575, 584-616.

See Baines v. Jevons, 575 n. 4.
acts, amounting to acceptance, 577-601.

See Hewes v. Jordan, 578.
acts of ownership by vendee, amount to acceptance, 580, 585.
receipt of part of goods, evidence of, but not necessarily acceptance,

580.
unpacking goods not necessarily, 580.
See Curtis v. Pugh, 580 n. 4.
using more of goods than is necessary for ascertaining quality, effect
of, 580.

See Parker v. Wallis, 582.
Kent V. Huskinson, 583.
must be acceptance affirming the contract, 584,
need not be express, 584.
constructive, instances of, 584-615.
by retention of bill of lading, 584.
by selling or offering to sell the goods, 585.
See Chaplin v. Rogers, 585.

Marshall v. Green, 587 n. 1.
Baines v. Jevons, 575 n. 4.
Morton v. Tibbetts, 588.
using goods as owner, though understood they were to be returned,
587.

See Beaumont v. Brengari, 587.

INDEX. 927

ACCEPTANCE AND KECFATT — Continued.
See Acraman v. Morrell, 588.
But see Mabeiiey v. Sheppard, 588.
Morton v. Tibbetts, statement of doctrine, and analysis of, 588-593.
Taylor v. Mueller, 593.
question of, for jury, 587.

marking goods ia name of vendee, effect of, 597.
See Anderson v. Scott, 597.
Proctor V. Jones, 598.
of one, of several articles, acceptance of all, when, 598.
rule when the contract is not entire, 601.
of goods not made, 601.
of goods sold by principal, as if agent, 602.
of goods under mixed contract, 602.

vendee must have opportunity to judge whether goods correspond
with order, 603.

See Hunt v. Hecht, 603.
or must have waived the right, 603.

vendee may keep goods a reasonable time for examination, 603.
use of a portion, to ascertain quality, does not amount to, 604.
goods need not be returned, 604.
delay in refusing, may amount to, 605.
See Bushel v. Wheeler, 605.
Norman v Phillips, 606.
Cunliffe v. Harrison, 606.
purchaser cannot withdraw, except, 607.
vendor's consent to, necessary, 607.
when contract is disaffirmed by vendor, effect of, 608.
by agents, rules as to, 608.

See Eogers u. Jones, 610.

Jordan v. Norton, 609 n 4.
by broker, 609.

person cannot act as agent of both parties, as to, 612.
carrier cannot accept, 613.
disputed terms though acceptance, 615.

See Tompkinson v. Staight, 615 n 7.
receipt of goods, does not take contract for, out of statute, 613 n 1.
by carrier, effect of, 613 n. 1, 614.
delivery on shipboard, 615.

delivery at railway station designated by vendee, 615.
what is actual, 616.

distinction between, and acceptance, 616.
test of, whether vendor's lien is gone, 616 n. 1.
special lien, effect of, 621.

See Dodsley v. Varley, 622.
lien for price under conditional sale, effect of, 624.

See Pinkham v. Mattox, 624.
goods in possession of vendee at time of sale, is when, 624.

928 STATUTE OP FEATJDS.

ACCEPTANCE AND B.ECE,IPT — Continued.
See Edan v. Dudfield, 624.
goods in hands of third person, 626.
by acceptance of delivery order, 627.
by acceptance of dock warrant, 627.
See Bentnall v. Burn, 627.
Farina v. Home, 629.
possession taken by vendee although goods not removed, 629.
symboUeal delivery of goods, what is, 630-641.
goods in possession of vendor as agent of vendee, 630-641.
See on this point Webster v. Anderson, 631.
Ex parte SafEord, 631.
Green v. Merriam, 631.
Vincent v. Germond, 631 n. 5.
Elmore v. Stone, 632.
Janvrin v. Maxwell, 632 n. 1.
however, holding that something more than words are

necessary, Shindler v. Houston, 632 n. 3.
Also Fallo V. Miller, 684 note.
Dale V. Stimpson, 634 n. 2.
Marvin v. Wallis, 634.
Tempest v. Fitzgerald, 634.
Carter v. Touissant, 685.
Castle V. Sworder, 635 n. 3.
rule as to, 637-641.

what must be done to make complete, 640.
delivery of goods to carrier may be, 641-644.

See Sales; Symbolical Delivery.

ACCOUNT STATED,

good as memorandum, 635.

ACT OP LAW,

surrender by, what is, 92.
instances of surrender by, 92-134.

ACQUIESCENCE,

when defence of statute barred by, 830.

ACTIONS,

respecting void contracts, 424.

will not lie upon void, although executed by one party, 424.

will lie upon special promise made after the contract has been exe-
cuted, 424-435.

See Van Valkenburgh v. Croffut, 425.

effect of admission by defendant of indebtedness under the contract,
425.

against principal, for purchase-money paid by agent for land, 425.

for money spent by person under voidable contract for land, lies,
when, 428.

INDEX. 929

ADMISSION,

of assets by executor, 138.

See Executors.
of agreement set up in bill for specific performance, effect of, 854,

856, 857.
of different agreement, 858.
ADMISSION INTO POSSESSION,
part performance, when, 826.

See Specific Performance.
ADMINISTRATOR,

sales of land by, at auction, under leave of court, within statute, 460.
See Executors.
ADVANCE,

payment o£ rent in, under void lease, effect of, 67.
AFFIDAVIT,

good as memorandum, when, 700.
AGENT,

for sale of land need not be appointed by writing, 44.
except, 44.

surrender made to, good, when, 76 n. 1.
acceptance by, binding, when, 608.
See Rodgers v. Jones, 610.
Jordan v. Norton, 609 n. 4.
cannot act for both parties, 612.

See Calkins v. HeUman, 612 n. 2.
contracts by, 778-796.
appointment of, 778.
parties cannot be, for each other, 779.
agency maybe shown by subsequent ratification, 779 note, 782 n. 4.

by adoption, 789 note,
may be appointed by parol, except, 779 n. 4, 782 n. 3.
may bind both parties, when, 779 n. 4, 780.
evidence to prove authority of, 782-787.
ratification of acts of, 786.
signature of telegraph clerk, 788.
See Acceptance and Receipt ; Auctioneer ; Evidence.

AGREEMENT,

for lease or sale may operate as license, 42.

for lease, effect of entry under, 46.

when enforced, 63-65.

to abate tenant's rent, within statute, 414.

that arbitration shall determine terms of lease, 414.

to establish title to land, 414.

to release covenant, 414.

to sell land at future day, 414.

to make mutual wills devising lands, 415.

for exchange of lands, 415.

930 STATUTE OP rEAUDS.

AGREEMENT — Continued.

for partition of lands, 415.

as to disputed boundaries, 420.

not performable in a year, 463-499.

not to do certain things, 497-500.

for sale of chattels, 500.

See Sales.

admission of, by defendant, effect of upon specific performance, 854.
See Contracts ; Specific Pekpormance; Collaterai. Agreements.

ALIENATION OF LAND,

historical view of, 346.

-Xlteration,

in memorandum, effect of, 678, 679.

See Memorandum ; Specific Performance.
AQUEDUCT,

license to lay on lands revocable at will, 9, 19 n. 10.

landowner may forcibly remove, 19 n. 10.
ARBITRATION,

parol agi-eement to submit terms of lease to, within statute, 414.
ASSETS,

what amounts to admission of, by executor, 138.

need not be alleged, 148.
ASSIGNMENT,

of lease, how may be made, 73.

effect of statute on, 73.

of tenancy from year to year, 74.

demise of whole term may be, or lease when, 74.

of dower, whether within the statute or not, 422.
ATTACHMENT,

discharge of, in consequence of promise of third person to pay the
debt, within the statute, 266.
ATTORNEY,

verbal guaranty by, 305.

promise by, to pay client's debt out of funds to be collected by, 231
.n. 1, 241 n. 1.

AUCTION,

sale of lands at, within the statute, 456.

judicial sales, not, 457.

sales of land at, by sheriff, are, when, 457.

by loan officers, 457.

foreclosure sales, 458 n. 3.

by administrator under leave of court, 460.

sales of several articles at, to same person at distinct prices, treated

as one sale, 512.
memorandum of sales at, how may be made out, 719-725.
See Auctioneer ; Memorandum ; Sales.

INDEX. 931

AUCTIONEER,

memorandum of sale made by, how may be made, 719-725.

when must be made, 720 n. 5, 721, 723, 727.

by sheriffs, etc., may be made after sale, 723 n. 1.

what must contain, 721-729.

by party himself acting as, not good, 720, 726.

memorandimi may be made by his clerk, 723 n. 1, 726.

See Memorandum.
is agent of both parties, 78, 726.
authority may be negatived by facts of the case, 781.
when his agency for purchaser begins, 781.
clerk of, powers of, 787.
BAIL,

parol promise to indemnify person against consequences of becoming,

289, 290-293 and notes,
in criminal proceedings, promise to indemnify against, 290 n. 2, 292.
in civil cases, 290 n. 2, 293.
to execute bail bond, 286-296.

BANKRUPTCY,

sales of land by assignee in, within statute, 456.

BARTER,

contracts for exchange of, for, within statute, 506.

BILL OF PARCELS,

good as memorandum, 655.

BOARD AND LODGING,

contracts for, not within statute, 348.

BOND,

for title to land, parol sale of, within statute, 411.

of reference to surveyor good as memorandum when, 698.

BOOK,

of broker, signed entry, insufficient as memorandum, 788-791.
of tradesman, evidence as to whom credit was given for goods, 165
n. 1, 216.

BOUGHT AND SOLD NOTE.

evidence of contract only, 789 n. 8, 791-793.

variance between, and signed entry, effect of, 793, 794.

by broker employed by purchaser only, binding, when, 795.

either bought or sold note satisfies statute, when, 790 note.

how variance may be shown, 790 note.

how variance may occur, 790 note.

BOUNDARIES,

disputed, parol agreements as to, within statute, when, 420.
under order of court, 421.

what must be shown to give validity to parol agreement for settle-
ment of, 421.

932 STATUTE OF PKAITDS.

BILL OF LADING,

receipt and retention of, as evidence of acceptance, 584 n. 6.

BRICK,

contract to make, on and from soil of another, not within statute,
when, 367 n. 1.

BRIDGES,

license to build, does not give right to rebuild, 6 note.
See Hall v. Boyd, 6 note.
BROKER,

promise to pay, 227.

acceptance by, binding, when, 607.

agent for both parties, 788.

signed entry in his book, contract, when, 788-791.

bought and sold notes, eSect of, 789 n. 8, 791-793.

variance between signed entry and bought and sold notes, effect of,

793.
immaterial variance, 794.
sale on credit by, vendor may retract, 795.
employed by purchaser only, his sold note binding, when, 795.

BUILD,

agxeement to, not within statute, when, 399, 400 n. 5.

BUILDINGS,

license to erect, confers easement, 5 n. 7.

license by parol revocable at will, 9.

parol sale of, not within statute, when, 402.

CANCELLATION,

of deed, effect of, 412.

CARRIER,

receipt of goods by, not acceptance by purchaser, 558, 641-645.

CHANCERY,

sales of land by order of court of, not within the statute, 456-461.

CHANNEL,

parol license to dig, revocable at will, 9.

CHATTEL,

specific, action against executor for, 148.

CHOSES IN ACTION,

whether goods or not, 501-506.

CHURCHES,

pews in, are treated as land, 422.

CIRCUMSTANCES,

attendant, to be considered in cases of guaranty, when, 166.
COAL,

right to dig, parol sale of, within statute, 411.

INDEX. 933

COLLATERAL AGREEMENTS,

to a lease, 68.

must be existing debt, 150, 220.

what are, 150, 156, 104 n. 1, 193.

tests for determining, 156, 166, 193-197.

■where debt is created in consequence of promise, not, 194 n. 1.

illustrating, see Proprietor &c. v. Abbott, 194 n. 1.
Morehouse v. Crangle, 193.

if any credit is given to person promised for, is, 194.

what is essential to make a, 156.

instances of, 203-205 and notes.

may be, although made before debt is created, 206 n. 1.

in case of guaranty, statute only applies to, 150.

to an intended transfer of land, 407, 423.
COLLATERAL PROMISE,

See Collateral Agreements ; Promise.
CONNECTION,

between papers making up memorandum, how must appear, 739-745.
See Ilinde v. Whitehouse, 739 n. 4.
Pierce v. Cory, 739 n. 4.
Johnson v. Dodgson, 740 n. 4.
CONSIDERATION,

when must be stated in memorandum, 61 n.

when need not be, 61 n. 2.

forbearance to sue, as, 144, 173.

not goods as, when, 143.

moral obligation, 146.

of promise relating to marriage, 316.

for guaranty, must be, when, 162 n. 1, 171.

instances of, 171-179.

new and independent, rule as to, 160 n. 1, 175, 224.

rule in Tomlinson v. Gill, 152 notes.

rule in Reed v. Nash, 152 notes.

when promise springs from new transaction, 151 n. 1.

superadded inducement as, 153 notes.

See Williams v. Leper, 153 notes.

original, takes promise out of statute, 159, 161 n. 1.
See Buekmyr v. Darnall, 160.

need not appear in guaranty except, 176.

rule when promise is contemporaneous with contract, 171 n. 4.

special, not necessary, 177.

statement of, 179.

amount of, 179.

instances of good, 181.

contract in relation to marriage need not express, 316.
CONSTRUCTIVE ACCEPTANCE,

of goods, what is, 575.

See AccEPTA]s[CB and Receipt.

934 STATUTE OF FEATJDS.

CONSTRUCTIVE SEVERANCE,

of growing trees and crops, what is, 368-403.

CONVEYANCE,

of land by licensor, revokes license, 8, 31-41.

CONTRACTS,

relating to lands, what are, 347.

instances of, 348.

to support owner, for use or title of land, not within the statute, 400.

parol, for work to be done on land not within statute, when, 404.

to pay for services in land, 404, 410.

to pay for services by devise of land, 404.

to pay for services in selling laud, 404, 410.

to pay taxes on land, 407.

to pay price of land in a particular way, 407.

not to use premises for certain purposes, 407.

parol, to pay additional price for land on a contingency, 408.

illustrations, 408-410.

to sell lands, 410.

to sell lands on commission, 410.

to locate lands, 410.

to locate land warrants, 410.

for sale of land warrants, 411.

for sale of possessory rights, 411.
to establish title, is within the statute, 414.
to release a covenant running with the land, 414.
to execute agreement to sell land, 414.
to purchase land, 414.

only voidable, unless otherwise provided in statute, 414.
to abate a tenant's rent, 414.
to submit to arbitration as to terms of lease, 414.
to convey equitable interest, 414.
parol, for making of mutual wills, 415.

for exchange of lands, 415-420.

for partition of lands, 415-420.

as to disputed boundaries, 420.
for release or assignment of dower, 422.
for sale of pews in churches, 422.
for partnership in land, 422.
actions in respect to void, 424.
merely collateral to transfer of land, 423.
purchaser taking property under, liable on implied, 436.
statute does not apply to implied, 436.
for goods, wares, and merchandise, what is, 502.
to manufactijre goods, whether within statute or not, 527-555.

See Executory Sales.
to make up materials and annex to land, effect of, 504.
of sale, what is, 506.
defeasible, of sale, effect of, 507.

INDEX. 936

CONTRACTS— Continued.

how compliance with statute in relation to, may be shown, 649.
parol evidence admissible to show that none was made, 745.
or that it was conditional, 735.
or that writing does not state the, 746.
to show that price was agreed on, 746.
to show waiver or abandonment of, 762 n. 1.
party to, may waive statute, 878.

signed by one and acted on by both may be enforced in equity,
661 n. 1.

See Contracts not Performablb in a Year.
CONTRACTS NOT PERFORMABLB IN A YEAR,
general rule as to, 463-466, 471-479.
must be one not to be completed in one year, 463, 474.

See Boydell v. Drummons, 463.
not to be performed in one year, 474.
for rent of house for one year from future day, 463 n.
to pay money after one year, for land presently conveyed, 463 n.
to marry within five years, 463 n.
to labor for another three years, 463, 472.
to sell crop raised the present and succeding year, 463 n.
for board for one year from a future day, 463 n.
to pay money in annual instalment, 465 n. 1.

to labor for another one year from a future day, 471, 472 n. 7, 485,
489.

See Tuttle v. Sweet, 472 n. 4.

Snelling v. Huntingford, 472 n. 4, 474.
Hall I'. Rowley, 473 n.
Nones v. Homer, 473 n. 4.
Bracegirdle v. Heald, 473 n. 4.
Giraud v. Richmond, 474 n.
to pay debt in labor at a certain sum a year, 472.
rule, when may possibly be performed in a year, 466, 490.
to maintain child at a certain sum a year, 467.
to work for another as long as he lives, 467, 470.
to work for another so long as a certain person remains agent for

hun, 467.
to work for salary as they mutually agree, 482.
to pay money on the return of a certain ship, 468.
dependent upon uncertain event, 468 n. 2.
to be performed on a contingency, 468 n. 2, 471.
illustrations, 469-471.
■ to work for another for a reasonable time, 469.
to work for another as long as he chooses, 483.
to pay money within five years, 463.

to employ a person until he recovers from a certain disease, 470.
to pay money when a certain suit is ended, 470.
to work for another as long as both agree, 470.

936 STATUTE OP FEATJDS.

CONTRACTS NOT PERFORMABLE IN A Y'EAR— Continued.
to support a person as long as he lives, 470.
to pay a debt when a certain person dies, 470.
to marry when a certain voyage is ended, 470.
to pay a person a certain sum annually, as long as he lives, 470.
not to carry on a certain trade at a certain place, 470, 483-485.
instances of, dependent upon contingency, which are within the

statute, 471.
for a general hiring, 472.

rule, when may or may not be performed in a year, 479.
instances of, 480 n., 486.
rule in Penton v. Emblers, 480.
rule in Peter v. Compton, 482.
rule in Hodges v. Richmond Mf'g Co., 482 n.
implied, statute does not apply to, 485.
presumed to commence at once, when, 486-492.

See Russell v. Slade, 486 n. 3.
when not, 487.

See Sutcliffe v. Atlantic Mills, 487 n. 1.
void, when contract may be shown to ascertain value of services, 489.
parol, to maintain division fence not within statute, 489.
parol, by railroad company to stop trains at certain place, within

statute, when, 489.
void, performance of, entered upon, either may terminate at any

time, 490.

See King v. Welcome, 490 n. 3.
cannot be enforced, 491.

recovery for part performance on quantum meruit, 491.
for services for one year, rule if party remains longer, 492.
part performance by one does not take out of statute, 492.
rule as to contract defeasible within a year, 494.
rule when fully executed by one party, 494.
not to do certam thhigs, not within statute, when, 497.
vendition of right, 500.

CONTRACTS RELATING TO LANDS. See Interest in Land.

CO-PARCENERS,

parol partition of land by, 417, 418 n. 4.

CORPORATIONS,

promise to pay debt of, within statute, 308.

records of, good as memorandum, when, 675.

bound by acts of part performance of contracts relating to lands, 851.

COSTS,

of suit, promise to indemnify against, 296.
illustrations, 296-298.

COURT,

sales under order of, not within statute, when, 456.

INDEX. 937

COVENANTS,

implied in parol leases, 66-69.

running with land, parol agreement to release, within statute, 414.
statute does not apply to implied, 436.
CREDIT,

if any is given to debtor, guarantor not liable upon parol guaranty,

202-214 and notes.
if terms of, agreed upon, must be stated in memorandum, 656.
but if contract has been performed on both sides and memorandum
is defective, rule, 738.

See Lockett v. Nocklin, 738.
CROPS,

raised the present and succeeding year, contract for sale of, within
statute, 463 n.

CROPS, INTERMEDIATE,

what are, 370.

rule as to, 379.

rule in Graves v. Weld, 379.
DAMAGES TO LAND,

agreement not to claim, for certain acts, when not within the statute,
349 n. 5.

agreement to pay, not within statute, 399-402.
DATE,

of memorandum may be proved by parol, 752.
DEATH,

of licensor revokes parol license, 9.
DEBT,

cause of, need not be shown in case of guaranty, 143.

to be transferred, promise to pay, 230.

promise to pay one's own, not within statute, 245.

meaning of, in statute, 182.

purchase of, or guaranty, 268.
"DEBT, DEFAULT, OR MISCARRIAGE,"

meaning of, in statute, 182.

DEBTOR,

original, discharged guarantor liable, 214.

illustrations, 214 notes 1, 4.

must be principal, to make guaranty, 218.

promise to pay debt out of funds of, 230.

proniise to pay debt out of proceeds of property of, 230.

when promisor estopped from denying that he has funds, 240.

promise made to, to pay his debt to another, 235.

DECLARATION OF TRUSTS. 5ee Trusts.

DEED,

signature not necessary, when, 43.
reservation of growing crops, etc., effect of, 42.

938 STATUTE OF FEATJDS.

DEED — Continued.

retujn or destruction of, does not operate to reconvey the title,

except, 412 and notes,
easement can only be created by, 5, 6.
necessary for leases in some cases, 4.
assignment and surrender must be, by, when, 89-92.
equitable mortgage, by deposit of, 441-456.
parol agreement to deposit, 452.

DEFEASIBLE CONTRACT,
of sale, what is, 507.
efiect of, 507-509.

DEL CREDERE,

agency, not a guaranty, 302.

DELIVERY,

receipt of goods by carrier is, 558.

must be, to constitute acceptance, 569-572.

symbolical, what is, 571, 630-641.

See Calkins v. Lockwood, 571.
may be without acceptance, 557.
if articles not complete, can be no, 567.
after action brought, 568.
to carrier, 613 n. 1, 614, 641.
on ship-board, 615.

at railway station, designated by vendee, 615.
test of, 616 n. 1, 621.

of goods in possession of vendee at time of sale, 624.
goods in hands of third person, 626.
by acceptance of deliveiy order, 627.
by acceptance of dock warrant, 627.
of goods in possession of vendor, 629-641.

See Symbolical Delivery; Acceptance and Receipt.

DELIVERY ORDER,

acceptance of, amounts to receipt of goods, when, 627.
DEMISE,

paroL

See Assignment ; Licenses ; Leases.
DEMURRER,

claiming protection of statute, effect of, 493.

advantage of statute may be taken by, when, 493, 855.

DEPOSIT OF DEEDS,

creates equitable mortgage, when, 441-456.

DESCRIPTION OF PROPERTY,

in memorandum, what is sufficient, 680-688.

DETERMINATION,

of tenancy from year to year, 94.
ineffectual notice to quit, effect of, 94.

INDEX. 939

DISCLAIMER,

by tenant does not amount to sui-render, when, 93.
DISPUTED BOUNDARIES. -See Boundaries.
DISTRESS,

refraining from, on faith of guaranty, 268.

DITCHES,

license to dig, revocable, 14 n. 2.

DOCK WARRANT,

acceptance of, amounts to receipt of goods, when, 627.

DOWER,

right of, interest in land, 422.

parol agreement by widow not to claim, within statute, 422.

parol release of, by widow, 422.

assignment of, 422.

DRAINS,

license to lay, revocable, though right is paid for, 10.

EARNEST,

efEect of payment of, at common law, 514.
alters the property conditionally, 515.
what is, and efEect of, since the statute, 519.
efEect of statute on bargains and sale of goods, 517.

EASEMENTS,

can only be created by deed, 5.
rule in Hewlins v. Shippam, 5.
rule in Crocker v. Cowper, 6.
rule in Wood v. Leadbitter, 6.
license is, when, 5.
instances of, 5 n. 7.
license to lay drain, 10.
to license to dig channel, 9.

to pass over lands with teams, etc., 9.

to flood lands, 14 n. 2.

to connect with public drain, 14 n. 2.
ENTRY,

under void lease, efEect of, 47.

EQUITABLE INTEREST,

in land, parol sale of, within statute, 414.

EQUITABLE MORTGAGE,

equitable mortgage by deposit of title-deeds, etc., 441.

special agreement not necessary, 443.

what interest passes, 443.

explanation of extent of charge, 444.

deposit of copies of court roll, etc., 444.

deposit of shares in companies, 444.

deposit of insurance policy, 445.

940 STATUTE OP FRAUDS.

EQUITABLE MORTGAGE — Continued.
deeds,relatmg to property abroad, 445.
■whether mortgagor bound to execute a legal mortgage, 446.
adverse possession, 446.
subsequent advances, 447.
sub-mortgage, 448.

legal mortgage not security for subsequent advances, 449.
rectification of accompanying instruments, 449.
deposit of deeds to have legal mortgage drawn, effect of, 449.
presumption of mortgage may be rebutted by evidence, 450.
parol evidence to contradict memorandum, 451.
sale in banki-uptcy, 452.

parol agreement to deposit deeds, effect of, 452.
delivery to wife of depositor, 452.
deeds remaining in possession of debtor, 453.
deposit with firm, 454.

whether all the title-deeds should be deposited, 454.
good titles need not be shown, 454.
part of deeds deposited with one creditor, and part with another,

effect of, 455.
deeds relating to part of an estate, 455.
memorandum refering to different deeds from those deposited, effect

of, 456.
direction to third person to hand over deeds, effect of, 456.

EQUITY,

when parol license binding in, as to third persons, 15 n. 1.
sales of land by order of court of, not within statute, 456-461.

ESSENCE RULE,

as to executory sales, what is, 549.

ESTOPPEL,

application of, in case of surrenders, 92.

EVIDENCE,

cancelling of lease does not amount to prima facie evidence of sui--

render, 90.
fact that goods are charged to third person, not conclusive that credit

was given to him exclusively, 165 n. 2.
circumstance attending transaction admissible as, to determine

whether promise is original or collateral, 166.
to identify subject-matter of a guaranty, 178.
as to whom credit is given in case of guaranty, what is, 218.
parol, admissible to prove contract relating to marriage, when
writings are lost, 329.
not admissible to contradict memorandum relating to equita-
ble mortgage, 451.
admissible to explain ambiguity in memorandum, when, 704.
admissible to identify documents referred to in, 704.

INDEX. 941

EVIDENCE — Continued.

parol, to explain meaning of terms used in memorandum,.when, 704.
as "instructions," 704.

" terms agreed upon," 704.
"purchase," 704.
" our arrangement," 704.
"pm-chased," 704.
to show that certain unsigned paper is referred to, when, 704.
not admissible to connect papers to make memorandum, 704.
admissible when reference is ambiguous, 704.
See Long v. Millar, 705.

Ridgway v. Wharton, 705.
however, contra, Brown v. Whipple, 705 n. 2.
not admissible to supply defect in memorandum, 711 n. 1, 714 n.

See Archer v. Baynes, 711 n. 1.
admissible to identify agreement referred to in memorandum,

647 n. 3.
not admissible to show who is buyer and who seller in memo-
randum, 649.
not admissible to identify property described in memorandum,
except, 659 n. 1.
when contract, void under statute, has been performed on one side, in
action for recovery, the terms of the contract may be proved by
parol, 436 n. 5.
competency of, for court, 576.

See Holmes v. Hoskins, 576 n. 4.
parol, not admissible to vary contract, 736.

admissible to prove stipulation of, when, 737.
not, to connect separate documents, 739.
when, to explain imperfect reference, 743.
cases when not admissible, 743.
is, to show that no contract was intended, 745.
to prove that price was agTeed on, 746.
show abandonment of contract, 746.
explain latent ambiguity, 749.
explain omission in bought and sold notes, 749.
show situation of parties, 749, 861 n.
explain subject-matter, 750.
show usage of trade, 751.
show alteration in article ordered, 752.
show date of contract, 752.

show that contract signed by agent was signed for prin-
cipal, 752.
prove assent to alterations in memorandum, 753.
prove assent of principal, 754.
admissible to show that goods were sold by sample, 737.
or as in a certain condition, 737.
or subject to approval, 737.

942 STATUTE OF FRAUDS.

'EVID'ENCB— Continued.

parol, not, to show names of parties, 737.

of trust, what is, 802.

requisites to prove trust, 803. ^

parol, admissible to create trust, when, 808.

to rebut presumption as to part of property, 808.
not admissible to prove agency, 809.

admissible to prove acceptance of written proposal, 666, 733.
admissible on behalf of defendant resisting specific perform-
ance, when, 858, 865.
grounds on which admitted, 859.
instances in which it is admitted, 859-862.
why not admitted on behalf of plaintiff, 862.
when admissible on part of plaintiff, 863, 864.
parol variation of agreement may be shown and specifically en-
forced, when, 863.
parol, by defendant, to show mistake by omission of terms, 865.
to prove promised alteration, 866.
when not admissible to add term, 866.
when terms are ambiguous, 869.

See Resulting Trusts.
EXCHANGE,

of lands by parol, 415.

EXECUTION,

promise to pay debt, if not levied, 274.

■ creditor, promise by, to pay for services of attorney employed by
sheriff to test title of property, 230.

EXECUTORS,

one, may surrender lease, 88.

notice to quit given by one, not sufficient, 95.

acceptance of surrender by one, effect of, 100.

guaranty of testator's debt by, 137-148.

must be consideration for, 137.

assets, admission of, must be alleged and shown, 137.

what amounts to admission of assets by, 138.

when liable, though no assets admitted or shown, 142, 146.

requisites of promise by, 143.

forbearance to sue, consideration, when, 144.

time of, 146.

must be cause of action when promise is made, 145.

moral obligation, 146.

promise to pay at a future time, 146.

action against, for specific chattel, 148.

not bound to plead statute, 148.

EXECUTORY AGREEMENTS. See Executory Sales.

EXECUTORY CONTRACT,

for sale of land can only be transferred by writing, when, 418, 415.

INDEX. 943

EXECUTORY SALES, '

■what contracts are within the statute, 527.

■when for sale of goods, and when for work, etc. English rule, 529-

537.
American rule, as to purely, 537.
contracts of sale, or for work and labor. Rule in New Hampshire,

540.
rule in New York, 542.
rule in Maine, 545.

rule in Massachusetts, New Jersey, and Wisconsin, 546.
the essence rule, 549.
contracts to produce and deliver, 553.
"when the property vests in the vendee, 553.

EXCHANGE OF LANDS,

contracts relating to, -within statute, when, 415.

FACT,

commencement of new tenancy is question of, 128-131.

FAIR,

payment of fee for exhibiting goods at, effect of, 7 n. 2.

FALSE REPRESENTATIONS,

as to solvency of another, 306.

FAMILY ARRANGEMENTS,

as to lands, by parol, effect of, 850.

See Specific Performance.
FARM,

contract to work on shares, not within the statute, 359 n.

FIXTURES,

sale of, by tenant, not a sale of an interest in land, 351.

agreement of landlord to pay tenant for, not within the statute, 353.

parol sale of, not within statute, when, 402.

FORBEARANCE TO SUE,
on faith of guaranty, 266.

FORECLOSURE SALES,

at auction, judicial sales, 458 n. 3.

FOREIGN CONTRACTS,
effect of statute upon, 305.

FRAUD,

not allowed to be covered by statute, 851-854.
takes case out of statute, when, 851-854.

FRAUDS, STATUTE OF,

section 1, 29 Car. II., chap. 3.

provisions of, in .several States of this country, 2.

how it affects lessor's remedies, 5.

rule in Ege v. Stafford, 5.

944 STATUTE OF FEAXJDS.

FRAUDS, STATUTE OF — Continued.
rule adopted in this country, 5.
effect of, upon assignment of leases, etc., 73.
executor not bound to plead, 148.
application of, to guaranties, 150-310.

See Guaranties.
does not apply to implied contracts, 436.

cannot be pleaded to bill for specific performance, after agreement is
admitted, 854.

FREEHOLD,

interest must be conferred by deed, 8.
license to enter and cut standing trees, 8.
revoked by conveyance of land, 8.

FRUCTUS INDUSTRIALES,

crops, sale of, not within the statute, 352 n. 5, 353-356.
whether goods, while growing, 353-356.

See Growing Crops.

FRUCTUS NATURALES,

crops, sale of, within the statute, 386.
See Growing Crops; Grass; Growing Timber; Fruit.

FRUIT,

sold by the bushel, 354 n.

FURNISHED HOUSE. See Houses.

FURNISHED LODGINGS. See Rooms.

FURNISHED ROOMS. See Rooms.

GENERAL HIRING,

statute does not apply to contracts for, 472.

GOODS SOLD AND DELIVERED,

action for, lies for growing crops after severance and delivery, 354 n.

GOODS, WARES, AND MERCHANDISE,

what are, 502-509.

material to be made up and annexed to land, not, 504.

sale of.

See Acceptance and Receipt; Auctions.
GRANTEE,

of land, not bound by parol license granted by his grantor, 9.
promise by, to pay mortgage debt, 240.

GRASS,

growing, sale of, within the statute, 353 n. 5.

growing, sale of, after severance and delivery, price may be recovered

as for goods sold and delivered, 354 n.
rule in Crosby v. Wadsworth, 355.
rule in Parker v. Staniland, 355.
rule in Washburn v. Barrows, 356.

INDEX. 946

GRASS — Continued.

marldng off, and separating from other, effect of, 869.

distinction between ripe and unripe, 371, 372.

to derive support from tlie soil, rule as to, 300 u.,362n.,364n., 370, 372.

species of, sale of, which is not within the statute, 882, 383 n. 1, 389.

sale of, after severance, 355.

sale of, to be severed by vendor, 355.

growing grass, 353 n. 5, 355.

fructus naturales, 386.

whether yhichis industriales while growing, 891.

fiuctus industriales, 352, 386.

distinction between, 386.

rule in Jones v. Flint, 387.

rule in Waddington v. Bristow, 388.

rule in Purner v. Piercey, 388.

distinction between, and growing trees.

intermediate crops, 379.

intermediate madder, 379.

intermediate clover, 379.

intermediate teasles, 379.

when mere accessories to land, 382.

not yet sown, 385.

contracts to plant and sell, 385.

not returning profit within a year, 392.

sold with the lands, 391.

rights of outgoing tenant, to, 391.
GRAVEL,

contract for sale of, to be taken out by vendee, rule as to, 357.

GROWING CROPS,

sale of, fructus industriales, not within the statute, 352 n. 5, 353-356.
tendency of the courts as to sales of, 354 n.

GROWING TIMBER,

sale of, by the foot, not within the statute, 354 n.

GROWING TREES,

sale of, to be severed by vendee, rule as to, in England and the sev-
eral states of this country, 357, 371 notes,
may be sold apart from the land, 358 n. 1.
are part of freehold, 358 n. 1.
chattels, after severance, 361.
constructive severance of, what is, 367.

sale of, to be severed by vendor, not within statute, 356, 358 n.
rule in Smith v. Surman, 356.
rule in Marshall v. Green, 357, 363-367.

GUARANTIES,

promise by executors, etc., binding, when, 137-148.

See Executors.
offer to, does not bind until accepted, 190.

946 STATUTE OP PEAUDS.

GUARANTIES — Continued.

debtor discharged, promise is original, 195 n. 1.

by one .partner binds firm, when, 195 n. 1.

person other than creditor, not within statute, 197 n. 2, 198 n. 1.

application of the statute to, 156.

how should be pleaded, 157.

rule in Harris v. Huntback, 158.

rule in Buckmyr v. Darnell, 160.

form of promise not decisive of its character, 164.

attendant circumstances to be regarded, 166.

rule in Anderson v. Hayman, 166.

rule in Keate v. Temple, 168.

statute does not apply to guaranty of, specialty debts, 171.

consideration, 171.

instances of, 171-182.

rule as to, when guaranty made at time of contract, 171.

consideration need not move directly between the parties, 175.

must be new, 175.

need not appear in guaranty, except, 176.

special, not necessary, 177.

rules as to, 177.

"statement of, 179.

amount of, 179.

parol evidence admissible to identify subject-matter
of, 178.

bad promise not helped by statute, 178.

construction of, 180.

rules for construing, 180.

meaning of words "debt, default, etc.," 182.

partly within and partly without statute, rule as to, 183.

rule in Couch v. Meeker, 187.

promise to give, 189.

promise to, not binding until, 190.

offer may be withdrawn, 191.

implied acceptance of, 191.

waiver of references, 191.

collateral or not, tests for determining, 193.

promise must be to person guarantied, 197.

if person promises for, liable at all, rule as to, 202.

guarantor nmst not be liable, 205.

when credit is given to guarantor, rule, 210.

original debtor discharged, rule, 214.

to whom credit was given, for jury, 216.

evidence as to whom credit was given, what is, 218.

must be principal debtor, 218.

.must be debt to guarantee, 220.

new and independent consideration, rule, 224.
promise to pay broker, 229.

INDEX. 947

GUARANTIES— Con/inuerf.

promise to pay a debt to be transferred, 230.

by execution creditor, '2'.i0.

percentage, promise in consideration of, 230.

promise to pay out of funds of another, 230.

when promisor estopped from denying that he has fund, 240.

■when property deposited with guarantor to pay debt, 232.

promise made to the debtor to pay his debt, 235.

promise of grantee to pay mortgage debt, 240.

when promisor estopped from denying that he has funds, 240.

when debt has become debt of promisor, 245.

when promise cannot be revoked, 248.

when payable if no time is agreed on, 251.

parting with security on faith of, effect of, 255.

lien, giving up, on faith of, eilect, 255.

rule in Maine, Campbell v. Stuart, 259.

general rule, 260.

promisor must derive benefit from, 261.

discharge of attachment on faith of, 266.

forbearance to sue on faith of, 266.

refraining from distress, 268.

purchase of debt, or, 258.

promise is original when, 270.

against tortious acts, 271.

bail in criminal proceedings, 274.

when liability guarantied is extinguished, 274.

novation, effect of, 275.

indemnities, 286.

parol, of note turned out to pay debt, 298.

del credere agency, contract for, 302.

for goods furnished to infant, 303.

rights under parol, 304.

married woman, goods furnished to, under, when original promise, 304.

dissolution or alteration of contract by parol, 305.

foreign contracts, 305.

false representations as to salary, 306.

corporations, statute applies to, guaranties for, 308.

may be good when in form of letter addressed to a person not
named, 670.

See Griffin v. Rembert, 670.

but not when addressed to persons by wrong name, 671.
See Grant v. Naylor, 671 n. 1.

when debt has become debt of guarantor, 245.

HIRING,

contracts of.

See Contracts.
HOUSES,

leasing with agreement to furnish, within the statute, 349.

when agreement to furnish is independent of letting of house, 349.

STATUTE OF FRAUDS.

HUSBAND AND WIFE,

surrender should be made to wife, when, 76 n. 1.

tenants under lease to both, husband alone, or both together, may

surrender, 88.
when surrender made by husband alone, 88.
wife's interest revest on death of husband, when, 88.

IMPLIED CONTRACT,

statute does not apply to, 485.

IMPLIED PROMISE. See Promise.

IMPLIED TRUSTS. See Trusts.

IMPROVEMENTS,

on land, parol sale of, not within statute, when, 402.

made under a license, 402.

under parol, purchase of land, 402.

as ground for specific performance, 826-831.

INDEMNITY,

contract of, whether within statute or not, 286.

Thomas v. Cook and Green v. Creswell reviewed, 287-298 and notes.

distinction between contract of, and guaranty, 288.

See Anderson v. Spence, 288.
promise to indemnify against consequence of signing bail bond, 289,

290-293 and notes,
promise to, to person becoming surety for another, 290, 295.
promise to indemnify sheriff, etc., 290 n. 1, 293.
promise to indemnify against a trespass, 294.

See Morey v. Crawford, 294.
promise to indemnify co-surety, 294.
promise to indemnify against costs of suit, 296.
promise to indemnify creditor taking note of third person for debt,
298-302 and notes.

See Eagle &c. Co. v. Shattuck, 298 n. 2.
Milks V. Rich, 298 n. 2.
instances in which such contract is within the statute, 300.

See Dows v. Swett, 300 n. 1.

INDEPENDENT,

and new consideration, 224.

<See Guarantee ; Consideration.
INFANT,

surrender to, good, when, 76 n 1.

surrender by, by deed, void, 88.

promise to pay for goods furnished to, original, 303.
INJUNCTION,

to restrain interference with license, 42.
INSTALMENTS,

contract to pay money in, when within the statute, 465 n. 1.

when not, 470.

INBEX. 949

INSURANCE POLICY,

equitable mortgage by deposit of, 445.

INTEREST,

license coupled with, irrevocable, 13-20.

species of, which makes license ii-revocable, 13-20.

INTEREST IN LAND,'

to what, the statute applies, 347.

instances of agreements relating to an, 348.

agreements for leases are an, 348.

letting and hiring of furnished rooms are, 348.

contracts for board and lodging are not, 348.

instances of agreements relating to, within the statute, 348, 349 n. 5.

See Landlord and Tenant ; Damages to Land.
contracts relating to lands which are not within the statute, 351.

for the manufactvu-e of bricks, 351.

for the sale of growing fruit, 351.

to permit trees to be set for a niu'seiy on shares, 351.
sale of growing crops, 352 n. 5, 353.
growing grass, 353 n. 5, 355.
crops fructus naturales, 386.
crops fructus industriales, 386.
distinction between, 371, 386.
growing trees, 356-379.

distinction between growing crops and growing trees, 371.
what agreements between landlord and tenant are for an, 349.
contracts relating to, which are not within the statute, 351.
contract to set nursery on shares, 351.
sale of mulberry trees, not an, 351.
sale of buildings, tenant's fixtures, not, when, 351.
test for determining what is an, 352 n. 3, 354.
intermediate crops, 379.
shares in companies, whether are or not, 392.
shares in mine, 396.

historical view of alienation of estates in lands, 340.
application of the statute, 347.
instances of agreements within the statute, 348.
agreements between landlord and tenant, 349.
contracts relating to land which are not within the statute, 351.
sale of growing crops, 353.
sale of crops after severance, 355.
growing trees, 356.

distinction between growing trees and crops, 371.
intermediate class of crops, 379.
crops when mere accessories to land, 382.
crops not yet sown, 385.

distinction between crops yrwc^us industriales a,nd fructus naturales, 386.
rule in Jones v. Flint, 387.,

950 STATUTE OF FEATJDS.

INTEREST IN LAND — Continued.
rule in Waddington v. Bristow, 388.
rule in Purner v. Piercy, 388.
crops sold with the land, 391.
rights of out-going tenant, 391.

whether /rucfus industriales are goods while growing, 391.
growing crops not returning profits within- the year, 392.
shares in companies, when an interest in lands, when goods, etc., 392.
shares in a mine, 396.

agreement for lease, or for sale of, within statute, 397.
mixed indivisible contract, 397.

agreements amounting to transfer of an interest in land, 397.
agreement to let furnished lodgings, 398.

furnish house, 398.
' repair, 399.

build, 399.
instances of agreements not within the statute, 399.
parol sales of buildings, fixtures, etc., 402.
contracts for labor to be done upon or for land, 404.
contract to pay taxes, mortgages, etc., upon lands, 407.
agreements to pay additional price for land conveyed, etc., 408.
contracts to sell lands for another, 410.
land warrants, possessory rights, etc., 411.
instances of contracts within the statute, 414.
equitable interests, 414.
agreements to make mutual wills, 415.
agreements for exchange or partition of lands, 415.
disputed boundaries, 420.
sales of land by auction, 456.
at judicial sale, 456.

JOINT TENANTS,

parol partition of lands by, 417, 418 n.

JUDICIAL SALES,
what are, 457.
not within statute, 457.

JURY,

question to whom credit given, in case of guaranty for, 216.

question of acceptance for, when, 575, 584, 587.

finding acceptance from insuflicient evidence, verdict will be set
aside, 576.
KEY,

acceptance of, by landlord from tenant, operates as assent to sur-
render, when, 100.
LANDS,

what is uncertain interest in, 4.

license conferring interest in, must be by deed, 7, 8.

freehold interest in, 8.

INDEX. 951

LANDS — Continued.

title to, not reconveyed by return or destruction of deed, except,

412 and notes,
license to flood, revocable, 14 n. 2.
historical view of, alienation of, 339.
interest in, 339-445.

See Interest in Lands.
sale of, to be taken out by vendee, rule as to, 357.
parol agreement to establish title to, within statute, 414.
parol agreement to release covenant running with, 414.
parol agreement for sale of, 414.
parol agreement to purchase, within the statute, 414.
partnership in, not within statute, 422.

collateral agreements relatidg to sale of, not within the statute, 423.
illustration, 422, 423.

LAND WAERANTS,

parol contract for sale of, not within statute, when, 411.

LANDLORD. See Leases.

agreement between, within the statute, when, 349.

when agreement to repair premises within the statute, 349.

agreement by tenant to pay additional rent on account of repairs,

not, 350.
agreement to do an act which the law makes it the duty of either to

do, not within statute, 350 n.

LEASES,

what, are embraced under Sec. 1, 4.

statutory provisions relating to, in different States, 4.

parol, 4-70.

distinction between, and license, 14-28.

parol, good as license, 42.

when term commences under, 45.

to commence in- future, void, 45.

of equitable estates, 46.

from year to year, 46 n. 1.

void, effect of, under statute, 46.

void, entry under, effect of, 47.

when, becomes from year to year, 55-62, 63.
by parol, when, will be specifically enforced, 63.
terms of occupancy regulated by parol agreement, 65-66.
rule in Tooker v. Smith, 66.
farming, covenants implied in, 66.
to paint, 67.
re-entry, 67.

rent in advance under, effect of, 67.
may be special in its terms, 68.
collateral agreement to, 68.
determination of term under, void, 69.

952 STATUTE OF PEAITDS.

LEASES — Continued.

term under, detenniaes at end thereof without notice, 70.
cancelling, does not amount to surrender, 89-92.
destruction of, effect of, 89 n. 5, 90 n.
new, operates as surrender, when, 96, also n. 6.

See Nickells v. Atherstone, 96 n. 6, 107-136.
acceptance of new, effect of, 119.
need not be in writing, 120.
agreement for, effect of, 120.
to begin presently, 121.
what is a sufficient, 121-123.
term taken on execution, effect of, 123.
new, for part of premises, effect of, as a surrender, 118.
must be new interest conferred by new lease, 112-114.
grant of, custody of some premises, is surrender, 114.
new leased to take effect on expiration of old, or upon contingency,

is not surrender, 115.
voidable on condition, effect of, 123.
when operative as surrender, 124 n.
new, leased to third person, 125.
tenant, reletting to landlord, 124 n.
new tenancy, commencement of, question of fact, 128.
sale of, within the statute, 397.
writing relied on as memorandum for, must state the term, 718, 719.

LAW,

surrender by operation of, 81, 107-136.
illustrations, 92, 107-136.

LETTERS,

contract relating to marriage may be proved by, 317, also n. 4.
sufficient as memorandum, when, 648 n. 2, 652, 653 n. 2.
addressed to third party, good as memorandum, when, 669-675.
query, whether need have been seen by other party, 671-674.
not containing terms of contract, not good as memorandum, when,
699 n. 3, 703, 715-719.

See Smith v. Jones, 699 n. 3.
reference, in case of, need not be express, 713.
relied upon as memorandum for lease, must state the term, 718.

LICENSE,

amounts to easement, when, 5, 6.

parol, invalid, when amounts to easement, 6.

rule in Hewlins v. Shippam, 5.

Crocker v. Cowper, 6.

Wood V. Leadbitter, 6.
to erect buildings, etc;, on land, effect of, 6 n.

See Collins i'. Collins, 5 n. 7.
to go upon land, revocable at wUl, 6.
tickets admitting person upon land, mere revocable license, 6.

INDEX. 953

LICENSE— Continued.

rule in Wood v. Leadbitter, 6.

Burton v. Scherff, 7.
payment of fee for, does not give absolute right to, 7.
to exhibit goods at fair, revocable, 7 n. 2.
rule in Smith v. American Institute, 7 n. 2.
sporting, must be by deed, 7 n. 3.

See Webber r. Lee, 7 n. 3.
to insert beams in wall of house, 8.
to float timber, etc., in a stream, 8.
executed, effect of, 8.
to cut standing trees, 8.
revoked by conveyance of land, 8.
revoked by death of person granting, 9.
parol, to lay aqueduct, 9.
dig channel, 9.

pass over land with teams, etc., 9.
lay drains, 10.
when revocable, 9.
prescriptive right cannot be acquired under, 10.
coupled with interest, not revocable, 10-14, 28-31.
illustrations, 10-14.
rule in Liggins v. Inge, 11.
what is, 14 n. 2.

operates as, full excuse for acts done under it, 14 n. 2, 20-28.
distinction between, and lease, 14.
parol lease may be good as, 42.

rules relating to revocation of, in the various States, 14-31.
what amounts to easement, 14 n. 2.
coupled with an interest, 13-20.
parol to connect with public drain, 14 n. 2.

dig ditches, 14 n. 2.

flood lands, 14 n. 2.

erect buildings, .14 n. 2.

lay water pipes, 14 n. 2.

is a personal privilege, 15 n. 1.

when binding as to third persons, 15 n. 1.

occupy buildings, effect of, 17, 18.

dig for ore, 13, 17.

take water from a stream, 18.

erections made by licensee after revoked, belong to land-
owner, 19 n. 8.

executed, cannot be revoked as to acts already done under
. it, 20.

what may be done under, 20.

how far protects, 20-28.

may be implied, when, 23 n. 2.

must be granted by person having authority to do so, 27.

954 STATUTE OF FEATJDS.

LEASES — Continued.

instances, in which revocable, 28-31.

parol agreement for sale of land may operate as, 42.

parol, by landlord to tenant to quit, operates as surrender, when, 96,

102 n. 1.
to quit in middle of quarter, effect of, 102 n. 1.
revoked, action lies for damage, when, 354 n.
irrevocable, when, 401 n.
to enter and cut timber, irrevocable after trees are severed, 361, 363.

LIEN,

discharge of, in consequence of promise by third person to pay the

debt, within the statute, 255-265.
general rule relating to, 260.
purchaser has on land, under void contract, for purchase-money paid,

when, 435.
vendor's, for price of goods, remaining, can be no receipt of goods,

616-621.
special, effect of, 621.
conditional sale, 624.

LOAN OFFICERS,

sale of lands by, at auction, within statute, 457.

MARRIAGE,

agreements relating to promise to marry, not within the statute,

when, 311.
when promise is to be performed in year, 311 n. 4.
if to be performed on contingency which may happen in a year, not

within the statute, 312.

See Clark v. Pendleton, 313.
consideration need not be expressed in contracts relating to, 316.
what is a sufficient memorandum of, 316.
bond given by intended husband to intended wife, or vice versa, may

be specifically enforced, 317.
contract may be proved by letters, 317, also n. 4.
marriage not part performance, 322.
part performance independent of marriage, what is, 323.
representations of third party relating to marriage, 327.
by whom enforced, 328.
representations must be clear, 328.
parol evidence admissible to prove promise when writings are lost,

329.
parol promise prior to marriage cannot be enforced, when, 329.
party representing to either party, intention to do something for

them on account of the marriage, bound, when, 330.
expression of wish by intended husband that intended wife's estate

should be settled upon her, effect of, 331.
false representations by one party, effect of, 332.

INDEX. 955

MARRIAGE — Continued.

fraud not covered by the statute, 332.

promise made in consideration of marriage, not revocable, 336.

time of performance, 336.

post-nuptual settlement, 337.

promise iiiust be absolute, 337.

MARRIAGE SETTLEMENTS. See Marriage.

MARRIED AYOMAN,

promise to pay for goods furnished to, original, when, 303.

MARRY,

promise to, not within the statute, when, 311,
contract to, within five years, 463 n.

MEMORANDUM,

of agi-eement for lease, what must contain, 58-61.

how may be made up, 60, 61.

rule in Lindley v. Tibbals (but quere), 58.

consideration, when must be stated in, 61 n. 2.

consideration, when need not be stated, 61 n. 2.

statement of -consideration in, instances of, sufficient, 182.

of contract relating to marriage, what is a sufficient, 316.

of contract relating to equitable mortgage, 451, 456.

parol evidence not admissible to contradict, 451.

distinction between 4th and 17th sections as to, 646.

form of, not essential, 647, 653 n. 2.

what should contain, 647-663, 714-719.

price should be stated, when, 647 n. 1, 655 n., 678-680, 715-719.

when price need not be stated, 647 n. 1, 679.

names of both parties must appear in, 648, 6.55 n., 688.

may be sufficient, if the parties can be identified by the terms used
in the memorandum, 691.

as, by referring to the other party as " proprietor," 692.

rule when the description is indefinite, 692.

by entry in order-book, 690 n. 1, 693.

upon the memorandum does not show who is buyer and who seller,
defect may be remedied, how, 694.

parties identified by reference to other documents, 694.

by showing kind of business each is engaged in, 690 n. 1.
See Newell v. Radford, 690 n. 1.

must contain all the essentials of the contract, 647 n. 2, 648, 708,
713-719 and notes.

of contract for services, should state the nature of the services con-
tracted for, 648.

should show who is buyer aiid who seller, 648 n. 1, 689, 693.
See Lee v. Hills, 648 n. 1.

Vandenburgh v. Spooner, 689.

need not contain all the particulars of the contract, 647 n. 2, 655 n.

letters may amount to, 648 n. 2, 653 n. 2, 669-675, 700, 713-719.

956 STATUTE OF FEATIDS.

MEMORANDUM— Conhnuerf.

need not be contained in one paper, 648 n. 2, 651, 700, 703.
need not be cotemporaneous with contract, 649.

See Shippey v. Derrison, 650.
distinction between, and contract, 649, 657, 714 n,
need be signed only by party to be charged, 651.
admission of contract in writing signed by party to be charged is

sufficient, 651.
how, must be connected with other writings, 651, 700-714, 863 n. 3.
is evidence of the contract, 651-883, 714 n.
writing signed, admitting contract, is sufficient, although it in terms

repudiates it, when, 652, 695.
or not intended as, 652.
stated account as, when, 855.
bill of parcels, 655.
receipt for money, 655.

need only contain substance of the contract, 647 n. 2, 856.
what are essentials of, 856, 660 n., 662 n. 1.
making of, presupposes prior contract, 656, 657, 674.
once made, parol evidence not admissible to show what was intended
by parties, 857, 713, 714 n.

See Edan v. Blake, 657 n. 2.
Shelton v. Livins, 657 n. 2.
must embrace all essentials of the contract, 658, 659 n. 1, 662 n. 1.
writing referring to parol terms is not sufficient as, 659, also n. 1.

See Palmer v. Marquette &c. Rolling Mill Co., 659 n. 1.
when mutuality is not required, 663.
when it is, 667.

parol acceptance of written proposal sufficient as, 663.
both parties need not be bound by, 683-669.

acceptance of written proposal may be shown by parol evidence, 668.
letters suggesting abandonment of contract is, when, 696.
may be in form of letters addressed to third party, when, 689-875.

See Gibson v. Holland, 669.
when letter is addressed to person not named, 670.
query, whether letter need have been seen by the other party, 671-674.
when letter is addressed to persons by wrong name, 671, also n. 1,

890 n. 1.
records of corporation, good as, when, 675.

See Argus Co. v. Albany, .875.

District of Columbia v. Johnson, 677.
alteration of, effect of, 677.
filling blanks in, 678.

contemplating preparation of formal agreement, good, when, 880.
what is sufficient description of property in, 880-688, 860 n. 3.
instances of sufficient and insufficient, 880-888,
letter suggesting abandonment of contract, 696.

See Drury v. Young, 698.

Cave V. Hastings, 691 n. 1.

INDEX. 957

MEMORANDUM— Continued.

letter disputing terms may be, 698.

letter not containing in itself or by reference to other writings, not

good as, 699 n., 703.
bond is, when, 698.
receipt for purchase-money, 699, 715.

contract may be gathered from several writings, when, 700, also
n. 2, 713.

See Western Union Tel. Co. v. Chicago &c. R. R. Co., 703.
writings referred to by signed instrument need not be signed by

either party, 704.
reference must be clear or unmistakable, 704-714.

See Boydell v. Drummond, 709.
rule if papers are attached to ea;ch other, 703, 705 n. 2.
parol evidence not admissible to connect, 704, 739.
rule when the reference is ambiguous, 704.
illustrations, 704.

See Baumann v. Jones, 705.
Long V. Millar, 705.
Ridgway v. Wharton, 705.
however, contra, Brown v. Whipple, 705 n. 2.
reference sufficient, instances of, 707, 716 n.
insufficient reference, instances of, 708.
recital of agreement sufficient, 708.

See Boydell v. Drummond, 710.
Cooper V. Smith, 710.
Jackson v. Lowe, 710.
Smith V. Surman, 710.
rule when a part only of the documents referred to are incorporated

in the contract, 712.
reference, in ease of letters, rule as to, 713, 716 n.

See Western v. Russell, 713. '

must contain enough to enable court to give effect to it as contract,

713 n.
parol evidence not admissible to supply defect in, 711, 714 n.
real intent of parties cannot be shown, 714 n.
effect will be given to, according to the legal intent, 714 n.

See Williams v. Robinson, 714 n.
letters, what must contain to amount to, 715 n.
See Seagood v. Meale, 715 n.
Clerk V. Wright, 715 n.
Brodie v. St. Paul, 716 n.
of sale of land, must state price, or it will not be specifically enforced,

715-719.
of agreement for lease, to be specifically enforced, must state term,

etc., 718, 719.
letter written to a stranger to the contract, not, 715 n.
written on back of letter, stating terms, is good as a, 717 n. 2.

958 STATUTE OP FRAUDS.

MEMORANDUM— Continued.

officer's return on execution, 717 n. 2.
of sales at auction, how may be made out, 719.

of sales at auction of lands, must describe with reasonable certainty,
720.
indorsement of, on mortgage, on sale by sheriff insufficient,

when, 720.
indorsement, when sufficient, 720.
must be made at time of sale, 720 n. 5, 721, 723.
made by auctioneer, when not good, 720 n. 2.
made by vendor who acts as auctioneer, not good, 720.
by trustee, 726.

by auctioneer, how may be made, 721.
by auctioneer, what must contain, 721-729.
illustrations, 721 n. 2, 722 n. 1.
must be made by auctioneer or his clerk, 723 n. 1.
terms cannot be added by parol after sale, 723 n. 1.

See Bamber v. Savage, 723 n. 1.
time when made may be shown by parol, 723 n. 1.
of sale by auctioneer, of real estate, made on chart or plan, good as,
723 n. 1.

See Baptist Church v. Bigelow, 723 n. 1.
letter with terms of sale pinned into auctioneer's book is a, 723 n. 1.

See TaUman v. Franklin, 724 n.
entry of sale in auctioneer's book, good as, when, 724 n. 1.
imperfect, of sales of land at auction cannot be connected by parol
with letter written by vendor, 724 n. 1.
See Adams v. McMillan, 724 n. 1.
posters and advertisements of auction sale form part of, when, 724,
726.

See Pierce v. Corf, 727.

Ogilvie V. Foljambe, 724, 725.
Long V. Millar, 725.
may be written with ink, pencil, etc., 725.
if land is sold at auction, auctioneer must be authorized by writing,

when, 725.
auctioneer is agent for both parties for the purpose of making, 726,

727 n.
becomes agent of buyer as soon as property is knocked off, 727 n.

See Simon v. Motivos, 727 n.
made by auctioneer must be produced, 728.
presumption that he performed his duty will not stand for proof

that there was one, 728.
return of sheriff, etc., on process, good as, 727.
rendered good by recognition, \yhen and how, 729.
See DobeU v. Hutchinson, 729.
■ must be concluded agreement, 730.
illustrations, 730, 731.

INDEX. 959

MEMORANDUM — Continued.

recognition of contract with additional terms, not good as, 731.
immaterial additions do not affect validity of, 732
conditional acceptance of tenns, effect of, 732.
See Crossby v. Maycock, 732.
Lucas V. .Tames, 733.
parol acceptance of written order, effect of, 733, 734 n. 2, also n. 4.

See AVarner v. Wellington, 734
affidavit, good as, when, 700.
special acceptance of, 735.
withdrawal offer, effect of, 735.
determination of offer, 735.
rejection of offer, 735.

acceptance of offer, when must be made, 735.
parol variation of, effect of, on remedies of the parties, 754.
lost, effect of, 762.
parol evidence, not admissible to add to or vary, 736.

when to prove stipulations of contract, 737.
when not, 738.

not, to connect separate documents, 739-743.
is, to explain imperfect reference, 743.
cases where not admissible, 743.
is, to show that no contract was intended, 745.
or to show that it does not state contract, 746.
to prove that price was agxeed on, 746.
query, whether to prove abandonment of contract, 746.
to explain omission in bought and sold note, 749.
show situation of parties, 749.
explain subject-matter, 750.
show a usage of trade, 751.
prove alterations in articles ordered, 752.
prove date of, 752.
prove assent to alteration, 753.
of contract sought to be specifically enforced, must be complete and

certain, 843 n. 3, 848.
ambiguous expressions, how construed, 846-848.
ambiguous expressions, rule as to when the meaning is left doubt-
ful, 846.
illustrations, 846-848.
as to parol evidence relative to.

See Evidence; Specific Peefokmance.
signature to, 763-778.

need be signed only by party to be charged, 764.
approval of draft of agreement, 766.
signature by agent, 767.

alteration of draft agreement by party to it, 767.
what is a sufficient signing, 768.
signing as witness, 768.

960 STATUTE OP FRAUDS.

MEMORANDUM — Continued.
partner signing, 769.
may be by pencil, 769.

stamp, 769.

printed, 769.

by mark, 771.

by initials, 771.
instructions by telegraph, 771.
place of, not material, 772.
at beginning, 772.
upon goods, 773.
in catalogue, 773.
in order-book, 773.
signed by third person, 773.

MINE.

shares in, sale of, an interest in land, when, 396.

MINING CLAIM,

parol sale of, within statute, 411.

MISTAKE,

in memorandum cannot be shown by parol, 657.

MOEAL OBLIGATION,

not good consideration for promise to pay another's debt, 146.

MORTGAGE,

agreement by grantee to pay, not within the statute, 407.

within the statute, 437.

agreement to execute, 437.

defunct, cannot be reinstated by parol, 437.

agreement to convert into conditional sale, 487.

to convert defeasible, into an absolute state, 437.

not to foreclose, 437.

to extend time of payment of, 438.
parol release of, 438, 439, 440.
parol of growing crops, valid, when, 440.
parol gift of, 440.

equitable, by deposit of deed, 441-461.
sale of lands at auction, under power, 9.
sale in, not within statute, 458 n. 3.

MULBERRY TREES,

growing on land, sale of, not within statute, 351.

MUTUAL WILLS,

parol agreement to make, within statute, 415.
performance by one does not make contract valid, 415.

NEW LEASE,

operates as surrender, when, 81, 107-136.
acceptance of, 119.

INDEX. 961

NEW LEAS^— Continued.

need not be in writing, 120.

agreement for, 120.

to begin presently, 121.

Trhat is a sufficient, 121.

voidable on condition, 123.

to third party, 125.

See Leases.
NOTE,

turned out to pay debt, parol promise to indemnify good, when,

298-302 and notes.

See Eagle Mowing &c. Co. v. Shattuck, 298 n. 2.

NOTICE,

reasonable, of revocation of license, must be given, 41.

to quit, 94, 95.

NOVATION,

effect of, 275.

NURSERY,

contract to let land be used for, not within the statute, 351.

OPERATION OF LAW,

surrender by, what is, 81, 107-136.
instances of, 81, 107-136 and notes,
acts which create surrender by, 107-136.
new lease, effect of, 108-136.

ORE,

license to dig for, irrevocable, when, 13, 367 n. 1.
license to dig for, effect of, 17.

sale of, to be taken out by vendee, rule as to, in Iowa, 357.
right to dig, parol sale of, within statute, 411.

ORIGINAL UNDERTAKING,
what is, 151 n. 1, 155.

PAINT,

ebvenant to, implied in void lease, when, 67.

PAROL ACCEPTANCE,

of written order, effect of, 733.

PAROL ASSIGNMENT. See Assignment.

PAROL CONTRACTS. See Contracts.

PAROL EVIDENCE. See Evidence.

PAROL LEASES,

when may be made, 4.
to have effect of lease at wiU, when, 4.
remedies of lessor under, 5.
' to commence infuturo vests a present term, when, 5.

See Leases.

962 STATUTE OP rKAUDS.

PAROL LICENSE. See Licenses.

PARTITION,

by parol, within statute, -when, 415.

PARTNERS,

guarantee by one binds firm, when, 195 n. 1.

PARTNERSHIP,

in lands, not within statute, 422.

PART PAYMENT,

on purchase of goods, what is, 520-526.

effect of, 520.

when, must be made, 520.

must be in money, or its equivalent, 520, 522.

check given in, 521.

other goods given in, 521.

note of third person given in, 522.

purchaser's note may be, when, 522.

by set-ofi of debt due to purchaser, 523.

See Walker v. Nussey, 523.
by agreement to pay debt of vendor to a third person, 525.
question whether there has been a, for jury, 526.
of purchase-money for land does not take contract out of statute,
823-825.

See Specific Pekformance.

PART PERFORMANCE,

by one party does not take case out of statute, 492.

right of recovery for, 492.

of contract for sale of land, what is, 820-843.

by one, and full performance by the other does not take contract out

of statute, 492, 494.
party who has performed cannot set up statute, 492.
See Specific Performance.
PAYMENT,

in full, of pm'chase, money for land, does not take contract out of
statute, 824 n. 1, 825.

See Specific Performance.
PERCENTAGE,

promise to pay debt of another in consideration of, 230.

PEWS,

in churches, an interest in land, 422.

FLEA,

of surrender, what should contain, 134.

of statute, executor not bound to set up, 148.

PLEADINGS,

in case of guaranties, 157.
rule in Masters v. Marriott, 157.

INDEX. 963

PLEADINGS — Continued.

rule in Harris v. Huntback, 158.
efEect of, on right of recovery, 150-164.
statute must be plead, 875-878.
how must be plead, 875-878.

statute a personal privilege, and third person cannot avail himself of
it, 877, 878.

POSSESSION,

of land, parol agreement not to take for certain time, within statute,

411.
by mortgagee that mortgagor may retain, not within statute, 411.
admission into, part performance, when, 826.

See Specific Performance.

POSSESSORY RIGHTS,

in land, ^arol sale of, valid, when, 411.

PRESCRIPTION,

right by, cannot be acquired under license, 10.
of tenancy from year to year, how rebutted, 62.
of surrender will not arise because rent has been paid by third per-
son, 90 n.
nor because lease is in custody of lessor, etc., 90 n.
when lease has been in custody of lessor for many years, rule, 90 n.
of surrender, arises, when, 131.
as to when contract for service commences, 486-492.

PERSONAL,

privilege of statute is, 493, 877, 878.
third person cannot plead, 878.

PRICE,

purchase of several articles at distinct, 510.

See Baldey v. Parker, 510.
when is uncertain, 512.

at which goods are sold, should be stated in memorandum, when,
678-680.

PROMISE,

by executor to pay testator's debt, requisite of, 143.
to pay at future day, 146.
to see one paid, 155.
upon new consideration, 160 n. 1.
liability and, must grow out of some transaction, 160.
when person promised for, is not liable, 161 n. 1.
naked, to pay another's debt, 162 n. 1.
, entire credit must be given to person promising, 163 n. 1, 165 n. 1.
form of, not decisive, 164.

to be responsible to one if he will become responsible for another,
165 n.

964 STATUTE OF PEAUDS.

PROMISE — Continued.

to pay debt of another, out of funds of debtor in hands of promisor,

151 n.
if collateral, time of making not material, 164 n. 1.
to pay debt under seal, etc., statute does not apply to, 171.
to give guaranty, 189.

to pay debt to person other than the creditor, 197.
special, what is, 183.

to pay debt of another, form of, not decisive of its character, 164.
collateral within statute, 150.
when collateral, 193.
tests for determining, 193.
to be responsible, 155 n. 3.
to pay, if another does not, 154.
to pay absolutely, 155 n. 3.

to pay debt in consideration of debtor's discharge, good, 214.
to pay debt iu consideration of percentage, 197.
collateral, instances of, 203-205.

PROMISE TO INDEMNIFY. See Indemnity.

PROMISE TO PAY DEBT OF ANOTHER. See Guarantee;
Promise.

PROMISSORY l^OTE. See Note.

PROMISE TO MARRY. See Marriage.

PROMISE RELATING TO MARRIAGE. See Marriage.

PROPRIETORS,

of townships, partition of lands of, by vote, 420.

PURCHASE,

agreement to, does not amount to surrender, 93.

RECEIPT,

of goods, what is, 558, 613-641.

See Acceptance and Receipt.
for purchase-money, good as memorandum, when, 699.
for deposit, given by auctioneer, is, when, 699.

RECORDS OF CORPORATION,

good as memorandum, when, 675.

RE-ENTRY,

proviso as to, in void lease, effect of, 67.

REFERENCE,

in signed writings to unsigned.

See Memorandum.
REMEDIES,

of lessor under parol lease, 5.

INDEX. 965

RENT,

payment of, in advance under parol lease, effect of, 67.

agreement to pay additional, does not amount to surrender of old

term, 93.
parol agreement to abate, 414.

EEPAIR,

agreement to, within statute, when, 399.

RESERVATION,

in deed, of growing crops, etc., effect of, 43.

RESULTING TRUSTS. See Trusts.

REVOCABLE LICENSE. See Revocation.

REVOCATION,

of license, when may be made, 6 n., 7 n. 9.

to cut standing trees revoked by conveyance of land, 8.

by death, 9.

what licenses are subject to, 9.

payment of consideration for, effect of, 10.

owner of land may forcibly prevent use of, 10.

when license not revocable, 10-14.

rules as to, not uniform in all the States, 15 n. 3, 35 n. 2.

illustrations, 15 n. 3, 35 n. 2.

reasonable notice of, must be given, 41.

when promise to pay debt of another not subject to, 248.

RIGHT OF WAY,

given by parol, revocable at will, 9.

ROOMS,

furnished, letting of by day, week, etc., an interest in lands, 348.

SALE, ^

parol agreement for, may operate as license, 42.

what is, 506.

defeasible contract of, effect of, 507.

See Williams v. Burgess, 507.
Wooster v. Sage, 508.
Dickinson v. Dickinson, 509.
of several articles at distinct prices, 510.

See Baldey v. Parker, 510.
of several articles at auction to same person at distinct prices, 512.
when price is uncertain, 512.
executory, rules as to, 527, 555.

See Executory Sales.
on credit by broker may be retracted by vendor, when, 795.
See Auctions; Interest in Land.

SHARES OF STOCK,

equitable mortgage by deposit of, 444.

966 STATUTE OP rKATJDS.

SHERIFF,

parol promise to indemnify, when valid, 290 n. 1, 293.

sales of lands by, at auction under execution within statute, 457.

return of, on process good as memorandum, 726.

memorandum of sale by, may be made at any time after, 723 n. 1.

may be made by deputy who did not make the sale, when, 723 n. 1.

agent of both parties, 726.

SIGNATURE,

to deed not necessary, when, 43.

to memorandum, what must amount to, 61.

not enough that it is wholly in the handwriting of the person to be

charged, 61.
to memorandum need be only by party to be charged, 763.
approval of draft of agreement, 766.
by agent, 767.

alteration of draft of agreement, 767.
what is a sufficient signature, 768.
signature as witness, 768.
by partner, 769.

may be by pencil, stamp, or printed, 769.
mark or initials sufficient, 771.
instructions for telegram, 771.
place of signature not material, 772.
signature at beginning, 772.

signature upon goods in catalogue or order-book, 773.
signature in the third person, 773.
rule in Caton v. Caton, 774.

SIGNING,-

memorandum, who must sign, 61.

when authority of agent must be in writing, 61 n. 4.

SPECIALTIES,

not within statute.

SPECIAL PROMISE,
meaning of, in statute.

SPECIFIC PERFORMANCE,

of parol agreement for lease, when wUl be made, 68.

illustrations, 63-65.

writings relied on as memorandum must state price, 718.

of agreement for lease, memorandum must state the term, 718.

memorandum must be certain as to the essentials of the contract, 719.

part performance as ground of, 819.

principles on which court acts, 820.

position of parties must be altered, 822.

acquiescence, 822.

acts must be unequivocal, 823.

part payment of purchase-money, 823-826.

INDEX. 967

' SPECIFIC PERFORMANCE — Continued.

effect of part payment, 826.

admission to possession, 826-828.

express assent not necessary, 828.

either party may enforce agreement, 828.

expenditm-e of money, 829.

expenditure under terms of lease not part perf omance, 830.

acquiescence in expenditure, 830.

parol contract by tenant for life under a power, remainder man not
bound, 831.

■whether change of residence sufficient part performance, 832.

acts of part performance must be referable to an agreement, 832.

trustee with power of leasing, 834.

wrongful possession, 834.

contract with wife adopted by husband, 835.

continuance in possession not in general part performance, 835.

payment of increased rent, 838.

laying out of money part of consideration, 839-843. ,

agreement must be complete, 843.

terms of contract must be certain, 843-848.

contradictory evidence, when specific performance decreed, 848.

surrounding circumstances considered, 850.

immaterial terras need not be proved, 850.

family arrangement by parol, 850.

corporation will be compelled to perform, when, 851.

fraud takes case out of statute, 851-854.

partnership, 8.54.

statute cannot be pleaded after admission of agreement by defendant
when, 854.

demurrer to bill for, will be good, when, 855.

agreement admitted by defendant, 856.

executory contract, 856.

statute insisted upon, 857.

defendant denying agreement but not claiming benefit of statute,
857.

different agreement admitted, 858.

rule of law as to admissibility of parol evidence on behalf of a de-
fendant before statute, 858.

when parol evidence admissible on behalf of defendant resisting
specific performance, 858.

grounds upon which parol evidence admitted on behalf of defend-
ant, 859.

cases where parol evidence admitted, 859-862.

grounds upon which parol evidence not admitted on behalf of plain-
tiff, 862.

whether parol evidence admissible on behalf of plaintiff when objec-
tion taken before agreement signed, 863.

parol variation of written contract may be enforced where part
performance, 863.

968 STATITTE OF FRAUDS.

SPECIFIC FEKFORMANC'E— Continued.

parol evidence not admissible on behalf of plaintiff unless part

performance, 864.
term omitted by mistake may be proved by parol by defendant, 865.
inadvertent omission, 865.
mistake must be clearly proved, 866.

parol evidence admissible to prove promised alterations, 866.
term omitted, plaintiff offering to perform, 866.
subsequent variation, plaintiff offering to perform, 867.
■when parol evidence not admissible to add term, 868.
terms of agreement ambiguous, 869.
mistake in law, effect of, 871.
fact that vendor cannot make title, 872.

SQUATTER'S RIGHT,

in land, parol sale of, within statute, 411.

STATUTES,

29 Car. 2, c. 3, sec. 1, 2,
9 Geo. 4, c. 14,
19 and 20 Vict., c. 97,
38 and 39 Vict., c. 77,
Alabama, 882.
Arkansas, 883.
California, 885.
Colorado, 887.
Connecticut, 887.
Dakota, 888.
Delaware, 888.
Florida, 889.
Georgia, 890l
Illinois, 891.
Indiana, 892.
Iowa, 893.
Kansas, 894.
Kentucky, 895.
Maine, 896.
Massachusetts, 897.
Michigan, 898.
Minnesota, 900.
Mississippi, 902.
Missouri, 903.
Montana, 004.
Nebraska, 906.
Nevada, 907.
New Hampshire, 909.
New Jersey, 910.
New York, 912.
North Carolina, 914.

INDEX. 969

STATUTES — Continued.
Ohio, 914.
Oregon, 915.
Pennsylvania, 916.
Rhode Island, 917. •
Tennessee, 918.
Texas, 918.
Utah, 920.
Vermont, 919.
Virginia, 921.
"West Virginia, 922.
Wisconsin, 922.
"Wyoming, 924.

STATUTE OF FRAUDS. See Frattds, Statute of.

STOCK,

in companies, sale of, not within statute, unless, 392.
goods, -wares, or merchandise, when, 502.

SUB-TENANT,

surrender by lessee does not affect estate of, 77-80.

See Millar v. Watkins, 78.
how term of, may be terminated, 79.
cannot sm-render to original lessor, 88.

SURETY,

parol promise to indemnify person for becoming, 290, 295.

SURRENDER,

what is, 76 n. 1, 77, 92.

essentials of, 76 n. 1.

who may make, 76 n. 1, 87-02.

to whom may be made, 76 n. 1, 87.

when, may be made, 76 n. 1.

no formal words required to make, 81, 82 n. 2.

acceptance of key by landlord, effect of, as, 94, 100.

demise by tenant from year to year, 77.

by lessee, does not affect sub-lessee, 77.

See Millar v. Watkins, 78.
lessee reserving interest, not good, 80.
kinds of, 80.

operative words in deed to create, 80.
by deed, 81-84.
by operation of law, 81-84.

may be by deed, or note in writing, excepting in Florida, 81.
instances of, sufficient, 81, 82.
estate created without deed, 83.
effect of, 84.

on condition, effect of, 84.
cannot be, to commence infuturo, 84.

970 STATUTE OF FBATJDS.

SURRENDER— Continued.

but see, when carried into effect, 82 n. 4.

reletting of premises by landlord does not necessarily create a, 82 n. 4.
requisites to make a good, 87.
■ when may be made, 89.
cancelling lease does not amount to, 89-92.

See Ward v. Lumley, 91.
disclaimer by tenant, 93.
rent, agreement to pay additional, 93.
purchase, agreement to, 98.
by consent of parties, and acceptance of possession by landlord,

95-107.
what amounts to, 95-107.
acceptance of lease by landlord, etc., 95 n 3.

See Amory v. KanofEsky, 95 n. 3.
executed agreement to, effect of, 96.

See Deane v. Caldwell, 96 n. 4.
new lease operates as, when, 96, also n. 6, 107-136.
parol license to quit, operates as, when, 96.

abandonment of possession by tenant operates as, when, 97-107. '
reletting premises, abandoned by tenant, operates as, when, 100.
entry by landlord and putting up a " To let," effect of, 100.
presumption of, how rebutted, 107.

landlord taking tenant as servant operates as, when, 107.
change in lease, effect of, as, 108.

See Coe v. Hobby, 109 n. 2.
agreement for new lease does not operate as a, 116.
implied, grounds on which the doctrine rests, 116 n. 3.
new lease for part of premises, effect of, 118.
must confer new interest, 112-116.
to take effect on determination of old, is not, 115.
to take place on a contingency, 116.
for less term than old one, 116.
effect on rent due, 184.
will be presumed, when, 131.
how should be pleaded, 134.
contract to, house, etc., is interest in land, 353.

SYMBOLICAL DELIVERY,
what is, 571, 630-641.

See Calkins v. Lockwood, 571.
goods in possession of vendor as agent of vendee, 630-641.
See Webster v. Anderson, 631.
Green v. Meriam, 631.
Ex parte Safford, 631.
Vincent v. Germond, 631 n. 5.
Elmore v. Stone, 632.
Janvrin u. Maxwell, 631 n. 1.

INDEX. 971

SYMBOLICAL B^llYERY — Continued.

however, as what is essential to give effect to Shindler
V. Houston, 632 n. 3.

Fallo V. Miller, 634 n.

Dale V. Stimpson, 634 n. 2.

Marvin v. Wallis, 634.

Tempest v. Fitzgerald, 634.

Carter v. Touissant, 635.

Carth V. Sworder, 635 n. 3.
rule as to, 637-641.
what essential to make complete, 640.

TAXES,

on land, parol agreement to pay, not within statute, 407.

TELEGRAM,

accepting offer^ is sufficient sultscription of memorandum, 648 n. 1.
not good as memorandum, unless, 703.

TELEGRAPH CLERK,

when signature of, is sufficient to bind person sending message, 788.

TENANCY,

from year to year, how created, 46 n. 1, 55-63.

at will, how created, 47-55.

determined at end of term without notice, 70.

TENANCY FROM YEAR TO YEAR. See Year to Year.

TENANT. See Leases.

TENANTS IN COMMON,

parol partitions of land by, 417.

TENANT AT WILL,
how created, 47-55.
illustrations, 47-55.

TENDER,

of earnest money, effect of, 515.

TERM,

under parol lease, when commences, 45.
determination of, under void lease, 69, 94.
what are implied in parol lease, 66, 67.
may be special in parol lease, 68.

TICKETS,

of admission to theatres, etc., amount to license only, 6, 7 n.

TITLE,

parol agreement to pay expenses of investigating, not within stat-
ute, 407.

TITLE-BOND,

parol sale of, within statute, 411.

972 STATUTE O^ FRAUDS.

TITLE TO LAND,

parol agreement to establish, within statute, 414.

TO LET,

putting up a, by landlord, effect of, 100.

TORTS,

guaranty against, binding, when, 271.'
promise to indemnify against, binding, when, 286-295.
See Marcy v. Crawford, 294.

TORTIOUS ACTS. See Tobts ; Guaranties.

TOWNSHIPS,

proprietors of, partition of lands of, by vote, 420.

TREES. See Growing Trees; Interest in Land.

TRESPASSER,

person acting under license after it is revoked, is, when, 7.

See Burton v. Scherfi, 7.
owner of land not liable as, for forcibly preventing use of, under

license, after revoked, 19 n. 10.
licensee not liable as, unless, 20-31.

TRUSTS,

aU declarations or creations of, must be in writing, 798.

freeholds, and chattels real, within statute, charitable uses, 798.

chattels, personal, not, 799.

volunteer, declaration must be clear and irrevocable, 799.

of money, second on mortgage, 800.

parol charge of, 800.

what is sufficient declaration of, 800.

statute not allowed to cover fraud, 800.

lands in a colony, 802.

formalities required, 802.

evidence of, 802.

requisites to prove, 803.

signature, 803.

resulting, 804.

arising, etc., by act of law, not within statute, 804.

of part of estate, 805.

devise of residue, 805.

vague, lapsed, unlawful, 806.

purchase made in name of stranger, 806.

rule applies to first purchase, 807.

to personal as well as real estate, 807.

purchase in fictitious name, 807.

parol evidence, admissible on part of person paying purchase-money, 808.

on behalf of person to whom conveyance is made, 808.

to rebut presumption as to part of property, 808.

not admissible to prove agency, 809.

INDEX. 973

TBJJ&TS— Continued.

conveyance without consideration, 809.

purchase in name of wife or child, 810.

reputed wife, 810.

person in loco parentis, 811.

purchase by mother,"811.

fiduciary relationship, 812.

when avoided as against creditors, 812.

rule applies to personal estate, 812.

surrounding circumstances to be considered, 812.

purchase-money unpaid, 814.

joint tenancy, when created, 814.

purchase in name of a child and a stranger, 814.

evidence to rebut presumption of advancement, 814.

possession by father, 815.

devise, bequest, or lease, 816.

child fully advanced, 816.

purchase in pursuance of covenant, 817.

transfer of, 817.

TRUSTEE,

surrender to, not good, 88.

UNDER-TENANT,

cannot surrender to original lessor, 76 n. 1,

USAGE,

of trade, part of memorandum, when, 751.

USE. See Trusts.

USE AND OCCUPATION,
actions for.

VENDITION,
of rights, 500.

VERBAL CONTRACTS. See Contracts.

VERBAL LEASES. See Leases.

VOIDABLE,

new lease, effect of, as a surrender, 123.

VOID CONTRACTS,

actions respecting, 424-435.
executed, when enforceable, 424^-435.

See Van Valkenbaugh v. Croffat, 425.
money, etc., spent under, when recoverable, 428.
money paid imder, recoverable, 424-435.
expenditures made under, when recoverable, 425-435.
improvement put upon land, 431.

purchaser has lien on land, for purchase-money, when, 435.
person taking property purchased under, liable imder implied con-
tract, 436.

974 STATUTE OP FKAUDS.

VOID LEASE,

efiectof, 47, 63.'

may enure as tenancy from year to yeax, 63.
See Leases.
WAIVER,

of damages for mjury to land, not within the statute, 849 n. 5, 878.

illustrations, 349 n. 5.

WAREHOUSEMAN,

becomes agent of vendee, when, 627.

WARRANTY,

of equity of goods should appear in memorandum, 656 n. 5.

WATER,

license to take from stream, effect of, 18.

WAT. See Right of Wat.

WILL,

contract to compensate for labor by, within statute, when, 405.

WITNESS,

signature as, to memorandum, efiect of, 768.

WORDS AND PHRASES,
ambiguous in memorandum, evidence admissible to explain, when, 704,
848 n. 3, 848.

See Evidence.
WORK,

contracts for.

See CONTKACTS.

WORK AND LABOR,

contracts for.

See Contracts.