Page:The American Cyclopædia (1879) Volume VII.djvu/458

446 FRAUDS (STATUTE OF) may be agent for either party or both ; and his entry of the name of a seller or purchaser, at the time of the sale, satisfies the requirement of the statute, unless there be some agreement or condition to the contrary. The written agreement need not be in any precise or regu- lar form, but must contain all the substantial elements of the bargain. In England, and in some of our states, it must recite the considera- tion of the contract, while in others, if the promise be in writing and signed, the considera- tion may be proved by other evidence. The agreement may be contained in letters, and written on several pieces of paper, if they are such that they can be read together consis- tently with their purpose and character. And if a contract be severable in its own nature, and in some of its parts the statutory require- ment is satisfied and in some not, the contract is still enforceable for those parts which comply with the statute. If a written contract be sued, it may be shown in defence that it has been altered. But if a plaintiff rests upon his written contract, but can maintain his action by it only by showing that it was orally altered, it is no longer the written contract on which he rests, and the action is defeated. Of the special clauses, the second, relating to a promise "to answer for the debt, default, or miscar- riage of another," makes this statute cover all guaranties; and it is of great importance in respect to them. But it will be more conve- nient to state the law in this behalf under the title GUAEANTY. The third clause, which relates to promises " in consideration of mar- riage," is held not to apply to a promise or contract to marry, but to all promises of set- tlement, advancement, or other provision in view of marriage, and therefore all these must be in writing and signed. And it must be a promise to the other party; thus a promise of an advancement made to a daughter, in writing, not known to the intended husband until after the marriage, is not a promise to him and cannot be enforced by him. The fourth clause relates to any promise or con- tract for "the sale of lands, tenements, or he- reditaments, or any interest in or concerning them." The very broad, scope of this phrase- ology has been considerably curtailed by ad- judication. Thus, a contract for the sale of growing crops may be within the requirement of the statute or without it, according to cir- cumstances. If the crop is already reaped, it is certainly severed from the land, and is of course a mere chattel ; but even if it be still growing, if the intention of the parties be to reap it when grown and remove it at once from the land, this is not held to be a contract for a sale of an interest in lands ; and the same rule was applied to a sale of mulberry trees in a nur- sery. While there is some uncertainty in the cases, we think the same rule of construction applies to growing grass, trees, or fruits, making writing unnecessary for the enforcement of a contract respecting them ; at least, if the seller himself is to sever and deliver them. A mere license to use land for some special purpose, as to stack hay, or leave a wagon on it for a short time, is not a bargain for an interest in lands. But a contract to convey lands for certain ser- vices is within the statute ; and if it be not in writing, and the services be rendered, the par- ty rendering them cannot enforce the contract or have the lands ; but he may sue for the value of his services, and in determining that value the value of the lands may be taken into con- sideration. The fifth clause relates to an agree- ment "that is not to be performed within one year from the making thereof." Here the im- portant principle has become well settled that a contract or agreement is not within the stat- ute, and therefore need not be in writing, if it be in reality and in good faith capable of a full and substantial performance within one year r unless extraordinary circumstances interfere to prevent it ; and this principle is applied even where the parties themselves do not contem- plate any performance of the contract within a year from the making of it. Thus, if one agrees to work for another "for one year," no time for the beginning of the service being fixed, he has a right to begin instantly, and then all his service will be rendered within the year, and the contract need not be in writing. It is im- portant to remember, that if a contract which should have been in writing, but is not, is wholly performed on one side, and is such that nothing remains but the payment of the con- sideration money, there are many cases in which an action may be maintained in some form for the money due. Another section (the 17th of the English statute) enacts that "no con- tract for the sale of any goods, wares, or mer- chandises, for the price of 10 or upward, shall be good, -except the buyer shall accept part of the goods so sold and actually receive the same, or give something by way of earnest to bind the bargain, or in part payment," or that some note or memorandum be signed as before. This provision, in some form or other, is very common in the United States. The sum is va- riously fixed, in different states, at about $30 to $50, rarely less or more. The principal questions which have arisen under this clause are, what delivery and acceptance, or what earnest, or what part payment, will satisfy the statute, so as to make the writing unneces- sary. In the first place, there must be both delivery and acceptance. A meets B, and they agree orally that A shall buy 100 bales of cot- ton which B has for sale for $25,000. B sends the cotton forthwith to A's store. This, ac- cording to common law, completes the sale and B's right to demand the price. But by the statute of frauds, if there be no note or memo- randum in writing signed by A, he may in- stantly, and without assigning any reason, send all the cotton back to B. As to what is a de- livery, it may be said, in general, that it is any transfer of possession and control, made by the seller, for the purpose and with the effect of