Per Treby. Anon. 1 Ld. Raym. 182. Per Ellenborough, C. 602. II. Of contracts for the sale of lands, &c. No action shall be maintained upon any contract or sale of lands, &c. or any interest in or concerning them, unless, &c. 1. This clause is confined to the sale of things real, as the lands themselves, and so does not extend to the sale of timber growing on the land, which is a mere chattel, and so may be sold by parol. 2. An agreement conferring an exclusive right to the J. in Crosby v. Wads- vesture of land, during a limited time, and for given purworth, 6 East's Rep. poses, is a contract or sale of an interest in, or, at least, an interest concerning lands, and for the non-performance of such contract, if made by parol, an action cannot be maintained. It must be observed, however, that the statute does not expressly and immediately vacate such contract, if made by parol; it only precludes the bringing an action to enforce it, by charging the contracting party or his representatives, on the ground of such contract, and of some supposed breach thereof. Hence, if the contract be executed, the parties cannot treat it as a nullity. 3. But although the contract is not itself wholly void, under the statute, merely on account of its being by parol, so that if the same is executed, the parties cannot treat it as a nullity, yet while it remains executory, it may be discharged by parol, before any thing is done under it, which can amount to a part execution of it. Crosby v. Wadsworth, 6 East's Rep. 602. Selw. 745. Walker v. Contable, 2 Esp. Rep. 659. Selw. 745. 4. This clause comprehends sales of lands by auction as well as other sales; hence, where land had been sold by auction, and the contract having been abandoned, an action was brought to recover the deposit; in which action the plaintiff declared specially on the contract; it was holden, that it was incumbent on the plaintiff to prove a contract in writing, in the manner specified in the statute; and that the entry by the auctioneer' of the buyer's name could not be considered as a sufficient memorandum and signature of the agreement, so as to satisfy the requisitions of the statute. III. Of promises to answer for the debt, &c. of a third person. No action shall be brought, whereby to charge the defendant, upon any special promise, to answer for the debt, default, or misdoings of another person, unless, &c. Buckmyr v. Darnell, The rule, as it respects this clause, is, that if the defendant comes only in aid of the other, who obtains the goods, 1 Salk. 27. so that there is a remedy against both, according to their distinct engagements, that that is a collateral undertaking, and void without a note in writing; but where the whole credit is given to the defendant, so that the other is but as his servant, and there is no remedy against him; that that is not a collateral but an original undertaking; in which case a note in writing is not necessary. Williams v. Leper, As where plaintiff was lessor to one Taylor, who owed him 457. for rent; Taylor assigned over all his effects for 3 Burr. 1886. the benefit of his other creditors, who appointed defendant as their broker. He advertised a sale, and, on the morning of it, plaintiff came to make a distress; whereupon defendant promised, that if he would desist from distraining, he would pay him the whole of the rent. For this rent, the action was brought, and defendant pleaded the statute of frauds, as an undertaking for the debt of another, and no memorandum in writing. But it was adjudged, that plaintiff, having a prior lien on the goods in the hands. of the defendant, they were the fund charged, and to pay out of this fund was an original undertaking by the defendant himself. But wherever the person undertaking is jointly interested with others, though they receive the benefit of his under-1 Esp. Dig. 99%. taking, no note in writing is there necessary; for the undertaking should be solely for the debt of another, which here is not the case. Stephens v. As where an action was brought against defendant and two others, for appearing for plaintiff without a warrant, 5 Mod. 205. Squire and defendant promised, that if plaintiff would not prosecute his action, he would pay him 107. and costs. A note 1bid. 1 Esp. Dig. 100. 1 Esp. Dig. 100. Rothory v. Currie, Bull. N. P. 281. in writing was held not necessary in this case; it not being a promise solely for the debt of another, the defendant being himself originally liable. But per Holt if A. says, do not proceed against B. for a debt, and I will give you 10.; this would be within the statute. For it should seem that a debt should be absolutely due to the person to whom the undertaking is made, to make a note in writing necessary. It is not sufficient that plaintiff has given up, at the request of the defendant, an uncertain demand against another person. As where in consideration, that plaintiff would not sue Trin. 21 Geo. 2. C. B. A. B. for a debt which he owed him, defendant promised to pay the money due, viz. 47. in a week. This was adjudg ed to be clearly within the statute, and void without a note in writing; for it was for the debt of another, and still subsisting, notwithstanding the defendant's promise, and so was collateral. Read v. Nash, 1 Wils. 305. Fish v. Hutchinson, 2 Wils 94. 1 Esp. Dig. 101 But in this case, where the plaintiff's testator had brought an 'action against one Johnson, for an assault in consideration that he would withdraw the record, and not proceed to trial, the defendant Nash promised to pay him 501. On action brought for this 501. defendant pleaded the statute of frauds; but it was adjudged not to be within it, for Johnson was not a debtor; the cause was not tried, there might have been a verdict for him, so that never being liable to any certain debt, this was an original undertaking by defendant, and not for the debt of another. This is confirmed by this case: For here an action being brought by plaintiff against one Vickers, for a certain sum of money, defendant, in consideration that plaintiff would stay his action, undertook to pay the money; and it was held clearly that there should have been a note in writing; for the undertaking was for the subsisting debt of another. So wherever a person is under a moral obligation to do any act for another, or to procure it to be done; if it is done, though without the request of such person, a subsequent promise by him to pay is good without a note in writing. and al. As where a pauper was taken ill, and an apothecary Watson v. Turner, sent for without the knowledge of the overseers of the Trin. 7 Geo. 3. in Exchequer. Bull. N. poor, who attended and cured her; and after the cure P. 281. the overseers promised to pay him by parol. It was adjudged sufficient to charge them; for the overseers are bound to provide for the care of the poor, and so shall be deemed originally liable. However, it seems to be impossible to draw any gene- Bull. N. P. 281. ral rule to decide in what cases an undertaker for the debt of another shall be charged, and in what not: It must therefore be left to the jury to decide to whom the original credit was given; for on that point all the cases turn. IV. Of agreements in consideration of marriage. Another case, requiring a note in writing, is, “on agreements in consideration of marriage." Cork v. Baker, It has been adjudged that promises to marry are not within the statute: For the statute relates only to promi- 1 Stra. 34. 1 Esp. Dig. 102. ses or contracts in consideration of marriage, as to pay money, make a settlement, &c. Birde v. Blosse, As where a father wrote a letter, signifying his consent that his daughter should marry T. E. and that he would 2 Vent. 361. give her 15001. On a further treaty, he receded from this proposal, but sometime afterward, he declared that he would agree to what he had promised in his first letter. It was adjudged that this last declaration had set up the first letter, and was a good promise in writing under the statute. V. Of contracts not to be performed within a year from the making thereof. The rule is, that where the agreement depends upon a contingency, and it does not appear but the contingency 3 Burr. 1281. Fenton v. Emblers, 3 Burr. 1278. will happen within the year; nor does it appear from the agreement that it is to be performed after the year; there a note in writing is not necessary; because the contingency may happen within the year, and so the agreement be performed within that time: But where it appears, from the whole tenor of the agreement, that it is to be performed after the year; there a note in writing is required under the statute. As where, by parol, defendant's testator promised the 1 BL. Rep. 353. S. c, plaintiff, that, if she would live with him as house-keeper, he would give her 81. per annum, and leave her by his will an annuity of 161. a year. She went and lived with him till his death; when, he having failed to make for her the provision promised, she brought her action against the executor. It was ruled, on defendant's pleading the statute, that as this depended on a contingency, and testator might have died within the year, no note in writing was required, and plaintiff recovered the value of the annuity. Anon. Comb. 463. Anon. Salk. 280. Selw. 748. So where the promise was to pay 1001. on defendant's marriage, a note in writing was held not to be necessary. So where it was to pay on the return of a ship: for both these contingencies might happen within the year. VI. Of contracts for the sale of goods for the price of 101. or more. No contract for the sale of any goods, wares or merchandise, for the price of ten pounds or more, shall be allowed to be good, except the purchaser shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made, and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized. This branch of the statute extends to executory contracts, that is, contracts to be completed at a future time, as well as other contracts. |