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It may be observed generally of this section, that the case, in which the legislature has required proof of the agreement in writing, is where the agreement is the subject of an action. The words are, "No action shall be brought, whereby to charge, &c. unless the agreement, upon which such action shall be brought, &c." Where an action, therefore, is brought upon any agreement specified by the act, it will be necessary to prove a written agreement; otherwise, it cannot be enforced against the party charged. But the section does not extend so far as to make it necessary to prove the agreement in writing in those cases, where it is not the subject of the suit, but comes in only collaterally with the rest of the evidence in a proceeding between third persons, and where it is not material to consider, whether the agreement could be enforced in an action. Such cases are not within the express provision of the act; nor are they within the view of the legislature, which was to prevent fraudulent practices, and to secure persons against false charges in actions brought against them upon certain unwritten agreements. Thus, in a case where a landlord agreed with his tenant to accept an assignee in his place, for which he was to receive a certain proportion of the money paid for the good-will of the premises, and it had been previously agreed between the tenant and the assignee, that such part was to be paid for the landlord's consent, the Court of King's Bench held, that the landlord was entitled to recover that proportion as money received for his use, and that the circumstance of the agreement between the tenant and his successor not being in writing, could not properly come into question in an action between these parties. (1)

Nor is the section to be understood as giving validity to agreements, which would not be valid by the rules of common law; it leaves them to be judged

(4) Griffith v Young, 12 East, 513,

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of with respect to all essential circumstances, (such as the consideration, the ability of the parties to contract, &c. precisely according to the same rules as before the statute; it does not enact, that, when the agreement is in writing, the party must at all events be liable, but that the party shall not be liable to an action in certain cases, unless a written agreement is proved. (1) Nor, if the agreement is in writing, will it be necessary so to state it in the declaration; in which respect the statute has not made any alteration; (2) (a) but where the defendant, in bar of the plaintiff's right of action, pleads such an agreement as cannot be the subject of a suit unless in writing, (as if he were to plead, in an action of assumpsit, an accord to accept payment by another in satisfaction,) there he ought to plead it to be in writing, that it may appear to the Court that an action will lie upon it, for he ought not to be allowed to take away the plaintiff's action, without giving him a complete remedy upon the agreement pleaded. (3)

Although a defendant, in particular cases, is not to be charged in an action brought against him upon an agreement, unless the agreement is proved to be in writing, yet, if he has paid money into court on the plaintiff's declaration, it will not be necessary to prove the agreement, which is admitted on the record by such payment. For example, if an action is brought upon a promise to pay another person's debt in consideration of forbearance, and the defendant pays money into court on the count charging him with such promise, in this case he admits the agreement to be binding to a certain extent, disputing only the amount of the debt; and as this admission removes the danger of a false charge, it is

(1) Rann v Hughes, 7 T. R. 350. (a) Barrell v Trussell, 4 Taunt. 121.

(2) Com. Dig. tit. Action on Assump

sit, (F. 3.)

(3) Case v Barber, Raym. 450. £ Jou. 158. S. C. Com. Dig. Ib.

(a) Elting v Vanderlyn, 4 Johns. Rep. 237. Smith & Stanley v Wright, i faines' Rep. 43.

reasonable, in such a case, that proof of the agreement should be dispensed with. (1) But an admission by one of the parties, not that the agreement as stated is binding, but merely that such an agreement was in fact made, would not be sufficient to preclude him from availing himself of the statute of frauds; as where the defendant has admitted the terms of the agreement in his answer to a bill filed against him in Chancery; (2) (a) or if a parol agreement were stated in a court of law, to which the other party demurs, that would admit the agreement, yet still advantage might be taken of the statute. (3) It may be observed further, that where there is one entire agreement for the performance of several things, if the plaintiff in an action upon this agreement cannot recover upon part of the agreement for the want of a memorandum in writing, he cannot recover at all, although there are some particulars, which would have been valid without writing, if they had formed a separate independent contract. (4) (b)'

swer for anoth

First, "No action shall be brought, whereby to charge Promise to anthe defendant upon any special promise to answer for the er person's debt, debt, default, or miscarriage of another person, unless the &c. agreement upon which, &c." Where the question is respecting the debt of another person, the true consideration is, whether the credit was originally given to the

(1) Ramsbottom v Brewer, Peake, N.P. C. 15. See ante, p 150.

(2) Rondeau v Wyatt, 2 H. Bl. 63. (3) 2 H. Black. 78.

(4) Lexington v Clarke, 2 Ventr. 223. Chater v Beckett, 7 T. R 201. Cooke v Tombs, 2 Anstr. 420. Lea v Barber, ib. 425.

(a) But where a defendant acknowledges in his answer a contract relating to land, and the same is in part performed; the case is taken out of the statute of [rauds. Hutchinson v Hutchinson, 4 Desau's Eq. Rep. 77.

(b) Where the plaintiff declared on a parol contract to pay him for certain land, given for a public highway, and the contract proved was, that the defendant was to pay the plaintiff, not only for the land given for the highway, but also for a distinct and separate piece of land; it was held that the latter part of the contract being void by the statute of frauds, the whole being an entire contract was void. Cramførd et al. v Morrell, 8 Johns. Rep. 253.

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defendant alone, or whether the third person was liable as the debtor, and the defendant only guaranteed the payment. The latter case is within the statute; the established rule being, that, if the person, for whose use the goods are furnished, is liable at all, any other promise by a third person to pay that debt must be in writing; (1) (a) but in the former case, namely, where the debt is exclusively the debt of the defendant, a written memorandum will not be necessary. As, for example, suppose a man comes with another into a shop to buy, and the shopkeeper should say, "I will not sell him the goods, unless you will undertake that he shall pay me for them," and the other promises to that effect, such a promise is within the statute; (2) but it would be otherwise, if the defendant had been the person originally liable to pay for the goods, as, if nothing more had appeared in the case, than that the defendant sent an order to the plaintiff requesting him to deliver goods to I. S., and that he (the defendant) would pay him the amount. The question, in such cases, is a question of fact for the consideration of the jury, who are to determine, whether the credit was given to the defendant alone, or to the defendant jointly with the person who received the goods; (3) and, in the investigation of this question, if it should appear, (as it did in the last cited case,) (4) that such person was debited in the plaintiff's books, or that he had been applied to by the plaintiff for payment, or that he had in a letter to the plaintiff admitted himself his debtor, and promised payment at a certain time, (which statement was not contradicted or repudiated by the plaintiff,) these are very strong circumstances in support of the latter conclusion, namely, that the plaintiff

(1) Matson v Wharam, 2 T. R. 80. Anderson v Hayman, 1 H. Black. 120. (2) By Holt C. J. in his judgment in Buckmyr v Darnall, 2 Ld. Raym.

1087. 1 Salk. 27. S. C.

(3) Anderson v Hayman, 1 H. BI.

120.

(4) See also Matson v Wharam, 2 T. R. 80.

(a) Leonard v Vredenburgh, 8 Johns, Rep. 37.

considered the third person liable; in which case he cannot make the defendant also liable for the debt, without proof of a written memorandum.

Thus, where the plaintiff had delivered goods to one I. S. in consequence of a parol promise by the defendant in these words, "I will pay you, if I. S. will not," (which undertaking was before the delivery of the goods,) and it appeared further, that I. S. had been entered as the debtor in the plaintiff's books, the Court were of opinion, that the case was clearly within the statute. (1) There, the very terms of the undertaking, independently of the circumstance of I. S. having been debited, manifestly shewed, that the defendant intended. only to be answerable in case of the default of I. S., and that the plaintiff was in the first instance to look to I. S. as his debtor; and this was the view in which the Court considered the case. And with respect to the other fact in that case, namely, the fact of the undertaking being antecedent to the delivery of the goods, it may be observed, that the question, as to the person to whom credit is given, is rendered more doubtful, when the undertaking is before, than when it is after the delivery. If it was after the delivery, it cannot have the effect of transferring to the defendant the credit, that was given to the third person at the time of the delivery; if it was be fore, it is a circumstance to raise a presumption, that the goods were furnished on the credit of the promise; and (if nothing should appear in the terms of the undertaking, or in any other part of the transaction, to induce a contrary presumption,) it might warrant the jury in concluding, that they were furnished on the credit of the defendant: (2) but it is only a circumstance, and cannot be considered as in any manner conclusive upon the ques tion. (3)

(1) Jones v Cooper, Cowp. 227.
(2) See Harris v Huntback, 1 Burr.

(3) See Keate v Temple, 1 Bos. &. Pull, 158.

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