SECTION X.

AGREEMENTS NOT TO BE PERFORMED WITHIN A YEAR.

CONTRACTS which are not to be carried into full effect within a year from the making thereof, cannot be enforced unless Part per- reduced into writing; a part performance within the year will formance not take the case out of the statute, if there was an express within the understanding between the parties, at the time that the contract

year.

was entered into, that it should not be completed within a year. (1) Thus, a contract for a year's service to commence at a future day is within the statute, for it is not to be performed within a year, and no action can be mintained for a breach thereof, unless it be in writing." So is an agreement to enter into partnership for ten years. So where a coachmaker agreed to let a carriage for five years, at ninety guineas per annum; it was held to be within the statute, though by the custom of trade the contract was determinable at any time on payment of a year's hire, for by the very terms of the contract it was an agreement not to be performed within a year.

*1045 *So an agreement to become a subscriber to the Boydell Shakspeare, being a series of prints to be published in numbers, an undertaking which it was evident the parties contemplated could not be performed or brought to a close for several years, has been held to be within the statute. But where a party agreed to take a work which was to be published in eighteen numbers at intervals of two months, and after receiving several numbers, refused to take any more, or to pay for those which he had; it was held, that an action would lie for the price of the latter, though the original contract was not in writing, or to be performed within a year; for the law in such cases would imply a further contract to pay for each number as it was delivered.e

ance de

Where the The statute, however, does not extend to contracts, the perperform-formance of which depends upon a contingency, which may or may not happen within a year, or to cases where all that is to be done by one of the parties is to be done within a year. As gency, the where the defendant promised for one guinea to give the plain

pends on a contin

a

Bracegirdle v. Heald, 1 B. & A. 722. Snelling v. Huntingfield, 1 C. M. & R. 20. 4 Tyr. 606.

Williams v. Jones, 5 B. & C. 108. (11 Eng. C. L. 169.)

• Birch v. Liverpool, (Earl of,) 9 B. & C. 392. (17 Eng. C. L. 404.) Boydell v. Drummond, 11 East, 142. This was an action for not accepting or paying for the residue of the numbers, the defendant having for a time taken in the numbers, and paid for them so much per number, according to the parol agreement.

Mavor v. Pyne, 3 Bing. 285. (11 Eng. C. L. 104.) 2 C. & P. 91. (12 Eng. C. L. 41.)

(1) (Squire v. Whipple, 1 Vermont, 69. Drummond v. Barrell, 13 Wend. 307. Plimpton v. Curtis, 15 Wend. 336.)

tiff so many on the day of his marriage; it was held, not to be statute within the statute, and that an action would lie upon the agree- does not ment, though it was not in writing, though the marriage did apply. not take place within a year, for it might have happened within the year. So a promise to pay money on the death of a certain person, is not within the statute. So where A. promised that his executors should pay the plaintiff 1,000l. in consideration of his forbearing to sue A. for a debt; it was held not to be within the act, and that the promise need not be in writing.

Where the defendant was tenant to the plaintiff under a lease for twenty years, and in consideration that the plaintiff would lay out 50%. in alterations, the defendant promised to pay the plaintiff 57. a year during the remainder of the term. The alterations having been completed within the year, and an *1046 action having been brought for the increased rent, it was objected that as the contract could not possibly be performed within a year, it ought to have been in writing. But the court held that it was not within the statute. Littledale, J., in delivering the judgment of the court, observed, "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 expectation that it should be so, the statute of frauds did not extend to it. In case of a parol sale of goods, it often happened that they were not to be paid for in full, until after the expiration of a longer time than a year; and surely the law could not sanction a defence on that ground, where the buyer had had the full benefit of the goods on his part."d

SECTION XI.

MEMORANDUM OR NOTE IN WRITING.

dum is

THE statute does not require a formal agreement; any me- What memorandum signed by the party expressing that he had entered moraninto the agreement, and showing the terms thereof, is suffi- sufficient cient, although it be a mere recognition or adoption of a prior within the parol contract. Thus, a memorandum by the defendant on statute. the back of the draft of a lease, acknowledging that he had

Peter v. Compton, Skinner, 353. Smith v. Westall, 1 Lord Raym. 316. Anon. Comb. 463. 1 Salk. 280. Francam v. Foster, Skin. 356.

Fenton v. Emblers, 3 Burr. 1278.

⚫ Wells v. Horton, 4 Bing. 40. (13 Eng. C. L. 332.) 12 Moore, 176. Donellan v. Read, 3 B. & Ad. 899. See Hoby v. Roebuck, 7 Taunt. 157, ante, 1043. Boydell v. Drummond. Bracegirdle v. Heald, ante, 1044-5. See also Smith's Selection of Leading Cases, 144.

* Ch. Con. 59.

agreed to take the premises mentioned in the draft on the terms therein stated, has been held sufficient; so has a letter containing the terms of the agreement.b

Nor is it essential that the memorandum should be delivered to the other party. A letter written by a man to his own agent, setting forth the terms of the agreement, has been held sufficient. So where the father wrote a letter to a friend of the *1047 plaintiff's, *the intended husband of his daughter, agreeing to give 500l. to his daughter on her marriage, to be charged upon his land, it was held sufficient. But a letter from a father to his daughter, intimating that he had agreed with the plaintiff, who courted her, to give her a portion of 3,000l., which letter was not communicated to the plaintiff until after the marriage, was held not to be binding.

The agree

be comprised in several distinct papers.

The agreement may be collected from several distinct papers, ment may provided they be sufficiently connected in sense by reference from one to another; but the connection must appear on the face of the documents themselves, for oral evidence will not be admitted for the purpose of connecting them. As where upon a sale of an interest in land by auction, the vendee signed a contract on the back of the printed particulars of sale which contained the conditions, but there was no signature by the vendors or by any one authorised by them; the court held that a subsequent letter written by one of the vendors, in which he spoke of the sale, as "our sale to the vendee," and referred to the conditions, was, coupled with the contract, sufficient to satisfy the statute. "The principle," said Lord Denman, C. J., in delivering the judgment of the court, "appears to be that where there is a contract in writing, which is binding on one party, any note in writing which is subsequently signed by the other party is sufficient to satisfy the statute, if it either in itself or by reference to other documents contains the terms of the contract. Here the letters of the vendors expressly refer to the condition of the sale, signed by the vendee; so that no parol evidence beyond mere proof of handwriting was necessary to show the terms of the contract."

But where the defendant entered his name in a book, entitled "Shakspeare subscribers, their signatures," not referring *1048 *to a printed prospectus, which contained the terms of the con

Id. Shippey v. Derrison, 5 Esp. 190; and see Stead v. Liddiard, 1 Bing. 196. 8 Moore, 2.

Kennedy v. Lee, 3 Mer. 441.

Per Lord Hardwicke, 3 Atkin, 503. 2 Stark. Ev. 350. Bateman v. Phillips, 15 East, 272.

Id.

Ayliffe v. Tracy, 2 P. Wms. 65. See Laders v. Anstey, 4 Ves. 501. A proposal by letter, when acceded to by parol, is sufficient, although it be afterwards retracted, and again agreed to by parol. 2 Stark. Ev. 351.

'Dobell v. Hutchinson, 3 Ad. & Ell. 355. 5 N. & M. 251. 1 H. & W. 394. Jackson v. Lowe, 1 Bing. 9. Saunderson v. Jackson, 2 B. & P. 291. Allen v. Bennett, 3 Taunt. 169, post, 1061.

tract, and which was delivered at the time to the subscribers; the court held, that though the prospectus would be a sufficient memorandum of the agreement, if it could be coupled with the book in which the defendant signed his name, still, as it contained no reference to the book, nor the book to it, there was no connection in sense between them, whereby they could be coupled together and treated as one document; and such connection could not be introduced by parol evidence."

The receipt of deposit money, by an auctioneer's clerk, which was paid over to the seller, and a letter from the solicitors of the seller, admitting that no title could be made, and offering to relinquish the purchase, and pay the charges of investigating the title, were held not to amount to a ratification of an imperfect contract for the sale of property by auction, which was only signed by the purchaser and the auctioneer's clerk in the character of witness, so as to satisfy the statute; for the receipt of the money was a transaction distinct from the power to contract, and was within the ordinary scope of the clerk's duty; and the letter, not containing any of the terms of the contract, could not be connected with what had been previously done, without resorting to parol evidence.b

The memorandum must be signed by the party to be charged What is a or his agent. It is not sufficient to identify his handwriting on sufficient the face of the instrument, his name must appear therein. But signing. the mark of a marksman, or writing the initials of the name, is sufficient. It is not necessary that the signature should be in writing, a printed name recognised is a sufficient signature to take the case out of the statute. It is immaterial in what part of the instrument the signature is contained. An agreement in the handwriting of the vendor, beginning "I, A. B., agree *1049 to sell," and signed by the vendee only, is sufficient to bind both parties. A signature by a party as a witness to a deed, which recited the agreement, has been held to be sufficient, as he knows the contents.

The memorandum need only be signed by the party against If signed whom it is sought to enforce the contract. Where the defend- by the parant signed a memorandum on the back of a bill, containing the ty charged, it is particulars and conditions of sale of certain premises, which sufficient.

2

Boydell v. Drummond, 11 East, 152. Richards v. Porter, & B. & C. 437, (13 Eng. C. L. 229,) post, 1062. See Smith's Selection of Leading Cases, 137. Gosbell v. Archer, 2 Ad. & Ell. 500. (29 Eng. C. L. 159.) 1 H. & W. 31, post,

1063, n.

Selby v. Selby, 3 Mer. 2. 1 P. W. 770. 1 Ch. Stat. 374.

Phillimore v. Barry, 1 Camp. 513, post. 1061.

• Schneider v. Norris, 2 M. & S. 286. Saunderson v. Jackson, 2 B. & P. 238, post,

1061.

Knight v. Crockford, 1 Esp. 189. See Stokes v. Moore, 1 P. Wms. 790. Ogilvie r. Foljambe, 3 Mer. 62.

Welford v. Beazeley, 1 Wils. 118. But see Gosbell v. Archer, post, 1063, where it was held, that the clerk of an auctioneer, who had signed a contract as a witness, could not be considered as an agent within the statute, and the court doubted that even if he knew the contents, it would be sufficient.

were sold by auction, by which he acknowledged that he was the purchaser; it was held a sufficient compliance with the statute though it was not signed by or on behalf of the vendor. "I think," said Tindal, C. J., "that the object of the fourth section was, that no action should be brought upon any contract, or sale of lands, unless the agreement was signed by the defendant in the action. But it is objected, that by this construction there is a want of mutuality in the contract, because the defendant is without any remedy to enforce the contract, as against the plaintiff. But whose fault is that? The defendant might have insisted that the plaintiff, or his agent, should sign the contract. But it seems to be the object of the statute to secure the defendant's signature; for the preamble declares that the statute was passed for the prevention of many fraudulent practices, which are endeavored to be upheld by perjury,' and the beneficial object of the statute is wholly answered by this construction."(1)

An agent's authority under this act need not be in writing; and it has been decided, that parol evidence was admissible to show, that a party was an agent, who signed an agreement generally, without expressing that he was an agent. An agent cannot depute his authority; therefore the clerk of an agent is not authorised to sign for his principal, though the principal may confirm his act, and thereby render himself liable. The agent must be a third party; therefore one of the contracting parties cannot sign as agent for the other. An auctioneer is agent for both parties.

Laythorpe v. Bryant, 2 Bing. N. C. 744. (29 Eng. C. L. 469.) 2 Hodges, 25. Seton v. Slade, 7 Ves. 265. Westam v. Russell, 3 Ves. & B. 192. Egerton v. Mathews, 6 East, 307. But the contract so signed must disclose the name of the other party. Champion v. Plumer, 1 N. R. 252.

Coles v. Trecothick, 9 Ves. 250.

e Wilson v. Hart, 7 Taunt. 295.

(2 Eng. C. L. 112.)

Blore v. Sutton, 3 Mer. 246. See Henderson v. Barnwall, 1 Y. & J. 387, post. Wright v. Dannah, 2 Camp. 203.

Emmerson v. Heelis, 2 Taunt. 38. White v. Proctor, 4 Taunt. 209. Kenworthy . Schofield, 2 B. & C. 945. (9 Eng. C. L. 286.)

(1) (Russell v. Nicoll, 3 Wend. 112.)