and set apart, (and such designation is necessary,)" the debt is thereby discharged. If the debtor be sued, he may plead the tender and refusal, and he will be excused by the necessity of the case from pleading uncore prist, and bringing the cumbersome articles into court;c and it is not like the case of a tender of money which the party is bound to keep good, and on a plea of tender to *509 bring the money into court. The creditor *is entitled to the money at all events, whatever may be the fate of the plea ;d and there is equal reason that he should be entitled to the specific articles tendered. But in Weld v. Hadley, it was decided, after a very able discussion, that on a tender and refusal of specific articles, the property did not pass to the creditor. This was contrary to the doctrine declared in other cases; and the weight of argument, if not of authority, and the analogies of the law would appear to lead to the conclusion, that on a valid tender of specific articles, the debtor is not only discharged from his contract, but the right of property in the articles tendered passes to the creditor.g e The Bro. tit. Touts temps a Wyman v. Winslow, 2 Fairfield, 398. b Co. Litt. 207. a. Peytoe's case, 9 Co. 79. a. prist, pl. 31. Smith v. Loomis, 7 Conn. Rep. 110. 1 Stewart's Ala. Rep. 272. Thaxton v. Edwards, Ibid. 524. Savary v. Goe, 3 Wash. C. C. Rep. 140. Robinson v. Batshelder, 4 N. H. Rep. 46. Lamb v. Lathrop, 13 Wendell, 95. c Bro. ub. sup. In Johnson v. Baird, 3 Black's Ind. Rep. 182, in an action on a promise to pay a certain sum in hats, at a certain time and place, it was held to be a good defence, that the defendant had the hats ready for delivery at the time and place, and that no person was present to receive them. But the plea also contained the uncore prist, and the court said that it was necessary that the plea should state where the articles were, and that they were either left at the place properly designated, or that they were retained, and were still ready for delivery. Dorman v. Elder, Ibid. 490. Fleming v. Potter, 7 Watts, 380, S. P. was held to be necessary in the latter case, but the defendant must show that he was ready at the time and place. d Le Grew v. Cooke, 1 Bos. & Pull. 332. 1 N. H. Rep. 295. No demand f Nicholas v. Whiting, 1 Root's Rep. 448. Rix v. Strong, 1 Ibid. 55. Slingerland v. Morse, 8 Johns. Rep. 474. * Code Napoleon, No. 1257. Pothier, Traite des Oblig. No. 545. debtor may abandon the goods so tendered; but if he elects to retain possession of the goods, it is in the character of bailee to the creditor, and at his risk and expense.a With respect to part performance of an entire contract for the sale and delivery of personal property of a given quantity, at a specified price and time, or for the performance of certain labor and service, a delivery of a less quantity than that agreed on, or a refusal or omission to perform the entire labor or service, without any act or consent of the other party, will not entitle the party who has delivered in part, or performed in part, to recover any compensation for the goods which have been delivered, or the service which has been performed. The entire performance is a condition precedent to the payment of the price, and the courts cannot absolve men from their legal engagements or make contracts for them.b Smith v. Loomis, supra. Mitchell v. Merrill, 2 Blackf. Ind. Rep. 87. Lamb v. Lathrop, 13 Wendell, 95. 1n Bailey v. Simonds, 6 N H. Rep. 159, it was held, that if a note be payable in goods at a particular place, on demand, the maker must have the goods always ready at the place. Mason v. Briggs, 16 Mass. Rep. 453, S. P. a Mr. Chipman, in the able essay to which I have already referred, supposes that the debtor may sell the goods which he so retains, if they be perishable articles, and he will be accountable for the net proceeds. He has reasoned well, and upon sound legal principles, in support of his position, that on the tender and refusal of specific articles, the debt is discharged on the one hand, and the title to the property transferred to the creditor on the other. In Illinois, it is declared by statute that if no place be specified in the written contract for the payment or delivery of specific articles, the obligor may tender them at the payee's place of residence. But if the articles be too ponderous, or the payee has no known place of residence, the obligor may tender them at his own place of residence. Such tender vests the property in the creditor. Revised Laws of Illinois, edit. 1833, p. 484, 485. b Waddington v. Oliver, 5 B. & Puller, 61. McMillan v. Vanderlip, 12 Johnson, 165. Jennings v. Camp, 13 Johnson R. 94. Champlin v. Rowley, 13 Wendell, 258. S. C. 18 Wendell, 187. Mead v. Degolyer, 16 Ib. 632. Stark v. Parker, 2 Pick. Rep. 267. Olmstead v. Beale, 19 Ibid. 528. See, also, supra, p. 258, and Steamboat Co. v. Wilkins, 8 Vermont Rep. 54. Helm v. Wilson, 4 Missouri Rep. 41. Wooten v. Reed, 2 Smedes & Marshall, Miss. R. 585. Givhan v. Dailey, 4 Ala. R. I have thus endeavoured to mark the prominent and most practical distinctions, on the very diffusive subject N. S. 336. The cases of Oxendale v. Wetherell, 9 B. & Cress. 380. 401, and Britton v. Turner, 6 New-Hampshire, 481, considered the rule as rather stern, and relaxed its severity, and in Mead v. Degolyer, above mentioned, Mr. Justice Cowen intimated that a court of chancery might perhaps feel itself driven to interfere in some of these hard cases, and it was repulsive to Lord Tenterden's ideas of justice, that if a man agreed to deliver 250 bushels of wheat by a certain day, and fell short but one bushel, the vendee should get the 249 for nothing. But in Champlin v. Rowley, 18 Wendell, 191, the chancellor repudiated the doctrine in the case of Oxendale v. Wetherell, with much severity. It is said to be now settled that after a rescission and abandonment of a special agreement, compensation for partial performance may be recovered. Porter v. Woods, 3 Hump. Tenn. Rep. 60. On this vexed question of the right of a party to redress who fails to perform an entire contract, except in part, the numerous and conflicting authorities, both English and American, have been industriously collected by Mr. Sedgwick, in his very valuable Treatise on the Measure of Damages. The principle ones, besides those already referred to, are to be seen in that treatise p. 219-232, and found to be against any remedy, in 6 Term, 320-3 Taunton, 522 Starkie, 256-9 B. § Cress. 92—2 Mass. 147—2 Pick. 267. 332—4—9 Johnson, 327-8 Cowen, 63-18 Wendell, 187. The condition precedent precludes the action. The cases in relaxation of the rule, besides those already referred to, are Buller, N. S. 139. 4 B. & Puller, 351, 5. 7 Pick. 181. 8 Id. 178. If there has been any acquiescence in a part performance so as to benefit the party accepting, or the non-performance was owing to any act of the other party, or arose from inevitable necessity, it seems most reasonable, that if any benefit has been conferred, and no mala mens mingle with the default, a reasonable allowance should be made for the part performed. The decision of Ch. J. Parker, in Button v. Turner, in 6 Nott, 497, is supported by very impressive remarks. It is to be observed, that as to the rule of damages for breach of contract in personal actions, the motive or animus of the party in default is disregarded, and the damages are limited to the pecuniary loss for the breach of the agreement, without reference to the fraud or malice of the party, for such considerations belong properly to actions on the case, or for deceit. Sedgwick on Damages, p. 206-212. Mr. Sedgwick says that the rule of damages in actions for breach of contract is now generally regulated by the discretion of the court, according to fixed principles, and the court will not allow an unconscious recovery, and that jurors have not an arbitrary discretion over the terms of the contract, and for this is cited 4 Bibb, 541. 3 I. I. Marshall, 35. 10 Mass. 459. 2 Brod. & Bing. 680. Sedgwick, 214, 215. Indeed, as Mr. Sedgwick has observed in another place, the settled tendency of our law, as well as all sound reasoning, is to of the delivery requisite to pass the title to goods, or to take the case out of the operation of the statute of frauds. But even in this general view of the subject, it has been difficult to select those leading principles, which were sufficient to carry us safely through the labyrinth of cases, that overwhelm and oppress this branch of the law. *VIII. Of the memorandum required by the *510 statute of frauds. The statute of frauds, of 29 Car. II. ch. 3. sect. 4, declared, that no action should be brought to charge any executor or administrator, upon any special promise, to answer damages out of his own estate;a or 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,b or upon any agreement that was not to be performed in one year, unless there was some reduce the measure of damages as far as possible, cases of tort and wrong excepted, to fixed legal rules. But the contradictions and variations in the multitudinous cases which are cited and dispersed throughout his treatise, show a very great failure in the effort. a The New-York Revised Statutes, vol. ii. p. 113. sec. 1, have improved upon the phraseology of the English statute, by adding, or to pay the debts of the testator or intestate out of his own estate. This did not apply to mutual promises to marry. Cook v. Baker, Str. Rep. 34; and in the New-York Revised Statutes, vol. ii. p. 135. sec. 2, this exception is expressly made. The statute only applies to agreements which are, by express stipula tion, not to be performed within a year. It does not apply to an agreement which appears from its terms to be incapable of performance within the year, nor to cases in which the performance of the agreement depends upon a contingency which may or may not happen within the year. Peter v. Compton, Skinner, 353. Talley v. Greene, 2 Sandford's Ch. Rep. 91. Fenton v. Emblers, 3 Burr. Rep. 1278. Wells v. Horton, 12 B. Moore, 177. Moore v. Fox, 10 Johns. Rep. 244. M.Lees v. Hale, 10 Wendell's Rep. 426. Peters v. Westborough, 19 Pick. Rep. 364 Lockwood v. Barnes, 3 Hill, 128. An inchoate performance within the year under a parol agreement, is not sufficient to take the case out of the sta memorandum or note in writing of the agreement, signed by the party to be charged or his agent. The statute, in respect to the memorandum, applied also to contracts for the sale of goods, wares and merchandise, in cases where there was no delivery and acceptance of part, or payment in part, or something in earnest given. This statute is assumed to be the basis of the statute laws of the several states on this subject. It has been frequently re-enacted in New-York, and the last revision of the statute law of the state has not changed its force or construction, and it applies equally to the grant or assign tute. The statute excepts agreements only that are to be performed, that is completed, within the year. Boydell v. Drummond, 11 East, 142. Birch v. Earl of Liverpool, 9 C. & Cr. 392. Hinckley v. Southgate, 11 Vermont Rep. 428. Lockwood v. Barnes, 3 Hill, 128. Herrin v. Butters 20 Maine Rep. 119. Johnson v. Watson, 1 Kelly, 348. The statute of frauds does not apply to executed contracts, which have been completely performed on both sides. Nor does the statute apply to the case of goods sold and to be delivered within the year, but where the price was not to be paid until after the expiration of the year. Adolph. 899. Holbrook v. Armstrong, 1 Fairfield's Rep. 31. Johnson v. Watson, 1 Kelly, 348. The design of the statute, said Lord Holt, was not to trust the memory of witnesses beyond one year, Lord Raymond Rep. 39; and it was adjudged in Broadwell v. Getman, 2 Denio's N. Y. Rep. 87, that a parol agreement which was not wholly to be performed within a year was void, even though one of the parties had a longer time than a year for the performance, and the authority of the decision in Donellan v. Reed was questioned and not acceded to. Donellan v. Reed, 3 B. § The statute applies to the contract of sale of goods to be made and delivered within the year. Gardner v. Isry, 9 Metcalf's Rep. 177. b New-York Revised Statutes, vol. ii. p. 113. sec. 1. Ibid. vol. ii. p. 135. sec. 2. Ibid. vol. ii. p. 136. sec. 3. Ibid. vol. ii. p. 137. sec. 2. But the New-York statute uses the word subscribed instead of the word signed, in the statute of Charles II. The Massachusetts Revised Statutes of 1835, and the Revised Laws of Illinois, 1833, and of Indiana, 1838, and of Connecticut, 1838, and of New-Jersey, 1794, follow closely the words of the English statute of frauds. But in Pennsylvania, the provision in the 4th section requiring a promise in writing to be held for the debt, default or miscarriage of another, is not adopted. The New-York statute contains a provision which puts an end to the question which has much agitated and divided the courts of law in England and this country. (See infra, vol. iii. |