and the person who guarantees the debtor's account. To bring the case under the rule requiring a writing there must not be an absolute promise to pay, but a promise to pay if the other defaults.

To illustrate, A goes to a grocery with B and says, "Give B a bill of groceries, and if he fails to pay for them, I will." Such a promise is under the statute and must be in writing. But if A says, "Give B the bill of goods and I will pay for them," or, "I will see that you are paid," this is an independent promise, making A the principal debtor, and is not within the

statute.

Boston, a physician, brought suit to recover for services rendered Farr's stepson. Farr said to Boston, "Go and get a surgeon and do all you can for the boy; I will see that you get your pay." Held, the jury were justified in finding that it was an original promise on the part of defendant by which he charged himself with the bill, and did not come within the statute. · Boston v. Farr, 148 Pa. State 220.

The test seems to be whether the party for whose debt the promise is made continues to be liable; if so, the promise is within the statutes.

Agreements in Consideration of Marriage. The agreement here meant is not the promise to marry, but the promise to settle property or to make a payment of money in consideration of, or conditioned upon, a marriage.

It was held that a verbal agreement made by the woman before marriage, whereby she released and renounced all interest in her proposed husband's estate after his death, was void under the Statute of Frauds. - McAnnulty v. McAnnulty, 120 Ill. 26.

Contracts for the Sale of Lands or Any Interest in or Concerning Them. This section does not apply to the deed of conveyance of land, as that must be written and sealed without statutory requirement. But the statute here refers to any agreement to buy or sell land, or to any interest in or concerning lands, as a grant of a right of way over one's land, which is an interest concerning the realty and within the statute.

Agreements Not to be Performed within the Space of One Year. The mere fact that the contract may or may not be completed within one year is not sufficient to bring it within the statute. It must be the plain intent and purpose of the

contract that it is not to be performed within that time, to bring it within the statute. If its performance depends upon a contingency that may or may not happen within the year, no writing is necessary.

It was held that a contract of partnership to continue for three years was void under the Statute of Frauds unless in writing. - Wahl v. Barnum, 116 N. Y. 87.

An agreement to support a person during his lifetime is not within the statute, as he may die within the year.

Z, a stepfather, gave D, his stepson, the use of his farm during Z's lifetime in consideration of D's supporting Z and his wife during their lives. Held, that such an agreement is not within the statute.

McCormick v. Drummett, 9 Nebr. 384.

But a contract for a year's service to be entered upon in the future, even the next day, must be in writing under the statute.

About the middle of March Oddy and James entered into a verbal agreement by which James employed Oddy to superintend his cement works for one year from April 1 next. Oddy worked until August 3, when James discharged him. Oddy sued, and James set up that the agreement was void under the Statute of Frauds. Held, for James. The contract was not to be performed within one year, so must be in writing.

- Oddy v. James, 48 N. Y. 685.

QUESTIONS

1. What is the Statute of Frauds?

2. What contracts must be in writing under the Statute of Frauds? 3. Is any formal written instrument necessary? Explain.

4. How are most contracts proved?

5. How must contracts within the Statute of Frauds be proved?

6. What is the object of the Statute of Frauds?

7. How general has been its adoption?

8. Explain the following: "The Statute of Frauds is a defense, solely, and the party availing himself of it must set it up, otherwise it is waived."

9. Give an example of an oral promise to answer for the debt of another that would not be enforceable.

10. Is an oral contract to sell land enforceable?

II. Merritt agreed to pay Love $20 per month to care for a horse until he died. In case the horse lives three years would this contract have to be in writing to be enforceable?

12. Lyng agreed to work for Booth for one year and to begin work on the first of the following month. Must this contract be in writing?

9. DISCHARGE OF CONTRACT

Discharge by Agreement. As the contract is created by the agreement of the parties, so the parties may, if they choose, terminate and discharge it in a like manner. If the contract is executory, each party may waive his rights under it, and the waiver of the rights of one is the consideration for the waiver of the rights of the other. It is virtually a new contract, the subject matter of which is the waiver of the old contract, and all of the elements of a contract are necessary to constitute a valid waiver. If one party has performed his part of the contract, there must be some consideration for his release of the other party.

Andrews offered Hoff ten cords of wood and Hoff agreed to work for Andrews five months to pay for it. Before anything had been done Andrews released Hoff from his promise to work and Hoff released Andrews from his promise to deliver the wood. The contract was discharged.

Suppose that after Andrews had delivered the wood he released Hoff from his promise to work five months. Hoff's liability would not be discharged, as there would be no consideration for Andrews's release.

A waiver may be effected by the substitution of a new contract which so changes the terms of the old one that it either expressly or impliedly waives the old agreement, but the intention to discharge the old contract must be clear. The contract may by express terms provide for its own discharge, as, for instance, a stipulation that one party may terminate it upon giving certain notice or performing certain conditions.

A policy of insurance provided that if the premises should become vacant and remain unoccupied for a period of more than ten days, without the assent of the company indorsed upon the policy, the policy should become void. The premises became vacant and remained so for over three months. They were then occupied and thereafter burned. Held, that by the terms of the policy it was terminated and discharged by the vacancy, and subsequent occupation did not revive it.

Moore v. Phænix Insurance Co., 62 N. H. 240.

Discharge by Performance. This is the termination of the contract contemplated by the parties when it is made. The terms having been carried out and the conditions performed, the contract is satisfied and discharged. This of course requires performance upon both sides. If but one party has performed,

he alone is discharged and not the contract, for it remains in force until all of its provisions are carried out. If the contract is for the sale of a table for $40, the contract is discharged when the table is delivered and the money paid. If the table is delivered but payment not made, it is discharged as to the seller but not as to the purchaser.

To constitute a performance the terms of the contract must be carried out as to time, place, and conditions. Although a substantial performance is held good, the party will be liable for the damages caused by his deviation from the exact terms of the contract.

Nolan brought an action to recover on a contract for building Whitney a house. The court found that he had endeavored to live up to the agreement and, acting in good faith, had substantially performed his part. He could therefore recover, notwithstanding some slight defects in the plastering for which compensation would be made to Whitney.

Nolan v. Whitney, 88 N. Y. 648.

Gillespie Tool Company brought an action to recover the contract price for drilling a gas well. The contract called for a certain depth and diameter. The tool company had drilled the required depth, but the diameter of part of it was less than the contract specified. The only excuse for this was the saving of time and expense. Held, that this was not a substantial compliance and the company could not recover, although the well answered every purpose a larger one would.

- Gillespie Tool Co. v. Wilson, 123 Pa. State 19.

When the contract calls for the payment of money, the party to whom it is to be paid need not accept a note or check. But if it is accepted, the question arises as to whether or not this discharges the original contract, or whether the note or check is to be regarded as a conditional payment. If it is but a conditional payment, it does not discharge the contract until it is paid. The intent of the parties governs here, but in the absence of any proof of intent to the contrary, the presumption is, in most of the states, that it is taken conditionally.

The taking of a note for a preëxisting debt was held to be no payment unless the creditor expressly agreed to take the note as payment and to run the risk of its being paid. The giving of a receipt for the amount is not enough to establish such a positive agreement.

Stone & Gravel Co. v. Gates Iron Works, 124 Ill. 623.

A contract in which the performance of one party is to be satisfactory to the other gives rise to a nice question and we are

confronted with the inquiry, Can the whims and personal taste of the party for whom the work is done prevent the fulfillment of the agreement when the performance is to all intents and purposes well accomplished? The answer seems to be that if it is a matter of personal taste, as a contract for painting a portrait, or if it is a contract for the sale of goods where the parties can be put in statu quo (i.e. the same condition in which they originally stood), the agreement will be strictly construed and the buyer will be the sole judge.

Brown expressly agreed to make a suit of clothes for Foster that would be satisfactory to him. The clothes were made and delivered, but Foster declined to accept them. Brown proved that they could easily be altered and made to fit. But the court held that under the agreement it was for Foster alone to decide whether or not he would accept the clothes. It was Brown's fault if he entered into a contract that made his compensation dependent upon the judgment and caprice of another.

Brown v. Foster, 113 Mass. 136.

An artist who agrees to paint a "satisfactory" portrait cannot recover unless the buyer is satisfied, as the question of reasonable satisfaction does not enter into contracts involving personal taste.

Pennington v. Howland, 21 R. I. 65.

But if it is a contract for work or labor which does not involve the question of personal taste, as for machinery or mason work, the courts hold that the party for whom the work is performed must be satisfied when in justice and reason he ought to be satisfied. That is, if the work has been substantially performed it must be accepted.

Hawkins agreed with Graham in writing to furnish and set up a heating system in Graham's mill according to certain specifications, and he was to be paid upon its satisfactory completion. If the system was not satisfactory, he was to remove it at his own expense. Held, that the question as to whether the system was satisfactory was to be determined, not by the particular taste and liking of the mill owner, but by the judgment of a reasonable man. Hawkins v. Graham, 149 Mass. 284.

Richardson agreed to sink a well for Mead which would produce a flow of water satisfactory to Mead. It was held that Mead cannot arbitrarily say he is dissatisfied and refuse to pay, if the well does satisfy his needs and should satisfy a reasonable man. Richardson v. Mead, 11 S. D. 639.

Legal Tender. The payment of money must be made in what is termed legal tender, unless the creditor consents to accept something else. Legal tender is money which Congress has declared must be accepted if offered in payment of an un