§ 526. Language of American statutes.

3

Maryland alone, of the United States, seems to have adopted the English statute as such, as part of her jurisprudence, but the statutes of other States contain words which are either the same as those of the English statute, or must be regarded as equivalent. Ordinarily but not invariably the same words are used in the American statutes to describe the effect of a failure to satisfy the statutory requirements whether the contract is for the sale of land or of goods or is a guarantee or an agreement not to be performed within a year. Several States enact that only such a bargain as fulfills the terms of the statute "is valid" or that otherwise it "is invalid." In Iowa the statute reads "no evidence is competent unless it be in writing." Except for the differences hereafter alluded to, which would naturally follow in Iowa from treating the statute as imposing merely a rule of evidence, there seems no reason why these various expressions should not be regarded as identical in legal effect with the expressions used in the English statute,

"I think the right interpretation of" the 4th section of the Statute of Frauds "is this, that an agreement which cannot be enforced on either side is as a contract void altogether." And this statement was quoted in Reade v. Lamb, 6 Exch. 130. In Leroux v. Brown, 12 C. B. 801, it was held that the 4th section did not affect the validity of the contract but only the proof of it, whereas it was said that the 17th section made the contract void, unless the statute was complied with. But in Bailey v. Sweeting, 30 L. J. C. P. 150, the court held that though non-compliance with section 17, made the agreement not actionable, it became actionable when the statute was afterwards satisfied. In Sievewright v. Archibald, 17 Q. B. 103, the same view was taken. In Britain v. Rossiter, 11 Q. B. D. 123, 127 (C. A.) Brett, L. J., said of a contract within the 4th section: "In my opinion, no distinction exists between the 4th and the 17th sections of the Statute; at all events, the

contract is not void under the 4th section; the contract exists but no one is liable upon it;" and similar statements were made by the other Lord Justices. See to the same effect Maddison v. Alderson, 8 App. Cas. 467, and though in Morris v. Baron, [1918] A. C. 1, 11, Lord Finlay seems to have thought otherwise, Viscount Haldane (at p. 15) denied the supposed distinction.

3 See Colvin v. Williams, 3 H. & J. 38, 5 Am. Dec. 417; Newman v. Morris, 4 H. & McH. 421; Rentch v. Long, 27 Md. 188; Sentman v. Gamble, 69 Md. 293, 13 Atl. 58, 14 Atl. 673; Webb v. Baltimore, etc., R. R. Co., 77 Md. 92, 26 Atl. 113, 39 Am. St. Rep. 396; Corbett v. Wolford, 84 Md. 426, 25 Atl. 1088. In Indiana, the first and sixth sections of the local statute are similar in wording to § 4 of the English Statute; but §§ 7, 8, 10, 12, 17, 18, resemble § 17 of the English Act. See Doney v. Laughlin, 50 Ind. App. 38, 42, 94 N. E. 1027.

8

but the same assumption cannot safely be made in regard to the words "shall be void," or "are void," which are contained in the statutes of a number of the States, namely: Alabama, Colorado, Michigan,' Nebraska, Nevada, New Jersey, 10 New York," Oregon, 12 Utah, 13 Wisconsin,14 Wyoming.15 and the word "invalid" is sometimes treated as equivalent to void. 16

§ 527. Effect of noncompliance with the statute.

Under the English statute it has been held that only the enforceability, not the validity, of a bargain depends upon the satisfaction of the statute. It is even said that the only effect of the statute is to require certain evidence in order to prove the bargain. This view has been given currency by the learned author of the leading treatise on the Statute of Frauds," and has been expressed in the statute of Iowa referred to in the preceding section. 18 It has also received sanction from expressions of distinguished judges. 19 But it has more accurately

5 Code (1907), § 4289.

The

Mills' St. (1912), § 3065. 7 Comp. L. (1916), § 11981. enactment of the Uniform Sales Act in 1913 substitutes "not enforceable by action" in the clause relating to sales of goods.

8 Rev. St. (1913), § 2630.

Rev. L. (1912), § 1075. The enactment of the Uniform Sales Act in 1915 substitutes "not enforceable by action" in the clause relating to sales.

10 Comp. St. (1915), p. 2615, § 6. The Uniform Sales Act was passed in 1907.

11 Birdseye's Cum. & Gilb. Cons. L. (1918), Personal Property Law, Sec. 31. The Uniform Sales Act was passed in 1911.

12 Lord's Oreg. Laws (1910), § 808. SeeTaggart v. Hunter, 78 Oreg. 139, 150 Pac. 738, 152 Pac. 871, Ann. Cas. 1918 A. 128.

13 Comp. L. (1907), § 2467. The Uniform Sales Act was passed in 1917. 14 Stat. (1915), § 2307. The Uni

form Sales Act was passed in 1911, and the Statute of Frauds in that Act is printed in the Wisconsin Statutes as 1684-t, § 4; but the old statute declaring sales "void" if the statute is not satisfied is still printed as § 2308.

15 Comp. St. (1910), §§ 3751, 3752. The Uniform Sales Act was passed in 1917.

16 Jones v. Pettigrew, 25 S. Dak. 432, 127 N. W. 538. See infra, § 531, n. 55, 56.

17 Browne on the Statute of Frauds. 18 In Reuber v. Negles, 147 Iowa, 374, 126 N. W. 966, 968, the court said: "Our Statute of Frauds is a statute of evidence. It does not forbid an oral contract nor render an alleged oral contract void or invalid. It only forbids oral evidence of a contract which is within its provisions. It permits the plaintiff to call his adversary as a witness and to establish the alleged contract by his oral evidence if he can." 19 Lord Blackburn in Maddison v. Alderson, 9 App. Cas. 467, at p. 488:

been said: "The statute is not a mere rule of evidence, but a limitation of judicial authority to afford a remedy; " 20 for it seems that the effect of the statute is more far-reaching than a rule of evidence. In the first place a memorandum made after the beginning of the action will not satisfy the statute; 21 while on the other hand, parol evidence of a lost or destroyed memorandum is sufficient. 22 Again, it is generally held that the statute must be affirmatively pleaded.23 If only a rule of

evidence were involved this would be unnecessary. To be sure the requirement of a special plea is by no means universal; for in England at common law, and still in many jurisdictions of the United States, the defendant may take advantage of the statute under the general issue.24 In some of these cases the fact that the local Statute of Frauds declared that contracts within its terms were "void" is the decisive point. The words of the English statute also seem to express, if naturally construed, more than a rule of evidence. For these reasons it seems better to call the rule of the statute one of remedial procedure, somewhat analogous to the rule of the Statute of Limitations, rather than a mere rule of evidence.25

§ 528. The statute does not affect fully executed agreements. The Statute of Frauds invalidates only agreements executory at least on one side, whether rendering them unenforceable as in most jurisdictions or wholly void as in a few others. It does not render transactions illegal or opposed to public policy,

Smyth, 21 Utah, 109, 59 Pac. 756;
Jennings v. Auger, 215 Fed. 658 (D. C.
Wash.); Tregea v. Mills, 11 Wyo. 438,
72 Pac. 578.

24 Buttermere v. Hayes, 5 M. & W. 456; Eastwood v. Kenyon, 11 A. & E. 438; Dunphy v. Ryan, 116 U. S. 491, 6 S. Ct. 486, 29 L. Ed. 703; McDonald v. Yungbluth, 46 Fed. 836; Buhl v. Stevens, 84 Fed. 922; Thompson v. Frakes, 112 Iowa, 585, 84 N. W. 703; Wiswell v. Tefft, 5 Kan. 263; Morgan v. Wickliffe, 22 Ky. L. Rep. 1648, 61 S. W. 13; Hamilton v. Thirston, 93 Md. 213, 48 Atl. 709; Morgart v. Smouse, 103 Md. 463, 63 Atl. 1070, 115 Am. St. Rep. 367; Third Nat. Bank v. Steel, 129 Mich. 434, 88 N. W. 1050, 64 L. R. A. 119; Bean v. Lamprey, 82 Minn. 320, 84 N. W. 1016; Neuvirth v. Engler, 83 Mo. App. 420; Leesley v. A. Rebori Fruit Co., 162 Mo. App. 195, 144 S. W. 138; Riiff v. Riibe, 68 Neb. 543, 94 N. W. 517; Jones v. Pettigrew, 25 8. Dak. 432, 127 N. W. 538; Hotchkiss v. Ladd, 36 Vt. 593, 86

Am. Dec. 679; McClanahan v. Otto-
Marnet &c. Co., 74 W. Va. 543, 82
S. E. 752; Williams-Hayward Co. v.
Brooks, 9 Wyo. 424, 64 Pac. 342.
See also Boone v. Coe, 153 Ky. 233, 154
S. W. 900.

25 This view is elaborated in an able article in 9 Am, L. Rev. 434. The article is not signed but was, in fact, written by William C. Loring, late justice of the Supreme Judicial Court of Massachusetts. The theory is substantially stated also by Willes, J., in Gibson v. Holland, L. R. 1. C. P. 1, in language quoted and approved by Peters, J., in Bird v. Munroe, 66 Me. 337, 347, 22 Am. Rep. 571: "The courts have considered the intention of the Legislature to be of a mixed character; to prevent persons from having actions brought against them so long as no written evidence was existing when the action was instituted." See also Kerr v. Finch, 25 Ida. 32, 135 Pac. 1165.

and therefore if an agreement within its scope is executed on both sides, neither party can reclaim what he has given.26 This is true even where the performance on one side consists merely of an agreement to receive the performance of the other party in satisfaction of a preëxisting claim.27 Moreover, if a contract within the statute is performed on one side by transferring property, the transfer is for value and cannot be attacked by creditors as a voluntary conveyance.28

Nor can one who has received performance in accordance

26 Simon v. Motivos, 1 W. Black. 599 ("If a contract is executed, it is never set aside "); Shaw v. Woodcock, 7 B. & C. 73, s. c. 9 D. & R. 889 (an agent who had voluntarily paid his principal the debt of another, was held not entitled to recover it); Hansen v. Uniform Seamless Wire Co., 243 Fed. 177, 156 C. C. A. 43 (payment of sums on a ten-year contract of employment as full satisfaction); Bates v. Babcock, 95 Cal. 479, 30 Pac. 605, 16 L. R. A. 745 (after a conveyance of land had been made in pursuance of an oral agreement, though it could not have been compelled, the statute was held not to diminish the grantee's rights); Craig v. Vanpelt, 3 J. J. Marsh. 489 (one who orally promised to pay the debt of another and who has done so, cannot avail himself of the statute); Eaton v. Eaton, 35 N. J. L. 390 (an oral trust having been executed, the trustee cannot recover money paid in execution of it); Newman v. Nellis, 97 N. Y. 285, 291 (one who has dedicated a way in pursuance of an oral contract, cannot recall the dedication); Larsen v. Johnson, 78 Wis. 300, 47 N. W. 615, 23 Am. St. Rep. 404 (after a conveyance of land had been made in pursuance of an oral agreement, though it could not be compelled, the statute was held not to diminish the grantee's rights). See also McCue v. Smith, 9 Minn. 252, 86 Am. Dec. 100; Dodge v. Crandall, 30 N. Y. 294,

304; Brown v. Farmers' L. & T. Co., 117 N. Y. 266, 273, 22 N. E. 952.

27 Kling v. Tunstall, 124 Ala. 268, 27 So. 420. (An oral agreement was made that certain mortgaged property should be bid in and applied in satisfaction of certain claims. When the property was bid in it was held the agreed effect took place.)

In James v. Morey, 44 Ill. 352, an oral promise was made by the plaintiff to pay the defendant money in consideration of his marriage, and relying on the promise the defendant married. Part of the money was paid, and credit was given to the defendant on the plaintiff's books for the remainder, the defendant being indebted to the plaintiff for rent. It was held that the plaintiff could not recover the sum credited. The court treated the credit on the books as equivalent to actual payment and execution of the agreement. It seems, however, that as to this portion of the money promised there was merely a promise to discharge the defendant from liability to pay the rent in question. As this promise was within the statute which was not satisfied, the court seems to have erred in holding the defendant freed from liability.

28 Andrews v. Jones, 10 Ala. 400; Gordon v. Tweedy, 71 Ala. 202; Crane v. Gough, 4 Md. 316. In regard to an exceptional doctrine concerning antenuptial agreements see, however, supra, § 486.