with an oral agreement within the statute disclaim the terms of the agreement, and recover on a quantum meruit the value of what he has given.29 So an agent authorized to contract who has fully performed an unenforceable contract made on behalf of another may recover from his principal what he has paid,30 and this is true even though the agent after making the oral agreement was forbidden by his principal to carry it out.31 So the title which a grantee has received in performance of an unenforceable executory agreement is indefeasible.32 The ambiguity of the phrase "executed contract" has led to expressions in some cases to the effect that a contract executed on one side only is not within the terms of the statute.32 No such general principle can be admitted. How far it is true de pends on the clause of the statute in question, and on the character of the promise, performance of which still remains due. This matter has therefore been considered separately under the various clauses of the statute. Another view of doubtful correctness has been adopted by some courts. The transfer of the possession and enjoyment of real estate is treated as if it were performance of an agreement to transfer title, so that thereby the contract becomes executed. 33 29 Stone v. Dennison, 13 Pick. 1, 23 Am. Dec. 654. Cf. the decisions infra, § 534, where a plaintiff who had not actually received performance Iwas held entitled to refuse tender thereof though made in accordance with the terms of a contract within the statute, and sue for the fair value of what he had himself. given. 30 Pawle v. Gunn, 4 Bing. (N. C.) 445, 448; Bibb v. Allen, 149 U. S. 481, 37 L. Ed. 819, 13 S. Ct. 950. 31 Beal v. Brown, 13 Allen, 114. 32 Mushat v. Brevard, 4 Dev. 73, 77. 320 See, e. g., Castlen v. Marshburn, 8 Ga. App. 400, 69 S. E. 317. 33 Thus in Pearce v. Pearce, 184 Ill. 289, 56 N. E. 311, an oral agreement was made as to a widow's dower rights. The widow took possession of the dower land assigned to her during her life and her son agreed to pay rent for it to her. He was held liable for this; the agreement in regard to the dower right being regarded as validated by her possession. In Anderson School Township v. Lodge, 130 Ind. 108, 29 N. E. 411, 30 Am. St. Rep. 206, a building was put up by tenants in common under an agreement that one should own the land and ground floor while the other should own the second storey. The court held a partition suit could not be maintained, saying "the agreement was fully performed and possession taken." In Pireaux v. Simon, 79 Wis. 392, 48 N. W. 674, after a party wall had been built and used by the defendant, it was held that he must pay half the cost as he had orally agreed. See also cases of agreements for partition and § 529. Illustrations of the effect of unenforceable contracts as against the original parties, or their successors. The validity of an unenforceable contract, or sale, may be important in several kinds of cases. As between the parties themselves the effect of a transaction sufficient at common law to pass the title to goods but where the statute has not been satisfied, was thus expressed in a recent English case.34 "The contract being good, all the legal consequences of a contract follow; so that, if the contract is for sale of specified goods, the property in the goods passes to the buyer. It may be asked, What happens if the buyer, after making the purchase, refuses to fulfill any of the statutory conditions which alone will make the contract enforceable against him? The property in the goods has passed to him, and it may be that he has received the goods themselves, yet he cannot be sued for the price. My answer is that the seller may call on the buyer to pay for the goods, and, if he fails to comply, the seller may treat the contract as rescinded. The effect of such rescission would be to revest the property in the seller and to entitle him to resume the possession." It is clear, however, that the seller must not only have this right but must also have a right to repudiate the sale if it is not enforceable against him; and if he can do this, he must also be able to resell the goods and give the second purchaser a good title.35 Similarly if the buyer resells, the statute for the settlement of boundaries, supra, § 490, and of partly performed contracts for the sale of land, supra, § 494. 34 Taylor v. Great Eastern Ry. Co., [1901] 1 K. B. 774, 779. 35 Shelton v. Thompson, 96 Mo. App. 327, 70 S. W. 256; Fifth Nat. Bank v. Blair State Bank, 80 Neb. 400, 114 N. W. 409, 127 Am. St. Rep. 752. In the case first cited, the court said: "If the acts of the parties constituted a sale at law, the transaction was not void but only voidable at the election of the party to be charged. Aultman v. Booth, 95 Mo. 383, 8 S. W. 742; Maybee v. Moore, 90 Mo. 340, 2 S. W. 471. And it may also be said that as the Statute of Frauds affects only the remedy of the party sought to be charged, its benefits cannot be claimed by one who is not a party to the contract and is not sought to be charged thereby. St. Louis Railway v. Clark, 121 Mo. 169, 25 S. W. 192, 906. But we hold that the defendants are not within the above rule, for the reason that their vendor, Bain, avoided the contract in the first instance by refusing to let plaintiffs have the hogs in dispute. It would be illogical to hold that after a vendor had repudiated an oral contract like the one in question, he could not thereafter sell the goods and give good title. That is to say, that thereafter he must keep the goods because a purchaser 36 not having been satisfied, the subpurchaser cannot enforce his title against the original seller. So where two oral contracts for the sale of real estate are made between different persons, the purchaser under the second agreement, if he actually receives a conveyance though with notice of the previous oral contract, can retain his title.37 The seller had the legal right to repudiate his first oral contract and regain his title. This right he could transfer under the second contract; nor would a subsequently executed memorandum validating the first contract, give the purchaser under that contract a right against the grantee though it would give a right of action for damages against the seller. Indeed even though the original owner should execute a deed of conveyance to the purchaser who had the prior oral contract, the right of the latter will be inferior to that of one who has an earlier conveyance, though it was taken with notice of the prior oral contract.38 But if the first oral agreement is validated by a memorandum made prior to the conveyance of the land to another purchaser, though after a written contract to convey has been made with him, the oral contract is validated from the time when it was first made and takes precedence over the second contract though that was in writing; and if the purchaser under the later contract thereafter takes a deed with notice of the prior contract, equity will compel him to convey to the first purchaser. 39 And, generally where the statute is satisfied at could not be found, for the reason that they could be taken from him by the original vendee, which would destroy their character as articles of merchandise. But it is plain, that when the vendor voids a sale under said statute and retains the goods, his title is as if no such sale had ever been made, and he can resell and give as good a title as his own to the purchaser, who can, at a suit by the first vendee for the same goods, plead the action of the vendor, as a bar to such suit." 36 But if the statute is satisfied even though after the subpurchase, the subpurchaser's title becomes enforceable. Norton v. Simonds, 124 Mass. 19. 37 Van Cloostere v. Logan, 149 Ill. 588, 36 N. E. 946; Asher v. Brock, 95 Ky. 270, 24 S. W. 1070. 38 Pickerell v. Morss, 97 Ill. 220. 39 Dawson v. Ellis, 1 Jac. & W. 524; Chicago Dock Co. v. Kinzie, 49 Ill. 289; Lucas v. Mitchell, 3 A. K. Marsh. 244; Gallaher v. Hunter, 5 Mo. 507; Magee v. Blankenship, 95 N. C. 563; Patterson v. Martz, 8 Watts, 374; Maguire v. Heraty, 163 Pa. 381, 30 Atl. 151. See also Mitchell v. King, 77 Ill. 462; Peck v. Williams, 113 Ind. 256, 15 N. E. 270; Lefferson v. Dallas, 20 Ohio St. 68; Main v. Bosworth, 77 Wis. 660, 46 N. W. 1043. some time after the oral bargain, either by a memorandum, 40 or otherwise,11 the transaction dates, as between the parties from the oral contract. That an unenforceable contract is not void is also shown by the fact that where money is paid by a debtor to his creditor without direction as to its application, it may be applied by the creditor to the earliest item of indebtedness though that is unenforceable because of the statute.42 § 530. Third persons cannot take advantage of the statute. It follows from what has been stated that a contract or sale within the statute is valid except that it cannot be enforced against either party or his successor in interest unless the statute has been satisfied as to him. A third party should not be able to assert the invalidity of such transactions, 43 unless he is an assignee or successor to a party to the contract.44 In general the authorities support this view. Therefore, the invalidity under the statute of a lease cannot be shown by one who is not a party to it.45 And in an action for preventing performance of a contract between a third person and the plaintiff, the defense cannot set up that the contract was oral. 46 40 See infra, § 590. 41 Riley v. Bancroft's Est., 51 Neb. 864, 868, 71 N. W. 745 (acceptance and actual receipt of goods). See also Goffard v. Stearns, 51 Ala. 434, 444. 42 See infra, § 1796, ad fin. 43 Green v. Johnson, 151 Ill. App. 63; Schaefer v. Whitham, 146 Ia. 64, 124 N. W. 763; Bauer v. Weber Implement Co., 148 Mo. App. 652, 129 S. W. 59; Stitt v. Ward, 142 N. Y. App. Div. 626, 127 N. Y. S. 351; Draper v. Wilson, 143 Wis. 510, 128 N. W. 66. In the case last cited the court held that one who claimed hay under an alleged written bill of sale could not set up the Statute of Frauds as a defence to an action of replevin by one who claimed the hay under a subsequent oral agreement with the seller. In Jacob v. Smith, 5 J. J. Marsh. 380, a principal had agreed to sell certain land, if his agent had not "already disposed of it." The agent had previously made an oral bargain for the sale of the 46 Jackson v. Stanfield, 137 Ind. 592, 36 N. E. 345, 37 N. E. 14, 23 L. R. A. 588; Rice v. Manley, 66 N. Y. 82, 23 Am. Rep. 30. In the former case the court said: "If this be true, it is no concern of the appellees. Parties to contracts and their privies can alone take advantage of the fact that a contract is invalid under the Statute of Frauds. Many forms of expression by this and other courts illustrate the doctrine that a third person cannot make the Statute of Frauds available to overthrow a transaction between other persons; that the defense of this statute is purely a personal one, and cannot be made by strangers. Burrow v. Railroad Co., 107 Ind. 432, 8 N. E. Again, if insurance is made by a buyer upon property which he has bought by oral purchase, and the statute has been in no way satisfied the insurance company cannot set up that the insurer had no insurable interest in the property. It should also be true that the buyer, in the case of such a sale, should be able to recover against any one who has injured the property. On this point however, most of the decisions seem to be adverse. The buyer has not been allowed to sue a carrier for goods injured in transit when title had passed at common law, but the statute had not been satisfied.45 It has been held in Florida that a buyer could not maintain an action against a third person for detaining property which the buyer had bought, the statute not having been satisfied.49 Other decisions, however, are opposed to this in principle.50 167; Bodkin v. Merit, 102 Ind. 293, 1 N. E. 625; Cool v. Peters Box, etc., Co., 87 Ind. 531; Dixon v. Duke, 85 Ind. 434; Wright v. Jones, 105 Ind. 17, 4 N. E. 281; Savage v. Lee, 101 Ind. 515, 8 Am. & Eng. Enc. Law, 659, and cases cited. It concerns the remedy alone, and the modern law is well settled that, in the absence of a statutory provision to the contrary, the effect of the statute is not to render the agreement void, but simply to prevent its direct enforcement by the parties, and to refuse damages for its breach. 8 Am. & Eng. Enc. Law, 658, 659, and cases cited." 47 Amsinck v. American Ins. Co., 129 Mass. 185; Wainer v. Milford Mutual F. I. Co., 153 Mass. 335, 26 N. E. 877, 11 L. R. A. 598. Cf. Stockdale v. Dunlop, 6 M. & W. 224, per Parke, B.; Felthouse v. Bindley, 11 C. B. (N. S.) 869, per Willes, J.; Pitney v. Glen Falls Ins. Co., 65 N. Y. 6. 48 Morgan v. Sykes, stated in 3 Q. B. 486; O'Neill v. New York, etc., R. R. Co., 60 N. Y. 138. It should be noticed, however, that the New York statute says that such a transaction shall be "void." 49 Summerall v. Thoms, 3 Fla. 298. 50 Garcia v. United States, 37 Ct. Cl. 243. In Townsend v. Hargraves, 118 Mass. 325, 333, Colt, J., said: "In carrying out its purpose, the statute only affects the modes of proof as to all contracts within it. If a memorandum or proof of any of the alternative requirements peculiar to the seventeenth section be furnished; if acceptance and actual receipt of part be shown; then the oral contract, as proved by the other evidence, is established with all the consequences which the common law attaches to it. If it be a completed contract according to common-law rules, then, as between the parties at least, the property vests in the purchaser, and a right to the price in the seller, as soon as it is made, subject only to the seller's lien and right of stoppage in transitu. Many points decided in the modern cases support by the strongest implication the construction here given. Thus, if one party has signed the memorandum, the contract can be enforced against him, though not against the other showing that the promise of the other is not wholly void, because it affords a good and valid consideration to support the promise which by reason of the memorandum may be |