Further, though in Minnesota and New York it has been held that a buyer under such a sale cannot maintain an action against an officer who attaches the goods as the property of the seller, 51 in opposition to these cases are decisions in Maine and New Jersey, allowing the action against the officer. 52 Under enforced. Reuss v. Picksley, L. R. 1 Ex. 243. The memorandum is sufficient if it be only a letter written by the party to his own agent; or an entry or record in his own books; or even if it contain an express repudiation of the contract. And this because it is evidence of, but does not go to make the contract. Gibson v. Holland, L. R. 1 C. P. 1; Buxton v. Rust, L. R. 7 Ex. 1, 279; Allen v. Bennet, 3 Taunt. 169; Tufts v. Plymouth Mining Co., 14 Allen, 407; Argus Co. v. Albany, 55 N. Y. 495. A creditor, receiving payment from his debtor, without any direction as to its application, may apply it to a debt upon which no action can be maintained under the statute. Haynes v. Nice, 100 Mass. 327, 1 Am. Rep. 109. The contract is treated as a subsisting valid contract when it comes in question between other parties for purposes other than a recovery upon it. Hence the statute cannot be used to charge a trustee, who may set up against his debt to the principal defendant a verbal promise within the statute to pay the defendant's debt to another for a greater amount. Cahill v. Bigelow, 18 Pick. 369. And a guarantor may recover of his principal a debt paid upon an unwritten guaranty. Beal v. Brown, 13 Allen, 114. On the ground that the statute affects the remedy and not the validity of the contract, it has been held that an oral contract, good by the law of the place where made, will not be enforced in the courts of a country where the statute prevails. Leroux v. Brown, 12 C. B. 801. The defendant may always waive its protection, and the court will not interpose the defense. Middlesex Co. v. Osgood, 4 Gray, 447. And, except that the statute provides that no action shall be brought, there would be no good reason to hold that a memorandum signed, or an act of acceptance proved, at any time before the trial, would not be sufficient. Bill v. Bament, 9 M. & W. 36; Tisdale v. Harris, 20 Pick. 9. In a recent case in the Queen's Bench, a memorandum in writing made by the defendant, after the goods had been delivered to a carrier and been totally lost at sea while in his hands, was held sufficient to take the case out of the statute, and no notice is taken of the fact that the goods were not in existence when the memorandum was furnished. Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140." 51 Waite v. McKelvy, 71 Minn. 167, 73 N. W. 727; Ely v. Ormsby, 12 Barb. 570. See also Winner v. Williams, 62 Mich. 363, 28 N. W. 904. Here also it should be noticed that both the Minnesota and the New York statute use the word "void," and though the New York court does not apparently regard this as affecting the construction of the statute, the Minnesota court does. See notes to the following section. 52 Cowan v. Adams, 1 Fairf. 374, 25 Am. Dec. 242; Sherron v. Humphreys, 2 Green (N. J. L.), 217. So in Godden v. Pierson, 42 Ala. 370, the court held that one who had been garnisheed might show as a defence that though he was indebted to the principal defendant at the time of service of process, he had subsequently satisfied the debt by performing a previously existing contract with a third person, even though this contract was oral and within the statute. a Federal statute allowing compensation to loyal owners of property captured or destroyed during the Civil War, the Supreme Court of the United States had to consider the question whether the buyer of cotton, under a sale in which the statute had not been satisfied, could be regarded as owner, and the court held that he could not.53 The court cites no authorities in support of this statement, however; and a later decision by the same court, involving almost precisely the same question, expressed a contrary view without citing the earlier case.5 54 § 531. Effect of the word "void " or a similar word in statutes. How far the use of the word "void" in the statute 54 should be held to require a difference in construction is a question upon which authority is not wholly consistent. It may be questioned whether statutes containing this word were intended to vary the meaning of the English statute which forms the original basis of all of them, and it may fairly be argued that the word "void" shoud be given the meaning of "voidable," at the election of the other party. The decisions of some courts, at least, warrant such a construction.55 53 Mahan v. United States, 16 Wall. 143, 21 L. Ed. 307. Miller, J., delivering the opinion of the court, said (p. 147): "To hold that an agreement which that statute declares shall not be allowed to be good and valid was sufficient to transfer the title of the property to the claimant would be to overrule the uniform construction of this or a similar clause in all Statutes of Frauds by all the courts which have construed them." 54 Briggs v. United States, 143 U. S. 346, 12 S. Ct. 391, 36 L. Ed. 180. The court there said: "There was no creditor or purchaser who could question the transfer of title to the vendee. The government stood in no such relation and could raise no such objection. It has no pre-existing demand or equity against the property. All the rights of the government resulted from capture." 544 See supra, § 526. 55 In Crane v. Powell, 139 N. Y. 379, 384, 34 N. E. 911, the court said, speaking of the statute: "It simply requires that certain agreements must be proved by writing. It introduced a new rule of evidence in certain cases without condemning as illegal any contract that was legal before." The court here does not seem to distinguish the construction to be given the New York statute from that given the English statute. In Riley v. Bancroft's Est., 51 Neb. 864, 868, 71 N. W. 745, the court said: "While the statute declares that sales not conforming to its requirements shall be void, it is a truism that they are not void, but voidable. Such is the construction that all courts have placed upon the statute. Indeed the requirements of the statute are in a certain sense merely requirements of certain modes of proof and not requirements of inherent elements in the contract." In Doney v. Other courts, however, construe the word more literally without considering its history.56 Laughlin, 50 Ind. App. 38, 42, 46, 47, the court said: "It has been held that the words 'void' and 'invalid,' when used in regard to contracts not immoral nor against public policy, usually mean voidable at the option of one of the parties, or some one legally interested therein, and that such construction leads to fewer errors than that which ascribes to those words the meaning of absolute nullity for any and all purposes. State v. Richmond, 26 N. H. 232; Mutual Benefit Life Ins. Co. v. Winne, 20 Mont. 20, 49 Pac. 446; Pearsoll v. Chapin, 44 Pa. 9; Ewell v. Daggs, 108 U. S. 143, 2 S. Ct. 408, 27 L. Ed. 682; Kearney v. Vaughan, 50 Mo. 284." See also Wills v. Ross, 77 Ind. 1. Such was the construction put upon the word "void" in the Sales in Bulk Act in Dickinson v. Harbison, 78 N. J. L. 97, 72 Atl. 941. 56 In Laun v. Pacific Mut. L. Ins. Co., 131 Wis. 555, 560, 111 N. W. 660, however, the court said: "Where the contract is declared void by statute, and the statute is within the power of the legislature to enact, there is not much room for discussion, although even then the whole purview of the statute may indicate that the word 'void' is used in the sense of 'voidable."" In Pierce v. Clarke, 71 Minn. 114, 73 N. W. 522, in construing the Minnesota staute which contains the word void, the court went farther and declared a contract within the statute "absolutely void," and overruled a statement in Hagelin v. Wacks, 61 Minn. 214, 216, 63 N. W. 624, that such a contract was merely not enforceable by action. See also Prestwood v. Carlton, 162 Ala. 327, 50 So. 254; Scott v. Bush, 26 Mich. 418, 12 Am. Rep. 311; Barton v. Gray, 57 Mich. 622, 24 N. W. 638; Waite v. McKelvy, 71 Minn. 167, 73 N. W. 727; Marie v. Garrison, 13 Abb. N. C. 210, 257, 259; Brandeis v. Neustadtl, 13 Wis. 142. In Ex parte Banks, 185 Ala. 275, 64 So. 74, the court said in the most emphatic way that a contract within the statute was "absolutely void," not voidable, but "a nullity" and yet said that unless the defence was taken by plea or demurrer, it was waived, and held that third persons could not take advantage of the failure to satisfy the statute. As the Alabama court seems to mean by "absolutely void" what other courts mean by voidable, it is unfortunate to create confusion by a difference in terminology. In California, the statute declares oral agreements within its scope "invalid." Such agreements are held enforceable unless the defence is asserted. In Townsend v. Hargraves, 118 Mass. 325, the Supreme Court of Massachusetts, in construing the section of the local statute relating to the sale of goods in which the words employed were, "shall be good and valid," said: "It is true there is a difference in phraseology in these sections; but in view of the policy of the enactment, and the necessity of giving consistency to all its parts, this difference cannot be held to change the force and effect of the two sections. . . . The validity intended is that which will support an action on the contract. . . . In carrying out its purpose, the statute only affects the modes of proof as to all contracts within it." So in Bird v. Munroe, 66 Mo. 337, 22 Am. Rep. 571, the court disclaimed any distinction between the words in different sections of the statute: no contract "shall be valid," and "no action shall be maintained" on certain contracts. In Jones v. Pettigrew, 25 S. Dak. 432, 127 $532. Divisible contracts. A contract though within the statute as to some portion of the performance promised by the defendent, may not be as to the remainder. Such a contract is nevertheless unenforceable in any part, since the contract is an entirety, and the fact that part cannot be enforced involves the unenforceability of the whole.57 Even though the contract is divisible in its nature 58 and a divisible portion of performance on both sides may not be within the statute, the same result must be reached. As a divisible contract is not several contracts but a single agreement, neither party can be required to perform part unless the whole is enforceable. Therefore, so long as the contract is wholly executory, it seems obnoxious to the statute unless it can be saved under the principles of part performance or of contracts executed on one side referred to in the preceding sections as adopted by some courts. 59 Nor would it seem material that a division of the agreed consideration on the plaintiff's side had been actually performed in expectation of receiving the promised corresponding division of performance from the defendant. As the contract is by hypothesis but a single contract, it does not follow that the defendant would N. W. 538, "invalid" in the local statute was held equivalent to void. 57 Chater v. Beckett, 7 T. R. 201; Thomas v. Williams, 10 B. & C. 664; Mechelen v. Wallace, 7 A. & E. 49; Vaughan v. Hancock, 3 C. B. 766; Harman v. Reeve, 18 C. B. 587; Pond v. Sheean, 132 Ill. 312, 23 N. E. 1018, 8 L. R. A. 414; Rainbolt v. East, 56 Ind. 538, 26 Am. Rep. 40; Caylor v. Roe, 99 Ind. 1; Becker v. Mason, 30 Kan. 697, 2 Pac. 850; Jackson v. Evans, 44 Mich. 510, 7 N. W. 79; Savage v. Canning, 1 Ir. R. C. L. 434. 58 As to the meaning of divisible contracts, see infra, § 861. 59 In Cooke v. Tombs, 2 Anst. 420, the defendant contracted to sell certain real estate and the personal property thereon for a lump sum. It was held that the contract was unenforceable even as to the personal property. The court seemed to think this would be so even if the price were not a lump sum, since it could not be assumed that the parties would have bought or sold the personal property without the real estate. The same result was reached in fact in Lea v. Barber, 2 Anst. 425, n. where the price was divisible. See also Mechelen v. Wallace, 7 Ad. & E. 49; Stringfellow v. Ivie, 73 Ala. 209; Grant v. Grant, 63 Conn. 530, 29 Atl. 15, 38 Am. St. Rep. 379; Thayer v. Rock, 13 Wend. 53. Contracts are sometimes called divisible when what is really meant is that they are several independent contracts. Where such is the case even though the independent contracts were made at the same time one may be enforced without reference to the unenforceability of the other. Mayfield v. Wadsley, 3 B. & C. 357. have agreed to give a single division of the contract for the price provided therein, had the contract not also provided that the remaining divisions of the contract also would be performed.60 But where the entire consideration agreed for on one side has been given, the party so performing may recover under the contract for a divisible portion of the performance on the other side which is not within the statute.61 Thus it has 60 See Galvin v. Prentice, 45 N. Y. 162, 6 Am. Rep. 58. In such a case the plaintiff may recover on the theory of quasi-contract, and the extent of his recovery may in a particular case be that specified in the express contract. See infra, § 1459, but it should be remembered that the obligation on which recovery is had is quasi-contractual. In Hurley v. Donovan, 182 Mass. 64, 68, 64 N. E. 685, the court said: "Where the plaintiff has done work in consideration of the defendant's promising to do two things, the promise to do one being valid, the promise to do the other being within the statute of frauds, it has been held that the plaintiff can, if he chooses, forego all rights by reason of having been promised the two things, and enforce the performance of the one for which the promise is valid, as in Rand v. Mather, 11 Cush. 1, 59 Am. Dec. 131. There are other cases where there is a contract containing 'several stipulations, having reference to distinct objects, and imposing distinct duties, some of which can and some cannot be enforced,' in which it has been held that one of the separate contracts not within the statute can be enforced although some are within the statute and cannot be enforced, as in Friedn v. Pettingill, 116 Mass. 515. But in the case at bar the promise is part of one inseparable contract, namely, the contract to reconvey the land on being paid the money lent, and until then to keep down the interest on the prior incumbrance. It is like an agreement to buy a cargo of coal and pay for its transportation from Philadelphia to Boston, which was under consideration in Irvine v. Stone, 6 Cush. 508, and like the agreement to sell flats and fill them to a specified grade, and to sell land and pay a sewer assessment, in question in Page v. Monks, 5 Gray, 492, and in Carr v. Dooley, 119 Mass. 294. In such cases so long as the part of the contract within the statute of frauds is unexecuted, no part of the contract can be enforced, as was held in Irvine v. Stone, 6 Cush. 508; on the other hand it has been held that when the parties have voluntarily executed the part which is within the prohibition of the statute, the promise to do something not within the statute made in consideration of that which is within the statute can be enforced. Page v. Monks, 5 Gray, 492; Carr v. Dooley, 119 Mass. 294. And see Wetherbee v. Potter, 99 Mass. 354." 61 In Wood v. Benson, 2 Cr. & J. 94, the defendant entered into the following guaranty: "I, the undersigned, do hereby engage to pay the directors of the Manchester Gas Works, or their collector, for all the gas which may be consumed in the Minor Theatre, and by the lamps outside the theatre, during the time it is occupied by my brother-in-law, Mr. Neville; and I do also engage to pay for all arrears which may be now due. Witness my hand, this 10th day of August, 1830." The court held the agreement void as to the arrears because there was no consideration appearing from the memorandum to support the promise, but |