ity upon the alleged ground that the vendee has not bound himself to perform by some writing. We are aware that there is a diversity of opinion and a contrariety of holdings by the courts of last resort in the various states upon this subject; but a careful review of the authorities leads us to conclude that a contract otherwise clear and explicit is sufficient to meet the requirements of the statute of frauds, if signed by the vendor. In 29 Am. & Eng. Enc. Law (2d Ed.) the subject under consideration is extensively discussed and the authorities touching it reviewed, and the conclusion there announced is (page 858): "The weight of authority is that the statute is satisfied if the memorandum be signed by the parties sought to be charged alone, or, in other words, by the party defendant in an action brought to enforce the contract, whether he be vendor or vendee. In the case of a contract for the sale of lands, the vendor is usually the person to be charged, and a memorandum signed by him alone is valid. The party not signing the memorandum is not bound unless, as held by some authorities, he has accepted the same as a valid, subsisting contract. Want of mutuality arising from the failure of both parties to sign cannot be successfully pleaded as a defense by the party who did sign, as the act of filing a bill for specific performance binds the plaintiff and renders the contract mutual." A reference to the authorities there cited shows that the rule thus obtains in England and in the majority of the United States. Speaking of this rule, Mr. Pomeroy, in his work. on Specific Performance (section 75), in part says: "It may, perhaps, be sustained upon the following grounds: The statute of frauds does not reach the substance of contracts and render them valid or invalid. It simply furnishes a rule of evidence. Whenever, therefore, any agreement is enforced against a defendant who has signed it by a plaintiff who has not, it cannot be said that the agreement, so far as it purports to bind the plaintiff, is a nullity. In the suit against him the statute does no more than require a certain kind of proof in case he avails himself of it as a defense. The defense, however, is wholly a personal one, and if he neglects to set it up the agreement would be established against him, notwithstanding the statute. For these reasons it cannot be said that a memorandum signed by one party alone is so completely wanting in mutuality that no action upon it can be sustained." * * SECTION 9.-EFFECT OF NON-COMPLIANCE WITH THE STATUTE BIRD et al. v. MUNROE. (Supreme Judicial Court of Maine, 1877. 66 Me. 337, 22 Am. Rep. 571.) PETERS, J. On March 2, 1874, at Rockland, in this state, the defendant contracted verbally with the plaintiffs for the purchase of a quantity of ice, to be delivered (by immediate shipments) to the defendant in New York. On March 10, 1874, or thereabouts, the defendant, by his want of readiness to receive a portion of the ice as he had agreed to, temporarily prevented the plaintiffs from performing the contract on their part according to the preparations made by them for the purpose. On March 24, 1874, the parties, then in New York, put their previous verbal contract into writing, antedating it as an original contract made at Rockland on March 2, 1874. On the same day (March 24), by consent of the defendant, the plaintiffs sold the same ice to another party, reserving their claim against the defendant for the damages sustained by them by the breach of the contract by the defendant on March 10th or about that time. This action was commenced on April 11, 1874, counting on the contract as made on March 2, and declaring for damages sustained by the breach of contract on March 10, or thereabouts and prior to March 24, 1874. Several objections are set up against the plaintiffs' right to Then, the defendant next contends that, even if the writing signed by the parties was intended by them to operate retroactively as of the first named date, as a matter of law, it cannot be permitted to have that effect and meet the requirements of the statute of frauds. The position of the defendant is, that all which took place between the parties before the 24th of March was of the nature of negotiation and proposition only; and that there was no valid contract, such as is called for by the statute of frauds, before that day; and that the action is not maintainable, because the breach of contract is alleged to have occurred before that time. The plaintiffs, on the other hand, contend that the real contract was made verbally on the 2d of March, and that the written instrument is sufficient proof to make the verbal contract a valid one as of that date (March 2), although the written proof was not made out until twenty-two days after that time. Was the valid contract, therefore, made on March 2d or March 24th? The point raised is, whether, in view of the statute of frauds, the writing in this case shall be considered as constituting the contract itself or at any rate any substantial portion of it, or whether it may be regarded as merely the necessary legal evidence by means of which the prior unwritten contract may be proved. In other words, is the writing the contract, or only evidence of it; we incline to the latter view.* * Such a construction of the statute upholds contracts according to the intention of parties thereto, while it, at the same time, fully subserves all the purposes for which the statute was created. It must be borne in mind that verbal bargains for the sale of personal property are good at common law. Nor are they made illegal by the statute. Parties can execute them if they mutually please to do so. The object of the statute is to prevent perjury and fraud. Of course, perjury and fraud cannot be wholly prevented; but as said by Bigelow, J., in Marsh et al. v. Hyde, 3 Gray (Mass.) 331, “a memorandum in writing will be as effectual against perjury, although signed subsequently to the making of a verbal contract, as if it had been executed at the moment when the parties consummated their agreement by word of mouth." We think it would be more so. A person would be likely to commit himself in writing with more care and caution after time to take a second thought. The locus poenitentiæ remains to him. * By no means are we to be understood as saying that all written instruments will satisfy the statute, by having the effect to make the Contracts described in them valid from the first verbal inception. That must depend upon circumstances. In many, and perhaps, most instances, such a version of the transaction would not agree with the B.&B.BUS.LAW-25 actual understanding of the parties. In many cases, undoubtedly, the written instrument is per se the contract of the parties. * * There are few decisions that bear directly upon the precise point which this case presents to us. From the nature of things, a state of facts involving the question would seldom exist. But we regard the case of Townsend v. Hargraves, 118 Mass. 325, as representing the principle very pointedly. It was there held that the statute of frauds affects the remedy only and not the validity of the contract; and that where there has been a completed oral contract of sale of goods, the acceptance and receipt of part of the goods by the purchaser takes the case out of the statute, although such acceptance and receipt are after the rest of the goods are destroyed by fire while in the hands of the seller or his agent. The date of the agreement rather than the date of the part acceptance was treated as the time when the contract was made; and the risk of the loss of the goods was cast upon the buyer. We are not aware of any case where the question has been directly adjudicated adversely to these cases. * * * * * or But there are a great many cases where, in construing the statute of frauds, the force and effect of the decisions go to sustain the view we take of this question, by the very strongest implication: Such as: that the statute does not apply where the contract has been executed on both sides; * * * that no person can take advantage of the statute but the parties to the contract, and their privies; that the memorandum may be made by a broker, or by an auctioneer; that a sale of personal property is valid when there has been a delivery and acceptance of part, although the part be accepted several hours after the sale, * * * or several days after, * * * ever so long after; that a creditor, receiving payments from his debtor without any direction as to their application, may apply them to a debt on which the statute of frauds does not allow an action to be maintained; * * * that a contract made in France, and valid there without a writing, could not be enforced in England without one, upon the ground that the statute related to the mode of procedure and not to the validity of the contract, Leroux v. Brown, 12 C. B. 801, but this case has been questioned somewhat; that a witness may be guilty of perjury who swore falsely to a fact which may not be competent evidence by the statute of frauds, but which becomes material because not objected to by the party against whom it was offered and received; * * * that an agent who signs a memorandum need not have his authority at the time the contract is entered into, if his act is orally ratified afterwards; * ** that the identical agreement need not be signed, and that it is sufficient if it is acknowledged by any other instrument duly signed; * * that the recognition of the contract may be contained in a letter, or in several letters, if so connected by "written links" as to form sufficient evidence of the contract; that the letters may be addressed to a third person; that an agent may write his own name instead of that of the principal if intending to bind his principal by it; that a proposal in writing, if accepted by the other party by parol, is a sufficient memorandum; * * * that where one party is bound by a note or memorandum the other party may be bound if he admits the writing by another writing by him subsequently signed; that the written contract may be rescinded by parol, although many decisions are opposed to this proposition; * * * that equity will interfere to prevent a * * * * * * that a party making the statute an instrument of fraud; contract verbally made may be maintained for certain purposes, notwithstanding the statute; that a person who pays his money under it cannot recover it back if the other side is willing to perform, and he can recover if performance is refused; *that a respondent in equity waives the statute as a defense unless set up in plea or anthat it must be specially pleaded in an action at law; * * * that the defendant may waive the protection of the statute and admit verbal evidence and become bound by it. swer; * * * * * * It is clear from the foregoing cases, as well as from many more that might be cited, that the statute does not forbid paid contracts, but only precludes the bringing of actions to enforce them. As said in Thornton v. Kempster, 5 Taunt. 786, 788, "the statute of frauds throws a difficulty in the way of the evidence." * * * Jervis, C. J., said. "The effect of the section is not to avoid the contract, but to bar the remedy upon it, unless there be writing." * * * But the defendant contends that this course of reasoning would make a memorandum sufficient if made after action brought, and that the authorities do not agree to that proposition. There has been some judicial inclination to favor the doctrine to that extent even, and there may be some logic in it. Still the current of decision requires that the writing must exist before action brought. And the reason for the requirement does not militate against the idea that a memorandum is only evidence of the contract. There is no actionable contract before memorandum obtained. The contract cannot be sued until it has been legally verified by writing; until then there is no cause of action, although there is a contract. The writing is a condition precedent to the right to sue. Willes, J., perhaps correctly describes it in Gibson v. Holland, L. R. 1 C. P. 1, when he says, "the memorandum is in some way to stand in the place of a contract." He adds: "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." * * * In the last case it is said: "Strictly speaking, the statute does not make the contract void, except for the purpose of sustaining an action upon it, to enforce it." Action to stand for trial. 6. Attachment of Property. 7. Specific Performance. 8. Injunction. 9. Enforcement of Decrees by Attachment for Contempt. 11. Receiverships. SECTION 1.-INTRODUCTION In the preceding chapters we have dealt at some length with contractual legal relations. We have noted the origin, nature and scope of legal rights and legal duties. In the chapter on Performance we had occasion to observe, in detail, the circumstances under which the law regards a contractual duty as violated. Our inquiry, then, primarily, was to determine what constitutes a breach of contract and to ascertain the circumstances under which the other party might successfully sue the party in default. Our inquiry stopped upon the discovery of the existence or non-existence of this right to succeed in such an action and of the reasons which impelled the court so to decide. Our primary question was: "May this plaintiff recover anything?" not, "How much or what may he recover." In this chapter our attention is directed more pointedly toward the nature and operation of the remedy, rather than to the question: "Is the plaintiff entitled to any relief at all?" In the following cases and discussion we are assuming, usually, that the plaintiff is entitled to some relief under the rules of the substantive law of contracts. It is our purpose to find out what the court actually will do to help the plaintiff out of his difficulty. Our problem divides itself into two parts: (1) What is it that the court may decide that the plaintiff is entitled to receive? Will the court order the defendant actually to perform certain personal services for the plaintiff, or to refrain from doing certain acts which cause damage to the plaintiff? In its broad aspect, therefore, the question is: What will the court order the defendant to do? (2) The second question arises after the court has decided what the defendant should do and has ordered him to comply with its mandate. Suppose the defendant is no more inclined to obey the positive direction of the court than he was to do his duty before the action was brought against him. What will the court then do? There exists quite a range of possibilities. It is possible to put the de |