CH. 11. Art. 11. See Ch. 93. Halfpenny v. 2 Vern. 373, may explain written evidence at common law. But when a statute denies to parol evidence its common law capacity to be the ground work of an action, it does not follow that it is not to be used as circumstantial evidence in a suit on written evidence in the same case, when justice and equity may require it. Evidence inadequate in itself to support an action, is often admissible in equitably fixing the quantum of damages, or in measuring justice between parties in equity. 3. The principle seems to be, that equity will not suffer a party to plead the statute of frauds, to cover his own frauds. As where a marriage treated of between the plt. and deft's. on Con. 298. daughter, a written agreement was made and signed by the plt., and delivered to the deft. to be signed by him; this he refused to do, being dissatisfied with some parts of it, not very material. He, however, permitted the plt. to court and marry his daughter, and made no objection till asked to pay the portion. Under these circumstances the master of the rolls decreed 2 Vern. 322, Wankford v. a specific performance, considering the deft's. conduct as Fotherly, cited New. on founded in fraud. On the same principle was founded the Con. 165,179 decision of Wankford v. Fotherly, 2 Freeman 801. There4 Cranch. fore to prevent such frauds, parol evidence is let in. Held, if A agree under seal to do certain work for B, and does part, and B prevents his finishing it, yet A must sue on the writing. 239, Young v. Preston. 3 Co. 25 to 36, Buller v. Baker. ART. 11. Agreements waived. On a special verdict in trespass, it was held 1, that if land be given to baron and feme in fee, or in tail, and he dies, she cannot divest herself of the freehold by any verbal waiver or disagreement in pais, and before entry by her. So if before entry she says, by words in pais, she agrees to an estate, yet she may waive this in court; for a verbal agreement has no effect in law in such a case; otherwise, if she enter and take the profits. Second, if a man take a distress for one thing, he may in court avow for another. Third, an estate is made to husband and wife in tail, he dies; dower by word is assigned to her, which she accepts, but adjudged, that this her refusal of the estate of inheritance, and accepting dower in pais, should not divest the freehold out of her. Fourth, a joint tenancy is made to four men, and delivery to three in the name of all, and after seisin was given, the fourth came and saw the deed, and said he disagreed; yet it was held, that this disagreement in pais by word did not divest the freehold out of him. Fifth, if one enters, and disclaims afterwards a part, he remains in toto, till disagreement in a court of record. Sixth, lands are given in tail to baron and feme, he aliens them to the use of him and his heirs, and devises them to his CH. 11. Art. 13. wife for life, and dies; she enters and claims by words the estate for life. This is a good disagreement to the estate of inheritance; and a good agreement to the estate for life; for the act and words work together, the same as to a use or bond ; 5 Johns. R. the act that explains the intent and operates, is done in pos- 193, 195, session. A sells lumber to B to the amount of $400; B agrees to endorse this sum on his bond against A, and does not; A may recover for the lumber. These Eels v. Finch. v. Mansfield. ART. 12. Agreements partly performed. A agreed in 2 Mass R. writing to erect and finish a barn for B by Aug. 1, 1803, at 147, Faxon which time he was to receive $400 of B in full compensation afterwards A left the work unfinished against the wishes of B, "who was obliged to get other workmen at his own expense, and with considerable trouble to complete the same." and other damages to pay &c. exceeded the balance of the $400 unpaid to A, but the money actually paid him was not in proportion to the work he had done. The court decided,, that A had no action against B; by the contract A was not entitled to receive any thing from B until the contract was executed on A's part, " and his failure did not arise from inevitable accidents, but from his own neglect; for he voluntarily left the work unfinished." Tender of a conveyance is no performance of an agreement, there must be something in actual execution of the contract. As where A by letter offered $10,000, B answered he would not take less than $11,000, A answered, I will give $11,000. Held, this was not an agreement executed in writing. Lofft 786, Popham v. Eyre. 4 Mass. R. nels. ART. 13. Promises not within the act as to lands. If a debt New. on originate in the sale of land by the plt. to the deft., his special Con. 182,-promise or assumpsit to pay this debt is good, and not within 406, Dillingthe statute of frauds, and may be proved by parol evidence. ham v. RunThe consideration of the special promise was the plt's. taking a third person's note in part payment of the pre-existing debt, and discounting $31 out of it, for it is immaterial what was the origin of the debt due to the plt., if it was a just debt, "whether it accrued from the plt's. having theretofore sold land to the deft., or from any other lawful consideration." If it accrued from the plt's. selling land, he did not demand land. 488, Bliss r. 2. The plts. gave a release to Gernon of his warranty of 4 Mass. R. lands, for which the deft. received money. His implied pro- Thompson.-mise to pay it to them, is not a contract concerning lands, 1 Phil. Evid. within the statute of frauds. 2. The rule, that one is estopped 485.-3 Deto aver against his own deed, does not apply to a deed ob- sans. Eq. R. tained by fraud. 594. § 3. If one overreach another by false allegations, or frau- Notwithdulent concealments, the law will compel him to pay over the standing the frauds, in an action for a tort, a parol agreement for the sale of lands, being part of the res gesta, may be given in evidence.-2 Day's Ca. 531, Bulkley v. Storer. statute of CH. 11. Art. 13. 5 Mass. R. 133, Sher burn v. Fuller. See vin & al. 2 Johns. R. 215.-See Ch. 114, a. monies obtained by such means to the party, to whom in equity and good conscience it belongs. The plts. recovered of Thompson the difference between the sum he received of Gernon for their release of his warranty to him, and the sum first paid to them for it by the deft. "A deed obtained by fraud is to be considered as a void contract, as to the fraudulent party." 4. A made a deed to B by C's appointment, and this was delivered by A to B, on B's verbal promise to C, that if he in a reasonable time paid B a certain sum, B would convey to C Foot v. Col- a certain house &c. and give him three notes for a certain sum; and if in a reasonable time C elected not to pay the monies, then B would not record the deed, but deliver it to C. C elected not to pay the money; yet B refused to de17, s. 9, as to liver the deed to him, but recorded it. In an action of asresulting sumpsit by C against B on this promise, the court held, that it was within the statute of frauds, as concerning the sale of lands, and not to be proved by parol evidence. A's deed to B was of land in Cambridge. In this case B's promise to C was directly concerning a conveyance of an interest in lands. The house &c. was in Boston. trusts. 6 Mass. R. 164, Tucker 7. Bass. 5 Mass R. 358, Hunt, adm. v. Ad ams. See Allen v. 4 Wherton's R. 211.-See Ch. 32, a. 4, s. 23. 5. In this case the plt. agreed to let a turnpike corporation have his land for the turnpike, not in writing; the deft. in behalf of the corporation promised in writing to pay him $100 an acre; the court held, that the deft. is bound, and this means a perpetual easement. This action relating to the case of stating the consideration in a writing to pay the debt of another ought to be examined. In this case the contract was thus: "Lee, July 23, 1804. For value received I promise to pay Isaac Bennett $1500 on the 1st day of Dec. next, with interest; pay to be made at Cocksackie. $1500 Witness my hand, JOSEPH CHAPLin. I acknowledge myself holden as surety for the payment of the demand of the above note. Witness my hand, BARNABAS Adams. Judgment for the plt., administrator of Bennet against the surety, on the ground it was "a joint and several promise." On the deft's. part it was objected, that this was "a collateral undertaking to pay the debt of another," and "was within the statute of frauds, in the construction of which it had been held, that the consideration of the promise, as well as the See Ch. 9, a. promise itself, should be in writing. This objection was grounded on Wain v. Warlters, 5 East 10, 20. 20. But the court held, this was not a promise by Adams to pay the debt of another, but an original promise, joint and 66 CH. 11. Art. 13. Brink is a case like Mathews. several, in which Adams was named surety for his benefit, and that both promises appeared to the court to be of the same date. The Chief Justice, Parsons, in giving the opinion of the court said, the decision in Wuin v. Warlters, rested 3 Johns. R. upon the legal import of the word agreement, as including 210, Sears v. not only the promise, but also the consideration for which it is made.” “And if agreement as used in the statute is to be taken, Stadt v. Lill, not in a popular, but in a strictly legal sense, it may be un- Egerton v. reasonable to question the decision." "On looking further we find the case of Egerton v. Mathews, 6 East 307, where it was determined on the seventeenth section of the said act, (similar to the second section of our statute) that a memorandum of a bargain for the sale of goods, signed by the party to be charged, would take the contract out of the statute, although the consideration of the bargain was not expressed in the memorandum." "The two decisions are not easily reconciled." And the court on the whole doubted as to the case, Wain v. Warlters, and thought the word agreement, in its popular sense, means only the promise of the party charged, "and as not necessarily including the consideration for it." See 13 Mass. R. 87, Penniman v. Hartshorn. 6. As it appears in this case that Adams' promise was in writing, nor does it appear, but by implication, that he did not receive a part of the consideration; the most material question did not arise in regard to promises required to be in writing had Chaplin borrowed $1500 of Bennet, and promised, by parol, to repay it; and had Adams, by parol only, and not in writing, at the same time, as surety, acknowledged he was held to pay this debt, the important question would have arisen, if he were bound to pay it. Certainly not, if his promise had been made after Chaplin had created the debt and become debtor, for then it had become his existing debt, and Adams' promise would have been to pay the existing debt of another, and must have been in writing. Lill. 7. Case on a guarantee of deft. for not paying for goods 9 East. 348, delivered to one Nichol. It was "I guarantee the payment 349, Stadt v. of any goods which J. Stadt delivers to J. Nichol," signed by the deft. Held, valid within the 4th section of the statute of frauds, as containing a sufficient description of the consideration of the promise, namely, the delivery of the goods when made, as of the promise itself, both which are included in the word agreement, required by that section to be reduced into writing. It will be observed, here was no description of the consideration, but merely saying the plt. delivered goods to J. N. No mention was made of any quantity or description of them, but only any goods the plt. should deliver, more or less, of this sort or that. Here then the consideration was des. CH. 12. cribed in the most indefinite manner, if described at all; and and this case was after that of Wain v. Warlters. In Clinan v. Cooke, 1 Schoales and Lefroy 22, it is said, a written agreement for a lease under a certain rent, ought to specify the term for which the premises are to be demised; there can be no doubt of this, at common law such certainty was required. 1 New. Rep. 252, 254; Champion & al. v. Plummer. The writing named only one party, the seller, and not the buyer, and the court properly said, there was no contract or memorandum of one. 1 Phil. Evid. 368; 2 Phil. Evid. 81, 82. It is said, it is not necessary to state precisely in the memorandum for paying another's debt, the exact amount of it. It is enough to engage to pay generally, for all goods furnished in in a certain time &c., and the amount of them, or of the debt the third person owes, is to be ascertained by evidence at the trial. 15 East. 272, 274; the result, some sufficient consideration must be named. See Minors, CHAPTER XII. ACTION OF ASSUMPSIT. APPRENTICES. ART. 1. Between master and apprentice, as far as it relates to them. 1. The rights and duties arising from this relation, will be very briefly considered in this place, and treated of more at large under the head of Covenant, and therein apprentices by Apprentice, indenture, the usual form of contract used in constituting this See Ch. 102. 1 Bl. Com. 426, 427. Com. D. 138. -10 Mod. 1267. Mass. act, sect. 5. relation. § 2. An apprentice is one bound, or put to a master, usually for a term of years, to serve him and to be maintained and 144.-Dougl, instructed by him; and as the master must maintain and in70.-Stra. struct him, he has a property in his services. The apprentice is with his master on a personal trust, and cannot be assigned, Feb. 28,1795, or pass to executors or administrators; but the master may let 1 Mass. R. him to another man, occasionally, to be employed in business 172.-Reeves not inconsistent with the intention of the apprenticeship, and recover his wages and a quantum meruit for his services. And the master may allege, that in consideration, he permitted A, being his apprentice, to labour for the deft. so many days, at his request, he promised to pay, &c. D. R. 341.Ld. Raym. 117-1 Salk. 68. 6 Mod. 182, Queen v. Daniel.-12 § 3. An apprentice must be by deed, but a servant may be by parol contract. An apprentice cannot be assigned to an Mod. 553.-1 Mass. R.172 to 180, Hall v. Gardner.-Reeves D. R. 341. |