pression remains largely as originally enacted. It is of course true that the references "4th section" and "17th section" are retained for purposes of conveniences to indicate which group of contracts we are referring to. That is to say in any state, the 4th section might be re-enacted as Section 1 (or any other section) and the 17th section (as modified) is in fact Sec. 4 of our Sales Act.)

§ 115. (Contracts, Sec. 83.) Text of the English statute of frauds (Sections 4 and 17).

Case 127. Statute of Frauds and Perjuries, 29 Car II, Ch. 3, Sec. 4.

"For the prevention of many fraudulent practices which are commonly endeavored to be upheld by Perjury and Subornation of Perjury, Be it enacted

"Sec. 4. That no action shall be brought (1) whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate; (2) or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person; (3) or to charge any person upon any agreement made upon consideration of marriage; (4) or upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them; (5) or upon any agreement that is not to be performed in the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized."

"Sec. 17. That no contract for the sale of any goods, wares and merchandise, for the price of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same or give something in earnest to bind the bargain, or in part payment, or that some note or memorandum in writing of the said bargain be made

and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized."

Question 127: State in your own language the classes of contracts covered by Sections 4 and 17 of the English statute of frauds.

(Note: The above statute is substantially in force in the American States, the verbiage itself being for the most part retained. By the Uniform Sales Act [Division IV, post] the 17th section is virtually re-enacted, with a change of price to $500, which is in force in some states. The commonest price substituted in the American Acts is $50.00.)

§ 116. (Contracts, Sec. 84.) The statute relates to the enforcement, not the validity of contracts.

Case 128. Bird v. Munroe, 66 Maine, 337 (1877). Facts: Suit on a contract of sale of ice alleged to have been made on March 2, 1874, and broken about March 10, 1874. The written evidence produced to prove the contract was made and signed by defendants March 24, 1874.

Point Involved: Whether the writing required by the statute of frauds is an essential element in the contract, or merely the evidence by which such contract must be proved.

PETERS, J.: Then the defendant next contends that, even if the writing signed by the parties was intended by them to operate retrospectively 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 point raised is,

whether in view of the statute of frauds, the writing 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.

"Another idea gives weight to the argument for the position advocated by the plaintiffs, and that is that such a construction of the statute upholds contracts according to the intention of the 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. (Marsh v. Hyde, 3 Gray, 331) “a memorandum in writing will be as effectual against perjury, although subsequent 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 penetentiae remains to him.

"It is clear from the foregoing cases, as well as from many more that might be cited, that the statute does not forbid parol contracts, but only precludes the bringing of actions to enforce them, as said in Thornton v. Kemper (5 Taunt. 786, 788), 'the statute of frauds throws a difficulty in the way of evidence.' In a case already cited, 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.' See analogous case of McClellan v. McClellan, 65 Maine, 500."

Question 128: Does the statute of frauds require that a contract be made in writing. When was the writing signed by the defendant made in this case in respect to the formation of the contract? Why was it held sufficient to meet the requirements of the statute of frauds? Was the statute of frauds a good defense in this case?

Case 129. Rann v. Hughes, 7 Term Rep. (Eng.) 350. Facts: Another portion of this case is set out as Case No. 124 in which the Court held that even if an agreement

was in writing a consideration was nevertheless requisite to make it enforcible if it was not under seal. The further point was urged that while this might be true of written contracts generally the statute of frauds made the contracts therein referred to enforcible if merely in writings though without consideration. As to this the Court said:

THE LORD CHIEF BARON: 66*

But it is said

that the Statute of Frauds takes away the necessity of any consideration in this case; the Statute of Frauds was made for the relief of personal representatives and others, and did not intend to charge them further than by the common law they were chargeable. His Lordship here read those sections of the statute which relate to the present subject. He observed that the words were merely negative, and that executors and administrators should not be liable out of their own estates, unless the agreement upon which the action was brought, or some memorandum thereof, was in writing and signed by the party. But this does not prove that the agreement was still not liable to be tried and judged of as all other agreements merely in writing are by the common law, and does not prove the converse of the proposition, that when in writing the party must be at all events liable.

Question 129: What was the argument plaintiff made above? How did the court rule thereon?

§ 117. $118.

§ 119.

(b) The Cases Within the Statute.

Promises of executors and administrators.

Promise to answer for the debt, default or miscarriage of another person.

Promises in consideration of marriages.

§ 120. Contracts for the sale of lands or any interest in or concerning

them.

§ 121. Contracts that cannot be performed within a year from the making

thereof.

§ 122. Contracts for the sale of goods, wares and merchandise for a cer

tain price or upwards.

§ 117. (Contracts, Sec. 85.) Promises of executors and administrators to personally answer for the debts of the estate of the decedent are not enforceable unless proved by written evidence signed by the party sought to be charged.

Case 130. Bellows v. Sowles, 57 Vermont, 164 (1884). Facts: Bellows brought suit against Sowles, setting up that he, the plaintiff, was a relative of Hiram Sowles, deceased and being unprovided for in the will, threatened to contest the same upon the ground that it had been procured from the deceased by undue influence; that the defendant the executor under the will, being the husband of the principal beneficiary, had promised plaintiff $5,000 to forbear the contest, and the plaintiff had assented thereto and had accordingly forborne; yet the defendant disregarding the promise, had failed and refused to pay plaintiff the said amount. The defendant claims that this promise if made, is unenforceable because not in writing as required by the statute of frauds. Point Involved: Whether the promise by the executor to pay an heir for refraining from contesting a will, is a promise to pay for a debt of the estate of the testator, and therefore by the provisions of the statute of frauds not enforceable unless evidenced by writing signed by such executor, or whether it was a direct primary undertaking by the executor, not included within the statute of frauds, and therefore binding though oral.

POWERS, J.: "Counsel for the defendant have demurred to the declaration in this case upon two grounds: first, that the consideration alleged is insufficient; secondly, that the promise not being in writing comes within, and is therefore not enforceable under, the statute of frauds.

"It has been so often held that forbearance of a legal right affords a sufficient consideration upon which to found a valid contract, and that the consideration required by the statute of frauds does not differ from that