CHAPTER VI.

STATUTE OF FRAUDS AND PERJURIES.

83. Provisions of fourth section of Statute of Frauds. The Statute of Frauds and Perjuries was passed in the twenty-ninth year of the reign of Charles II, A. D. 1677. Among other remedies, it was aimed to prevent the perpetration of fraud and the temptation to commit perjury in testifying as to the making of contracts. The fourth section of that Statute has been substantially adopted in practically all of the United States. The seventeenth section relating to the sales of goods has not been so widely copied.

The provisions of the fourth section are as follows:

"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 in consideration of marriage;

(4) or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them;

(5) or upon any agreement that is not to be performed within 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."64

84. Construction of the fourth section of the Statute of Frauds.-The operation of the Statute of Frauds upon a contract within its terms is to prevent the enforcement of that contract unless the requirements of the Statute are satisfied. Some authorities regard the Statute as prescribing a rule of evidence. That is to say, the contract may not be proved because it does not satisfy the Statute.65 This principle is supported by the rule that unless the Statute of Frauds is specially pleaded, the oral contract may be proved. In short, there is a contract, but no action may be brought upon it because, the Statute being pleaded, there is no writing to prove the contract. Where, however, the Statute provides that the contract shall be void instead of providing merely that no action shall be brought upon it, the contract may never be proved, for it is void.

66

Compliance with the form required by the Statute of Frauds does not constitute the contract. The Statute always presupposes an existing lawful contract. If there is no contract, the question of the

64 St. 29 Car. II., c. 3.

65 Browne, Statute of Frauds (5th ed.), § 115a.

66 Anson, Contracts (Huffcut 's 2d ed.), § 107, note.

67

necessity for a writing does not enter the problem." It is evident, therefore, that the Statute of Frauds affects only the remedy that may be brought on a contract, and not its inherent validity.68

85. Nature of the contracts in the fourth section -Clause (1) Executor.-An executor or administrator of a deceased person's estate is not bound by his promise to pay out his own money for that estate unless his promise is in writing. These promises appear to be a part of that body of contracts known as guaranties, and are more fully discussed in the next section. "There would be no distinction between them, but for the circumstance that the executor or administrator, being the legal representative of the party originally liable, is already, in that capacity, under a liability to pay to the extent of the property which comes to his hands. The Statute, therefore, is confined to his special promise to pay out of his own estate." 69

86. Same subject-Clause (2) Any special promise to answer for the debt, default or miscarriage of another person. This is a promise of guaranty or suretyship. "Deal with X, and if he does not pay you, I will," indicates the agreement.70 X is the person primarily liable and I am secondarily liable. My promise in such a case must be in writing, before an action may be maintained against me.

67 Leroux v. Brown, 12 C. B. 801 (Eng.); Pritchard v. Norton, 106 U. S. 124; Crane v. Powell, 139 N. Y. 379.

68 Anson, Contracts (Huffcut's 2d ed.), § 108, note. See § 10 on use of void, voidable and unenforcible.

69 Browne, Statute of Frauds (5th ed.), § 153; McKeany v. Black, 117 Cal. 587.

70 Mallory v. Gillett, 21 N. Y. 412.

It is not always easy to determine what promises are within the Statute, and a few general propositions should be carefully observed.71

An indemnity is not in the Statute and need not be in writing, for in such a case one party is primarily liable whether or not the other party makes a default.72 It is an original promise and depends on no other. Similarly, where A owes B a sum of money, and he is about to be sued for the debt, a promise by C to pay B if he will not sue A is not within the Statute, for there is a new contract whereby, for the consideration of B's promise not to sue, C agrees to pay. C's promise need not be in writing, for he has created for himself an original liability and he is liable in every event to B. His promise is not collateral to any primary liability. It is the collateral promise that falls within the scope of the Statute of Frauds.73

Where a promise is original, it need not be in writing; where collateral, it must be in writing in order to maintain an action thereon. Thus guaranties, which must be in writing, require at least three parties, and have a primary or original liability for which the third party promises to answer. When A and B go into a store and A says to the storekeeper, "Sell B these goods; if he does not pay you, I will,” the primary liability is on B to pay for the goods. A's promise, on the other hand, is collateral or secondary to B's liability and so must be in writing.

71 See May v. Williams, 61 Miss. 125, LEADING ILLUSTRATIVE CASES. 72 Anson, Contracts (Huffcut's 2d ed.), § 97.

78 Meyer v. Hartman, 72 Ill. 442.

But if A should say, "Let B have the goods, I will see you paid," A's promise is original, for there is no liability of B to which A's promise can be collateral. This original promise of A need not be in writing.74

If A says to X, “Give M a receipt in full for his debt to you, and I will pay the amount," this original promise would not fall within the Statute.75

87. Same subject-Clause (3)—Marriage.—This section has been most frequently applied to marriage settlements.76

It would seem that the Statute extends to any agreement to undertake any duty or office in consideration of another's contracting a marriage, whether with the promisor or with a third person." But mutual promises to marry are not covered by the Statute and need not be in writing, unless they are not to be performed within a year.78 A distinction should be noted between agreements in consideration of marriage and agreements which are merely in expectation or contemplation of marriage. It is the former only which require a writing.79

88. Same subject-Clause (4) Contract or sale of lands. This section deals with the agreements to sell land and with the sale of lands. "Lands, tenements, or hereditaments, or any interest in or concerning them" is the wording of the clause. Such interests include both legal and equitable interests.

74 Birkmyr v. Darnell, 1 Sm. L. C. 289 (Eng.).

75 Goodman v. Chase, 1 B. & A. 297 (Eng.). This section is treated more fully in the subject of SURETYSHIP.

766 Illinois Law Review 503.

77 Brenner v. Brenner, 48 Ind. 262.

78 Hunt v. Hunt, 171 N. Y. 396; see § 89.

79 Riley v. Riley, 25 Conn. 154; Browne, Statute of Frauds (5th ed.), § 215b.