And indeed any one who has an interest in the matter litigating, is generally an incompetent person to give evidence respecting it. In all actions for the amount or price of goods, or other personal property sold, the following may be considered as necessary to be established on the part of him who seeks to establish the debt. The order or agreement to purchase of the party from whom payment is bought, or the order or agreement to purchase on his behalf by some other person legally authorized by him to give such order or make such purchase, and the time or date of such order or agreement; the price or amount agreed on, and promised to be paid; the time agreed on for payment, if at a period subsequent to the delivery of the goods or other property to the purchaser, as his lawfully authorized attorney or agent, or to another person, by the order of such purchaser or agent, and the value of the goods or other property sold and delivered. Where the subject of the contract is work or labor performed, or services rendered, the points necessary to be established are, the hiring or engaging, the sum, or amount of wages or salary at which hired, the performance of the work or services contracted for; and that in a proper and workmanlike, or due and faithful manner, and within the time specified, if time has been made a part of the contract; and the value of the work, labor, or services done or performed, in case of failing to establish a sum agreed on for it. III. OF WRITTEN CONTRACTS. One of the chief regulations for the government of trading transactions is that contained in the Statute of Frauds, so called, which, originally enacted in England, has been substantially copied into almost all the States of the Union. It provides that no contract for the sale of goods, wares, and merchandize, 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 Maine and Missouri it is $30.00; New Hampshire 33; Connecticut 35; Vermont 40; Massachusetts, Wisconsin and New York 50. 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. It is not necessary, however, that the memorandum should be signed by both parties. It is sufficient if the name of the party charged appear thereupon; and he will be bound, not only when it is signed by him, but whenever his name is written or printed within the body thereof, by his own order, or with his consent. The Statutes of New York, Massachusetts, and many other States also provide that no action shall be brought in the following cases: First, to charge any person, upon any special promise to answer for the debt, default, or misdoings of another: or Secondly, to charge any person, upon an agreement made upon consideration of marriage or Thirdly, upon any contract for the sale of lands, tenements, or hereditaments, or of any interest in or concerning them: or Fourthly, upon any agreement that is not to be performed within one year from the making thereof; unless the promise, contract or 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 by some person by him lawfully authorized. The consideration of any such promise need not be in writing. Fifthly, no person is liable by reason of any representation, recommendation, or assurance, made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assurance be made in writing, and signed by the party to be charged thereby. The advantages of reducing all contracts and agreements into writing must be evident to every thinking Note.-In Massachusetts, Maine, Vermont, Indiana, Michigan, and New York a new promise, by a debtor, to pay a debt, which has been running more than six years, and which cannot therefore be collected without a renewal of the promise, must be in writing, signed by the debtor, otherwise it will be of no force. In other states, a mere verbal promise is sufficient. [See Art. Limitations of Actions, and Part 11, on Enforcing Payment of Debts.] mind, and that from a principle which all acknowledge, and to a certain extent, act up to that of reducing everything, as far as practicable, to certainty. If a contract is reduced to writing, a denial of it becomes impossible, from even the most unprincipled; and forgetfulness of it, by one side, immaterial; since the proof of its having been entered into is in the possession or power of the other side; and any disagreement as to its nature, terms or conditions, will be less liable to arise than if left to unassisted memory. And it should be matter of peculiar attention, in a written contract, that all particulars and material circumstances connected with it are embodied in it. With a view to certainty it should ever be borne in mind that, where parties themselves make and fix their own terms, it is to be and is presumed that they, knowing their own intentions and engagements, will provide for, express, and settle them; and therefore where a contract, the terms of which have been expressly fixed by the parties, is brought before a court of law, if it should turn out that one of the parties to it had omitted to cause a clause to be inserted, providing for a contingency which has subsequently happened, he will be without a remedy; the court not rectifying the errors or supplying the omission of the parties, but giving effect to the contract as it actually and really subsists. If the terms of a written contract are ambiguous, they may be explained verbally; but no evidence to contradict what is written, by showing that the parties at the time intended something different, can be offered, unless there has been fraud. It is not necessary that the terms and conditions of a contract, when in writing, should all be specified in the same document; they may be contained in several papers, such as letters, from which the whole terms may be collected; it must, however, be clear that there is a distinct agreement between the parties — that there has been a proposal on one side, and an acceptance of such proposal on the other. 1st.-Contracts must be founded on some consideration. All contracts are void unless founded on some con sideration. A valid and sufficient consideration or recompense for making, or motive or inducement to make the promise upon which a party is charged, is of the very essence of a contract not under seal, and must exist, although the contract be reduced into writing; otherwise the promise is void, and no action can be maintained thereon. All promises, therefore, which are wholly gratuitous, are void for want of consideration. To make a promise binding, the party making the promise must have obtained some advantage, or the party to whom it is made must have suffered some loss or sustained some injury and inconvenience, in consequence of the one party making and the other accepting the promise. It is not, however, necessary, in order to constitute a sufficient consideration, that a benefit should accrue to the person making the promise; it is sufficient that something valuable flows from the person to whom it is made, and that the promise is the inducement to the transaction. Thus, where a benefit is done to a third person, at the request of the promiser, it is sufficient to support the promise. Mere inadequacy of consideration will not render a promise of no force; for if a contract is deliberately made, without fraud, and with a full knowledge of all the circumstances, the least consideration will be sufficient. 2d. - Promise to pay the Debt of another, when Binding. It has already been seen, that a promise to pay the debt of a third person must be in writing, or it is of no force. It is not necessary, however, that the promise should be in writing, if the party sought to be charged has acted and been treated as the principal debtor, and not merely as surety for the debt of a third person. Thus, the sale may be to one man, although the goods are to be delivered to another, and a person may promise as the real debtor, and not in the character of a surety, to pay for goods supplied to or for work done at his request, or by his directions for a third party; and if he has been treated by the person who furnished the goods or did the work, as the party liable, and credit has been given to him, his promise or undertaking to pay is not a collateral promise to answer for the debt of another. In order to determine whether the party giving the undertaking or making the promise of payment is primarily or collaterally liable, the attending circumstances and the situation of the parties must be regarded, as well as the exact expressions used. If the seller has made the party to whom the goods have been furnished his debtor, if he describes him as such in his books, or in letters, he can only treat the other as a surety, and his promise to be binding must be in writing. "I always," said an eminent judge, "require the tradesman to produce his books to see to whom credit has been given." (2 C. & M. 430.) A promise to pay the debt of a third person must not only be in writing, but it must be for a valuable consideration. The following examples will explain what is requisite to make such a promise valid :— As my brother owes you $28 for boots and shoes, I will pay you that sum for him on the 1st of next month. To Mr. Jones. THOS. NOAKES. This written undertaking is not binding, because it is for the debt of another person, which is already incurred, and there is no new consideration to support it. Had it been thus worded: In consideration of your undertaking not to arrest my brother, (who is about to leave the state,) for the debt of $28 which he owes you for boots and shoes, I hereby undertake to pay the amount on the 1st of next month. THOS. NOAKES. 1st Jan., 1850, To Mr. Jones. So a it would have been valid; because the consideration for it was the forbearing to arrest the brother. promise thus worded: To Messrs. A. & B.- Gentlemen, I hereby undertake to pay for any goods which you may deliver to Mr. S." would be valid; as it is evident that A. & B. delivered the goods to S. on the above undertaking; and it is the undertaking which is the consideration for the delivery of the goods. Anything, however trifling, done by one party for the benefit of the other, will be a legal consideration. |