Statute of CHAPTER II. SIMPLE CONTRACTS REQUIRED TO BE IN WRITING. Let us now consider what simple contracts are required by the law to be in writing. The chief cases in which writing is required by the law are those which are prescribed by the 4th and 17th sections of the Statute of Frauds, which shall be presently considered; but in addition to these cases, writing is also required by the law in certain cases of which the following may be mentioned :— : (1) Bills of exchange, cheques, and promissory notes, must under the Bills of Exchange Act, 1882, be in writing (1). (2) Assignments of copyright must be in writing. (3) An acknowledgment of a statute barred debt must be in writing signed by the debtor (2) or by his duly authorised agent (3). The 4th section of the Statute of Frauds provides as follows:- First, "whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate;" or, Secondly, "whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person;" or, Thirdly, "to charge any person upon any agreement made upon consideration of marriage;" or, Fourthly, "upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them;" or, Fifthly, "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 authorised." "no The 17th section of the Statute of Frauds provides that “ contract for the sale of any goods, wares, or merchandises for the price of £10 sterling or upwards, shall be allowed to be (1) 45 & 46 Vict. c. 61, ss. 3, 73, 83. Tenterden's Act). (3) 19 & 20 Vict. c. 97, s. 13. good, except the buyer shall first accept part of the goods so sold, and actually receive the same; or, secondly, shall give something in earnest to bind the bargain, or in part of payment; or, thirdly, unless some memorandum or note in writing of the said bargain be made, and signed by the parties to be charged with such contract, or their agents thereunto lawfully authorized (1). Price is now extended to value by Lord Tenterden's Act (post, p. 378). It will be observed that the form required by these two sections is the same. There must be a note or memorandum in writing signed by the party to be charged under the contract, or by his agent thereunto lawfully authorized. on 14th and 17th sec The cases which have been decided upon the interpretation Decisions of these sections are extremely numerous, and it is altogether impossible for us to attempt to do more than to refer to some of tions of the the leading principles which they decide. The following Statute of points have been decided upon the construction of both sections. 1. The note or memorandum may consist of several documents, but they must be sufficiently connected together, and contain all the terms of a contract. This may be illustrated by the celebrated case of Boydell v. Drummond (2). In that case a printed prospectus of a magnificent edition of Shakespeare to come out in numbers lay in the plaintiff's shop, "one number at least to be published annually," and the proprietors were "confident that they should be able to produce two numbers in the course of every year." The plaintiff also kept a book which had for its title Shakespeare Subscribers, their Signatures.' The Subscribers' Book, however, did not refer to the prospectus. The defendant signed the Subscribers' Book, and the question arose whether he was liable. The Court decided that as the agreement was not to be performed within the space of a year from the making thereof, it fell within the 4th section of the Statute of Frauds and required a signed memorandum, that the connection between the prospectus and memorandum must appear on the face of the documents themselves, but could not be proved by parol evidence. 2. The memorandum must shew who are the parties to the contract (3). () It has been deemed advisable to give the ipsissima verba of these celebrated sections, on account of their extreme importance. Every line of the 4th section of the Statute of Frauds, it was said by an enthusiast, is worth a subsidy; to which it was added, probably with at least equal (2) 11 East, 142. (3) Williams v. Lake, 2 E. & E. 349. Frauds. 374 CONTRACTS. [BOOK III. But a description of one of the parties will let in parol evion Statute dence to identify him (1). Decisions of Frauds. Mercantile Law Amend 1856. 3. The memorandum must be signed by the party to be charged, or his duly authorised agent. Both parties need not sign the document, but the party who has not signed may have the option of enforcing the contract against the other (2). The signature, so long as it was intended to be a signature governing the whole contract, need not be the party's autograph, but may be a mark (3), and may occur in any part of the document, whether at the beginning, in the middle, or at the end (4). It is sufficient if there be written evidence of the contract before the action is brought upon it, though none existed at the time of the contract itself. A memorandum after the action has been commenced is not sufficient (5). 4. It was laid down in the leading case of Wain v. Warlters (6) that, in contracts within the fourth section of the Statute of Frauds the consideration as well as the promise must appear in writing. It was held in that case that the word agreement in the statute, included the consideration for the promise as well as the promise itself. This rule was found inconvenient as regards guarantees, and accordingly it is provided by the Mercantile Law Amendment ment Act, Act, 1856 (19 & 20 Vict. c. 97, s. 3), that a promise to answer for the debt, default, or miscarriage of another shall not be "deemed invalid to support an action, or other proceeding to charge the person by whom such promise shall have been made by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document." Statute of It will be desirable to notice briefly some of the more important principles settled by the very numerous cases which have been decided on the fourth section of the Statute of Frauds. With regard to the first sub-section of the fourth section, (1) Trueman v. Loder, 11 A. & E. (2) See Laythoarp v. Bryant, 2 (3) Baker v. Dening, 8 A. & E. 94. 653. (5) Bill v. Bament, 9 M. & W. 36; Gibson v. Holland, L. R. 1 C. P. 9. By R. S. C., 1883, Order XIX., rr. 15, 20, the Statute of Frauds must now be specially pleaded. () 5 East, 10; see notes thereto, 1 Smith's Leading Cases. executor with reference to the authentication required by the statute of Promise by the promise by an executor or administrator, it must be borne in mind that, even though the promise be in writing, the trator. executor will not be bound unless it be by deed or there be some valid consideration for the promise. A mere promise without consideration will leave the executor liable only as executor, and to the extent of the assets in his hands. If a creditor at the executor's request forbears to sue him, that is sufficient consideration, whether the executor has assets or not at the time of the promise (1). It has been decided that if an executor promises to pay at a future time a debt immediately due from his testator, this renders him personally liable. This principle was applied to a case in which two executors gave a promissory note in the following form: "As executors to the late A. B., we severally and jointly promise to pay to C. D. the sum of £300, with lawful interest for the same.” The Court decided that, as interest was to be added, the promise necessarily imputed a future payment, and that therefore the executors were personally liable (2). The 2nd sub-section of the 4th section of the Statute of Guarantee. Frauds deals with the subject of guarantees. A guarantee may be defined as a collateral promise in writing, which one who is called the surety enters into, to answer for the debt, default, or miscarriage of another who remains primarily liable for such debt, default, or miscarriage, and is called the principal debtor. It was established by the leading case of Birkmyr v. Darnell (3), that a promise to answer for the debt, default, or miscarriage, for which that other remains liable, requires to be in writing, in order to satisfy the statute, but that if the other does not remain liable, no writing is required. If two came to a shop, said the Court in that case, and one buys, and the other, to gain him credit, promises the seller, "If he does not pay you, I will," this is a collateral promise, and requires writing. But if he says, "Let him have the goods; I will be your paymaster;" or "I will see you paid; " this is an undertaking for himself, and no writing is required. The question to which of the two credit is given is generally one for the jury, who take into account all the circumstances. A strong but not conclusive circumstance that a person is only (1) Williams on Executors, 8th ed. p. 1784. (*) Childs v. Morris, 2 B. & B. 460; 5 Moore, 281. (3) 1 Smith's Leading Cases and see notes thereto. Promise in considera tion of marriage. Contracts for lands, tenements, &c. 376 CONTRACTS. [BOOK III. a surety is that he is not originally debited in the tradesman's books (1). The effect of this provision of the Statute of Frauds was evaded by bringing the action in another form. To remedy this it was provided by Lord Tenterden's Act (9 Geo. 4, c. 14), s. 6, that no action shall be brought to charge any person by reason of any representation or assurance made or given concerning or relating to the conduct, credit, ability, trade or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon, unless such representation or assurance be made in writing signed by the party to be charged therewith (2). The third sub-section enacts that any agreement made in consideration of marriage must be in writing. It has, however, been long decided that an agreement consisting of mutual promises to marry need not be in writing (3). But an agreement as to collateral matters, e.g. a promise in consideration of marriage to make a settlement or will, or pay money, must be in writing (4); and marriage is a good consideration in such a promise. The fourth sub-section renders writing necessary in contracts for lands, tenements, and hereditaments, and any interest in or concerning them. It has been decided that a contract to give or take a lease or tenancy of a house or land, or to assign or surrender a tenancy to the landlord in favour of another; a contract for the sale of a business, as a milk-walk, or a brickyard, accompanied with possession of the premises where it is carried on; a contract to procure a lease or interest in land for another, although the contractor himself have no interest, and act merely as broker or agent in the matter (5); a contract for a right to shoot over land, and take away the game (6), are within the statute. Contracts for shares in railway, canal, water, and gas companies, are not within the statute (7). What is an interest in land within the meaning of the fourth sub-section of the fourth section of the Statute of Frauds? The law on this subject has been well summed up as follows: "Growing crops, if fructus industriales, are chattels, and an agreement for the sale of them, whether mature or immature, whether (1) See notes to Birkmyr v. Darnell, 1 Smith's Leading Cases. (2) See Smith's Leading Cases, 9th ed. p. 195 et seq.; Lyde v. Barnard, 1 M. & W. 101; Swift v. Jewsbury, L. R. 9 Q. B. 301. (3) Cork v. Baker, 1 Str. 34; Harrison v. Cage, 1 Raym. 386. (5) Leake on Contracts, p. 249. |