such word or term will be treated as surplusage.1 Punctuation may aid in ascertaining the true reading, but a writing may be read and interpreted without such aid." § 2318. General Words Restricted to Things Ejusdem Generis. General words following particular or specific terms are considered to be restricted in meaning to those things or matters which are of the same kind with those first mentioned. So general expressions are restricted by particular descriptions or additions appended to them.* § 2319. In Favor of Validity of Contract. As between different meanings, that will prevail which will support the instrument. Where the meaning of the language used is doubtful, or susceptible of two senses, that is to be adopted which would give effect to the instrument as a legal contract, rather than that which would render it inoperative." § 2320. Against Person Using Doubtful Words. - An ambiguity of expression is to be taken most strongly against the party using the words, and in favor of him who has been misled." 1 Tucker v. Meeks, 2 Sweeny, 736. 2 White v. Smith, 33 Pa. St. 186; 75 Am. Dec. 589. 3 Torrance v. McDougald, 12 Ga. 526; Vaughan v. Porter, 16 Vt. 266; Baxter v. State, 9 Wis. 38. Leake on Contracts, 228. Findley v. Armstrong, 23 W. Va. 113; Evans v. Sanders, 8 Port. 497; 33 Am. Dec. 297; Riley v. Vanhouton, 5 Miss. 428; Peckham v. Haddock, 36 Ill. 38; Morancy v. Dumesnil, 3 La. Ann. 363; Steinspring v. Bennett, 16 6 Thrall v. Newall, 19 Vt. 202; 47 Am. Dec. 682. 7 Barney v. Newcomb, 9 Cush. 46; Evans v. Sanders, 8 Port. 497; 33 Am. Dec. 297; Livingston v. Arrington, 28 Ala. 424; Union Bank v. Guice, 2 La. Ann. 249; Crowley v. Concordia, 3 La. Ann. 224; Hoover v. Miller, 6 La. Ann. 204. CHAPTER CX. THE STATUTE OF FRAUDS. § 2321. The statute of frauds. § 2322. Promise to answer for debt, default, etc., of another. § 2323. Agreements made in consideration of marriage. § 2324. "Lands, tenements, or hereditaments, or any interest in or concerning them." § 2325. Contracts not to be performed within a year. § 2326. § 2327. "Goods, wares, and merchandise" of the value of fifty dollars. § 2328. Requisites of memorandum. § 2329. Must show parties - Promise and consideration. § 2330. § 2331. Must be signed by party charged — Mode of signing. § 2332. § 2333. § 2334. Delivery to carrier or other agent. Constructive delivery - Goods already in possession of buyer. § 2335. Part or portion of goods only need be accepted - Sample. § 2321. The Statute of Frauds.-The forms required in entering into contracts are mainly those set out in the celebrated statute of frauds, whose provisions have been generally incorporated into the legislation of the states of the American Union. Section 4 is sometimes, with modifications, and sometimes without, in force in all the states, except Maryland and Louisiana,' and so are sections 1, 2, and 17.2 The statute does not void such contracts as though required to be in writing, yet are not so, but only inhibits all actions brought to enforce them. It does not restrict parties from a voluntary performance of their parol engagements. 11 Stimson's American Statute Law, 459. It was not included in the first Pennsylvania statute, and the court held that contracts for the sale of land by word of mouth were valid: Ewing . Tees, 1 Binn. 450; 2 Am. Dec. 455. 462. Section 17 held not in force in Texas, in Cleveland v. Mellams, 29 Tex. 204; 94 Am. Dec. 274. Fowler v. Burget, 16 Ind. 341; Hunter v. Giddings, 97 Mass. 41; 93 Am. Dec. 54. Aicardi v. Craig, 42 Ala. 311; * 1 Stimson's American Statute Law, Magee v. Blankenship, 95 N. C. 563. A promise which arises by operation of law is not within the statute;' nor a parol declaration of trust in lands; nor instruments created under and deriving their obligation from special statutes, without the acceptance or assent of the party for whose ultimate benefit they were given; nor executed contracts. The refusal of a party to a contract to fulfill his promise to put it in writing is not such a fraud as will take the contract out of the statute of frauds. A contract required by the statute of frauds to be in writing cannot be subsequently modified by parol. The statute, if relied on as a defense, must be pleaded, or it will be deemed waived." § 2322. Promise to Answer for Debt, Default, etc., of Another. In order to fall within this section, there must be a debt of another for which that other remains liable. If the original debtor is discharged, the promise is an independent and original contract, and need not be in writing. So where the promise arises out of some new consideration of benefit or harm between 7 Maybee v. Moore, 90 Mo. 340; McClure v. Otrich, 118 Ill. 320. 8 Birkmyr v. Darnell, Salk. 27; 1 Smith's Lead. Cas. 57; Underhill v. Gibson, 2 N. H. 352; 9 Am. Dec. 82; Corbett v. Cochran, 3 Hill (S. C.) 41; 30 Am. Dec. 348; Jones v. Hardsty, 10 Gill & J. 404; 32 Am. Dec. 180; Curtis v. Brown, 5 Cush. 491; Dows v. Sweet, 120 Mass. 323; Eddy v. Roberts, 17 Ill. 407; Doyle v. White, 26 Me. 341; 45 Am. Dec. 110; Taylor v. Drake, 4 Strob. 431; 53 Am. Dec. 680; Dufolt v. Gorman, 1 Minn. 301; 66 Am. Dec. 543. 9 Anderson v. Davis, 9 Vt. 126; 31 Am. Dec. 612; Watson v. Jacobs, 29 Vt. 171; Spann v. Baltzell, 1 Fla. 301; 46 Am. Dec. 346; Warren v. Smith, 24 Tex. 484; 76 Am. Dec. 115; Andre v. Bodman, 13 Md. 241; 71 Am. Dec. 628; Wallace v. Wortham, 25 Miss. 119; 57 Am. Dec. 197; Packer v. Benton, 35 Conn. 343; 95 Am. Dec. 249, and see note 250-263; Maurin v. Fogelberg, 37 Minn. 23; 5 Am. St. Rep. 815. To ascertain whether an undertaking to pay the debt of another is collateral or original, the inquiry is, To whom was the credit given at the time of the sale and delivery of the goods? And this is a question for the jury: Myer v. Grafflin, 31 Md. 350; 100 Am. Dec. 66; Greene v. Burton, 59 Vt. 423; Grant v. Wolf, 34 Minn. 32; Cole v. Hutchinson, 34 Minn. 410. the creditor and the third party. And the promise must be made to the creditor, and not to the debtor himself.2 The following agreements have been held to be within the statute, and not enforceable if not in writing, viz.: A promise by A to B, who was working for C, that if C did not pay him, he, A, would;3 a promise by A to B's creditor that if he will discontinue an action commenced 1 Alger v. Scoville, 1 Gray, 397; Jepherson v. Hunt, 2 Allen, 423; Burr v. Wilcox, 13 Allen, 273; Furbish v. Goodnow, 98 Mass. 300; Ames v. Foster, 106 Mass. 403; 13 Am. Rep. 343; Willis v. Brown, 118 Mass. 138; Pratt v. U. S., 22 Wall. 506; Stewart v. Hinckley, 1 Bond, 568; Clifford v. Luhring, 69 Ill. 402; Clay v. Walton, 9 Cal. 334; Tindal v. Touchberry, 3 Strob. 177; 49 Am. Dec. 637; Chapline v. Atkinson, 45 Ark. 67; 55 Am. Rep. 531; Farley v. Cleveland, 4 Cow. 432; 15 Am. Dec. 387; Durham v. Arledge, 1 Strob. 5; 47 Am. Dec. 544; Spooner v. Dunn, 7 Ind. 81; 63 Am. Dec. 414; Tighe v. Morrison, 41 Hun, 1; Mead v. Parker, 41 Hun, 577; Lookout R. R. Co. v. Houston, 85 Tenn. 224. In Nelson v. Boynton, 3 Met. 396, 37 Am. Dec. 148, it is said: "The terms original and collateral promise, though not used in the statute, are convenient enough, to distinguish between the cases, where the direct and leading object of the promise is to become the surety or guarantor of another's debt, and those where, although the effect of the promise is to pay the debt of another, yet the leading object of the undertaker is to subserve or promote some interest or purpose of his own. The former, whether made before or after or at the same time with the promise of the principal, is not valid, unless manifested by evidence in writing; the latter, if made on good consideration, is unaffected by the statute, because, although the effect of it is to release or suspend the debt of another, yet that is not the leading object on the part of the promisor. In case one says to another, Deliver goods to A, and I will pay you,' it is binding, though by parol, because A, though he receives the goods, is never liable to pay for them. But if, in the same case, he says, 'I will see you paid,' or 'I will pay, if he does not,' or uses words equivalent, showing that the debt is in the first instance the debt of A, the undertaking is collateral, and not valid, unless in writing: Matson v. Wharam, 2 Term Rep. 80; Anderson v. Hayman, 1 H. Black. 120. In these cases, the same consideration, which is the consideration of the promise of the principal, is a good consideration for the promise of the surety or collateral promisor. The credit is given as well upon the original consideration of the principal, as the collateral promise of the surety, and is a good consideration for both: D'Wolf v. Rabaud, 1 Pet. 500; Townsley v. Sumrall, 2 Pet. 182. The distinction between the different classes of cases is well stated in Leonard v. Vredenburgh, 8 Johns. 29; 5 Am. Dec. 317; and Farley v. Cleveland, 4 Cow. 432; 15 Am. Dec. 387." 2 Eastwood v. Kenyon, 11 Ad. & E. 438; Barker v. Bucklin, 2 Denio, 45; 47 Am. Dec. 726; Runde v. Runde, 59 Ill. 102; Fullam v. Adams, 37 Vt. 397; Blunt v. Boyd, 3 Barb. 211; Westfall v. Parsons, 16 Barb. 649; Leman v. Hasbrouck, 35 Barb. 155; Steinhart v. Doellner, Jones & S. 221; Phillips v. Gray, 3 E. D. Smith, 69; Cottrell ». Stevens, 10 Wis. 425; Pratt v. Humphrey, 22 Conn. 325; Green v. Brookins, 23 Mich. 53; 9 Am. Rep. 74; Sweatman v. Parker, 49 Miss. 29; Jones v. Shorter, 1 Ga. 294; 44 Am. Dec. 649; Goetz v. Foss, 14 Minn. 265; 100 Am. Dec. 218; Soulisby v. Keely, 7 Fed. Rep. 449; Ware v. Allen, 64 Miss. 545; 60 Am. Rep. 67. 3 Aldrich v. Jewell, 12 Vt. 125; 36 Am. Dec. 330. by him on the debt, or refrain from issuing execution, he will pay the debt;1 a promise to indemnify one if he will become security for a third person; a promise to indemnify the plaintiff from all costs and damages by reason of any suits brought against him on account of certain goods in his possession seized in execution, and alleged to belong to the defendant; a promise to indorse a note for a purchaser of goods, in consideration that the vendor will sell to him; an agreement to execute a note as surety for another; a promise by the president of a bank to a depositor that if the latter will not draw out his funds, but permit them to remain in the bank, the former will pay the total deposit if the bank should close; a promise to answer in part for the debt of another; a promise to pay rent of premises occupied by the promisor's mother, where the mother entered the house at an agreed rental, and the plaintiff, being solicitous about the rent, mentioned the matter to the defendant, who verbally promised to pay the rent during the time she should occupy the house." On the other hand, the following have been held not within the statute, viz.: A promise by a purchaser to pay a part of the consideration to a creditor of the seller; an agreement by the vendee of land to pay the debt of the vendor as a part of the consideration;10 a promise to pay the debt of a minor; " a promise to pay the debt of another out of his property, placed in the hands of the promisor 1 Nelson v. Boynton, 3 Met. 396; 37 Am. Dec. 148; Allshouse v. Ramsay, 6 Whart. 331; 37 Am. Dec. 417; Durham v. Aldridge, 1 Strob. 5; 47 Am. Dec. 544; Duffy v. Wunsch, 42 N. Y. 243; 1 Am. Rep. 514. Nugent v. Wolfe, 111 Pa. St. 471; 56 Am. Rep. 291; Mayo v. Williams, 61 Miss. 125; 48 Am. Rep. 80; Bissig v. Button, 59 Mo. 204; 21 Am. Rep. 379. Nixon v. Vanhise, 5 N. J. L. 491; 8 Am. Dec. 618. Carville v. Crane, 5 Hill, 483; 40 Am. Dec. 364. |