into stipulations of suretyship, and where there would be great temptation, on the part of a creditor, in danger of losing his debt by the insolvency of his debtor, to support a suit against the friends or relatives of a debtor, a father, son, or brother, by means of false evidence; by exaggerating words of recommendation, encouragement to forbearance, and requests for indulgence, into positive contracts." 5 The purpose of the original Act of Parliament, as well as that of the American legislatures which have re-enacted the statute of frauds, was to prevent fraud and perjury. It was based upon moral grounds. It represented a "temporary phenomenon in the evolution of contract law." Since the parties have become competent to testify in any case in which they are interested, it has been contended that the need for the statute is not so great as it was when enacted. At present, a party, being able to testify, cannot be proven easily to have made a contract which he never made. On the other hand, the statute aids him in escaping a liability which he expressly assumed. These observations, together with the assumption that the statute is in derogation of the common law, and therefore must be strictly construed, have caused the courts to look at it critically, and to limit its application. The statute was regarded as being reactionary, as interfering with the natural lines of evolution of contract law, and contrary to a principle on which it had been developing.8

While section 4 of the statute of frauds is recognized as having a permanent place in our legislation, it is also true that

6 Wharton on Conflict of Laws (1905, 3d Ed.) Sec. 690. It was said in Nugent v. Wolfe (1886) 111 Pa. 471, 4 Atl. 15, 56 Am. Rep. 291, approved in Hartley v. Sanford (1901) 66 N. J. L. 627, 50 Atl. 454, 55 L. R. A. 206, that "the object of the statute is protection against 'fraudulent practices commonly endeavored to be upheld by perjury,' and it should be enforced according to its true intent and meaning, not

withstanding cases of great hardship may result therefrom.'

7 Street on Legal Liability (1906) Vol. II, p. 196.

66

8 Street on Legal Liability (1906) Vol. II, pp. 196-198. Best, C. J. said in Proctor v. Jones (1826) 2 C. & P. 532, 12 E. C. L. Rep. 716: 'The statute of frauds and the statute of limitations were both so much objected to at the time when they were passed, that the judges appeared anxious to get them off the statute book; but in later times they have become desirous to give them their full effect."'

"the courts, especially in modern times, have exercised the greatest ingenuity in order to enable them to withdraw from the operation of this clause as many contracts as possible."9

§ 40. "Special promise." The words "special promise" in the statute of frauds are construed as comprehending an express promise as distinguished from one which is implied by law. The word "special" was doubtless inserted for a purpose, and as interpreted quite generally that object was to distinguish promises in fact from those implied by law.10

§ 41. "Debt, default, or miscarriages." The "debt, default, or miscarriages of another person" for which the promisor is liable, if at all, only if the "agreement" be in writing, may be any debt or default or miscarriage caused by the failure of the other person to perform a legal duty to the promisee. These words were chosen for a purpose. They are not synonyms.

"Now the word 'miscarriage' has not the same meaning as the word 'debt' or 'default'; it seems to me to comprehend that species of wrongful act for the consequences of which the law would make the party civilly responsible. The wrongful riding of the horse of another, without his leave and licence, and thereby causing its death, is clearly an act for which the party is responsible in damages; and, therefore, in my judgment, falls within the meaning of the word 'miscarriage,' "' (for which defendant was held not liable because his promise was verbal). 11

Therefore, if the promisee has a right of action against the other person, whether it arose because of the breach of a contract, or other legal duty, or in tort, the promisor's verbal contract, even though the parties be competent and consideration. exists, is not enforceable against him. While the "special promise" means, as explained in section 40, an express one, the "debt,

9 Street on Legal Liability (1906) Vol. II, p. 188.

10 Sage v. Wilcox (1826) 6 Conn. 81, 85. Chief Justice Shaw, in the concluding sentence of his opinion in Pike v. Brown (1851) 7 Cush. (Mass.) 133, 136, said that "promises implied by law are not with

in the statute." Accord: Furbish et al. v. Goodnow (1867) 98 Mass. 296; Urquhart v. Brayton (1878) 12 R. I. 169, 171.

11 Kirkham v. Marter (1819) 2 Barnewall & Alderson 613, 106 Eng. Reports Reprint 490.

default, or miscarriages," need not have origin in an express contract, or indeed, in any contract at all.12

§ 42. "Of another person." The statute of frauds clearly expressed its object, namely, to render unenforceable verbal contracts to answer for the debts "of another person.' Obviously, "another person" was not intended to include the promisor. A verbal promise to pay the promisor's own debt, either in whole or in part, is, therefore, not a special promise within the statute of frauds.18

The joint verbal promise of two persons to pay for goods sold to one of them on the credit of the other is outside the contemplation of the statute. It is applicable only where the verbal agreement creates a several liability of the promisor, and not a joint liability with the beneficiary on whose behalf it was made. This is true even though one of the joint promisors receives the whole benefit. The promise of neither is collateral to the other, but both promises are original.14

§ 43. Must the consideration be in writing? One of the early controversies raged over the question whether the consideration must be in writing. Section 4 of the statute of frauds uses the words "promise" and "agreement," the latter of which must be in writing. The earlier English cases held that the statute did not intend that any "promise" should be enforced, even if written, if it was invalid. What the statute was interpreted to require was a writing of the "agreement" in respect

12 Buckmyr v. Darnall (1704) 2 Lord Raymond 1085; Kirkham v. Marter (1819) 2 Barnewall & Alderson 613; Turner v. Hubbell (1807) 2 Day (Conn.) 457, 2 Am. Dec. 115; Billingsley v. Dempewolf (1858) 11 Ind. 414.

Compare these cases with Read, Executor v. Nash (1751) 1 Wilson K. B. 305, 95 Eng. Reports Reprint 632, where the defendant verbally promised Tuack, plaintiff's testator, £50 if he would withdraw his suit against Johnson for assault and battery, which Tuack did. The defendant's promise was not within

the statute because Johnson was never liable to pay that particular £50. Had the defendant agreed to pay the damages Tuack sustained by Johnson's act, doubtless the promise would have been within the statute.

18 Ferrell v. Maxwell (1876) 28 Oh. St. 383, 22 Am. Rep. 393.

14 Boyce et al. v. Murphy et al. (1883) 91 Ind. 1, 46 Am. Rep. 567; Gibbs v. Blanchard (1867) 15 Mich. 292; Wainright v. Straw et al. (1843) 15 Vt. 215, 40 Am. Dec. 675; Eddy v. Davidson (1869), 42 Vt. 56, 60.

of which the promise was made, and the consideration as well as the promise must be written, in order to permit an action upon an otherwise unenforceable promise. "Agreement" includes consideration, and without written evidence of the consideration, the agreement in its entirety is not in writing.15 Doubt was cast upon this view by English cases a few years later,16 but in 1821 it became settled that "the special promise should be in writing, incorporating in it its consideration, which alone makes it binding." 17 This remained the rule in that country until changed by statute in 1856.18

The American courts were naturally divided upon the question.19 Due to legislation, written evidence of the consideration is not required in most jurisdictions. But whether consideration was required to be in writing, the courts agreed that such writ

15 Wain et al. v. Warlters (1804) 5 East 10, 102 Eng. Reports Reprint

972.

16 Ex parte Minet (1807) 14 Ves. 189. In Ex parte Gardom (1808) 15 Ves. 286, 287, 33 Eng. Reports Reprint 762, Lord Eldon said: "Until the case of Wain v. Warlters was cited some time ago, I had always taken the Law to be clear, that, if a man agreed in writing to pay the debt of another, it was not necessary, that the consideration should appear upon the face of the writing.''

17 Bayley, J., in Saunders v. Wakefield (1821) 4 Barnewall and Alderson 595, 6 Eng. C. L. Rep. 531, 106 Eng. Reports Reprint 1054. See Bushell et al. v. Beaven (1834) 1 Bing. (N. C.) 103, 131 Eng. Reports Reprint 1056.

18 See the Mercantile Law Amendment, 19 and 20 Victoriae, c. 97, Sec. 3, providing that: "No special Promise to be made by any Person after the passing of this Act to answer for the Debt, Default, or Miscarriage of another Person, being in Writing, and signed by the Party

to be charged therewith or some other Person by him thereunto lawfully authorized, shall be deemed invalid to support an Action, Suit, 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. . . ."

19 Among the cases holding that the consideration must be expressed in writing are: Patmor v. Haggard (1875) 78 Ill. 607; Hutton v. Padgett et al. (1866) 26 Md. 228; Underwood v. Campbell (1843) 14 N. H. 393; Laing v. Lee (1845) 20 N. J. L. 337; Commercial National Bank v. Smith (1900) 107 Wis. 574, 83 N. W. 766.

The following are some of the cases holding the consideration need not be expressed in writing: Sage v. Wilcox (1826) 6 Conn. 81; Hargroves v. Cooke (1854) 15 Ga. 321; Levy et al. v. Merrill et al. (1826) 4 Green. (Me.) 180; Gillighan v. Boardman (1848) 29 Me. 79; Packard v. Richardson et al. (1821) 17 Mass. 121, 9 Am. Dec. 123; Reed v. Evans (1848) 17 Ohio 128.

ten undertakings, if they were not specialities, are parol, “and a consideration must be proved." 20 "To bind one therefore for the debt or default of another, both must concur; first, a promise on good consideration, and secondly, evidence thereof in writing."' 21

844. The memorandum. The only requirement is that some memorandum or note must be made of the agreement and signed by the party to be charged therewith. By the weight of authority, both parties need not sign, but only the one who is charged, or being held on the agreement. The writing need not be formal. It may refer to another writing which will require parol testimony to identify.22 If two or more writings separately will not make out a contract, if by identification of parol evidence a contract may be established, it is sufficient.28 When the offerer is the one to be charged, his offer in writing is sufficient to bind him, if parol evidence is available to establish its acceptance by the offeree. Acknowledgment of a contract in a will is sufficient compliance with the statute of frauds to bind the testator's estate.25

§ 45. Special promise to the debtor. While the statute of frauds does not use the words debtor or creditor, courts have uniformly interpreted it to include only promises made to the creditor, or, as the first case in which the question arose decided, "promises made to the person to whom another is answerable." 26 In other words, a verbal promise made to the debtor to pay the promisee's debt to a third person, if other necessary

20 Rann v. Hughes (1778) 7 T. R. 350, 6 Eng. Rul. Cases 1. Accord: Cook v. Bradley (1828) 7 Conn. 57, 61, 18 Am. Dec. 79, 82.

21 Nelson v. Boynton (1841) 3 Met. (Mass.) 396, 400, 37 Am. Dec. 148, 149. See Barker v. Bucklin (1846) 2 Denio (N. Y.) 45, 43 Am. Dec. 726.

22 Forst et al. v. Leonard et al. (1895) 112 Ala. 296, 20 So. 587.

23 Raubitschek v. Blank (1880) 80 N. Y. 478.

24 The Himrod Furnace Co. v. The Cleveland and Mahoning Railroad Co. (1872) 22 Oh. St. 451.

25 In re Hoyle (1893) 1 Ch. 84. 26 Eastwood v. Kenyon (1840) 11 Adolphus & Ellis 438, 113 Eng. Reports Reprint 482. Accord: Hargreaves v. Parsons (1844) 13 Meeson and Welsby 561, 153 Eng. Reports Reprint 235.