The original English Statute of Frauds provided as follows:
"That 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 upon consideration of marriage; (4) or upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them; (5) or upon any agreement that is not to be performed in 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." (4th Section.)
"That no contract for the sale of any goods, wares, and merchandise, 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 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." (17th Section.)
The Statute of Frauds does not have the effect of preventing the formation of contracts included within it without complying with its provisions but merely furnishes a requisite in the manner of proof, if the adversary relies upon and pleads the Statute of Frauds.
It is well established that the English statute of frauds and its patterns in this country do not require writing as an element in the formation of the contract.
It merely requires that when a suit is instituted upon an alleged contract within the statute of frauds, the adversary party may plead the statute as a defense and thus require the plaintiff to produce some written evidence which sets forth the contract, and signed by the party to be charged thereon.
Example 56. A agrees to sell goods to B under an oral agreement. B decides not to take the goods and writes a letter to A telling him so and sufficiently describing the contract to satisfy the statute of frauds. He signs the letter. A sues B. B pleads statute of frauds. A can comply with the statute, and prove the contract, by producing B's letter.126
The justice of this is apparent. If a man makes a contract he ought to perform it. The statute was not to help him, but to prevent fraud and perjury. Therefore, if the writing signed by him is produced, it would be the merest of technicalities, and a perversion of the statute to say he could not be held because the contract was not made in writing.
Because of this view of the statute, it is generally held:
(1) The statute is not a defense unless affirmatively pleaded.
(2) It does not apply to executed contracts.
(3) The writing may have been made at any time, even after suit begun.
(b) The cases within the statute.
A promise of an executor or administrator to charge himself personally with the payment of the debts of the decedent's estate cannot be enforced unless there is written evidence of such promise signed by the party sought to be charged.
126. Bird v. Munroe, 66 Me. 337.
There is, of course, no duty upon an executor or administrator to pay the debts of the decedent's estate out of his own personal estate. If, however, he takes it upon himself to be personally bound for such debts, the law requires the proof of any such engagement to be in writing and signed. Not very much litigation has been occasioned in reference to this provision.