Sec. 86. Promises To Answer For The Debt, Default, Or Miscarriage Of Another Person

A promise of any person to answer for the debt, default, or miscarriage of another person cannot be enforced unless there is written evidence of such promise, signed by the person sought to be charged.

This provision of the statute contemplates a debt or liability from A to B, and C's promise to the creditor, B, to pay if A does not. C is a guarantor, and his promise may arise either at the inception of the debt, or thereafter. It must, of course, be supported by a consideration to be enforcible whether in writing or not, but it is not necessary that the guarantor get any benefit or advantage for making the offer, for the consideration may consist in the detriment to the creditor in extending the credit upon the strength of the guaranty, or if the credit has already been extended may consist in granting further definite time upon it or any other right or thing parted with by the creditor in return for such guaranty. This provision of the statute contemplates a main or original debt by A which he ought to pay and another's promise to pay it if the debtor does not. It is held not to apply

(a) To any case in which the alleged guarantor is in fact the main debtor.

(b) To any case in which the promise to pay is not made to the creditor but to the debtor.

Example 57. A desiring to get credit from B is requested to furnish a sponsor. C thereupon promises B that he will pay if A does not. If this promise is not in writing and signed by C, C when sued has a complete defense in the statute of frauds.127

Example 58. If in the above case C had said to B, "Let A have goods and charge to my account" or "look to me for payment," C would have made the debt his own and C could be compelled to pay whether his promise was in writing or oral.128

127. Jones v. Cooper, 1 Cowp. 227.

128. Marr v. B. C. R. & N. R. Co., 121 la. 117.

Sec. 87. Promises In Consideration Of Marriage

A promise in consideration of marriage cannot be enforced unless there is written evidence thereof, signed by the party sought to be charged.

This provision refers to ante-nuptial agreements to convey property in consideration of the marriage. It does not refer to mutual promises to marry, which are binding, though oral. An oral promise to convey real estate would be unenforceable both by this provision and the one relating to real estate.

Sec. 88. Contracts For The Sale Of Lands Or Any Interest In Or Concerning Them (Except Short Terms Leases)

These contracts cannot be enforced unless there is written evidence of such contracts signed by the party sought to be charged.

This provision applies to contracts which create an interest or estate in anything which is to be classed as real estate or distinguished from personal property, except short term leases, as for one year, which are now generally excluded by the American statutes. The most obvious application is to contracts to buy or sell a piece of real estate, as a farm, a city lot, etc., but it also extends to any contract to convey or create an interest in anything which may be classed as real estate. Thus it would apply to any contract to mine ore,129 to create an easement, to sell an old house to be removed,130 etc. Note, however, that it is immaterial if the contract refers to something which is now real estate, if before the sale or creation of the interest is to arise, it must be converted by the seller into personal property. Thus, a right to mine ore in the land of another would be unenforceable unless in writing. But if A contracts to sell B 1,000 tons of coal, this is a contract to sell personal property, though it may happen that when the contract is made the coal is unmined and is therefore real estate. Such a contract to sell coal might, however, be unenforceable by reason of the section in reference to sales of personal property. Yet that section might not apply, for sales of personal property are good without writing, if a payment has been made or a part of the goods delivered and accepted. So in some states the provision in reference to sales of personal property is not in force.

Crops which are planted and mature annually are regarded as personal property in this regard, and an oral sale of them is enforceable so far as this provision of the statute is concerned.131 Thus, if A orally agrees to sell B all his standing corn, this is enforceable whether A or B is to cut the corn and take it away.

129. Entwhistle v. Henke, 211 Illinois Reports, 273.

130. Meyers v. Schemp, 67 Id. 469.

Sec. 89. Contracts That Cannot Be Performed Within A Year From The Making Thereof

These contracts cannot be enforced unless there is written evidence of them signed by the party sought to be charged.

This provision relates only to those contracts which by their express terms or by their inherent nature cannot be performed within a year from the time of their making. It is decided that if the contract may be performed within the year, though the probability be remote, this provision does not apply and the contract is enforceable though oral. In such a case it is immaterial that the performance as a matter of fact does take longer than a year.132 An illustration will make this plain. Thus suppose that A, for a certain sum of money to be paid to him by B, by oral contract agrees to support B the remainder of B's life. B is sixty years of age and in fair health. This contract may be enforced, though not in writing, for B may die within the first year. The fact that B does actually live twenty years longer does not make any difference. On the other hand, A employs B to work for him fifteen months. There must be written evidence of this contract, and if either A or B breaks the contract he cannot be charged with its breach.