Delivery

The memorandum, being required merely as evidence of the contract, need not be delivered.66 Nondelivery is only material in so far as it may tend to show that no final agreement has been reached. It is held, however, that a deed of land must be delivered to constitute a sufficient memorandum.67 A delivery of the deed in escrow is sufficient.68

61 Ante, p. 105.

62 Higgins v. Senior, 8 Mees. & W. 834; Waring v. Mason. 18 Wend. (N. Y.) 425. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 116; Cent. Dig. §§ 251-260.

63 Roehl v. Hauinesser, 114 Ind. 311, 15 N. E. 345; Kennedy v. Ehlen, 31 W. Va. 540, 8 S. E. 398; Watson v. Sherman, 84 111. at page 267. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 116; Cent. Dig. §§ 251-260.

64 Hall v. Wallace, 88 Cal. 434, 26 Pac. 360; Gerhart v. Peck, 42 Mo. App. 644; Castner v. Richardson, 18 Colo. 496, 33 Pac. 163; Kozel v. Dearlove, 144 111. 23. 32 N. E. 542, 36 Am. St. Rep. 416; Detroit, P. & N. Ry. Co. v. Hartz, 147 Mich. 354, 110 N. W. 1089; Thomas v. Rogers, 108 Minn. 132, 121 N. W. 630, 133 Am. St Rep. 421; Adams v. Carlton, 77 Kan. 546, 95 Pac. 390; Ross v. Craven, 84 Neb. 520, 121 N. W. 451; Cobban v. Hecklen, 27 Mont. 245,. 70 Pac. 805. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 116; Cent. Dig. §§ 251-260.

65 Simpson v. Commonwealth, 89 Ky. 412, 12 S. W. 630. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 116; Cent. Dig. §§ 251-260.

66 Drury v. Young, 58 Md. 546, 42 Am. Rep. 343; Ames v. Ames, 46 Ind. App. 597, 91 N. E. 509. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 117; Cent. Dig. § 261.

67 Wier v. Batdorf, 24 Neb. 83, 38 N. W. 22; Callanan v. Chapin, 158 Mass.. 113, 32 N. E. 941; Swain v. Burnette, 89 Cal. 564, 26 Pac. 1093; Day v. La-cusse, So Me. 242, 27 Atl. 124. And see Kopp v. Reiter. 146 111. 437, 34 N. E. 942, 22 L. R. A. 273, 37 Am. St. Rep. 156. But see Johnston v. Jones, 85 Ala. 286, 4 South. 748. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 117; Cent. Dig. § 261.

68 Johnston v. Jones, 85 Ala. 286, 4 South. 748; Cannon v. Handley, 72 Cal. 133, 13 Pac. 315; Lewis v. Prather (Ky.) 21 S. W. 538. But. see Ducett v. Wolf, 81 Mich. 311, 45 N. W. 829. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 117; Cent. Dig. § 261.

Clark CONT.(3D Ed.) - 8

Same - Effect Of Noncompliance

50-51. Failure to comply with the requirement of the fourth section does not render the contract void, but merely excludes parol proof, and renders it unenforceable.

The English statute, which has been followed by the statutes of most of the states, does not declare that the contracts, if entered into orally, shall be void, but simply that "no action shall be brought" on them. The statute does not go to the existence of the contract, but merely makes written evidence necessary to establish it. The contract is not void, but simply unenforceable by suit.69

Although the contract cannot, for this reason, be sued upon successfully, it is available for some purposes. If it has been fully performed, the courts will recognize and protect the rights of the parties acquired under it.70 And if it has been performed by one of the parties by payment of the consideration he will not be allowed to recover back what he has paid, where the other party is willing to perform on his part.71

69 BRITAIN v. ROSSITER, 11 Q. B. Dlv. 123, Throckmorton, Cas. Contracts, 86; Leroux v. Brown, 12 C. B. 801; Townsend v. Hargraves, 118 Mass. 325; Montague v. Garnett, 3 Bush (Ky.) 297; Baker v. Lauterbach, 68 Md. 64, 11 Atl. 703; Crane v. Gough, 4 Md. 316; Newton v. Bronson, 13 N. Y. 587, 67 Am. Dec. 89; Brakefield v. Anderson, 87 Tenn. 206, 10 S. W. 360; Browning v. Parker, 17 R. I. 183, 20 Atl. 835; Ohio & M. R. Co. v. Trapp, 4 Ind. App. 69, 30 N. E. 812; Montgomery v. Edwards, 46 Vt 151, 14 Am. Rep. 618; Chicago Dock Co. v. Kinzie, 49 111. 2S9; La Du-King Mfg. Co. v. La Du, 36 Minn. 443, 31 N. W. 938; Bird v. Munroe, 66 Me. 337, 22 Am. Rep. 571. The courts often use the word "void" carelessly, and the fact that they speak of a contract as void cannot always be relied on. See "Frauds, Statute of," Dec. Dig. (Key-No.) §§ 119, 125; Cent. Dig. §§ US, 266-277.

70 See supra, note 69.

71 Galway v. Shields, 66 Mo. 313, 27 Am. Rep. 351; Coughlin v. Knowles, 7 Mete. (Mass.) 57, 39 Am. Dec. 759; Sims v. Hutchins, 8 Smedes & M. (Miss.) 331, 47 Am. Dec. 90; Shaw v. Shaw, 6 Vt. 69; Hawley v. Moody, 24 Vt. 605. And see Lane v. Shackford, 5 N. H. 130; Richards v. Allen, 17 Me. 296; Bedinger v. Whittamore, 2 J. J. Marsh. (Ky.) 563; Collier v. Coates, 17 Barb. (N. Y.) 473; McKinney v. Harvie, 38 Minn. 18, 35 N. W. 668, 8 Am. St. Rep. 640; Nelson v. Improving Co., 96 Ala. 515, 11 South. 695, 38 Am. St Rep. 116; Butler v. Dinan, 65 Hun, 620, 19 N. Y. Supp. 950. But see Hartwell v. Young, 67 Hun, 472, 22 N. Y. Supp. 486, in which it was held that a person orally employed for a longer period than a year may abandon the contract without fault on his employer's part, and recover for the services rendered; post, p. 119. See "Frauds, Statute of," Dec. Dig. (Key-No.) §§ 119, 125; Cent. Dig. §§ US, 266-277.

In some states, however, the statute declares that the contract "shall be void" unless in writing.72 In these states it seems that the statute goes to the existence of the contract, and renders it absolutely void. In a Massachusetts case, however, in construing the section of the statute of that state relating to contracts for the sale of goods, which declared that no such contract should be held to be good and "valid," it was held that it was not the intention of the legislature to declare such contracts void, but simply to prevent oral proof.73

Further illustration of the rule that a contract which does not comply with the statute is not void, but simply unenforceable, is found in the mode in which courts of equity deal with such contracts, to be presently explained.