37. The statute does not apply to -

(a) Contracts created by law.

(b) Instruments created under, and deriving their obligation from, special statutes.

(c) Executed contracts.

7 25 Cyc. 1350. 8 Post, p. 207.

9 Rev. St. U. S. §§ 4S98, 4955 (U. S. Conip. St. 1901, pp. 33S7, 3407).

10 See Minor and Wurts on Real Property, p. 680.

11 8 St. at Large, 405.

12 For the provisions of sections 4 and 17, see post, pp. 80, 121.

Before taking up in turn the special contracts specified in these sections, it is proper to state the kinds of contract generally to which the statute does not apply.

In the first place, it applies only to contracts made in fact; it does not include so-called contracts created by law, or quasi contracts. Ifadutyis imposed by law to pay money or perform other duties, without an agreement or promise in fact, no writing is necessary to support an action on the implied assumpsit.13

Nor does the statute apply to such instruments as are created under, and derive their obligation from, special statutes, without the acceptance or assent of the party for whose ultimate benefit they are given, - as in the case of an undertaking on appeal, the requisites of which are prescribed by a special statute.14

Nor does the statute have any effect where the contract has been executed on both sides, for the purpose of the statute is to exclude parol evidence of the contracts within their provisions, and not to prohibit execution of oral contracts. It applies to executory contracts only.15 We shall see, in treating of the particular kinds of contracts, that under some circumstances part performance may take them out of the statute.

Executory oral agreements, modifying prior written contracts, are within the statute;16 and they may not be proved, for the admission of such evidence could only be for the purpose of showing a contract part of which is not in writing.17 Where such agreements have been executed, however, they may be proved, for the purpose of the statute is only to prevent the enforcement of executory oral agreements.18

13 Goodwin v. Gilbert, 9 Mass. 510; Arnold v. Garst, 16 R. I. 4, 11 Atl. 167; Pike v. Brown, 7 Cush. (Mass.) 133; Sage v. Wilcox, 6 Conn., at page 84; Smith v. Bradley, 1 Root (Conn.) 150; Howard v. Whitt (Ky.) 2 S. W. 776: post, p. 119, note 90. See "Frauds, Statute of," Dec. Dig. (Key-No.) §§ 124, 125; Cent. Dig. §§ 275-277 1/2.

14 Thompson v. Blanchard, 3 N. Y. 335; Doolittle V. Dininny, 31 N. Y. 350. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 121; Cent. Dig. §§ 140, 269.

15 STONE v. DENNISON, 13 Pick. (Mass.) 1, 23 Am. Dec. 654, Throckmorton, Cas. Contracts, 54; Lord Bolton v. Tomlin, 5 Adol. & El. 856; Brown v. Trust Co., 117 N. Y. 266, 22 N. E. 952; Schultz v. Noble, 77 Cal. 79, 19 Pac. 182; Swanzey v. Moore, 22 111. 63, 74 Am. Dec. 134; James, v. Morey, 44 111. 352; Bibb v. Allen, 149 U. S. 481, 13 Sup. Ct 950, 37 L. Ed. 819; Webster v. Le Compte, 74 Md. 249, 22 Atl. 232; Baldock v. Atwood, 21 Or. 73, 20 Pac. 1058; Pireaux v. Simon, 79 Wis. 392, 48 N. W. 674; Anderson School Tp. v. Milroy Lodge, 130 Ind. 108, 29 N. E. 411, 30 Am. St Rep. 206; Doherty v. Doe, 18 Colo. 456, 33 Pac. 165; Lagerfelt v. McKie, 100 Ala. 430, 14 South. 281; Hatton v. Cale, 152 Iowa, 485, 132 N. W. 1101 (contract for digging and use of ditch through land of another); James v. Manning, 79 Kan. 830, 101 Pac. 628; Kuhn v. Poole, 27 Okl. 534, 112 Pac. 962 (contract for construction and use of party wall). See "Frauds, Statute of," Dec. Dig. (Key-No.) § 189; Cent. Dig. §§ 334-341.

16 Stead v. Dawber, 10 Adol. & E. 57; Marshall v. Lynn, 6 Mees. & W. 109; Swain v. Seamens, 9 Wall. 254, 19 L Ed. 554; Hill v. Blake, 97 N. Y. 216; Abell v. Munson, 18 Mich. 306, 100 Am. Dec. 165; Burns v. Real-Estate Co., 52 Minn. 31, 53 N. W. 1017; Walter v. Victor G. Bloede Co., 94 Md. 80, 50

So a subsequent oral agreement for the rescission or waiver of the original written contract is valid, where it is clearly proved and nothing further remains to be done by the parties for its complete execution.19