A contract not put in writing, as required by the statute of frauds, not being void, but simply unenforceable by suit, the failure of the contract to comply with the statute may be waived by the party to be charged.95 It is generally held to have been waived if not pleaded as a defense, unless the complaint shows that the case is within the statute.98

refuses to carry out Walker v. Shackelford, 49 Ark. 503, 5 S. W. 887, 4 Am. St. Rep. 61; post, p. 650. See "Frauds, Statute of," Dec. Dig. (Key-No.) | 125; Cent. Dig. §§ 275-277 1/2.

91 Simons v. New Britain Trust Co., 80 Conn. 263, 67 Atl. 883, 11 Ann. Cas. 477. See "Frauds, Statute of," Dea Dig. (Key-No.) § 141; Cent. Dig. § 343.

92 King v. Welcome, 5 Gray (Mass.) 41; Baker v. Lauterbach, 68 Md. 64, 11 Atl. 704; McGinnis v. Fernandes, 126 111. 228, 19 N. E. 44; Lemon v. Randall, 124 Mich. 687, 83 N. W. 994. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 141; Cent. Dig. § 343.

93 Zeuske v. Zeuske, 55 Or. 65, 103 Pac 648, 105 Pac. 249, Ann. Cas. 1913A, 556 (holding that the acts of part performance were available only in equity to take the case out of the statute). See "Frauds, Statute of" Dec. Dig, (Key-No.) § 141; Cent. Dig. § 348.

94 Cahill v. Bigelow, 18 Pick. (Mass.) 369; Mewburn's Heirs v. Bass, 82 Ala. 622, 2 South. 520; Briggs v. United States, 143 U. S. 346, 12 Sup. Ct. 391, 36 L. Ed. 180; Dailey v. Kinsler, 35 Neb. 835, 53 N. W. 973; Best v. Davis, 44 111. App. 624; Grundies v. Kelso, 41 111. App. 200; Houser v. La-niont, 55 Pa. 311, 93 Am. Dec. 755; Book v. Mining Co. (C. C.) 58 Fed. 100; Bullion & Exch. Bank v. Otto (C. C.) 59 Fed. 256; Chicago Dock Co. v. Kin-zie, 49 111. 289; King v. Bushnell, 121 111. 656,. 13 N. E. 245; St. Louis, K. & N. W. R. Co. v. Clark, 121 Mo. 169, 25 S. W. 192, 906, 26 L. R. A. 751. See "Frauds, Statute of," Dec. Dig. (Key-No.) § US; Cent. Dig. §§ 344-350.

95 Montgomery v. Edwards, 46 Vt. 151, 14 Am. Rep. 618; Cosand v. Bunker, 2 S. D. 294, 50 N. W. 84; Westfall v. Parsons, 16 Barb. (N. Y.) 645; Nunez v. Morgan, 77 Cal. 427, 19 Pac. 753; Brakefield v. Anderson, 87 Tenn. 206, 10 S. W. 360; Sarwell v. Sowles, 72 Vt. 270, 48 Atl. 11, 82 Am. St. Rep. 943. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 144; Cent. Dig. § 851.

96 Wells v. Monihan, 129 N. Y. 161, 29 N. E. 232; McClure v. Otrich, 118 111. 320, 8 N. E. 784; Cosand v. Bunker, 2 S. D. 294, 50 N. W. 84; Espalla v. Wilson, 86 Ala. 487, 5 South. 867; Cozart v. Land Co., 113 N. C. 294, 18 S. E. 337; Hamill v. Hall, 4 Colo. App. 290, 35 Pac. 927. The statute must be affirmatively pleaded. Birchell v. Neaster, 36 Ohio St. 331; Crane v. Powell, 139 N. Y. 379, 34 N. E. 911; Citty v. Manufacturing Co., 93 Tenn. 276, 24 S. W. 121, 42 Am. St. Rep. 919. But some courts hold that it may be raised

Conflict Of Laws

By the rules of private international law the validity of a contract, so. far as regards its formation, is determined by the lex loci contractus; but the procedure, including the proof, in an action on a contract is governed by the lex fori. In a leading English case, in which action was brought in England on a verbal contract made in France, and which was valid and enforceable by the French law, it was held that, as the statute of frauds did not go to the existence of the contract, but affected the procedure only, and prevented proof, the statute of frauds governed the case, and prevented a recovery.97 This case has been followed by the courts of some of our states, and has been approved by the federal supreme court.88 The courts of many other states, however, have held the contrary, and will enforce a contract so long as it is not within the statute of frauds of the state in which it was made, and, on the other hand, will refuse to enforce a contract which is not within their own statute, but is within the statute of the state in which it was made.98

52. IN GENERAL. The seventeenth section of the English statute, which has been substantially followed in most of the states, enacts that "no contract for the sale of any goods, wares or merchandises, for the price of 10 sterling, or upwards, shall be allowed to be good, except under a general denial. Fountaine v. Bush, 40 Minn. 141, 46 N. W. 465, 12 Am. St Rep. 722; Hurt v. Ford, 142 Mo. 283, 44 S. W. 228, 41 L. R. A. 323; Barrett v. McAllister, 33 W. Va. 738, 11 S. E. 220. If the answer admits the contract, the statute must be pleaded. Iverson v. Cirkel, 56 Minn. 299, 57 N. W. 800; Barrett v. McAllister, supra. See "Frauds, Statute of," Dec. Din. (Key-No.) § 144; Cent. Dig. § 351.

97 Leroux v. Brown, 12 C. B. 801. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 120; Cent. Dig. § 26S.

98 Downer v. Chesebrough, 36 Conn. 39, 4 Am. Rep. 29; Hunt v. Jones, 12 R. I. 265, 34 Am. Rep. 635; Pritchard v. Norton, 106 U. S. 134, 1 Sup. Ct. 102, 27 L. Ed. 104; Heaton v. Eldridge, 56 Ohio St. 87, 46 N. E. 638, 36 L. R. A. 817, 60 Am. St. Rep. 737; Buhl v. Stephens (C. C.) 84 Fed. 922. Bee "Frauds, Statute of," Dec. Dig. (Key-No.) § 120; Cent. Dig. § 268.

99 Dacosta v. Davis, 24 N. J. Law, 319; Cochran v. Ward, 5 Ind. App. 89, 29 N. E. 79.1, 31 N. E. 581, 51 Am. St Rep. 229; Denny v. Williams, 5 Allen (Mass.) 1; Allshouse v. Ramsay, 6 Whart. (Pa.) 331, 37 Am. Dec. 417; Hough-taling v. Ball, 20 Mo. 563; Low v. Andrews, 1 Story, 38, Fed. Cas. No. 8,559; Miller v. Wilson, 146 111. 523, 34 N. E. 1111, 37 Am. St. Rep. 186. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 120; Cent. Dig. % 268.

(a) "The buyer shall accept part of the goods so sold, and actually receive the same,

(b) "Or give something in earnest to bind the bargain, or in part payment,

(c) "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."

53. EXECUTORY SALE. The section applies to executory contracts to sell as well as to executed contracts of sale.

54. WORK AND LABOR. It does not apply to contracts for work, labor, and materials, but a contract is not deemed to be one for work, labor, and materials,

(a) In England and some states, where it contemplates the ultimate transfer of the property in a chattel for a price, although the chattel is to be made.

(b) In most jurisdictions, where the chattel, although to be made, is one which the seller ordinarily makes and sells in the course of his business. It is otherwise if it is one which must be specially manufactured.

(c) In New York and some other states, where the chattel is in existence, although the seller is to adapt it to the use of the buyer.