1 The statute of frauds affects the remedy only and not the validity of the contract, and if there is a completed oral contract of sale of goods, the acceptance and receipt of part of the goods by the purchaser takes the case out of the statute, although such acceptance and receipt are after the rest of the goods are destroyed by fire, while in the hands of the seller or his agent. Townsend v. Hargraves, 118 Mass. 325. - K.

(x) Cahill v. Bigelow, 18 Pick. 369; Bohannon v. Pace, 6 dana, 194.

(y) Ryan v. Tomlinson, 39 CaL 639; Stone v. Dennison, 13 Pick. 1. In this case the plaintiff and defendant had entered into a contract, by virtue of which the plaintiff was to enter into the defendant's service, and continue for several years, at a stipulated rate of compensation. The plaintiff entered into the defendant's service accordingly, and continued for the stipulated time, and the defendant paid him the stipulated compensation. Subsequently this action was brought to recover an additional compensation, upon a quantum meruit. The defendant interposed the executed contract as a defence, and was sustained by the court. Shaw, C. J., said: "The contract has been completely performed on both sides. The defendant is not seeking to enforce this agreement as an executory contract, but simply to show that the plaintiff is not entitled to recover upon a quantum meruit, as upon an implied promise. But the statute does not make such a contract void The provision is, that no action shall be brought, whereby to charge any person upon any agreement which is not to be performed within the space of one year, unless the agreement shall be in writing. The statute of frauds declare the oral contracts which they are intended to prevent, utterly void, the fourth section only provides that no action shall be brought upon the promises, or for the purposes therein enumerated; and the seventeenth, that no contract specified therein shall "be allowed to be good," unless there be earnest, part payment, part delivery and acceptance, or a writing signed. The distinction is sometimes important; nor * is it adequately expressed in the cases which say that these oral contracts embraced within the fourth section, are not void, but voidable, by the statute of frauds. We consider them neither void nor voidable. If they were good at common law, they remain good now, for all purposes but that expressly negatived by the statute; that is, no action can be brought upon them, but in other respects they are valid contracts.(w)1 The nature * or

It should be added that the defence of the statute of frauds can be made only by the parties to the contract, or their privies, (yy)l ute prescribes the species of evidence necessary to enforce the execution of such a contract. Bat where the contract has been in fact performed, the rights, duties, and obligations of the parties resulting from such performance, stand unaffected by the statute. In the case of Boydell v. Drummond, 11 East, 142, a case was put in the argument, of goods sold and delivered at a certain price, by parol, upon a credit of thirteen months. There, as a part of the contract was the payment of the price, which was not to performed within the year, a Question is made, whether, by force of the statute, the purchaser is exempted from the obligation of the agreement, as to the stipulated price, so as to leave it open to the jury to give the value of the goods only, as upon an implied contract ' In that case, said Lord Ellenborough, 'the delivery of the goods, which is supposed to be made within the year, would be a complete execution of the contract, on the one part; and the question of consideration only* would be reserved to a future period. If a performance upon one side would avoid the operation of the statute, a fortiori would the entire and complete performance on both sides have that effect. Take the common case of a laborer, entering into a contract with his employer, towards the close of a year, for another year's service, upon certain stipulated terms. Should either party refuse to perform, the statute would prevent either party from bringing any action whereby to charge the other upon such contract. But it would be a very different question, were the contract fulfilled upon both sides, by the performance of the services on the one part, and the payment of money on account, from time to time, on the other, equal to the amount of the stipulated wages. In case of the rise of wages within the year, and the consequent increased value of the services, could the laborer bring a quantum meruit and recover more, or, in case of the fall of labor and the diminished value of the services, could the employer brine money had and received, and recover hack part of the money advanced, on the ground, that by the statute of frauds the original contract could not have been enforced ? Such, we think, is not the true construction of the statute. We are of opinion, that it has no application to executed contracts, and that the evidence of this contract was rightly admitted." And see ante, p. *39.

(yy) Chicago Dock Co. v. Kinzie, 49 111. 289.

1 A pleading setting up a contract required by the statute of frauds to be in writing, is good though it is not expressly alleged that the contract or a memorandum of it was written. Piedmont, etc. Co. v. Piedmont, etc. Co. 11 Southern Rep. 332 (Ala. 1892); Hnrlburt v. W. & W. Mfg. Co. 38 Ark. 594; Barnard v. Lloyd, 85 Cal. 131; Tucker v. Edwards. 7 Col. 209; Garbanati v. Fassbinder, 15 Col. 535; Piercyr. Adams, 22 Ga. 109; Bowman v. Ainslie, 1 Idaho, 644; Porter v. Drennan, 13 111. App. 362; Ecker v. Bohn, 45 Md 278; Mullaly v. Holden, 123 Mass. 583; Harris. etc. Co. v. Fisher, 81 Mich. 136; Benton v. Schuite, 31 Minn. 312; Sharkey v. McDermott, 91 Mo. 647; 8weetland v. Barrett, 4 Mont. 217; Walker v. Richards, 39 N. H. 259; Wells v, Moni-han, 129 N. Y. 161; Lough ran v. Giles, 110 N. C. 423; Cranston v. Smith, 6 R. I. 231; Grace v. Jenkins, 28 S. C 172; Carroway v. Anderson, 1 Humph 61; Horm v. Sham-blin, 57 Tex. 243. In a few States owing to peculiar statutory provisions the rule is otherwise. Pulse v. Miller, 81 Ind. 190; Burden v. Knight, 82 la. 584.