As has been seen l a contract in writing was classed by the common law with parol contracts and had no added validity on account of the writing. Writing was indeed from the very nature of the case, necessary to formal contracts, but was not the particular formality which gave force to the contracts. The importance of written evidence to secure defendants against unfounded and fraudulent claims became early obvious, and in the reign of Charles II. the well known Statute of Frauds 2 was enacted.
Most of the sections of this statute which relate to the necessity of written memoranda for contracts have been re-enacted in the United States. So far as this is not true attention will be called to the fact in connection with specific sections of the statute. When the promisor has the option of either of two alternatives, one within and one without the statute, his promise is wholly unenforceable because it is said the enforceability of the alternative within the statute would operate as pressure upon the promisor to perform the other alternative.3 This seems clear where the permissible alternative is for the payment of liquidated damages, for there the parties intend a single primary obligation and that within the statute;4 but not so clear where a real option is intended to be given.5 The rule seems to bold good, however, even in the latter case.6
1 See supra, Sec. 107.
2 29 Car. II, Cap. 3.
3 Quirk v. Bank of Commerce, 244 Fed. 682, 687, 157 C. C. A. 130; Howard v. Brower, 37 Ohio St. 402;
Wolfskill v. Wells, 164 Mo. App. 302, 134 S. W. 51; Andrews v. Broughton, 78 Mo. App. 179; Patterson v. Cunningham, 12 Me. 506; Mather v. Scoles, 35 Ind. 1.