As most provisions of the Statutes of Frauds prevailing in different States of the Union are identical in the several jurisdictions, questions of the conflict of laws arise less frequently on most clauses of the statute than otherwise might be the case; but the fact that a large number of States have no provision corresponding to the seventeenth section of the English Statute of Frauds makes it peculiarly easy for questions to arise in the sale of goods involving the conflict of laws. It was decided in England in the often-cited case of Leroux v. Brown 38
34Cuff v. Penn, 1 M. & S. 21.
35 Stead v. Dawber, 10 A. & E. 57, and Marshall p. Lynn, 6 M. & W. 109.
36 Bee infra, Sec. 1843.
37 Browne, Statute of frauds, Sec. 424. See also Smith v. Loomis, 74 Me. 503; McDonald v. Union Hay Co. (Minn.), 172 N. W. 891; Lee v. Hawks, 68 Miss. 669, 9 So. 828. Compare Wiessner v. Ayer, 178 Mam. 425, 57 N. E. 672; Rosenfeld v. Standard Bottling & Extracts Co. (Mass.), 122 N. E. 299. In Nebraska it seems to be held that the agreement as orally varied is valid if there is consideration for the variation. Bowman v. Wright, 65 Neb. 661, 91 N. W. 580; Lincoln Realty Co. v. Garden City Land Co., 94 Neb. 346, 143 N. W. 230; but the requirement of a writing is independent of and additional to the requirement of consideration.
38 12 B. 801.
that an oral contract not to be performed within a year, which was made in France, and not required to be in writing by the law of that country, could not be enforced in England. The court took a distinction between the wording of the fourth section of the English statute which was the section involved and the wording of the seventeenth section. The fourth section provides that "no action shall be brought" unless there is a writing. The seventeenth section provides that no contract which does not satisfy the statute "shall be allowed to be good." The words of the fourth section, the court held, indicated that the statute related to the remedy, and, therefore, the plaintiff could not maintain his action. There are dicta in the case that the seventeenth section relates to the substance of the contract, not to the remedy, and that, therefore, in sales of personal properly the statute in force where the contract was made would govern the case. In the United States in contracts for the sale of goods, these dicta have been followed.39
The distinction taken in the English case between the fourth and the seventeenth sections seems to have very little basis, and under other sections of the statute than that which relates to sales of goods, there are decisions in which the lex loci contractus has been held, applicable.40 But other decisions, likewise involving clauses other than that relating to the sale of goods, regard the statute as imposing a rule of local procedure and apply the lex fori.41 Still another view has not infrequently been taken in regard to contracts for the sale of an interest in land, the statute in force in the place where the land is situated being held to control the case42 The statute in force in the place of performance has not generally been thought material, and in the few cases where it has been so held, that law was also the law of the forum.43 Finally it has been suggested that the intent of the parties as to the jurisdiction to govern the transaction is the determining factor.44 In view of the rule generally recognized that the Statute of Frauds establishes a rule of procedure or of evidence and that a failure to comply with its provisions makes a contract unenforceable only,45 it is difficult to see how it can fairly be said that the satisfaction of the statute relates to the substance of the contract rather than to the remedy upon it. The distinction suggested by the English court between the words "no action shall be brought" and "no contract shall be allowed to be good," has not been generally adopted in other cases than those involving the conflict of laws, and the distinction seems an undesirable refinement. In the United States where the precise words of both sections have frequently been changed and the changes have not generally been regarded as requiring a construction different from that of the English prototype, the distinction is not only oversubtle but is unimportant. It must be admitted, however, that though decisions applying the lex loci contractus may be difficult to justify in theory, they produce a satisfactory result. Parties to a contract or sale naturally observe the formalities requisite to make it enforceable in the place where they are contracting. They may fairly be held to that standard of care; and on the other hand it is undeniably a practical injustice to deprive the plaintiff of a remedy if the defendant moves from a State where the bargain was made and where no Statute of Frauds was in force, to a State where a Statute of Frauds is in force
39Allen v. Schuchardt, 1 Fed. Cas. No. 236; Low v. Andrews, 1 Story, 38; Denny v. Williams, 5 Allen, 1; Kling v. Fries, 33 Mich. 275; Houghtling v. Ball, 19 Mo. 84, 59 Am. Dec. 331, 20 Mo. 563; Daoosta v. Davis, 4 Zab. 319; Hunt v. Jones, 12 R. I. 265, 34 Am. Rep. 635; Canale v. Pauly & Pauly Cheese Co., 155 Wis. 541, 145 N. W. 372; Green v. Lewis, 26 U. C. Q. B. 618.
40 Miller v. Wilson, 146 111. 523, 34 N. E. 1111, 37 Am. St. Rep. 186 (con-tract for sale of land); Raphael v. Hartman, 87 111. App, 634 (contract not to be performed within a year); Cochran v. Ward, 5 Ind. App. 88, 97, 29 N. E. 796, 31 N. E. 581, 41 Am. St. Rep. 229, 235 (contract for sale of land): Stout v. Ennis, 28 Kan. 706, 713
(contract not to be performed within a year); Madry v. Young, 3 La. 160 (contract for sale of slaves); Fox v. Matthews, 33 Miss. 433 (contract for sale of slaves); Abell v. Douglass, 4 Den. 305 (contract for sale of land situated in the State where the contract was made); Goldstein v. Scott, 76 N. Y. App. Div. 78,78 N. Y. S.736 (contract of real estate agent for commission); Daniels p. Rogers, 108 N. Y. App. D. 338, 96 N. Y. S. 642 (contract for sale of land); Allshouse v. Ramsay, 6 Whart. 331, 37 Am. Dec. 417 (guaranty); Callaway v. Prettyman, 218 Pa. 293, 67 Atl. 418 (authority to sell real estate); Anderson v. May, 10 Heisk. 84 (lease of land situated in the State where the contract was made).
41 Obear v. Pint Nat. Bank, 97 Ga. 587, 25 8. E. 335, 33 L. R. A. 384 (promise to pay a barred debt); Barbour v. Campbell, 101 Kans. 616, 168 Pac 879; Emery v. Burbank, 163 Mass. 326, 39 N. E. 1028, 28 L. R, A. 57, 47 Am. St. Rep. 466 (promise by Massachusetts testator to make a will); Third Natl. Bank v. Steel, 129 Mich. 434, 88 N. W. 1060, 84 L. R. A. 119 (representation as to credit); Heaton v. Eldridge, 66 Ohio St. 87, 46 N. E. 638, 36 L. R. A. 817, 60 Am. St. Rep. 737 (contract not to be performed within a year).
42 Thomas J. Baird Inv. Co. v. Harris, 209 Fed. 291, 126 C. C. A. 217; Wolf v. Burke, 18 Colo. 264, 32 Pac. 427, 19 L. R. A. 792; Miller v. Wilson, 146 111. 623, 34 N. E. 1111, 37 Am. St.
Rep. 186; Cochran v. Word, 5 Ind. App. 89, 31 N. E. 681, 51 Am. St. Rep. 229, 235; Anderson v. May, 10 Heisk. 84; Dal v. Fischer, 20 S. Dak. 426, 107 N. W. 634. In several of these cases the sites of the real estate was in the same jurisdiction where the contract Was made.
43Young v. Pearson, 1 Cal. 448 (contract of partnership); Davenport v. Karnes, 70 111. 465 (antenuptial agreement); Turnow v. Hochstadter, 7 Hun, 80 (con tract not to be performed within a year).
44 Wilson v. Lewiston Mill Co., 150 N. Y. 314, 44 N. E. 959, 55 Am. St. Rep. 680. See comments on this case in -Goldstein v. Scott, 76 N. Y. App. Div.78,78N.Y.8.736.
45 See supra, Sec. 71,72.