It follows from what has been stated that a contract or sale within the statute is valid except that it cannot be enforced against either party or his successor in interest unless the statute has been satisfied as to him. A third party should not be able to assert the invalidity of such transactions,43 unless he is an assignee or successor to a party to the contract.44 In general the authorities support this view. Therefore, the invalidity under the statute of a lease cannot be shown by one who is not a party to it.45 And in an action for preventing performance of a contract between a third person and the plaintiff, the defense cannot set up that the contract was oral.46
40 See infra, Sec. 1690.
42 See infra, Sec. 1796, ad fin.
43 Green v. Johnson, 1S1 111. App. 63; Schaefer v. Whitham, 146 Ia. 64, 124 N. W. 763; Bauer v. Weber Implement Co., 148 Mo. App. 652,129 S. W. 69; Stitt v. Ward, 143 N. Y. App. Div. 626,127 N. Y. 8.361; Draper v. Wilson, 143 Wis. 610, 128 N. W. 66. In the case last cited the court held that one who claimed hay under an alleged written bill of sale could not set up the Statute of Frauds as a defence to an action of replevin by one who claimed the hay under a subsequent oral agreement with the seller. In Jacob v. Smith, 5 J. J. Marsh. 380, a principal had agreed to sell certain land, if his agent had not "already disposed of it." The agent had previously made an oral bargain for the sale of the land. The principal was held justified in carrying out the agent's contract.
44 See oases cited supra, n. 35.
45 Ex parte Banks, 185 Ala. 275, 64 So. 74.
46 Jackson v. Stanfield, 137 Ind. 692, 36 N. E. 345, 37 N. £. 14, 23 L. It. A. 588; Rice v. Manley, 66 N. Y. 82, 23 Am. Rep. 30. In the former case the court said: "If this be true, it is no concern of the appellees. Partial to contracts and their privies can alone take advantage of the fact that a contract is invalid under the Statute of Frauds. Many forms of expression by this and other courts illustrate the doctrine that a third person cannot make the Statute of Frauds available to overthrow a transaction between other persons; that the defense of this statute is purely a personal one, and cannot be made by strangers. Burrow v. Railroad Co., 107 Ind. 432, 8 N. E.
Again, if insurance is made by a buyer upon property which he has bought by oral purchase, and the statute has been in no way satisfied, the insurance company cannot set up that the insurer had no insurable interest in the property.47 It should also be true that the buyer, in the case of such a sale, should be able to recover against any one who has injured the property. On this point however, most of the decisions seem to be adverse. The buyer has not been allowed to sue a carrier for goods injured in transit when title had passed at common law, but the statute had not been satisfied.48 It has been held in Florida that a buyer could not maintain an action against a third person for detaining property which the buyer had bought, the statute not having been satisfied.49 Other decisions, however, are opposed to this in principle.50
167; Bodkin v. Merit, 102 Ind. 293, 1 N. E. 626; Cool v. Peters Box, etc., Co., 87 Ind. 631; Dixon v. Duke, 86 Ind. 434; Wright v. Jones, 106 Ind. 17,4 N. E. 281; Savage v. Lee, 101 Ind. 615, 8 Am. & Eng. Enc Law, 659, and cases cited. It concerns the remedy alone, and the modern law is well settled that, in the absence of a statutory provision to the contrary, the effect of the statute is not to render the agreement void, but simply to prevent its direct enforcement by the parties, and to refuse damages for its breach. 8 Am. & Eng. Enc Law, 668, 669, and cases cited."
47 Amainck v. American Ins. Co., 129 Man. 186; Wainer v. Milford Mutual F. I. Co., 153 Man. 335, 26 N. E. 877, 11 L. R. A. 598. Cf. Stock-dale P. Dunlop, 6 M. & W. 224, per Parke, B.; Felthouse v. Bindley, 11 C. B. (N. S.) 869, per Willes, J.; Pitney v. Glen Falls Ins. Co., 65 N. Y. 6.
48 Morgan v. Sykes, stated in 3 Q. B. 486; O'Neill v. New York, etc., R. R. Co, 60 N. Y. 138. It should be noticed, however, that the New York statute says that such a transaction shall be "void."
49 Summerall v. Thorns, 3 Fla. 298.
50 Garcia v. United States, 37 Ct. Cl. 243. In Townsend v. Hargraves, 118 Mass. 325, 333, Colt, J., said: "In carrying out its purpose, the statute only affects the modes of proof as to all contracts within it. If a memorandum or proof of any of the alternative requirements peculiar to the seventeenth section be furnished; if acceptance and actual receipt of part be shown; then the oral contract, as proved by the other evidence, is established with all the consequences which the common law attaches to it. If it be a completed contract according to common-law rules, then, as between the parties at least, the property vesta in the purchaser, and a right to the price in the seller, as soon as it is made, subject only to the seller's lien and right of stoppage in transitu. Many points decided in the modern cases support by the strongest implication the construction here given. Thus, if one party has signed the memorandum, the contract can be enforced against him, though not against the other - showing that the promise of the other is not wholly void, because it affords a good and valid consideration to support the promise which by reason of the memorandum may be
Further, though in Minnesota and New York it has been held that a buyer under such a sale cannot maintain an action against an officer who attaches the goods as the property of the seller,51 in opposition to these cases are decisions in Maine and New Jersey, allowing the action against the officer.52 Under enforced. Reuse v. Picksley, L. R, 1 Ex. 243. The memorandum is sufficient if it be only a letter written by the party to his own agent; or an entry or record in his own books; or even if it contain an express repudiation of the contract. And this because it is evidence of, but does not go to make the contract. Gibson v. Holland, L. R. 1 G. P. 1; Buxton v. Rust, L. R. 7 Ex. 1, 279; Allen p. Bennet, 3 Taunt. 169; Tufts v. Plymouth Mining Co., 14 Allen, 407; Argus Co. v. Albany, 66 N. Y. 496. A creditor, receiving payment from his debtor, without any direction as to its application, may apply it to a debt upon which no action can be maintained under the statute. Haynes v. Nice, 100 Mass. 327, 1 Am. Rep. 109. The contract is treated as a subsisting valid contract when it comes in question between other parties for purposes other than a recovery upon it. Hence the statute cannot be used to charge a trustee, who may set up against his debt to the principal defendant a verbal promise within the statute to pay the defendant's debt to another for a greater amount. Ca-hill v. Bigelow, 18 Pick. 369. And a guarantor may recover of his principal a debt paid upon an unwritten guaranty. Beal v. Brown, 13 Men, 114. On the ground that the statute affects the remedy and not the validity of the contract, it has been held that an oral contract, good by the law of the place where made, will not be enforced in the courts of a country where the statute prevails. Leroux v. Brown, 12 C. B. 801. The defendant may always waive its protection, and the court will not interpose the defense. Middlesex Co. v. Osgood, 4 Gray, 447. And, except that the statute provides that no action shall be brought, there would be no good reason to hold that a memorandum signed, or an act of acceptance proved, at any time before the trial, would not be sufficient. Bill v. Bament, 9 M. & W. 36; Tisdale v. Harris, 20 Pick. 9. In a recent case in the Queen's Bench, a memorandum in writing made by the defendant, after the goods had been delivered to a carrier and been totally lost at sea while in his hands, was held sufficient to take the case out of the statute, and no notice is taken of the fact that the goods were not in existence when the memorandum was furnished. Leather Cloth Co. v. Hieronimus, L. R. 10 Q. B. 140."