51 Waite v. McKelvy, 71 Minn. 197, 73 N. W. 727; Ely v. Ormsby, 12 Barb. 670. See also Winner v. Williams, 62 Mich. 363, 28 N. W. 904. Here also it should be noticed that both the Minnesota and the New York statute use the word "void," and though the New York court does not apparently regard this as affecting the construction of the statute, the Minnesota court does. See notes to the following sec tion.
52Cowan v. Adams, 1 Fairf. 374, 26 Am. Dec. 242; Sherron v. Humphreys, 2 Green (N. J. L.), 217. So in Godden v. Pieraon, 42 Ala. 370, the court held that one who had been gamisheed might show as a defence that though he was indebted to the principal defendant at the time of service of process, he had subsequently satisfied the debt by performing a previously existing contract with a third person, even though this contract was oral and within the statute.
a Federal statute allowing compensation to loyal owners of property captured or destroyed during the Civil War, the Supreme Court of the United States had to consider the question whether the buyer of cotton, under a sale in which the statute had not been satisfied, could be regarded as owner, and the court held that he could not.53 The court cites no authorities in support of this statement, however; and a later decision by the same court, involving almost precisely the same question, expressed a contrary view without citing the earlier case.54
Sec. 8S1. Effect of the word " void " or a similar word in statutes. How far the use of the word "void" in the statute54a should be held to require a difference in construction is a question upon which authority is not wholly consistent. It may be questioned whether statutes containing this word were intended to vary the meaning of the English statute which forms the original basis of all of them, and it may fairly be argued that the word "void" shoud be given the meaning of "voidable," at the election of the other party. The decisions of some courts, at least, warrant such a construction.55
53 Mohan v. United States, 16 Wall. 143, 21 L. Ed. 307. Miller, J., delivering the opinion of the court, said (p. 147): "To hold that an agreement which that statute declares shall not be allowed to be good and valid was sufficient to transfer the title of the property to the claimant would be to overrule the uniform construction of this or a similar clause in all Statutes of Frauds by all the courts which have construed them."
54 BriggB v. United States, 143 U. S. 346,12 S. Ct. 391, 36 L. Ed. 180. The court there said: "There was no creditor or purchaser who could question the transfer of title to the vendee. The government stood in no such relation and could raise no such objection. It has no pre-existing demand or equity against the property. All the rights of the government resulted from capture."
54a See supra, Sec. 526.
55In Crane v. Powell, 139 N. Y. 379, 384, 34 N. E. 911, the court said, speaking of the statute: "It simply requires that certain agreements must be proved by writing. It introduced a new rule of evidence in certain cases without condemning as illegal any contract that, was legal before." The court here does not seem to distinguish the construction to be given the New York statute from that given the English statute. In Riley v. Bancroft's Est., 51 Neb. 864, 868, 71 N. W. 746, the court said: "While the statute declares that sales not conforming to its requirements shall be void, it is a truism that they are not void, but voidable. Such is the construction that all courts have placed upon the statute. Indeed the requirements of the statute are in a certain sense merely requirements of certain modes of proof and not requirements of inherent elements in the contract." In Doney v.
Other courts, however, construe the word more literally without considering its history.56
Laughlin, 50 Ind. App. 38, 42, 46, 47, the court said: "It has been held that the words 'void' and 'invalid,' when used in regard to contracts not immoral nor against public policy, usually mean voidable at the option of one of the parties, or some one legally interested therein, and that such construction leads to fewer errors than that which ascribes to those words the meaning of absolute nullity for any and all purposes. State v. Richmond, 26 N. H. 232; Mutual Benefit Life Ins. Co. v. Winne, 20 Mont. 20,49 Pac. 440; Pear-soil v. Chapin, 44 Pa. 9; Ewdl v. Daggs, 108 U. 8. 143, 2 8. Ct. 408, 27 L. Ed. 682; Kearney v. Vaughan, 50 Mo. 284." Bee also Wills v. Ross, 77 Ind. 1. Such was the construction put upon the word "void" in the Sales in Bulk Act in Dickinson v. Harbison, 78 N. J. L. 97, 72 Atl. 941.
56In Laun v. Pacific Mut. L. Ins. Co., 131 Wis. 555, 660, 111 N. W. 660, however, the court said: "Where the contract is declared void by statute, and the statute is within the power of the legislature to enact, there is not much room for discussion, although even then the whole purview of the statute may indicate that the word 'void' is used in the sense of 'voidable.'" In Pierce v. Clarke, 71 Minn. 114, 73 N. W. 522, in construing the Minnesots staute which contains the word void, the court went farther and declared a contract within the statute "absolutely void," and overruled a statement in Hagelin v. Wacks, 61 Minn. 214, 216, 63 N. W. 624, Out such a contract was merely not enforceable by action. See also Prest wood v. Carlton, 162 Ala. 327, 50 So. 254; Scott v. Bush, 26 Mich. 418, 12 Am. Rep. 311; Barton v. Gray, 57 Mich. 622, 24 N. W. 638; Waite v. McKelvy, 71 Minn. 167, 73 N. W. 727;
Marie v. Garrison, 13 Abb. N. C. 210, 257, 259; Brandeis v. Neustadtl, 13 Wis. 142. In Ex parte Banks, 185 Ala. 275, 64 So. 74, the court said in the most emphatic way that a contract within the statute was "absolutely void," not voidable, but "a nullity" and yet said that unless the defense was taken by plea or demurrer, it was waived, and held that third persons could not take advantage of the failure to satisfy the statute. As the Alabama court seems to mean by "absolutely void" what other courts mean by voidable, it is unfortunate to create confusion by a difference in terminology. In California, the statute declares oral agreements within its scope "invalid." Such agreements are held enforceable unless the defence is asserted.
In Townsend v. Hargraves, 118 Mass. 325, the Supreme Court of Massachusetts, in construing the section of the local statute relating to the sale of goods in which the words employed were, "shall be good and valid," said: "It is true there is a difference in phraseology in these sections; but in view of the policy of the enactment, and the necessity of giving consistency to all its parts this difference cannot be held to change the force and effect of the two sections. , . . The validity intended is that which will support an action on the contract. ... In carrying out its purpose, the statute only affects the modes of proof as to all contracts within it." So in Bird v. Munroe, 66 Mo. 337, 22 Am. Rep. 571, the court disclaimed any distinction between the words in different sections of the statute: no contract "shall be valid," and "no action shall be maintained " on certain contracts. In Jones v. Pettigrew, 25 S. Dak. 432, 127