The fourth section of the statute of frauds provides that no action shall be brought upon contracts of the classes therein enumerated unless the agreement or some note or memorandum thereof shall be in writing and signed by the party to be charged therewith or by some other person thereunto by him lawfully authorized. The seventeenth section has a similar provision, coupled with alternative provisions to be discussed hereafter.1 We will first consider the form and nature of the memorandum required by the fourth and the seventeenth sections. It is clear that the statute does not require the contract to be in writing. It is sufficient if any note or memorandum thereof is in writing in the form specified.2 The note or memorandum need not be made at the time that the oral contract is entered into. It may be made before the contract is entered into. Thus a written offer signed by the party to be charged, setting out the terms of the contract and subsequently accepted orally by the adversary party is a sufficient memorandum.3

5 Greenwood v. Law, 55 N. J. L. 168; 19 L. R. A. 688; 26 Atl. 134.

6 Gooch v. Holmes, 41 Me. 523; Baldwin v. Williams, 3 Met. (Mass.) 365.

7 North v. Forest, 15 Conn. 400; Mann v. Bishop, 136 Mass. 495.

8 French v. Schoonmaker, 69 N. J. L. 6; 54 Atl. 225.

9 Colton v. Raymond, 114 Fed. 863; 52 C. C. A. 382.

10 Walker v. Bamberger, 17 Utah 239; 54 Pac. 108.

11 Tompkins v. Sheehan, 158 N. Y. 617; 53 N. E. 502.

12 Smith v. Bouck. 33 Wis. 19.

13 Cook v. Electric Co., 118 Fed. 45; Somerby v. Buntin, 118 Mass. 279; 19 Am. Rep. 459.

14Bullard v. Smith, 139 Mass. 492: 2 X. E. 86. 1 See Sec. 705 et seq.

It may be made subsequently up to the time that the action is brought.4 Thus letters written after the contract is made,5 even though at a long interval of time,6 or even after the breach of the contract if before suit thereon,7 may be such memoranda as will satisfy the statute. A memorandum is said, however, not to have a retroactive effect as far as the rights of third persons are concerned.8 A subsequent reduction to writing of an oral contract in consideration of marriage has been held invalid.9

2 Ingraham v. Strong, 41 111. App. 46. "The memorandum and the contract or agreement are not to be confounded as one and the same thing. The memorandum is understood to be a note or minute, informally made, of the agreement which may have but a verbal existence expressing briefly the essential terms and never intended to stand as and for the agreement itself." Catterlin v. Bush, 39 Or. 496, 501; 65 Pac. 1064; 59 Pac. 706.

3 Bibb v. Allen, 149 U. S. 481; Brewer v. Horst-Lachmund Co., 127 Cal. 643; 50 L. R. A. 240; 60 Pac. 418; Western Union Telegraph Co. v. R. R., 86 111. 246; 29 Am. Rep. 28; Austin v. Davis, 128 Ind. 472; 25 Am. St. Rep. 456; 12 L. R. A. 120; 26 N. E. 890; Williams v. Smith, 161 Mass. 248; 37 N. E. 455; Sanborn v. Flagler, 9 All. (Mass.) 474; Hickey v. Dole, 66 N. H. 336; 49 Am. St. Rep. 614; 29 Atl. 792; Thayer v. Luce, 22 O. S. 62.

4Dominick V. Randolph, 124 Ala. 557; 27 So. 481; Lamkin v. Mfg. Co., 72 Conn. 57; 44 L. R. A. 786; 43 Atl. 593. 1042; Whiton v. Whit-on. 179 111. 32; 53 X. E. 722; affirming 76 111. App. 553; Miller v. R. R., 58 Kan. 189; 48 Pac. 853; Tyler v. Onzts, 93 Ky. 331; 20 S. W. 256; Bird v. Munroe, 66 Me. 337; 22 Am. Rep. 571; McManus v. Boston, 171 Mass. 152; 50 N. E. 607; Mer-son v. Merson, 101 Mich. 55; 59 N. W. 441; Sheehy v. Fulton, 38 Neb. 691; 41 Am. St. Rep. 767; 57 N. W. 395; Gardels v. Kloke, 36 Neb. 493; 54 N. W. 834; Curtis v. Portsmouth, 67 N. H. 506; 39 Atl. 439; Argus Co. v. Albany, 55 N. Y. 495; 14 Am. Rep. 296; Townsend v. Kennedy, 6 S. D. 47; 60 N. W. 164; Ide v. Stanton, 15 Vt. 685; 40 Am. Dec. 698; Newport News, etc., Co. v. Ry. Co., 97 Va. 19; 32 S. E. 789; Prig-non v. Daussat, 4 Wash. 199; 31 Am. St. Rep. 914; 29 Pac. 1046.

5Bayne v. Wiggins, 139 U. S. 210; Pitcher v. Lowe, 95 Ga. 423; 22 S. E. 678; Lyons v. Wait, 51 N. J. Eq. 60; sub nom., Lyons v. Pyatt, 26 Atl. 334; Townsend v. Kennedy, 6 S. D. 47; 60 N. W. 164; Ide v. Stanton, 15 Vt. 685; 40 Am. Dec. 698.

6 Lee v. Butler, 167 Mass. 426; 57 Am. St. Rep. 466; 46 N. E. 52; Newkirk v. Place, 47 N. J. Eq. 477 ; 21 Atl. 124.

A written contract executed after the verbal contract is a sufficient compliance with the statute, even though there is no new consideration for the written contract.10

It has been said that the memorandum must at least be made before action is brought upon the contract and cannot be made afterwards.11 The correctness of this view may be doubted both on principle and on authority. If the statute of frauds is a rule of evidence there seems no good reason why the evidence should be limited to that in existence at the time of commencing the action. Written declarations against the interest of the party making them may be admitted in proper cases, even though made after the action has begun, and there seems to be no good reason why a different rule should obtain in cases controlled by the statute. Accordingly memoranda made after the action has begun have been held sufficient in some jurisdictions to satisfy the statute.12 Thus a sheriff's return made after the jury was impanelled was held sufficient.13 So where the vendor files an answer admitting the oral contract and stating that he is willing to perform it, such answer is a sufficient memorandum.14 However, a pleading which sets up an oral contract but seeks to avoid it because it is oral, is not a memorandum within the meaning of the statute.15

7 Bird v. Munroe, 66 Me. 337; 22 Am. Rep. 571.

8Felthouse v. Bindley, 11 C. B. (N. S.) 869; Bird v. Munroe, 66 Me. 337; 22 Am. Rep. 571; Emery v. Terminal Co., 178 Mass. 172; 86 Am. St. Rep. 473; 59 N. E. 763.

9 McAnnulty v. McAnnulty, 120 111. 26; 60 Am. Rep. 552; 11 N. E. 397.

10 Sheehy v. Fulton, 38 Neb. 691; 41 Am. St. Rep. 767; 57 N. W. 395.

11 Gaines v. McAdam, 79 111. App. 201.

12 Walker v. Walker (Ky.), 55 S. W. 726.

13 Remington v. Linthicum, 14 Pet. (U. S.) 84.

14 Walker v. Walker (Ky.), 55 S. W. 726; and see Sanders v. Bryer, 152 Mass. 141; 9 L. R. A. 255; 25 N. E. 86.

15 Davis v. Ross (Tenn. Ch. App.), 50 S. W. 650.