This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
At Common Law there were no specific requirements as to the outward form of a new promise or acknowledgment. If the new promise or acknowledgment possessed the requisite essential elements, it was sufficient, even though made orally. The feeling that on the one hand a chance was given for fraud and perjury, and on the other that the courts were beginning to ignore the plain requirements of the statute by treating many cases as exceptions to the statute, whirb were in fact within its plain terms, led to the passage in England of a statute known as Lord Tenterden's act.1 This statute has, with some modifications, been copied in many states of our Union. Under such statutes the new promise or acknowledgment must be in writing, in order to waive the bar of the statute, or to extend the period for which the statute was to run. Many of the statutes further provide that such promise or acknowledgment must be signed by the party to be charged therewith. Under such statute an oral promise or acknowledgment has no validity.2 So an oral promise cannot be considered in connection "with a writing which fails to show an express promise, to supplement the deficiencies of the writing.3 Since an express oral contract is invalid, an estoppel in pais is without effect as against such statutory provision.4 Under a statute providing that a mortgage can be renewed or extended only by a writing executed with the formalities of a deed, a written acknowledgment of the debt not executed with the formalities of a deed is insufficient to extend the lien of a mortgage5 or of a deed of trust.6 So a note which recites that it "shall be held good on or by the same mortgage that was given" to secure an earlier note does not renew or extend the original mortgage.7 Under a statute requiring a new promise to be in writing, a new promise which refers to a specific debt is sufficient even if extrinsic evidence is necessary to identify the debt.8 So it is admissible to show under a promise to "attend to yours in a short time," referring to a debt, that only one debt was owing or claimed to be due between the parties.9 Such a statute applies to debts which were created before the passage of such a statute,10 but it does not apply to oral promises made before the passage of the statute,11 nor to the extension of a mortgage by renewal of the debt made before the statute was passed,12 nor where the statute applies to part payments does it apply to part payments made before the statute was passed.13 Such a statute does not apply to' a promise upon a new and distinct consideration to pay a debt barred by limitations.14
1 McBrayer v. Mills, 62 S. C. 36; 39 S. E. 788.
2 Investment Securities Co. v. Bergthold, 60 Kan. 813; 58 Pac. 469.
1 9 Geo. IV., C. 14, Sec. 1. " Courts, by their decisions as to the effect of loose and unsatisfactory oral admissions and new promises, had almost 161 frittered away the statute of limitations, and to remedy this, statutes similar to the one in force in this state have been quite generally enacted." Barlow v. Barner, 1 Dill. (U. S.) 418, 419; quoted in Fort Scott v. Hickman, 112 U. S. 150, 164.
2 Morehouse v. Morehouse (Cal.), 69 Pac. 625; Hughes v. Treadway, 116 Ga. 663; 42 S. E. 1035; Adams v. Mills, 49 La. Ann. 775; 22 So. 257; King v. Davis, 168 Mass. 133; 46 N. E. 418; Shapley v. Abbott, 42 N. Y. 443; 1 Am. Rep. 548; White-hill v. Lowe, 10 Utah 419; 37 Pae. 589.
3 Johnston v. Hussey, 92 Me. 92; 42 Atl. 312.
4 Shapley v. Abbott, 42 N. Y. 443; 1 Am. Rep. 548.
5 Moulton v. Williams, 6 Ida. 424; 55 Pac. 1019.
6 Union, etc., Bank v. Smith, 107 Tenn. 476; 64 S. W. 756.
7 Randolph v. Thomas, 107 Tenn. 132; 64 S. W. 5.
8 First National Bank v. Woodman, 93 la. 668; 57 Am. St. Rep. 287; 62 N. W. 28; Miller v. Beard-sley, 81 la. 720; 45 N. W. 756; Stout v. Marshall, 75 la. 498; 39 N. W. 808; Russell v. Davis, 51 Minn. 482; 53 N. W. 766; Hill v. Hill, 51 S. C. 134; 28 S. E. 309.
9 Woodbridge v. Allen, 12 Met. (Mass.) 470.
10 Esselstyn v. Weeks, 12 N. Y. 635.
11 Vinson v. Palmer, - Fla. -: 34 So. 276.
12 Wilson v. Pickering, 28 Mont. 435; 72 Pac. 821.