§ 1433. In the next place, the Statute of Frauds may be pleaded in defence of a contract not made in compliance with its requisitions.1 And if money be paid or an article be delivered by a party to an agreement, invalid by the Statute of Frauds, and which the other party refuses to perform, an action lies for money had and received, or for the return of the article.2
§ 1434. The two sections which particularly apply to contracts are the fourth and seventeenth. The fourth section enacts that no action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate; or to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person; or to charge any person upon any agreement made in consideration of marriage; or upon any contract for the sale of lands, tenements, and hereditaments, or any interest in or concerning them, or upon any agreement which is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action should be brought, or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.
1 If one part of an entire contract be void under the Statute of Frauds, the whole is void. Irvine v. Stone, 6 Cush. 508; Van Alstine v. Wimple, 5 Cow. 162; Vow v. Way, 64 Barb. 255 (1865); Scott v. Bush, 26 Mich. 418 (1873).
2 Cook v. Doggett, 2 Allen, 439; Basford v. Pearson, 9 Ib. 387; Gillet v. Maynard, 5 Johns. 85; Sherburne v. Fuller, 5 Mass. 133; Lane v. Shackford, 5 N. H. 130; Holbrook v. Armstrong, 1 Fairf. 31; Kidder v. Hunt, 1 Pick. 328, 331; Shute v. Dorr, 5 Wend. 204; King v. Brown, 2 Hill, 485, 487; Williams v. Bemis, 108 Mass. 91 (1871); Galvin v. Prentice, 45 N. Y. 162 (1871); Clements v. Marston, 52 N. H. 31, 39 (1872); Scott v. Bush, 26 Mich. 418 (1873).
§ 1435. This section has given rise to many questions in respect to guarantors, executors, auctioneers, trustees, agents, which have already been considered under these proper heads in various parts of this treatise; but it may be well here briefly to recapitulate some of the principal rules which have been laid down.
§ 1436. The first clause relating to the special promise of an executor or administrator to answer damages out of his own estate has been held not to apply to cases where a bond has been given to the judge of probate to pay the debts and legacies of the testator; for such a bond in itself is an admission of sufficient assets, which the executor is estopped to deny.1
§ 1437. The clause relating to the "debt, default, or miscarriage of another person," refers not only to promises to answer for the debt, default, or miscarriage of another person arising out of his contract, but also to such as arise from his tort.2 It applies only to collateral engagements of guaranty or suretyship, where the liability of the guarantor is conditional and depends upon the default of the party originally liable.3 Thus, if goods are sold and delivered to A. on B.'s cotemporaneous promise to pay for them, if any credit is given to A., either alone or jointly with B., the promise of the latter is only collateral and must be in writing.4 If it be a principal liability the statute does not apply, and in the absence of evidence showing distinctly that the promise is collateral, it will be treated as original.1 So, also, the statute does not apply to cases where the liability to pay the debt of another arises by operation of law and not of special contract, - as if a person be made a trustee to pay over to a third person a proportion of certain funds given to him for such purpose.2 So the statute does not apply to a promise made directly to the debtor to pay his debt to some third person, since it is not in such case a promise to pay the debt of another, but to pay the promisee's own debt.3 So, where the incidental effect of the promise is to pay the debt of another; yet if the leading object of the special promisor be to subserve some purpose of his own, as where he takes property from the debtor as the consideration of his promise,4 it is not within the statute.5 Where, therefore, one of several joint to use land for a time to store goods or stock upon, or to shoot over, or perhaps to cut trees on,1 though it does apply to all easements to pass over land, because the easement is merely incidental to the main contract.2 Contracts relating to stock of a corporation are not within the clause, even where the corporation holds only real estate, and derives its profits therefrom; such stocks being considered as personal property, the income only of which is divisible among the stockholders; but if the land be vested in the individual stockholders, the rule would be different.3 An oral promise to make a will of all the testator's property, real and personal, in favor of a person who in consideration thereof agrees to make a similar will in favor of the first testator, and makes one accordingly, is a contract for the sale of lands within the statute.4 And a contract for an exchange of lands is as much within the statute as a sale.5
1 Stebbins v. Smith, 4 Pick. 99; Jones v. Richardson, 5 Met. 247; Col-well v. Alger, 5 Gray, 67.
2 Kirkkam v. Marter, 2 B. & Al. 613; Buckmyr v. Daroall, 2 Lord Raym. 1085; Green v. Cresswell, 10 Ad. & El. 453; Howe v. Walker, 4 Gray, 318.
3 Peckham v. Faria, 3 Doug. 13; Matson v. Wharam, 2 T. R. 80; Austen v. Baker, 12 Mod. 250; Cahill v. Bigelow, 18 Pick. 369. See ante, §1115, and cases cited; Johnson v. Gilbert, 4 Hill, 178.
4 Swift v. Pierce, 13 Allen, 138 (1866).
1 Beaman v. Russell, 20 Vt. 205; Eastwood v. Kenyon, 11 Ad. & El. 438.
2 Bradley v. Field, 3 Wend. 272; Williams v. Leper, 3 Burr. 1886; Nelson v. Boynton, 3 Met. 396; Edwards v. Kelly, 6 M. & S. 204. An oral promise to pay the debt of another in consideration of funds placed or to be placed in the hands of the promisor is good, but not if the only consideration is a forbearance of the creditor to sue the debtor. Stewart v. Campbell, 58 Me. 439 (1870).