The provisions of the fourth and seventeenth sections of the Statute of Frauds, 29 Car. II. c. 3, which with various modifications have been generally adopted in America, are familiar.1 To what contracts the statute applies is a question beyond the scope of this treatise.2 As to the effect of non-compliance with its provisions, there is a divergence of authority, due chiefly, perhaps, to variations in the wording of the statute, but in large measure to difference of interpretation. In some jurisdictions it is held that contracts within the statute are utterly void.1 In a larger number the statute is regarded as enacting a rule of remedial procedure only, and consequently affecting, not the validity, but only the enforceability of contracts to which it applies.2 Where the statute expressly declares that certain contracts, unless they conform to its requirements, shall be void, the first view would seem to be sound. But in jurisdictions in which, following the English model, it is provided that "no action shall be brought whereby to charge" a promisor, or "no contract . . . shall be allowed to be good," the second view is to be preferred. In either view a contract within the statute is unenforceable - the supposed contract right is unavailable. A benefit conferred in misreliance upon such a contract should therefore be restored unless there are special circumstances which justify its retention.3
1 For the provisions of the statute and a concise discussion of its requirements, see Harriman, "Contracts," Sec. Sec. 568, 569, 595-605. 2 See Harriman, "Contracts," Sec. Sec. 570-94.
1 Feeney v. Howard, 1889, 79 Cal. 525; 21 Pac. 984; 4 L. R. A. 826; 12 Am. St. Rep. 162 (but see Nunez v. Morgan, 1888, 77 Cal. 427, 432; 19 Pac. 753); Raub v. Smith, 1886, 61 Mich. 543; 28 N. W. 676; 1 Am. St. Rep. 619; Houghtaling v. Ball, 1855, 20 Mo. 563; Dung p. Parker, 1873, 52 N. Y. 494; Madigan v. Walsh, 1868, 22 Wis. 501. For a collection of statutory provisions and cases, see 29 Am. & Eng. Ency. 814.
2 Leroux v. Brown, 1852, 12 C. B. 801; Britain v. Rossiter, 1879, 11 Q. B. D. 123; Obear v. Bank, 1895, 97 Ga. 587; 25 S. E. 335; 33 L. R. A. 384; Ames v. Ames, 1910, 46 Ind. App. 597; 91 N. E. 509 ; Merchant v. O'Rourke, 1900, 111 la. 351; 82 N. W. 759; Townsend v. Hargraves, 1875, 118 Mass. 325; Philbrook v. Belknap, 1834, 6 Vt. 383. For a collection of statutory provisions and cases, see 29 Am. & Eng. Ency." 814.
The theory of unenforceability is often less accurately expressed by the use of the term "voidable." See, for example, Collins v. Thayer, 1874, 74 111. 138. Again it is frequently said that the statute enacts a rule of evidence. See Maddison v. Alderson, 1883, 8 App. Cas. 467, 488; Townsend v. Hargraves, 1875, 118 Mass. 325; Crane v. Powell, 1893, 139 N. Y. 379; 34 N. E. 911. But the language of the English statute, as well as the rule that the statute must be affirmatively pleaded and the holding that a memorandum made after the commencement of the action will not satisfy the statute, indicate that it is more than a mere rule of evidence. See Williston, " Sales," Sec. 71.
3 In a recent New York case it appeared that the plaintiff had entered into an oral contract under which he had rendered services to the other party, who had died after the plaintiff's action on the contract had been commenced. The plaintiff, as a result of the death of the other