If, in performing a contract unenforceable because of the Statute of Frauds, one is unconscious of any question as to its enforceability, his performance may properly be said to be in misreliance on the contract (ante, Sec. 10). And the fact that one's ignorance of the unenforceability of his contract is due to his own negligence is generally immaterial (ante, Sec. 15). But if one believes his contract to be unenforceable, or indeed is conscious of a doubt as to its enforceability, he assumes the risk and cannot be said to rely upon the contract (ante, Sec. 16). No case arising out of a contract unenforceable because of the Statute of Frauds has been found in which the denial of relief is placed squarely upon this ground. This is probably due in part to a failure to realize that the obligation to make restitution rests upon the doctrine of misreliance, and in part to the fact that, unless the question of enforceability is a subject of communication between the parties, the state of the plaintiff's mind on the question is difficult of satisfactory proof.
In many cases of misreliance upon a contract unenforceable because of the Statute of Frauds, the mistake is a mistake of law, resulting either from ignorance of the existence of the statute or from a misconception of the extent of its application. As elsewhere appears (ante, Sec. 35), in nearly all jurisdictions money paid under a mistake of law is not recoverable. But the applicability of the rule to these cases appears to have been generally overlooked.1 party to the contract, could not testify as to its terms, and sought to amend his complaint so as to recover in quantum meruit. The motion was denied. Donovan v. Harriman, 1910, 139 App. Div. 586; 124 N. Y. Supp. 194. While the contract in this case was not within the Statute of Frauds it was unenforceable because of a rule of evidence, and it is submitted that the plaintiff was entitled to relief under the doctrine of this chapter.
1 In Thomas v. Brown, 1876, L. R. 1 Q. B. D. 714, the point was made. It was an action to recover a deposit made under contract to buy leasehold. The plaintiff repudiated the contract on the ground that, because the vendor's name did not appear in the contract, the memorandum was insufficient to satisfy the Statute of Frauds. Mellor, J. (p. 721): "First, on the face of these conditions of sale, it is obvious that