This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 Mavor v. Pyne, 3 Bing. 285. See ante, § 282, in regard to cases where a sum of money is agreed to be paid in less than semi-annual instalments. And see Winters v. Cherry, 78 Mo. 344.
2 Boydell v. Drummond, 11 East 142; Holloway v. Hampton, 4 B. Mon. (Ky.) 415.
§ 287. The doctrine, however, was not directly decided until the case of Donellan v. Read, in the Queen's Bench, in 1832. There a landlord, who had demised premises for a term of years at £50 a year, agreed with his tenant to lay out £50 in making certain improvements upon them, the tenant agreeing to pay an increased rent of £5 a year during the remainder of the term (fifteen years). It was held that the landlord having done the work, he might recover arrears of the 15 a year against the tenant, though the agreement had not been signed by either party. Littledale, J. (delivering judgment for the court), said: "As to the contract not being to be performed within a year, we think that as the contract was entirely executed on one side within a year, and as it was the intention of the parties, founded on a reasonable expectation, that it should be so, the Statute of Frauds does not extend to such a case. In case of a parol sale of goods, it often happens that they are not to be paid for in full till after the expiration of a longer period of time than a year; and surely the law would not sanction a defence on that ground, when the buyer had had the full benefit of the goods on his part."3
1 Boydell v. Drummond, 11 East 142.
2 Bracegirdle v. Heald, 1 Barn. & Aid. 727.
3 Donellan v. Read, 3 Barn. & Ald. 899. With regard to Mr. Justice Littledale's hypothetical case, it is important to observe that the agreement there may or may not be one to be performed within the year. If the parties contract, one to deliver the goods now, and the other to pay is to be taken as a direct judgment against it, that in any one instance it has been necessarily involved. Even in Donellan v. Read the plaintiff was entitled to recover upon his count for money paid to the defendant's use, without resorting to the special agreement.1 In our own courts there appears to be a disposition to follow that case. It has been followed in Rhode Island.2 In Maine, the doctrine laid down by it has been distinctly and strongly affirmed, but unnecessarily, the plaintiff in the case before the court (as is stated in the opinion) being entitled to recover on the common counts.3 In Massachusetts, it was on one occasion apparently admitted to be law, but no judgment was passed or required to be passed upon it; and it has recently been distinctly rejected.4 In New Hampshire, the decisions are conflicting.6 The Southern and Western courts have generally approved it;6 but it has been criticised in Mississippi7
§ 288. In Souch v. Strawbridge, a few years later, where an action was brought for board, lodging, etc., supplied by the plaintiff to a child at the request of the defendant, Tindal, C. J., remarked that the action was brought for an executed consideration, and the Statute of Frauds did not apply; that it meant only that no action should be brought to recover damages in respect to the non-performance of the contracts referred to; but, assuming that to be otherwise, held that this contract was saved from the statute by the fact that the plaintiff was by its terms to keep the child only so long as he thought proper, and it might, therefore, be executed within the year. The other judges concurred upon the second point, but Coltman, J., said that if it had been necessary to decide the case upon the first, he should have wished to consider it because he felt some difficulty in saying that the plaintiff might rely on an executed consideration, when he was obliged to resort to the executory contract to make out his case.1 So far it would seem that the doctrine in Donellan v. Read was not considered as settled in England. In a later case upon this subject, however, Cherry v. Heming, in the Court of Exchequer, 1849, that decision was distinctly approved by Baron Parke and Baron Alderson. But there the point decided was that the statute did not apply to a deed sealed.2
§ 289. It is much to be regretted that the English courts have not had occasion to review this doctrine, and definitely decide upon it. For it does not appear, unless Sweet v. Lee 3 for them more than a year hence, the fact that the buyer will have the full benefit of the goods is immaterial, since it was intended by the contract that he should. If on the other hand the money is presently due, and the seller then sees fit to promise not to sue within a year, it is this new contract that is within the statute, the old one remaining good, though the remedy be suspended by the seller's own act.
1 Souch v. Strawbridge, 2 C. B. 808.
2 Cherry v. Heming, 4 Exch. 631. The doctrine of Donellan v. Read was alluded to with approval in Smith v. Neale, since decided in the Common Pleas. 2 C. B. n. s. 67.
3 Sweet v. Lee, 3 Man. & G. 452.
1 See Knowlman v. Bluett, L. R. 9 Ex. 307, on appeal.
2 Durfee v. O'Brien, 16 R. I. 213.
3 Holbrook v. Armstrong, 10 Me. 31.
4 Cabot v. Haskins, 3 Pick. 83. In Marcy v. Marcy, 9 Allen 8, the English doctrine is criticised with great ability, and its defects exhibited. See also Frary v. Sterling, 99 Mass. 461.
5 See the doctrine approved in Blanding v. Sargent, 33 N. H. 239; Perkins v. Clay, 54 N. H. 518; disapproved in Emery v. Smith, 46 N. H. 151. citing earlier decisions with approval. See Cocheco Aqueduct Association v. B. & M. R. R., 59 N. H. 312.
6 Ellicott v. Turner, 4 Md. 476; Hardesty v. Jones, 10 Gill & J. (Md.) 404; Johnson v. Watson, 1 Ga. 348; Rake v. Pope, 7 Ala. 161; Bates v. Moore, 2 Bailey (S. C.) 614; Gully v. Grubbs, 1 J. J. Marsh. (Ky.) 387; Holloway v. Hampton, 4 B. Mon. (Ky.) 415; Blanton v. Knox, 3 Mo. 241; Suggett v. Cason, 26 Mo. 221; Self v. Cordell, 45 Mo. 345; McClellan v. Sanford, 26 Wisc. 595; Miller v. Roberts, 18 Tex. 16; Zabel v. Schroeder, 35 Tex. 308; Compton v. Martin, 5 Rich. (S. C.) Law, 14; Haugh v. Blythe, 20 Ind. 24; Curtis v. Sage, 35 111. 22; Atchison, T. & S. F. R. R. v. English, 38 Kansas 110; Washburn v. Dosch, 68 Wisc. 436; Smalley v. Greene, 52 Iowa 241; Piper v. Fosher, 121 Ind. 407; Dant v. Head, 90 Ky. 255; Smock v. Smock, 37 Mo. App. 56. In Berry v. Dore-inus, 30 N. J. L. 399, the doctrine is approved, although, as it would seem, unnecessarily, in view of the application to the case of the rule noticed, § 276, supra. In Montague v. Garnett, 3 Bush (Ky.) 297, the recovery is said to be not on the contract, but the implied promise.