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.
§ 148. But the true import of those and the other early English cases was defined in the case of Wood v. Benson, decided in the Court of Exchequer in 1831. That was assumpsit on the following guaranty signed by the defendant: "I, the undersigned, do hereby engage to pay the directors of the Manchester Gas Works, or their collector, for all the gas which may be consumed in the Minor Theatre and by the lamps outside the theatre, during the time it is occupied by my brother-in-law, Mr. Neville; and I do also engage to pay for all arrears which may be now due." There was a count for gas sold and delivered. The general issue was pleaded, and it was objected that there was no consideration apparent on the face of the instrument for the promise to pay the arrears; and that the agreement, therefore,2 being void as to part under the Statute of Frauds, was void as to the whole; and to this the cases of Lea v. Barber, Lexington v. Clarke, Chater v. Beckett, and Thomas v. Williams, were cited. The court admitted their authority, but explained that, as the actions were brought in each case upon the entire contract, the plaintiffs therein could not recover; and they decided that, in the case before them, the plaintiff could recover on the separate count for gas sold and delivered, which was applicable to the binding part of the contract.8
§ 149. The decision in Loomis v. Newhall is no longer law in Massachusetts. In the case of Irvine v. Stone, the Supreme Court of that State had occasion to examine into the earlier English decisions upon the subject, and, while they did not find it necessary to overrule it, stated conclusions irreconcilable with it.1 And later it was deliberately overruled by them, and the doctrine established in Wood v. Benson adopted. In the opinion of the court, delivered by Metcalf, J., the authorities are very carefully reviewed, and it is particularly noticed that in Loomis v. Newhall there were common counts upon which the plaintiff was entitled to recover; otherwise, it could have been supported upon the same ground as the early English cases.2
1 Loomis p. Newhall, 15 Pick. 159; overruled in Rand v. Mather, 11 Cush. 1. The case of Robson v. Harwell, 6 Ga. 589, while admitting Loomis v. Newhall as authority, decides that the principle there held does not extend to declarations of trusts.
2 See post, §§ 386, el seq.
3 Wood v. Benson, 2 Cromp. & J. 94.
§ 150. We have thus seen that, on a count properly framed for the purpose, a plaintiff may recover upon such of the executory stipulations of the defendant's agreement as are not liable to any objection under the Statute of Frauds, provided they are, from the nature of the contract, capable of being considered separately from the remainder. But even where the various stipulations are so connected together that, so long as they all remained executory, no action could be maintained upon any one of them separately, yet if that part to which the statute would have applied has been executed, and thus in fact severed from the remainder, an action may be sustained upon the remaining executory part, and it is no objection to such action that the plaintiff may be obliged incidentally to prove the making and execution of the other part, inasmuch as he founds no claim upon it.3
§ 151. Where the plaintiff, from the nature of his case or of the relief which he requires, is obliged to set up the entire contract, he will of course be debarred from recovering, if any executory part of the contract be within the statute and he has no written evidence of it. Thus, if a bill in equity is brought to enforce so much of the contract as is not affected by the statute, it would seem that the complainant must fail of his decree, the proceeding being founded wholly on the engagements specially made between the parties.1 In Head v. Baldrey, decided some years after Wood v. Benson had defined the rule in such cases, the defendant had been owing the plaintiff a sum of money for goods previously sold, and he agreed, if the plaintiff would give him time upon that debt and would sell him certain other goods, he would pay for the whole by accepting a bill of a certain description. On his refusing to accept the bill, an action was brought in which, besides the special count upon the contract, there was a count for goods sold and delivered. The defendant pleaded the Statute of Frauds, because part of the consideration of his promise was the price of the wool, the sale of which was not binding under the statute. On demurrer to the plea, because the declaration showed a good consideration (namely, the debt for goods previously sold), it was held in the Queen's Bench that, part of the consideration failing by reason of the statute, the plea was good, and the defendant had judgment. Lord Denman, C. J., delivering the opinion of the court, said: "We apprehend that the defendant can only be made chargeable for a breach of the promise laid; and that promise is, not to pay for these or any other goods sold, but to fulfil a specific arrangement between the parties, that is, to pay by accepting a bill in respect of this liability, and a new one then in contemplation."2
1 Irvine v. Stone, 6 Cush. 508.
2 Rand v. Mather, 11 Cush. 1.
3 See §§ 117, et seq., ante. Also Dock v. Hart, 7 Watts & S. (Pa.) 172; Hess v. Fox, 10 Wend. (N. Y.) 436, distinguishing Van Allstine v. Wimple, 5 Cowen (N. Y.) 162; Page v. Monks, 5 Gray (Mass.) 492; Trowbridge v. Wetherbee, 11 Allen (Mass.) 361; Wetherhee v. Potter, 99 Mass. 354. And see Twidy v. Saunderson, 9 Ired. (N. C.) 5; Manning v. Jones, Busb. (N. C.) Law, 368; Dyer v. Graves, 37 Vt. 369; Tinkler v. Swaynie, 71 Ind. 562; Humphrey v. Fair, 79 Ind. 410; Stephenson v. Arnold, 89 Ind. 426.
§ 152. A class of contracts to which allusion has been heretofore made, namely, those in which a party promises to do one of two or more things, the statute applying to one of the alternative engagements, but not to the others, is sometimes referred to the head of contracts in part affected by the statute. It is needless to dwell upon the question whether they are properly so referred. It is manifest that of such alternative engagements no action will lie upon that one which, if it stood alone, could be enforced as being clear of the Statute of Frauds, because the effect would be to enforce the other; namely, by making the violation of it the ground of an action.1
1 Alexander v. Ghiselin, 5 Gill (Md.) 138; Henderson v. Hudson, 1 Munf. (Va.) 510, per Tucker, J.; Robson v. Harwell, 6 Ga. 589, per Lumpkin, J.
2 Head v. Baldrey, 6 Ad. & E. 468.
1 Van Allstine v. Wimple, 5 Cowen (N. Y.) 162; Patterson v. Cunningham, 12 Me. 506; Goodrich v. Mckols, 2 Root (Conn.) 498; Rice v. Peet, 15 Johns. (N. Y.) 503; Howard v. Brower, 37 Ohio St. 402. But see Couch v. Meeker, 2 Conn. 302.