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 Payson v. West, Walker (Miss.) 515; Sennett v. Johnson, 9 Pa. St. 335; Lenheim v. Fay, 27 Mich. 70; Persifull v. Boreing, 22 S. W. Rep. (Ky.) 440; Dunphy v. Ryan, 116 U. S. 495; Ryan v. Dunphy, 4 Montana 342; Osborne v. Kimball, 41 Kan. 187.
2 Field v. White, L. R. 29 Ch. D. 358.
3 Deshon v. Wood, 148 Mass. 132.
4 See post, §§ 409, et seq.
1 See ante, §§ 22, et seq. As applied in an action of trover, see Moore v. Aldrich, 25 Tex. Supp. 276.
1 Carrington v. Roots, 2 Mees. & W. 248. In this case, as remarked by Baron Parke, the plaintiff might have pleaded a license, but the defendant would have replied that it was countermanded, and the plaintiff could not have succeeded on that issue. See farther Buck v. Pickwell, 27 Vt. 157; Whitcher v. Morey, 39 Vt. 459; Taylor v. Wakefield, 6 El. & B. 765; Wheeler v. Frankenthal, 78 111. 124; McGinnis v. Femandes, 126 111. 228.
2 Finch v. Finch, 10 Ohio St. 501; Culligan v. Wingerter, 57 Mo. 241; Smith v. Tramel, 68 Iowa 488.
3 Baker v. Jameson, 2 J. J. Marsh. (Ky.) 547; Carmack v. Masterson, 3 Stew. & P. (Ala.) 411. But, perhaps, if there were circumstances of contract within the statute be a sufficient consideration to support another engagement. No action whatever could have been maintained against the defendant for any breach of that contract. A discharge from it, therefore, is of no use to him.1 So, an engagement to forfeit a certain sum of money in case of failing to perform another engagement which, within the Statute of Frauds, could not itself be enforced, cannot be enforced by the party to whom it is made.2 And where the only consideration of a promissory note was an agreement to sell shares of stock, the memorandum of which agreement was insufficient under the Statute of Frauds, it was held that action on the note could not be sustained.3
§ 135. As the Statute of Frauds affects only the remedy upon the contract, giving the party sought to be charged upon it a defence to an action for that purpose, if the requirements of the statute be not fulfilled, it is obvious that he may waive such protection;4 or rather, that, except as he undertakes to avail himself of such protection, the contract is perfectly good against him. A third party cannot, in a case where his own obligations growing out of the existence of the contract in question are concerned, deny the obligation of the contract upon the party who was to be charged thereby, or take any benefit of the protection which such party could claim in an action brought upon it against himself.5 Thus, deceit in the case, the plaintiff might recover in an action on the case for the deceit. See Kidder v. Hunt, 1 Pick. (Mass.) 328.
1 North v. Forest, 15 Conn. 400; Shuder v. Newby, 85 Tenn. 348. But see Stout v. Ennis, 28 Kansas 503.
2 Goodrich v. Nickols, 2 Root (Conn.) 498; Rice v. Peet, 15 Johns. (N. Y.) 503. But see Couch v. Meeker, 2 Conn. 308.
3 Cameron v. Tompkins, 72 Hun (N. Y.) 109.
4 But after his death his executor or administrator may not waive it.
5 See Chicago Dock Co. v. Kinzie, 49 111. 289; Ames p. Jackson, 115 Mass. 508; Fowler v. Burget, 16 Ind. 341; Brown v. Rawlings, 72 Ind. 305; Morrison v. Collier, 79 Ind. 417; Dutch v. Boyd, 81 Ind. 146; Dixon v. Duke, 85 Ind. 434; Sedgwick v. Tucker, 90 Ind. 271; Royce v. Graham, 91 Ind. 420; Kelly v. Kendall, 118 111. 650; Gordon v. Tweedy, 71 Ala. 202; Cooper v. Hornsby, 71 Ala. 62; Welsh v. Coley, 82 Ala. 363; Mewwhere one summoned as trustee made answer that a debt was due from him to the defendant, but that he had verbally promised, and considered himself bound to pay a debt to a greater amount due from the defendant to a third person, it was held that he was not obliged to set up the Statute of Frauds and avoid this promise; and that if he chose to recognize it, he was not chargeable as trustee.1 So, where, in an action by the plaintiffs for the non-fulfilment by the defendants of a contract to finish certain machinery within a reasonable time, it was averred as special damage that the plaintiffs had thereby been prevented from fulfilling a contract with third parties and had lost the profits thereon, it was held that such damages could be recovered, although the contract which would have produced the profits, could not have been enforced because not in compliance with the Statute of Frauds.2 And it has been also held that the maker of a verbal guaranty may pay the amount and recover it from the original debtor; and may pay his memorandum check for the amount and recover it from the original debtor, although the latter, after its making, forbade its payment.3 So where property is held by defendant subject to a verbal trust for a third party, the defendant's creditor cannot take the property discharged of burn's Heirs v. Bass, 82 Ala. 622; Rickards v. Cunningham, 10 Neb. 417; Duckett v. Pool, 33 S. C. 238; Lee v. Stowe, 57 Texas 444; Old National Bank v. Findley, 131 Tnd. 225; Singer v. Carpenter, 125 111. 117; Book v. Justice Mining Co., 58 Fed. Rep. 106; Bullion & Exchange Bank v. Otto, 59 Fed. Rep. 256; Savage v. Lee, 101 Ind. 514; Hughes v. Lumsden, 8 Brad. (11l. App. Ct.) 185; Aultman v. Booth, 95 Mo. 383; Holden v. Starks, 159 Mass. 503; Jackson v. Stanfield, 37 N. E. Rep. (Ind.) 14.
1 Cahill v. Bigelow, 18 Pick. (Mass.) 369; Hall v. Soule, 11 Mich. 494; Godden v. Pierson, 42 Ala. 370; Browning v. Parker, 17 R. I. 183. See also Bohannon v. Pace, 6 Dana (Ky.) 194; Garrett v. Garrett, 27 Ala. 687; Huffman v. Ackley, 34 Mo. 277; Houser v. Lamont, 55 Pa. St. 311; Cresswell v. McCaig, 11 Neb. 222.
2 Waters v. Towers, 8 Exch. 401; Sneed v. Bradley, 4 Sneed (Tenn.) 301; Kratz v. Stocke, 42 Mo. 351.
3 Beal v. Brown, 13 Allen (Mass.) 114. See Ames v. Jackson, 115 Mass. 508; Simpson v. Hall, 47 Conn. 417.
§ 135 a. Certain recent decisions in the State of New York, bearing upon the doctrine that a verbal contract within the Statute of Frauds is to be taken as binding except where the party contracting seeks the benefit of the statute, require careful examination. The first of these was the case of Dung v. Parker,2 where one representing himself as agent for the letting of certain premises made an oral contract of lease to the plaintiff, who, on the faith of it, incurred considerable expense in fixtures for the premises in question; but upon finding out afterward that the other had no authority to let the premises, the plaintiff sued him for damages growing out of his false representation. The defendant relied upon the fact that his agreement for the lease was oral, and therefore that even had he been authorized to make it, the plaintiff could not have enforced it or recovered for its breach, and thus might in any event have lost the value of the fixtures; and this position was sustained by the Court of Appeals, which founded its decision upon the proposition that in no case would an agent, falsely representing his authority to make a contract on behalf of another, be liable either in contract or tort, unless the principal would have been bound by the contract made, had the agent such authority. The same doctrine was shortly afterward reiterated in the case of Baltzen v. Nicolay,3 which presented substantially the same features as the former case, though the action here was brought against the agent, an auctioneer, for damages for breach of his contract. Three of the court dissented, but without delivering opinions. A case, however, decided in the Supreme Court about this time, though citing Dung v. Parker at some length, and not in terms criticising it, seems in substance opposed to the rule governing its decision. This case is Rice v. Manley,1 an action to recover damages from one who, by means of a feigned telegram to a person with whom the plaintiff had an oral contract for the purchase of some cheese, broke off the sale, and bought the cheese himself. The court held that the defendant was liable to pay the plaintiff for the loss of the bargain caused by the former's fraud, even though that bargain was within the Statute of Frauds; and they cited Benton v. Pratt,2 as to the same effect, and being the doctrine of the highest court of the State. It will be observed that Rice v. Manley, in recognizing the oral contract as an existing relation, and giving the plaintiff damages for the fraudulent representation by which he was deprived of the benefit of it, is in opposition to the reasoning, if not to the decision, of Dung v. Parker; and another decision in the Court of Appeals later than any of the foregoing seems to tend in the same direction. This is the case of Mooney v. Elder,3 where a broker, who was to receive a commission upon producing a customer ready and willing to buy a certain estate, made an oral contract with a third party for the sale of the premises, and sued for his commission. It was held that he could recover it, since it did not appear that payment was resisted on the ground that the purchaser had not made a written contract, nor that he would fail to carry out his oral undertaking.