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 Aicardi v. Craig, 42 Ala. 311; Crawford v. Woods, 6 Bush (Ky.) 200.
2 Dung v. Parker, 52 N. Y. 494.
3 Baltzen v. Nicolay, 53 N. Y. 467.
§ 135 b. A witness may be convicted of perjury in falsely swearing to a contract within the statute. It was so held in a case in New York, where the defence to an action of slander for imputing perjury was, that the false swearing alleged was not perjury, the evidence being to set up a contract affected by the statute, and therefore immaterial. But the court said it was not immaterial, for it proved the promise; though it was perhaps incompetent, if the objection had been in season.1 So, also, a verbal contract for hiring for a year, to commence at a future day, will be sufficient for the purpose of acquiring a settlement.2 And the implication that a tenant holding over holds on the terms of the old lease is destroyed by proof of a new contract of hiring, essentially different from the old and intended to displace it, although such new agreement be itself not actionable because not in writing.3
1 Rice v. Manley, 2 Hun 492.
2 Benton v. Pratt, 2 Wend. 385.
3 Mooney v. Elder, 56 N. Y. 238. And see Kelly v. Phelps, 57 Wisc. 425. Aliter where brokers' commissions are sued for and the purchaser does resist and set up the Statute of Frauds. Yeager v. Kelsey, 46 Minn. 402. Payment for advice and assistance in making a purchase of land may be enforced, although, for want of writing, the contract cannot be enforced Wilson v. Morton, 85 Cal. 598.
§ 135 c. The rule that third parties cannot set up the defence of the statute is of course inapplicable to parties in privity with the original promisor.4
§ 136. Upon the same principle, namely, that the Statute of Frauds presupposes an existing lawful contract, and affects only the remedy for its violation, it is held that where a contract within the statute is, by the laws of the country where it is made and to be executed, valid and enforceable, still no action can be maintained upon it in the courts of the country where the statute prevails, unless its requirements be satisfied.5 Mr. Justice Story on several occasions expressed doubt as to this point, but on none of them was the question actually presented for decision;6 and
1 Howard v. Sexton, 4 N. Y. 157. And see Bartlett v. Pickersgill, 1 Eden 415.
2 Bracegirdle v. Heald, 1 Barn. & Ald. 722. 3 Singer Mfg. Co. v. Sayre, 75 Ala. 270.
4 Best v. Davis, 44 111. App. 624.
5 Leroux v. Brown, 12 C. B. 801; Downer v. Chesebrough, 36 Conn. 39; Kleeman v. Collins, 9 Bush (Ky.) 460; Turnow v. Hochstadter, 7 Hun (N. Y.) 80. See Wilcox Silver Plate Co. v. Green, 72 N. Y. 18; Dacosta v. Davis, 23 N. J. L. 319; Hunt v. Jones, 12 R. I. 265; Wilson v. Miller, 42 111. App. Ct 332.
6 Van Reimsdyk v. Kane, 1 Gall. 630; Smith v. Burnham, 3 Suran. 435; Low v. Andrews, 1 Story 38. The learned judge may have had in his mind the opinion of Boullenois: " Ainsi deux particuliers contractent ensemble en presence de temoins, et sans ecrit, dans un endroit ou pareilles in an opinion delivered by Chapman, C. J., for the Supreme Court of Massachusetts, the rule has been stated in opposition to that given above; but here, too, the question was not before the court.1 A memorandum made subsequently to the breach of an oral contract enables the party aggrieved to maintain an action for damages.2 And where, after an oral contract of sale had been made, so much of the statute as applied to it was repealed, the contract was declared to be afterward actionable.3 And it was also held that a mortgage deed made by a bankrupt, eighteen days only before his petition, but in pursuance of an oral agreement made more than fifteen months before, took effect, by relation, as of the time when the agreement was made, and was not a fraudulent preference.4 conventions forment de veritables engagemens, et a raison de quoi la preuve par temoins est admise dans cet endroit pour quelque somme que ce soit meme au dessus de 100 livres; ils plaideut ensuite dans un lieu oil cette preuve par temoins n'est pas admise; dans cette espece, je ne trouve pas de difficulty a dire qu'il faudra admettre la preuve par temoins, parceque cette preuve appartient ad vinculum obligationis et solemnitatem." Perhaps it may be said that in this passage the distinction is not entirely apprehended between the making of a valid contract, and the mode of proving it. The vinculum et solemnitas are certainly, properly speaking, elements of the validity of the contract. It appears to have been considered by the Chief Justice in Leroux v. Brown, that the conclusion would not be the same in a case under the 17th section relating to the sales of goods. But this was quite unnecessary to the question before the court, and the weight of their suggestion is counterbalanced by contrary suggestions in previous cases. See Carrington v. Roots, 2 Mees. & W. 248; Reade v. Lamb, 6 Exch. 130. The distinction does not appear to have ever been judicially upheld, and is certainly not supported by any considerations of difference in policy between the two sections. See 9 Am. Law Rev. 436, 444; and ante, § 115, and note.
1 Denny v. Williams, 5 Allen 1. Miller v. Wilson, 146 111. 523, and Cochran v. Ward, 5 Ind. App. 89, hold, with Denny v. Williams, that the Statute of Frauds governing the contract is that of the State in which it is to be executed.
2 Bird v. Munroe, 67 Me. 337.
3 Work v. Cowhick, 81 111. 317, per Dickey, J.
4 Burdick v. Jackson, 14 Hun (N. Y.) 488. And see Lloyd's Appeal, 82 Pa. St. 485; Gardner v. Rowe, 2 Sim. & S. 316.
§ 137. Where a contract has been, in obedience to the requirements of the Statute of Frauds, manifested so as to give a right of action for its violation, such right may be kept alive, for the purposes of the Statute of Limitations, by an oral renewal of it, infra sex annos, so far as the statute is concerned, and unless the particular Statute of Limitations in question requires such renewal to be in writing.1 But it has been held that a statute requiring a writing for renewal of a promise barred by the United States Bankrupt Law applies to a suit instituted after the enactment of the law, but based on a verbal promise made before its enactment.2