§ 137 a. It seems that where the violation by the servant of a contract for service is made punishable under a criminal statute, such statute should be held not to apply, unless the contract was one which could be enforced by action between the parties consistently with the Statute of Frauds.3

§ 138. The summary jurisdiction of courts over their own officers may sometimes afford a remedy upon a verbal contract, where the Statute of Frauds would prohibit an action upon it. Thus, an attorney's undertaking to pay his client's debt and costs in an action has been enforced on motion in the court of which he is an attorney.4

§ 138 a. Where a memorandum of the contract is relied upon as satisfying the statute, although it must show all the material stipulations on both sides, it will be sufficient if it afford evidence of the promise to perform them by the defendant only; and thus a letter, distinctly stating the contract, although written to a third party, or although in terms repudiating the contract, may still serve as a memorandum

1 Gibbons v. M'Casland, 1 Barn. & Ald. 690. Moreover, it would be sufficient in any case to declare upon the original promise. Leaper v. Tatton, 16 East 420; Upton v. Else, 12 Moore 303.

2 Kingsley v. Cousins, 47 Me. 91.

3 Banks v. Crossland, L. R. 10 Q. B. 97.

4 Evans v. Duncan, 1 Tyrw. 283; Senior v. Butt, Hil. T. 1827, K. B., and Payne v. Johnson, there cited; Greave's case. 1 Cromp. & J. 374, note (a).

Within the statute, because, as before stated, neither party can annul the contract, although neither could enforce it.l

§ 138 b. Where a verbal contract for the sale of a horse was made on Sunday, and no satisfaction of the statute was had until Monday, it seems to have been considered that the contract was to be taken as not made till the Monday, for the purposes of the law prohibiting business contracts on Sunday.2 This opinion was not necessary to the decision of the case, and would seem to be untenable on principle. If the contract, for the purposes of the Sunday laws, be regarded as complete when it is verbally made (as it seems that it should be), it follows that the act of satisfying the Statute of Frauds is not the making nor the completing of the contract, and may therefore itself take place on Sunday, and have full effect.3

§ 138 c. The proposition that the Statute of Frauds presupposes an existing lawful contract which, except for the purpose of recovery for its violation, is binding upon the parties, finds a farther illustration in the decisions that a payment made without appropriation by the party making it may be appropriated by the party receiving it to a debt due from the former to him upon a contract not directly actionable for want of compliance with the Statute of Frauds.4

§ 138 d. In conclusion of this chapter, we will inquire into the effect of the making of the verbal contract, considered by itself, and considered as supplemented by satisfaction of the Statute of Frauds, as to the title in goods sold, both between the parties and those claiming under them, and as to third persons.

§ 138 e. The mere convention or agreement of the parties to that effect is sufficient at common law to pass the title to goods sold, when the identical goods which are the subject of the sale are ascertained, and are capable of immediate delivery, and the price is fixed: neither payment of the price nor actual delivery of the goods being necessary to pass the title.1 Is this true of a sale of goods for such price as to fall under the Statute of Frauds? If after such a verbal contract of sale, no satisfaction of the statute being ever had, the chattel perish, on whom does the loss fall? Or if the chattel be injured by the negligence or wilfulness of the seller in whose custody it remains, is he liable to the buyer for the injury? In such cases, it would seem, theoretically, that the title being in the buyer, the loss in the first case should be his, and that he should have, in the second case, his action for damages; and yet, practically, this would be to enforce against the buyer and the seller respectively the verbal contract of sale.2 No case has been found reported which thus gives to one party as against the other the practical benefits of the passage of the title by their verbal contract, in cases where there is never any satisfaction of the Statute of Frauds.3 But where there is a subsequent satisfaction of the statute, so that the objection of enforcing the verbal contract against a party to it no longer exists, the title to the goods has been held to be in the buyer as of a date prior to the satisfaction of the statute, so as to make him, and not the seller, bear the damage sustained by the goods after the contract of sale and before the satisfaction of the statute.1

1 See post, Chap. XVIII.

2 Bloxsome v. Williams, 3 Barn. & C. 232.

3 The reader will find a full and careful discussion of these questions in the article of the American Law Review referred to ante, §§ 115 a, note.

4 Haynes v. Nice, 100 Mass. 327; Murphy p. Webber, 61 Me. 478; Mueller v. Wiebracht, 47 Mo. 468. See Wart v. Mann, 124 Mass. 586.

1 Clarke v. Spence, 4 Ad. & E. 448; Townsend v. Hargraves, 118 Mass. 332, and cases cited.

2 See Carrington v. Roots, 2 Mees. & W. 248, discussed, § 133, ante.

3 In Goddard v. Binney, 115 Mass. 450, there was a verbal contract for a buggy, and upon the ground of the work still to be done about it when the contract was made, the court held that it was not a contract for goods within the seventeenth section of the statute; but when the buggy was finished there took place between the parties what the court considered to amount to a delivery at common law, sufficient to pass the title; and this being so, and expressly declining to hold that there had been "acceptance and receipt" within the statute, they held that, after the buggy had been destroyed by fire on the seller's premises, the loss fell on the buyer, and that the seller could maintain an action against him for the contract price. The court treated the transaction throughout as one to which the statute did not apply. Yet the effect of the decision was to enforce payment of the contract price of a completed chattel of more than the statute price, when there was neither memorandum, nor earnest, nor acceptance and receipt. In this aspect the case appears to be anomalous.