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.
2 Dawson v. Ellis, 1 Jac. & W. 524; Jackson v. Bull, 2 Caines (N. Y.) Cas. 301,per Kent, J.; Lucas v. Mitchell, 8 A. K. Marsh. (Ky.) 244.
§ 131. Although, as has now been shown, a verbal contract which is within the Statute of Frauds may for some purposes avail a defendant in equity, or in an action to recover a quantum meruit for property or labor received from the plaintiff in pursuance of it, still the clear rule of law is that such a contract cannot be made the ground of a defence, any more than of a demand; the obligation of the plaintiff to perform it is no more available to the defendant in the former case, than the obligation of the defendant to perform it would be to the plaintiff in the latter case. Thus, if the plaintiff had a verbal contract with the defendant to serve him for three years, and should bring an action in the mean time for the value of the services he had actually rendered, the defendant could not protect himself by setting up the verbal contract as binding upon the plaintiff, though its terms and stipulations might be admissible to regulate the damages.2
1 Clary v. Marshall, 5 B. Mon. 269. So if a principal purposes to sell land to a person, "provided his agent has not already disposed of it," if it turns out that the agent had previously disposed of the land by verbal contract, the principal is not bound to plead the statute, and thereby to vacate the contract made by his agent. Jacob v. Smith, 5 J. J. Marsh. 380. See also Mitchell v. King, 77 111. 462. Main v. Bosworth, 77 Wisc. 660; Pickerell v. Morss, 97 111. 220; Peck v. Williams, 113 Ind. 256. In California, where the code provides that the agreement shall be "invalid," it is held that oral agreements are enforceable where the defence of the statute is not taken. Nunez v. Morgan, 77 Cal. 427.
2 Comes v. Lamson, 16 Conn 246; Scotten v. Brown, 4 Harr. (Del.) 324; King v. Welcome, 5 Gray (Mass) 41; Bernier v. Cabot Mfg. Co., 71 Me. 506. And see ante, §§ 122 a, 124.
Nor can a sum of money agreed to be paid in a contract affected by the statute, be set off in an action against the party entitled to it, on some independent cause.1 So where a father in consideration of the marriage of his daughter verbally promised to pay his daughter and her husband a certain amount of money, and died intestate, and the daughter took out letters of administration, it was held that she could not retain the debt out of the assets.2 And where there was an oral agreement by the husband in consideration of marriage, to transfer bonds to the wife when the marriage should take place, the husband's performance of the agreement after marriage was held to be voluntary and void as against creditors.3
§ 132. How far a subsequent verbal variation of a contract once put in writing agreeably to the requirement of the statute will be admissible, so that a party performing according to the terms of the contract as varied can defend upon the verbal variation, will be considered in another part of this work.4 Such a case, manifestly, cannot be treated purely as a defence upon a verbal contract.
§ 133. It is well established that if an action, as for instance trespass, be brought against a defendant for certain acts which were done by him in pursuance of a verbal contract between himself and the plaintiff, the fact of the contract will in such case afford a perfect defence; or, more correctly speaking, the defendant may set up the license of the plaintiff to do those acts, being the substance of the right which the defendant has, such a license, though revocable at any time, being a justification for any act done under it of a temporary nature.1 But it seems that the application of this rule must be carefully limited to cases where the contract is set up merely as a justification, as distinguished from cases where the result will be to establish the contract as binding, for the purposes of a contract, upon the parties. In the case of Car-rington v. Roots, in the Court of Exchequer, a party had purchased, by a verbal contract, a growing crop of grass, with liberty to go on the close wherein it grew, for the purpose of cutting it and carrying it away; the seller seized and impounded the horse and cart which the purchaser had brought there for the purpose of carrying away the grass. In an action of trespass by the purchaser, the seller pleaded that he owned the close, and that the horse and cart were wrongfully encumbering it, and doing damage, wherefore he took and distrained the same, etc.; the plaintiff replied, setting forth the contract, and that he was there with his horse and cart for the purpose of carrying away the grass, according to the contract. It was admitted that, the contract being within the Statute of Frauds as for an interest in lands, an action to charge the defendant upon it could not be sustained, without evidence in writing; but it was argued that the plaintiff had a right to avail himself of it for any collateral purpose, as in this case to repel a trespass committed by the defendant. It was held that the action would not lie. Lord Abinger, C. B., states the distinction with great clearness; he says: "I think the contract cannot be available as a contract at all, unless an action can be brought upon it. What is done under the contract may admit of apology or excuse, diverso intuitu, if I may so speak; as where under a contract by parol, the party is put in possession, that possession may be set up as an excuse for a trespass alleged to have been committed by him. But whenever an action is brought on the assumption that the contract is good in law, that seems to me to be in effect an action on the contract. If the whole transaction between the parties were set forth in the declaration, the contract would form part of it; and, in effect, the plaintiff now says that the defendant ought not to take his cart, because it was lawfully there under that contract. This is a collateral and incidental mode of enforcing the contract, though it is not directly sued upon." "It would be a different case if the plaintiff had been sued by the defendant in trespass; he might have pleaded a license; but though a license may be part of a contract, a contract is more than a license. The agreement might have been available in answer to a trespass, by setting up a license; not setting up the contract itself as a contract, but only showing matter of excuse for the trespass. That appears to me the whole extent to which the plaintiff could avail himself of the contract. I am therefore of opinion that the replication is not sustained, and that there ought to be a nonsuit." The other barons concurred.1 § 134. This case affords a very clear exemplification of the general rule, which may be here reasserted, that no action can be brought to charge the defendant in any way upon his verbal agreement not put in writing according to the statute.2 And it may be briefly illustrated farther. If land be sold at auction or otherwise, and no memorandum made, and the purchaser refuse to take it, no action will lie against him to recover the loss sustained upon a second sale to another party; this could be done, manifestly, only upon the ground that he was originally legally liable to take and pay for the land himself.3 Nor will a discharge from performing a verbal such trust, upon the ground that, as between the immediate parties to it, it could not be enforced.1