With regard to contracts relating to interests in or concerning land, it is not easy to lay down a clear rule, and we must content ourselves with giving examples. Thus the following agreements have been held to "concern" land and to require writing. An agreement to enable a person to take water from a well, a contract to take or let furnished lodgings or a furnished flat, a contract to sell a house as building material to be removed by the buyer within two months, an agreement to surrender a tenancy and endeavour to get the landlord to accept the other party as tenant, a contract to sell shares in a mine, an agreement for a lease or for the sale, assignment, or transfer of a leasehold estate, and grant of a right to shoot over land and take away a part of the game killed.
Need Not be in Writing
The following agreements have been held not to be within the Statute of Frauds, and therefore need not be in writing: An agreement to build a water-closet for a tenant; a contract for board and lodging merely; an agreement to give a person the first refusal of lands; an agreement as to the cost of investigating the title to land; contracts to sell shares in railway, canal, dock, banking, insurance, or gas companies; a contract to sell trees which have been blown down, and so severed from the soil.
Performance Not to be Within Year
Where the contract is such that the whole may possibly be performed within a year, and there is no express stipulation to the contrary, the statute does not apply. Thus it was held that an agreement between husband and wife to live apart, the husband to allow the wife a weekly sum for maintenance, was not within the statute, because there might have been a reconciliation within the year. But agreements to pay a sum annually for five years, for a partnership for three years, and to supply goods for a period longer than a year should be in writing.
Agreements to pay money to a man on his marriage, to leave money by will, to pay money on completion of a voyage that could be made within a year, and to maintain a child at the request of the defendant for so long as the defendant should think proper are examples of contracts which do not require to be in writing.
The memorandum is sufficient if it is made subsequently to a parol agreement, but it must be in existence when the action brought in the contract is commenced. No special form is needed for a memorandum; it need not be under seal, and need only be signed by the party to be charged. A written proposal signed by one party and accepted orally by the other is sufficient to bind the former. A rough draft, an affidavit, a letter to a third person, an offer acted upon, a receipt, and a telegram may be a sufficient memorandum. When one document refers to another the two together may constitute a complete memorandum.
Proved by Parol Evidence
Parol evidence may be given to identify a written document referred to in another written document, so as to connect them. An envelope and a letter may be connected together by parol evidence to supply the name of one party written on the envelope and not contained in the letter; but parol evidence cannot be given to amplify an incomplete memorandum nor to connect documents which contain no reference to one another and cannot be connected by reasonable inference.
Parol evidence is admissible to show that the written memorandum does not contain the actual terms agreed upon by the parties, and it may also be given to prove assent by the defendant to alterations made in a written contract after it has been signed by him.
It does not matter in what part of the document the signature is to be found so long as it is placed in such a manner as to authenticate the whole of the instrument. A signature to a letter will not cover a postscript headed " supplement," and written on a separate piece of paper, not referred to in the letter. A memorandum, "Mr. John Jones has agreed," written by Jones, is sufficient, and so, too, when the Christian name is omitted - "Mr. Stanley," etc.
A letter ending " Your affectionate mother " is not signed. Altering a draft is not signing it. An unsigned letter containing an offer of a lease with the words, " From Richard L. Cripps," with his address printed at the head, is sufficiently signed by Cripps. A signature in pencil is sufficient, and also a signature by initials, or by means of a stamp; a mark is sufficient, the signature Of instructions for a telegram is sufficient, and so is a signature by an agent.
Some publishers brought an action against a person who had agreed to take a quantity of Shakespearean engravings coming out periodically during a number of years, and who had, in fact, taken and paid for several numbers. The plaintiffs had issued a prospectus, which the defendant had seen, and a " Shakespeare subscribers, their signatures " book, in which he had entered his name; but the plaintiffs lost their case on two points - one that, as the book could not be connected with the prospectus without oral evidence, they did not constitute a sufficient memorandum; and that part performance by the defendant did not satisfy the statute.
A particularly hard case was that of a housekeeper on a Yorkshire farm, who, after being there for many years, had some idea of bettering herself or of getting married, and who so informed her master. For the past ten years she had left her wages in his hands, and had allowed the arrears to accumulate. As he was in straitened circumstances, and did not want to part with her, he told her that he had expectations from his uncle, and that his uncle wished her to stay with him as long as he lived, and wished him to " make her all right " by leaving her the farm for her life, which he promised to do if she continued with him. Subsequently he showed her his will, which he had signed, and asked her whether it was right, and "whether she was satisfied." The signing of the will would at first sight appear to have been sufficient for her protection, coupled with the fact of her remaining in his service; but on the matter being taken up to the House of Lords on the death of the farmer, the judgment of the Lord Chancellor and the other judges went against the housekeeper on the ground that there was no contract which they could enforce. Had the will been witnessed as well as signed, she would have been entitled to the farm under the will; but as the farmer had neglected to have his will attested, she endeavoured to establish her claim on the contract.
If the buyer shall accept part of the goods and actually receive them, writing is unnecessary, although the value is over £10. Thus, where a livery stable-keeper sold a couple of horses for £200 to a person who sent word that he would take them at that price. But as the purchaser had neither servant nor stable, he informed the dealer that he must keep them at livery for him, which was done by their being removed from the sale stable into the dealer's livery stable, and this was held to be a constructive delivery to the purchaser sufficient to make him liable for payment. Where the goods are in possession of a third person who is minding them for the seller, an " actual receipt" takes place when the seller, the buyer, and the third person agree that the latter shall henceforth hold the goods for the buyer. The delivery of goods to a carrier for conveyance to the buyer constitutes an actual receipt by the buyer, the carrier representing the buyer for the purpose of receiving, but not of accepting the goods.
To be continued.
From the painting by Sir J. E. Millais, Bart., P.r.a.
Copyright, Franz Hanfstaengl