Sec. 24. Statute Of Frauds As Affecting Brokers

Reference has already been made to the "Statute of Frauds." To present the subject comprehensively and yet briefly, we quote from Clark on Contracts, page 90, this extract: "The famous statute of frauds and perjuries, 29 Car. II, c. 3, was enacted in England in 1677, during the reign of Charles the Second, and, as stated in its recital, had for its object the 'prevention of many fraudulent practices, which are commonly endeavored to be upheld by perjury and subornation of perjury.' * The original statute, which is substantially followed by the statutes of most of our states, contains two sections - the fourth and the seventeenth - which affect the form of certain simple contracts. The fourth section provides: ' That no action shall be brought whereby to charge any executor or administrator upon any special promise, to answer damages out of his own estate; or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person; or to charge any person upon any agreement made upon consideration of marriage; or upon any contract, or sale of lands, tenements, or hereditaments, or any interest in or concerning them; or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.' "

° Washington Laws of 1905, Ch. 58, p. 110.

21 Montana Civil Code, Sec. 2185.

22 For a discussion of this class of agreements, see Sec.5 24-26 infra.

The seventeenth section of the English statute is not involved in the present discussion, which is confined to the requirement of the statute in its bearing upon brokers, that all agreements not to be performed within a year from the making thereof shall be in writing.

As Mr. Clark says, the English statute has been substantially followed in most of our states, although in some the statute is materially different. It would be quite beyond the scope of the present work to attempt to present the language of the so-called Statute of Frauds of each state. We shall therefore merely use the New York statute as a basis for a brief discussion of the subject, adding such miscellaneous authorities as will at least indicate the general inclination of the courts with respect thereto.

Sec. 25. Agreements Not To Be Performed Within A Year

Three situations present themselves which may be discussed in view of the statute which requires all agreements not to be performed within a year to be in writing. First, where a person places real property in the hands of a broker to collect the rents and manage the property and fixes no time as to the continuance of the authority. Second, where property is placed in the hands of a broker for such purposes and the authority is to continue for more than a year. Third, where property is placed in the hands of a broker for such purposes and the authority is to continue for more than a year, or until the person shall sell the property, or which may be terminated upon some other contingency.