5. Upon any agreement that is not to be performed within the space of one year from the making thereof.

The Seventeenth Section contains the following provisions in regard to the sale of personal property:

1. No contract for the sale of any goods, wares or merchandise for the price of ten pounds or upwards shall be enforceable, unless:

(a) The buyer shall accept and actually receive a part of the goods; or,

(b) The buyer pays a part of the price, cr,

(c) The buyer gives something as an earnest to bind the bargain; or,

(d) Unless the contract or agreement relating thereto shal be in writing and signed by the party against whom it is sought to enforce the contract or by his authorized agent.

"The prevention of frauds and perjuries" is to avoid the mistakes which frequently follow the proving of contracts by oral evidence. Witnesses may swear falsely; they may forget what was said or done at the time the contract was made and with entire honesty; their understandings of the agreement may be widely different.

86. General observations on the Statute. The Statute does not affect the existence of the contract. It merely provides that no action can be brought on it, "unless it be ir writing and signed by the party to be charged."

The contract in writing may be made at any time betwee the formation of the contract and the commencement of a suit. The memorandum should show:

1. The parties to the contract.

2. The subject matter.

3. The terms of credit and price.

4. And in some states the consideration.

The contract in writing may consist of various letters or papers, but they must be connected, consistent, and complete.

The terms, however, must be shown from the papers and cannot be shown by oral evidence.

The contract need only be signed by the party to be charged, but the other party must be named or described so that he can be identified.

87. To charge any executor or administrator upon any special promise to answer damages out of his own estate. An executor is one appointed by the maker of a will. An administrator is one appointed by the court to administer the estate of a deceased person who has not by will named an executor. An executor or administrator, therefore, is one appointed for the purpose of winding up the affairs of a deceased person. He is not personally liable except that he must follow the law in the distribution of the moneys and payment of legal debts. If, in order to save the credit of the deceased, or for any other reason he promises to answer damages out of his own estate, that promise must be in writing, together with the consideration for it. But a promise by an executor to pay an heir a sum of money if he will not contest the will is not within the statute, and therefore, need not be in writing.

88. Any promise to answer for the debt, default, or miscarriage of another person. This means a guarantyto be responsible for a debt for which another person continues to be liable. There must be three parties-the creditor, the principal debtor, and his surety or guarantor. There must be a liability, actual or prospective, of a third party for whom the guarantor undertakes to answer. If the guarantor, instead of making his liability secondary, makes himself primarily liable, the promise is not within the Statute, and need not be in writing, because there is no guaranty.

The liability may be prospective at the time the promise is made, as a promise by A to B that if C employs B he (A) will go surety for payment of services rendered. "If two come to a shop, and one buys, and the other, to gain him credit, promises the seller, "If he does not pay you I will," this is a collateral undertaking or guaranty, and is void (of no effect) without it is in writing under the Statute of Frauds. But if he says, "Let

him have the goods; I will be your paymaster," or "I will see you are paid," this is an undertaking for himself, and he shall be understood to be the buyer.

89. Guaranty made concurrently and subsequently. One important distinction is to be noted between a guaranty made concurrently with the principal transaction and one made subsequently as to the consideration for the guaranty. A and B go to a merchant, and, on the strength of A's guaranty, the merchant sells B goods amounting to $1,000.00. A is liable on his guaranty; the consideration for the same is the credit given. But suppose the merchant has sold the goods to B, and subsequently requested A to guarantee payment; although A complied with the request, and gave a written guaranty, he would not be liable, because there is no consideration. It must be remembered that the guaranty to pay a subsisting debt, like all other contracts must have a consideration, even though the promise be in writing.

The "debt, default or miscarriage" spoken of in the statute will include liabilities arising out of wrongs as well as out of contract.

A rode a horse of B's without his consent and killed it. C verbally promised to pay B a certain sum in consideration of his forbearing to sue A. This promise is void, because not in writing.

Had the promise been reduced to writing it would have been valid, the consideration being A's forbearing to sue, which, we have already learned, was a sufficient consideration to support an agreement.

90. Contracts for the sale of land. This section does not refer to the deed of conveyance of land, as that must be written and sealed without statutory requirement. It includes any agreement to buy or sell land or any interest in or concerning land, as a right of way. The word land is used in a broad sense and includes not only the land itself but all claims thereto which are of a permanent character.

91. Agreements not to be performed within one year. While the rule as stated is very clear and easily understood, yet by innumerable judicial decisions the construction placed upon it has become extremely artificial. In construing this

rule the Courts have held the following verbal contracts to be valid:

Rule: If the contract is fully performed by one of the parties within the year it will take it out of the statute, and it need not be in writing.

A, being a tenant of B's under a ten years' lease, promised verbally to pay an additional $20.00 a year during the remainder of the term in consideration that B expend $200.00 in alterations. A was held liable upon his promise, the alterations having been made within one year.

Rule: If the contract can by any possibility be performed within one year, although the parties may have intended that its operation should extend through a much longer period, the statute will not apply, and therefore, the contract need not be in writing.

A contract to pay a lawyer for conducting a law suit which might be terminated within a year is not within the statute, although the litigation may continue for two years.

Rule: The statute does not apply if the death of one party within the year would leave the contract completely performed and its purpose achieved.

An agreement to support a child until a certain age, at which the child would not arrive for several years, was held not to be within the statute, because it depended upon the child's life, and if the child should die within one year, the agreement would be fully performed. Agreements for service where the term is for more than one year or is to begin at a future time, are within the statute, and must be in writing. Thus an agreement to employ a boy five years and pay his father certain sums at stated periods during that time is within the statute; hence, to enforce the agreement it must be reduced to writing. Although by the death of the boy the services would cease and the contract be terminated, it certainly would not be completely performed.

92. Sale of goods, wares or merchandise. The statutes in the different states vary as to the amount of goods, some requiring thirty dollars and others fifty dollars. As a rule contracts above these amounts must be in writing unless one of the following circumstances occurs at the time of the sale:

1. Acceptance and receipt of a part of the goods.

2. Payment of part of the price.

3. Giving something as an earnest to bind the bargain.

93. Accepting and receiving part of the goods. This means that the buyer must appropriate a part or the whole of the goods in such a way as to destroy any further claim to them by the seller. It does not mean that the buyer should actually handle the things bought. Where the articles are heavy and bulky it is not even necessary that they should be manually delivered. It is only required in such cases that the purchaser should have complete and absolute control over the thing purchased. If the buyer receives and takes with him a sample, it is sufficient to satisfy the statute. It must be understood by both parties that the sample was a part of the goods purchased.

94. Payment of part of the price, means that there should be an actual payment of a portion of the purchase price.

95. Giving something in earnest. The effect of an earnest (part-payment of price to bind the bargain) is to bind the goods sold. Upon payment of the whole price the buyer is entitled to them. But if he does not within the time agreed pay for and take the goods the vendor may resell the same, also retain the earnest money.

96. Goods, wares and merchandise. It is sometimes difficult to determine whether a contract is for the sale of goods, wares and merchandise, or for work, labor and services. If it is a contract for work, labor and services it does not come within the statute, and therefore, need not be in writing. In England the test is that if at the time of delivery the subjectmatter of the contract is a sale of goods, wares and merchandise it is within the statute, and this rule has been followed in several of the states.

In New York the rule is that if the article is in existence at the time of the agreement, it is within the statute, although some work is to be done upon it before delivery, but it is not within the statute if the article is not in existence at the time