the various states are as follows, only the portions of the statutes which pertain to engineering matters being presented in detail:

"Every agreement, promise or undertaking is void unless it or some note or memorandum thereof, etc."

1. The contract may be entered into at one time and the memorandum made subsequently; however, the memorandum must be made before the commencement of the action."

2. It must state the names of the parties, the subject matter, the quantity, price and any special terms pertaining to the contract.

3. It is not necessary that the memorandum should pass from one of the parties to the other; it may be in the form of a letter written by the party to be charged and given to a third person, or it may be simply an entry upon the books.8

7

4. The memorandum may consist of several separate papers. Those which are not signed should be referred to in the paper which is signed, or, if they are all physically attached at the time of signing, it may be taken as the intention of the signer to make them all one.10

5. The essence of the promise must be shown in the memorandum with reasonable certainty."1

6. Parol evidence may be admitted to identify the papers,12 or the subject-matter to which they refer.13

7. The subscription of the party to be charged is usually his

5 Gale v. Nixon, 6 Cow. (N. Y.) 445, 448; Lerned v. Wannemacher, 9 Allen (Mass.) 416.

• Bill v. Bament, 9 M. and W. 36; Bird v. Munroe, 66 Me. 337.

7 Peabody v. Speyers, 56 N. Y. 230, 237; Moss v. Atkinson, 44 Cal. 3; Spangler v. Danforth, 65 Ill. 152.

8 Argus Co. v. Albany, 55 N. Y. 495; Tufts v. Plymouth Co., 14 Allen (Mass.) 407; Camden Iron Works v. Fox, 34 Fed. Rep. 200.

Doughty v. Manhattan Brass Co., 101 N. Y. 644; Peck v. Vandermark, 99 N. Y. 29, 34; Whelan v. Sullivan, 102 Mass. 204, 206; McConnell v. Brillhart, 17 Ill. 354, 360.

10 Tallman v. Franklin, 14 N. Y. 584, 588; Bayne v. Wiggins, 139 U. S. 210; Orne v. Cook, 31 Ill. 238.

11 Peck v. Vandemark, 99 N. Y. 29, 34; Frazer v. Howe, 106 Ill. 563, 574; Atwood v. Cobb, 16 Pick. 227, 230.

12 Beckwith v. Talbot, 95 U. S. 292; Work v. Cowhick, 81 Ill. 317, 318; Thayer v. Luce, 22 Ohio St. 62, 74.

18 Tallman v. Franklin, 14 N. Y. 584; Mead v. Parker, 115 Mass. 413; Cossitt v. Hobbs, 56 Ill. 231; Barry v. Coombe, 1 Pet. 640.

.14

name written at the end of the paper. It may be his initials ;11 or his mark;15 it may be printed ;16 or stamped;17; and it may be at the beginning or the middle of the memorandum;18 provided it is evident that the signer intended to authenticate every essential part of it.19

19

"By its terms is not to be performed within one year from the making thereof."

1. This clause is applicable only to those undertakings which by their express terms are not to be performed within one year, not to promises which merely may not be fulfilled within the year.20 An agreement which may be performed within the period, even though it is improbable that it will be, does not come within the statute.21 A verbal contract to construct a road or a building within a year and twenty days from the date thereof was held valid, as it might be completed within the year.22

2. A lease for a year to commence at a future date is within the statute.2 23

3. An oral agreement to make annual payment in a contract which by its terms is to continue sixteen years is within the statute, and cannot be enforced.24

4. Any contract which by its terms may be completed within a year is not within the statute, such as the delivery of timber to continue until the contractor is notified to stop;25 to supply materials as long as wanted;26 the agreement of a son to support his parents during their lives;27 or the contract of a railroad company to lay a switch for a sawmill owner and maintain it as long as he

14 Sanborn v. Flagler, 9 Allen, 478; Palmer v. Stephens, 1 Denio, 478. 15 Baker v. Dening, 8 Ad. & E. 94; Brown v. Bank, 6 Hill, 443. 16 Weston v. Myers, 33 Ill. 424; Drury v. Young, 58 Md. 546.

17 Bennett v. Brumfitt, L. R. 3 C. P. 30.

18 Clason v. Bailey, 14 Johns. (N. Y.), 484, 486; Coddington v. Goddard, 16 Gray. (Mass.) 436, 444; Sanborn v. Flagler, 9 Allen (Mass.) 474.

19 Boardman v. Spooner, 13 Allen, 353, 358; Brayley v. Kelly, 25 Minn. 160.

20 McPherson v. Cox, 96 U. S. 404, 416; Walker v. Johnson, 96 U. S. 424. 21 Kent v. Kent, 62 N. Y. 560, 564; Peters v. Westborough, 19 Pick. (Mass.) 364.

22 Jones v. Pouch, 41 Ohio St. 146.

23 Comstock v. Ward, 22 Ill. 248; Wheeler v. Frankenthal, 78 Ill. 124.

24 Jackson Iron Co. v. Negaunee C. Co. (C. C. A.), 65 Fed. Rep. 298.

25 Walker v. Railroad Co. (S. C.), 1 S. E. Rep. 366 (1887).

26 Walker v. Johnson, 96 U. S. 424.

27 Carr v. McCarthy, 38 N. W. Rep. (Mich.) 241 (1888).

shall need it.28 But an agreement which states affirmatively that it is not to be performed within a year is within the statute.

5. An agreement for services between employer and employee for a period longer than one year comes under the statute. If the employer discharges the employee without cause and then pleads the statute in defense, the employee may recover the value of the services performed in an action upon an implied assumpsit.20

"Is a special promise to answer for the debt, default or miscarriage of another person.”

1. This promise is in its nature a guaranty or security. The promise and the principal obligation which are accepted by the promisee constitute the consideration passing to him, while the consideration coming from him supports the promise as well as the principal obligation. All other cases call for an independent consideration for the promise.30

2. A "special promise" is one in fact as contrasted with a promise implied in law.31

3. This promise is not one of indemnity, in which the promisor agrees to protect another from the harmful results of a transaction in which the promisor has an interest. In order to constitute a guaranty the promisor must have no interest in the transaction save that of his promise to pay the loss due to the other's default.

4. The liability of the third party must be in existence before the guarantor's promise ;32 and must continue in existence in order to come within the statute.

"Is a contract for the sale of any goods, chattels or things in action for the price of fifty dollars or more, etc."

This clause applies to sales of personal property. Blackstone's definition of a sale is a transfer of property "from one man to

28 Warner v. Texas & P. Ry. Co., 17 Sup. Ct. Rep. 147.

29 Day v. R. R. Co., 51 N. Y. 590; Williams v. Bemis, 108 Mass. 91; Wm. B. Steel Works v. Atkinson, 68 Ill. 421.

30 Erie Co. Bank v. Coit, 104 N. Y. 532, 537; Nelson v. Boynton, 3 Met. 399-401.

31 Goodwin v. Gilbert, 9 Mass. 510; Sage v. Wilcox, 6 Conn. 85.

32 Cahill v. Biglow, 18 Pick. 369, 371; Boston v. Farr, 148 Pa. St. 220; Blank v. Dreher, 25 Ill. 331.

33 Meriden Britannia Co. v. Zingsen, 48 N. Y. 250; Wood v. Corcoran, 1 Allen, 406.

"To con

another in consideration of some price." 2 Bl. 446. stitute a valid sale, there must be (1) parties competent to contract; (2) mutual assent; (3) a thing, the absolute or general property in which is transferred from the seller to the buyer; (4) a price in money, paid or promised." Benjamin on Sales, p. 1. 1. If the goods which are the subject-matter of the contract are not in existence at the time the contract is made, there are various views of the situation which may be taken: the transaction may be regarded as a contract of sale or a contract for work and labor. The English rule looks to the time of performance of the contract and holds that there may be a sale.

The New York rule looks to the time of the formation of the contract. "An agreement for the sale of any commodity not in existence at the time, but which the vendor is to manufacture or put in a condition to be delivered, is not a contract of sale. There must be a sale at the time the contract is made." Cooke v. Millard, 65 N. Y. 352.

The Massachusetts rule looks to the nature of the contract itself. "A contract for the sale of articles then existing, or such as the vendor in the ordinary course of his business manufactures or procures for the general market, whether on hand at the time or not, is a contract for the sale of goods, to which the statute applies. But on the other hand, if the goods are to be manufactured especially for the purchaser, and upon his special order, and not for the general market, the case is not within the statute.34 Goddard v. Binney, 115 Mass. 450.

2. Expressions of satisfaction or acts indicating an acceptance will constitute an acceptance. Actual possession or a statement assuming possession constitute receipt.35

3. If the buyer designates the carrier to transport the goods, then delivery of the goods to such carrier constitutes a receipt of them within the statute.36

4. The acceptance and receipt of the goods need not take place at the same time. Either may precede the other.3

37

5. The payment or part of it must be made at the time of the sale or bargain. If the payment takes place at a later date, there

84 Brown & H. Co. v. Wunder (Minn.), 67 N. W. Rep. 357.

35 Baldey v. Parker, 2 Barn. & Cres. 37.

36 Cross v. O'Donnell, 44 N. Y. 661; Allard v. Greasert, 61 N. Y. 1. 37 McKnight v. Dunlop, 5 N. Y. 537.

should be a re-statement of the bargain. The sale then dates from this later time.38

6. The payment should be made in cash, or by check; a promissory note is a mere promise, becoming cash only when it matures;39 and is insufficient to take the case outside of the statute. "Or upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them."

1. The terms apply to real property, not personal chattels. Natural growths such as trees are considered as an interest in lands and come within the statute.40 Annual crops are regarded as chattel interests.41

2. All estates which are created or transferred must be in writing; usually there are the additional requirements that they shall be sealed, witnessed, acknowledged and recorded.

3. A lease of land or an interest in it should be in writing. Permission to occupy another's land for a long period and to erect thereon structures such as bridges, buildings, railroads, etc., to cover with water, to mine ore, to use for storage, etc., is practically a grant of an interest in the land and should be in writing.

CASES.

SECTION IV.-STATUTE OF FRAUDS.

Simple contracts which are required to be in writing.

BIRD v. MUNROE.

66 MAINE, 337.-1877.

Assumpsit. Defense, the statute of frauds. After hearing the evidence, which sufficiently appears in the opinion, the court directed that the action be made law on report to stand for trial if maintainable upon evidence legally admissible, otherwise the plaintiffs to be nonsuit.

PETERS, J. On March 2, 1874, at Rockland, in this state, the defendant contracted verbally with the plaintiffs for the purchase of a quantity of ice, to be delivered (by immediate shipments) to

38 Hunter v. Wetsell, 57 N. Y. 375 (1874).

89 Combs v. Bateman, 10 Barber 573.

40 Green v. Armstrong, 1 Denio 550; Killmore v. Howlett, 48 N. Y. 569. 41 Whipple v. Foote, 2 Johns. 418; Ross v. Welch, 11 Gray 235.