£10 sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by such contract, or their agents thereunto lawfully authorized."

The second and fifth clauses of the fourth section, and the whole of the seventeenth, relate to our present subject. The second clause prevents a merely oral guaranty from being enforced at law; but money be paid on one, it cannot be recovered back.

if

A PROMISE TO PAY THE DEBT OF ANOTHER.

A promise to pay the debt of another is said to be a collateral promise, and not an original promise.

It is very often difficult to say whether the promise of one to pay for goods delivered to another is an original promise: as to pay for one's own goods, and then it need not be in writing; or a promise to pay the debt, or guaranty the promise of him to whom the goods are delivered, and then it must be in writing.

The question may always be said to be: To whom did the seller give, and was authorized to give, credit? This question the jury will decide, upon consideration of all the facts, under the direction of the court. If a seller sues one to whom he did not deliver the goods, on the ground that this other promised to pay for them, then the question is, Did this other promise to pay for them as for his own goods? for then the promise need not be in writing. Or did he promise to pay for them as for the goods of the party receiving them? and then it is a promise to pay the debt of another, and must be in writing. If, on examination of the books of the seller, it appears that he charged the goods to the party who received them, it will be difficult, if not impossible, for the seller to maintain that he sold them to the other party. But if he charged them to this other, such an entry would be good evidence, and, if confirmed by circumstances, strong evidence that this party was the purchaser. But it cannot be conclusive; for the party not receiving the goods may always prove, if he can, that he was not the buyer, and that he promised only as surety for the party who was the buyer; and, consequently, that his promise cannot be enforced if not in writing. And, in general, in determining this question, the court will always look to the actual character of the transaction, and the intention of the parties.

The courts, both in England and America, have often endeavored to illustrate this question. Thus, in an early English case, the

court said: "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, 1 will,' this is a collateral undertaking, and void, without writing, by the statute of frauds. But if he says, 'Let him have the goods, I will be your paymaster,' this is an undertaking as for himself, and he shall be intended to be the very buyer, and the other to act but as his servant." So, in a case in Maryland, the court said: “If B gives credit to C for goods sold and delivered to him, on the promise of A to 'see him paid,' or 'to pay him for them if C should not,' in that case it is the immediate debt of C, for which an action will lie against him, and the promise of A is a collateral undertaking to pay that debt [and must be in writing], he being only liable as a surety. But where the party undertaken for is under no liability himself, the promise is an original undertaking of the party promising, and binding upon him without being in writing. Thus, if B furnishes goods to C, on the express promise of A to pay for them, as if A says to him, 'Let C have goods to such an amount, and I will pay you,' and the credit is given to A, in that case, C being under no liability, C cannot be sued for the price; there is nothing to which the promise of A can be collateral; but A being the immediate debtor, it is his original undertaking, and not a promise to answer 'for the debt of another,' and therefore need not be in writing."

Whenever the main purpose and object of the promisor is not to answer for another, but to subserve some purpose of his own, his promise is not within the requirement of the statute, and can therefore be enforced although not in writing, and although it may be in form a promise to pay the debt of another, and although the performance of it may incidentally have the effect of extinguishing the liability of another. If an old debt is extinguished by a new promise, this promise is considered as an original one, and not within the requirement of the statute.

If there be an oral promise to pay the debt of another, and also to do some other thing, this last can be enforced at law, if this other thing, and so much of the promise as relates to it, can be severed from the debt of the other and the promise relating to that debt; for although that promise must be in writing, the other may be oral.

AN AGREEMENT NOT TO BE PERFORMED WITHIN A YEAR.

Under the fifth clause in the fourth section it is held that an agreement which may be performed within the year is not affected by the statute, as the words, "that is not to be performed within

one year," do not apply to an agreement which, when made, was, and by the parties was understood to be, fairly capable of complete execution within a year, without the intervention of extraordinary circumstances, although in point of fact its execution was extended much beyond the year. So where one agreed orally, for one guinea, to give another a number of guineas on the day of his marriage, it was held that this promise was not within the statute, that is, not one which the statute required to be in writing, because he might be married within a year, and the promisor was therefore bound by it. So, where one agreed orally never to go into the staging business in a certain place; as this contract could last only while the promisor lived, and he might die within a year, he was held to be bound by it.

THE FORM AND SUBJECT-MATTER OF THE AGREEMENT.

The "agreement" must be in writing; but generally, in this country, the writing need not be all on one piece of paper. For it is sufficient if on several pieces, as in several letters, which, however, relate to one and the same business, and may fairly be read together as the statement of one transaction. But it must appear from the papers that they are so connected.

The "signature" may be in any part of the paper, the beginning, middle, or end, except in those of our States in which the statute has the word "subscribed" instead of "signed;" in which case it should be in the usual place at the bottom. If the name and the agreement be printed, it is sufficient; hence, a printed shop-bill, with the name of the seller as usual at the beginning, if delivered to the buyer, is generally sufficient to charge the seller in an action for refusing to deliver the goods.

Shares in railroad companies, in manufacturing companies, and, generally, in all corporations and joint-stock companies, are “goods, wares, or merchandises," within the meaning of the statute in this country, and an agreement for their purchase and sale must therefore be in writing.

It may be further remarked, that the operation of the statute has been always limited to such contracts as have not been executed in any substantial part, and therefore remain wholly executory. For if they have been executed substantially in good part, they are binding, although only oral.

In Massachusetts, the statute of frauds also provides (third section) that no action shall be brought to charge any person upon, or by reason of, any representation or assurance made concerning the character, conduct, credit, ability, trade, or dealings of any other

person, unless it be made in writing, and signed by the party to be charged. And there are provisions substantially similar to this in the statutes of Maine and Vermont.

Instead of the "£10" in the seventeenth section of the English statute, the sum mentioned in the statutes of frauds of the dif ferent States is generally from thirty to fifty dollars.

CHAPTER XVI.

PAYMENT AND TENDER.

SECTION I.

HOW PAYMENT MAY BE MADE.

The obligations which arise out of most mercantile contracts are to be satisfied by payment of money. The parties may always agree to any specific manner of payment, and then that becomes obligatory on the creditor as well as the debtor. As, by deducting the amount to be paid from a debt due to the debtor, either from the creditor or from any one else. Or the amount may be made, by agreement, payable by a bill or note. If the debt is to be paid by a bill or note, it must be such a one as is agreed upon, and this must be tendered by the debtor. But the word "note" or "bill " does not necessarily mean an "approved note" or "bill; " and if this phrase be itself used, it means only a note or bill to which there is no reasonable objection; that is, one which ought to be approved.

In the absence of any especial agreement, the only payment known to the law is by cash, which the debtor must pay when it is due, or tender to the creditor.

The tender should, properly, be in cash, or in bills made a legal tender by law, and must be so if that is required; but a tender in good and current bank-bills is sufficient, unless it be objected to because they are not money.

Generally, if the tender be refused for any express and specific reason, the creditor cannot afterwards take advantage of any informality to which he did not object at the time of the tender.

The tender may be of a larger sum than is due. But a tender of a larger sum, if made with a requirement of change or of the balance, is not good. Nor must it be accompanied with a demand or condition that any instrument or document shall be delivered;

nor that the sum tendered shall be received as all that is due; nor that a receipt in full shall be given. But a simple receipt for so much money paid may be demanded. We have already seen that, if a receipt be given, it is only strong evidence of payment, but not conclusive. And even if it be "in full of all demands," it is still open to explanation or denial by evidence.

A lawful tender, and payment of the money into court, is a good defence to an action for the debt. But the creditor may break down this defence by proving that, subsequently to the tender, he demanded the money of the debtor, and the debtor refused to give it. If a debtor tenders money to pay his debt, he must be always ready to pay that money if it be asked from him.

If the buyer or debtor give, and the seller or creditor receive, a negotiable note or bill for the sum due, this is not anywhere absolute and conclusive payment. In Maine and in Massachusetts the law presumes that such note or bill is payment of the debt unless a contrary intention is shown. In nearly all the States of this Union but those two, and in the Supreme Court of the United States, it is not payment, unless the intention of the parties that it should be so is shown. In New York, it has been held that the debtor's own promissory note is not payment, even if it be intended or expressly agreed that it should be.

If a creditor, who receives from his debtor any bill or note, negotiates or sells it for value to a third party, without making himself liable, the bill or note was payment, although it be dishonored, because it has been good to the debtor, and he has received the avails of it; and if the law did not hold that the bill had paid the debt, he could sue the original debt, and then he would have the value of the bill or payment twice. Not so, however, if he negotiates it in such a way that he is himself liable upon it; for if he pays it, he loses what he sold it for, unless he can recover his dubt from his debtor.

SECTION II.

APPROPRIATION OF PAYMENT.

If one who owes several debts to his creditor makes to him a general payment, it may be an important question to which of those debts this payment shall be appropriated: for some of them may be secured, and others not; or some of them may carry interest, and others not; or some of them be barred by the statute of limitations, and others not.

There is no doubt that the payor may appropriate his payment, at the tire of the payment, at his own pleasure. And if he does