Section 2728. Third Person may Enforce Contract when: A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it. 1887 R. S. Sec. 3221. Section 2729. Seal, how Affixed: A corporate or official seal may be affixed to an instrument by a mere impression upon the paper or other material on which such instrument is written. 1887 R. S. Sec. 3226. Section 2730. Sealed and Unsealed Instruments, Distinction Abolished: All distinctions between sealed and unsealed instruments are abolished. 1887 R. S. Sec. 3227. Section 2731. Printed Parts: Written Parts of Contract Control Where a contract is partly written and partly printed, or where part of it is written or printed under the special directions of the parties, and with a special view to their intention, and the remainder is copied from a form originally prepared without special reference to the particular parties and the particular contract in question, the written parts control the printed parts, and the parts which are purely original control those which are copied from a form, and if the two are absolutely repugnant, the latter must be so far disregarded. 1887 R. S. Sec. 3228. Section 2732. Stipulation upon Right to Enforce Contract, Void: Every stipulation or condition in a contract, by which any party thereto is restricted from enforcing his rights under the contract by the usual proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void. 1887 R. S. Sec. 3229. Section 2733. Debtor May Demand Receipt: A debtor has a right to require from his creditor a written receipt for any property delivered in perfromance of his obligation. 1887 R. S. Sec. 3230. Section 2734. Objections to Mode of Offer Waived when: All objections to the mode of an offer of performance, which the creditor has an opportunity to state at the time to the per son making the offer, and which could be then obviated by him, are waived by the creditor if not then stated. Section 2735. Section. 2737. Burden of showing want of consideration, on whom. Who May Contract: All persons are capable of contracting, except minors, persons of unsound mind, and persons deprived of civil rights. 1887 R. S. Sec. 3220. This section does not confer upon a married woman the right to make any Section 2736. Consideration: of a consideration. 1887 R. S. Sec. 3222. and all contracts that may be made by a feme sole.-Dernham V. Rowley (Idaho), 44 Pac. 643. Written Instrument Evidence of A written instrument is presumptive evidence In drawing instruments of any kind where consideration is essential, it is not necessary, nor is it the practice, to repeat the consideration upon the in sertion of every several promise or covenant. Where a sufficient consideration is expressed, none can be implied. -Brickell v. Batchelder, 62 Cal. 623. Section 2737. Burden of Showing Want of Consideration, on Whom: The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it. All Section 2738. What Contracts May be Oral: contracts may be oral, except such as are specially required by statute to be in writing. 1887 R. S. Sec. 3224. Contracts, when to be in writing: Sec. 2739, 2400, 2401. An instrument under seal, not required by law to be sealed to give it effect, is no more solemn, or no more binding upon the party sought to be charged thereby, than if not und r seal.-Cox v. Northwestern Stage Company, 1 Idaho, 376. Section 2739. Certain Agreements to be in Writing: In the following cases the agreement is invalid, unless the same. or some note or memorandum thereof be in writing and subscribed by the party charged, or by his agent. Evidence, therefore, of the agree 258 ESSENTIALS OF CONTRACTS ment cannot be received without the writing or secondary evidence of its contents. I. An agreement that by its terms is not to be performed within a year from the making thereof; 2. A special promise to answer for the debt, default or miscarriage of another, except in the cases provided for in Section 4445 Code of Civil Proc. 3. An agreement made upon consideration of marriage, other than a mutual promise to marry; 4. An agreement for the sale of goods, chattels, or things in action, at a price not less than two hundred dollars, unless the buyer accept and receive part of such goods and chattels, or the evidences, or some of them, of such things in action, or pay at the time some part of the purchase money: but when a sale is made by auction, an entry by the auctioneer in his sale book, at the time of the sale, of the kind of property sold, the terms of sale, the price and the names of the purchaser and person on whose account the sale is made, is a sufficient memorandum; 5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein, and such agreement, if made by an agent of the party sought to be charged. is invalid, unless the authority of the agent be in writing, subscribed by the party sought to be charged. 1887 R. S. Sec. 6009. PURCHASER OF REAL ESTATE, REPRESENTATIONS BY VENDOR: A purchaser of real estate is bound to exercise ordinary prudence and discretion, and if the means of knowledge are within his power, and he neglects to make the proper inquiry, he loses his remedy against the vendor for any representations the latter makes.-Brown v. Bledsoe, 1 Idaho, 746. FALSE The REPRESENTATIONS: put into writing.-Ryan v. Dox, 34 N. The party to be charged may waive the necessity of the writing required by the statute of frauds and thereby make the contract binding.-St. Louis K. & N. W. R. Co. v. Clark, 121 Mo. 161-195, 26 L. R. A. 751, 25 S. W. 192, 906. Unless an agreePRESUMPTION: ment appears from the complaint to have been verbal, the courts will presume that it was in writing, where th nature of the agreement is such that it could not be valid unless in writing.Bowman v. Ainslee, 1 Idaho, 644. NOTICE OR MEMORANDUM: Several different writings may be read together as constituent parts of the memorandum within the statute of frauds, where, when they are viewed together in the light of the situation and circumstances of the past at the time they were written, they show unmistakably that they relate to the same matter and constitute several parts of one connected transaction, although there is no express reference from one to the other.-White v. Breen, 106 Ala. 159, 32 L. R. A. 127, 19 So. 59. The omission of one or more of the essential elements of a memorandum of the sale of real property under the statute of frauds from a writing containing some of the elements signed by the appointee in a power of attorney to sell that particular land, may be supplied by reference to the power of attorney which contains such elements.-White v. Breen, supra. The statute of frauds only requires that a memorandum in writing for the sale of land shall be signed by the vendor or his agent. It need not be signed by the vendee and need not be a specialty; and the power of the agent to make it may be given verbally.-Rutenberg v. Main, 47 Cal. 213. A deed placed in escrow but not delivered, could not be regarded as a sufficient memorandum of the parol agreement for the sale of the land to satisfy the statute of frauds, where it does not recite the terms of the contract.-Kopp v. Reiter, 146 Ill. 437, 22 L. R. A. 273, 34 N. E. 942. See Cannon v. Handley, 72 Cal. 133, 13 Pac. 315; McDonald v. Huff, 77 Cal. 279, 19 Pac. 499. The fact that an express contract contemplates another more formal contract with a corporation in which the contractee is largely interested does not affect its binding power.-Drummond v. Crane, 159 Mass. 577, 23 L. R. A. 707, 35 N. E. 90. Letters and telegrams which constitute an offer and acceptance of a proposition, complete in its terms, may constitute a binding contract, although there is no understanding that the agreement shall be expressed in a formal writing, and one of the parties afterwards refuses to sign such an agreement without material modifications.-Sanders v. Pottlitzer Bros. Fruit Co. 144 N. Y. 209, 29 L. R. A. 431, 39 N. E. 75. "NOT TO BE PERFORMED WITHIN A YEAR:" An oral agreement which may or may not be fully performed within one year, is not within that clause of the statute of frauds which requires "any agreement not to be performed within one year from the making thereof" to be in writing in order to support an action thereon. Doyle v. Dixon, 97 Mass. 208, 93 Am. Dec. 80; Houghton v. Houghton, 14 Ind. 505, 77 Am. Dec. 69. And this is true, although it is not actually performed until after that time.-Peters v. West. 19 Pick. 364, 31 Am. Dec. 142. Neither is it within the statute of frauds if, by its terms or by reasonable construction, it can be fully performed within a year, although it can only be done by the occurrence of some contingency, as death, by no means likely to happen.Blanding v. Sargent, 33 N. H. 239, 66 Am. Dec. 720. Nor if the agreement on one side can be performed within year, and is so performed, although the agreement on the other side is impossible to be preformed within that time.Blanding v. Sargent, supra: Carnig v. Carr, 167 Mass. 544, 35 L. R. A. 512, 46 N. E. 117. PAYMENT OF DEBT OF ANOTHER: Where the defendant introduced a party asking credit, and instructed that the account be charged to him, and afterwards pays part, it is an original promise and he is liable for the balance due.-Sears v. Flodstrom (Idaho), 49 Pac. 11. Where G. owes C. and M. owes G., C. demands pay of G., G. gives him an order on M., M. accepts the order, pays part and promises to pay the balance in future, M. is released as G.'s debtor and becomes the debtor of C. and M. thereby accepts C. as his creditor in place of G. M. is paying his own debt to a different person than the one he originally agreed to pay it to. He is paying his own debt, not the debt of another.-Casey v. Miller (Idaho), 32 Pac. 195. When C. receives property belonging to S. and agrees to pay A. a debt owing from S. to A., provided C. realizes such sum out of such property, it is an original promise and not within the statute of frauds. Smith v. Caldwell (Idaho), 55 Pac. 1065. See also Elbring v. Mullen (Idaho), 38 Pac. 404. MARRIAGE: Marriage constitutes such part performance by a woman of a contract in consideration of marriage, as to prevent the operation of the statute of frauds in respect to the contract.-Nowack v. Berger, 133 Mo. 24, 31 L. R. A.810, 34 S. W. 489. An CONTRACTS AS TO REALTY: instrument creating an easement is within the operation of the statute of frauds. Nunnelly v. Southern Iron Co. 94 Tenn. 397, 28 L. R. A. 421, 29 S. W. 369. An agreement to re-convey land which had been conveyed, as a mort age upon payment of the mortgaged debt, is not a contract for the sale of an interest in the land within the statute of frauds.-Mussey v. Yates, 65 Vt. 499, 21 L. R. A. 516, 27 At. 167. 260 Section 2740. SALE Contract Required to be in Writing, May be Enforced when: 1887 R. S. Sec. 3225. Section. CHAPTER CXI. SALE. 2741. When seller must act as deposi- 2742. Delivery, where made. SALE. Section 2741. When Seller Must Act as Depositary: After personal property has been sold and until the delivery is completed, the seller has the rights and obligations of a depositary for hire, except that he must keep the property without charge, until the buyer has had a reasonable opportunity to remove it. 1887 R. S. Sec. 3252. Depositary Sec. 2223. Section 2742. Delivery, Where Made: Personal property sold is deliverable at the place where it is at the time of the sale or agreement to sell, or if it is not then in existence, it is deliverable at the place where it is produced. 1887 R. S. Sec. 3250. WHAT IS A SUFFICIENT DELIV- offer, as in of goods already in buyer's possession, |