_Some contracts must be in writing to be valid_; for instance,
contracts relating to the sale and leasing of lands. This writing must
be signed by the person who is charged with having made it. Suppose
that A has sold his farm to B for an agreed sum and refuses to give
him a deed on his payment of the amount or offer to pay, and B wishes
to compel A to carry out or execute his agreement. B must show a
writing signed by A to that effect, otherwise the court will not pay
any attention to the matter. On the other hand, if A claims that such
an agreement has been made with B, who is unwilling to pay the money
and receive the deed, he must show in court a writing signed by B that
he has agreed to purchase the farm at a stated price and to receive a
deed of the same. If such a writing is not forthcoming when required,
he cannot recover anything from him. This is the meaning of the
phrase, therefore, that a writing must be signed by the party charged
with having made the agreement.
_The writing need not be very formal._ It need not specify the amount
that is to be paid; in other words, it need not specify the
consideration. Some courts say, however, that it must contain this
fact or statement. It may be in pencil. I presume it would be
sufficient if written on a blackboard with chalk. But it must be a
writing of some kind signed by the party to be charged; that is the
essential thing. The courts have also said that this writing need not
be on a single piece of paper. If the two parties have made an
agreement by a series of letters, an offer on the one side and an
acceptance on the other, and the agreement can be fully shown from the
series of letters, this is sufficient writing.
If a man buys a farm and pays a part of the price and goes away saying
that he will pay the remainder within a week, expecting then to do so
and receive a deed, the seller, if he chooses, can escape giving that
deed and parting with his farm. The payment of a part of the money
does not bind the bargain, nor will the courts, though knowing this,
compel the seller to give such a deed. The reader may ask, if this is
the law, cannot the farmer practise a fraud on the buyer by receiving
his money and keeping it and the farm too? He cannot do both things.
If he refuses to give the deed he must, on the other hand, return the
money; if he refuses to do this the buyer can compel him by a proper
legal proceeding to refund the amount. In this way the buyer gets his
money back again, but not the farm that he bought.
It is said that this statute is as often used as a shield to protect
men in doing wrong as in preventing frauds. In numberless cases
persons, just like the farmer imagined, have used this statute as a
means to protect them in not carrying out their agreements. This
happens every day.
This statute also relates to other matters. One clause says that an
executor or administrator cannot be required to pay anything at all
out of his own pocket on any promise that he has made unless it be in
writing. Every one knows about the duties of an executor or
administrator. An executor is one who settles the estate of a person
who has died leaving a will directing what shall be done with his
wealth. An administrator is a person who settles the estate of a
deceased person leaving no will. He is appointed by the law, which
fully states his duties. Let us suppose that an executor is employed
to settle an estate, and that he employs a carpenter to make some
repairs on a house belonging to the estate. The contract is fairly
enough made between the carpenter and the executor. Let us also
suppose that he has no lien on the house for the work that he has
done, or that he has lost his lien by reason of not having filed it in
time, as the law requires. Afterward he goes to the executor and
demands payment for the repairs that he has made. Let us suppose that
the estate is insolvent and cannot pay all of its debts in full. At
the time of making this contract neither party supposed this would
happen. But, unhappily, debts have come to light so large and numerous
that there is not property enough to pay all the creditors everything
that is due them. The executor says to the carpenter: "There is not
property enough to pay all of the creditors and you, unfortunately,
must fare like all of the rest, and you cannot be paid a larger
percentage on your share than the others." To the carpenter this would
be unwelcome news, and he would doubtless say to the executor: "I made
this contract with you expecting that you would pay me, and if the
property of the estate is not sufficient you ought to pay me this. I
am a poor man and cannot afford to lose any of my hard-earned money."
The executor might say to him: "I am as poor as you and I cannot
afford to pay you out of my own pocket, and in law you cannot compel
me to do this." And, in truth, the carpenter could not do this unless
the executor had made a contract in writing, agreeing in any event to
pay whether there was money enough belonging to the estate or not.
Another clause says that _a person cannot be required to pay the debt
of another unless the agreement is in writing_. If A went into a store
to buy goods and B should be a little afraid to trust him, and C, a
friend of A's, should happen to be present and say to the merchant,
"Let A have these goods and if he does not pay you I will," this would
be the promise to pay the debt of another; and if A should not pay it
C could shield himself behind this statute and escape without paying
anything.
There is another clause relating to the sale of ordinary merchandise.
The law says that _contracts for ordinary merchandise must be in
writing if the amount is over_ $50. In some States the amount is $35.
Long ago it was decided that this statute did not relate to contracts
for work, and they therefore must be carried out or fulfilled in the
same manner as though no statute existed, _for work is not
merchandise_.