fees and charges for his services. Held, that not within the statute. Cross v. Richardson, 30 the promise to pay the debt of John was within Vt. 641.

the statute, and could not be enforced by an 35. The plaintiff had a debt against the action. Fullam v. Adams, 37 Vt. 391. defendant's father, who had died, leaving an 30. Promissor receiving funds. We ample estate. The defendant, being sole heir, know of no case in this State, where the parol promised the plaintiff to pay the debt, if he promise of one to pay the debt of another-the would not present his claim for allowance original debtor's liability continuing-has been against the father's estate. The plaintiff forupheld upon any other consideration than the re-bore to so present his claim, whereby it became ceipt of some fund or other security, either discharged, and his claim against the funds in from the debtor or creditor, charged with the the hands of the defendant released. Held, payment of the debt, so that a trust or duty that the promise was not within the statute, was thereby created to pay the debt; and so and was binding. Templeton v. Bascom, 33 that in making payment of the debt he would Vt. 132.

be really fulfilling an obligation of his own.

When carried further than this, the statute of III. CONTRACTS FOR THE SALE OF LANDS, &C. frauds is really repealed. Poland, C. J. Ib.; 405.

36. A contract for labor in cutting down 31. Thus, where the plaintiff, as a guardian, |trees and clearing land is not within the statute held securities and property of his ward and a of frauds. Forbes v. Hamilton, 2 Tyl. 356. sum was due him as guardian, and the defend- 37. Standing trees. In trespass for cutant promised, that if the plaintiff would deliver |ting and removing trees, where the plaintiff's to him such securities and property of the ward, title to the trees was derived from a parol conhe would pay the plaintiff the sum so due him tract of purchase of the land owner, made 21 or as guardian ;-Held, that such promise was not 22 years before, of all the timber on certain within the statute. French v. Thompson, 6 Vt. land to be taken off at any time the vendee should like, though it was expected by the 32. Where the original debtor places prop- vendor that it would be taken in ten years;erty of any kind in the hands of a third person, Held, that the purchase was of an interest in and that person, in consideration thereof, prom- land, and within the statute of frauds. Buck ises the creditor to pay the debt, the promise is v. Pickwell, 27 Vt. 157. (Approved, "to the binding, although not in writing, and although extent of the matter decided," Fitch v. Burk, the original debtor may still remain liable. 38 Vt. 687. "The opinion" in this case has Wait v. Wait, 28 Vt. 350. Merrill v. Englesby, not "the force of authority beyond the very 28 Vt. 150. Smith v. Rogers, 35 Vt. 140. point of judgment." Sterling v. Baldwin, 42

54.

33. The plaintiff and defendant were cred-Vt. 309.)

itors of the same debtor, and the plaintiff was 38. In a case where it was held that the sale about to attach certain property of the debtor of standing timber was a sale of an interest in which the plaintiff knew of and which he could land, and so the contract was required to be in attach in preference to any other person, when writing, it was further held, -that where the the defendant promised, that if the plaintiff contract was by parol, and the purchaser had would forbear to attach and allow the defend-paid the consideration and had entered upon ant to attach, he would pay the plaintiff's debt. the land from time to time and cut part of the The plaintiff did so forbear and allowed the defendant to attach and secure his own debt. Held, that this promise was not within the statute of frauds. Lampson v. Hobart, 28 Vt. 697.

(The court treated this as a case where the plaintiff had obtained a security for his debt, and the promise made in consideration of its surrender. Fullam v. Adams, 37 Vt. 404.) Smith v. Rogers, 35 Vt. 140.

timber, it became his as fast as cut, although he could maintain no action for a trespass to the standing timber. Buck v. Pickwell. Yale v. Seeley, 15 Vt. 221.

39. The statute of frauds, touching the sale of lands, applies to actions brought to enforce rights dependent upon and resulting from the contract; and is not limited to those cases where the contract must necessarily be set out 34. The plaintiff had an attachment on cer- in the declaration. Buck v. Pickwell. tain logs of his debtor, Brown, and had trusteed 40. Lease. A contract for a lease of land certain debtors of Brown. In- consideration to commence in futuro is within the statute, that the plaintiff would release his attachment and must be in writing. Hawley v. Moody, 24 on the logs and release the trustees [so that the Vt. 603.

defendant could bid off the logs at a sheriff's 41. Exchange. The parties contracted by sale and have them sawed by the trustees, parol to exchange lands. The plaintiff conFullam v. Adams, 37 Vt. 404] the defendant veyed according to the contract. The defendpromised the plaintiff to pay him $100 of ant conveyed but a portion of the land agreed Brown's debt. Held, that such promise was to be conveyed by him, and refused to convey

66

Dyer v. Graves, 37 Vt.

the residue. Held, that the contract was within | tract of sale, and the consideration of the whole the statute as "for the sale of lands," and that contract was entire and indivisible, and, being no action at law lay upon it. Hibbard v. "a contract for the sale of lands," was within Whitney, 13 Vt. 21. 32 Vt. 359. 26 Vt. 597. the statute of frauds; and, not being in writing, 42. Agreement to reconvey. The plain- no action lay upon it. tiff conveyed land to the defendant, for an 369. agreed price paid, under a parol agreement that 47. Oral agreement conveys no interest. the defendant would convey to any purchaser An oral agreement for the purchase and conat a higher price whom the plaintiff should find veyance of real estate, though followed by part within one year, and the plaintiff should have payment and security given for the balance of one-half the gain. Held, that the contract was the price according to the agreement, is but a within the statute as "for the sale of lands," promise, and conveys no interest, legal or equitthat the plaintiff could not recover thereon, able, in the estate, nor amounts in law to a nor for his expenses in looking up such pur-permission or license to enter upon and enjoy chaser. Ballard v. Bond, 32 Vt. 355. it; and the agreement, standing alone, is not

43. Question of price. Land was sold at even evidence of a license to enter before the an agreed price per acre, and was measured conveyance has been made and its terms apand computed by the parties, and conveyed and proved and accepted; and, until the conveyance paid for according to such computation. There has been made, the purchaser, without license was an error in the computation, by mutual in fact given, is a trespasser by his entry upon mistake, by which more was paid for the land the estate. Whitcher v. Morey, 39 Vt. 459. than the grantor was entitled to by the contract. Held, that the grantee could recover back the excess paid, although the contract was not in writing, and this without an offer to rescind. White v. Miller, 22 Vt. 380.

48. The sale of an interest in land, without writing, is not a sufficient consideration for an agreement to pay the purchase price. Davis v. Farr, 26 Vt. 592.

49. Under a verbal contract for the sale of 44. The plaintiff purchased of defendant a real estate, the tender of a deed, not accepted, lot of land for $50, and paid him, and received does not entitle the vendor to maintain an from the defendant a quit-claim deed thereof; action for the price. and the defendant promised the plaintiff to re- 22.

545.

frauds.

King v. Smith, 33 Vt.

executed, an action Where land has been con

fund the money if he did not acquire a good 50. When fully title by the deed. No title was conveyed by lies for the price. the deed. Held, that the plaintiff could recover veyed, and the contract of sale, though not in back the money; the court treating it as a writing, has been fully executed on the part of question of price only, resting in parol-that is, the grantor, and nothing remains to be done $50 for the whole lot, if the defendant had title but the payment of the stipulated price, an to it, and in the same proportion for all he had action at law can be sustained to recover such title to. Thayer v. Viles, 23 Vt. 494. 41 Vt. price. Such case is not within the statute of Bank v. Ormsby, 28 Vt. 721. Hibbard 45. Where the defendant sold to the plain- v. Whitney, 13 Vt. 23. Thayer v. Viles, 23 Vt. tiff his share in an estate, for a certain price, 494. Davis v. Farr, 26 Vt. 596. Hodges v. and conveyed all his interest in the premises by Green, 28 Vt. 358. Ballard v. Bond, 32 Vt. quit-claim deed reciting the consideration as 358. Dyer v. Graves, 37 Vt. 376. paid, but agreed by parol that if another heir, 51. supposed to be dead, should turn out to be alive, whereby the share so sold would be reduced, he would refund a certain part of the price paid, and such heir was in fact living;-Held, that the plaintiff was entitled to recover upon such parol agreement. Holbrook v. Holbrook, 30 Vt. 432.

So, in case of a parol sale of a pew in a meeting house, where the purchaser took possession and destroyed the pew and its identity, in repairing and remodelling the meeting house, so that he received all the benefit and advantage he could possibly have had by the purchase, if a deed had been executed;-Held, that the vendor could recover the price agreed to be 46. Guaranty of quantity. In a bargain, paid, although the contract was not in writing, not in writing, for the sale of several parcels of and no deed had been delivered. Hodges v. land for one gross price, the defendant repre- Green, as explained and limited in Ballard v. sented and guarantied that one of the parcels Bond, 32 Vt. 359.

contained a certain number of acres. After the 52. Action to recover back price. The conveyance and payment of the price, the pur- plaintiff had made a parol agreement for the chaser brought an action of assumpsit, counting purchase of land and paid part of the price and upon such guaranty and adding the common brought suit to recover it back, but, it appearmoney counts, to recover back the excess paid ing that the defendant had been ready to confor an ascertained deficiency in the quantity. vey, there was judgment for the defendant. Held, that the guaranty was part of the con- (29 Vt. 510.) The plaintiff brought a second

action for the money paid, and upon proof that and future delivery of goods, wares and merthe parties, after the first judgment, treated the chandise are not within the statute; but, (3), contract as still subsisting and open, and the to come within this second class, the contract money paid as paid towards the price of the must require the performance of such work and land, and that the plaintiff had offered to pay labor upon the property which may be the subthe balance of the price and the defendant had ject matter of the contract, as shall materially refused to convey, the plaintiff was allowed to and essentially change the character of the proprecover. Cobb v. Hall, 33 Vt. 233. erty itself, so that the property, as it is to be when delivered, shall be substantially different

IV. AGREEMENT NOT TO BE PERFORMED from what it is at the time the contract is en

WITHIN ONE YEAR.

tered into. Ellison v. Brigham, 38 Vt. 64. 59. The defendant agreed, by parol, to cut 53. It is only where it appears by the agree- down all the trees on his land fit for logs, to cut ment that it is not to be performed within one the same into logs and draw and deliver the year, that the statute of frauds requires it to be same to the plaintiff, at a place named, within in writing. If the thing rests on contingency, the existing period of sledding,—to be paid for and clearly may be performed within a year, at a specified price per cord when delivered and the statute does not apply. Blanchard v. Weeks, measured. In an action for refusal to cut and 34 Vt. 589. Redfield, J., in Hinckley v. South- deliver the logs;-Held, that the contract was gate, 11 Vt. 430. Sherman v. Champlain Tr. not one for manufacture and delivery, but was Co., 31 Vt. 162, 182. a contract for the sale of all the logs that the

54. The defendant by parol agreed with the specified trees would make, and was within the plaintiff to refrain from the practice of medi- statute. Ib.

cine at A, while the plaintiff should reside and 60. Stock. The plaintiff, without writing, practice medicine at A, and forever. Held, purchased of the defendant certain shares of that the engagement of the defendant was personal, terminating at his death, and, as full performance might be complete within one year, the agreement was not within the statute. Blanchard v. Weeks.

stock in a company at a given price then paid, and took delivery of the stock upon the defendant's orally agreeing to take it back and repay the plaintiff therefor, on request. The plaintiff afterwards tendered back the stock, and de55. An agreement, not in writing, must be manded repayment. Held, that the agreement capable of being completely performed within for repayment was part of the original contract one year-that is, on the side of the party of purchase, qualifying it, and that the statute, sought to be charged with its breach-in order as to a memorandum in writing, did not apply to be exempt from the operation of the 5th to it. clause of the statute of frauds. If to be per- 61. formed, part in one year and part thereafter, the whole is within the statute. Squire v. Whipple, 1 Vt. 69. Foote v. Emerson, 10 Vt. 338. Hinckley v. Southgate, 11 Vt. 428. Sheehy v. Adarene, 41 Vt. 541.

Fay v. Wheeler, 44 Vt. 292.

Earnest Part payment. Where a contract, not in writing, is taken out of the statute of frauds by the payment of earnest money, its terms may be afterwards varied by parol in respect to the time of performance, without any new consideration;-"the consideration for the old agreement being imported into the new agreement, which is substituted Packer v. Steward, 34 Vt. 127.

56. Whether or not the statute applies to the case of a verbal contract, which, by its terms, is to be performed within one year by for it." one party but not to be performed within one 62. Where parties in making a contract year by the other party, depends upon which omit to do what the statute requires to be done party is sued. In an action against the party to make a valid contract,- -as part payment, who is to perform his part within the year, &c.,-it requires the consent of both parties to the statute does not apply; but in an action supply, subsequently, the thing omitted. Wilagainst the other party, it does apply. Sheehy son, J., in Edgerton v. Hodge, 41 Vt. 676; and v. Adarene. Pierce v. Paine, 28 Vt. 34.

V. CONTRACT FOR THE SALE OF GOODS.

57. Executory contracts. The statute of frauds (Sec. 2) applies as well to executory contracts for the sale and delivery of goods, as to contracts for immediate sale and delivery. Ide v. Stanton, 15 Vt. 685.

held, in such case, that a subsequent demand by the seller of part payment, or earnest, though in writing, does not bind him to accept it when offered. Ib.

63. Accepting and receiving. A contract for the sale of goods, under the second section of the statute of frauds, may be proved by parol, and an action lies thereon, provided the purchaser accepts and receives a part of the 58. Contract to manufacture. Held, (1), goods, &c. (Distinction taken between 1st and Executory contracts are within the statute of 2nd sections.) Strong v. Dodds, 47 Vt. 348. frauds; (2), Contracts for the manufacture 64. In order to perfect a sale of goods, under

the statute, something more is necessary than a mere delivery; the purchaser must "accept and receive part of the goods." Spencer v. Hale, 30 Vt. 314. Gibbs v. Benjamin, 45 Vt. 124.

was a contract for the sale of the logs as boards, and that there was no acceptance of the boards sufficient to take the case out of the statute. Gorham v. Fisher, 30 Vt. 428.

65. Delivery to carrier. The delivery of 70. Under a parol contract, within the statgoods purchased to a common carrier selected ute of frauds, to furnish and deliver a certain by the purchaser, if accepted by the carrier quantity of lumber of different specified kinds, and forwarded, is a sufficient acceptance and at one fixed price per thousand feet for all kinds, receipt by the purchaser to satisfy the statute. the boards and plank to be "square-edged," the Spencer v. Hale. plaintiff drew a part of the several kinds, and 66. The plaintiff, pursuant to the defendant's deposited it on a common near the defendant's order, packed the goods ordered on purchase, house, the defendant helping to unload it. After marked them addressed to the defendant, and a time, the defendant observed that some of the delivered them to a railroad company, as ordered, boards and plank were "wany-edged," and sent for transportation to the defendant, charges fol-word to the plaintiff that he should not accept lowing, and duly advised the defendant. The the " wany-edged" boards and plank. The goods were lost on the way and never came to plaintiff then gave the defendant notice in the defendant. Held, that the railroad com- writing, that he rescinded the contract and pany was the servant and agent of the defend- notified the defendant not to meddle with nor ant, so that the receipt of the goods by it was use the lumber. The lumber had not then been such a receipt and acceptance by the defendant measured, nor any part been used or paid for as answered the statute. Strong v. Dodds, 47 by the defendant. The defendant afterwards 348. appropriated the lumber. Held, that he was liable in trover therefor. Montgomery v. Ricker, 43 Vt. 165..

67. Other instances. The plaintiff sold to the defendant, at auction, 16 sheep, then in

the plaintiff's yard, for $80.00. Upon the 71. Part payment. The plaintiff condefendant's suggestion, the parties put the sheep tracted by parol with the defendant for 31 into another yard of the plaintiff, when the sheep, at a stated price, to be delivered as he defendant told the plaintiff that if he would should want them for butchering. The defendkeep the sheep until the next Saturday, he ant delivered 20 upon the contract, which the (defendant) would then come and get them, plaintiff received and paid for at the contract and pay all bills. To this the plaintiff assented price, as delivered. The defendant refused to and so kept the sheep, and on the next Satur- deliver the remaining 11 sheep, and this action day the defendant declined to take the sheep. In an action for the price;-Held, that the defendant did so "accept and receive" the sheep, as to satisfy the statute. Green v. Merriam, 28 Vt. 801.

68. Where a purchaser of goods has an election to repudiate a delivery, as, under the statute of frauds, he must do it immediately or he is bound by the acquiescence as an acceptSpencer v. Hale, 30 Vt. 314.

ance.

was brought to recover damages for such refusal. Held, that there was an acceptance upon the contract of part of the property purchased, and a payment of part of the purchase money, either of which was sufficient to take the contract out of the statute of frauds, and make it binding as an executory contract. Richardson v. Squires, 37 Vt. 640.

Held, that this was such part acceptpayment as took the contract out of Danforth v. Walker, 40 Vt. 257.

72. The plaintiff, by verbal contract, sold the defendant a specified number of bushels of 69. The plaintiff sold to the defendants, by potatoes, at a specified price per bushel, amountparol, a quantity of logs at a saw mill for a cer- ing to more than $40. The price falling in martain price per M feet, board measure, neither ket, the defendant wrote the plaintiff to buy no party counting or knowing the number of logs, more potatoes until the plaintiff heard from the plaintiff to procure the logs to be sawed into him, and, after this, received one car load upon boards at his own expense, but as the defend- the contract, and subsequently paid for such ants should direct. They did direct the miller car load. how the logs should be sawed, and they were ance and sawed accordingly, they informing him that statute. they had bought the logs. Before the logs 73. Hagreed to take of Da quantity of apples, were sawed, they offered to sell the lumber and and D sent several barrels more than H agreed engaged a man to draw away the boards from to take, with word that what H could not sell the board-way for them, but he neglected to do he (D) would take back. D afterwards agreed so, and the plaintiff, on the call of the miller to to purchase of H a lot of poultry amounting to clear the board-way, drew away the boards as more than $40, and it was then agreed that H sawed, and piled them up, and notified the should keep all the apples at a price then agreed defendants of the measurement and demanded upon, and this should apply as part payment payment, but the defendants refused either for the poultry. Held, that this was a then to pay or to take the boards, Held, that this present part payment, sufficient under the

108.

82. June 30, 1864, Adams conveyed by

statute of frauds. Dow v. Worthen, 37 Vt. | be a memorandum of the contract between the grantor and A B, such as to satisfy the statute 74. An antecedent debt, agreed to be paid of frauds. Buck v. Pickwell, 27 Vt. 157. and extinguished at the time and so actually paid, may be part payment on a contract for warranty deed to Sterling certain lands, with the sale of goods, &c., to satisfy the statute, though not shown by writing, indorsement, credit or receipt; but it must be more than an agreement that it shall be so applied. It must be pay down, and so understood. Ib.

VI. THE MEMORANDUM.

66

this reservation in the deed : "Reserving to myself all the hemlock timber standing [thereon] with the right to cut and remove at any time within two years." August 24, 1864, Adams sold this timber to Quimby and gave this writing signed by Adams: "Sold to Wm. Quimby all the hemlock timber standing and down," &c., (describing the same timber). 'Quimby 75. Completeness. The written note or is to have one year from next June to get the memorandum, to satisfy the statute of frauds, lumber off the land. Received $100 in full for must, either by its own language or by reference the timber." Nov. 22, 1864, Adams executed to something else, contain such a description of a quit-claim deed to Sterling, conveying "All the contract actually made, as shall obviate the the right of timber I reserved in my deed to necessity of resorting to parol evidence in order Sterling on the 30th day of June, 1864, and to supply any term of the contract, essential to meaning to include in this deed all the timber its validity. Ide v. Stanton, 15 Vt. 685. that is cut and standing on said lot." Held, 76. A stipulated price enters into the legal that said writing gave Quimby the right to contemplation of a bargain, or contract of sale; enter upon the land and to cut and take away and, therefore, a note or memorandum which the timber, within the time named in the writdoes not furnish evidence of the price, is insuffi- ing, notwithstanding the deeds to Sterling. cient under the statute. Ib. Sterling v. Baldwin, 42 Vt. 306.

77. A written admission of a previous oral 83. Semble, that, as this contract gave a contract, signed by the party to be charged, right to the soil for a time, it created an intersatisfies the statute; nor need this be comprised est in land; but, being in writing, it answered in a single paper, or document, but distinct the requirement of the statute of frauds; and writings, and of different dates, properly con- need not be by deed as between the parties, nor ducing to prove the contract, are competent as to Sterling, under the circumstances. (See observations of Barrett, J., on the Vermont

evidence. Ib.

78. The memorandum of a contract, such statute of conveyances.) Ib. as to satisfy the statute, must contain the sub- 84. Alteration by parol. If any of the stantial terms of the contract, expressed with terms of a written contract, required by the such certainty that they may be understood statute to be in writing, are altered by contract from the contract itself, or from some other not in writing, the entire contract is thereby writing to which it refers, without resorting to reduced to the grade of a mere unwritten conparol evidence. Bennett, J., in Buck v. Pick- tract, and no action will lie upon it. Dana v. well, 27 Vt. 167. Hancock, 30 Vt. 616.

The

79. Statement of consideration. 85. In a written contract for the sale and statute does not require that the consideration conveyance of land upon a survey, it was proshould appear in writing, but only the promise vided that A should make the survey. The of the party to be charged. Smith v. Ide, 3 Vt. survey was not made by A, but by B. In an 290; the word agreement being "held suscep- action on the contract for refusal to convey, tible of a meaning somewhat short of its strict the plaintiff offered to prove that A could not legal import, and to be synonymous with special be procured to make the survey and that therepromise or undertaking." Royce, J., in Ide v. upon the parties, orally, mutually agreed upon Stanton, 15 Vt. 691. B, and that he made the survey in their presHeld inadmissible. Ib.

80. It is not necessary that the considera-ence. tion of a written contract should appear in the 86. By whom to be signed. An entry of writing, whether or not the agreement is re- the names of the seller and buyer of goods sold quired by the statute to be in writing, but the at auction, of the article sold, and the price at consideration may be proved by parol. Smith which sold, made by a clerk of the auctioneer, v. Ide, 3 Vt. 290. Patchin v. Swift, 21 Vt. under his direction, in his auction sale book, is 292. Troy Academy v. Nelson, 24 Vt. 189. a sufficient memorandum to satisfy the statute Gregory, v. Gleed, 33 Vt. 405; and see Phelps of frauds. The auctioneer is the agent of both v. Stewart, 12 Vt. 256. parties. Harvey v. Stevens, 43 Vt. 653. 81. Kind of writing. An exception, in a 87. The plaintiff's traveling agent took an deed of lands, of the timber on the lands which order for goods from the defendant's clerk, agreethe grantor "had sold to A B" was held not to ing on the kinds, quantities, qualities and prices.