§ 266. Contracts required to be in writing.— The statute of frauds also requires that every contract by an executor or administrator to answer out of his own estate, all promises to answer for the debt, default or miscarriage of another person, agreements in consideration of marriage, contracts not to be performed within a year, and contracts for the sale of good not exceeding in value the sum of £10 or $50, must be evidenced by a writing signed by the party to be charged or his agent. In the case of a sale of goods a writing is not required where the buyer has received part of the goods or has paid earnest-money.2

§ 267. Articles of partnership. It is not necessary that a contract of partnership or an assignment of a share therein should be evidenced in writing. If the existence of the partnership is not to commence within one year, or if its duration is to be more than one year," the transaction must be in writing under the statute. But a part performance of an oral contract of partnership is sufficient to take it out of the statute. A partnership formed to carry on the business of buy ing and selling land need not, according to the current of the decided cases, be proved by a writing, though it seems that where the partners contribute as their shares of the partnership fund lands held by them individually, or as tenants in common, a writing is necessary as evidence of what amounts to a conveyance of lands.s

Where real estate is purchased and used for partnership purposes, being paid for with the money of the firm, it becomes partnership property. Such a transaction need not be evidenced by a writing signed by all the partners, for if the con

11 Greenl. on Ev., § 267.

Snyder v. Wolford, 38 Minn. 175:

22 Kent's Com. 493-495; 1 Greenl. Pennypacker v. Leary, 65 Iowa, 220; on Ev., § 267.

3 Buckner v. Ries, 34 N. Y. 344; Jack v. Clemens, 41 Iowa, 95; Jordan v. Miller, 75 Va. 442; Buffum v. Buffum, 49 Me. 108.

4 Williams v. Jones, 5 B. & C. 108. 5 Morris v. Peckham, 51 Conn. 128. 6 Yates v. Fraser, 6 Ill. App. 229; Huntley v. Huntley, 114 U. S. 394. 7 Holmes v. McCray, 51 Ind. 358;

Knott v. Knott, 6 Oreg. 142; Bunnell v. Taintor, 4 Conn. 568; Hunter v. Whitehead, 42 Mo. 524; Carr v. Gravitt, 54 Mich. 540. Contra, Gantt v. Gantt, 6 La. Ann. 667; Smith v. Burcham, 3 Sumn. (U. S.) 435.

8 Larkins v. Rhodes, 5 Port. (Ala.) 195; Clancy v. Cranie, 2 Dev. Eq. (N. C.) 363.

tract was signed by and the title taken in the name of one, he will be regarded as a trustee for his associates.1

§ 268. Form and character of the writing.- No particular form is required for any writing evidencing a contract necessary under the statute, and several incomplete or fragmentary documents may be sufficient if on being construed together the existence of the contract can be ascertained with reasonable certainty. But parol evidence is inadmissible to supply words which have been omitted, though it may be received to show that a consideration passed where none is expressed in the writing. The statutory requirement is that the writing should be signed, not by both the parties, but "by the party to be charged" alone. The plaintiff who is seeking to enforce his right need not therefore have signed the writing which he seeks to use as evidence. The position of the signature is immaterial. The printed name of the vendor in a bill will suffice if the name of the vendee and the items are in writing. Except in the case of the execution of a conveyance of land, a writing signed by an agent or attorney will not be invalidated because his authority was created by parol. So an agent may be verbally authorized to enter into a written contract for the sale of land belonging to his principal. But an authority to execute a deed or instrument under seal must have been created by a deed, and no writing not under seal will be received as evidence of the existence of such an authority." An auctioneer immediately after the descent of the hammer

1 Bryant v. Hunter, 6 Bush (Ky.), 75; Hogle v. Lowe, 12 Nev. 286; Rank v. Grote, 50 N. Y. Super. Ct. 275; Dewey v. Dewey, 35 Vt. 555; Martin v. Morris, 62 Wis. 418; Brooke v. Washington, 8 Gratt. (Va.) 248; Cilley v. Huse, 40 N. H. 358; Campbell v. Campbell, 30 N. J. Eq. 415; Tillinghast v. Champlin, 4 R. I. 173; Jones v. Smith, 31 S. C. 527; Hardy v. Norfolk Mfg. Co., 80 Va. 404; Kimberly v. Arms, 129 U. S. 512; Paige v. Paige, 71 Iowa, 318; Tenny v. Simpson, 37 Kan. 353; Divine v. Mitchum, 4 B. Mon. (Ky.) 488.

22 Kent's Com. 511; 1 Greenl. on Ev., § 268.

3 Packard v. Richardson, 17 Mass. 122; Drake v. Seaman, 97 N. Y. 230. Cf. Hayes v. Jackson, 37 Cent. L. J. 298.

41 Greenl. on Ev., § 268.

5 Dickerman v. Aston, 21 Minn. 538; Warrall v. Munn, 5 N. Y. 229; Moody v. Smith, 70 N. Y. 598; Riley v. Minor, 29 Mo. 439; Wharter v. McMahan, 10 Paige (N. Y.), 386; Rottman v. Wasson, 5 Kan. 552; Long v. Hartwell, 34 N. J. L. 116.

6 Wheeler v. Nevins, 34 Me. 54; Preston v. Hall, 23 Gratt. (Va.) 600;

begins to act as agent for the buyer, and his signature or memorandum in any transaction, whether concerning real or personal property, will bind both parties as a note in writing under the statute.1

§ 269. Wills required to be evidenced in writing.— By the fifth section of the statute of frauds it was prescribed that all devises of lands or tenements must be in writing, signed by the person devising or by some one in his presence and by his express direction, and they should be attested and subscribed in his presence by three or four witnesses. Before the Victorian statute of wills, testaments disposing of personal property only were valid if they had been reduced to writing before the death of the testator, though never signed or seen by him and without any authentication or attestation. This statute, which placed wills of personalty and devises upon the same footing so far as their ceremonial execution is concerned, has been followed by similar enactments in almost every state of the American Union. A will disposing of real

or personal property must therefore, except in those exceptional cases where nuncupative wills are permitted, be in writing signed or subscribed by the testator in the presence of two witnesses at least, who must then usually sign as witnesses in the presence of the testator, and frequently they are required to sign in the presence of each other. The courts in construing these statutes regulating the execution of wills, which

Wells v. Evans, 20 Wend. (N. Y.) 251; Damon v. Granby, 2 Pick. (Mass.) 345; Harshaw v. McKesson, 65 N. C. 688; Adams v. Power, 52 Miss. 828; Desp. Line v. Bellamy M. Co., 12 N. H. 205; Rhode v. Louthain, 8 Blackf. (Ind.) 413; Smith v. Perry, 29 N. J. L. 74; Rowe v. Ware, 30 Ga. 278; Scheutze v. Baily, 40 Mo. 69; Gordon v. Buckley, 14 S. & R. (Pa.) 331; Cain v. Heard, 1 Coldw. (Tenn.) 163. But a deed executed by an agent without authority under seal, though invalid as a legal conveyance, may be used as evidence of an equitable title. Watson v. Sherman, 84 Ill. 263; Ingram v. Little,

14 Ga. 173; Jones v. Marks, 47 Cal. 242.

1 Smith v. Arnold, 5 Mason (U. S.), 414; Morton v. Dean, 13 Met. (Mass.) 388; White v. Crew, 16 Ga. 416; White v. Watkins, 23 Mo. 423; Walker v. Herring, 21 Gratt. (Va.) 678; Cleaves v. Foss, 4 Greenl. (Me.) 1; Linn, Boyd, etc. Co. v. Terrill, 13 Bush (Ky.), 463; Anderson v. Check, 1 Bailey Eq. (S. C.) 118; Harvey v. Stevens, 43 Vt. 653.

21 Vic., ch. 26.

3 See Tiedeman on Wills, § 46 et seq., where the subject is fully discussed.

Stimson, Am. St. Law, § 2640.

differ somewhat in minor details in the several states, have usually been satisfied with a substantial compliance with their provisions. Any act of the testator by which a sign or mark is made upon the paper by him or for him at his request evincing his intention that the instrument shall take effect as his will is enough.2

The statutory provisions differ as to the position of the signature. The statute of frauds and the American statutes which are remodeled on it are satisfied with a signature in any part of the will, while other statutes require a signing or subscription at the foot or end of the will. If it is required that the will should be subscribed at the end, a signing which precedes any dispositive part of the will is not a valid subscription. But a substantial compliance with the statute is all that is required; and the fact that the subscription is near, or in or under the attestation clause is not material.'

3

The witnesses are usually required to subscribe the will in the presence of the testator. As to what shall constitute this presence the cases are not altogether harmonious. The mere bodily presence of the testator is not enough. He must be conscious of what is going on about him or the attestation will be invalid. Very many of the cases sustain the very liberal statutory construction that the signing is in the presence of the testator, whether performed in the room where he is or not, if he can see the act of signing if he wished to do so. But other authorities hold that where the attestation takes place in another room, in order to make it a signing in the testator's presence

1 In re Phelps, 98 N. Y. 267; McDonough v. Loughlin, 20 Barb. 238; In re Guilfoyle, 96 Cal. 598; Montgomery v. Perkins, 2 Met. (Ky.) 418. 2 Baily v. Baily, 35 Ala. 687; Sprague v. Luther, 8 R. I. 252; In re Guilfoyle, 96 Cal. 398; In re Shotwell, 11 Pa. Co. Ct. R. 444; In re Knox, 131 Pa. St. 220; Jenkyns v. Gaisford, 32 L. J. Prob. 122; Tiedeman on Wills, §§ 47, 48, 49.

3 In re Voorhis, 125 N. Y. 765; Sticker v. Groves, 5 Whart. 386; In re Conway, 58 Hun, 16; In re Lam

baerts, 10 Pa. Co. Ct. R. 10; In re Dayger, 47 Hun, 127.

4 Hallowell v. Hallowell, 88 Ind. 251; Younger v. Duffie, 94 N. Y. 535.

5 Right v. Price, Doug. 241; Graham v. Graham, 10 Ired. 219.

6 Green v. Green (Ill., 1893), 33 N. E. Rep. 941; Snider v. Burke, 84 Ala. 53; Pawtucket v. Ballou, 15 R. I. 58; Gallegher v. Kilkerry, 29 Ill. App. 415; Moore v. Spier, 80 Ala. 130; Turner v. Cook, 36 Ind. 129; In re Downie, 42 Wis. 66; Aiken v. Weekerly, 19 Mich. 482.

it is necessary to show that he actually did see the witnesses in the act of subscribing their names. In many of the states

by statute, and in some others as the result of judicial legislation, it is now required that the testator should publish his will in the presence of the witnesses. This he may do in express terms by informing the witnesses that the paper they are attesting is his will or by any signs or actions by which the knowledge of that fact is conveyed to them.2

§ 270. Agreements not within the statute of frauds which must be evidenced by writings.- By various modern statutes certain transactions not originally included within the statute of frauds are now required to be evidenced in writing. Thus, in New York, payment of money by executors, administrators or testamentary trustees is required to be shown by a written receipt. So, too, it is usually provided

that a new promise, in order to be sufficient to take a debt out of the statute of limitation, must be in writing, and the same rule is applicable to the acceptance of a bill of exchange." A contract to make a will must, in Massachusetts, be in writing, as well as agreements to arbitrate, if the arbitration is sought to be enforced in a court of record. Notices in legal proceedings are often required to be in writing, as in the case of statutory notice to quit.

So, too, by various federal statutes assignments of land warrants, wages due for naval service, of contracts with Indians, of patents and of copyrights are required to be shown by writing signed by the parties thereto. Written evidence is sometimes required of a contract of apprenticeship, and of the adoption of a child.10

1 Mandeville v. Parker, 31 N. J. Eq. 242; Hill v. Barge, 12 Ala. 687. 2 Tiedeman on Wills, § 52. 3 N. Y. Code C. P. 2734, 2750. 4 Mass. Pub. St. 1116, ch. 197, SS 15, 16; Code C. P. 395.

51 N. Y. R. S. 768. §§ 6, 8

6 Mass. Pub. St. Sup. 746.

7 Horton v. Wilde, 8 Gray, 425.

81 N. Y. R. S. 745, §§ 4, 11.

N. Y. L. 1873, p. 1243, ch. 830. The text enumerates in part only the transaction which should be evidenced by a writing. In University Law School Helps No. 8, a leaflet of six pages prepared by Mr. Austin Abbott of New York city, from which these instances are condensed, will be found a full and concise enumeration of the principal trans

9 Mass. Pub. Stat. 827, ch. 149, § 5; actions which under the statute of

2 N. Y. R. S. 154.

frauds and other statutes may or

10 Mass. Pub. Stat. 824, ch. 148, § 2; must be evidenced in writing.