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CH. 11.

Art. 13.

wife for life, and dies; she enters and claims by words the estate for life. This is a good disagreement to the estate of inheritance; and a good agreement to the estate for life; for the act and words work together, the same as to a use or bond; 5 Johns. R. the act that explains the intent and operates, is done in pos- 193, 195, session. A sells lumber to B to the amount of $400; B agrees to endorse this sum on his bond against A, and does not; A may recover for the lumber.

Eels v. Finch.

v. Mansfield.

ART. 12. Agreements partly performed. A agreed in 2 Mass. R. writing to erect and finish a barn for B by Aug. 1, 1803, at 147, Faxon which time he was to receive $400 of B in full compensation; afterwards A left the work unfinished against the wishes of B, "who was obliged to get other workmen at his own expense, and with considerable trouble to complete the same." These and other damages to pay &c. exceeded the balance of the $400 unpaid to A, but the money actually paid him was not in proportion to the work he had done. The court decided, that A had no action against B; by the contract A was not entitled to receive any thing from B until the contract was executed on A's part, " and his failure did not arise from inevitable accidents, but from his own neglect; for he voluntarily left the work unfinished." Tender of a conveyance is no performance of an agreement, there must be something in actual execution of the contract. As where A by letter offered $10,000, B answered he would not take less than $11,000, A answered, I will give $11,000. Held, this was not an agreement executed in writing. Lofft 786, Popham v. Eyre.

4 Mass. R.

nels.

ART. 13. Promises not within the act as to lands. If a debt New. on originate in the sale of land by the plt. to the deft., his special Con. 182,-promise or assumpsit to pay this debt is good, and not within 406, Dillingthe statute of frauds, and may be proved by parol evidence. ham v. RunThe consideration of the special promise was the plt's. taking a third person's note in part payment of the pre-existing debt, and discounting $31 out of it, for it is immaterial what was the origin of the debt due to the plt., if it was a just debt, "whether it accrued from the plt's. having theretofore sold land to the deft., or from any other lawful consideration." If it accrued from the plt's. selling land, he did not demand land.

488, Bliss r.

§ 2. The plts. gave a release to Gernon of his warranty of 4 Mass. R. lands, for which the deft. received money. His implied pro- Thompson... mise to pay it to them, is not a contract concerning lands, 1 Phil. Evid. within the statute of frauds. 2. The rule, that one is estopped 485.-3 Deto aver against his own deed, does not apply to a deed ob- sans. Eq. R. tained by fraud.

594.

§ 3. If one overreach another by false allegations, or frau- Notwithdulent concealments, the law will compel him to pay over the standing the frauds, in an action for a tort, a parol agreement for the sale of lands, being part of the res gestæ, may be given in evidence.-2 Day's Ca. 531, Bulkley v. Storer.

statute of

CH. 11. Art. 13.

5 Mass. R. 133, Sher

burn v. Fuller. See

vin & al.

2 Johns. R. 215.-See

Ch. 114, a.

monies obtained by such means to the party, to whom in equity and good conscience it belongs. The plts. recovered of Thompson the difference between the sum he received of Gernon for their release of his warranty to him, and the sum first paid to them for it by the deft. "A deed obtained by fraud is to be considered as a void contract, as to the fraudulent party.

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4. A made a deed to B by C's appointment, and this was delivered by A to B, on B's verbal promise to C, that if he in a reasonable time paid B a certain sum, B would convey to C Foot v. Col- a certain house &c. and give him three notes for a certain sum; and if in a reasonable time C elected not to pay the monies, then B would not record the deed, but deliver it to C. C elected not to pay the money; yet B refused to de17, s. 9, as to liver the deed to him, but recorded it. In an action of asresulting sumpsit by C against B on this promise, the court held, that it was within the statute of frauds, as concerning the sale of lands, and not to be proved by parol evidence. A's deed to B was of land in Cambridge. In this case B's promise to C was directly concerning a conveyance of an interest in lands. The house &c. was in Boston.

trusts.

5 Mass. R. 164, Tucker v. Bass.

5 Mass R. 358, Hunt, adm. v. Ad

ams.

See Allen v.
Kitteridge,

5. In this case the plt. agreed to let a turnpike corporation have his land for the turnpike, not in writing; the deft. in behalf of the corporation promised in writing to pay him $100 an acre; the court held, that the deft. is bound, and this means a perpetual easement.

This action relating to the case of stating the consideration in a writing to pay the debt of another ought to be examined.

In this case the contract was thus: "Lee, July 23, 1804. For value received I promise to pay Isaac Bennett $1500 on the Ch. 20, a. 21. 1st day of Dec. next, with interest; pay to be made at Cock4 Wheaton's R. 85, 98. sackie.

See 2 Johns.

R. 211.-See Ch. 32, a. 4, s. 23.

$1500

Witness my hand, JOSEPH CHAPLIN. I acknowledge myself holden as surety for the payment of the demand of the above note.

Witness my hand,

BARNABAS ADAMS. Judgment for the plt., administrator of Bennet against the surety, on the ground it was "a joint and several promise." On the deft's. part it was objected, that this was "a collateral undertaking to pay the debt of another," and "was within the statute of frauds, in the construction of which it had been held, that the consideration of the promise, as well as the See Ch. 9, a. promise itself, should be in writing. This objection was grounded on Wain v. Warlters, 5 East 10, 20.

20.

But the court held, this was not a promise by Adams to pay the debt of another, but an original promise, joint and

t

CH. 11.

Art. 13.

Brink is a

case like

Mathews.

several, in which Adams was named surety for his benefit, and that both promises appeared to the court to be of the same date. The Chief Justice, Parsons, in giving the opinion of the court said, the decision in Wuin v. Warlters, rested 3 Johns. R. upon the legal import of the word agreement, as including 210, Sears v. not only the promise, but also the consideration for which it is made.” “And if agreement as used in the statute is to be taken, Stadt v. Lill, not in a popular, but in a strictly legal sense, it may be un- Egerton r. reasonable to question the decision." "On looking further we find the case of Egerton v. Mathews, 6 East 307, where it was determined on the seventeenth section of the said act, (similar to the second section of our statute) that a memorandum of a bargain for the sale of goods, signed by the party to be charged, would take the contract out of the statute, although the consideration of the bargain was not expressed in the memorandum.” "The two decisions are not easily reconciled." And the court on the whole doubted as to the case, Wain v. Warlters, and thought the word agreement, in its popular sense, means only the promise of the party charged, "and as not necessarily including the consideration for it." See 13 Mass. R. 87, Penniman v. Hartshorn.

§ 6. As it appears in this case that Adams' promise was in writing, nor does it appear, but by implication, that he did not receive a part of the consideration; the most material question did not arise in regard to promises required to be in writing had Chaplin borrowed $1500 of Bennet, and promised, by parol, to repay it; and had Adams, by parol only, and not in writing, at the same time, as surety, acknowledged he was held to pay this debt, the important question would have arisen, if he were bound to pay it. Certainly not, if his promise had been made after Chaplin had created the debt and become debtor, for then it had become his existing debt, and Adams' promise would have been to pay the existing debt of another, and must have been in writing.

Lill.

7. Case on a guarantee of deft. for not paying for goods 9 East. 348, delivered to one Nichol. It was 66 I guarantee the payment 349, Stadt . of any goods which J. Stadt delivers to J. Nichol," signed by the deft. Held, valid within the 4th section of the statute of frauds, as containing a sufficient description of the consideration of the promise, namely, the delivery of the goods when made, as of the promise itself, both which are included in the word agreement, required by that section to be reduced into writing. It will be observed, here was no description of the consideration, but merely saying the plt. delivered goods to J. N. No mention was made of any quantity or description. of them, but only any goods the plt. should deliver, more or less, of this sort or that. Here then the consideration was des

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CH. 12.
Art. 1.

cribed in the most indefinite manner, if described at all; and and this case was after that of Wain v. Warlters. In Clinan v. Cooke, 1 Schoales and Lefroy 22, it is said, a written agreement for a lease under a certain rent, ought to specify the term for which the premises are to be demised; there can be no doubt of this, at common law such certainty was required. 1 New. Rep. 252, 254; Champion & al. v. Plummer. The writing named only one party, the seller, and not the buyer, and the court properly said, there was no contract or memorandum of one. 1 Phil. Evid. 368; 2 Phil. Evid. 81, 82. It is said, it is not necessary to state precisely in the memorandum for paying another's debt, the exact amount of it. It is enough to engage to pay generally, for all goods furnished in in a certain time &c., and the amount of them, or of the debt the third person owes, is to be ascertained by evidence at the trial. 15 East. 272, 274; the result, some sufficient consideration must be named.

See Minors,
Master and
Servant,
Covenant,

CHAPTER XII.

ACTION OF ASSUMPSIT. APPRENTICES.

ART. 1. Between master and apprentice, as far as it relates to them.

§ 1. The rights and duties arising from this relation, will be very briefly considered in this place, and treated of more at large under the head of Covenant, and therein apprentices by Apprentice. indenture, the usual form of contract used in constituting this relation.

1 Bl. Com. 426, 427.

Com. D. 138. -10 Mod.

70.-Stra.

1267.

sect. 5.

§ 2. An apprentice is one bound, or put to a master, usually for a term of years, to serve him and to be maintained and 144.-Dougl. instructed by him; and as the master must maintain and instruct him, he has a property in his services. The apprentice Mass. act, is with his master on a personal trust, and cannot be assigned, Feb. 28,1795, or pass to executors or administrators; but the master may let 1 Mass. R. him to another man, occasionally, to be employed in business 172.—Reeves not inconsistent with the intention of the apprenticeship, and recover his wages and a quantum meruit for his services. And the master may allege, that in consideration, he permitted A, being his apprentice, to labour for the deft. so many days, at his request, he promised to pay, &c.

D. R. 341.Ld. Raym. 117-1 Salk.

68.

6 Mod. 182, Queen v.

Daniel.-12

§ 3. An apprentice must be by deed, but a servant may be by parol contract. An apprentice cannot be assigned to an-,

Mod. 553.-1 Mass. R.172 to 180, Hall v. Gardner.-Reeves D. R. 341.

other master by a former one, he having a mere personal trust; and where the plt's. declaration states the master's title to the services to be by deed, the plt. cannot prove them by parol evidence. "This is the only contract which the common law required to be in writing."

СH. 12.

Art. 2.

4. The difference taken as to an apprentice and servant, 6 Mod. 182. -Salk. 68.that the former must be by deed, and that the latter may be 8 D. & E.374, by parol, is said in Regina v. Daniel to be founded; 21 H. Barnes' Notes 6. c. 23. So that also an apprentice can be discharged but by 57. deed, and that a servant may be by parol. Though it is generally understood that an apprentice may be by parol contract in Massachusetts, no case is recollected in which this point has been decided.

8 T. R. 379,

Rex v. In

§ 5. And in 8 Term Reports it has been decided, that a contract of apprenticeship may be formed without using the habitants of term "apprentice," and by writing signed only. The word Laindonapprentice is taken from the French word "apprendre," to 1 East. 633. learn. And parol evidence was received to explain this written agreement, and some of the most material parts of it, and to prove some material facts not at all expressed in the writing. In this case there was no deed.

Salk 68, Bar

§ 6. The master is entitled to what the apprentice earns, ber v. Dennis. whether an apprentice legally, or only one de facto.

69.-
Sho. 582.-

7. So if the apprentice have a ticket or other writing, 12 Mod. entitling him to money earned by him during his apprentice- 415.-6 Mod. ship, this ticket or writing the master is entitled to; and if the apprentice die, and his executor receive the money, on either Co. L. 117assumpsit lies against him by the master for so much money Salk. 68,had and received to his use; per Holt C. J.

ART. 2. Sundry cases and principles on which the action

rests.

Ashcroft v.

716.-Cro,

§ 1. December 4, 1792, a boy under age bound himself 6 T. R. 652, an apprentice to the plt. for five years, to learn the trade of a Bertles.potter. August, 4, 1794, he left his master, and entered into Cro. Car. 179, the deft's. service, who refused to give him up. The court 548.-5 T. R. held, that if the contract was voidable, which they doubted, Jam. 497. "the mere act of quitting his master's service was not an avoidance of the" contract. Judgment for the plt.; for the deft. harboured his apprentice &c. But Ld. Kenyon and the court said, that every indenture of an infant is voidable at his election.

Rex v. Inhab.

2. If an apprentice or minor binding himself, can avoid 6 T. R. 55, his contract at his election, yet going into the publick service itants of Hinby his master's approbation, is clearly no avoidance of them. drigham. A fortiori, if properly bound by a parent &c., the apprentice's going into such service by the consent of the master and parent &c. is no avoidance of the contract.

3. In this case a child had been duly bound as an ap

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