Page:Harvard Law Review Volume 9.djvu/484

456 456 HARVARD LAW REVIEW. defendant the retention, without compensation, of some advantage received from the plaintiff, and to secure which compensation the plaintiff has neglected some precaution. Apt illustrations of this argument are found in the defences allowed by the Statute of Lim- itations and the Usury Laws. But we have not yet come to the point of claiming that these statutes shall not be used as instru- ments of oppression, no matter what advantages are obtained by defendants in pleading them. As an example of the charge that courts are falling away from the letter as well as the spirit of the Statute of Frauds may be cited the ordinary case of an express oral contract of employment, which, by its terms, is not to be performed within a year of its making, where the employee has entered upon the service and has partly performed it. Here, it is sometimes argued that the em- ployee should be allowed to recover damages, as for a breach of the express contract of employment, whether the wrong complained of be the non-payment of wages or the wrongful discharge. This doctrine of part performance can hardly be said to have yet been generally established. The courts seem rather to be tending to this point, than to have yet thoroughly attained it. But there are certainly some decisions and numerous dicta to this effect, and the progress towards the adoption of the doctrine is probably being made unconsciously. There is danger that, if the true student of the law do not seasonably protest, we shall have a repetition of the development of the law of contracts made for the benefit of third persons, where it was suddenly realized that we had outgrown the necessity of privity, and a doctrine that is unsound and impossible to accurately determine has come to the point of being almost universally acquiesced in. The Statute of Frauds declares that exceptions shall be made in the case of contracts for the sale of personal or real property, to the extent that certain kinds of part performance shall take the contracts out of the statute. This must be deemed a declaration that no other kind of part perform- ance shall have that effect as to such agreements, and no kind of part performance as to any others. It is sometimes contended, by way of apology, that the greater number of instances in which part performance on the part of the plaintiff has been permitted to take the case out of the statute are to be distinguished on the theory that a debt had been created by this performance, or, as it is sometimes said, a condition has been brought about from which the law will imply the promise to pay,