Page:Harvard Law Review Volume 9.djvu/485

457 JUDICIAL REPEAL OF THE STATUTE OF FRAUDS. 457 unaffected by the statute. That is to say, the statute continues to be a prohibition so far as the express contract is concerned, but an obHgation is created, in order, as it were, that equity may be done, as in the case of the so-called equitable action for money had and received by the defendant to the plaintiffs use, which the law then, whether he will or no, makes the defendant promise to pay to the plaintiff. It is always a strange spectacle to see the law protect a plaintiff against the consequences of the law, for that would seem to be the effect of implying a contract, where one has been expressed, that through the fault of the plaintiff himself is not enforceable. It is the case of a statute shocking the con- science of the Chancellor. In another branch of the law we find the time-honored maxim that the expression of one thing is the exclusion of every other. If, then, the parties to an express agree- ment enter upon its performance, even though by the terms of the statute the agreement be not enforceable, how is there room for the presumption that the parties have made for themselves some other and different agreement than the actual one expressly made? But then this may be only another of our legal fictions ; a trick to evade the law. The only answer made to this objection is, that the recovery is on a promise implied by law, and not on a promise implied in fact, which may be a distinction without a difference. The question then arises as to what shall be the form of the agreement that is implied. It is said in many jurisdictions that the terms of the express agreement are competent evidence on the question of the extent of the implied obligation; the rule being differently stated by different courts. Sometimes it is said that the terms of the express agreement tend to prove the extent of the obligation imposed upon the defendant by impHcation of law; at others, that they prove t prima facie, and again at others, that they prove it conclusively. It would seem, however, that none of these theories can be maintained in principle without entirely losing sight of the purpose of the statute. If the express oral agreement is condemned by it, in order to exclude parol testimony of its terms, as exposed to the danger of perjury or defective memory, why should parol testimony as to its terms be admissible for any pur- pose? Where it is, sight is lost entirely of Lord Holt's reminder, that the design of the statute was not to trust the memory of wit- nesses beyond one year. It must not be supposed, however, that this heresy in any form is accepted in all jurisdictions, for there are some courts that still hold any evidence of the express con-