Page:Harvard Law Review Volume 9.djvu/487

459 JUDICIAL REPEAL OF THE STATUTE OF FRAUDS. 459 inure to the benefit of the defendant, (Emery v. Smith, 46 N. H. 1 5 1, Ace). Here, then, is a further ground of distinction, which, under the particular clauses of the statute that are applicable, seems to be unique. The implied promise to pay is not commen- surate to what is given or done by the plaintiff^ but to the direct benefit derived by the defendant himself; for, says the court in the same action, in sustaining the defence, the entire benefit of the payment made by the plaintiff inured to the benefit of the Turnpike Company. The plaintiff cannot recover upon the oral agreement, and the law will imply no promise on the part of the defendant to pay for what is not beneficial to him. " But if such promise could be implied, it would simply be a promise to answer for the debt of another, and would be void under the statute." (Query, Is not the benefit to the corporation a benefit to the stockholder?) Here again we have an illustration of the struggle of the courts to circumscribe a fallacious innovation, grafted upon the sound legal notions that are bred in the judicial bone. When, however, we come to the case of contracts within this statute that have been wholly performed on the part of the plaintiff, we find, apparently, a preponderance of respectable authority on the side of the doctrine that the case is then taken entirely out of the statute. And this, too, in jurisdictions where the theory that part performance would have a similar effect would not be enter- tained for a moment. It might perhaps be urged at the outset, that, considering the theory of the statute, there is no difference at all, in principle, between complete and partial performance. Indeed, if on December i, 1894, a contract of employment be made for one year, to begin on January i, 1895, under which the employee is discharged on March i, 1895, after he has served for two months without compensation, it would seem that there would be much less danger of defective memory, of unfaithful recollection as to the terms of the oral agreement, in a suit brought promptly by him after his discharge, than if he had served the full year and then been compelled to sue for his wages. And yet, probably, the weight of authority is in favor of sustaining an action on the express agreement in the latter case, and against sustaining it in the former case. This amounts to saying, still following the favorite expression of the courts, that to plead the Statute of Frauds in the case of complete performance is to use it as an instrument of oppression, while to plead it in the case of part per- formance is to interpose a shield against fraud and perjury. What