I dissent from the portion of the opinion of the majority concerning the statute of frauds. In my opinion, the record in this action presents no occasion for considering or applying that statute. The plaintiff does not claim that the defendant promised to discharge the $500 mortgage on the Collins View property a year or more after the transaction was consummated, but swore that the defendant promised to discharge it at once. The note was payable in monthly installments of $25. He, the defendant, was the maker of the note and the signer of the mortgage. The answer admits that the defendant bound himself at the time of the trade "to pay the past due installments". As a *Page 376 witness, defendant admitted that he paid two $25 installments.
After testifying that the defendant informed him that the Collins View property was subject to a $500 mortgage, the plaintiff swore that he told the defendant he would not consider any property encumbered with a mortgage. He was then asked, "What did he say?" and answered, "He said he would pay off the mortgage." Here defendant's counsel interposed objection "to the introduction of testimony of that sort because of the statute of frauds," and then read the portion of the statute which concerns "an agreement that by its terms is not to be performed within a year from the making thereof". After the objection had been overruled, plaintiff's counsel, again referring to the $500 mortgage, asked, "What did Mr. Thielemann have to say about that?" and received the reply, "He said he would give it to me free and clear, he would pay off the mortgage." This clearly indicates that the mortgage was to be discharged at once. Some days after this conference plaintiff and defendant made an inspection of the property. Plaintiff's attitude at that time towards the proposed exchange of his mortgage for the defendant's property was thus described by him when he was testifying: "I mentioned to him that I would be willing to make the exchange if it was not for that $500 mortgage." He was then asked, "What did he (defendant) say?" and replied, "He said that I would have nothing to do with that mortgage, he would pay it off as soon as the man returned, — the man that held the mortgage was out of town but as soon as he returned, why, he would pay off the mortgage." Plaintiff testified that, having received this assurance, he agreed to the proposed exchange. A day or two later *Page 377 he and the defendant went to the defendant's attorney who prepared the necessary papers assigning to the defendant plaintiff's mortgage and conveying to the plaintiff the Collins View tract. The deed to the plaintiff was then recorded. The plaintiff swore that after the county clerk had returned the deed to him he noticed for the first time that it stated the Collins View property was subject to the $500 mortgage. He testified that he thereupon called upon the defendant, inquiring why the mortgage had not been discharged, and was assured "that he (defendant) would tend to it not later than a week or so". After calling twice more he was told by the defendant that he never intended to discharge the mortgage. There is nothing in the record which indicates that the mortgage could not have been discharged or released at once as promised. Thus, it will be observed that the plaintiff is not relying upon a promise to make payment after a year's time had passed, but is relying upon a promise to discharge the mortgage at once. It seems clear that the situation presents no occasion for discussing or applying the statute of frauds: Bickel v. Wessinger, 58 Or. 98 (113 P. 34);Southwell v. Beezley, 5 Or. 143; Hedges v. Strong, 3 Or. 18; and 25 R.C.L., p. 454, § 29.
I also dissent from the statement made in the opinion of the majority that in an action for deceit the provision of the statute of frauds which is there quoted does not render inadmissible testimony of an oral promise to be performed later than one year. If the promise upon which the plaintiff relies was within the statute of frauds, he could no more employ it as the basis of recovering damages in an action of deceit than in an action directly upon the promise itself. The purpose of the statute is to exclude, in actions brought directly or *Page 378 indirectly upon oral promise, testimony which seeks to establish the promise. The original statute of frauds (29 Car. II) stated that its purpose was "the prevention of Frauds and Perjuryes". This purpose would be defeated if the plaintiff, finding himself unable to maintain an action directly upon the promise, could resort to an action of deceit in which he could allege the selfsame promise, accompanied with an averment that it was made without any intention of fulfilling it. The authorities are agreed that the statute prohibits not only an action upon the oral contract but also actions indirectly upon it. From 25 R.C.L., Statute of Frauds, p. 691, § 332, the following is quoted:
"An action for damages for its breach is in effect one for its enforcement and cannot be maintained; and this is, as a general rule, held true though there has been such a part performance by the plaintiff as would authorize a court of equity to decree specific performance by the other party. So an action for damages cannot be maintained on the ground of fraud in refusing to perform the contract, even though the defendant at the time of the making of the oral contract may have had no intention of performing it."
In addition to the authorities cited in the text, see alsoLinebarger v. Devine, 47 Nev. 67 (214 P. 532, 217 P. 1101), and those which will now be reviewed.
In Dung v. Parker, 52 N.Y. 494, the defendant, after fraudulently representing to the plaintiff that he had authority, as agent, to lease a store room, gave the plaintiff an oral two-year lease upon the premises. The plaintiff then purchased fixtures. The action was brought to recover the resulting damages. The New York statute provided that contracts for the leasing of lands for terms of more than one year were void unless in writing. In reversing a judgment in plaintiff's favor, the court declared: *Page 379
"A contract void by the statute is void for all purposes. It confers no right and creates no obligation as between the parties to it; and no claim can be founded upon it as against third persons. It cannot be enforced directly or indirectly. The plain intent of the statute is that no person shall be subjected to any liability upon an agreement. * * * Whatever the form of the action at law may be, if the proof of a promise or contract, void by the statute, is essential to maintain it, there can be no recovery. * * * Nor is the intent with which the defendant enters into a contract, void by the statute, which he subsequently refuses to perform, material in determining his liability upon it. Although he never intended to perform it, and expected that the other party would be subjected to inconvenience and loss by relying upon it, his liability is not changed. That a party was ignorant of the law, or that he confided in the promise of another, and acted upon it to his disadvantage, has never been held to be an answer to the statute. There is no contract from the violation of which damages, in a legal sense, can arise, where the agreement proved is within the statute. (Cagger v. Lansing, 43 N.Y. 550; Levy v. Brush, 45 id., 589.) There may be moral wrong in refusing to perform such a contract; but the policy of the statute was protection against false claims, supported by perjury; and the hardship of a particular case should not lead to a decision which would disturb the principle upon which the statute is founded."
See to same effect Rice v. Manley, 2 Hun. (N.Y.) 492.
In Boyd v. Stone, 11 Mass. 341, the action was upon the case for deceit, and the facts stated in the declaration were the following: Plaintiff made his note to the defendants in the sum of $485.62, and at the same time delivered to them, as security, a deed to a farm of the value of $3,000. Simultaneously with the delivery of the deed, it was agreed that the parties, at a future date, should execute a written obligation of *Page 380 defeasance, specifying the conditions upon which the farm should be reconveyed. The defendants, intending to defraud the plaintiff, did not keep their agreement to execute the defeasance instrument. In sustaining a demurrer to this pleading, based upon the statute of frauds, Chief Justice Parker spoke as follows:
"By the ancient common law, before the statute of 29 Car. 2, c. 3, commonly called the statute of frauds and perjuries, an action of assumpsit or of deceit might have been maintained upon these facts. There is a distinct promise to do something valuable to the plaintiff, and there is a sufficient consideration. That statute, however, was enacted with a view to prevent contracts concerning real estate from being enforced, or damages recovered for the breach of such contracts, unless proved by written evidence; it being found inconvenient to depend upon the memory or the integrity of witness in disputes relating to real estate. * * * If this declaration could be maintained, it would follow that, in all cases where a party had made a verbal agreement respecting lands, c., by choosing his form of action, he might avoid the operation of the statute. It is better that a man, who has been so grossly negligent of his affairs as to rely upon the honor of the party with whom he deals when the laws of his country have always declared that he shall have no remedy for the breach of such an engagement, should suffer, than that the rules of property should fluctuate according to the notions of different judges, as to the merits of each particular case."
Haslock v. Fergusson, 7 Ad. El. 86, was an action of assumpsit for money had and received. The plaintiff claimed that, upon the representation of the defendant concerning the credit of a Mrs. Barnes, he sold her, upon credit, merchandise of the value of 443 pounds. Mrs. Barnes was heavily indebted to the defendant, and sold the goods which the plaintiff had delivered to her, employing a portion of the proceeds for the *Page 381 liquidation of her debt to the defendant. The action under review was brought to recover the sum so paid. The statute (9 G. 4. c. 14. s. 6.) provided that no action should be brought "whereby to charge any person upon or by reason of any representation" unless made in writing. Lord Chief Justice Denman, in delivering the opinion of the court, which held evidence of the representation inadmissible, spoke as follows:
"It is suggested, on the part of the plaintiff, that the representation was fraudulent, and that the defendant caused it to be made for the purpose of fraud. The case does not appear to us to raise any doubt in point of law. The question is, whether the action is brought, according to the terms of the statute, `to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person?' These words are followed by a clause unhappily expressed, and which I need not go into. Such then being the question, the plaintiff says that the action is not upon the representation, but for money had and received; that the representation is a mere medium of proof, the case being that a fraud was committed, in the course of which this representation was made, and that the produce of the goods obtained by such fraud belongs to the plaintiff. But the only fact on which the case of fraud rested at the time of offering the evidence was, that the defendant had authorized Hobson to give Mrs. Barnes a fair character. We think that the representation made under those circumstances is within the very terms of the sixth section of stat. 9 G. 4. c. 14., and therefore could not be received in evidence, unless put into writing."
I concur in all other parts of the decision. *Page 382