The agreement, for a breach of which the action was brought, was made in the state of Pennsylvania, where it was to be performed, and where the subject matter of it was situated and it is not denied that its validity must be determined by the law of that state.
Assuming that the contract is void in consequence of not being in writing, it is so by reason of the statute of frauds of this state. By the common law it was a valid contract, and *554there is no evidence that by any statute of the state of Pennsylvania such a contract was required to be evidenced by writing. We are not at liberty to indulge in any presumption as to what the legislation of another state or country has been, or what statutes it may have enacted. To presume .that the statute law of another state is the same as that of our own, would be, as it seems to me, the height of absurdity. In a given case, the statutes may be. and they may not be similar to ours. If they are, and a party wishes to avail himself of them in the courts of this state, it is a very easy thing to prove it. That we have a particular statute', containing particular provisions, is not any evidence —not even prima facie-—that another state has a statute with like provisions. Were it otherwise, it would follow that we are bound to presume that every one of our sister states has enacted all the general laws contained in our massive tomes of session laws ; and by the same rule the courts of each state would be bound to presume the same thing in regard to the statutes - of each of the other states.
The 426th section of the Code defines how the statutes and written laws, and also the unwritten or common law, of any other state or territory, or foreign government, may be proved. The former, by the printed copies of the volumes of such statutes, &c. properly identified to be.such, and the latter may be proved as facts by parol evidence ; and the section declares that the books of reports of adjudged cases in their courts may also be admitted as presumptive evidence of such "unwritten law.
The rule, as I have always understood it to exist in this state is, that where there is no evidence to thé contrary, it will be presumed that the common law is in force in each of the other states, except possibly the state of Louisana, and that no such presumption will prevail in regard to statute or written law. . If the common law has been abrogated, changed or modified by a statute of another state, it must be proved, either in the way provided by the acts of congress, (chap: 11, *555of 2d sess.. lsí Gong. U. 8. Stat. at large, p. 122, and chap. 56 of 8th Gong. 2 id. p. 298,) or by that contained in section 426 of the Code.
The statute of frauds, as it now exists in this state, has undergone repeated changes since its first enactment, and if the presumption referred to is to prevail, it follows that each of the other states which had a statute of frauds has made the .same changes in its statutes. But there is reason to believe that neither the English statute of frauds (29th chap. 2, chap. 3,) nor any of its amendments were ever enacted in Pennsylvania, prior to the year 1809. In the year 1808, the legislature of that state' passed an act referring it to the Supreme Court to report what English statutes were in force there, and to recommend the adoption of such of those not in force as in their opinion ought to be enacted. By the report of the Supreme Court, made in pursuance of the act, it appears that the statute of frauds of England had never been in force in Pennsylvania ; and although the court recommended the passage of many English statutes not then in force, they omitted to recommend the statute of frauds. (Purdoris Dig. vol. 1, p. 32, § 2. 3 Binney’s Rep. 595.) We are without evidence of any statute of frauds in Pennsylvania, and if there is one, we have no means of knowing what are its provisions.
Whether the agreement in question was within the statute of frauds of this state presents an important question. The salé of the engine by the defendant to the plaintiffs was never absolute. It was coupled with a condition that the plaintiffs should take it upon trial, and if it did not answer their purpose, the defendant would take it back, and pay or allow the plaintiffs $1000 for it. There was, in fact, no sale of the engine, except what was contained in the previous written contract, which was connected with a condition that the plaintiffs should elect, by 12 o’clock at noon of the following Saturday, to take the etigine, with the other property mentioned, and if they did not so elect, they should forfeit *556the $1000 deposited in the Traders’ Bank. In short, it was a contract by which the plaintiffs secured the refusal to purchase all the property specified therein, and for such refusal they agreed to pay the $1000 at all events ; and if they should elect, by the time agreed upon, to take the property described, the $1000 should be allowed as part payment of $12,000 to be paid for the whole. The plaintiffs never elected to purchase the engine ; but, as remarked, took it upon trial. If it answered their purpose it was to be a purchase of that, as well as the- other property. That was the substance and the legal effect of the second or parol contract. The engine did not answer the plaintiffs’ purpose, and therefore it was never purchased by them. The title to it is still in the defendant. The plaintiffs have never received it, except for the purpose of trial. They have paid the $12,000 for which they were to have the engine, with the other property. For this deficiency in the property received by the plaintiffs, which they were to have for the $12,000 paid, the defendant has, in effect, agreed to deduct or refund $1000, which he now refuses to do. The Statute under which the defendant seeks to avoid the parol agreement in question relates to the sale of goods, &c. (2 B. 8. 136, § 3.) The plaintiffs are not suing upon a contract of sale, but for money overpaid upon the purchase by them of certain other property. There was ample consideration for the agreement upon which the action is brought. The plaintiffs had one or two days left within which to determine their election to take the property under the written contract, and their agreement to take it before the time had expired, was sufficient to uphold the defendant’s agreement in relation to the engine.
[Monroe General Term, March 4, 1867.For the foregoing reasons, I think there should be a new trial, with costs to abide the event.
Ordered accordingly.
Welles, K Darwin Smith and Johnson, Justices.]