Fourth, whether the consideration must be set forth in the memorandum is a question on one branch of which there is a hopeless conflict of authority. There are really two separate questions here involved which must be treated separately. The first question concerns the consideration alone and arises when the consideration for the promise is not an executory promise, but has been performed at or before the making of the promise for which it is a consideration. Whether in such cases the consideration must appear is the question upon which the conflict is hopeless, some courts holding that it must appear on the theory that the statute requires the substance of the entire contract of which the memorandum is offered in evidence, to appear therein, and that the consideration is an essential element of such contract,1 and other courts holding that it need not appear on the theory that it is only the executory promise which must be proved by a writing.2 In the cases here cited the statute under discussion required the "agreement" or some note or memorandum thereof to be in writing. Where the statute uses "agreement or promise" instead of "agreement" simply, the courts have held that the consideration need not appear,3 and in some cases have based their decisions on this difference in wording between their statute and the English statute. It is dangerous, however, to base distinctions in construction upon the assumption that the words "agreement," "promise" and "contract" are used with technical accuracy and with distinct meanings in so loosely drawn a statute. In many states this question is settled by statute; but unfortunately some statutes provide that in some or all of the contracts included in the statute of frauds the consideration must appear,4 while other statutes provide that it need not appear,5 and so the conflict remains more hopeless than ever.

5 Ellis v. R. R., 7 Colo. App. 350; 43 Pac. 457.

6 American, etc., Mfg. Co. v. Steel Co.. 101 Fed. 200; Burgess-Sulphite Fibre Co. v. Broomfield, 180 Mass. 283; 62 N. E. 367.

7 Woods v. Hart. 50 Neb. 497; 70 N. W. 53.

8 Sanborn v. Flagler, 9 All. (Mass.) 474.

9 Brewer v. Horst and Lachmund Co., 127 Cal. 643; 50 L. R. A. 240; 60 Pac. 418.

10 Stewart v. Cook. 118 Ga, 541; 45 S. E. 398.

11 Ross v. Purse, 17 Colo. 24; 28 Pac. 473.

12 Burkhead . v. School District, 107 la. 29; 77 N. W. 491.

1Wain v. Warlters, 5 East 10; Saunders v. Wakefield, 4 B. & Ad. 595; James v. Williams, 5 B. & Ad. 1109; Bainbridge v. Wade, 16 Q. B. 89; Foster v. Napier, 74 Ala. 393; Hazeltine v. Larco, 7 Cal. 32; Ep-pich v. Clifford, 6 Colo. 493; Wel-din v. Porter, 4 Houst. (Del.) 236; Fry v. Platt, 32 Kan. 62; 3 Pac. 781; Culbertson v. Smith, 52 Md. 628; 36 Am. Rep. 384; Messmore v. Cunningham, 78 Mich. 623; 44 N. W. 145; Parry v. Spikes, 49 Wis. 384; 35 Am. Rep. 782; 5 N. W. 794. The doctrine of Wain v. Warlters, 5 East 10, was doubted in Phillips v. Bateman, 16 East 356, and denied in ex parte Gardom, 15 Ves. 286, but was finally established in the other English cases cited.

2 Ringgold v. Newkirk, 3 Ark. 96; Toomy v. Dunphy, 86 Cal. 639; 25 Pac. 130; Sage v. Wilcox, 6 Conn. 81; Davis v. Tift, 70 Ga. 52; Ames v. Moir, 130 111. 582; 22 N. E. 535; affirming, 27 111. App. 88; Memory v. Niepert, 33 111. App. 131; Strubbe v. Lewis (Ky.), 76 S. W. 150; Ew-ing v. Stanley (Ky.), 69 S. W. 724; Haskell v. Tukesbury, 92 Me. 551; 69 Am. St. Rep. 529; 43 Atl. 500; Williams v. Robinson, 73 Me. 186; 40 Am. Rep. 352; Packard v. Richardson, 17 Mass. 122; 9 Am. Dec. 123; Little v. Nabb, 10 Mo. 3; Ruck-er v. Harrington, 52 Mo. App. 481; McWilliams v. Lawless, 15 Neb. 131; 17 IN. W. 349; Brown v. Fowler, 70 N. H. 634; 47 Atl. 412; Nibert v. Baghurst. 47 N. J. Eq. 201; 20 Atl. 252; Thornburg v. Masten, 88 N. C. 293; Reed v. Evans, 17 Ohio 128; Gregory v. Gleed. 33 Vt. 405.

3Ratcliff v. Trout, 6 J. J. Mar. (Ky.) 605; Gilman v. Kibler, 5 Humph. (Tenn.) 19; Fulton v. Robinson, 55 Tex. 401; Colgin v. Henley, 6 Leigh (Va.) 85.