Same - Form Required

59. The rules as to the form required by section 17 are the same as in case of section 4, except that the consideration of the promise of the party to be charged need not appear.

The note or memorandum is sufficient if it comply with the rules already stated with reference to the form required by section 4. It is not necessary, however, that the consideration of the promise of the party to be charged be stated; in other words, if the memorandum contains his promise, it need make no reference to the promise of the other party.57 So if a letter or memorandum in the form of an offer states the terms of the proposed contract, the acceptance need not repeat the terms,68 and indeed may even be made orally.59 But the price is a material part of the bargain, and must be stated,80 though if it be not agreed upon, but is implied, a memorandum which states no price is sufficient.61

54 White v. Drew, 56 How. Prac. (N. Y.) 53; Weir v. Hudnut, 115 Ind. 525, 18 N. E. 24. Surrender of seller's note, Sharp v. Carroll, 66 Wis. 62, 27 N. W. 832; transfer of bill or note, Griffiths v. Owen, 13 Mees. & W. 58; under statute requiring payment at time, delivery of cheek, Hunter v. Wet-sell, 84 N. Y. 549, 38 Am. Rep. 544. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 95; Cent. Dig. §§ 183-1S5.

55 Johnson v< Tabor, 101 Miss. 78, 57 South. 365. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 95; Cent. Dig. §§ 188-185,

56 Groomer v. McMillan, 143 Mo. App. 612, 128 S. W. 285. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 95; Cent. Dig. §§ 183-185.

57 Edgerton v. Mathews, 6 East, 307; Sarl v. Bourdillon, 1 C. B. N. S. 188; Smith v. Ide, 3 Vt. 290; Williams v. Robinson, 7.' Me. 186, 40 Am. Rep. 852. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 103; Cent. Dig. §§ 192-208.

58 Jennings v. Shertz, 45 Ind. App. 120, 88 N. E. 729. See "Frauds, Statute of," Dec. Dig. (Key-No.) §§ 108, 112; Cent. Dig. §§ 214,-221, 238.

59 Reuss v. Picksley, L. R. 1 Ex. 342; Sanborn v. Flagler, 9 Allen (Mass.) 474; Justice v. Lang, 42 N. Y. 493, 1 Am. Rep. 576; Gradle v. Warner, 140 111. 123, 29 N. E. 1118; Kessler v. Smith. 42 Minn. 494, 44 N. W. 794. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 103; Cent. Dig. §§ 192-208.

Same - Effect Of Noncompliance

60. As in case of section 4, it is generally held that failure to comply with the provisions of section 17 does not render the contract void, but merely prevents its enforcement.

This section declares that, if there be no acceptance and receipt, no earnest or part payment, and no note or memorandum, the contract shall not "be allowed to be good," thus differing from section 4, which merely declares that no action shall be brought. In England it seems not to have been directly decided whether these words mean that the contract shall be utterly void, or merely incapable of being sued upon, as in case of contracts under section 4; and the dicta of the judges are conflicting. The latter position is sustained by the weight of opinion.62 In Massachusetts, where the statute provided that no such contract should be "good or valid," it has been held that the difference in the wording of the two sections was immaterial, and that failure of a contract to comply with the requirements of section 17 does not go to its existence, but merely renders it unenforceable by suit, as under the fourth section.63 In Missouri, however, it has been held that section 17 goes to the very existence of the contract.64 In some states the statute declares that the contract shall be "void."

60 KEMENSKY v. CHAPIN, 193 Mass. 500, 79 N. E. 781, 9 Ann. Cas. 1168, Throckmorton Cas. Contracts, 97; Elmore v. Kingscote, 5 B. & C. 583; Ash-croft v. Butterworth, 136 Mass. 511; Stone v. Browning, 68 N. Y. 598; Hanson v. Marsh, 40 Minn. 1, 40 N. W. 841; Glasgow Milling Co. v. Burgher. 122 Mo. App. 14, 97 S. W. 950. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 112; Cent. Dig. § 2S8.

61 Hoadley v. McLaine. 10 Bing. 482; Ashcroft v. Morrison, 4 M. & G. 450. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 112; Cent. Dig. § 238.

62 Anson, Cont. (4th Ed.) 67; Pol. Cont. 605.

63 Townsend v. Hargraves, 118 Mass. 325; Wainer v. Insurance Co., 153 Mass. 335, 26 N. E. 877, 11 L. R. A. 598. See, also, Bird v. Munroe, 66 Me. 337, 22 Am. Rep. 571; ante, p. 114. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 125; Cent. Dig. §§ 275-277 1/2.

64 Houghtaling v. Ball. 20 Mo. 563. See, also. Green v. Lewis, 26 U. C. Q. B. 618. See "Frauds, Statute of," Dec. Dig. (Key-No.) % 125; Cent. Dig. §§ 275-277 1/2.