Same - Price And Terms Of Payment

The price is usually regarded as an essential term of a contract of sale and as such is required to be stated in the memorandum.27 This is certainly true where the action is by the vendor against the vendee, for the promise to pay the price is the most important part of the contract of the party who is sought to be charged.28 It has been held, however, that a statement of the price is not necessary if it has been paid;29 and some courts hold such statement not necessary to the sufficiency of a memorandum in a suit by the vendee against the vendor.80

26 Atwood v. Cobb, 16 Pick. (Mass.) 230, 26 Am. Dec. 657. And see ULL-SPERGER v. MEYER, 217 111. 262, 75 N. E. 482, 2 L. R. A. (N. S.) 221, 3 Ann. Cas. 1032, Throckmorton Cas. Contracts, 74; Peck v. Vandemark, 99 N. Y. 29, 1 N. E. 41; Frazer v. Howe, 106 111. 563; Farwell v. Mather, 10 Allen (Mass.) 322, 87 Am. Dec. 641; Gordon v. Avery, 102 N. C. 532, 9 S. E. 486. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 113; Cent. Dig. §§ 239-241.

27 Webster v. Brown, 67 Mich. 328, 34 N. W. 676; Fry v. Piatt, 32 Kan. 62, 3 Pac. 781; Hanson v. Marsh, 40 Minn. 1, 40 N. W. 841; Phelps v. Still-ings, 60 N. H. 505; Soles v. Hickman, 20 Pa. 180. Contra in Texas, Morrison v. Dailey (Tex.) 6 S. W. 426; Fulton v. Robinson, 55 Tex. 401. ■

"If the promise in terms, however, be to pay what the goods are reasonably worth, or if the promise be simply to pay for the goods, from which the law would infer a promise to pay their reasonable worth, then no definite or fixed price need be stated in the writing." Turner v. Lorillard Co., 100 Ga. 645, 28 S. E. 383, 62 Am. St. Rep. 345, per Cobb, J. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 112; Cent. Dig. § 23S.

28 Ide v. Stanton, 15 Vt. 685, 40 Am. Dec. 698; Adams v. McMillan, 7 Port (Ala.) 73; Hall v. Misenheimer, 137 N. C. 183, 49 S. E. 104, 107 Am. St. Rep. 474. In the case last cited it is said, per Walker, J.: "There is quite a difference between the price to be paid by the vendee and the consideration necessary to support the contract and enforce it against the vendor. The latter can be shown by parol as at common law, and the writing, as said by Ruffin, C. J., in Miller v. Irvine [18 N. C. 104], need not contain any matters but such as charge him (the vendor); that is, such stipulations as are to be performed on his part. He is to convey, and the writing must be sufficient to show that this duty rests upon him, as one of the parties to the contract, when he is sought to be charged. The vendee is to pay a certain price, and the writing must likewise show his obligation - its nature and extent - when the action is against him" [citing Clark on Contracts (2d Ed.) pp. 85, 86, 87]. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 112; Cent. Dig. § 238.

29 Skyward v.. Gardner, 5 Wash. 247, 31 Pac. 761, 33 Pac. 389. See "Frauds, Statute of," Dec. Dig. (Key-No.) § 112; Cent. Dig. § 238.

Even where the price is stated, some courts hold the memorandum insufficient if it fails to state the terms of payment.31