39 See supra, Sec.Sec. 1, 14.

40 See supra, Sec. 2.

41 See infra, Sec. 835.

42 Egerton v. Mathews, 6 East, 307.

43 See supra,Sec.Sec. 49, 106.

44Thus a written offer is generally held a sufficient memorandum. See infra, Sec. 579.

45 In Andersen v. Young, 74 N. H. 428, 69 Atl. 122, a deed which was ineffectual to pass title was used as a memorandum though the consideration for the transfer did not appear in the deed. The court said (at p. 431): "The defendant further contends that the memorandum required by the statute of frauds must be sufficient not only to identify the parties and the land, but also the price, without a resort to parol evidence; and that while it may be presumed that the deed states a consideration and acknowledges its receipt, such a statement is not a statement of the agreed price and as such conclusive upon the parties. An objection similar to this was interposed in the case of Fugate v. Hansford, 3 Littell, 282, where the memorandum did not state the price, but contained a statement acknowledging that the justice of the situation created is serious if a party who has fully performed cannot recover. This injustice is so obvious that in the seventeenth section, the statute expressly provides that either part payment of the price, or part delivery of the goods, satisfies the statute; while under the fourth section of the statute, equity has elaborated a doctrine for the enforcement of oral contracts for the sale of land where there has been part performance;46 and in contracts not to be performed within a year, many courts have held the statute inapplicable where there has been full performance on one side.47

In such cases as are not covered by these doctrines, where there has been part performance and the contract is unenforceable because of the Statute of Frauds, recovery is generally allowed on the theory of quasi-contract.48 None of these principles, however, help one who has advanced money or goods on the faith of a guaranty. His performance is not sufficient to make the contract enforceable, nor can he get quasi-contractual relief against the guarantor, since the latter has derived no benefit from the advance, though he himself has incurred a detriment at the guarantor's request. It is for this reason that a rule requiring a statement of executed vendor had 'received value in full,' and the court in answer to the objection said: 'Where the contract is executory on both sides, it is doubtless necessary that the land sold and the price should be both evidenced by some memorandum in writing and signed by the party to be charged, as the statute requires; but where the contract is executed on the part of the purchaser, by the payment of the price, and that fact is evinced by written evidence, as in this case, it would seem, according to the reason of the thing, sufficient, without stating the precise price. There is in such a case nothing to be ascertained by parol proof, for the purpose of enforcing such a contract; and, of course, the danger of frauds and perjuries in setting up parol agreements, to guard against which was the object of the statute, is not in such a case to be apprehended. We cannot, therefore, think that the statute constitutes a good defence." To the same effect see: Sayward v. Gardner, 5 Wash. 247, 255, 31 Pac. 761,2 Reed St. Frauds, s. 593, 20 Cyc. 269, note 62.

In Carpenter v. Tinglof, 76 N. H. 454, 84 Atl. 51, the court in denying validity as a memorandum to a receipt stating that $50 had been received as part payment for a certain estate, said that a statement of the consideration was necessary in the memorandum "except when the consideration has been paid, and the writing contains an acknowledgment that payment has been made in full." It would seem that if payment has in fact been made in full, the memorandum should be sufficient though it does not so state.

46Seesupra, Sec. 494.

47 See supra, Sec. 504.

48See supr, Sec.Sec. 534-537; Woodward, Quasi-Contracta, Sec.Sec. 93-108.

consideration in the memorandum works peculiar hardship in case of guaranties. This is the only case within the statute where a plaintiff who has fully performed the consideration, is wholly without relief, if the memorandum of his contract is held insufficient. It is not surprising, therefore, that most of the cases involving the requirement of a statement of consideration relate to contracts of guaranty. A subsidiary question arises where statutes have been passed as they have in some States,49 expressly providing that the consideration need not be stated in the memorandum. Should such statutes be construed as enacting that the consideration as such need not be stated, but that the defendant's promise must be accurately stated with all its express or implied qualifications, even though these involve to some extent a statement of the consideration; or should such a statute be held to mean that the consideration need not be stated either as such or as a term or condition of the defendant's promise? Having in mind the state of the law which led to the enactment of these statutes, it seems a reasonable construction of them to hold that where a proposed contract is unilateral, only the promisor's promise need be stated; but where the proposed agreement is bilateral, even though the performance of one promise is not expressly conditional on the performance of the other, the memorandum must contain a sufficient statement of what the plaintiff as well as what the defendant was to do, since the plaintiff's obligation to perform in a greater or less degree qualifies the defendant's promise.50

Sec. 572. Contents of the memorandum. Consideration if not necessary may be inaccurately stated. The difficulties in regard to excusing the statement of the consideration are accentuated if the consideration is stated erroneously. It may be urged that if the consideration need not be stated at all, there is no objection to stating it inaccurately since the statement will be mere surplusage. This has indeed been so held.51 If the misstatement of the consideration involves a misstatement of the defendant's obligation, as it is likely to, if the consideration is executory, the result is an unfortunate one, since the defendant is held upon promise which does not correctly state his legal duty, and the whole object of the statute seems in great measure frustrated.52 Yet even where consideration is said to be necessary, a statement of a fictitious and formal consideration has been held sufficient.53 Such decisions in effect hold that though a statement of consideration is necessary, the statement need not be an accurate one.

49 See the preceding section.

50 This result has been reached in - Raid v. Diamond Plate Glass Co., 85 Fed. 193, 28 C. C. A. 110, and Williams v. Robinson, 73 He. 186, 40

Am. Rep. 352. A contrary decision is Hayes v. Jackson, 150 Mass. 451, 34 N. E. 683. The matter is there fully discssed in majority and minority opinions. See infra, Sec. 674, n. 71.