64 In Osborne v. Baker, 34 Minn. 307, 308, 25 N. W. 606, 57 Am. Rep. 55, Mitchell, J., said: "If this was a new question, we have not much doubt but that we would hold with the respondent that the words 'for value received,' which acknowledge the receipt of consideration, do not express the consideration. But we think that, under the authorities, the question is foreclosed, and is really no longer an open one. So far as the question has ever been passed upon by the courts of this country, it has been invariably held, so far as we can ascertain, that the words 'for value received' sufficiently express the consideration to amount to a compliance with the requirements of the statute." See also Day v. Elmore, 4 Wis. 190, 196.
65 Lawrence v. McCalmont, 2 How. 426, 11 L. Ed. 326; Happe v. Stout, 2 Cat. 460; Boiling v. Munchus, 65 Ala. 558; Childs v. Barnum, 11 Barb. 14.
66 See supra, Sec. 115.
67 In Raikes v. Todd, 8 A. A E. 846, a memorandum was held insufficient because the actual consideration which was proved by parol was something different from that which might have been inferred from the memorandum itself.
and that what has been said in regard to the necessity of stating the consideration states sufficiently the requisite in regard to price. This is not wholly true, however. The price is a word ordinarily used with reference only to sales of land or personal property; but the wages or salary paid under a contract of employment are in effect a price, and in a broad sense the term may be used for any exchange given or agreed to be given on one side for the performance on the other. But consideration is not primarily the price for performance, but the price of the promise. The consideration of most unilateral contracts is indeed not only pay for the promise, but is the contemplated exchange for the performance of the promise.68 In bilateral contracts, however, the consideration on each side is always a promise while the price for performance on one side is not the promise on the other side, but its performance. Generally the obligation on one side will be expressly or impliedly conditional on performance of the other side of the contract. Accordingly it will generally be impossible to state accurately the obligation of one party to the contract without stating the price to be paid on the other side. How far a requirement that the promise with all its qualifications express or implied must be stated may be inconsistent with a rule which denies that consideration need be stated in the memorandum has already been discussed. The only satisfactory solution if consideration need not be stated, seems to be that if the price has been paid it need not be stated in the memorandum; but that otherwise the requirement of an exact statement of the defendant's obligation will require a statement of the price or exchange for the defendant's performance. In contracts for the sale of goods, as payment of the price, or any part of it, is an alternative method of satisfying the statute there is no necessity in any jurisdiction for stating a price which has already been paid under such a contract. If, however, a contract to sell is executory on both sides it is generally required that the price be stated.69 If the agreement in fact did not include a fixed price, none need be mentioned in the memorandum; the law will imply an obligation to pay a reasonable price and the memorandum need be no more definite than the contract itself was. The law will make the same implication in regard to the memorandum that it does in regard to the promise.70
68 This is true if the promise in the unilateral contract is unconditional. When B gives S $100 as consideration for S's promise to sell a horse, the 100 is not only consideration for the promise but it is the price which the parties have agreed upon as the equivalent or exchange for the horse, but if B paid $100 for a promise to insure his house, or to guarantee claims due him, or for an option on property, the money, though consideration for the promise, would not be the price or exchange for the performance of the promise.
Most of the decisions make no intimation of any possible conflict between the rule requiring statement of the price, and the rule existing in some jurisdictions that consideration need not be stated.71
69Elmore v. Kingacote, 6 B. & C. 583; Aoebal v. Levy, 10 Bing. 376; Goodman v. Griffiths, 1 Hurl. & N. 674; Rod v. Diamond Plate Glass Co., 85 Fed. 193, 29 C. C. A. 110; Turner v. Lorillard Co., 100 Ga, 645, 28 S. E. 383, 82 Am. St. Rep. 346; Waterman v. Meigs, 4 Cush. 497; Ashcroft v. Butter-worth, 138 Mass. 611; James v. Muir, 33 Mich. 223; Hanson «. Marsh, 40 Mian. 1, 40 N. W. 841; Stone v. Browning, 68 N. Y. 698, 604; Hail v. Misen-heimer, 137 N. C. 183, 49 S. E. 104, 107 Am. St. Rep. 474; Ide v. Stanton, 15 Vt. 685, 40 Am. Dec. 698; Scott v. Mel-ady, 27 Ont. App. 193. But see Glasgow Milling Co. v. Burgher, 122 Mo. App. 14, 99 S. W. 950. See also Tag-gart v. Hunter, 78 Oreg. 139, 152 Pac. 871, Ann. Cas. 1918 A. 128.
70Hoadly v. M'Laine, 10 Bing. 482; Valpy v. Gibson, 4 C. B. 837; O'Neil v. Grain, 67 Mo. 250; Moses Land Co. v. Stack-Gibbs Lumber Co., 66 Wash. 529, 106 Pac. 207.
71 See, however, Hayes v. Jackson, 159 Mass. 451, 34 N. E. 683. This was an action upon a contract for the sale of land, the only memorandum of the sale stated the sale to be "for the sum of $14,140, subject to a mortgage of $9,000." It was agreed by both parties at the trial that the assumption of the mortgage was part of the consideration and went to make up the sum of $14,140. A majority of the court held the contract enforceable, holding that Pub. Sts. c. 78, Sec. 2, making any statement of the consideration unnecessary, made an erroneous statement unimportant. Holmes, J., delivering the opinion of the majority, said: "Of course it may be said that, in a bilateral contract like the present, the contemporaneous payment of the price is a condition of the promise, and, therefore, that the promise cannot be set forth truly unless the consideration is stated. But the language of the section is general, and should be read as no doubt it was meant. The only effect is that a promise set forth as absolute may be subject to an implied condition of performance on the other side. When such an implied condition exists it will be be construed into the writing, and knowledge of the law gives notice of its possible existence. In some cases it has been held unnecessary to state the consideration, even when there is no provision like our section 2, although the consideration was executory. Thornburg v. Masten, 88 N. C. 293; Miller v. Irvine, 1 Dev. & Bat. 103; Ellis v. Bray, 79 Mo. 227; Vioiett v. Patten, 5 Granch, 142, 3 L. Ed. 61; Camp v. Moreman, 84 Ky. 635, 2 S. W. 179. In Howe v. Walker, 4 Gray, 318,
In contracts within the statute other than those for the sale of goods, the rule concerning the statement of consideration, whatever that may locally be, must be applicable to
Thomas, J., plainly indicated the opinion that section 2 of the statute applies in all cases, pointing out that this does not mean that when the parties are reversed the oral agreement will be sufficient to sustain an action." Field, C. J., with whom Knowlton, J., concurred, wrote an elaborate dissenting opinion, saying in part: "I do not know whether the majority of the court intend to make a distinction between contracts of sale described in the first section of Pub. Sts. c. 78 [land], and con tracts of sale described in the fifth section [goods, wares, and merchandise]. . . . When the whole contract or promise of the defendant is to do a certain thing, and this is an absolute promise, resting upon a consideration which has been executed, there is some reason in saying that the memorandum signed by the defendant need not contain the consideration or inducement of the contract or promise. But in a contract executory on both aides, where the promises are mutual, and each is the consideration of the other, the promises are conditional, and one party agrees to perform his part of the contract only on condition that the other will perform his part, and it cannot be known what the promise of the one is without knowing the express or implied promise of the other. A promise to convey land because the promisor has actually received $1,000 is not the same as a promise to convey land if the promisee will pay $1,000 on receiving the conveyance, and a promise to convey land for $1,000 to be paid on delivery of the deed in not the same as a promise to convey land for $10,000 to be paid on the delivery of the deed. The conditions on which the vendor agrees to convey are often many and complicated, and involve the .assumption of mortgages and the performance of other acts. If a mere acknowledgment in writing by the vendor that he has agreed to convey specific land to the vendee on terms which are not expressed is sufficient to satisfy the Statute of Frauds, then it is open to the vendee to prove by oral testimony the price to be paid, and all the other terms of the contract to be performed by him, and the statute will no lorger prevent frauds and perjuries. If it is a condition of the promise of the vendor that it is not to be performed unless at the time of the performance the vendee pays money and gives or assumes mortgages, the condition qualifies the promise and is a part of it, and the writing should contain all that is essential to show what the promise or contract on the part of the vendor in fact was. The decision of the court seems to me in part great to nullify the statute." The rule which the majority of the courts here enforce has been applied in contracts for the sale of land in Nebraska and Texas. Ruz-icka v. Hotovy, 72 Neb. 589, 101 N. W. 328; Dyer v. Winston, 33 Tes. Civ. App. 412, 77 S. W. 227, on the ground that a memorandum need not contain all the terms of the bargain between the parties. See supra, Sec. 575, n. ad fin. But in New York after the repeal of a statutory requirement that the consideration must be expressed in the memorandum, the court said, in dealing with a bilateral contract to employ and to serve: "The agreement of the defendants in this case was not merely to pay bo much money to plaintiff. It was to pay him that money for his services as salesman to be thereafter rendered. For what the payment was to be made constituted a material and essential element of the agreement unilateral contracts where the price is the exchange for the performance of the promise. In bilateral contracts it is possible to hold, and would doubtless generally be held, that even though a statement of the plaintiff's promise is not necessary, a statement of the performance which the plaintiff was to give in exchange for the defendant's performance must be stated, since the giving of the plaintiff's performance qualifies the defendant's obligation.