In a case decided near the beginning of the nineteenth century,28 the Court of Kings Bench held that a promise to pay a debt of another could not be enforced when the memorandum simply stated the promise but did not state its consideration, though the consideration was fully executed. Lord EHenborough rested the decision mainly on a distinction which he took between the word "agreement" as used in the fourth section of the statute, and the word "promise." A memorandum of the "agreement" he said required a statement of what the promisee was to do, or had done, as well as what the promisor was to do. This distinction was, however, not much insisted on in later English cases, and it is probable that the words "agreement," "contract," "promise," are used too loosely both in English and American statutes to justify inferences of legislative intent.29 Nevertheless the early decision was followed, though rested on another ground, namely, that the memorandum should contain all the terms of the bargain necessary for a complete cause of action without the aid of parol evidence.30 It was suggested in one of the early cases,11 that the Statute of Frauds in requiring a statement of consideration was merely following a rule of the common law, generally applicable to writings. Best, C. J., said: "When therefore, the latter part of the clause, as if all those precedent words were incorporated in it, together with the word agreement, and then it would stand thus, "unless the agreement, special promise, contract, or sale, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed," etc. Also see the remarks in Whitby v. Whitby, 4 Sneed, 473.
28 Wain v- Warlters, 5 East, 10.
29 The fourth section of the English statute provides against the bringing of an action, (1) to charge an executor on his "special promise," or (2) a guarantor on his "special promise," or (3) a person on "any agreement," in consideration of marriage, or (4) on any "contract or sale" of lands, or (4) upon "any agreement" not to be performed within a year, "unless the agreement ... or some memorandum or note thereof" is in a signed writ-
In commenting on this language, Abbott, C. I., said in Saunders v. Wakefield, 4 B. & Ald. 595, 590: - " Now in the former part of the section, we find the words, special promise, agreement, contract, or sale. I read.
30 Saunders v. Wakefield, 4 B. &. Ald. S95; Morlcy v. Boothby, 3 Brag. 107; Hawea v. Armstrong, 1 Bing. (N. C.) 761; Jenkins v. Reynolds, 3 Brod. & B. 14; James p. Williams, 5 B. A Ad. 1109; Raikes p. Todd, 8 Ad. A El. 846; Price v. Richardson, 15 M. A W. 539.
31 Morley v. Boothby, 3 Bing. 107, 112.
the Statute of Frauds declared that no person should be charged with the debt of another except on an agreement in writing, if the clause in the statute had not expressed (as I think it does) that the whole agreement should be in writing, the law of evidence would have rendered it necessary the whole should have been in writing, by declaring, as it uniformly has done, that nothing could be added to the terms expressed in writing by parol testimony. Applying the principles of common law to the statute, which is a safe mode of construing acts of the legislature, I say, as I said in Saunders v. Wakefield, that if I had never heard of Wain v. Walters I should have held, that a consideration must appear on the face of the written instrument." No authority is cited, however, for the statement that executed consideration for a written contract could not be proved at common law, and there seems to be no authority warranting such a conclusion. It is clear enough at the present day at any rate that though such consideration for a written contract not within the Statute of Frauds is not stated or is misstated in the writing, it may be proved without violating the parol evidence rule.32
In 1856 a statute repealed in England the requirement that consideration must be stated in a memorandum of a guaranty.33 Except in this case, however, it is still said to be the rule of the English law that the memorandum must show the consideration for the contract.34 This statement must, however, be accepted with some qualification. A memorandum which states all the terms of a bargain which were agreed upon expressly, need not state those which are implied in fact; where an agreement to buy or sell is made without a fixed price, the memorandum need not state that the contract was for a reasonable price, though that is the legal effect of the agreement.35
In the United States some courts have followed the doctrine of Wain v. Walters.36
32 Supra, Sec.115.
33 Mercantile Law Amendment Act, 19 & 20 Vic c 97.
34 7 Halsbury's Lawn of England, 374. 35 Hoadley v. M'Laine, 10 Bing. 482.
36 5 East, 10; Drovers' Deposit, Nat Bank v. Tichenor, 200 Fed. 318 (guaranty); Dillworth v. Holmes Furniture Ac. Co. (Ala. App.), 73 So. 288 (guaranty); Ellison v. Jackson Water Co.,
In the greater number of jurisdictions, however, the courts have declined to follow the English rule, sometimes on the ground that the local statute in question did not use the word "agreement"; sometimes on other grounds.36a In some
12 Cal. 642; Weldin v. Porter, 4 Houst. 236; Buckley v. Beardelee, 2 South. 570, 8 Am. Deo. 620; Kerr v, Shaw, 13 Johns. 236 (warranty of quiet enjoyment); Hargroves v. Cooke, 16 Ga. 321 (guaranty), (but see Turner v. Lorillard Co., 100 Ga. 645, 28 S. E. 383, sale of goods); Patmore v. Haggard, 78 111. 607, (sale of land. Because the statute required " contract" to be in writing. The court held a memorandum of a guaranty need not state consideration, because statute used the word "promise" in that connection); Ordeman v. Lawson, 49 Md. 13S (guaranty); Emerson v. Aultman, 69 Md. 125, 14 Atl. 671; Nichols v. Allen, 23 Minn. 512; Siemers v. Siemens, 65 Minn. 104, 67 N. W. 802, 60 Am. St. Rep. 430 (promise in consideration of marriage). (See also Alger v. Minnesota L. & T. Co., 135 Minn. 235, 159 N. W. 665, 160 N. W. 765, guaranty); O'Bannon v. Chumasero, 3 Mont. 419; Drake v. Seaman, 97 N. Y. 230 (guaranty); Cooley v. Lob-dell, 82 Hun, 98, 31 N. Y. S. 202, 153 N. Y. 596, 600, 47 N. E. 783; Union Nat. Bank c Leary, 77 N. Y. App. D. 332, 79 N. Y. S. 217 (guaranty); Stephens v. Winn, 2 Nott & McC. L. 372 (guaranty); Parry v. Spikes, 49 Wis. 384, 5 N. W. 794, 35 Am. Rep. 782 (guaranty indorsed on note); Commercial Nat. Bank v. Smith, 107 Wis. 574, 83 N. W. 766 (guaranty indorsed on promissory note); Klee v. Stephenson, 130 Wis. 505, 110 N. W. 479; Palsgrave v. Murphy, 14 U. Can, C. P. 153.
36a Violett v. Patton, 5 Crunch, 142,3 L. Ed. 61 (indorsement of note, court relies on the statute; also on the fact that note stated it was "for value received); Dunlap v. Hopkins, 95 Fed. 231, 37 C. C. A. 52 (guaranty under Illinois statute); Rigby v. Norwood, 34 Ala. 129 (guaranty indorsed on note); Westmoreland v. Porter, 75 Ala. 452, 457 (guaranty); Sage v. Wilcox, 6 Conn. 81 (guaranty indorsed on note); McCormick v. Boylan, 83 Conn. 686, 688, 78 Atl 335, Ann. Cas. 1912 A. 882 (guaranty); Dorman v. Bigelow, 1 Fla. 281 (guaranty); Davis v. Tift, 70 Ga. 52; Patmor v. Haggard, 78 111. 607 (guaranty); Hamlin v. Piser, 163 111. App. 63 (guaranty); Ratliff v. Trout, 6 J. J. Marsh. 605 (saleof land); Ewing v. Stanley, 24 Ky. L. Rep. 633, 69 S. W. 724 (sale of land); Gillighan v. Boardman, 29 Me. 79 (guaranty); Williams v. Robinson, 73 Me. 186 (sale of goods), 40 Am. Rep. 352; Packard v. Richardson, 17 Mass. 122,9 Am. Dec. 123 (guaranty on promissory note); DeCamp v. Scofield, 75 Mich. 449, 42 N. W. 962 (guaranty); Wren v. Pearce, 12 Miss, 91 (guaranty); Halsa v. Halsa, 6 Mo. 303 (sale of land); Ellis v. Bray, 79 Mo. 227; Runickn v. Hotovy, 72 Neb. 589,101 N. W. 328 (sale of land); Goodnow v. Bond, 59 N. H. 150 (guaranty); Brown v. Fowler, 70 N. H. 634, 47 Atl. 412 (guaranty); [cf. Carpenter v. Tinglof, 76 N. H. 454, 84 Atl. 51 (sale of land)]; Ashford v. Robinson, 8 Ired. 114 (guaranty); Thomburg v. Masten, 88 N. C. 293 (sale of land); Reed v. Evans, 17 Ohio, 128 (guaranty); Shively v. Black, 45 Pa. 345 (guaranty); Hopkinaon v. Davis, 5 Phils. 147 (guaranty); Sholoviti v. Noori-gjan (R. I.), 107 Atl. 94 (sale of land); Fulton v. Robinson, 55 Tex. 401; Dyer v. Winston, 33 Tex. Civ. App. 412, 77 S. W. 227 (sale of land); Gregory v. Gleed, 33 Vt. 405; Colgin v. Henley, 6
States the matter has been settled by statutes some of which enact that consideration must be stated.37 Others enact either broadly that it need not be stated, or more commonly, specifically that it need not be stated in case of a guaranty.38 An examination of the matter on principle will help to a proper conclusion as to the meaning and the merits of the conflicting rules.