The matter may be considered either from the standpoint of the technical language of the statute, or from the standpoint of practical desirability. Doubtless if the language of the statute has a clear meaning, it must control even if the results reached by following that reasoning are unfortunate. But if the words of the statute are open to more than one construction, that possible construction which effects the general purpose of the statute and which produces the best practical result should be accepted. The English statute uses the several words "contract" "promise" and "agreement," with reference to the bargains which are within the terms of the statute; and the American statutes likewise use one or more of these words. It is a memorandum of one of these things which is necessary. The word "promise" normally is confined in its meaning to an expression of what the promisor has undertaken to do in the future; such a statement is properly called a promise, although it makes no mention of why the promise was made or what, if anything, was paid for it. A memorandum which stated that something had been paid as consideration for the promise is stating something additional to the promise. A "contract" means more than a promise, for a contract certainly may include several promises on one or both sides of the bargain; and here a possible ambiguity arises. Wholly executed consensual agreements have not infrequently been called contracts, but the modern use of the term confines it to executory obligations.39
Leigh, 86,100, 103; Saunders v. Bank of Mecklenburg, 112 Va. 443, 71 S. E. 714, Ann. Cas. 1913 B. 982.
37 Lindsay v. McRae, 118 Ala. 542, 22 So. 868; Eppich v. Clifford, 6 Col. 493 (sale of land); Sackett v. Palmer, 25 Barb. 179 (guaranty); Castle v. Beardsley, 10 Hun, 343 (guaranty); (The New York statute was repealed, but the same result is still reached because the court holds this to be in accordance with the common law. Unicn Nat. Bank v. Leary, 77 N. Y. App. D. 332, 79 N. Y. S. 217); Bogard v. Barhan, 56 Oreg. 269, 108 Pac. 214; Taggart v. Hunter, 78 Oreg. 139, 152 Pac. 871, Ann. Cas. 1918 A. 128; Parks v. Elmore, 59 Wash. 584, 110 Pac. 381 (sale of goods under Oregon statute). Stimson's American Statute Law, Sec. 4142, gives Alabama, Nevada, and Oregon, as having this atat-utoiy requisite. See also Twohy Mercantile Co. v. Ryan Drug Co., 94 Wis. 319, 68 N. W. 963 (guaranty).
38 Reid v. Diamond Plate Glass Co., 85 Fed. 193, 29 C. C. A. 110 (Michigan; sale of goods); Ullsperger v. Meyer, 217 111. 262, 264, 75 N. E. 482, 2 L. R. A. (N. S.) 221, 3 Ann. Cas. 1032; Knapp v. Beach, 52 Ind. App. 573, 101 N. E. 37 (sale of goods); Camp v. Moreman, 84 Ky. 635, 2 S. W. 179 (sale of land); Campbell v. Preece, 133 Ky. 572, 118 S. W. 373 (sale of land); Haskell v. Tukesbury, 92 Me. 551, 554, 43 Atl. 500 (guaranty); Hieston v. National City Bank, 132 Md. 389, 104 Atl. 281; Hayes v. Jackson, 159 Mass. 451, 34 N. E. 683 (sale of land); Desmarais v. Taft, 210 Mass. 560, 97 N. E. 98 (sale of land); Rusicka v. Hotovy, 72 Neb. 589, 101 N. W. 328 (sale of land). Stimson's American Statute Law gives the following States as having statutory provisions that the memorandum need not mention the consideration: Illinois, Indiana, Kentucky, Maine, Massachusetts, Michigan, New Jersey, Virginia. These statutes do not in all cases, however, include all kinds of contract which are within the statute.
The lack of apparent reason for the varying use of this word and the word " promise " in the Statute of Frauds makes it undesirable to exaggerate any distinction between the two, but certainly a memorandum of a contract should contain, if the natural meaning is given to the word contract, a statement of all the promises of both parties to the bargain. "Agreement" though naturally a word of wider import than "contract"40 seems to mean the same thing as used in the Statute of Frauds. Frequently in common speech the word is so used. If the word "promise" was held to require no statement of any executory performance due from the other party to the bargain, certainly a great difference would have to be taken between a statutory requirement of a written memorandum of a "contract" and of a "promise." But even the word promise certainly includes in its meaning not simply a statement of the performance which the promisor was to render, but of the conditions on which he was to render such performance. If A promises to pay $5,000 on the conveyance to him of Blackacre, his promise cannot be accurately ation, but when that act has been performed the contract and the promise of the obligor are absolute and a memorandum may express the whole contract, though it makes no mention of the consideration. The same principle may be applicable in a bilateral contract after performance on one side; for a transaction which was originally bilateral may become a unilateral contract by the acceptance of full performance by one side.43 Accordingly, here too, a memorandum of the promise which stated it in absolute terms would be an accurate statement of the promise in the second or unilateral contract, though it would not be an accurate statement of the promise in the first or bilateral contract. The memorandum, it is true, is made before the unilateral contract arises, but it is no valid objection to a memorandum that it was made before the contract.44 The result therefore is that it is a reasonable construction of the language of the statute to conclude that the executory performance which will be due from each party must be stated in the memorandum, but that so much of the bargain as has been fully executed need not be stated. This result is supported by the weight of authority in the United States, as shown by the decisions cited in the preceding section. It seems too, that this result is practically the most desirable. Where performance on one side has been rendered there is a double reason, aside from the technical words of the statute, why no statement of the performance should be necessary in the memorandum. In the first place, something has been done; not merely said. The transaction does not rest wholly in parol.45 In the second place, the instated merely as a promise to pay $5,000. It is indeed too clear for argument that an express condition which qualifies a promise is itself part of the promise. Even though a promise is subject to no express condition, the promisor's obligation may be qualified by an implied condition. If A promises $5,000 in consideration of B's promise to convey Blackacre, A is no more bound to pay the price until he receives the conveyance than if he had qualified his promise by an express condition.41 It is therefore fair to construe a provision that a promise shall not be enforceable without a written memorandum as requiring the memorandum to contain a statement of all conditions, implied as well as express, qualifying the promise. The result of such a rule will be that generally executory performance due from the plaintiff as well as that due from the defendant must be stated in the memorandum; not as consideration, however, but as condition. The distinction is illustrated in a leading case.42 The memorandum there was - "We agree to give E 19 d. per lb. for 30 bales of Smyrna cotton customary allowance, cash 3%, as soon as our survey is complete." This was signed by the defendant. It will be observed that this memorandum does not state any counter promise to sell. It does, however, state the proposed price or consideration for the defendant's performance. If the statement of the consideration for the defendant's promise is essential, the memorandum is inadequate. Nor can it be inferred from the memorandum what the consideration was, or, indeed, that there was any consideration for the promise. It is equally possible to suppose that the paper was evidence of an option for which E had given cash consideration, or that E had made a counter promise to sell, or that the paper was an offer without present consideration. The full terms of the bargain, therefore, were not stated; but the defendant's promise is stated in full with the condition which qualifies it of payment of a certain price. Not only is executed consideration no part of a "promise," but it seems that such consideration is not part of a "contract" or "agreement." When an offer for a unilateral contract is made, the offer is conditional on performance of the act requested as consider-