This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
If A and B enter into an oral contract within the statute of frauds, and A subsequently makes and signs a written memorandum of such contract, which memorandum is not delivered but is retained by him in his own custody, the weight of authority holds that such memorandum is not a compliance with the statute.1 Some of the courts have been very positive in stating the uniform application of this rule.2 Thus a deed not delivered,3 or delivered only in escrow,4 or a deed repudiated by the vendee and destroyed by his consent,5 or a mortgage,6 or lease,7 not delivered, are none of them sufficient memoranda.
In other jurisdictions a written undelivered memorandum has been held sufficient.8 In such jurisdictions a deed, though delivered in escrow,9 or though not delivered at all,10 is a sufficient memorandum. An undelivered deed has been treated as at least an admission of some contract to convey.11 In some of the cases often cited on this point, the court either expressly avoids deciding the question,12 or decides it in obiter.13 If the parties have entered into a contract a memorandum of which has been delivered, an undelivered deed may be read in connection with such memorandum to show the terms of the contract.14
1Day v. Lacasse, 85 Me. 242; 27 Atl. 124; Merriam v. Leonard, 6 Cush. (Mass.) 151; Sanborn v. Sanborn, 7 Gray (Mass.) 142; Grant v. Levan, 4 Pa. St. 393; Nichols v. Op-perman, 6 Wash. 618; 34 Pac. 162.
2"We have been able to find no ease in which a writing signed by a party and kept in his possession without a delivery has been held to be a compliance with the statute." Johnson v. Brook, 31 Miss. 17; 66 Am. Dec. 547; quoted in Steel v. Fife, 48 la. 99; 30 Am. Rep. 388. "We have made a pretty thorough search but have been unable to find any case which sustains the position that an undelivered deed may be treated as a memorandum in writing."Wier v. Batdorf, 24 Neb. 83, 89; 38 N. W. 22. "To make it operative it must have been executed and delivered to the plaintiffs, or to some one in their behalf." Parker v. Parker, 1 Gray (Mass.) 409. 411. " It is essential that the writing required by the statute be delivered." Nichols v. Opperman. 6 Wash. 618; 34 Pac. 162.
3 Lodgsdon v. Newton, 54 la. 448; 6 N. W. 740; Morrow v. Moore, 98 Me. 373; 57 Atl. 81; Parker v. Parker, 1 Gray (Mass.) 409; Comer v. Baldwin, 16 Minn. 172; Schneider v. Vogler (Neb.), 97 N. W. 1018; Wier v. Batdorf, 24 Neb. 83; 38 N. W. 22; Brown v. Brown, 33 N. J. Eq. 650; Wilson v. Winters, 108 Tenn. 398; 67 S. W. 800.
4Kopp v. Reiter, 146 111. 437; 37 Am. St. Rep. 156; 22 L. R. A. 273; 34 N. E. 942; Day v. Lacasse, 85 Me. 242; 27 Atl. 124; Cogger v. Lansing, 43 N. Y. 550; Nichols v. Opperman, 6 Wash. 618; 34 Pac. 162; Popp v. Swanke, 68 Wis. 364; 31 N. W. 916.
5 Sullivan v. O'Neal, 66 Tex. 433; 1 S. W. 185.
6 Merriam v. Leonard, 6 Cush. (Mass.) 151.
7 Chesebrough v. Pingree. 72 Mich. 438; 1 L. R. A. 529; 40 N. W. 747.
8 Johnson v. Dodgson, 2 Mees. & W. 653; Drury v. Young. 58 Md. 546; 42 Am. Rep. 343; Hovekamp v. Elshoff, 3 Ohio N. P. 158.
Several questions, involved in these cases, are not always separated in discussion. First is the question whether the deed is so delivered as to constitute full performance on the part of the vendor.15 If full performance is had, it makes no difference whether the deed is a sufficient memorandum or not.16 If the deed is not delivered so as to constitute full performance, the question of its sufficiency as a memorandum becomes important. Such a deed may not be sufficient as a memorandum because it is not delivered. It may also be insufficient because it does not set forth the terms of the contract.17 Both these objections may exist at once, as where the deed is not delivered at all,18 or is delivered in escrow.19 In most of the adjudicated cases, however, holding that the deed is not a sufficient memorandum the court has discussed one or the other of these objections exclusively.
9Griel v. Lomax, 89 Ala. 420; 6 So. 741.
10 Jenkins v. Harrison, 66 Ala. 345; Work v. Cowhick, 81 111. 317; Bowles v. Woodson, 6 Gratt. (Va.) 78.
11 Hart v. Carroll, 85 Pa. St. 508; McGibbony v. Burmaster, 53 Pa. St. 332.
12 Steel v. Fife, 48 la. 99; 30 Am. Rep. 388.
13 Remington v. Linthicum, 14 Pet. (U. S.) 84; Harman v. Har-man, 70 Fed. 894; 17 C. C. A. 479.
14 Thayer v. Luce, 22 O. S. 62; approved but distinguished in Wier v. Batdorf, 24 Neb. 83; 38 N. W. 22; and Nichols v. Opperman, 6 Wash. 618; 34 Pac. 162; on the ground of the existence of the memorandum delivered.
15 See Sec. 714 et seq.
16 See Sec. 713 et seq.
17 Swain v. Burnette, 89 Cal. 564; 26 Pac. 1093; Kopp v. Reiter, 146 111. 437; 37 Am. St. Rep. 156; 22 L. R. A. 273; 34 N. E. 942; Overman v. Kerr, 17 la. 485; Parker v. Parker, 1 Gray (Mass.) 409; Ducett v. Wolf, 81 Mich. 311; 45 N. W. 829; Cagger v. Lansing, 43 N. Y. 550; Campbell v. Thomas, 42 Wis. 437; 24 Am. Rep. 427.
18 Swain v. Burnette. 89 Cal. 564; 26 Pac. 1093.
19 Kopp v. Reiter. 146 111. 437; 37 Am. St. Rep. 156; 22 L. R. A. 273; 34 N. E. 942.
A will has been held to be a sufficient memorandum, though, of course, not delivered.20 Where such an instrument contemplates immediate possession of certain realty by the promisee and his support of testatrix for her life, the contract is valid as a memorandum, though the propriety of calling it a will may be doubted.21 If a will is not held to be a sufficient memorandum, it is so held because it does not express the terms of the contract.22 No objection seems to be made to corporate records as memoranda, on the ground that they are not delivered.23 Where insufficient as memoranda it is generally because they do not disclose a contract, but merely an intention to make one in the future. So a resolution to sell its property, adopted by a corporation, is insufficient as a memorandum of a contract of sale made in pursuance of such resolution.24