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.
The second question concerns the consideration when it consists of executory promises. In such cases the consideration is not only important because it makes the executory promise of the adversary party enforceable, but it is itself one of the promises which with that of the adversary party complete the contract. Omitting to state a consideration which is an executory promise is therefore omitting one of the terms of the contract. Accordingly the weight of authority, even in states where an executed consideration need not be expressed in the memorandum, requires the memorandum to disclose the consideration when it consists of executory promises.1 The distinction be-
4Speer v. Crowder (Ala.), 32 So. 658; Lindsay v. McRae, 116 Ala. 542; 22 So. 868; White v. White, 107 Ala. 417; 18 So. 3; Baltimore Breweries Co. v. Callahan, 82 Md. 106; 33 Atl. 460; Siemers v. Siemers, 65 Minn. 104; 60 Am. St. Rep. 430; 07 X. W. 802; Cooley v. Lobdell, 153 N.Y. 596; 47 N. E. 783; Kuener v. Smith, 108 Wis. 549; 84 N. W. 850; Van Doren v. Roepke, 107 Wis. 535; 83 N. W. 754; Twohy Mercantile Co. v. Drug Co., 94 Wis. 319: 68 X. W. 9G3.
5 Williams v. Robinson. 73 Me.
186; 40 Am. Rep. 352; White v. Mfg. Co., 179 Mass. 427; 60 X. E. 791; Hayes v. Jackson, 159 Mass. 451; 34 X. E. 683; McWilliams v. Lawless, 15 Neb. 131; 17 X. W. 349.
1 Taylor v. Smith (1893), 2 Q. B. 65; Arnold v. Garth, 106 Fed. 13; Reid v. Plate-Glass Co., 85 Fed. 193; 29 C. C. A. 110; Peoria Grape Sugar Co. v. Babcock Co., 67 Fed. 892; Phillips v. Adams. 70 Ala. 373; Turner v. Lorillard Co., 100 Ga. 645; 62 Am. St. Rep. 345; 28 S. E. 383 (citing. Wain v. Warlters, 5 tween the necessity of stating the consideration and the necessity of stating the price is recognized in those jurisdictions in which the price must be stated if an executory promise, but if executed, it need not be stated.2
Thus a memorandum of a sale of realty in the form of a receipt, which shows the price for one-third of which the receipt is given, and which provides that a title bond will be given on the execution of notes for the balance, is defective if it does not show how many notes are to be given, when they are due and what rate of interest they are to bear.3
The price may be sufficiently described by reference to other instruments, however. Thus a memorandum of a contract for the sale of realty at a given price with a clause providing for the payment of a certain part of the purchase price "by the assignment of a certain mortgage now held by X for that amount" describes the mortgage with sufficient certainty.4 A memorandum which shows that certain terms of credit and of the payment of the purchase price have been agreed upon, but which does not show what such terms are, is defective.5 A memorandum so indefinite that it might show a contract to sell realty or a contract of agency is insufficient.6
East 10; Elmore v. Kingscote, 5 Barn. & C. 583; Acebal v. Levy, 10 Bing. 376; Ex-parte Gardom, 15 Ves. Jr. 286; Goodman v. Griffiths, 1 Hurl. & N. 574; Ashcroft v. But-terworth, 136 Mass. 511; Waterman v. Meigs, 4 Cush. (Mass.) 497; James v. Muir, 33 Mich. 223; Hanson v. Marsh, 40 Minn. 1; 40 N. W. 841; Stone v. Browning. 68 N. Y. 598; Ide v. Stanton. 15 Vt. 685; 40 Am. Dec. 698) ; Norris v. Blair, 39 Ind. 90; Fry v. Platt, 32 Kan. 62; Kay v. Curd.. 6 B. Mon. (Ky.) 100; Rector Provision Co. v. Sauer, 69 Miss. 235; 13 So. 623; Newberry v. Wall, 65 N. Y. 484. This rule obtains even where on revision the clause in the statute requiring the consideration to appear is intentionally omitted. Drake v. Seaman. 97 N. Y. 230. In Kelly v. Thuey. 143
Mo. 422; 45 S. W. 300; reversing in banc, 37 S. W. 516, the court pointed out that the "heresy" that oral evidence was admissible to show the price, which had once been entertained by the Missouri court in O'Neil v. Grain, 67 Mo. 250, and Ellis v. Bray, 79 Mo. 227. had been corrected in Ringer v. Holtzslaw, 112 Mo. 519; 20 S. W. 800. and Boyd v. Paul, 125 Mo. 9; 28 S. W. 171.
2 Sayward v. Gardner. 5 Wash. 247; 31 Pac. 761; 33 Pac. 289.
3 Nelson v. Improvement Co.. 96 Ala. 515; 38 Am. St. Rep. 116; 11 So. 695.
4 Loveridge v. Shurtz, 111 Mich. 618; 70 X. W. 132.
5 Snow v. Nelson, 113 Fed. 353; Nelson v. Improvement Co., 96 Ala. 515; 38 Am. St. Rep. 116; 11 So.