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 the contract is one which falls within the terms of the Statute of Frauds, a memorandum in writing is necessary if the contract is one which falls within the fourth section of the original statute,1 and a memorandum in writing is one of the methods of satisfying the seventeenth section of the original statute.2 To conform to the requirements of the statute, the memorandum must be complete and must set forth all the terms actually agreed upon between the parties.3 If the parties have entered into an oral contract which falls within the Statute of Frauds; if a written memorandum of such terms has been signed as required by statute; if such memorandum purports on its face to be a memorandum of a complete contract; but if such memorandum has omitted one or more of the terms upon which the parties had agreed in fact, we have a question of a conflict between the parol evidence rule and the Statute of Frauds. If the Statute of Frauds did not apply, the parol evidence rule would prevent the use of extrinsic evidence to show that such written contract was in fact incomplete.4 If it were not for the parol evidence rule, there would be no difficulty in using oral evidence to show that such written memorandum was not what it purported to be and that it did not in fact comply with the Statute of Frauds. The solution which has actually been adopted by the courts is one which gives priority to the statute. In such a case oral evidence is admitted to show that the memorandum is in fact incomplete, that other terms have been agreed upon than those which are set forth in the memorandum; and it may thus be shown that such memorandum does not in fact satisfy the requirements of the Statute of Frauds.5 If one or more oral terms of such contract are thus established the contract is one which is proved in part by writing and in part by oral evidence, and the Statute of Frauds accordingly renders such contract unenforceable.6 If a written offer has been accepted with oral modifications, and the offeror has assented to such oral modification, the original written offer never took effect as a contract, and the right of either party to show the terms of the oral contract for the purpose of showing that the written offer never took effect, is even clearer.7 A written offer which by its terms imports payment of the entire consideration upon performance by the adversary party, may be shown by oral evidence to have been accepted on condition that payment should be made in installments, and it may be shown that such modification was acquiesced in by the offeror.8
10Sprague v. Rooney, 104 Mo. 349, 16 S. W. 505 [overruling Sprague v. Rooney, 82 Mo. 493, 52 Am. Rep. 383].
11 Harding v. Glucose Co., 182 111. 551, 74 Am. St. Rep. 189, 55 N. E. 577.
12 Detroit Salt Co. v. Salt Co., 134 Mich. 103, 96 N. W. 1; Yazoo & M. V. R. Co. v. Searles, 85 Miss. 520, 68 L. R. A. 715, 37 So. 939.
13 Clemons Electrical Mfg. Co. v. Walton, 173 Mass. 286, 52 N. E. 132, 53 N. E. 820.
14Hangen v. Hachemeister, 114 N. Y. 566, 11 Am. St. Rep. 691, 5 L. R. A 137, 21 N. E. 1046.
15Ennis v. New World Life Insurance Co., 97 Wash. 122, 165 Pac. 1091.
16Irvin v. Irvin, 169 Pa. St. 529, 29 L. R. A. 292.
1 For the original fourth section, see Sec. 1211.
For the nature of the memorandum, see Sec. 1316 et seq.
For the effect of failure to comply with the statute, see Sec. 1396 et seq.
2 See Sec. 1353 et seq.
3 See Sec. 1333 et seq.
4 See Sec. 2153.
If the parties have not in fact agreed upon the compensation to be paid, the contract is not incomplete, since a reasonable compensation will be implied;9 and, accordingly, the fact that the memorandum does not set forth the amount of compensation, does not render it insufficient,10 since a memorandum which sets forth all the terms of the contract is sufficient if the contract itself is sufficiently definite.11 If, however, the parties have actually agreed upon a definite price, but have omitted to set forth such price in the written memorandum, oral evidence is admissible to show that a definite price was in fact agreed upon and that the written memorandum is accordingly incomplete.12 If a broker has made an oral contract of sale which is subject to the approval by the purchaser of the quality of the goods which are sold, and the written memorandum does not show that such sale is subject to the approval of the purchaser, oral evidence is admissible to show such additional term, and to show that the contract is accordingly incomplete.13
5 Acebal v. Levy, 10 Bing. 376; Fisher v. Andrews, 94 Md. 46, 50 Atl. 407; Boardman v. Spooner, 95 Mass. (13 All.) 353, 90 Am. Dec. 196; Kahlotus Grain & Supply Co. v. Blair, 101 Wash. 645, 172 Pac. 818.
6 Beyerstedt v. Mill Co., 49 Minn. 1, 51 N. W. 619.
That an incomplete memorandum can not be supplemented by oral evidence showing the remaining terms of the contract, see Sec. 1335 et seq.
7 Bruce v. Pearsall, 59 N. J. L. 62, 34 Atl. 982.
8 Bruce v. Pearsall, 59 N. J. L. 62, 34 Atl. 982.
9 See Sec. 92 et seq. 10 See Sec. 1334.
11 See Sec. 1352.