4 Peter v. Compton, Skin. 353; Fenton v. Emblers, 3 Burr. 1278; Wells v. Horton, 4 Bing. 40; Blanding v. Sargent, 33 N. H. 239.
5 Lyon v. King, 11 Met. 411. And see Richardson r. Pierce, 7 R. I. 330; Hutchinson v. Hutchinson, 46 Me. 154; Worthy v. Jones, 11 Gray, 168; Murphy v. O'sullivan, 11 Irish Jur. (n. s.) 111; Doyle v. Dixon, 97 Mass. 208.
6 Packet Co. v. Sickles, 5 Wall. 580 (1866), citing Birch v. Earl of Liverpool, 9 B. & C 392; Dobson v. Espie, 2 H. & X. 81.
§ 1445. Again, where the performance of the contract is contemplated to be within the year, but the payment therefor is to be after the year is past, - as an agreement to purchase goods to be delivered in six months and paid for in eighteen months, - it is not within the statute.1 But if that portion of the contract on which the action is brought was not to be performed within a year, the case is within the statute, although the consideration therefor was to be performed or paid within the year, and was so paid or performed; and no recovery can be had upon the consideration so paid, unless it enured to the benefit of the defendant.2 If the party sought to be charged is bound by the agreement to perform his part of it within a year, the statute does not apply, and he is liable, although the other party might not be bound to perform his part of the contract in that time.3
§ 1446. A verbal contract for services not to be performed within a year being void, it follows that, in a quantum meruit for work and labor, the defendant cannot prevail upon an allegation that the services were rendered under an entire contract, which the plaintiff wrongfully failed to perform, if it appear that the contract was within the statute.4
§ 1447. The next is the saving clause: "Unless the agreement or some memorandum or note thereof shall be in writing, signed by the party to be charged therewith or some other person thereunto by him lawfully authorized." This gives rise to many questions: 1st. What is a sufficient statement of the agreement ? 2d. What is a sufficient signing ? 3d. What is a sufficient authority to sign in an agreement by an agent for his principal ?
§ 1448. What is a sufficient statement of the agreement ?
1 Donellan v. Read, 3 B. & Ad. 899; Bracegirdle v. Heald, 1 B. & Ald. 722; Stone v. Dennison, 13 Pick. 1; Cherry v. Heining, 4 Exch. 631; Mavor v. Pyne, 3 Bing. 285.
2 Pierce v. Paine, 28 Vt. 34, in which Donellan v. Read, 3 B. & Ad. 899, is explained and limited. And see Marcy v. Marcy, 9 Allen, 8; Frary v. Sterling, 99 Mass. 462; Emery v. Smith, 46 N. H. 151.
3 Sheehy v. Adarene, 41 Vt. 541 (1869). See Blanding v. Sargent, 33 N. H. 239.
4 King v. Welcome, 5 Gray, 41. See, also, Clark v. Terry, 25 Conn. 395.
The rule is that the written contract should set forth the terms so as intelligibly to express the intention and obligation of the parties. The use of the term "agreement" has given rise to much question as to whether the memorandum or note should state the consideration as well as the promise; and it has been uniformly held in England, though not without the disapprobation of some of the courts,1 that the consideration must be expressed.2 It is, however, sufficient, if it can be clearly or unequivocally collected from all the terms of the memorandum so that it is evident to any person of ordinary capacity.3 In this country, however, the rule is different in different States. In some of them the words of the English statute have been copied, and the construction of the English courts has been adopted.4 In others the word "agreement" has been rejected, and it has been held sufficient if the promise clearly appear,5 and in others, although the word agreement is retained, the rule of construction in England has been rejected." 6
1 Ex parte Gardom, 15 Ves. 286. See ante, § 1116, note.
2 Wain v. Warlters, 5 East, 10, is the leading case on this subject. See also Stadt v. Lill, 9 East, 348; Jenkins v. Reynolds, 3 B. & B. 14; Clancy v. Piggott, 2 Ad. & El. 473; Sweet v. Lee, 3 M. & G. 452; Bainbridge v. Wade, 16 Q. B. 89; s. c. 1 Eng. Law & Eq. 236; Morley v. Boothby, 3 Bing. 107; James v. Williams, 3 Nev. & Man. 196. See, also, ante, § 862, and note. In England the rule laid down in Wain v. Warlters has been modified by St. 19 & 20 Vict. c. 97, § 3; and parol evidence is now admissible there of the consideration of a guaranty, but not to explain the promise itself. Holmes v. Mitchell, 7 C. B. (n. s.) 361 (1859).
3 Bainbridge v. Wade, 1 Eng. Law & Eq. 236; 16 Q. B. 89; Hawes v. Armstrong, 1 Scott, 661; 1 Bing. N. C. 761; Steele v. Hoe, 14 Q. B. 431; Goldshede v. Swan, 1 Exch. 154; Chapman v. Sutton, 2 C. B. 634; Jarvis v. Wilkins, 7 M. & W. 410; Kennaway v. Treleavan, 5 Ib. 498; Newbury v. Armstrong, 6 Bing. 201.
4 2 Rev. Stat. of New York, pt. 2, ch. 7, tit. 2, § 2; Sears r. Brink, 3 Johns. 210; Rogers v. Kneeland, 10 Wend. 218; Bennett v. Pratt, 4 Denio, 275; Staats v. Howlett, Ib. 559; Wyman v. Gray, 7 Harr. & Johns. 409; Elliott v. Giese, 7 Harr. & Johns. 457; Edelen v. Gough, 5 Gill, 103; Henderson v. Johnson, 6 Ga. 390.
5 In Virginia and Tennessee the word promise has been substituted for agreement. Taylor v. Ross, 3 Yerg. 330; Gilman v. Kibler, 5 Humph. 19; Wren v. Pearce, 4 Sm. & M. 91; Violett v. Patton, 5 Cranch, 142; DeWolf v. Rabaud, 1 Pet. 499. See ante, § 1117.
6 This is so in Massachusetts, Maine, New Jersey, North Carolina, and Connecticut. See Rev. Stat, of Mich. ch. 74, § 2; Lent v. Padelford, 10
§ 1449. Again, it is not necessary that the whole agreement should be upon one piece of paper, for if it can be fully collected from various papers referring to each other, it will be a sufficient memorandum or note in writing.1 But where a contract is made by various letters, referring to each other, the whole terms of the contract must clearly appear therein, or they will not be a sufficient memorandum.1 And this connection must appear in the papers themselves; and extrinsic evidence connecting them, and showing them to belong to the same transaction, would not be allowed.2 But although the memorandum itself be not, taken alone, sufficiently clear, yet if reference be therein made to another paper or deed as containing the terms, or by which the agreement can be rendered definite and clear, it will be sufficient.3 A note or memorandum in writing, if otherwise sufficient, is good, although it is but the embodiment of a previous oral contract.4