But this consideration need not appear in express terms; it is sufficient, as will hereafter appear, that any person of ordinary capacity must infer from the perusal of the memorandum or note that such and no other was the consideration upon which the undertaking was given (b). It must appear in express terms, or by necessary implication (c).
The same reasoning as that employed by Lord Ellen(z) See post, Guaranties, (a) Sweet v. Lee, 3 M. & G. 452.
(b) Per Tindal, C. J., Hawes v. Armstrong, 1 Bing. N. C. (27 E. C. L. E.) 765.
(c) Per Parke, B., Jarvis v. Wilkins, 7 M. &. W. 412.
Jarvis v. Wilkins, 7 M. & W. 410; Peate v. Dickens, 5 Tyr. 124; Shadwell v. Shadwell, 9 C. B. N. S. (99 E. C. L. R.) 173; Greenham v. Watt, 25 U. C. Q. B. 369; Church v. Brown, 21 N. Y. 316; Boiling v. Munchus, 65 Ala. 561; Otis v. Hazeltine, 27 Cal. 82; Tingley v. Cutter, 7 Conn. 295; Hargraves v. Cooke, 15 Ga. 324; Wilson Sewing Machine Co. v. Schnell, 20 Minn. 40; Hutton v. Padgett, 26 Md. 431; Ordeman v. Lawson, 49 Md. 155; O'Bannon v. Chumasero, 3 Montana, 422; Simons v. Steele, 36 N. H. 73; Laing v. Lee, Spencer, 339.
Thus an auctioneer's receipt given for the deposit money on a sale is insufficient to prove the agreement of sale if it does not mention the price (d). An agreement for a lease not specifying a definite term, does not satisfy the requirement of the statute (e). Thus a memorandum in the following words is insufficient as such an agreement: - "August 11, 1866. Received of D. the sum of £10 as part purchase-money of £390, of 4 cottages, situated 23, 24, 28, and 29 W. Street, B., ground rent £3 each, purchase to be completed within one month from this date, the lease and counterpart to be paid for by D., and to be £5, exclusive of stamps.-J. E." It will be observed that this memorandum defines the property, the price, and the parties; but though it is obvious that a lease is intended to be conveyed, yet the duration of that lease is not expressed (f). So an executory agreement for a lease (i. e., an agreement for a lease to commence at some subsequent time), does not satisfy the statute unless it can be collected from it on what day the term is to begin (g). So if the *names of both buyer and seller are not mentioned in the agreement, or at all events if they are not sufficiently ascertained by description therein, it is insufficient. Thus, in Williams v. Lake (h), a guaranty signed by the defendant was in these words-"April 27, 1857.
(d) Blagden v. Bradbear, 12 Ves. 466; Elmore v. Kingscote, 5 B. & C. (11 E. C. L. R.) 583; Goodman v. Griffiths, 26 L. J. (Ex.) 145; 1 H. & N. 574.
(e) Clinan v. Cooke, 1 Sch. & Lefr. 22; Fitzniaurice v. Bagley, Ex. Ch.; 27 L. J. (Q. B.) 143.
(f) Dolling v. Evans, 36 L. J. (Ch.) 474.
(g) Marshall v. Berridge, 19 Ch.Div. 233; 51 L. J. (Ch.) 329. In such a case there is no inference that the term is to commence from the date of the agreement, in the absence of language pointing to that conclusion. Ib.
(h) 2 E. & E. (105 E. C. L. R.) 349, 29 L. J. (Q. B.) 1.
Sir, I beg to inform you that I shall see you paid to the sum of £800 for the ensuing building which you undertake to build for Messrs. Thomas and Owens, of Cap Coch. Thomas Lake." The defendant had delivered this to one John Thomas, intending it to be given to Thomas Jones, who was in treaty to build houses for Thomas and Owens, but Jones refusing to build them, they agreed with plaintiff to build them, and gave him the guaranty. Of this the defendant was ignorant, but he afterwards assented to the plaintiff having the guaranty. It was held that an action could not be brought upon the guaranty, as the plaintiff's name did not appear in it. "The objection," said Cock-burn, C. J., " that there was no agreement or memorandum, or note thereof within the Statute of Frauds, must prevail, on the simple ground that in order that any agreement or memorandum should be sufficient, it is absolutely necessary that the names of the parties to the agreement should appear on its face. It is said that the terms *are satisfied if the note of the agreement contains a proposal which is acceded to by words. But I cannot concur in that way of putting it; the only difference between an 'agreement' and the 'note' of an agreement is, that in the one instance a formal agreement is meant, and in the other something not so particular in form and technical accuracy, but still containing the essentials of the agreement. The essentials of the agreement must be stated, that is to say, the subject-matter of it (i), the extent of the liability contracted thereby, if any, and the names of both parties to it: and, I think, not only is that the fair construction to be put upon the statute, but when we look at the mischief intended to be prevented, it is clear that the writing which constitutes a liability on one side, without stating the name of the other party to whom it was given, would lead to the very thing which the statute was intended to prevent, namely, fraud. There might have been an agreement for building another set of houses, or the agreement might have been of the same houses, and this might have been put into the hands of some person to whom the defendant never intended to give a guaranty, and it might be enforced by *parol evidence showing that it was intended to come into the hands of that person, while the defendant might resist it by parol evidence, so that the very contest would take place which the statute was intended to prevent. The mischief would not be effectually remedied, unless we held that this guaranty was not sufficient."
(i) As to what amounts to a sufficient description of the property in the case of a sale of real estate, so as to satisfy the statute, see Shardlow v. Cot-terell, 20 Ch. Div. 90 (C. A.); 51 L. J. (Ch.) 353, (reversing 18 Ch. Div. 280, 50 L. J. (Ch.) 613), and the authorities there cited.
The statute, however, is satisfied if the vendor and purchaser are sufficiently described, though their names do not appear (j). Thus, upon a sale by auction of real estate in lots, the particulars stated that the sale was by direction of the "proprietor," but the name of the vendor did not appear. A memorandum on a copy of the particulars was signed by the purchaser of one of the lots, and by the auctioneer on behalf of the vendor. It was held that the vendor was sufficiently described, and that the memorandum was sufficient to satisfy the requirements of the statute (k). On the other hand, where the particulars and conditions did not disclose the vendor's name, and in some places spoke of "vendors" in the plural; although for the most part "vendor" was used, and a memorandum endorsed on a copy of the particulars and conditions was signed by the *auctioneer on behalf of the "vendor," the description was held insufficient (I). In Rossiter v. Miller (m) "proprietors," in Catling v. King (n) "trustee selling under a trust for sale," was held a sufficient description. There is another observation applicable to all the five cases provided for by this section of the statute, namely, that the agreement, the meaning of which word I have just explained, need not be contained in a single writing, but may be collected from several. You will find that established by many cases.