This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
§ 344. In considering the subject of writings and written evidence satisfying the statute, it is important to notice carefully the language of the statute in regard to them. The first section provides that the creation of "leases, estates, interests of freehold, or terms of years," must be by an instrument in writing; and the third section contains a similar provision as to the transfer of such interests after they have been created. The fourth section, concerning the agreement to create or transfer such interests, declares that such agreements, among others, shall not be enforceable unless they have been reduced to writing, or (if this has not been done), unless some note or memorandum in writing of them is produced, authenticated by the signature of the party to be charged upon the agreement. The seventeenth section, regarding contracts for the sale of goods, contains a similar provision as to the note or memorandum. The language of these two last sections clearly indicates a difference between a contract in writing, and a note or memorandum in writing of an oral contract; but this difference, though manifest, and often judicially recognized by authority,1 has not always
1 Per Erle, J., in Parton v. Crofts, 33 L. J. C. P. 189; Barkworth v. Young. 4 Drew. 1; Hoar, J., in Lerned v. Wannemacher, 9 Allen (Mass.) 412; Ide v. Stanton, 15 Vt. 685; Batturs v. Sellers, 5 Harr. & J. (Md.) 117; Lanz v. McLaughlin, 14 Minn 72; Thayer v. Luce, 22 Ohio St 62; Benziger v. Miller, 50 Ala. 206; Mizell v. Burnett, 4 Jones (N. C.) Law 249; Old Colony R. R. Co. v. Evans, 6 Gray (Mass.) 25; Kibby v. Chit-wood, 4 T. B. Mon. (Ky.) 91; Williams v. Bacon, 2 Gray (Mass.) 387; Hart v. Carroll, 85 Pa. St. 508; Jones v. Victoria Graving Dock Co., 2 been allowed its due weight. First, it is important to bear in mind that an oral contract for the sale of lands or goods was valid before the passage of the Statute of Frauds; next, that the statute does not make the contract void, in the sense that an illegal contract is void, but simply makes it unenforceable; and lastly, that that bar is removed by the production of a writing containing the terms of the oral contract and authenticated by the signature of the party to be charged.
§ 344 a. It must be remembered, too, that the statute concerns oral contracts only; written contracts, of whatever nature, are untouched by its provisions. The rules governing their interpretation and effect are of course unaffected by the fact that, if the contract had not been in writing, the Statute of Frauds would or might have affected it. Being a written contract, it is specially excepted by the statute itself from its operation. As was said of the Statute of Frauds by Lord Redesdale, "it does not say that a written agreement shall bind, but that an unwritten agreement shall not bind." l But the memorandum or note of such an unwritten agreement, which, under the statute, gives it validity, is governed by rules in many respects peculiar. In discussing these, it is believed expedient to examine, first, those pertaining to the external features of the memorandum, or of what it must consist; and secondly, its internal features, or what it must contain.
§ 345. The fourth section of the statute provides that no action shall be brought upon any of the classes of contracts there enumerated, "unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some person thereunto by him lawfully authorized." And the provision in regard to the memorandum under the seventeenth section, relating to the sales of goods, is substantially the same, except in the use of the plural, "parties to be charged." The present chapter concerns the different kinds of writings which may be memoranda, the incorporation of other writings by reference, the signature, and the authority to affix it; all coming under the general head of the form of the memorandum.
Q. B. Div. 314; Drury v. Young, 58 Md. 546; Johnson v. Trinity Church Society, 11 Allen (Mass.) 123. The court in McAnnulty v. McAnnuity, 120 111. 126, appears to have overlooked or disregarded the distinction between the contract and the memorandum, for they say "the statute requires the contract itself to be in writing," and hold that a sufficient memorandum in writing made after marriage of a verbal ante-nuptial contract will not support an action for its enforcement. But see Lasher v. Gardner, 124 11l. 441, which holds that "the statute does not require that the contract itself should be reduced to writing." 1 Clinan v. Cooke, 1 Sch. & L. 39.
§ 345 a. The note or memorandum of the oral contract which the statute requires is some writing, authenticated by the signature of the party to be charged upon the contract, or of his agent, and containing, either in terms or by incorporation of other writing referred to in it, a statement of the terms of the contract and the parties to it. The writing, it has been decided, need not state that the contract has been made, or afford any evidence of that fact. An offer or proposal, signed by the party making it, and communicated to the other party, is held a sufficient memorandum to support an action against the party making it for breach of the contract afterward made by the oral acceptance of the offer; the fact of such acceptance being provable by oral evidence.1
1 Renss v. Picksley, L. R. 1 Ex. 342; Stewart p. Eddowes, L. R. 9 C. P. 311; Sanborn v. Flagler, 9 Allen (Mass.) 474; Himrod Furnace Co. v. Cleveland & Mahoning R. R. Co., 22 Ohio St. 451; Argus Co. v. Mayor, etc. of Albany, 55 N. Y. 495; Griffin v Rembert, 2 S. C. 410. See Bird v. Blosse, 2 Ventris, 361; Brettel v Williams, 4 Exch. 623; Waul v. Kirkman, 27 Miss. 823; Lanz v. McLaughlin, 14 Minn. 72; Lowber v. Connit, 36 Wisc. 176; Thayer v. Luce, 22 Ohio St. 62; Justice v. Lang, 42 X. Y. 493; Western Union Tel. Co. v. Chicago & Paducah R. R. Co., 86 11l. 246; Kessler v. Smith, 42 Minn. 494; Raubitschek v. Blank, 80 X. Y. 478; Norton v. American Ring Co., 1 Fed. Rep. 684; Lee v. Cheney, 85 Tenn. 707; Gradle v. Warner, 140 11l. 123; Doherty v. Hill, 142 Mass. 465. Where a written offer, expressly limited as open until a certain time, was not accepted until after that time, the limit having been meanwhile verbally extended, semble that the original offer in writ-