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.
§ 371. Having in the last chapter inquired of what the memorandum required by the statute may or must consist, we come now to the question, what the memorandum must contain. Upon this the general rule is that it must contain the essential terms of the contract, expressed with such a degree of certainty that it may be understood without recourse to parol evidence to show the intention of the parties.1 It is proposed in the present chapter to consider in detail the several matters which it has been determined the writing must contain; observing, as we proceed, the degree of cer-tainty or fulness required in their statement, and the extent to which parol evidence is admitted to aid in the interpretation of the memorandum; and also to inquire how far the statute allows effect to oral agreements of parties made subsequently to the execution of a memorandum, for the purpose of modifying or discharging the contract.
§ 371 a. In the first place, assuming that there is a completed oral contract, the note or memorandum must contain the terms of the contract as completed.2 If it tend to falsify
1 2 Kent, Com. 511; Abeel v. Radcliff, 13 Johns. (N. Y.) 297, and compare Holms v. Johnston, 12 Heisk. (Tenn.) 155. The ordinary incidents only of an agreement, as, for instance, the usual covenants and other ingredients of a complete transfer in the case of a sale of land, will be supplied by the court. Barry v. Coombe, 1 Pet. (U S.) 640; Symes v. Hutley, 2 L. T. n. s. 509; Scarritti). St. John's M. E. Church, 7 Mo. App. 174; Sheley v. Whitman, 67 Mich. 397; Messmore v. Cunningham, 78 Mich. 623; Frazer v. Howe, 106 111. 563.
2 Whaley v. Bagnel, 1 Bro. P. C. 345; Gaunt v. Hill, 1 Stark. 10; Stratford v. Bosworth, 2 Ves. & B. 341; Roberts v. Tucker, 3 Exch. 632; the contract sued upon, as by showing conditions and stipulations that have not been made to appear,1 or if, referring to the contract, it annex conditions to it or otherwise make variations in it,2 it has no effect as a memorandum of the contract alleged. In short, where the plaintiff proposes to rely upon a written admission of the contract, with the defendant's signature, he must produce such a writing as will tend to prove and not disprove the existence of the contract alleged,3 as a concluded agreement between the parties. § 372. It is necessary that the memorandum should show who are the parties to the contract by some reference sufficient to identify them. Upon this point the leading case is Champion v. Plummer, decided in the Exchequer Chamber in 1805, where the memorandum was duly signed by the vendor, defendant, but the name of the purchaser nowhere appeared. The plaintiff being nonsuited below, a rule was obtained to set the nonsuit aside and for a new trial. Sir James Mansfield, C. J., said: "How can that be said to be a contract or memorandum of a contract which does not state who are the contracting parties? By this note it does not at all appear to whom the goods were sold. It would prove a sale to any other person, as well as to the plaintiff. There cannot be a contract without two parties, and it is customary in the course of business to state the name of the purchaser as well as the seller, in every bill of parcels. This note does not appear to me to amount to any memorandum in writing of a bargain." And, the rest of the court concurring, the rule was discharged.1 On the same principle, it is held that a memorandum of guaranty is not sufficient unless the party whose debt is to be answered for is disclosed therein.2
Barry v. Coombe, 1 Pet. (U. S.) 640; Ballingall v. Bradley, 16 111. 373; Hazard v. Day, 14 Allen (Mass.) 487; Oakman v. Rogers. 120 Mass. 214; Winn v. Bull, 7 Ch. Div. 29; Rossiter v. Miller, L. R. 8 H. L. 1124.
1 Cooper v. Smith, 15 East 103; Richards v. Porter, 6 Barn. & C. 437. See Archer v. Baynes, 5 Exch. 625: Elliot v. Barrett, 141 Mass. 256.
2 Smith p. Surman, 9 Barn. & C. 561: Nesham v. Selby, L. R. 7 Ch. App. 406; Williams v. Bacon, 2 Gray (Mass ) 387; Jenness v. Mt. Hope Iron Co., 53 Me. 20; Hastings v. Webber, 142 Mass. 232.
3 See Bailey v. Sweeting, 30 L. J. C. P. 152, per Erle, C.J.; Rossiter p. Miller, 5 Ch. Div. 648; McLean v. Nicoll, 7 Jur. n. s. 909, per Martin. B.; Williams v. Morris, 95 U. S. 444; Munday v. Asprey, L. R. 13 Ch. D. 855; Williams v. Smith, 37 N. E. Rep. (Mass.) 455; Coe v. Tough, 110 X. Y. 273; Hussey v. Home-Payne, 4 App. Cas. 311. This principle seems not to have been observed in Linsley v. Tibbals, 40 Conn. 522.
§ 373. This principle has been uniformly assented to by the courts both of England and this country.3 As to the identification, it is sufficient if, upon the memorandum, in addition to its having the signature of the party to be charged, it appear with reasonable certainty who the other party to the contract is.4 Thus, a letter addressed by the defendant to, or received by him from, the plaintiff, and sufficiently connected with the other writings relied upon as constituting the memorandum, may be evidence to show the plaintiff to be a party to the contract.1 And the fact that the person to whom such a letter was addressed was the agent of the plaintiff, and received it in that character, may be proved by parol evidence, to show the plaintiff to be the real promisee.2 Where the particulars of an auction sale, upon which the memorandum charging the purchaser was indorsed, stated that the sale was "by order of Mr. W. Laythoarp, the proprietor," this was held a sufficient indication of the plaintiff.3 And in a case where an order for goods was written and signed by the seller's agent in a book belonging to the buyer, Mansfield, C. J., said, if it were "a regular order-book, and supposing that the person to whom it belonged, the place in which it was kept, and the purpose for which it was employed were consonant, it would be no great stretch to say, this was a ground for inferring that these entries were made by the authority of the owner of the book, for the purpose of evidencing the sale;" but there was other evidence in the case that the plaintiff was the buyer.4