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.
1 Champion v. Plummer, 1 Bos. & P. N. R. 252. See McElroy v. Seery, 61 Md. 389; Brown v. Whipple, 58 N. H. 229; Coombs v. Wilkes, L. R. 3 Ch. D. 1891, 77; Lincoln v. Erie Preserving Co., 132 Mass. 129.
2 Williams v. Lake, 2 El. & E. 349.
3 Jacob v. Kirk, 2 Moo. & R. 221; Wheeler v. Collier, Moo. & M. 123; Allen v. Bennet, 3 Taunt. 169; Waterman v. Meigs, 4 Cush. (Mass.) 497; Nichols v. Johnson, 10 Conn. 192; Sherburne v. Shaw, 1 N. H. 157; Webster v. Ela, 5 N. H. 540; Farwell v. Lowther, 18 111. 252; Sheid v. Stamps, 2 Sneed (Tenn.) 172. A promise in writing, signed, to pay one unnamed who shall furnish goods to the writer, or to a third person, will become a binding contract with any one, whosoever he may be, who shall accept the promise in writing and furnish the goods. Williams v. Byrnes, 8 L. T. n. s. 69. And see Griffin v. Rembert, 2 S. C. 410; Mentz v. New-witter, 122 N. Y. 491; O'Sullivan v. Overton, 56 Conn. 102.
4 Grafton v. Cummings, 99 U. S. 100; Thornton v. Kelly, 11 R. I. 498; Gowen v. Klous, 101 Mass. 449. See Jones v. Dow, 142 Mass. 130. Upon this point there has been some variance in later English decisions, as to what is sufficient certainty of designation. See Sale v. Lambert, L. R. 18 Eq. 1; Potter v. Duffield, L. R. 18 Eq. 4; Commins v. Scott, L. R. 20 Eq. 11; Beer v. London & Paris Hotel Co., L. R. 20 Eq. 412; Rossiter v. Miller, 5 Ch. D. 648, on appeal L. R. 3 H. L. 1124; Catling v. King, 5 Ch. D. 660; Thomas v. Brown, 1 Q. B. Div. 714; Jarrett v. Hunter, L. R. 34 Ch. D. 182; McGovern v. Hern, 153 Mass. 308; Lewis v. Wood, 153 Mass. 321; Lash v. Parlin, 78 Mo. 39.
1 Jacob v. Kirk, 2 Moo. & R. 221; Allen v. Bennet, 3 Taunt. 169; Williams v. Jordan, 6 Ch. Div. 517. And see ante, § 317.
2 Bateman v. Phillips, 15 East 272. And see Williams v. Bacon, 2 Gray (Mass.) 387; Thayer p. Luce, 22 Ohio St. 62; Walsh v. Barton, 24 Ohio St. 28; Beer v. London & Paris Hotel Co., L. R. 20 Eq. 412. But where a letter of credit was addressed by mistake to John and Joseph, and delivered to John and Jeremiah, it was held that John and Jeremiah could not sustain an action upon it for goods furnished by them to the hearer on the strength of it; for there was no ambiguity, patent or latent, in the case, nor any fraud upon the plaintiffs, nor (as they had observed the misdirection and taken the risk of its materiality) any mistake on their part. Grant p. Naylor, 4 Cranch (U. S.) 224; Huntington v. Knox, 7 Cush. 371; Briggs v. Partridge, 64 N. Y. 357; Neaves v. Mining Co., 90 N. C. 412; Higgins v. Senior, 8 M. & W. 834; Mantz p. McGuire, 52 Mo. App. 136; Kelley p. Thuey, 102 Mo. 529. But see Clampet p. Bells, 39 Minn. 272; Jarrett p. Hunter. L. R. 34 Ch. D. 182.
3 Laythoarp p. Bryant, 2 Bing. N. R. 735.
4 Allen v. Bennet, 3 Taunt. 169. Where the names of the plaintiffs (vendors) appeared upon the titlepage of their order-book in which the defendant's order was written, and signed by him, it was held sufficient in Sari v. Bourdillon, 1 C. B. N. S. 188 See also Newell p. Radford, L. R. 3 C. P. 52; Harvey p. Stevens, 43 Vt. 653.
§ 374. It has been said that the mere appearance of the plaintiff's name in the memorandum is not sufficient, if it does not appear as that of the promisee, or party to whom the defendant is bound, and that such character cannot be affixed by parol evidence to an otherwise ambiguous insertion of the name.1 This point, among others, was expressly held by Mr. Justice Kent, in an action on the following memorandum: "J. Ogden & Co. Bailey & Bogart. Brown, 12 1/2; White, 16i, 60 and 90 days. Debenture part pay;" one of his objections to its sufficiency being that no person could ascertain from it which of the parties was buyer and which was seller.2
§ 375. A decision of much consideration by the Supreme Court of the United States, however, seems to stand opposed to this rule.3 The memorandum there relied upon was as follows: "Sept. 19, W. W. Goddard, 12 mos. 300 bales. S. F. drills, 7 1/4. 100 cases blue do., 8 3/4. Credit to commence," etc., and signed "R. M. M.; W. W. G." The former initials appeared by parol evidence to be those of the agent of the plaintiff. In the opinion delivered on behalf of the majority of the court, in favor of the sufficiency of the memorandum, no attention appears to be paid to the uncertainty upon the face of the writing as to who was buyer and who was seller in the transaction; a point which Mr. Justice Curtis, in his dissenting opinion, urges with great force of reasoning and a full citation of the authorities.
§ 375 a. In an English case,4 the names of both parties appeared in the memorandum, but it did not show which was buyer and which was seller. The full court sustained the
1 Champion v. Plummer, 1 Bos. & P. N. R. 252; Sherburne v. Shaw, admission of parol evidence to show the occupation of each party, in aid of the interpretation of the memorandum in this respect. In the case from the Supreme Court of the United States cited in the preceding section, evidence was admitted, of the fact that a bill of parcels detailing the purchases was made out and sent to the purchaser, and accepted as such by him, and this was allowed on the ground that it would throw light on the ambiguities of the memorandum.1 From these cases, it seems that the later authorities allow the introduction of parol evidence in this case, as in others, to apply the writing relied on, as one made with reference to and in recognition of the contract sued on.2
1 N. H. 157; Nichols v. Johnson, 10 Conn. 192; Osborn v. Phelps, 19
2 Bailey v. Ogden, 3 Johns. (N. Y.) 399. See also Vandenbergh v.
Spooner, L R. 1 Exch. 316; Breckinridge v. Crocker, 78 Cal. 529.
3 Salmon Falls Mfg. Co. v. Goddard, 14 How. (U. S.) 446. See Grafton v. Cummings, 99 U. S. 100; Wills v. Ross, 77 Ind. 1.
4 Newell v. Radford, L. R. 3 C. P. 52.
§ 376. The memorandum must also contain the express stipulations of the contract. Thus, it must contain the price agreed to be paid for property sold where the contract contained a stipulation as to price,3 and when the memorandum states one price, no recovery can be had if it be shown that the parties had really agreed for another; for the true contract is, as to one of its essential elements, left unsupported, the memorandum being shown to be not an accurate statement of the contract which the parties made.1