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 Ante, § 350.
2 Harvey v. Stevens, 43 Vt. 653; Mann v. Higgins, 83 Cal. 66; Breckinridge v. Crocker, 78 Cal. 529. But see Grafton v. Cummings, 99 U. S. 100; Lee v. Hills, 66 Ind. 474; Clampet v. Bells, 39 Minn. 272.
3 Blagden v. Bradbear, 12 Ves. 466; Clerk v. Wright, 1 Atk. 12; Bromley v. Jefferies, 2 Vern. 415; Elmore v. Kingscote, 5 Barn. & C. 583; Ide v. Stanton, 15 Vt. 685; Norris v. Blair, 39 Ind. 90; McElroy v. Buck, 35 Mich. 434; Williams v. Morris, 95 U. S. 444; Smith v. Arnold, 5 Mas. (C. C.) 414; Buck v. Pickwell, 27 Vt. 157; Barickman v. Kuykendall, 6 Blackf. (Ind.) 21; M'Farson's Appeal, 11 Pa. St. 503; Soles v. Hick man, 20 Pa. St. 180; Kay v. Curd, 6 B. Mon. (Ky.) 100; Parker v. Bod-ley, 4 Bibb(Ky ) 102; Ellis v. Deadman, 4 Bibb. (Ky.) 466; Kinloch v. Savage, Speers (S. C.) Eq. 470; Goodman v. Griffiths, 1 Hurlst. & N. 574; Powell v. Lovegrove, 8 De G., M. & G. 357; Wright v. Cobb, 5 Sneed (Tenn.) 143; Farwell v. Lowther, 18 111. 252; Sheid v. Stamps, 2 Sneed (Tenn.) 172; Ives v. Hazard, 4 R.I. 14; Webster v. Brown, 67 Mich. 328; Hanson v. Marsh, 40 Minn. 1: Phillips v. Adams, 70 Ala. 373; Grace v. Denison, 114 Mass. 16. The records of a corporation, showing the plaintiff's appointment as their engineer, to serve a year from a future day, have been held sufficient for the plaintiff's recovery of the compensation agreed, although the record did not show that compensation. Chase v. City of Lowell, 7 Gray (Mass ) 33. In Carroll v. Powell, 48 Ala. 298, it was held that the memorandum of a sale of land at public auction must state whether the sale was for cash or on credit; but see Lewis v. Wells, 50 Ala. 198.
§ 377. If no price is named by the parties, the memorandum may be silent in that respect. If the property was sold for what it was reasonably worth, that fact need not be stated in the memorandum. In Acebal v. Levy, in the Court of Common Pleas, Tindal, C. J., in the course of the opinion which he delivered for the court, expressed a doubt whether this would be so in the case of executory contracts of sale, i. e., contracts of sale and delivery where the property is still in the possession and control of the vendor.2 But in Hoadly v. McLaine, a few months later in the same court, the very question was presented, and Chief Justice Tindal concurred in the decision that even in the case of an executory contract, where no price was named in the contract, none need be named in the memorandum.3
§ 378. It is obvious that the statute will be satisfied by a statement as to what the parties stipulated was the price to be paid, although they mentioned no specific sum; as, for instance, if the agreement is to pay a price to be settled by arbitration,4 or to pay the same for which the property had been previously purchased.6 It has been held that an order for goods "on moderate terms" sufficiently expressed the amount to be paid;1 that being the stipulation made by the parties.
1 Kennedy v. Gramling, 33 S. C. 367.
2 Acebal v. Levy, 10 Bing. 376.
3 Hoadly v. M'Laine, 10 Bing. 482, cited as law by Wilde, C. J., in Valpy v. Gibson, 4 C. B. 837. In Johnson v. Ronald, 4 Munf. (Va.) 77, the rule as to price seems to have been overlooked, for the court admitted evidence that a certain price had been agreed upon, and then received as sufficient a memorandum that was silent on the subject. The rule that the memorandum must state the price as one of the essential terms of a contract of sale seems to be not recognized in Missouri. Ellis v. Bray, 79 Mo. 227, and cases cited. So in North Carolina, see Thornburg v. Masten, 88 N. C. 293.
4 Cooth v. Jackson, 6 Ves. 12; Brown v. Bellows, 4 Pick. (Mass.) 178; Norton v. Gale, 95 111. 533.
5 Atwood v. Cobb, 16 Pick. (Mass.) 227.
§ 379. Where the memorandum itself states that the price has been paid or received, the amount need not be set forth; as in such case the price is not a part of the contract to be performed.2
§ 380. For further illustration of the rule that the memorandum must sufficiently state the price agreed, attention may be directed to a class of cases where evidence was admitted of trade usages or customs, to show that abbreviated and apparently ambiguous statements of price had a recognized meaning in the trade, and were consequently a sufficient statement of the price agreed to be paid. Thus, where a sold-note purported to be of "18 pockets of hops at 100s.," parol evidence was admitted to show that the 100s. was understood in the trade to mean the price per cwt.3 And so with the various ambiguities of this nature presenting themselves in brief notes of mercantile contracts, which are generally composed, to use the language of a learned judge, in "a sort of mercantile short-hand, made up of few and short expressions."4
§ 381. The rule that the memorandum of a contract of sale must exhibit the price agreed to be paid, is not quite coextensive with the proposition which we shall presently have to examine, that every memorandum under the fourth section must exhibit the consideration on which the engagement of the party to be charged is founded. In Egerton v.
1 Ashcroft v. Morrin, 4 Man. & G. 450. But see Ashcroft v. But-terworth, 136 Mass. 511.
2 Fugate v. Hansford, 3 Litt. (Ky.) 262; Holman v. Bank of Norfolk, 12 Ala. 369.
3 Spicer v. Cooper, 1 Q. B. 424. See Salmon Falls Mfg. Co. v. God-dard, 14 How (U. S.) 446; Heideman v. Wolfstein, 12 Mo App. 366.
4 Parke, B., in Marshall p. Lynn, 6 Mees. & W. 118. But see North v. Mendel, 73 Ga. 400; Mohr v. Dillon, 80 Ga. 572; Wilson v. Coleman, 81 Ga. 297; Anslev v. Green. 82 Ga. 181.
Mathews, the memorandum sued upon was of a contract for the purchase of a quantity of cotton, and expressed that the defendants agreed to give the plaintiff " 19c?. per lb. for 30 bales of Smyrna cotton," etc.; and the objection was taken on behalf of the defendants, that no consideration for their promise appeared in the memorandum. At the trial the plaintiff was nonsuited; but, on a motion for setting aside the nonsuit, the attention of the judges was called to the difference of phraseology between the fourth and seventeenth sections, the one using the word "bargain," and the other the word "agreement," and it would appear that their decision granting the motion was in some measure based upon that difference; taking the view that the force of the former word did not, like that of the latter, require the statement of the consideration.1 Subsequently, in the case of Saunders v. Wakefield, where the action was on a written guaranty, and the question was whether it was sufficient without having the consideration apparent on its face, all the judges concurred that it was not; but Mr. Justice Bayley, in illustration of his position, went on to make this remark: " I find, too, that the word 'agreement' in this clause is coupled with 'contracts of marriage and for the sale of land;' now, in those cases, it is clear that the consideration must be stated. For it would be a very insufficient agreement to say, ' I agree to sell A. B. my lands,' without specifying the terms or the price." 2