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.
§ 381 a. The statement of the price in the memorandum of a contract of sale is not always to be regarded in the same light as the statement of the consideration of the contract. When an action is brought upon a contract within the statute, the memorandum must contain some designation of the parties contracting and the terms of the contract; which last, in the case of a contract of sale, would include the price, if any had been stipulated. It need not contain or state any promise to perform or allegation of performance, although such promise or performance constitutes the only consideration for the engagement upon which the defendant is sought to be charged. In Egerton v. Mathews, for example, it did not appear in the memorandum, whether or not the plaintiffs ever had delivered, or agreed to deliver, any cotton, yet delivery, or a promise to deliver, was evidently the only consideration for the defendant's promise to pay. The decision of Egerton v. Mathews was certainly correct, because all the terms of the bargain were there presented in the writing; not because the word "bargain" imports a consideration any less than the word "agreement." On the other hand, as Mr. Justice Bayley says, "it would be a very insufficient agreement to say ' I agree to sell A. B. my lands,' without specifying the terms or the price," because the price, which is an element of the sale, is not stated; and not because a memorandum of an agreement to do a thing must necessarily show the motive or inducement for making it.
1 Egerton v. Mathews, 6 East, 307.
2 Saunders v. Wakefield, 4 Barn. & Ald. 601.
§ 381 b. The question whether the statement of price may be omitted from a memorandum of sale of land, under the rule (in those States where it is the rule) that the consideration of a contract within the Statute of Frauds need not be expressed, has been recently considered by the Supreme Court of Massachusetts.1 The action was by the purchaser and upon a memorandum which failed to state clearly the amount of the price he was to pay. The decision, by a majority of the court, was that the purchaser could recover. In terms, it turned upon the construction of a section of the Massachusetts Statute of Frauds, explicitly enacting that the consideration of the contract need not be expressed in the memorandum.2 This section, it was agreed, was inserted in the Massachusetts statute for the purpose of adopting and confirming the judgment of the court in Packard v.
1 Hayes v. Jackson, 159 Mass. 451.
2 Mass. Public Statutes, chap. 78, sec. 2; re enacting Mass. Rev. Stat., chap. 74, sec. 2.
Richardson,1 declining to follow Wain v. Warlters. But it was inserted after an enumeration of contracts covered by the Statute of Frauds, expressly including contracts for the sale of land, and was in terras that "the consideration of any such promise, contract, or agreement, need not be set forth or expressed in the writing," etc.
The majority opinion said, "the language of the section is general, and should be read as no doubt it was meant." The minority insisted that it should be construed so as to give effect to the intention of the revisers of the statutes, which was to adopt and confirm the judgment in Packard v. Richardson, declining to follow Wain v. Warlters; and that as those were cases of guaranties, unilateral contracts, the section should not be made to apply to other than unilateral contracts. Their opinion, by Field, C. J., says: "When the whole contract or promise of the defendant is to do a certain thing, and this is an absolute promise, resting upon a consideration which has been executed, there is some reason in saying that the memorandum signed by the defendant need not contain the consideration or inducement of the contract or promise. But in a contract executory on both sides, where the promises are mutual, and each is the consideration of the other, the promises are conditional, and one party agrees to perform his part of the contract only on condition that the other will perform his part, and it cannot be known what the promise of the one is without knowing the express or implied promise of the other. ... If a mere acknowledgment in writing by the vendor that he has agreed to convey specific land to the vendee, on terms which are not expressed, is sufficient to satisfy the Statute of Frauds, then it is open to the vendee to prove by oral testimony the price to be paid, and all the other terms of the contract to be performed by him, and the statute will no longer prevent frauds and perjuries. . . . The decision of the court seems to me in great part to nullify the statute." There is no answer to this reasoning, in the absence of the special provision that the consideration need not be expressed in the case of any of the contracts named, including contracts for land. And the dissenting opinion recites numerous cases where, notwithstanding the presence of such a special provision, it has been held that all the material terms and conditions of a sale of land must appear in the memorandum.
1 17 Mass. 122.
§ 382. In cases of sales, credit stipulated is an essential term of the contract, and must appear in the memorandum. Such appears to be the established rule in actions at law,1 though it seems it is not so strictly applied in suits in equity for a specific execution of the contract. Where an advertisement of land for sale at auction stated that it was to be on a credit, and the auctioneer's entry at the time of sale made no allusion to the credit, and the proprietor, at the expiration of the time alleged by the defendant as having been really allowed, brought a bill to compel a specific execution of the purchase, the Court of Appeals of Virginia made a decree accordingly. Brockenborough, J., remarked that the defendant, by the memorandum of sale, had bound himself to pay in cash; and although that memorandum did not state the truth as to the time of payment, yet the bill did, and the defendant could not object; but that if the plaintiff had claimed specific execution at cash, the defendant might have resisted on the ground of the credit really agreed to be given.2 In the absence of any evidence that credit was to be allowed, the memorandum may be silent in that respect, and a sale for cash will be presumed.3 And it seems to be in no case material that it should appear in the writing whether the payment on time is to be with interest.1