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 Morton v. Dean, 13 Met. (Mass.) 385; Davis v. Shields, 26 Wend. (N. Y.) 341; M'Farson's Appeal, 11 Pa. St. 503; Soles v. Hickman, 20 Pa. St. 180; Buck v. Pickwell, 27 Vt. 157; Ellis v. Deadman,4 Bibb (Ky.) 466; Parker v. Bodley, 4 Bibb (Ky.) 102; Elfe p. Gadsden, 2 Rich (S. C.) Law 37; Wright v. Weeks, 3 Bosw. (N. Y.) 372.
2 Smith v. Jones, 7 Leigh 165.
3 Valpy v. Gibson, 4 C. B. 837; Fessenden v. Mussey, 11 Cush. (Mass.) 127.
§ 383. In a case in the Supreme Court of the United States, already repeatedly referred to in this chapter, the memorandum was: "Credit to commence when ship sails, not after Dec. 1st," and the court held the time of credit to be sufficiently expressed, although there was no evidence what ship was referred to.2 See the dissenting opinion of Mr. Justice Curtis, in which he exhibits very clearly the difficulties attending this and other points in the decision of the majority of the court.
§ 384. The memorandum need not stipulate any time or place for the delivery of goods sold, or for the performance of any other contract, in the absence of such stipulation in the contract.3 But where time is stipulated, then it is in the nature of a condition, which goes to the essence of the contract and must appear in the memorandum.4 And so with a warranty of quality in case of a sale of goods,5 provided, it would seem, that the warranty is a condition of the contract of sale, and not an independent agreement.6 The general rule is that the memorandum must contain all the material terms of the contract.7
1 Atwood v. Cobb, 16 Pick. (Mass.) 227; Neufville v. Stuart, 1 Hill (S. C.) Eq. 159.
2 Salmon Falls Mfg. Co. v. Goddard, 14 How. 446.
3 Salmon Falls Mfg. Co. v. Goddard, 14 How. 446; Kriete v. Myer, 61 Md. 553.
4 Davis v. Shields, 26 Wend. (N. Y.) 341. On error, reversing the decision of the Supreme Court. 24 Wend. 322. See also First Baptist Church of Ithaca v. Bigelow, 16 Wend. 28; Gault v. Stormont, 51 Mich. 636; Smith v. Shell, 82 Mo. 215; Newburger v. Adams, 92 Ky. 26.
5 Peltier v. Collins, 3 Wend. (N. Y.) 459; Smith v. Dallas, 35 Ind. 255; Newbery v. Wall, 65 N. Y. 484.
6 Langdell, Select Cases on Sales, 1033. Compare the agreement in Sarl v. Bourdillon, 26 L. J. C. P. 80, as to the mode of payment, which, according to Jervis, C. J., "was not intended to be a part of the contract."
7 M'Lean v. Nicoll, 7 Jur. n. s. 999; Boardman v. Spooner, 13 Allen, 353; Gardner v Hazelton, 121 Mass. 494; Gwathney v. Cason, 74 N. C.
§ 385. It must, of course, appear from the memorandum, what is the subject-matter of the defendant's engagement. Property which is purported to be bargained for, must be so described that it may be identified;1 and in the case of an agreement for a lease, the term for which the lease is to be given must appear in the writing, and cannot be supplied by parol evidence.1 But the subject-matter may in any case be identified by reference to an external standard, and need not be in terms explained.2 Thus to describe it as the vendor's right in a particular estate,3 or as the property which the vendor had at a previous time purchased from another party,4 is sufficient. And it is very common to identify the debt of a third person, for which the defendant has made himself responsible, as the debt then owing, or to become owing, by such third person to the plaintiff, without further description.5 Where the memorandum described the land as the estate owned by the seller on a certain street, and it appeared that he owned two estates on that street, to either of which the description might apply, the memorandum was held insufficient.6
5; Linn Boyd Co. v. Terrell, 18 Bush (Ky.) 463; Bacon v. Eccles, 43 Wisc. 227; Williams v. Morris, 95 U. S. 444; Jervis v. Berridge, L. R. 8 Ch. App. 351; May v. Ward, 134 Mass. 127; Eckman v. Brash, 20 Fla. 703; Davis v. Pollock, 36 S. C. 544; Reid v. Kenworthy, 25 Kansas * 701; Fry v. Platt, 32 Kansas 62; Dickson v. Lambert, 98 Ind. 487; Shipman v. Campbell, 79 Mich. 82; George v. Conhaim, 38 Minn. 338; Drake v. Seaman, 97 N. Y. 230; Webster v. Clark, 60 N. H. 36; Eppich v. Clifford, 6 Col. 493; Mims v. Chandler, 21 S. C. 480; Ringer v. Holtz-claw, 112 Mo. 519; Baumau v. Marristee Co., 94 Mich. 363; Lester v. Heidt, 86 Ga. 226; Rineer v. Collins, 156 Pa. St. 343; Nelson v. Shelby Mfg. & Imp. Co., 96 Ala. 515. Whether, as was held in Cherry v. Long, Phil. (N. C.) Law 466, an auctioneer's memorandum which omits the terms of sale, can be helped by the advertisement, without producing it, but taking it for granted that it " contained the terms of sale, as is usual in such cases," quoere. See Riley v. Farnsworth, 116 Mass. 223.
1 Clinan v. Cooke, 1 Schoales & L. 22; Lindsay v. Lynch, 2 Schoales & L. 1; Harnett v. Yeilding, 2 Schoales & L. 549 (in regard to the case of Allan v. Bower, 3 Bro. C. C 149, see the remarks of Lord Redesdale, in Clinan v. Cooke, supra); Barry v. Coombe, 1 Pet. (U. S.) 640; Church of the Advent v. Farrow, 7 Rich. (S. C.) Eq. 378; Carmack v. Masterson, 3 Stew. & P. (Ala.) 411; Pipkin v. James, 1 Humph. (Tenn.) 325; Kay v. Curd, 6 B. Mon. (Ky.) 100; Baldwin v. Kerlin, 46 Ind. 426; Scanlan v. Geddes, 112 Mass. 15; Meadows v. Meadows, 3 McCord (S. C.) Law 458; Ferguson v. Staver, 33 Pa. St. 411; Ives v. Armstrong, 5 R. I. 567; Force v. Dutcher, 18 N. J. Eq. 401; Montacute v. Maxwell, 1 P. Wms. 618; Fisher v. Kuhn, 54 Miss. 480; White v. Motley, 4 Baxt. (Tenn.) 544; Williams v. Morris, 95 U. S. 444; Ryan v. Davis, 5 Montana 505; Fortescue v. Crawford, 105 N. C. 29; Humbert v. Brisbane, 25 S. C. 506; Sherer v. Trowbridge, 135 Mass. 500; Voorheis v. Eiting, 22 S. W. Rep. (Ky.) 80; Lowe v. Harris, 17 S. E. Rep. (N. C.) 539; Andrew p. Bab-cock. 26 Atl. Rep. (Conn.) 715; Fox v. Courtney, 111 Mo. 147; Weil v. Willard, 55 Mo. App. 376; Crockett v. Green, 3 Del. Ch. 466; Tewks-bury v. Howard, 37 N. E. Rpp. (Ind.) 355; Watt v. Wisconsin Co., 63 Iowa, 730; Slater v. Smith, 117 Mass. 96; Scarritt v. St. Johns M. E. Church, 7 Mo. App. 174; Schroeder v. Taaffe, 11 Mo. App. 267; Whaley v. Hinchman, 22 Mo. App. 483; Pulse v. Miller, 81 Ind. 190; Beekman v. Fletcher, 48 Mich. 555; Tice v. Freeman, 30 Minn. 389; Pierson v. Ballard, 32 Minn. 263; Quinn v. Champagne, 38 Minn. 322; Mellon v. Davison. 123 Pa. St 298; Patrick v. Sears, 19 Fla. 856; Winn v. Henry, 84 Ky. 48.