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 Clinau v. Cooke, 1 Schoales & L. 22; Abeel v. Radcliff, 13 Johns. (X. Y.) 297; Hodges v. Howard, 5 R. I. 149; Fitzmaurice v. Bayley, 9 H. L. C. 79; Hurley v. Brown, 98 Mass. 545; Parker v. Tainter, 123 Mass. 185; Riley v. Williams, 123 Mass. 506; Clarke v. Fuller, 16 C. B. n. s. 24; Farwell v. Mather, 10 Allen (Mass.) 322; Marshall v. Berridge L. R. 19 Ch. D. 233.
2 Springer v. Kleinsorge, 83 Mo. 152. See § 346 b., ante.
3 Nichols v. Johnson, 10 Conn. 192; Phillips v. Hooker, Phil. (N. C.) Eq. 193; Lente v. Clarke, 22 Fla. 515; Mfg. Co. v. Hendricks, 106 X. C. 485. See MacLin v. Haywood, 90 Tenn. 195; Ballon v. Sherwood, 32 Neb. 666.
4 Atwood v. Cobb, 16 Pick. (Mass.) 227. And see Tallman v. Franklin, 14 N. Y. 584; Simmons v. Spruill, 3 Jones (X. C.) Eq. 9; Hurley v. Brown, 98 Mass. 545; Whelan v. Sullivan, 102 Mass. 204; Grace v. Deni-fion. 114 Mass. 16; Mead v. Parker, 115 Mass. 413; Horsey v. Graham, L. R. 5 C. P. 9; Owen v. Thomas, 3 Mylne & K. 353; Baumann v. James, L. R. 3 Ch. App. 508; McMurray v. Spicer. L. R. 5 Eq. 527. But see Holmes v. Evans, 48 Miss. 247; Johnson v. Kellogg, 7 Heisk. (Tenn.) 262; White v. Core, 20 W. Va. 272; Springer v. Kleinsorge, 83 Mo. 152; Henderson v. Perkins, 21 S. W. Rep. (Ky.) 1035. See Parks v. People's Bank, 31 Mo. App. 12. And see Phillips v. Swank, 120 Pa St. 76; Shardlow v. Cotterell, L. R. 20 Ch. D. 90. But see Nippolt p. Kam-mon. 39 Minn. 372; Horton v. Wollner, 71 Ala. 452.
5 Bateman v. Phillips, 15 East 272. See also Sale v. Darragh, 2 Hilton (X. Y.) 184; Hall v. Soule, 11 Mich. 494.
6 Doherty v. Hill, 144 Mass. 465.
§ 386. But the question which is by far the most difficult presented in the present branch of our subject, and which has perhaps more engaged the attention of courts, and provoked a more marked conflict of judicial opinion than any other arising upon any part of the Statute of Frauds, is, whether the note or memorandum in writing must show the consideration upon which the defendant's promise is founded.
§ 387. This question first arose in the case of Wain v. Warlters, decided in the Queen's Bench in 1804. The declaration alleged in substance that the plaintiffs, being the indorsees and holders of a bill of exchange for £56, drawn upon and accepted by one Hall, which was then due and unpaid, and being about to sue the drawee and acceptor thereon, the defendant, upon a certain day, in consideration of the premises and that the plaintiffs would forbear to proceed with their suit, undertook and promised to pay the plaintiffs, by half-past four o'clock on that day, £56 and the expenses which had been incurred by them on said bill. At the trial before Lord Ellenborough, the plaintiffs produced in evidence a writing, signed by the defendant, in these words: "Messrs. Wain & Co., I will engage to pay you by 1/2 past 4 this day fifty-six pounds and expenses on bill that amount on Hall. (Signed) Jno. Warlters, and dated, No. 2, Cornhill, April 30th, 1803." The defendant having objected that, although his promise was in writing, the consideration of it was not in writing, and that the Statute of Frauds required both to appear in the memorandum, Lord Ellenborough nonsuited the plaintiffs; a rule nisi was obtained for setting this nonsuit aside and for a new trial. Upon argument, all the judges concurred in discharging the rule. Lord Ellenborough first referred with approbation to the remark of Comyns, L. C. B., that "an agreement is aggregatio mentium, viz., where two or more minds are united in a thing done or to be done; a mutual assent to do a thing; and it ought to be so certain and complete that each party may have an action upon it;"1 and then proceeded to say: "The question is, whether that word is to be understood in the loose incorrect sense in which it may sometimes be used, as synonymous to promise or undertaking, or in its more proper and correct sense, as signifying a mutual contract on consideration between two or more parties? The latter appears to me to be the legal construction of the word, to which we are bound to give its proper effect; the more so when it is considered by whom that statute is said to have been drawn, by Lord Hale, one of the greatest judges who ever sat in Westminster Hall, who was as competent to express as he was able to conceive the provisions best calculated for carrying into effect the purposes of that law. The person to be charged for the debt of another is to be charged, in the form of the proceeding against him, upon his special promise; but without a legal consideration to sustain it, that promise would be nudum pactum as to him. The statute never meant to enforce any promise which was before invalid merely because it was put in writing. The obligatory part is indeed the promise, which will account for the word promise being used in the first part of the clause, but still in order to charge the party making it, the statute proceeds to require that the agreement, by which must be understood the agreement in respect of which the promise was made, must be reduced into writing. And indeed it seems necessary for effectuating the object of the statute that the consideration should be set down in writing as well as the promise; for otherwise the consideration might be illegal, or the promise might have been made upon a condition precedent, which the party charged may not afterwards be able to prove, the omission of which would materially vary the promise, by turning that into an absolute promise which was only a conditional one: and then it would rest altogether on the conscience of the witness to assign another consideration in the one case, or to drop the condition in the other, and thus to introduce
1 Com. Dig. tit. Agreement, A. 1 the very frauds and perjuries which it was the object of the act to exclude, by requiring that the agreement should be reduced into writing, by which the consideration as well as the promise would be rendered certain. . . . The word agreement is not satisfied unless there be a consideration, which consideration forming part of the agreement ought therefore to have been shown; and the promise is not binding by the statute unless the consideration which forms part of the agreement be also stated in writing. Without this, we shall leave the witness whose memory or conscience is to be refreshed to supply a consideration more easy of proof, or more capable of sustaining the promise declared on. Finding therefore the word agreement in the statute, which appears to be most apt and proper to express that which the policy of the law seems to require, and finding no case in which the proper meaning of it has been relaxed, the best construction which we can make of the clause is to give its proper and legal meaning to every word of it." Grose, J.: "What is required to be in writing ... is the agreement (not the promise, as mentioned in the first part of the clause), or some note or memorandum of the agreement. Now the agreement is that which is to show what each party is to do or perform, and by which both parties are to be bound; and this is required to be in writing. If it were only necessary to show what one of them was to do, it would be sufficient to state the promise made by the defendant who was to be charged upon it. But if we were to adopt this construction it would be the means of letting in those very frauds and perjuries which it was the object of the statute to prevent. For without the parol evidence the defendant cannot be charged upon the written contract for want of a consideration in law to support it. The effect of the parol evidence then is to make him liable: and thus he would be charged with the debt of another by parol testimony, when the statute was passed with the very intent of avoiding such a charge, by requiring that the agreement, by which must be understood the whole agreement should be in writing." Lawrence, J.: "From the loose manner in which the clause is worded, I at first entertained some doubt upon the question; but upon further consideration I agree with my Lord and my Brothers upon their construction of it. If the question had arisen merely upon the first part of the clause, I conceive that it would only have been necessary that the promise should have been stated in writing; but it goes on to direct that no person shall be charged on such promise, unless the agreement, or some note or memorandum thereof, that is, of the agreement, be in writing; which shows that the word agreement was meant to be used in a sense different from promise, and that something besides the mere promise was required to be stated. And as the consideration for the promise is part of the agreement, that ought also to be stated in writing." Le Blanc, J.: "If there be a distinction between agreement and promise, I think that we must take it that agreement includes the consideration for the promise as well as the promise itself: and 1 think it is the safer method to adopt the strict construction of the words in this case, because it is better calculated to effectuate the intention of the act, which was to prevent frauds and perjuries, by requiring written evidence of what the parties meant to be bound by. I should have been as well satisfied, however, if, recurring to the words used in the first part of the clause, they had used the same words again in the latter part, and said, 'unless the promise or agreement upon which the action is brought, or some note or memorandum thereof, shall be in writing.' But not having so done, I think we must adhere to the strict interpretation of the word agreement, which means the consideration for which as well as the promise by which the party binds himself." 1