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.
§ 388. Within a few years after the determination of this case, it was several times disapproved by Lord Eldon, particularly in Gardom, ex parte, where he said that until it was decided, he "had always taken the law to be clear that if a man agreed in writing to pay the debt of another, it was not necessary that the consideration should appear upon the face of the writing."1 But it was never overruled, and afterward, the same point being directly presented to the judges of the Queen's Bench, it was unanimously affirmed.2 From that time the doctrine of Wain v. Warlters appears to have been accepted as, beyond question, the English law upon this point.3
1 Wain v. Warlters, 5 East 10.
§ 389. The case of Egerton v. Mathews, decided in the year following Wain v. Warlters, and by the same bench, requires especial notice; because upon it much of the opposition in this country to the doctrine of Wain v. Warlters is found to rest. The facts in that case have been recited on a previous page,4 where we saw that it arose upon a bargain for the purchase of goods under the seventeenth section; and that the memorandum produced described the goods purchased and stated the price to be paid. An objection on the ground of Wain v. Warlters was made to the court and overruled; the judges recognizing that case, but discriminating between the requisitions of the fourth section and those of the seventeenth, in respect to the statement of the consideration. Lord Ellenborough observed that the words of the statute were satisfied, if there was some note or memorandum of the bargain signed by the parties to be charged by such contract; and that this was a memorandum of the bargain, or at least of so much of it as was sufficient to bind the parties to be charged therewith, and whose signature to it was all that the statute required. Mr. Justice Lawrence said: "The case of Wain v. Warlters proceeded on this, that in order to charge one man with the debt of another, the agreement must be in writing; which word agreement we considered as properly including the consideration moving to, as well as the promise by, the party to be so charged; and that the statute meant to require that the whole agreement, including both should be in writing." 1 But, notwithstanding these remarks, it is obvious that the case did not turn upon the absence of the word "agreement," from the seventeenth section. In point of fact, the consideration for the defendant's engagement to pay, namely, the delivery to be made to him of certain goods, did appear upon the face of the memorandum;2 although the plaintiff had not himself signed the memorandum so as to be bound. The case does not stand at all opposed to Wain v. Warlters, the doctrine of which cannot indeed come in question under those clauses of the statute which relate to contracts of bargain and sale, where, of course, the memorandum must always show the price stipulated, as necessary to an understanding of the obligation of the party to be charged, whether the buyer or seller,3 and, by showing the price stipulated, shows by fair implication the agreement of the other party to buy or sell at that price, which agreement is the consideration of that of the defendant in the case supposed.
1 Gardom, ex parte, 15 Ves. 288; Minet, ex parte, 14 Ves. 190. See also Boehm v. Campbell, 8 Taunt. 679.
2 Saunders v. Wakefield, 4 Barn. & Ald. 595.
3 Lyon v. Lamb, in the Exchequer of Pleas, 1807, reported in Fell on Merc. Guar. Appendix, No. III.; Jenkins v. Reynolds, 3 Brod. & B. 14; Morley v. Boothby, 3 Bing. 107; Hawes v. Armstrong, 1 Bing. N. R. 767; Cole v. Dyer, 1 Cromp. & J. 461; James p. Williams, 5 Barn. & Ad. 1109; Clancy v. Piggott, 2 Ad. & E. 473; Raikes v. Todd, 8 Ad. & E. 846; Sweet v. Lee, 3 Man. & G. 452; Bainbridge v. Wade. 16 Q. B. 89. By 19 & 20 Vict. c. 97, the Mercantile Law Amendment Act, it is provided that "No special promise ... to answer for the debt, default, or miscarriage of another person, being in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized, shall be deemed invalid to support an action, suit, or other proceeding to charge the person by whom such promise shall have been made, by reason only that the consideration for such promise does not appear in writing, or by necessary inference from a written document."
4 Ante, § 381.
1 Egerton v. Mathews, 6 East 308.
2 Jenkins v. Reynolds, 3 Brod. & B. 14, per Park, J.
3 Ante, §§ 376 et seq.
§ 390. In this country, such has been the contrariety of opinion upon the doctrine of Wain v. Warlters, that it would scarcely serve any useful purpose to attempt to weigh the cases with a view to ascertain which way the balance of judicial opinion may incline. In each of the States the point has been presented, and in each has been decided as seemed to its courts wisest in point of policy, or most commended by authority. By statute in several States the consideration must be expressed in writing.1
§ 391. Of those States where the word "agreement" is retained in the clause requiring the memorandum, the doctrine of Wain v. Warlters is repudiated in Maine,2 Vermont,8 Connecticut,4 Massachusetts,6 North Carolina,6 Ohio,7 and Missouri.8 But it has received the sanction of the courts in New Hampshire,9 New York,10 New Jersey,11 Delaware,13
1 Eppich v. Clifford, 6 Col. 493.
2 Levy v. Merrill, 4 Greenl. 180; Gillighan v. Boardraan, 29 Me. 79; Williams v. Robinson, 73 Me. 186.
3 Smith v Ide, 3 Vt. 290; Patchin v. Swift, 21 Vt. 292.
4 Sage v. Wilcox, 6 Conn. 81.
5 Packard v. Richardson, 17 Mass. 121. The Revised Statutes of Massachusetts have since expressly provided that the consideration need not appear in the memorandum. See Appendix.
6 Miller v. Irvine, 1 Dev. & B. Law 103; Ashford v. Robinson, 8 Ired. Law 114.
7 Reed v. Evans, 17 Ohio, 128.