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.
8 Bean v. Valle, 2 Mo. 126; Halsa v. Halsa, 8 Mo. 303.
9 Neelson v. San borne, 2 N. H. 413; Underwood v. Campbell. 14 N. H. 393. Underwood v. Campbell was doubted in Britton v. Angier, 48 N. H. 420, and overruled in Goodnow v. Bond, 59 N. H. 150.
10 Sears v. Brink, 3 Johns 210; Kerr v. Shaw, 13 Johns. 236. But see Leonard v. Vredenburgh, 8 Johns. 29. The Revised Statutes of New York afterward expressly enacted that the consideration must appear. See Appendix. Sackett v. Palmer, 25 Barb. 179; Castle v. Beardsley, 10 Hun (N. Y.) 343.
11 Buckley v. Beardslee, 2 South. 570; Laing v. Lee, Spencer, 337. 12 Weldin v. Porter, 4 Houst. 236.
Maryland,1 South Carolina,2 Georgia,3 Indiana,4 Illinois,6 Michigan,6 Wisconsin,7 and Minnesota.8 In the statutes of some other States the word "agreement" does not so occur, but the word "promise" is coupled with it in the clause in question; and the courts of those States have generally dispensed with the statement of the consideration, on the ground of that difference.9
§ 392. It is important to observe that the American decisions which stand opposed to Wain v. Warlters have almost exclusively considered that case as depending upon the force attributed by the judges to the word "agreement," and the case of Egerton v. Mathews as depending entirely upon the distinction suggested between that word and "bargain." If there had been no other ground upon which those cases could be sustained, and no other argument for the necessity of having the consideration stated in the memorandum, it may be doubted whether, even in England, the doctrine in question would have survived and been finally established as law. The definition of "agreement," as adopted by Lord Ellen-borough from Comyns, is itself open to some question;1 but if it were correct, the question remains, whether that word, so introduced into the statute, is to be taken in its strict legal sense. His Lordship determines this in the affirmative, upon the ground of the well-known sagacity and precision of Lord Hale, whom he asserts to have been the author of the Statute of Frauds. But apart from the historical doubts which exist upon this point,2 we find it difficult to maintain such an interpretation, when we come to compare the several clauses of the fourth section with each other and with the seventeenth.
1 Sloan v. Wilson, 4 Harr. & J. 322; Elliott v. Giese, 7 Harr. & J. 457; Wyman v. Gray, 7 Harr. & J. 409; Edelen v. Gough, 5 Gill, 103; Hutton v. Padgett, 26 Md. 228; Deutsch v. Bond, 46 Md. 479. But see Brooks v. Dent, 1 Md. Ch. Dec. 523; Ordeman v. Lawson, 49 Md. 135.
2 Stephens v. Winn, 2 Nott & McC. Law 372, note a; though it was afterward treated as an open question in Lecat v. Tavel, 3 McCord Law, 158.
3 Henderson v. Johnson, 6 Ga. 390; Hargroves v. Cooke, 15 Ga. 321.
4 Gregory v. Logan, 7 Blackf. 112. This was before the present Revised Statutes, which provide that the consideration may be proved by parol. See Appendix.
5 Patmor v. Haggard, 78 111. 607. But since regulated by legislative enactment. See Appendix.
6 Jones v. Palmer, 1 Doug. 379.
7 Reynolds v. Carpenter, 3 Chandl. 31; Taylor v. Pratt, 3 Wisc. 674; Parry v. Spikes, 49 Wisc. 384.
8 Nichols v. Allen, 23 Minn. 542.
9 Thus, in Virginia, Violett v. Patton, 5 Cranch (U. S.) 142; Mississippi, Wren v. Pearce, 4 Smedes & M. 91; Tennessee, Taylor v. Ross, 3 Yerg. 330; Campbell v. Findley, 3 Humph. 330; Gilman v. Kibler, 5 Humph. 19; Alabama, Thompson v. Hall, 16 Ala. 204; Rigby v. Norwood, 34 Ala. 129. But see Foster v. Napier, 74 Ala. 393; Kentucky, Ratliff v. Trout, 6 J. J. Marsh. 605; Florida, Dorman v. Bigelow, 1 Fla. 281; California, Baker v. Cornwall, 4 Cal. 15; Evoy v. Tewksbury, 5 Cal. 285; Ellison v. Jackson Water Co., 12 Cal. 542. In Louisiana, the civil law prevails, and by that law no consideration is necessary to be stated or proved. Ringgold v. Newkirk, 3 Pike (Ark.) 97. See post, § 393, as to the materiality of such change in the phraseology.
§ 393. It is suggested by the judges in Wain v. Warlters, that the fourth section discriminates between the "promise" and the "agreement;" the former being that upon which the defendant is to be charged, but the latter being that of which the memorandum is required. On looking at the last clause of the section, however, we find that the party signing the "agreement" is spoken of as "charged" thereupon. Moreover, the section begins with saying that "no action shall be brought, whereby to charge, etc., upon any special promise," etc., and in the last clause provides that "the agreement upon which such action is brought," etc., shall be in writing. The proper method of interpreting the word "agreement" in this section, if it must be conceded to have been used at all distinctively, seems to be that suggested by Chief Justice Abbott, who said it should be read as a word of reference, as if all the precedent words were incorporated in it, and then the section would stand thus: "Unless the agreement, special promise, contract, or sale, upon which such action is brought, shall be in writing," etc.1 But again, in the seventeenth section, which we may certainly compare with the fourth, as in pari materia, to ascertain the force intended to be given to such words as they have in common, the word "bargain" appears to be used in the same sense as " contract," thus: "No contract for the sale of goods, etc., shall be allowed to be good, unless some note or memorandum of the said bargain," etc. Upon the whole, therefore, it is not easy to see that these several terms are employed in any such discriminating manner as can itself afford a precise, consistent, and satisfactory rule of construction.2
1 See Mr. Fell's Treatise on Mercantile Guaranties, Appendix, No. IV., where this definition is examined with much research and critical skill.
2 Vide Introduction to this Treatise.
§ 394. But it is conceived that the doctrine of Wain v. Warlters is to be supported upon other and more substantial grounds. The case of Saunders v. Wakefield, which followed after those cases in which Lord Eldon had expressed his dissatisfaction with Wain v. Warlters, reasserted the rule that the memorandum must show the consideration; and this, as is most important to observe, upon principle and reason, and with little more than a passing allusion to the leading case. The words of Mr. Justice Holroyd present with most admirable clearness and force what is conceived to be the true reason of the rule. He says: "The general object of the statute was, to take away the temptation to commit fraud by perjury in important matters, by making it requisite in such cases for the parties to commit the circumstances to writing. The particular object of the fourth clause was, to prevent any action being brought in certain cases, unless there was a memorandum in writing. The object of. both was, that the ground and foundation of the action should be in writing, and should not depend on parol testimony.