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 Saunders v. Wakefield, 4 Barn. & Ald. 595.
2 In Thompson v. Blanchard, 3 N. Y. 335, it was held that an undertaking required by statute to be entered into by sureties, in order to give a right of appeal, is valid if it contain the necessary stipulations, although it does not express a consideration, and is not under seal.
Unless, therefore, what is sufficient to maintain the action be in writing, no action can be supported." And upon the case before bim, which was assumpsit on a promise to see a third party's bill of exchange paid, he says: "In the present case, that which is reduced into writing is merely an engagement to pay the bill. Now, unless there be a consideration for that, no action lies upon such a promise. If a consideration is to be introduced, it may be either past or future, and must be proved by parol evidence. If that were allowed, all the danger which the Statute of Frauds was intended to prevent, would be again introduced." l
§ 395. It was said by Chief Justice Best, that if the clause in the statute had not expressed (as he thought it did) that the whole agreement should be in writing, the law of evidence would have rendered it necessary, by declaring that nothing could be added by parol testimony to the terms expressed in writing; and that, if he had never heard of Wain v. Warlters, he should have held that a consideration must appear upon the face of the written instrument.2 But even if this were not so,3 and if by the rules of common law parol evidence were admissible to show the consideration upon which a promise was founded, it does not seem to follow that it would be sufficient to supply so important a term of the undertaking, where the writing required by the statute is wholly silent in this particular.
§ 396. It is further urged against the rule in Wain v. Warlters, that the statute requires only "some note or memorandum." But this argument seems to overlook the fact that those words are put in apposition with "agreement," and that that clearly cannot be held to be a memorandum of an agreement, which entirely fails to note or commemorate so essential and important a feature of it as the consideration upon which it is entered into, and without which, even if it were made, it would be quite without validity or value. To use the words of Mr. Justice Richardson, "They who framed the clause were aware that it would be dangerous to leave the word 'agreement' unaccompanied, because that might have occasioned difficulty through excess of strictness; they therefore allowed a memorandum of the agreement to be made, which, though it should not state the whole agreement in detail, should sufficiently disclose the substantial cause of action." 1
1 Saunders v. Wakefield, 4 Barn. & Ald. 595. 2 Morley v. Boothby, 3 Bing. 112.
3 See Sage v. Wilcox, 6 Conn. 81, and Miller v. Irvine, 1 Dev. & B. (N. C.) Law 103.
§ 397. Nor does there appear to be, as has been suggested by Mr. Roberts,2 any conflict between the rule that the memorandum must show the consideration of the engagement of the party who signs, and the rule that only the party to be charged need sign. The memorandum is required to be signed by the party to be charged, because it is thereby made a statement or admission of all the terms of a contract made by him, which statement is put in writing and to which he gives his assent by signing his name.
§ 398. If the broad and wise policy of the statute be kept in view, namely, to prevent the false and fraudulent assertion against men of engagements which they never made, it is at least to be lamented that so many courts, illustrious for learning, have felt bound to hold that the character of the consideration, whether executed or executory, legal or illegal, on which the availability or the very existence of an agreement depends, should be left to the frail security of oral testimony.
§ 399. But in those courts where the doctrine of Wain v. Warlters has been received as law, it is not held necessary that the consideration should be formally and precisely expressed in the memorandum. The rule is sometimes stated to be, that it is sufficient if it appear by "necessary implication" from the terms of the writing.3 Even this, however, broadly applied, would tend to give an impression of greater strictness than the courts have shown on this subject. As was remarked by Jervis, C. J., in a case in the Common Pleas, necessary implication does not mean "by compulsion, but so as a person's common sense would lead him to understand."1 The proper criterion in this difficult class of cases appears to have been very clearly and judiciously stated by Chief Justice Tindal. "It would undoubtedly be sufficient in any case," he says, "if the memorandum is so framed that any person of ordinary capacity must infer from the perusal of it, that such, and no other, was the consideration upon which the undertaking was given. Not that a mere conjecture, however plausible, that the consideration stated in the declaration was that intended by the memorandum, would be sufficient to satisfy the statute: but there must be a well-grounded inference to be necessarily collected from the terms of the memorandum, that the consideration stated in the declaration, and no other than such consideration, was intended by the parties to be the ground of the promise."2 To an exact appreciation of this rule a reference to some of the decisions is, however, indispensable.
1 Jenkins v. Reynolds, 3 Brod. & B. 24.
2 Roberts on Frauds, 117 note.
3 Raikes v. Todd, 8 Ad. & E. 846. And see Powers v. Fowler, 4 El. & B. 511, and the language of the Mercantile Law Amendment Act, for which see Appendix.
§ 400. A memorandum in these words: "I guarantee the payment of any goods which J. S. delivers to J. N." was held by the Court of Queen's Bench, only four years after the decision of Wain v. Warlters, and in affirmance of the ruling of Lord Ellenborough (by whom, it will be remembered, that case was originally determined at nisi prius), to import upon its face a sufficient consideration, namely, the stipulated delivery of the goods.3 For, as we have had occasion to see,4 where a guaranty is made contemporaneously with, and in