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.
Tallman v. Franklin, 14 N. Y. 584. See Wilkinson v. Evans, L. R. 1 C. P. 407; Ridgway v. Ingram, 50 Ind. 145; Commins v. Scott, L. R. 20 Eq. 11; Kronheim v. Johnson, 7 Ch. Div. 60; Wilstach v. Heyd, 122 Ind. 574; Gordon v. Collett, 102 N. C. 532.
2 Brodie v. St. Paul 1 Ves. Jr. 326. See Clinan v. Cooke, 1 Sch. & L. 22.
3 Wilkinson v. Evans, L. R. 1 C. P. 407; Lerned v. Wannemacher, 9 Allen (Mass.) 412; Allen v. Bennet, 3 Taunt. 169; Ide v. Stanton, 15 Vt. 685; Thayer v. Luce, 22 Ohio St. 62; Peabody v. Speyers, 56 N. Y. 230; Work v. Cowhick, 81 111. 317; Beckwith v. Taibot, 95 U. S. 289; Buxton v. Rust, L. R. 7 Exch. 279; Evennan v. Herndon, 11 So. Rep. (Miss.) 652; Wills v. Ross, 77 Ind. 1; Peck v. Vandemark, 99 N. Y. 29; Bayne v. Wiggins, 139 U. S. 210; Shardlow v. Cotterell, L. R. 20 Ch. I). 90; Studds v. Watson, L. R. 28 Ch. D. 305; Beckwith v. Talbot, 2 Col. 639; Otis v. Payne, 86 Tenn. 663; Barker v. Smith, 92 Mich. 336: Mann v. Higgins, 83 Cal. 66; Elbert v. Los Angeles Gas Co., 97 Cal. 244.
4 Jacob v. Kirk, 2 Moo. & R. 221; Hinde v. Whitehouse, 7 East 558; Morton v. Dean, 13 Met. (Mass.) 385; Freeport v. Bartol, 3 Greenl. (Me.) bearing upon this general rule.1 The Messrs. Boydell, being about to publish an illustrated Shakespeare, prepared two prospectuses containing the terms, etc., on which the numbers were to be furnished; and had them, and also a book entitled simply "Shakespeare subscribers, their signatures" (but not referred to in the prospectuses, nor referring to them), lying about the shop. The defendant put his name down in the book among the subscribers; but it was held in the Court of Queen's Bench that he was not liable on his subscription, there being no such connection between the prospectuses and the book, on their face, as to enable the court to consider them together as constituting one complete memorandum. There was also in the case a letter from the defendant, in reply to one from the plaintiff, calling upon him to take and pay for his numbers, wherein he said that he ceased taking the numbers of the Boydell Shakespeare many years before, in consequence of the engagement not being fulfilled on the part of the proprietors, etc.; but, notwithstanding it was urged by the counsel that no other engagement between the parties was shown to have existed beyond what was contained in the prospectus, the court held the letter insufficient; Lord Ellenborough remarking that the engagement could not be shown to be that of the particular prospectus without parol evidence, which the statute would exclude; but if there had been a plain reference to the particular prospectus, that might have helped the plaintiff.
340; O'Donnell v. Leeman, 43 Me. 158; Wiley v. Robert, 27 Mo. 388; Boardman v. Spooner, 13 Allen (Mass.) 353; Clark v. Chamberlin, 112 Mass. 19; Johnson v. Buck, 35 N. J. L. 338; Johnson v. Kellogg, 7 Tenn. 262; Ridgway v. Ingram, 50 Ind. 145; Schafer v Farmers & Mechanics' Bank, 59 Pa. St 144; Stocker v. Partridge, 2 Rob (N. Y.) 193; Tice v. Freeman, 30 Minn. 389; Mellon v. Davison, 123 Pa St. 298; Nibert v. Baghurst, 47 N. J. Eq 201; Wilson v. Miller, 42 111. App. Ct. 332; Hale v. Hale, 19 S. E. Rep. (Va.) 739; North v. Mendel, 73 Ga 404; North Staffordshire R. R. v. Peck, 1 E. B. & E. 100; Fowler Elevator Co. v. Cottrell, 38 Neb. 512. Recent English cases show a relaxation of this rule. See Long v. Millar, L. R. 4 C. P. D. 450; Cave v. Hastings, 7 Q. B. 1). 125; Oliver v. Hunting, L. R. 44 Ch. D. 205. The last named case discusses the subject very thoroughly, and holds the rule to be that parol evidence may always be received to show the circumstances under which the papers were written, in order to ascertain what they refer to. 1 Boydall v. Drummond, 11 East 142.
§ 349. The question what amounts to a sufficient reference of the different papers to one another, on their face, to make them one memorandum, has been judicially considered to some extent. Thus, in Allen v. Bennet, the defendant having, by his agent, made and signed a memorandum for the sale to the plaintiff of "8 cwt. of fine shag tobacco," and of a quantity of rice and other tobacco, and it being objected, in an action for non-delivery, that the plaintiff's name did not appear in the writing, a letter was produced, written by the defendant to his agent, mentioning the sale, and naming the plaintiff as the person who had bought. It was held that, under all the circumstances, this letter was so connected with the first memorandum that it might be read therewith to show the name of the buyer.l Again, in the case of Johnson v. Dodgson, in the Court of Exchequer, the memorandum of a bargain for the sale of hops, written by the defendant, and signed by the plaintiff's agent, was as follows: "Sold John Dodgson [the defendant] 27 pockets Playsted, 1836, Sussex, at 103s. The bulk to answer the sample. 4 pockets Selme, Beckley's, at 95s.," etc. This was held by the court a sufficient signature by the defendant.2 The defendant, on the same day, wrote to the plaintiffs requesting them to deliver "the 27 pockets Playsted, and the 4 pockets Selme, 1836, Sussex," to a third party. It was insisted that the defendant's letter and the previous memorandum should not be read together; that parol evidence must be introduced to show that there was only one such contract, i. e., for hops of a certain description. To that Lord Abinger said: "The statute does not absolutely exclude parol evidence; it only requires that there shall be a note of the contract in writing, in order to exclude fraud or mistake as to its terms." It was not found necessary in the decision to pass upon this point, as the writing previously made was held sufficient of itself; but the opinion of the majority of the court appears to have been that, had it been necessary to rely upon them both, the letter and the previous writing were so connected as to form one memorandum to satisfy the statute. Lord Abinger, in delivering judgment, after remarking that the case was clear on other grounds, said: "If it rested upon the question as to the recognition of the contract by the letter, there might have been some doubt; although, even upon that, I should have thought the reference to the only contract proved in the case sufficient." Bolland, B., expressed his inclination to hold the same; but Parke, B., said that, if the question had turned upon that point, he should have had very considerable doubt whether the letter referred sufficiently to the contract; remarking that it referred to the subject-matter, but not to the specific contract.1 The same learned judge, a few years afterward, in a case at nisi prius, declined to connect two writings, on the ground that "the whole mischief intended to be guarded against by the statute would be incurred, if verbal evidence were admitted to show that the documents must necessarily be presumed to refer to each other." 2