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 Allen v. Bennet, 3 Taunt. 173; Louisville Co. v. Lorick, 29 S. C. 533; Kennedy v. Gramling, 33 S. C. 367. And see Long v. Millar, L. R. 4 C. P. D. 450.
2 See post, § 357.
§ 350. In a case in the Supreme Court of the United States,3 where the memorandum of a bargain for the sale of goods was ambiguous in some of its terms, the majority of the court, while deciding that the memorandum was sufficient of itself, expressed the opinion that, for the purpose of explaining ambiguities in the memorandum, resort could be had to a bill of parcels made by the plaintiff subsequently to the memorandum and containing no reference to it; the bill of parcels being treated (apparently) as one of the contemporaneous facts in the light of which the paper which really constituted the memorandum should be read. Thus limited, the case may not be exposed to the criticisms since made upon it in the same court.1
1 Johnson v. Dodgson, 2 Mees. & W. 653. It was said in the argument of this case, upon the authority of Kennett v. Milbank, 1 Moo. & S. 102, that a letter from a debtor must refer specifically to the debt in question, to take it out of the Statute of Limitations; but Parke, B., remarked that that was questionable, and cited Lechmere v. Fletcher, 1 Cromp. & M. 623.
2 Jacob v. Kirk, 2 Moo. & R. 224; but see Buxton v. Rust, L. R. 7 Exch. 279, and cases cited under § 348.
3 Salmon Falls Mfg. Co. v. Goddard, 14 How. 446.
§ 351. In cases of sales by auction, the entry of the purchaser's name with the price, etc., in the sales-book of the auctioneer, completes the memorandum;2 provided that the book be so headed and otherwise arranged that the entry shall be intelligible and show what the transaction is.3 So with the note-book of a broker, so far as his entries therein are to be resorted to for proof of any bargain and sale effected by him in that capacity. But it has been much disputed whether the broker's entry in his book is the memorandum intended by the statute, or the bought and sold notes which he hands to his respective parties. It is clearly settled that the bought and sold notes together constitute a binding memorandum, though the broker make no entry in his book.4 But for this purpose the rule is that they must agree in their terms.1 If either the bought or the sold note alone be produced, the other will be presumed to correspond with it, in the absence of evidence to the contrary.2 When they do not agree, or when they both state a contract different from that entered in the book, the question is presented, which is the memorandum; and on this point there is unquestionable conflict in the decisions. It has been decided, however, by a majority of the judges of the Queen's Bench that, if the bought and sold notes differ, reference may be had to the book entry, as being really the memorandum, of which the notes were merely meant as copies.3 Which of the two, the notes or the book entry, shall govern when the notes state a different contract from the book entry, is the more direct and essential question, and it seems to be still undecided; though Erle, J., in the case in the Queen's Bench, intimates that, in the absence of any commercial usage to rely exclusively on the notes, the parties, by accepting and acquiescing in them, might be taken to have ratified the bargain therein expressed, and so adopted it instead of the original entry. Of course, if there are no bought and sold notes, or none which agree together, and no book entry, the contract cannot, so far as it depends upon written evidence, be enforced;4
1 See Grafton v. Cummings, 99 U. S. 100. But see Doberty v;. Hill 144 Mass. 468. That a printed advertisement of the sale, previously published, may be considered in aid of the auctioneer's memorandum for identifying land sold, see McBrayer v. Cohen, 92 Ky. 479.
2 See the cases cited in note to § 369, post.
3 Gill v. Bicknell, 2 Cush. (Mass.) 855; Rishton v. Whatmore, 8 Ch. Div. 467. First Baptist Church of Ithaca v. Bigelow, 16 Wend. (N. Y.) 28. The Revised Statutes of New York and the statutes of some other States have expressly provided what shall be the nature of the book in which an auctioneer's entry, to be binding, must be made. See Appendix.
4 Ilawes v. Forster, 1 Moo. & R. 36S; Rucker v. Cammeyer, 1 Esp. 105; Hicks v. Hankin, 4 Esp. 114; Chapman v. Partridge, 5 Esp. 256; Dickerson v. Lilwal, 1 Stark. 128; Soames v. Spencer, 1 Dowl. & R. 32; Short v. Spackman, 2 Barn. & Ad. 962; Grant v. Fletcher, 5 Barn. & C. 436; Goom v Aflalo, 6 Barn. & C. 117; Trueman v. Loder, 11 Ad. & E. 589; Sievewright v. Archibald, 17 Q. B. 103, Bibb v. Allen, 149 U.S. 481.
1 Cumming v. Roebuck, Holt, N. P. 172; Thornton p. Kempster, 5 Taunt. 786; Gregsou v. Ruck, 4 Q. B. 737; Grant v. Fletcher, 5 Barn. & C. 436; Sievewright v. Archibald, 17 Q. B. 103; Peltier v. Collins, 3 Wend. (N. Y.) 459; Davis v. Shields, 26 Wend. (N. Y.) 341; Suydam v. Clark, 2 Sand. (N. Y.) 133.
2 Hawes v. Forster, 1 Moo. & R. 368; Partem v. Crofts, 16 C. B. n. s. 11. 3 Sievewright v. Archibald, 17 Q. B. 103. And see Hawes v. Forster, unless, indeed, as has been suggested, the defendant, by recognizing one of the notes as containing correctly the terms of the bargain, may be considered to have accepted and ratified it1
1 Moo. & R. 368; Hinde v. Whitehouse, 7 East 558; Pitts v. Beckett. 13 Mees. & W. 743; Heyman v. Neale, 2 Camp. 337; Thornton v. Meux, Moo. & M. 43; Thornton v. Charles, 9 Mees. & W. 802; Townend v. Drakeford, 1 Car. & Kir. 20; Toomer v. Dawson, Cheves (S. C) 68. Where the bought and sold notes constitute the memorandum relied on, it must be so averred in the declaration. Rayner v. Linthorne, Ryan & M. 325.
4 Grant v. Fletcher, 5 Barn. & C. 436; Sievewright v. Archibald, 17 Q. B. 103. And see Newbery v. Wall, 84 N. Y. 576. A broker's entry in his own book, without any bought and sold notes, was held sufficient in Coddington v. Goddard, 16 Gray (Mass.) 436.