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.
§ 351 a. It may be doubted whether the courts, so far as can be gathered from the decisions referred to in the preceding section, have not failed to discriminate in all cases between a written contract and an oral contract evidenced by writing. It seems clear that the requirement of the statute may be fully met either by a bought note alone or a sold note alone, not because of the peculiar commercial character of the paper in either case, but because, like any other memorandum, it is an accurate statement in writing signed by the party to be charged. Thus, in a recent case in Missouri,2 where the seller of goods sold by parol was sued for non-delivery, a sold note alone was held a sufficient memorandum, on the ground that it correctly evidenced the terms of the contract, and was signed by the defendant's duly authorized sub-agent. In that case no bought note was produced or referred to, and it would seem generally that even if no bought note had been made, or that, if one had been made, it differed from the sold note in not stating the contract correctly, the latter would still be a sufficient memorandum to charge the seller.
§ 352. It is immaterial whether the memorandum be written in ink or pencil, or otherwise;3 or it may not be written at all, but printed or stamped.4
1 Erie, J., in Sievewright v. Archibald, 17 Q. B. 103. In this case, the judges, being divided, delivered opinions seriatim, and the whole subject of broker's notes and entries will be found there discussed at length, and the authorities carefully examined. A careful and valuable discussion of the subject will also be found in Langdell, Select Cases on Sales, 1035
2 Greeley-Burnham Co v. Capen, 23 Mo. App. 301.
3 Geary v. Physic, 5 Barn. & C. 234; Merritt v. Clason, 12 Johns. (N. Y.) 102: Clason v. Bailey, 14 Johns (N. Y.) 484.
4 Saunderson v. Jackson. 2 Bos. & P. 238; Schneider v. Norris, 2 Maule & S. 286. In Pitts v. Beckett, 13 Mees. & W. 743, a machine copy of a
§ 352 a. As to the time when the memorandum must be executed, it is settled that it may be at any time subsequent to the formation of the contract by the parties,1 and before action brought.2 It has been sometimes doubted whether it might not be after action brought, upon the ground that the statute only meant to secure written evidence of the contract.3 But there appears to have been no direct decision to that effect, and the weight of opinion as well as of reason is against it.4 writing was offered as a memorandum. The court did not have occasion to pass upon the instrument, but Baron Parke said that he was strongly of opinion that it would do as a memorandum. See also Vielie v. Osgood, 8 Barb. (N. Y.) 130; McDowel v. Chambers, 1 Strobh. (S. C.) Eq. 347; Draper v. Pattina, 2 Speers (S. C.) 292. As to signature by printing, see post, § 356. And by telegraph, Hazard v. Day, 14 Allen (Mass.) 487; Palmer v. Marquette & Pacific Rolling Mill Co., 32 Mich. 274; Godwin v. Francis, L. R. 5 C. P. 295; Little v. Dougherty, 11 Col. 103; Brecken-ridge v. Crocker, 78 Cal. 529.
1 Munday v. Asprey, L. R. 13 Ch. D. 855.
2 See ante, § 346, and cases there cited, where letters of the defendant recognizing the contract were held sufficient to charge him. Also Williams v. Bacon, 2 Gray (Mass.) 387; Sievewright v. Archibald, 17 Q. B. 107, 114. The time of making the memorandum may be shown by extrinsic evidence, even in contradiction of the date upon the memorandum itself. Hewes v. Taylor, 70 Pa. St. 387; Heideman v. Wolfstein, 12 Mo. App. 366. It was held in McAnnulty v. McAnnulty, 120 111. 126, that a memorandum made after marriage of an oral ante-nuptial agreement would not be sufficient, - but qvoere. See § 344, note 1, supra.
3 Fricker v. Thomlinson, 1 Man. & G. 772; Thornton v. Kempster, 5 Taunt. 786; Gibson v. Holland, L. R. 1 C. P. 1, opinion of Willes, J. And see Nelson v. Dubois, 13 Johns. (N. Y.) 175; Hudson v. King, 2 Tenn. 560.
4 Bill v. Bament, 9 Mees. & W. 36. Erle, J., in Sievewright v. Archibald, 17 Q. B. 103. See Bailey v. Sweeting, 9 C. B. N. S 843. See ante. § 338. In Rose p. Cunynghame, 11 Ves. 550, before Lord Eldon, where it was necessary for the plaintiff to show a binding contract for. the purchase of land existing prior to the execution of a will by the purchaser, so that (the contract being regarded in equity as executed) the will would pass that land, it was argued, that a letter, written prior to the execution of the will, might be read in connection with a deed made subsequently to its execution, so as to constitute a sufficient memorandum of the purchase. It does not appear that Lord Eldon noticed the point, but he decided against the sufficiency of the writings relied upon, on other grounds. Lucas v. Dixon, L. R. 22 Q. B. D. 357.
§ 353. In the case of auctioneers, the general rule just stated seems not to apply. In Buckmaster v. Harrop, Lord Chancellor Erskine decided (the point being directly presented on the facts) that an auctioneer's entry, to be valid as a memorandum, must be made contemporaneously with the sale;1 and the language of many of the cases, apparently uncontradicted, is that the name of the purchaser must be written down by him immediately after the announcement of the bid and the fall of his hammer; by which we should understand, before proceeding to put up another article. Mr. Justice Story, referring to this rule as to auctioneers, puts it on the ground that men are not to be "ensnared by contracts subsequently reduced to writing by their agents."2 His remark is casually made, however, and the rule itself is referred to by him in illustration merely of an entirely different question under the statute. If we except this remark, there appears to be no support for the position that a memorandum made by an agent (other than an auctioneer) acting for the party to be charged, must be contemporaneous with, or immediately follow, the transaction, any more than if made by the party himself.3 No such exception appears to have been suggested by those judges who have had occasion to lay down the general rule, that the memorandum may be made at any time before action brought; and we do sometimes find that rule laid down with more or less distinct inclusion of the case of signature by an agent, though, as was before remarked, without its being made a point in the decision.4 Again, the exception seems to be irreconcilable dum shall bind the party as such. Where a paper is drawn up and signed for the mere purpose of having an agreement prepared, as, for instance, an inventory of articles, or a list of heads to be embraced therein, it is of course not to be itself taken as the agreement,1 but it may be available as a memorandum.2 Even when a paper is drawn up as the final obligation, if it be retained by the party signing it, and never in any way delivered as his agreement, it cannot be made use of, even as a memorandum.3 And generally it is held that where the writing is a private one, or kept by the maker in his own possession, it cannot be treated as a memorandum or admission of the agreement;4 but an instrument so drawn as to recognize the obligation, though not for that special purpose, will, if it be delivered to the other party and accepted by him, suffice for a memorandum under the statute.6