CHAPTER XX SATISFACTION OF THE STATUTE BY A MEMORANDUM IN WRITING Some note or memorandum in writing of the contract or sale. 567 How far a statement of the consideration should on principle be included in the memorandum.... 571 Contents of the memorandum. Consideration if not necessary may be inaccurately stated..... 572 What is a sufficient statement of the consideration. 573 Contents of memorandum-Price..... 574 Contents of memorandum-Other terms of the contract.. 575 Separate documents-Reference to the same transaction. Signature... "By the party to be charged' "Or his agent in that behalf Auction sales.. Brokers' notes.. Time of making the memorandum. Written contracts may be varied by subsequent oral agreement.. Rescission of contracts within the Statute of Frauds.. Variation of contract within the Statute of Frauds-General doctrine.. 583 584 585 586 587 . 588 589 590 591 592 593 594 Non-performance of provisions of a written memorandum caused by a party is excused.. Damages.. 595 596 Pleading.. 597 Parol variation no protection to one who would not otherwise have performed 598 599 600 § 567. Some note or memorandum in writing of the contract or sale. The requirement of a writing is the only method of satisfying any clause of the fourth section of the statute and is a permissible way of satisfying the seventeenth section. Consequently, in determining the sufficiency of a memorandum in writing, decisions under one clause or section are generally in point for the decision of similar questions under any other clause or section. The wording of any section under which a case comes up should, however, be observed, for many of the statutes in regard to agreements concerning land and other matters within the statute, require the "contract" to be in writing in order to be enforceable, while sections relating to the sale of goods, with almost perfect uniformity, are satisfied by a "note or memorandum." 1 The difference between a contract in writing and a memorandum of a parol contract is important. Thus a note or memorandum may be made at any time prior to the beginning of the action 2 and as will appear from subsequent discussion, need not be made with the intent of making a memorandum. The parol evidence rule also affects differently a contract in writing from a memorandum in writing. The former is necessarily the only complete statement of the contract and the only evidence in regard to it, but a written memorandum may be shown by parol to be inaccurate or inadequate, and hence not a compliance with the statute.3 1 The Statute of Georgia (Code of 1915), § 3222, requires the "promise" to be in writing, but the Supreme Court of Georgia seems to lay no stress on this difference from the ordinary form of the statute. See Foster v. Leeper, 29 Ga. 294; Phillips v. Ocmulgee Mills, 55 Ga. 633. In these cases memoranda made subsequently to an oral bargain, and in the former case in the nature of an admission of a past contract rather than an expression of a present promise, were held sufficient. See, however, Jackson v. Strowger Telephone Exchange, 108 Ga. 646, 34 S. E. 207. 2 See supra, § 538. 3 See the distinction taken in cases where the "contract" was required to be in writing. Halsell v. Renfrow, 202 U. S. 287, 26 S. Ct. 610, 50 L. Ed. 1032; Zimmerman v. Zehendner, 164 Ind. 466. Also in cases where some "note or memorandum" only was necessary. Ingraham v. Strong, 41 Ill. App. 46; Catterlin v. Bush, 39 Or. 496, 59 Pac. 706, 65 Pac. 1064. In the latter case the court said: "The memorandum and the contract or agreement are not to be confounded as one and the same thing. The memorandum is understood to be a note or minute informally made of the agreement, which may have but a verbal existence, expressing briefly the essential terms, and was never intended to stand as and for the agreement itself. The necessary elements are that it must contain the essential terms of the contract, expressed with such a degree of certainty that it may be understood without recourse to parol evidence to show the § 568. Form of memorandum. 4 10 The memorandum may be in any form, and an enumeration of particular cases that have arisen is not exclusive, but merely illustrative. The memorandum may of course be in the form of a carefully prepared written contract, but it may also be, in whole or in part, in the form of a letter or letters, receipts," an invoice or statement of account, a bill or note, an undelivered deed, a will delivered by the maker to one to whom he had promised a devise," a revoked and undelivered will,' a bill in equity," an advertisement, 12 records of municipal officers, 13 or of a private corporation, 14 entries in books of account 15 or memorandum books of any kind.16 Telegrams intentions of the parties. Mere formal or nonessential terms will be implied, but the elements necessary to a completed contract must be intelligently expressed, though ever so briefly." 4 Many cases of this sort may be found in following sections, and see C. W. Hull Co. v. Marquette Cement Mfg. Co., 208 Fed. 260, 125 C. C. A. 460. So, Dewar v. Mintoft, [1912] 2 K. B. 373; Nickerson v. Bridges, 216 Mass. 416, 103 N. E. 939; Harvey v. Bross, 216 Mass. 57, 104 N. E. 350; Herman v. Wacker, 96 Neb. 102, 147 N. W. 127; Croghan v. Worthington Hardware Co., 115 Va. 497, 79 S. E. 1039. ' Evans v. Prothero, 1 De G. M. & G. 572; Williams v. Morris, 95 U. S. 444, 24 L. Ed. 360; Littell v. Jones, 56 Ark. 139, 19 S. W. 497; Eppich v. Clifford, 6 Colo. 493; Ellis v. Bray, 79 Mo. 227; Kidder v. Flanders, 73 N. H. 345, 61 Atl. 675; Gordon v. Collett, 102 N. C. 532, 9 S. E. 486. All these decisions related to contracts to sell land. Barry v. Coombe, 1 Pet. 640, 7 L. Ed. 295 (land); Linton v. Williams, 25 Ga. 391 (goods). 7 Reynolds v. Kirk, 105 Ala. 446, 17 So. 95 (land); Phillips v. Ocmulgee Mills, 55 Ga. 633 (goods); Work v. Cowhick, 81 Ill. 317 (land); Little v. Pearson, 7 Pick. 301, 19 Am. Dec. 289 (land). See infra, § 579. "Naylor v. Shelton, 102 Ark. 30, 143 S. W. 117; Brinkner v. Brinkner, 7 Pa. 53, 55; Torgerson v. Hauge, 34 N. Dak. 616, 159 N. W. 6. 10 In re McGinley's Est., 257 Pa. 478, 101 Atl. 807. Cf. Watkins v. Watkins, 82 N. J. Eq. 483, 89 Atl. 253. 11 Thomas J. Baird Co. v. Harris, 209 Fed. 20, 126 C. C. A. 217. 12 Kelly v. Fischer, 263 Ill. 184, 105 N. E. 21; Laforme v. Bradley, 77 N. H. 128, 88 Atl. 1000. 13 Bourland v. Peoria County 16 Ill. 538; Grimes v. Hamilton County, 37 Iowa, 290; McManus v. Boston, 171 Mass. 152, 50 N. E. 607; Stevens v. Muskegon, 111 Mich. 72, 69 N. W. 227, 36 L. R. A. 777; Curtis v. Portsmouth, 67 N. H. 506, 39 Atl. 439 (all these decisions related to contracts concerning land); Argus Co. v. Albany, 55 N. Y. 495, 14 Am. Rep. 296 (not to be performed within a year). 14 Lamkin v. Baldwin Mfg. Co., 72 Conn. 57, 43 Atl. 593, 1042, 44 L. R. A. 786 (land and goods); Tufts v. Plymouth Mining Co., 14 Allen, 407 (not to be performed within a year). Cf. Asbury v. Mauney, 173 N. C. 454, 92 S. E. 267. 15 Sarl v. Bourdillon, 1 C. B. (N. S.) 188 (goods); Newell v. Radford, L. R. 3 C. P. 52 (goods). 16 Champion v. Plummer, 1 B. & P. also are sufficient." The only difficulty in regard to telegrams relates to the agency of the telegraph operator who actually writes and signs the messages as delivered. Statutes in some States expressly provide that such telegrams are to be treated as the writings of the sender, but the result seems to be the same in the absence of such a statute.18 The memorandum may be written in pencil. 19 § 569. Contents of memorandum-Parties. It is essential that the memorandum state the substance of the transaction to which it relates. It is necessary, therefore, that the memorandum state the name of both parties to the bargain. 20 It is essential, too, if the contract is for a sale that it shall appear which party is buyer and which is seller. 21 But (N. R.) 252 (goods); Coddington v. Goddard, 16 Gray, 436 (goods); Wiener v. Whipple, 53 Wis. 298, 10 N. W. 433, 40 Am. Rep. 775 (goods). 17 Little v. Dougherty, 11 Colo. 103 (not to be performed within a year); Seesley v. Rebori Fruit Co., 162 Mo. App. 195, 144 S. W. 138; Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511 (goods); Atwood v. Rose, 32 Okl. 355, 122 Pac. 929. 18 See cases cited in the preceding note. 19 Merritt v. Clason, 12 Johns. 102, 7 Am. Dec. 286 (goods); Clason v. Bailey, 14 Johns. 484 (goods); Draper v. Pattina, 2 Speers, 292 (goods); McDowell v. Chambers, 1 Strobh. Eq. 347, 47 Am. Dec. 539 (land). 20 Champion v. Plummer, 1 B. & P. (N. R.) 252 (goods); Vandenbergh v. Spooner, L. R. 1 Ex. 316 (goods); Grafton v. Cummings, 99 U. S. 100, 25 L. Ed. 366 (land); Kingsley v. Siebrecht, 92 Me. 23, 42 Atl. 249, 69 Am. St. Rep. 486 (land); McElroy v. Seery, 61 Md. 389, 48 Am. Rep. 110 (goods); Clampet v. Bells, 39 Minn. 272, 39 N. W. 495; Coddington v. Goddard, 16 Gray, 436; Lewis v. Wood, 153 Mass. 321, 26 N. E. 862, 11 L. R. A. 143 (land); Mentz v. Newwitter, 122 N. Y. 491, 494, 25 N. E. 1044, 11 L. R. A. 97, 19 Am. St. Rep. 514; Ward v. Hasbrouck, 169 N. Y. 407, 62 N. E. 434; Frahm v. Metcalf, 75 Neb. 241, 106 N. W. 227 (land); Di Santis v. Cannata (R. I.), 105 Atl. 561 (land). 21 Frank v. Eltringham, 65 Miss. 281, 3 So. 665 (goods). In Vandenbergh v. Spooner, L. R. 1 Ex. 316, the following memorandum was held. insufficient for this reason: "D. Spooner agrees to buy the whole of the lots of marble purchased by Mr. Vandenbergh, now lying at the Lyme Cobb, at 1s. per foot. (Signed) D. Spooner." So in Bailey v. Ogden, 3 Johns. 399, the statute was held not to be satisfied by the following memorandum: though a memorandum might not indicate to a person unacquainted with trade usages which party was buyer and which seller, yet if a person cognizant of such usages would be able to determine the relation of the parties, parol evidence is admissible to show this and the memorandum is sufficient.22 The names of the parties need not necessarily appear in the body of the memorandum. A signature may serve not only as an authentication, but as a description; 23 and an address on a letter may supply a defect in the letter itself as a memorandum.24 The name of one or both of the contracting parties may be that of an agent, and such a memorandum will bind the principals.25 25 But it is essential that by the terms of the memorandum either the principal or the agent be named as a party. If the agent by the terms of the memorandum is contracting in such terms as exclude him from personal liability, 26 the memorandum is insufficient. 27 principal of C. D. on that contract." Commins v. Scott, L. R. 20 Eq. 11, 15, by Jessell, M. R., quoted with approval in Filby v. Hounsell, [1896] 2 Ch. 737, by Romer, J. See also infra, § 577. 26 See supra, § 285. 27 Potter v. Duffield, L. R. 18 Eq. 4. A memorandum signed by B "on behalf of the vendor" was held insufficient for not naming the vendor. To the same effect is Jarrett v. Hunter, 34 Ch. D. 182. If B had signed his name without more the memorandum would have been good. See supra, n. 25; and infra, § 577. Grafton v. Cummings, 99 U. S. 100, 25 L. Ed. 366, must be explained on the same ground as the English cases cited above, though the court does not cite the cases holding memoranda sufficient which contain merely the agent's name (see infra, § 577), and does not consider the possibility of the words "auctioneer and agent" appended to the agent's signature being treated merely as descriptio persona. See supra, § 296. |