subject-matter; and all technical terms and other phrases used in a special sense, may be thus, as it were, translated. But if, by this means, the subject-matter is not certainly ascertained, parol evidence cannot be used to go farther, and actually supply a substantive part of the agreement, which has been entirely omitted from the memorandum or insufficiently expressed. It is enough that the subject-matter is substantially stated, and that no material portion of it is left to be wholly supplied by parol evidence; it need not be set forth, with all its details, with perfect, exhaustive accuracy, and this limitation applies with equal force to all the other terms of the contract, the promises, and the consideration. (1) The description of the subject

which stated the amount paid to be for "the Fleming farm, French Creek;" held to be a sufficiont description. Spangler v. Danforth, 65 Ill. 152; a letter from the vendor to his own agent, stating that the vendee had "agreed to take the pasture lot for $2,400, $1,000 cash, $400 December first, 1871, at ten per cent, and $1,000 July first, 1872, at ten per cent, secured by mortgage," and directing the agent to "make out the papers," and acknowledging the receipt of $20; held to be a good memorandum. To the same effect is Moss v. Atkinson, 44 Cal. 3, 16 ; a letter by owner of land, P., addressed to one M., stating that he had agreed with the purchaser H., to sell H. the land, and giving the terms of the agreement and the price, and describing the land as "the land now claimed by him, P., on Dry Creek, some 200 acres of bottom land, and 700 acres of upland," was held to constitute a valid memorandum under the statute. Mead v. Parker, 115 Mass. 413; the description, in a contract of sale, "a house on Church street," held sufficient, and parol evidence admissible for purpose of identification. Riley v. Farnsworth, 116 Mass. 223; a memorandum of a sale at auction, which stated the parties, price, description of the subject-matter, and the fact of a part payment, but did not contain the "conditions of sale," which, it said, "the vendor shall in all respects fulfill," was held to be insufficient. If these conditions of sale were written on a separate paper or printed, then this decision is clearly erroneous, and in direct conflict with the universal practice in England, and with all the cases which hold that the memorandum may be completed by another paper, to which reference is made. Here there was a plain reference to such conditions, if they were on a separate paper. If the conditions were verbal, the decision is as clearly correct. Vassault v. Edwards, 43 Cal. 458, 462. An offer to sell land was written and signed by the vendor, the defendant, and stated that he had sold to the purchaser, the plaintiff, the land for $4,500, and had received $50 in part payment, and added: "This sale is subject to a search of, and approval of the title, and if the title is rejected or [as] bad, I agree to refund to the said V. (the vendee) the $50 paid on account; but if the title be approved, I agree to convey the above premises to the said V. on receiving the balance of the purchase-money as above. And I hereby allow to the said V. twenty days for the examination of the title." This offer, on being accepted by the purchaser, was held to constitute a valid contract.

(1) Ives v. Hazard, 4 R. I. 14. An estate, upon which certain annuities were charged, was sold subject to them. A memorandum which, in describing the estate, mentioned the annuities, and stated the time when their payment by the purchaser was to begin, but did not specify the particulars in relation to them, was held sufficient.

matter may be wholly or partially contained in an auxiliary writing, which, if referred to in such a manner as to establish the connection, becomes a constituent part of the memorandum; or the accompanying document may be simultaneously with the memorandum signed, or otherwise authenticated by the parties, so as to show that the two are to be taken together and to form one agreement.(1) But advertisements, hand-bills, notices, or other writings, used at or before the sale, cannot be used to control or affect the description contained in the agreement, unless they are thus connected and virtually adopted by a reference or a simultaneous execution.(2)

SEC. 91. The promises.-In like manner the promises of both the parties, so far as they are executory, must all be included in the memorandum-whether it be one or more writings so that parol evidence shall not be necessary to ascertain anything which the parties have undertaken to do or to omit. Every written contract pre-supposes a prior verbal agreement which it embodies-in fact, the writing is the evidence of the agreement, and not the essence of it. The memorandum, in order to satisfy the statute of frauds, must contain all the stipulations and undertakings of the verbal bargain. If any of these stipulations are omitted, then the memorandum-although the parts which it does contain might, by themselves, make a complete contract is not a note or memorandum of the agreement as required by the statute, and cannot be enforced at law or in equity.(3)

(1) Nene Valley Drainage Comm'rs v. Dunkley, L. R. 4 Ch. D. 1. Suit by vendors for a specific performance. The commissioners agreed to sell certain property to D. The agreement did not refer to any plan, but the agents who signed it for the parties at the same time signed the following memorandum, written upon a plan of the property: "Plan of property sold to and purchased by D., Oct. 22, 1874. N. B., the property included in the purchase is edged with red color." Held, that the plan was sufficiently incorporated, and the description in the agreement was controlled by it-by JESSEL, M. R., and by the Court of Appeals.

(2) Clinan v. Cooke, 1 Sch. & Lef. 22; O'Donnell v. Leman, 43 Me. 158. (3) Jervis v. Berridge, L. R. 8 Ch. 351; McLean v. Nicoll, 7 H. & N. 1024. The parties made a verbal agreement for the sale of some goods; a writing was afterward signed which omitted one of the collateral stipulations, and the court held that there was no sufficient memorandum to bind the defendant. Jervis v. Berridge, supra, is directly in point. Plaintiff agreed to buy an estate from the L. Society, and to pay a deposit on signing the contract. Before signing plaintiff verbally agreed with Berridge to assign the contract to him on certain terms. Plaintiff thereupon gave B. a written memorandum assigning the contract to him in consideration of his paying the deposit to the L. Society, and agreeing to pay a certain sum to the plaintiff; the other terms of the verbal bargain between B. and the plaintiff, which were favorable to the plaintiff, were at B's. request omitted from this written memorandum. The contract between plaintiff and the L. Society was then signed, and the plaintiff's copy delivered to B. who paid the

In a contract of sale, when a credit is stipulated for as part of the agreement, the rule is well settled at law that this is a material term of the agreement, and must be stated in the memorandum.(1) But this does not seem to have been regarded as essential by courts of equity in suits for a specific performance.(2) The time and place of performance are not necessary terms of a valid memorandum, because in their absence the law supplies these by its implication; (3) but where a time for performance has been expressly agreed upon as a part of the contract and thus made a condition, it must appear as a constituent part of the memorandum.(4)

SEC. 92. The consideration.-That the consideration is a part of the agreement and must be included in the memorandum, was long ago settled in England, and the doctrine has been followed in many American states whose statutes are similar in form to the English; in others it has been repudiated. In a large number of the states, however, the question has been put at rest by a change in the statutory language; in some, by a provision expressly requiring the consid

deposit. B. afterward repudiated all the stipulations of his verbal agreement with the plaintiff which had not been inserted in the memorandum. Plaintiff thereupon commenced this suit against B. and the Loan Society, seeking to have the agreement between B. and himself declared rescinded, and a conveyance to himself from the L. Society in pursuance of his contract with it. Held, affirming V. C. MALINS, that the memorandum was only ancillary to the verbal bargain between B. and the plaintiff, and any use of it by B. for a purpose inconsistent with that bargain was fraudulent; as B. had repudiated the verbal agreement, the plaintiff could fall back on his original rights under his agreement with the L. Society. Here the defendant B. was not bound by the verbal terms of his agreement because they were not written. On the other, hand the plaintiff was not bound by the written memorandum, because it did not include all the terms of his verbal agreement with B.; and this was so held, although the memorandum taken by itself had all the elements of a perfect, certain, and complete contract, and the omitted terms were not left out by mistake or through fraud, but by design.

(1) Buck v. Pickwell, 1 Will. (Vt.) 167; Morton v. Dean, 13 Metc. 388; Davis v. Shields, 26 Wend. 341; Wright v. Weeks, 3 Bosw. 372; McFarson's Appeal, 11 Pa. St. 503; Soles v. Hickman, 20 Pa. St. 180; Elfe v. Gadsden, 2 Rich. 373; Ellis v. Deadman, 4 Bibb, 467.

(2) See Smith v. Jones, 7 Leigh, 165. It is difficult to see any grounds for this distinction between the two courts. Credit would appear to be a very material term, unless, indeed, the time had expired before the suit was brought, and the plaintiff showed a performance or readiness to perform on his part, in which case the credit would no longer be a matter of consequence.

(3) Atwood v. Cobb, 16 Pick. 230; Salmon Falls Manuf. Co. v. Goddard, 14 How. 446.

(4) Davis v. Shields, 26 Wend. 341; reversing S. C., 24 Wend. 322; First Baptist Church of Ithica v. Bigelow, 16 Wend. 28.

eration to be mentioned; in the others, by a clause expressly declaring that the consideration need not be mentioned. The doubt as to the construction and the conflict among American decisions, have chiefly arisen upon other clauses of the statute than those which relate to contracts concerning lands, and to other agreements which may be specifically enforced. I shall not, therefore, enter into a discussion which would necessarily be long and actually foreign to the purposes of this work. Practically, the question as to stating the consideration is of little importance in connection with the specific enforcement of contracts, as will appear from the next paragraph.(1)

SEC. 93. The price.-There is a plain distinction between the "consideration" as an essential part of and included in the "agreement," and especially agreements to answer for the debt of another and the like, and the "price" which must, in general, be a material term of an executory contract of sale or leasing, whether the subject-matter be land or chattels. (2) It is, of course, possible that there should be a contract of sale without any price being expressly stipulated, and where the law would imply that the purchaser was to pay a reasonable or the market price for the article bought; and such forms of contract are not very unusual in the sale of chattels. It is difficult, however, to conceive of a contract of sale or leasing which would be specifically enforced in equity, in which the price would not be a material term, and in the memorandum of which such price, unless already paid, should not necessarily be stated in order to satisfy the rules hereinbefore laid down. It is, also, difficult to conceive of a contract based upon "the consideration of marriage," which could be specifically enforced, in the memorandum of which such consideration would not necessarily appear. The result is very clear that the questions and disputes as to the necessity of expressing the consideration, are of very little practical importance in connection with the doctrine of specific performance. In the vast majority of contracts which are specifically performed by courts of equity, the price, and therefore the consideration, will be a material term of the agreement and must appear in the memorandum, which would be incomplete without such statement.

SEC. 94. It is, therefore, well-settled that in all executory contracts

(1) For the statutory provisions on the subject of consideration, see the abstract of statutes, ante, § 70; and for a full discussion of the subject, see Browne on Stat. of Frauds, §§ 381, 381a, 386-408a, especially 391.

(2) This distinction is clearly pointed out by Mr. Browne in the passages of his work referred to in the last note.

of sale or of leasing, where the parties have agreed upon a price, such price is a material term of the contract, and must be sufficiently stated in the memorandum. (1) Of course a valid contract of sale may be made without any stipulation whatever as to price, because the law then supplies the term by implying the reasonable value of the property as the price; and in such a case the memorandum may be as silent as the parties were.(2) It is not necessary that either the contract or the memorandum should fix upon and state the price in a definite and ascertained sum; it is always enough that the parties have provided a means, and have expressed such provision in the memorandum, whereby the price can be definitely ascertained either by the acts of third persons or by evidence operating by way of reference or identification. For examples, it is enough if the agreement and memorandum state that the price is to be determined by valuers or arbitrators; (3) or is to be the same as that for which the subjectmatter had been bought at a former sale.(4) If it appears from the memorandum that the price has been paid or received, the amount thereof need not be set forth, since that term of the contract having been already performed, is no longer material.(5) Parol evidence is always admissible to explain the technical ambiguous terms-which are very common in mercantile contracts-used by the parties to designate the price.(6)

SEC. 95. A verbal ante-nuptial agreement to make a settlement would, of course, be nugatory, because, as will be subsequently shown,

(1) Clerk v. Wright, 1 Atk. 12; Bromley v. Jeffries, 2 Vern. 415; Blagden v. Bradbear, 12 Ves. 466; Preston v. Merceau, 2 W. Bl. 1249; Powell v. Lovegrove, 39 Eng. L. & Eq. 427; Ide v. Stanton, 15 Vt. 691; Buck v. Pickwell, 1 Will. (Vt.) 167; Ives v. Hazard, 4 R. J. 14; Smith v. Arnold, 5 Mason, 416; McFarson's Appeal, 11 Pa. St. 503; Soles v. Hickman, 24 Pa. St. 180; Kay v. Curd, 6 B. Monr. 103; Parker v. Bodley, 4 Bibb, 102; Ellis v. Deadman, 4 Bibb, 467; Kinloch v. Savage, 1 Speer's Eq. 471; Wright v. Cobb, 5 Sneed, 143; Sheid v. Stamps, 2 Sneed, 172; Farwell v. Lowther, 18 Ill. 252; Barickman v. Kuykendall, 6 Blackf. 21. When the price is thus stated a different one cannot be proved by parol. Preston v. Merceau, 2 W. Bl. 1249; but, per contra, Bean v. Valle, 2 Mo. 103; and see cases cited under § 148.

(2) Hoadley v. McLaine, 10 Bing. 482.

(3) Cooth v. Jackson, 6 Ves. 12; Brown v. Bellows, 4 Pick. 189. In regard to the enforcement of contracts which provide for the price to be fixed by valuers, see post, § 309, and the cases cited thereunder.

(4) Atwood v. Cobb, 16 Pick. 230; Johnson v. Ronald, 4 Munf. 77.

(5) Holman v. Bank of Norfolk, 12 Ala. 369; Fugate v. Hansford, 3 Litt. 262. (6) Salmon Falls Manuf. Co. v. Goddard, 14 How. 446; Marshall v. Lynn, 6 M. & W. 109, per PARKE, B.; Sarl v. Bourdillon, 1 C. B. (N. S.) 188; Spicer v. Cooper, 1 Gale & Dav. 52; 5 Jur. 1036.