§ 522. There must, however, be a reference: therefore, where the contract made no reference to an advertisement respecting the property which was sought to be introduced.

and specifically enforced. It must, however, be conclusively shown, that the instrument does not conform to the intention of the parties, and the proposed connection must be established by very conclusive proof. Philpot v. Eliott. 4 Md. Ch., 273; Hunt v. Rosnomer, 8 Wheat., 174; Tyson v. Passmore, 2 Pa. St., 122. An absolute deed may be shown to be, in fact, a mortgage. Taylor v. Luther, 2 Sumn, 228; Artz v. Grove, 21 Md., 456. "When it appears that the understanding, at the time of the verbal promise, was, by a writing, to comply with the provisions of the Statute of Frauds, it is something more than a mere verbal promise. The opposite party relies upon the special stipulation to reduce it to writing, and thus make him secure. A chancellor would decree its specific performance. If, in confidence that such writing will be executed, the legal title is acquired, it is a fraud in the purchaser to refuse to do what was promised, and claim to hold discharged of it, which will constitute him a trustee er maleficio." Sharswood, J., in Wolford v. Herrington, 74 Pa. St., 311: Wells, J., in Glass v. Hulbert, 102 Mass., 24, holds in a case where "the proposed reformation of an instrument involves the specific enforcement of an oral agreement within the Statute of Frauds, or where the terms sought to be added would so modify the instrument as to make it operate to convey an interest or secure a right which can only be conveyed or secured through an instrument in writing, and for which no writing has ever existed, the Statute of Frauds is a sufficient answer to such a proceeding, unless the plea of the statute can be met by some ground of estoppel to deprive the party of the rights to set up the defense. The fact that the omission or defect in the writing, by reason of which it failed to convey the land, or express the obligation which it is sought to make it convey or express, was occasioned by mistake, or by deceit and fraud, will not alone constitute such an estoppel. There must occur, also, some change in the condition or position of the party seeking relief, by reason of being induced to enter upon the execution of the agreement, or to do acts upon the faith of it, as if it were executed with the knowledge and acquiescence of the other party, either express or implied, for which he would be left without redress if the agreement were to be defeated." See, also, Wilson v. Watts, 9 Md., 356; Heth v. Woodbridge, 6 Rand, 605: Chetwood v. Brittin, 1 Green's Ch., 438; Luckett v Williams, 37 Mo., 388; Espy v. Anderson, 14 Pa. St., 309: Markle v. Wehrheim, 32 Ill., 534. The respondent is entitled to more latitude in the introductions of parol proof to vary a written agreement, than is the petitioner. Quinn v. Roath, 37 Conn., 16. Where the parties agree, in the writing itself, that parol evidence may establish its terms, it is, of course admissible. Fowler v. Redicom, 52 Ill., 405.

Rule where the property has been obtained by fraud.] "If the defendant entered into the arrangement with the premeditated design to mislead the confidence of the plaintiff, and of practicing upon his credulity and want of caution to get the title of the property into his own hands, and then convert it into the means of oppressively using it for his own benefit, the case would be out of the Statute of Frauds." Story, J., in Jenkins v. Eldridge, 2 Story, 181; see. also, Kinard v. Hierz, 3 Rich's Eq., 423; Teague v. Fowler, 56 Ind., 569; McDonnald v. May, 1 Rich.'s Eq., 95; Schmidt v. Gatewood, 2 id., 162; Gill v. Bicknell, 2 Cush, 355; Willink v. Vanderveer, 1 Barb., 599.

No consideration for the parol agreement.] The Statute of Frauds always applies to a contract, in a case where the only defense is, that one party was guilty of a fraud in refusing to perform his part of the agreement; e. g. A and B. both being present at the sale, made a verbal arrangement to the effect that A. should bid off the estate in his own name, pay the vendor, and enter into a written contract for the purchase of the land; that the same should be conveved to them as tenants in common, B. agreeing immediately to refund onehalf of the price paid by A.: both parties mutually agreed to join in the mortgages required to be given; all of which was done. Held, “a party, in no legal

to supply a term, it was held that this could not be done:(h) and so also the mere admission in writing of a contract, without ascertaining its terms, is inoperative. (i)'

§ 523. Further, the reference must be to terms in writing: therefore, where a writing duly signed referred not to a writing but to terms arranged by parol, there was no valid contract.(j) But the terms, if in fact in writing, need not appear on the face of the other paper to be so: so that a reference in one paper to "terms agreed on," when in fact the only terms agreed on were in writing, was held sufficient. (k)

§ 524. Whether the reference must be express and on the face of the paper containing the signature, or whether it be enough that a jury or judge of fact would conclude from the circumstances and contents that the two papers are parts of one correspondence, may be open to doubt. The latter is probably the better view.

§ 525. In a case arising on an entry of a contract in an auctioneer's book, where the entry contained no reference to the conditions, subject to which the sale took place, Hall, V. C., said that the entry must contain such a reference to the conditions as to identify them upon production as being the conditions mentioned in the entry. (l)

§ 526. In Tawney v. Crowther, (m) the contract was reduced into writing, and was in possession of the defendant, who, in answer to a letter from the plaintiff's solicitor, asking him to meet him and sign the contract, wrote a letter, in

(h) Clinan v. Cooke, 1 Sch. & Lef., 22 Distinguish Nene Valley Drainage Commissioners v. Dunkley, 4 Ch. D., 1.

(i) Rose v. Cunynghame, 11 Ves., 550; Clerk v. Wright, 1 Atk., 12.

(j) Ridgway v. Wharton, 3 De G. M. & G., 677; S. C., 6 H. L. C., 238.

(k) Baumann v. James, L. R. 3 Ch., 508. (1) Rishton v. Whatmore, 8 Ch. D., 467. (m) 3 Bro. C. C., 161, 318.

sense, commits a fraud by refusing to perform a contract void of its provisions. He has not, in that sense, made a contract, and has a perfect right both at law and in equity to refuse performance." Grover, J., in Levy v Brush, 45 N. Y, 597; see, also, Barnett v. Dougherty, 32 Pa. St., 371; Hogg v. Wilkins, 1 Grant (Pa), 67; Patterson v. Horn, id., 301; Campbell v. Campbell, 2 Jones' Eq., 364; Wallace v. Brown, 10 N. J. Eq., 308; Dodd v. Wakeman, 28 id., 484; Farnham v. Clements, 51 Me., 46; Wheeler v. Reynolds, 66 N. Y., 227; Walker v. Locke, 5 Cush., 90; Hickman v. Grimes, 1 A. K. Marsh, 86; Cooper v. Stevens, 1 John.'s Ch., 425.

But it has been decided in Virginia, that a letter promising to convey a certain tract of land, according to contract," is a sufficient memorandum under the Statute of Frauds, although the terms of the contract are not mentioned, if the party can prove the price to be given by one witness. Johnson v. Ronald, 4 Munf., 77. See McConnell v. Brillhart, 17 Ill., 354.

which he mentioned his having been from home, acknowledged having said his word should be as good as his bond, and that there was time enough before Michaelmas to settle everything; and again said "that his word should always be as good as any security he could give." Lord Thurlow, first on a plea of the statute, and subsequently on the answer, which insisted on the statute, held that the letters and the paper together constituted a valid contract. "If a letter cannot be referred to the agreement," said his lordship, "or does not contain proper terms, I cannot treat it as out of the statute; but I confess, on what appears here, the papers do refer to that agreement, and contain a promise to perform it; the defendant did intend by the letter to raise a confidence that the agreement should be performed. (n) Lord Redesdale has expressed his disapprobation of this case, considering that the promise was intended to be of an honorary and not of a legal and binding nature;(0) and the correctness of the decision has been questioned by Lords. Cranworth and Brougham in the case of Ridgway v. Wharton.(p) From the note at the end of the case in Brown's Reports (2) it appears that the decree was by consent.

§ 527. In another case, the defendants' letters referred distinctly to the conditions of sale which were in their hands, signed by the plaintiff, and the Court of Queens Bench held that no parol evidence was necessary to connect the two, and that there was a binding contract. (r) And where A. wrote to B., proposing to let a public house on certain terms, and B.'s clerk met A. and discussed the terms of the lease, and afterwards B. replied that he was willing to take the premises of A., this was held to refer to the terms contained in A.'s letter, and, therefore, to constitute a contract. (s)

§ 528. (2) Letters may be used to supply a term wanting in the principal writing: thus where, in a memorandum, the lessor's name was not mentioned, and subsequently a letter from the lessee, referring to this document, mentioned his (the lessor's) name in a manner from which the court

(n) 3 Bro. C. C., 320.

(0) See Belt's n, 3 Bro. C. C., 153.

(r) Dobell v. Hutchinson, 3 A. & E., 355. See, also. Saunderson v. Jackson, 2 B. & P.,

(p) 6 H. L. C., 265, 271. See per Lord St. 238, and Jackson v. Lowe, 1 Bing., 9 Leonards, S. C, 293.

(g) 3 Bro. C. C. (Belt's ed.), 320.

(8) Wood v. carth, 2 K. & J, 33 See, too, Morris v. Wilson, 5 Jur. (N. S.), 168.

could imply that he was lessor, there was held to be sufficient evidence of the contract. (t) But where (u) two persons came to a verbal agreement for the sale and purchase of an estate, and the vendor thereupon signed and handed to the purchaser a memorandum of the particulars of the property and the price, which, however, did not contain the purchaser's name; and afterwards the vendor signed and sent to the purchaser a letter, saying, "I am about to relet the land at S. The Lady Day rents will be mine and the Michaelmas yours.' It was held that the defect in the memorandum was not supplied by the letter.

§ 529. (3) Letters may themselves constitute the contract and the written evidence of it: and the cases in which a contract is thus constituted by correspondence between the parties are very numerous: many of them have been already discussed.(v)'

§ 530. It is one of the first principles of a case of this kind that where the contract, or the note or memorandum of the terms of the contract, has to be found in letters, the whole of the correspondence which has passed must be taken into account.(w) Accordingly, in a case where the first two letters of a correspondence, taken by themselves, appeared to amount to a complete contract, but there really were other terms, which when those letters were written were unsettled and in the result remained unsettled, the House of Lords held that there was no concluded contract. (a) The plaintiff cannot insist on some terms or some letters and reject others. If the letters, taken as a whole, do not constitute the contract, the plaintiff must fail. (y)

§ 531. The contract may even be sufficiently evidenced by a letter addressed to a third person, provided it ascertain the terms of the contract.(z)

§ 532. It is desirable to consider the effect of letters

(1) Warner v. Willington, 3 Drew., 523. sce this case intra, § 533.

(u) Skelton v Cole 1 De G. & J., 587. (v) See supra, § 273 et seq. See, also, Western v. Russell, 3 V. & B., 187; Coupland v. Arrowsmith, 18 L. T (N. S.), 755; Rossiter v. Miler, 5 Ch. D, 648; 3 App. C, 1124; Bonnewell v Jenkins, 8 Ch D., 70.

(w) Per Lord Cairns in Hussey v. Horne. Payne, 4 App. C, 316.

(c) Hussey v. Horne-Payne, 4 App. C., 311. (y) Nesham v. Selby, L. R. 13 Eq, 191; aff'd L. R. 7 Ch., 4 6.

(2) Per Lord Hardwicke in Welford v. Beazely, 3 tk.503; Child v. Comber, 3 Sw., 423 n.; Seagood v. Meale, Prec. Ch., 56). See, also, Barkworth v. Young, 4 Drew., 1, particularly 13.

2 Neufville v. Stuart, 1 Hill. Ch., 159.

which repudiate or disown a contract referred to in them. Where the letters deny that a contract ever existed, it would seem impossible to treat them as the evidence or an admission of a contract, but where the letters repudiate on the ground of matter subsequent, as for example, of damage done to the goods bought, there a statement of the terms of the contract in the letters may satisfy the statute. (a)

§ 533. The subject was discussed in the case of Warner v. Willington, (b) before Kindersley, V. C. In that case there was a memorandum for a lease, signed by the defendant, the proposed lessee, but deficient in the lessor's name, and then a letter by the defendant, withdrawing the memorandum, but referring to the lessor's name: and the ViceChancellor held that the letter supplied the original defect in the memorandum, and converted it into a contract binding under the statute. It is submitted that this decision is not without difficulties on principle; for it would seem that the whole letter must be looked at, and then that affirms the memorandum to be, what in fact without the letter it was, namely, a mere offer: and, further, the case appears difficult to reconcile with other decisions. Thus, where buyers have written letters distinctly referring to invoices of the goods, but insisting that they were not bound to accept the goods, and thus repudiating the contract, the courts have held that there is no sufficient writing within the 17th section of the Statute of Frauds :(c) and in a case in the exchequer, in which Warner v. Willington was cited, the court considered that it would be treating the Statute of Frauds as nothing, if a letter, merely declining to accept goods under a parol contract or an insufficient written contract, were held to take the case out of the statute. (d) And again, in a case in chancery, Turner, L. J., treated the argument that a letter declining to enter into a contract could constitute one as too strained to require any observation. (e)

§ 534. It is now distinctly settled, after some difference of opinion, that a written memorandum of contract after

(a) Bailey v. Sweeting, 9 C. B. (N. S.), 843; Nesham v. Selby, L. R. 13 Eq, 191; 7 Ch., 406; cf. Jackson v. Öglander, 13 W. R, 936. (b) 3 Drew., 523,

in Dobell v. Hutchinson, 3 A. & E., 371; Gos-
bell v. Archer, 2 id., 500.

(d) Goodman v. Griffiths, 1 H. & N., 574.
(e) Wood v. Midgley, 5 De G. M. & G., 41,

(c) Cooper v. Smith, 15 East, 103; Richards v. Porter, 6 B. & C., 437; per Lord Denman

46.