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-Names of Parties.—The parties involved in the contract must be shown by the writing, else it does not of itself show a contract. “It takes two parties to make a contract; and a writing which names only one party, and does not in any manner indicate who the other party is, does not set forth a contract. It is well established that where the statute requires the contract to be in writing there can be no binding contract unless both parties thereto are named in the writing, or so described therein as that they may be identified. " '89
Consideration. For the same reason, the consideration must be shown. Without consideration there can be no contract, and a writing, therefore, which states no consideration states no contract. It does not matter that there was in fact a consideration, any more than it matters that there was in fact a contract. The writing must do more than merely indicate that there was a contract; it must show what that contract was. However we may define “contract” in other relations, in this connection the “contract” is not the promise alone; it is the promise and the consideration. Hence, a writing which does not show the consideration as well as the promise does not show the contract and is insufficient to satisfy the Statute.90
must disclose with substantial accuracy every fact material to constitute a contract of bargain and sale. It is therefore essential that such a note or memorandum shall contain within it. self a description of the property agreed to be sold by which it can be known or identified, of the price to be paid for it, of the party who sells it, and of the party who buys it.” Am. Iron & Steel Co. v. Midland Steel Co., 101 Fed. 200.
v. Siebrecht, 92 Me. 23, 69 Am. St. 486. If the signer appears as an agent only, with no personal liability, the principal's name must also appear somewhere; the memorandum must name someone who is liable, Langstroth v. J. C. Turner Co., 148 N. Y. S. 224.
89–Ogelesby Co. v. Williams Co., 112 Ga. 359; Darnell v. Lafterty, 113 Mo. Ap. 282; Kingsley
90—Rains V. Patton, 191 Ala. 349; Kemensky v. Chapin, 193 Mass. 500; Am. Iron & Steel Co. v. Midland Steel Co., 101 Fed. 200; Carter v. Timber Co., 184 Mo. Ap. 523, "In determining the sufficiency of a writing to evidence & contract within the Statute of Frauds there are three essential and necessary ingredients. (1) the parties, (2) the subject matter, and (3) the consideration or price. Where the writing lacks any of these essential elements there is no enforcible contract." Booth v. A. Levy, etc. Co., 21 Cal. Ap. 427; Glasgow Milling Co. v. Burgher, 122 Mo. Ap. 14; Rigby v. Gaymon, 95 S. C. 489.
The memorandum need not state anything more than was included in the contract itself. The place or time of delivery, for instance, are not essential to be determined upon in an oral contract. A contract in which that matter has been quite ignored by the parties is quite enforcible. Therefore, if such matters have not been included in the contract the memorandum need not contain anything in regard to them.91
But, on the other hand, it is not sufficient that the memorandum merely show a contract. It must show the contract on which suit is brought. And, inasmuch as the party sued can use oral evidence to disprove the making of the contract as alleged in the suit, this means that the memorandum must show the contract actually made.98
Accordingly, if terms as to time of delivery and the like, although not necessary to a valid contract, have in fact been agreed upon, the memorandum is not sufficient unless it does show such terms.98
91–Willis v. Ellis, 98 Miss. 197; Crosby V. Bouchard, 82 Vt. 66; Darnell v. Lafferty, 113 Mo. Ap. 282. If the contract itself gives the buyer a choice, the memorandum need not be more explicit, Am. Iron & Steel Co. v. Midland Steel Co., 101 Fed. 200. If price is left to future determination, memorandum need not show more. Booth v. A. Levy etc. Co., 21 Cal. Ap. 427.
92—"It is not sufficient that the note or memorandum may express the terms of a contract. It is es. sential that it shall completely evi. dence the contract which the parties made. If instead of proving the existence of that contract, it * * * evidenced a contract in terms and conditions different from that which the parties entered into, it fails to comply with the statute." Poel v. BrunswickBalke-Collender Co., 216 N. Y. 310.
"It becomes necessary then to examine and ascertain what are the essential terms cf this contract before we can pass upon the question of whether the memorandum is sufficient to assert itself without parole evidence.” Darnell v. Lafferty, 113 Mo. Ap. 282.
93—Arky v. Commission Co., 185 Mo. Ap. 241; Crosby v. Bouchard, 82 Vt. 66.
Subject Matter of the Contract. The promise of the seller is the consideration for the promise of the buyer. Therefore, under the foregoing rule, the seller's promise as well as that of the buyer must appear in the writing. And as the seller's promise is to convey title to some thing, what that thing is must be shown by the memorandum.94
Self-Explanation of the Memorandum.—None of these essentials, however, need be stated with such fullness and precision as to be at once intelligible to any reader. A memorandum written in Russian would undoubtedly be sufficient though not intelligible to the average American. One phrased in the technical idiom of a particular trade would suffice if accurately translatable to a court, though unintelligible to the unlearned reader. Similarly, a memorandum which has a precise and definite meaning to one who is acquainted with the facts surrounding the transaction is sufficient, even though it be unintelligible to one unfamiliar with the circumstances. “It is always permissible to show the surroundings and circumstances of the contract and it is sufficient, as against the Statute of Frauds, that, after the court is put in the same position as the parties themselves, the terms and subject matter of the contract are made certain."195
94–Carter V. Timber Co., 184 Mo. Ap. 523.
95—Carter V. Timber Co., 184 Mo. Ap. 523.
The description of the subject matter need not be explicit on the face of the memorandum if it can be made so by a showing of the circumstances. Thus, a "memorandum of sale of stock of W. C. C." was held sufficient when interpreted through extrinsic evidence to mean that stock of W. C. C. which the seller had authority to sell, Willett v. Smith, 214 Mass.
494. Accord, Bowers v. Ocean Acci. dent Co., 97 N. Y. S. 485, Affd. 187 N. Y. 561; Flash v. Rossiter, 102 N. Y. S. 449; Bank v. Securities Co., 141 Mo. Ap.524; Moses Co. v. Stack. Gibbs Co., 56 Wash. 529; Haskell v. Tukesbury, 92 Me. 551, 69 Am. St. 529; In Darnell v. Lafferty, 113 Mo. Ap. 282, the court said, "It must be remembered that however minute and precise in the matter of detail a description may be, that in the last analysis, resort must be had to parole; that the last and final step in all transactions of
3. SATISFACTION OF THE STATUTE BY ACCEPTANCE AND
RECEIPT OF THE GOODS
If there is no memorandum, the Statute nevertheless allows the contract to be enforced if “the buyer shall accept part of the goods so sold and actually receive the
“Receive" and "Accept" Do Not Relate to Title.In connection with this proposition it should be borne in mind that the Statute of Frauds has nothing to do directly with title. The fact that a buyer has title will avail him little if, because of the Statute, he can not prove the contract through which he claims it. On the other hand, the Statute may preclude his proving even a wholly executory contract to sell, since, as we have seen, the Statute is held to apply to executory contracts as well as to executed ones. Therefore, cases involving “delivery and
this kind is the process of identification, and, if perchance a controversy arise, resort must eventually be had to parole evidence to fit even the most detailed and minute description to the thing described.
Under the rule above stated, the language employed, 'ten head of cows and heifers' being applicable to several head of cows and to several head of heifers, it is competent to show by parole what cows and what heifers were referred to."
The same rule of explanation through extrinsic evidence applies to the other parts of the memorandum. Willett v. Smith, 214 Mass. 494; Booth v. A. Levy etc. Co., 21 Cal. Ap. 427.
The names of the parties need not be used if they are so described that knowledge of the circumstances makes them definite. Darnell v.Lafferty, 113 Mo. Ap. 282;
Allen v. Burnett, 92 S. C. 95. In Kingsley v. Siebrecht, 92 Me. 23, 69 Am. St. 486, the court said, quoting from an English case, "Parole evidence is always necessary to show that the party sued is the person making the contract and bound by it. Whether he does so in his own name, or in that of and er, or in a feig name, or whether the contract be signed by his own hand, or by that of an agent, are inquiries not different in their nature from the question who is the person who has just ordered goods in a shop. If sued for the price, and his identity is made out, the contract is not varied by appearing to have been made by him in a name not his own." Haskell v. Tukesbury, 92 Me, 551, 69 Am. St. 529, "Friend George" held sufficient; White v. Dahlquist Mfg. Co., 179 Mass. 427.
acceptance” as bearing upon the question of whether title has passed or not have no necessary relation to the matter of receipt, or delivery, and acceptance as affecting the Statute.
“Receive" as used in the Statute refers to possession, not merely to title. Passing of title, sometimes called delivery, or receipt, of title, is not enough to satisfy the Statute.
Similarly, “accept” relates to the physical thing and not to the title.* An excellent illustration is found
. in Riley v. Bancroft's Est.97 This involved a sale of liquor by the plaintiff, who did business in Omaha, to the defendant, who lived in Springfield. The plaintiff was licensed to sell liquor in Omaha, but not in Springfield. The liquor was delivered to a carrier in Omaha in such a way that, by the usual rules, title would have passed there. But, as discussed hereafter, delivery to a carrier and acceptance by it do not satisfy the Statute. The only acceptance which would suffice to take the contract out of the Statute occurred in Springfield. The defendant contended that title did not pass until such acceptance and that the sale was therefore void, as the seller had no license to sell in Springfield. The court, however, decided in favor of the plaintiff on the ground that title could be accepted by the buyer, and was so accepted in Omaha, even though there was not such acceptance of the goods as was required by the statute until they reached Springfield.98
96–Rodgers v. Jones, 129 Mags. a creditor of the seller levied upon 420. See also the cases cited in them. The court held that title the following notes.
could not pass until there had 97-51 Neb. 864.
been such delivery to the buyer 98-Occasional courts fall into and acceptance by him as would confusion on this point, as for in- satisfy the Statute of Frauds. stance in Nugent v. Beakes, 54 N. Such a holding was obviously in Y. S. 486. After delivery of goods conflict with
the conclusive such as contracted for to a carrier, authorities, already cited, to the but before delivery to the buyer, effect that title does pass on de
*See Uniform Sales Act, Section 4, (3).