times expressed by the formula that "a seal imports a consideration." But this statement is not historically correct, for contracts under seal were recognized and enforced by the Courts long before the doctrine of consideration first made its appearance in English law.3

The maker of a bond may show that it was originally void, as by reason of lunacy, fraud, coverture, etc., or that it has become void subsequently as by erasure, or alteration. But generally the only reply that can be made to an action at law on a bond for the payment of a certain sum of money is non est factum, payment or release.1

Any writing under seal whereby a debt is acknowledged to exist creates an obligation enforceable by action when the time of payment arises.5 An instrument under seal by which the obligor declares that a certain sum is due to the obligee, but making the same payable after death by the obligor's executor, is valid and binding on the estate of the maker."

Courts of Equity do not give such effect to a seal, but inquire into the real consideration, and refuse to enforce a voluntary promise although it is under seal. In special cases Equity has restrained actions at law on bonds, etc., because there were equitable reasons why the plaintiff should not be allowed to recover the stipulated sum which could not be availed of by the defendant in the legal action.8

4 Edelin v. Sanders, 8 Md. 118; Mitchell v. Williamson, 6 Md. 210; Edelin v. Sanders, 8 Md. 118; Bond v. Conway, 11 Md. 512; Bouldin v. Reynolds, 58 Md. 491; Spitze v. B. & O. R. Co., 75 Md. 162; Storm v. U. S., 94 U. S. 84.

3 See ante, § 25.

4 Edelin v. Sanders, 8 Md. 118; Mitchell v. Williamson, 6 Md. 210. 5 Sharp v. Bates, 102 Md. 347; Cover v. Stem, 67 Md. 451.

6 Feeser v. Feeser, 93 Md. 716.

7 Duttera v. Babylon, 83 Md. 536; Selby v. Case, 87 Md. 459; Snyder v. Jones, 38 Md. 542; Black v. Cord, 2 H. & G. 100; In Re Lucas, L. R. 45 Ch. D. 470.

8 Key v. Knott, G. & J. 342; Harwood v. Jones, 10 G. & J. 404; Dorsey v. Hobbs, 10 Md. 412. Statutes now generally allow equita

ble defenses to be made at law.

2. A single bill, i. e., an absolute promise under seal to pay a definite sum of money, is not a negotiable instrument in the same sense that ordinary promissory notes and bills of exchange are."

3. Estoppel. Statements in a specialty are binding upon the parties and their privies in estate.1

10

4. Merger. There cannot be a contract under seal and a simple contract between the same parties and for the same purpose. There will be a merger of the simple contract into the one under seal, whether the parties wish it or not, for the two contracts are incompatible and the higher must prevail.11 But if the agreement under seal is simply collateral to the other, or is accepted as additional security for a pre-existing debt, there is no merger.12

5. Limitations. A right of action arising out of a simple contract is barred if not exercised within the time fixed by statute after it accrued, which is generally much shorter than the time within which actions on contracts under seal may be brought.

In a few States, the distinction between simple contracts and contracts under seal has been abolished, by statute, and in some others it is provided that a seal shall be only prima facie evidence of consideration.

9 Talbot v. Suit, 68 Md. 443.

10 Alexander v. Walter, 8 Gill, 239, note.

11 Leonard v. Hughlett, 41 Md. 380.

12 Brengle v. Bushey, 40 Md. 147; Rees v. Logsdon, 68 Md. 588.

CHAPTER IV

CONTRACTS WITHIN THE STATUTE OF FRAUDS

The chief simple contracts for which a writing in addition to a consideration is requisite are promissory notes, bills of exchange, assignments of choses in action and contracts within the fourth and seventeenth sections of the Statute of Frauds.

$52. The Fourth Section. The Statute of Frauds-29 Car. II, ch. 3, sec. 4, provides:

No action shall be brought whereby to (1) charge any executor or administrator upon any special promise to answer damages out of his own estate; (2) or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriages of another person; (3) or to charge any person upon any agreement made upon consideration of marriage; (4) or upon any contract or sale of lands, tenements or hereditaments or any interest in or concerning them; (5) or upon any agreement that is not to be performed within the space of one year from the making thereof; unless the agreement upon which such action shall be brought or some memorandum or note thereof shall be in writing, and signed by the party to be charged or some other person thereunto by him lawfully authorized.

The fourth and seventeenth sections of this statute have been substantially re-enacted throughout the United States. In Maryland the original statute has been in force ever since Colonial days without any legislative re-enactment.

$ 53. The Memorandum in General. The following points are to be noted in regard to these contracts in general:

(a) The writing is chiefly required, not for the existence or validity of the contract, but for its evidence. And the form does not, as in a contract under seal, supply the place of a consideration. If there be no memorandum made as required, the contract is not void or unlawful but only unen

forceable; and if benefits have been conferred in pursuance of it they must be paid for.1

Under special circumstances equity will enforce a contract within the Statute although not in writing. Thus, where the terms are agreed upon, reluced to writing and partly executed, and one party fraudulently refuses to sign the agreement as he had promised to do or to carry it out, a Court of equity will compel him to produce and sign the original contract or a new one of similiar import.2

(b) The memorandum must show who are the contracting parties. Not only who is the person to be charged, but also the person in whose favor he is charged. The person in whose favor the contract is made however, may be sufficiently described without being named.*

(c) The memorandum may consist of various papers, but must be connected, consistent and complete; and parol evidence is inadmissible to connect separate written papers."

1 Baker v. Lauterbach, 68 Md. 64; Hamilton v. Thirston, 93 Md. 213; Sovereign v. Ortman, 47 Mich. 181; Pulbrook v. Lawes, L. R. 1 Q. B. D. 284. "The ground of recovery in that case is that the defendant has got the plaintiff's property without having fully paid for it, or that the plaintiff has paid the defendant in advance without receiving a quid pro quo." Kelley v. Thompson, 181 Mass. 124. See also, Peabody v. Fellows, 177 Mass. 290, and 181 Mass. 26.

2 Eq. Gas Co. v. Balto. Coal Tar Co., 63 Md. 285. See also, Phoenix Ins. Co. v. Ryland, 69 Md. 437.

3 McElroy v. Seery, 61 Md. 397.

4 Owings v. Baldwin, 8 Gill, 337, note e. In Carr v. Lynch [1900], 1 Ch. 613, a landlord signed the following memorandum: "Dear Sir. In consideration of your having this day paid me 501. I hereby agree to grant you a further lease of 24 years of the Warden Arms to run immediately after the expiration of the now existing lease." It was held that although the name of the lessee did not appear he was sufficiently described as the person who had paid the 501. The memorandum should also distinguish between buyer and seller. Salmon Falls Co. v. Goddard, 14 Howard, 446.

5 Moale v. Buchanan, 11 G. & J. 314, and note; Frank v. Miller, 38 Md. 459; Lazear v. Bank, 52 Md. 78. But parol evidence is admissible to identify a paper referred to. Oliver v. Hunting, L. R. 44 Ch. D. 205. When a letter does not show the name of the person to whom it was writen, evidence is admissible to show that it was contained in a certain addressed envelope. Pearce v. Gardner [1897], 1 Q. B. 688.

The complete contract may, however, be gathered from letters, writings and telegrams between the parties and so connected with each other that they may be fairly said to constitute one paper. When the agreement for the sale of goods was made upon the terms that the notes given therefor should be satisfactory to the seller, a memorandum which fails to mention this condition is insufficient. But it is not necessary to mention the time when the goods are to be delivered if no time was fixed in the parol contract.

8

The terms of the written memorandum cannot be altere ! by a subsequent oral agreement."

Evidence is admissible to show that a signed memorandum of sale does not contain all the terms verbally agreed upon by the parties, not for the purpose of contradicting it but to show that it does not comply with the statute.10

(d) The consideration must not only exist but it must appear, expressly or by implication, upon the face of the writing itself, and cannot be supplied by parol evidence. This rule was made because the word agreement is used in the statute, and that word “is not satisfied unless there be a consideration, which consideration, forming part of the agree ment, ought therefore to have been shown, and the promise is not binding by the statute unless the consideration which forms part of the agreement be also stated in writing." This rule has been changed in sum States and as to guarantees.12

(e) The memorandum must be signed by the party to be charged or by his agent. Signature by a broker as agent is sufficient.13 The place of signing is immaterial, and the name may be printed as well as written, if the printed name be

6 Ryan v. U. S., 136 U'. S. 83.

7 Williams v. Woods, 16 Md. 221. If the time and mode of payment be agreed upon, then the memorandum must state these terms. Fisher v. Andrews, 94 Md. 46.

8 Kriete v. Myer, 61 Md. 558.

9 Walter v. Bloede Co., 94 Md. 80; Warren v. Mayer Mfg. Co., 161 Mo. 112.

10 Fisher v. Andrews, 94 Md. 46.

11 Wain v. Warlters, 5 East, 10; 2 Smith's Ldg. Cases, 1495.

12 Patmore v. Haggard, 78 Ill. 607.

13 Williams v. Woods, 16 Md. 220.

See post, § 56.