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not (b). Thus, a letter written by the vendor may be connected with a bill of parcels in which the vendor's name is printed, so as to take the case out of the statute (c). So it was held, that an order for goods written by the seller or his agent in a book of the purchaser's, though not alluding to the purchaser by name, might be connected with a letter in which the purchaser's name was mentioned, written by the seller to his agent, and with a letter from the purchaser to the seller calling upon the latter to execute the order (d). So, a correspondence which passed between the vendee and the agent of the vendor, was allowed to be connected with an appraisement and inventory (e). The two following letters were held sufficient to form together a memorandum of the contract. A letter from the vendee to the vendors to the following effect: "I hereby give you notice that the corn you delivered to me, in part performance of the contract, is of so bad a quality, that I cannot sell it, or make it into saleable bread: the sacks of flour are at my shop and
(b) Brodie v. St. Paul, 1 Ves. Jun. 326; Stead v. Liddard, 1 Bingh. 196.
(c) Saunderson v. Jackson, 2 B. & P. 238. [And see the following cases decided on the 4th section ; Clinan v. Cooke, 1 Sch. & Lef. 22; Gordon v. Trevetyan, 1 Price, 64; Seagood v. Meale, Prec. Chan. 560; Clerk v. Wright, 1 Atk. 12; Whaley v. Bagenal, 1 Bro. P. C. 345.].
(d) Allen v. Bennett, 3 Taunt. 169.
(e) Hemming v. Perry, 2 M. & Payne, 375.
at your risk." To which the vendors replied by their attorney: "Messrs. L. and L. consider they have performed their contract with yon as far as it has gone, and are ready to complete the remainder: unless the flour is paid for within one month, proceedings will be taken against you without further notice." In an action for the non-fulfilment of the contract, the vendee recovered (f). But a defective memorandum was held not to be aided by a subsequent letter from the defendant, in which he recognized the order, but insisted that he was not liable on the ground that the vendors had made default in the stipulated time (g). And there was held to be no sufficient memorandum made out by coupling an invoice, mentioning the seller and purchaser, with a letter from the seller acknowledging the receipt of the invoice, but declaring that the goods had been improperly delayed, and that, if they did not arrive within a certain time, he should procure others elsewhere (h).
The Courts are very jealous in admitting parol evidence to support the connection between documents otherwise distinct (i). The vendor was not
(_/") Jackson v. Lowe, 1 Bingh. 9.
(g) Cooper v. Smith, 15 East, 103.
(h) Richards v. Porter, 6 B. & C. 437 ; [acknowledging Cooper v. Smith"].
(i) Boydell v. Drummond, 11 East, 142; Boys v. Ay erst, 6 Madd. 316; Tawney v. Crowther, 1 Bro. P. C. 161, 318. [But a
Parol evi- allowed to prove, by the testimony of the person missive lo who took the order, that there was no stipulation cumenti. ° in the contract regarding the time of delivery (k). Nor would parol evidence be admissible to substitute a contract different in effect, such as the waiver by vendee of a material part of the agreement (/). But parol evidence was received, to establish the identity of the hand-writing in different papers (m).
Of the Contents of the Note or Memorandum. Contents of The names of both the parties must appear some
dum. where in the note or memorandum, or in some
other writing clearly referred to; therefore, where
Names of fae name of the plaintiff (the buyer) was not men
tne parties. r v »'
tioned at all, he was nonsuited (n). Price stipu- Where a specific price has been agreed upon, it must be stated in the note or memorandum of the contract; because, if it were admissible to prove by parol evidence the stipulated amount of payment, there would obviously be room for much of the mischief which the statute was intended to obviate. Where defendant had written, agreeing to take a horse if he could be proved to be of a specified age, the writing was held insufficient, because it made no mention of the price (,v). It had appeared in evidence that there was a stipulated sum, and the Court said that, in such case, the price was a material part of the bargain. This doctrine was confirmed by a recent case (y). But if no price has been specified by the parties, it is no objection that the note is silent on that head; a reasonable price will be presumed to have been intended. Were the law otherwise, it would be found highly inconvenient where goods are made to order, as the price can scarcely be ascertained until they are completed. The distinction has been very recently recognized. Defendant ordered a landaulet to be built by a certain day, and in a written memorandum gave detailed directions respecting the appointments. The carriage was completed accordingly, but the defendant refused to accept it, declaring the price demanded to be exorbitant, and objecting to the sufficiency of the memorandum on the ground that no price was specified. The Court overruled the objection, on the ground that there was no stipulation as to price in the original contract (z).
parol promise afterwards recognized in writing is sufficient, Longfellow v. Williams, Peake's Add. Ca. 225.]
(A) Cooper v. Smith, 15 East, 103.
(/) Gossv. Lord Nugent, 5 B. & Ad. 58.—Post.
(m) Clinan v. Cooke, 1 Sch. & Lef. 22.
(«) Champion v. Plummer, 1 N. R. 252; S. C. 5 Esp. 240. [And see on the 4th section Wheeler v. Collier, 1 M. & M. 123; Charlesrvood v. D. of Bedford, 1 Atk. 497.]
(ar) Elmore v. Kingscote, 5 B. & C. 583. And see Kain v. Old, 2 B. & C. 627.
(y) Acebal v. Levy, 10 Bingh. 376; S. C. 4 M. & Scott, 340.
(z) Hoadlyv. M'Lame, 10 Bingh. 482 ; S. C. 4 M. & Scott, 217. Tindal, C. J. observed, that the 7th section of 9 Geo. IV. c. 14 substitutes the word value, for the word price used in the 17th
Considera- It is not necessary that any consideration for the
promise should appear on the face of the note or memorandum; or, rather, the mutual obligation will be always presumed to form the consideration (a).
Of the Signature of the Parties.
signature of The note or memorandum of the contract must be signed, by the party to be charged, or his lawfully authorized agent. It has been stated (p), that the names of both the contracting parties must appear somewhere in the note; it is not however necessary that both should sign. If the defendant has signed, he cannot object to the sufficiency of the writing on the ground that the signature of the plaintiff does not appear, and that the contract could not be enforced against the latter (c); because the words of the statute are, "signed by the parties to be charged."
section of the Statute of Frauds, " so that, where the parties have omitted to fix a price, it may be open to a jury to ascertain the value." 10 Bingh. 487.
(a) Egerton v. Mathews, 6 East. 307. [There is a distinction taken in this respect between the 4th and 17th sections; in the latter section, the word used is bargain; in the former, agreement; and it is held that a memorandum, stating the terms of an agreemerit under the 4th section, could not be complete, if the consideration were omitted on the face of it. See Wain v. Walters, 5 East, 10.—Post.2
(b) Supra, p. 70.
(c) Jllen v. Bcnnet, 3 Taunt. 169. [This is always the rule in Equity. See Sugd. Vend. p. 85 (9th ed.); Boys v. Ayerst, 6 Madd. 316.]