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what the contents of the writing are, so that independently of any statute the writing is a necessary part of his case who seeks to prove the agreement. But if the terms are put in writing, but not as a matter of compact between the parties to settle what the terms are, the case is different. If the writing is made by a byestander, without any authority from the parties, the writing is not evidence at all, though it may be used to refresh the memory of him who made it. If one of the parties only authorized the making of the memorandum, or afterwards admitted its accuracy, it is evidence against him as an admission, but not in law either indispensably necessary for the proof of the contract, or conclusively binding upon him against whom it is evidence.
Now the Statute of Frauds leaves this law quite as it was before. If the contract, or part of it, is in writing, the writing must be proved, though there has been a part payment or a part acceptance and receipt; and if the writing is a part of the agreement it must be proved, though it would not satisfy the third exception, either because it is not signed, or for any other reason. And the writing, when proved, has just as much effect in settling conclusively what the terms of the bargain are, as it would have had if the Statute of Frauds had never been passed. The proof of the writing is as indispensable and as conclusive in a contract for the sale of goods for more than 10?., as in one for the sale of goods for less than 101., and not more so. And when a party has signed a memorandum of the terms of the contract, which is not more than an admission of the terms of the contract, the other party
is not forced to use this evidence, if he can in any other way satisfy the exceptions in the statute, and if he does use it the memorandum does not bind the other party more than a similar admission would have done if the price had been less than 10/. It is strong evidence of what the agreement is, but it is not the agreement itself. It may make the contract good, because it is in writing and signed, and for the same reason it is capable of clear and undeniable proof, but its effect in settling the terms of the contract is no greater than that of a similar admission made by word of mouth.
To return to the statute. There are three subjects of inquiry:—What is "a note or memorandum in "writing of the bargain?" 2ndly, What is meant by being "signed by the parties to be charged by such "contract?" 3rdly, Who are " their agents lawfully "authorized?"
Now as to what is a note or memorandum in writing of the bargain, it is to be observed, that by the express words of the statute it is to be in writing, and it has been held, that this means that the writing must contain in itself sufficient matter to amount to the note or memorandum, without calling in any parol testimony to supply the deficiency. If the very paper signed contains in itself the whole that is reduced to writing, the only question is, whether that is sufficient matter to constitute a memorandum of the bargain; but if there be sufficient matter to make a memorandum written on separate pieces of paper, no one of which by itself contains enough, the question arises, if the memorandum of which the cont ents of these several papers are evidence is all in writing or not; if the contents of the signed paper themselves make reference to the others so as to show by internal evidence that the papers refer to each other, they may be all taken together as one memorandum in writing; but if it is necessary in order to connect them, to give evidence of the intention of the parties that they should be connected, shown by circumstances not apparent on the face of the writings, the memorandum is not all in writing, for it consists partly of the contents of the writings and partly of the expression of an intention to unite them, and that expression is not in writing. If, indeed, the separate papers were at the time of the signature attached to each other, they then in substance formed one paper, and a subsequent separation of them cannot prevent the memorandum from having once existed.
In Hinde v. Whitehouse (a), in 1806, the sale was by auction, subject to certain conditions; a paper containing the conditions was read by the auctioneer and then laid on his desk; he wrote down the purchaser's name opposite the lots in his catalogue, which was headed, " To be sold by auction, for particulars apply to Thomas Hinde," but contained no internal reference to the conditions. The King's Bench held that the bargain was contained in the conditions, and that there was no signed memorandum of the bargain; that which there was, Lord Ellenborough said, was a minute made on the catalogue of sale which was not annexed to the conditions of sale, nor had any internal reference to them by context or the like. "I am,
(a) Hinde v. Whitehouse, 7 East, 558.
"therefore of opinion," said he, "that the mere "writing on the catalogue not being by any reference "incorporated with the conditions of sale, is not a "memorandum of a bargain under those conditions "of sale."
Precisely the same case came before the King's Bench, in 1824, in Kenworthy v. Schojield (b), and was decided the same way. Holroyd, J. there said, "It appears to me that you cannot call that a memo"randum of a bargain which does not contain the "terms of it. The argument for the plaintiff is, that "the conditions being in the room were virtually "attached to the catalogue; but I think as they were "not actually attached or clearly referred to, they "formed no part of the thing signed. In the case put "of the separation of the conditions from the catalogue, "during the progress of the sale, I should say, that "the signatures to the latter made after the separation "were unavailing. It occurred to me at first that "this might be likened to a will, consisting of several "detached sheets, when a signature of the last, the "whole being on the table at the time would be con"sidered a signing of the whole, but there the sheet "signed is a part of the whole. Here the catalogue "was altogether independent of the conditions."
These two cases are strong decisions to shew that no intention on the part of the signer to unite two papers will suffice, unless the papers be physically joined, or that intention appear on the face of the papers; but the question of what shall be a sufficient
(a) Kenworthy v. Schofield, 2 B. & C. 945.
reference of the one paper to another, is a very difficult one. It is not possible to use language so clear and explicit that the meaning may not vary according to the circumstances under which it was used; when, therefore, it appears on the face of a writing that it refers to something extraneous, there must in every case be some inquiry into external circumstances to see what it is that is referred to. The Statute of Frauds makes no alteration in this. Precisely the same evidence is admissible to shew what the writing refers to when it is a memorandum of a bargain within the statute, that would be admissible to explain it, if it were a memorandum of a bargain not within the statute; but when it is ascertained to what the writing refers, the statute steps in. If the reference is to something verbal, or ultimately to a writing by the medium of something verbal, the common law would take the whole together as shewing what the contract is, but as one link of the evidence is not in writing, it will not in general operate as a memorandum in writing to take the case out of the statute.
It would therefore be necessary for a clear exposition of this part of the subject to enter into the whole question of how far external evidence is by common law admissible to aid the construction and application of writings; but that is too extensive and difficult a subject for a digression. The general rule seems to be, that all facts are admissible which tend to shew the sense the words bear with reference to the surrounding circumstances of and concerning which the words were used, but that such facts as only tend to shew that the