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must be

§ 223. Further, in order to satisfy the statute, when the memorandum relied on consists of separate papers, which it is Separate attempted to connect by showing from their contents papers that they refer to the same agreement, these separate consistent. papers must be consistent and not contradictory in their statement of the terms, for otherwise it would be impossible to determine what the bargain was without the introduction of parol testimony to show which of the papers stated it correctly.

4th and 17th sec

tions com

§ 224. The authorities are believed to be quite consistent in maintaining these principles. In citing them, it will be observed that some of the cases were under the 4th section of the statute, the language of which is, on this pared. subject, almost identical with that of the 17th. The two clauses are here placed in juxtaposition for comparison. Fourth section. "Unless the agreement on which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." Seventeenth section. Except that some note or memorandum in writing of the said bargain be made, and signed by the parties to be charged with such contract, or their agents thereunto lawfully authorized." It will be noticed hereafter that the question, whether there is any distinction in meaning between the respective words quoted in italics, viz. "agreement" and "bargain," on the one hand, and "party" and " parties," on the other hand, has been mooted on several occasions.

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Hinde v.

White

§ 225. The leading case in which it was held that the intention of the signer to connect two written papers, not physi- Cases recally joined, and not containing internal evidence of his viewed. purpose to connect them, could not be proven by parol, occurred early in the present century. Hinde v. Whitehouse (2) in 1806, was the case of a sale by auction. The auc- house. tioneer, who, as will be shown hereafter (post, ch. viii.), is by law an agent authorized to sign for both parties, had a catalogue, headed" To be sold by auction, for particulars apply to Thomas Hinde," and wrote down opposite to the several lots on the catalogue the name of the purchaser. The auctioneer also had a sepa

way v. Ingram, 50 Ind. 145; Peirce v. Corf, L. R. 9 Q. B. 210.] But see Baumann v. James, L. R. 3 Ch. App. 508.

(x) 7 East, 558.

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v. Scho

rate paper containing the terms and conditions of the sale, which he read, and placed on his desk. The catalogue contained no reference to the conditions. Held, that the signature to the catalogue was not sufficient to satisfy the statute, on the ground that it did not contain the terms of the bargain, nor refer to the other writ Kenworthy ing containing those terms. (y) Kenworthy v. Schofield. field, (z) in the king's bench in 1824, was decided in the same way, on circumstances precisely the same. Lord Westbury recently stated the general principle, in a case which arose under a similar clause in the railway and canal traffic act, in these words: "In order to embody in the letter any other document or memorandum, or instrument in writing, so as to make it part of a special contract contained in that letter, the letter must either set out the writing referred to, or so clearly and definitely refer to the writing, that, by force of the reference, the writing itself becomes part of the instrument it refers to." (a)

Peek v.

North Staff.

Railway
Company.

Saunder

son v.

Jackson.

Allen v.

§ 226. The first reported case decided in banc, in which a signed paper referring to another writing was deemed sufficient to satisfy the statute, was that of Saunderson v. Jackson, (b) in 1800; but the case does not state how this connection between the two papers was made apparent, and can, therefore, give little aid in construing the clause of the statute, although it has been constantly quoted as authority for the general proposition, that the memorandum may be made up of different pieces of paper. In Allen v. Bennett, (c) decided in 1810, the Bennett. agent of the defendant sold rice to the plaintiff, and entered all the terms of the bargain on the plaintiff's book, but did not mention the plaintiff's name. Subsequently, the defendant wrote to his agent, mentioning the plaintiff's name, and authorizing his agent to give credit according to the memorandum in the plaintiff's book, saying, also, that to prevent dispute he sent a "sample of the rice." Held, that the letter referred to the memorandum of the bargain sufficiently to render the two Smith. together a signed note of the bargain. In 1812 Cooper

Cooper v.

(y) [Peirce v. Corf, L. R. 9 Q. B. 210.] (z) 2 B. & C. 945.

(a) Peek v. North Staffordshire Railway Company, 10 H. L. Cas. 472-569;

[Johnson v. Buck, 6 Vroom, 338, 344, 345.]

(b) 2 B. & P. 238.

(c) 3 Taunt. 169; [Townsend v. Har graves, 118 Mass. 335, 336.]

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v. Smith (d) was distinguished from the foregoing case, because the letter offered to prove the contract, as entered on the plaintiff's books, falsified instead of confirming the entry, by stating that the bargain was for delivery within a specified time, a fact denied by the plaintiff. Le Blanc J. tersely said: "The letter of the defendant referred to a different contract from that proved on the part of the plaintiff, which puts him out of court, instead of being a recognition of the same contract, as in a former Jackson v. case." (d1) In Jackson v. Lowe & Lynamn, (e) the com- Lowe. mon pleas, in 1822, held it perfectly clear that a contract for the sale of flour was fully proven within the statute by two letters: the first from the plaintiff to the defendants, reciting the contract, and complaining of the defendants' default in not delivering flour of proper quality; and the second from the defendants' attorney in reply to it, saying that the defendants had "performed their contract as far as it has gone, and are ready to complete the remainder," and threatening action if " the flour" was not paid for within a month.

§ 227. Richards v. Porter (f) was decided in the king's bench in 1827, and on the face of the report it is almost im- Richards v. possible to reconcile it with the other decisions on this Porter. point. The facts were, that the plaintiff sent to the defendant, by order of the latter, from Worcester to Derby, on the 25th January, 1826, five pockets of hops, which were delivered to the carriers on that day, and an invoice was forwarded containing the names of the plaintiff as buyer and of the defendant as seller. The defendant was also informed that the hops had been forwarded by the carriers. A month later, on 27th February, the defendant wrote to the plaintiff: "The hops (five pockets) which I bought of Mr. Richards on the 23d of last month are not yet arrived, nor have I ever heard of them. I received the invoice. The last was much longer than they ought to have been on the road. However, if they do not arrive in a few days, I must get some elsewhere, and consequently cannot accept them." The plaintiff was nonsuited, and the king's bench held the nonsuit right, Lord Tenterden saying: "I think this letter is not a sufficient note or memorandum in writing of the contract to satisfy the statute of frauds. Even

(d) 15 East, 103.

(d) [Haughton v. Morton, 5 Ir. C. L. R. 329].

(e) 1 Bing. 9.
(f) 6 B. & C. 437.

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connecting it with the invoice, it is imperfect. If we were to decide that this was a sufficient note in writing, we should in effect hold that if a man were to write and say, I have received your invoice, but I insist upon it the hops have not been sent in time,' that would be a memorandum in writing of the contract sufficient to satisfy the statute." The facts as reported certainly are not the same as those used in illustration by Lord Tenterden. No doubt, if the defendant had said, "Our bargain was that you should send the hops in time, and you delayed beyond the time agreed on," there would have been no proof of the contract in writing as alleged by the plaintiff. But the report shows that the goods were delivered in due time to the carrier, which, in contemplation of law, was a delivery to the purchaser, and the complaint was not that the goods had not been sent in time, but that they did not arrive in time; that a previous purchase also was delayed "on the road." The dispute, therefore, does not seem to have turned in the least on the terms of the bargain, which were completely proven by the letter and invoice together, but on the execution of it. In the recent case of Wilkinson v. Evans (g) the judgment in Richards v. Porter is said to be reconcilable with the current of decisions, by Erle C. J., on the ground "that the letter stated that the contract contained a term, not stated in the invoice; that the term was that the goods should be delivered within a given time." It is difficult to find in the letter, as quoted in the report, the statement said by the learned chief justice to be contained in it. The decision in Richards v. Porter seems to be reconcilable with settled principles only on the assumption that there was some proof in the case that the carrier was by special agreement the agent of the vendor, not of the vendee. (h) § 228. The case of Smith v. Surman (i) followed in the king's bench, in 1829. The written memorandum was conSurman. tained in two letters, one from the vendor's attorney, who wrote to ask for payment "for the ash timber which you purchased of him. . . The value, at 1s. 6d. per foot, amounts to the sum of 177. 38. 6d. I understand your objection to complete your contract is on the ground that the timber is faulty and un

Smith v.

(9) L. R. 1 C. P. 407; 35 L. J. C. P. as expressed by Erle C. J. in Bailey . Sweeting, infra, § 252.

224.

(h) Richards v. Porter seems also irreconcilable with the opinion of the court

(i) 9 B. & C. 561. See also, Archers. Baynes, 5 Ex. 625; 20 L. J. Ex. 54.

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203 sound, but there is sufficient evidence to show that the same timber is very kind and superior," &c. &c. The defendant replied, "I have this moment received a letter from you respecting Mr. Smith's timber, which I bought of him at 1s. 6d. per foot, to be sound and good, which I have some doubts whether it is or not, but he promised to make it so, and now denies it." Held, that the letters were not consistent, and did not satisfy the statute. Bayley J. said: "What the real terms of the contract were is left in doubt, and must be ascertained by verbal testimony. The object of the statute was that the note in writing should exclude all doubt as to the terms of the contract, and that object is not satisfied by defendant's letter." The other judges concurred. (k)

Drum

mond.
The de-

§ 229. The leading case under the fourth section of the statute of frauds, usually cited in all disputes as to the construc- Boydell v. tion of the words now under consideration, is Boydell v. Drummond, (1) decided in the king's bench in 1809. fendant was sued as one of the subscribers for the celebrated Boydell prints of scenes in Shakespeare's plays, and the terms of the subscription were set out in a prospectus. The proof offered was the defendant's signature in a book entitled Shakespeare's Subscribers, their Signatures. But there was nothing in the book referring to the prospectus, and it was impossible to connect the book with the prospectus showing the terms of the bargain, without parol testimony. Some letters of the defendant were also offered, but equally void of reference to the terms of the bargain. The plaintiff was nonsuited at nisi prius, and the nonsuit was confirmed by the unanimous opinion of the judges, Lord Ellenborough C. J., Grose, Le Blanc, and Bayley JJ. In Dobell v. Dobell v. Hutchinson, (m) in 1835, the king's bench held, under the 4th section of the act, that in a sale at auction where the letters of the defendants, the purchasers, referred distinctly to the conditions of sale signed by the plaintiff, and which they had in their hands, the clause of the statute was completely satisfied, because no parol evidence of any kind was requisite to show the contract, except proof of handwriting, which is necessary in Laythoarp all cases.

Hutchin

son.

So in Laythoarp v. Bryant, (n) in 1836, the v. Bryant.

(k) See Buxton v. Rust, L. R. 7 Ex. 1, 279.

(1) 11 East, 142. See, also, Fitzmaurice

v. Bayley, 9 H. L. Cas. 78, and Crane v.
Powell, L. R. 4 C. P. 123.

(m) 3 Ad. & E. 370.
(n) 2 Bing. N. C. 735.

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