219 "We agree to give Mr. Egerton 19d. per pound for thirty bales of Smyrna cotton, customary allowance, cash three per cent. as soon as our certificate is complete." It was signed and dated. Lord Ellenborough is reported, when granting a rule nisi, to have assented to a distinction between the two cases, and to have said on cause shown: "This was a memorandum of the bargain, or at least of so much of it as was sufficient to bind the parties to be charged therewith, and whose signature to it is all that the statute requires." This last expression would seem to indicate that the difficulty in his lordship's mind was, that the bargain was not complete because the plaintiff had not signed (a point not fully settled by authority till 1836, in Laythoarp v. Bryant, (d) as will be seen hereafter). (e) But Lawrence J. said: "The case of Wain v. Warlters proceeded on this, that in order to charge one man with the debt of another, the agreement must be in writing, which word agreement we considered as properly including the consideration moving to, as well as the promise made by, the party to be so charged." The learned judge, however, did not explain why the word "bargain" does not also include the terms on both sides, as was observed by Holroyd J. when he said, "It appears to me that you cannot call that a memorandum of a bargain, which does not contain the terms of it; " and by Bayley J. when he held in the same case (f) that the language of the two sections of the statute was in substance the same, and that the word "bargain" means "the terms upon which parties contract." (g) In Hinde v. Whitehouse (h) the memorandum consisted of the Hinde v. auctioneer's catalogue, signed by him as agent of both house. parties, showing the goods sold, their marks, weight, and price; but the court held this insufficient, because there was another paper containing the conditions of the sale, which had been read, but was not made a part of the written note of the bargain by internal evidence contained in the signed paper. In Laythoarp v. Bryant, (i) in 1836, which was on the 4th section, Tin- Laythoarp White dal C. J. said: " Wain v. Warlters was decided on the v. Bryant. express ground that an agreement under the 4th section imports more than a bargain under the 17th." Park J. said: "The cases (d) 2 Bing. N. C. 735. Co. v. Goddard, 14 How. (U. S.) 446, (h) 7 East, 558. (i) 2 Bing. N. C. 735. Sarl v. on the 17th section of the statute might very much be put out of question, because the language of that section is different from the language of the 4th." In Sarl v. Bourdillon (k) the Bourdillon. written note was for the sale of "candlesticks complete." It was proven that the parol bargain was that the candlesticks should be furnished with a gallery to carry a shade, and defendant insisted that the written note was insufficient; but after time to consider, the decision of the court was delivered by Cresswell J., who said: "We do not feel obliged to yield to this argument. The memorandum states all that was to be done by the person charged, viz. the defendant, and, according to the case of Egerton v. Mathews, (1) that is sufficient to satisfy the 17th section of the statute of frauds, though not to make a valid agreement in cases within the 4th section." Price not stated where agreed on. Elmore v. Ashcroft v. § 247. In Elmore v. Kingscote (m) there had been a verbal sale of a horse for 200 guineas, but the only writing was a letter from defendant to plaintiff, in the following words: "Mr. Kingscote begs to inform Mr. Elmore that Kingscote. if the horse can be proved to be five years old on the 13th of this month in a perfectly satisfactory manner, of course he shall be most happy to take him and if not most clearly proved Mr. K. will most decidedly have nothing to do with him." The court held this insufficient, saying, "The price agreed to be paid constituted a material part of the bargain." In Ashcroft v. Morrin (n) defendant ordered certain goods to be sent. Morrin. him, saying, "Let the quality be fresh and good, and on moderate terms." On objection made that the price was not stated, the court said: "The order is to send certain quantities of porter and other malt liquor, on moderate terms. Why is not that sufficient? That is the contract between the parties:" and set aside the nonsuit according to leave reserved. In Acebal v. Levy (0) there was a special count alleging an agreeLevy. ment for the sale of a cargo of "nuts, at the then shipping price at Gijon, in Spain," and the parol evidence was to that effect. Plaintiff not being successful in establishing the validity of the contract by satisfactory proof of delivery and acceptance, then attempted to support his case by a letter which did not state Acebal v. (k) 26 L. J. C. P. 78; 1 C. B. N. S. 188. (1) 6 East, 307. (m) 5 B. & C. 583. (0) 10 Bing. 376. the price, and by insisting that a contract of sale was valid with- 66 § 248. In Hoadley v. McLaine, (p) the same court was called on to decide, in the ensuing term, the very point which Price not had been left undetermined in Acebal v. Levy. The defendant gave plaintiff an order in these words: "Sir Archibald McLaine orders Mr. Hoadley to build a new, Hoadley v. fashionable, and handsome landaulet, with the following McLaine. appointments, &c. . the whole to be ready by the 1st March, 1833." Nothing was said about price. The judges were all of opinion that as the writing contained all that was agreed on, it was a sufficient note of the bargain. Tindal C. J. said: "This is a contract which is silent as to price, and the parties therefore leave it to the law to ascertain what the commodity contracted for is reasonably worth." Park J. said: "It is only necessary that price should be mentioned, when price is one of the ingredients of the bargain, . . . and it is admitted on all hands that if a specific price be agreed on, and that price is omitted in the memorandum, the memorandum is insufficient." In Goodman v. Griffiths (q) the plaintiff showed defendant an v. Griffiths. (o) [James v. Muir, 33 Mich. 223; Mahalen v. Dublin & Chapelizod Distillery Co. Ir. R. 11 C. L. 83.] (p) 10 Bing. 582. (9) 26 L. J. Ex. 145, and 1 H. & N. 574. invoice of his prices, and then agreed verbally to sell to him at a deduction of twenty-five per cent. on those prices for cash, whereupon defendant wrote an order: "Please to put to my account four mechanical binders," and signed it. Held, that as there had been a parol agreement as to price, which was not included in the note of the bargain, the statute was not satisfied. rule as to price. § 249. It is plainly deducible from the foregoing decisions, that General so far as price is concerned the rule of law is, that where there is no actual agreement as to price, the note of the bargain is sufficient, even though silent as to the price, because the law supplies the deficiency by importing into the bargain a promise by the buyer to pay a reasonable price. But the law only does this in the absence of an agreement, and therefore, where the price is fixed by mutual consent, that price is part of the bargain, and must be shown in writing in order to satisfy the statute, (r) Price may be indicated in any way. (r) [See Smith v. Arnold, 5 Mason, 416 need not be set forth in the memoran- on Massachusetts statute. No price fixed, no price need tioned in be men dum. sideration, and those where memoran- and, finally, that parol evidence is admissible to show that a price was actually agreed on, in order to establish the insufficiency of a memorandum which is silent as to price. (s) Other terms of tract must pressed as to be intel ligible. § 250. As to the other terms of the contract, it is necessary that they should so appear by the written papers as to enable the court to understand what they actually were, in order to satisfy the statute. (t) § 251. It has already been shown that where these terms are contained in different pieces of paper, the several writings which are offered as constituting the bargain must be consistent, and not contradictory. (u) In Jackson v. Lowe (x) and Allen v. Bennett (y) the different writings were held consistent, so as to form a sufficient memorandum, while the reverse was held as to the written evidence offered in Cooper v. Smith, (2) Richards v. Porter, (a) Smith v. Surman, (b) and Archer v. Baynes. (c) In Thornton v. Kempster (d) the broker's bought note described the article bought as "sound and merchant- st able Riga Rhine hemp," and the sold note as "St. Petersburg Clean hemp," the former description being of an article materially different in quality and value from the latter. Held that the substance of the contract was not shown by the written bargain evidenced by two papers that materially varied from each Archer v. other. In Archer v. Baynes (c) the court held the corre- Baynes. contract which is within the statute of frauds and is executory must name the price, as well where a reasonable price is agreed upon as where any other is.] (s) See ante, § 209, and note (i). (t) [See Sanborn v. Flagler, 9 Allen, 474; Salmon Falls Manuf. Co. v. Goddard, 14 How. (U. S.) 446, 455; Johnson v. Buck, 6 Vroom, 338, 343. The memorandum should contain the substantial terms of the contract expressed with such certainty that they may be understood from the memorandum itself, or some other writing to which it refers, without resorting to parol evidence. Buck v. Pickwell, 27 Vt. 167; 1 Sugden V. & P. (8th Am. ed.) 134, and note (o1) and cases cited; ante, § 245, note (z) and cases cited; Bailey v. Ogden, 3 John. 399; Johnson v. Buck, 6 Vroom, 338, 343; Curtis J. in Salmon Falls Manuf. Co. v. Goddard, 14 How. (U. S.) 446; Water or on v. Kemp man v. Meigs, 4 Cush. 497; Kay v. Curd, (u) Ante, § 223. (c) 5 Ex. 625; 20 L. J. Ex. 54; [Hough- |