subject to future revision(): and if the aid of equity be sought, these circumstances would have equal weight (*)with the Court. So in every case it must be consider ed, whether the note or correspondence import a concluded agreement if it amount merely to treaty, it will not sustain an action or suit(m)(40).

The letters will not constitute an agreement unless the answer to the offer is a simple acceptance, without the introduction of any new term(n).

And although a given time be named in the offer for the acceptance of it, yet it may be retracted at any time before it is actually accepted(o).

And where a letter or other writing do not in itself evidence all the terms of the engagement by which the person signing it consents to be bound, but it requires from the other party not a simple assent to the terms stated, but a special acceptance which is to supply a farther term of the agreement; there it is obvious that such special acceptance must be expressed in writing, for otherwise the whole agreement will not be in writing, within the statute of frauds(p).

The note or writing must specify the terms of the agreement, for otherwise all the danger of perjury which the statute intended to guard against would be let in(41).

(1) See Knight v. Crockford, 1 Esp. Ca. 189.

(m) Huddleston v. Briscoe, 11 Ves. jun. 583; Stratford v. Bosworth, 2 Ves. & Bea. 341; Ogilvie v. Foljambe, 3 Mer. 53.

(n) Holland v. Eyre, 2 Sim. & Stu. 194; Routledge v. Grant, 4 Bing. 653; 1 Moore & Payne, 717; Smith v. Surman, 9 Barn. & Cress. 561.

(0) Routledge v. Grant, ubi sup.
(p) Boys v. Ayerst, 6 Madd. 316.

(40) See Hobby v. Finch, Kirby, 14.

(41) A writing acknowledging the reception of a sum of money, being the cash part of the consideration of a sale of land to the plaintiff,

Thus, upon the sale of nine houses which were in mortgage, the vendor wrote a letter to the mortgagee to this effect: "Mr. Leonard, pray deliver my writings to the bearer, I having disposed of them. Am, &c." The vendor afterwards refused to perform the contract, and pleaded the statute of frauds to a bill filed by the purchaser for a specific performance, and the plea was (*)allowed; because it ought to be such an agreement as specified the terms thereof, which this did not, though it was signed by the party; for this mentioned not the sum that was to be paid, nor the number of houses that were to be disposed of; whether all, or some, or how many; nor to whom they were to be disposed of; neither did this letter mention whether they were disposed of by way of sale or assignment of lease (q): but where the

(q) Seagood v. Meale, Prec. Cha. 560; Rose v. Cunynghame, 11 Ves. jun. 550; Card v. Jaffray, 2 Scho. & Lef. 374; Lord Ormend v. Anderson, 2 Ball & Beat. 363; and see Champion v. Plummer, 1 New Rep. 252; Hinde v. Whitehouse, 7 East, 558; Cooper v. Smith, 15 East, 103; Richards v. Porter, 6 Barn. & Cress. 437; S. C. 9 Dowl, & R. 497; all four cases on the 17th section.

without saying more, is not such a memorandum as will take the case out of the statute of frauds. Ellis v. Deadman, 4 Bibb, 466.

Par

A memorandum of the sale of land, to be effectual, must not only be signed by the party to be charged, but must contain the substantial terms of the contract, expressed with such certainty that they may be understood from the contract itself, or some other writing to which it refers, without resorting to parol evidence. Parkhurst v. Van Cortlandt, 1 Johns. Ch. Rep. 273. S. C. on appeal, 14 Johns. Rep. 15. See Abeel v. Radcliff, 13 Johns. Rep. 297. Givens v. Calder, 2 Des. 188. ker v. Bodley, 4 Bibb, 102. Colson v. Thompson, 2 Wheat. 336, 341. In Virginia, it has been decided, that a letter containing a promise to make a deed of a tract of land," according to contract," is a sufficient memorandum, under the statute of frauds, notwithstanding the terms of the contract are not mentioned; provided the party claiming the conveyance, can prove by the testimony of one witness, the price which was agreed to be paid for the land. Johnson v. Ronald's Admr.

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(*90)

property is described generally as "Mr. Q.'s house," parol evidence has always been admitted to show to what house the treaty related(r).

So where(s), upon a parol agreement, the vendor sent a letter to the purchaser, informing him that, at the time he contracted for the sale of the estate, the value of the timber was not known to him, and that he (the purchaser) should not have the estate, unless he would give a larger price; Lord Hardwicke held, that the letter could not be sufficient evidence of the agreement, the terms of it not being mentioned in the agreement itself.

So in a recent case, where an auctioneer's receipt for the deposit was attempted to be set up as an agreement, the Master of the Rolls rejected it, because it did not state the price to be paid for the estate; and it could not be collected from the amount of the deposit, as it did not appear what proportion it bore to the price(t).

And here we may notice a case where an agreement was (*) executed which referred to certain covenants, which had been read, contained in a described paper, which, in fact, contained the terms of the agreement. It appeared that all the covenants contained in that paper had not been read; and which of them had been read, and which had not, was the difficulty, which could only be solved by parol testimony; and Mr. Justice Buller held clearly, that such evidence was inadmissible(u), as it would introduce all the mischiefs, inconvenience, and uncertainty the statute was designed to prevent; and Lord Redesdale has since unqualifiedly approved of this decision(w).

(r) Ogilvie v. Foljambe, 3 Mer. 53.

(s) Clerk v. Wright, 1 Atk. 12; and see Clinan v. Cooke, 1 Scho. & Lef. 22.

(t) Blagden v. Bradbear, 12 Ves. jun. 466; see Elmore v. Kingscote, 5 Barn. & Cress. 583; S. C. 8 Dowl. & R. 343.

(u) Brodie v. St. Paul, 1 Ves. jun. 326; Higginson v. Clowes, 15 Ves. jun. 516; Lindsay v. Lynch, 3 Sch. & Lef. 1.

(w) 1 Sch. & Lef. 38; and see O'Herlihy v. Hedges, ibid. 123.

Neither will a performance be compelled on a note or letter, if any error or omission, however trifling, appear in the essential terms of the agreement.

Thus in a case(x) (I) before Lord Hardwicke, the bill was brought to have a specific performance of an agreement, from letters which had passed between the parties. It appeared, that a certain number of years purchase was to be given for the land, but it could not be ascertained whether the rents upon a few cow-gates were (*)5s. or 1s.; and although there was no other doubt, Lord Hardwicke held, that such an agreement could not be carried into execution. He said, that in these cases it ought to be considered, whether at law the party could recover damages; for if he could not, the Court ought not to carry such agreements into execution.

The late Lord C. J. Mansfield observed, that there had been many cases in Chancery, some of which he thought had been carried too far, where the Court had picked out a contract from letters, in which the parties never certainly contemplated that a complete contract was contained (y).

(x) Lord Middleton v. Wilson, et e contra, Chan. 1741, MS.; S. C. Lofft, 801, cited. See 9 Ves. jun. 252; Stokes v. Moore, 1 Cox, 219; Popham v. Eyre, Lofft, 786; Gordon v. Trevalyan, 1 Price, 64; Blore v. Sutton, 3 Mer. 237.

(y) 3 Taunt. 172.

(I) The case is in Reg. Lib. 1741, fo. 260, by the name of Lord Middleton v. Eyre. The estate was sold by an agent to Dr. Wilson, by parol, and the parties appear to have bound themselves by letters, the particulars of which do not appear in the Register's book. The parties beneficially interested afterwards sold the estate for a greater price to Lord Middleton, who filed a bill for a specific peformance of the agreement, and Dr. Wilson filed a cross-bill. The cross-bill was dismissed with costs, and in the original cause a specific performance was decreed. The point in the text is not stated in the Registrar's book.

But although a letter do not in itself contain the whole agreement, yet if it actually refer to a writing that does, that will be sufficient, although such writing is not signed(43).

Thus in a case where an estate was advertised to be let for three lives, or thirty-one years, and an agreement was entered into for a lease, in which the term for which it was to be granted was omitted; Lord Redesdale held, that if the agreement had referred to the advertisement, parol evidence might have been admitted to show what was the thing (namely the advertisement) so referred to, for then it would be an agreement to grant for so much time as was expressed in the advertisement; and then the identity of the advertisement might be proved by parol evidence (*)(44). And Sir William Grant, in a late case, expressed his opinion, that a receipt which did not contain the terms of the agreement, might have been enforced as an agreement, had it referred to the conditions of sale, (*) which would have entitled the Court to look at them for the terms(a).

So an agreement not containing the name of the buyer may be made out by connecting it with a letter from the buyer on the subject(b).

(z) See Clinan v. Cooke, 1 Scho. & Lef. 22; and see Cass r. Waterhouse, Prec. Cha. 29; Hinde v. Whitehouse, 7 East, 558; Feoffees of Heriot's Hospital v. Gibson, 2 Dow, 301; Powell v. Dillon, 2 Ball & Beat. 416.

(a) Blagden v. Bradbear, 12 Ves. jun. 466; and see Shippey v. Derrison, 5 Esp. Ca. 190; Hinde v. Whitehouse, 7 East, 558; Kenworthy v. Schofield, 2 Barn. & Cress. 945; S. C. 4 Dowl. & R. 556; 1 Turn. & Russ. 352.

(b) Allen v. Bennet, 3 Taunt. 169; Western v. Russell, 3 Ves. & Bea. 187.

(43) A reference in a deed, to a will, not executed pursuant to statute, will have the effect of incorporating it with, and making it a part of the deed. Igard v. Montgomery, 1 Nott & M'Cord, 381.

(44) See Johnson v. Donald's Admr. 4 Munf. 77.