Page:St. Louis, Iron Mountain & Southern Railway Co. v. Beidler.pdf/5

45 Ark.] Rh  certainty in the writing referred to. 1 ''Ves. Jr., 326; 11 East., 142; Browne St. Frauds, Secs.'' 349, 355, 365.

Do the contents of the memorandum contain sufficient as to the subject matter, taking all the writings together, to make it certain, full and complete?

The general rule is that it must contain the essential terms of the contract, expressed with such a degree of certainty that it may be understood without recourse to parol evidence to show the intentions of the parties. 4 Kent's Com., 511; Browne's Statute of Frauds, Sec. 371; 3 Parsons on Contracts, p. 13,'' et seq. and notes.''

In the first place the note or memorandum must import an agreement made. If it show a treaty pending, and not a contract concluded, or, referring to it, annex conditions or otherwise make variations, it has no effect to bind the party from whom it proceeds.

It is also necessary for the written memorandum to contain the names of the contracting parties, and to be signed by the party to be charged.

Again, the memorandum should show the price agreed to be paid for the property sold, where the contract is one of sale. Where a price is stipulated by the parties, it is manifestly an essential part of the agreement; ''its omission from the memorandum, therefore, is fatal. Browne's Stat. of Frauds, Sec. 376; Preston v. Merceau, 2 W. Black.,'' 1249.

In cases of sales, the credit stipulated is an essential term of the contract, and must appear in the memorandum, and such seems to be the established rule in actions at law.

And the subject matter of the defendant's engagements must of course appear from the memorandum. ''Land, for instance, which is purported to be bargained for, must be so described that it may be identified. Browne's Statute of Frauds, Sec. 383 and Note 2.''