Page:St. Louis, Iron Mountain & Southern Railway Co. v. Beidler.pdf/6

22 Rh  The memorandum must show the consideration upon which the defendant's promise is founded. Wain v. Warlters, 5 East., 21; Sanders v. Wakefield, 4 ''Barn. and Ald.,'' 595.

As stated by Mr. Browne, Sec. 390, there is a contrariety of opinion in this country upon this doctrine, as expounded in Wain v. Warlters, supra, and as to the rule that the memorandum must show the consideration, it is sustained in New Hampshire, New York, New Jersey, Maryland, South Carolina, Georgia, Indiana, Michigan and Wisconsin, and in others repudiated. In this State there has as yet been no adjudication upon this point. See analogous case in 21 Ark., 533.

Review the evidence in extenso, and contend that Beidler was guilty of deception, misrepresentations, etc., amounting to a fraud on Appellant.

The decree is erroneous, in this:

1st. It requires a specific performance by metes and bounds, and there is nothing in the contract of any metes and bounds, nor any memorandum in writing or otherwise from which the bounds can be discovered. To reach this description Hogane's survey must be taken upon parol evidence, and the proof all shows that, as Hogane testifies, he made the survey after the sale, at Beidler's request.

2d. The description of the pump reservation on the plat, and as described in Hogane's description, is 100 yards south of where it was and is now located. It was located by Hogane and Beidler by guess-work. Plaintiff had nothing to do with this, and, as Hogane, and Dudley, and Essex testify, it was all done by Hogane at Beidler's request, without any authority whatever from Plaintiff, or any of its agents.

3d. Beidler admits in his evidence, that a perpetual right of way, to and from the pump reservation, was to be reserved to Plaintiff, and yet the decree refuses to recognize this fact, and refuses to decree Plaintiff that right.