THE NOTE OR MEMORANDUM IN WRITING. 



17 



Must express 

 all the terms 

 of the agree- 

 ment. 



not having answered the letter will not bind him, as the 

 purchaser had no right to put upon him the burden of the 

 choice of writing a letter of refusal or being bound by the 

 agreement proposed {y). 



If letters taken together contain a sufficient contract, 

 namely, one that would express all its terms, they would 

 constitute a memorandum in writing within the statute. 

 And of course therefore the Court may look at all the 

 letters which have passed, for the purpose of seeing whether 

 or not they contain a sufficient contract to take the case out 

 of the statute (s). 



A letter signed by the party to be charged after the 

 transaction has taken place, which states (or plainly refers 

 to other documents which state) and admits the terms of 

 the contract, is a good memorandum under the statute, 

 even if such letter contain an attempted repudiation by the 

 writer of his liability under the contract (a) . 



Where A. sold a particular bay mare to B. through C. 

 who was acting as agent to B., and C. wrote to B. stating 

 that he had bought " the bay mare " for forty guineas, and 

 followed it up by other letters reiterating the terms of sale, 

 and requesting payment ; whereupon B. wrote to C. allud- 

 ing to the mare which C. bought for him, and promising 

 payment; it was held that B.'s letter, though sent to his 

 own agent, was, coupled with C.'s letters, a sufficient memo- 

 randum of the sale as against B. (b). 



But as mutual assent is necessary to constitute a binding Mutual assent. 

 contract, it is held that where it is sought to establish an 

 agreement by means of letters, such letters will not amount 

 to an agreement, unless the answer be ex simpUce, without 

 the introduction of any new term (c). Thus, in the follow- 

 ing case an action of assumpsit was brought for the price of 

 a mare sold and delivered, to which the defendant pleaded 

 non assumpsit. It appeared that the defendant having seen 



(i/) Felthouse t. Bindley, 31 L. J., 

 C. P. 204. 



(z) Archer v. Baynes, 5 Ex. 629 ; 

 Richards t. Porter, 6 C. B. 438; 

 Warner y. Willington, 25 L. J., Ch. 

 662 ; Smith v. Neale, 26 L. J., C. P. 

 143 ; Watts v. Ainsworth, 1 H. & 

 C. 83 ; Bailey t. Sweeting, 9 C. B., 

 N. S. 843; 30 L. J., C. P. 150; 

 9 "W. E. 273 ; Fierce \. Corfe, L. E., 

 9Q. B. 214; 43 L. J., Q. B. 62; 29 

 L. T., N. S. 919. 



(«) Bailey t. Sioeeting, 9 C. B., 



O. 



N. S. 843; 30 L. J., C. P. 150 

 Wilkinson v. Evans, L. E., 1 C. P, 

 417 ; Buxton v. Rust, L. E., 7 Ex 

 1; 41 L. J., Ex. 1; 25L. T.,N. S, 

 502, affirmed L. E., 7 Ex. 279 

 Leather Cloth Co. v. Seironimus, L 

 E., 10 Q. B. 140; 44 L. J., Q. B 

 64; 32 L. T., N. S. 307. 



(4) Gibson v. Holland, L. E., 1 

 C. P. 1; 35 L. J., C. P. 5; 14 

 W. E. 86. 



(<;) Cooper v. Rood, 28 L. J., Ch. 

 212. 



C 



