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It is not necessary that any consideration for the promise should appear on the face of the note or memorandum ; or, rather, the mutual obligation will be always presumed to form the considera
Of the Signature of the Parties. Signature of The note or memorandum of the contract must party.
be signed, by the party to be charged, or his lawfully authorized agent. It has been stated (6), that the names of both the contracting parties must appear somewhere in the note; it is not however necessary that both should sign. If the defendant has signed, he cannot object to the sufficiency of the writing on the ground that the signature of the plaintiff does not appear, and that the contract could not be enforced against the latter (c); because the words of the statute are," signed by the parties to be charged.”
section of the Statute of Frauds, “ so that, where the parties have omitted to fix a price, it may be open to a jury to ascertain the value.” 10 Bingh. 487.
(a) Egerton v. Mathews, 6 East, 307. [There is a distinction taken in this respect between the 4th and 17th sections; in the latter section, the word used is bargain; in the former, agreement; and it is held that a memorandum, stating the terms of an agreen ment under the 4th section, could not be complete, if the consideration were omitted on the face of it. · See Wain v. Walters, 5 East, 10.-- Post.]
(6) Supra, p. 70.
(c) Allen v. Bennet, 3 Taunt. 169. [This is always the rule in Equity. See Sugd. Vend. p. 85 (9th ed.); Boys v. Ayerst, 6 Madd. 316.]
It is immaterial in what part of the note the signature appears, whether at the beginning or the end. “I, A.B. agree to sell, &c.” (d), or in the third person, “ Mr. A. B. has agreed” (e), will be sufficient without further signature. It was held in one case, that the printing of the vendor's name was sufficient to bind him, the words of the statute being making or signing (f ). There were, however, other circumstances in the case to connect the bill of parcels, in which the printed name appeared, with a letter subsequently written by the vendor. However, a printed name subsequently recognized will undoubtedly be sufficient; as where the name of the vendor was printed in the bill of parcels, and a blank left in the same paper was afterwards filled up by the vendor with the purchaser's name (g). It appears that the signature would be sufficient if written with a pencil; this was held good in the indorsement of a promissory
(d) Knight v. Crockford, 1 Esp. 190.
(e) Propert v Parker, 1 Russ. & M. 625. [Similarly as to an agreement for the purchase of an estate. See Ogilvie v. Foljambe, 3 Merivale, 53; Morison v. Turnour, 18 Ves. Jun. 175. A will was held valid, where the testator's name was written by himself in the body of the document, Lemayne v. Stanley, 3 Lev. 1.]
(f) Saunderson v. Jackson, 2 B. & P. 238.
(8) Schneider v. Norris, 2 M. & S. 286. [But qu. whether a printed name of itself is sufficient. Dampier, J. said, that in Saunderson v. Jackson the letter alone, with which the bill of parcels was connected, took the case out of the statute ; ib. 290.]
note (h). The initial letter of the surname would not be considered a sufficient signature (i).
Of the Signature by an Agent. Signature
The agent empowered to sign need not be auof agent.
thorized in writing (k); and if the act of an unauthorized person be subsequently ratified, he is an agent within the statute, on the principle of the maxim, omnis ratihabitio retrotrahitur, ac mandato priori æquiparatur (1). It is frequently a question for the jury whether, under the circumstances, there is sufficient evidence of authority given by the de
fendant to the alleged agent (m). The authority Authority may be orally countermanded at any time before mandable. it is actually executed (n), even where the broker
(h) Geary v. Physic, 5 B. & C. 234. [See Jeffery v. Walton, 1 Stark. N. P. C. 267. Of a guaranty written in pencil, Philips v. Astling, 2 Taunt. 206.]
(i) In Hubert v. Moreau, 2 C. & P. 528, such signature was held insufficient to charge a bankrupt on his promise ; which must be in writing, and signed, under 6 Geo. IV. c. 16, s. 130. But see 1 Campb. 513.
(k) See 4 Bingh. 727; Coles v. Trecothick, 9 Ves. Jun. 249, a. Fairbrother v. Prattent, i Dan. 67. [Neither the 4th nor the 17th sections of the statute require a written authority ; but the 3d section, which relates to Assignments, Surrenders, and Grants, makes writing necessary.]
(1) M'Lean v. Dunn, 4 Bingh. 722.
(n) Farmer v. Robinson, 2 Campb. 339, n. And see 5 Esp. 257; Bristow v. Taylor, 2 Stark. N. P. C. 50; Warwick v. Slade, 3 Campb. 127.
or other agent has previously entered into a verbal contract with the vendee. (.).
An auctioneer is a lawfully authorized agent Auctioneer. within the meaning of the Statute of Frauds, both for the vendor and the vendee (p). This is now well established, though the propriety of the doctrine has been questioned (9). It was held sufficient, where the auctioneer wrote the initials of the name of the purchaser's agent opposite the lots in the catalogue, the agent having been authorized to make the purchase (r). The name of the vendee-principal need not appear; it is sufficient if the auctioneer writes down the name of the acknowledged agent (s). But if the name is written opposite to the lots in the catalogue, the conditions of sale must be annexed to the catalogue, or clearly referred to, in order to connect them, as part of the contract(t). It was held to be insufficient, that the conditions had been read aloud before the biddings, and that they remained in the room during the sale (u).
(6) 2 Campb. 339, n.
() Simon v. Metivier, 3 Burr. 1921 ; S. C. 1 Bl. Rep. 599 ; Emmerson v. Heelis, 2 Taunt. 38; Hinde v. Whitehouse, 7 East, 558. And vid. infra, Auction, Chap. v.
(9) See 2 Taunt. 45.
() Phillimore v. Barry, 1 Campb. 513. As to the purchase of lands, see Kemeys v. Proctor, 1 Jac. & W. 350 ; White v. Proctor, 4 Taunt. 209.]
(s) Kenworthy v. Schofield, 2 B. & C. 945. See 1 Campb. 513.
A broker is an agent for both parties within the Statute of Frauds (2). An entry made in his books of the sale of goods, and signed by him, is a memorandum to bind the contract (y); and it is decided
to be sufficient, even if the entry be not signed by Bought and him, provided that the bought and sold notes (3)
sent to the parties be duly signed, and correspond with each other(a). But if the notes materially differ from each other, there is no valid contract(b). It was held, that a material alteration made in the sale-note after the bargain, by the broker, at the vendor's suggestion, without the purchaser's consent, precluded the vendor from availing himself of the instrument to prove the contract(c). It is
(x) Rucker v. Cammeyer, 1 Esp. 105; Heymann v. Neale, 2 Campb. 337 ; Cumming v. Roebuck, Holt, N. P. C. 172; Thornton v. Meux, 1 M. & Malk. 43; Anon. Lofft, 330.
(y) Heyman v. Neale, 2 Campb. 337; Gale v. Wells, 1 C. & P. 388.
(z) Paper writings, copied by the broker from the entry in his book, and signed by him, are commonly termed “ bought and sold notes.” It was said by Lord Ellenborough, that these notes are not sent to the parties for their approbation, but to inform them of the terms of the contract. See 2 Campb. 338. But the better opinion seems to be that the sale-notes themselves, and not the entry in the broker's book, evidence the contract. See Holt, N. P. C. 173; 1 M, & Malk. 44; 6 B. & C. 122; Hawes v. Forster, 1 M. & Rob. 374.
(a) Goum v. Aflalo, 6 B. & C. 117.
(6) Cumming v. Roebuck, Holt, N. P. C. 172; Thornton v. Kempster, 5 Taunt. 786; S. C. 1 Marsh. 355 ; Grant v. Fletcher, 5 B. & C. 436; S. C. 8 D. & R. 59.
(c) Powell v. Divett, 15 East, 29.