37 42 39 or his last name, or his initials only,38 or his mark, or any design intended as a signature," or a fictitious name." He may touch a pen while someone writes his name," or authorize and direct some one to sign his name in his presence.* An agent's initials are sufficient," but a signer's mere description of himself is not enough.5 43 48 The signature may be printed," or stamped," or written. It may be with a pencil." It may be at the beginning or end or in the body of the note or memorandum.50 If the statute requires 37. Lee v. Cherry, 85 Tenn. 707; Sweet v. Lee, 3 M. & G. 466. 38. Salmon Falls Manufacturing Co. v. Goddard, 55 U. S. (14 How.) 447; Sanborn v. Flagler, 91 Mass. (9 Allen) 474; Palmer v. Stephens, 1 Den. (N. Y.) 471, 478; Merchants' Bank v. Spicer, 6 Wend. (N. Y.) 443; Sweet v. Lee, 3 M. & G. 466; Phillimore v. Barry, 1 Camp. 513; Jacob v. Kirk, 2 M. &. R. 222. 39. Toye v. Patch, 132 Mass. 105; Zimmerman v. Sale, 3 Rich. (S. C.) 78; Brown v. McClanahan, 68 Tenn. (9 Baxt.) 347; Baker v. Dening, 8 A. & E. 94. 40. Bickley v. Keenan, 60 Ala. 293; McIntyre v. Preston, 10 Ill. (5 Gil.) 48; Tagiasco v. Molinari, 9 La. (0. S.) 525; Madison v. Zabriski, 11 La. (O. S.) 247; DeWitt v. Walton, 9 N. Y. 571; David v. Ins. Co., 83 N. Y. 265; Brainerd v. Heydrick, 83 How. Pr. (N. Y.) 97; Brown v. Butchers' Bank, 6 Hill (N. Y.), 443. 41. Augur v. Couture, 68 Me. 427. (Couture wrote his name Seam, the English translation of his French name.) 42. Helshaw v. Langley, 11 L. J. Ch. (N. S.) 17. 43. Jansen v. McCahill, 22 Cal. 563; Croy v. Busenbark, 72 Ind. 48; Nye v. Lowry, 82 Ind. 316; Frost v. Deering, 21 Me. 156; Bird v. Decker, 64 Me. 550; Hawkins v. Chace, 36 Mass. (19 Pick.) 502; McMurtry v. Brown, 6 Neb. 368. Contra: Simpson v. Com., 89 Ky. 412. 44. Salmon Falls Manufacturing Co. v. Goddard, 55 U. S. (14 How.) 447. 45. Selby V. Selby, 3 Meriv. (Eng.) 2. 46. Grieb v. Cole, 60 Mich. 397; Mechem on Sales, § 451; Benjamin on Sales, 259. "It is a sufficient signing if the name be printed and in any part of the instrument, provided that the name is recognized and appropriated by the party to be his." Drury v. Young, 58 Md. 546; Schneider v. Norris, 2 M. & S. 286; Saunderson v. Jackson, 2 B. & P. 238; Tourret v. Cripps, 48 L. J. Ch. 567. 47. Boardman V. Spooner, 95 Mass. (13 Allen) 353; Bennett v. Brumfitt, L. R. 3 C. P. 28; Benjamin on Sales, § 259. 48. Benjamin on Sales, § 259. 49. Geary v. Physic, 7 D. & R. 653, 5 B. & C. 234; Benjamin on Sales, § 259. 50. Nichols v. Johnson, 10 Conn. 192, 198; Canneries Co. v. Scatena, 117 Cal. 447 (across the face of the memorandum); Drury v. Young, 58 Md. 546; Hawkins v. Chace, 36 Mass. (19 Pick.) 502; Coddington v. Goddard, 82 Mass. (16 Gray) 436; N. E. Meat Co. V. Worsted Co., 165 Mass. 328 (in the body); Saunders v. Hackney, 78 Tenn. (10 Lea) 194; Knight v. Crockford, 1 Esp. 190; Saunderson v. Jackson, 2 B. & P. 238; Schneider v. Norris, 2 M. & S. 286; Johnson v. Dodgson, 2 M. & W. 653; Benjamin on Sales, § 259. the memorandum to be "subscribed," the signature should be at the end.51 SIGNING BY AGENT.-A duly authorized agent may sign the note or memorandum, although not sui juris.52 The authority to sign may be express or implied, or inferred from subsequent ratification.53 It need not be specially conferred but may be included in the scope of his general authority. The concerted action of the owners of several interests does not confer authority on one or more to act for the others.55 With the full knowledge and consent of the opposite party, a party to the contract may act as his agent, but not otherwise.56 The same party may act as the agent of two or more parties to the contract with their full knowledge and consent, although their interests are adverse.57 Such knowledge and consent must be clearly shown.58 An auctioneer is the seller's agent until the goods are knocked down. He then becomes the buyer's agent also, and may sign a memorandum of sale as such to bind him.59 But this signing must 51. James v. Patton, 6 N. Y. 9; Vielie v. Osgood, 8 Barb. (N. Y.) 130; Davis v. Shields, 26 Wend. (N. Y.) 341. See Canneries Co. v. Scatena, 117 Cal. 447; Coon v. Rigden, 4 Col. 275, 282. 52. Usher v. Daniels, 73 N. H. 206; 1 Mechem on Sales, § 452. "The agent, to make a signature, must be some third person. Neither of the contracting parties can be agent for the other. A signature by the vendor or purchaser, of the name of the other, is not a sufficient signing. Wright v. Dannah, 2 Camp. 203; Rayner v. Linthorne, 2 C. & P. 124; Sharman v. Brandt, L. R. 6 Q. B. 720; Bent v. Cobb, 75 Mass. (9 Gray) 397." Johnson & Miller v. Buck, 35 N. J. L. (6 Vroom) 338, 342. 53. Hawkins v. Chace, 36 Mass. (19 Pick.) 502; McLean v. Dunn, 4 Bing. 722; Soames v. Spencer, 1 D. & R. 32; 1 Mechem on Sales, § 453. 54. Griffiths Co. v. Humber, 2 Q. B. 414. 55. Tompkins v. Sheehan, 158 N. Y. 617; 1 Mechem on Sales, § 454. 56. Carmack v. Masterson, 3 S. & P. (Ala.) 411; Ijams v. Hoffman, 1 Md. 423, 435; Sewall v. Fitch, 8 Cow. (N. Y.) 215; Wilson v. Lewiston Mills Co., 150 N. Y. 314; Entz v. Mills, 1 McMul. (S. C.) 453; Meadows v. Meadows, 3 McC. (S. C.) 458; Bamber v. Savage, 52 Wis. 110; 1 Mechem on Sales, § 452; Benjamin on Sales, § 265; Cathcart v. Keirnaghan, 5 Strob. 129; Sharman v. Brandt, L. R. 6 Q. B. 720. 57. 1 Mechem on Sales, § 459. 58. Murphy v. Boese, L. R. 10 Ex. 126. 59. Adams v. McMillan, 7 Port. (Ala.) 73; Craig v. Godfroy, 1 Cal. 415; Nichols v. Johnson, 10 Conn. 192, 199; O'Sullivan v. Overton, 56 Conn. 102; Doty v. Wilder, 15 Ill. 407; Hart v. Woods, 7 Blackf. (Ind.) 568; Thomas v. Kerr, 66 Ky. (3 Bush.) 619; Gill v. Hewett, 70 Ky. (7 Bush.) 10; Tobacco Co. v. Terrill, 76 Ky. (13 Bush.) 463; Pike v. Balch, 38 Me. 302; O'Donnell v. Leeman, 43 Me. 158; Davis v. Rowell, 19 Mass. (2 Pick.) 64; Morton V. Dean, 54 Mass. (13 Met.) 385; Bent v. Cobb, 75 Mass. (9 Gray) 397; Sanborn v. Chamberlin, 101 Mass. be done by the auctioneer or his clerk at the time and place the bid is accepted and not after the sale. An auctioneer selling his own goods cannot act as the buyer's agent, except with his full 409; Kelly v. Holbrook, 191 Mass. 565; Johnson v. Buck, 35 N. J. L. 338; McComb v. Wright, 4 Johns. Ch. (N. Y.) 659; Baptist Church v. Bigelow, 16 Wend. (N. Y.) 28; Pugh v. Chesseldine, 11 Ohio, 109; Walker v. Herring, 62 Va. (21 Gratt.) 678; Brent v. Green, 33 Va. (6 Leigh) 16; Harvey v. Stevens, 43 Vt. 653; Farebrother v. Simmons, 5 B. & Ald. 333; Hinde v. Whitehouse, 7 East, 538, 558; White v. Proctor, 4 Taunt. 209; 1 Mechem on Sales, § 461; Benjamin on Sales, §§ 268, 270. The signature of an auctioneer to a memorandum of a sale by him is a sufficient signing as he is the agent of both parties. O'Sullivan v. Overton, 56 Conn. 102. personal "In sales of property, the auctioneer, as between the vendor and purchaser, is the agent of both parties. In an action by either against the other, the sig nature of the defendant's name made by the auctioneer at the time of the sale, is a sufficient signing within the statute. Emmerson V. Helis, 2 Taunt. 38; White V. Procter, 4 Taunt. 209; Mews v. Carr, 1 H. & N. 484; Kemys v. Procter, 3 V. & B. 57; McComb v. Wright, 4 Johns. Ch. (N. Y.) 659; First Baptist Church v. Bigelow, 16 Wend. (N. Y.) 28; Davis v. Rowell, 19 Mass. (2 Pick.) 64; Morton v. Dean, 54 Mass. (13 Met.) 385." Johnson & Miller v. Buck, 35 N. J. L. (6 Vroom) 338, 341-2. 60. McBrayer v. Cohen, 92 Ky. 479; Alna v. Plummer, 4 Me. (4 Greenl.) 258; Batchelder v. Libbey, 66 N. H. 175; McComb v. Wright, 4 Johns. Ch. (N. Y.) 659, 663; Price v. Durin, 56 Barb. 647; Harvey V. Stevens, 43 Vt. 653; Smith v. Jones, 30 Va. (7 Leigh) 165. 66 The memorandum may be signed 61 at any time subsequent to the formation of the contract, at least before action brought. Browne on Statute of Frauds, § 352a, and cases cited; Lerned v. Wannemacher, 9 Allen, 412, 416; Sanborn V. Chamberlin, 101 Mass. 409, 416." This rule applies to a contract and memorandum made by an agent during his agency. Also when the agent is an auctioneer within the scope and duration of his agency. While an auctioneer is the agent of both seller and buyer for signing the contract, his agency is not co-extensive in its nature and duration for both. His agency for the seller covers a time both before and after the sale and a memorandum signed by him will bind the seller; but his agency for the buyer begins when the hammer falls and must be exercised contemporaneously with the sale. White v. Manufacturing Co., 179 Mass. 427, 432. See Gill v. Bicknell, 56 Mass. (2 Cush.) 355; Morrison v. Browne, 191 Mass. 65. "In a suit in the name of an auctioneer against a purchaser to recover the price of the goods, the signing of the purchaser's name by the clerk of the auctioneer, upon the successful bid being announced, is a sufficient signing within the statute. Bird v. Boulter, 4 B. & Ad. 443; Durrell v. Evans, 1 H. & C. 174, 188; Gill v. Bicknell, 56 Mass. (2 Cush.) 355, 358." Johnson & Miller v. Buck, 35 N. J. L. (6 Vroom) 338, 342. 61. Smith v. Arnold, 5 Mason (U. S. C. C.) 414; Bent v. Cobb, 75 Mass. (9 Gray) 397; Tull v. David, 45 Mo. 444; Johnson v. Buck, 35 N. J. L. 338; Farebrother v. Simmons, 5 B. & Ald. 333. "Where the brings the suit auctioneer himself a signing by him of the name of the defendant is insuffi 63 62 67 knowledge and consent." His clerk, however, may act as the agent of both parties. A broker may sign as the agent of the buyer as well as the seller with his full knowledge and consent, and his signature will bind both parties;64 but not otherwise.65 A broker is his employer's agent solely until the bargain is closed; he then becomes the agent of the other party also,66 as well as when the adverse party recognizes his agency for both, or ratifies what he does as such.68 A broker may be a special agent and not authorized to sign for both, or a mere intermediary unauthorized to sign for either.70 A broker's "bought and sold notes" may be a sufficient writing," as are his entries in his books. A material variance between the sold note and the bought note will invalidate them. A broker's agency may be revoked at any time before signing," but not afterward.75 73 69 A partner, acting within the scope of the partnership, is the agent of his copartners to sign a memorandum.76 An agent may cient. Farebrother v. Simons, 5 B. & Ald. 333. But the reason of this disqualification to be the agent of the purchaser, for the purpose of signing, does not apply to the clerk of the auctioneer." Johnson & Miller v. Buck, 35 N. J. L. (6 Vroom) 338, 342. 62. 1 Mechem on Sales, § 462. 63. Gill v. Bicknell, 56 Mass. (2 Cush.) 355; Johnson v. Buck, 35 N. J. L. 338, 342; Frost v. Hill, 3 Wend. (N. Y.) 386; Bird v. Boulter, 4 B. & Ad. 443. "When the bids are announced, and the property struck off, the clerk is the agent of both parties to record the sales and affix the signature of the purchasers, although he is employed to act as a clerk by the auctioneer." Johnson & Miller v. Buck, 35 N. J. L. (6 Vroom) 338, 342. 64. Butler v. Thompson, 92 U. S. 412; Coddington V. Goddard, 82 Mass. (16 Gray) 436; Newberry v. Wall, 84 N. Y. 576; 1 Mechem on Sales, 463; Benjamin on Sales, § 273. 65. 1 Mechem on Sales, § 463. 66. Coddington V. Goddard, 82 Mass. (16 Gray) 436; 1 Mechem on Sales, § 464. 67. Bacon v. Eccles, 43 Wis. 227. 68. Remick v. Sandford, 118 Mass. 102; Newberry v. Wall, 84 N. Y. 576. 69. Coddington v. Goddard, 82 Mass. (16 Gray) 436; Remick V. Sandford, 118 Mass. 102. 70. Aguirre v. Allen, 10 Barb. (N. Y.) 74; Benjamin on Sales, § 466. 71. 1 Mechem on Sales, §§ 467, 468; Benjamin on Sales, § 276. 72. Bacon v. Eccles, 43 Wis. 227; 1 Mechem on Sales, § 469. 73. Canterberry v. Miller, 76 Ill. 355; Suydam v. Clark, 2 Sand. (N. Y.) 133; Peltier v. Collins, 3 Wend. (N. Y.) 459; Calkins v. Falk, 1 Abb. App. Dec. 291; Bacon v. Eccles, 43 Wis. 227, 241; Butters v. Glass, 31 U. C. Q. B. 379. 74. Farmer v. Robinson, 2 Camp. 339, note; Warwick v. Slade, 3 Camp. 127; 1 Mechem on Sales, § 470. 75. 1 Mechem on Sales, § 470. By usage in England, a sale by an agent to an undisclosed buyer may be avoided by the principal within a reasonable time after receiving the sale note, if dissatisfied with the buyer's financial responsibility. Hodgson v. Davies, 2 Camp. 530. 76. Canneries Co. v. Scatena, 117 Cal. 447. 80 78 77 sign through another acting in his presence and by his direction," but not if the agency be a personal one. An agent's signature as a witness is not sufficient," but he must sign as agent. The proper way for an agent to sign is to write his principal's name, followed by his own as agent, but he may sign only his principal's name, or his own name only, in full or in part or by his initials only. The signature, as in the case of the principal's signing, may be in any part of the memorandum,84 in the absence of express provisions to the contrary. 83 81 85 82 SUBJECT MATTER OF CONTRACT. Section 5. Existing and Future Goods.-(1.) The goods which form the subject of a contract to sell may be either existing goods owned or possessed by the seller or goods to be manufactured or acquired by the seller after the making of the contract to sell, in this Act called "future goods." (2.) There may be a contract to sell, goods, the acquisition of which by the seller depends upon a contingency which may or may not happen. (3.) Where the parties purport to effect a present sale of future goods, the agreement operates as a contract to sell the goods. DEFINITION." Goods' includes all chattels personal other 77. McBrayer v. Cohen, 92 Ky. 479; Williams v. Woods, 16 Md. 220; Gill v. Bicknell, 56 Mass. (2 Cush.) 355; Batchelder v. Libbey, 66 N. H. 175; McComb v. Wright, 4 Johns. Ch. 659. 78. Henderson v. Barnewall, 1 Y. & J. (Eng.) 387. 79. Gosbell v. Archer, 2 Ad. & El. 500; 1 Mechem on Sales, § 458; Benjamin on Sales, § 272. 80. 1 Mechem on Sales, § 455. 81. Hawkins v. Chace, 36 Mass. (19 Pick.) 502; Hunter v. Giddings, 97 Mass. 41; Clason v. Bailey, 14 Johns. (N. Y.) 484. Contra: Simpson v. Com., 89 Ky. 412. 82. Huntington v. Knox, 61 Mass. (7 Cush.) 371; Stowell v. Eldred, 39 Wis. 614; Wiener v. Whipple, 53 Wis. 298; Trueman v. Loder, 11 Ad. & El. 589, 594; Higgins v. Senior, 8 M. & W. 834, 840. 83. Salmon Falls Manufacturing Co. v. Goddard, 55 U. S. (14 How.) 447. 84. Salmon Falls Manufacturing Co. v. Goddard, 55 U. S. (14 How.) 447; Penniman V. Hartshorn, 13 Mass. 87; Hawkins v. Chace, 36 Mass. (19 Pick.) 502; Morton v. Dean, 54 Mass. (13 Met.) 385; Fessenden v. Mussey, 65 Mass. (11 Cush.) 127; Coddington v. Goddard, 82 Mass. (16 Gray) 436; New England Meat Co. v. Standard Worsted Co., 165 Mass. 328; Merritt v. Clason, 12 Johns. (N. Y.) 102; Clason v. Bailey, 14 Johns. (N. Y.) 484. 85. In re Clifford, 2 Sawy. (U. S. |