ancillary to it, the evidence by which the fact is to be established, if the memorandum contains all the essential features of the contract, its external form is of little importance. The agreement itself, with all its technical phraseology and binding clauses, need not be spread out in the form of a legal instrument; the statute is satisfied, if all its constituent terms can be gathered from a writing or writings properly signed, and not from oral testimony resting in the memory of witnesses. It is not, of course, within the design of the present volume to enter into any general discussion of the statute of frauds. It will be enough to state and explain the rules which have a direct and practical application to the equitable remedy of specific performance. I shall consider the written memorandum required by the statute under three principal heads: 1. The mode of executing it. 2. The external form. 3. Its contents.

SEC. 73. I. How the memorandum should be executed.-The original statute, as copied in certain states, requires that the memorandum shall be "signed" by the "party" to be charged therewith, or by his agent thereunto duly authorized. The rule is settled, though with some conflict of opinion upon certain points, that wherever this language is used, the name, if intended to be a signature, and to authenticate the instrument, and not written for some other specific purpose, may be placed in any part of the memorandum, at the beginning, or in the body of it, as well as at the end. (1) The agreement may be written

(1) Ogilvie v. Foljambe, 3 Mer. 53, where a letter commencing: "Mr. Foljambe presents his compliments," etc., was held to be a memorandum, duly signed. Propert v. Parker, 1 R. & Myl. 625, where a memorandum, written by A., began: “A. has agreed ;" Bleakley v. Smith, 11 Sim. 150, the memorandum written by A. began: "B. agreed with A.,” etc.; Barkworth v. Young, 4 Drew, 1, an affidavit made by a party was held a sufficient memorandum; Western v. Russell, 3 V. & B. 187; Morison v. Turnour, 18 Ves. 175; Penniman v. Hartshorn, 13 Mass. 87; Hawkins v. Chace, 19 Pick. 502; Yerby v. Grigsby, 9 Leigh. 387; McConnell v. Brillhart, 17 Ill. 354; Johnson v. Dodge, 17 I. 433; Higdon v. Thomas, 1 Har. & Gill, 139; Barry v. Coombe, 1 Pet. 640. The English law, as to signing, is discussed and determined in the late case of Caton v. Caton, L. R. 2 H. L. 127. This case decided that, though it is not necessary that the signature of a party should, within the statute of frauds, which requires the memorandum to be “signed,” be placed in any particular part of a written instrument, it is necessary that it should be so introduced as to govern or authenticate every material and operative part of the instrument. Where, therefore, the name of the party against whom specific performance was sought to be enforced, appeared in different parts of the paper, but only in such a way that in every case it merely referred to the particular part where it was found, and that part was in the form of reference or description, and not of promise or undertaking; Held, the writing was not a memorandum sufficiently signed, under the statute.

on a paper which already contains the name, if the writing is intended to be a memorandum and the name to be a signature.(1) The delivery of the memorandum indicates an intention that the name written in it should have the effect of a signature. (2) There is some apparent conflict at least among the decisions on the question, how far the party must have intended the writing of his name to be a signing of the memorandum. In certain cases the memorandum was held to have been duly signed, although the name did not appear to have been written with such intent.(3) Other cases, involving similar facts, have been otherwise decided upon the evident inten

The facts were briefly as follows: C., proposing to marry Mrs. H., who had property of her own, verbally agreed to settle her property on her in such way that she should have a certain income from it during his life, and the whole absolutely on his death. To carry out this agreement, he wrote out the paper in question, beginning thus: "In the event of a marriage between the undermentioned parties, the following conditions, as the basis of a marriage settlement, are mutually agreed upon." Then followed several clauses, each beginning in this form:"C. to do so and so; H. to have so and so;" but there was no subscription or signing by either party. The settlement was not made, and C. died afterwards, leaving a will, by which he bequeathed nearly all the property which he had received from his wife to his own relatives. His widow, as shown above, failed in her attempt to enforce the agreement against her husband's legatees. It will be difficult, in my opinion, to reconcile a considerable number of former cases with this decision. And, granting that the general principle laid down by the court is undoubtedly true, it is difficult to see its application to the writing in question. It would seem that, by a fair and reasonable construction, each clause in the form of "C. to do so and so with the property, and H. to have such and such rights over it," was something more than a mere "reference or description," and was plainly a "promise or undertaking," on the part of C. The decision of this case certainly worked the greatest injustice to the widow, who had plainly been the victim of a deliberate swindle throughout the whole transaction.

(1) Wise v. Ray, 3 Green (Ia), 430; McConnell v. Brillhart, 17 Ill. 354; Bluck v. Gompertz, 7 Exch. 862, per POLLOCK, C. B.: "We think that words introduced into a paper signed by a party, or an alteration in it, may be authenticated by a signature already on the paper, if it is plain that they were meant to be so authenticated. The act of signing after the introduction of the words is not absolutely necessary.”

(2) Johnson v. Brook, 31 Miss. 17.

(3) Saunderson v. Jackson, 2 B. & P. 239, where a party wrote his name at the beginning and left a place for his signature at the end, from which it was inferred "that the insertion of the name at the beginning was not intended to be a signature, and that the paper was meant to be incomplete until it was further signed," and still the name was held to be a good signature; and see Knight v. Crockford, 1 Esp. 190. And where the party or person to be bound signs the writing as a witness, his signature has been held sufficient in Welford v. Beazely, 3 Atk. 503 ; Coles v. Trecothick, 9 Ves. 234, 251.

tion of the party that his name should not be a signature.(1). This conflict is, however, not real. In the first group of cases the writing showed an intention of the person to be bound; his name clearly appeared either at the beginning of the instrument, or at the bottom of it, and there was nothing else appearing on the face of the writing to which the name could be referred, except to its being the signature. In other words, the intention to sign the memorandum was legally inferred, and could not be defeated by any speculation as to the motives of the party. In the other group of cases the intention not to sign was clearly indicated by the form and terms of the instrument. Whenever the party's name is inserted in the body of the instrument, not as a signature, but for some other special purpose, the memorandum is not duly "signed" as required by the statute.(2) All occasion and possibility of these doubts and nice distinctions have been removed by wise alterations made in the language of many state statutes, which require the memorandum to be "subscribed" by the party, etc. Wherever this form of the provision is found, it is settled. that the signature must be placed at the foot of the instrument, after all the operative part of the writing.(3)

SEC. 74. The signature, how made.-The signing must be effected by actually writing the name, or by writing or affixing something which is designed to take the place of and be equivalent to the name, as a mark made by one who cannot write, or initials.(4) The signature may be in pencil,(5) and even printed. (6) The effect of all the excep

(1) Gosbell v. Archer, 2 A. & E. 500; Hubert v. Treherne, 3 Man. & Gr. 743. (2) Stokes v. Mcore, 1 Cox, 219; Hawkins v. Holmes, 1 P. Wms. 770; Cowie v. Remfry, 10 Jur. 789; Cabot v. Haskins, 3 Pick. 83.

(3) Davis v. Shields, 26 Wend. 341, reversing 24 Wend. 322; Viele v. Osgood, 8 Barb. 130; James v. Patten, 6 N. Y. 9, reversing 8 Barb. 344; Coles v. Bowne, 10 Paige, 526; Champlin v. Parish, 11 Paige, 405.

(4) Selby v. Selby, 3 Mer. 2. A letter began, "My dear Robert," and ended, "Do me the justice to believe me the most affectionate of mothers;" it was held not to be "signed." By initials, see Salmon Falls Mfg. Co. v. Goddard, 14 How. (U. S.) 446.

(5) Lucas v. James, 7 Ha. 410, 419.

(6) Schneider v. Norris, 2 M. & 3. 286; Saunderson v. Jackson, 2 B. & P. 239; Draper v. Pattina, 2 Speers, 292; Merritt v. Clason, 12 Johns. 102; McDowel v. Chambers, 1 Strobh. Eq. 347; Comm. v. Ray, 3 Gray, 447; Lerned v. Wannemache, 9 Allen, 412, 417--Stamping; Pitts v. Beckett, 13 M. & W. 743 ; Boardman v. Spooner, 13 Allen, 353; Schneider v. Norris, 2 M. & S. 2 6. A telegraph message, if signed by the defendant, and full enough to show all the terms of the contract, is a sufficient memorandum; Trevor v. Wood, 36 N. Y. 307; Hazard v. Day, 14 Allen, 487; and to the same effect are the statutes in several states.

tional modes depends upon the intention. If a mark, or initials, or writing the name with a pencil, or printing it, is intended to be a signature, to take the place of a formal writing the name with ink, then the memorandum is "signed" to all intents and purposes.

SEC. 75. By what parties to be signed.-From the language of the provision that the agreement or memorandum thereof shall be signed by the party to be charged therewith, the rule is settled in England, and has been generally followed in this country, that, so far as the statute of frauds affects the contract, a signing by both parties is not necessary, but it is sufficient, if the agreement or memorandum is signed by the party against whom it is enforced, or attempted to be enforced.(1) This rule, which arose from a literal interpretation of

(1) Hatton v. Grey, 5 Vin. Abr. 525, pl. 4; 2 Cas. in Ch. 164; Buckhouse v. Crosby, 2 Eq. Cas. Abr. 32, pl. 44; Coleman v. Upcot, 5 Viņ. Abr. 527, pl. 17; Child v. Comber, 3 Sw. 423, n.; Backhouse v. Mohun, 3 Sw. 434, n.; Seton v. Slade, 7 Ves. 265; Lord Ormond v. Anderson, 2 Ball & B. 363; Fowle v. Freeman, 9 Ves. 351; Western v. Russell, 3 V. & B. 192, per Sir Wм. GRANT; Martin v. Mitchell, 2 J. & W. 413; Flight v. Bolland, 4 Russ. 298; Egerton v. Matthews, 6 East, 307; Allen v. Bennett, 3 Taunt. 169; Laythoarp v. Bryant, 2 Bing. (N. C.) 735; Sweet v. Lee, 3 Man. & Gr. 462 (ed. note); Sutherland v. Briggs, 1 Hare, 34; Clason v. Bailey, 14 Johns. 484; McCrea v. Purmort, 16 Wend. 460; Woodard v. Aspinwall, 3 Sandf. 272; Shirley v. Shirley, 7 Blackf. 452; Rogers v. Saunders, 16 Me. 92; Ives v. Hazard, 4 R. I. 14; Anderson v. Harold, 10 Ohio, 399; Wright v. King, Harring. Ch. 12. When the language was "the party to be charged," Ballard v. Walker, 3 Johns. Cas. 60; Roget v. Merritt, 2 Cai. 117; Gale v. Nixon, 6 Cow. 445; Perkins v. Hadsell, 50 Ill. 217; Estes v. Furlong, 59 Ill. 302; Barstow v. Gray, 3 Greenl. 409; Getchell v. Jewett, 4 Greenl. 350; Morin v. Martz, 13 Minn. 191; Douglass v. Spears, 2 Nott & McC. 207; Palmer v. Scott, 1 Russ. & My. 391; Parish v. Koons, 1 Pars. Eq. Cas. (Pa.) 79; Sams v. Fripp, 10 Rich. Eq. 447; Old Colony R. R. v. Evans, 6 Gray, 25; Barnard v. Lee, 97 Mass. 92; Young v. Paul, 2 Stockt. Ch. 401; Laning v. Cole, 3 Green, Ch. 229; Tripp v. Bishop, 56 Penn. St. 428. Even when the clause reads, "by the parties to be charged," the same rule has been decided in New York, Fenly v. Stewart, 5 Sandf. 101; Justice v. Lang, 42 N. Y. 493. In this case the question was carefully examined and the prior authorities were exhaustively reviewed. See, however, a subsequent decision of the same case, involving the validity of the contract on a question outside the statute; 52 N. Y. 323; 39 Sup. Ct. (7 J. & S.) 283. Under the New York statute of frauds in a contract for sale, etc., of land the memorandum is required to be signed by the party selling, etc. Under this provision it is held sufficient if the memorandum is signed by the vendor, and not by the vendee; and it must be signed by the vendor. Worrall v. Munn, 5 N. Y. 229; Calkins v. Falk, 39 Barb. 620; First Bapt. Ch. of Ithica v. Bigelow, 16 Wend. 28; Bleeker v. Franklin, 2 E. D. Smith, 93. If not signed by the vendor, it cannot be enforced against the vendee. McWhorter v. McMahan, 10 Paige, 386; Champlin v. Parish, 11 Paige, 405; De Beerski v. Paige, 36 N. Y. 537; 47 Barb. 172; Coles v. Bowne, 10 Paige, 526; Vielie v. Osgood, 8 Barb. 130; Townsend v. Hubbard, 4 Hill, 351; Davis v. Shields, 26 Wend. 341. In the following cases a signa

the statutory provision, has some appearance of interfering with the doctrine of mutuality as a feature of contracts outside the statute; and the rule itself has been severely criticised and even rejected by able courts in this country, for the reason that it practically allows a contract to be enforced by one party who could not in turn be held liable upon it at the suit of his adversary, and thus destroys the element of mutuality, which should belong to all agreements which are executory on both sides.(1) It may, perhaps, be sustained upon the following grounds: The statute of frauds does not reach the substance of contracts and render them invalid or valid; it simply furnishes a rule of evidence. Whenever, therefore, any agreement is enforced against a defendant who has signed it by a plaintiff who has not, it cannot be said that the agreement, so far as it purports to bind the plaintiff, is a nullity. In a suit against him the statute does no more than require a certain kind of proof, in case he avails himself of it as a defense. The defense, however, is wholly a personal one; and if he neglects to set it up, the agreement would be established against him notwithstanding the statute. For these reasons, it cannot be said that a memorandum signed by one party alone is so completely wanting in mutuality that no action upon it can be sustained.

SEC. 76. It has been tacitly assumed in the foregoing paragraph and in the rules which it states, that the contract was mutual in its language; that it purported to state the agreements of both the parties, and the only lack of mutuality which could be alleged arose from the fact that it was signed by one party only, so that an action could not be maintained upon it against the other non-signing party. The cases, however, have gone much farther than this. It is settled by the preponderance of authority, although there are some American

ture by the defendant in the suit, generally the vendor was held sufficient. Ewins v. Gordon, 49 N. H. 444 (a bond to convey); Smith & Fleek's Appeal, 69 Pa. St. 474; Vassault v. Edwards, 43 Cal. 458; Rutenberg v. Main, 47 Cal. 213. In McIntire v. Bowden, 61 Me. 153, specific performance of a contract was refused, which was not signed by all the persons named therein as parties. In Slater v. Smith, 117 Mass. 96, a written contract was signed by S. and P. wherein S. agreed to convey certain land to P. A suit for a specific performance by P. and his wife was sustained, although she was not a party to the writing.

(1) See Boys v. Ayerst, 6 Mad. 323, per Sir JOHN LEACH; Lawrenson v. Butler, 1 Sch. & Lef. 13, per Lord REDESDALE; Davis v. Shields, 26 Wend. 362, per VERPLANK, Senator; Justice v. Lang, 2 Robt. 333; Marcus v. Barnard, 4 Robt. 219; Johnson v. Mulry, 4 Robt. 401; Lester v. Jewett, 12 Barb. 502; Boucher v. Van Buskirk, 2 A. K. Marsh. 345; Jones v. Noble, 3 Bush. 694; Geiger v. Green, 4 Gill. 476; Duval v. Meyers, 2 Md. Ch. 401.