tractor to sustain one on the new agreement.? An accepted performance of the new agreement, however, is a good defence to an action on the original contract by way of accord and satisfaction; and on principle, the mutual rescission of the contract, although oral, should be equally effective.1

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3

66. Physical Requisites of the Memorandum. - While the note must be a writing, the statute is satisfied if the words are written with a lead pencil," or are printed, and the writing may consist in part of abbreviations, conventional signs, or initials. The statute does not require a formal instrument, nor a single document. The memorandum may be made up of several pieces of writing, if all are signed by the party to be charged; or if all were physically connected when any one was so signed; or if the signed writing refers to and identifies the unsigned papers.10 English courts have declared that signed and unsigned documents relating to the same transaction may be connected by oral evidence." Where the memorandum is in duplicate and each part is signed by one of the parties,12 or where the paper signed by each is the complement of the other and the two are delivered at the same time,13 they are to be

1 Noble v. Ward, L. R. 1 Exch. 117; 2 ib. 135 (1867). But see Macpherson v. Warner, 9 T. L. R. 397 (1893); 9 Law Quar. Rev. 366.

2 Clark v. Fey, 121 N. Y. 470 (1890); Burdick's Cases on Sales, 70; Warren v. A. B. Mayer Mnfg. Co., 161 Mo. 112; 61 S. W. 644 (1901); Reid v. Diamond Plate Glass Co., 85 Fed. 193; 29 C. C. A. 110 (1898). 'Moore v. Campbell, 10 Exch. 323 (1854); Burdick's Cases on Sales, 73 n.; Long v. Hartwell, 34 N. J. L. 116 (1870).

• Blackburn on Sales (2d ed.), 118, 119.

Clason v. Bailey, 14 Johns. 484; Burdick's Cases on Sales, 73.

• Saunderson v. Jackson, 2 B. & P. 238 (1800).

Phillimore v. Barry, 1 Camp. 513 (1808); Brewer v. Horst-Lachmund Co., 127 Cal. 643; 60 Pac. 418; 50 L. R. A. 240 (1900); Barry v. Coombe, 1 Pet. 640 (1828); New England, etc. Co. v. Standard Worsted Co., 165 Mass. 328; 43 N. E. 112 (1896); Phillips v. Cornelius (Miss.), 28 So. 871 (1900). 8 Thayer v. Luce, 22 Ohio St. 62 (1871).

77.

Tallman v. Franklin, 14 N. Y. 584 (1856).

10 Brown v. Whipple, 58 N. H. 229 (1877); Burdick's Cases on Sales,

1 Oliver v. Hunting, 44 Ch. D. 205 (1890); Burdick's Cases on Sales, 80; Pearce v. Gardner (1897), 1 Q. B. 688; 66 L. J. Q. B. 467. But see Potter v. Peters, 72 L. T. R. 624 (1895).

12 Lerned v. Wannemacher, 9 Allen, 412 (1864).

13 Peabody v. Speyers, 56 N. Y. 230 (1874).

construed as though they were a single instrument. A written offer signed by the party to be charged satisfies the statute, although the acceptance by the other party is oral, and although the acceptance is not concurrent with the tender of the offer.2 The statute in some States requires the writing to be signed by both parties.3

67. Contents of the Memorandum. - The statutory requirement of a written note has for its purpose the prevention of mistakes or falsehoods as to the terms of the bargain. It seems clear, therefore, that the writing should contain all of the terms. It should identify the parties and show the relationship of seller and buyer; it should identify the property bargained for; 5 and it should specify the price and terms of payment, if these have been fixed by the parties, as well as all the terms of the contract. Upon the first and second points there is substantial agreement. The only difference of opinion relates to the question whether, if the writing does not disclose the seller, parol evidence is admissible to clear up this ambiguity by showing which party was the owner of the property when the bargain was made."

1 Cameron Coal & Coke Co. v. Universal M. Co., 26 Okla. 615; 110 Pac. 720 (1910).

'Sanborn v. Flagler, 9 Allen, 474 (1864); Reuss v. Picksley, L. R. 1 Ex. 342 (1866). Contra, Coe v. Tough, 116 N. Y. 273 (1889).

Spence v. Apley (Neb.), 94 N. W. 109 (1903), applying ch. 73, § 74 of Comp. St. of Neb.

Kingsley v. Siebrecht, 92 Me. 23; 42 At. 249; 69 Am. St. R. 486 (1898). Plaintiff sued for the purchase price of a lease, and defendant pleaded the Statute of Frauds. The court held that although the terms of the lease were not set out in the correspondence between the parties, yet as the lease was identified in the correspondence, it should be taken with the letters, and in connection with them it made a perfect memorandum. Reigart v. Coal & Coke Co., 217 Mo. 142; 117 S. W. 61 (1908); Crosby v. Bouchard, 82 Vt. 66; 71 At. 835 (1909). If time of delivery is agreed upon, this must be inserted in the memorandum. American Iron & Steel Mfg. Co. v. Midland Steel Co., 101 Fed. 200 (1900).

Waterman v. Meigs, 4 Cush. (Mass.) 497 (1849); Doherty v. Hill, 144 Mass. 465 (1887); Macdonald v. Longbottom, 1 E. & E. 977 (1860). Newell v. Radford, L. R. 3 C. P. 52 (1867); Burdick's Cases on Sales, 83; Frank v. Eltringham, 65 Miss. 281 (1887); Burdick's Cases on Sales, 85. Such evidence appears to have for its sole object putting the court into the position of the parties when the informal and hasty memorandum was made, and, therefore, to be admissible. See Oglesby Grocery Co. v. Williams Mfg. Co. (Ga.), 37 S. 372 (1900).

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68. Statement of Price. It is generally agreed that a memorandum is defective which does not state the price when that has been fixed by the parties; but whether the writing must contain all of the promises of the buyer and seller, or need contain only those of the party to be charged, is a question upon which the courts differ. In England it seems to be unsettled. It is affected to some extent in this country by statutory provisions that the consideration must be stated, or that it need not be stated, in the memorandum.3 The prevailing view is, however, that the writing must contain all of the terms of the sale agreement, and that agreement must constitute a valid contract.5

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69. Intent with which made. The memorandum need not be written with a view to satisfy the statute. It will bind the party signing it if it is put to any use by him, for example, if he directs his book-keeper to lay it in the safe, or if he communicates it to a third party," or if he employs it as a repudiation of his obligation under the oral agreement, or as a request for release therefrom, or if he embodies it in a pleading. It is sometimes said that "an entry on the defendant's own private books never communicated to any one" will suffice.10 The cases cited do not bear out the statement, and the true doctrine seems to be that the memorandum must have been communicated to the plaintiff or to some third person."

1 Smith v. Stanton, 15 Vt. 685 (1843); Reid v. Diamond Plate-Glass Co., 85 Fed. 193 (1898). Contra, Ellis v. Bray, 79 Mo. 227 (1883). * 1 Law Quar. Rev. 20; Campbell on Sales (2d ed.), 317, 318.

Hayes v. Jackson, 159 Mass. 451; 34 N. E. 683 (1893); Kingsley v. Siebrecht, 92 Me. 23; 42 At. 249; 69 Am. St. R. 486 (1898); Reid v. Diamond Plate Glass Co., 85 Fed. 193 (1898).

Bacon v. Eccles, 43 Wis. 227 (1877); McMullen v. Helberg, L. R. 6 Ir. 463 (1880); Browne, Statute of Frauds (5th ed.), §§ 371, 384. Redus v. Holcombe (Miss.), 27 So. 524 (1900).

86.

Drury v. Young, 58 Md. 546 (1882); Burdick's Cases on Sales,

7 Moore v. Mountcastle, 61 Mo. 424 (1875).

8 Buxton v. Rust, L. R. 7 Exch. 279 (1872); Bailey v. Sweeting, 9 C. B. N. 8. 843; 30 L. J. C. P. 150 (1861); Burdick's Cases on Sales, 88.

Jones v. Lloyd, 117 Ill. 597 (1886).

10 Benjamin on Sales, Bennett's note (7th ed.), 222.

11 1 Law Quar. Rev. 19, and cases cited; Burdick's Cases on Sales, Appendix, 761; Remington v. Linthicum, 14 Pet. 84, 93 (1840).

70. The Signature. This need not be at the end of the writing, unless subscription is expressly required, as formerly in New York. It may be at the top or in the body of the note; it may be by initials or by a mark, and it may be printed or written, provided it is shown to have been "intended to relate and refer to, and in fact does relate to, every part of the instrument." The signature may be written before the memorandum is complete, and even before any part of it has been committed to paper; but in such a case the blanks must be filled up by an authorized agent, or the signature must be adopted as governing the completed instrument. It is not necessary that the signature be made for the purpose of satisfying the statute. The signer may intend not to be bound, or he may attach his name simply as a verification of the correctness of a record which contains the memorandum as one of its items.5 The signatures of both parties are not required, except in a few States. It is enough that the note is signed by the party to be charged. The memorandum is not the contract, but only evidence of its terms.6

71. Signature by Agent.

The statute treats a memorandum signed by a duly authorized agent as equally binding on the principal with one bearing his personal signature. It will not be necessary to discuss the principles of Agency applicable to this provision. A brief statement of the rules on this point will suffice. An agent authorized to make a contract of sale is authorized to bind his principal by a proper memorandum 3 if made during his agency. The signature of such an agent

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1 James v. Patten, 6 N. Y. 9 (1851). The present statute does not require subscription. L. 1911, ch. 571, § 85 (1).

2 Caton v. Caton, L. R. 2 H. L. 127, 143 (1867).

Stewart v. Eddows, L. R. 9 C. P. 311 (1874); Burdick's Cases on Sales, 90; Ulen v. Kittredge, 7 Mass. 233 (1810); cf. Blackburn on Sales (2d ed.), 70.

Johnson v. Dodgson, 2 M. & W. 653 (1837).

5 Jones v. Victoria Graving Dock Co., 2 Q. B. D. 314 (1877).

Justice v. Lang, 42 N. Y. 493 (1870). Contra, Wilkinson v. Heaven

rich, 58 Mich. 574; 55 Am. R. 708 (1886).

'Huffcut on Agency (1st ed.), §§ 26, 111-114, 120–124.

Murphy v. Boese, L. R. 10 Exch. 126 (1875); Burdick's Cases on Sales, 91.

• Elliot v. Barrett, 144 Mass. 256 (1887).

may be treated as that of his undisclosed principal,1 except for the purpose of discharging himself. An auctioneer is the authorized agent of both parties to make a memorandum at the time of the sale, but he cannot make it at a later time on behalf of the purchaser without special authority.3

72. Brokers' Notes. A broker who negotiates an oral sale contract has apparent authority to make a memorandum on behalf of both buyer and seller. Unless required by statute, custom, or agreement, this need not be made in any particular place or form. It is said that in England "a precise and accurate broker, when he has made a contract, reduces the terms to writing, and delivers to each party a copy signed by him. The copy delivered to the seller is commonly called the sold note; that which he delivers to the buyer is generally called the bought note. Besides these, he makes an entry in his book."5

73. Broker's Entry is generally a Memorandum only. - The broker's entry in writing may be more than a statutory memorandum; it may be a contract in writing, as when made in the presence of both parties and assented to by them as the contract. Ordinarily his writing is a memorandum only." If he makes a book entry, and delivers bought and sold notes, and all are of the same tenor, and conform to the terms of the oral agreement, no difficulty ensues. Even though he makes no book entry, if the bought and sold notes agree, and are retained by the principals, there is no difficulty, for they furnish satisfactory evidence of the terms of the original contract, or they prove that the parties have assented to the new terms therein stated.' 1 Williams v. Bacon, 2 Gray (68 Mass.), 387 (1854); Kingsley v. Siebrecht, 92 Me. 23; 42 At. 249; 69 Am. St. R. 486 (1898).

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2 Calder v. Dobell, L. R. 6 C. P. 486, 496, 497 (1871).

'Mews v. Carr, 1 H. & C. 484 (1856); Horton v. McCarty, 53 Me. 394 (1866); Price v. Durin, 56 Barb. 647 (1868); Kennell v. Boyer, 144 Ia. 303; 122 N. W. 491 (1909).

92.

Richey v. Garvey, 10 Irish Law Reports, 544 (1847).

Blackburn on Sales (2d Eng. ed.), p. 84.

• Durrell v. Evans, 1 H. & C. 174 (1862).

Ankeny v. Young Bros., 52 Wash. 235; 100 Pac. 736 (1909).

Chapman v. Partridge, 5 Esp. 256 (1804); Burdick's Cases on Sales,

• Goom v. Aflalo, 6 B. & C. 117 (1826); Burdick's Cases on Sales, 93; Thornton v. Charles, 9 M. & W. 802 (1842).