§ 510. For a valid ratification it is necessary that the person who ratifies the contract should have been in existence at its date; (h) and further, that he should be the person in whose name the agent has professed to act. (i) Thus, where the pretended agent professed to contract in writing on behalf of a married woman, it was held that the husband could not ratify the contract, as he had not been named as a principal.(j) § 511. It is now clearly decided that, at sales by auction, auctioneers are agents of the purchaser as well as of the vendor.(k) This conclusion seems to have been arrived at from the necessity of the case, and the peculiar nature of the mode of sale. (7) "The nature of the proceeding by auction," said Lord Langdale, M. R., (m) "the bidding for the purpose of making the purchase, the necessity of making a statement of the bidding, the direction to the auctioneer to write down the bidding, which is perhaps involved in the very process of bidding, and some other circumstances afford intelligible ground for the decision in Emmerson v. Heelis, (n) and the approbation which has since been bestowed upon it." Where this necessity does not exist, as in a subsequent purchase in private from the auctioneer, no such agency arises. (o)' But where, after an unsuccessful (h) Kelner v. Baxter, L. R. 2 C. P., 174; Scott v. Lord Ebury, id., 255; Melhado v. Porto Allegre Railway Co., L. R. 9 C. P., 503. (i) Wilson_v. Tumman, 6 Man. & Gr.. 236; per Parke, J., in Vere v. Ashby, 10 B. & C., 298. (j) Saunderson v. Griffiths, 5 B. & C., 909; and see Brook v. Hook, L R. 6 Ex., 89. (k) Emmerson v. Heelis, 2 Taunt., 38; White v. Proctor, 4 id., 209; Kemeys v. Proctor, 3 V. & B., 57; 8. C., 1 J. & W.,350; Buckmaster v. Harrop, 7 Ves., 341; S. C., 13 id, 456; Ken worthy v. Schofield, 2 B & C., 945; Edgell v. Day, L. R. 1 C P., 80, 84; cf. Bartlett v. Purnell. 4 A. & E, 792. (1) Gosbell v. Archer, 2 A. & E., 500; Earl of Glengal v. Barnard, 1 Ke, 788; affirmed in D. P. as Lord Glengal v. Thynne, St. Leon. Law of Prop., 56. (m) In Earl of Glengal v. Barnard, 1 Ke., 788 (n) 2 Taunt., 38. (0) Mews v. Carr, 1 H. & N., 484. structions given to counsel, for the preparing of writings, material, since, after they were drawn and engrossed, the parties might refuse to execute them." But an entirely different view of a very similar case, and more in conformity with Dundass v. Dutens, was expressed, in this country, by Mr. Justice Story, in Jenkins v. Eldridge, 3 Story, 291. There, it was said that, where instructions are given and preparations made for marriage settlements, and the woman is persuaded by the man to marry, trusting to his verbal promise to complete them, equity ought to relieve and compel performance. And this note or entry on his account of sales, if the sale, the price, and the purchaser's name, are contained in it, is a sufficient note in writing of the agreement, signed by a person thereto authorized by the purchaser, within the meaning of the Statute of Frauds. Smith v. Jones, 7 Leigh, 165; Episcopal Church of Macon v. Wiley, 2 Hill. Ch., 584; M'Comb v. Wright, 4 John. Ch., 659. And signing by the purchaser, in person, at an auction sale, is not requisite. Bleecker v. Franklin, 2 E D. Smith, 93. But to render an auctioneer's entry of sale at auction a compliance with the Statute of Frauds, he must be an sale by auction, but before the auctioneer had left the rostrum, a purchaser ascertained from the auctioneer's clerk the amount of the reserved bidding, and agreed to take the property at that price, and signed a bidding paper for it, but subsequently denied the authority of the auctioneer to act as the vendors' agent, it was held impossible for him to contend that the sale ought not to be treated as one by auction.(p)' (p) Else v. Barnard, 28 Beav., 228. authorized public auctioneer. The validity of an entry in an auctioneer's book applies equally to sales of real estate and personal property. Anderson v. Chick, 1 Bailey's Ch., 118. Thus, in Bailey v. Leroy, 2 Edw. Ch., 514, a person purchased by parol, of the successful bidder at an auction sale of real estate, his right under the bid, the terms of which were evidenced by the auctioneer's certificate, and upon a bill by the assignee for a specific performance of the contract, a plea of the statute of frauds was overruled. In New York, the validity of auction sales is regulated by statute. And "whenever goods shall be sold at public auction, and the auctioneer shall, at the time of sale, enter, in a sale book, a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale, within the meaning of the last section." Rev. Stat., pt. 2, ch. 9, tit. 2, § 4. The statute requiring that these contracts should be actually signed by the party to be charged therewith, or by his agent, a written memorandum of the terms of a sale made by a broker employed by both parties, although containing the names of both parties to the sale, in the body of the memorandum, was held to be insufficient under the statute. Dennison v. Carrahan, 1 E. D. Smith (N. Y.), 144. A commissioner appointed by the court is likewise the agent of both parties; and a memorandum made by him of the sale is a sufficient memorandum in writing. Jenkins v. Hogg, 2 Const Rep., 821. The same remark applies also to masters in chancery. Gordon v. Sims, 2 McCord, 154. Public sale; signature by auctioneer.] Story, J., in Smith v. Arnold, 5 Mason, 414, said: "It appears to me, speaking with all due respect, to have done much to destroy the salutary operation of the Statute of Frauds. By the common law, if an agent is to execute a deed for his principal, his authority must be of a high nature. It must be by deed. By analogy, it would have seemed convenient, if not indispensable, to have held that where the statute to prevent frauds and perjuries required a contract to be in writing, if executed by an agent his authority should be in writing also. That the auctioneer is agent of the seller is clear. That he is also the agent of the buyer is not very clear, and is a conclusion founded on somewhat artificial reasoning. But the doctrine is now established, and the best reason in support of it is, that he is deemed a disinterested person, having no motive to mistate the bargain, and enjoying equally the confidence of the parties.' See, also, Macomb v. Wright, 4 John.'s Ch., 659; Hinds v. Whitehouse, 7 East, 558; Shansfield v. Johnson, 1 Esp., 101; Walker v. Constable, 1 Bos. & Bell, 306; Cordon v. Sims, McCord's Ch., 161; Adams v. McMillin, 7 Portor, 73; Anderson v. Chick, Bailey's Eq., 118; Endicot v. Perry, 14 Sm. & Marsh., 157; White v. Crew, 16 Ga., 416; White v. Watkins, 23 Me., 423; Simon v. Motivos, 3 Burr., 1921; Gill v. Bicknell, 2 Cush., 358; Hart v. Woods, 7 Blackf., 568. The memorandum made by the auctioneer must, in plain terms, refer to the conditions of the sale, and must state all the material terms of the agreement. Morton v. Dean, 13 Metc., 385; Kenworthy v. Schofield, 2 B. & C., 945; Nichols v. Johnson, 10 Conn., 192; Davis v. Shields, 26 Wend., 341; Meyer v. Adrian, 77 N. C., 83; Pinckney v. Hagadorn, 1 Duer, 89. § 512. In order to prove that the auctioneer on a sale by auction was the vendor's agent, it is only necessary to prove by whose instructions he acted;(9) and it seems that after the hammer has fallen the vendor is not entitled to revoke the authority of the auctioneer, although, at the time when the vendor seeks to revoke it, no written contract has been signed. (r) § 513. As an agent may not, without express authority, delegate his authority to another, an auctioneer cannot without permission appoint another to conduct the sale, (s) and, for the same reason, the clerks of agents are not agents for the principal, unless the principal has assented to their acting as such. (t) The auctioneer's clerk at an auction will be held to have been the purchaser's agent for the purpose of entering his name at the time of the sale in a book, (u) if it can be shown that the purchaser, by word, sign or otherwise, authorized the making of such entry: and even in the absence of any proof of such authority, there appears to be general custom investing the auctioneer's clerk with it. (v)' § 514. In one case, a solicitor employed in a marriagetreaty, who drew up a minute of the arrangement came to at an interview, was held not to be an agent lawfully authorized to bind the parties, so as to make the insertion of their names in the minute a signature within the statute;(w) nor has a solicitor, instructed on behalf of one of the parties to prepare a formal contract, authority to act as his client's 59. (q) Consider Pike v. Wilson, 1 Jur. (N. S.), (r) Day v. Wells, 30 Beav., 220. See further, as to the auctioneer's authority, McMullen v. Helberg, I. R. 6 C. L., 465; Brett v. Clowser, 5 C. P. D., 386. (8) Dart, Vend. (5th ed.), 178. (t) Coles v Trecothick, 9 Ves., 234. Cf. Bird v. Boulter, 4 B. & Ad., 443. (u) As to what such entries must contain, see Rishton v. Whatmore, 8 Ch. D., 467; infra, $525. (v) Bird v. Boulter, 4 B. & Ad., 443; Pierce v. Corf, L. R. 9 Q. B, 210. (w) Earl of Glengal v. Barnard, 1 Ke., 769; affirmed in D. P. as Lord Glengal v. Thynne, St. Leon. Law of Prop., 56. See, also, De Biel v. Thomson, 3 Beav, 469; Hammersley v. De Biel, 12 Cl. & Fin., 45. 1 An auctioneer's clerk may thus enter the names of the purchasers in a book, and it is immaterial whether he be appointed by the agent of the vendor or the auctioneer to make the sale. Smith v. Jones, 7 Leigh, 165. Auctioneer's clerk, signature by.] An auctioneer's clerk cannot sign for his employer. This was held in a case where the clerk signed, not having specially obtained authority, and there was no proof of assent. Meadows v. Meadows, 3 McCord, 458; Enty v. Mills, 1 McMull., 453; Cristie v. Simpson, 1 Rich., 407; Carmack v. Masterson, 3 Stew. & Port., 411; Rice v. Durin, 56 Barb., 647. Where the auctioneer has made a proper entry on the day of sale, and the same has been adjourned, he need not repeat the entry on the adjourned day. Price v. Durrin, 56 Barb., 647. agent for the purpose of signing any memorandum or note of the contract within the statute.(x) § 515. A telegraph clerk despatching a message from written instructions of the party sought to be charged has been held the agent of such party for the purpose of signing his name in the telegraphic message.(y) § 516. The authority of an agent may be revoked at any time before the authority is acted upon, and such revocation may be proved by parol.(z) But where the agent has been habitually employed in that capacity, and so held out by the principal, the latter will be bound by his acts if within the scope of his former authority, until reasonable notice has been given of its revocation. (a) § 517. The death of the principal works an instant revocation of an agent's authority, and any contract made by the agent after, though without notice of the death, is void. (b) § 518. The question of agency is one of fact, and comes accordingly under the rules now applicable to such questions. (c) In former times the court of chancery has directed an issue to try the question of agency.(d)' § 519. It follows from what has already been said that letters passing between the parties themselves, or between the party sought to be charged and some third party, even including amongst such third parties the writer's own agent, may in many cases be used for the purpose of completing or supplying such evidence of the contract as the statute requires. It may be convenient to consider these cases under the following heads, viz.: (1) where there is an unsigned writing containing all the terms of the contract, and the letters are adduced as incorporating that writing, and furnish (x) Smith v. Webster, 3 Ch. D., 49. See, too, Forster v. Rowland, 7 H. & N., 103. Distinguish Jolliffe v. Blumberg, 18 W. R., 784. (y) Godwin v. Francis, L. R 5 C. P, 295. (2) Vynior's Case, 8 Co., 82;| Manser v. Back, 6 Ha., 443. (a) Trueman v. Loder, 11 A. & E., 589; Ex parte Swan, 7 C. B. (N. S.), 400, 432 But an agent for sale of goods whose authority has been revoked cannot validly pledge the goods even to persons who have no notice or means of knowing of the revocation; see Fuentes v. Montis, L. R. 3 C. P., 268; S. C., L. R. 4 C. P., 93 (b) Watson v. King, 4 Camp., 272; Smout v. Ilbery, 10 M. & W., 1; Carr v. Livingston, 35 Beav., 41. (c) See Orl. XXXVI, rr. 3, 6, 26, 27. 1 An agreement may, of course, be signed by an agent; but, not only must such agent be authorized to complete the transaction, it must likewise be evident either that his general powers are amply sufficient, or that he was especially appointed to effect the contract in question; and where the manner of execution has been prescribed, he is as much incapacitated from deviating from the terms of his authority, as he is of transcending the limits assigned him. Fraser v. McPherson, 3 Dessau., 393; Mackay v. Moore, Dudley, 94. ing the signature of one or both of the parties; (2) where the principal writing is incomplete in one or more of its terms, and the letters are referred to to supplement the defect; and (3) where they are adduced as themselves constituting the contract and the written evidence of it.' § 520. (1) In order to make a contract binding under the Statute of Frauds, it is not necessary that it should be all contained in one paper, signed by the party to be charged; but the terms of the contract may be contained in one paper, and the signature may be found in some other paper, provided that such second paper refer to the paper which does contain the terms. (e) § 521. For the ascertainment and identification of the actual paper referred to, parol evidence is admissible :(ƒ) for the one paper cannot be physically contained in the other paper. In the same way, in the case of a bequest in a will, the thing given and the person to whom it is given must be mentioned in the instrument, but the actual identification of the thing and the person must, from the nature of the case, be dehors the instrument, and, therefore, a matter of parol evidence.(g)3 (e) Allen v. Bennet, 3 Taunt., 169; Ridgway v. Wharton, 3 De G. M. & G., 6:7; S. C., 6 H. L. C., 238. See, also, per Lord Eldon in Coles v. Trecothick, 9 Ves., 250; Gaston v. Frankum, 2 De G. & Sm., 561; Powell v. Dillon, 2 Ball. & B., 416; Long v. Millar, 4 C. P. D., 450. Where the terms of the contract are 1 Barry v. Coombe, 1 Pet., 640; Case v. Worthington, 1 Root, 172. Blair v. Snodgrass, 1 Sneed (Tenn.), 1; Tallman v. 'Franklin, 4 Kern. (N. Y.), 584. 3 In Blair v. Snodgrass, 1 Sneed, 1, it is said that, while a contract for the sale of land may be perfectly valid, under the statute of frauds, in detached writings, that a specific performance will not be decreed, unless the papers can, by reference to each other, be connected without the introduction of parol evidence. It is plainly the law that the precise meaning of the parties must be clearly ascertained from the instrument themselves, to the exclusion of extrinsic evidence; and the decisions upon this point are substantially the same, both at law and in equity. Brettel v. Williams, 4 Excheq., 623; Saunderson v. Jackson, 2 B. & P., 238; Western v. Russell, 3 Ves. & B., 188; Forster v. Hale, 3 Sumn., 696; Allen v. Bennett, 3 Taunt., 169: Ide v. Stanborn, 15 Verm., 685; Toome v. Dauson, Cheves, 68; Parkhurst v. Van Cortland, 1 John.'s Ch., 273. Parol evidence is, however, admissible to identify a written contract. Farwell v. Lowther 18 Ill., 252. Parol promise for the benefit of one who is not a party to the agreement.] An action may be successfully maintained by a third person, one who is not a party to the contract, in a case where a parol promise has been made for his benefit, he having partly performed under it. Crocker v. Higgins, 7 Conn., 342. Reformation of written instrument by parol.] Parol evidence may be given that a mistake has been made in a written agreement, and it may be rectified |