which had been partly performed by the delivery and payment for the original 10,000 bags of sugar, I believe the dismissal of the complaint was erroneous, and that the judgment appealed from should be reversed, with costs, and a new trial granted.

LAUGHLIN, J., concurs.39

SECTION 6.-THE NOTE OR MEMORANDUM

MORIN v. MARTZ et al.

(Supreme Court of Minnesota, 1868. 13 Minn. 191 [Gil. 180].)

This action was brought in the Court of Common Pleas of Ramsey County, to recover damages for the non-performance of a contract for the sale and delivery of wheat. Issue was joined, and the cause tried before the court, without a jury, who found for the plaintiff, and judgment was entered in his favor. From this judgment defendant appeals to this court. As the only question discussed in this court was whether the contract was within the "statute of frauds," and the contract is set out, at length in the opinion, no further statement is necessary.

BERRY, J.

"St. Paul, April 27, 1866.

"We, the undersigned parties, have sold this day to Mr. H. Morin, of St. Paul, four thousand (4,000) bushels of No. 1 wheat, at one dollar and ten cents per bushel, ($1.10,) to be delivered and shipped on board of boat at Strait Landing, two thousand (2,000) bushels to be shipped on or before the fifteenth (15th) day of March, 1866, and the balance to be shipped during the balance of said month.

"[Signed]

Frank Martz. "Michael Simmer.”

This action is brought to recover damages for a failure to deliver and ship the wheat mentioned in the foregoing instrument according to the terms thereof. Section 3, c. 50, Pub. St., provides that "every contract for the sale of any goods, chattels, or things in action, for the price of $50, or more, shall be void, unless a note or memorandum of such contract be made in writing and subscribed by the parties to be charged therewith."

The defendants contend that the instrument above recited does not satisfy the requirements of the statute, because it is subscribed by the vendors only, and that the complaint is insufficient, because, although alleging that a memorandum of the contract of sale was made in writ

39 Affirmed without opinion 226 N. Y. 644, 123 N. E. 862.

ing, and duly subscribed by defendants, it does not allege that it was signed by all the parties to such contract. But the construction, which has quite uniformly been put upon the statute of frauds, is otherwise. In Clason v. Bailey, 14 Johns. (N. Y.) 487, Chancellor Kent says: "It is sufficient, if the agreement be signed by the party to be charged. It appears to me that this is the result of the weight of the authority both in the courts of law and equity." See also the opinion of Senator Verplanck, in Davis v. Shields, 26 Wend. (N. Y.) 362.

The statute of frauds was enacted in the reign of Charles II, nearly 200 years since, and the same construction placed upon this portion of it by Chancellor Kent has been adopted with a remarkable approach to unanimity, not only in England, but in this country. Prof. Parsons says: "And it is now quite settled that the agreement need not be signed by both parties, but only by him who is to be charged by it." 3 Parsons, Cont. (5th Ed.) 9, and numerous authorities cited; Fenly v. Stewart, 5 Sandf. (N. Y.) 101; Old Colony R. Co. v. Evans, 6 Gray (Mass.) 25, 66 Am. Dec. 394; Browne, St. Frauds, § 365; 1 Smith, Lead. Cas. 466. It will also appear, from the authorities cited, that the language, "who is to be charged by it," is held equivalent to the language, "who is to be charged by it in the suit," or "against whom it is sought to be enforced."

It is urged in this case that the use of the plural word "parties" is significant when read by the light of other portions of the same statute, in which the singular word "party" is made use of, and that it is fair to infer that the legislature intended to comprehend in the term "parties" all the parties to the contract. In Clason v. Bailey, 14 Johns. (N. Y.) 490, Chancellor Kent adverts to this point, saying: "There is a slight variation in the statute respecting agreements concerning the sale of lands, and agreements concerning the sale of chattels, inasmuch as the one section (being the fourth section of the English and the eleventh section of our statute) speaks of the party, and the other section (being the seventeenth of the English and the fifteenth of ours) speaks of the parties to be charged. But I do not find from the cases that this variation has produced any difference in the decisions. The construction as to the point under consideration has been uniformly the same in both cases.'

It would seem, then, that by a strong and united current of authority, the signification of the words "parties to be charged therewith," or of words equivalent, in the statute of frauds, has been settled by adjudications reaching over a very long period of time. These words have acquired a meaning which it was not absolutely necessary to give them in the first instance; a meaning which has been frequently regretted by courts, but nevertheless a meaning settled and established by long usage. There is no practical, rational way of determining the meaning and definition of words and phrases, except by inquiring in what sense they are usually employed in the connection in which they WOODW.SALES (2D ED.)-48

are found. And following this course we are of opinion that the legislature must have intended to use and must have used the words "parties to be charged therewith" in the sense in which they have generally been used and understood in like cases.

We hold, therefore, that the subscribing of the note or memorandum of the contract in this case by the vendors alone was a sufficient subscription, under the statute, in an action brought against them. Judgment affirmed.

DRURY et al. v. YOUNG.

(Court of Appeals of Maryland, 1882. 58 Md. 546, 42 Am. Rep. 343.) Action by William H. H. Young for non-delivery of twenty-five hundred cases of tomatoes. Verdict and judgment for the plaintiff. The defendants appealed.40

STONE, J. One of the questions presented for our consideration in this case is, whether the "note or memorandum in writing" required by the seventeenth section of the statute of frauds, must be delivered to the other party thereto. It is apparent from the evidence that the note or memorandum in writing relied on in this case, was made by the bookkeeper of the appellants by the direction of one of them, and by the bookkeeper placed in their safe, among other papers, where it remained from the 27th of August, 1881, the day on which it was written, until it was produced in court, at the trial of the case in February, 1882. There is no evidence that this note was ever seen by the appellee, or even its existence known to him until the trial; and it certainly never was delivered to him, or went out of the possession of the appellants, until produced in court.

It is strongly insisted by the appellants that the statute is not gratified without a delivery of this note or memorandum. It must be borne in mind that the statute of frauds was not enacted for cases where the parties have signed a written contract; for in these cases, the common law affords quite a sufficient guarantee against frauds and perjuries, as is provided by the statute. The intent of the statute was to prevent the enforcement of parul contracts, unless the defendant could be shown to have executed the alleged contract by partial performance, or unless his signature to some written note or memorandum of the bargain-not to the bargain itself, could be shown.

The existence of the note or memorandum presupposes an antecedent contract by parol, of which the writing is a note or memorandum. Benjamin on Sales, sec. 208.

Now the statute itself is entirely silent on the question of the delivery of the note or memorandum of the bargain, and its literal requirements are fulfilled by the existence of the note or memorandum

40 Substituted statement. The facts sufficiently appear in the opinion. Part of the opinion is omitted.

of the bargain, signed by the party to be charged thereby. The statute itself deals exclusively with the existence and not with the custody of

the paper.

If the non-delivery of the note, does not violate the letter of the statute, would it violate its spirit and be liable to any of the mischiefs which the statute was made to prevent?

The statute was passed to prevent fraud practiced through the instrumentality of perjury. It was passed to prevent the defendant from suffering loss, upon the parol testimony of either a perjured or mistaken witness, speaking of a bargain different from the one in fact made. It made the defendant only liable when a note or memorandum of the bargain signed by himself was produced at the trial.

If produced from the defendant's own custody, it guards against the mischief that the statute was passed to prevent, just as well as if produced from the custody of the plaintiff. The plaintiff is the one likely to suffer by leaving the evidence of his bargain in the hands of the defendant-not the defendant himself.

The statute of frauds is an English statute, and in the absence of any express adjudication of our own court, we naturally look to the English courts as the best expounders of their own statute, and gather from them the principles which should guide us in construing it.

In the case of Gibson v. Holland, 1 Law Reports, C. P. 1, the only note or memorandum of the bargain was a letter addressed by the defendant to his own agent; the court decided that to be sufficient, and Erle, C. J., in delivering his opinion, said:

"But the objection relied on is, that the note or memorandum of that contract, was a note passing between the defendant, the party sought to be charged, and his own agent, and not between the one contracting party and the other."

"The object of the statute of frauds, was the prevention of perjury in the setting up of contracts by parol evidence, which is easily fabricated. With this view, it requires the contract to be proved, by the production of some note or memorandum in writing. Now, a note or memorandum is equally corroborative, whether it passes between the parties to the contract themselves, or between one of them and his own agent. Indeed, one would incline to think that a statement made by the party to his own agent, woud be the more satisfactory evidence of the two."

In Johnson v. Dodgson, 2 Meeson & Welsby, 653, the defendant made the note of the sale in his own book, and got the agent of the plaintiff to sign it, and the defendant retained the book in his own possession.

It was held by the court, that the note or memorandum was sufficient, and the plaintiff recovered. No notice appears to have been taken by the court in their opinion, of the fact that the memorandum had not been delivered, but had been retained possession of by the defendant. But in the argument of the case, counsel of defendant

said: "Suppose the defendant had simply made a memorandum in his own book, that on such a day the plaintiff sold to him; would that be sufficient?" To which Parke, J., replied, "If he meant it to be a memorandum of a contract between the parties, it would."

From these authorities, and the reasons upon which they were decided, we are of opinion. that delivery is not essential to the validity of the note or memorandum of sale.

The next question which arises is, whether the note or memorandum in this case, is signed by the defendant? The note is in these words: "Office of Drury, Ijams & Rankin, Wholesale and Retail Grocers, and Dealers in Flour, Feed and Fertilizers, Cor. Gay and High Streets. E. T. Drury, W. H. Ijams, Jr., S. M. Rankin, Jr. Baltimore, Aug. 27th, 1881. Sold W. H. H. Young & Co., 2,500 cans, say 5,000 doz. C. C. C. tomatoes, @ $1.10 pr. doz. cash; cars at Phila. Depot, Balto., Md. 5,000 dozen, @ $1.10c., $5,500.00." It appears that all the words, preceding the words, "Baltimore, August 27th, 1881," were printed, and that the printed part was a letter head, and the written portion under the heading. The names of the defendants being in print, and at the beginning of the note, the question is, whether it is a sufficient signing?

It is entirely immaterial in what part of the instrument the name of the party to be charged appears, if it is put there by him, or by his authority. Higdon v. Thomas, 1 Har. & G., 152.41

This decision of our court settles the question that the place of the signature in the memorandum is immaterial, and the English cases are equally emphatic, that the name may as well be printed as written, if the printed name is adopted by the party to be charged.

In Schneider v. Norris, 2 Maule & Selwyn, 286, Lord Ellenborough decided, that the appropriation and recognition of a printed name was sufficient.

It is therefore a sufficient signing, if the name be in print, and in any part of the instrument, provided that the name is recognized and appropriated by the party to be his. The note or memorandum in this case upon its face, contains all the necessary terms of a complete bargain.

The names of the vendors and purchasers, the quantity and quality of the goods contracted for, the price at which they were sold, and the terms of sale, and the place of delivery, are all clearly expressed therein, and make a sufficiently good memorandum required by the stat

ute.

* * *

Judgment affirmed.42

41 What if the defendant wrote the plaintiff's order on an order blank which did not bear his own name, but did bear, in printed form, the name of his predecessor in business? See Joseph Galin Co. v. Newhouse, 110 Misc. Rep. 680, 180 N. Y. Supp. 812 (1920), and note, 29 Yale Law J. 932.

42 Under statutes requiring the memorandum to be "subscribed," it is held that the signature must be at the end of the writing. See Coon v. Rigden, 4 Colo. 275 (1878); Davis v. Shields, 26 Wend. (N. Y.) 341 (1841).