of that case I entirely subscribe, and, in my opinion, it governs the present. The doctrine which was laid down in Clayton v. Andrews, (v) as to executory contracts not being within the statute, was taken from Towers v. Osborne. (w) I will not pretend to say that those cases were not rightly decided upon their particular circumstances. The latter was a mere contract for work and labour; the thing contracted for did not exist at the time. In the former, also, something was required to be done in order to put it in the state in which it was contracted to be sold. But at any rate I am at a loss to discover how this can be called an executory contract for the sale of the goods in question. The thing sold existed in solido at the time of the contract of sale. I am not able to distinguish this case from that of Randeau v. Wyatt; and the grounds and principles of that decision are so amply detailed in the report of it, that it is unnecessary to add any thing more. With respect to this coming within one of the exceptions of the statute on account of the acceptance of the sample; there is no pretence for it, for the case expressly states, that the sample was no part of the goods contracted to be. delivered."

3. OF EARNEST GIVEN TO BIND THE BARGAIN, OR OF PART PAYMENT.] It is observed, (x)" that where part of the price is paid down, if it is but a penny, or any portion of the goods is delivered by way of earnest, it is binding. The thing given as earnest need not be money, but may be any other symbol, as a ring or glove, &c. But to constitute earnest, the thing given should be expressed by the buyer, to be as a token of ratification of the contract. But it seems, that what is termed in Yorkshire striking the bargain with a shilling, that is, for the buyer merely to draw the edge of the shilling over the hand of the vendor; is not sufficient to satisfy the statute of frauds, either as earnest or part payment.

4. OF THE NOTE OR MEMORANDUM SIGNED BY THE PARTIES OR THEIR AGENTS THEREUNTO LAWFULLY AUTHORIZED.] — The note or memorandum required by the statute need not be drawn up in any particular form of words. It may be contained in a letter, or other writing referred to by letter: but in whatever form the writing may be, the contract must be certain, and it must also be signed with the name of the party to be charged therewith, or his agent lawfully authorized; otherwise the contract will be void. (y) Thus, in the case of Egerton v. Matthews and another, (2) which was an action on the case against the defendants for not accepting and paying for certain goods, which they had contracted to purchase by the following memorandum in

(v) Ante, 82.

(w) Ibid.

(r) 2 Bl. Com. 447.

(y) Vide Roberts on the stat. of frauds,

105 to 120.

(z) 6 East. 307.

writing: "We agree to give Mr. Egerton 19d. per pound for 30 bales of Smyrna cotton, customary allowance, cash 3 per cent. as soon as our certificate is complete. (Signed) Matthews and Turnbull, and dated 2d of Sept. 1803." At the trial, before Lord Ellenborough Ch. J. it was objected on the authority of Wain v. Warlters, (a) that the contract. being altogether executory, and no consideration appearing on the face of the writing for the promise, nor any mutuality in the engagement, it was void by the statute of frauds. And it not being at the time adverted to that the case cited turned upon the meaning of the word agreement (i. e. to pay the debt of another) in the 4th clause of the statute, and that this case was governed altogether by the 17th clause, the object and wording of which is different, and which has not the word agreement, the plaintiff was nonsuited. But on a motion for setting aside the nonsuit, when the attention of the court was called to the difference of the two clauses, Lord Ellenborough, on granting a rule nisi, expressed his assent to the distinction between the two cases, and said, that the nonsuit had proceeded upon a mistake at the trial in supposing that they were the same. And, at a subsequent day, on showing cause against the rule, the Court determined that the case did not come within the statute, though the contract was not signed by the seller. And his lordship observed, "that the words of the statute were satisfied if there were some note or memorandum in writing of the bargain signed by the parties to be charged by such contract." And this was a memorandum of the bargain, or at least of so much of it as was sufficient to bind the parties to be charged therewith, and whose signatures to it is all that the statute requires." So, where an order was given for a quantity of goods, and a bill of parcels with the vendor's name printed thereon delivered at the same time to the buyer, a subsequent letter written and signed by the vendor, referring to the order, was connected with the bill of parcels, so as to raise a sufficient contract in writing within the 17th clause of the statute. Thus, in the case of Saunderson v. Jackson and another, (b) which was an action on the case against the defendant for not delivering 1000 gallons of gin to the plaintiff within a certain time, according to a bargain entered into between them. There was a second count for not delivering within a reasonable time. At the trial, the contract for the delivery of the gin having been proved on the part of the plaintiff, the defendants insisted that the case was within the statute of frauds, inasmuch as there was no note or memorandum in writing of the bargain. The circumstances were as follow; At the time the order for the gin was given by the plaintiff to the defendants, a bill of parcels was delivered to the former, the printed part of which was "London.

(a) 5 East, 10. Et vide post, ch. 2. (b) 2 Bos. & Pul. 258. 5 Esp. Rep. 180. S. C. See also Fowle v. Freeman,

9 Ves. jun. 351, Coles v. Trecothick, ibid. 251.

Bought of Jackson and Hankin, distillers, No. 8, Oxford Street," and then followed in writing, "1000 gallons of gin, 1. in 5. gin 7s. 350l." About a month after the above period the defendants also wrote the following letter to the plaintiff, "Sir, we wish to know what time we shall send you a part of your order, and shall be obliged for a little time in delivery of the remainder; must request you to return our pipes. We are, your humble servants, Jackson and Hankin." On this evidence his lordship directed the jury to find a verdict for the plaintiff, reserving the point made for the consideration of the Court. When the case came on for argument, the Court were of opinion, that it was not within the statute: And Lord Eldon Ch. J. said, "This bill of parcels, though not the contract itself, may amount to a note or memorandum of the contract within the meaning of the statute. The single question therefore is, whether if a man be in the habit of printing instead of writing his name, he may not be said to sign by his printed name, as well as his written name? At all events, connecting this bill of parcels with the subsequent letter of the defendants, I think the case is clearly taken out of the statute of frauds. For although it be admitted that the letter which does not state the terms of the agreement would not alone have been sufficient, yet as the jury have connected it with something which does, and the letter is signed by the defendants, there is then a written note or memorandum of the order, which was originally given by the plaintiff, signed by the defendants. It has been decided that if a man draw up an agreement in his own hand writing beginning, “I, A. B. agree, &c.," and leave a place for a signature at the bottom, but never sign it, it may be considered as a note or memorandum in writing within the statute. And yet it is impossible not to see 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. This last case is stronger than the one now before us, and affords an answer to the argument that this bill of parcels was not delivered as a note or memorandum of the contract."

But, a note or memorandum not containing the name of the buyer, and signed by the seller only, is not a sufficient signing within the statute. This was determined in the case of Champion and another v. Plummer (c) which was an action against the defendant for not delivering to the plaintiffs 20 puncheons of treacle bought of him by the plaintiffs, at 378. per hundred, to be delivered on the 10th of December. At the trial, it was proved, that a bargain for the treacle in question was made between the plaintiff's clerk and the defendant, as stated in the declaration, and that the following note was made by the plaintiff's clerk in a common memorandum book, and signed by the defendant as under;

(c) 1 New Rep. 252. 5 Esp. Rep. 240.

H

"Bought of W. Plummer 20 puncheons of treacle, 37'0. to be delivered by 10th December. (Signed) Wm. Plummer, 31st October."

On the part of the defendant it was objected, that this did not amount to a sufficient note or memorandum of the contract within the statute of frauds, as it was not signed by the purchaser; and the plaintiff was nonsuited. And though a rule nisi was afterwards obtained, calling on the defendant to show cause why the nonsuit should not be set aside, and a new trial had, yet the Court ultimately decided in favor of the objection. And Mansfield Ch. J., before whom the cause was tried, observed, "How can that be said to be a contract, which does not state who are the contracting parties? By this note it does not at all appear to whom the goods were sold. It would prove a sale to any other person as well as to the plaintiffs; there cannot be a contract without two parties, and it is customary, in the course of business, to state the name of the purchaser as well as of the seller, in every bill of parcels. This note does not appear to me to amount to any note or memorandum in writing of a bargain." And of this opinion were the other judges; and accordingly the rule was discharged. So, in Cooper v. Smith, (d) it was determined, that a memorandum of sale made by the seller's order in his own book, but without any signature, does not take the case out of the statute. But, in Allen v. Burnet, (e) the Court held, that an order for goods written and signed by the agent of the seller, in a book of the buyer, may be connected with a letter of the seller to his agent, mentioning the name of the buyer, and with a letter of the buyer to the seller, claiming performance of the order so as to constitute a complete contract within the statute.

OF THE SIGNING BY AN AGENT THEREUNTO LAWFULLY AUTHORIZED.] The agent here mentioned must be a person unconnected with the contract; and therefore one of the contracting parties cannot be an agent for the other, to satisfy the words of the statute. Thus, in the case of Wright v. Darmah, (f) where one of the contracting parties wrote a memorandum of the transactions, and signed it in the presence and with the approbation of the other. It was held, that he could not by so doing be considered as the agent of the other. The authority given to an agent to sign a contract for the sale of goods, within this clause of the statute, need not be in writing; but a parol appointment is sufficient; (g) and such appointment need not be given with a view to a particular transaction, but generally to act as agent in negotiating and transacting business in the way of trade and merchandize. (h) This au

thority however, like all others of a similar nature, may be revoked at any time pending the contract, and before it is signed. (i)

A broker who is employed to sell goods, and agrees for the sale of them, and gives to the buyer and seller respectively a copy of the sale notes, he is to be considered as agent for both parties; and his original note is sufficient to satisfy the statute of frauds. Thus, in the case of Rucker v. Cammeyer, (k) which was an action of assumpsit to recover the price of ten hogsheads of sugar sold by the plaintiff to the defendant; and the facts were, that the plaintiff having a quantity of sugars to sell, samples were sent (as is usual) to the plaintiff's broker, which, together with other samples of different sugars, were exposed to sale, and the defendant examined the samples, and fixed on those for which the action was brought; and he asked the broker from whence the sugars had come, and was answered," that they came from the north-from Scotland." He asked the price, and was told 63s. per cwt. The broker said further, that he afterwards brought the plaintiff and defendant together, when he supposed the bargain was concluded, as he soon after received orders from the plaintiff to make out sale-notes of ten hogsheads to the defendant at 63s. per cwt. These sale-notes, he said, contained the price and quantity of the sugar sold, and that one of them was usually given to the buyer, and the other to the seller. The plaintiff, he said, had his note from him, and the defendant had sent for his, which was delivered to him; soon afterwards the defendant sent back part of the sugar, saying that he had contracted for new sugars, but that these were old. He said, that at the time of the sale the defendant made no inquiry whether the sugars were new or old. At the trial the counsel for the defendant objected, that this contract was within the statute of frauds; and said, that the broker being the agent of Rucker the plaintiff only, and there being no note in writing on the part of the defendant, either by himself or any agent authorised by him, nor proof of any direct and immediate contract of sale with him; that it therefore was void under the statute for want of a note in writing.

Lord Kenyon Ch. J. said, “That it was of great importance not to break in on any decision which had taken place on the statute of frauds, and cited the case of Simon v. Motivos, as ruling the present case. He said that the broker must be considered as the agent of both parties, and need not be constituted by writing, but that in this case he had in fact given the defendant a note in writing when he gave him the sale-note, which he had accepted."

So, in the case of a sale of goods by public auction, the auctioneer, after knocking down the hammer, is considered as agent for the buyer, and his setting down the name of the buyer, and the price, &c. in writ

(1) 2 Campb. 339. in notis.

(4) 1 Esp. Rep. 105. Et vide Chapman

v. Partridge, 5 Esp. 256. Hinde v. Waterhouse, 7 East Rep. 599.