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Price. The original statute did not apply to every sale of goods, but only to those contracts in which the price should be 10 pounds Sterling or upwards. The majority of statutes enacted in this country apply only when the price is $50 or more, but others vary as to the amount, from that of Florida, which applies to every contract, to that of Ohio, which applies only when the price is $2,500 or more.
To bring a contract within the Statute it is not essential that the price of any one thing be so great as the amount fixed by the Statute, or that a price so great as that amount be expressly stated in the agreement. It is sufficient if the amount required to be paid by the terms of any one contract is greater than the amount stated in the Statute. As illustration,54 one Allard showed samples of women's hats to Greasert and told him the price per dozen, or per piece, thereof and from these the latter made up an order for goods. The procedure was that Allard showed each sample in turn and Greasert either passed it by or ordered one or more like it. No one hat was priced at more than $3.00 and no type of hat was ordered in quantity of more than $24.00 worth. The sum total of the order came to more than the amount named in the Statute. The court held, on trial of the case, that the transaction did not constitute a series of contracts for each hat or each type of hat, but that the entire transaction was one single contract for all the hats at the total price.56
Minn. 299, 101 Am. St. 411, buyer to cut; Crosby V. Wadsworth, 6 East 601.
Not an interest in land. Kreisle V. Wilson, Tex. 148 S. W. 1132, buyer to cut.
54—Allard v. Greasert, 61 N. Y. 1; citing and following Baldey v. Parker, 2 B. & C. 41.
55–Accord, Cooke v. Millard, 65 N. Y. 352, order for various kinds
and sizes of lumber given orally at one time; Gilman v. Hill, 36 N. H. 311; Standard Wall Paper Co. v. Towns, 72 N. H. 324; Brown v. Snider, 126 Mich. 198, “The authorities cited undoubtedly establish the proposition that because a separate price was agreed upon for each article of merchandise, or because some of the articles pur. chased were to be delivered at one time and some at another, it would not follow that the transaction was not a single transaction, constitut. ing but one contract."
Even if the total amount to be paid under the contract is not known at the time it is entered into, the agreement must be in writing if events ultimately fix the price at more than the statutory amount. Thus, a contract for the sale of all flax to be raised on certain land at $5.00 per ton was held to need a writing in view of the fact that over 20 tons were actually raised. 56
The great difficulty in these cases is to know when a transaction constitutes one single contract and when it amounts to several related, but distinct, contracts. There appear to be no decisions bearing upon that point where the amount of the price has been the one particular point involved. There are, however, a number of illuminating opinions upon the matter of single or several contracts raised by the question of what delivery and acceptance will suffice to make a contract enforcible despite absence of a writing. To avoid duplication of discussion they are not cited in this place, but reference is made to the discussion under that topic.
2. MEMORANDUM REQUIRED BY THE STATUTE,
The writing required by the Statute is some note or memorandum of the bargain, signed by the parties to be charged or their agents thereunto lawfully authorized.
Character of the Memorandum. It is immaterial when the writing is made, so long as it represents the terms of the real agreement.57
No formality in the written instrument is required. Any kind of a writing which sufficiently sets out the terms of the contract and is properly signed is sufficient. Even a telegram is sufficient as a writing-although the original copy, signed by the party in person, is not produced.58
56—Brown v. Sanborn, 21 Minn. 402; Bowman v. Conn. 8 Ind. 58,
following Watts v. Friend, 10 B. & C. 446; Carpenter v. Galloway, 73 Ind. 418.
57—Emery v. Boston Terminal Co., 178 Mass. 172, 86 Am. St. 473, dictum.
Purpose of the Memorandum.—The purpose for which the writing was made is likewise immaterial. Thus, a memorandum made by a party solely for his own use and never shown to the other party is sufficient if the other party learns of it in time to compel its production in evidence. “There is no evidence,” said the court in one
69 “that this note was ever seen by the appellee (plaintiff) 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.
* The Statute was passed to prevent the defendant from suffering loss, upon the parole testimony of either a perjured or mistaken wit
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."160
Even a letter stating that the writer will not be bound by his contract is sufficient if it incidentally sets out the terms of the contract.61 But of course a letter deny
that any contract was ever entered into would not be a memorandum of a contract even though it might set out the terms of an alleged contract.62
58--Brewer v. Harst-Lachmund Co., 127 Cal. 240, 50 L. R. A. 240, annotated; Dunning v. Roberts, 35 Barb. (N. Y.) 463.
Minute book, The Argus Co. v. Mayor, etc., 55 N. Y. 495.
Letter by defendant to a third person, Marks v. Cowdin, 226 N. Y. 138.
59—Drury v. Young, 58 Md. 546, 42 Am. Rep. 343.
60—Accord, The Argus Co. v. Mayor, etc., 55 N. Y. 495, minutes of a meeting; Johnson v. Dodgson, 2 M. & W. 653.
61–Drury v. Young, 58 Md. 546, 42 Am. Rep. 343.
62—Wilson v. Lewiston Mill Co., 150 N. Y. 314, 55 Am. St. 630.
Signature. The Statute requires that the memorandum be signed by the party to be charged or by his agent. Even a memorandum made entirely in the handwriting of the party to be charged is not sufficient if not signed by him.63
The signature, however, need not be at the end of the memorandum.64
Neither need it be the full name of the party to be charged. The function of the signature required by the Statute is undoubtedly for the verification of the writing and “signed" has therefore been given its broad literal meaning, to make a distinguishing mark, or manifestation. “It is hardly necessary to add that the signature is valid and binding, though made with the initials of the party only."165 A letter signed with only the Christian name of the writer has been held sufficient as a written memorandum. 66
Oontra, Wilkinson V. Heavenrich, 58 Mich. 574, 55 Am. Rep. 708.
64–Drury v. Young, 50 Md. 542, 42 Am. Rep. 343; Merritt v. Clason, 12 Johns. (N. Y.) 102, 7 Am. Dec. 286.
But the statutes of some states require the memorandum to be "subscribed.”
63-Selby v. Selby, 3 Meriv. 2; Watson v. Winston, (Tex.) 43 S. W.852; Copehart v. Hale, 6 W. Va. 547; Newby v. Rogers, 40 Ind. 9, even a writing signed by the plaintiff and produced from the custody of the defendant is not sufficient. “When the statute speaks of the party to be charged' it must be understood to mean the defendant to the action. The note or memorandum must be signed by him."
It is not necessary that it be signed by both parties, Newby V. Rogers, 40 Ind. 9; First Presby. terian Church v. Swanson, 100 III. Ap. 39; Bowers V. Whitney, 88 Minn. 168; Bristol v. Mente, 80 N. Y. S. 52, 178 N. Y. 599; Dennis Simmons Co. v. Corey, 140 N. C. 462, 6 L. R. A. (n. s.) 468; Williams v. Robinson, 73 Me. 186, 40 Am. Rep. 352; Knapp v. Beach, 52 Ind. Ap. 573.
65—Sanborn v. Flagler, 9 Allen (Mass.) 474; Salmon Falls Mfg. Co. v. Goddard, 14 How. 446.
66—Walker v. Walker, 175 Mass. 349.
Cf. Zann v. Haller, 71 Ind. 136, 36 Am. Rep. 193.
Defendant's "Mark" is sufficient. Foye v. Patch, 132 Mass. 405; Symbols, Brown v. Butcher's Bk., 6 Hill (N. Y.) 443, 41 Am. Dec. 755, indorsement on a negotiable in. strument.
The character and medium with which the signing is done is also not material. Thus it is a sufficient signing although the signature be made with a pencil,67 or by means of a rubber stamp.68
As the purpose of the signed writing is to show that the particular contract alleged was made by the particular defendant it is fair to assume that the primary purpose of the signature is to connect the defendant with the writing. Theoretically, therefore, the signature should have some characteristic as a signature-distinct from a name—by which to identify the signer. It should be his own chirography, for instance, or that characteristic of his agent. Practically, however, it is not at all essential that the signature be characteristic of the defendant beyond the fact that it is his name. A signature made by a rubber stamp, for instance, even though affixed by an agent, is held to supply the requirements of the Statute, without any indication in the decisions that it should be a facsimile of the party's own handwriting:69 Likewise, a name printed by means of a typewriter has been held a sufficient “signing” of the instrument, although it was certainly in no way inherently characteristic of the party to be charged." Courts have even gone so far as to hold that the name of a party printed on a paper prior to the making of the contract afterward evidenced by the paper is a sufficient “signing." In
67—Merritt v. Clason, 12 Johns. (N. Y.) 102, 7 Am. Dec. 286; 14 Johns. (N. Y.) 484; Myers v. Vanderbelt, 84 Pa. 510.
68—Streff v. Colteaux, 64 Ill. Ap. 179; Deep River Bank's App., 73 Conn. 341.
69—Deep River Bank's App., 73 Conn. 341; Streff v. Colteaux, 64 Ill. Ap. 179, “It is ordinarily the act of making a paper one's own that is important, rather than the manner of so doing."
70-Landecker v. Bank, 130 N.
Y. S. 780; Garton Toy Co. v. Buswell Lumber Co., 150 Wis. 341.
71–Goldowitz v. Kupfer & Co., 141 N. Y. 531, name printed at bottom of a circular containing the terms of a contract alleged to have been made afterward; Hamilton v. State, 103 Ind. 96, name of prosecuting attorney printed at bottom of a blank form on which an indictment was later written held a signature.
The fact that the signature was made before the contract was