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Drury v. Young72 a memorandum was held to be duly signed by the defendant although the instrument had never been delivered to the plaintiff and the defendant's name appeared on it only in the form of a printed letterhead, at the top of the paper.

These cases, although undoubtedly accepted as authority, are scarcely within the rule laid down in McMillen v. Terrell, 73 as follows: “The law does not prescribe the particular place where the obligor's name must be placed; it may be at the beginning, or in the body, at the close or perhaps on the margin of the instrument; but wherever placed, it must be done with the intention of thereby executing it as the obligation of the party so signing it. If the signature is placed at the close, at the ordinary place of signature, the inference is that it was so placed as the final execution of the instrument. This inference, however, does not necessarily arise where the name is found at the commencement or in the body. In such case there should be some evidence, either in the form of the instrument or the circumstances attending the signature, showing that it was the intention of the party thereby to execute it.

The Statute is plain and unequivocal, and should not be evaded by judicial refinement, but should be so administered as to subserve the purpose for which it was enacted.”

-Signing by Agent.—The signing may be done by an agent of the party, as is indicated by many of the cases already discussed. This is in accord with the specific provision of the Statute. It ordinarily appears that the party's own name was signed by the agent-as, for instance, in using a rubber stamp—and such signing is effective whether the agent appends also his own name as agent or not. But a signing by the agent of his own name only, without writing that of his principal, is sufficient to charge the principal if he be otherwise shown by the contract as the person concerned. 74

drawn has been held to be no bar to its effectiveness. Ulen v. Kittredge, 7 Mass. 233; Underwood v. Hossack, 38 Ill. 208.

But contra, Hodgkins v. Bond, 1 N. H. 284.

72–50 Md. 542, 42 Am. Rep. 343. 73–23 Ind. 163,

The party claiming under the contract, however, can not himself be an agent for the party to be charged so as to sign for the latter. 76

Separate Papers.—When the memorandum consists of several separate pieces of paper it is not essential that they all be signed by the party to be charged. It is sufficient if the “memorandum" be signed. That the memorandum” may consist of several sepa

" rate and distinct documents is well settled. There must be some connection between the various unsigned papers and the one on which the signature appears, but this connection may be either physical or through relation of the contents.

As a physical connection it need not be a fixed one. A letter and the envelope in which it was sent, for instance, are sufficiently connected to be used together as constituting the memorandum.76 In another case two documents, neither of which by itself was a sufficient memorandum, were read in connection one with the other

74–Haskell v. Tukesbury, 92 Me. 551, 69 Am. St. 529, quoting from Union Bk. v. Coster, 3 N. Y. 203, 53 Am. Dec. 280, “The provisions of the Statute are complied with if the names of competent contracting parties appear in the writing, and, if the party be an agent, it is not necessary that the name of the principal shall be disclosed in the writing.” Kingsley v. Siebrecht, 92 Me. 23, 69 Am. St. 486; White v. Dahlquist Mfg. Co., 179 Mass. 427; Brodhead v. Reinbold, 200 Pa. 618, 86 Am. St. 735.

son v. Buck, 35 N J. 338, 10 Am. Rep. 243; but inasmuch as one party to the contract can not sign as agent of the other party so as to satisfy the statute, an auction. eer who has himself an interest in the sale can not sign as agent of the other party, Bent v. Cobb, 9 Gray (Mass.) 397, 69 Am. Dec. 295; Tull v. David, 45 Mo. 445, 100 Am. Dec. 385.


An auctioneer may be agent of both parties, so far as signing the memorandum is concerned. John.

75—Witson v. Lewiston Mill Co., 150 N. Y. 314, 55 Am. St. 680; John. son v. Buck, 35 N. J. 338, 10 Am. Rep. 243.

76—Pearce v. Gardner (1897) 1 Q. B. 688.

because they had been pinned together at the time of sale.77 A writing on an unsigned leaf of a book was treated as a sufficient memorandum because of the signature on the leather folder in which it was kept.78

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-Relation of Papers.—When separate documents are allowed to be read together because of the relation of the subject matter, there is generally a specific reference in the signed paper to the unsigned one. This reference, however, need not be specific nor even apparent from a mere reading of the document. It is sufficient if there is in fact a reference when the meaning of the document is explained. 79

Thus, in Beckwith v. Talbot80 a written agreement had been signed by the plaintiff but not by the defendant. But the defendant had signed certain letters in which he several times referred to “the agreement." The court held that there was a memorandum signed by the defendant, saying, “What agreement could he possibly refer to but the only one which, so far as appears, was ever made. * It is undoubtedly a general rule that collateral papers, adduced to supply the defect of signature of a written agreement under the Statute of Frauds, should on their face sufficiently demonstrate their reference to such agreement without the aid of parole proof. But the rule is not absolute. There may be cases in which it would be a violation of reason and common sense to ignore a reference which derives its significance from such proof. If there is ground for any doubt in the matter, the general rule should be enforced. But where



77Tallman v. Franklin, 14 N. Y. 587.

78—Jones v. Joyner, 82 L. T. (n. 8.) 768. See also Jelks v. Barrett, 52 Miss. 315. But compare, Wilstoch v. Heyd, 122 Ind. 574.

79—Willis v. Ellis, 98 Miss. 197; Albion Lumber Co. v. Lowell, 20

Cal. Ap. 782; Leesley Bros. V. Fruit Co., 162 Mo. Ap. 195, no reference by one to the other at all. Allen v. Burnett, 92 S. C. 95; Poel v. Brunswick, etc. Co., 144 N. Y. S. 725, even though the second one purports to be a repudiation of the other.

80—95 U. S. 289.

there is no ground for doubt, its enforcement would aid, instead of discouraging, fraud."181

But to the extent that a reference is necessary, the reference must appear from the document itself. The fact that they do refer to the same subject matter and are in fact supplementary can not be shown by extraneous evidence; the relationship must appear from the face of the documents. “If it be necessary to adduce parole evidence, in order to connect a signed paper with others unsigned, by reason of the absence of any internal evidence in the signed paper to show a reference to, or connection with the unsigned papers, then the several papers taken together do not constitute a memorandum in writing of the bargain, so as to satisfy the statute." 182

This latter statement and the decisions in accord with it are not precisely in harmony with the decision in Beckwith v. Talbot, supra. The difference, however, seems to be less in the law than in the application. The cases are agreed that separate documents can not be used as one memorandum if extraneous evidence is necessary to show their connection.88 On the other hand, it is settled that parole evidence may be received as a means of interpretation of the expressions used in the writing. If, when so explained and interpreted, the language of one document clearly relates to another, that other may be used in connection with it, even though the language when unexplained shows no apparent connection. This is the doctrine of Beckwith v. Talbot. The court allowed the phrase "the agreement” to be explained by parole evidence. When so explained, it clearly related to the other paper, in the opinion of the court.84 The conflict


81–Ryan v. United States, 136 U. S. 68; Little v. Dougherty, 11 Colo. 103; Coe v. Tough, 116 N. Y. 273; Marks v. Cowdin, 226 N. Y. 138.

82—North v. Mendel, 73 Ga. 400, 54 Am. Rep. 879; Smith v. Jones,

66 Ga. 338, 42 Am. Rep. 72.

83—Johnson V. Buck, 35 N. J. 338, 10 Am. Rep. 243; Thayer v. Luce, 22 O. S. 62.

84–Wilkinson v. Taylor Mfg. Co., 67 Miss. 231; Bauman v. James, 3 Ch. 508.

between various decisions is largely due to the lack of any standard as to when the relationship is sufficiently indicated by the language of instruments.

There are many decisions, however, to the effect that no reference by one document to the other is necessary at all if from their contents it can be said that they obviously relate to the same subject matter. In Brewer v. Horst-Lachmund Co.85 the only writing was in the form of two telegrams, neither of which referred to the other and neither of which alone was a sufficient memorandum. The court allowed them to be used together because "on their face, the last one was sent to the plaintiff in response to the first.” Similarly, in Lerned v. Wannemacher86 there were two identical written statements of a sale of coal. Each one showed all the terms of the contract, except the names of the parties. One paper was signed by the plaintiff and the other by the defendant. Thus one paper showed the name of the seller, the other the name of the buyer. There was no reference in either to the other. Nevertheless the court allowed the two to be read together, whereby the entire contract was shown.87

Contents of Memorandum.-As to the contents of the memorandum, the law is more simple and definite than the apparent confusion in its application indicates. The rule is simply, that the memorandum must show the terms of the contract. It is not sufficient for the memorandum to show that some contract was entered into; it must show what that contract was.


85—127 Cal. 643, 50 L. R. A. 240. 86–9 Allen (Mass.) 412.

87-Leesley Bros. v. Fruit Co., 162 Mo. Ap. 195; Peyck Bros. v. Ahrens, 98 Mo. Ap. 456, “If some only of the writings be signed, ref. erence must specifically be made therein to those which are not so signed. But if each of the writings be so signed, such reference

to the other need not be made, if, by inspection and comparison, it appears that they severally relate to, and form a part of, the same transaction.” Welsh v. Brainerd, 95 Minn. 234; Gaines v. McAdam, 79 Ill. Ap. 201; Crystal Palace Flouring Co. v. Butterfield, 15 Colo. Ap. 246.

88—"The note or memorandum

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