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The memorandum is not the basis of an action but is evidence of the contract on which an action is based. When Must Be Made. This question was considered in Bird v. Munroe,19 where the court said:

"But the defendant contends that this course of reasoning would make a memorandum sufficient if made after action brought, and that the authorities do not agree to that proposition. There has been some judicial inclination to favor the doctrine to that extent even, and there may be some logic in it. Still, the current of decision requires that the writing must exist before action brought. And the reason for the requirement does not militate against the idea that a memorandum is only evidence of the contract. There is no actionable contract before memorandum obtained. The contract cannot be sued upon until it has been legally verified by writing; until then there is no cause of action, although there is a contract. The writing is a condition precedent to the right to sue. Willes, J., perhaps correctly describes it in Gibson v. Holland, when he says, 'the memorandum is in some way to stand in the place of a contract.' He adds: "The courts have considered the intention of the legislature to be of a mixed character; to prevent persons having actions brought against them so long as no written evidence was existing when the action was instituted.'"

Signature of the Party. The note or memorandum must be signed by the party to be charged. Where the signature should be placed is not provided. A mark intended as a signature is sufficient. A description of the signer, as, for example, signing himself "Your loving father," would not be a valid signature. The signature may be in writing or in print, made with ink, pencil, or stamp. It may be in the beginning, or in the middle, or at the end of the writing. If a person draws up an agreement in the first person, as “I, John Jones, hereby agree to purchase and pay for such and such property at a certain price," that will be a sufficient signature to comply with the statute. Only the party to be charged need sign the contract. The signature may be made by the principal or by his duly authorized agent. 19 66 Me. 337, 22 Am. Rep. 327.

This agency may be proved by parol. Where certain parties who make it their business to act as agents for others in the purchase and sale of goods, generally called brokers, are agents for both parties, their signature is binding on both principals. A broker's signed entry in his book constitutes a contract between the parties for whom he is acting.

In Sanborn v. Flagler20 is a sample business memorandum of sale with business signature as follows: "Will deliver S. R. & Co. best refined iron 50 tons within 90 daysat 5 ct p lb 4 of cash. Plates to be 10 to 16 inches wide and 9 feet to 11 long. This offer good till 2 o'clock Sept. 1, 1862. J. H. F. J. B. R."

In holding this memorandum and signature sufficient under the statute, Bigelow, C. J., said:

"The note or memorandum on which the plaintiffs rely to maintain their action contains all the requisites essential to constitute a binding contract within the Statute of Frauds. It is not denied by the defendants that a verbal acceptance of a written offer to sell merchandise is sufficient to constitute a complete and obligatory agreement, on which to charge the person by whom it is signed. In such case, if the memorandum is otherwise sufficient when it is assented to by him to whom the proposal has been made, the contract is consummated by the meeting of the minds of the two parties, and the evidence necessary to render it valid and capable of enforcement is supplied by the signature of the party sought to be charged to the offer to sell. Indeed the rule being well settled that the signature of the defendant only is necessary to make a binding contract within the provisions of the statute relating to sales of merchandise, it necessarily follows that an offer to sell and an express agreement to sell stand on the same footing, inasmuch as the latter, until it is accepted by the other party, is in effect nothing more than a proposition. to sell on the terms indicated. The acceptance of the contract by the party seeking to enforce it may always be proved by evidence aliunde.

"The objection to the memorandum is that the name of the party sought to be charged does not appear on the

209 Allen (Mass.) 174.

face of the paper. If by this is meant that the signatures of all the persons who are named as defendants are not affixed to the memorandum, or that it is not signed with the copartnership name, under which it is alleged that the persons named as defendants do business, the fact is certainly so. But it is not essential to the validity of the memorandum that it be so signed. An agent may write his own name, and thereby bind his principal; and parol evidence is competent to prove that he signed the memorandum in his capacity as agent. On the same principle, a partner may by his individual signature bind the firm, if the contract is within the scope of the business of the firm, which may be shown by extrinsic evidence."

LAW OF SALES

PART II

CHAPTER IV

TITLE

§ 41. Effect of Contract of Sale. The effect of a contract of sale fully entered into is to transfer title in personal property. It is because of this feature that only goods in existence, actual or potential, can be the subjectmatter of a bargain and sale. All other contracts of sale, therefore, where the title can vest only in the future, are contracts to sell. Again, not every contract of sale of goods in existence is a bargain and sale of them. The minds of the parties must first meet upon the subject-matter of the sale. If A buys B's horse, and B has only one horse, the title can pass at once. But if B owns fifty horses and A offers to buy ten of them, no title to any ten will pass until the ten have been picked out. Wherever anything remains to be done to goods, no title passes until it is done.

WHEN TITLE PASSES

§ 42. Risk Follows Title. As risk follows title, the subject of title is one of the most important in the law of sales. The whole object of a sale is to transfer title; and it is necessary to know when it passes in order to fix upon whom loss falls in case of injury to or destruction of the goods.1 The person who has title is called the owner, and to him belongs the gain or increase in the property. Only the owner has the right to sell, or to bring an action for the value of the goods if they are unlawfully taken or if bought 1 Russell v. Carrington, 42 N. Y. 118.

Copyright, 1912, by American School of Correspondence.

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