SECTION II.

Of the form and Signature of the Agreement.

We may now consider, first, what is a sufficient agreement; 2dly, what is a sufficient signature by the party or his agent; and 3dly, who will be deemed an agent lawfully authorized. And,

First then, it is to be observed, that the statute requires the writing to be signed only by the person to be charged; and therefore, if a bill be brought against a (*)person who signed an agreement, he will be bound by it, although the other party did not sign it, as the agreement is signed by the person to be charged(t). This point has been established by the concurrent authority of the Lord Keeper North, Lord Keeper Wright, Lord Chancellor Hardwicke, Lord C. B. Smith, and Bathurst and Aston, Justices, when Lords Commissioners, Lord Chancellor Thurlow, Lord Chancellor Eldon, and Sir Wm. Grant. The legislature has expressly said, that the agreement shall be binding if signed by the party to be charged;

(t) Hatton v. Gray, 2 Ch. Ca. 164; Cotton v. Lee, 2 Bro. C. C. 564; Coleman v. Upcot, 5 Vin. Abr. 527. pl. 17; Buckhouse v. Crossby, 2 Eq. Ca. Abr. 32, pl. 44; Seton v. Slade, 7 Ves. jun. 265; Fowle v. Freeman, MS.; 9 Ves. jun. 355, S. C. See 1 Scho. & Lef. 20; and 11 Ves. jun. 592; Western v. Russell, 3 Ves. & Bea. 187; and see Wain v. Warlters, 5 East, 10; Egerton v. Matthews, 6 East, 307, which do not impeach this doctrine: see particularly 5 East, 16; and Allen v. Bennet, 3 Taunt. 169. As to Wain v. Warlters, see Stadt v. Lill, 9 East, 348; 1 Camp. Ca. 242; Ex parte Minet, 14 Ves. jun. 189; Ex parte Gardom, 15 Ves. jun. 286; Bateman v. Philips, 15 East, 272; Saunders v. Wakefield, 4 Barn. & Ald. 595; Jenkins . Reynolds, 3 Brod. & Bing. 14; S. C. 6 Man. 86.

and as Lord Hardwicke has observed, the word party in the statute is not to be construed party as to a deed, but person in general(u); but there have been instances in which the want of the signature to the agreement by the party seeking to enforce it, has been deemed a badge of fraud (v); but, perhaps, the transaction ought not to be viewed in that light, unless the other party called on the party who had not signed to execute it, in which case a refusal to sign might be held to operate as a repudiation of the contract(w)(I)(36).

(*)In a late case, Lord C. J. Mansfield observed, that in equity a contract signed by one party would be enforced, and it was not clear that it was different at law(x). The rule in equity, it is conceived, is founded simply on the words of the statute, which must be equally binding on the courts of law. There is not an objection which can be made to the rule as applicable to an action at law which will not apply with equal force to a suit in equity. In a later case, accordingly, upon the 17th section, the same learned Judge observed, that every one knows it is the

(u) See 3 Atk. 503.

(v) See O'Rouke v. Percival, 2 Ball & Beatty, 58.

(w) See 2 Ball & Beatty, 371; and Martin v. Mitchell, 3 Swanst. 428.

(x) Bowen v. Morris, 2 Taunt. 374.

(I) The author's anxiety to place the law upon a safer footing, induced him to bring in a bill to amend the statute of frauds. He had not an opportunity of pressing it through the House of Commons ; but as such things are not accessible, and the law will no doubt be altered, it has been thought right to print the bill in the Appendix, No. 11.

Ballard v. Walk

(36) See Bartstow v. Gray, 3 Greenl. Rep. 409. er, 3 Johns. Cas. 60. Rogel v. Merritt, 2 Caines' Rep. 117. Douglass v. Spears, 2 Nott & M'Cord, 207. Cosack v. Descoudres, 1 McCord, 425. Clason v. Bailey, 14 Johns. Rep. 484. Penniman v. Hartshorn, 13 Mass. Rep. 87.

daily practice of the Court of Chancery to establish contracts signed by one person only, and yet a court of equity can no more dispense with the statute of frauds than a court of law can(y). Lord Eldon has observed, that equity has not upon these points gone further than courts of law: what is the construction of the statute, what within the legal intent of it will amount to a signing, being the same questions in equity as at law. Upon that point, equity professing to follow the law, if a new question should arise, his Lordship said, that he would rather send a case to a court of law(2). In a still later case at nisi prius, where the purchaser only had signed, Lord Tenterden said that it was the duty of the auctioneer to sign; and he had often had occasion to lament they do not do so. What a court of equity would do in the case he could not possibly say. He declined deciding the point according to his opinion, as the counsel would not undertake to carry the same forward on a bill of exceptions(a).

(*)But although the agreement must be signed, yet it need not be so averred in a bill for a specific performance; for the writing, unless signed, would not be an agreement, and as the allegation in the bill of course is that there is an agreement in writing, signature must be presumed until the contrary is shown(b)(37).

If a written agreement has been in a part executed, it seems that an agreement subsequently entered into between the parties, and reduced into writing, will bind them both, if signed by one of them(c).

A receipt for the purchase-money may constitute an

(y) Allen v. Bennett, 3 Taunt. 176.

(z) 18 Ves. jun. 183.

(a) Wheeler v. Collier, 1 Mood. & Mal. 123.

(b) Rist-v. Hobson, 1 Sim. & Stu. 543.

(c) Owen v. Davies, 1 Ves. 82.

(37) See Cleaves v. Foss, 4 Greenl. 1.

agreement in writing within the statute(d); and it has frequently been decided, that a note or letter will be a sufficient agreement to take a case out of the statute(e)(38); but every agreement must be stamped before it can be read(f); and, as this ought to be done, the Court will permit the cause to stand over to get the agreement stamped, and will assist either party in obtaining it for that purpose.

Thus, in Fowle v. Freeman(g), the agreement was sent by the vendor to his attorney, with a letter written at the bottom, directing him to prepare a technical agreement. The vendor afterwards refused to perform the contract, and the attorney would not deliver the agreement to the purchaser for the purpose of getting it stamped, contending that it was a private letter to him; but the Court, (*)on motion, ordered it to be delivered to the purchaser for that purpose.

(d) Coles v. Trecothick, 9 Ves. jun. 234; Blagden v. Bradbear, 12 Ves. jun. 466.

(e) Coleman v. Upcot, 5 Vin. Abr. 527, pl. 17; Buckhouse v. Crossby, 2 Eq. Ca. Abr. 32, pl. 44.

(f) Ford v. Compton; Hearne v. James, 2 Bro. C. C. 32, 309.

(g) Rolls, March 8, 1804. MS. 9 Ves. jun. 351, S. C. but not reported as to this point. See infra, ch. 4. s. 3; Clarke v. Terrel, 1 Smith's Rep. 399; Coles v. Trecothick, 9 Ves. jun. 234.

(38) In South Carolina, it has been decided that a receipt signed by the vendor, in these words, "Received of A. 20 dollars, being on account of a plantation on the Cypress, sold to him this day for 2,200 dollars, payable in different instalments, as per agreement. Charleston, August 1, 1816, was sufficient to take the case out of the statute of frauds. Cosack v. Descoudres, 1 M'Cord, 425.

Where an agent had agreed, by parol, to bid for his principal, at a sheriff's sale, for certain real estate, and who took the titles in his own name, the case will be taken out of the statute of frauds, by an account made out and signed by him, charging his principal with the purchasemoney; in which case, the agent was decreed to hold the estate in trust. Denton v. M'Kenzie, 1 Des. 289.

But if the agreement is admitted by the answer, so as to dispense with the necessity of proving it, the office-copy of the bill, or, if the defendant refuse to produce it, the record itself, may be read in support of the plaintiff's case, and need not be stamped, nor can the fact of the agreement not being stamped be taken advantage of(h).

If, upon a treaty for sale of an estate, the owner write a letter to the person wishing to buy it, stating, that if he parts with the estate it shall be on such and such terms (specifying them); and such person, upon receipt of the letter, or within a reasonable time after the offer is made(i), accept the terms mentioned in it, the owner will be compelled to perform the contract in specie(j)(39).

So if a man (being in company) make offers of a bargain, and then write them down and sign them; and another person take them up and prefer his bill, that will be a sufficient agreement to take the case out of the statute(k).

But if it appear that, on being submitted to any person for acceptance, he had hastily snatched it up, had refused the owner a copy of it; or if, from other circumstances, fraud in procuring it may be inferred, in case of an action, it will be left to the jury to say whether it was intended by the defendant, at first, to be a valid agreement on his part, or as only containing proposals in writing,

(h) Huddleston v. Briscoe, 11 Ves. jun. 583.

(i) See 3 Mer. 454.

(j) Coleman v. Upcot, 5 Vin. Abr. 527, pl. 87.

Lord Lowther, 12 Ves. jun. 107.

(k) S. C. per Lord Chancellor.

See Gaskarth v.

(39) An offer of a bargam, by one person to another, imposes no obligation on the former, until it is accepted by the latter, according to the terms of the offer. Any qualification of those terms invalidates the offer, without the assent of him who made it. Eliason v. Henshaw, 4 Wheat. 225, 228.