of it as being the entry in the broker's book. Held, that the authority given to the broker by the defendant was, not to make a bargain for him, but to reduce to writing and sign the bargain actually made; that the broker, therefore, was without authority from the defendant to sign a bargain which omitted one of the material stipulations, viz. that the wool should be in good dry condition; and that the paper offered in evidence against defendants was therefore not signed by them or their agent. The judges also intimated very strongly the opinion, that the broker's signature was not intended by him to represent the buyer's signature, and that the paper was a mere letter of advice, written in his character of agent of the plaintiff, copied by machine into his letter book, and not intended as one of the bought and sold notes usually delivered by brokers.

wright v.

§ 290. In 1851 the subject was elaborately considered in the Sieve- queen's bench, in the case of Sievewright v. ArchiArchibald. bald, (q) before Lord Campbell C. J. and Erle, Patteson, and Wightman JJ. The case was tried at Guildhall before the chief justice, and there was a verdict for the plaintiff, with leave reserved to move to set it aside, and enter a verdict for the defendant. The declaration set out an alleged "sold note," and contained a count for goods bargained and sold. A variance was afterwards discovered between the bought and sold notes, and an amendment alleging the bought note was allowed, on its being stated to the learned chief justice that the plaintiff could give evidence of a subsequent ratification of the bought note by the defendant. The sold note was for a sale to the defendant of "500 tons Messrs. Dunlop, Wilson & Co.'s pig iron." The bought note was for "500 tons of Scotch pig iron." The broker proved an order from the plaintiff to sell 500 tons of Dunlop, Wilson & Co.'s iron that their iron was Scotch iron, and that they were manufacturers of iron in Scotland; and that the agreement with the defendant was, that he purchased from the broker 500 tons of Dunlop, Wilson & Co.'s iron. The name of the sellers was given to the purchaser. The bought and sold notes were complete in every respect, and corresponded, save in the variance between the words “Scotch iron” and “Dunlop, Wilson & Co.'s iron." There was no entry in the 'roker's book signed by him.

§ 291. The views of the judges differed so widely, and their ob(q) 17 Q. B. 115; 20 L. J. Q. B. 529; [Jeffcott v. No. Br. Oil Co. Ir. R. & C. L. 17.]

Campbell's

servations on every branch of this vexed subject are so important, that it is necessary to transcribe them at considerable length. Lord Campbell's judgment was concurred in entirely by Wightman J. who heard the argument in April, but was unable to be present at the decision in the following June. His lord- Lord ship first held that there was not sufficient evidence to opinion. justify the verdict of the jury that the defendant had ratified the contract expressed in the bought note. Next, that there was no parol agreement shown by the evidence, antecedent to the bought note, and of which that bought note could properly be said to be a memorandum, but that the agreement itself was intended to be in writing, and was understood by the parties to have been reduced to writing when made: and his lordship then continued his reasoning on the supposition that this view was erroneous, and that there had been an antecedent parol agreement, in these words: "Can this (the bought note) be said to be a true memorandum of the agreement? We are here again met by the question of the variance, which is as strong between the parol agreement and the bought note, as between the bought note and the sold note. If the bought note can be considered a memorandum of the parol agreement, so may the sold note, and which of them is to prevail? It seems to me, therefore, that we get back to the same point at which we were when the variance was first objected to, and the declaration was amended. I by no means say that where there are bought and sold notes, they must necessarily be the only evidence of the contract; circumstances may be imagined in which they might be used as a memorandum of a parol agreement. Where there has been an entry of the contract by the broker in his book, signed by him, I should hold without hesitation, notwithstanding some dicta and a supposed ruling by Lord Tenterden, in Thornton v. Meux, to the contrary, that this entry is the binding contract between the parties, and that a mistake made by him when sending a copy of it in the shape of a bought or sold note would not affect its validity. Being authorized by the one to sell and the other to buy in the terms of the contract, when he has reduced it into writing, and signed it as their common agent, it binds them both according to the statute of frauds, as if both had signed it with their own hands. The duty of the broker requires him to do so, and until recent times this duty was scrupulously performed by every broker. What are called the bought and sold notes are sent by

him to his principals, by way of information that he has acted upon their instructions, but not as the actual contract which was to be binding on them. This clearly appears from the practice still followed, of sending the bought note to the buyer and the sold note to the seller, whereas, if these notes had been meant to constitute the contract, the bought note would be put into the hands of the seller, and the sold note into the hands of the buyer, that each might have the engagement of the other party, and not his own. But the broker, to save himself trouble, now omits to enter and sign any contract in his book, and still sends the bought and sold notes as before. If these agree, they are held to constitute a binding contract; if there be any material variance between them, they are both nullities, and there is no binding contract. This last proposition, though combated by the plaintiff's counsel, had been laid down and acted upon in such a long series of cases, that I could not venture to contravene it if I did not assent to it. . . . In the present case, there being a material variance between the bought and sold notes, they do not constitute a binding contract; there is no entry in the broker's book signed by him; and if there were a parol agreement, there being no sufficient mention of it in writing, nor any part acceptance or part payment, the statute of frauds has not been complied with, and I agree with my brother Patteson in thinking that the defendant is entitled to our verdict." Patteson J. said that the sole question was whether Opinion. there was a note or memorandum in writing of the bargain signed by the defendant or his agent, it being quite immaterial whether there was one signed by the plaintiff; that the memorandum need not be the contract itself, but that a contract might be by parol, and if a memorandum were afterwards made embodying the contract, and signed by one party or his agent, he being the party to be charged, the statute was satisfied. Still, if the original contract was in writing, signed by both parties, that would be the binding instrument, and no subsequent memorandum signed by one party could have any effect. The learned judge considered that in the case before the court the contract was not in writing; that it was made by the broker, acting for both parties, but was not signed by him or them, and that the statute therefore could not be satisfied unless there was some subsequent memorandum, signed by the defendant or his agent. His lordship then continued: "There are subsequent memoranda signed by the broker,

Patteson J.

namely, the bought and sold notes. Which of these, if either, is the memorandum in writing signed by the defendant or his agent? The bought note is delivered to the buyer, the defendant: the sold note to the seller, the plaintiff. Each of them in the language used purports to be a representation by the broker to the person to whom it is delivered of what he, the broker, has done as agent for that person. Surely the bought note delivered to the buyer cannot be said to be the memorandum of the contract, signed by the buyer's agent, in order that he might be bound thereby, for then it would have been delivered to the seller, not to the buyer, and vice versa as to the sold note. Can, then, the sold note delivered to the seller be treated as the memorandum signed by the agent of the buyer, and binding him, the buyer, thereby? The very language shows that it cannot. In the city of London, where this contract was made, the broker is bound to enter in his books and sign all contracts made by him; and if the broker had made such signed entry, I cannot doubt, notwithstanding the cases and dicta apparently to the contrary, that such memorandum would be the binding contract on both parties." The learned judge then went on to say that he had been one of the judges of the court that granted the new trial in Hawes v. Forster, and he confirmed the account given of that case by Parke B. in Thornton v. Charles (supra, § 288). He then continued: "However, in the present case there was no signed memorandum in the broker's book. Therefore, the bought and sold notes together, or one of them, must be the memorandum in writing signed by the defendant's agent, or there is none at all, and the statute will not be satisfied. If the bought and sold notes together be the memorandum, and they differ materially, it is plain that there is no memorandum. The court cannot possibly say, nor can a jury say, which of them is to prevail over the other. Read together, they are inconsistent; assuming the variance between them to be material, and if one prevails over the other, that one will be the memorandum, and not the two together. If, on the other hand, one only of these notes is to be considered as the memorandum in writing signed by the defendant's agent, and binding the defendant, which of them is to be so considered, the bought note delivered to the defendant himself, or the sold note delivered to the plaintiff? I have already stated that I cannot think either of them by itself can be so treated... If this were res integra, I am strongly disposed

Erle J.

to say that I should hold the bought and sold notes together not to be a memorandum to satisfy the statute of frauds, but I considered the point to be too well settled to admit of discussion. Yet there is no case in which they have varied in which the court has upheld the contract, plainly showing that the two together have been considered to be the memorandum binding both parties, the reason of which is, I confess, to my mind, quite unsatisfactory, but I yield to authority." Erle J. stated the question raised in the case as follows: "The defendant contends, first, that Opinion. in cases where a contract is made by a broker, and bought and sold notes have been delivered, they alone constitute the contract; that all other evidence of the contract is excluded; and that if they vary a contract is disproved." The learned judge held that the defendant had failed to establish this proposition, and then observed: "The question of the effect either of an entry in a broker's book signed by him, or of the acceptance of bought and sold notes, which agree, is not touched by the present case. I assume that sufficient parol evidence of a contract in the terms of the bought note delivered to the defendant has been tendered, and that the point is whether such evidence is inadmissible, because a sold note was delivered to the plaintiff; in other words, whether bought and sold notes, without other evidence of intention, are by presumption of law a contract in writing. I think they are not. If bought and sold notes, which agree, are delivered and accepted without objection, such acceptance, without objection, is evidence for the jury of mutual assent to the terms of the notes; but the assent is to be inferred by the jury from their acceptance of the notes without objection, not from the signature to the writing, which would be the proof, if they constituted a contract in writing. The form of the instrument is strong to show that they are not intended to constitute a contract in writing, but to give information from the agent to the principal of that which has been done in his behalf. . . . . No person acquainted with legal consequences would intend to make a written contract depend on separate instruments, sent at separate times, in various forms, neither party having seen both instruments. Such a process is contrary to the nature of contracting, of which the essence is interchange of consent at a certain time. It seems to me, therefore, that, upon principle, the mere delivery of bought and sold notes does not prove an intention to contract in writing, and