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In Great Britain, by statutes of universal application, writing is required in proof of sale in the following cases :
In the transference of ships, by the navigation laws, a written instrument of vendition is necessary, together with an entry in the register of the vessel kept by the collector and controller of customs at the ship's port, and an entry also on the certificate of registry in the hands of the master of the ship.)
In the special case of goods warehoused for the duties in the warehouse of the importer, they can be sold in the warehouse only by a written title of
*transference entered in a book kept by the officer who has charge [ *40 ]
of the warehouse, on the part of the Crown.(m) In the sale of literary property or copyright, writing is declared to be necessary.(n)
In the sale or assignation of patent rights, although writing is not required by the statute, it seems to be held necessary on the analogy of the copyright act.(0)
In France also, writing is required as the legitimate proof of the sale of ships, and of patents for inventions, as well as where the parties have expressed their intention of completing the contract in writing; and the consent of the parties must be entered in the public register.(P)
In Holland ships are transferred in like manner, only by a written title recorded in a special register provided for the purpose.(9)
In America, the law requires writing in the sale of ships, together with a registry in the custom-house books and certificate, all nearly analogous to the English law.(r) It is also by that law required, that the assignment of copyright shall be by an instrument in writing,(s) and patents of invention are assignable by writing, to be recorded in the patent office.(t)
(2.) Of sales where writing is not indispensable. [*41]
*The general principle of the Roman law, giving admission to all
kinds of evidence, parole as well as written, in proof of the commercial contract of sale, has been followed as to the sale of goods and merchandise in Scotland, France, and Holland ; but peculiar rules have been established in England and America.
It would appear that at one time, in both these countries, the rules of evidence in this matter had been very much upon the same footing as in those nations who had followed the Roman law; but, in the seventeenth century, there arose in England so great a dread of frauds and perjuries that a statute was passed, called the statute of frauds, by which this matter was placed on a new footing.(u)
The application of this statute was further enlarged, by an act in the reign of Geo. IV.,(v) and the rules established by these statutes have been very closely followed in America.
(1) 3d and 4th Will. IV., c. 55.
(n) 5th and 6th Vic. c. 45. (0) See Chanter v. Leese, 4 Meeson and Welsby, 295. (p) Code de Commerce, Art. 195, Lois. Fran. Loi 14, Mai, 1791, Tit. 2, Art. 15. See 16 Duvergier, p. 198.
(9) Code de Com. de Hollande, Art. 309. (9) 3 Kent, Com., 139, et seq. (s) 2 Kent, Com., 383. (t) 2 Kent, Com, 367. (4) 29th Chas. II., cap. 3, sec. 17.
(v) 9th Geo. IV. c. 14.
Proof of Sale by the Law of England.
Proof by Writing.-By the statute of frauds it is enacted, that "no contract for the sale of any goods, wares, and merchandise, for the price of £10 sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum in writing of the said bargain be made and signed by the parties to be charged by the contraet, or their agents thereunto lawfully authorized.” *The rules of this act were extended to executory contracts by the act commonly called Lord Tenterden's Act.(w)
[ *42] These statutes were not intended to confine the evidence of sale to written proof, but, in absence of such proof, to limit the admission of parole evidence to such cases as, commencing with some act of real evidence obvious to the senses, might be safely left to the parole proof of the special agreement.
In relation to the writing requisite to establish the contract of sale, two questions may be raised : 1st, What is the description of the writing necessary to bind the parties, supposing the terms to be therein distinctly stated ? and, 2d, Whether, if the writing be defective in the statement of the terms, parole evidence be admissible to complete the proof?
(1st.) The writing enjoined by the statute is not intended to be a formal or solemn contract, such as a notary or lawyer would draw up; but in the true sense of the law, as well as by its words, such a note or memorandum only as may be made on the spot, in the hurry of business, as a jotting in a pocket-book, or an entry in a day-book or journal. But it must be signed, either by the parties to be charged upon the contract, or by one legally authorized by them. It has been laid down by Sir William Grant, relative to this matter of signing, in a case occurring under the 4th section of the statute,(20) that “it is not enough that the party may be identified. He is required to sign ;” that, without the party having either put his name to it, or done some *other act intended by him to be equivalent to the actual signature of the name (such as a person unable to write making his [ *43] mark, there is no signature within the meaning of the statute, “merely because you may identify the writer.” • If so, the words I or me' would be enough, provided you could prove the hand-writing."
In a case where an order was taken by a rider for goods, and marked in the rider's book, but not signed by the person who gave the order, and was chargeable upon the contract, this was held no sufficient note or memorandum to bind him in terms of the statute, or suppliable by parole evidence of the note having been read to him at his own desire.(y)
It is, however, held to be a sufficient signing if the note contain the name of the party, written by himself, though not in the way of subscription, provided it be so inserted as to authenticate the agreement as his. Where, for example, a note was written, beginning, “ I, James Crockford, agree,” &c., though the note was unsigned, it was held sufficient, there being no intention of leaving the agreement imperfect as a mere proposal.(z) So, in another case,
(w) 9th Geo. IV., cap. 14.
a note written by the party himself, beginning, “ Mr. Foljambe presents his compliments, &c., Sir William Grant said, the question is " Whether, taking the agreement to be sufficiently explicit in terms, it has the signature which is required by the statute. It is admitted that, provided the name be inserted in such a manner as to have the effect of authenticating the instrument, the pro
vision of the act is complied *with, and it does not much signify in what
part of the instrument the name is to be found.” 6 Here the name begins the note and governs all that follows. I am therefore of opinion that there is in this case an agreement reduced to a certainty, with such a signature as is required by the statute."(a)
But where the name, though written by the party to be charged, is not subscribed and not intended plainly to authenticate the instrument, and to be applicable to the whole, it is not sufficient to satisfy the statute,—it being held as the true meaning, that there shall be an acknowledgment by the party, under his own hand, that it is his agreement, and that if the name does not give such authenticity to the instrument, it does not amount to what the statute requires. If inserted so as to have that effect, it does not signify in what part of the instrument it is to be found.”(6)
It is sufficient that the name of the party shall be in the writing by his authority, though not written by himself, as where a printed invoice was sent of the goods bearing the name of the sender, and he afterwards wrote desiring to know where the goods invoiced should be sent. This letter was held to authenticate the invoice.(c) Again, where a bill of parcels was sent with goods, with the name of the seller printed, and that of the buyer, as debited with the goods, written by the seller, his so writing the buyer's name, and authorizing the bill of parcels to be sent, though his own name was
*only printed, was held sufficient to authenticate this as a note or [ *45]
memorandum under that statute:(d) But it was held by Lord Hardwicke, that sealing the note is not a sufficient signing, the statute requiring evidence from the handwriting: and he referred to the previous authority of Levinz as a great lawyer, " that where an act of Parliament mentions signing, it means something different from sealing.”(e). In one case it was said, that where one has his name upon a stamp, that is enough ; and in another case it has been held that signing by a mark was sufficient. Although there is as little proof of identity in using a stamp, or in signing by a mark, instead of the name of the party, as in the use of a seal, yet this has been held a sufficient signing. (f). There does not appear to be any direct decision on the effect of a subscription by initials, but this
may be considered as one of the most distinctive marks that can be employed.
It is next to be observed, that it is not necessary that the note shall be signed by both parties; provided it is authenticated by him “who is to be charged therewith.” This rule is sanctioned by the authority of some of the greatest names on the English bench, including Lord Thurlow, Lord
Ogilvie v. Foljambe, 1817; 3 Merivale, 53.
Eldon, and Sir William Grant.(8) But it is necessary, notwithstanding, that both parties should be named in the note or memorandum; as, where a bargain was made with a clerk, who entered it in his *memorandumbook as an article bought, but without naming his master as the
purchaser, and this memorandum was signed by the seller, it was held not to be within the act, as not stating the names of the contracting parties.(h) But the name of the party who does not sign may be supplied by collateral written proof, as by relative correspondence.(i) It seems even to be doubtfnl whether it would not be a sufficient proof to this effect, if an order for goods were written and signed by the buyer in the proper order-book of the seller.(k)
A letter by the party is a sufficient note or memorandum to satisfy the statute, if it clearly set forth or explain the nature of the agreement.
And it is sufficient that the essential terms of the bargain shaļl appear in other writings distinctly referred to, provided the connection is not made out by parole evidence merely, as where the terms of the bargain are to be collected from a series of correspondence. Thus, Lord Eldon says, “ It has been long since settled, as the doctrine of the Court, that agreements, when clearly made out, will be established; and that, if a correspondence is of such a nature as, according to the rules of sound legal interpretation, would amount to an agreement, the agreement, so constituted, will be carried into effect in the same manner as if it had been regularly drawn up in the form of articles of agreement, and signed by the parties as such." He adds, “The same construction *must be put upon a letter, or a series of letters, that would be applied to the case of a formal instrument, the only difference between them being, that a letter or a correspondence is generally more loose and inaccurate in respect of terms, and creates a greater difficulty in ariving at a precise conclusion.”' (m)
It is by the statute required, that the note or memorandum shall be signed either by the parties themselves, or by “ their agents thereunto lawfully authorized.” In the construction of these words, it has not been held necessary that such authority shall be in writing. Lord Chancellor Eldon said,
it is clearly settled now, that an agent need not be authorized in writing."(n)
The agent must be a third party, neither of the principals being entitled to act as agent for the other. Lord Ellenborough, in a case in 1829, said, the agent must be some third person, and could not be the other contracting party; and he rejected parole proof brought to shew that, by overlooking and correcting the memorandum, the party to be charged had authorized the name of the other to be used as that of his agent.(o) The same principle was held by the Court of King's Bench, in another case.(P) And Lord Chief Justice Abbott delivered a similar judgment, where an *auctioneer, suing as one of the contracting parties, Wright's case, was held in point
(g) 1 Sugden on Venders and Purchasers, 160, and cases there cited.
(k) See 3 Taunt. 175. (m) Kennedy v. Lee, 1817; 3 Meriv. 450. See also Richards v. Porter, 1827; 6 Barn. and Cress. 437; and Smith v. Surman, 1829; 9 Barn, and Cress. 561.
(n) See Coles v. Trecothick, 1804; 9 Vesey, 250. Emerson v. Heelis, 1809; 2 Taunt. 38.
(0) Wright v. Dannah, 1809; 2 Camp. 203 . (p) Cooper v. Smith, 1812; 15 East, 103.
to rule, that the agent contemplated by the legislature, who is to bind a defendant by his signature, must be some third person, and not the other contracting party on the record.”
”(a) A broker may be the agent for both the parties, and his bought-and-sold notes exchanged between them will bind the bargain. See below, p. 73.
An auctioneer is also entitled to act for both parties ; and, though once doubted, it is now quite settled that he is so far agent for both, that his memorandum of the biddings binds the contract. In a leading case in King's Bench, in the time of Lord Mansfield, it was decided, that the auctioneer is to be considered as agent for the buyer, after knocking down the hammer, as well as for the seller; and that his setting down in writing the name of the buyer, price, &c. was sufficient to take the case out of the statute.(b). It was held in more recent cases, both in King's Bench and Common Pleas, that the rule was to be considered as settled.(c) In another case, the clerk of the auctioneer having put down the name of the buyer on his nodding assent to the goods being declared his, the authority was held sufficient. (d) But if the name be written by the auctioneer only in a catalogue containing
the conditions *of the sale, this is not a sufficient memorandum, in [ *49]
the sense of the act.(e) Although the authenticity of the written note or memorandum, as signed by the party, or by one authorized by him, is sufficient to satisfy the act ; yet the fact of its being so signed is not proved by the mere signature, but must, if denied, be established to the jury by the testimony of one who saw the note signed, or who knows the handwriting to be that of the party, by having seen him sign his name.
So Lord Chief Justice Abbott held it enough that the witness had seen the party sign his surname, and swore to his belief that the surname on the writing was the defendant's.(g) And he denied a previous case,(h) where Lord Ellenborough, at Nisi Prius, had deemed such evidence insufficient.
When the witness has seen the person subscribe only once, his testimony, especially if accompanied with any degree of uncertainty, has been admitted to go to the jury, though not perfect evidence.(i).
Where the knowledge of the authenticity of the signature is derived from correspondence, it is necessary that proof should be given of the writing in such correspondence having been by the hand of the party whose signature is in question. The witness must either have seen the correspondence
written by the person, or at #least must be able to prove that it came [ *50 ]
directly from him.(k) Proof of authenticity of the signature by comparison of the handwriting, whether by persons skilled in that matter, or by the jury themselves, is rejected as mere opinion not evidence.(I)
(a) Farebrother v. Simmons, 1822; 5 Barn. and Ald. 333.
(c) Hinde v. Whitehou 1806; 7 East, 558. Phillimore v. Barry, 1808; 1 Camp, 513; 1 Bell's Illus. p. 87. Emmerson v. Heelis, 1809. 2 Taunt. 38.
(d) Bird v. Boulter, 1833 ; 4 Barn. and Adol. 443.
(e) Kenworthy v. Schofield, 1824; 2 Barn. and Cress. 945. See also Hinde v. Whitehouse, 1806; 7 East, 558. (g) Lewis v. Sapio, 1827; 1 Moodie and Malk. 39.
(h) Powel v. Ford, 1817; 1 Starkie, 124. (i) Garrles v. Alexander, 4 Esp. 37. Burr v. Harper, 1816; Holt, N. P. 420. (k) Harrington v. Frý, 1824; Ryan and Moody, 90. (1) Brookbard v. Woodby, 1770; Peake, N. P. 20, note b. Macpherson v. Thoytes; N.