Much of the commercial business of the country is transacted by the agency of brokers, who buy and sell goods for others, on commission. Though employed at the outset by only one of the parties, a merchandise broker becomes the agent of the other also, when he treats with him. (a;)

It is the duty, though not always the practice of brokers, to make a memorandum of the terms of the contract and the names of the parties, in their books, to sign such memorandum, and to transcribe therefrom the bought and sold notes. (y)1 The bought note is addressed to the purchaser, notifying him that the broker has bought for his account of the vendor, the goods described, stating price and terms, and signed by the broker. The sold note is a similar statement addressed to the vendor, informing him that he has sold to the purchaser, for his account, the same goods, giving the price and terms. The broker's signature to the entry in his book, or to the notes, will satisfy the Statute of Frauds, it being in law the signature of the parties by the agent of both parties. (z)

* It is not uncommon for the principals to sign their approval upon the note to be handed to the other party; but this proceeding, though convenient as settling the question of the broker's authority, is not necessary to give validity to the contract, if the broker's authority can be shown by other means.

Formerly the question was in some doubt whether the broker's entry in his book, duly signed by him, should not be regarded as the actual contract between the parties, and the bought and * sold notes as merely the evidence thereof. (a) It certainly appears unreasonable that the entry in the broker's book, which the parties do not see, should be taken as the contract between them, when it is obvious that their understanding of the agreement must be drawn from the notes delivered to them respectively. By retaining the note without objection, either party ratifies the contract set forth therein. By returning it at once, with his dissent, he repudiates the contract; and his liability then depends, not upon what the broker has done, but upon the authority which he actually gave to his agent.

(x) Grant v. Fletcher, 5 B. & C. 436 Merritt v. Clason, 12 Johns. 102; Davis v. Shields, 26 Wend 341: Suydam v. Clark, 2 Sandf. 133; Toomer v. Dawson, 1 Cheves, 68.

(y) Per Abbott, C. J., in Grant v. Fletcher, 5 B. & C. 437

(z) Hinde v. Whitehouse, 7 Bast, 558; Herman v. Neale, 2 Camp. 337; Cabot v. Winsor, 1 Allen, 546.

1 Where one keeps a bought or sold note, he plainly admits that the broker acted by his authority and as his agent, and the brokers signature is his signature. Thompson v. Gardiner, 1 C. P. D. 777. The following memorandum of a contract of sale signed by the agents of the seller and purchaser: " Sold for Messrs. I!. & Co., Boston, to Messrs. T. & Co., New York, seven hundred and five (705) packs first quality Russia sheet-iron, to arrive at New York, at twelve and three-quarters (I-,) cents per pound, gold, cash, actual tare. Iron due about Sept 1 Y,7, \Y. & II , Brokers," binds both parties thereto. Butler v. Thompson, 92 U. S 412 "The memorandum in question, expressing that the iron had been Bold, imported necessarily that it had been bought." Per Hunt, J.- K.

The custom of delivering bought and sold notes has at length obtained so generally, that the courts both in this country and in England have been obliged, from the necessity of the case, to look to them rather than to the broker's book, for the terms and conditions of the contract. It seems accordingly to be settled, under the influence of this custom, that the bought and sold notes, if there be any, are the best evidence of the bargain; although, if there be none, the broker's entry in his book, if signed, will be sufficient. (b)1

If these notes are signed by the broker and agree, but differ from an unsigned entry in the book, the notes constitute the contract. If they agree, but differ from a signed entry, and have been received and adopted by the vendor and purchaser, though the entry present the contract correctly as made, the notes will, it seems, constitute a new contract, in substitution and extinguishment of the contract evidenced by the signed entry. (c) If the notes differ from each other, and one of them agrees with the signed entry, the entry and note agreeing with it, may, it seems, be taken together as constituting the contract of sale, to the exclusion of the other note. (d) It seems that a printed signature * of the broker is not a sufficient signing within the Statute of Frauds in New York, which requires that the memorandum shall be subscribed. (e) But it is well settled, that under the English statute, the appearance of the vendor's name printed in a bill of parcels is a sufficient signature bo bind him. (f)

(a) See remarks of Ld. Ellenborough, in Dickenson v. Lilwal, 1 Stark. 128; but see Cumming v. Roebuck, Holt, N. P. 173.

(b) Hawes v. Forster, 1 Mo. & Rob. 368; Grant v. Fletcher, 5 B. & C. 436; s. c. 8 D. & R. 59; Goom v. Aflalo, 6 B. & C. 117; s. C. 9 D. & R. 148.

(c) Hawes v. Forster, 1 Mo. & Rob. 368; and see remarks of Campbell, C. J., in Sievewright v. Archibald, 17 A. & E. (n. s) 121, 126; Jeffcott v. No. Brit. Oil Co. Ir. R.8C.L. 17.

(d) Thornton v. Charles, 9 M. & W. 802; Sievewright v. Archibald, 17 A. & E. (n. s.) 104; Townend v. Drakeford, 1 Car. & K. 20; Goom v. Aflalo, 6 B. & C. 117; s. c. 9 D. & R. 148; Thornton v. Meux, 1 Mo. & Malk. 43.

1 It seems now to be held rather that the entry signed by the broker in his book constitutes the original memorandum of the contract, though the bought and sold notes constitute a sufficient memorandum to satisfy the Statute of Frauds. See Benjamin on Sales, §§ 275-307; Thompson v. Gardiner, 1 C. P. D. 777; Remick v. San-ford, 118 Mass. 102.

If the broker does not sign the same contract for both parties, neither will be bound. It has been decided accordingly, that where the broker delivers different notes of the contract to each of the contracting parties, and there is no signed entry in his books to cure the discrepancy, there is no valid bargain at all. There is no proof of the assent of the parties to the same terms, no common understanding, and neither of them has the means of determining whether the broker has exceeded the authority given to him by the other.(g) Where a broker's bought note signed by him and delivered to the purchaser, described the subject-matter of the contract as "Riga Rhine hemp," and the sale note signed by him and delivered to the vendor described it as "St. Petersburg clean hemp;" and it appeared that the description in the first note had been inserted by mistake, and that it designated an article of a different and * better quality, and of higher price and value than that described in the second note; it was held that, as the parties were not bound to the same bargain.