Until comparatively recently the authorities did not extend the right to make out a memorandum from separate documents, some of which were unsigned by the defendant, beyond the case of reference by a document so signed to one not so signed. Both in England and in the United States, however, an extension has been made by some decisions. The basis of these decisions is either that the documents on being placed together necessarily indicate that they relate to the same transaction, or referred to a future oral bargain between the plaintiff and a third person. Suppose A. agrees to buy goods of B. at the price which B. baa to pay C. for them, or on the same terms and conditions that B. has to make with C. Such a memorandum contains the whole of the bargain between A. and B., and ought to satisfy the Statute of Frauds, irrespective of whether B.'s arrangement with C. was oral or written. In the case just put as well as in the Massachusetts decision, the parties had made a contract and had made a full memorandum of all its terms; there was nothing for further agreement between them. See Bowers v. Ocean Accident, etc., Corp., 110 N. Y. App. Div. 691, 694, 97 N. Y. S 485. In the supposititious case put in the text, on the other baud, the parties had not come to a full agreement when the party to be charged signed. In such a case it seems hard to see how the signature, unless newly adopted in some way, can authenticate the subsequent writing.
33 Wilson v. LewiBton Mill Co., 150 N. Y. 314, 44 N. E. 969, 55 Am. St Rep. 680; Harby v. Wilson (S. Car.), 90 S. E. 183.
34 Willis v. Ellis, 98 Miss. 197, 53 So. 49S.
that they each contain an express reference to a specific contract or sale although not to each other. The leading case for the former doctrine is Lerned v. Wannemacher.35 This decision may be taken as a type of all. There were two documents nearly identical, one signed by each party. The copy signed by the defendant, however, did not contain the name of the plaintiff, and the other had a special stipulation afterward written and signed by the plaintiff. The court held that as the documents evidently related to the same transaction, the signature of the defendant would be taken as applicable to both. This case has been followed by others to the same effect,36 and the doctrine has been applied especially to correspondence between the parties. It seems to be supposed by many courts that where parties have a correspondence in regard to any matter that the whole correspondence, including the letters of both parties, can necessarily be made use of in order to make out a memorandum, at least if the letters relate to the same subject-matter.37 In the case of letters, reference is generally the doctrine requiring an express reference in the signed papers that seems permissible is where the signed paper at the time of the signature can be shown from its contents to be based on an adoption of a then existing unsigned paper.42
35 9 Allen, 412.
36White v. Breen, 106 Ala. 159, 19 So. 59, 32 L. R. A. 127 (land); Strouse v. Elting, 110 Ala. 132, 20 So. 123 (guarantee); McBrayer v. Cohen, 92 Ky. 479, 18 S. W. 123 (land); Smith v. Colby, 136 Mass. 662 (goods); Free-land P. Rita, 154 Mass. 257, 28 N. E. 226, 12 L. R. A. E61, 26 Am. St. Rep. 244 (land); Louisville Varnish Co. v. Lorick, 29 S. C. 533, 8 S. E. 8 (goods). See also Nickerson v. Weld, 204 Mass. 346, 90 N. E. 589 (land); Leesley v. A. Rebori Fruit Co., 162 Mo. App. 195, 144 S. W. 138 (goods); Flegel v. Dowling, 64 Ore. 40, 102 Pac. 178 (land); Leonard v. Woodruff, 23 Utah, 494, 66 Pac. 199 (land); Hummer v. McGee, 141 Wis. 216, 124 N. W. 302 (land).
37 Ryan v. United States, 136 U. S. 68, 83, 10 S. Ct. 913, 34 L. Ed. 447; Crystal Flouring Co. v. Butterfield, 15 Colo. App. 246, 61 Pac. 479 (goods); Elbert v. Los Angeles Gas Co., 97 Cal. 244, 32 Pac. 9 (contract not to be performed within a year); Austin v. Davis, 128 Ind. 472, 476, 26 N. E. 890, 12 L. R. A. 120, 25 Am. St. Rep. 466 (contract to make will); Thames Trust Co. v. Beville, 100 Ind. 309 (land); Swallow v. Strong, 83 Minn. 87, 85 If. W. 942 (land); Trevor v. Wood, 36 N. Y. 307, 93 Am. Dee. 611 (goods); Peay v. Seigler, 48 S. C. 496, 26 S. E. 886, 59 Am. St. Rep. 731; Watson v. Baker, 71 Tex. 739, 9 S. W. 867 (land); Cobb v. Glenn Lumber Co., 57 W. Va. 49, 49 S. E. 1006, 110 Am. St. Rep. 734. Most of these decisions were doubtless correct upon their facts, because the letters of the defendants referred to the letters of the plaintiffs, which it was sought to incorporate with them. In Watson v. Baker, 71 Tex. 739, 9 S. W. 867, however, this was clearly not the case. The only letter which contained a description of the property, though it did not contain the ultimate bargain of the parties, was neither written by the party sought to be charged nor referred to in any made by each succeeding letter to the preceding, but this is not invariably the case, and in a telegraphic correspondence it is perhaps not common.38 It seems impossible to justify this extension of the doctrine in regard to several documents. There is no difficulty in making out a written memorandum, all evidently relating to the same transaction, but the memorandum is not signed by the party to be charged. A simple illustration will indicate this. A writes a letter to 6, saying: "I will sell you the property of which we spoke yesterday for $5,000 cash." B replies:" I understand that you will sell me the following described property of which we spoke yesterday (describing the property) at $5,000 cash. I hereby accept your proposition." According to the doctrine here criticized B's reply could be read with A's letter to charge A; they evidently refer to the same transaction, and the description of the property contained in B's letter could be incorporated in A's writing. But it is obvious that A has never authenticated the description by his signature, and to allow the description written by B to be used by B in enforcing the contract against A, is nothing other than to allow B to write an essential term of the memorandum himself and charge A with it as written.39 It is, however, permissible to use so many of the letters of the party to be charged as evidently relate to the same transaction, irrespective of any reference in them to one another, provided they are all signed.40 It is not enough, therefore, that there be a continuous correspondence between the parties. It is essential to examine specifically the papers not signed by the parties to be charged, which it is sought to incorporate with the paper or papers that are so signed, and determine whether the unsigned papers have been adopted by the signed papers.41 The only extension of of his subsequent correspondence, yet the court admitted it as part of the correspondence, saying broadly: "It is sufficient if the contract can be plainly made out in all its terms from any writing of the party or from his correspondence."
38 See Brewer v. Horst-Lachmund Co., 127 Cal. 643, 60 Pac. 418, 50 L. R. A. 240; Cobb v. Glenn Lumber Co., 57 W. Va. 49, 49 S. E. 1005, 110
Am. St. Rep. 734, and many decisions collected in 50 L. R. A. 240, note.
39 This case is suggested by the decision of Watson v. Baker, 71 Tex. 739, 9 S. W. 867. Compare the correct decision of Wilson v. Lewiston Mills Co., 150 N. Y. 314, 44 N. E. 959.
40 See supra, Sec. 581.
41 This doctrine is upheld by Fowler Elevator Co. v. Cottrell, 38 Neb.