It is sometimes said that separate papers constituting a memorandum must be consistent with each other in order to be used.46 Reflection shows that there are obvious limits to any such principle. In the first place it is necessary to distinguish between a written contract and a memorandum of an oral contract. If each of two inconsistent writings purports to be a written contract a difficulty arises which has no relation to the Statute of Frauds, but has to do either with lack of mutual assent or a mistaken expression thereof. If there was lack of mutual assent, which would happen if without fault on either side one party intended one form and so expressed himself, and the other party another form and so expressed himself, there is no bargain.47 If on the other hand one form of expression was that which the parties intended 48 and the other form was due to mistake, the case is one for equitable reformation of the incorrect instrument and as a court of law could reach the same result by giving effect to the accurately expressed writing and disregarding the other, it is possible that it would do so. If, however, writings which are merely memoranda of the contract are inconsistent, no such difficulty arises. If one or more papers express accurately the oral bargain of the parties, it is obviously no valid ground of objection that there are other papers in existence which express the bargain inaccurately. The statute requires nothing more than one accurate memorandum; if that exists the statute is satisfied.49 As parol evidence is always admissible to show that a memorandum, which is not a written contract, does not accurately express the bargain,50 it must be equally admissible to show that a writing is an accurate memorandum. The decisions
MoBrayer v. Cohen, 92 Ky. 479, 18 8. W. 123, is still more open to the criticism made in the text.
45 This view is supported by Llewellyn v. Sunnyside Coal Co., 242 Pa. 517, 89 Atl. 575, and by Wright v. Harrison, 137 Term. 157, 192 S. W. 718; Darling v. Cumming, 92 Va. 521, 23 S. E. 880. In the case last cited the words "according to an understanding between us" were held an insufficient reference to an unsigned paper containing a statement of the bargain between the parties.
46Benjamin, Sales (5th ed.), 244; Mechem, Sales, Sec. 427.
47Thornton v. Kempster, 5 Taunt. 786. Seesupra, Sec.94.
48In Meyer v. Redmond, 205 N. Y. 478, 98 N. E. 906, affg. 141 N. Y. App. Div. 123, 125 N. Y. S. 1052, an auctioneer signed a contract for goods sold by him without disclosing his principal. In his Bales book, he made a memorandum naming the principal. It was held this did not relieve him from liability on the paper delivered to the purchaser.
49See Morton v. Clark, 181 Man. 134, 63 N. E. 409; s.c, 184 Mass. 665, 69 N. E. 309; Willie v. Ellis, 98 Miss. 107, 63 So. 498.
50See supra, Sec.676.
51 In Cooper p. Smith, 16 East, 103, a letter of the defendants was sought to be used in connection with an entry in the plaintiff's books, but the letter was inconsistent with the books. In tins cm neither document was a complete memorandum and the letter did not adopt and incorporate the entry in ute expressly requires subscription." Some of these decisions have gone very far in holding a name written in the memorandum to be a signature when there seemed little to indicate that the name was written for the purpose of signing or authenticating the writing, and the English court, following such decisions to their logical conclusion, has held "that a signature to a document which contains the terms of a contract is available for the purpose of satisfying the statute though put alio intuitu and not in order to attest or verify the contract." 54 No decisions in the United States have gone to this extreme length.55 In New York and some other States the statute has been
53 Lernayne v. Stanley, 3 Lev. 1; Knight v. Crockford, 1 Esp. 190; Holmes v. Mackrnll, 3 C. B. (N. S.) 789; Barry v. Coombe, 1 Pet. 640, 7 L. Ed. 295; Nichols v. Johnson, 10 Conn. 192; Kilday v. Schancupp, 91 Conn. 29, 98 Atl. 335, L. R. A. 1917 A. 161; McConnell v. Brillhart, 17 111. 354, 65 Am. Dec. 661; De Vares v. Cores, 202 111. App. 465; Druiy v. Young, 58 Md. 546, 42 Am. Rap. 343; Ponniman v. Hartshorn, 13 Mass. 87; Hawkins v. Chace, 19 Pick. 502; Tray-lor v. Cabanne, 8 Mo. App. 131; Mer-ritt v. Clason, 12 Johns. 102,7 Am. Deo. 286; Wellman v. Horn, 157 N. C. 170,
399, it is signed for the purpose of giving it authenticity as an agreement." In Lee v. Vaughan Seed Store, 101 Ark. 68, 141 S. W. 496, 37 L. R, A. (N. S.) 352; a printed name at the top of an order was held insufficient, the court saying: "A signature consists both of the act of writing one's name, and of the intention thereby, finally to authenticate the instrument." See also Sutherland v. Munsey, 119 Va, 791, 89 S. E. 882.
54 Coon v. Rigden, 4 Colo. 275; Davis v. Shields, 26 Wend. 341; James v. Patten, 6 N. Y. 9, 55 Am. Dec. 376; Doughty v. Manhattan Brass Co., 101 the use of initials," or the first-Dame only.58 The signature may be by mark,59 or any code sign which may be adopted by the writer.60 The signature may be made in pencil,61 by rubber stamp,62 or by typewriter;63 or a printed signature already on the paper may be adopted.64 There seems no reason to doubt the sufficiency of a description of the party to be charged if it is written with intent to attest or verify the writing.65 The case of a signature in blank coupled with authority, afterward exercised, to fill in over the signature a contract within the Statute of Frauds, has been discussed in a few cases not wholly harmonious.66 On principle it seems clear that as a party may
60 Brown v. Butchers' Bank, 6 Hill, 443, 41 Am. Dec. 755. In this case, the figures "1, 2, 8," were written on the back of a bill, and held sufficient to bind the writer as an indorser.
61Geary v. Physic, 6 B. & C. 234; Herritt v. Clason, 12 Johns. 102, 7 Am. Dec 286; Clason v. Bailey, 14 Johns. 484; Draper v. Pattina, 2 Spears, 292.
62 Bennett v. Brumfitt, L. R. 3 C. P. 28; Deep River Bank's App., 73 Conn. 341, 47 Atl. 676; Lendeker v. Bank, 71 N. Y. Misc. 517,130 N. Y. 8. 780.
63 Garton Toy Co. v. Buswell Lumber & Mfg. Co., 150 Wis. 341,136 N. W. 147.
64 Schneider v. Norria, 2 M. & S. 286; Saiinderaon v. Jaokson, 2 B. & P. 238; Drury v. Young, 58 Md. 646, 42 Am. Rep. 343; Grieb v. Cole, 60 Mich. 397, 27 N. W. 579, 1 Am. St. Rep. 533; Goldowits v. Kupfer, 80 N. Y. Misc. 487,141 N. Y. S. 531.
65 In Selby v. Selby, 3 Meriv. 2, a signature to a letter in the words "your affectionate mother," was held to be insufficient, but the case seems rightly criticised in Brown on the Statute of Frauds, 382. The words were undoubtedly written with the intent of signing the letter, and the description is far more adequate for the purpose of identifying the writer than initials or marks used as a private so wr 441 S. W. 496, 37 L. R. A. (N. S.) was ss (goods); Cavnnaugb. 0. Casselman, made Cal. 543, 26 Pac. 515 (land); Easton 111. Montgomery, 90 Cal. 307, 27 Pac. Jones 25 Am. St. Rep. 123 (land); with ther v. Goldschmidt, 156 Cal. 245, grantor ac. 451, 28 L. R. A. (N. S.) 689 agent by authorize an agent to make a memorandum entirely and sign it either with the principal's name or with the agent's, that he may also authorize an agent to make a portion of a memorandum, that is, to fill in blanks. After the agent has thus exercised his authority the memorandum should certainly be as effectual as if he had made it altogether. The principal is not willing to trust him to the extent of the whole memorandum but directs him to make use for the purpose of a specified signature and perhaps other written portions of a memorandum.67 Where attempt is made to authorize the other party to the contract to fill in the blanks an insuperable difficulty grantee. It was held that while this document when delivered by the agent was not a good conveyance, it was a good memorandum of a contract to convey. On the other band, in Hodg-Modrar Bond, 1 N. H. 284, 287, it was S. W. 128, is guarantee written over a
68 See infra, Sec. 567.
69In Bluck v. Gomperta, 7 Exch. 862, 869, a memorandum of guarantee of two bills for £200 and £146, respectively, had been signed by the defendant. It was later found that the amount for which the second bill should be drawn was £150, and it was so drawn. The bills were delivered by the guarantor to the creditor (who later became plaintiff in the case), and upon delivering them the guarantor wrote across the face of his guarantee for the plaintiff's signature an acknowledgment of the receipt of "the two drafts (one being for £150 instead of £146, there being an error in the in-