There have been numerous English decisions in regard to contracts made by brokers upon the question of memoranda under the Statute of Frauds. The English practice is for a broker employed to make a purchase or sale, to enter the bargain when made in a private memorandum book, and immediately to send to the respective principals in the transaction a bought note and a sold note. In this country there are few decisions in regard to the matter and probably it is more common here than in England for brokers to contract as principals. Moreover, in bargains made on Exchanges the rules of the Exchange often require arbitration and forbid setting up the Statute of Frauds. The various forms in which the brokers' notes may be made have been thus summarized:
Leeman, 43 Me. 158,160, 69 Am. Deo. 54; Ijams v. Hoffman, 1 Md. 423; Bent v. Cobb, 9 Gray, 397,69 Am. Dec 295; Springer v. Kleinsorge, S3 Mo. 162; Johnson v. Buck, 36 N. J. L. 338, 10 Am. Rep. 243; MoComb v. Wright, 4 Johns. Ch. 669; Menz v. Newwittar, 122 N. Y. 491, 494, 26 N. E. 1044, 11 L. R. A. 97,19 Am. St. Rep. 614; Pugh v. Choneldine, 11 Ohio, 109, 37 Am. Deo. 414; Meadows v. Meadows, 3 McCord, 468,15 Am. Deo. 646; Wright v. Harrison, 137 Tenn. 157, 192 S. W. 716; Harvey v. Stevens, 43 Vt. 663; Walker v. Herring, 21 Gratt. 678, 8 Am. Rep. 616; Atkinson v. Washington ft Jefferson College, 64 W. Va. 32, 39, and cases cited. But see Dunham v, Hartman, 163 Mo. 625, 65 S. W. 233, 77 Am. St. Rep. 741; Adams v. Scales, 1 Bart. 337,25 Am. Rep. 772.
84Smith v. Arnold, 5 Mason, 414, 419; Craig v. Godfrey, 1 Cal. 415, 54
Am. Dec. 299; Horton v. MeCarty, 53 Me. 394, 398; Gill v. Bioknell2 Cusli. 366, 368; Jelks v Barrett, 52 Miss. 315; Schmidt v. Quinsel, 56 N. J. E. 792; Hicks v Whitmore, 12 Wend. 548; Wright v Harrison, 137 Term. 167, 192 S. W. 716.
85 Pike v. Baleh, 38 Me. 302, 311, 61 Am. Dec. 248; Dunham v. Hartman, 163 Mo. 626, 65 8. W. 233, 77 Am. St. Rep. 741; Gwathney v. Casern, 74 N. C. 5,21 Am. Rep. 484.
87 Byrne v. Fremont Realty Co., 120 N. Y. App. Div. 692,105 N. Y. S. 838.
88Bent v. Cobb, 9 Gray, 397, 69 Am. Dec. 295; Tull v. David, 45 Mo. 444, 100 Am. Dec. 385; Johnson v. Buck, 35 N. J. L. 338, 10 Am. Rep, 243.
89 See supra, Sec. 587, n. 81.
90 See cases cited, supra, note.
91 Johnson v. Buck, 35 N. J. I. 338, 10 Am. Rep. 243.
"The first is where on the face of the notes the broker professes to act for both the parties whose names are disclosed in the note. The sold note then in substance says:' Sold for A. B. to C. D.,' and sets out the terms of the bargain; the bought note begins: 'Bought for C. D. of A. B.' or equivalent language, and sets out the same terms as the sold note, and both are signed by the broker."
"The second form is where the broker does not disclose in the bought note the name of the seller, nor in the sold note the name of the buyer, but still shows that he is acting as broker, not principal. The form then is simply: 'Bought for C. D.;' and 'sold for A. B.'
"The third form is where the broker, on the face of the note, appears to be the principal, though he is really only an agent. Instead of giving to the buyer a note: 'Bought for you by me,' he gives it in this form: 'sold to you by me.' By so doing he assumes the obligation of a principal, and cannot escape responsibility by parol proof, that he was only acting as broker for another, although the party to whom he gives such a note is at liberty to show that there was an unnamed principal, and to make this principal responsible.
"The fourth form is where the broker professes to sign as a broker, but is really a principal, in which case his signature does not bind the other party, and he cannot sue on the contract." 93 The English law formerly required that a broker in the city of
92 See Kinney v. Horwitz (Conn.), 105 Atl. 438; Brooke v. Cunningham, 19 Ga,App.21,908.E. 1037. See Roach v. Lane, 226 Man. 598,114 N. E. 470;
Pope Metals Co. v. Sadek, 149 Wis. 394, 136 N. W. 851.
93Benjamin, Sale (5th Eug. ed), 286, 286.
London should make an entry in a book kept for the purpose. Largely because of this statutory requirement the entry in the book was regarded as the written contract between the parties,'94 but since this requirement no longer exists, the question seems to be, Was any writing intended as the definite expression of the bargain between the parties and, if so, what was that writing? If the entry in the broker's book and the two notes are harmonious in their terms and each contains the full terms of the bargain, no difficulty under the Statute of Frauds can arise. Sometimes, however, the notes differ from the entry in the book, and sometimes from each other. It seems probable that if either of the notes or the entry in the books could be shown to represent the actual contract of the parties in all its terms, it would be sufficient.95 Where, however, the terms of the contract cannot be made out without resort to more than one writing, and the writings are inconsistent, or if the broker's notes are to be regarded as intended to constitute a written contract, and they are inconsistent, no recovery seems possible unless it be possible to reform the written expression of the bargain.96 The bought and sold notes are regarded in the cases as a single document.97 If both are signed this doctrine seems sound.98 Authority to make a contract is sufficient to indicate that a broker has authority to make and sign a memorandum of the contract,99 but a broker whose only employment is to bring the parties together has no such implied authority.1 As in case of auctioneers, the authority of the broker to sign may be revoked at any time before the memorandum is actually made out.2
94 Benjamin, Sale (5th Eng. ed.), 287.
96Rowe v. Osborne, 1 Stark, 140; Moore v. Campbell, 10 Ex. 323; Hey-worth v. Knight, 17 C. B. (N. 8.) 206. In the case last cited the bought and Bold notes varied from each other and the court allowed the contract to be shown by the correspondence between the parties. See also Parton v. Crofts, 16 C. B. (N. S.) 11, where the court allowed the contract to be proved by one note, the other not being produced. The court held that the two would be presumed to be alike. See also Hobart v. Lubarsky, 215 Mass. 628, 102 N. E. 936, where Loring, J., distinguishes between a memorandum and a written contract, holding that a broker as such has authority to sign a memorandum of an oral contract agreed to by the principals, but not to enter into a written contract.
96 Grant v. Fletcher, 6 B. ft C. 436; Gregson v. Ruck, 4Q.B. 737. By the majority of the court in Sievewright Archibald, 17 Q. B. 103, dissenting, Erle, J.; per Wiliee, J., in Caerleon Tin-Plate Co. c. Hughes, 66 L. T. 118,119; Peltier v. Collins, 3 Wend. 450, 20 Am. Dec. 711; Suydam v. Clark, 2 Sandf. 133; Bacon v. Eccles, 43 Wis. 227.
97 Grant v. Fletcher, 5 B. ft C. 436; Goom v. Aflalo, 6 B. ft C. 117; Sievewright v. Archibald, 17 Q. B. 103; Bibb v. Allen, 140 V. S. 481, 495, 13 S. Ct. 950, 37 L. Ed. 819. The prinei-ple. runs through all the cases.
98See supro, Sec.581.