This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The statute does not require the contract, note or memorandum to be signed by both parties but only by the party to be charged therewith. This is usually the defendant in an action to enforce the contract; though it may be the plaintiff if the defendant sets up the contract either as a defense or as a ground for affirmative relief. Accordingly a contract, note or memorandum is sufficient if signed by the party to be charged therewith though not signed by the party seeking to enforce it.1 Thus a memorandum of a contract to convey land, signed by the vendor2 alone, or to devise realty, signed by the promisor,3 or a lease, signed by the lessor only and accepted by the lessee,4 may be enforced by the promisee.
8 Morris v. Mckee, 96 Ga. 611; 24 S. E. 142; Bray v. Irrigation Co., 4 Ida. 685; 44 Pac. 432.
1 Bloom v. Hazzard, 104 Cal. 310; 37 Pac. 1037; Martin v. Ede, 103 Cal. 157; 37 Pac. 199; Cavanaugh v. Casselman, 88 Cal. 543; 26 Pac. 515; Hodges v. Rowing, 58 Conn. 12; 7 L. R. A. 87; 18 Atl. 979; Black v. Maddox, 104 Ga. 157; 30 S. E. 723; Gradle v. Warner, 140 111. 123; 29 N. E. 1118; Perkins v. Hadsell, 50 111. 216; Raphael v. Hartman, 87 111. App. 634; Burke v. Mead, 159 Ind. 252; 64 N. E. 880; Lloyd v. O'Rear (ky.), 59 S. W. 483; Broassard v. Verret, 43 La. Ann. 929; 9 So. 905; Hunter v. Gid-dings, 97 Mass. 41; 93 Am. Dec. 54; Old Colony R. R. v. Evans, 6 Gray (Mass.) 25; 66 Am. Dec. 394; Bowers v. Whitney, 88 Minn. 168; 92 X. W. 540; Western Land Association v. Banks, 80 Minn. 317; 83 N. W. 192; Kessler v. Smith, 42 Minn. 494; 44 N. W. 794; Atkinson v. Whitney, 67 Miss. 655; 7 So. 644; Marqueze v. Caldwell, 48 Miss. 23;
Mastin v. Grimes, 88 Mo. 478; Black v. Crowther, 74 Mo. App. 480; Cunningham v. Williams, 43 Mo. App. 629; Ballou v. Sherwood, 32 Neb. 666; 49 N. W. 790; 50 N. W. 1131; Gartrell v. Stafford, 12 Neb. 545; 41 Am. Rep. 767; Sabre v. Smith, 62 N. H. 663; Thayer v. Luce, 22 O. S. 62; Brodhead v. Reinbold, 200 Pa. St. 618; 86 Am. St. Rep. 735; 50 Atl. 229; Witman v. Reading, 191 Pa. St. 134; 43 Atl. 140; McPherson v. Fargo, 10 S. D. 611; 65 Am. St. Rep. 723; 74 N. W. 1057; Merchants' Coal Co. v. Bill-meyer, - W. Va. -; 46 S. E. 121. 2 Ross v. Parks, 93 Ala. 153; 30 Am. St. Rep. 47; 11 L. R. A. 148; 8 So. 368; Black v. Maddox, 104 Ga. 157; 30 S. E. 723; Western Land Association v. Bank, 80 Minn. 317; 83 N. W. 192; Gardels v. Kloke, 36 Neb. 493; 54 N. W. 834; Sylvester v. Born, 132 Pa. St. 467: 19 Atl. 337; Monogah, etc.. Co. v. Fleming, 42 W. Va. 538; 26 S. E. 201.
On the other hand, a memorandum signed by a lessee,5 or by a vendee,6 renders the contract enforceable against the party signing it at the instance of the adversary party though he did not sign it. So a contract for the sale of chattels within the statute, signed by the buyer alone, who is sought to be charged may be enforced by the seller.7 However, there must be evidence of acceptance by the party who does not sign.8 This is merely a general principle of contract law.9
There is a conflict of authority on this point, however, and some cases hold that unless both sign, neither is bound.10 This seems to be adding by judicial legislation to the plain requirements of the statute. It is a view most commonly expressed by such courts of equity as hold that in order to have specific performance, there must be mutuality of remedy as well as mutuality of obligation.11 Even where the view last expressed obtains, it. is held that if the party who does not sign, accepts and acts under the written memorandum, the party who signs is bound.12 This view, of course, prevails where it is held that only the party to be charged need sign. There are, however, jurisdictions where it is held that an oral acceptance is insufficient unless the
3 Howe v. Watson, 179 Mass. 30; 60 N. E. 415.
4 Carnegie Natural Gas Co. v. Philadelphia Co., 158 Pa. St. 317; 27 Atl. 951.
5 Lagerfelt v. McKie, 100 Ala. 430; 14 So. 281 (a lease of realty) ; Singer Mfg. Co. v. Converse, 23 Colo. 247; 47 Pac. 264 (a lease of a sewing machine).
6 Hodges v. Rowing, 58 Conn. 12; 7 L. R. A. 87; 18 Atl. 979.
7 Kessler v. Smith, 42 Minn. 494; 44 N. W. 794.
8 Castro v. Gaffey, 96 Cal. 421; 31 Pac. 363.
9 See Sec. 41.
10Sykes v. Dixon, 9 Ad. & El. 693; Krohn v. Bantz, 68 Ind. 277; Wilkinson v. Heavenrich, 58 Mich. 574; 55 Am. Rep. 708; 26 N. W. 139. (A case which observes that the conflict of authority on this point is "truly bewildering.")
11 See Sec. 1615 et seq.
12 Ross v. Parks, 93 Ala. 153; 30 Am. St. Rep. 47: 11 L. R. A. 148; 8 So. 368; Harriman v. Tyndale, 184 Mass. 534; 69 N. E. 353; Mull v. Smith, - Mich. -; 94 N. W. 183.
A written contract or memorandum thereof within the statute signed by one party only cannot be enforced against the adversary party." So a contract signed by one co-tenant cannot be enforced against the other,15 nor can a contract signed by a partnership in the firm name be enforced against one who subsequently becomes a member of such partnership and accepts such contract orally.16 It has been held that a contract for the sale of realty cannot be enforced against a vendee who has not signed, even if he has gone into possession under such contract.17
Some statutes require the memorandum to be signed by the party by whom the sale is made. Under such statutes, a contract of sale signed by the vendor only may be enforced either against him,18 or against the vendee.19 Some statutes specifically provide that both parties must sign. Under such a statute signatures of a written contract by one and oral acceptance by the other is insufficient.20