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.
Since the statute provides for a signature by an agent "lawfully authorized," a signature by one not authorized to act for another cannot, at least in the absence of ratification, bind such other.1 The party seeking to enforce the contract is bound to show that the person, other than the adversary party, who signs the memorandum, is the agent of such adversary party.2 An agent may bind his principal by a written memorandum, such as a letter, written within the scope of his authority, recognizing an unsigned written contract made by his principal, without special authority from his principal to sign such memorandum, and without authority to make such contract origin-ally.3
If both parties to the contract assent thereto the same person may act as agent for both, and in such cases the signature of such common agent to a note or memorandum of the contract binds both parties thereto.4 Thus oral authority given by a stockholder to the secretary of the corporation to put him down for a certain amount of new stock followed by the secretary's making such written subscription is a subscription in writing by the stockholder.5 However, a request by A to B's agent X to transmit a certain offer to B does not make X A's agent for the purpose of binding A by X's signature to such letter.6 Still less can the agent of one party represent the other without any request from him.7 The chief application of the rule that the same person may be the agent of both parties is found in aution sales. The auctioneer is the agent of the vendor by virtue of his appointment, and on receiving the bid he becomes the agent of the vendee for the purpose of closing the contract. It is on implied authority from the vendee that the auctioneer's power to represent him rests and not on any peculiarity of auction sales. Hence a memorandum made and signed not by the auctioneer but by the vendor's agent is not sufficient to bind the vendee.8 Accordingly the auctioneer's signature to a note or memorandum of the contract, made at the sale, is sufficient under the statute of frauds to bind both vendor and vendee.9 If he delays signing until after the sale, the validity of his memorandum depends on the existence of his authority.10 His
Life Ins. Co. v. Brown, 30 N. J. Eq. 193.
13 Cockrell v. Melntyre, 161 Mo. 59; 61 S. W. 648.
14Jones v. Wattles, - Neb. -; 92 N. W. 765.
15 Rank v. Garvey, - Neb. -; 92 N. W. 1025.
1 Wheeler, etc., Co. v. Barrett, 70 111. App. 222 (affirmed in Wheeler. etc., Co. v. Barrett, 172 111. 610; 50 N. E. 325, but without discussion of this point).
2 Clark County v. Howell, 21 Ind. App. 495; 52 N. E. 769.
3 John Griffiths Cycle Corporation v. Humber (1899), 2 Q. B. 414: following Jones v. Dock Co., 2 Q. B. Div. 314: explaining Smith v. Webster, 3 Ch. Div. 49.
4 Gill v. Hewitt, 7 Bush (Ky.) 10; White v. Mfg. Co., 179 Mass. 427; 60 N. E. 791; Morton v. Dean, 13 Met. (Mass.) 385; Springer v. Kleinsorge, 83 Mo. 152; Proctor v. Finley, 119 N. C. 536; 26 S. E. 128; Reid v. Packing Association, 43 Or. 429; 73 Pac. 337; Perkiomen Brick Co. v. Dyer, 187 Pa. St. 470; 41 Atl. 326; Christie v. Simpson, 1 Rich. Law. (S. C.) 407.
5 Perkiomen Brick Co. v. Dyer, 187 Pa. St. 470; 41 Atl. 326.
6 Soward v. Moss, 59 Neb. 71; 80 N. W. 268; reversing on rehearing 58 Neb. 119; 78 N. W. 373; Wilson v. Mill Co., 150 N. Y. 314; 55 Am. St. Rep. 680; 44 N. E. 959.
7 Moore v. Powell, 6 Tex. Civ. App. 43; 25 S. W. 472.
8Bamber v. Savage, 52 Wis. 110; 38 Am. Rep. 723; 8 N. W. 609.
9 Bird v. Boulter, 4 B. & Adol. 443; Burke v. Haley, 7 111. 614; Mc-Brayer v. Cohen, 92 Ky. 479; 18 S. W. 123; Gill v. Hewitt, 7 Bush. (Ky.) 10; Morton v. Dean. 13 Met. (Mass.) 385; Gill v. Bicknell, 2 Cush. (Mass.) 358; Proctor v. Fin-ley. 119 N. C. 536; 26 S. E. 128; Johnson v. Buck, 35 N. J. L. 338; 10 Am. Rep. 243; Pugh v. Chessel-dine, 11 Ohio 109; 37 Am. Dec. 414; Meadows v. Meadows, 3 McCord (S. C.) 458; 15 Am. Dec. 645.
10 This is sometimes treated as an authority as agent of the vendee terminates with the sale. A subsequent memorandum made by him cannot bind the vendee,11 especially if made after the vendee has repudiated the contract.12 The vendee may repudiate his bid at the sale if before the auctioneer has made a proper memorandum.13 Thus where a sheriff was acting as trustee in foreclosing a deed of trust and the vendee withdrew his bid two hours after the sale and before the sheriff had made a memorandum thereof, the vendee was not bound.14 His authority as agent of the vendor may exist for at least a reasonable time after the sale if not revoked. A memorandum made by him within a reasonable time after the sale may accordingly bind the vendor ;15 but his power to bind the vendor after the sale ceases if the vendor has revoked his authority with the knowledge of the vendee.16
One party to the contract cannot act as agent for the adversary party,17 even if he acts as auctioneer. Hence a trustee who acts as his own auctioneer cannot be an agent for the vendee,18 as where a guardian sells his ward's property at auction.19