3 Wheeler- v. Collier, Mood. & Malk. 125; Crowder v. Austin, 3 Bing. 368; Bowles v. Round, 5 Ves. 508.
4 See post, Illegal Sales.
5 Thornett v. Haines, 15 M. &. W. 367; Robinson v. Wall, 10 Beav. 61, 73; 2 Phillips, 372.
§ 422. In the next place, as to the operation of the statute of frauds upon sales by auction. This statute, in its fourth section, enacts, " that no action shall be brought whereby to charge any person upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereto by him lawfully authorized." And the seventeenth section of the same statute enacts, that " no contract for the sale of any goods, wares, and merchandises, for the price of ten pounds sterling or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same; or give something in earnest to bind the bargain, or in part payment; or that some note or memorandum in writing of the said bargain be made, and signed by the parties to be charged by such contract, or their agents, thereunto lawfully authorized." 2 Sales by auction are held to be within the terms of both these sections, on the ground that although they are made in the presence of many witnesses, yet, that such evidence ought not to be admitted merely because its quantity would render perjury less frequent; for an opportunity would, nevertheless, be afforded for an in-definiteness of construction, and an uncertainty of practice, which it was the very object of the statute to prevent.3
§ 423. As to the memorandum required by the fourth section, the rule is, that it should distinctly set forth the promise and the consideration, either in itself, or by reference, contained in itself, to something extrinsic, by which they may be made certain; that it should be feigned, at least by one party, and that the name of the other should appear on it.1 The exact terms of the consideration need not, however, be stated; provided it appear distinctly that there is some consideration.2 § 424. As to the memorandum required by the seventeenth section, it has been held, that it should contain the full terms of the contract; that is, the names of the buyer and seller, the subject of sale, the price, and the terms of credit, and the conditions of sale, if there be any.3 A mere signing of the auction catalogue with the prices of the article bought is not, therefore, sufficient, if there be any conditions of sale not stated therein.4 It is not necessary, however, that the memorandum should be signed by both parties, provided the name of the party charged be affixed thereto with his consent or by his order.6 Again, it is not necessary that all of the terms of the contract should appear upon the same paper; for if they can be clearly and unmistakably collected from several papers referring to each other, or from a defective memorandum, coupled with a letter referring thereto, and supplying the deficiency, it will be sufficient to satisfy the requisitions of the statute.6 But the memorandum, or papers, must be suffi-
1 Veazie v. Williams, 3 Story, 620.
2 The amount necessary to bring a sale within the provisions of this statute is fixed in New York at $50; in Vermont at $40; in Maine at $30; in New Hampshire at $33; and in Massachusetts at $50. In Rhode Island this particular provision has never been adopted.
3 Kenworthy v. Schofield, 2 B. & C. 947; Walker v. Constable, 1 Bos. & Pul. 306; Emmerson v. Heelis, 2 Taunt. 38; White v. Proctor, 4 Taunt. 209; Hinde v. Whitehouse, 7 East, 558.
1 Kenworthy v. Schofield, 2 B. & C. 947; Stapp v. Lill, 1 Camp. 242; s. c. 9 East, 348; Lyon v. Lamb, cited Fell on Merc. Guaranty, 318; Morris v. Stacey, Holt, N. P. 153; Champion v. Plummer, 1 Bos. & Pul. N. R. 252; Morley v. Boothby, 3 Bing. 107. See ante, § 347.
2 Ibid.; Stapp v. Lill, 1 Camp. 242; s. c. 9 East, 348.
3 Champion v. Plummer, 1 Bos. & Pul. N. R. 254; Kenworthy v. Schofield, 2 B. & C. 947; Kain v. Old, 2 B. & C. 627; Elmore v. Kingscote, 5 B. & C. 583; Saunderson v. Jackson, 2 Bos. & Pul. 238; Hinde v. White-house, 7 East, 558; Harvey v. Stevens, 43 Vt. 653 (1871). See Price v. Durin, 56 Barb. 647 (1868).
4 Hinde v. Whitehouse, 7 East, 558; Kenworthy v. Schofield, 2 B. & C. 947.
5 Johnson v. Dodgson, 2 M. & W. 653; Schneider v. Norris, 2 M. & S. 286; Egerton v. Mathews, 6 East, 307; Laythoarp v. Bryant, 3 Scott, 250; Weightman v. Caldwell, 4 Wheat. 85, and note; Penniman v. Hartshorn, 13 Mass. 92; Merritt v. Clason, 12 Johns. 102; Barstow v. Gray, 3 Greenl. 409; Douglass v. Spears, 2 Nott & M'Cord, 207; 2 Kent, Comm. 510, 511; Flight v. Bolland, 4 Russ. 298; Clason v. Bailey, 14 Johns. 487; Propert v. Parker, 1 Russ. & Myl. 625.
. 6 Saunderson v. Jackson, 2 Bos. & Pul. 238; Dobell v. Hutchinson, 3 Ad. & El. 356; Smith v. Surman, 9 B. & C. 561; Lent v. Padelford, 10 Mass.. 230; Phillimore v. Barry, 1 Camp. 513. vol. I. 24 ciently clear to express the whole contract, without resort to verbal testimony, since, otherwise, the very object of the statute would be frustrated. The only purpose for which parol evidence in relation to the memorandum is admitted, is as a means of interpretation and explanation, in cases where technical terms are employed.1
§ 425. This memorandum may be made not only by the parties, but by any "agent thereunto lawfully authorized." And in respect to this provision, the rule is, in auction sales, that the auctioneer is the agent of both parties, so as to bind them by an entry in his books of the terms of the sale;2 unless the facts of the particular case indicate that he is not so intended.3 So, also, a clerk of the auctioneer, who attends the sale, and in compliance with the auctioneer's proclamation, when he knocks an article down to the seller, makes a memorandum thereof in his books, without objection by the seller, is a sufficient agent within the meaning of the statute.4 If, however, the auctioneer be the agent, he cannot personally bring an action against the buyer; but the action must be brought in the name of the vendor, for whom he acts.5 Yet, if the auctioneer's deputy, or clerk, make the entry or memorandum, following the declaration of the auctioneer at the knocking off of the article, the auctioneer may maintain an action personally.6 That is, the agent must not appear in the action to be one of the parties, but to be a third person.7 An entry cannot, however, be made by a clerk, not present at the sale, and not making the memorandum in the presence and with the implied consent of the parties, but entering it afterwards at the request of the auctioneer.1 If the auctioneer is himself the party in interest, though as trustee or guardian for another, he has no authority to make the memorandum to bind the purchaser.2