1 Union Bank of Louisiana v. Coster, 1 Sandf. 563. See Bainbridge v. Wade, 16 Q. B. 89; 1 Eng. Law & Eq. 236.
2 Stapp v. Lill, 1 Camp. 242; 9 East, 348.
3 Kenworthy v. Schofield, 2 B. & C. 945. See Sarl v. Bourdillon, 37 Eng. Law & Eq. 415; 1 C. B. (h. s.) 188.
4 Champion v. Plummer, 1 Bos. & Pul. N. R. 252.
5 Kain v. Old, 2 B. & C. 627; Elmore v. Kingscote, 5 B. & C. 583; Kenworthy v. Schofield, 2 B. & C. 945.
6 Hoadly v. M'Laine, 10 Bing. 482; 4 Moore & Scott, 340.
7 Egerton v. Mathews, 6 East, 307; Laythoarp v. Bryant, 3 Scott, 250; 2 Bing. N. C. 735; 2 Stark. Ev. 356; Weightman v. Caldwell, 4 Wheat. 85, and note; Allen v. Bennet, 3 Taunt. 169; Sarl v. Bourdillon, 37 Eng. Law & Eq. 415; 1 C. B. (N. S.) 188; Western v. Russell, 3 Ves. & B. 187, 192; Martin v. Mitchell, 2 Jac. & Walk. 413, 426; Flight v. Bolland, 4 Russ. 298; Ballard v. Walker, 3 Johns. Cas. 60; Palmer p. Scott, 1 Russ. & Myl. 391; Seton v. Slade, 7 Ves. 265; Clason v. Bailey, 14 Johns. 484, 487; 2 Kent, Comm. 510; Long on Sales, 54; Russell v. Nicoll, 3 Wend. 112.
§ 1001. Again, if the terms of the contract can be collected from the correspondence of the parties, or from any two separate papers, referring manifestly to the same subject, it will be a sufficient memorandum, within the seventeenth section.6 But a mere written statement of the terms of a bargain made by the party charged will not be sufficient to charge him, unless it appear that he considered the bargain as complete, and intended to be bound by it.7
§ 1002. In all these cases, however, the contract must be perfectly intelligible from the writings themselves, without resort to verbal testimony; for otherwise the very object of the statute, which is to prevent controversies and collusive testimony, would be frustrated.1 Again, for the same reason, it is manifest that, if there be any material discrepancy or contradiction between letters or papers, this circumstance will prevent them from being a sufficient memorandum.2 Whether such contract have been complied with, and the extent to which it has been complied with, and the manner in which it has been performed, may be shown by verbal testimony. But the actual terms of the contract itself cannot be shown by verbal testimony, however full and complete it may be. And even sales by auction, which are held to be within both sections,3 although made in the presence of so many witnesses, and susceptible of such definite proof, are held to come within the rule of the statute, upon the ground that such evidence ought not to be allowed merely because its quantity would tend to render the perjury less frequent; for a door would thereby be opened to an indefiniteness of construction, and an uncertainty of practice, which would render the statute more mischievous than beneficial.4 Still, if the words used in the contract have acquired a technical sense, or if the usage of trade have assigned to them a particular meaning, parol evidence may be given, to ascertain and explain the sense in which they are used.6
1 Johnson v. Dodgson, 2 M. & W. 653; Schneider v. Norris, 2 M. & S. 286; Propert v. Parker, 1 Russ. & Myl. 625; Knight v. Crockford, 1 Esp. 190; Saunderson v. Jackson, 2 Bos. & Pul. 238; Stokes v. Moore, 1 Cox, 219; Selby v. Selby, 3 Mer. 2; Ogilvie v. Foljambe, 3 Mer. 53; Penniman v. Hartshorn, 13 Mass. 87.
2 Propert v. Parker, 1 Russ. & Myl. 625; Knight v. Crockford, 1 Esp. 190.
3 Schneider v. Norris, 2 M. & S. 286; Batturs v. Sellers, 5 Harr. & John. 117.
4 Johnson v. Dodgson, 2 M. & W. 653; Long on Sales, Rand's ed. 57. 5 Stark. Ev. 651, and cases cited.
6 Saunderson v. Jackson, 2 Bos. & Pul. 238; 3 Esp. 180; Dobell v. Hutchinson, 3 Ad. & El. 355; Smith v. Surman, 9 B. & C. 561; Richards v. Porter, 6 B. & C. 437; Kenworthy v. Schofield, 2 B. & C. 945; Allen v. Bennet, 3 Taunt. 169; Jackson v. Lowe, 1 Bing. 9; Gale v. Nixon, 6 Cow. 445; Hemming v. Perry, 2 Moore & Payne, 375; Gosbell v. Archer, 4 Nev. & Man. 485; Hinde v. Whitehouse, 7 East, 558; Lent v. Padelford, 10 Mass. 230; Phillimore v. Barry, 1 Camp. 513; Coldham v. Showier, 10 Jurist, 552; 3 Com. B. 312.
7 2 Stark. Ev. and cases cited; Johnson v. Dodgson, 2 M. & W. 653.
§ 1003. In regard to the authority of the agent, it is sufficient that he be recognized as such by the parties for whom he acts. He must, however, be a third person.6 An auctioneer or a broker is, therefore, considered as the agent of both parties, and binds them by an entry of the contract in his books, or by the bought and sold notes, which he delivers, if they correspond.1 But if there be any contradiction or material difference between the bought and sold notes which a broker delivers, they do not constitute a sufficient memorandum.2 Thus, where a bought note described a certain article which had been sold as "Riga Rhine hemp," and the sold note described it as "St. Petersburg clean hemp," it was held that the notes did not indicate the same bargain, the one article being much better than the other, and that they were not a sufficient memorandum to bind the parties.3 But a mere formal and unimportant difference will not destroy the effect of the notes as constituting a memorandum of the contract.4 If the notes agree together, but differ from the entry of the broker in his books, the notes are to be taken as the memorandum, and they are not considered as affected by the entry.6
1 Kain v. Old, 2 B. & C. 627; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273, 280; Abeel v. Radcliff, 13 Johns. 297; Goss v. Nugent, 5 Barn. & Ad. 58; Stowellr. Robinson, 3 Bing. N C. 928; Harvey v. Grabham, 5 Ad. & El. 61; 2 Kent, Comm. 498 and 511; Ford v. Yates, 2 M. & G. 549. See Sievewright v. Archibald, 17 Q. B. 103; 6 Eng. Law & Eq. 286.
2 Cooper v. Smith, 15 East, 103; Bichards v. Porter, 6 B. & C. 437; Smith v. Surman, 9 B. & C. 561.
3 Kenworthy v. Schofield, 2 B. & C. 945; Walker v. Constable, 1 Bos. & Pul. 306; Buckmaster v. Harrop, 13 Ves. 456.