Mass. 230. In Packard v. Richardson, 17 Mass. 122, where the action was on an indorsement of a promissory note in these words, "We acknowledge ourselves to be holden as surety for the payment of the within note," the defendants were held liable. Parker, C. J., said: "The obvious purpose of the legislature would seem to be to protect men from hasty and inconsiderate engagements, they receiving no beneficial consideration, and against a misconstruction of their words by the testimony of witnesses, who would generally be in the employment and under the influence of the party wishing to avail himself of such engagements. To remove this mischief, the promise or engagement shall be in writing, and signed; in order that it may be a deliberate act, instead of the effect of a sudden impulse, and may be certain in its proof, instead of depending upon the loose memory or biassed recollection of a witness. The agreement shall be in writing, - what agreement? The agreement to pay a debt, which he is under no moral or legal obligation to pay, but which he shall be held to pay if he agrees to do it, and signs such agreement.
"This appears to be the whole object and design of the legislature; and this is effected without a formal recognition of a consideration, which, after all, is more of a technical requisition than a substantial ingredient in this sort of contracts. And it would seem, further, that the legislature chose to prevent an inference that the whole contract or agreement must be in writing; for it is provided that some memorandum or note thereof in writing shall be sufficient. What is this but to say that if it appear by a written memorandum or note, signed by the party, that he intended to become answerable for the debt of another, he shall be bound, otherwise not?
"How, then, is it possible, with these expressions in the statute, to insist upon a formal agreement, containing all the motives or inducements which influenced the party to become bound? Yet such is the decision of the Court of King's Bench, in the case of Wain v. Warlters, 5 East, 10." See, also, Sage v. Wilcox, 6 Conn. 81; Tufts v. Tufts, 3 Woodb. & M. 456; Levy v. Merrill, 4 Greenl. 180; Buckley v. Beardslee, 2 South. 570; Reed v. Evans, 17 Ohio, 128; How v. Kemball, 2 McLean, 103; Gillighan v. Boardman, 29 Me. 79.
1 Jackson v. Lowe, 1 Bing. 9; Redhead v. Cator, 1 Stark. 14; Dobell v. Hutchinson, 3 Ad. & El. 355; Brettel v. Williams, 4 Exch. 623; Saun-derson v. Jackson, 2 Bos. & Pul. 238; Emmott v. Kearns, 5 Bing. N. C. 559; Forster v. Hale, 3 Ves. 696; Ide v. Stanton, 15 Vt. 686. See ante, § 1116, note, for other cases.
§ 1450. 2d. What is a sufficient signing ? It is not necessary that the agreement itself should be signed and subscribed by the promisor, provided he acknowledge in writing, by letter or otherwise, that the contract as stated in some other paper or letter is his.1 Thus, where only a verbal agreement was made, but a letter was subsequently written by one party, containing a statement of the terms of the contract, which the other party in his answer acknowledged as being correct, it was held to be sufficient.2 But where the paper containing the terms of the contract is not signed, it must clearly appear that the writing acknowledging the contract refers unequivocally thereto, for any fair doubt in such a case would be fatal.3 A fortiori, if the terms be stated differently in the two papers, the contract would be void.4
1 Archer v. Baynes, 5 Exch. 625. In this case various letters passed, but they did not clearly explain whether the contract was a sale by sample or not, and it was held that the contract was void by the statute. Alderson, B., said: "No doubt if the letter of the plaintiff of the 3d of October, and of the defendant in answer, taken together, contained a sufficient contract, namely, one that would express all its terms, they would constitute a memorandum in writing within the statute. We have no difficulty, therefore, in coming to the conclusion that these letters may be looked at for the purpose of seeing whether or not they contain a sufficient contract to take the case out of the statute; but looking at them, we do not think they do. They do not express all the terms of the contract; and the case is in truth governed by Richards v. Porter, which was cited in the course of the argument, and in which Lord Tenterden gave a similar decision as to a document of a similar nature which was then before him. There is a distinct refusal on the part of the defendant to accept the flour which he had bought of the plaintiff. It is clear from the letters that he had bought the flour from the plaintiff upon some contract or other; but whether he bought it on a contract to take the particular barrels of flour which he had seen at the warehouse, or whether he had bought them on a particular sample which had been delivered to him, on the condition that they should agree with that sample, does not appear; and that which is in truth the dispute between the parties is not settled by the contract in writing." Richards v. Porter, 6 B. & C. 437.
2 Brodie v. St. Paul, 1 Ves. Jr. 326; Ide v. Stanton, 15 Vt. 685; Clinan v. Cooke, 1 Sch. & L. 22; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273; Richards v. Porter, 6 B. & C. 437; Archer v. Baynes, 5 Exch. 625.
3 Owen v. Thomas, 3 My. & K. 353.
4 Bradford v. Roulston, 8 Irish Com. Law, 468 (1858).
§ 1451. Again, it is not necessary that the memorandum be subscribed at the end by the promisor, provided his name be written by him, or by his authority, in the body of the memorandum, and the circumstances of the case do not show that he did not intend to be bound thereby,5 - as if he make signature already written, words are introduced into a paper or an alteration is made in it, they will be considered authenticated if they be plainly intended so to be.1 In some of the States of this country the word "subscribed" is substituted for the word "signed," and the signature is required, therefore, to be at the end.2