4 Williams v. Byrnes, 1 Moore, P. C. (N. S.) 154 (1863), a carefully considered case on this subject. See, also, Williams v. Lake, 2 El. & E. 349 (1859); Vandenbergh v. Spooner, 4 H. & C. 519 (1866). A contract might arise at common law upon a writing in which the name of the promisee was not indicated; of which the offer of a reward is a familiar instance. Williams v. Byrnes, supra.
5 Merritt v. Clason, 12 Johns. 102; Draper v. Pattina, 2 Speers, 292; Geary v. Physic, 5 B. & C. 234; Clason v. Bailey, 14 Johns. 484; McDowel v. Chambers, 1 Strob. Eq. 347.
6 Godwin v. Francis, Law R. 5 C. P. 295 (1870).
§ 1454. 3d. What is sufficient when the paper is signed by an agent ? The authority of the agent may be by parol, and it is only required that he be previously empowered to act as an agent, or that his authority be subsequently recognized by the party for whom he acts.2 But the law will not presume an authority on the part of the agent; it must result from a special authorization by the principal, or clearly arise by implication from the nature of his employment.3 So, too, if the actual writing or the circumstances of the case show that the signing is incomplete, and that the subsequent signature of the principal was looked to as fully executing it, the signing by the agent would not be sufficient.4 It should, however, appear that he signs as agent, for if nothing appear to indicate his agency to the party with whom he deals, such party could not be charged by the person for whom he acts.5 He need not, however, state his agency on the paper, but may sign his own name solely, if he be clearly understood to act in such capacity, and parol evidence is admissible to show that he was recognized by the other party as so acting.6
§ 1455. The agent must be a third person, and one party cannot act as agent for the other.7 But one person may be the agent of both parties, as in the case of an auctioneer or broker,1 who may bind both parties by an entry in his books or by the bought and sold notes he delivered,2 provided they correspond, and not otherwise,3 unless, indeed, the difference be wholly immaterial.4 The language used in bought and sold notes may be explained by parol, and a variance between them may be shown not to affect the contract.6
1 Schneider v. Norris, 2 M. & S. 286; Saunderson v. Jackson, 3 Esp. 180; Durrell v. Evans, 1 H. & C. 174.
2 Maclean v. Dunn, 4 Bing. 722; Trueman v. Loder, 11 Ad. &E1. 589.
3 Graham v. Musson, 5 Bing. N. C. 603; Hawkins v. Chace, 19 Pick. 502; Dixon v. Broomfield, 2 Chitty, 205; Pitts v. Beckett, 13 M. & W. 743; Hodgkins v. Bond, 1 N. H. 284.
4 Hubert v. Turner, 4 Scott, N. R. 486; Stokes v. Moore, 1 Cox, 219. See note 1, p. 675.
5 Shaw v. Finney, 13 Met. 453.
6 Trueman v. Loder, 11 Ad. & El. 589.
7 Wright v. Dannah, 2 Camp. 203; Sewall v. Fitch, 8 Cowen, 215; Rayner v. Linthorne, 2 C. & P. 124; Farebrother v. Simmons, 5 B. & Ald. 333; Sharman v. Brandt, Law R. 6 Q. B. 720 (1871); Bent v. Cobb, 9 Gray, 397; Johnson v. Buck, 6 Vroom, 338 (1872). See ante, § 1003.
§ 1456.. The seventeenth section of the Statute of Frauds enacts that no contract for the sale of any goods, wares, or merchandises for the price of ten pounds sterling or upwards shall be allowed to be good, except, 1st, the buyer shall accept part of the goods so sold, and actually receive the same, or, 2d, give something in earnest to bind the bargain or in part payment, or, 3d, 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 agent, thereunto lawfully authorized.
§ 1457. The general construction of this section is similar to that of the fourth section just considered, in respect to the first exception relating to the note or memorandum required, and the signature of the party or his agent; but the first exception that "the buyer shall accept part of the goods, and actually receive the same," has given rise to various apparently conflicting decisions as to what constitutes a sufficient delivery and acceptance under the statute, the question being by no means carefully distinguished in the language of the courts from the different questions as to what constitutes a sufficient delivery and acceptance to give a right of property, or to destroy a stoppage in transitu, or to annihilate the seller's right of lien. These questions are fully considered in the portion of this book relating to contracts of sale, to which the reader is here referred. The general rules may, however, be here stated.
1 See ante, §425-429, § 1003, and cases cited; Farebrother v. Simmons, 5 B. & Ald. 333; Morton v. Dean, 13 Met. 385; Coles v. Trecothick, 9 Ves. 234.
2 Ante, § 429, § 1003, and cases cited.
3 Thornton v. Kempster, 5 Taunt. 786.
4 Maclean v. Dunn, 1 M. & P. 778; 4 Bing. 722.
5 Kempson v. Boyle, 3 H. & C. 763 (1865); Rogers v. Hadley, 2 Id. 227, apparently overruling any thing to the contrary in Townend v. Drakeford, 1C.&K. 20.
§ 1458. The terms "accept" and "actually receive" have been construed to mean a final appropriation by the buyer of the whole or a part of the goods; and there must be such an acceptance as to destroy the seller's right of lien, and of stoppage in transitu.1 A delivery, therefore, to a carrier or middle-man will not be sufficient,2 unless such person be authorized finally to accept them, and actually do; and whether this is the case or not is a question for the jury.8 A mere marking and setting aside the goods will not satisfy the requisitions of the statute, unless a specific time be agreed for payment, because the vendor would still have his lien.4 But an order for the delivery of goods which absolutely changes the possession of the vendor takes the case out of the statute.5 And although he have received them, yet so across the hand of the seller, would not be sufficient.1 There is no practical distinction between the terms earnest and part payment within the meaning of this exception, - all that is required is that some portion of the price be actually given, however small. But part payment is not sufficient, unless accepted. If the vendee sends the money by mail, and the vendor returns it, the statute is not complied with.2 The mere agreement, contemporaneous with the verbal contract, that a previous debt owing from the seller to the buyer should be discharged and go as part payment, would not be sufficient to answer the requisitions of the statute.8