This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
1 Bluck v. Gompertz, 7 Exch. 869, note. 2 Selby v. Selby, 3 Meriv. 2.
§ 363. It has been often attempted to carry the point that where a memorandum is inserted by the plaintiff or his agent in the defendant's book, and at his request, the latter should be taken to have signed it; but the courts appear to have uniformly rejected such notion, and with manifest reason.2 It is enough that there is evidence that the party sought to be charged upon the contract regarded it as concluded by him; the statute specifies actual signature as the proper proof of that fact.
§ 364. As regards more especially the manner of signing by an agent, it seems now well settled that the instrument, in order to bind the principal, need not be executed in his name, or as his act; but that it is sufficient if it appear that the party signing acts as agent in so doing, and with intent to bind the third party as his principal.3
§ 365. The requisition of the statute in the fourth section is that the memorandum be signed by the party to be charged. And it is now uniformly held that, under this clause, the signature of the defendant alone, or the party who is to be charged upon the agreement, is sufficient, although, as we shall see hereafter, it is necessary, in another view, that the plaintiff, or party who seeks to charge the defendant, be designated in the memorandum.1 In the seventeenth section, relating to sales of goods, etc., the word parties, in the plural, is used, and this distinction was once urged in an early case in the Common Pleas,2 but the court declined to take it;3 and indeed, as we have remarked once or twice before, it would be manifestly unsafe, even if it were possible with consistency, to base broad rules of interpretation upon mere literal variations in the language of different parts of an enactment so unsystematically put together as the Statute of Frauds and Perjuries. That the singular and plural of the word in question were intended to be taken in the same way seems, moreover, quite plain from the addition of the same words, "to be charged," after each; those words being, in the seventeenth section, merely redundant, if both parties must sign.
1 Phillimore v. Barry, 1 Camp. 513; Salmon Falls Mfg. Co. v. God-dard, 14 How. (U. S.) 446; Barry v. Coombe, 1 Pet. (U. S.) 640: Sanborn v. Flagler, 9 Allen (Mass.) 474. See, however, Sweet v. Lee, 3 Man. & G. 452; Hubert v. Moreau, 2 Car. & P. 528.
2 Champion v. Plummer, 5 Esp. 240; Graham v. Musson, 5 Bing. N: R. 603; Graham v. Fretwell, 3 Man. & G. 368; Barry v. Law, 1 Cranch (C. C.) 77; Newby v. Rogers, 40 Ind. 9; Groover v. Warfield, 50 Ga. 644.
3 Kenworthy v Schofield, 2 Ram. & C. 945; Wilson v. Hart, 7 Taunt. 295; Kelner v. Baxter, L. R. 2 C. P. 174; Dykers v. Townsend, 24 N. Y. 57; Williams v. Bacon, 2 Gray (Mass.) 387, per Merrick, J.; Sanborn v. Flagler, 9 Allen (Mass.) 474, per Hoar, J. But see Squier v. Norris, 1 Lans. (N. Y.) 282; Wheeler v. Walden, 17 Neb. 122.
1 Laythoarp v. Bryant, 2 Bing. N. R. 735; Huddleston v. Briscoe, 11 Ves. 583; Hatton v. Gray, 2 Ch. Cas. 164; Seton v. Slade, 7 Ves. 265; Fowle v. Freeman, 9 Ves. 351; Schneider v. Norris, 2 Maule & S. 286; Allen v. Bennet, 3 Taunt. 169; Martin v. Mitchell, 2 Jac. & W. 426; Clason v. Bailey, 14 Johns. (N. Y.) 484; M'Crea v. Purmort, 16 Wend. (N. Y.) 460; Justice v Lang, 42 N. Y. 493; Gage v. Jaqueth, 1 Lans. (X. Y.) 207; Penniman p. Hartshorn, 13 Mass. 87; Old Colony R. R. Co. v. Evans, 6 Gray (Mass.) 25; Shirley v. Shirley, 7 Blackf. (Ind.) 452; Barstow v. Gray, 3 Greenl. (Me.) 409; Douglass v. Spears, 2 Nott & M. (S. C ) 207; Marqueze v. Caldwell, 48 Miss. 23; Newby v. Rogers, 40 Ind 9; Morin v. Martz, 13 Minn. 191; Reuss v. Picksley, L. R. 1 Ex. 342; Moore v. Powell, 25 S. W. Rep. (Tex.) 472; Slater v. Smith, 117 Mass. 95; Hodges v. Rowing, 58 Conn. 12; Oliver v. Alabama Gold Life Ins. Co., 82 Ala. 417; Moses v. McClain, 82 Ala. 370; Smith p. Jones, 66 Ga. 338; Love v. Welch, 97 N. C. 200; Putnam v. Dungan, 89 Cal. 231; Guthrie v. Anderson, 47 Kansas 383; Guthrie v. Anderson, 49 Kansas 416; Easton v. Montgomery, 90 Cal. 307; Gardels v. Kloke, 36 Neb. 493. See Winn v. Henry, 84 Ky. 48. But see Marcus v. Barnard, 4 Rob (N.Y.) 219. It has been held in Tennessee, that the memorandum of contract for the sale of an interest in land must be signed, in all cases, by the vendor. Frazer v. Ford, 2 Head 464. In Michigan a different rule prevails. Wilkinson v. Heavenrich, 58 Mich. 574.
2 Allen v. Bennet, 3 Taunt. 169, per Shepherd, Serjt., arguendo. In Wisconsin the statute requires this. See Docter v. Hellberg, 65 Wisc. 415.
3 See Stapp v. Lill, 1 Camp. 242. In New York, the Revised Statutes (see Appendix) provide that in contracts for the sale of land the vendor shall always sign. Coles v. Bowne, 10 Paige 526; McWhorter v. McMahan, 10 Paige 386; Champlain v. Parish, 11 Paige 405; National Fire Ins. Co. v. Loomis, 11 Paige 431; Worrall v. Mann, 5 N. Y. 229. It has been suggested that, possibly, the legislature of that State, by simply providing that the vendor shall sign, and being silent as to the purchaser, have left the law in such position that the latter may be bound by an agreement which he has not, though the former has, signed. Miller v. Pelletier, 4 E.lw. Ch. 102.
§ 366. It has been seriously doubted by a very eminent judge, whether an agreement, of which the memorandum was signed by one party only, should be enforced against the other in a court of equity; upon the ground that, if so, it would follow that the court would decree a specific performance when the party called upon to perform might be in this situation, that if the agreement was disadvantageous to him he would be liable to the performance, and yet, if advantageous to him, he could not compel a performance.1 Notwithstanding this doubt, however, the rule is firmly settled that in equity for obtaining a specific execution, as well as at law for recovering damages, the signature of the party who makes the engagement is all that the statute requires; and this is put upon the ground, in addition to the unqualified language of the statute itself, that the plaintiff by his act of filing the bill has made the remedy mutual.2 But a more satisfactory randum.1 And it makes no difference that the pretended agent has not himself any beneficial interest in the contract, but stands in a fiduciary relation to third persons, so long as he is, in a legal point of view, the real party to, and the proper one to sue upon, the contract.2