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 Lawrenson v. Butler, 1 Schoales & L. 13, per Lord Redesdale. And see Armiger v. Clarke, Bunbury 111; Troughton v. Troughton, 1 Ves. Sr. 86; Parkhurst v. Van Cortlandt, 1 Johns (N. Y.) Ch. 273; Benedicts Lynch, 1 Johns. (N. Y.) Ch. 370.
2 Hatton v. Gray, 2 Ch. Cas. 164; Coleman v. Upcot, 5 Vin. Ab. 528, pl. 17; Flight v. Bolland, 4 Russ. 298; Seton v. Slade, and Hunter v. Seton, 7 Ves. 265; Child v. Comber, 3 Swanst. 423, note; Bowen p. Morris, 2 Taunt. 374; Lord Ormond v. Anderson, 2 Ball & B. 363; Martin v. Mitchell. 2 Jac. & W. 413; Palmer v. Scott, 1 Russ. & M. 391: Sugden, Vend. & P. 112, 113; Ballard v. Walker, 3 Johns. (N. Y.) Cas. 60; Shirley v. Shirley, 7 Blackf. (IndJ 452; Roget v. Merritt, 2 Caines (N. Y.) 117; Parrish v. Koons, 1 Pars. (Pa.) Eq. 79; Lowry ground is that suggested by Story, viz.: "The agreement, although originally by parol, is now in part evidenced by writing under the signature of the party, which is a complete compliance with the terms of the statute."1 In other words, written contracts not being within the purview of the statute, the question is as to the enforcement of an oral agreement, evidenced in writing. There are several New York cases in which it is treated as an open question, whether a memorandum signed by one party and delivered to and accepted by the other, as the statement of the agreement between them, might not be binding upon the latter.2 In none of them, however, is it found necessary to pass upon it, nor is the reasoning given upon which the proposed rule would be sustained. With all due respect, we may be allowed to doubt whether, if applied, it would not be a dangerous relaxation of the provision of the law in this particular.
§ 367. The statute does not require the party's own signature to the memorandum, but allows it to be signed by "some other person thereunto by him lawfully authorized." It is held that a member of a corporation is a competent agent under this clause to sign for the corporation,3 or a partner for his firm;4 and, generally, little difficutly can arise as to who is qualified to act as such agent, the statute having imposed no disabilities in that respect beyond those existing at common law. One rule, however, has been settled, both under the fourth and seventeenth sections, that neither party can be the other's agent to bind him by signing the memov. Mehaffy, 10 Watts (Pa.) 387; Clason p. Bailey, 14 Johns. (N. Y.) 484; Ives v. Hazard, 4 R. I. 14; Sams v. Fripp, 10 Rich. (S. C.) Eq. 447; Old Colony R. R. Co. v. Evans, 6 Gray (Mass.) 25; Mastin v. Grimes, 88 Mo. 478.
1 Story Eq. Jur. § 755.
2 Roget v. Merritt, 2 Caines 117; Gale v. Nixon, 6 Cow. 445; Reynolds v. Dunkirk & State Line R. R. Co., 17 Barb. 613. See Smith v. Theobald, 86 Ky. 141.
3 Stoddert v. Vestry of Port Tobacco Parish, 2 Gill & J. (Md.) 227.
4 Kyle v. Roberts, 6 Leigh (Va.) 495; Sanborn v. Flagler, 9 Allen (Mass.) 474.
§ 368. One of the cases in which the rule that neither of the parties to the contract could be agent to sign for the other was applied, was Farebrother v. Simmons, decided in the Queen's Bench. There the action was on a memorandum made by an auctioneer, and was brought in the auctioneer's own name, and it was held that his entry was not evidence to take the case out of the statute.3 In a later case, Bird v. Boulter, in the same court, the facts proved' respecting the proceedings at the auction sale were somewhat peculiar. The auctioneer (who was the plaintiff, as in Farebrother v. Simmons) received the bids of the buyers, and repeated them aloud, and when the hammer fell, one Pitt, who attended for the purpose, called out the name of the purchaser, and, if the party assented, made an entry accordingly in the sale-book. In the case on trial, the auctioneer having named the defendant as purchaser of a lot of wheat which was knocked down to him, Pitt said to him, "Mr. Boulter, it is your wheat;" the defendant nodded, and Pitt made the entry in his sight, he being then within the distance of three yards. After verdict obtained for the plaintiff, it was urged upon a motion for nonsuit, that signature by the auctioneer's clerk was the same as signature by the auctioneer, and the rule insisted upon that one of the contracting parties could not be agent for the other, and Farebrother v. Simmons cited, but the verdict was sustained.1 The several judges, in their opinions, while fully admitting the authority of that case, strongly dwelt upon a distinction to the effect that, under the peculiar circumstances of the case before them, Pitt was not merely the auctioneer's clerk, but his agent for taking down the names and also the agent of the purchasers, whom they constituted such for the same purpose by acquiescing in his pro-ceedings. But some of the judges placed their decision upon the further ground that the party who signed the memorandum was not the plaintiff of record. And this seems to distinguish the case satisfactorily from Farebrother v. Simmons, while it suggests an important consideration in connection with the rule laid down in that case. For though the entries at an auction sale should be really made by the mere clerk of the auctioneer, still, in this view, the auctioneer could read it in evidence upon an action brought by himself. If the auctioneer were in any just sense a party in interest, or a party to the contract, it would be hard to admit the signature of his clerk as competent evidence, his own not being so. But there is a clear difference between the invalidity of a memorandum as signed by one who had no power to sign it, and its inadmissibility in evidence as signed by a party to the record. The latter objection is of a technical character, not affecting the writing, but only the remedy upon it. Where that is escaped by the form of the memorandum, there seems no good reason why the party entitled to sue upon it should not recover. The Court of Appeals of Virginia have fully upheld this distinction, in a case where they allowed an action by a sheriff upon a memorandum signed by his deputy.2