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 Shaw v. Finney, 13 Met. (Mass.) 453. See Davis v. Shields, 26 Wend. (N. Y.) 341.
2 Simon v. Motivos or Metivier, 1 W. Bl. 599; 3 Burr. 1921; Hinde v. Whitehouse, 7 East 558; Coles v. Trecothick, 9 Ves. 234; Buckmaster v. Harrop, 7 Ves. 341; Blagden v. Bradbear, 12 Ves. 466; Stansfield v. Johnson, 1 Esp. 101; Walker v. Constable, 1 Bos. & P. 306; Emmerson v. Heelis, 2 Taunt. 38; White v Proctor, 4 Taunt. 209; Kenworthy v. Schofield, 2 Barn. & C. 945; Morton v. Dean, 13 Met. (Mass.) 385; Gill v. Bicknell, 2 Cush (Mass.) 355; M'Comb v. Wright, 4 Johns. (N. Y.) Ch. 659; Cleaves v. Foss, 4 Greenl. (Me.) 1; Inhabitants of Alna v. Pluramer, 4 Greenl. (Me.) 258; Singstack v. Harding, 4 Harr. & J. (Md.) 186; Smith v. Jones, 7 Leigh (Va.) 165; Adams v. M'Millan, 7 Port. (Ala.) 73; Gill v. Hewett, 7 Bush (Ky.) 10; Gordon v. Sims, 2 McCord (S. C.) Ch. 164; Endicott v. Penny, 14 Smedes & M. (Miss.) 144; Anderson v. Chick, Bail. (S. C.) Eq. 118; Parton v. Crofts, 16 C. B. N. S. 11; Jackens v. Nicolson, 70 Ga. 198; Ansley v. Green, 82 Ga. 181; Springer v. Kleinsorge, 83 Mo. 152.
3 Christie v. Simpson, 1 Rich. (S. C.) Law, 407; Endicott v. Penny, 14 Smedes & M. (Miss.) 144; Robinson v. Garth, 6 Ala. 204; Ennis v. Waller, 3 Blackf. (Ind.) 472; Brent v. Green, 6 Leigh (Va.) 16; Carring-ton v. Anderson, 5 Munf. (Va.) 32; Jones v. Kolsomo Association, 77 Ind. 340; White v. Farley, 81 Ala. 563.
4 Smith v. Arnold, 5 Mas. (C. C.) 414.
1 Jenkins v. Hogg, 2 Tread. (S. C.) 821; Gordon v. Sims, 2 McCord, (S. C.) Ch. 151; Hutton v. Williams, 35 Ala. 503.
2 Hart v. Woods, 7 Blackf. (Ind) 5G8. The clerk, entering a release of record in open court, by verbal direction, is considered the agent of both parties for so doing. Boykin v. Smith, 3 Munf. (Va.) 102; Huston v. Cincinnati & Zanesville R. R. Co., 21 Ohio St. 235.
3 Walker v. Herring, 21 Grat. (Va.) 678; Anderson v. Chick, Bail. (S. C.) Eq. 118; Adams v. Scales, 1 Baxt (Tenn.) 337.
4 Sewall v. Fitch, 8 Cow. (N. Y.) 215; Batturs v. Sellers, 5 Harr. & J. (Md.) 117.
5 Coles v. Trecothick, 9 Ves. 234; Gosbell v. Archer, 2 Ad. & E. 500; Bird v. Boulter, 4 Barn. & Ad. 443; Henderson v. Barnewall, 1 Young & J. 387; Gill v. Bicknell, 2 Cush. (Mass.) 355; Smith v. Jones, 7 Leigh (Va.) 165; First Baptist Church of Ithaca v. Bigelow, 16 Wend. (N. Y.) 28; Frost v. Hill, 3 Wend (N. Y.) 380; Doty v. Wilder, 15 111. 407; Inhabitants of Alna v. Plummer, 4 Greenl. (Me.) 258; Adams v. M'Mil-lan, 7 Port. (Ala ) 73; Brent v. Green, 6 Leigh (Va.) 16: Hart v. Woods, 7 Blackf. (Ind.) 508. Contra, Meadows v. Meadows, 3 McCord (S. C ) Law, 458; Entz v. Mills, 1 McMull. (S. C.) Law, 453; Christie v. Simpson, 1 Rich. (S. C.) Law 407. But see Peirce v. Corf, L. R. 9 Q. B. 210; Springer v Kleinsorge, 83 Mo. 152.
6 Henderson v. Barnewall, 1 Young & J. 387; Johnson v. Mulry, 4 Rob. (N. Y.) 401. And see Boardman v. Spooner, 13 Allen (Mass.) 353.
7 Townend v. Drakeford, 1 Carr. & K. 20.
§ 370. The agent must be "thereunto lawfully authorized." It has been held that one who was acting at the time as legal attorney for the party in whose behalf he signed the memorandum, did not necessarily have power so to sign, by virtue of that relation.2 At the same time, the court by their emphatic reference to the words "thereunto lawfully authorized," might seem to imply that the agency for the purpose of signing an agreement under the statute, must in all cases be specifically given; but, in the absence of any decision to that effect, we may well doubt whether a general agency sufficiently comprehensive in its terms would not be sufficient; though, of course, even an actual signature by the agent in such a case might be controlled by circumstances showing that it was not intended by the principals that it should bind them; as in Hubert v. Turner,3 where the instrument was signed by an agent whose general authority embraced his so doing, but the signature was followed by the words, "as witness our hands," on which the court held the defendants intended themselves to sign, and that they were not bound. Of course, the power must embrace the act of signature; if it extend only to settling the terms of the contract,4 or taking notes, or writing out the agreement,1 or doing anything else merely preliminary to the signature, it is insufficient.
1 Story on Agency, §§ 13, 109; Blore v. Sutton, 3 Meriv. 237.
2 Bushell p. Beavan, 1 Bing. N. R. 103.
3 Hubert v. Turner, 4 Scott N. R. 486; and see Smith v. Webster, 3 Ch. Div. 49.
4 Coleman v. Garrigues, 18 Barb. (X. Y.) 60; Rice v. Rawlings, Meigs (Tenn.) 496; Edwards v. Johnson, 3 Houst. (Del.) 435; Taylor v. Merrill, 55 111. 52; Rutenberg v. Main, 47 Cal. 213.
§ 370 a. The agent for signing may, in all the cases enumerated in the fourth section, be appointed without writing,2 unless, of course, the memorandum to be signed is to be sealed also, in which case the power must be conferred by an instrument of equal dignity.3 The authority in cases of advised by him so to do. Thereupon N. wrote out in his book a sale-note in duplicate, each part of which was dated "19th October." At the request of the defendants, the date in each part was, with the plaintiff's consent, altered by N. to the "20th October," in order to give defendant a longer time for payment, and then one part so altered was torn from the book by N. and handed to defendants, who took it away and kept it. In an action by plaintiffs against defendants for not accepting the hops, it was held, reversing the decision of the Court of Exchequer (4 L. T. n. S. 255). that there was evidence for the jury of the intention of the parties that N. should be their agent for the purpose of making a written record of a contract binding upon both of them. Durrell p. Evans, 1 Hurlst. & C. 174. But see Murphy v. Boese, L. R. 10 Exch. 126.
1 Earl of Glengal v. Barnard, 1 Keen 769. See also Dixon v. Broom-field, 2 Chitty 205.