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 Buckmaster v. Harrop, 13 Ves. 456. And see Mews v. Carr, 1 Hurlst. & N. 484.
Smith v. Arnold, 5 Mason, 414.
3 In Price v. Durin, 56 Barb. (N. Y.) 647, an auctioneer's sale-book in which the purchaser's name was entered when the lot was knocked down to him, and which was signed by the auctioneer's clerk at the close of each day's sales, was held a sufficient memorandum, although the New York statute requires the memorandum to be made "at the time" of the sale. See Jones v. Kokomo Association, 77 Ind. 340.
4 See, in particular, Sievewright v. Archibald, 17 Q. B. 103, per Erle with what we have seen to be settled, namely, that a broker's bought and sold notes, though there be no previous book entry made by him, constitute a binding memorandum; for such notes imply a legal contract antecedently made and concluded.1 And if the exception should be admitted in cases of agency generally, it would leave open the question, what lapse of time would deprive the agent's signature of its efficacy; a question which, there being no natural criterion, as in the case of the auctioneer's entry, could not fail to present much difficulty. It is at all times in the power of the principal to revoke the agent's authority to sign, before he has executed the signature;2 and, on the whole, we may be well justified in hesitating to accept a casual remark, even of such an eminent jurist, as a convincing statement of the law on this point.
§ 353 a. The cases since Buckmaster v. Harrop, however, appear to rest on the distinction between the auctioneer's agency for the seller and his agency for the buyer. The former they seem to concede (against the decision of that case) may continue so as to authorize the auctioneer to sign the memorandum at some time after the sale; but the latter, held, it is must be exercised at the time of the sale.3
§ 354. We shall presently see that whether a memorandum is or is not signed, within the meaning of the statute, depends upon the intention of the party in affixing his name.4 But the rule in regard to the intention of the party does not seem to be so narrowly applied in determining whether a paper sufficiently executed for the purposes of a memoranand Patteson, JJ.; Williams v. Bacon, 2 Gray (Mass) 387. In Barclay v. Bates, 2 Mo. App. 139, it was held that the sheriff's memorandum need not be made contemporaneously with the sale by him, and need not be signed by the identical deputy who made the sale. And see Elston v. Castor, 101 Ind. 426.
1 Farmer v. Robinson, in note to Heyman v. Neale, 2 Camp. 337.
2 See Gwathnpy v. Cason, 74 N. C. 5.
3 Mews v. Carr, 1 Hurlst. & N. 484; Gill v. Bicknell, 2 Cush. (Mass.) 355; Horton 9. McCarty, 53 Me. 394. 4 See Doe v. Pedgriph, 4 Car. & P. 312.
§ 354 a. The Statute of Frauds was not intended to apply to written contracts, but to the enforcement of oral ones.
1 Cooke v. Tombs, 2 Anst. 420; Pipkin v. James, 1 Humph. (Term.) 325. And see Whitchurch v. Bevis, 2 Bro. C. C. 559; Thynne v. Glen-gall, 2 H. L. C. 131; Mountacue v. Maxwell, Stra. 236; Rose v. Cunyng-hame, 11 Ves. 550; Glengal v. Barnard, 1 Keen 769.
2 Sugden, Vend. & P. 115.
3 Johnson v. Dodgson. 2 Mees. & W. 653, remark of Parke, B.; Grant v. Levan. 4 Pa. St. 393; Johnson v. Brook, 31 Miss. 17; Sanborn v. Sanborn. 7 Gray (Mass.) 142; Comer v. Baldwin, 16 Minn. 172; Steel 9. Fife, 48 Iowa 99; Brown v. Brown, 33 N. J. Eq. 650; Swain v. Bur-nette, 89 Cal. 564. But see Bowles v. Woodson, 6 Grat. (Va.) 78; Jenkins v Harrison, 66 Ala. 345; Johnston v. Jones, 85 Ala. 286; Parker v. Parker, 1 Gray (Mass.) 409; Wier v. Batdorf, 24 Neb. 83.
4 Remington v. Linthicnm, 14 Pet. (U. S.) 84; Hart v. Carroll, 85 Pa. St. 508. See Peirce v. Corf, L. R. 9 Q. B. 210; Ruckle v. Barbour, 48 Ind. 274. But see Drury v. Young, 58 Md. 546; Logsdon v. Newton, 54 Towa 448; Sullivan v. O'Neal, 66 Texas 433 See Cliesebrough v. Pingree, 72 Mich. 438.
5 Ellis v. Deadman, 4 Bibb (Ky.) 466; Smith v Arnold, 5 Mas. (C. C.) 414; Shippey v. Derrison, 5 Esp. 190; Evans v. Prothero, 1 De G., M. & G. 572; Howe v. Dewing, 2 Gray (Mass.) 476; Durrell v. Evans, 1 Hurlst-& C. 174; Thayer v. Luce, 22 Ohio St. 62. And see Dobell v. Hutchinson, 3 Ad. & E. 355; Sugden, Vend. & P. 114; Alford v. Wilson, 26 S. W. Rep. (Ky.) 539.
when properly evidenced, as by the admission in a writing of the party to be charged. It has therefore always been held that letters addressed to a third party, stating and affirming a contract, may be used against the writer, as a memorandum of it.1 And for the same reason, an oral contract may be taken out of the statute by letters which admit the making of the contract by the writer, but in terms repudiate his liability.2 An instrument intended to operate as of a higher nature, but insufficient for that purpose, as, for instance, a deed of land which is defective in not having an habendum, or a bond to convey land, signed after the obligatory part instead of at the foot, may be available as a simple memorandum.3 An answer filed in a prior suit setting up an oral contract and not pleading the statute has been held a sufficient memorandum for the enforcement of the contract in a subsequent proceeding.4
§ 354 b. The question how far the contents of a deed of land, executed by a vendor but delivered in escrow only, may be resorted to in aid of a previous insufficient memorandum of the contract, or to serve as a memorandum of a parol contract, has been much considered. It has been held that, if a person who has made a parol agreement to sell land, sign an instrument in the form of a conveyance of such land to the vendee, and deliver it in escrow, if such instrument contain the terms of the parol agreement, including the consideration, it is a sufficient compliance with the Statute of Frauds.1 But this is opposed to the decided weight of authority.2 With more show of reason it has been held that, considering the imperfect memorandum and the deed delivered in escrow as parts of the same transaction, the contents of the deed might be resorted to in order to help out the insufficient description in the memorandum.3 But to this it is replied, with great force, that the escrow is not an operative instrument at all or for any purpose, for want of delivery, and therefore cannot form any element of a binding contract.4