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 Moore v. Hart, 1 Vern. 110; Ayliffe v. Tracy, 2 P. Wms. 65; Owen v. Thomas, 3 Myl. & K. 353; Gibson v. Holland, L. R. 1 C. P. 1; Fugate v. Hansford, 3 Litt. (Ky.) 262; Moss v. Atkinson, 44 Cal. 3; Spangler v. Danforth, 65 111. 152; Kleeman v. Collins, 9 Bush (Ky.) 460; Moore v. Mountcastle, 61 Mo. 424; Mizell v. Burnett, 4 Jones (N. C.) Law 249; Wood v. Davis, 82 111. 311. And see Cox v. Cox, Peck (Tenn.) 443; Kuhn v. Brown, 1 Hun (N. Y.) 214. A suggestion is apparently made to the contrary, though not acted upon, in Buck v. Pickwell, 27 Vt. 167; Clark v. Tucker, 2 Sand. (X. Y ) 157; Kinloch v. Savage, Speers (S. C) Eq. 464; Wright v. Cobb, 5 Sneed (Tenn.) 143; Lee v. Cheney, 85 Tenn. 707; Cunningham v. Williams, 43 Mo. App. 629; First Nat. Bank of Plattsburg v. Sowles, 46 Fed. Rep. 731.
2 Bailey v. Sweeting, 9 C. B. n. s. 843; Wilkinson v. Evans, L. R. 1 C. P. 407; Heideman v. Wolfstein, 12 Mo. App. 366. See Westmoreland v. Carson, 76 Texas 619.
3 Reeves v. Pye, 1 Cranch (C C.) 219; Argenbright v. Campbell, 3 Hen. & M. (Va.) 144; Henry v. Root. 33 N. Y. 526; Henderson v. Beard, 51 Avk. 483; Cannon v. Handley, 72 Cal. 133; Popp v. Swanke, 68 Wisc. 364; Ryan v. United States, 136 U. S. 68. But see Luzader v. Richmond, 128 Ind. 344; Freeland v. Charnley, 80 Ind. 132.
4 Jones v. Lloyd, 117 111. 597.
§ 355. Whatever be the form of the memorandum, the statute requires that it be signed. Though it should be all written out with the party's own hand, there must still be a signature.5 But if the names of the principals appear in such way as to amount to signature,1 it is not necessary that the signature, or even the name, of the agent through whom the business is transacted should appear in the writing; at least this is so in cases of contracts made through brokers and auctioneers who are deemed to be the agents of both parties, and by virtue of their employment stand in such a relation to their principals that they can sign the names of the parties to a contract of sale effected through their agency.2 Sealing does not appear ever to have been considered necessary under the fourth section.3 Whether the language of the statute requiring the memorandum to be signed, will be satisfied by a seal without any writing, has never been decided. In the somewhat analogous case of the signature to a will, required by the statute, the question must be considered still open. It was said by a majority of the judges in the case of Lemayne v. Stanley, decided within four years after the enactment of the Statute of Frauds, that a party's sealing his will was a sufficient signature, for that "signum is no more than a mark, and sealing is a sufficient mark that this is his will."4 Next, it is reported by Strange that Chief Justice Raymond, on an issue directed out of Chancery, ruled that sealing a will was a signing within the Statute of Frauds and Perjuries.5 And still later, in the report of Atkyns, it is said of Lord Hard-wicke that "sealing without signing, in presence of the witness, he seemed to think, would have been sufficient to make it a good will, but said it was a point proper to be determined at law."6 A few years afterward the Exchequer barons condemned the opinion of the judges in Lemayne v.
1 Cagger v. Lansing, 57 Barb. (N. Y.) 421; and see Campbell v. Thomas, 42 Wisc. 437. See also 3 Washburn on Real Property, 303.
2 Parker v. Parker, 1 Gray (Mass.) 489; Overman v. Kerr, 17 Iowa 485; Freeland v. Charnley, 80 Ind. 132; Cannon v. Cannon, 26 N. J. Eq. 316; Johnston v. Jones, 85 Ala. 286. Cagger v. Lansing was reversed in 43 N. Y. 550. The statement in Washburn was pronounced in Freeland v. Charnley to be "radically wrong." In the opinion in that case the report of Campbell v. Thomas is critically examined, and it is shown that its effect is to leave the question open.
3 Kopp v. Reiter. 146 111. 447; Jenkins v. Harrison, 66 Ala. 345; Work v. Cowhick, 81 111. 317; Wood v. Davis, 82 111. 311; Swain v. Burnette, 89 Cal. 564; Johnston v. Jones, 85 Ala. 286.
4 Freeland v. Charnley, 80 Ind. 132. And see Doherty v. Hill, 144 Mass. 465.
5 Bawdes v. Amhurst, Finch, Prec. in Ch. 402; Hawkins v. Holmes, 1 P. Wms. 770, and Ithel v. Potter, there cited; Selby v. Selby, 3 Meriv. 2; Hubert v. Moreau, 12 Moo. 216; Hubert v. Turner, 4 Scott, N. R. 486; Bailey v. Ogden, 3 Johns. (N. Y.) 399; Anderson v. Harrold, 10 Ohio 399; Barry v. Law, 1 Cranch (C. C) 77; Wade v. City of Newbern, 77 N. C. 460; Rafferty v. Lougee, 63 N. H. 54; Andrews v. Babcock, 63 Conn. 109.
1 See §§ 357, 358, post.
2 Coddington v. Goddard, 16 Gray (Mass.) 444.
3 Wheeler v. Newton, Prec. in Ch. 16; s. c, more fully reported in 2 Eq. Cas. ,44, c. 5; Worrall v. Munn, 5 N. Y. 229; Farris v. Martin, 10 Humph. (Tenn.) 405.
4 Lemayne v. Stanley, 3 Lev. 1.
5 Warneford v. Warneford, Stra. 764. 6 Gryle v. Gryle, 2 Atk. 177. But see Grayson v. Atkinson, 2 Ves. Sr 454.
Stanley, considering it a strange doctrine, for that, "if it was so, it would be very easy for one person to forge any man's will by only forging the name of any two obscure persons dead, for he would have no occasion to forge the testator's hand;" and they said that "if the same thing should come in question again, they should not hold that sealing a will only, was a sufficient signing within the statute."1 More lately, Lord Eldon, in the case of Wright v. Wakeford, alluding to the old doctrine that sealing was sufficient where the statute prescribed signing, declared that the contrary had been held for a long time, adding that "so far is sealing from being equivalent to signing, that it is determined, that sealing is not necessary." 2
§ 355 a. A signature consisting of the mark of the party only would, it seems, be sufficient,3 and a signature by initials has been held so.4
§ 356. A printed signature will also answer the requirements of the statute, if there be sufficient evidence of its adoption as such by the party to be charged. Thus where a trader who is in the habit of delivering printed bills of parcels to which his name is prefixed, delivers one containing the necessary particulars of the contract, it is sufficient.5