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.
2 Stokes v. Moore, 1 Cox 219; Hubert v. Turner, 4 Scott N. R 480, Cabot v. Haskins, 3 Pick. (Mass.) 95. Hut see Higdon v. Thomas, 1 Harr. & G. (Md.) 139; Coe v. Tough, 116 N. Y. 273.
3 Walker v. Walker, 1 Meriv. 503.
4 Hubert v. Turner, 4 Scott N. R 486; Hawkins v. Chace, 19 Pick. (Mass.) 502; Barry v. Coombe, 1 Pet. (U. S.) 640. And see Parker v. Smith, 1 Coll. Ch. 608; McConnell v. Brillhart, 17 11l. 354; Wise v Ray, 3 Iowa 430; McMillen v. Terrell, 23 Ind. 163. Also, the valuable remarks of Mr. Fell, Merc. Guar. Appendix, No. V.
§ 358. In an early case in Massachusetts,4 the memorandum was as follows: "Hartshorn & Arnold, of Providence, Dec. 13, 1813. I sold to the above gentlemen 39 bales upland cotton at 40 cents, - 60 days for approved security.
1 Saunderson v. Jackson, 2 Bos. & P. 238.
2 See the remark of L. C. B. Skinner, in Stokes v. Moore, 1 Cox 219. In Knight v. Crockford, 1 Esp. 188, the defendent drew up a paper in the first person, and the plaintiff, after approving of its terms, required the following to be added: " That the parties bound themselves to its performance under a penalty of £100; " and the defendant added it with his own hand, and it was signed by the plaintiff and attested by a witness; and the defendant, though he did not sign it, allowed the plaintiff to take it away; it was decided that the memorandum was binding upon the plaintiff. The decision seems to be amply justified upon the ground that the defendant, by his written addition to the instrument, recognized it as perfectly executed by him beforehand.
3 Hawkins v. Chace, 19 Pick. (Mass.) 502; Evans v. Ashley, 8 Mo. 177. With further reference to the question of place of signature, see Sanborn v. Sanborn, 7 Gray (Mass.) 142; Schneider v. Norris, 2 Maule & S. 286; Johnson v. Dodgson, 2 Mees. & W. 653; Durrell v. Evans, 1 Hurlst. & C. 174.
4 Penniman v. Hartshorn, 13 Mass. 87.
Silas Penniman. Bill to be made out in the names of Hartshorn & Arnold, Warden & Billings, and Andrew Taylor." The words in italics were written by the defendant Hartshorn, the residue by the plaintiff; and it appeared (parol evidence being admitted for that purpose) that the plaintiff read the memorandum to Hartshorn. It was objected that it was not properly signed, the names of the defendants being above, and not below, the body of the paper. This objection the court overruled; but there was another point, not taken at the argument or noticed in the decision, which seems worthy of consideration. The paper was actually signed by Penniman, the plaintiff, and, from its whole structure, seems to have been intended for his signature; and this feature, on the principle stated in the preceding section, should ordinarily have deprived of its efficacy as a signature the insertion of the defendant's name above.1 According to this case, therefore, it seems that the same paper, though adapted to the signature of one party only, may be signed by both; the one subscribing, and the other inserting his name elsewhere in the instrument, by way of recognition of the contract.2 The words which follow the signature of Penniman are, in the present instance, particularly to be noticed, as conveying such recognition quite unequivocally.
§ 359. But it has been decided that a signature as witness may bind as principal the party signing; and this, certainly, is not easy to reconcile with the rule that a signature, to be valid, must be so placed as to authenticate the instrument as the act of such party. The doctrine has been strongly condemned by Lord Denman, C. J.,8 but still appears to be tenable under such limitations as are presented in the instances where it was actually applied. It was first held in Welford v. Bezely, where the defendant verbally promised to give the plaintiff £I,000 as a marriage portion, and, articles being drawn up to that effect and read over to her, she put her name to them in the place for the witness's signature; Sir Thomas Sewell, M. R., held it sufficiently signed by her as principal.1 And afterward, in Coles v. Trecothick, an auctioneer who had authority to sell cer-tain lots of land at private sale, told the owner that he had two confidential clerks through whom he transacted great part of his business, and who, in his absence, would enter into contracts, and the owner assented, and afterward the auctioneer contracted for the sale of one of the lots, and after he had left town, one of the clerks signed the memorandum thus: "Witness Evan Phillips for Mr. Smith, Agent for the Seller." Lord Eldon held the signature sufficient to bind the owner, and laid down the rule, that "where a party, or principal, or person to be bound, signs as, what he cannot be, witness, he cannot be understood to sign otherwise than as principal." 2 He adds that the signature of an agent, not a contracting party, as a witness, would not be sufficient, and this qualification appears to apply to the case before Lord Denman, where the signature (in the witness's place) was by one who was proved aliunde to be the clerk of the auctioneer, the principal, but did not on the face of the instrument appear to be or to represent the contracting party; whereas in Coles v. Trecothick that fact did appear.
1 Evans v. Ashley, 8 Mo. 177.
2 See Bluck v. Gompertz, 7 Exch. 862; Knight v. Crockford, 1 Esp. 188; Johnson v. Dodgson, 2 Mees. & W. 653; Evans v. Hoare, L. R. 1 Q. B. D. 1892, 593.
3 Gosbell v. Archer, 2 Ad. & E. 508. See Noakes v. Morey, 30 Ind. 103.
§ 360. Notwithstanding the doctrine that the signature must be such as to authenticate the instrument, it has been held, in an early case in Massachusetts, that a signature in blank will suffice to bind the party to a guaranty afterward inserted over it by his agent, whose express authority to do so may be proved by parol.3 The decision is briefly reported,
1 Welford v. Bezely, 1 Wils. 118.
2 Coles v. Trecothick, 9 Ves. 234. See Hill v. Johnston, 3 Ired. (N. C.) Eq. 432.