This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Effect of leaving blank for signature.
Where the name is inserted in the body of the agreement.
Although a principal or his agent signs merely as a witness, he may be bound, if the signature amounts to an acknowledgment of the existence of the agreement; e.g., "witness A. B. (i): but where a person, whose formal signature would bind the vendor, merely ,attests the execution of the agreement by the purchaser, this attestation is insufficient (k). The question whether a person has signed his name, and if so for what purpose, is one of evidence, and any evidence which does not contradict the document is admissible (l).
Party bound by signature as witness: but not as attesting witness.
(c) Per Lord Westbury, in Caton v. C, (1867) L. R. 2 H. L. at p. 143; 36 L. J. Ch. 886; Evans v. Moare, sup.
(d) Saunderson v. Jackson, (1800) 2 B. & P. 239; 3 Esp. 180.
(e) Hubert v. Treherne, (1842) 3 Man. & G. 743; Hubert v. Turner, (1842) 4 Sc. N. R. 486; 6 Jur. 194; cf. R. v. Tart, (1859) 28 L. J. Q. B. 173; 5 Jur. N. S. 679.
(f) Caton v. C, (1867) L. R. 2 H. L. 127; 36 L. J. Ch. 886.
(g) See and consider Hodgson v. Le Bret, (1808) 1 Camp. 233; Phillimore v. Barry, (1808) ib. 513; and as to bought and sold goods, Goom v. Aflalo, (1826) 6 B. & C. 117; 9 D. & R. 148; and Sieve-wright v. Archibald, (1851) 17 Q. B. at p. 124; 20 L. J. Q. B. 529.
(h) Emmerson v. Heelis, (1809) 2 Taun. 38.
(i) Welford v. Beezely, (1747) 3 Atk. 503; 1 Ves. sen. 6; Coles v. Trecothick, (1803) 9 Ves. 234, 251; 1 Sm. 233; Wallace v. Roe, (1903) 1 Ir. R. 32; see Symons v. S., (1821) 6 Mad. 207.
A party to the contract may, by signing a document subsequent to that containing the terms of the contract, recognise the contract in the way required by the statute. It is not essential that the document containing the terms should be signed (m): a signature to a document which contains the terms of a contract is sufficient to satisfy the statute though put alio intuitu and not in order to attest and verify the contract (n). It is not a question of intention, but of evidence, under the hand of one of the parties, that he has entered into the contract; and any document signed by him and containing the terms of the contract is sufficient for that purpose (o). If reliance is placed on the signature of an agent, all that it is necessary to show to satisfy the statute is that the agent signing was "thereunto lawfully authorised" (p).
Signed document approving terms of agreement when sufficient.
Sufficiency a question of evidence.
The written approval by a professional agent of a draft agreement or draft conveyance which cites the agreement has been held insufficient (q). The question turns entirely upon the agent's authority. In Smith v. Webster (r), the defendant having entered into a verbal contract for sale, instructed his solicitor to "prepare an agreement," that is, to prepare the draft of a formal contract. It was held that this did not authorise the solicitor in signing a memorandum within the Statute . of Frauds. But in Daniels v. Trefusis (s), the defendant's solicitors were instructed to forward to the plaintiff's solicitors certain documents, and although it was not contemplated that the effect would be to create a memorandum within the statute, this did not prevent the legal consequences from operating - or, as Sargant, J., put it (t), "the unintentional by-product of satisfying the Statute of Frauds." Again, in North v. Loomes (u), a verbal contract for sale was come to and an imperfect memorandum signed by the parties, which the purchaser handed to his solicitor telling him to "carry out the agreement." A letter afterwards written by the purchaser's solicitor to the vendor's solicitor, taken in conjunction with the above memorandum, was held to be a sufficient note or memorandum within the statute. So also, where a verbal agreement for a lease was entered into and a draft lease approved by the respective solicitors, and the lessee's solicitor having prepared engrossments of lease and counterpart forwarded, with a letter, the engrossment of the lease to the lessor's solicitor, it was held that the letter of the lessee's solicitor, with the engrossment to which it referred, constituted a sufficient memorandum (x).
Approval of draft agreement or conveyance, whether sufficient.
(k) Gosbell v. Archer, (1835) 2 A. & E. 500; 4 L. J. N. S. K. B. 78.
(l) Young v. Schuler, (1883) 11 Q. B. D. 651; 49 L. T. 546; Dyas v. Stafford, (1882) 9 L. R. Ir. 520; Smith v. Webster, (1876) 3 Ch. D. 49; 45 L. J. Ch. 528; Griffiths Cycle Corp. v. Humber Co., 1899, 2 Q. B. 414; 68 L. J. Q. B. 959.
(m) Filby v. Hounsell, 1896, 2 Ch. 737; 65 L. J. Ch. 852; Griffiths Cycle Corp. v. Humber Co., 1899, 2 Q. B. 414; 68 L. J. Q. B. 959. See Lovesey v. Palmer, 1916, 2 Ch. 233, 244.
(n) Griffiths Cycle Corp. v. Humber Co., sup.; Daniels v. Trefusis, 1914, 1 Oh. 788.
(o) Re Hoyle, 1893, 1 Ch. 84, 99; 62 L. J. Ch. 182.
(p) Griffiths Cycle Corp. v. Humber Co., sup.; and cf. Hambro v. Burnand, 1904, 2 K. B. 10; 73 L. J. K. B. 669.
(q) See Sug. 14th ed. 140; Lady Thynne v. Earl of Glengall, 2 H. L. C. 131; 12 Jur. 805; Lord Townshend v. Bishop of Norwich, (1821) 1 Rop. H. & W. 308, n.; Jackson v. Oglander, (1865) 2 H. & M. 472; 13 L. T. 16; Smith v. Webster, (1876) 3 Ch. D. 49; 45 L. J. Ch. 528; Forster v. Rowland, (1861) 7 H. & N. 103; 30 L. J. Ex. 396; Bowen v. Luc d'orleans, (1900) 16 T. L. R. 226. But see Daniels v. Trefusis, sup.
The alteration of the draft conveyance by one of the parties has been held insufficient (y). In Ithel v. Potter (z), there was a similar decision, where the entire conveyance had been written by the defendant; but it does not appear whether the conveyance recited the agreement, though such was probably the case. Where the draft of a lease had, in pursuance of a parol agreement, been forwarded to the intended lessee for perusal, and he indorsed and signed a memorandum upon it, requesting the lessor to endeavour to relet the premises, as it would be inconvenient for him (the lessee) to perform his agreement, this was held to be sufficient (a). A signed engrossment delivered as an escrow may, it seems, be sufficient (b).