party in a letter signed by him recapitulates the whole terms of the bargain, for the purpose of saying that the bargain is at an end for some reason which is evidently insufficient in law. For some time it was a doubtful point whether such an admission of the terms of the contract signed for the express purpose of repudiation could be considered a memorandum to make the contract good, but it is now settled law that a letter written for such a purpose may be used as a memorandum, if it contains the terms of the contract. 66 In Bailey v. Sweeting (a), in 1861, the defendant verbally ordered of the plaintiffs some chimney glasses to be paid for in cash, and some other goods on credit. When the chimney glasses arrived they were in a damaged state, and the defendant refused to accept them. He wrote to the plaintiffs, "I beg to say that the only parcel of goods selected for ready "money was the chimney glasses, amounting to 381. 10s. 6d., "which goods I have never received, and have long since "declined to have." The defendant paid the price of the other goods into Court; and the jury having found that the contract for the chimney glasses was a separate one, the Court, consisting of Erle, C. J., Williams, Willes and Keating, JJ., held that the letter, although written for the purpose of repudiating the contract, was a sufficient memorandum, and that the plaintiffs were entitled to recover. This decision, although questioned in Smith v. Hudson (b), in 1865, was followed in Wilkinson v. Evans (c), in 1866, where, the seller having sent some cheeses and candles to the buyer and an invoice "in the usual form," the buyer sent them back with a note signed by himself on the back of the invoice, "The cheese came to-day, but I did not take them in, for they were “very badly crushed; so the candles and cheese is returned.” The seller was nonsuited on the ground that there was no sufficient memorandum. On the motion for a new trial it (a) Bailey v. Sweeting, 30 L. J. C. P. 150 ; 9 C. B. N. S. 843. (b) Smith v. Hudson (1865), 34 L. J. Q. B. 145, at p. 149. (c) Wilkinson v. Evans, 35 L. J. C. P. 224 C. P. 407. 41 L. J. Ex. 1 and 173; L. R. 1 was argued for the buyer that the invoice was no evidence of a sale, for the goods might possibly have been sent on approval. But the Court ordered a new trial on the ground that the indorsement on the invoice was a statement of an objection, not to the terms of the contract as there set out, but to the manner in which it had been performed, and was therefore some evidence of a contract (a). In Godwin v. Francis (b), in 1870, it was held that a telegram sent by the defendant was a sufficient memorandum. But these cases must be distinguished from cases in which the repudiation did not contain the terms of the contract, but still left them doubtful. In Cooper v. Smith (c), in 1812, which has been already cited (d), the decision of the Court seems to have turned on the fact of the note containing terms materially different from those of the bargain declared on and proved. In Richards v. Porter (e), in 1827, the defendant wrote to the plaintiffs: "The hops, five pockets, which I bought of "Mr. Richards on the 23rd of last month are not yet arrived, "nor have I ever heard of them. I received the invoice. "The last was much longer than they ought to have been on "the road; however, if they do not arrive in a few days I must get some elsewhere." The plaintiffs were nonsuited, and the King's Bench held the nonsuit right. Lord Tenterden said, "I think this letter is not a sufficient note "or memorandum in writing of the contract to satisfy the "Statute of Frauds. Even connecting it with the invoice, it "is imperfect. If we were to decide that this is a sufficient "note in writing, we should in effect hold, that if a man "were to write and say, 'I have received your invoice, but I "insist upon it the hops have not been sent in time,' that "would be a note or memorandum sufficient to satisfy the (a) See also Buxton v. Rust, 7 Ex. 1 and 279; Leather Cloth Co. v. Hieronimus, 44 L. J. Q. B. 51; L. R. 10 Q. B. 140. (b) Godwin v. Francis, 39 L. J. C. P. 121 ; L. R. 5 C. P. 295. (c) Cooper v. Smith, 15 East, 103. (d) Ante, p. 63. (e) Richards v. Porter, 6 B. & C. 437. "statute. I think the case of Cooper v. Smith (a) in substance "is not distinguishable from this " (b). In Smith v. Surman (c), in 1829, the plaintiff's attorney wrote to the defendant,. "Sir, I am directed by Mr. Smith, of "Norton Hall, to request you will forthwith pay for the ash "timber which you purchased of him. The trees are "numbered from 1 to 19, and contain a fair admeasure"ment 229 feet 7 inches. The value at 1s. 6d. per foot ' amounts to 171. 3s. 6d. I understand your objection to "complete your contract is on the ground that the timber is "faulty and unsound, but there is sufficient evidence to show "that the same timber is very kind and superior, and a "superior marketable article. I understand you object to "the manner in which the trees were cross cut, but there is "also evidence to prove they were so cut by your direction. "Unless the debt is immediately discharged, I have instruc"tions to commence an action against you." The defendant wrote in answer, "Sir, I have this moment received a letter "from you, respecting Mr. Smith's timber, which I bought "of him at 1s. 6d. per foot, to be sound and good, which I "have some doubt whether it is or not; but he promised to "make it so, and now denies it. When I saw him, he told "me I should not have any without all, so we agreed upon "those terms, and I expected him to sell it to somebody else." This was held not a sufficient note or memorandum of the bargain. Bayley, J., seems to have formed his judgment partly because the buyer did not recognise the bargain as a binding bargain; the other two Judges, Littledale and Park, only say that the letters were inconsistent. A mere proposal with proof of parol acceptance is sufficient. In Reuss v. Picksley (d), in 1866, where a proposal in writing signed by the defendant had been assented to by the plaintiff by parol, and contained the names of the parties and all the other terms of the bargain, the Court held that it was a (a) Ubi supra. (b) See also Archer v. Baynes, 20 L. J. Ex. 54; 5 Ex. 625. (c) Smith v. Surman, 9 B. & C. 561. (d) Reuss v. Picksley, 35 L. J. Ex. 218; L. R. 1 Ex. 342. sufficient memorandum, following Warner v. Willington (a) and Smith v. Neale (b). What is a Signature. The note or memorandum must be signed by the party to be charged, or his agent in that behalf. The words used in the 17th section of the Statute of Frauds were "the parties "to be charged by the contract, or their agent thereunto lawfully authorized," and in Allen v. Bennet (c), in 1810, the objection was made that the words of the section required the note or memorandum to be signed on behalf of both parties to the contract; but even then the Common Pleas treated the question as one conclusively settled by inveterate practice. "All these cases," said Sir J. Mansfield, "Egerton "v. Matthews (d), Saunderson v. Jackson (e), and Champion v. "Plummer (f), suppose a signature by the seller to be suffi"cient, and everyone knows it is the daily practice of the "Courts of Chancery to establish contracts signed by one person only, and yet a Court of equity can no more dispense "with the Statute of Frauds than a Court of law." A curious question was made in the following case as to the effect as to third persons of a contract of sale, good as against the one party who had signed a memorandum, but not binding on the other party who had not either repudiated or confirmed the contract. The case was Coates v. Chaplin (g), in 1842. The plaintiffs, Coates and Co., verbally agreed to sell goods above the value of 10l. to Morrison and Co.; they sent them by the defendants, who were carriers. The goods were lost on the way, and the question was, who should bring the action against the (a) Warner v. Willington, in 1856, 25 L. J. Ch. 662. (b) Smith v. Neale, in 1857, 26 L. J. C. P. 143; 2 C. B. N. S. 67; (d) Egerton v. Matthews, 6 East, 307. (f) Champion v. Plummer, 1 N. R. 252. (g) Coates v. Chaplin, 3 Q. B. 483; 6 Jur. 1123. see also carriers, Coates or Morrison. In general, the proper party to sue a carrier for negligence is the owner of the damaged goods. In this case, at the time of the loss the contract of sale was good against Coates and Co., who had sent Morrison and Co. a letter containing an invoice, but good or not against Morrison and Co. at their election; but at the time of the loss they had exercised no election. The Queen's Bench decided the case on the narrow ground that there was no distinct evidence that Coates and Co. had any authority from Morrison and Co. to employ a carrier at all; but probably they would, if necessary, have held that the property was not changed (as against third parties) till the sale was binding on both seller and buyer (a). The signature to the memorandum may be the signature either of the name of the party himself, or of the name of his agent (b). There is no more objection to showing that the signature of the agent's name is meant as the signature of the principal, than to showing that a contract purporting to be made with the agent is made with the principal, and that may always be done. The signature of the name may be in writing or in print, and it is immaterial in what part of the document it appears, provided there are circumstances to show that it was appropriated by the party to the authentication of the contract. It is a signing and not a subscribing which the section requires (c); and it matters not whether the signature is at the beginning, in the middle, or at the end of the document (d). Perhaps the case of Saunderson v. Jackson (e), in 1800, may be considered as the extreme limit to which this doctrine has been carried. In that case there was a bill of parcels (a) See also Coombs v. Bristol and Exeter Ry. Co., in 1858, 27 L. J. Ex. 401 ; 3 H. & N. 510. (b) White v. Proctor, 4 Taunt. 209. (c) Per Lord Westbury in Caton v. Caton, in 1867, 36 L. J. Ch. 891 ; L. R. 2 H. L. 142. (d) Per Blackburn, J., in Durrell v. Evans, in 1862, 31 L. J. Ex. 337; 1 H. & C. 191. (e) Saunderson v. Jackson, 3 B. & P. 238. |