So CH. IV. s. 2. Form of the (Statute of Agreements performed within year— not to be contd. which s. 4 the operation of the statute (k). Thus, a contract whereby a apply. Peter v. Compton. between husband and wife for separation. McGregor v. McGregor. A similar rule has been applied by the Court of Appeal to an Agreement agreement between husband and wife for separation, by which the husband agreed to allow the wife a weekly sum for maintenance, and the wife agreed to maintain herself and her children, and to indemnify the husband against any debts contracted by her (t). Whether the view that the statute applies only to cases in which the contract cannot be performed within a year be sound or not, it is too late to depart from it now (u). It may also now be regarded as settled, that the statute does not apply, except to contracts which are not to be performed on of legacy). (p) See Miles v. Bough (1842), 3 Q. B. 845. (q) Peter v. Compton (1694), Skin. 353; 1 Sm. L. C. (r) Anon. (1694), 1 Salk. 280. Per Tindal, C.J., Souch v. Strawbridge (1846), 2 C. B. 808, 815. (t) McGregor v. McGregor (1888), 21 Q. B. D. 424, C. A., disapproving Davey v. Shannon (1879), 4 Ex. D. 81, as opposed to authority. u) Per Bowen, L.J., in McGregor's case, ubi sup. CH. IV. s. 2. (Statute of either side within the year (x). Thus, a parol contract for the sale of goods which are to be delivered, and which the parties reasonably expect will be delivered within a year, though the price may be to be paid after that period, is not within the statute; because, in such a case, all that is to be performed on one side, namely, the delivery of the goods, is to be done within a year (y). And it would seem that the statute does not apply, when the action is brought upon an executed consideration (z). (c) Nature of Memorandum required. Contents of The Statute of Frauds does not require a formal contract, the memorandum required drawn up with technical precision. The requirement is of either by the statute." the agreement" sued upon, 66 or some memorandum or note thereof," written and signed by the party to be charged. Any memorandum under the hand of the party made before action brought (a), which names, or so describes as to identify, the contracting parties (b), and which contains, either expressly, or by reference to other written papers, the terms of the agreement, is sufficient; although it be merely a recognition or adoption of a prior written statement of such terms, not signed by the party (c). A date of commencement must be given, and an agreement to serve for five years has been held bad for not mentioning the date of its commencement (d). Date of commencement. Subsequent But a memorandum, expressing a mere purpose or intention, is not sufficient to satisfy the statute (e). Where a contract or note in writing exists, which binds one party, any subsequent note in writing, signed by the other, is sufficient to bind him, provided it either contain in itself the terms of the contract, or refer to any writing which does contain (x) Cherry v. Heming (1849), 4 Exch. 631; Donnellan v. Read (1832), 3 B. & Ad. 899; and see Smith v. Neale (1857), 2 C. B., N. S. 67, 88. (y) See per Lord Ellenborough, C.J., Boydell v. Drummond (1809), 11 East, 142, 152; 10 R. R. 450; per Abbott, C.J., Bracegirdle v. Heald (1818), 1 B. & Ad. 722. (2) Per Tindal, C.J., Souch v. Strawbridge (1846), 2 C. B. 808, 814; and see Knowlman v. Bluett (1874), L. R., 9 Ex. 307, Ex. Ch. (a) Bill v. Bament (1841), 9 M. & W. 36. (b) See Vandenbergh v. Spooner (1866), L. R., 1 Ex. 316; Newell v. Radford (1867), L. R., 3 C. P. 52; Sale v. Lambert (1874), L. R., 18 Eq. 1; Potter v. Duffield (1874), ib. 4; Williams v. Jordan (1877), 6 Ch. D. 517; Catling v. King (1877), 5 Ch. D. 660, C. A.; Thomas v. Brown (1876), 1 Q. B. D. 714; Warner v. Willington (1856), 25 L. J., Ch. 662; Jarrett v. Hunter (1886), 34 Ch. D. 182; Coombs v. Wilkes, [1891] 3 Ch. 77; Carr v. Lynch, [1900] 1 Ch. Form of the them (f). Thus an indorsement or memorandum by the defen- CH, IV. s. 2. dant, on the back of the draft of a lease, acknowledging that he had agreed to take the premises mentioned in the draft, on the terms thereof (g); or a letter in answer, and referring to a letter of the plaintiff, which states the terms of the contract: and by which answer the defendant recognises the bargain, but attempts to excuse the performance, is a sufficient compliance with the Act (h). So a proposal signed by the party to be charged, and accepted by word of mouth by the person to whom it is made, is a sufficient agreement to satisfy the statute (i). So, it is sufficient if the terms of the contract can be collected from several distinct writings, which refer to each other in such a manner as to show that they relate to the same transaction (k). Thus, an envelope and a letter which is shown by evidence to be inclosed in it and so connected together that the envelope may be used to supply the name of one of the parties, as where the defendant signed a letter addressed "Dear Sir" which the plaintiff received through the post in an envelope addressed to him (1), and a written and signed letting of a carriage for a year and a signed letter of the hirer referring to it as "our arrangement for the hire of your carriage" (it being proved that there was no other arrangement between the parties for the hire of a carriage) (m), are alike sufficient. And where a signed document, which does not contain the terms of the agreement, refers to an unsigned document, which does; parol evidence may be given for the purpose of identifying the latter, as being the document referred to in the former (n). Parol evidence to identify references has been frequently admitted (o). 66 Proposal in writing may be accepted verbally. Agreement several documents. contained in Peirce v. Corf. Envelope. connected by parol But parol evidence cannot be admitted to connect two or more Documents writings. Thus, where the defendant signed a book, intituled cannot be Shakspeare Subscribers, their Signatures:" and a printed prospectus which contained the terms of the contract was delivered to him at the time, but this prospectus was not referred to in the (f) Per Cur., Dobell v. Hutchinson (1835), 3 A. & E. 355, 371; and see Ridgway v. Wharton (1857), 6 H. L. C. 238 27 L. J., Ch. 46; Buxton v. Rust (1872), L. R., 7 Ex. 1 and 279, Ex. Ch. ; Peirce v. Corf (1874), L. R., 9 Q. B. 210, 216; Long v. Millar (1879), 4 C. P. D. 450, C. A.; Studds v. Watson (1884), 28 Ch. 305; Wylson v. Dunn (1887), 34 Ch. D. 569. (g) Shippey v. Derrison (1805), 5 Esp. 190; see also Coldham v. Showler (1846), 3 C. B. 312. (h) Sec Bailey v. Sweeting (1861), 9 C. B., N. S. 843. (i) Smith v. Neale (1857), 2 C. B., N. S. 67; Watts v. Ainsworth (1862), 1 H. & C. 83; Reuss v. Picksley (1866), L. R., 1 Ex. 342, Ex. Ch. C.C. (k) See per Archibald, J., Peirce v. (n) See Ridgway v. Wharton (1857), (0) See Cave v. Hastings (1881), 7 Q. B. D. 125, at p. 128, and the cases there cited; Oliver v. Hunting (1890), 44 Ch. D. 205; Shardlow v. Cotterill (1881), 20 Ch. D. 90, C. A.; Studds v. Watson (1884), 28 Ch. D. 305; Filby v. Hounsell, [1896] 2 Ch. 737, following Morris v. Wilson (1859), 5 Jur., N. S. 168. 6 evidence. CH. IV. s. 2. Contract (Statute of Frauds). What a sufficient signature. Position of signature. book signed by the defendant: it was held that this did not take the case out of the statute; because the connection between the book containing the signature, and the prospectus, could be established only by parol evidence (p). So where, at a sale of goods by auction, the auctioneer signed the vendee's name in the catalogue, but the conditions of sale were not annexed to the catalogue or referred to therein; it was held, that there was not a sufficient memorandum of the contract within the statute (q). And so, an entry in the auctioneer's book cannot be used to prove a contract within the statute, unless the entry comprised such a reference to the conditions of sale as will identify them, upon production, as being the conditions mentioned in the entry (r). (d) Sufficiency of Signature. The statute, it will be observed (ante, p. 77), requires, that the particular contracts named in it should be "signed by the party to be charged;" and it is sufficient if they be signed by the party to be charged, without its being signed by the other party (s). The signature need not be at the foot of the matter written, but may be either in the body or at the beginning of it (t). If it be at the foot of the matter written, it is to be taken conclusively to apply to the whole, unless there be something expressly to rebut that presumption and if it be not at the foot it may apply to the whole, if upon the evidence it be found that the party signing so intended (u). Accordingly it has been held, that if a party draw up an agreement in his own handwriting, beginning—“I, A. B., agree, &c.," this is a sufficient signature, although he do not subscribe his name at the bottom, and although a blank be left for that purpose (x). So, a memorandum in the defendant's handwriting, beginning "Sold J. D." so many pockets of hops, and signed by the plaintiff's agent, was held to bind the defendant (y). But it is questionable whether this would be held to be a sufficient signature, if it appeared from the writing itself that it really was intended to be afterwards signed by the party (2). And it is clear that, if the memorandum which contains the name of the party to be charged be not in his handwriting, the fact of his name being (p) Boydell v. Drummond (1809), 11 East, 142; 10 R. R. 450; and see Peirce v. Corf (1874), L. R., 9 Q. B. 210; Brodie v. St. Paul (1791), 1 Ves. jun. 326. (q) Kenworthy v. Schofield (1824), 2 B. & C. 945. (r) Per Hall, V.-C., Rishton v. Whatmore (1878), 8 Ch. D. 467, 468. (s) Laythoarp v. Bryant (1836), 3 Scott, 238. (t) Evans v. Hoare, [1892] 1 Q. B. 593. (u) Per Coleridge, J., Foster v. Mentor Life Assurance Company (1854), 3 E. & B. 48; and see Lobb v. Stanley (1844), 5 Q. B. 574. (x) Knight v. Crockford (1794), 1 Esp. 190; 5 R. R. 729. (y) Johnson v. Dodgson (1837), 2 M. & W. 653. (*) See per Tindal, C.J., and Maule, J., Hubert v. Treherne (1842), 3 M. & G. 743, 745; nom. Hubert v. Turner, 4 Scott, N. R. 486. Form of the written in the body of it will not bind him, as a signature within CH. IV. s. 2. the statute, at least unless there be evidence that the party who wrote the instrument had authority so to deal therewith, as to make the mention of the party's name in the body thereof equivalent to actual signature (a). Signaturecontd. Jackson. So, where the name of the vendor was printed in the heading of Printed a bill of parcels which had been sent by him to the buyer, and signature. which contained the particulars, quantities, and prices of the Saunderson v. articles sold, such printed name was held to be a sufficient signature to bind the vendor, within the statute (b). But there must be recognition of such a printed signature as his own by the party to be charged for the document to which it is affixed to bind him (c). Signature by pencil is clearly sufficient (d), and so is the signa- Pencil. ture of instructions for a telegraphic message (e), or by mark (ƒ), Telegram. or by initials (g). The general rule is, that where a statute requires signature, the signature of an agent is sufficient unless there be in the statute an express requirement of personal signature (h), and a memorandum in writing, within the Statute of Frauds, may be signed by the agent of the contracting party," thereunto by him lawfully authorised." A letter from the plaintiff to the defendant whose name appears at the beginning of the letter, written by defendant's agent with his authority, and presented to the plaintiff for signature and signed by the plaintiff, will bind the defendant (i). And in order to satisfy the statute, the memorandum so signed need not be one which the principal has authorised the agent to sign for the purpose of a contract, but may be signed alio intuitu, as where the chairman of a limited company in accordance with sect. 67 of the Companies Act, 1862, signed minutes containing the contract (k); and it appears to be the law that any letter written by an agent within the scope of his authority which refers to and recognises an unsigned document as containing the terms of a contract made by his principal, is a sufficient memorandum (1), (a) Hubert v. Treherne (1842), 3 M. & G. 743. (b) Saunderson v. Jackson (1800), 2 B. & P. 238; Schneider v. Norris (1814), 2 M. & S. 286; and see Durrell v. Evans (1862), 1 H. & C. 174, Ex. Ch., reversing 6 H. & N. 660; Tourret v. Cripps (1879), 48 L. J., Ch. 567. (e) Hucklesby v. Hook (1900), 82 L. T. 117, per Buckley, J. (d) See Geary v. Physic (1826), 5 B. & C. 234 (indorsement of promissory note). (e) Goodwin v. Francis (1870), L. R., 5 C. P. 295; and see M'Blain v. Cross (1872), 25 L. T. 804. (f) See Baker v. Dening (1838), 8 A. & E. 94 (signature of will); Dyas v. Stafford (1881), 7 L. R., Ir. 590. (g) See Phillimore v. Barry (1818), 1 Camp. 513; Chichester v. Cobb (1866), 14 L. T. 433. (h) Whitley Partners, In re (1886), 32 Ch. D. 337, C. A. (i) Evans v. Hoare, [1892] 1 Q. B. 593. (k) Jones v. Victoria Dock Co. (1877), 2 Q. B. 314, per Mellor and Lush, JJ., held, at p. 326, not to be appealable, but recognised as undoubted law by the Court of Appeal in John Griffiths Cycle Corporation v. Humber & Co., [1899] 2 Q. B., at p. 417, where Smith v. Webster (1876), 3 Ch. D. 49, is explained. (1) John Griffiths Cycle Corporation v. Humber & Co., [1899] 2 Q. B. 414, C. A. 6-2 Mark. Signature by Whitley I re Partners, |