a letter from the plaintiffs offering to buy a business on certain terms, and it stated that "this offer is made subject to our approving a detailed contract to be entered into," and went on to state that the purchase money was to be paid as to part in cash and as to part in preference stock and debenture stock of a company to be formed, which offer was accepted by the defendants, it was held by the Court of Appeal there was no concluded agreement (i).

The parties need not be specified by name; but an adequate description is sufficient. Thus, "if the vendor is described in the contract as 'proprietor,' 'owner,' 'mortgagee,' or the like, the description is sufficient, although he is not named; but if he is described as 'vendor,' or as 'client,' or 'friend' of a named agent, that is not sufficient; the reason given being, in the language of Lord Cairns, that the former description is a statement of matter of fact as to which there can be perfect certainty, and none of the dangers struck at by the Statute of Frauds can arise: Rossiter v. Miller (k); Sale v. Lambert (1); Potter v. Duffield (m); the reason against the latter description being, that in order to find out who is vendor, client, or friend, you must go into evidence on which there might possibly, as in Potter v. Duffield, be a conflict, and that, says the late Master of the Rolls, in the last-named case, 'is exactly what the act says shall not be decided by parol evidence.' 'I should be thrown,' he continues, on parol evidence to decide who sold the estate, and who was the party to the contract, this act requiring that fact to be in writing"" (n). Parol evidence is admissible to identify the property sold where there is only a general description. Thus where there was a contract to sell "at the price of 50007. twenty-four acres of land freehold with the appurte

(i) Page v. Norfolk, 70 L. T. 781.

(k) 3 App. Cas. 1124.

(7) L. R., 18 Eq. 1.

(m) L. R., 18 Eq. 4.

(n) Per Kay, J., in Jarrett v. Hunter, 34 Ch. Div. 182; cf. Cattling v. King, 5 Ch. Div. 660.

nances at Totmonslow, in the parish of Draycott, in the county of Stafford," parol evidence was held admissible to prove what were the twenty-four acres referred to (o). It was observed in the case under notice that a memorandum under the Statute of Frauds must be construed in a reasonable way.

As to signature by an agent. An authority to sign need not be in writing; but of course the agent only binds the principal when acting within the scope of his authority; thus, where the defendant having verbally agreed with the plaintiff to sell him a house, instructed a solicitor to prepare a formal agreement, and the solicitor sent a draft agreement to the plaintiff's solicitor for approval, accompanied by a letter stating the terms of the arrangement, but the agreement was never signed by the parties, it was held that the letter of the defendant's solicitor was not a memorandum of the agreement within the statute, because the solicitor had only authority to prepare a formal agreement and nothing more (p). In a case where a telegram accepting an offer to buy an estate was sent by the vendors, Bovill, C. J., stated that he was prepared to hold that the telegram written out and signed by the telegraph clerk, with the authority of the vendors, was "a sufficient signature within the Statute of Frauds" (q).

The memorandum need only be signed by the party charged; and, if so signed, is good against him, though not against the other party; and where a written proposal signed by one contracting party is verbally assented to by the other, it is a memorandum within the statute sufficient to charge the party signing ("). A printed signature may be sufficient (s), and so

may a printed heading (); for it is immaterial when the signature is placed on the document or where it was so placed, provided it was placed there for the purpose of affirming that the document contains the terms of the offer or contract, as the case may be (u). But the signature must be so placed as to show that it is intended to refer to and does refer to every part of the instrument. "It follows, therefore, that if a signature be found in an instrument incidentally only, or having relation and reference only to a portion of the instrument, the signature cannot have that legal effect and force which it must have in order to comply with the statute and to give authenticity to the whole of the memorandum" (x). It has been held that if the agent of a party sued has laid before the party suing a document containing the name of the party sued as that of a party contracting, and the party suing signs the document, that is sufficient within s. 4 of the statute (y). This is an extreme case, and the soundness of the decision is doubtful.

On a sale of real estate by public auction the auctioneer is the agent of both parties, and has authority to sign a memorandum of the sale, so as to bind the purchaser as well as the vendor, provided he does so at the time of the sale, and not subsequently. He must sign himself, and the signature of his clerk will not do unless the party who takes the objection to the clerk's signature has by word, sign, or otherwise authorized the clerk to sign for him (≈).

Specific performance of a parol contract as to an interest in land which is within the Statute of Frauds is, however, enforced, (1) where it is set out in the plaintiff's pleadings and admitted by the defendant; (2) where the reduction of

(1) Schneider v. Morris, 2 M. & S. 286.

(u) Jones v. Victoria Dock Graving Co., 2 Q. B. D. 314.

(x) Per Lord Westbury, in Caton v. Caton, L. R., 2 E. & I. 143.

(y) Evans v. Hare, (1892) 1 Q. B.

593.

(z) Bell v. Balls, (1897) 2 Ch. 669; and cf. Sims v. Landray, (1894) 2 Ch. 318, where the auctioneer's clerk signed while the purchaser stood by.

the contract to writing was prevented by the fraud of one of the parties; (3) where it is a completed agreement, and has been partly carried into execution, and is definite in its terms (a). But if in any particular case the acts of part performance of a parol agreement as to an interest in land are to be held sufficient to exclude the operation of the Statute of Frauds, they must be such as are unequivocally referable to the agreement; in other words, there must be a necessary connection between the acts of part performance and the interest in the land, which is the alleged subject-matter of the agreement; and it is not sufficient that the acts are consistent with the existence of such an agreement, or that they suggest or indicate the existence of some agreement, unless such agreement has reference to the subject-matter. As was said by Lord Hardwicke in the case of Gunter v. Halsey (b), they must be such as could have been done with no other view or design than to perform the agreement (c). The doctrine of part performance rendering a parol contract enforceable in equity, is confined to contracts as to interests in land (d).

CONTRACTS BY EXECUTORS, ETC.

Sect. 4. "No action shall be brought whereby to charge any executor or administrator, upon any special promise, to answer damages out of his own estate unless the

agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized."

(a) Smith's Manual of Equity, 13th edition, p. 279. As to what constitutes part performance, vide Id. p. 281.

(b) 2 Amb. 586,

(c) Cited by Baggallay, L. J., Humphreys v. Green, 10 Q. B. D.

154.

(d) Britain v. Rossiter, 11 Q. B. D. 123.

The agreement must embody the consideration for the promise, and be signed by the executor or the administrator, or his agent (e).

GUARANTEES.

Sect. 4. "No action shall be brought.

whereby to

charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person. unless the agreement," &c. (as in the case of executors, supra).

The agreement must rest on a valid consideration (ƒ), which must be new and executory, except where it is the embodiment of verbal terms on which the contract has been executed, and the guarantee subsequently given in writing (g). It is the essence of a guarantee that the original debtor should continue liable; and therefore, if his liability is extinguished, and the surety is the only party liable for the debt, his liability will not require to be evidenced by writing. If the person for whose use goods are furnished is liable at all, any promise by a third person, upon sufficient consideration, to pay that debt, must be in writing (). It is also held that the promise to pay the debt of another person need be proved by writing only where the promise is given to the original creditor, and not where it is given to the debtor or a third person that the promisor will be answerable to the creditor (i). Therefore a promise to indemnify is not within the statute (). Consequently, it was held that a promise by a defendant to keep a plaintiff indemnified against liability

(e) Rann v. Hughes, 7 Bro. P. C. 556.

(f) Semple v. Pink, 1 Ex. 74. (g) Eastwood v. Kenyon, 11 A. & E. 438.

(h) Birkmyr v. Darnell, 1 Smith,

L. C. 274; Fitzgerald v. Dressler, 7
C. B., N. S. 374.

(i) Eastwood v. Kenyon, 11 A. & E. 446.

(k) Per Byles, J., Reader v. Kingham, 13 C. B., N. S. 344; cf. Wildes v. Dudlow, 44 L. J., Ch. 341,