the same persons and things, and manifestly relate to the same contract and transaction.

A bill of parcels, for example, in which the vendor's name is printed, delivered to the purchaser at the time of an order given for the future delivery of goods, may be connected with a subsequent letter written by the vendor, referring to such order for the purpose of establishing the requisite written evidence of the contract. (r)

The agent of the seller had written in a book of the buyer, an order for fifty barrels of rice at a certain price, and beneath this order two several similar orders for twelve hundred weight and for eight hundred weight of tobacco, but not naming the buyer, and it was held, that a subsequent letter from the buyer to the seller, in which he said, "the eight hundred weight of fine shag tobacco I wish immediately forwarded, as I have sold it, and it is wanted: I likewise want the invoice of the rice and the other tobacco," might be connected with the orders, so as to make a complete memorandum in writing within the statute. (s)

Goods were sold by auction to an agent acting on behalf of an undisclosed principal, the auctioneer wrote the initials of the agent's name, together with the prices, opposite the lots purchased by him, in the printed catalogue; and it was held, that the entry in the catalogue and a letter afterwards written by the principal to the agent, recognizing the purchase, might be coupled together to constitute and establish the requisite written memorandum of the contract. (t)

The buyer wrote to the seller as follows:-"I give you notice that the corn you delivered to me, in part performance of my contract with you for one hundred sacks of good English seconds flour, at 45s. per sack, is so bad, that I cannot make it into saleable bread. Dated this 24th September, 1821." To this notice the seller replied as follows:-"I have your letter or notice of the 24th September, in reply to which I have to state that I consider I have performed my contract with you as far as it has gone." And it was held, that the first letter and the answer might be coupled together and incorporated, and were sufficient evidence in writing to satisfy the terms of the statute of frauds, and enable the buyer to sue the seller for the non-delivery of an article corresponding with that mentioned and described in the buyer's letter. (u)

But, if there is any material discrepancy between the letters and entries, if they describe the quality and quantity of the thing sold dif

(r) Saunderson v. Jackson, 2 B. & P. 238.
(s) Allen v. Bennett, 3 Taunt. 169.
(t) Phillimore v. Barry, 1 Campb. 513.

(u) Jackson v. Lowe, 7 Moore, 219, 228; 1 Bing. 9, s. c.

G

ferently, or vary in the statement of the terms of the contract, and do not recognise the same contract and refer to the same transaction, they will, of course, fail in establishing the bargain.

In an action for the price of goods sold, the plaintiff offered in evidence an entry in a book of an order for flour, which had been read over to the defendant, the alleged purchaser, at the time of the booking thereof, and which purported to be a mere general order for forty sacks of flour called thirds, at 588. per sack, and this order being insufficient as a memorandum for want of signature, the plaintiff endeavoured to satisfy the statute by connecting it with a letter signed by the defendant, addressed to him, stating, "Your not sending the flour I agreed with you for, according to time, I am now provided for. . . I expected yours in the course of a week. If I buy of any man I expect it according to time, or the bargain is void." And it was held, that the entry and the letter referred to different contracts, the one was evidence of an absolute and unconditional contract of sale, and the other of a qualified and conditional bargain, and that the plaintiff could not avail himself of the letter for one purpose,-to bind the defendant within the statute, and renounce it for another purpose; but that he must take it altogether, and then it was no recognition, but a repudiation of the contract sought to be established by the entry. (x)

So, where a purchaser had bought some timber, but afterwards refused to accept it, on the ground that it was faulty and unsound, and the vendor's attorney wrote to him demanding payment of the price, and telling him that "the trees contained, upon a very fair admeasurement, 229 feet 7 inches," and that "the value at 1s. 6d. per foot, amounted to the sum of 171. 3s. 6d. ;" and the purchaser wrote in reply, "I bought the timber at 1s. 6d. per foot, to be sound and good, Mr. Smith promised to make it so, and now denies it." And it was held, that this reply did not recognise the contract described in the first letter, but distinctly falsified and repudiated it. (y)

Brokers' bought and sold notes.-When sales are effected through the medium of brokers acting between the parties buying and selling, "the broker is the agent of both parties, and as such, may bind them by signing the same contract on behalf of buyer and seller. But if he does not sign the same contract for both parties, neither will be bound. It has been decided accordingly, that where the broker delivers a different note of the contract to each of the contracting parties, there is no valid bargain at all. (2)

(x) Cooper v. Smith, 15 East, 103, 108. Richards v. Porter, 6 B. & C. 437.

(y) Smith v. Surman, 9 B. & C. 561, 569.
(2) Lord Tenterden, C. J., Grant v. Fletcher,

"If different notes are given to the parties, neither can understand the other;" (a) nor can either of them tell whether the broker has or has not exceeded the authority given to him.

A broker's bought note delivered to a purchaser described the subject matter of the contract as "Riga Rhine hemp," and the sale note delivered to the vendor described it as "St. Petersburgh clean hemp ;" and it appeared that the description in the first note had been inserted by mistake, and designated an article of a different and better quality and higher price and value than that described in the second note; and it was held, that as the parties were not bound to the same bargain, and had not respectively agreed to buy and sell the same thing, there was no contract at all subsisting between them. (b)

It is the duty and general practice of brokers to make a minute or memorandum of the contract of sale in their books, and to transcribe therefrom the bought and sold notes which are delivered to the vendor and purchaser. If these notes agree, but differ from the entry in the book, the notes constitute the contract, and are not in any way affected by the entry. (c) If they differ from each other, and one of them agrees with the entry, a question has been raised, as to whether the entry and the note agreeing with it, may be taken together as constituting the contract, to the exclusion of the other note; but it seems to be considered that an entry in a book which the party has not seen, cannot be set up in opposition to the note which has been given to him, as evidence of the contract by which he is to be bound, and that the broker's book cannot be resorted to, to cure a material discrepancy between the bought and sold notes, (d) "unless it be shown that the broker's book was known to the parties.” (e)

Of the signature to the memorandum.-" The words of the statute are satisfied if there is some note or memorandum of the bargain signed by the party to be charged by such contract, his signature to it is all that the statute requires."(f) The contract is sufficiently authenticated, if it has been recognised in writing by the party sued upon it; it is no objection to the maintenance of the action, that the defendant himself cannot enforce the

5 B. & C. 437. Hinde v. Whitehouse, 7 East,
569. Heyman v. Neale, 2 Campb. 337. Lord
Denman, C. J., 4 Ad. & E. N. S. 747. Lord
Abinger, C. B., 9 M. & W. 805, 809.
(a) Gibbs, C. J., Cumming v. Roebuck, Holt,
N. P. C. 173. But an unimportant or immaterial
variation will not of course avoid the bargain,
Maclean v. Dunn, 1 M. & P. 778, 779.

(b) Thornton v. Kempster, 5 Taunt. 786, 788.

(c) Hawes v. Foster, 1 Mood. & Rob. 368. Goom v. Affalo, 9 D. & R. 148; 6 B. & C. 117, s. c.

(d) Thornton v. Meux, 1 Mood & Malk. 43. Cumming v. Roebuck, Holt, 173. Gregson v. Ruck, 4 Ad. & E. N. S. 747.

(e) Lord Abinger, C. B., Thornton v. Charles, 9 M. & W. 803, 809.

(f) Lord Ellenborough, C. J., Egerton v. Mathews, 6 East, 307.

same contract against the plaintiff, because the plaintiff has never signed it. (g) It has been urged, that there is a want of mutuality if the writing has not been signed by both parties, and the defendant has not the benefit of his adversary's liability upon the instrument, but the contract is complete at common law by consent of the parties; the statute merely provides and regulates the mode of authentication, and the words and object of the act are completely satisfied and attained, when the written recognition of the bargain bears the signature of the defendant, "the party to be charged." (h)

If the note or memorandum of the contract is in the handwriting of "the party to be charged" thereon, his name, written by himself, in the body of the instrument, is a sufficient signature, and so also is any stamp or mark made by him upon any note or memorandum of the bargain drawn. up in the handwriting of a third party. (i)

John Dodgson, a hop merchant in Leeds, agreed with the traveller of the plaintiffs, who were hop merchants in London, for the purchase of a quantity of hops, and made an entry in his own sample-book, of the quality, quantity, and price of the article, describing it as "Sold to John Dodgson," and then required the traveller of the plaintiffs to sign the memorandum on their behalf, as the vendors, which he did, and the hops were duly forwarded; but John Dodgson then refused to accept them and pay for them, and it was held that the entry "Sold, John Dodgson," in his own handwriting was a memorandum of the contract signed by the party sought to be charged, within the meaning of the statute. (k)

The civil law did not require the signature of a party to a written contract of sale, if the contract was in his own handwriting. "With regard to those contracts of sale and purchase, which are perfected by writing, we have ordained," observes the emperor in the Institutes, "that they shall not be valid and binding, unless they be written by the contracting parties, or signed by them if written by another." (1)

(g) Allen v. Bennett, 3 Taunt. 169.

(h) Laythoarp v. Bryant, 3 Sc. 243, 257; 2 Bing. N. S. 735, s. c. See further as to the signature required by the statute of frauds, the next chapter, sec. 2.

(2) Post, ch. 4, sec. 2.

(k) Johnson v. Dodgson, 2 M. & W. 653. () Nisi et instrumenta emptionis fuerint conscripta, vel manu propriá contrahentium, vel ab alio quidem scripta, a contrahentibus autem subscripta. Lib. iii. tit. 24.

CHAPTER IV.

OF THE AUTHENTICATION, AND ESTABLISHMENT IN LAW, OF CONTRACTS GENERALLY.

SECTION I.-Authentication by deed when necessary-Grants of incorporeal hereditaments and ease. ments-Rights of way, and of fishing and sporting over another's land-Right to the passage of water beneath the surface thereof-Executory donations and gifts-Transfers and conveyances of freehold and leasehold estates, and of uncertain and contingent interests-Partitions, exchanges, and assignments of landed property-Leases and surrenders.

SECTION II.-Authentication by writing signed by the party when necessary-Leases-Contracts for an interest in land-Contracts and agreements for the sale and purchase of land--Contracts for the purchase of growing grass, timber, fruit, corn, and hops, and the produce of the soil-Contracts for the sale and purchase of fixtures, railway shares, and shares in joint-stock companies -Contracts for furnished lodgings-Promises by an executor or administrator to pay the debt of his testator or intestate-Acknowledgments of debts barred by statute-Promises by adults to pay debts contracted during infancy-Ratification of simple contracts entered into during infancyRepresentations to enable partners to obtain credit, money, or goods-Transfers of ships-Assignment of copyright-Agreements in consideration of marriage-Agreements not to be performed within a year-Promises to answer for the debt, default, or miscarriage of another.

SECTION III. Of the nature and requisites of the written memorandum—Of the form and requisites of a written guarantee-Disclosure of the consideration-Absolute guarantees and proposals or offers to guarantee-Establishment of the written undertaking or agreement through the medium of letters-Oral evidence inadmissible to complete an imperfect memorandum of the contract-Of the signature to the note or memorandum.

SECTION IV.-Of the necessity of stamps on deeds and simple contracts-Bills of exchange, promissory notes, and agreements-Exemption in favour of all writings relating to the sale of "goods, wares, or merchandizes "—Also of merchants' letters, &c.—Of the number of the stamps when there are several agreements on one sheet of paper-Of stamping contracts after their execution and restamping them in case of alteration.

SECTION I.

AUTHENTICATION BY DEED WHEN NECESSARY.

Grants of incorporeal hereditaments, such as advowsons, tithes, rights of commons, rights of way, franchises, rents, annuities issuing out of