guilty of an express default in subsequently refusing to pay for them. To constitute a payment as earnest, or a part payment, within the statute, there must be an actual transfer or delivery of the thing, or money, agreed to be given as earnest, or part payment. Therefore, if the purchaser of goods draw the edge of a shilling over the hand of the vendor, and return the money into his own pocket, which in the north of England is called the striking off a bargain, the act is not satisfied (g). The delivery of a bill of exchange, or promissory note, on account, or in payment of the price of goods sold under a parol contract, would take a case out of the statute; such instrument amounting to payment, till dishonoured (h). (4.) Of the Contents and Signature of a Contract in Writing for the Sale of Goods. The object of the Statute of Frauds was, that the note in writing should exclude all doubt as to the terms of the contract (i). A memorandum would be insufficient which did not mention the names of both the contracting parties, or their agents (k); and the price agreed to be given (1). But if no price be at the time agreed upon, the contract of course need not contain any provision in this respect, and the inference will be that a reasonable price be paid (m). A mere offer or proposal in writing would not be sufficient, unless it were accepted in writing (n). But it is not necessary that the whole of the terms of the contract for the sale of goods should be comprised in one written memorandum; it is sufficient if they can be collected from several distinct writings, having reference to the same agreement; or from (g) Blenkinsop v. Clayton, 7 Taunt. 597. The body of the report states that the seller produced the shilling, and returned it into his pocket, but this would seem to be a mistake. (h) Chitty B. 7th ed. 97; 8th ed. 80, note b, 84. (i) See Saywood v. Meale, Prec. Ch. 560; Clerk v. Wright, 1 Atk. 12; Ayliff v. Tracy, 2 P. W. 64; per Bayley, J., Smith v. Surman, 9 B. & C. 569, 570. See in general, ante, 66 to 73. (k) Champion v. Plummer, 1 New R. 272. The sale note in this case did not mention the vendee's name; Bateman v. Phillips, 15 East, 272; ante, 106; Graham v. Musson, per Tindal, C. J. 5 Bing. N. C. 605. (1) Elmore v. Kingscote, 5 B. & C. 583; 8 D. & R. 343, S. C. (m) Hoadly v. Maclain, 4 M. & Scott, 340; 10 Bing. 482, S. C.; Acebal v. Levy, 4 M. & Scott, 217; anle, 110. (n) Ante, 11; Drant v. Brown, 3 B. & C. 668; 5 D. & R. 582, S. C. subsequent letters, having reference to each other, whereby the transaction is admitted (o). Thus in Saunderson v. Jackson (p), it was decided, that whether or not, a bill of parcels, in which the vendor's name is printed, delivered to the vendee at the time of an order given for the future delivery of goods, be a sufficient memorandum within the statute, at all events, a subsequent letter, written and signed by the vendor, referring to the order, may be connected with the bill of parcels, so as to take the case out of the statute. So in Allen v. Bennet (q), it was held, that an order for goods, written and signed by the seller, in a book of the buyer, may be connected with a letter of the seller to his agent, mentioning the name of the buyer, and with a letter of the buyer to the seller, claiming the performance of the order, to constitute a complete contract. In Johnson v. Dodgson (r), it appeared that the traveller of the plaintiffs, hop merchants in London, agreed with the defendant at Leeds for the sale to him by sample of a quantity of hops. The defendant wrote in his own book, which he kept, the following memorandum, "Leeds, 19th October, 1836, sold John Dodgson (the defendant), 27 pockets, Playsted, 1836, Sussex, at 103s.; the bulk to answer sample. Four pockets Selme Beckley, at 95s. Samples and invoice to be sent per Rockingham coach. Payment in banker's bills at two months." This was signed by the traveller on behalf of the plaintiffs. The defendant on the same day wrote to the plaintiffs, requesting them to deliver "the 27 pockets Playsted and the 4 pockets Selmes, 1836, Sussex," to a third party; and it was held that the entry in the defendant's book containing his name was a sufficient memorandum in writing of the contract to satisfy the statute, though even if it had not been a sufficient contract and signature by the defendant, it should seem that the letter written by the defendant had a sufficient reference to the contract, which was the only one proved (s). (0) Ante, 70; Dobell v. Hutchinson, 3 Ad. & E. 355; Laythoarp v. Bryant, 2 Bing. N. C. 735; 3 Scott, 238, S. C.; Johnson v. Dodgson, 2 M. & W. 653; 1 Jurist, 739; and such letters may constitute a binding contract within the statute, although a formal agreein contemplation; ment w Thomas v. Derring, 1 Jurist, 211. (p) 2 B. & P. 238, cited in Kenworthy v. Schofield, 2 B. & C. 947; 4 D. & R. 556, S. C. (9) 3 Taunt. 169. (r) Johnson v. Dodgson, 2 Mee. & W. 653; 1 Jurist, 739. (s) Per Lord Abinger, C. B. id. 659. The purchasers of flour wrote to the vendors, complaining of the quality of part which had been delivered, and in such letter stated the full terms of the contract. The vendors answered in writing, by their attorney, that they considered that they had performed their contract as far as it had gone, and were ready to complete the remainder; and unless the flour was paid for at the expiration of one month, proceedings would be taken. It was held, that a jury was warranted in concluding, that the contract mentioned in the vendor's letter was the same as that particularised in the purchaser's letter; and that therefore the two writings constituted a sufficient memorandum of the contract under the statute (t). The defendant having purchased the lease of a house at a public auction, he afterwards wrote to the auctioneer, requesting him to send the key, and stating, that his auctioneer was desirous of taking an inventory of the fixtures. The auctioneers accordingly met, and disagreed as to the valuation, appointed an umpire, to whom they inclosed an inventory, stating the fixtures to be the property of the plaintiffs, and valued to the defendant. The umpire made a valuation, and appraised the fixtures at a certain sum, and returned the inventory, with an appraisement, duly stamped. The defendant, by letter, afterwards requested the * plaintiffs' auctioneer to remove the fixtures, which was done; and the following day the defendant wrote to the plaintiffs, that he would attend at the house, and pay them the amount of the fixtures, as settled by the appraisers. The first and last letters were signed by the defendant, but the first only was stamped. It was held, that taking the inventory, appraisement, and correspondence together, they established a sufficient memorandum of the contract to satisfy the terms of the Statute of Frauds (u). But where there is a prior insufficient or unsigned written contract, the plaintiff cannot avail himself of a subsequent letter from the defendant, in which, though the order for goods be recognised, the terms of the contract are falsified, or renounced and disaffirmed. In Cooper v. Smith (x) there was a defective memorandum of the bargain for the sale of goods; but the defendant wrote a letter, in which, though he admitted the order, he insisted that the goods (t) Jackson v. Lowe, 1 Bing. 9; 7 Moore, 219, S. C. See further, ante, (u) Hemming v. Perry, 2 M. & P. 375. 70. (r) 15 East, 103. had not been delivered in time, and therefore he was not bound to take them. It was held, that the letter did not supply the defects of the memorandum, and that it was not competent for the plaintiff to prove, by parol testimony, that it was not stipulated that the goods should be delivered within a given time. This case was recognised in Richards v. Porter (y), where the defendant admitted the receipt of an invoice of the goods, but complained that the goods were not sent in time. And in Smith v. Surman, which has been already cited (2), where the purchaser's letter did not recognise the absolute contract described in the vendor's letter, but stated one conditional as to quality; it was held, that on account of the discrepancy, there was no sufficient note or memorandum within the statute. In Gosbell v. Archer (a), lands of the defendant were put up by him to auction; one condition was that the purchaser should pay a deposit and half the auction duty, which he did, and signed a written memorandum of the contract, which J. N. the auctioneer's clerk, also signed as follows, "Witness, J. N." J. N. received the deposit and auction duty for M. the auctioneer, and signed the receipt (being authorised by M. so to do) as follows, "For Mr. M., J. N." Money was afterwards paid over by the auctioneer to the defendant on the purchase. The defendant not being able to make out his title, wrote a letter to the plaintiff's attorney, naming the plaintiff and defendant, saying that he could not make out the title to "this property as freehold," advising the plaintiff to "relinquish his purchase," and referring to the "charges" to be made by the plaintiff's attorney; and it was held that J. N.'s signature as a witness was no signature for defendant, and that such letter was no recognition or ratification, but rather an abandonment of the contract. A written contract, whereby the defendant agreed to buy certain goods, at a specific price, is good, though it does not express any consideration for this promise, otherwise than by inference from his own obligation (b). A bill of parcels, in which the name of the vendor is printed, and that of the vendee is written by the vendor, is a sufficient memorandum of the contract, within the statute, to charge the (y) 6 B. & C. 437. (z) 9 B. & C. 561, ante,312, 314; and see Routledge v. Grant, ante, 13. (a) Gosbell v. Archer, 2 Ad. & E. 500; 4 Nev. & M. 485; 1 H. & W. 81, S. C. (b) Egerton v. Matthews, 6 East, 306; see ante, 33. vendor (c). And the writing may be in pencil, ink is not essential (d). And it seems that if a man draw up an agreement, in his own hand writing, beginning, “I, A. B., agree, &c.," or, "A. B., agrees, &c.," but never sign it, it may be considered as a sufficient note or memorandum in writing (e), the question being always open to the jury, whether the party not having signed it regularly at the foot meant to be bound by it as it stood, or whether it was left so unsigned because he refused to complete it (f). And it seems, that a signature by a person mentioned in the memorandum to be a contracting party, is sufficient, although he profess to sign as a witness (g), for his signature could only be referred to his being a party, and he could not be a witness. But the signature of an agent, not a contracting party, as a witness will not be sufficient (h). A signature by a mark, the party being unable to write, may suffice (i), if sufficiently identified. But an unsigned contract is invalid, though it were read over to the party, by his desire, at the time it was written (k). And a letter without a signature of the name in some way will not satisfy the act. Therefore, a letter by a mother to her son, beginning, " My dear Robert," and ending, "your affectionate mother," with a full direction containing the son's name and place of abode, is not sufficient, without an actual signature by the mother (1). Much of the commercial business of this country is carried on through the medium of persons who buy and sell goods for others on commission, and are called brokers. A broker, though employed originally by one party only, becomes the agent of the other party also, when he treats with him. The practice of brokers is to keep books, in which they enter the terms of any contract they effect, and the names of the parties; they then deliver copies of (c) Schneider v. Norris, 2 M. & Selw. 286. (d) Ante, 78. (e) Knight v. Crockford, 1 Esp. R. 190; per Eldon, C. J., Saunderson v. Jackson, 2 B. & P. 239; 3 Esp. R. 182, S. C.; Coles v. Trecothick, 1 Smith, 233; 9 Ves. 248, S. C.; Sugd. V. & P. 8th ed. 93, 94. (f) Per Lord Abinger, C. B., Johnson v. Dodgson, 2 M. & W. 659. (g) Id. Melford v. Beazeley, 3 Atk. 503; per Lord Eldon, Coles v. Trecothick, sed vide per Denman, C. J., in Gosbell v. Archer, 2 Ad. & E. 508. D D (h) Gosbell v. Archer, 4 Nev. & M. 492; 1 Harr. & W. 31, ante, 400. (i) See Selby v. Selby, 3 Mer. 2, 6; ante 72, note (m); and see Baker v. Denning, 8 Ad. & E. 94; 3 Nev. & P. 228, S C., per Tindal, C. J.; Hyde v. Johnson, 2 Bing. N. C. 780. (k) Cooper v. Smith, 15 East, 103. (1) Selby v. Selby, 3 Mer. 2. |