of a new relation acquired by the party; as, i before mentioned of White against Cuyler, in of assumpsist for wages, a deed executed by t the defendant, though void as the deed of a m man, was yet admitted for the purpose of sh terms of the contract; (1) and a bond by a man, conditioned to convey her estate to he husband in case of their marriage, has been be good evidence of the agreement in equity against the heir of the wife for a specific pe though the bond became void in law upon t marriage. (2) Secondly, it is not necessary that all the te sential parts of the agreement should be contair gle paper. The statute only enacts, that the in writing; and does not require them to be sp a single instrument. It is, therefore, the com tice to establish contracts by the evidence writings; and those writings need not be co neous with the contract. They ought, how connected, or have a plain reference to.eac their contents, or by the context, or at lea ting; (3) they cannot be connected by mere dence. (a) Without some reference of this one cannot be received to support the othe dence of the same transaction.. Thus, where. lic advertisement offered lands to be let for (1) 6 T. R. 176. Ante, p. 71. 242. 33. 9 Ves. 250. 12 East, 157. Gordon v Price, 64. (a) The form of the memorandum cannot be material, but it contract with reasonable certainty, so that the substance of it can pear, and be understood from the writing itself, without having re proof. This is the meaning and substance of the statute, and with beneficial ends of it would be entirely defeated " Kent, Ch J. B v Ogden, 3 Johns. 411. Parkhurst et al v Van Cortlandt, 1 Jo 273. Ib. 14 Johns. Rep. 15. Abeel v Radcliff, 13 Johns. Rep. 297 term, in consequence of which proposals were made by B. and accepted, and an agreement was drawn up in writing between A. and B. specifying the premises and the amount of the rent, but not stating the term for which the premises were to be demised, nor in any manner referring to the advertisement, it was determined that parol evidence was not admissible, in order to shew the connection of these two writings, and that this defective agreement could not be enforced on a bill for specific performance. (1) So, a minute made in a catalogue of sale at a public auction cannot be coupled or incorporated with the conditions of sale, in order to make a complete memorandum of the agreement, unless the catalogue itself is annexed to the conditions, or has some internal reference to them. (2) But if the agreement in the above-mentioned case of Clinan v. Cooke had referred to the advertisement, parol evidence might in that case have been admitted to shew what was the thing (namely the advertisement) referred to; for then it would be an agreement to grant for so much time as was expressed in the advertisement, and the identity of the advertisement might be proved. by parol evidence. (3) There are several reported cases to this effect. In an action against the defendant for not accepting a lease according to his agreement, it appeared that a draft of the lease had been perused and altered by the defendant's attorney, but was not signed; the defendant, afterwards wishing to relinquish the agreement, wrote a memorandum on the back of the draft, as an authority for the plaintiff to let the premises to any other person, by which memorandum he admitted that had entered into the agreement; the memorandum was signed by him, and this was held to be a suffi (1) Clinan v Cooke, 1 Scho. & Lef. 22. 33. (2) Hinde v Whitehouse, 7 East, 553. And see Boydell v Drummond, 11 East, 142. 157. Both these cases (3) I Scho, & Lef. 33. 12 Ves. 471. [370] 137 1 cient signature to bind the defendant. (1) (a) So, in the case of Allen v. Bennett, (2) (where the question arose upon the seventeenth section,) the Court of Common Pleas determined, that an order for goods, which had been written and signed by the seller (the defendant) in a common memorandum-book of the buyer (the plaintiff') but which did not contain the name of the buyer, might be proprly connected with a letter of the defendant to his agent mentioning the name of the plaintiff as buyer, (3) and also with a letter of the plaintiff to the defendant, claiming the performance of the order. Where a letter of one of the contracting parties is referred to, for the purpose of supplying the want of his signature in the memorandum of the contract, there ought not only to be a plain reference and connection be tween the writings, apparent from their context or their superscription or the like, without the aid of extrinsic evidence, but the letter itself ought to recognize and adopt the agreement as concluded and binding. (4) In the case of Tawney v. Crowther, (5) an agreement for the purchase of a house had been reduced into writing, and the defendant promised to sign it on a particular day; in consequence of his delay, the plaintiff wrote a letter in answer to which the defendant said, "there would be time to settle every thing before the day for delivering possession, and that his word should always (1) Shippey v Derrison, 5 Esp. N. P. C. 190. (2) 3 Taunt. 169. 175. And see Saunderson v Jackson, 2 Bos & Pull. 238. 9 Ves. 250 253. (3) S. Phy Ld. Hardwicke in Welford v Beazeley, 3 Atk. 503. Smith v Watson, Bunb. 55. And see Roze v (4) Cooper v Smith, 10 East, 107. Kent v Huskinson, 3 Bos. & Pull. 233. 3 Atk. 503. Huddlestone v Briscoe, 11 Ves, 591. (5) 3 Bro. C. C. 318. (a) In the case of Jackson d. Lloyd v Titus, 2 Johns. Rep. 430., where the question arose under the 10 sec. N. Y. (3 sec. Eng.) L wrote his name and affixed his seal on the back of a lease, and it was agreed between him and F. that C. should write an assignment over the signature and seal, for the absolute conveyance of the lease to F.; it was held that thus affixing the hand and seal was not a note in writing within the statute. be as good as any security." Lord Thurlow considered the defendant's letter as clearly referring to the unsigned memorandum of agreement, which was then in his possession, and that it contained a promise to perform the agreement; he admitted, "that if the defendant had meant only to treat further, it would not have taken the case out of the statute." The doubt in this case seems to have been, whether the letter referred suf ficiently to the paper containing the terms; and whether the defendant's word was that he would execute the agreement. (3) † (372) Another requisite is, that the agreement, or some Agreement to be signed. memorandum or note of the agreement, should be signed. It will not be sufficient to shew, that the draft of the agreement was read over to the defendant at his desire, (1) (a) or that it was reduced into writing by a person present at the time of making the agreement, (2) or even that the defendant perused and altered the (i) 3 Ves, 714. (2) Cooper v Smith 15 East, 103. Wright v Dannah, 2 Campb. 203. (3) Gunter v Halsey, Ambl. 586. Whitchurch v Bevis, 2 Bro C. C. 559. †The decree in the case of Tawney v Crowther, was in favour of the plaintiff; yet Lord Thurlow gave the defendant his costs, provided he consented to deliver up possession within a certain time, intimating that he did so, in order to secure against an appeal, the property being small. "This circumstance," says Lord Redesdale, observing upon the case in Clinan v Cooke, (1 Scho. & Lef. 34.) "shews that he considered it a doubtful case, otherwise it would be extraordinary, that the defendant should have his costs, where he was wrong. I have often discuss. ed that case," continued Lord Redesdale, "and never could bring my mind to agree with Lord Thurlow's decision, for this reason, he considered the letter tantamount to a signing of the agreement, I thought the true meaning was, I will not bind myself, but you shall rely on my word." (a) An entry made by the vendor of goods, in his book of sales, of the name of the purchaser and the terms of the contract of sale, which was read by the agent of the vendee, who made the purchase, and assented to by him as correct, was held not to be a sufficient memorandum in writing, within the statute of frauds, it not being signed by the party to be charged or by his agent, Bailey & Bogart v Ogden, 3 Johns. 394. [373] draft; (1) for the statute expressly requires the writing to be signed. But if there is a signing, it is in general immaterial, whether the party sign at the beginning or at the end of the instrument. It has been decided, that a writing purporting to be an agreement between the plaintiff and A. B. the defendant, for the sale of certain premises, written by the defendant, and beginning thus: "I A. B. agree to sell to, &c.," is a writing sufficiently signed to charge the defendant, though he has not signed at the bottom of the paper. (2) And, in the case of Saunderson v. Jackson, (3) Lord Eldon, Ch. J. alluding to that decision is reported to have said, "If a man draw up an agreement in his own hand-writing beginning, 'I A. B. agree, &c.,' and leave a place for a signature at the bottom, but never sign it, it may be considered as a note or memorandum in writing within the statute; and yet, he adds, it is impossible not to see that the insertion of the name at the beginning was not intended to be the signature, and that the paper was meant to be incomplete, until it was further signed." (4) Whether it will be sufficient, that the defendant's name is mentioned in the body of the memorandum of agreement, () (even supposing the memorandum to be drawn up by the defendant himself,) seems to be rather doubtful. (5) In the case of Stokes v. Moore (6) the question was, whether instruction for the renewal of a lease written by the defendant, (in which among other things he stated, what rent was to be paid to himself by name, could be considered a note or memorandum of agreement signed by the defendant; the Court of Ex (1) Hawkins v Holmes, 1 P. Wns. 770 Shippey v Derrison, 5 Esp. N. P. C. 190. (2) Knight v Crockford, 1 Esp. N. P.C. 189. This writing was attested. See 9 Ves. 248. 249 (3) 2 Bos. & Pull. 239. (4) See Right dem. Cater v Price, I Doug 241. (5) 9 Ves. 253. (6) 1 P. Wms. 770. n. (1) 1786, in Exch 1 Cox's Cas. 222. S. C. reported more at length. (a) Vide post 374. a. (a) Ogilvie v Foljambe, 3 Merivale Rep. 53. |