the nature of such paper, which, being made for the purpose of being transferred from hand to hand, and of giving to every successive holder as strong a claim upon the original party as the payee himself has, must indicate on its face who is bound for its payinent; for any additional liability not expressed in the paper would not be negotiable." The statute provides that "all checks or receipts given by any person operating any warehouse, commission house," etc., "are hereby declared negotiable, and may be transferred by indorsement of the party to whose order such check or receipt was given or issued, and such indorsement shall be deemed a valid transfer of the commodity represented by such receipt, and may be made either in blank or to the order of another." Hill's Anno. Laws (Or.) § 4205. By this statute, a warehouse receipt, regardless of its form, is made negotiable, in the sense that a transfer thereof by indorsement carries the absolute title to the commodity represented by the receipt, and a bona fide purchaser for value is not chargeable with knowledge or any notice of any equities between the original parties, as in case of the assignment of an ordinary chose in action. State v. Koshland, 25 Or. 178, 35 Pac. 32; Bishop v. Fulkerth, 68 Cal. 607, 10 Pac. 122; Price v. Wisconsin M. & F. Ins. Co. 43 Wis. 267; First Nat. Bank v. Dean, 137 N. Y. 110, 32 N. E. 1108; First Nat. Bank v. Boyce, 78 Ky. 42, 39 Am. Rep. 198; Collins v. Rosenham, 19 Ky. L. Rep. 1445, 43 S. W. 726. ing) "shall be negotiable and may be transferred by indorsement and delivery," while that of Missouri was, "they shall be negotiable by written indorsement thereon and delivery in the same manner as bills of exchange and promissory notes." But neither statute undertook to define the effect of such a transfer, and it therefore became necessary for the court to look outside of them to learn what the legislature meant by declaring such instruments "negotiable." After defining that term, as applied to contracts, to mean primarily the capability of being transferred by indorsement and delivery, so as to give to the indorsee a right to sue thereon in his own name, and pointing out that certain consequences generally, though not always, follow the indorsement or transfer of bills and notes,-such as the liability of an indorser and the rights of a bona fide purchaser before maturity and from a finder or thief,-it says: "But none of these consequences are necessary attendants or constituents of negotiability or negotiation. That may exist without them. A bill or note past due is negotiable, if it be payable to order or bearer, but its indorsement or delivery does not cut off the defenses of the maker or acceptor against it, nor create such a contract as results from an indorsement before maturity, and it does not give to the purchaser of a lost or stolen bill the rights of the real owner. It does not necessarily follow, therefore, that, because a statute has made bills of ladBut the statute does not give to such re- ing negotiable by indorsement and deceipts all the attributes of negotiable paper.livery, all these consequences of an indorseA transfer of the receipt by indorsement may ment and delivery of bills and notes before operate, under the statute, to transfer and maturity ensue or are intended to result vest the title of the goods in the purchaser, from such negotiation." Again, after observwhere before it would not, but the nature of ing that bills of exchange and promissory the contract itself is unchanged. It is in no notes are exceptional in their character, pass sense a negotiable instrument under the law from hand to hand as coin, and the interests merchant. It is simply a written ac- of trade require that a bona fide purchaser knowledgment by the warehouseman that he for value should not be bound to look behas received, and holds in store for the de- yond the instrument, the court proceeds: positor, the amount and description of prop- "The reason can have no application to the erty named in the receipt, upon the terms case of a lost or stolen bill of lading. The and conditions therein stated, and is noth- function of that instrument is entirely difing more than a written contract between the ferent from that of a bill or note. It is not parties, which by the statute is made nego- a representative of money, used for the tiable for certain purposes. The word "ne- transmission of money, or for the payment of gotiable" is evidently not used in the stat- debts or for purchases. It does not pass ute in the sense in which it is ordinarily ap- from hand to hand as banknotes or coin. It plied to bills of exchange and promissory is a contract for the performance of a cernotes. A very satisfactory case upon this tain duty. True, it is a symbol of ownership subject is Shaw v. Railroad Co., 101 U. S. of the goods covered by it,-a representative 557, sub nom. Shaw v. Merchants' Nat. Bank, of those goods. But, if the goods themselves 25 L. ed. 892. In that case the question was be lost or stolen, no sale of them by the findas to the right of a purchaser from a thief, er or thief, though to a bona fide purchaser for value, and without notice, of a bill of lad- for value, will devest the ownership of the ing issued in Missouri for goods to be carried person who lost them, or from whom they to Pennsylvania, and which by the statutes were stolen. . Bills of lading are reof both states was made negotiable. In con- garded as so much cotton, grain, iron, or othsidering the question, it did not appear nec- er articles of merchandise. The merchandise essary to inquire whether the statute of Mis- is very often sold or pledged by the transfer souri or of Pennsylvania should be regarded of the bills which cover it. They are, in comas affecting the contract, since, in the opin- merce, a very different thing from bills of ion of the court, there was no substantial exchange and promissory notes, answering difference between the statutes of the two a different purpose and performing different states in that regard. The language of the functions. It cannot be, therefore, that the Pennsylvania statute was, they (bills of lad- statute which made them negotiable by in dorsement and delivery, or negotiable in the same manner as bills of exchange and promissory notes are negotiable, intended to change totally their character, put them in all respects on the footing of instruments which are the representatives of money, and charge the negotiation of them with all the consequences which usually attend or follow the negotiation of bills and notes. Some of these consequences would be very strange, if not impossible: Such as the liability of indorsers, the duty of demand ad diem, notice of non-delivery by the carrier, etc., or loss of the owner's property by the fraudulent assignment of a thief. If these were intended, surely the statute would have said something more than merely make them negotiable by indorsement." are all substantially the same. The following may serve as a specimen: No. 56. Aug. 23, Received by R. T. McNickle, by W. E. Loughmiller & Co., for the Portland Flouring-Mills Co., bushels, 3,835 lbs. good, merchantable wheat, to be forwarded to Oregon City, and there stored in the P. F. M. Co.'s warehouses, for the benefit of the owner. No. of sacks returned, 20 sacks. W. E. Loughmiller, Weigher. It is claimed that these load checks constitute the contract under which the wheat was received by Loughmiller & Co., and that they do not support the allegations of the complaint. But the evidence shows that when a farmer delivered a load of grain it was the custom to give him a load check as an evidence thereof, and when he completed his season's hauling a receipt was issued for the entire amount of grain delivered, in form the same as the one heretofore set out, and hence the load checks do not evidence the contract under which the wheat was received, but are simply memoranda of each load of wheat as it was delivered; and so parol evidence to the effect that the wheat represented in the second, fourth, and fifth causes of action was delivered and received under the same contract as in the case of the other parties was competent. Next, it is claimed that plaintiff cannot recover upon any of the causes of action, because, if defendant is under any liability to plaintiff, it is in tort, and not contract. This contention is based upon the theory that Loughmiller & Co. were not the agents of defendant. But, as we have already seen, there was, in our opinion, sufficient evidence to carry that question to the jury, and hence this position is without merit. We are of the opinion, therefore, that a warehouse receipt is not negotiable, within the meaning of the rule prohibiting the admission of parol testimony to charge one not bound upon the face of the instrument, but in that respect it is a simple contract, and such evidence is admissible to show that, although executed by and in the name of an agent, it is in fact the contract of the principal, and he is bound thereby. Barbre v. Goodale, 28 Or. 465, 38 Pac. 67, 43 Pac. 378. It is contended, however, that, even if the receipts are not negotiable, they are nevertheless presumptively the contract of Loughmiller & Co. alone, and plaintiff cannot recover upon either the first, third, or sixth cause of action, for the reason that there was no evidence to rebut such presumption, or to show that Loughmiller & Co. were in fact defendant's agents. A considerable portion of defendant's brief is devoted to the discussion of this question, which we regard, however, as one of fact for the jury, and not the court. There was evidence given at the trial on behalf of plaintiff, tending to show, and from which the jury were justified in It is next contended that the payment or finding, that Loughmiller & Co. were in fact tender of storage, freight, and sack charges the agents of defendant, and received the was a condition precedent to the right to wheat and executed the receipts as such. It maintain this action, and the written tender is unnecessary for us to encumber this opin- was not sufficient, but the money should ion by a reference to the testimony in detail. have been paid into court. The defendant It is sufficient to say that we have exam- by its answer, denies the contract alleged in ined it with much care, and are satisfied that the complaint, and the plaintiff's title and the court committed no error in overruling right to the possession of the wheat in conthe motion for nonsuit on this ground. troversy, and expressly puts its refusal to deliver upon the ground that neither plaintiff nor his assignors ever shipped or deliv ered to it any wheat whatever; and therefore it cannot now be permitted to say that its refusal to deliver the grain was on account of the failure of plaintiff to pay the charges referred to. Wyatt v. Henderson, 31 Or. 48, 48 Pac. 790. It is next claimed that plaintiff cannot recover upon the second, fourth, and fifth causes of action,-those representing the elaims of Frizzell, McNichols, and McAllister,-because of a failure of proof. The evidence offered to establish these several causes of action consisted of load checks, and the oral testimony of witnesses that the wheat was received upon the same terms and conditions, and under the same contract, as that of the other parties. The load checks 50 L. R. A. This disposes of all the questions raised on the appeal, and, finding no error in the record, the judgment is affirmed. 1. 2. CALIFORNIA SUPREME COURT. George C. BREWER, Respt., v. HORST-LACHMUND COMPANY, Appt. (127 Cal. 643.) A contract embodied in telegrams for the sale and purchase of property is, for the purpose of determining whether or not it is sufliciently definite to satisfy the statute of frauds, to be interpreted in the light of the circumstances under which it was made. A sufficient memorandum of a con tract for the purchase of hops to satisfy the statute of frauds is contained in two telegrams, one from his agent to the purchaser stating that he had bought at a certain price a certain number, which, to the knowledge of all parties, referred to a certain lot of hops, and the other sent in response to the former, from purchaser to owner, confirming the pur chase. (February 27, 1900.) NOTE.-Telegrams as writings to make a contract within the statute of frauds. I. Generally. II. Parol evidence to explain. III. Contract cases not referring to the statute of frauds. IV. Is the message delivered to the telegraph company a contract? V. Which is the original-the message delivered to, or by, the telegraph company? VI. Summary. I. Generally. The general rule that a contract made by telegrams or by mail and telegrams will constitute a valid contract under the statute of frauds where the minds of the parties meet, and the terms of the contract are definite and certain, and can be gathered from the correspondence taken together, is illustrated in BREWER V. HORST-LACHMUND Co., where it was held that a contract by telegram was sufficient to satisfy the statute of frauds where the messages as explained by oral evidence to show the meaning of the figures, abbreviations, and circumstances, showed who the parties were, what was the subject of the contract, and what were its terms. There is some discussion as to establishing a contract under the statute where parol evidence is required. But where, as in this case, the contract is complete as to the terms and subject-matter, parties, and price, and only needs parol evidence to explain ambiguous words, and to show the circumstances under which it was made, it seems that this is permissible. But a contract will not be complete under the statute, that is indefinite, uncertain, and needs parol evidence to show the purchaser, quantity, price, or terms of sale. In the following cases a contract was held to be sufficient under the statute of frauds, where it was made by telegrams and correspondence: Watson v. Baker, 71 Tex. 746, 9 S. W. 867; Bibb v. Allen, 149 U. S. 481, 37 L. ed. 819, 13 Sup. Ct. Rep. 950; Haubelt Bros. v. Rea & P. Mill. Co. 77 Mo. App. 672; Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511, Rev'g 41 Barb. 255; Dunning v. Roberts, 35 Barb. 463; Coupland v. Arrowsmith, 18 L. T. N. S. 755; McBlain v. Cross, 25 L. T. N. S. 804; Godwin v. Francis, L. R. 5 C. P. 295, 22 L. T. N. S. 338, 39 L. J. C. P. N. APPEAL by defendant from a judgment of the Superior Court for Sacramento County in favor of plaintiff in an action for breach of contract to purchase hops. Affirmed. The facts are stated in the Commissioner's opinion. Messrs. White & Seymour, for appellant: The memorandum, to be sufficient, must show with reasonable certainty what contract was finally agreed upon, and the precise nature of the contract; it must set out the parties, the subject-matter, price, terms, and conditions of the contract. Eppich v. Clifford, 6 Colo. 493; 8 Am. & Eng. Enc. Law, p. 722; Browne, Stat. Fr. §§ 371, 385; Benjamin, Sales, § 250, and note t; Sugden, Vendors, p. 134; 2 Kent, Com. 511; 1 Greenl. Ev. §§ 262, 268; 1 Reed, Stat. Fr. § 322. The telegram is insufficient as a memoran S. 121 Bundy v. Johnson, 6 U. C. C. P. 221; Little v. Dougherty, 11 Colo. 103, 17 Pac. 292; Crystal Palace Flouring Mills Co. v. Butterfield (Colo. App.) 61 Pac. 479; Smith v. Easton, 54 Md. 138, 39 Am. Rep. 355; Underwood v. Stack, 15 Wash. 497, 46 Pac. 1031; Ryan v. United States, 136 U. S. 68, 34 L. ed. 447, 10 Sup. Ct. Rep. 913; Kleinhans v. Jones, 15 C. C. A. 644, 37 U. S. App. 185, 68 Fed. Rep. 742; Elbert v. Los Angeles Gas Co. 97 Cal. 244, 32 Pac. 9; Greeley-Burnham Grocer Co. v. Capen, 23 Mo. App. 307. Where a letter described a farm, and offered it for sale, telegrams between the parties fixing the price, and a reply accepting the proposition, were held to constitute a contract within the statute of frauds. Watson v. Baker, 71 Tex. 746, 9 S. W. 867. In this case the court said that the written evidence required by the statute need not be comprised in a single document, or drawn up in any particular form, and the contract need only be signed by the party to be charged by it. Parol testimony cannot add to their terms, yet it can show the circumstances. The court further said that the purchaser did promise by telegrams to pay $12,000, and after the payment of $4,000 he promised to pay $8,000. was not necessary that the promise be in writing, as the purchaser had taken possession. It And bought-and-sold notes made by brokers on a sale of 10,000 bales of cotton, pursuant to telegrams, under an agreement to use a cipher code, considered in connection with letters and the rules of the cotton exchange, were held to constitute memoranda in writing sufficient to satisfy the statute of frauds, although fictitious names used were required to be explained to ascertain their meaning. Bibb v. Allen, 149 U. S. 481, 37 L. ed. $19, 13 Sup. Ct. Rep. 950. And where a purchaser applied to a broker for quotations on flour, and the broker telegraphed his merchant, who responded: "Three ninetyfive basis Beauty cotton. See letter yesterday;" and when the broker received the telegram it read: "Three twenty-five basis Beauty cotton. See letter yesterday;" and the broker showed the telegram to the purchaser and sold him a carload for $3.25, and executed a bill of sale,it was held that the broker was the agent of the vendor, invested with authority to enter into the contract; and the signing of the written dum, for it contains no mention of the kind of property sold, nor of the terms of the sale, nor of the quantity of property subject to the agreement. Unless the essential terms of the contract can be ascertained from the writing itself, or by reference in it to something else, the writing is not a compliance with the statute; and if the agreement be thus defective, it cannot be supplied by parol proofs. First Baptist Church v. Bigelow, 16 Wend. 28; Williams v. Morris, 95 U. S. 456, 24 L. ed. 362; Wright v. Weeks, 25 N. Y. 153. The goods sold must be designated in the memorandum, and cannot be shown by parol. May v. Ward, 134 Mass. 127; Pulse v. Miller, 81 Ind. 190; Holmes v. Evans, 48 Miss. 247, 12 Am. Rep. 372. A memorandum, referring for the identification of the subject-matter to a parol contract then subsisting or thereafter to be made, is insufficient. 1 Reed, Stat. Fr. § 322; Hyde v. Cooper, 13 Rich. Eq. 250; Whelan v. Sullivan, 102 Mass. 206; Waterman v. Meigs, 4 Cush. 497; memorandum by the broker was sufficient to * meet the requirements of the statute of frauds. Haubelt Bros. v. Rea & P. Mill. Co. 77 Mo. App. 672. In this case the telegraph company was negligent in failing to correctly transmit the telegram, and the court held that when one makes an order by telegraph he makes the telegraph company his agent, and if it is altered in the transmission he is bound by it as transmitted. And a telegram: "Will deliver 50,000 at seven and a quarter, per (steamer) Moses Taylor,"-in reply to a telegram which asked at what price they would sell 100,000 Mexican dollars; and a letter of the same date repeating the telegram and stating that they had sent it, -were held sufficient evidence of subscription by the respondents to take the case out of the statute of frauds. Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511, Reversing 41 Barb. 255. Where a firm received a telegram: "I will be responsible for 'P.'s' bill of goods ordered yesterday," signed A. R.; and shipped the goods and then sued A. R; and the message should have been one guaranteeing the responsibility of "H"-it was held that the telegraph operator was the agent of the sender, and that if a mistake were made the principal would be bound. It was further held that the agreement was a valid promise within the statute of frauds, as the agent in sending the telegram bound the principal, and credit was given. to the sender of the telegram. It was further held that evidence of the search for and loss of the original telegram authorized the use of a copy. Dunning v. Roberts, 35 Barb. 463. Correspondence and telegrams in relation to a lease for twenty-one years, taken together, were held to constitute a binding contract within the statute of frauds. Coupland v. ArrowSmith, 18 L. T. N. S. 755. In this case the court said: "The defendant several times referred to what he considered 'an obligation' and an engagement,' which could only have referred to the terms of an agreement as elucidated by the correspondence." | Sheid v. Stamps, 2 Sneed, 175; Washington Ice Co. v. Webster, 62 Me. 341, 16 Am. Rep. 462. In the following cases the memorandum was held insufficient, and parol evidence was not permitted for the purpose of making the subject-matter more definite: Piatt, 32 Kan. 62, 3 Pac. 781; Sherer v. Baldwin v. Kerlin, 46 Ind. 426; Fry v. Trowbridge, 135 Mass. 500; Church of the Advent v. Farrow, 7 Rich. Eq. 378; Johnson v. Granger, 51 Tex. 42; Eckman v. Brash, 20 Fla. 763; Pipkin v. James, 1 Humph. 325, 34 Am. Dec. 652; Ridgway v. Ingram, 50 Ind. 145, 19 Am. Rep. 706. Mr. Albert M. Johnson, for respondent: The note or memorandum required by statute may be in the form of letters, telegrams, etc., between the parties relating to the subject-matter of the contract, and so connected that they may be fairly said to constitute one paper. Ryan v. United States, 136 U. S. 83, 34 L. ed. 453, 10 Sup. Ct. Rep. 913; Lee v. Maswered by letter, to which the broker replied by telegraph: "Buyer takes one hundred tons of hay at 5 L. net cash to selves." This was on the ground that the buyer might be treated as the undisclosed principal of the agent, who appeared on the telegrams to be liable as principal. McBlain v. Cross, 25 L. T. N. S. 804. And an offer by letter to buy an estate for a certain sum, accepted by telegram, constitutes a contract under the statute of frauds. Godwin v. Francis, L. R. 5 C. P. 295, 22 L. T. N. S. 338, 39 L. J. C. P. N. S. 121. Where a stipulation is made, "the copies may be treated as originals signed as aforesaid," a telegram: "Wants to buy wheat on 'Grace Greenwood.' What is your price?" Answer: "I will sell for two dollars per bushel. Be in Toronto Monday." Reply: "I will take wheat on Grace Greenwood, at your offer, two dollars per bushel." Reply: "Your telegram received. I will be in Toronto Wednesday,"-constitute a contract within the statute of frauds. Bundy v. Johnson, 6 U. C. C. P. 221. A contract made by telegrams and letters is a sufficient compliance with the statute of frauds. Little v. Dougherty, 11 Colo. 103, 17 Pac. 292. In this case a letter was sent asking a party at what salary he would come and work for him for one year commencing January 1, and requesting answer by telegram. He answered by letter and telegram stating that he would come for $1,500, and a reply telegram was received December 19, that he would give $1,200 for one year. No answer was made to this. Another telegram was received: "Will you accept on two years guarantee at $1,400?" This was answered by telegram saying he accepted, and would commence January 10, to which there was a reply December 27: "I will accept you January 10." The employee produced the letters and telegrams received, but those sent were not produced, although notice was given to produce the same. And a letter pricing wheat, and a telegram accepting offer and ordering 3,000 bushels, and telegram acknowledging receipt of order and that wheat would be shipped that week, conTwo telegrams, one signed in the agent's name stitute a contract under the statute of frauds and in the other of which the name of the buyer requiring writing in case of a sale of goods of was not mentioned, constituted a sufficient over $50 in value. Crystal Palace Flouring memorandum of the contract to satisfy the stat- Mills Co. v. Butterfield (Colo. App.) 61 Pac. ute of frauds, where a broker telegraphed a 479. In this case the court said: "Here was vendor for the price of hay, which was an- a complete contract. It was definite as to the honey, 9 Iowa, 344; Jelks v. Barrett, 52 Miss. 315; Fisher v. Kuhn, 54 Miss. 480. l'arol evidence may be resorted to in aid of the writing, where an ambiguity exists in respect to the property intended to be sold, or to which the contract relates. 1 Beach, Modern Law of Contracts, §§ 575, 581; Breckinridge v. Crocker, 78 Cal. 529, 21 Pac. 179; Elbert v. Los Angeles Gas Co. 97 Cal. 244, 32 Pac. 9; Joseph v. Holt, 37 Cal. 250; Benjamin, Sales, 6th ed. pp. 208 et seq.; Browne, Stat. Fr. 5th ed. §§ 355, 366, 384, 385, 409; Beckwith v. Talbot, 95 U. S. 289, 24 L. ed. 496. Parol evidence is admissible to show the situation of the parties at the time the writing was made, and the circumstances attending the transaction, and to show the meaning which certain words have acquired by usage, and also to show the time when the bargain was made. number of bushels sold, the price to be paid, and the time of delivery." A telegraph despatch promising to indorse is a sufficient compliance with the statute of frauds requiring such a promise to be in writing. Smith v. Easton, 54 Md. 138, 39 Am. Rep. 355. An agreement made by a husband and wife to purchase land, through letters and telegrams, shows a valid contract for the purchase of the land on their part under the statute of frauds. Underwood v. Stack, 15 Wash. 497, 46 Pac. 1031. And a complete contract binding under the statute of frauds may be gathered from letters, writings, and telegrams between the parties relating to the subject-matter of the contract, and so connected with each other that they may be fairly said to constitute one paper relating to the contract. Ryan v. United States, 136 U. S. 68, 34 L. ed. 447, 10 Sup. Ct. Rep. 913. Correspondence by letters and telegrams when put together, if they make out an assent of the parties to the terms of the sale, will make a binding agreement which may be specifically enforced; and such a mode of creating a binding contract is sufficient under the statute of frauds, in the state of Kentucky, in regard to contracts for the sale of land. Kleinhans v. Jones, 15 C. C. A. 644, 37 U. S. App. 185, 68 Fed. Rep. 742. A correspondence through letters or telegrams, or both, if they show clearly what the contract was, is sufficient under the statute of frauds. Elbert v. Los Angeles Gas Co. 97 Cal. 244, 32 Pac. 9. In this case the court said: "Now, with respect to the question whether or not the letters and telegram afford sufficient evidence that a contract for two years at a certain stipulated price was made, we deem it enough to say that we think said evidence was sufficient to show said facts; and we do not consider it necessary to repeat said letters and telegrams here in detail." Sold notes and subsequent correspondence by letters and telegrams between the commission house and its agent relating to the same subject-matter, that, taken together, make the terms of the sale entirely clear without resorting to parol evidence, make a contract, and take the case out of the letter and policy of the statute of frauds. Greeley-Burnham Grocer Co. v. Capen, 23 Mo. App. 307. In J. K. Armsby Co. v. Eckerly, 42 Mo. App. 299, where a telegram to a broker directed him to sell one car of apples without designating Wood, Stat. Fr. § 385; Stoops v. Smith, 100 Mass. 63, 97 Am. Dec. 76, 1 Am. Rep. 85; Hart v. Hammett, 18 Vt. 127. Parol evidence is admissible to explain technical expressions, and the meaning of words and phrases not in common use. Browne, Parol Ev. § 10; Callahan v. Stanley, 57 Cal. 476; Berry v. Kowalsky, 95 Cal. 134, 30 Pac. 202; Salmon Falls Mfg. Co. v. Goddard, 14 How. 446, 14 L. ed. 493; Smith v. Clews, 114 N. Y. 190, 4 L. R. A. 392, 21 N. E. 160. If the writing refer to any other writing which can be identified completely by this reference, without the aid of parol evidence, then the two or more writings may constitute a compliance with the statute. Turner v. Lorillard Co. 100 Ga. 645, 28 S. E. 383; Lee v. Butler, 167 Mass. 426, 46 N. E. 52; Austin v. Davis, 128 Ind. 472, 12 L. R. A. 120, 28 N. E. 59; Hickey v. Dole, 66 N. the exact quantity of boxes or stipulating the time of delivery, and the broker made a sold note, it was said that a memorandum of sale may be good under the statute of frauds, although it does not express the understanding of the parties; and that parol evidence may be resorted to for the purpose of helping out its deficiencies. In this case the telegram was inadmissible in evidence, as it contained some words in cipher, and it was not shown to have been read by the defendant. But in the following cases it was held that contracts made by telegrams were not sufficient under the statute of frauds, where they were indefinite, uncertain, ambiguous, or did not identify the property, purchaser, or terms of sale: Breckinridge v. Crocker, 78 Cal. 529, 21 Pac. 179; Alexander v. Western U. Teleg. Co. 67 Miss. 386, 7 So. 280; Williams v. Brickell, 37 Miss. 682, 75 Am. Dec. 88; McElroy v. Buck. 35 Mich. 434; Hastings v. Weber, 142 Mass. 232, 56 Am. Rep. 671, 7 N. E. 846; Lincoln v. Erie Preserving Co. 132 Mass. 129; Hazard v. Day. 14 Allen, 487, 92 Am. Dec. 790; Kinghorne v. Montreal Teleg. Co. 18 U. C. Q. B. 60; Marschall v. Eisen Vineyard Co. 7 Misc. 674, 28 N. Y. Supp. 62; Whaley v. Hinchman, 22 Mo. App. 483; Moulton v. Kershaw, 59 Wis. 316. 48 Am. Rep. 516, 18 N. W. 172; North v. Mendel, 73 Ga. 400, 54 Am. Rep. 879; Watt v. Wisconsin Cranberry Co. 63 Iowa, 730, 18 N. W. 898; Duff v. Hopkins, 33 Fed. Rep. 599; Rector Provision Co. v. Sauer, 69 Miss. 235, 13 So. 623 Palmer v. Marquette & P. Rolling Mills Co. 32 Mich. 274. writing to be The memorandum of a contract made by telegrams must contain all the material elements of the contract; that is, it must show who is the seller and who is the buyer, what the price is, and when it is to be paid, and must so describe the land that it can be identified, under Cal. Civ. Code, § 1741, Code Civ. Proc. §§ 1971-1973, providing that no agreement for the sale of real property or of any interes: therein is valid unless the same, or some note or memorandum thereof be in and subscribed by the party charged, or his agent thereunto ized in writing. The court said memorandum of an agreement is sufficient, and it may be found in one or more papers, some or all of which may be telegrams. Breckinridge v. Crocker, 78 Cal. 529, 21 Pac. 179. In this case it could not be ascertained from the telegram who the buyer was. The subject-matter of the offer was for "the balance of M. town property," and the acceptance was of the authorthat а |