Majority
p. 102Merritt and Merritt against Clason.
Headnote
A memorantract for the rye, written by p/oyeiTtomake with P afield book,1’ iñn the mid"”6°thee names of the vendor and vendee, and the purchase, body óf the ZrZáZl ”rfes;h™ sufficientb wr°itingdMthin the statute of frauds. (Sees. 30. c. 44. s. is.)tyonheageut writing?1 bl‘n agent1 of both the1 negiectnof the agent to give a copy of thj^memorancontractto the vendee will not affect the rights of ‘ the vendor.
THIS was an actioli of assumpsit, tried at the New-York sittings, in April last, before Mr. Justice Yates.
John Townsend, a witness for 'the plaintiffs, testified that he was a broker, and was employed by the defendant to purchase rye- On the 18th of February, 1812, he applied to Isaac Wright S' Son, the agents of the plaintiffs, in' New-York, and aoreed to purchase tif them 10,000 bushels of rye, at one dollar ner bushel, and they authorized him to sell the same to the r v ' * defendant, on the terms agreed on; the witness informed the defendant of the terms of sale, and was directed by him to make the purchase accordingly. The witness then went to Wright S' Son, and closed the bargain with them, as agents of the plaintiffs, and in their presence wrote in his memorandum-book, with a lead-pencil, as follows: “ February 18th, bought of Daniel S' Isaac Merritt, (the plaintiffs,) by Isaac Wright & Son, 10,000 bushels of good merchantable rye, at one dollar per bushel, 0 , deliverable in the last ten or twelve days of April nejxt, along side any vessel or wharf the purchaser may direct, for Isaac Clason, of New-York, payable on delivery.” All the, other memoranda in the same book were written with a lead pencil. Soon after the purchase was thus completed, the witness informed the defendant of it, but did not give him a copy of the ■ 7 , w. * * memorandum.
The plaintiff repeatedly tendered the rye to the defendant,
p. 103The points in this cause have been repeatedly discussed and settled. Townsend, the broker, acted as the agent of both parties; as such agent he was competent to make a contract obligatory on both. It is distinctly stated that he was an agent for both parties; besides, he was a broker, and, as such, is the agent of both. To make the contract valid, within the statute of frauds,[7] it is not necessary that the writing should be actually signed by the party or his agent. Signing does not, ex vi termini, mean that the name of the party should be subscribed. It is enough if the contract be in writing, and authenticated by him. The name may be at the top, or in any part of the contract or Instrument.[6] In Wright v. Darmah,[3] the distinction is made between a memorandum made by one of the parties, and assented to by the other, and a memorandum made by a third person. The written memorandum, in this case, contained every thing that was necessary to show the contract between the parties. No parpl evidence was requisite, to explain their intention, or the terms of the agreement. This is the true test of the validity of a contract, under the statute of frauds. The authority of the agent need not be m writing.[4]
according to the terms of the agreement, particularly on the 14th and 30th days of April, and the defendant refused to accept any pay for it. On the 1st of May, the plaintiffs addressed a letter to the defendant, giving him notice, that unies she received and paid them for the rye, according to the contract, they should, on Tuesday, (the 4th of May,) at noon, cause the same to be sold at public auction, at the Tontine coffee-house, and hold him accountable for the deficiency, if it should sell for less than the price mentioned in the contract, and the expenses. The defendant continuing to refuse to receive the rye, or to pay for it, it was, according to the notice, sold at public auction, and the present suit was brought to recover tire difference between the net proceeds of such sale and the contract price.
A verdict was taken for the plaintiff, subject to the opinion of the court on a case containing the facts above stated, and which either party was to be at liberty to turn into a special verdict.
Wells, for the plaintiffs.
p. 104Ho-w. a- pérson;.can be-the agent of;both parties, is not easy to comprehend. An auctioneer is no further the agent of the purchaser than, to put down his bid.- A broker, if he is agent for the vendor, is bound to .sell for the highest price, if. .he is agent for the buyer, it is. his duty to purchase .at the lowest price that can be obtained. He is, in such case, acting in two- distinct characters; having distinct duties, to peri form, in direct opposition to each -other. The English courts-have proceeded on erroneous principles, in, regard to this*sub:-ject. ,--- ; •; , Again, as to bought and sold-notes, as they-are called, the' mere -memorandum in the broker’s book -is not enough; - He must give a copy of the note to the buyer,: and another to the'■ ■seller. Besides, the place of delivery is -not mentioned in the contract. ’ 1 ■ -?m In Champion v. Plumer,[7] it was'held, that á memorandum sighed by the seller only was hot sufficient. The plaintiffs, , in this case, were not bound, and iff they were not, neither can-the defendant be bound. - *" In Cooper v. Smith,[6] there, was no - signature of - either partye and the .court held, that the reading over the memorandum tti the purchaser, and his assenting to it, was not- sufficient • to bind. him., ■ Again* the memorandum, in .this case, was written \vith á lead pencil. Is this’such a -writing as was' intended by the statute of frauds ? If it-is, then a writing on a slate; or with chalk, on a door or wall, would be a good memorandum within the statute. ■ it may be completely effaced, in, á moment, with a piece oí. India -rubber; and another contract written ¡ti its place without -the possibility of • detecting the’ fraud,: This would not-be the case if it vvéré-written with ink.- ‘Such a wri> tinglin'pencil, cannot satisfy1 the object of this statute.- It is no better than tracing, characters in the sand. It is said .fhat-the signature of the party is not requisite. 'But where are -the cases in which such a-doctrine'is to be found ? In the cases- relative to-wills, the devise was written by the tes- • tator* though not substeribed by- him. If "an instrument or memorandum'is not written by á party, its not. being signed of subscribed by him» is evidéncé‘that hé does not intend it tobe' regarded as his contract, It would be extremely injurious tó
Baldwin, contra.
p. 105give authority to brokers to bind parties, by such loose memo* randa of a contract. I do not deny, that, according to the cases decided, a broker is to be considered as the agent of both parties, and that his authority need not be in writing. But to make a valid agreement within the statute of frauds, the writing must be signed by the party himself who is to be charged, or by his authorized agent. If the contract is made by the principal, it must be signed by him; if by his agent, it must be signed by the agent. I do not say it must be subscribed, but it must be signed in some part of the contract. In Clinan v. Cooke,[7] the agreement was signed by the agent, and it being shown that he was an agent, his principal was held to be bound. In all the cases cited, where the agreements were held binding, it will be found that they were signed by the agent, who delivered a note of the bargain and sale. The point raised here was not discussed or decided in Bailey v. Ogden. Again; it is worthy of consideration what sort of writing was intended by the statute, which was made to prevent frauds that might arise from trusting to the memory of witnesses, by requiring a permanent and unchangeable evidence of the contract. A writing in ink is indelible, or if effaced and altered, the erasure or alteration may be easily detected, which would not be the case of a writing with a lead pencil. The object of the statute of frauds was, that the terms of the contract should be precise and certain, and properly authenticated. If these essential points are obtained, the statute pays little regard to form. Isaac Clason, the purchaser, by Townsend, Ms' agent, is mentioned in the memorandum, and that is a sufficient signing. It is not neces* sary that the agent should sign as agent, when he puts down the name of his principal. Besides, the agent informed Clason of the contract, and he made no objection to it. The broker is the go-between of the parties. He goes to the vendor,and inquires his price ; he then goes to the vendee, to know if he will give the price demanded, and if he assents, he concludes the bargain with the vendor. Here is no conflict of
D. B. Ogden, on the same side.
S. Jones, jun. in reply.
p. 106duties. His agency for both parties is. clear and simple. He is: the means of communication between them. They speak and act through him. He stands, indifferent between them. The ease of Cooper v. Smith, turned on the sufficiency of the memorandum,, not on the signing of-the party Or his agent. ■ Either party may demand a copy of the memorandum frbm the broker. 'As to the danger' of fraud, from the memorándum: being written with a lead- pencil?, the same danger would exist, if it Were written in ink.. If the broker were disposed to be fraudulent, he' might easily contrive to- alter .the agreement,' or substitute another in its place; .But this danger wholly ceases, where each party has a copy of . the -note of memorandum made by the. broker. And' it is a rule of convenience in England, but not an indispensable requisite, that copies of the memorandum should be delivered to the, parties.
delivered the opinion of the . court. The only point is, whether the memorandum, made by John Townsend, was a sufficient memorandum of the contract, within the' statute of frauds, to bind the defendant.
It is objected by the defendant’s counsel,
1. That the memorandum is not “ in writing?' being made with a lead pencil only. "
2. That it is not, “ signed?’ by the defendant, nor by his agent. ; jy ■ ' ; . •
3. That it is not binding; on the* defendant, ¡because his agent did not furnish him with a copy of it. •; - '
I have - no doubt that, the memorciivdwn required ■ by the sta* jfcnte* may as well- tie" written with' a lead.pencil- as with a pen and ink 5, and -it is ' observable: that in most, of . the reported, eases, fan,this head,'the níémóréndaM,ev.0. .written with a léad pencil* and no counsel, until now, has ever raised that objection, t
I think it clear,, also,-..from- the authorities*-that this- memorandnm was signed according tc/ tlie statute. , . ■ . , ■
It is not disputed, that the authorization of the agent, for such purpose, need not be in writing. In the body of this-memorandum the- name of Isaac Clason, the defendant, is written by his agent* whom he had expressly authorized to make this contract. The memorandum,, therefore*, is equally binding bn the defendant as if he had written it withffiis own hand 1
p. 107
and if he had used his own hand, instead of the hand of his agent, the law is well settled that it is immaterial, in such a case, whether the name is written at the top, or in the body, or at the • bottom of the memorandum. It is equally a signing within the statute. (Saunderson v. Jackson and another, 2 Bos. & Pull. 237. 1 Esp. 199. 1 P. Wms. 770. note 1.)
. The third objection is absurd. If the defendants agent neglected his duty, in not furnishing his employer with a copy of •this memorandum, it certainly cannot affect the rights of the plaintiffs, under that agreement.
The memorandum states with reasonable certainty every essential part of the agreement. The court áre of opinion that the plaintiffs are entitled to judgment.
Judgment for the plaintiff.