CHAP. V. parties, that they were assented to by the other; for, as there never was a contract till such assent on his part, the effect of the evidence is not to vary a written contract, but merely to show what was the condition of the document when it became a contract. (a) (a) Stewart v. Eddowes, L. R. 9 C. P. 311. CHAPTER VI. THE SIGNATURE TO THE MEMORANDUM. HE fourth section of the Statute of Frauds requires that the note or memorandum shall be signed "by the party to be charged," and the seventeenth "by the parties to be charged." Under both these sections it has long been well settled that an agreement signed by one party only is sufficient to charge him within the statute, and therefore, upon a contract for the sale of land or of goods, if the purchaser alone has signed the contract, he cannot refuse to execute the conveyance or to accept the goods upon the ground that the purchaser has not signed the contract. (a) And it is no objection that the party signing can enforce the contract while the other cannot; (b) for if it is said that unless the plaintiff also signs there (a) Hatton v. Gray, 2 Ch. Ca. 164; Seton v. Slade, 7 Ves. 264 ; Fowle v. Freeman, 9 Ves. 351; Western v. Russell, 3 V. & B. 187; Egerton v. Matthews, 6 East, 307; Boys v. Ayerst, 6 Madd. 316; Owen v. Thomas, 3 My. & K. 353; Field v. Bolland, 1 Dru. & Wal. 37; Liverpool Borough Bank v. Eccles, 4 H. (b) Allen v. Bennett, 3 Taunt. Kempster, 5 Taunt. 786. CHAP. VI. Memorandum signed by the party to be need only be charged. is a want of mutuality, the answer is, that the defendant might have required the plaintiff's signature to the contract; or that, if he has not done so, it is his own fault; the object of the statute was to secure the defendant's. (a) The party signing may, it appears, require the other to accept or refuse the contract in writing, and if this is not done, may himself rescind it, (b) at least, before the other has done some act to bind himself. (c) Where articles of association contained a clause entering into a contract required by the statute to be in writing, and the articles were signed by seven members of the company, but no contract was entered into under the seal of the company, it was held that the articles were a contract between the shareholders inter se, and did not create any contract between the plaintiff, who was not a party, and the company, and that the signatures to the articles which were affixed, alio intuitu, were not signatures to a memorandum of the contract within the statute, so as to bind the company.(d) It seems to be doubtful whether the signature, by way (a) Laythoarp v. Bryant, 2 Bing. (N. C.) 743, per Tindal, C. J. See as to alterations made after signature by one of the parties, Stewart v. Eddowes, L. R. 9 C. P. 311; as to signature in case of a deed, see ante p. 10. (b) Lord Ormond v. Anderson, 2 Ball & B. 371; Williams v. Williams, 17 Beav. 213, 216. (c) Martin v. Mitchell, 2 Jac. & W. 428. The foregoing cases overrule dicta in Lawrenson v. Butler, 1 Sch. & Lef. 13; and O'Rourke v. Perceval, 2 Ball & B. 58. As to when a covenantee may sue for a breach of covenant, although he has not executed the deed, see Wetherell v. Langston, 1 Ex. 634; Pitman v. Woodbury, 3 Ex. 4; Swatman v. Ambler, 8 Ex. 72; British Empire Mutual Life Assurance Co. v. Browne, 12 C. B. 723; Morgan v. Pike, 14 C. B. 473; Taylor on Evid, 6th ed. 904. (d) Eley v. The Positive Assurance Co., L. R. 1 Ex. D. 20. of approval, of a draft agreement or conveyance, by a party to be bound, is a sufficient signature within the statute.(a) Where a draft agreement had on the back of it the following memorandum, "We approve of the within draft," and this was signed by the parties, it was argued that this draft, though not of itself an agreement, was evidence of an agreement. But the Court held the contrary, Lord Tenterden, C.J., saying that the words in question did not import an agreement, for if they did there would not have been any necessity for any other instrument.(b) "Where the parties themselves, not being professional persons, sign such a memorandum, it is a question to be decided, in each case, whether they signed in that form as simply approving of the draft as such, or whether they intended to give validity to it as an agreement."(c) CHAP. VI. It seems that the written approval by a professional By agent. agent of a draft agreement, or conveyance, which recites the agreement, is not sufficient, the signing being alio 608. (b) Doe v. Pedgriph, 4 C. & P. 312. (c) Sugd. V. & P. 14th ed. 144; and see Foligno v. Martin, 22 L. J. Ch. 502. (d) Dart. V. & P. 5th ed. 234, citing Lady Thynne v. Earl of CHAP. VI. Alteration of draft convey to it. his instructions. We trust there will be no impediment to prevent an early completion, and shall be glad to re- purpose within The alteration of a draft conveyance by one of the ance by party parties in his own hand is not a sufficient signature, even though the seller afterwards executes it, and causes it to be registered, (b) nor will it be sufficient if the whole conveyance is drawn by the defendant, if not signed, for the statute has made signing absolutely necessary for the completion of the contract, (c) and the mere circumstance of the name of a party being written by himself in the body of a memorandum of agreement for a lease will not constitute a signature within the statute. (d) The rule therefore appears to be that the mere approval or alteration of a draft agreement or conveyance by one or both of the parties or by a professional agent, unless with the intention to contract, is not a sufficient signing within the statute. In Shippey v. Derrison, (e) the defendant (a) Forster v. Rowland, 7 H. & N. 103. (b) Hawkins v. Holmes, 1 P. Wms. 770. (c) Ithel v. Potter, 1 P. Wms. (d) Stokes v. Moore, 1 Cox, 219; Caton v. Caton, L. R. 1 Ch. 137; affd, L. R. 2 H. L. 127. (e) 5 Esp. 190. |