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CHAP. VI.

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In Caton v. Caton, (a) previously to a marriage the intended husband and wife agreed, by a memorandum drawn up in the husband's handwriting, that the husband should have the wife's property for life, paying her £80 a year for pin-money, and that she should have it after his death; and he gave instructions for a settlement upon that footing. The settlement was accordingly prepared, when they agreed that they would have no settlement, the husband promising, as the wife alleged, that he would make a will giving her all her property.

The name of the husband appeared in various parts of the memorandum. It was held that though it is not necessary that the signature of a party should be placed in any particular part of a written instrument, it is necessary that it should be so introduced as to govern or authenticate every material and operative part of the instrument; and where, therefore, the name of the party against whom specific performance was sought to be enforced appeared in different parts of the paper, but only in such a way that in each case it merely referred to the particular part where it was found, and that part was in the form of reference or description, and not of promise or undertaking, the signature was not sufficient. Lord Westbury said : (0) What constitutes a sufficient signature has been described by different judges in different words. In the original case upon this subject, though not quite the original case, but the case most frequently referred to as of earliest date, that of Stokes v. Moore, (c) the language of the learned judge is, that the signature must authenticate every part of the instrument. Or again, that it must give authenticity to every part of

(a) L. R. 2 H. L, 127, affg. (6) L. R. 2 H. L. 127. S. C. L. R. 1 Ch. 137.

(c) 1 Cox, 219.

CHAP. VI.

the instrument. Probably the phrases 'authentic and 'authenticity' are not quite felicitous, but their meaning is plainly this, that the signature must be so placed as to show that it was intended to relate and refer to, and that in fact it does relate and refer to, every part of the instrument. The language of Sir William Grant, in Ogilvie v. Foljambe(a) is (as his method was) much more felicitous. He says it must govern every part of the instrument. It must show that every part of the instrument emanates from the individual so signing, and that the signature was intended to have that effect. It follows, therefore, that if a signature be found in an instrument incidentally only, or having relation and reference only to a portion of the instrument, the signature cannot have that legal effect and force which it must have in order to comply with the statute, and to give authenticity to the whole of the memorandum. . . . An ingenious attempt has been made at the bar to supply that defect (of signature) by fastening on the antecedent words 'In the event of marriage the undernamed parties,' and by the force of these words of reference to bring up the signature subsequently found and treat it as if it were found with words of reference. My Lords, if we adopted that device we should entirely defeat the statute. You cannot by words of reference bring up a signature and give it a different signification and effect from that which the signature has in its original place in which it is found.

What is contended for by this argument differs very much from the process of incorporating into a letter or memorandum signed by a party another document which is specially referred to by the terms of the memorandum so signed, and which by virtue of that

(a) 3 Mer, 53.

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CHAP. VI.

reference, is incorporated into the body of the memorandum. There

you do not alter the signature, but you apply the signature, not only to the thing originally given, but also to that which, by force of the reference, is, by the very context of the original, made a part of the original memorandum. But here you would be taking a signature, intended only to have a limited and particular effect, and by force of the reference to a part of that document you would be making it applicable to the whole of the document, to which the signature in its original condition was not intended to apply, and could not, by any fair construction, be made to apply."

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CHAPTER VII.

CONTRACTS BY AGENTS.

N agent, whether for the purchase or sale of Chap. VII. lands or goods, may be appointed by parol, (a) Appointment but such an appointment is, of course, gene

of agent. rally inexpedient.(6) Where a memorandum was written by the clerk of the plaintiffs, in the presence of the defendant, stating that the defendant had called to say that he would be responsible for the plaintiff, it was held that there was not a sufficient undertaking within the statute. (c) But in Watkins v. Vince(d) evidence that the son of the defendant, a minor, had in several instances signed bills of exchange for his father was held sufficient in an action against the father on a guarantee in the handwriting of the son.

One of the parties to a contract cannot sign the name Contracting of the other as his agent so as to bind him within the party cannot

be agent for

other.

(a) Stansfield v. Johnson, 1 Esp. 101 ; Rucker v. Cammeyer, 1 Esp. 104; Emmerson v. Heelis, 2 Taunt. 38; Clinan v. Cooke, 1 Sch. & Lef. 22; Coles v. Trecothick, 9 Ves. 234 ; Mortlock v. Buller, 10 Ves. 292, 311; Dyas v. Cruise, 2 J. & Lat. 460; Else

v. Barnard, 28 Beav. 228; Heard
v. Pilley, L. R. 4 Ch. 549.

(b) 1 Dart. V. & P. 5th ed.
183.

(c) Diron v. Broomfield, 2 Chit. 205.

(d) 2 Stark, 368.

Chap. VII.

Auctioneer
at public sale
is agent for
both parties.

statute; the signature as agent must be by a third person and not the other contracting party. Thus, where the plaintiff wrote a memorandum of the contract, in which the defendant's name appeared as purchaser, the defendant having overlooked the plaintiff while writing, it was argued that the defendant had made the plaintiff his agent for the purpose of signing the memorandum by overlooking, and approving of what he had written; but Lord Ellenborough said that the agent must be some third person, and could not be the other contracting party.(a)

An auctioneer at a public sale is, during the continuance of the sale, by implication, an agent duly authorized to sign a contract for both parties, whether for the purchase of real estate, or of goods; and his writing down the name of the highest bidder in the auctioneer's book is a sufficient signature to satisfy the statute. In Emmerson v. Heelis(b) Mansfield, C.J., said : “By what authority does he write down the purchaser's name ? By the authority of the purchaser ? These persons bid, and announce their biddings loudly and particularly enough to be heard by the auctioneer. they do this ?

That he may write down their names opposite to the lots; therefore he writes the name by the authority of the purchaser, and he is an agent for the purchaser."(c) It follows, therefore, that an auctioneer

(a) Wright v. Dannah, 2 Proctor, 4 Taunt. 209; Kemeys Camp. 203; and see Farebrother V. Proctor, 1 Jac. & W. 350 ; v. Simmons, 5 B. & Ald. 333 ; Farebrother v. Simmons, 5 B. & Sharman v. Brandt, L. R. 6 Q. Ald. 333; Kenworthy v. Scho. B. 720.

field, 2 B. & C. 945; Walker v. (6) 2 Taunt. 38.

Constable, 1 B. & P. 306; Dur. (c) And see Hinde v. White. rell v. Evans, 1 H & C. 174; house, 7 East, 558; White v. 31 L J. Ex. 337.

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