that they each contain an express reference to a specific contract or sale although not to each other. The leading case for the former doctrine is Lerned v. Wannemacher.35 This decision may be taken as a type of all. There were two documents nearly identical, one signed by each party. The copy signed by the defendant, however, did not contain the name of the plaintiff, and the other had a special stipulation afterward written and signed by the plaintiff. The court held that as the documents evidently related to the same transaction, the signature of the defendant would be taken as applicable to both. This case has been followed by others to the same effect, and the doctrine has been applied especially to correspondence between the parties. It seems to be supposed by many courts that where parties have a correspondence in regard to any matter that the whole correspondence, including the letters of both parties, can necessarily be made use of in order to make out a memorandum, at least if the letters relate to the same subject-matter. 37 In the case of letters, reference is generally 35 9 Allen, 412. 36 White v. Breen, 106 Ala. 159, 19 So. 59, 32 L. R. A. 127 (land); Strouse v. Elting, 110 Ala. 132, 20 So. 123 (guarantee); McBrayer v. Cohen, 92 Ky. 479, 18 S. W. 123 (land); Smith v. Colby, 136 Mass. 562 (goods); Freeland v. Ritz, 154 Mass. 257, 28 N. E. 226, 12 L. R. A. 561, 26 Am. St. Rep. 244 (land); Louisville Varnish Co. v. Lorick, 29 S. C. 533, 8 S. E. 8 (goods). See also Nickerson v. Weld, 204 Mass. 346, 90 N. E. 589 (land); Leesley v. A. Rebori Fruit Co., 162 Mo. App. 195, 144 S. W. 138 (goods); Flegel v. Dowling, 54 Ore. 40, 102 Pac. 178 (land); Leonard v. Woodruff, 23 Utah, 494, 65 Pac. 199 (land); Hummer v. McGee, 141 Wis. 216, 124 N. W. 302 (land). 37 Ryan v. United States, 136 U. S. 68, 83, 10 S. Ct. 913, 34 L. Ed. 447; Crystal Flouring Co. v. Butterfield, 15 Colo. App. 246, 61 Pac. 479 (goods); Elbert v. Los Angeles Gas Co., 97 Cal. 244, 32 Pac. 9 (contract not to be 36 performed within a year); Austin v. Davis, 128 Ind. 472, 476, 26 N. E. 890, 12 L. R. A. 120, 25 Am. St. Rep. 456 (contract to make will); Thames Trust Co. v. Beville, 100 Ind. 309 (land); Swallow v. Strong, 83 Minn. 87, 85 N. W. 942 (land); Trevor v. Wood, 36 N. Y. 307, 93 Am. Dec. 511 (goods); Peay v. Seigler, 48 S. C. 496, 26 S. E. 885, 59 Am. St. Rep. 731; Watson v. Baker, 71 Tex. 739, 9 S. W. 867 (land); Cobb v. Glenn Lumber Co., 57 W. Va. 49, 49 S. E. 1005, 110 Am. St. Rep. 734. Most of these decisions were doubtless correct upon their facts, because the letters of the defendants referred to the letters of the plaintiffs, which it was sought to incorporate with them. In Watson v. Baker, 71 Tex. 739, 9 S. W. 867, however, this was clearly not the case. The only letter which contained a description of the property, though it did not contain the ultimate bargain of the parties, was neither written by the party sought to be charged nor referred to in any made by each succeeding letter to the preceding, but this is not invariably the case, and in a telegraphic correspondence it is perhaps not common.38 It seems impossible to justify this extension of the doctrine in regard to several documents. There is no difficulty in making out a written memorandum, all evidently relating to the same transaction, but the memorandum is not signed by the party to be charged. A simple illustration will indicate this. A writes a letter to B, saying: "I will sell you the property of which we spoke yesterday for $5,000 cash." B replies: "I understand that you will sell me the following described property of which we spoke yesterday (describing the property) at $5,000 cash. I hereby accept your proposition. According to the doctrine here criticized B's reply could be read with A's letter to charge A; they evidently refer to the same transaction, and the description of the property contained in B's letter could be incorporated in A's writing. But it is obvious that A has never authenticated the description by his signature, and to allow the description written by B to be used by B in enforcing the contract against A, is nothing other than to allow B to write an essential term of the memorandum himself and charge A with it as written.39 It is, however, permissible to use so many of the letters of the party to be charged as evidently relate to the same transaction, irrespective of any reference in them to one another, provided they are all signed. 40 It is not enough, therefore, that there be a continuous correspondence between the parties. It is essential to examine specifically the papers not signed by the parties to be charged, which it is sought to incorporate with the paper or papers that are so signed, and determine whether the unsigned papers have been adopted by the signed papers.1 The only extension of of his subsequent correspondence, yet the court admitted it as part of the correspondence, saying broadly: "It is sufficient if the contract can be plainly made out in all its terms from any writing of the party or from his correspondence." 38 See Brewer v. Horst-Lachmund Co., 127 Cal. 643, 60 Pac. 418, 50 L. R. A. 240; Cobb v. Glenn Lumber Co., 57 W. Va. 49, 49 S. E. 1005, 110 Am. St. Rep. 734, and many decisions collected in 50 L. R. A. 240, note. 39 This case is suggested by the decision of Watson v. Baker, 71 Tex. 739, 9 S. W. 867. Compare the correct decision of Wilson v. Lewiston Mills Co., 150 N. Y. 314, 44 N. E. 959. 40 See supra, § 581. 41 This doctrine is upheld by Fowler Elevator Co. v. Cottrell, 38 Neb. the doctrine requiring an express reference in the signed papers that seems permissible is where the signed paper at the time of the signature can be shown from its contents to be based on an adoption of a then existing unsigned paper. 42 § 583. Separate documents-Reference to the same transaction. Recent English cases have adopted a doctrine going quite as far as the doctrine criticized. in the preceding section. Where a signed document refers to the transaction in question an unsigned memorandum describing the transaction has been treated as incorporated therewith. 43 One or two similar decisions have been made in the United States. 44 Such decisions go 512, 57 N. W. 19 (goods); Brown v. Whipple, 58 N. H. 229; Wilson v. Lewiston Mill Co., 150 N. Y. 314, 44 N. E. 959; Darling v. Cumming, 92 Va. 521, 23 S. E. 880. Devine v. Warner, 76 Conn. 229, 56 Atl. 562, also supports the requirements suggested by the text but goes still further (without justification) in requiring a mutual reference between the papers. 42 This is well illustrated by a New Jersey decision, Baldwin V. Trowbridge, 62 N. J. Eq. 468, 50 Atl. 494, where a check signed by the defendant was held to establish a memorandum of a trust. The amount of the check was taken from entries in an account-book kept by the bookkeeper of the defendant, the party to be charged, and the entries contained the data necessary for a memorandum. It is reasonably clear that the maker of a check by making it for the amount indicated in the account-book authenticated with his signature the entries in the book. 43 Long v. Millar (C. A.), 4 C. P. D. 450. The defendant signed the following receipt: "Received of Mr. George Long the sum of thirty-one pounds as a deposit on the purchase of three plots of land at Hammersmith. £31 0 0. Chas. W. Millar." The plaintiff was allowed to treat as incorporated in this receipt a memorandum of the purchase which had been signed by him on the same day, and which contained the full terms of the bargain. It will be noticed that the receipt does not refer to a document at all, but refers to a transaction. See also Studds v. Watson, 28 Ch. D. 305; Oliver v. Hunting, 44 Ch. D. 205, where, however, both papers were signed by the parties to be charged. 44 Smith v. Colby, 136 Mass. 562. In this case these words in the paper signed by the defendant, "Upon the terms agreed upon when at your place," were held sufficient to enable the plaintiff to make use of a memorandum of those terms. Compare Beckwith v. Talbot, 95 U. S. 289, 24 L. Ed. 496. In this case a signed paper referred to a previous "agreement." It was held that a previously written agreement was thereby incorporated by the signed paper. This decision seems sound for the word "agreement" seems to have referred to this writing rather than to the oral agreement of which the writing was the evidence. beyond what seems permissible, for the signature of the party to be charged does not authenticate an unsigned memorandum of the purchase merely because the signed paper makes some reference to the purchase. The signature vouches for the fact that there was a purchase, but it does not vouch for the terms of the purchase as described in the unsigned paper. 45 § 584. Consistency of separate documents. It is sometimes said that separate papers constituting a memorandum must be consistent with each other in order to be used.46 Reflection shows that there are obvious limits to any such principle. In the first place it is necessary to distinguish between a written contract and a memorandum of an oral contract. If each of two inconsistent writings purports to be a written contract a difficulty arises which has no relation to the Statute of Frauds, but has to do either with lack of mutual assent or a mistaken expression thereof. If there was lack of mutual assent, which would happen if without fault on either side one party intended one form and so expressed himself, and the other party another form and so expressed himself, there is no bargain. 47 If on the other hand one form of expression was that which the parties intended 48 and the other form was due to mistake, the case is one for equitable reformation of the incorrect instrument and as a court of law could reach the same result by giving effect to the accurately expressed writing and disregarding the other, it is possible that it would do so. If, however, writings which are merely memoranda of McBrayer v. Cohen, 92 Ky. 479, 18 S. W. 123, is still more open to the criticism made in the text. 45 This view is supported by Llewellyn v. Sunnyside Coal Co., 242 Pa. 517, 89 Atl. 575, and by Wright v. Harrison, 137 Tenn. 157, 192 S. W. 716; Darling v. Cumming, 92 Va. 521, 23 S. E. 880. In the case last cited the words "according to an understanding between us were held an insufficient reference to an unsigned paper containing a statement of the bargain between the parties. 46 Benjamin, Sales (5th ed.), 244; Mechem, Sales, § 427. 47 Thornton v. Kempster, 5 Taunt. 786. See supra, § 94. 48 In Meyer v. Redmond, 205 N. Y. 478, 98 N. E. 906, affg. 141 N. Y. App. Div. 123, 125 N. Y. S. 1052, an auctioneer signed a contract for goods sold by him without disclosing his principal. In his sales book, he made a memorandum naming the principal. It was held this did not relieve him from liability on the paper delivered to the purchaser. the contract are inconsistent, no such difficulty arises. If one or more papers express accurately the oral bargain of the parties, it is obviously no valid ground of objection that there are other papers in existence which express the bargain inaccurately. The statute requires nothing more than one accurate memorandum; if that exists the statute is satisfied. 49 As parol evidence is always admissible to show that a memorandum, which is not a written contract, does not accurately express the bargain, 50 it must be equally admissible to show that a writing is an accurate memorandum. The decisions which are cited in support of the requirement of consistency for the most part go no farther than this. A signed paper, incomplete in itself and professing to incorporate into itself another paper also insufficient in itself, must incorporate the latter paper in its entirety. If this will result in a writing repugnant in its terms the papers have been held insufficient.51 But the correctness of even this cannot be admitted as a general rule. Suppose a writing signed by the party to be charged refers to another writing for all the terms of a contract except one, and this one fact the signed paper states accurately and the unsigned paper inaccurately. There is here a sufficient memorandum to charge the signer of the second writing.5 § 585. Signature. All sections, both of the English and American statutes, require signature. It was early held that this did not mean a signature at the end of the writing, and there is no doubt that a signature may be put at any place in the writing unless the stat 49 See Morton v. Clark, 181 Mass. 134, 63 N. E. 409; s. c., 184 Mass. 555, 69 N. E. 309; Willis v. Ellis, 98 Miss. 197, 53 So. 498. 50 See supra, § 575. 51 In Cooper v. Smith, 15 East, 103, a letter of the defendants was sought to be used in connection with an entry in the plaintiff's books, but the letter was inconsistent with the books. In this case neither document was a complete memorandum and the letter did not adopt and incorporate the entry in the books. This is the whole ground of the decision. To the same effect is Smith v. Surman, 9 B. & C. 561, where a letter from the defendant was held not to incorporate with itself a previous letter from the plaintiff's attorney which it contradicted. See also Buxton v. Rust, L. R. 7 Ex. 1, 279; Haughton v. Morton, 5 Ir. C. L. 329. See also infra, § 116. 52 Willis v. Ellis, 98 Miss. 197, 53 So. 498. |