contract whoever is defendant in the suit, but also that the vendor's signature is sufficient to bind the vendee.73 How far this may involve the consequence that the vendor can enforce an oral executory contract against the purchaser, because of his ability to write a memorandum of the bargain and sign it himself is not always made clear; but probably it would generally, if not universally, be necessary that the purchaser should have indicated his assent to the writing either by accepting it or otherwise. It has been suggested that even though a memorandum with the signature of the defendant makes a contract enforceable at law, specific performance should not be given because of lack of mutualty; but the law is uniformly settled that if the memorandum would bind the defendant at law, equity will not refuse to enforce the contract merely because the contract could not have been enforced against the plaintiff.75 It should be observed that the requirement of the signature of the defendant has nothing to do with the questions previously considered,76 whether the names of both parties to in some misunderstandings in early New York decisions. See Roget v. Merritt, 2 Caines, 120; Ballard v. Walker, 3 Johns. Cas. 60; Gale v. Nixon, 6 Cow. 445; Worrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330. 73 Scott v. Glenn, 98 Cal. 168, 32 Pac. 983; Murray v. Crawford, 138 Ky. 25, 127 S. W. 494, 28 L. R. A. (N. S.) 680; Evans v. Stratton, 142 Ky. 615, 134 S. W. 1154, 34 L. R. A. (N. S.) 393; Henry v. Reeser, 153 Ky. 8, 154 S. W. 371; Kaiser v. Jones, 157 Ky. 607, 163 S. W. 741; Mull v. Smith, 132 Mich. 618, 94 N. W. 183 (statutory); Smith v. Mathis, 174 Mich. 262, 140 N. W. 548 (statutory); Gregory Co. v. Shapiro, 125 Minn. 81, 145 N. W. 791 (statutory); Krohn v. Dustin, (Minn. 1919), 172 N. W. 213 (statutory); Ide v. Leiser, 10 Mont. 5, 24 Pac. 695, 24 Am. St. Rep. 17; Gardels v. Kloke, 36 Neb. 493, 54 N. W. 834; Iske v. Iske, 95 Neb. 603, 146 N. W. 918; Worrall v. Munn, 5 N. Y. 229, 55 Am. Dec. 330 (statutory); Dykers v. Townsend, 24 N. Y. 57 (statutory); De Beerski v. Paige, 47 Barb. 172 (statutory); Boehly v. Mansing, 52 N. Y. Misc. 382, 102 N. Y. S. 171 (statutory); Tripp v. Bishop, 56 Pa. 424; Smith & Fleek's Appeal, 69 Pa. 474; Brodhead v. Reinbold, 200 Pa. 618, 50 Atl. 229, 86 Am. St. 735; McPherson v. Fargo, 10 S. Dak. 611, 74 N. W. 1057; Lee v. Cherry, 85 Tenn. 707, 4 S. W. 835, 4 Am. St. 800; Lusky v. Keiser, 128 Tenn. 705, 164 S. W. 777, L. R. A. 1915 C. 400; Dodge v. Hopkins, 14 Wis. 630; Hubbard v. Marshall, 50 Wis. 322, 6 N. W. 497 (statutory). 74 Lawrenson v. Butler, 1 Sch. & Lefroy, 13, per Lord Redesdale. And see dicta of Chancellor Kent in Clason v. Bailey, 14 Johns. 485, and Gibson, C. J., in Wilson v. Clarke, 1 W. & S. 554. 75 See infra, § 1437, and also cases of contracts relating to land in this section, n. 71. 76 See supra, §§ 569 et seq. the bargain must appear or whether the consideration furnished by the plaintiff either by way of counter promise or executed consideration must be stated in the memorandum." § 587. Or his agent in that behalf. The original statute allowed signature by an agent and this has been universally followed in this country. Who may be an agent and how his authority may be shown depend upon the principles of the law of agency, but some special applications of that law may be mentioned here. Conceivably the agent may sign either his principal's name without mentioning his own; he may sign his principal's name stating that the signature of the principal is made by him as agent; he may sign his own name as agent for a specified principal; he may sign his own name as agent, but without mentioning for whom; or, finally, he may sign his own name without mentioning any agency. Though it is more proper generally for an agent to disclose upon the memorandum for whom he is acting, the principal, if in fact he authorized the agent, will be bound by a memorandum signed even in the last form stated.78 It must be remembered, however, that the requirement of signature is a different thing from the requirement that the parties to the transaction be named, and though a signature often fulfils the double purpose of naming a party and of authenticating the writing, and though the name of the agent will serve as a substitute for the name of the principal if the writing is in such a form as to amount to a personal promise of the agent, yet if the agent by the writing purports clearly to contract on behalf of another who is not named, the memorandum is insufficient.79 One person may act as agent for both parties, so far "These questions were confused in the case of Wilkinson v. Heavenrich, 58 Mich. 574, 26 N. W. 139, 55 Am. Rep. 708, and the court there also raised an additional difficulty in regard to consideration, suggesting that as the contract could not be enforced against the plaintiff, there was no consideration for the defendant's promise. This suggestion is unsound. A voidable or unenforceable promise is 78 See supra, §§ 285, 295, 577. as making the memorandum is concerned, though it will ordinarily be impossible for the agent to represent both parties in entering into the transaction of which the memorandum is the record.80 It is, however, well settled that one party to the transaction cannot be the agent for the other to sign a memorandum.81 If one person is specifically appointed to sign a memorandum as agent, the authority cannot be delegated,82 but a signature made in the presence and under the immediate diection of the authorized agent might perhaps be distinguished on the ground that in such a case the agent was merely making use of the hand of the subordinate for the purpose of carrying out his own authority.83 § 588. Auction sales. In part at least, from the necessity of the case rather than from evidence of actual authority, it has from early times been continuously held that the auctioneer at an auction sale is not only the agent of the seller, but is also the agent of the buyer for the purpose of making and signing a memorandum.84 The 80 The decisions in regard to auctioneers and brokers referred to in the following sections sufficiently indicate the possibility of one person being agent for both in making a memorandum. As to the limitations of the power of one person to be agent for two parties to the same transaction in general, see Mechem, Agency (2d ed.), §§ 1206, 1590. 81 Wright v. Dannah, 2 Campb. 203; Farebrother v. Simmons, 5 B. & Ald. 333; Sharman v. Brandt, L. R. 6 Q. B. 720; Hopp Bros. Co. v. Hunter Mfg. &c. Co., 145 Ga. 836, 90 S. E. 61; Bent v. Cobb, 9 Gray, 397, 69 Am. Dec. 295; Boardman v. Spooner, 13 Allen, 353, 90 Am. Dec. 196; Tull v. David, 45 Mo. 444, 100 Am. Dec. 385; Dunham v. Hartman, 153 Mo. 625, 55 S. W. 233, 77 Am. St. Rep. 741; Johnson v. Buck, 35 N. J. L. 338, 10 Am. Rep. 243; Wilson v. Lewiston Mill Co., 150 N. Y. 314, 44 N. E. 959, 55 Am. St. Rep. 680; Adams v. Scales, 1 Baxt. 337, 25 Am. Rep. 772; Strong v. Dodds, 47 Vt. 348. Compare Bird v. Boulter, 4 B. & Ad. 443; Murphy v. Boese, L. R. 10 Ex. 126; Snyder v. Wolford, 33 Minn. 175, 22 N. W. 254, 53 Am. Rep. 22; Brent v. Green, 6 Leigh, 16. 82 Henderson v. Barnewall, 1 Y. & J. 387. 83 See Williams v. Woods, 16 Md. 220. 84 Simon v. Metivier, 1 W. Bl. 599; Emmerson v. Heelis, 2 Taunt. 38; White v. Proctor, 4 Taunt. 209; Bird v. Boulter, 4 B. & Ad. 443; Mews v. Carr, 1 H. & N. 484; Sims v. Landray, 63 L. J. Ch. 535; White v. Farley, 81 Ala. 563, 8 So. 215; Craig v. Godfroy, 1 Cal. 415, 54 Am. Dec. 299; Ansley v. Green, 82 Ga. 181, 7 S. E. 921; Doty v. Wilder, 15 Ill. 407, 60 Am. Dec. 756; Jones v. Kokomo Assoc., 77 Ind. 340; Thomas v. Kerr, 3 Bush, 619, 96 Am. Dec. 262; McBrayer v. Cohen, 92 Ky. 479, 18 S. W. 123; Garth v. Davis, 120 Ky. 106, 85 S. W. 692; O'Donnell v. signature by the auctioneer must, however, be made immediately or it will not be binding, so temporary is his authority,85 and between the fall of the hammer and the writing of the memorandum, the bidder has a locus penitentia and may withdraw his bid,86 or the owner of the property may revoke the auctioneer's authority.87 If the auctioneer is himself interested as a seller, he cannot by his signature bind the buyer,88 even though the buyer was aware of the auctioneer's personal interest and expressly assented to his signing the memorandum. The difficulty is insuperable of one party to a transaction signing a memorandum as agent for the other.89 The authority of the auctioneer to sign a memorandum extends to his clerk,90 and the clerk is not subject to the limitation upon the auctioneer, for if the auctioneer's goods are sold to a third person, the clerk can bind both the auctioneer and the buyer by his signature to the memorandum.91 589. Brokers' notes. There have been numerous English decisions in regard to contracts made by brokers upon the question of memoranda under the Statute of Frauds. The English practice is for a Leeman, 43 Me. 158, 160, 69 Am. Dec. 54; Ijams v. Hoffman, 1 Md. 423; Bent v. Cobb, 9 Gray, 397, 69 Am. Dec. 295; Springer v. Kleinsorge, 83 Mo. 152; Johnson v. Buck, 35 N. J. L. 338, 10 Am. Rep. 243; McComb v. Wright, 4 Johns. Ch. 659; Mentz v. Newwitter, 122 N. Y. 491, 494, 25 N. E. 1044, 11 L. R. A. 97, 19 Am. St. Rep. 514; Pugh v. Chesseldine, 11 Ohio, 109, 37 Am. Dec. 414; Meadows v. Meadows, 3 McCord, 458, 15 Am. Dec. 645; Wright v. Harrison, 137 Tenn. 157, 192 S. W. 716; Harvey v. Stevens, 43 Vt. 653; Walker v. Herring, 21 Gratt. 678, 8 Am. Rep. 616; Atkinson v. Washington & Jefferson College, 54 W. Va. 32, 39, and cases cited. But see Dunham v. Hartman, 153 Mo. 625, 55 S. W. 233, 77 Am. St. Rep. 741; Adams v. Scales, 1 Baxt. 337, 25 Am. Rep. 772. 85 Smith v. Arnold, 5 Mason, 414, 419; Craig v. Godfroy, 1 Cal. 415, 54 Am. Dec. 299; Horton v. McCarty, 53 Me. 394, 398; Gill v. Bicknell, 2 Cush. 355, 358; Jelks v. Barrett, 52 Miss. 315; Schmidt v. Quinzel, 55 N. J. Eq. 792; Hicks v. Whitmore, 12 Wend. 548; Wright v. Harrison, 137 Tenn. 157, 192 S. W. 716. 86 Pike v. Balch, 38 Me. 302, 311, 61 Am. Dec. 248; Dunham v. Hartman, 153 Mo. 625, 55 S. W. 233, 77 Am. St. Rep. 741; Gwathney v. Casen, 74 N. C. 5, 21 Am. Rep. 484. 87 Byrne v. Fremont Realty Co., 120 N. Y. App. Div. 692, 105 N. Y. S. 838. 88 Bent v. Cobb, 9 Gray, 397, 69 Am. Dec. 295; Tull v. David, 45 Mo. 444, 100 Am. Dec. 385; Johnson v. Buck, 35 N. J. L. 338, 10 Am. Rep. 243. 89 See supra, § 587, n. 81. 90 See cases cited, supra, note. 91 Johnson v. Buck, 35 N. J. L. 338, 10 Am. Rep. 243. broker employed to make a purchase or sale, to enter the bargain when made in a private memorandum book, and immediately to send to the respective principals in the transaction a bought note and a sold note. In this country there are few decisions in regard to the matter and probably it is more common here than in England for brokers to contract as principals. Moreover, in bargains made on Exchanges the rules of the Exchange often require arbitration and forbid setting up the Statute of Frauds. The various forms in which the brokers' notes may be made have been thus summarized: "The first is where on the face of the notes the broker professes to act for both the parties whose names are disclosed in the note. The sold note then in substance says: 'Sold for A. B. to C. D.,' and sets out the terms of the bargain; the bought note begins: 'Bought for C. D. of A. B.' or equivalent language, and sets out the same terms as the sold note, and both are signed by the broker. 92 "The second form is where the broker does not disclose in the bought note the name of the seller, nor in the sold note the name of the buyer, but still shows that he is acting as broker, not principal. The form then is simply: 'Bought for C. D.;' and 'Sold for A. B.' "The third form is where the broker, on the face of the note, appears to be the principal, though he is really only an agent. Instead of giving to the buyer a note: 'Bought for you by me,' he gives it in this form: 'Sold to you by me.' By so doing he assumes the obligation of a principal, and cannot escape responsibility by parol proof, that he was only acting as broker for another, although the party to whom he gives such a note is at liberty to show that there was an unnamed principal, and to make this principal responsible. "The fourth form is where the broker professes to sign as a broker, but is really a principal, in which case his signature does not bind the other party, and he cannot sue on the contract." 93 The English law formerly required that a broker in the city of 92 See Kinney v. Horwitz (Conn.), 105 Atl. 438; Brooke v. Cunningham, 19 Ga. App. 21, 90 S. E. 1037. See Roach v. Lane, 226 Mass. 598, 116 N. E. 470; Pope Metals Co. v. Sadek, 149 Wis. 394, 135 N. W. 851. 93 Benjamin, Sale (5th Eng. ed.), 285, 286. |