We shall hereafter have occasion to notice more particularly the requisites in point of form, (as to the statement of the consideraation, and as to signature,) of a memorandum required to be in writing under the statute of frauds; but some few observations upon the subject may here be made with propriety.

The statute does not require a formal agreement drawn up with technical precision; any memorandum under the hand of the party, expressing that he had entered into the agreement, and shewing the terms thereof, is sufficient, although it be merely a recognition, or adoption, of a prior parol contract. Thus, an indorsement or memorandum, by the defendant, on the back of the draft of a lease, acknowledging that he had agreed to take the premises mentioned in the draft, on the terms thereof (m); or a letter in answer, and referring, to a letter of the plaintiff, which stated the terms of the contract, and by which answer the defendant recognises the bargain, though he excuses the performance (n); is a sufficient compliance with the act. But the defendant's signature in a book, entitled "Shakspeare subscribers, their signatures," not referring to a printed prospectus, which contained the terms of the contract, and which was delivered at the time to the subscribers of the Boydell Shakspeare, will not take the case out of the statute; because the connection between the book containing the signature, and the prospectus, can be established only by parol evidence (o). And a mere offer to guarantee &c., requiring an answer, is not binding, unless accepted in writing (p). The whole of the bargain must appear from the memorandum.

The statute, it will be observed, requires "the signature of the party to be charged;" and that may be effected either by himself, or his authorised agent.

It has been determined, that if a party draw up an agreement in his own hand-writing, beginning "I, A.B., agree, &c.," this is a sufficient signature; although he do not subscribe his name at the bottom, and although a blank be left for that purpose (q). But it was decided in Hubert v. Moreau (r), that if

(m) Shippey v. Derrison, 5 Esp. R.

190.

(n) See post, Index, Sale of Goods, Guarantee, Frauds, Statute of, &c.

(0) Boydell v. Drummond, 11 East, 142; Sandilands v. Marsh, 2 B. &

Ald. 680.

(p) Gaunt v. Hill, 1 Stark. 10.
(q) See post.

(r) 2 C. & P. 528; 12 Moor, 216, S. C.

a statute, (as in the case of the 6 Geo. 4, c. 16, s. 131, relative to a bankrupt's promise to pay his former debt,) require that the engagement be in writing, and signed by the party, a letter in the hand-writing of such party, containing a promise, but bearing no signature, is not sufficient. If a person be in the habit of printing his name, such printing the name by way of signature, is tantamount to his writing it; especially if the printing be recognised, by his adding to the memorandum the name of the other party to the contract (s).

A memorandum in writing, within the statute, cannot be signed by one of the contracting parties, as the authorised agent of the other; the agent must be a third person (t). And a memorandum, written by a clerk of the plaintiff, in the absence of the defendant, that the defendant had called to say, that he would be responsible to the plaintiff for goods supplied to a third person, is not a sufficient signature by the defendant or his agent, within the statute (u).

The first and third sections of the statute require that the agent signing agreements of the nature therein mentioned, shall be authorised by writing so to do. But the fourth and seventeenth sections do not render it necessary that the agent should obtain his authority by any written instrument; and, under those sections, the agent may derive his authority from his principal by parol (x).

In the case of annuities (y); and the sale or transfer of ships (≈); certain forms have been rendered essential by legislative enactment. By statute, the sale or assignment of a copyright, must be in writing (a). And of late years, the legislature has acted upon this principle, by providing that the promise of a bankrupt, to pay a debt barred by his certificate; of a debtor, to pay a debt

(s) Saunderson v. Jackson, 2 B. & P. 238; Schneider v. Norris, 2 M. & Sel. 286.

(t) See Farebrother v. Simmons, 5 B. & Ald. 333; Bird v. Boulter, 4 B. & Ad. 443. As to a signature by an auctioneer or his clerk, for defendant, see Id., and post, Index, tit. Auctioneer. (u) Dixon v. Broomfield, 2 Chit. R.

205.

(x) Rucker v. Commeyer, 1 Esp. 106; Wright v. Dannah, 2 Camp. 203; Clinall v. Cooke 1 Sch. & Lef.

22; see Harrison v. Jackson, 7 T. R. 207; Hemming v. Perry, 2 M. & P. 375, 381. See post, Index, Principal and Agent.

(y) 53 Geo. 3, c. 141; see Chitty Stat. tit. Annuities.

(z) 6 Geo. 4, c. 110; 7 Geo. 4, c. 48. See Abbott on Shipping, 5th ed. 26.

(a) 8 Ann. c. 9; 41 Geo. 3, c. 107; 54 Geo. 3, c. 156, s. 4; see Chitty's Coll. of Stat. tit. Copyright; Power v. Walker, 3 M. & Sel. 7; 4 Camp. 8, S. C.

barred by the statute of limitations; and of an adult, to pay a debt contracted during his non-age, and which he was not bound to discharge, shall be void; unless they be in writing, and signed by the party (b).

By the custom or practice of merchants, bills of exchange and promissory notes, and other similar negotiable instruments, must be reduced into writing, and signed by the parties thereto (c). It seems that even where writing is necessary, it may be made in pencil, and that ink is not essential (d).

But in order to constitute a valid parol or written agreement, the parties must express themselves in such terms that it can be ascertained, to a moral or reasonable degree of certainty, what they mean (e). And if an agreement be so vague and indefinite, that it does not create or constitute a mutuality of obligation, and it is not possible to collect the full intention of the parties, it is void; for neither the court nor jury can make an agreement for the parties. An agreement to become a partner with another person, would seem to be void for uncertainty, if the terms of the partnership be not fixed between the parties (ƒ). But if a firm be already formed on settled terms, an agreement between one of the partners and a third person, that the latter should become and be received as a member, is not open to the objection of uncertainty (g).

Whether the agreement be in writing, or by parol, or be under seal, it is a clear rule that no particular or technical form of words need be adopted, or are required by law, to give it force (h). If

(b) Ante, 4, note (o).

(c) Lutw. 878; Thomas v. Bishop, Rep. T. Hardw. 2; Geary v. Physic, 5 B. & C. 237, per Abbott, C. J.; Chitty B., 7th ed. 41, 8th ed. 11, 146. As to promissory notes, see 3 & 4 Ann. ch. 9; Chitty, jun. Bills, 103; 7 Ann. c. 25, s. 3.

(d) Geary v. Physic, 5 B. & C. 234; 7 D. & R. 653, S. C.; Jeffery v. Walton, 1 Stark. R. 267.

(e) See ante, 14, and note (b), and instances there; and post, 64; Cross v. Elgin, 2 B. & Ad. 106: Guthing v. Lynn, Id. 232; per Lord Tenterden, Coles v. Hulme, 8 B. & C. 573; 3 M. & R. 86, S. C.

(f) Figes v. Cutler, 3 Stark. R. 139. (g) M'Neill v. Reid, 2 Moor & S.

89; 9 Bing. 68, S. C.

(h) See Com. Dig., Obligation (B), 1, 2; Bac. Ab., Obligation (B); Chitty Bills, 8th ed. 149; Platt on Cov. 27 to 38; per Willes, C. J., Parkhurst v. Smith, Willes' R. 332; per Dallas, C. J., Andrews v. Ellison, 6 Moor, 206. An action will lie on words of agreement, although the parties may disclaim an intention to covenant; as where" they resolved and agreed, and did, by way of declaration, and not of covenant, spontaneously and freely agree, &c." Ellison v. Bignold, 2 J. & W. 510. See post, as to agreements amounting to a present demise, or only to a stipulation to demise in futuro, Index, Landlord and Tenant.

the intention of the parties can be sufficiently collected, it is unimportant what their language may be, or that they may have expressed themselves in ungrammatical terms. And we shall presently have occasion to observe, that even a recital, or words introduced by way of exception or proviso, &c., in an instrument, may sometimes constitute a binding contract (i). But the instrument must import words of final agreement; and therefore, where the defendant signed a paper, stating "I agree that my daughter shall perform, &c., this season, and I consent that she shall enter into articles for three following seasons," Lord Tenterden is reported to have been clearly of opinion that the latter part of the instrument was a mere consent or licence, and not a contract upon which an action would lie (k).

OF THE CONSTRUCTION OF CONTRACTS.-Having thus considered the nature, requisites, and form, of a contract not under seal, it will be proper to notice the rules and principles which govern the construction of an agreement.

We may premise that the rules of construction are, in general, the same at law and in equity (7). Nor are they varied by the circumstance of the contract being under seal (m). Whether the instrument be submitted to the judgment of a common law court, or a court of equity; and whether it be under seal or not, there can be no substantial reason for any difference in the rules, by which the intention of the parties is to be ascertained from the terms they have used.

The maxims for the exposition of contracts are simple and consistent, and well calculated to effect their sole object; namely, to do justice between the parties by enforcing a performance of their agreement, according to the sense in which they mutually understood it at the time it was made.

The observations of Dr. Paley, in his work on Moral Philosophy, are well worthy of our attention. He says, "Where the terms of promise admit of more senses than one, the promise is to be performed in that sense in which the promiser apprehended at the time that the promisee received it.” "It is not the sense in

(i) Post.

(h) Morris v.Paton, 1 C. & P. 189. (2) 1 Fonbl. Tr. Eq. 5th ed. 147, note (b); 14 Vin. Ab. tit. Intent; 3 Bla. Com. 434; Fearn, Cont. Rem. 4th ed. 220; Exton v. Lyon, 3 Ves.

692, per Master of the Rolls; Doe v. Laming, 2 Burr. 1108, per Lord Mansfield.

(m) Seddon v. Senate, 13 East, 74, per Lord Ellenborough; Hewet v. Painter, Bulstr. 174,5.

which the promiser actually intended it, that always governs the interpretation of an equivocal promise, because, at that rate, you might excite expectations which you never meant nor would be obliged to satisfy. Much less is it the sense in which the promisee actually received the promise; for, according to that rule, you might be drawn into engagements which you never designed to undertake. It must, therefore, be the sense (for there is no other remaining), in which the promiser believed that the promisee accepted the promise. This will not differ from the actual intention of the promiser, where the promise is given without collusion or reserve; but we put the rule in the above form to exclude evasion in cases in which the popular meaning of a phrase, and the strict grammatical signification of the words, differ; or, in general, wherever the promiser attempts to make his escape through some ambiguity in the expressions which he used. Temures promised the garrison of Sebastia, that if they would surrender, no blood should be shed. The garrison surrendered, and Temures buried them all alive. Now Temures fulfilled the promise in one sense; and, in the sense, too, in which he intended it at the time; but not in the sense in which the garrison of Sebastia actually received it, nor in the sense in which Temures himself knew that the garrison received it; which last sense, according to our rule, was the sense in which he was, in conscience, bound to have performed it." This rule appears to be as true in law as in ethics; subject, perhaps, to this general principle of the law of evidence, that parol testimony cannot be received to contradict the evident sense of a written agreement, however manifest it may be, independently of the written instrument, that the promiser meant to make a different bargain.

THE CONSTRUCTION SHALL BE REASONABLE.-It shall also be as near the minds and apparent intents of the parties as the rules of law will admit (n). And it is essential to consider the subject-matter of the agreement, in affixing a meaning to the terms used therein (o).

(n) 2 Bla. Com. 379. Verba intentioni debent inservire; Parkhurst v. Smith, Willes, 332.

(0) Doe v. Burt, 1 T. R. 703, per Ashurst, J.; Saward v. Anstey, 2 Bing. 522, per Best, C.J.; 10 Moor, 55, S. C.; Robertson v. French, 4 East, 135, per Lord Ellenborough. Therefore if an

executor promise to pay a simple contract debt" when assets are received," it seems that he is to be understood to mean when assets legally applicable to the debt are received, and may first pay a bond debt. See Bowerbank v. Monteiro, 4 Taunt. 844; Stone v. Metcalf, 1 Stark. R. 53.