(аfter stating the facts.) 1. Section 3656 of Kirby’s Digest provides: “No contract for the sale of goods, wares and merchandise for the рrice of $30 or upward shall be binding on the parties unless, first, there be some note or memorandum signed by the party to be charged.”
Undеr the above section, in order to bind appellee to the alleged contract, it must appear that same was signеd by appellee. “The party to be charged” is the one against whom the contract is sought to be enforced. 20 Cyc. 272 and note. See also Vance v. Newman,
Does the printed name of appellee in the body, and on the back, of the instrument constitute a signature within the meaning of the abovе statute? Browne on the Statute of Frauds says: “In regard to the place of signature, there is no restriction. It may be at the top or in the body of the memorandum as well as at the foot. * * * But the name, beside being in his handwriting, must always be inserted in such a manner as to authentiсate the instrument as .the act of the party executing it, or, in other words, to show the intention of the party to admit his liability. The mere insеrtion of his name in the body of an instrument, where it is applicable to a particular purpose, will not constitute a signature within the meaning of the statute. And although it be so inserted as to control and direct the entire instrument, still the better opinion seems to be that its insertion must also be intended as a final signature, and that if it appear that the instrument was to be further executed it will not be taken tо have already been sufficiently signed. ” Browne on-the Statute of Frauds, §' 357.
The agent of appellee was furnished with a form of contract containing blanks to be filled and with the name of appellee printed in the body and on the back thereof. The agеnt when he took the order for goods filled in the blanks, but he did not sign the name of appellee to the instrument, and did not write it in the allegеd contract. The letters of appellee to appellant written after the instrument was signed by appellant (introducеd by appellant himself) indicate that appellee’s agent who took the order had no authority to sign appellee’s name to the alleged contract. His authority, according to these letters, was only to solicit orders and submit them for considеration and confirmation of appellee at its home office. But, even if it could be assumed that the sales agent had аuthority to sign appellee’s name, it does not appear that he did so. “A signature consists both of the act of writing the party’s name and of the intention of thereby finally authenticating the instrument.” Greenleaf on Evidence, § 674, quoted in Vines v. Clingfost,
A name merely printed in an instrument where according to its purport the name should be mentioned in the recitals is not a signature within the meaning of the statute оf frauds. See Evans v. Ashley,
2. Whether or not the letters of appellee to appellant after the order of April 8 was taken, and with reference thereto, amounted to a signature authenticating the terms of the memorandum as a contraсt on the part- of appellee within the statute was a proper question for the court. In the first letter of April 16 appellee informed appellant that it was “unable to take care of his contract order” for onion sets. In this letter apрellee plainly told appellant that it could not fill his order. The designation of the instrument as “your contract order” meant no more than that it was a contract on the part of appellant when accepted by appellee, but informing him in thе same letter that it could not accept it. In Capital City Brick Co. v. Atlanta Ice & Coal Co.,
The letters “Show that thе agent of appellee was but a traveling salesman or drummer, and that he had no authority, beyond that of the ordinary drummer, to sоlicit orders for the sale of goods to be sent to his principal for the latter’s acceptance or rejectiоn.
The appellant testified that Cheeseman represented appellee in the Fort Smith territory, but he does not pretend to state the extent of his authority. Appellant does, however, introduce the letters of appellee, which, as we have stated, show that the extent of his authority was that only of a commercial traveler or drummer. As a general rule, a commercial traveler or drummer has no authority except that of soliciting orders for the sale of goods. Ex parte Taylor,
If any special authority existed beyond that of soliciting orders, the burden was on appellant to show it. Holland v. Van Beil,
The judgment is correct, and is affirmed.
Note. — See discussion by James B. McDonough, Esq., as to the sufficiency of a signature to satisfy the statute of frauds, and as to when necessity of signature is waived, in 74 Cent. L. Journal, 339. — (Rep.)