| Ark. | Nov 6, 1911
(after stating the facts.) 1. Section 3656 of Kirby’s Digest provides: “No contract for the sale of goods, wares and merchandise for the price 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.”
Under the above section, in order to bind appellee to the alleged contract, it must appear that same was signed 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, 72 Ark. 359" date_filed="1904-04-09" court="Ark." case_name="Vance v. Newman">72 Ark. 359; Century Dig., p. 2286, § 244, where cases are collected; Browne on the Statute of Frauds, § 365.
Does the printed name of appellee in the body, and on the back, of the instrument constitute a signature within the meaning of the above 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 authenticate 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 insertion 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 to 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 agent 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 alleged contract. The letters of appellee to appellant written after the instrument was signed by appellant (introduced 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 consideration and confirmation of appellee at its home office. But, even if it could be assumed that the sales agent had authority 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, 21 Ark. 312, and in Board of Trustees v. Campbell 48 La. Ann. 1546; Davis v. Sanders, 40 S. Car. 510; Watson v. Pipes, 32 Miss. 466; 25 Am. & Eng. Ency. of Law, 1065.
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 of frauds. See Evans v. Ashley, 8 Mo. 181. There must be a writing, stamping or printing of the name by the party to be charged,in person or through a duly authorized agént with the intention of authenticating and finally adopting the writing as his own. There is no proof to that effect in this record. We conclude therefore that the name of appellee printed in the instrument under consideration did not constitute a signing thereof within the meaning of the statute of'frauds.
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 contract 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 appellee 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 the same letter that it could not accept it. In Capital City Brick Co. v. Atlanta Ice & Coal Co., 63 S.E. 562" date_filed="1909-01-27" court="Ga. Ct. App." case_name="Capital City Brick Co. v. Atlanta Ice & Coal Co.">63 S. E. Rep. 562, it is held that a letter is sufficient to take the agreement out of the statute if it acknowledge the existence of the contract, even though the same letter attempts to repudiate the contract. But the letter of April 16 can not be considered as anything more than information to appellant that appellee had received his order but could not accept and fill same. The subsequent letters but emphasize the fact that appellee did not recognize the order as a contract on its part, and that according to the custom of the trade it would not become a contract until confirmed or adopted by it, which it had not done and would not do. We are of the opinion that the above is the only reasonable conclusion to be drawn from the letters of appellee, which we have carefully examined. No useful purpose could be attained by setting them out in detail.
The letters “Show that the agent of appellee was but a traveling salesman or drummer, and that he had no authority, beyond that of the ordinary drummer, to solicit orders for the sale of goods to be sent to his principal for the latter’s acceptance or rejection.
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, 58 Miss. 478" date_filed="1880-10-15" court="Miss." case_name="Ex parte Taylor">58 Miss. 478. .“In the absence of special authority to bind his principal, a drummer can merely solicit and transmit the order and the contract of sales does not become complete until the order is accepted by his principal. 6 Am. & Eng. Ency. Law (2 ed.) 227 and note.
If any special authority existed beyond that of soliciting orders, the burden was on appellant to show it. Holland v. Van Beil, 89 Ga. 223" date_filed="1892-04-27" court="Ga." case_name="Holland v. Van Beil">89 Ga. 223; Kornemann v. Monaghan, 24 Mich. 36" date_filed="1871-10-31" court="Mich." case_name="Kornemann v. Monaghan">24 Mich. 36; 6 A. & E. Ency. Law, § 224.
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.)