Lerned v. Johns

91 Mass. 419 | Mass. | 1864

Hoar, J.

The question whether there was a sufficient memorandum in writing of the bargain to answer the requirements of the statute of frauds, is settled by the decision in the preceding case. The objections taken are the same, except that in this case the two parts of the contract are precisely alike; the ambiguous phrase, “ We will send our own vessels ” does not occur; and nothing was added to one part, after the papers were exchanged.

But another point is taken by the defendant: that the signature “ Wannemacher & Maxfield, per J. W. Gregg,” is not a sufficient signature to the memorandum to bind him, although it were proved by paroi that Wannemacher & Max-field were his agents, duly authorized to make the contract oB his behali, and that they actually made it for him through Gregg. There can of course be no controversy that the name of Wannemacher & Maxfield is sufficiently signed; but it is contended that it is not competent to show by paroi that a party whose name is signed as a principal is only the agent of a third person, when there is no intimation in the memorandum that he acted as agent. The doctrine is well settled in England that, when a written contract not under seal is made by or with an agent, the principal, although undisclosed, may sue or be sued upon it, except in the case of commercial paper. Kenworthy v. Schofield, 2 B. & C. 945. It is fully and strongly stated in Higgins v. Senior, 8 M. & W. 834, and is affirmed in many other cases cited by Mr. Justice Dewey in Eastern Railroad v. Benedict, 5 Gray, 561; and it is adopted by the most approved writers on the law of agency. To what extent it is the law of this commonwealth it was not necessary fully to determine in the case last cited ; though it is there said to be well settled that the rule applies to cases of sales by written bills, or other memoranda made by the agent, using his own name, and disclosing no principal.

There are certainly dicta to the contrary in Stackpole v. Arnold, 11 Mass. 27. And in Shaw v. Finney, 13 Met. 453, where the question was on the sufficiency of the signature to a memorandum to bind the defendant under the statute of frauds, and the sale was stated in the memorandum as made by one Hathaway, who was proved to have been the plaintiff’s agent, Mr. Justice Wilde observed that “ if the defendant had himself signed the first memorandum, he would not have been liable in this action by the plaintiffs; for the contract was in terms a contract with Hathaway.”

But in most of our own recent cases the English rule has been fully sustained ; and we find no adjudged case to the contrary. In Huntington v. Knox, 7 Cush. 371, the case of Higgins v. Senior is cited with entire approbation by Chief Justice Shaw; and the doctrine held to be equally applicable to agreements which are, or are not, required to be in writing by the statute of frauds. And in Williams v. Bacon, 2 Gray, 387, the precise question now under consideration seems to liave been decided, and the case is a direct authority in point. See also the statement of Mr. Justice Metcalf, in Fuller v. Hooper, 3 Gray, 341; and Dykers v. Townsend, 24 N. Y. 57.

Exceptions sustained.