Merritt v. Clason , 12 Johns. 102 ( 1815 )

Platt, J.

delivered the opinion of the . court. The only point is, whether the memorandum, made by John Townsend, was a sufficient memorandum of the contract, within the' statute of frauds, to bind the defendant.

It is objected by the defendant’s counsel,

1. That the memorandum is not “ in writing?' being made with a lead pencil only. "

2. That it is not, “ signed?’ by the defendant, nor by his agent. ; jy ■ ' ; . •

3. That it is not binding; on the* defendant, ¡because his agent did not furnish him with a copy of it. •; - '

I have - no doubt that, the memorciivdwn required ■ by the sta* jfcnte* may as well- tie" written with' a lead.pencil- as with a pen and ink 5, and -it is ' observable: that in most, of . the reported, eases, fan,this head,'the níémóréndaM,ev.0. .written with a léad pencil* and no counsel, until now, has ever raised that objection, t

I think it clear,, also,-..from- the authorities*-that this- memorandnm was signed according tc/ tlie statute. , . ■ . , ■

It is not disputed, that the authorization of the agent, for such purpose, need not be in writing. In the body of this-memorandum the- name of Isaac Clason, the defendant, is written by his agent* whom he had expressly authorized to make this contract. The memorandum,, therefore*, is equally binding bn the defendant as if he had written it withffiis own hand 1 and if he had used his own hand, instead of the hand of his agent, the law is well settled that it is immaterial, in such a case, whether the name is written at the top, or in the body, or at the • bottom of the memorandum. It is equally a signing within the statute. (Saunderson v. Jackson and another, 2 Bos. & Pull. 237. 1 Esp. 199. 1 P. Wms. 770. note 1.)

. The third objection is absurd. If the defendants agent neglected his duty, in not furnishing his employer with a copy of •this memorandum, it certainly cannot affect the rights of the plaintiffs, under that agreement.

The memorandum states with reasonable certainty every essential part of the agreement. The court áre of opinion that the plaintiffs are entitled to judgment.

Judgment for the plaintiff.