the contract shall be written. It only requires it to be in writing, and signed, &c.; the verdict here finds that the memorandum was written, but it proceeds further and tells us, with what instrument it was written, viz., with a lead pencil. But what have we do with the kind of instrument which the parties employed, when we find all that the statute required, a memorandum of the contract in writing, together with the names of the parties? To write is to express our ideas by letters visible to the eye. The mode or manner of impressing those letters is no part of the substance or definition of writing. A pencil is an instrument with which we write without ink. The ancients understood alphabetic writing as well as we do, but it is certain that the use of paper, pen, and ink was for a long time unknown to them. The common law has gone so far to regulate writings, as to make it necessary that a deed should be written on paper or parchment, and not on wood or stone. This was for the sake of durability and safety; and this is all the regulation that the law has prescribed. The instrument, or the material by which letters were to be impressed on paper or parchment has never yet been defined. This has been left to be governed by public convenience and usage; and as far as questions have arisen on this subject, the courts have, with great latitude and liberality, left the parties to their own discretion. It has accordingly been admitted that printing was writing within the statute, and that stamping was equivalent to siguing, and that making a mark was subscribing within the act. I do not find any case in the courts of common law in which the very point now before us has been decided, viz., whether writing with a lead pencil was sufficient; but there are several cases in which such writings were produced, and no objection taken. The courts have impliedly admitted, that writing with such an instrument, without the use of any liquid, was valid, &c." In Pitts v. Beckett, 13 Mees. & Wels. 743, the question was raised, but not decided, whether a machine copy of a contract made in a broker's book, would be a sufficient writing within the statute of frauds. Parke, B. "It is not necessary to enter into the question whether the machine copy was sufficient, as the note itself was not signed by the defendant's agent. I am strongly inclined to think it is not, but it is not necessary to decide it."||

[The bought and sold note, which is a copy of the entry in the broker's book, is not sent to the parties for their approbation, but to inform them of the terms of the contract, the entry made and signed by the broker being alone the binding contract. Heyman v. Neale, 2 Campb. 337. Gale v. Wills, 1 C. & P. 388, S. P. In the case of Dickenson v. Lilwal, 1 Stark. N. P. C. 128, the question arose whether the bought and sold notes made by a broker were sufficient to satisfy the statute of frauds, although he made no entry of the contract in his book; but although that point was reserved by Lord Ellenborough, yet as the counsel for the plaintiff elected to be nonsuited on another point that arose in the trial, the previous question never came under the consideration of the court. Where a broker, employed both by buyer and seller, negotiates a sale, but by mistake delivers to the several parties sale notes differently describing the goods, no contract

arises. Thornton v. Kempster, 5 Taunt. 786. Cumming v. Roebuck, Holt, N. P. C. 172. Grant v. Fletcher, 5 B. & C. 436. In the last case the entry made by the broker was not signed, and there was a variance between the bought and sold notes delivered. The following is the judgment of Chief Justice Abbott. 66 The broker is the agent of both parties, and as such may bind them by signing the same contract on behalf of buyer and seller. But if he does not sign the same contract for both parties, neither will be bound. It has been decided accordingly, that where the broker delivers a different note of the contract to each of the contracting parties, there is no valid contract. The entry in the broker's book is, properly speaking, the original, and ought to be signed by him. The bought and sold notes delivered to the parties ought to be copies of it. A valid contract may probably be made by perfect notes signed by the broker and delivered to the parties, although the book be not signed; but if the notes are imperfect, as in the present case, an unsigned entry in the book will not supply the defect. It is the duty of brokers to make the contract so as to be binding on both parties. They are employed to prepare contracts on which great sums of money depend; and I must say, that in many cases which have come before me, they appear to conduct their business in a very slovenly, negligent manner." In Goom v. Afflalo, 6 B. & C. 117, it was decided according to the opinion so intimated, that the bought and sold notes duly signed were a sufficient memorandum of the bargain within the statute of frauds, though there was no corresponding entry in the broker's book. See Hawes v. Forster, 1 M. & Rob. 368, cited in Townsend v. Drakeford, 1 Carr. & Kir. 20, where Lord Denman, alluding to the first mentioned case, (Hawes v. Forster, of which there appears to be no report of the decision, in banco,) says; "After much consideration, and after consulting merchants we held, that the bought and sold notes were the contract, and not what is written by the broker in a book which nobody sees. If there is nothing but the book, we must go by that." So if, at the instance of the seller, and without the consent of the purchaser, a material alteration be made in the sale note by the broker, such alteration annuls the instrument so as to preclude the seller from recovering upon the contract evidenced by the instrument so altered. Powell v. Divett, 15 East, 29] And see Horsfall v. Fauntleroy, Lloyd & Welsby, 340. Ante, p. 250. In Gregson v. Ruck, 4 Ad & Ell. 747, Lord Denman delivering the judgment of the court says; "The cases as to contracts made through the intervention of a broker acting for both buyer and seller are not clear: but they establish this point beyond all doubt, namely, that when the bought and sold notes differ in any material respect, there is no contract. Here they differ essentially; and therefore there was no contract of sale at all: there was indeed a delivery; but it was under a mistaken notion as to the existence of a contract which never did exist." And see, Townsend v. Drakeford, 1 Carr. & Kir. 20. A. having a quantity of wool to dispose of, placed a sample of it at a broker's for sale, and B. having examined the sample at the broker's office, purchased from A. in the presence of the broker, part of the wool at an agreed price, it being stipulated by B. that the

clerk, notwithstanding any usage of trade, is not [*317] an agent within the statute without a special authority or assent.(h)

A memorandum, signed by an agent, thus, "Witness A. B., agent for the seller," is sufficient.(i)

SECTION 4.

Evidence of Contracts made by Agents.

After the authority is established, the next thing necessary, in order to recover upon a contract made by an agent, is to establish the contract itself by proof. It follows, from what has been already shown, that as to every thing which forms a part of the contract, the declarations of the agent, at the time of the contract, or upon which it is founded,

wool was to be delivered in good dry condition. On the same day the broker sent to A. a sold note of the contract, which however omitted all mention of the stipulation that the wool was to be in good dry condition, and no note whatever was sent to B. The wool was accordingly sent by the broker to B., who refused to receive it, on the ground that it was not in dry condition according to the contract. An action for goods sold and delivered having been brought to recover the price of the wool, the court sustained a verdict in favor of the defendant. Alderson, B. "If the party is authorized, one note may be enough, but the question is as to the authority. He is not the agent of both parties to make this contract; that is the difficulty which meets you everywhere. Two parties make a contract, and a third party, authorized by one of them reduces into writing a new and different contract." Rolfe, B. "Two parties meet and enter into a contract, and authorize another to draw it up, and he behind the back of one of them draws up a different contract, and never communicates to him that he has done so. Surely that cannot bind him." Pitts v. Beckett, 13 Mees. & Wels. 743, 751.|}

(h) 9 Ves. 251. Ante, 176. But see Bird v. Simmons, 4 Barn. & Ad. 443. Ante, 160, n. (7).||

(i) Coles v. Trecothick, 9 Ves. 237. The memorandum there was, "Witness, E. Phillips, for Mr. Smith, agent for the seller;" but there was evidence of a particular assent by the seller to the agency of E. Phillips, which brings it to the same thing as stated in the text.

are equivalent in effect to those of the principal, and of course may be proved by parol evidence, or by the handwriting of the agent. (a) But declarations which [*318] do not *make any ingredient in the foundation of the contract are not evidence of the facts to which they refer; though those facts may be connected with the transaction. This was exemplified by a case where, in an action for the non-delivery of goods, the question was which party should supply the bags; and a letter of the agent, not cotemporary with the contract, but admitting that his principal was to supply them, was rejected.(b)

If the contract arise upon the payment of money, or the delivery of goods, it is sufficient to show that the money was paid, or the goods delivered to the agent of the party to be charged.(c)

SECTION 5.

Evidence of the Agent against his Principal.

The vendor of goods to a factor for the use of his principal may make the factor a witness. (a)

So in an action for money had and received, to charge a person with the receipt of money, the servant who received it is a good witness without a release. (b) It is, says

Lord Kenyon, the constant course of nisi prius, [*319] arising ex necessitate, to *admit the evidence of

(a) Ante, p. 256, &c. 10 Ves. 123; 5 Esp. Cas. 72, ib. 135; and see also 2 Esp. Cas. 145; 5 Esp. Cas. 145.

(b) Ante, p. 272.

(c) Ante, p. 293.

Maesters v. Abraham, 1 Esp. Cas. 375.

Mathews v. Haydon, 2 Esp. Cas. 509; Jons v. Per

chard, ib. 507. || Erick v. Johnson, 6 Mass. Rep. 196.||

(a) Per Lord Hardwicke. It has been often so settled at Guildhall. Snee v. Prescott, 2 Atk. 248.

(b) Mathews v. Haydon, 2 Esp. Cas. 509.

clerks and porters, who are alone privy to the receipt of money or the delivery of goods.(c)

Where the question is, whether a person to whom money has been paid for the use of another, was an agent duly authorized to receive it, so as to charge the principal in an action brought by him for the money: it has been held that the authority may be proved by the agent himself. In an action of assumpsit it appeared, that the sum of money in dispute had been paid to B., who had been the agent of the

(c) Ib. and see post, 321. || As to the general rule that an agent or servant is ex necessitate, a competent witness for or against his principal, see Cortes v. Billings, 1 Johns. Cas. 270; Mackay v. Rhinelander, Id. 408; Jones v. Hake, 2 Johns. Cas. 60; Abbott v. Sebor, 3 Johns. Cas. 39; Renaudet v. Crocken, 1 Caines' Rep. 167; Burlingham v. Deyer, 2 Johns. Rep. 189; Stewart v. Kip, 5 Johns. Rep. 256; post, 358; Hudson v. Revett, 5 Bing. 368; Allen v. Coit, 6 Hill, 318; Ridgely v. Dobson, 3 Watts & Serg. 118. One who borrows money as the assumed agent of another, drawing a bill upon his presumed principal for the amount, which is protested for non-acceptance, is not a competent witness for the lender, in an action by him against such principal for the money lent; but the principal is liable, if such money come to his use, and he recognize the loan by telling the agent he will pay it, though borrowed in the first instance without his authority. Shiras v. Morris, 8 Cowen, 60; ante, 4.|| Officers, secretaries, &c., of public companies are compelled to answer in equity. 3 P. Wms. 312; 1 Bro. Ch. R. 469; ||2 Story's Eq. Jurisp. § 1501; 3 Myl. & Cr. (Am. ed.) 525, n. 2. "It is the settled law, both in this country and in England, that in a bill against a corporation for relief, its officers and agents, who are cognizant of the facts to which it relates, may be made defendants for the purpose of obtaining an answer on oath, which cannot be obtained in any other way." Walworth, Ch. Many v. The Beekman Iron Co. 9 Paige, 193; Vermilyea v. The Fulton Bank, 1 Paige, 37; The President &c. of the Fulton Bank v. The Sharon Canal Co. Id. 219. Where a corporation is made a party to a suit in which it has no interest, and to which it ought not to have been made a party, an officer of the corporation who has no personal interest in the controversy, and who is not charged with any fraud or misconduct, cannot be compelled to answer matters as to which he is a mere witness. Ellsworth v. Curtis, 10 Paige, 105. And in a controversy between individual members of a joint stock company, an officer of the company cannot be made a defendant. Seddon v. Connell, 10 Sim. 58. An officer of a corporation made a defendant merely for the purpose of discovery, is entitled to costs for putting in his answer. The Fulton Bank v. The New York and Sharon Canal Co., 4 Paige, 127 ||