Guthrie v. Anderson

Per Curiam: It was stated in the original opinion handed down “that where an action is brought upon a writing or memorandum for or concerning the sale of land, if the party sought to be charged in the action .signed the same by himself or agent, he is liable thereon, and he cannot successfully plead as a defense that the plaintiff has not signed.” (47 Kas. 386.) Under the statute of frauds, the only signature required is that, of the party against whom the contract is to be enforced. The contract is good or not at the election of the party who has not signed. In this case, it is conceded that Nicholas Anderson and Sophia, his wife, signed the written memorandum. By the effect of the decisions, the contract could have been enforced against them at the election of W. W. Guthrie, the party who did not sign. The contention upon the motion for a rehearing is, that Guthrie signed, because his name appears in the body of the memorandum. We see no good reason to change the views heretofore expressed by this court. The authorities are not uniform as to how far the writing by the party of his name-must be with the intention of signing. There is some conflict of authority on the question. If the memorandum-signed by Anderson and wife had recited that “I, W. W. Guthrie, agree with N. Anderson, or N. Anderson and wife,” etc., under some of the authorities the name or signature thus inserted would be considered a signing within the statute. (1 Benj. Sales, § 262.) It is not necessary that the signature of a party to a memorandum, under the statute requiring á signing, should be at the bottom or end of the memorandum, but it may be at the top, in the middle, or inserted in any other part of the paper. But in all cases the name of the [420] party to be charged must be affixed in such a manner as to authenticate the instrument. The signature may be by mark, initials, pencil, type-writing, print, or stamp, if the party to be charged intended by the mark, initials, pencil, print or stamp to affix the same as his signature, with the purpose to ■complete or authenticate the contract as his own contract, and to indicate his intention to' be bound thereby. In this case, the memorandum signed by Anderson and wife recited, “ the undersigned, husband and wife, owners,” etc., “ . . . sell the same to W. W. Guthrie, . . . and ... to execute and deliver deed ... to W. W. Guthrie.” It was nowhere recited in the memorandum that “W, W. Guthrie has agreed” or “proposes,” etc. In fact, there is no agreement anywhere in the memorandum on the part of W. W. Guthrie to do anything. In support of the motion for a rehearing, the mo3t important cases referred to are Wise v. Ray, 3 G. Greene (Iowa), 430; Penniman v. Hartshorn, 13 Mass. 87; and Clason v. Bailey, 14 Johns. Ch. 486. In the Wise-Ray case, the written contract was signed by James Wise. In that case, Ray brought his action against Wise, who had signed the contract. He properly recovered his damages for a breach thereof. In the Penniman-Hartshorn case, Silas Penniman wrote the body of the contract or memorandum and signed the same at the bottom thereof. Hartshorn, in his own handwriting, on the top of the contract or memorandum, signed “Harts-horn & Arnold, of Providence.” The writing of Hartshorn, under the circumstances, was a signing, and evidently was intended to be the signatures of Hartshorn and Arnold, the parties charged. In the Clason-Bailey case, Clason, through his agent, Townsend, purchased of Bailey & Voorhees 3,000 bushels of rye at a dollar a bushel, payable on delivery. Thereupon a written memorandum was made by Townsend, the authorized agent of Clason, which, after giving date, read: “Bought for Isaac Clason, of Bailey & Voorhees, 3,000 bushels of [421] good merchantable rye,” etc. Subsequently, Clason refused to receive and pay for the rye, and Bailey & Voorhees brought their action against him to recover damages. The court, in its opinion, said: “ It is admitted that Clason signed this contract by the insertion of his name by his authorized agent.” Of course, under such an admission, Clason, the party charged, was liable upon the memorandum. Other cases are referred to, which are claimed to be contrary to the opinion handed down; but, after a critical examination of them, we do not think that any are exactly similar to the case decided. The memorandum in this case seems to have been expressly written so as not to need the signature of Guthrie, and so that he could not be charged thereon. The motion for a rehearing will be overruled.