Contracts/Formal requisites

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Contracts Treatise
Table of Contents
Contracts Outline
Introduction and Definitions
Introduction
Definitions
Elements
Contract formation
Parties
Offer
Acceptance
Intention to Bind
Formal requisites
Mailbox rule
Mirror image rule
Invitation to deal
Firm offer
Consideration
Consent
Implication-in-fact
Collateral contract
Modification
Merger
Uniform Commercial Code
Uniform Commercial Code
Course of dealing
Course of performance
UCC-1 financing statement
Uniform Commercial Code adoption
Defenses against formation
Lack of capacity
Duress
Undue influence
Illusory promise
Statute of frauds
Uncertainty
Non est factum
Contract interpretation
Governing law
Construction and Operation
Parol evidence rule
Contract of adhesion
Integration clause
Contra proferentem
Excuses for non-performance
Mistake
Misrepresentation
Frustration of purpose
Impossibility
Impracticability
Illegality
Unclean hands
Unconscionability
Accord and satisfaction
Rights of third parties
Privity of contract
Assignment
Delegation
Novation
Third-party beneficiary
Performance or Breach
Necessity of performance
Sufficiency of performance
Anticipatory repudiation
Cover
Exclusion clause
Efficient breach
Deviation
Fundamental breach
Termination
Termination
Rescission
Termination and rescission
Abrogation and rescission
Subsequent contract
Termination
Forfeiture
Remedies
Specific performance
Liquidated damages
Punitive damages
Quasi-contractual obligations
Estoppel
Quantum meruit
Actions
Actions in General
Parties to Action
Pleading
Evidence
Questions of Law and Fact
Instructions
Trial and Judgment

Seal[edit | edit source]

A contract under seal is a contract to which the seal of the party or parties executing it is affixed, and which derives its validity from its form alone, and not from the fact of agreement[1] to or from consideration[2] A contract under seal is necessary at common law where the promise is without consideration, and in many jurisdictions conveyances of land and certain other contracts are required by statute to be under seal. Contracts under seal are treated under other titles. Contracts under seal are also known as specialties.[3]

Writing[edit | edit source]

Necessity for[edit | edit source]

The only formal contract in common law was the contract under seal, all others being parol contracts, depending for their validity on consideration, whether they are by word of mouth or in writing.[4] The only contracts which, in the absence of a statute, are required to be in writing, outside of those requiring a seal, are bills of exchange and promissory notes; other contracts may be verbal.[5] The parties instead of reducing an agreement to writing may adopt the terms of an existing written contract.[6] It is within the power of the legislature to require contracts to be in writing,[7] and the parties cannot agree that contracts which the law requires to be in writing shall be valid although in parol.[8] Where statutory power is given to certain persons to make contracts, this does not require that the contract shall necessarily be in writing to bind them.[9]

Where Writing Essential Outside of Statutes[edit | edit source]

An agreement may be good by word of mouth, and yet if it is the intention of the parties that it shall not be binding until put in writing, there can be no enforceable agreement until that is done, for even a written memorandum of a contract to be subsequently drawn up and signed is not an enforceable agreement.[10] And the parties may contract between themselves that no agreement in regard to future transactions between them shall be binding on them unless the agreement is made in writing.[11] It must also be remembered that there is a general rule of evidence, of far-reaching importance, that evidence of an oral agreement is not admissible to contradict or to add to the terms of a written contract.

Form of Language[edit | edit source]

To make an enforceable agreement in writing no particular form of words is essential.[12] The intention of the parties is alone looked to, and the use of inapt words or bad English will not affect the validity of the agreement,[13] although it may affect its construction.[14] And even a writing in the form of a receipt may contain words showing a contract.[15] Yet every writing, although signed by one or both of the parties, is not to be construed as an agreement,[16] as, for example, a mere schedule of prices for work and materials.[17] A contract to repay money may be implied from an acknowledgment that it is due and owing.[18]

Agreement in Several Writings[edit | edit source]

An agreement may be collected from several different writings which, when connected, show the parties, subject matter, terms, and consideration,[19] as in the case of contracts entered into by correspondence;[20] but the rule that, where a written contract is in several parts and all are executed at the same time it is but one contract, cannot be applied to separate and distinct papers executed and signed by different parties and imposing different obligations on the parties executing them.[21] And where a person sends to another two written instruments purporting to be counterparts of a proposed contract, but which differ materially, and asks him to accept and return the duplicate, and he signs but one of the instruments and returns it, this is the contract between them.[22] A written agreement of which there are two copies, one signed by each of the parties, is binding on both to the same extent as if there had been only one copy of the agreement and both had signed it,[23] but there is no agreement where the two copies differ in a material point.[24] Where a contract is to be executed in duplicate, it becomes effective as soon as one of the copies is executed by both parties.[25] Duplicate contracts are treated as originals, although the parties may have chosen to call one "original copy" and the other "duplicate copy."[26]

Agreement Partly Written and Partly Oral[edit | edit source]

An agreement may be partly in writing and partly by word of mouth;[27] such an agreement is to be treated as an oral contract.[28] Further, a contract may be in writing as to one party and oral as to the other, as where a person makes his offer in writing and the other party accepts orally or vice versa;[29] such a contract is to be regarded as a written contract;[30] and the same is true where an instrument which purports to set forth the mutual obligations of a contract is signed by but one party and is accepted and acted on by the other.[31] But this principle is not applicable to the draft of a proposed contract not signed by either of the parties.[32]

Signing[edit | edit source]

Necessity for[edit | edit source]

Signature is not always essential to the binding force of an agreement.[33] The object of a signature is to show mutuality[34] or assent,[35] but these facts may be shown in other ways;[36] and unless a contract is required by statute or arbitrary rule to be in writing, it need not be signed, provided it is accepted and acted on.[37] However, where the contract contemplates that it shall not be effective until executed by signing, either party may insist on the condition.[38] It is held in numerous cases that, where an instrument has been executed by only a portion of the parties between whom it purports to be made, it is not binding on those who have executed it.[39] The cases so holding are usually those in which the parties executing the instrument would have a remedy by way of indemnity or contribution against the other parties named, which remedy is lost by the failure of such other parties to execute the instrument.[40] The reason for holding the instrument void is that it was intended that all the parties should execute it and that each executes it on the implied condition that it is to be executed by the others, and, therefore, that until executed by all, it is inchoate and incomplete and never takes effect as a valid contract,[41] and this is especially true where the agreement expressly provides, or its manifest intent is, that it is not to be binding until signed.[42] Where these reasons do not apply, it is held that a party who signs and delivers an instrument is bound by the obligations therein assumed, although it is not executed by all the parties named in it.[43] Further it is competent for the parties to adopt it as their contract without signing it, provided their intention to do so is clear.[44]

Mode of Signing[edit | edit source]

It is not necessary that the signature of a party to a contract should appear at the end thereof. If his name is written by him in any part of the contract, or at the top, or at the right or the left hand, with intention to sign or for the purpose of authenticating the instrument, it is sufficient to bind him[45] unless subscription is required by law.[46] Manifestly, however, the mere fact that one's name appears in the body of a written document cannot, standing alone, make him a party to it, where he has not signed it.[47] One may sign with initials or mark, etc.,[48] or by only the christian name[49] or the surname.[50] Indeed, almost any signature may be adopted if clearly intended to be taken in authentication of the instrument.[51] Thus the validity of the contract is not affected by one's signing it with the English translation of his French name.[52]

Contract in several writings[edit | edit source]

Where the contract is evidenced by several writings, it is sufficient that the parties sign one of such writings which defiDitely refers to the others;[53] and where the stipulitions of the parties are contained in separate instruments, it is not n ecessary for both parties to sign each of the instruments.[54] Where the signature is by mark, the fact that one directed by the party to write his name writes it erroneously will not vitiate the contract.[55]

Signature of subscribing witness[edit | edit source]

By statute the signatures of subscribing witnesses may be required to be contemporaneous with the execution of the instrument, and with the knowledge and consent of the party executing it.[56]

Signing by Procuration or Adoption[edit | edit source]

One may be bound by a n agreement to which his signature is affixed by procuration, adoption, or ratification, as well as though it bad been written by his own hand. Where one signs another's name for him in his presence and by his direction, it is as much the act of the person whose name is signed as though he wrote the signature himself. Any defect in the method of executing a written instrument evidencing a contract may, it seems, be cured by ratification. Where the name of a person is affixed to the contract by another person without authority, the other party having knowledge of the lack of authority, and the signature is not adopted by the person whose name is affixed, neither he nor the person affixing his signature is bound.

Delivery[edit | edit source]

Of the execution of a contract in writing delivery is odlinarily an essential element; and a delivery on condition is not a complete delivery until the condition is fulfilled. But where a party bas received the entire consideration for a contract, it becomes obligatory on him through his signing it, although there is no formal delivery to the other party; and a delivery is not necessary when the parties have entered into mutual engagements with the understanding that they are to be immediately effective and have caused such engagements to be reduced to writing and witnessed as evidence thereof. So, a writing not delivered may be evidence of the actual terms of an agreement between the parties.

Date[edit | edit source]

A written agreement is valid, although undated. So, as between the parties, it is usually immaterial that the contract is not executed on the day of its date; and it is competent for the parties to agree that the contract shall take effect as of a date earlier than that on which it is executed.

Leaving Blanks in Writing[edit | edit source]

A writing is incomplete as an agreement where blanks as to essential matters are left in it, unless they can be supplied from other parts of the writing itself. But one signing a paper and leaving blanks in it is ordinarily presumed to give authority to the holder to fill the blanks in accordance with the general character of the instrument.

  1. See Acceptance § Acceptance by Assent.
  2. See Consideration § Contracts under seal
  3. See Doyle v. West, 60 Oh. St. 438, 447, 54 NE 469.
  4. Valdes Hotel Co. v. Ferrell, 17 Ga. A. 93, 86 SE 33 3 ; Quigly v. Muse, 15 La. Ann. 197; Stabler v. Cowman. 7 Gill & J. (Md.) 284; Ludwig v. Bungart, 26 Misc. 247. 56 NYS 51 [rev on other grounds 48 App. Dlv. 613. 63 NYS 91].

    See Consideration.
  5. Del.-Jones v. Tucker, 26 Del. 422. 84 A 1012.

    Ky.-John King Co. v. Louisville. etc . , R. Co., 131 Ky. 46, 1 1 4 SW 308 [reb den 116 SW 1201].

    Mich.-Mall, etc., Co. v. Wood, 140 Mich. 505, 1 03 NW 864.

    N. Y.-Sackett v. Sackett, 14 NYS 251.

    Oh.-Merrlck y. Di tzler, 91 Oh. St. 256. 110 NE 493.
  6. American Colortype Co. v. Continental Colortype Co., 188 U. S. 104. 23 SCt 265. 47 L. ed. 404; Butler v. Tifton, etc., R. Co., 121 Ga. 817, 49 SE 763; International Power Co. v. Hardy, 118 Ga. 512, 46 SE 311; Florida, etc., R. Co. v. Varnedoe, 81 Ga. 175. 7 SE 129; Valdes Hotel Co. v. Ferrell, 17 Ga. A. 93. 86 SE 333; Walton-Wilson-Rodes Co. v. McKitrick, 141 Ky. 415, 132 SW 1046.

    Incorporation of terms by reference see Construction and Operation § Papers Annexed or Referred to.
  7. Wyatt v. Wanamaker, 126 App. Div. G56, 111 NYS 90 [aff 58.Misc. 429, 110 NYS 900]; Wyatt v. McCreery, 126 App. Dlv. 650, 111 NY.S 86.

    [a] Philippines.-When the essential requisites for the existence of a contract are present, the contract is binding on the parties whatever may be the amount involved, and, although required to be in writing by Civ. Code art. 1280, plaintiff can maintain an action on the verbal agreement without first bringing an action under art. 1279 to compel the execution of a written instrument. See Thunga Chui v. Que Bentec, 2 Philippine 561.

    [b] Porto Rico.-
    1. Under the provisions of the former civil code contracts involving more than a certain amount were required to be in exwriting. Civico v. Rodriguez, 4 Porto Rico 296.
    2. This provision did not affect the validity of contracts between the parties. Bigelow v. Porto Rico Planters' Co., 7 Porto Rico Fed. 463.
  8. Northwestern Nat. Ins. Co. v. Avant, 132 Ky. 106, 116 SW 274.
  9. Austin v. Foster, 9 Pick. (Mass.) 341; Central Lunatic Asylum v. Flanagan, 80 Va. 110.
  10. See Intention to Bind § Preliminary Negotiations.
  11. Abbott v. Gatch, 13 Md. 314, 317, 71 AmD 635 (where A was building a wall for B under a contract which provided that "no extra charges to be made unless a written agreement be made and attached to this contract." and it was held that, although B had directed and A had done extra work on the wall at B's request, there could be no recovery in the absence of a writing on the subject). But see Northwestern National Ins. Co. v. Abant, 132 Ky. 106. 109. 116 SW 274 ("The policy of the law is that certain contracts must be in writing to be valid, while all others may be in parol. The parties cannot agree so as to bind themselves either that contracts which the law requires to be in writing shall be valid though in parol, and in spite of the law, nor that contracts which the law allows to be in parol shall not be valid unless in writing. Parties cannot by contract alter the law").

    Modification by parol see Modification § Oral Modification of Written Contract § Contractual Restrictions.
  12. D. C. -Harten v. Loffier, 29 App. 490.

    La.-Houssiere Latreille Oil Co. v. Jennings-Heywood Oil Syndicate, 115 La. 107, 38 S 932

    Mo.-Western Mfg. Co . v. Woodson. 1 30 Mo. 119, 31 SW 1037.

    N. Y.-Banker v. Coons, 40 App. Div. 572, 68 NYS 47.

    Wis.-Kaley v. Van Ostrand. 134 Wis. 443. 114 NW 817; Templeton v. Butler, 117 Wis. 455. 94 NW 306.

    No form of words is conclusive. Documents may be and have been classed as contracts which contained no express word of promise or agreement, and others wherein such express words existed have nevertheless been classed as testamentary. Nevertheless, the presence or absence of such words is very significant--nay, probably controlling--unless something in the context or circumstances shows a mental attitude differing from the expressions used. . . . Neither does the instrument contain any words of promise or agreemen; nor, indeed, anything to indicate that any conception of contract between two parties was present in the mind of either the maker or the draftsman. To express such a conception, "I promise" or "I agree" are ordinarily used, and are words within the common vocabulary of the educated and uneducated, the lawyer and laymen alike.

    Templeton v. Butler, 117 Wis. 466, 467, 94 NW 306.

    [a] A mere memorandum of an actual agreement, signed by defendant, is admissible in evidence, although the parties may have intended to execute a more formal instrument as a substitute for it. Bohn v. Newton, 8 1 Va. 4 80.

    [b] Philippines.-"Contracts shall be binding," prescribes Civ. Code art 1278, "whatever may be the form In which they may have been executed, provided the essential conditions required for their validity exist." These conditions are enumerated In art 1261 of the same code, and they are also requisite In a verbal contract that has been proved. Gallemit v. Tablllram, 20 Ph111pplne 241, 247.

    [c] Porto Rico.-

    Contracts shall be binding, whatever may be the form in which they may have been executed, provided the essential conditions required for their validity exist, and should the law require the execution of an instrument or other special formality in order to make the obligations of a contract binding, the contracting parties may compel each other to comply with said formalities from the moment in which consent and the other requirements, necessary for their validity, have taken place, according to the provisions of articles 1278 and 1279 of the old, or sections 1246 and 1246 of the Revised Civil Code.

    Colon v. Rolg, 7 Porto Rico 37, 52.
  13. Bean v. Clark, 30 Fed. 225; Wenzell v. Brecklnrldge, 3 Dana (Ky.) 4 8 2 ; Marsall v. Craig, 1 Bibb (Ky.) 374; Louisiana State Bank v. New Orleans Nav. Co., 3 La. Ann. 2 94; Dunbar v. Owens. 10 Rob. (La.) 139; Gasquet v. Oakey, 15 La. 637; Knox v. Dixon, 4 La. 466, 23 AmD 488 Chesapeake, etc., Canal Co. v. Baltimore etc., R. Co., 4 Gill & J. (Md.) 1.
  14. Construction of Contracts see Construction and Operation.
  15. 57. Ala.-Dexter v. Ohlander, 8 9 Ala. 262, 7 S 115.

    Conn.-starkey v. Peters, 1 8 Conn. 181.

    Ill.- Whi te v. Merrell, 3% Ill. 511.

    Ind.- Keller v. Orr, 10 6 Ind. 406, 7 NE 19 6 : Foulks v. Falls. 9 1 Ind. 315; Bird v. Thayer, 8 Blackf. 146. But see Pauley v. Wlsart, 69 Ind. 2 4 1 ( hold i n g that a writing, dated ot a certai n date. and reciting that the party signing It received a certain sum of money In orders. taken at eighty cents on the dollar, In full. Is not a contract In the ordinary sense of the term. but simply a receipt).

    Mass.--Jacobs v. German · WorkIngmen's Assoc., 1U Mass. a, 66 NE 6 0 5 .

    N. Y.-Wood v. Whiting. 21 Barb. 19 0 􀅨 Smith v. HaliiR"&n, 9 NYSt 426.

    Oh.-Wilson v. Bailey. 1 Handy 1 7 7. 12 Oh. Dec. (Reprint) 88.

    [a] Illustrations.-
    1. A writing signed by defendant reciting that he has received a relinquishment of a lease from plaln tltr "for consideration of one hundred and fifty dollars, to be paid him In ten days.' Dexter v. Orlander. 89 Ala. 262 . 2 6 7 , 7 S 1 16.
    2. "Received . . . ot James Wilson A: Co., twenty-six hundred and seventy-five and five one-hundredths dollars as an advance on one hundred barrels linseed-oil In their store: for which advance we agree to pay . them Interest at the rate six per cent. per annum: a commission of two and a half per cent. on sales: storage 5 cents per barrel per month. and lnsuranre." Wilson v. Bailey, 1 Handy (Ohio) 177. 178, 1 2 Oh. Dec. (Reprint ) 8 8 .
    3. A writing stating that a person bought of another two cars of potatoes. at fifty-tour cents for sixty-two pounds, to be loaded on track at a certain place, paid cash twenty dollars. and signed by the seller. Smith v. Hall i gan, 9 NYSt 426.
    4. "Received of H. Gaul1 the following orders or demands ror collection, and to be paid over to said Gaul or his order. on the 1st day of November next, or as soon thereafter as collected . . . A. S. Whiting." Wood v. Whiting. 21 Barb. (N. Y.) 1 9 0 , 1 91 .
    5. Where one executed an Instrument reciting: "Received of Mrs. Dana Falls. one note against Z. P. Estes for eleven hundred dollars . . . this tor collection," signed by the person executing It, the writing, while It had the elements of a receipt, expressed a contract for the collection of the note. Foulks v. Falls, 9 1 Ind. 3 16.
  16. Iowa.-state v. Meier. 140 Iowa 540, 1 1 8 NW 792.

    Minn.-Bhepard v. Carpenter, 64 Minn. 153, 65 NW 9 06. N. Y.-MIIIer v. Collyer, 36 Barb. 250.

    Pa.-Ames v. Pierson. 4 PL Diet. 492.

    Tex.-State v. Racine Sattley Co., (Civ. A.) 134 SW 400.

    [a] Illustration.-An instrument signed by prosecutrix acknowledging that defendant did not seduce her as alleged in a suit against him, and reciting a dismissal of the suit in consideration of a payment by defendant, is a receipt and not a contract. State v. Meter, 140 Iowa 540, 118, NW 792.
  17. Eyser v. Weissgerber, 2 Iowa 463.
  18. Sharp v. Bates, 102 Md. 144. 62 A 747; Hunt v. Patten, 33 App. Div. 613, 53 NYS 1042; Lurty v. Lurty, 107 Va. 486, 69 SE 405. See Noyes v. Young, 32 Mont. 228, 79 P 1063 (holding that an instrument arising from and based on transactions had between the parties at its date, acknowledging an indebtedness, and promising to pay it, is a contract).

    [a] Illustration.-Where, before collecting a note payable to himself and given for the price of property owned jointly by himself and his wife, one rendered an account in writing to his wife over his signature, showing her share of the sale to be a fixed sum due her out of the note, and reciting the balance to belong to himself, there was an acknowledgment that, when the note was collected, he would owe her the sum indicated, from which a promise to pay is implied. Lurty v. Lurty, 107 Va. 466, 59 SE 405.
  19. Ill.-Esmay v. Gorton, 11 m. 4 83 ; Baseleon v. Baker, 112 Ill. A. 6 11.

    Mo.-International Text-Book Co. v. Youn t, 1 2 9 Mo. A. 247. 10 8 SlV Ut.

    Nebr.-Dempster v. Opocensk7. 81 Nebr. 6 1 2 , 116 NW 6 24; Bradley v. Bower, 6 Nebr. (Unotr.) 64:11. 119 NW 490.

    S. C.-Buckeye Cotton 011 Co. v. Matheson. 104 S. C. 430. 89 SE 478.

    Alta.-Brocklebank v. Barter. 8 Alta. L. 262.

    Sask.-Wllloughby v. Saskatchewan Valley Land Co., 3 Bask. L. 110.
  20. See Offer § Offer by Post, Telegraph, or Telephone and Acceptance § Acceptance by Post, Telegraph, or Telephone.
  21. Capitol Food Co. v. Smith, 155 Ill. A. 123.
  22. Baird v. Harper, (Del.) 51 A 141 [rev 19 Del. 110, 50 A 326].
  23. Morris v. McKee, 96 Ga. 611, 24 SE 142; Owens v. National Hatchet Co., (Iowa) 121 NW 1076; Oehler v. Conrad Schopp Fruit Co., 162 Mo. A. 446, 142 SW 811. See Real Est. Sav. Inst. v. Fisher, 9 Mo. A. 593.
  24. Thayer v. Harbican, 70 Wash. 278, 126 P 625.
  25. Morehouse v. Terrill. 111 Ill. A. 460.
  26. Crane v. Partland, 9 Mich. 493, 497.
  27. Hueni v. Freehill, 125 Ill. A. 145; Gordon v. Gordon, 96 Ind. 134; Lynn v. Richardson, 151 Iowa 284, 130 NW 1097; St. Louis, etc., R. Co. v. Maddox, 18 Kan. 546.
  28. See Definitions § Written and Oral Contracts
  29. Grove v. Hodges, 66 Pa. 604; Garrick Theater Co. v. Gimbel, 158 Wis. 649, 149 NW 385.
  30. Stepina v. Conklin Lumber Co., 114 Ill. A. 173; Huling v. Century Pub., etc., Co., 108 Ill. A 549; Ellis v. Abell, 10 Ont. A. 226.
  31. McDermott v. Mahoney, 189 Iowa 291, 116 NW 12, 116 NW 788. See also McCauley v. Schatzley, 44 Ind. A. 262, 88 NE 972 (where it is said that a written contract has no binding force until it is either signed by all the parties, or signed by one of the parties and accepted by the others).
  32. Fetherstone Fdy., etc., Co. v. Criswell, 36 Ind. A. 881, 76 NE 30. See Brown v. Silver, 2 Nebr. (Unoff.) 164, 96 NW 281 (holdlng that there is no variance between an allegation of a verbal contract and an unsigned memorandum of such contract, alleged to have been made by the party charged at the time the contract was entered into).
  33. Henderson v. Henderson, 136 Iowa 564, 114 NW 178.
  34. Ramsay Realty Co. v. Ramsay, 135 Iowa 612, 114 NW 168.
    Mutuality see Consideration § Mutuality
  35. Heyer v. Cunningham Piano Co., 6 Pa Super. 504, 42 WklyNC 14.
    Effect of signature of contract in which party is not named see Construction and Operation § Parties
  36. Henderson v. Henderson, 136 Iowa 564, 114 NW 178; Heyer v. Cunningham Piano Co., 6 Pa Super. 504, 42 WklyNC 14.
  37. Parker v. Carter, 91 Ark. 6. 134 AmSR 60. '-llli.-1JI:>aJcKs v. :Mauk, 170 Cal. 122. PL 6a2v2e;n sBolno omv. vW. Hisaez, za1r3d1, 0. 37 P 1037; Reedy v. 1. 245: Luckbart v. Og- 5H47e;l'f eCrnlaarny v. Hoagland, v. Davis, 24 301, 140 P 716 [quot v. Mcintyre, 7 Colo. PerFla. U7 IlL 262, 76 NE 482, 2 LRANS 221, 3 AnnCas 1032 ;_ Harts v. Eme7i, 184 Ill. 660, 66 NE 866 [afr 84 II. A. 317); Sellers v. Greer, 172 Ill. 649, 50 NE 246, 40 LRA 649; Vogel v. Pekoe, 157 Jll. 339, 42 NE 386. 30 LRA 491; Short v. Kieffer, 142 Ill. 266; Rigdon v. Conley, 141 Ill. 666, 30 NE 1060 (al'f 31 Jll. A. 63 0]; Esmay v. Gorton, 18 Ill. 487; Johnson v. Dodge, 17 Ill. 433; Hoyt v. Schillo Motor Sales Co.. 186 Ill. A. 628; McKeage v. Scully- Kostner Coal Co. . 185 Ill. A. 122; Miers v. Fuller Co., 167 Ill. A. 49; Grlefen v. Uubbe.rd, 112 Ill. A. 16; Barlckman v. Cantrall, 91 Ill. A. 230; Raphael v. Hartman, 8 7 Ill. A. 634; Lindeman v. Wagner, 67 Ill. A. 134. Ind.-Burke v. Mead, 159 Ind. 262, 64 NE 880; Indianapolis Natural Gas Co. v. Kobbey, 136 Ind. 357, 36 NE 392; Chicago, etc .. R. Co. v. Derkea. 103 Ind. 6 20 . 3 NE 239; Fairbanks reguv. Meyers, 98 Ind. 93; Street v. Chap- man, 29 Ind. 142 j, Cincinnati, etc .. R. Co. v. Pearce, 2a Ind. 602; Kleth v. Kerr, 17 Ind. 284; Knapp v. Beach, 52 Ind. A. 673, 101 NE 37; High Wheel Auto Parte Co. v. Troy Journal Co., 60 Ind. A. 396, 98 NE H2 i McCauley v. Schatzley, 44 Ind. A. I􀃈!la. 􀃇H􀃆􀀷 ir􀃅􀃄n v. lienderson. 138 Iowa 664 , 114 NW 1 78; Ramsay Realty Co. v. Ramsay, 135 Iowa. 612, 616, 113 NW •88 [cit Cyc]; Musca- tine Water Co. v. Muscatine Lumber Co. , 85 Iowa 112, 62 NW 108, 39 AmSR 284; Dows v. Morse, 62 Iowa 231. 17 NW 496; Bell v. Byerson, 11 AshIowa. 233, 17 AmD 142; Attlx v. Pelan, 5 Iowa 3 36.
    Kan.-Babblt v. Central L. Ins. Co., 93 Kan. &S., 672. 144 P 837 [cit Cyc); Sentney v. Hutchinson Interurban R. Co., 90 Kan. 61 0, 136 P 678; Stivers v. Cherryvale , 88 Kat). 270, 120 P 361; Brownson v. Perr[;,- 71 Kan. 678, 679, 81 P 197 [cit Cyc .
    Ky.--Ogden v. Ogden, 1 SW 65, 8 KyL 416.
    Mo.-Mercantile Trust Co. v. La- Ann. 929, 9 S 905; Smith v. Morse, 20 La. Ann. 220; Lesseps v. Wicks. 12 La. Ann 739; Cusachs v. Dugue. 4 La. A. (Orleans) 132; Bodenheimer v. Mary Planting, etc., Co., 1 La. A. (Orleans) 13.
    Me.-I oung v. Ward, 33 Me. 359. Mass.- Bufflngton v. McNally, 192 Mass. 198, 78 NE. 309; Matton v. Barnes, 112 Mass. 463.
    Minn.-Grlffln v. Bristle, 39 Minn. 456, 40 NW 623; Magoon v. Minnesota Packing Co.. 34 Minn. 434, 28 NW 235. Mo.-Mercantile Trust Co. v. Lamar. 148 Mo. A. 363, 128 SW 20; Sunbury v. Aaron, -136 Mo. A. 222, 118 SW 431; Grafeman Dairy Co. v. St. Louis Dairy Co .. 98 Mo. A. 495, 70 SW 390; American Pub., etc.. Co. v. Walker. 87 Mo. A. 603l Stone v. Pennock. 31 Mo. A. 544; Hernor v. Bagnell. 20 Mo. A. 643.
    Nebr.-Serhant v. Gooch Milling, etc . . Co., 96 Nebr. 764. 148 NW 911. N. J.-Marshall v. Hann, 17 N. J. L. 426; Young v. Paul, 10 N. J. Eq. 401, 64 AmD 456. N. Y.-Knudteen v. Remmel, 141 App. Dlv. 446, 126 NYS 249; Schnurr v. Quinn, 83 App. Dlv. 70, 82 NYS 468; Dutch v. Mead, 36 N. Y. Super. 427; Secor v. Law, 22 N. Y. Super. 163; Darby v. Pettee, 9 N. Y. Super. 139 [atr 69 N. Y. 628 mem]; Durkin v. New York. 49 Misc. 114, 96 NYS 1069; Reynolds v. Welsh. 8 NYSt 404. N. D.-Merritt v. Adams County Land, etc., Co .. 29 N. D. 496, 151 NW 11.
    Oh.-Bacon v. Daniele, 37 Oh. St. 279.
    Or.- Leonard v. Howard, 67 Or. 203. 13 5 P 649. Pa.-Grove v. Hodges. 65 Pa. 604; Flannery v. Dechert, 13 Pa. 606. See P ennsylvania R. Co. ,... Bost, 104 Pa. 26 (holding that, where a railroad company had adopted rules and reguv. lations for minors entering Into Its service for wages, to work In Its shops, on acceptance ot a person under those rules they become bind- lng on both parties, although signed only by the apprentice).
    Philippine.--co-Boo v. Llm-Tian, 3 Philippine 186. c.8a7f."3􀀶�t'�7�􀃃􀀵􀃂e3 lm1f:":!􀃁􀃀· . • 27 s. S. D.-Kiam v. Wolters, 28 S. D. 266. 133 NW 277• Reed v. Coughran. 21 S. D. 267A 111 NW 669; McPherson v. Fargo, 1u S. D. 611, 74 NW 1057, 68 AmSR 723.
    Tex.- Campbell v. McFadin, 71 Tex. 28, 9 SW 138; Benson v. AshIowa. ford, (Civ. A.) 189 SW 1093, 1094 [cit Cyc]; Leonard v. Portier, 3 Tex. A. Clv. Cas. f 382.
    Vt.-Brandon Mfg. Co. v. Morse. 48 Vt. 822; Patchin v. Swift, 21 Vb292. Waeh.-Hunter v. Byron. 92 wash . 489, 169 P 703; Amherst Inv. Co. v . Meacham. 89 Wash. 284. 124 P 882.
    Wis.-McPhee v. McDermott, 77 Wis. 33, 45 NW 808. B. C.-Mills v. Marriott, 17 B. C. 171. 3 DomLR 2 68, 20 WestLR 917.
    [a] Agreement to lease.-A unilateral contract whereby a party agrees to hire certain premises, on acceptance by the owner, becomes binding on both partles. Buffington v. McNally, 192 Mass. 198, 78 NE 309.
  38. Sparks v. Mauk, 170 Cal. 122, 148 P 928.
  39. U.S.-Arnold v. Scharbauer, 116 Fed. 492.
    Ala.-Vastblnder v. Metcalf, 3 Ala. 100.
    Fla.-Hinote v. Brigman, U FIL 689. 33 S 303.
    Ill.--Grlefen v. Hubbard, 112 Ill. A. 16: Keating v. Nelson, a3 Ill. A. 357; Wetenkamp v. Bllllgh, 27 Ill. A. 586.
    Ind.- Lewis v. Crow, 69 Ind. 434; McCauley v. Schatzley, 44 Ind. A. 262, 88 NE 972.
    Ky.-Bowen v. Chenoa-Hignlte Coal Co.. 168 Ky. 688, 692. 182 SW 635 [quot Cyc].
    La.- New Iberia Rice-Milling Co. v. Romera, 106 La. 439, 29 S 878; Fish v. Johnson, 18 La. Ann. 29.
    Me.-Misslsslppl. etc.. SS. Co. v. Swift. 88 Me. 2 48, 29 A 1083, 41 Am SR 6(5.
    Md.-Baltimore Humane Impartial Soc. & Aged Women's, etc., Homes v. Pierce, 1 0 0 Md. 520. 60 A 277. 70 LRA 486.
    Mass.-Jtussell v. Annable. 109 Mass. 72. 12 AmR 866; Howe v. Peabody, 2 Gray 656; Wood v. Wa.shburn, 2 Pick. 24; Bean v. Parker. 17 Mass. 591; Andrews v. Etterldge, 9 Mass. 183.
    Nebr.-Wllcox v., Saunders. ( Nebr. Nev.-Keller v. Blasdel, 1 Nev. 491.
    N. C.-Lutz v. Thompson. 87 N. C. au.
    Pa.-Bruch v. Shafer. 215 Pa. 690, 84 A 616; Br,11ch v. Abater. 45 Pa.. 􀀴J>Bfo. 612; Finney v. Finney, 1 Pea.rs.
    S.C.-McDaniel v. Anderson. 19 S. c. 211.
    Tex.-Benson v. Ashford, (Civ. A.) 189 SW 1093. 1094 [quot Cvc] ; Ayers v. Herring, (Civ. A.) 32 SW 1 0 6 0 .
    Eng.-Coopers v. United Contract Corp., 14 T. L. R. 29.
  40. Mattoon v. Barnes, 112 Mass. 463.
  41. Mattoon v. Barnes, 112 Mass. 463; Naylor v. Stene, 96 Minn. 67, 104 NW 686; United Nickel Copper Co. v. Dom inion Nickel Copper Co., 11 DomLR 88, 4 OntWN 1132. 24 Ont WR 462 [dism a.pp 14 DomLR 919, 6 OntWN 301].
  42. Ala.--Graham v. Caperton, 178 Ala. 116. 67 s 741.
    Cal.-Barber v. Burrows. 61 Cal. 404. 473; Tewksbury v. O'Connell. 21 Cal . 60.
    Ga.-Clarke v. McNatt, 132 Ga. 810, 64 SE 795, 2 6 LRANS 6 8 5 .
    Ill.-Wa.ggeman v. Bracken. 6 2 Ill. 468.
    Ky.-Bowen v. Chenoa-Hign lte Coal Co.. 188 Ky. 688, 692, 182 SW 635 [quot Cyc].
    Me.--Goodenow v. Dunn, 21 Me. 88.
    Md.-Howard v. Carpenter. 11 Md. 269. But see Western Maryland R. Co. v. Orendorff, 37 Md. 328, 335 ( where the court says: "It ha.s long been settled that If two parties enter Into an Indenture or agreement Intended to be signed and sealed by both, but In tac t signed and sealed only by one. that It w l l l be the covenant of him who has signed and sealed").
    Nebr.-Serhant v. Gooch M i l l ing, etc . . Co., 96 Nebr. 75(. 148 NW 911.
    N. J.-Emery v. Neighbour, 7 N. J. L. H2. 1 1 AmD 64 1.
    N.Y.-Brooklyn City R. Co. v. Brooklyn Cent. R. Co., 32 Barb. 358.
    Pa.-Bruch v. Shafer, 45 Pa. Super. 612, 6 1 5 [quo t Cyc].
    S. D.-Harris v. Lyons, 30 S. D. 272. 138 NW 295.
    Tex.-Osborne v. Holland, 1 Tex. A. Clv. Cas. I 1:,87.
    Utah.-Woodward v. Edmunds, 20 Utah 118. 57 P 8 4 8 .
    Ont.-Binck v. Townsend. 2 DomLR 826, 3 OntWN 54 1 , 20 OntWR 974.
    [a] A tripartite agreement cannot be established by a paper signed by one party only. Wilcox v. Saunders, 4 Nebr. 569. 88.
  43. Ill.-Brelllng v. Hybl, 167 Ill. A. 1 6 5 .
    Md.-Western Maryla.nd R. Co. v. Orendorff. 37 Md. 328.
    Mass.-Mattoon v. Barnes. 112 Mass. 463; Yale v. Wheelock. 109 Ma.ss. 5 0 2 ; Herrick v. John son. 11 Mete. 26; Warring v. Williams. 8 Pick. 3 2 2 ; Adam s y. Bea.n. 12 Mass. 137. 7 AmD 44: Cutter v. Whittemore. 10 Mass. 442.
    Minn.-WIIkes v. Holmes. 128 Minn. 349. 150 NW 1098; Naylor v. Stene, 98 Minn. 57. 104 NW 886.
    Mo.-State v. Regent Laundry Co., 190 SW 951: Mueh lbach v. Missouri, etc .. R. Co .. 1 6 6 Mo. A. 306, 148 SW 453.
    N. Y.-DIIlon v. Anderson. U N. Y. 231.
    Oh.-Kennard House v. Mathlvlet. 19 Oh. Clr. Ct. 749. 10 Oh. Clr. Dec. 5 40.
    Porto Rico.-Matter of Alalna, 8 Porto Rico Fed. 631.
    Wis.-Security Trust, etc., Ins. Co. v. Ellsworth, 129 Wis. 349, 109 NW 125.

    The rule appl icable to such cases Is tha.t a. party who signs and de­ livers an Instrument Is bound by the obligations h e therein assumes alth ollgh It Is not si gned by all the pe.rtles named In It unless I t appears that the parties sltrn l ng mutually Intended that It shoul d be Inchoate and Incomplete and not take effect as a contract until signed by all the pa.rtlea named.

    State v. Regent L&un· dry Oo.. (Mo.) 1 9 0 SW 951. 953.

    [a] Illustrations.-A written contract, ma.de In duplicate, purporting to transfer an automobile from plaln t llf s In consid erat ion of a transfer by defendant to plaintiffs o f certain shares of corporate stock was not signed by one of the plaintiffs. although he was named In the body of the cont ract: but the other plaintiff and defendant signed the duplicates and each retained one. Therea.fter the automobile was delivered to defendant by plai n t i ff who had not signed. It was held, In an action ot replevin, that the mere lack ot the signature of one of the plaintiffs Is not sutnclent proof of' an understanding or agreem en t that the contract Is not to tRke efff'ct u n t i l signed by both plaintiffs. Wi lkes v. Holmes. 128 M i n n . 349 , 150 NW 1098.

  44. U.S.-Girard L. Ins., etc., Co. v. Cooper, 162 U.S. 529, 15 SCt 879, 40 L. ed. 1062.
    Ala.-Cassells' Mill v. Strater Bros. Grain Co., 1 6 6 Ala. 274. 51 S 969.
    Ill.- Hoyt v. Sch i l l o Motor Sales Co.. 185 Ill. A. 828; Welsbach St. Lighting Co. v. Burdick, 185 Ill. A. 62(; McKeage v. Scully-Kastner Coal Co., 185 I l l . A. 122.
    Kan.-Babbl t v. Central L. Ins. Co., 93 Kan. 564, 1H P 837; Edwards v. Glldemelster. 6 1 Kan. 141. 59 P 259.
    Ky.-Bowen v. Chenoa-Hignlte Coal Co.. 1 6 8 Ky. 588, 592, 182 SW 636 [quot Cyc].
    La.-Bodenhelmer v. Mary Plant lng, etc., Co., 1 La. A . (Orleans) 121. 231.
    N.Y.-Dillon v. Anderson. 41 N.
    Philippine.-Oilveras v. Pozon. Phi l ippine 831.

    See Landers v. Foster, 34 Wash. 674, 76 p 274.
  45. Ark.- Henry v. Allen. 49 Ark. 1 2 2 . 4 sw 201.
    Cal.- Eldridge v. Mowry, %4 Cal. A. 183, 1 4 0 P 978.
    Ili.-McConnell v. Brillhart. 17 Ill. 36(, 85 AmD 661.<
    br /> Ind.-Dickeon v. Conde, 148 Ind. 279, 48 NE 998. Iowa.-Bonewe l l v. Jacobson. UO Iowa 1 7 0. 1 0 6 NW 814, 5 LR.ANS 436.
    Mo.-Donnell Mfg. Co. v. Re􀀳 76 Mo. A. 420.
    N. Y.-Perklns v. Goodman. %1 Barb. 218.
    Pa.-Stelnlnger v. Hoch, U Pa. 211. 80 AmD 621.
    Tenn.-Noe v. Hodcea. ll Humpbr. 112.
    Tex.-Cioee v. JudsonL 34 Tex. 285; Prince v. Thompson. ll1 Tex. 480; Ful shear v. Randon, 18 Tex.. 276, 10 AmD 281.
    Eng.-Jobnson v. Dodgson. 2 K. A W. 853, 150 Reprint 918. "It he writes hie name In any part of the agreement. lt may 􀝀 taken as his signature. provided It was there written tor the purpose of giving authentlelty to the instrument, and thus operating as a signature." Fulshear v. Randon, 11 Tex. 275, 277, 70 AmD 2 8 1
  46. Eldridge v. Mowry, 24 Cal. A. 1813, 140 P 978.
  47. Thomas v. Caldwell, 50 Ill. 138; Lombard v. Buillet, 11 Mart. (La.) 453.
  48. Finnegan v. Lu cy. 157 Mass. 439, 32 NE 668; Sanborn v. Flagler. 9 Allen (Mass.) 474; Palmer v. Stephens, 1 Den. (N. Y.) 41ll; Mer· chants' Bank v. Spicer, 8 Wend. (!". Y.) 443; Zimmerman""· Sale. 17 s. C. L. 78.
    "Si gn ing does not nece-rlly mean a written signature, as dlstln· gu l sh ed from a signature by mark. by print. bf stamp, or by the band ot another.' Finnegan v. Lucy, lSi Mass. 4U, 443. 32 NE 666 .
    [a] A mark attached to a signature is evidence of the intention to adopt It; but this may be don411 by any other act expressed clearly. Just v. Wise Tp., 42 Mich. 573. 4 NW '298.
  49. Louisville, etc., R. Co. v. Caldwell, 98 Ind. 245; Zann v. Haller, 71 Ind. 136; Walker v. Walker, 175 Mass. 849, 66 NE 601.
  50. Hodges v. Nalty, 113 Wis. 567, 89 NW 535.
  51. Middleton v. Findla, 26 Cal. 76;Tustin v. Faught, 23 Cal. 237; Omo n v. Seavey. 22 Cal. 496; Shank v. Butsch, 28 Ind. 19; Brown v. Butchers, etc., Bank, 6 Hill (N. Y.) 441, 41 A m D 755; Selby v. Selby, 3 Meriv. 2. 36 Reprint 1.
  52. Augur v. Couture, 68 Me. 427.
  53. Bell v. Campbell, (Tex. Clv. A.l JU SW 953.
    [a] Specifications.-Where the parties have signed a written agreement which refers to specifications the specifications need not be signed. Moore v. U.S., 1 Ct. Cl. 90; White v. McLaren, 151 Mass. 653, 24 NE 911.
    [b] Where a bond conditioned on the performance of a contract refers to the contract as thereto attached, an execution fo the bond with the contract attached thereto is an execution of the contract also. Busch v. Hart, 62 Ark. 330, 35 SW 534; Bell v. Campbell, (Tex. Civ. A.) 143 SW 953.
  54. Lee v. Cozier, 40 Miss. 477 (holding that, where on signs a note for the purchase money and the other an agreement to convey the property when the money is paid, both parties need not sign each instrument).
  55. Bachinsky v. Federal Coal, etc. Co. (W. Va.) 90 SE 227.
  56. Carson v. Woods, (Mo.) 177 SW 623.