The plaintiff’s was the highest bid for premises at an auction. The auctioneer used a borrowed form for sale by private treaty, though some clauses were inappropriate. A solicitor present edited the document and put in the date for completion. The auctioneer put in the vendor’s initials and surname (‘W.E.Stocks’). After the bidding, the auctioneer inserted his details, a description of the premises and the auction price and, when he had obtained it, the purchaser’s solicitors name. The document ended with the words ‘As witness the hand of the parties hereto the day and year before written. Purchaser’s solicitor, R.A.C. Symes and Co, Southampton’. The purchaser signed the document over a stamp. The auctioneer told the vendor of the sale but did not show him the document. Neither he nor the vendor signed the document in the ordinary sense of the word. The vendor refused to complete alleging that there was no note or memorandum.
Held: The auctioneer was agent for both parties; and had authority to put before the purchaser, as he did, a document containing the name of the vendor as the party with whom the contract had been made, and the terms of the contract which had been made, for him to agree in writing. The placing of the name ‘W.E. Stocks’ as the name of the vendor with whom the contract was made by the auctioneer was sufficient to count as a signature of a memorandum by an authorised agent.
Although the vendor’s name was not inserted in the first instance with reference to a contract with the purchaser, nevertheless when it was put before the purchaser for signature, the vendor’s name was in the document in relation to a contract which had become binding, albeit not actionable without a memorandum satisfying the statute.
The court was troubled that the document by its own terms contemplated that it should be signed by both parties, from which it could be said that until then it had not been signed at all. As to that he held that when the auctioneer obtained the purchaser’s signature neither he, on behalf of the vendor, nor the purchaser intended any other signature ever to be added; but that both intended the document with the purchaser’s signature to be the final written record of the contract. The court could examine the evidence to see if the document relied on came into being as a ‘perfect instrument’ i.e. as the intended final embodiment of the agreement and, if it found that it did, the court was not prevented from holding it to be a sufficient memorandum. The ‘authenticated signature fiction’ will only have application where it is intended by each party to the contract that the memorandum or note relied upon ‘should be the final written record of the contract’.
Judges:
Roxburgh J
Citations:
[1951] 1 Ch 941
Citing:
Applied – Evans v Hoare 1892
A defendant sought to deny liability under a document relying on the 1677 Statute. the relevant document had been drawn up by a duly authorised agent of the Defendants. The document was a letter from the Plaintiff and the words ‘Messrs Hoare, Marr . .
Cited by:
Cited – Golden Ocean Group Ltd v Salgaocar Mining Industries Pvt Ltd and Another ComC 21-Jan-2011
The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .
Lists of cited by and citing cases may be incomplete.
Contract, Land
Updated: 11 May 2022; Ref: scu.430071
