Where the contract is made through the agency of two brokers, one acting for the vendor and the other for the purchaser, and the sold note given by the purchaser's to the vendor's broker, states, that the sale is made on account of the latter instead of his principal, the vendor may nevertheless treat the contract as his own, and enforce it upon the terms of the sold note. (b)

If the broker in his bought note give the name of a wrong person as the vendor, the purchaser upon discovery of the real vendor may proceed against him for the non-fulfilment of the contract. (c)

Upon general principles we should be inclined to the conclusion, that the memorandum signed by the broker, whether it before the last of the fourteen, when delivery could be made, the defendant disclosed the name of his principal to the vendor. An action was brought by the latter against the purchasing broker, for the price of goods bargained and sold, on his persona] liability as the agent of an undisclosed principal. At the trial at nisi prius, the above facts were given in evidence, and it was also proved, that according to the usage of trade, whenever a broker purchased without disclosing the name of his principal, he was liable to be looked to as the purchaser. On this evidence the defendant contended, that the contract between the parties, as laid in the declaration, was not proved. A verdict was taken for the plaintiff, leave being reserved to move for a nonsuit. A rule nisi for a nonsuit, being obtained on the grounds that there was no evidence of the alleged contract of the sale and purchase, and that evidence of the alleged custom was not admissible; the case was argued before the full bench, the defendant contending that there was no bargain with the plaintiff, because the sold note relied upon as constituting the contract. represented that the sale was for account of A; also, that the evidence of the custom if admitted, would contradict the language of the written instrument, and show a different contract; that if the contract was with the defendant as purchaser, it was a contract not shown by any memorandum in writing, and therefore not to be enforced under the statute of frauds But the court held, that the parol evidence was competent to show that A acted as the broker of the plain-tiff; also that parol evidence as to the usage of trade making brokers liable where their principals are not disclosed, was admissible; on the ground that it did not vary the terms of the written contract, but merely annexed a particular or incident thereto, which though not mentioned in the contract, was connected with it, or with the relations growing out of it. It was therefore to be admitted with the view of giving effect as far as possible to the presumed intentions of the parties. The rule to enter a nonsuit was accordingly ordered to be discharged. See also Mollett v. Robinson, L. R. 7 H. L. 802; Fleet v. Murton, L. R.

7 Q. B. 126; Hutchinson v, Tatham, L.. R.

8 C. P. 482; Southwell v. Bowditch, 1

C. P. D. 374.

(z) 2 Smith Lead Cas. 223. See ante, chapter on Agents, seet. vii.

(a) Hlumfrey v. Dale, 7 E. & B. 90 Eng. C. L. 266. (b) Id. (c) Trueman v, Loder, 11 A. & E. 589.

be an entry in his books, or the customary sale notes, must be signed by him at the time the contract is made, and not afterwards, in order to satisfy the statute of frauds, which requires a signing by the party to be charged or his agent; for, the broker being the agent of the principals only for the purpose of effecting the contract, after that duty is performed he is functus officio, and no longer the agent of the contracting parties. (d) The principals are not however thus restricted, but may sign a valid memorandum of the bargain thus effected, at any subse-quent * time, either personally or by an agent duly authorized to perform that act.

So, too, the principal may, by ratifying the inoperative signature of the broker, render it effective to answer the requirements of the statute, and this result would be accomplished by the ratification, whether the original defect arose from the broker's signing after the contract was made, or from a want of authority to make the contract. The English statute of frauds, and generally those of the several States of the Union, while they require that the memorandum in writing shall be signed by the party to be charged, or his agent, do not provide as to the mode in which the agent is to receive his authority, but leave the question to be settled by the rules of common law. By the common law, the subsequent sanction of an agent's acts is considered as the same thing in effect, as assent at the time, upon the principle that omnis ratihabitio retrotrahitur et mandato priori aequiparatur. (e)

It is held in England, that where the written contract is inadmissible in evidence for want of a stamp, neither party can give parol evidence of such contract. (h) We have the authority of the English Court of Exchequer for the doctrine, that a factor selling goods for his principal has not the same authority as a broker to bind the purchaser by bought and sold notes; for he is not regarded in law as the agent of the purchaser. And though the sale notes be made out by him in the presence of the two principals, and delivered to them respectively, and the purchaser receive the bought note without objection at the time, or even far recognize it as to request the factor to make an alteration in the date thereof; the transaction will not thereby be taken out of the statute of frauds, so that the owner of the goods can maintain an action against the purchaser fur non-performance. All these circumstances, it is held, fall short of authorizing the factor to act for the purchaser, and unless express authority to sign him be given by the purchaser, the bought note will not hold him. (i) This case strongly defines a * distinction between a factor and a broker, making the latter the agent of both contracting parties, and the former the agent of his principal only.

(d) See a remark by Campbell, C. J., favoring this conclusion in Sievewright v. Archibald, 17 A. & E. (n. s.) p. 124. See also Horton v. McCarty, 53 Me. 394; Bamber v. Savage, 52 Wis. 113; Flintoft v. Elmore, 18 Up. Can. C. P. 274.

(e) Soames v. Spencer, 1 Dow. & R. 32; Maclean v. Dunn, 4 Bing. 724; s. C. 1 M. & P. 779. In this case, Best, C. J., says: " In my opinion the subsequent sanction of a contract signed by an agent takes it out of the operation of the statute of frauds more satisfactorily than an authority given beforehand. When the authority is given beforehand, the party must trust to his agent; if it is given subsequently to the contract, the party knows that all has been done according to his wishes."

(h) 3 Starkie on Evid. 1005, 1006. See 1 H. & C. 174.