McGivern v. Fleming

The memorandum is not subscribed by the party to be charged. His signature, or rather a signature which the verdict of the jury compels us to regard as having been made by his authority, appears, not at the end of the memorandum, but near to the middle of it.

The jury found a verdict for the plaintiff for the price of all the goods mentioned in the memorandum, but the General Term of the Marine Court modified the judgment by deducting the price of those goods that “ appear on the memorandum after the subscription of the defendant.”

*291From this judgment of the General Term of the Marine Court it is obvious that in the opinion of that court, if a note or memorandum of a contract for the sale of personal-property be signed, not at the end, but in the midst of the Hst of the articles sold, the contract may be split into pieces, and the fragment that precedes the signing will be valid, whilst the fragment that follows the signing will be void. I am not aware of any decision that warrants such a construction of the statute. Since the ease of Davis v. Shields (26 Wend. 341) it has always been understood that a note or memorandum of a contract for the sale of chattels is not valid unless the name of the party to be charged is signed below or at the end of the memorandum. The case of James v. Patten (6 N. Y. 9) also holds that the signature must be underneath or at the end, of the memorandum. The memorandum is but one instrument, and must be either entirely valid or totally invalid. If the memorandum be not signed at the end, it is not such a note of the contract as the statute requires, and the contract is utterly invalid.

The courts have no right to circumvent the statute by holding that if the name of the party to be charged can be found on the paper, he has subscribed all that part of the agreement that precedes his signature. He has not subscribed the note or memorandum; and that he must do in. order to bind himself.

The judgment and the order appealed from should be reversed and a new trial ordered, with costs to abide the event.

Vatt Brunt, J.—I concur in the result.

J. F. Daly, J., concurred.

Judgment and order reversed and new trial ordered, with costs to abide event.