790. Provision that Notices may be Sent to Contractor's Place of Business. Clause: "Any notice or other communication which this contract provides may be given or made to the contractor, shall be deemed to be well and sufficiently given or made if the same be served on the contractor or addressed to him at his domicile or usual place of business, or at the place where the work hereby contracted for is to be or is being carried on, or it may be left post-paid at the general post-office, in the city of and any papers so addressed and left postpaid at the said poet-office shall, to all intents and purposes, be considered to be and to have been legally served upon the said contractor." 791. Contract Executed in Triplicate-What it Comprises. ..... Clause: "The parties hereto agree that this contract shall be in writing and executed in triplicate, one of which triplicate copies shall be kept by the said board, one be delivered to the auditor, controller, etc., of the city of .... or state of ........., and one to the said contractor; that the contract shall include and comprise the written articles of agreement, the plans and specifications described therein and attached thereto, the proposals, estimate of the contractor, the schedule of prices and bond(s), submitted and executed ...... day of 189.., in connection therewith." 792. Extent of Contract. Clause: "This contract comprises the formation, execution, and completion of the works described in the specification in the first schedule hereto and shown and described by the plans and sections. and upon the drawings, and further set out in the proposal and bill of quantities referred to herein and hereto attached, and all extra work which may be ordered under the powers herein contained; such drawings and specification, bill of quantities, etc., are to be considered as explanatory of each other; and should anything appear in the one that is not described in the other, no advantage shall be taken of any such omission." 793. Acknowledgment by Parties that Contract has been Read before Executing it. Clause: "It is further agreed and admitted that the parties hereto have carefully read and considered the terms, agreements, and stipulations of this contract and specifications, and have studied with care the plans and drawings referred to therein to become acquainted and familiar therewith, and have executed, signed, and delivered the same with full knowledge of their contents, import, and requirements."'t 794. Contract Executed without Reading It.-The law never requires a person to execute any written instrument without first becoming acquainted 1 Ordinary construction contracts are not required to be executed in writing unless they are within the Statute of Frauds. If the compensation be au interest in lands, or the contract in any way affects or conveys an interest in land, then it must be in * See Secs. 95, 135, supra. writing, as required by the Statute of Frauds. Construction or working con tracts should invariably be executed in writing, for reason perfectly evident from what precedes.-Lloyd's Law of Building (2d ed.), § 3. See Secs. 98-111, supra. with its contents.' When a person has signed a written contract, the law presumes that he has read the instrument which he signed; and if a contract has been voluntarily signed and executed with full means of learning its contents, there being no misrepresentation or fraud, it cannot be avoided on the ground of negligence, failure, or omission to read it.' This rule was applied to the terms and conditions of a telegraphic message blank.* Where a person who can read signs his name to an instrument, he is presumed to know its contents, so that, if he attacks the instrument for fraud, asserting that it does not contain the whole contract, or contains more than the contract, the burden is on him to show fraud. Fraud is never presumed, but must be clearly proved, in order to entitle a party to relief on the ground that it has been practiced on him." The signing must be with the intent to execute the instrument as a contract or it will not bind the parties.' As where a person induces another to sign a paper containing no writing, and which is to be used merely as a means of identifying the signer, who does not intend to execute a note or contract of any kind, and then the blanks are filled out so as to make the paper a note, the note will be void even in the hands of an innocent holder. The person signing the contract must not be guilty of negligence or at fault, for the court will see that an innocent purchaser who has exercised every reasonable precaution shall not suffer by the fault of the maker. It has been held that the signer of a paper with unfilled blanks is not in itself negligence. A contract signed and delivered leaving blanks in it makes the party receiving the contract an agent to fill in the blanks in the way contemplated by the maker. The signing of a writing throug mistake as to its contents imposes no obligation upon the signer." Whether a person who has signed an instrument which declares that both parties have read it, can plead that he did not read it or that he did not comprehend it, or did not understand it, is a question; there is no rule in equity that he cannot make such a defense. Certainly the defense that he did not read it nor know what it contained, would be as strong as in any case. If he has not been guilty of neglect or carelessness he should have 1 Hazard v. Griswold, 21 Fed. Rep. 178; Weller's Appeal, 7 Ont. (Pa.), 594. Cawpan. Lafferty, 50 Mich. 114; Foye v. Patch, 132 Mass 105; Smith v. Monroe, 84 N. Y. 354; accord, Penn. v. Brashear, 2 Mo. App. Rep. 1132; Clark v. Pope, 70 Ill. 128. 3 Thompson v. Riggs, 6 D. C. 99; Bacon v. Procter (Com. Pl.), 33 N. Y. Supp. 995; Chu Pawn v. Irwin (Sup.), 31 N. Y. Supp. 724; Lumley v. Wabash Ry. Co. (C. C.), 71 Fed. Rep. 21; Kingman & Co. v. Reinemer (Ill.), 46 N. E. Rep. 786 [1897]. Becker v. Western Un. Tel. Co., 11 Neb. 87 [1881]; and cases cited. Robinson v. Donahoo (Ga.), 25 S. E. Rep. 491. Davidson v. Crosby (Neb.), 68 N. W. Rep. 338; and see Dellinger v. Gillespie (N. C.), 24 S. E. Rep. 538; and Commonwealth v. Julius (Pa.), 24 Atl. Rep. 21. Morrill v. Mill Co., 10 Nev. 125; Grier. son v Mason, 60 N. Y. 394; Armstrong v. McGlue, Addison 261; but see Chu Pawn v. Irwin (Sup.), 34 N. Y. Supp. 724. First Nat Bank v. Zeims (Iowa), 61 N. W. Rep. 483. 9 N. E. Loan & Trust Co. v. Brown, 1 Mo. App. Rep. 62. 10 Picton v. Graham, 2 Des. 592; Miller v. Gardner, 49 Iowa 234; Schaper v. Gradner, 84 Ill. 603. the same defense whatever the contract terms may be. The fact that it contains a statement that he has read the contract would have no force if he had no knowledge of such stipulation. To avoid the question, with at party who is illiterate or absent-minded, he may be asked to indorse upon the contract a declaration that he has read the contract, or that his attorney or clerk has read it to him. In order to charge one who can neither read nor write with liability on a written instrument, it must be shown that the contents of the paper were fairly read or explained to him, after which he will be presumed to understand the import of the paper which he signs.' If an illiterate man have a deed falsely read to him and he then seals and delivers the instrument, it is nevertheless not his deed. Such a case contains a declaration of fraudulent practice, but an allegation that the contract was signed "in the haste and excitement of the court-room and does not contain the agreement as made" is insufficient, as there is no allegation therein of fraud or misrepresentation, or that defendant was induced by any parol promise, which was subsequently broken, to sign." 795. What Is or Is Not a Signature.-A signature consists both of the act of writing one's name and of the intention to be bound by the contents of the instrument which he signs. The intention to be bound is presumed, and the signature may consist of the subscribing of the party's name, or the initials of his name, or by any mark, if made to show his intention to be bound by the terms of the written instrument. A cross or mark will hold even though the party could write. The Christian name alone has been held a sufficient signature to a will. The middle letter is not an essential part of a man's name, and its omission may be disregarded.' At common law a man may lawfully change his name, and he is bound by any contract into which he may enter by his adopted or reputed name, and by his known or recognized name he may sue or be sued. So a contract entered into by a corporation under an assumed name may be enforced by either of the parties, and the identity of the company may be established by the ordinary methods of proof." The signature is sufficient if it is made by another, guiding the signer's hand, with his consent; and if it is not essential to the validity of the contract that it be in writing, one of the parties may, on request, and in the Green v. Maloney (Del.), 7 Houst. 22. Cole Williams, 12 Neb. 440; Webb v. Corbin, 78 Ind. 403; Suffern v. Butler, 36 E. Green 220; Sims v Bice, 67 Ill 88; Skym v. Weske Cons. Co. (Cal ), 47 Pac. Rep. 116; Trambly & Richard, 130 Mass. 259; see also North v. Williams (Pa.), 13 Atl. Rep. 723 [1888]; and Brown v. Eccles, 2 Pa. Super. Ct. 192; Woodbridge v. De Witt (Neb.), 70 N. W. Rep. 506. 3 Reilly . Daly (Pa.), 28 Atl. Rep. 493. Atl. Rep. 21. 522 Amer & Eng. Ency. Law 781. Jackson v. Bims (N. Y.), 9 The Reporter 751; Allen v. Taylor, 26 Vt. 599 [1854]: Riley v. Hicks (Ga.), 4 S. E. Rep. 173, in an award. Linton v. First Nat. Bank, 10 Fed. Rep. 894 [1882]. 9 Marmet Co. v. Archibald (W. Va.), 17 S. E. Rep. 299. 10 22 Amer. & Eng. Eucy. Law 781. other's presence, affix the latter's signature to the instrument,' or it may be printed with his sanction and consent." 796. Contract Signed by One Party Only.-The signatures of both of two parties to a simple contract in writing are not essential to its validity. If one of them signs and delivers it, and the other accepts it and acts according to its terms, it then becomes a binding contract on both parties. The acceptance and recording of the contract by one party has been held to complete it, though he did not sign it. Such a contract, though signed by but one party, has the element of mutuality; the other party simply has no corresponding evidence of the contract, which, under the law, is enforceable only when "in writing, signed by the party to be charged." If there be two copies of the contract, one signed by each of the two contracting parties, it is binding upon both to the same extent as if there had been only one copy of the agreement and both had signed it. If the contract be not signed there is a presumption that the contract was abandoned, to overcome which it must be shown that the owner, not signing, authorized or encouraged the contractor to undertake the work.' A written contract, signed by the contractor and found in the possession of the owner, is admissible in evidence on behalf of the owner, although it has not been signed by him, since by his acceptance of it the contract has become binding on him. An unsigned building contract, with a bond executed upon the back of it, has been held to be binding. The fact that the contractor did not sign the bond conditioned on performance of the contract will not relieve the sureties thereon from liability." Where the covenant purported to be made between two contractors by name and a company, and only one of the contractors signed the instrument, and the covenant ran between the party of the first part and the party of the second part, it was proper for the contractor who had signed on the first part to sue alone, because the covenant inured to the benefit of those who 1 Crow v. Carter (Ind. App), 34 N. E. Rep. 937; Fitzpatrick v. Engard (Pa.) 34 Ail. Rep. 803. 222 Amer. & Eng. Ency. Law 782; but see Rayner v. Linthorne, 2 C. & P. 124; and Farebrother v. Simmons, 5 B. & Ald. 333, which held that the owner could not subscribe for the contractor beneath his mark. 3 Muscatine W. W. Co. v. Muscatine Lumb Co. (Ia.), 52 N. W. Rep. 108; Vogel v. Pekoc (Ill.), 42 N. E. Rep. 386; Bul. winkle v. Cramer (S. C.), 3 S. E. Rep. 776 [1887]; Reedy v. Smith, 42 Cal. 245, owner had paid installments, but had not signed; Bloom v Hazzard (Cal.), 37 Pac. Rer. 1037; Fairbanks v. Meyers, 98 Ind. 92 [1884]: Girard L Ins. Co. v. Cooper, 51 Fed. Rep. 332; and see Meth Epis. Parish v. Clarke, 74 Me. 110; but see Keller v. Blaisdell, 1 Nev. 491. were parties to it.' Persons who are not mentioned as the party, but who subscribe their names to the contract after the signature of the party named thereby, make themselves sureties to the contractor.' Where one copy of a contract which is to be executed in duplicate has been signed by the parties, but is left with the attorney of one party to have a duplicate executed, there is not a sufficient delivery of the instrument to constitute a contract.' When one party pleads a special written contract, and the other claims to recover on a verbal contract, and the testimony is conflicting, the question as to which is the contract by which parties are bound is for the jury.* - 797. Informal Contracts which are to be Reduced to Writing at some Future Time. Where persons agree that a proposed contract shall be made in writing, such contract is not binding on either until reduced to writing and signed, but where parties have exchanged letters and telegrams with a view to an agreement, and have arrived at a point where a clear and definite proposition is made on one side and accepted on the other, with an understanding that the agreement shall be reduced to a formal writing, the contract is complete, though no formal writing is ever executed. There are cases which are seemingly to the contrary; thus it has been held that a builder is justified in suspending work on a building where the owner, in violation of their agreement, refuses to have the contract under which the work has been commenced reduced to writing.' Acceptance of an offer has been held not to show a meeting of the minds of the parties where the party accepting the offer, on the subsequent presentation of a written coutract for him to sign, containing the terms of the offer, made certain alterations therein which the other party refused to accept. If a proposition has been made by one party and accepted by the other, the terms of the contract being in all respects definitely understood and agreed upon, the party refusing to execute the contract is responsible, it seems, on the breach of his agreement for the same damages as would be recoverable for refusal to perform the contract after its execution in writing.' The fact that the parties to an oral contract for furnishing building material expected that a written contract embodying the same terms would afterwards be signed does not prevent the oral contract from Spinney v. Downing (Cal.), 41 Pac. Rep. 797. Earl, Gray, and Bartlett, JJ., dissent ing, in Sanders v. Pottlitzer Bros. Fruit Co. (N. Y. App.), 39 N. E. Rep. 75. Smith v. O'Donnell (Com. Pl.), 36 N. Y. Supp. 480. Kirwan v. Byrne (Com. Pl. N. Y.), 29 N. Y. Supp. 287; but see Bucki . Seitz (Fla.), 21 So Rep. 576. • Pratt v. Hudson River Railroad Co., 21 N. Y. 305 [1860]. |