§ 2.10 What Constitutes a Written Contract-There May Be a Series of Communications

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The term ''written contract'' has no single and uniform meaning, no one ''correct'' meaning. In this it is no different from all other terms that are in common use in any language and in any country. The meaning that is intended to be conveyed by such a term, when used by a party to a transaction or by a legislature in a statute, must be determined by the usual processes of interpretation in the light of all the relevant surrounding circumstances. The same is true as to the meaning that is in fact conveyed to one who hears or reads it. When such meanings, so determined, are at variance, it depends upon our opinions of policy and justice whether legal effect shall be given to any one of them or none. Often the choice will depend primarily upon the purpose with which the term is used, whether by contracting parties or by legislatures. The considerations affecting the determination are very different, when the issue is as to the existence of a prerequisite to obligation, from those that are decisive when the application of the so-called ''parol evidence rule'' or of some specific ''statute of limitations'' is in question.n1 The question whether a written contract has been made receives answers that vary with the purpose for which it is asked and with the effect that will be produced.

As indicated by this example, the term ''written contract'' is used in a variety of contexts. Some statutes of limitation provide for a longer period within which a claimant may commence an action on a ''written contract'' than on a contract that is not written.n2 Secondly, various statutory provisions assume or require that a contract be in writing.n3 Third, the parol evidence rule gives special protection to the terms of a written contract.n4 Fourth, certain statutes allow certain kinds of promises to be enforceable without consideration if the contract is in writing.n5 Fifth, parties who have reached preliminary agreement may themselves agree that they will not be bound until a written contract is prepared and signed.n6 Sixth, the parties may have made a contract with a provision that it cannot be modified or rescinded except in writing: such a provision is given binding force by some statutes.n7 Sometimes confused with questions arising under these six situations are questions arising under statutes such as the statute of frauds that require that there be written evidence of a contract of a specified kind: such written evidence may exist although there is no written contract.

It is often said that a contract is not a ''written contract'' if parol evidence is necessary to establish any one of the terms actually agreed upon as a part of it.n8 It is certainly true in such a case that a part of the contract is not in writing; and yet the ''parol evidence rule'' has often been said to exclude evidence of the unwritten term. If in fact the court enforces the ''contract'' in total disregard of the unwritten term, there is a ''written contract'' that is being enforced, one of which the unwritten term is not a part. The inconsistency and injustice that may be involved in such cases are considered in the chapter on the Parol Evidence Rule. The original statute of frauds required a ''note or memorandum'' for the enforcement of certain classes of contracts. It did not require a ''written contract,'' nor do similar modern enactments.n9 No statute, neither the statute of frauds nor any other that serves an evidentiary purpose, should be held to prevent enforcement if the evidential writings are sufficient to attain the purpose of the statute in preventing fraud and error, even though some supplementary parol evidence is necessary.n10

If a written draft of an agreement is prepared, submitted to both parties, and each of them expresses unconditional assent thereto, there is a written contract.n11 So far as the common law is concerned, the making of a valid contract requires no writing whatever; and even if there is a writing, there need be no signatures unless the parties have made them necessary at the time they express their assent and as a condition modifying that assent.n12 Statutes of limitation often use the term ''contract in writing'' in prescribing a time limit for enforcing actions. A shorter time limit is sometimes prescribed for enforcement of a contract that is not in writing than for the enforcement of a ''written contract'' (or a contract under seal). The application of the statute may be difficult for the reason that in the case before the court there may be one or more written instruments the character of which may be in dispute and difficult to determine. A plaintiff who insists that an action is not barred until the expiration of the longer time limit is asserting that the contract is a ''contract in writing.'' The plaintiff is not denying its genuineness or its execution and delivery or the fact of assent to it as such. The defendant may deny all of these or merely deny that the documents presented by the plaintiff were ever assented to as operative instruments.n13 The application of a statute of limitations that distinguishes between written and unwritten contracts may turn upon descriptive words or definitions in the statute itself, but, if it contains no specific language that determines the issue, conflicting decisions are to be expected.n14

Even if two parties have expressly agreed that they shall not be bound by contract until a written document has been signed and delivered, this does not deprive them of the power to bind themselves by a subsequent oral contract. All that is necessary to eliminate the agreement requiring a writing is to make a new agreement not to require one or to make a new agreement clearly expressing the intention to be legally bound. Of course, the first agreement that a writing shall be necessary is a fact to be given some evidential weight in interpreting the subsequent expressions of the parties. It is not lightly to be discarded in determining whether the parties have later agreed to be bound without a writing.

An unsigned agreement, all the terms of which are embodied in a writing, unconditionally assented to by both parties, is a written contract. It is true that the fact that they have expressed unconditional assent must be proved by testimony of their unwritten expressions; it is not evidenced by the writing itself. But the same is true of a writing that has been signed by both parties. Writing does not make a contract, not even if the writing bears both signatures. The fact that someone has signed an apparently complete expression of the terms of a contract is indeed strong evidence of that party's expression of unconditional assent.n15

In the absence of all other evidence to the contrary, it is almost enough; but if there is other evidence to the contrary, the signature itself is not conclusive. Even if the writing is both signed and sealed, there may be no contract without delivery, and delivery, which is itself an expression of intention to give the document immediate binding effect, must always be proved by evidence extrinsic of the document itself. The necessity of such extrinsic evidence does not prevent the document from being a contract under seal; nor does the necessity of extrinsic evidence of unconditional assent prevent an unsigned document from being a written contract.n16 A memorandum of agreement, signed by one party and acted on by both is a binding written contract.n17

The fact that an offer is fully written out and signed by the offeror does not establish a contract. Until acceptance by the offeree, such an offer remains revocable.n18 Unless the offer prescribes the contrary, however, such an offer can be accepted by an oral communication; and when so accepted, the contract may properly be described as a written contract.n19 If the contract so made is within the statute of frauds, it is not enforceable against the one who has not signed.n20

In the process of making a contract, either orally or in writing, the parties may express their assent piecemeal, agreeing upon individual terms as the negotiation proceeds. These expressions are merely tentative and are inoperative in themselves; there is no contract until the parties close their negotiation and express assent to all the terms of the transaction together.n21 In giving expression to such a final assent, however, the parties frequently do not restate the various terms that they have previously tentatively agreed upon. Those terms may be either formally or tacitly incorporated by reference. This is especially likely to be true when the negotiation has been conducted by letter or telegram. In such cases, in determining the existence of a contract and its terms, the entire correspondence must be searched and interpreted. There must be found a final closing of the deal, each party indicating by an overt expression that the process of negotiation is complete and that he or she now assents to all the terms already tentatively adopted. The correspondence must show what those terms are. That they were so adopted by both parties must be established. Here, the proof of the contract consists chiefly in a series of documents, more or less informal in character, no one of which would be legally operative standing alone. This proof is written proof, and the contract may properly be described as a written contract, even though there are several writings that the parties have never physically attached to each other.n22

When multiple parties are found to have intended to reduce their agreement to a single complete writing and not to be bound by their antecedent communications, it will usually be found also that they intend not to be bound until the writing has been signed by every one of them.n23 They may express the contrary intention, however, and if they do so, the lack of one or more signatures does not prevent consummation of a contract. They may bind themselves without any signatures whatever. One party may make a signed written offer, expecting no more than an oral acceptance; or there may be a signed written acceptance of an oral offer.n24 Further, it may be clearly understood that all those who sign shall be bound by contract, even though others to whom the document is presented may fail to sign or assent.n25 Thus, in a composition with creditors, it may be expressly provided that all creditors who sign shall be bound, even though others do not; or they may make their obligation conditional upon the signatures of a specified proportion, in number of creditors or in total amount of indebtedness.

If parties to an agreement who have signed, or otherwise expressed their assent, proceed to act under it, knowing that others on whose assent the contract was conditional have not signed, their action may be interpreted as an assent to a contract that is not thus conditional.n26 It is evidence of a new and different agreement to this extent.

A signature may be operative without respect to its position on the document, although it is customary to sign at the end of the writing and beneath the written provisions. There must be satisfactory evidence that the signature was affixed with intent to authenticate and express assent to the entire document.n27

One who signs a writing which purports to be a contract does an act that is strong evidence of one's intention to make oneself a party thereto bound as a promisor and entitled as a promise. Even if one does not so intend, the principles of estoppel may bind notwithstanding. It should not be so held, however, if the other parties know or have reason to know that such is not the intention. If one signs the contract and accompanies the signature by such descriptive words as ''agent'' or ''trustee,'' the person so signing may nonetheless be held to have signed in a personal capacity as a party to the contract.n28 However, it should not be so held if the other parties knew better or if the instrument as a whole indicates the contrary. The guidance given by Uniform Commercial Code § 3-403 and its official comments should be consulted on the question of the agent's liability in any case in which there is a signature and the person signing claims to have signed solely in a representative capacity.n29

This section is quoted by the court in Simmons & Simmons Constr. Co. v. Rea, 155 Tex. 353, 286 S.W.2d 415 (1956) . The court reviews the evidence and holds that it shows that the defendant clearly indicated an intention not to be bound until both parties signed and a bond executed. All the terms had been agreed upon and a draft prepared ready for signatures. The court states that it does not say that, if the question had been submitted to a jury and a verdict rendered for the plaintiff, it would or would not have set aside the verdict. The opinion is instructive.

A document is a ''written contract'' if it has been assented to by the necessary parties as expressing fully and accurately the terms upon which they have agreed. Such a document was described by Wigmore as an ''integration'' of the agreement. The question whether they have so agreed is a question of fact, one that the document itself cannot answer; extrinsic evidence of their assent to it as such is always necessary, even though the document bears the signatures of the parties. The existence of such a signed document may indeed be evidential of assent to it as an ''integration,'' its weight as such evidence depending upon the character and terms of the writing that it contains and upon its physical appearance. But it is never conclusive. The ''parol evidence rule,'' cited in thousands of opinions, has been stated in various forms, with many ''exceptions.'' It was once always regarded as an exclusionary ''rule of evidence'' and is still treated in some works on Evidence; but it is now being generally described as a ''rule of substantive law.'' However worded, and however regarded, it excludes no evidence and has no legal operation until the fact of assent to the document as an accurate ''integration,'' has been established. Therefore, evidence that such assent, by either or by both of the parties, never was expressed, is not rendered inadmissible by anybody's ''parol evidence rule.'' Such evidence, whether of assent or non-assent, is necessarily ''extrinsic'' although not necessarily oral. No inert instrument is proof of its own genuineness and its execution and delivery by the parties. It is true that judicial opinions often state that completeness and accuracy will be ''presumed''; but this is always in a case in which genuineness, execution and delivery have not been denied. If a case holding otherwise can be found, denying all opportunity to disprove the fact of non-assent, it is inconsistent with the court's own previous decisions and is a denial of justice to one or both of the parties. There is no contract at all, in spite of the existence of a signed formal writing, if the parties say at the time that it is not so intended; and there is no completely written contract if the parties intentionally misstate the consideration, or leave out a part of it, in order to deceive third persons or for any other reason.n30

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FOOTNOTES:

(n1)Footnote 1. The question whether there is such a ''contract in writing'' or ''integration'' as to make the so-called ''parol evidence rule'' applicable is dealt with in § 588 in Chapter 26, Parol Evidence Rule.

A written assignment of a claim against a third party contains no promise by the assignor to the assignee that the money will be paid. In such case, an action by the assignee against the assignor, based on nonpayment of the claim, is not an action on a written contract; and the statute of limitations respecting unwritten contracts is applicable. Grant v. Williams, 158 Neb. 107, 62 N.W.2d 532 (1954) . To constitute a promise in writing the promisor must assent to written promissory words.

(n2)Footnote 2. See Annot., What Constitutes a Contract in Writing Within the Statute of Limitations, 3 A.L.R.2d 809 (1949).

(n3)Footnote 3. For example, the Automobile Dealers' Day-in-Court Act (discussed herein at § 1266) defines ''franchise'' as ''the written agreement or contract between any automobile manufacturer engaged in commerce and any automobile dealer which purports to fix the legal rights and liabilities of the parties to such agreement or contract.'' In a particularly astonishing decision, the court ruled that a dealer who had for some time been an authorized dealer was not under the protection of the Act because the 292 letters and other documents submitted by the dealer did not amount to ''written agreement or contract.'' Reliable Volkswagen Sales & Service Co. v. World-Wide Auto. Corp., 216 F.Supp. 141, 1963 Trade Cas. (CCH) P70751 (D.N.J.1963) . Compare Kavanaugh v. Ford Motor Co., 353 F.2d 710, 1965 Trade Cas. (CCH) P71607 (7th Cir.1965) .

McKinney's-N.Y.Pers.Prop.L. § 405, a section of the Retail Instalment Sales Act, provides: ''The seller shall deliver to the buyer, or mail to him at his address shown on the contract or obligation, an executed copy thereof.'' This assumes that such contracts are in writing.

(n4)Footnote 4. See Ch. 26, The Parol Evidence Rule.

(n5)Footnote 5. Pennsylvania is the only state which has on its books the Model (formerly Uniform) Written Obligations Act. 33 Purdon's Statutes Ann. § 6-8. This provides: ''A written release or promise, hereafter made and signed by the person releasing or promising, shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound.''

New York and Michigan have substantially identical legislative schemes whereby certain promises and discharges are binding without consideration if they are in writing and signed by the promisor or releasor. See William J. Lloyd, Consideration and the Seal in New York-an Unsatisfactory Legislative Program, 46 Colum.L.Rev. 1 (1946); Comment, 46 Mich.L.Rev. 58 (1947).

The combined effect of two provisions of the California Civil Code is to allow the modification without consideration of written contracts by a writing. West's Ann.Calif.Civil Code § 1697, 1698.

Note that these and similar statutes elsewhere require a writing not solely for evidentiary purposes but as a demonstration of an intention expressed after due deliberation. Consequently in these cases it has been held that the promise or discharge must itself be in writing; a written memorandum that would satisfy the statute of frauds is insufficient. DFI Communications, Inc. v. Greenberg, 41 N.Y.2d 602, 394 N.Y.S.2d 586, 363 N.E.2d 312 (1977) , mot. denied, 41 N.Y.2d 1017, 395 N.Y.S.2d 639, 363 N.E.2d 1384 .

(n6)Footnote 6. See § 2.8 and 2.9 above.

(n7)Footnote 7. There are statutes providing that when a contract expressly provides in writing that it cannot be modified or rescinded except by an agreement that is in itself written and signed, modifications and amendments that are not thus evidenced are inoperative. Uniform Commercial Code § 2-209 (with certain limitations); McKinney's-N.Y. Gen'l Obl.L. § 15-301.

(n8)Footnote 8. In Wielander v. Henich, 64 Ill.App.2d 228, 211 N.E.2d 775 (1965) , it was held that a written guarantee of roofing work which omits the name of the obligee, which identifies the property as ''1417 So. Harlem Ave.'' whereas at the time of suit the holder of the guarantee lives at 1415 So. Harlem Ave., and which is undated, is not a written contract for purposes of the statute of limitations because parol evidence would be required to show that the holder of the guarantee was indeed the obligee, that the property at 1417 was owned by the obligee and that the suit was brought within the statutory period for written contracts.

In Distefano v. Hall, 218 Cal.App.2d 657, 32 Cal.Rptr. 770 (1963) , an instrument, duly signed, purporting to be a building contract, consisted of detailed typewritten provisions followed by a handwritten addendum that nullified preceding typed provisions that were to the contrary. The testimony was in conflict as to whether one of the typed provisions had been cancelled. It was a question of fact for the jury to determine what were the terms that had actually been assented to. The contract, as thus determined on the basis of extrinsic evidence, would be a ''written contract.'' The case is noted at several points in this treatise.

In Western Machinery Co. v. Consolidated Uranium Mines, Inc., 247 F.2d 685 (10th Cir.1957) , an oral agreement for services was consummated by telephone. This was confirmed by letter, assented to by both parties; but the letter omitted by mistake a provision for a 10 per cent engineering fee. The court said that on these facts a suit could not be maintained on the theory that there was a ''written contract,'' for the reason that ''the letter did not contain all of the agreement between the parties.'' Query, whether the omitted provision might not have been added by a decree for reformation, thus making the contract a ''written contract.''

In Purdin v. Jenkins, 337 S.W.2d 418 (Tex.Civ.App.1960) , a written contract for the building of a house provided for certain brick floors. Later by oral agreement Mexican tiles were substituted for brick. The court held that this oral alteration caused the entire contract to fall within the ''parol'' category and to make applicable the statute of limitations on parol contracts.

If the terms of a contract are partly oral and partly written, the statute of limitations is the one applicable to oral contracts. Spratler v. Georgia Art Supply Co., 295 F.2d 379 (5th Cir.1961) .

(n9)Footnote 9. In Crowley v. Modern Faucet Mfg. Co., 44 Cal.2d 321, 282 P.2d 33 (1955) , the court distinguishes between a written contract and an oral contract evidenced by a written memorandum. It said: ''The written document [a letter] is referred to only as a memorandum, and only one party is alleged to have signed it. A written memorandum is not identical with a written contract; it is merely evidence of it and usually does not contain all of the terms.''

(n10)Footnote 10. In Sandobal v. Armour & Co., 429 F.2d 249, 256, 74 L.R.R.M. 2781, 75 L.R.R.M. 2027 (8th Cir.1970) , an employee was involved in a disturbance with a fellow worker. The latter then was fired. The former, the plaintiff, was suspended and later fired. The plaintiff had a right under a union contract not to be fired except for cause. Although plaintiff's initial hiring was oral, the union contract was in writing. The court held that the longer statute of limitations for written contracts applied. Although plaintiff's contract rights were partly oral and partly in a writing signed by others, the right at issue, not to be fired except for cause, was in writing and met the evidential purpose of the longer period of limitations.

(n11)Footnote 11. In Service Employees Int'l, Local 55 v. Cedar Rapids Community School Dist., 222 N.W.2d 403 (Iowa 1974) , the court cited this section, but the result is puzzling. Why was the assent of the school board not a manifestation of assent by the school district? Perhaps the board's agreement to adopt the result of negotiations as a ''working agreement'' was intended to be merely a tentative and temporary acceptance. The opinion does not communicate the basis of the decision.

(n12)Footnote 12.

U.S. - Hardwood Package Co. v. Courtney Co., 253 Fed. 929 (4th Cir.1918) .

Ind. - Seco Chemicals, Inc. v. Stewart, 169 Ind.App. 624, 349 N.E.2d 733 (1976) .

Iowa - Reynolds v. Johnson, 199 Iowa 1055, 202 N.W. 881 (1925) , assumption of mortgage by grantee, though grantee did not sign the deed.

Nev. -In Pravorne v. McLeod, 79 Nev. 341, 383 P.2d 855 (1963) , a detailed offer and escrow instructions were sent to the offeree for acceptance, but were not signed by the offeror. This was an operative offer creating a power to close the deal by acceptance.

Pa. - Daniel Adams Associates, Inc. v. Rimbach Pub., Inc., 360 Pa.Super. 72, 519 A.2d 997 (1987) , appeal denied, 517 Pa. 597, 535 A.2d 1056 .

Tex. - Centennial Royalty Co. v. Byrd & Foster Drilling, Inc., 464 S.W.2d 420 (Tex.Civ.App.1971) .

Wis. - Chudnow Constr. Corp. v. Commercial Discount Corp., 48 Wis.2d 653, 180 N.W.2d 697 (1970) . The court points out that the common law does not require a signature. While the parties by agreement, or an offeror by the terms of the offer can make a signature a condition precedent to the creation of a contract, this had not happened here.

In Woodbury v. United States, 192 F.Supp. 924 (D.C.Or.1961) , aff'd, 313 F.2d 291 (9th Cir.1963) , the court said: ''In my opinion the fact that the completion agreement was not signed by Lender [a federal agency] is of no significance. Contractual liability under a written contract may be assumed without signing it.'' [Citing cases] The court held that although the federal agency assented to and was bound by the written instrument, its breach thereof did not make it liable as for a tort under the Federal Tort Claims Act.

(n13)Footnote 13. This section is cited in Amen v. Merced County Title Co., 58 Cal.2d 528, 25 Cal.Rptr. 65, 375 P.2d 33 (1962) . The defendant, as escrow holder received and assented to the escrow instructions signed by the parties to the contract of sale but not by the defendant. Those instructions directed the defendant to pay certain debts out of money received from the buyer. It failed to do so and also failed to notify the buyer (plaintiff) that a tax claim existed. The court held that the defendant's failure was the breach of a written contract, making a four-year statute of limitations applicable. That statute said nothing about signature. The defendant's assent and promise to perform as directed were implied from its conduct.

In Feinberg v. Intrastate Escrow Corp., 25 Cal.Rptr. 499 (1962) , subsequent history omitted, Kennedy was indebted to the plaintiff and desired to obtain a loan from a lending company. K. deposited securities with defendant giving written escrow instructions signed by herself directing the defendant on closing of the loan to pay out of the proceeds the amount due the plaintiff. The defendant accepted the escrow but did not sign the instructions. The plaintiff, not trusting K., was about to attach the securities, whereupon the defendant requested him not to attach and promised to pay the debt in accordance with the escrow instructions. Later the loan was closed and the proceeds all paid to K., who decamped. After getting judgment against K., the plaintiff brought this action for breach of the defendant's contract to pay the plaintiff. The court held that the defendant's contract was not a ''written contract'' and that the action was barred by a two-year statute of limitations. The defendant's promise direct to plaintiff in consideration of the plaintiff's forbearance to attach was clearly an oral contract; but the defendant's acceptance of the escrow instructions was certainly a promise to pay the plaintiff as directed therein, and the plaintiff was clearly a ''creditor beneficiary'' of that promise (not a mere ''incidental'' one). There are decisions that the defendant's signature would not be required to make the escrow instructions a ''written contract,'' not only of K. but also of the defendant.

In Stanley v. Chastek, 34 Ill.App.2d 220, 180 N.E.2d 512 (1962) , the plaintiff sued an orthodontist for damages for breach of a contract to straighten her teeth, alleging a written contract in possession of the defendant. The latter produced a document entitled ''Professional Budget Plan'' (a copyrighted form), signed by both parties. It provided for ''professional services'' by the ''Doctor,'' more particularly described in the patient's ''office record which is hereby made a part of this Plan by incorporation.'' It specified the total price to be paid and the schedule of installments. The office record contained nothing more definite than ''Impression, X-ray photo''; ''Construction of appliance''; and ''Adjustment''; with various dates. The court held that the documents thus produced constituted a ''written contract'' and that the 10-year period of limitation fixed by statute was applicable. They were a ''written contract'' within the statutory meaning, even though accompanying parol evidence was necessary to prove surrounding circumstances, the facts of delivery and acceptance of the writing, the exact character of the ''services'' (teeth straightening), and the implied warranties that the work and materials would be good and competent.

(n14)Footnote 14. In order that the Illinois statute of limitations applicable to written contracts may be applicable, the writing must show who the parties are and must contain all the terms of agreement. Kordewick v. Indiana Harbor Belt R. Co., 157 F.2d 753 (7th Cir.1946) , cert. denied, 329 U.S. 806 .

In Evans v. Yakima Valley Grape Growers Ass'n, 52 Wash.2d 634, 328 P.2d 671, 676, 681 (1958) , the plaintiff sued for commissions due under an oral contract of employment. The court held, 5 judges to 4, that the suit was barred by a 3-year statute of limitations. The terms of the employment were fully stated in the minutes of the defendant corporation and the commissions due appeared in a written ''audit'' report. The court held that these writings constituted a mere ''ex parte memorandum'' and not a ''written contract'' to which a 6-year limit was applicable. The dissenting opinion of four judges asserted that the statute was so worded and had been applied by the court so as to make the 6-year statute applicable on these facts. A part of this section was quoted in the dissenting opinion.

The holder of a written option to buy land has made no promise to buy the land until the power is exercised. If the notice of intention to buy in accordance with the written option is oral, there is no written promise by the buyer and the statute of limitations as to unwritten promises is applicable. Lively v. Tabor, 341 Mo. 352, 107 S.W.2d 62 (1937) .

On the other hand, it was held in McCormick v. Taft, 61 Ohio App. 200, 22 N.E.2d 510 (1938) , that the statutory period for written contracts was applicable, even though neither party had affixed a signature. They had reduced the terms of their agreement to writing and orally assented to that writing as the complete expression thereof.

(n15)Footnote 15. The representative of a law firm who signs a proposed contract, admitting that he has read it, has unconditionally manifested assent to its terms. Chemical Bank v. Rinden Professional Ass'n, 126 N.H. 688, 498 A.2d 706 (1985) .

(n16)Footnote 16. In the following cases, the action was held to be on a written contract:

U.S. - New York Cent. R. Co. v. Mutual Orange Distributors, 251 Fed. 230 (9th Cir.1918) , bill of lading, California statute.

Ark. - Sims v. Miller, 151 Ark. 377, 236 S.W. 828 (1922) , letters and telegrams.

Fla. - McGill v. Cockrell, 88 Fla. 54, 101 So. 199 (1924) , letters of employment.

Kan. - Fey v. Loose-Wiles Biscuit Co., 147 Kan. 31, 75 P.2d 810 (1937) , a letter.

Ky. - Lyons v. Moise, 298 Ky. 858, 183 S.W.2d 493 (1944) , although the amount promised to be paid was not in the writing.

Miss. - W.T. Raleigh Co. v. Fortenberry, 138 Miss. 410, 103 So. 227 (1925) , written guaranty of ''all indebtedness incurred''.

Ohio - Cleveland Trust Co. v. Elbrecht, 137 Ohio St. 358, 30 N.E.2d 433 (1940) , same.

Okl. - First Nat. Bank v. Raymer, 180 Okla. 529, 71 P.2d 485 (1937) , deed delivered to but not signed by grantee. In Edwards v. Petross, 381 P.2d 1008 (Okl.1963) , a written contract for the sale of land provided for a deposit of $1,000 with Petross, the broker. Below the signatures of the seller and the buyer was a paragraph, signed only by the seller in which the seller agreed to pay the broker a commission on closing, and to pay the broker one half of the down payment in case the buyer failed to close. In this action by the seller against the broker for half of the down payment, the court held that the action was on a written contract, even though it was not signed by the defendant broker, so that the two-year statute of limitations was not applicable. See also § 233.

Tex. - Houston & T.C.R. Co. v. Southern Architectural Cement Co., 112 Tex. 139, 245 S.W. 644 (1922) , bill of lading, Texas statute; Kerby v. Collin County, 212 S.W.2d 494, 3 A.L.R.2d 804 (Tex.Civ.App.1948) , minutes of the commissioners' court showing plaintiff's appointment, acceptance, and qualification.

Vt. - Norton & Lamphere Constr. Co. v. Blow & Cote, Inc., 123 Vt. 130, 183 A.2d 230 (1962) , stated under § 2.9 n. 6.

Wash. - W.T. Rawleigh Co. v. Graham, 4 Wash.2d 407, 103 P.2d 1076, 129 A.L.R. 596 (1940) , contract of guaranty a written contract though amount of goods sold in reliance on it had to be proved by other evidence.

In Tow v. Miners Memorial Hospital Ass'n, 305 F.2d 73 (4th Cir.1962) , after some preliminary negotiation, the Hospital wrote to Dr. Tow in New York a letter stating specifically the tenure of his employment. Dr. Tow did not sign this letter; but he expressed his assent to the employment and went to work at the hospital. He was bound by the provisions of a written contract.

In Brandt v. Beebe, 332 S.W.2d 463 (Mo.App.1959) , the defendant was held bound by the terms of a written contract between a Union and a number of employers, although he did not sign it. He knew all of its terms and expressly agreed thereto.

In Rubino v. Pray, 187 Cal.App.2d 495, 9 Cal.Rptr. 651 (1960) , a writing was prepared for the sale of a business. The purchaser made some interlineations on the first page and signed his name at the bottom of that page. The trial court's finding, as a matter of fact, that the purchaser had assented to the entire writing and that it was a written contract (integration) was affirmed on appeal. See similar notes on this case under § 573; § 588.

In Harrison v. Facade, Inc., 355 S.W.2d 543 (Tex.Civ.App.1962) , the defendant ordered goods to be shipped, and requested that invoices be sent to him. The plaintiff shipped the goods and sent signed invoices in which the prices and the place of payment were stated. The defendant accepted the goods and was silent as to the invoices. On these facts, the court held that there was a ''written contract,'' the invoices being a part thereof even though not signed by the defendant. The place of payment was determined by the invoice; and this determined the proper venue of suit.

A contract is not prevented from being a ''written contract'' by the fact that extrinsic evidence of surrounding circumstances and the subsequent conduct of the parties is necessary to interpret it and to determine its legal effect. Harlow Pub. Co. v. Patrick, 181 Okl. 83, 72 P.2d 511 (1937) .

See also the following cases:

U.S. - Hardwood Package Co. v. Courtney Co., 253 Fed. 929 (4th Cir.1918) .

Idaho - Gardiner v. Gardiner, 36 Idaho 664, 214 P. 219 (1923) , writing signed by one, orally assented to by the other.

Ill. - Central Trust Co. v. John M. Smyth Merchandise Co., 222 Ill.App. 347 (1921) ; Formella v. Durand & Kasper Co., 211 Ill.App. 414 (1918) , party not signing assented by acting under the agreement.

La. - Saunders v. Bolden, 155 LA. 136, 98 So. 867 (1924) .

Nev. - U.S. Fidelity & Guaranty Co. v. Reno Electrical Works, 43 Nev. 191, 183 P. 386 (1919) , subcontract for building work not signed.

N.C. - Oliver v. U.S. Fidelity & Guaranty Co., 176 N.C. 598, 97 S.E. 490 (1918) .

Okl. - First Nat. Bank v. Raymer, 180 Okl. 529, 71 P.2d 485 (1937) , a deed signed by grantor, accepted by grantee, is a contract in writing by the latter to pay the price.

Pa. - Hostetter v. Giffen, 268 Pa. 530, 112 A. 150 (1920) .

Tex. - Orbeck v. Alfei, 276 S.W. 947 (Tex.Civ.App.1925) .

Wash. - Hunter v. Byron, 92 Wash. 469, 159 P. 703 (1916) .

Wis. - Consolidated Papers, Inc. v. Dorr-Oliver, Inc., 153 Wis.2d 589, 451 N.W.2d 456 (App.1989) .

(n17)Footnote 17. Whitters & Sons, Inc. v. Karr, 180 N.W.2d 444 (Iowa 1970) .

(n18)Footnote 18. Where a vendor signs a writing promising to sell land on certain terms and hands it to the other party who says that the terms are all right but that he wishes his lawyer to look it over, the vendor can still revoke. Farago v. Burke, 262 N.Y. 229, 186 N.E. 683 (1933) ; Good v. Robinson, 85 Ohio App. 91, 88 N.E.2d 200 (1949) . On revocability of offers see § 2.18 below.

(n19)Footnote 19.

Idaho - Gardiner v. Gardiner, 36 Idaho 664, 214 P. 219 (1923) .

Mass. - Glackin v. Bennett, 226 Mass. 316, 115 N.E. 490 (1917) .

N.C. - Oliver v. U.S. Fidelity & Guaranty Co., 176 N.C. 598, 97 S.E. 490 (1918) .

Pa. - Hostetter v. Giffen, 268 Pa. 530, 112 A. 150 (1920) .

Tex. - Heusinger Hardware Co. v. First Nat. Bank, 367 S.W.2d 710 (Tex.Civ.App.1963) , writ ref. n.r.e. At the bank's request, the plaintiff depositor adopted a resolution stating the terms of its depositary contract and providing that checks drawn upon plaintiff's account must bear the signature of one of three named officers. Specimen signatures of the three officers were supplied. The bank cashed checks over a long period that were forgeries or not bearing any authorized signature, and plaintiff sued the bank for the cash withdrawn. The bank had accepted and filed the resolution without signing it. The court held that the action was on a ''contract in writing'' so that the four-year statute of limitations was applicable.

Wash. - Hunter v. Byron, 92 Wash. 469, 159 P. 703 (1916) .

Eng. -Hutton v. Watling [1948] 1 All E.R. 803 (C.A.).

(n20)Footnote 20. See § 523 below.

(n21)Footnote 21. In Dougherty v. Briggs, 231 Pa. 68, 75, 79 A. 924 (1911) , the court said: ''When it is sought to establish a contract by letters which pass between the parties, containing proposals, answers and counter proposals, it must be made to appear that at some point in the correspondence there was a definite and unqualified proposal by one party which was unconditionally and without qualification accepted by the other party.''

(n22)Footnote 22.

U.S. - Fire Ass'n of Philadelphia v. Allis Chalmers Mfg. Co., 129 F.Supp. 335 (N.D.Iowa 1955) , the contract for the manufacture and sale of electrical equipment consisted of a number of long communications over a long period of time, making changes in specifications and prices.

Ala. - Provident Life & Acci. Ins. Co. v. Pressley, 37 Ala. App. 153, 64 So.2d 618 (1953) , group insurance master policy and special certificate issued to insured.

Mo. - Burger v. City of Springfield, 323 S.W.2d 777 (Mo.1959) , City Council's Resolution authorizing an appointment and the plaintiff's letter of acceptance constituted a written contract satisfying a statutory requirement that city contracts be in writing.

N.M. - Keirsey v. Hirsch, 58 N.M. 18, 265 P.2d 346, 43 A.L.R.2d 929 (1954) , quoting this section, writings satisfied requirements of statute of frauds, noted § 3.13, 498.

Or. - Spencer v. Bales, 108 Or. 339, 216 P. 746 (1923) .

S.D. - Norbeck & Nicholson Co. v. Nielson, 39 S.D. 410, 164 N.W. 1033 (1917) .

Vt. - Purrington v. Grimm, 83 Vt. 466, 76 A. 158 (1910) .

In Jordan v. Patterson, 67 Conn. 473, 35 A. 521 (1896) , the plaintiff sent, during the course of a month, 14 written orders for specified goods, giving terms of shipment and prices. After having received all of them, the defendant manufacturer wrote on letter, saying: ''We are in receipt of the following contracts for which we thank you. (The 14 orders were then described by their numbers and amounts.) Yours truly, H.B. Odell, Mgr.'' The court held that in the light of the undisputed surrounding circumstances these 15 letters constituted a single written contract.

''Objection is made that there is no single instrument in writing constituting a contract; but it is well settled that a contract may result from a series of letters determining the various matters, step by step. It is not important that all the terms of the agreement be set out in one instrument.'' Barrett v. Book Cliff R. Co., 70 Colo. 440, 201 P. 1026 (1921) .

In C.W. Hull Co. v. Marquette Cement Mfg. Co., 208 Fed. 260, 264 (8th Cir.1913) , the court said: ''Counsel for appellant builds up an imposing argument in this way: He starts with the basic principle that in order to create a contract there must be a definite proposal on one side and an unconditional acceptance on the other. He then takes up the letters and shows that each offer was met by some new term and, applying his rule, lays aside each letter as a nullity because it failed to produce a complete agreement. Parties, however, have the right to reach their agreements in their own way. They may settle upon one term at a time, and, if it is reasonably clear that this has been their method, then, when the last term is agreed upon, their contract is just as complete and being as if all its terms had been settled by a single act. Here the parties first agree upon territory, then upon quantity, then upon general features, such as terms of payment, return of sacks, etc., then upon the amount of the monthly deliveries, and finally upon the price. At every stage, as the negotiations advance, it seems clear to us that the parties carry forward the terms as to which they have already agreed.'' See, also, Kehlor Flour Mills Co. v. Linden & Lindstroem, 230 Mass. 119, 119 N.E. 698 (1918) .

(n23)Footnote 23.

Ala. - McConnon & Co. v. Kirby, 211 Ala. 440, 100 So. 764 (1924) .

Del. - Willard F. Deputy & Co. v. Hastings, 32 Del. 345, 123 A. 33 (1923) .

Ga. - Peacock v. Horne, 159 Ga. 707, 126 S.E. 813 (1925) .

Ill. - Beall v. Jones, 211 Ill.App. 336 (1918) .

Ind. - Hess v. Lackey, 191 Ind. 107, 132 N.E. 257 (1921) .

Ky. - Shrader v. Porter, 210 Ky. 429, 276 S.W. 115 (1925) .

Mo. - Smith v. Worsham, 552 S.W.2d 367 (Mo.App.1977) . A contract for the sale of real property recited it was made between ''Vendees'' (H & W) and ''Vendor.'' Elsewhere the agreement referred to ''Buyers.'' H gave a $5,000 check for the down payment. When H informed his wife of the deal, she refused to sign. The court thought the terms ''Vendees'' and ''Buyers'' indicated an intent that in order for a contract to be made both H and W must agree to be bound. Parol evidence was received to demonstrate that this result was intended.

N.Y. - Spitalnik v. Springer, 59 N.Y.2d 112, 463 N.Y.S.2d 750, 450 N.E.2d 670 (1983) , rearg. denied, 60 N.Y.2d 702 . A purported exercise of an option by one of three multiple offerees is not a good acceptance.

Or. - Meister v. Arden-Mayfair, Inc., 276 Or. 517, 555 P.2d 923 (1976) . An offer made jointly to a group of six offerees cannot be accepted by two of them.

Tenn. - Lebovitz v. Porter, 36 Tenn.App. 149, 252 S.W.2d 144 (1952) .

W.Va. - Ely v. Phillips, 89 W.Va. 580, 109 S.E. 808 (1921) .

In Clayman v. Goodman Properties, Inc., 518 F.2d 1026 (D.C.Cir.1973) , two out of three joint optionees purported to exercise an option to purchase property on credit terms. The credit term was a reinforcing fact precluding the exercise of the option by two of the three optionees.

(n24)Footnote 24.

Ill. - Central Trust Co. v. John M. Smyth Merchandise Co., 222 Ill.App. 347 (1921) .

In Geary v. Great Atlantic & Pacific Tea Co., 366 Ill. 625, 10 N.E.2d 350 (1937) , a tenant wrote requesting a renewal of lease and enclosed duplicate copies of a formal lease duly filled out but not signed, requesting the landlord to sign and return. The landlord complied, in turn requesting the tenant to sign and return one copy. The tenant, before receiving the signed documents, mailed a withdrawal. There was a leasehold contract consummated, and it was all in writing. Signature of the tenant would add nothing legally operative; it would be only evidential.

This section is cited in Levinson v. Evening Star Newspaper Co., 138 F.Supp. 947 (D.D.C.1955) , holding that the parties had made a valid advertising contract in writing, even though it was signed by the plaintiff only.

(n25)Footnote 25.

Ga. - Peacock v. Horne, 159 Ga. 707, 126 S.E. 813 (1925) ,

(n26)Footnote 26.

Ill. - Rubendall v. Tarbox, 208 Ill. App. 376 (1917) .

(n27)Footnote 27.

Kan. - Gould v. Stewart, 111 Kan. 41, 206 P. 309 (1922) .

Mo. - McMickle v. Wabash R. Co., 209 S.W. 611 (Mo.App.1919) .

Or. - Pio v. John B. Gilliland Constr., Inc., 276 Or. 975, 560 P.2d 247 (1976) . The writing was an integration despite the placement of the employer's signature in a space other than the signature line.

This section is quoted by the dissenting judge in Moritt v. Fine, 242 F.2d 128 (5th Cir.1957) , as to the position of a signature on a document. See note on this case under § 525 herein.

If the signature is so placed that it does not apply to certain writing on the document, it may be apparent that this writing was not intended to be part of the agreement, so that it can be disregarded. Mazziotti v. Di Martino, 103 Conn. 491, 130 A. 844 (1925) . But the fact that part of the writing is below the signature does not in itself prevent it from being part of the contract. Junkin v. Hargrove & Arnold, 196 Iowa 1387, 195 N.W. 217 (1923) .

What constitutes a valid signature is often involved in cases affected by the statute of frauds. Reference is here made to § 520 in Chapter 23.

The name of a party is often typed just below the line prepared for the signature. Such a typed name is not a signature unless the typist was authorized so to sign for the party, or unless the typed name has been adopted as a signature by the party after it is on the paper. Little v. Union Oil Co., 73 Cal.App. 612, 238 P. 1066 (1925) ; Edward Thompson Co. v. Foy, 115 Miss. 848, 76 So. 685 (1917) .

(n28)Footnote 28. A case where the agent was held bound despite the word ''agent'' is Bissonnette v. Keyes, 319 Mass. 134, 64 N.E.2d 926 (1946) . The court itself suggests, ''Compare Am.Law Inst.Restatement: Agency, sec. 156, comment b, sec. 323(2) and comments a, b and d.'' See also other works on Agency.

This section is cited in Looman Realty Corp. v. Broad St. Natl. Bank of Trenton, 32 N.J. 461, 161 A.2d 247 (1960) , where an agent signed as agent, but without identifying his principal. The writing was held sufficient to satisfy the requirements of the statute of frauds. See notes under § 500.

It was also cited in Ritchie v. Mundon, 268 Or. 283, 520 P.2d 445 (1974) . Mundon refused to carry out an earnest money contract signed by Ritchie, an agent for a realty company. Ritchie sued for specific performance in his capacity as agent. The court properly entertained the suit, the court pointing out that the result could well have been different if Ritchie were sued.

(n29)Footnote 29. See EMX Leasing, Inc. v. Mahoney, 1988 Ohio App. LEXIS 4917 (Ohio App. 1988) and § 1.22 above.

See Zell v. American Seating Co., 138 F.2d 641 (2d Cir.1943) , rev'd, 322 U.S. 709 (1944) , where an agency ''contract'' provided for a salary of $1,000 per month, the parties intentionally omitting a percentage contingent fee in order to ''avoid any possible stigma which might result'' from its appearing in the writing. See further New York Trust Co. v. Island Oil & Transport Corporation, 34 F.2d 655 (2d Cir.1929) , cert. denied, 281 U.S. 724 (1930) ; Good v. Robinson, 85 Ohio App. 91, 88 N.E.2d 200 (1949) .

See discussion of the authorities in § 577, 581-583.

(n30)Footnote 30. A sham purported accord and satisfaction is non-binding, absent an estoppel as where a third party, such as a surety company, has relied upon it to its injury. United States v. Aetna Casualty & Surety Co., 480 F.2d 1095 (8th Cir.1973) .