man." That by the terms of said contract the defendants had agreed to deliver the said seed to the plaintiffs at said Logan City within a reasonable time. That ten days or less after the making of said contract was a reasonable time within which to deliver the said seed, and the said defendants could have delivered the same to plaintiffs within said time had they chosen to do so. That plaintiffs have at all times been able and willing to purchase from defendants said seed at the rate of 10 3-4 cents per pound as expressed in the memorandum of agreement. That plaintiffs at all times have been ready, willing and able to pay said defendants said 10 3-4 cents per pound for said seed upon the delivery and recleaning thereof. That said defendants have wholly failed and neglected to deliver said seed, or any part thereof. to plaintiff, and have refused to deliver said seed or any part thereof notwithstanding that "plaintiffs on the 7th day of November, 1903, and at divers other times prior thereto, demanded of the said defendants that they deliver the said seed in accordance with the terms of the said agreement between the said parties." That by reason of the failure to deliver said seed plaintiffs alleged that they have been damaged in the sum of $150, for which they demand judgment. Respondents demurred demurred to this complaint upon various grounds, but rely upon one ground only in their brief and argument, which is that the complaint does not state facts sufficient to constitute a cause of action. The court sustained the demurrer, and appellants electing to stand upon their complaint, a judgment dismissing the action was duly entered against them, from which judgment they appeal.

The only error assigned is that the court erred in sustaining the demurrer. Respondents' counsel contends that the complaint is insufficient, and that the ruling of the court is correct, and in support of his contention urges, in substance, the following reasons: (1) That the memorandum relied on is signed by respondents only, that no consideration is mentioned, and that the memorandum contains no promise on the part of appellants binding them. (2) That the appellants do not aver any consideration for the promise of re

spondents, that there is no allegation of the execution or delivery of said memorandum, nor that the appellants agreed to purchase the seed. (3) That the complaint discloses that the original statement was, in effect, an offer merely, and that the words "hereby sell" mean "hereby agree to sell." (4) That the alleged agreement is unilateral, binding appellants to nothing, leaving them free to pay for the seed or not, to accept the seed after tender to them or not, and to pay for the same at the rate mentioned or not; that the memorandum is merely an attempt to bind the sellers without imposing any liability on the purchasers. The foregoing, we think, fairly summarizes all the reasons counsel relies on to sustain the court's ruling.

For the purposes of this decision, we will assume the contention of counsel for respondent that the memorandum sued on is a mere offer to sell made by respondents to appellants. As an offer, therefore, it was subject to acceptance by appel lants, and was not intended as a complete contract, and would not be such unless and until acceptance. In this view it may not have been the intention of the parties that the memorandum should be signed by both, at its inception at least. When the offer was accepted, however, by appellants, it was thereby converted into a complete contract; the respondents being bound to sell and deliver the seed, and the appellants, by a promise the law implied from acceptance, bound to receive and pay therefor. True, appellants might have accepted the offer by writing such acceptance on the memorandum and have signed it, but such was not necessary to bind them. An oral acceptance was sufficient. (Browne on Stat. Frauds (2d Ed.), section 345-a.) The text, as there given, is sustained by an array of cases that need not be mentioned here. But, in any event, the signature of respondents was sufficient to satisfy the statute. The requirement to subscribe or sign the memorandum is purely statutory, and our statute requires that the party "to be charged" only need subscribe. This, it has often been held, applies to the vendor in case of sale. The weight of authority is clearly to this effect. (Browne on Stat. Frauds (2d Ed.), sections 365, 366; 29

A. & E. Enc. L. (2d Ed.), 858, and cases there cited.) This also disposes of the contention that the contract pleaded is not enforceable because it is unilateral. Upon acceptance by appellants of the offer, the law implied the necessary promise to receive and pay for the seed, and thus the promises, in law, became mutual and enforceable. This likewise answers the assertion that there was no consideration for respondents' promise to sell. The implied promise to pay was just as effective for this purpose as an expressed promise would have been. The act of acceptance of the offer makes it a contract mutually binding, providing it is otherwise sufficiently specific to authorize an enforcement of it. The case of Corbitt v. Salem Gaslight Co., 25 Am. Rep. 541, 6 Or. 405, cited by counsel for respondents, it is true, holds that both parties must sign, and that the memorandum in that case, being in the form of an offer to buy, was unilateral and not enforce. able. In the note to that case, at page 546 of 25 Am. Rep. (6 Or. 405), the reporter, however, shows that the case is against the great weight of authority, and such will be found to be the fact when the authorities are examined. Wilkinson' v. Heavenrich, 58 Mich. 574, 26 N. W. 139, 55 Am. Rep. 708, was a case in which it was sought to enforce an alleged agreement for personal services to be rendered for a term of years. The employer alone had signed the memorandum. The court held that inasmuch as the memorandum was not signed by the employee as well it did not bind him, and, as he was not bound, neither was bound. The case does not discuss the effect of an implied promise where one party ac cepts another's offer and enters upon a performance. The writer of the opinion, however, frankly conceded that the authorities are in conflict, and that the general rule is that where one accepts an offer in its entirety before it is withdrawn by the other, that the offer and acceptance may constitute an enforceable contract. The court in that case, however, seems to make an exception to offers in respect to personal services. The following cases, among others, however, do not agree with the Michigan case, supra, to the extent that both must sign in order to be binding: Carter White

Lead Co. v. Kinlin, 66 N. W. 536, 47 Neb. 409; Pennsylvania Ry. Co. v. Dolan, 32 N. E. 802, 6 Ind. App. 109, 51 Am. St. Rep. 289; Walsh v. Meyers, 66 N. W. 250, 92 Wiz. 397.

This contention of the respondents, therefore, cannot be sustained for the reasons: (1) That the memorandum constituted an offer merely and thus could be orally accepted; and (2) that the signature, in any event, of respondents was sufficient and binding, as upon acceptance all obligations became mutual. The contention that there is no express allegation in the complaint that the memorandum was delivered, and that for that reason the complaint is vulnerable to a general demurrer, is not tenable. The allegation that the agreement was "entered into," it has repeatedly been held, is sufficient to admit proof of delivery if denied. From such an averment a delivery may be implied. (Bliss on Code Pleading [2d Ed.], section 176; Prindle v. Caruthers, 15 N. Y. 425; Keteltas v. Myers, 19 N. Y. 231; Douthit v. Mohr, 116 Ind. 482, 18 N. E. 449.) It is further argued that the complaint is insufficient because there is no allegation that the offer made by respondents was accepted by appellants. If this be so, then, of course, there would be no enforceable contract, and hence no cause of action. As we view the complaint, this contention finds no support in the light of the allegations therein contained. The complaint starts out with the allegation that the parties at a certain time and place "entered into a certain written contract," and then sets forth a copy thereof. This is followed by allegations that appellants at all times were able, ready, and willing to pay respondents the price of the seed mentioned in the memorandum, and were at all times able, ready, and willing to perform all the conditions upon their part to be performed, and that they had demanded delivery of the seed, and that it had been refused. Having recourse to the memorandum set out in the complaint, it appears therefrom that the same was but an offer of sale. When appellants, therefore, upon a trial of the case, should offer the memorandum as proof of the agreement pleaded, the memorandum itself would not

establish this fact, but they must go further and prove an acceptance of the offer, or they must fail because they would not have proved a completed contract. There is nothing on the face of the memorandum to show that the minds of the parties had met in respect to its terms. This is the element that is lacking, and to supply it appellants must prove an acceptance of the offer as contained in the memorandum We have already seen that this may be done by parol. The question then is, can such a parol acceptance be proved under the allegations of the complaint as they now stand? We think it can for the following reasons: The allegation that the parties "entered into" means, if it means anything, that the minds of the parties met in respect to the terms and conditions set forth in the memorandum. If their minds did not meet, then they did not and could not have "entered into" the agreement. In order, therefore, to transmute the offer into an agreement, the acceptance of its terms was necessary, and such an acceptance would make it an agreement between the parties, and not only an offer of one. When, therefore, the allegation is made that the parties entered into an agreement or contract, it must be because both parties agreed to its terms. The statement, therefore, in the complaint, that they entered into the agreement is he ultimate fact, and this is established by proving an acceptance of the terms of the offer as made. If the pleader had alleged that the respondents had made the offer contained in the memorandum, setting it forth, and had also alleged that the offer was, at the time it was made, accepted as made, no one would, we think, doubt the sufficiency of the allegation to admit proof of acceptance for the purpose of showing a complete contract. What the pleader said, however, is precisely equivalent to this. And acceptance would simply make it an agreement, and "entered into" in law does neither more nor less than this. To say, therefore, that appellants may not prove an acceptance of the offer under the allegation, is to hold that they may not show a completed contract by entering into the same by acceptance. This would be tantamount to holding that they could not prove just what they have al32 Utah-9