The lease sent to the defendant was so executed as to bind the plaintiff. As soon as the defendant wrote back that it was "all right," the statute of frauds was satisfied, and it bound him. It was the evident intention of the broker when the lease was sent, that the defendant should sign, seal, and return it. But that he did not do so made it none the less a written memorandum of an agreement for the transfer of an interest in land signed by the owner; and the defendant's letter referring to it, and stating his assent to its terms, was a written memorandum of the same agreement, signed by the party to charge whom the action has been brought. These two papers, taken together, constituted a complete agreement in writing, duly executed by each party.
The defendant asks a correction of the finding, so that it may state explicitly that at the time when the oral agreement for a lease was made, it was mutually understood that a written lease should be executed by both the parties. Such a correction would be immaterial. The lease as executed by the plaintiff correctly set forth the agreement, and was in proper form. To carry out the understanding claimed, it only remained, therefore, for the defendant to execute it. If instead of this he signified his assent by signing another paper, such a deviation from the oral agreement could not vary the rights of the other party. The oral contract was now merged in the written one.
The complaint sets out a lease of a "house and lot." The proof showed a lease of a "fully furnished dwelling-house" on this lot. It is made a reason of appeal that this constituted a fatal variance. The only claims of this nature made before the trial court were "that the material allegations of the complaint did not aver the facts established by the evidence, or, in other words, that there was a material variance between allegations and proof." and that "the contract, if any, established by the proof was not the one set out in the complaint, but was one made at a different time in a different *Page 682 manner, and covering a materially different subject-matter." The language of these claims was too general to point with the necessary clearness to the subject of the variance; and under our rules of practice, can lay no foundation for an appeal. Questions of law which are made in a trial court must be "distinctly" stated; that is, so stated as to bring to the attention of the court the precise matter on which its decision is asked. To present the point now set up, the claim upon the trial should have been, not simply that there was a variance, or that the agreement alleged and that proved covered "a materially different subject-matter;" but that the lease alleged was of a house and lot, and that, if any, proved, of a fully furnished house and lot.
It is also contended that although the complaint alleges a hiring on May 10th, the proof was of a hiring on May 14th. The date alleged was immaterial. The real hiring was when the written lease was accepted by the defendant.
This acceptance merged all the prior negotiations in a completed contract, the terms of which neither party could thereafter vary without the consent of the other. This renders unimportant the exceptions taken to the judgment on account of prior or subsequent misunderstandings between the parties or those claiming to represent them.
Exceptions were taken to the finding because it does not formally state that certain written exhibits attached to it are made part of it. As to these it recites that they were received in evidence and marked Exhibit A, Exhibit B, etc., and that, in view of them, certain of the conclusions of fact and law were reached. This makes them a part of the finding as fully as if each were incorporated into it at length.
The finding states that the plaintiff is trustee for Mrs. Wiggin and others; and this is excepted to as a fact found without evidence. The record shows that the parties agreed upon the trial that he was trustee for her, and discloses no evidence that there were others to share in the benefits of the trust. This exception we might support if it were material. It is, however, important only as bearing on another exception to the finding because that does not state that *Page 683 the defendant claimed upon the trial that in estimating the damages allowance should be made for the continued use of the premises by Mrs. Wiggin, throughout so much of the term of the lease as had elapsed when the suit was brought. That exception is not well taken. The finding could not properly contain such a statement, for no such claim was in fact made upon the trial. It was first set up after the judgment, as a basis for a ground of appeal, and for that purpose it came too late.
There is no error.
In this opinion the other judges concurred.