The defendant's agent, Harris, had ample authority to enter into a contract with the plaintiffs for the payment of the assessment upon the real estate sold and conveyed by the defendant to them. According to the telegram sent by the defendant to Harris, the defendant agreed to abide by Harris' decision, as to the payment of the tax, and this agreement vested Harris with full power to pay by deducting the amount from the purchase-money when it was paid, or by making arrangements for its payment when it became due. The authority was not restricted to a present payment, but quite sufficient to authorize a payment at a future day, which would seem to be more consonant with the fact that it was not due at the time. The plaintiffs' evidence shows that the consideration money was paid by them with the express understanding that the defendant would pay the tax when it became due. Upon this condition the contract was executed, and the agreement of Harris can, in no sense, be construed as a refusal to pay the tax. When he took the money and delivered the deed he bound the defendant effectually to pay it when it became due, and the defendant cannot escape the liability.
It is said that all agreements preceding the delivery of the deed were merged in the same. This position is not a sound one, for while all prior agreements may be merged in the deed when executed, it by no means follows, that before the contract is fulfilled by a delivery and acceptance of the deed, that conditions may not be made which are obligatory upon the parties. The deed being ready for delivery, and the plaintiffs ready to pay the money, they had a perfect right to exact, as a condition of fulfilling the contract, that the defendant *Page 34 should pay the assessment when it became due. This is not contradicting a written agreement by parol, but evidence of the terms upon which the money was paid and the conveyance delivered. As the agreement in regard to the consideration was made after the deed was executed and before delivery, there could be no merger of this agreement in the deed. (Murdock v. Gilchrist,52 N.Y., 242.)
It is urged that this agreement by Harris was void within the statute of frauds, because it related to lands and was not in writing. The agreement was executed and carried into effect by the payment of the money, and hence the defendant became liable to pay the assessment. He had reaped the benefit of the contract, and he cannot thus claim that he is not bound to pay what he agreed to pay because the agreement was not in writing. The statute of frauds has no application to an executed agreement, and is no defence in an action brought to recover the money which the party is bound by the contract to pay. Nor can it be said, I think, that the agreement was partially in writing and partially by parol, and therefore it is inoperative. This is no doubt the true rule in cases where there is a contract which, by the statute of frauds, is required to be in writing. (Wright v.Weeks, 25 N.Y., 153.) But where there is no written contract, and, as in this case, where a deed was delivered and the money paid under an agreement to pay an assessment when due, neither the rule referred to nor the statute of frauds has any application.
As there was evidence upon which the jury might have found a valid agreement to pay the assessment when due, the court erred in nonsuiting the plaintiffs, and the judgment must be reversed and a new trial granted, with costs to abide the event.
All concur; except CHURCH, Ch. J., not voting.
Judgment reversed. *Page 35