Burrell v. Root

Daotels, J. (dissenting.)

The instrument executed and delivered by the defendant to the plaintiff on the 7th day of April, 1860, did not impose any legal obligation upon him to accept or receive the title to the land in controversy. By its terms, he was to be its purchaser if a sale and conveyance of it were made; and for that reason his subscription of the contract, or memorandum made, was insufficient to satisfy the plain requirement of the statute of frauds upon the subject. This statute is couched in clear and perspicuous language; so much so, as to leave no room for doubting the intention of the legislature. To render an executory contract for the sale of land legal and binding under its provisions, it must be subscribed by the party by whom the sale is to be made. (3 R. S., 5th ed., 220, § 8.) It is not sufficient; as it is, in several of the cases, provided for under the succeeding title, that the contract, or note, or memorandum, be subscribed by the party to be charged by it; but it must be done by the person by whom, the sale is to be made.

There is nothing contained in the case of Worrall v. Munn (1 Seld., 229, 244), countenancing the validity of the note, memorandum, or contract, where it is made for the sale of land, and it is only subscribed by the party to he charged. On the contrary, what was said upon that subject by the learned judge, who delivered the. opinion upon which the decision was made, was said for the purpose of pointing out - the distinction existing between the present statute and the provisions previously contained in the revised laws. Concerning contracts for the sale of land under those laws, it was sufficient that the contract, note, or memorandum, should be signed by the vendor, even when it was for the sale of land. *501But by the present statute more than that has been required. It is now requisite that the contract, or a note, or memorandum of it shall be in writing; and beyond that, that it shall be actually subscribed by the vendor. (Davis v. Shields, 26 Wend., 341.) In the absence of a compliance with those requisites, a contract for the sale of land within the direct terms of the statute is void. (3 R. S., 5th ed., 220, § 8.) And that was the nature of the instrument executed and ■delivered by the defendant to the plaintiff, so far as it provided for the sale and conveyance of the land to the defendant. In the potent language of the statute it was void.

When the letter of the 21th of March was written, there was, therefore, no contract existing upon the subject of the sale of this land, between the plaintiff and defendant. And that letter, by professing merely to accept the offer contained in the instrument executed by the defendant, did not constitute a contract. By that instrument the defendant was not bound to receive and pay for the land, because the plaintiff had failed to bind himself to sell and convey it in the only manner in which the statute permitted that to be done. In order, therefore, that the defendant should become bound, it was necessary that a contract of sale should be made by the vendor; and that it, or a note or memorandum of it, should also be subscribed by him. By the instrument which the defendant had executed, no contract was made; and the statute required that one should be made before it could become obligatory. This required something more than the act of the vendor, for he alone could not make the contract which the statute evidently contemplated. To make a contract requires the assent of both the parties, who are to be bound by it. There must be a meeting of the minds of the parties. This is an elementary principle requiring the aid of no authorities for its support.

Even if this letter had been written for the purpose of reducing the contract for the sale of the land to writing, instead of being, as it was, a mere acceptance of what the plaintiff, by its terms, designated and mentioned as the agree*502meiit, it would not have heen binding upon the defendant without its acceptance by him as such. This resulted from the nature imposed upon the transaction by the statute. By that it was rendered void, and to afterwards invest it with any legal validity, required the concurrent act of both the parties. It required not only the written contract, note or memorandum of the vendor subscribed by him, but in addi tion to that, its acceptance by the vendee. There Was no other means known to the law by which a void contract for the sale of land, could be rendered valid as long as it remained executory under the plain language of the statute.

This court is not now at liberty to presume that this letter was intended to be accepted by the defendant as the contract, note or memorandum prescribed by the statute, even though the plaintiff had designed that to be its character. For such an acceptance of it was neither proved by the evidence nor found as a fact by the judge before whom the trial was had, and no exception was taken to his omission to find it. There is, therefore, no ground on which it can be presumed to be the truth, particularly as the judgment is not stated to have been reversed upon the facts; for such presumptions are never indulged for the purpose of reversing the judgment; The finding of the judge is that the plaintiff notified the defendant of his intention to sell him the land; not that he received or accepted the letter as a contract for the sale of it. The judge finds nothing beyond the receipt of the letter by the defendant, which fell far short of its acceptance as a contract on the part of the plaintiff for the sale of the land.

The plaintiff made various offers of proof at the trial, which were all objected to by the defendant and rejected by the court. They were based upon proposals to prove what had transpired between the parties to this suit, when the defendant conveyed the land to the plaintiff and executed and delivered the instrument subscribed by him. These offers of evidence were all properly rejected by the court, because the law required the contract, or a note or memorandum of *503it to be in writing. And as such it should be wholly in wilting, in order to render it valid. The statute does not permit it to be partly in writing and partly oral. The parties are required to maintain themselves solely upon and by the writing; when that cannot be done, no legal agreement can be found to exist between them. (Wright v. Weeks, 25 N. Y., 153.)

Ho breach of the guaranty contained in the instrument executed by the defendant was alleged in the complaint. And for that reason no recovery can be had upon that, even if the defendant became legally bound by it to pay the plaintiff the difference between the market value of the land and the price of six dollars per acre. The action was brought and tried under the theory that the defendant had rendered himself liable for the entire purchase price of the land, and having failed in that, the plaintiff cannot resort to the other branch of the instrument upon which he depended, because the pleadings were not adapted to that purpose.

The order appealed from should be reversed and the judgment recovered at the Circuit affirmed.

Hunt, Ch. J., read an opinion for affirmance, in which he took the ground that the letter of acceptance of the terms of the contract, signed and sent by the plaintiff to the defendant, taken together with the previous contract of the defendant, was a perfectly valid contract for the sale of land, binding on both parties. He also thought that, regarding the transaction as a loan by the plaintiff to be repaid by the defendant at the end of four years, more than doubled in amount, if usury had been set up by the defendant, it would have presented a difficulty.

Woodruff, Lott and Mason, JJ., were understood to be For affirmance, upon the grounds stated in Grover’s opinion.

James, J., concurred with Daniels, J., for reversal.

Order of General Term affirmed and judgment absolute for the plaintiff.