The only written agreement for the sale and conveyance to the plaintiff of the real estate in question, that has been proved, or alledged to have been signed was not signed either by the wife of Preston or Truex. Each of these two defendants pleads the statute of frauds, in bar of all relief sought against her. The signatures *18of the husbands of Mrs. Preston and Mrs. Truex do not purport to have been made in behalf of, or as agents of their wives. There is nothing on the face of the agreement which intimates that they were agents, or that they assumed to act as agents for their wives in signing it.
We consider the doctrine well settled, that every written ;,i contract made by an agent, in order to be binding upon his)■ principal, must purport on its face to be made by the principal, and must be executed in his name, and not in the -name of his ‘ agent. (Evans agt. Wells, 22 Wend. 324.)
It cannot be shown by parol that the alledged agent, in sign-),, ing his own name to the contract, in fact signed as agent, and ]•" thus convert a contract which on its face is his own into a con- ¡ tract of his alledged principal, and make it enforceable as such./ This would be altering the plain meaning and clear legal import of written contracts, by unwritten evidence, which is inadmissible.
Irrespective of the consequences of executing, acknowledging, and tendering the deed to the plaintiff, there is clearly no right shown to any relief against the wives of Preston and Truex. In this view, we understand the judge, whose judgment is appealed from, to have concurred. He says, “had they utterly repudiated the contract, no power could have compelled them to perform it.”
The deed was executed to be specially tendered. It was specially tendered. It was never unconditionally delivered by the ■ married women to any one. It never passed from the hands of their agent to make, and who made the tender. Not being bound by the contract, it was competent for them to tender a conveyance upon any terms, and encumbered by any conditions that they might be pleased to annex to it. Such a tender unaccepted did not in law or equity divest or impair their title or power of subsequent dispositiom. An unaccepted tender conferred no new rights upon the plaintiff.
But it is urged that the wives having actually conveyed to Jennings and Gridley, the latter cannot protect themselves in their purchase, by the objection that their vendors were under *19no obligation, legal or equitable, to convey to the plaintiff.
It is certainly an extraordinary proposition, that a woman, whether married or unmarried, who is under no obligation to convey her lands to the plaintiff, cannot make a sale and conveyance to a third person valid, both at law and in equity against the plaintiff. If the plaintiff has no claims under the contract of the 29th of November, 1850, against the wives of Preston and Truex, if their interest and estate in the lands are in no way affected by it, it is absurd to say that no subsequent grantee of theirs can hold the lands against the plaintiff, so long as it is conceded that the plaintiff had no claims, legal or equitable, to a conveyance from the wives of Preston and Truex at the time they conveyed to Jennings and Gridley; it must also be conceded that such conveyance did not create any equities or rights which would not have existed had that conveyance not been made.
The judgment appealed from should be reversed, and the complaint dismissed as to the wives of Preston and Truex, and the defendants Jennings and Gridley, but without costs to either party. A new trial should be ordered as to the other defendants, to enable the plaintiff to recover such damages as he may show himself entitled to. From, some or all of them he is entitled to recover the money paid on account of. the contract price. Whether he is entitled to anything in addition, it would be premature to attempt to decide now.