In this case, I regret to say, after having given it a careful and anxious consideration, I am unable to agree with the opinion pronounced at general term. That the defendants are clearly liable under the contract, I have not the shadow of a doubt. The principal question in the case is, whether the memorandum or contract signed by the defendants, is sufficient in law to bind them.
The facts are as follows: The defendants made an agreement with the plaintiff to furnish him with one thousand Enfield rifles, and thereupon entered into a contract, and signed the following memorandum of the same :
“ New York, May 13th, 1861.
“We agree to deliver P. S. Justice one thousand Enfield pattern rifles (with bayonets, no other extras), in New York, at $18 each, cash upon such delivery, said rifles to *434be shipped from Liverpool not later than 1st of July, and before if possible.
(Signed) “ W. Bailey Lang & Co.”
Which agreement and memorandum were accepted by plaintiff. After the contract was entered into, the articles increased largely in value, and the defendants neglected and refused to supply the rifles, whereupon this action was brought.
I will remark here, that in looking carefully into all the evidence, I am constrained to the belief that the only reason which influenced the defendants in refusing to perform the contract was, that the rifles had nearly doubled in value from the time the contract was made until the time they were to be delivered. After the testimony was nearly closed a motion was made to dismiss the complaint, upon the ground that there was no consideration passing in the contract, and “ that the contract was a mere nudum pactumthe motion was granted. Notwithstanding this, I am satisfied after a careful examination of the statute, and of all the American and English authorities on the subject, there was error in dismissing the complaint. The contract as stated above, was a full compliance with the requirements of the statute, and upon the facts presented the plaintiff was entitled to recover. It will be conceded that before the passage of the statute of frauds, a verbal contract between parties for any amount whatever was good. This being so, the statute simply altered the common law in this respect, that it merely requires for greater certainty, that a memorandum of the contract should be made in writing.
It is admitted that the form of the memorandum of the contract in this case, so far as words are concerned, is all that is required. The defendants simply contend that there is no mutuality, because the plaintiff did not sign a duplicate of the memorandum. This, in my opinion, was of no consequence.
*435The defendants and plaintiff made and entered into the contract; the one agreed to sell at a fixed. and certain-price, and the other to buy at that price.- This was the mutuality, and the consideration expressed was the $18 per rifle. The defendants reduced the contract to writing, or made a note of the same, and signed and handed it to the plaintiff, who accepted it, and this was all that was required to complete the transaction, and if the defendants did not demand a duplicate of the memorandum signed by the plaintiff, it was their own fault; but without this, the defendants if they had delivered the rifles, could not recover in an action of assumpsit. (See Gridley agt. Gridley, .24 N. Y. R. 130.)
The mere acceptance of the note or memorandum in writing of the contract by the plaintiff was enough to bind him, and was sufficient to enable the defendants in a court of law, to compel the performance on his-part. The law, in all cases, implies a promise to pay where it is the duty of one to pay; and no one will doubt for a moment that if the defendants had made and tendered the rifles, the plaintiff would have been compelled to pa'-. In the case of Gridley agt. Gridley, above cited, Mr. Justice Davies, in one of the most clear and forcible opinions in our books, lays doivn the principle that where a party accepts a written obligation from another, although he does not subscribe the same, yet in a court of law, he can be held responsible for the performance of its conditions, and such was declared to be the rule in the following cases : Spraker agt. Van Altstyne 18 Wend.; McLachlin agt. McLachlin, 9 Paige, 534; Van Orden agt. Van Orden, 18 Johns. 30; Lord agt. Lord, 22 Cow. 60 ; Olmstead agt. Burch, I Cow. 530. Indeed, the cases are too numerous to cite, which fully establish this doctrine and sustain my conclusion.
In construing a statute, it is our duty to ascertain the true legal import of the words used by the legislature, and to collect the intention from the language of the statute *436itself; but not to make out the intention from some other source of information, and thus interpret the words of the act so as to meet the assumed intention.
The danger of traveling oht of the statute and looking elsewhere for the objects of the legislature, may be illustrated by the wide difference of opinion entertained by the members of this court in the present case. In order to know what a statute does mean, it is one important step to ascertain what it does not mean, and what it forbids must be consistent with what it permits.
Now the act says: “A note or memorandum of such contract must be made in writing, subscribed by the parties to be charged thereby.” It does not say all the parties to the contract must subscribe the memorandum, and that it must be signed in duplicate ; it simply says subscribed by the parties to be charged with doing the work or furnishing the goods ; in other words, the vendor.
There is a stronger reason than any that has been urged, showing this to be the proper construction of the statute. In 1835, the question came up in the legislature, Avhen other amendments were being made to the old statute of frauds, as to Avhether the words in the statute, to wit, “ the parties to be charged thereby,” should be amended so as to include the names of all parties to the contract, and that body rejected the proposed amendment, assigning as a reason that by virtue of the old act, and the adjudication thereunder, all the parties to the transaction had a complete remedy Avithout such alterations. (See Reviser’s notes, 3 R. S. p. 656, 2d ed.) It is clear, therefore, that these words must now be taken in their fixed and adjudicated sense, and that they absolutely mean that the statute should be satisfied when the parties to be charged therewith signed the memorandum. And this interpretation is supported in reason and in equity. The contract is binding on both parties, because the promise on the one side to sell' at a certain fixed price, and the other to buy at such *437price, is the mutual consideration for each, other, and the statute only requires that a note or memorandum of thé contract must he in writing; it does not say, and does not mean, that it shall be signed in duplicate by all parties to the contract. Moreover, a party should not be allowed to take advantage of his own neglect in not getting and retaining a copy of the contract.
After the original act was passed, I will- show hereafter that a construction was given it, and that construction has been strictly followed to this day. It is the construction that naturally presents itself at once t-o the mind, and under it all parties have a perfect remedy. Now if this be so, and there is not a single authority to the contrary, why unsettle the law at this day, and that to no purpose and for no cause. On a careful examination of all the authorities from the time of the passage of the original act, it will be seen that the courts, both in England and America, have uniformly held that when a memorandum of a contract is committed to writing, and signed by the party to be charged thereby, and accepted by the other, this is entirely sufficient.
.. Precedent serves to illustrate principles and give them a fixed authority. We must respectfully regard the authorities of prior adjudication, which form in themselves an established rule, and when they violate no principle, we must discriminate the actual grounds of decisions from any casual observations that accompany them, because these observations form no decisive resolution, no adjudication, no professed or deliberate determination.
In the case of Davis agt. Shields, disposed of in the court of errors of this state in 1841, both the chancellor and Mr. Senator Vebplanck, laid down the doctrine “ that the name of the party to be charged therewith was only requisite to the note or memorandum.” Indeed, Senator Verplanck, in one of the most clear and forcible arguments I have ever had the pleasure of examining, establishes this *438doctrine beyond a doubt, and this rúle was re-enunciated in the court of appeals of this state in the case of Worrall agt. Munn (5 N. Y. R. 229), where Mr. Justice Paige says : “ That it is only necessary the memorandum should be signed by the vendor, the party to be charged therewith.” In Dylcers agt. Townsend (24 N. Y), a side remark of Judge Hoyt, a mere obiter dictum, and not intended as law, is cited as indicating that he entertained a contrary opinion. He says: “As an original question, he would have no hesitation in saying in a case where a contract is executory, that it was necessary it should be in writing under the statute, and be signed by both parties thereto,” but in another and latter part of his opinion (page 60) he tabes all this back, and lays down the law after this clear manner: “In this case a note or njemorandum of the contract was made in writing and signed by the defendant, and we think that this was a sufficient compliance with the statute according to the settled construction which has been given to it.” How after this candid avowal of the law on that point, it cannot be fairly said the question involved and now under consideration did not come up in that case. It did come up, and was settled by an unanimous bench, and the views I entertain are correct.
The next case our attention is called to is that of Bailey agt. Ogden (39 T. R. 399), a case in no way similar to the one at bar. That was a case where the plaintiff, the vendor, made an entry in his own books of the sale, of which entry the defendant, the vendee, knew nothing. But even in that case, Kent, Chief Justice, lays down the principle “ that it is only necessary for the party to be charged to sign the contract.” The case of Lawrence agt. Butler (1 Schoales & Lefroy, 201), has no resemblance whatever to the case under discussion. That was a case of a mistaken contract about a lease, and the court held that a performance could not be compelled because there was a mistake as to the power to sell, and the plaintiff knew of the mis*439take before he accepted the contract. In the case of Roget agt. Merritt, I do not agree with the defendant’s counsel in saying that this question was passed without adjudication. On the contrary, the question came fairly up, and was fully discussed and passed upon, and "in my view that decision settles the law in this case in favor of the plaintiff. In announcing the opinion of. the court in that case, Mr. Justice Spencer lays down the rule that only the parties to be charged are required to sign the memorandum, and he remarks that if there are "acts to be done by both parties (such as the exchange of commodities to be manufacr tured), there is no doubt but that such contract would be obligatory if signed by one party and accepted by the other. The case of Classon agt. Baily, fully corroborates the views I entertain in this respect. In that case, the chancellor, in announcing the opinion of the court of errors, cites numerous English and American authorities, all clearly establishing the fact that a memorandum signed by one party and accepted by the other, is sufficient under the statute.
In the case of Russell agt. Nichol (3 Wend. 118), before referred to, that most learned and able Judge Marcy, lays down a similar doctrine to the one I entertain, and this clear principle can be no better illustrated than by the exposition of that eminent judge. “ It was insisted,” says Governor Marcy, “ that the contract declared on was within the statute of frauds void for not being reduced to writing and signed as the statute directs. This objection is not sustainable. It is very clear that the signing by the defendants is a compliance with the statute.”
The case of Charles agt. Bickett (7 Term R. 202), is not at all a case in point. The agreement in that case was by parol. It is true, however, that some remarks were made by Lord Kenyon, not only not bearing on this case, but entirely foreign to the record, and which decide nothing. The last and only remaining case cited by counsel for *440defendants is that of Ballard agt. Walker (3 Johns. Cases, 60), which confirms my views in this case.
The question under consideration should not demand of me so much care and attention, especially since we find two cases in this very court precisely similar, where similar memorandums were sued upon, and where this court were unanimous in sustaining the old and well established rule, that it was only necessary for the parties to be charged thereby to sign the memorandum. I refer to Fenly agt. Stewart (5 Sandf. S. C. R. 101), and also to the case of West agt. Buer (1 S. C. R. 277). The memorandum in the first case was as follows :
“ For a valuable consideration to us in hand paid, Ave have sold A. M. Fenly íavo thousand fiAre hundred bushels of canal oats, at forty-five cents per bushel of tliirty-tAvo quarts, to be delivered in this city at any time, at our option, betAveen the 1st and 15 th of June next; to be cash on delivery. New York, April 23, 1841.
“ A. W. Otis & Co.”
The presiding justice delivering the unanimous opinion of the court, employs this language: “The statute of frauds requires not that the contract should be signed by both parties, but the parties to be charged thereby ; and the uniform construction has been that the signature by the defendants alone, that is, by the parties sought to be charged, is sufficient to sustain the action. This construction has proceeded, not on the ground that contracts need not be mutual, but that the statute in certain enumerated cases has taken aivay the poiver of enforcing contracts, which Avould othenvise be mutually binding, unless the parties against Avhom they are sought to be enforced, have subscribed some note or memorandum thereof in writing. * * * It necessarily folloAvs, hoA\mver, from the provision of the statute, that all inquiry as to Avhether or not a contract Avas originally mutual, is immaterial. It may be enforced against the party who has subscribed a note *441or memorandum of it, though the other party by not having signed, is by the express words of the statute freed from its obligation. The objection, therefore, of want of mutuality, is not well taken.
In the case of West agt. JYewton (1 Duer, 277), the following contract was sued for :
“ I do hereby agree to deliver to J. Selby West, at such places as he shall direct, during the months of August, September and October next, in about equal quantities each month, five hundred tons of egg and five hundred tons of good size stove coal, best quality of red ash, peach orchard, at five dollars per ton, cash, or interest added after delivery, as he shall prefer; the above coal to be in good order and gross tons, credit not to be over three months. New York, April 16, 1846.
“ MORRIS BUCKMAN,
“ Agent for Jacob Cabrigan, Jr.” The presiding justice in delivering the unanimous opinion of the court says : “ The objection that the memorandum ivas insufficient under the statute, we incline to think is not well taken. The contract is not a mere proposal, but is mutual on its face, since the price stipulated to be paid for the coal is a sufficient consideration for the promise to deliver it.”
Now can there be two cases mpre in point than these, especially when we find the,contracts and the facts precisely the same as in this case, and do they not, unreversed as they are, settle the law so far as this court is concerned, especially when we remember that at that day the court was honored by the presence of an Oaicley, a Duer and a Sandford, and when we consider the further fact that the only lights or adjudications the court have now to guide them in their deliberations, are precisely the same lights and the same adjudications the judges of that day enjoyed.
The judgment of dismissal should be reversed and a new trial ordered, with costs.