This cause was tried before judge TeateS "at nisi prius in December 1808; and on the trial a point was reserved, on which it is now brought before the court.
The action was brought to recover damages for breach of a written agreement, by which the defendant engaged to purchase a tract of land the property of the plaintiff. The agreement was signed by the defendant and by Jacob S. Otto, who was alleged by the plaintiff to be his agent. It was objected by the defendant, that supposing Otto to be the agent, it was necessary that his authority from the plaintiff should have been in writing. The point reserved by the judge was “ whether under “ the circumstances of this case, J. S. Otto should not have “ been authorized in tur it trig, to make the contract on which “ the suit was brought to recover damages.” The facts in the cause were to be decided by the jury, taking it for granted that the authority need not be in writing.
The act of assembly “ for prevention of frauds and perju- “ ries,” on which this point arises, provides that “ all leases, “ estates, interests of freehold or term of years, or any uncer- “ tain interest of, in, or out of, any messuages, manors, lands, tenements or hereditaments, made or created by livery and “ seisin only, or by parol, and not put in writing, and signed “ by the parties so making or creating the same, or their agents “ thereunto lawfully authorized by writing, shall have the force “ and effect of leases or estates at will only, and shall not either “ in law or equity be deemed or taken to have any other or “ greater force or effect, except leases not exceeding the term “ of three years from the making thereof.”
It is evident that this provision extends only to the estate intended to be passed. No estate in lands shall be conveyed by One person to another, unless the agent is authorized by writing. But it is one thing to convey an estate, and another and very different thing to make an agreement that you will convey it. It might be good policy to establish certain solemnities, without which the title of land could not be transferred; because the peace and happiness of society are promoted by the clearness and facility with which the titles of real estate may be ascertained, and by preventing those frauds and perjuries which would inevitably take place, if after a great length of time it was permitted to establish a title by parol evidence only. Whereas, an action for damages for not performing a contract, *455is of much less moment. The jury may give such damages as, under the circumstances of each case, appear reasonable, and these damages will often be very small; and there is less danger of perjury, because those actions are limited, so that they must be commenced in six years. I should think the case sufficiently clear, if it was taken upon the act of assembly, without any other consideration; but it is still clearer, when we turn to the English statute of frauds and perjuries, 29 C. 2. c, 3. It is plain that our legislature had that statute before them, when they framed the act in question; because that part of our law which I have recited, is copied very nearly verbatim from the English law. But there is a total omission of the fourth section of the English statute, which enacts, that no action shall be brought to recover damages upon any “ contract or sale of “ lands, tenements, or hereditaments, or any interest in or con- “ cerning the same, unless the agreement on which it is brought, “ or some memorandum or note thereof, shall be in writing, 4‘ and signed by the party to be charged therewith, or some “ other person thereunto by him lawfully authorised.” It is impossible that this omission should have been accidental. It must have been intended to leave the common law unaltered, as to the redress which it affords for breach of a parol contract, by recovery of damages,. Agreeable to this construction is the .sentiment expressed by this court, in the case of Bell v. Andrews, 4 Dall, 152.; although the point now in contest is different from that which was then before them. The same construction has been given in several cases at nisi prius, in which damages have been recovered on parol contracts for sale of lands.
But the defendant’s counsel have contended that if the opinion of the court on the reserved point is against them, they ought to have a new trial; because they proved to the jury that Otto had no authority to make the sale at the time the writing was signed, nor at the time when the first payment was to have been made by the defendant. In the first place it must be remarked, that no motion for a new trial was made, and the four days for making it are out, so that no motion can now be received. It has been urged, that still, if the court perceive by the judge’s report of this case, that manifest injustice has been done to the defendant, they will take the matter up themselves, and order a new trial. AlHhat I shall say at present is, that *456it must be an exceedingly clear error indeed that should induce. • "me to interfere, after the four days have expired without a motion for a new trial. Nor will I commit myself by saying, whether or not I should think myself justified in doing so, in any case of a civil nature. It is enough that in the present case, I am by no means satisfied that any injustice has been done to the defendant. There is no proof that, as his counsel contend, he tendered the money due for the first payment, and that Otto refused to receive it because the plaintiff had not ratified the contract; nor even that he had the money ready to’ tender. The testimony of the witness, on whom he relies to prove that Otto said he had no authority to make the sale, is not free from considerable inconsistency. It was established beyond doubt, that as soon as the plaintiff was informed of the contract, which was not more than ten days from its making, he gave his assent to it; that possession was offered to the defendant on the thirtieth of November, the day appointed for that purpose; and that at the time fixed for making the last payment, the plaintiff tendered the defendant a deed of conveyance in fee simple. Thus every act of the plaintiff tended to a faithful performance of his part of the agreement; while the defendant’s whole conduct evinced an intention to fly off. And what has great weight with me, judge Yeates, before whom the cause was tried, and who had a better view of the evidence than we now have, is well satisfied that injustice has not been done by the verdict. My opinion therefore is, that a new trial should not be granted.