delivered the following dissenting opinion :
The prayers granted and rejected in the third exception make no reference to the pleadings, but present the broad question whether the proof shows a case entitling the plaintiff to recover in any form of action.
The evidence, which is without contradiction, shows that on the 1st of March, 1867, the defendants desiring to purchase a parcel of land in Delaware county, Pennsylvania, then about to be sold at sheriff’s sale, and for the purpose of securing a debt due them by its owner, and not wishing to be known as the purchasers, requested the plaintiff to attend the sale and bid for and purchase the land for them at a price not exceeding $8,000; that plaintiff in company with defendants and their attorneys, attended the sale and bid for the land to the amount of $7,025, at which price it was knocked down to him and he gave his name to the sheriff as the purchaser; that he paid the sheriff $200 in cash, and the defendants immediately thereupon gave him their check for the same; that at the same time and in presence of the defendants and their attorneys, he and the sheriff signed an instrument of writing in which the terms of sale are stated; being in substance, that of the purchase money, $200 was to be paid in *355cash and the residue on or before the fourth Monday of March, 1867, and in case of failure to comply, the land should be- re-sold at the purchaser’s risk, he to derive no benefit from the re-sale, but to pay the deficiency between his bid and the price subsequently obtained, with all interest, costs and expenses, and upon complying with these conditions, the purchaser was to have a deed in due- form on paying the customary fees, and by which the plaintiff signing his own name and affixing his own seal, acknowledged that the land was fairly struck off to him at his bid of $7,025, and for that sum acknowledged himself indebted to the sheriff and bound himself to pay the same agreeably to the above conditions of sale, and the sheriff at the same time signed a receipt for the $200 part of the purchase money; that the defendants then and there thanked the plaintiff for what he had done in the premises and promised to comply with the conditions, and pay the residue of the purchase money for the land when payable, according to the terms of sale, and that plaintiff should have no further trouble in the matter; that plaintiff directed the sheriff’s deed for the land to be made to the defendants, and the time and place were appointed for the payment of the money and delivery of the deed, to which defendants assented, and expressed themselves as fully satisfied with the arrangement; that the parties met accordingly at the time and place appointed, when defendants said they were unable to procure the balance of the purchase money, and requested and obtained from the sheriff an extension of time for about six weeks, at which time they promised to pay the same, but failed to do so, and the land was afterwards re-sold by the sheriff at a less price, and purchased by a brother of the defendants; that plaintiff was thereupon sued by the sheriff for the balance of the purchase money on the first sale, and judgment was obtained against him on the 27th of Eeb« ruary, 1868, for $3,749.87, with interest and costs, which he was compelled to pay under execution; that plaintiff frequenly called upon defendants to furnish the money for pay*356ment of this balance of purchase money, and they frequently promised to do so and to pay the plaintiff for all his payments, trouble and expenses in the premises, and for that purpose assigned to him a claim on which he realized about $3,000. It was also proved that when the suit of the sheriff against the plaintiff came on for trial in the Pennsylvania Court, the defendants attended for the avowed purpose of defending the same, and there was a consultation between the defendants, their attorneys and the plaintiff in reference to that case and the proper course to be pursued, and it was agreed that judgment should be entered for the aforesaid sum of $3,749.87, with stay of execution for three months, at which time the defendants promised to pay the said amount, and at their request the judgment was entered accordingly.
The plaintiff seeks to recover so much of the money thus paid by him as remains unpaid by the defendants, with interest, costs and expenses, or in other words, for the loss and damage he has thus actually sustained. The defence set up is the 4th section of the Statute of Frauds, which the Court below sustained and held to be a complete bar to any recovery, by rejecting the prayers of the plaintiff and granting that of the defendants, to the effect that the evidence in the cause is not legally sufficient to entitle the plaintiff. to recover. The claim is so manifestly just and the defence taken so dishonest, that I was anxious to be convinced the Statute did not apply, but after a most patient and careful consideration of the case and examination of the authorities, I have, been unable to reach that conclusion, and cannot distinguish it in principle from the cases of Lamborn vs. Watson, 6 H. & J., 252; Duvall vs. Peach, I Gill, 172, and other Maryland decisions on the same subject. The agreement or arrangement between the parties was a verbal one and amounts to this, that the plaintiff was to purchase the land in his own name, but for the defendants, who were to be the real owners and were to furnish the money at a future day to enable the plaintiff to meet his engagements with the sheriff, the vendor; or to state *357it more favorably perhaps for the plaintiff, it’ may be termed a verbal contract or agreement by which the plaintiff was employed by, or constituted the agent of, the defendants to purchase the land for his employers or principals in his, the agent’s own name, with the super-added verbal stipulations that the former were to be the owners or have the benefit of the purchase, and were thereafter to advance the money to enable the agent to fulfil the written contract which he was to make and did make in his own name with the vendor. The plaintiff’s whole case rests upon a breach or failure by the defendants to perform their part of this verbal agreement. This lies at the foundation of his claim and must appear or be shown, under whatever form of action he may seek redress. The well known terms of this 4th section of the Statute are: “Kb action shall be brought upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing signed by the party to be charged, or some other person thereunto by him lawfully authorized.”
This lawful authorization need not be in writing, and it is well settled that a party may verbally employ an agent to make and sign the contract for him, but the agent so employed must make the contract in writing, and either sign the principal’s name or his own name as agent for the principal, that is, he must so sign as to bind the principal and not himself. The execution of the agency is the discharge of the agent, who can neither derive a benefit under or suffer loss from the contract. In my judgment that is the extent of the authority to the agent which this section of the Statute contemplates. I am aware there are cases (Ford vs. Williams, 21 How., 287; Hubbert vs. Borden, 6 Whart., 79; Oelrichs & Lurman vs. Ford, 21 Md., 489,) which decide that the agent and principal may be both bound by a written contract to which the name of the agent alone appears without any designation of agency or disclosure by the writing, of the *358principal, and in such cases the undisclosed principal may also prove by oral testimony that the agent was acting for him, and may sue on the contract and take the benefit thereof, though the agent cannot escape his responsibility by proving in the same manner that he was contracting only as agent. But these are usually cases of commercial contracts by brokers or factors for the sale of goods or merchandise within the 17th section of the Statute, and I have not been able to find any case where the doctrine, that the. undisclosed principal may in this way claim the benefit of the contract, has been applied to contracts for the sale or purchase of lands under the 4th section of the Statute. But even if any such adjudication could be found elsewhere, I am satisfied it cannot be reconciled with the decision of this Court in Lamborn vs. Watson, already cited.
In that case Lamborn, whose land was about to be sold under execution, perceiving it would not then sell for its real value, entered into a'verbal agreement with Watson that he should bid it off for and upon his, Lamborn’s account, to enable him to gain time to raise money to satisfy the execution. Watson did accordingly bid off the property in his own name at less than its real value, and afterwards, conceiving the design of turning the purchase to his own advantage, entered into a fraudulent engagement with the sheriff to retain the land for their mutual benefit, and refused to relinquish it to Lamborn, who had made an arrangement with the execution creditor to pay off all that was due him on the execution. Lamborn then sued Watson to recover damages for a violation of this verbal agreement between them, and the latter relied, as a defense upon the Statute of Frauds. The Court said .the Statute probably generates as many frauds as it prevents; that more disgraceful conduct than that of Watson and the sheriff had seldom found its way into a Court of Justice, and the defense set up was entirely of a piece with it; yet they were constrained to sustain that defense, and to deny the plaintiff all right of recovery, because they could not do *359otherwise without overturning the Statute. It would have been an easy solution of the difficulty, and the Court would have been spared the expression of their just indignation at the wrong thus successfully perpetrated, if they had supposed Lamborn could have proved the verbal agency, and claimed as an undisclosed principal the benefit of the contract of purchase made by Watson, as his agent, with the sheriff. The idea that such a remedy was open to him did not occur either to the counsel or the Court, but, on the contrary, in face of the argument made by the plaintiff’s counsel, that the consideration in the verbal agreement was sufficient, if it was for the benefit of the plaintiff and not prejudicial to the defendant, and that where a party undertakes to act in a trust he is answ'erable, 'the Court, in plain terms, say: “ If the plaintiff could b& permitted to recover on this agreement, there is no ease in which the Statute could prevail, and it would become a dead letter;” and that “Courts of Law cannot entertain actions upon verbal contracts within the Statute, on the ground of fraud in refusing to perform them.”
Erom this it seems to me quite plain, that if the plaintiff, in this case, after making the written and sealed contract, with the sheriff, had found he could make money out of the purchase, and had chosen to hold on for himself, he could have set the defendants at defiance by relying on the Statute as a defense to any action they could possibly bring against him. They could neither recover the land nor damages for a violation on the part of the plaintiff of the verbal agreement between them, and thus they would have been deprived of all benefit of that agreement. That being the case, I am unable to perceive how a different result can follow from a breach of the same agreement by the defendants. It cannot be out of the Statute for one party and within it for the other.
It also appears to me that the law announced in Hollida vs. Shoop, 4 Md., 465, is quite inconsistent with the idea that the Statute is inapplicable, to the present case. In that case it was held that a parol agreement between two persons to purchase *360land, one of whom was to purchase, and each to pay one-half the price and take one-half the land, Avas within the Statute, and the party who did not make the purchase could derive no benefit from the contract. The Court also there quote, Avith approbation, the case of Fanke vs. Haughteer, 3 Marshall, 57, to the effect that if a party buy land in his own name and on his own credit, the Statute is applicable, and it cannot be proved by parol that the purchase Avas for another’s benefit. Iiow can this doctrine be reconciled with the decision that the party thus purchasing in his own name may be treated as the agent of another? If this doctrine of agency is alloAved in,such cases, then parties Avho have made advantageous purchases of real estate in their own names, may find themselves converted by parol testimony into agents of others who can claim the benefit of their contracts, and thus a A’/ay Avill be opened for the commission of the very frauds and perjuries Avhich it Avas the chief purpose of the Statute to prevent.
Entertaining these views, I am of opinion the rulings in the third exception should be affirmed. A majority of the Court have howe\rer reached a different conclusion, and are of opinion the Statute is no bar to a recovery by the plaintiff in this case. The "result is,- the judgment must be reversed on this exception and a new trial aAvarded. I agree that a reversal on this ground renders the expression of any opinion upon the questions raised by the' first and second exceptions entirely unnecessary, as they Avill become wholly immaterial in the further progress of the cause.