The principal question, in this case, is, whether the contract is valid, under the statute of frauds.
It is contended, by the plaintiffs in error—
1st. That the statute of frauds does not embrace the case.
, 2d. But, if it does, here is a sufficient memorandum in writing.
To show, that the cause of action is not embraced by the statute, it is argued, that the suit is not brought,'on a contract for lands; but, for'failing to enter into such contract, according to agreement.— That, the defendant, having bid off the land, was bound to comply with the terms of the sale; or, -upon failing to do so, to pay the loss sustained by a second sale: and, that he is sued, to recover the amount of the deficiency of the second sale, under the sum, for which the lots were knocked off to him, at the first. — That, this does not come within the mischief, intended to be remedied.
The words of the act are, “ Any contract, for the sale of lands, tenements, or hereditaments, or the making any lease thereof, for a larger term than one year.”
To enable the plaintiffs to recover, the defefidant must have been bound, by the contract: it is only upon his obligation, to fulfil it, that he can be liable to an action. It is for not doing, what, in law, he
The case of Simon vs. Motivos,a is in point. The defendant, .in that case, bought the goods, at auction, but neglected to take them away. They were afterwards sold, at considerable loss; and the suit was brought, to recover the difference. The decision turned entirely upon, whether the statute of frauds would prevent a recovery.
The act 29 Charles 2, c. 3, is more comprehensive than ours-—rendering void; all sales of goods, -&c. to a greatér 'value than £10, unless the agreement be in writing, &c. It was admitted, by all the judges, that the contract must be binding under the statute, or the suit could* not be maintained; but, it was determined, that, in the particular case, there was a sufficient memorandum in writing.
The case of Walker vs. Constable,b is also gous to this. The declaration stated, that the tiff and defendant had contracted for the sale of certain premises of the defendant, and paid thereon a deposit of £350 and reciting that the parties had agreed to put an end to the contract., and to receive back the purchase money; averred, that the defendant undertook to pay interest for the deposit money, &c. The plaintiff was proceeding to prove his case by parol, which was objected to. Eyre, Chief Justice, decided that the plaintiff could not proceed without the production of his contract; that the foundation of the action was the sale of the premises, which, to be valid, should have been in writing. The Chief Justice proceeded to say; “the plaintiffs’ counsel further rely, that the contract being abandoned, they may go into parol evidence of it, but its existence, and the
In the next term, there was a motion to set the non-suit aside, but the court agreed in opinion with the Chief Justice. •
The language 'of the judge in that case may bo used in» this. The existence and terms of the contract must be proved, before it can be shown that the defendants failed to comply with it.
The case, therefore, is embraced by the statute of frauds.
To comply with the statute, by producing a memorandum in writing, the plaintiffs offered in evidence, in the court below, a paper headed “lots forfeited,” following which words were, “No. 11, $142 25, No. 13, $60 25, No. 14, $38, No. 45, $6 75, No. 20, $7 25, No. 53, $2 per acre, No. 54, $1 33 per acre, John Springer, No. 11, #100 6], Daniel Wilcoxon, No. 13, $17 64, Col. Masterson, No. 14, $11, &c., Col. Masterson, No. 54, $2 26 per acre; and proved by one Sessums, that he was appointed Clerk of the sale by said Carmack, and that he had kept that memorandum, and it was in his handwriting", together with said Sessum’s account of the bid by the defendant at said salo.”
The court refused to permit the paper to be read to the jury, or to suffer any parol evidence to be introduced to support the declaration.
The counsel for the plaintiffs has contended, that this was a sufficient memorandum, within the statute, when explained, as it might wpll be, and that
It is not intended to question those cases in wfyich an auctioneer has been determined to be ■ the agent of both the contracting parties, but it is believed the doctrine has never been carried further than this.In Coles vs. Trecothick,a it was determined that an auctioneer's clerk can not, without a special authori~ ty, act as agent for hi~ employers, so as to satisfy th€ words of the statute. Here the memorandum wa~ not i~nade by the auctioneer, but by a olerk appoint. ed by one of the plaintiffs: he certainly ca~rnot bE considered more entitled to the character of an ageni for the defendant than he w~uld have been if ap. pointed by the auctioneer. .
But the memorandum itself is without sufficient certainty. Even admitting it to contain, in seme instances, statements of the numbers of lots sold, the price sold for, and the purchasers, there is no certain mode of ascertaining who was the purchaser of the 'different lots, nor whether the defendant purchased the lots immediately preceding or succeeding his name. There are not even punctuations made in the memorandum, to aid in arriving at a conclusion; and to many of the numbers and prices no names are annexed, so that reliance has, at last, to be placed almost exclusively on the parol testimony of Sessums.
The case of Hinde vs. Whitehouse and Galan, was somewhat similar to this, though there, the' memorandum was more clear and distinct than the one before us. At the time of the sale, the auctioneer’s printed catalogue was before him, and he wrote down in the same line with the lot purchased, the name
This reasoning applies with two fold force to the case before us. It does not appear that there were any conditions of salé, nor is there any thing to aid this naked and unsatisfactory- paper.
The judgment must be affirmed.
a.
2 Burr, 1921.
b.
Esp. R 659
a.
9Vos. 234