In order to satisfy the requirements of the statute of frauds of
New Hampshire, the memorandum in writing of an agreement for the
sale of lands which is signed by the party to be charged must not
only contain a sufficient description of them, together with a
statement of the price to be paid therefor, but in that memorandum,
or in some paper signed by that party, the other contracting party
must be so designated that he can be identified without parol
proof.
On the sixteenth day of May, 1871, the hotel known as the Glen
House, at the foot of the White Mountains in New Hampshire,
together with its furniture, was bid off at an auction sale by
Grafton at the price of $90,000. At the end of the ten days allowed
by the terms of the sale for examination of the title, three deeds
were tendered him which were supposed to convey the title. He
refused to accept them, or pay the purchase money, or otherwise
complete the contract of purchase. The property was again
advertised for sale, and sold for $61,000, and the present suit was
brought against him to recover the difference in the amounts for
which the property sold at these two sales as damages for failure
to perform the first contract.
The statute of frauds of New Hampshire is in these words:
"No action shall be maintained upon a contract for the sale of
land unless the agreement upon which it is brought or some
memorandum thereof is in writing, and signed by the party to be
charged, or by some person by him thereto authorized by
writing."
The agreement given in evidence on the trial by Cummings, the
sole plaintiff, consisted of a paper writing signed by Grafton,
certain printed matter on the margin of that writing, and the
advertisement mentioned in the writing so signed. They are as
follows:
"I, the subscriber, do hereby acknowledge myself to be the
purchaser of the estate known as the Glen House, with furniture
belonging to it, in Green's grant, New Hampshire, and sold at
auction Tuesday, May 16, 1871, at 11 o'clock A.M., and for the
sum
Page 99 U. S. 101
of $90,000, the said property being more particularly described
in the advertisement hereunto affixed, and I hereby bind myself, my
heirs and assigns to comply with the terms and conditions of the
sale as declared by the auctioneer at the time and place of
sale."
"JOSEPH GRAFTON"
Upon the margin of said agreement were written and printed the
following:
"
TERMS OF SALE"
"Ten days will be allowed to examine the title, within which
time the property must be settled for. Five thousand dollars will
be required of the purchaser on the spot, which will be forfeited
to the seller if the terms and conditions are not complied with;
but the forfeiture of said money does not release the purchaser
from his obligation to take the property. Fifteen thousand dollars
to be paid on the delivery of the deed, and one-half of the
purchase money to be paid Sept. 1, 1871, the remaining balance to
be paid Sept. 1, 1872."
"The property is sold subject to the conditions of the sale of
the stage route, stages, &c., which are, that the proprietors
of the route shall have the exclusive business of the house."
The advertisement referred to in the foregoing paper as being
thereunto affixed was as follows:
"
GLEN HOUSE AT AUCTION"
"The famous summer resort at the foot of Mount Washington, known
as the Glen House, together with the land, furniture, mill, and
outbuildings, will be sold at public auction at Gorham, N.H.,
Tuesday, May 16, 1871, at 11 o'clock A.M."
"May 2, 1871."
"
V
ALUABLE HOTEL PROPERTY FOR SALE"
"The favorite summer resort known as the Glen House, situated at
the foot of Mount Washington and at the commencement of the
carriage road to the summit, will be offered for sale, together
with the land containing about one thousand acres (well timbered),
all the out-buildings, stables, and mill on the same, also the
furniture, staging, mountain carriages, horses, &c. The house
contains some two hundred and twenty-five rooms, capable of
accommodating between four and five hundred guests. The whole
property, if not disposed of at private sale previous to the 1st of
May, will be sold at public auction to close the estate of the late
J. M. Thompson.
Page 99 U. S. 102
Notice of the time and place of sale will be given hereafter.
Any person desirous of seeing the property, which is in thorough
repair, or wishing to make any inquiries can do so by applying to
J. W. Weeks, administrator, Lancaster, N.H., or S. H. Cummings,
Falmouth Hotel, Portland, Me."
The bill of exceptions adds that when this paper was put in
evidence, it was endorsed "A. R. Walker, auctioneer and agent for
both parties." It was not fully shown when this endorsement was
made, and there was some evidence that it was not there at the time
when the deeds which Grafton refused to accept were tendered. The
court, however, instructed the jury that if it was done at any time
before the commencement of this action, it was sufficient.
Evidence was admitted to show that at the time of the sale,
another paper was read by the auctioneer affecting the terms of the
sale, but it was not among the papers subscribed by defendant.
The following letter was, notwithstanding the objection of the
defendant, read in evidence by the plaintiff:
"DEAR SIR -- I came up today hoping to confer with you in regard
to the purchase of the Glen House. I don't know but what Lindsay
and Barron intend to take it. Some things they said indicated as
much, and Grafton offered to let them take it at his bid, and let
them have their own time to pay him his claim. But I find Mrs.
Thompson is strongly attached to the place. The judge of the
Probate Court will make her an allowance. It occurred to me that
the purchase might be made in this way. One-tenth would be
$9,000:"
S. H. Cummings, 3/10 . . . . . . . . . $27,000
Lindsay, 3/10. . . . . . . . . . . . . 27,000
Barron, 3/10 . . . . . . . . . . . . . 27,000
Mrs. Thompson, 1/10. . . . . . . . . . 9,000
-------
$90,000
"This would relieve you from most of the care. It would give
Mrs. Thompson an interest in it. The $9,000 due Grafton is as much
as her share, and I will agree to let it be until she has time to
pay it from the profits. I go home tomorrow, but I wanted to
propose this to you, as Grafton really don't want anything to do
with the property, though he thinks Stearns, or some one of
their
Page 99 U. S. 103
leading hotel men, may have some young man that they would like
to put into the house. He will try to dispose of it in that way,
but hopes that before doing it, I shall be able to write to him
that it will be taken up here."
"Very truly yours,"
"WOODBURY DAVIS"
"S. H. CUMMINGS, Esq."
There was a judgment for the plaintiff, whereupon Grafton sued
out this writ of error.
Page 99 U. S. 106
MR. JUSTICE MILLER, after stating the facts, delivered the
opinion of the Court.
The bill of exceptions in this case is voluminous, containing
apparently everything said and done on the trial. Sixty-one errors
are assigned to this court.
We shall confine ourselves to the examination of one of them.
That one presents the question, as it occurs in various forms in
the record, whether there was a sufficient memorandum of the
contract in writing, under the statute of frauds of New Hampshire,
to sustain the action.
It is proper to observe that the objection to the papers is not
that they were not signed by Grafton, the party charged, for he
signed himself the principal instrument. The reference to the
others, and their annexation to that, are sufficient to make them a
part of the paper which he did sign. We shall, also, for the
purpose of this inquiry, take it that Walker was the auctioneer,
and that his name endorsed on the instrument gives it all the value
which it could have if signed at any time necessary for that
purpose.
The distinct objection to the instrument as so presented is that
the other party to the contract of sale is not named in it, and can
only be supplied by parol testimony.
The statute not only requires that the agreement on which the
action is brought or some memorandum thereof shall be signed by the
party to be charged, but that the agreement or memorandum shall be
in writing. In an agreement of sale there can be no contract
without both a vendor and a vendee. There can be no purchase
without a seller. There must be a sufficient description of the
thing sold and of the price to be paid for it. It is therefore an
essential element of a contract in writing that it shall contain
within itself a description of the
Page 99 U. S. 107
thing sold by which it can be known or identified, of the price
to be paid for it, of the party who sells it, and the party who
buys it. There is a defect in this memorandum in giving no
indication of the party who sells. If Grafton was bound to
purchase, it was because somebody was bound to sell. If he was
bound to pay, somebody was bound to receive the money and deliver
the consideration for the price so paid.
There can be no bargain without two parties. There can be no
valid agreement in writing without these parties are named in such
manner that some one whom he can reach is known to the other to be
bound also. No one is bound in this paper to sell the Glen House or
to convey it. No one is mentioned as the owner or the other party
to this contract. Let it be understood that we are not discussing
the question of mutuality in the obligation, for it may be true
that if a vendor was named in this paper, the offer to perform on
his part would bind the party who did sign. But Grafton did not
agree to buy this property of anybody who might be found able and
willing to furnish him a title. He was making a contract which
required a vendor and a vendee at the time it was made, and he is
liable only to that vendor. The name of that vendor, or some
designation of him which could be recognized without parol proof
extraneous to the instrument, was an essential part of that
instrument to its validity.
It is alleged that Stephen H. Cummings, the plaintiff in this
action, was the vendor, and that this sufficiently appears in the
papers annexed to the memorandum and incorporated into the
statement of this case.
The first ground on which it is sought to maintain this
proposition is that Walker's endorsement is sufficient for that
purpose.
It is very clear that Walker did not intend to hold himself out
as the vendor in this case, because he describes himself as
auctioneer and agent for both parties. If he had been sued on this
contract by Grafton for failing to tender sufficient deeds of
conveyance, it would have been a good answer to the action that he
describes himself in the paper on which he was sued as merely an
auctioneer in the matter, and in that sense as agent, and not
principal. He could not in the act of signing that paper be
Page 99 U. S. 108
the agent of Grafton, for Grafton signed it for himself. The
statement therefore did not mean that he signed for both parties,
because he did not, and could not, sign as agent for Grafton.
What did he mean by putting his name there? It can have no other
fair meaning than simply to say, as he does, I was the auctioneer
who struck off this property.
But concede that he meant to represent the other party in that
contract, a contract in which he takes care not to bind himself --
who is that other party? What light does the writing of his name as
auctioneer and agent throw on that question? Literally none. An
anxious reader of the whole paper and its attachments would know as
little who sold, or for whom Walker was selling, after his
signature as he did before. To say agent for both parties may show
he was agent for the one party whose name is not there, but it does
not show who was that party. The paper without Walker's endorsement
shows who was the purchaser, but neither with nor without it does
it show who was the seller.
It is next argued that the reference to Cummings's name in the
advertisement annexed to the paper signed by defendant is
sufficient for this. The statement is that the sale is made to
close out the estate of the late Mr. Thompson, and
"any person desirous of seeing the property, which is in
thorough repair, or wishing to make any inquiries, can do so by
applying to J. W. Weeks, administrator, Lancaster, N.H., or S. H.
Cummings, Falmouth Hotel, Portland, Me."
Three persons are here mentioned. One, Mr. Thompson, was dead
and could not be the vendor. Another, Mr. Weeks, though not
mentioned as a party selling, it may be inferred had some interest
in the sale as administrator of Thompson. But Weeks does not sue,
and if his name had been inserted in the contract as vendor, it
would not have sustained the present action. But the true intent of
that advertisement was not to describe the vendors, or even the
owners of the land, but to designate persons who might give any
information about the property which one thinking of purchasing
would need. This did not require that the person referred to should
be the owner of the land or the party selling it. Such inquiries
could as well be
Page 99 U. S. 109
answered by a lawyer, a real estate agent, the latest keeper of
the hotel, or one who had been his clerk, as by the owner. There
did not arise, therefore, any implication from the reference to
Cummings that he was owner, or even part owner, or that he was
holding himself out as the party selling.
The next effort to sustain the instrument sued on as valid may
be said to be a vague effort to show, by the verbal history of the
transaction, that defendant recognized Cummings as vendor by
subsequent interviews and negotiations with him on the subject of
the sale. And special importance in this part of the case is
attached to a letter written by Davis, a lawyer, to Cummings.
The letter is liable to three objections as a recognition by
defendant of Cummings as the party of whom he had purchased.
1. No such recognition is to be found in the letter. It consists
of suggestions on the part of Davis of what had better be done with
the property; that Cummings, Mrs. Thompson, and Grafton ought to
take it; and that Grafton really don't wish to have any thing to do
with it. It is not even a recognition of the validity of the
purchase, and nowhere speaks of Cummings as the vendor, but he
might rather be supposed to be a purchaser with Grafton.
2. Davis does not profess to be speaking or acting for Grafton.
He writes in his own name. It is shown by other evidence that,
either as attorney or for himself, he controlled the larger part of
the debts against Thompson's estate, which made the sale necessary,
and it may be fairly inferred that it was in this character he
spoke.
3. There is no satisfactory evidence that he was authorized to
act for Grafton in that transaction, and none whatever that he was
authorized by him to write that letter. The New Hampshire statute
requires that the authority of an agent to charge a party shall be
in writing, and there is no pretense that Davis had any such
authority from Grafton.
These views of the proper construction of the statute are amply
sustained by authority.
In the leading case of
Wain v. Warlters, 5 East 10,
decided by Lord Ellenborough under the English statute, the same
as
Page 99 U. S. 110
that of New Hampshire on the point in question, that eminent
judge said:
"The question is whether that word [agreement] is to be
understood in a loose, incorrect sense in which it may be sometimes
used as synonymous to promise or understanding, or in its more
correct sense of signifying a mutual contract on consideration
between two or more parties."
He held the latter to be the true construction, and that all its
essential elements must appear in the memorandum, including the
consideration, which in that case was absent. This has been held to
be the law in England ever since.
In
Williams v. Byrnes, before the Privy Council,
reported in 9 Jur.N.S. 363, decided in 1863, the defendant had in a
letter to one Hardy told him that he would furnish the funds to pay
for a steam engine if the latter would find and purchase a suitable
one. Hardy made a verbal contract for the engine, and the vendor
sued defendant on this memorandum. Coleridge, J., in delivering the
judgment of the Privy Council, said:
"This language [the language of the statute] cannot be satisfied
unless the existence of a bargain or contract appear evidenced in
writing, and a bargain cannot so appear unless the parties to it
are specified, either nominally or by description or
reference,"
and the ruling of the Chief Justice that this could be done by
extrinsic proof as to who was the vendor was reversed. The case is
precisely in point with the one before us.
Sale v. Lambert, Law Rep. 18 Eq. 1, was a sale of real
estate in which the party charged was the vendor. The memorandum
was signed by Sale, the purchaser, for himself, and by George
Jackson, the auctioneer, for the vendor. This memorandum was
endorsed on a bill of particulars of the conditions of the sale, in
which it was said that the property was sold by the proprietor. The
Master of the Rolls held that the word "proprietor" sufficiently
described the vendor, and ascertained who was the party for whom
the auctioneer signed. But in
Potter v. Duffield, id. 4,
he held that the words "confirmed on the part of the vendor," and
signed "Beadels," who were the auctioneers, did not sufficiently
designate who the vendor was, and that a suit against the owner
could not be sustained on the memorandum. He said:
"If you could go into the evidence
Page 99 U. S. 111
as to the person who is described as vendor by Mr. Beadel, the
answer would be that Polley was that person. But that is exactly
what the act says shall not be decided by parol evidence."
In the case before us, Walker, the auctioneer, does not even say
the he signed for the vendor, as Beadel did in the last case
cited.
But the case which should have most weight in informing our
judgment is
Sherburne v. Shaw, 1 N.H. 157, because it is
an authoritative construction of the statute of the state where
this contract was made and the land is situated, to which the
contract relates, made by the highest court of that state sixty
years ago and never overruled. The case is so perfectly parallel to
the one under consideration that its circumstances need not be
repeated. It is sufficient to say that the want of the vendor's
name in the memorandum was held fatal to any right of action,
though the auctioneer's name was signed to a memorandum otherwise
sufficient. The concluding language of the court is that
"the written evidence which hath been offered to prove the
contract declared on, as it fails to give any intimation that
plaintiffs were one of the parties to that contract, must itself be
considered fatally defective and inadmissible."
The same doctrine is laid down in the excellent work of Mr.
Browne on the statute of frauds, secs. 372 to 375, and the
authorities fully cited. He also speaks of the case of
Salmon Falls Manufacturing Co.
v. Goddard, 14 How. 446, as one which might be
saved from conflict with the general rule on the ground that a bill
of parcels detailing the purchase was made out and sent to the
purchaser, and accepted by him as such. In that case, Mr. Justice
Curtis delivered an able dissenting opinion in which Mr. Justice
Catron and Mr. Justice Daniel concurred. It may be doubted whether
the opinion of the majority in all it says in reference to the use
of parol proof in aid of even mercantile sales of goods by brokers
is sound law. It certainly furnishes no rule to govern us in the
exposition of the statutes of New Hampshire, concerning contracts
of sale of real estate within its own borders, where it conflicts
with the decisions of the courts of that state on the subject.
Page 99 U. S. 112
Defendant in error relies mainly on that case and the later one
of
Beckwith v. Talbot, 95 U. S. 289. The
latter case, however, affords no support to the argument of
counsel. The defendant in that action was charged, it is true, on a
memorandum in which his name was not found. But he produced that
memorandum from his own possession on the trial, and letters of his
written to the plaintiff while the agreement was so in his
possession were given in evidence, which referred to the agreement
and acknowledged its obligatory force on himself, in terms that
required no parol proof to identify it as the agreement to which he
referred. This was within all the cases a sufficient signing of the
memorandum, though found in another paper, written by the party to
be charged, to comply with the statute of frauds, and so this Court
held.
We are of opinion that there was no sufficient memorandum in
writing of the agreement on which this suit was brought to sustain
the verdict of the jury.
The judgment of the circuit court will therefore be reversed and
the case remanded to that court with instructions to set aside the
verdict, and it is
So ordered.
MR. JUSTICE BRADLEY took no part in the decision of this
case.
