Kilday v. Schancupp , 91 Conn. 29 ( 1916 )

The trial court held that there was no sufficient memorandum in writing to support a decree for specific performance, but that the plaintiff was entitled to a judgment for damages based upon the agreement for the sale of land.

General Statutes, § 1089, provides that "no civil action shall be maintained . . . upon any agreement for the sale of real estate, or any interest in or concerning it, . . . unless such agreement, or some memorandum thereof, be made in writing, and signed by the party to be charged therewith, or his agent." We have said that our statute does not make agreements not made in this way invalid, but prevents their proof unless by such a writing. Fisk's Appeal, 81 Conn. 433, 438,71 A. 559. It is immaterial whether the action be one for specific performance, or for damages for the breach of a contract of sale of land. The proof must be in the manner provided by our statute; and the agreement in its essentials must be the same in either action. Lord Farwell succinctly stated the principle in Wild v.Woolwich Borough Council, L. R. (1910) 1 Ch. Div. 35, 42: "It is perfectly clear that if there was no contract there can be no damages for breach of contract, and any claim to compensation is out of the question."

But before specific performance will be decreed, something further must be shown than that the contract is made in accordance with the requirements of law. It must in addition be one of such a character that the court will enforce its performance. The governing principles are clearly specified in our decisions. Patterson v. Bloomer, 35 Conn. 57, 63; Platt v. StoningtonSavings Bank, 46 Conn. 476, 478. The conclusion of the learned trial court is not necessarily erroneous, though the reason given may be.

If the memorandum by which the agreement was proved meets the requirements of the statute, a contract within the requirements of the statute has been established sufficient to support the action for damages, or the action to secure specific performance, in the absence of equitable considerations which would lead a court in the exercise of its discretion to refuse to issue its decree.

The memorandum upon which the case must stand or fall is Exhibit B. When analyzed, it discloses the parties to a contract of sale of land, the subject of sale described, a consideration, the terms of the sale, and the time of delivery of the deed. When the agreement was offered in evidence the defendant duly excepted to its admission. In two particulars only does the appellant attack the agreement: (1) because of indefiniteness; (2) because it was not signed by the defendant. The claimed indefiniteness of this agreement rests upon the description of the subject of the sale, viz: "# 38-40 Emmett Avenue three tenement house and lot 50 front by 150 deep, and one empty lot 50 x 150, next to second house." In the body of the agreement the locality of Emmett Avenue is not given. But the agreement bears date at Derby, Connecticut, and from this the inference of fact follows, in the absence of evidence to the contrary, that the property described in the agreement is located in Derby, Connecticut. This inference is rebuttable by parol proof, for example, that there was no such avenue or street in Derby. Mead v. Parker,115 Mass. 413, 415; Kraft v. Egan, 76 Md. 243, 252,25 A. 469; Shelinsky v. Foster, 87 Conn. 90, 97,87 A. 35; Hodges v. Kowing, 58 Conn. 12, 20, 18 A. 979.

The agreement must have been signed by this defendant, since he is the party to be charged. This agreement was caused to be prepared by the defendant and it begins, "Sold to J. Schancupp." This is the written declaration of the defendant himself that the plaintiff has sold him the property described, upon the terms described, and likewise it is his written declaration of purchase of this property upon the named terms. The statute is intended to relieve against fraud; to hold that this defendant, by writing his name in the body of this instrument instead of at its end, did not sign the instrument, would help perpetrate, instead of prevent, a wrong. An instrument signed by one in any part of it after the body of its is written, or signed in any part and, when completed, produced from his custody, must be taken to be the instrument of the party so signing. Under these circumstances he authenticates by his signature, or by the signature to the instrument produced from his custody, the instrument so signed, and such a signature fully meets the requirements of the statute of frauds. New EnglandDressed Meat Wool Co. v. Standard Worsted Co.,165 Mass. 328, 331, 43 N.E. 112; Penniman v. Hartshorn,13 Mass. 87; California Canneries Co. v. Scatena,117 Cal. 447, 49 P. 462; Drury v. Young, 58 Md. 546, 553. The authorities are equally decisive that the signature may be printed or written. Schneider v. Norris, 2 M. S. 286; Drury v. Young, 58 Md. 546, 554. And we have held that a signature by a rubber stamp made by an agent duly authorized is a signature within the statute.Deep River National Bank's Appeal, 73 Conn. 341, 346,47 A. 675. Exhibit B was properly admitted in evidence; it was not indefinite, and it was duly signed by the defendant.

No facts are found which would prevent a court of equity decreeing specific performance. Therefore the trial court would have been justified in decreeing specific performance, and was justified in rendering a judgment for damages upon the second prayer for relief.

There is no error.

In this opinion the other judges concurred.