Justice v. Lang , 30 How. Pr. 425 ( 1866 )

By the court, Robertson, Ch. J.

The plaintiff seeks to recover damages for the non-performance by the defendants of a promise contained in an instrument in writing signed by them, which is as follows :

“New York, May 13th, 1861.

“ We agree to deliver P. S. Justice one thousand Enfield pattern rifles (with bayonets, no other extras) in New York, at SI8 each, cash upon such delivery; such rifles to be shipped from Liverpool not later than 1st of July, and before, if possible.”

Such instrument, or any similar one, was not signed by the plaintiff; no money was paid on account of the sum mentioned therein, no,r were any of the articles mentioned therein ever delivered by the defendants and received by the plaintiff. On the trial, the complaint was dismissed.

This raises the question whether under the third section of the statute of frauds (2 R. S. 186), a contract for the sale of goods is binding on the vendor, unless a note or memorandum thereof in writing, be signed by the vendee as well as by him, where no part of the goods are delivered, and no part of the purchase money is paid. It is clear that the vendee is not bound by such contract in such case unless he signs it, and there is, therefore, no consideration for the undertaking of the vendor. The question, therefore, presents itself, whether the statute referred to by such section intended to alter, in regard to promise in writing for the sale and delivery of goods, the rule of the common law that a parol promise without a consideration was void, and has used language sufficient for the purpose. That rule was originally adopted to prevent frauds and perjuries. It assumes that it is unnatural and unusual for any party to intend legally to bind himself to do anything without some equivalent. If the promise be gratuitous, the law properly held its performance should be entirely voluntary. If a consideration is testified to, fraud in it or its inadequacy or failure may be set up as a defence. At the same time the law afforded to a promisor an opportunity to bind himself legally without a consideration, by the solemnity of a writing under seal. If proof of the parol agreement, of the party not signing, to comply with the terms of such an instrument be necessary to make it binding on the parties signing, it is evident that some part of that which goes to make up the contract must depend on parol evidence, that evidence may be conflicting, and the whole evil intended to be guarded against is let in. If no proof of such parol agreement is necessary, a mere proposal'or offer in writing, could be converted into an agreement binding on the makers of it at the pleasure of the party receiving it at any time afterwards. The voidness of a parol agreement without a consideration, was not one of the evils intended to be guarded against by the statute of frauds, but dependence upon parol testimony to make up any part of what constitutes a contract of the kinds mentioned therein in the cases therein specified (Abee agt. Radcliff, 13 J. R. 297). Under the original statute of frauds, which did not contain the words “ expressing a consideration,” it was early held that a consideration must appear on the face of the instrument signed, otherwise the whole contract did not appear in writing (Wain agt. Walters), and it was so decided in this state (Sears agt. Brink, 3 J. R. 210). Clearly then, if a consideration was stated, which for any reason was not good, the written promise would not be binding. For if the written memorandum signed by the vendor alone should state that the vendor bound himself to sell and deliver certain goods in consideration of a mere parol promise of the vendee to buy them, without the payment of any part of the purchase money by the vendee, or delivery of any of the goods by the vendor, it would not set out a contract but a mere promise, without a valid consideration, and the vendor cannot be put in a worse situation by omitting to state the consideration in such memorandum. In the case of Roget agt. Merrit (2 Caines, 117), although the learned justice (Spencer) thought it enough for the one who had to “ perform the principal part ” of the contract, such as to deliver the goods, to sign it, and the other to accept it, he yet held that the defendant was not bound, because the consideration agreed (orally) to be given by the plaintiff failed. I am unable to appreciate the distinction between a void or not binding consideration, and one that fails in regard to the obligatory character of the whole contract. The language of the section of the statute in question is “ subscribed by the parties to be

* charged thereby.” This is in contrast with the language of the immediately preceding section (§ 2), where the words are “ subscribed by the party to be charged,” but the agreement recited therein are those in which one party is .to receive all the benefits, and is not required to do anything. The first is an agreement to perform anything whose performance may require over a year. The second is a promise to answer for the debt of another, and the third is every agreement whose consideration is a marriage the length of time in the first case., and the danger of a misunderstanding and imperfect resolution, if not perjury, in the second and third, make it proper to. insist on the production of a written contract from the party agreeing to do the work, pay the debt, or for the consideration of a marriage do anything more, while proof of the consideration moving from the party for whom the work is done, to whom the debt is paid, or the person who marries in consideration of the promise, can safely be trusted to parol evidence. The sections of the same statute relating to conveyances creating, 'granting, assigning, surrendering or declaring interests, powers or trusts in lands (2 R. S. 134, §§ 6, 7), and to contracts for the lease or sale of lands, or any interest therein (2 R. S. 135, 8, 9), are made still more definite, as the first are required to be subscribed only by the party creating, granting, assigning, surrendering or declaring such interests, powers or trusts, and the second only by the party by whom the lease or sale is to be made. But a sale of goods implies certain things of' a definite character to be done on both sides, the terms of which are to be definitely fixed. The goods are required to be delivered, and the title thereby transferred by the vendor, and in consideration of a price, and the price is to be paid as such by the vendee in consideration of the transfer of the goods. The partial performance of either is made equivalent by the statute to a writing, undoubtedly on the same principle on which equity sustains a mere oral contract to convey lands. “ Parties to be charged in such case, means something more than the party who alone is to be charged ” with the performance of work beyond a year, or the payment of the debt of another, or to do something in consideration of a marriage, which is an executed consideration. It means the party who is to pay the price, as well as the party who is to transfer the goods, the contract on both sides being of a well defined character, consisting of but one kind of obligation on each side, with whose performance the parties are respectively to charge themselves by the subscription. I am satisfied, therefore, that the intention of the statute in regard to a contract of sale and purchase of goods, was that the obligations on both sides, which are of a fixed and definite character, although their terms may vary, should"be assumed by both parties by signing a written contract, in order to be binding on either ; and that this view is supported by the general objects of the statutes to secure certainty and prevent frauds, by the definiteness of the obligations to be assumed on both sides in a contract of sale, and the marked difference in language when the consideration on one side, which may be infinitely varied for certain specified obligations in the other, is left open and not defined, or the consideration is the peculiar executed one of a marriage, or the instrument to be signed affects land. The learned judge who delivered the opinion of the court in Dykers agt. Townsend (2 N. Y. 57), sustains this view when he says : “ As an original question, I should have no hesitation in saying, in a case where a contract was entirely executory on both sides, and no part of the consideration had been paid, that it was necessary it should be in writing under this statute, and be signed by both parties thereto, in order to be binding on either.” It remains to be seen, therefore, whether it is an original question.

Courts of equity, in enforcing the specific performance of agreements in relation to land, early took the ground that they could be enforced if signed by the vendor (Hatton agt. Gray, Eq. Cases, Abr. 21, pl. 10). Of course, if it could be enforced against the vendor, such liability, although only in a court of equity, would constitute a sufficient consideration for the promise of the vendee. And if he thus became liable at law; the vendor would equally become so. To sustain such doctrine, it has been held that the vendee, by coming into court to enforce performance, has given his assent in writing to the contract by his bill of complaint, as under another section of the statute an answer has been held to be a sufficient declaration of trusts in writing.

In Worrall agt. Munn (1 Seld. 246), Paige, J., in delivering the unanimous opinion of the court, held that want of mutuality constituted no defence to a suit for specific performance. He also assigned as a reason, that the vendor or party to be charged was estopped by his signature from denying that the contract was validly executed, although not signed by the other party who sues for the performance. I do not see why the peculiar language of the statute would not be satisfied with the subscription by the vendor of a written obligation to couve}’- in consideration of an oral promise to pay ; or why such oral promise to pay, in consideration of an oral promise to convey, should not be as binding as one to pay for land actually sold and conveyed. (Thomas agt. Dickenson, 12 N. Y. 364; Murray agt. Smith, 1 Duer, 412.) But even in regard to that section of the statute respecting lands, the question if settled, has not been so without conflicting and fluctuating decisions, as may be seen by reference to the cases examined by the learned chancellor in Classon agt; Bailey (14 J. R. 480). The cases of Egston agt. Matthews (6 East, 307), and Sanderson agt. Jackson (2 Bos. & Pul. 238), which were in reference to the last mentioned section, although cited by Hakcy, J., in Russell agt. Nicoll (3 Wend. 112), as though they referred to that in relation to sales of goods, have since been questioned in England.

Undoubtedly Lord Kenyon had referred to the decisions in that section as well as others, when he and Baron Grose in Cooper agt. Edson (7 Term Rep. p. 17), and himself again in Charles agt. Bickett, in the same volume of reports (p. 203) deplored the departure from the strict letter of the statute, the weakening of it by construction, and the creation of exceptions to it. All the cases, therefore, such as Ballard agt. Walker (3 J. R. 60), Fenley agt. Stewart (5 Sandf. 101), in which contracts for the sale of lands were involved, may be disregarded as standing on peculiar grounds, and not conclusive on this question.

I have already observed that the purchaser of lands has been considered as bound for the purchase money, although he did not subscribe the contract of purchase, provided the vendor did. Indeed, any other principle would make the statute, as observed by Lord Redesdale in Lawrence agt. Butler, one of frauds, instead of against them. He also remarked that there was no late case in which equity had denied performance where one party only was bound. Nor do I understand the reasoning in Fenley agt. Stewart (ubi sup.), in this court, although quite artificial, as impugning that principle ; that merely advances the doctrine that the statute takes away the power of enforcing contracts, unless the party against whom they are sought to be enforced have subscribed some note thereof in writing, without adverting to the grounds on which courts of equity have enforced contracts, such as the one in controversy in that case. In the case of Roget agt. Merritt (ubi sup.), already alluded to, the court expressly avoided deciding the case upon a construction of this statute, and in the case of Bailey agt. Ogden (3 J. R. 399), decided six years afterwards in the court of last resort, it was held to be an open question. In the latter case (Bailey agt. Ogden), two memoranda had been made of the supposed contract, and it was held were sufficient within the statute, and the decision was put upon that ground, Chancellor Kent expressly declaring that the obligation of the plaintiff, who alone had signed the agreement, was not a question about which they were bound to inquire. In the case of Merritt agt. Classon (12 J. R. 102), in the supreme court, the eminent counsel employed on both sides put the case upon the single question, whether the agreement which had been signed by a broker was binding on both parties, and Justice Platt, delivering the opinion of the court, declared the sufficiency of such memorandum to bind the defendant. In the same case on the appeal, under the title of Classon agt. Bailey (14 J. R. 484), the decision in the court below was sustained upon that ground alone, although after a thorough review of the cases, many of which were upon contracts for the sale of land, the learned Chancellor (Kent), without adverting to the difference of language of the two sections, leaned in favor of the doctrine that signing by one party was sufficient, yet expressly disclaimed “ placing the cause on that ground.” In Russell agt. JYicholl (3 Wend. 112), no objection was made on the trial to the contract; a non-suit was granted on other grounds affecting the merits, which were sustained by the supreme court on an appeal, one of which was that the contract was on a contingency which had not happened. I have already noticed that the English cases cited by the learned judge who delivered the opinion of the court in that case, as authority for his incidental remark that the signature of the defendants to the contract was a sufficient compliance with the statute, referred to contracts for the sale of lands. In the case of Dykers agt. Alstyne (ubi sup.), already alluded to, the question was not raised, and the court of appeals refused to consider it, because it might have been obviated by the production of a counterpart. In the opinion given in it, the learned judge who delivered it expressed the views of which I have before given the language; It is true, he adds, that “ we think this ” (the signature by defendant’s agent) “ was a sufficient compliance according to the settled construction which has been given to it,” but as it was not necessary for the decision of the case, was rejected as a proper subject for consideration, is unsustained by any authority cited, and its decision seems to have been constantly avoided. I trust it will not be considered presumptuous to consider the question open, and to adhere to the other part of the same opinion, as founded on reason and not overthrown by authority.

I cannot, therefore, without supposing the statute of frauds to have been intended to overthrow the principle of mutuality in agreements for the sale of goods, and make a parol contract in such case without a consideration binding on the party signing, and introducing a latitudinarian construction of the statute, sustain the plaintiff’s right of action.

The complaint was, therefore, properly dismissed, and the judgment and order denying a new trial must be affirmed, with costs.