Rafferty v. Lougee , 63 N.H. 54 ( 1884 )

The plaintiff relies upon the notices of sale, the memorandum made by the auctioneer, and the receipt, as a compliance with the statute of frauds. The notices of sale purport to be signed by the defendant Mrs. Lougee, and by McDaniel as auctioneer; the memorandum is not signed by any one, and the receipt is signed by the auctioneer. These writings do not meet the requirements of the statute. No memorandum actually signed by Mrs. Lougee is produced. The printed notices of sale bearing he printed signature were procured and issued by the auctioneer acting under verbal instructions. He was not authorized by writing to sign any agreement or memorandum of a contract for the sale of the land for or in behalf of Mrs. Lougee. If the distribution and use of the notices with her knowledge and approval was an adoption of the printed signature equivalent to an actual signing (a point upon which we express no opinion), they do not contain the memorandum required by the statute, because they furnish no evidence of any contract for the sale of the land.

It is contended that the notices of the auction sale, purporting to be signed by Mrs. Lougee and issued by her direction, announcing McDaniel as auctioneer, conferred upon him the authority by writing requisite to act as her agent in signing the memorandum required by the statute. It is unnecessary to examine the soundness of this view. because, if the authority of the auctioneer to sign the memorandum is conceded, he failed to exercise it. The memorandum required by the statute must be signed by the party to be charged, or by his agent thereto authorized by writing. G. L., c. 220, s. 14; Bro. St. Fr., s. 355. It must show the essentials of the contract, including the contracting parties. Brown v. Whipple, 58 N.H. 229. It must be sufficient to identify the parties, land, and price, without resort to parol evidence. Grafton v. Cummings, 99 U.S. 100.

The notices of sale and the receipt for the money paid by the plaintiff are the only writings signed either by Mrs. Lougee or the auctioneer, and they contain no reference to any other writing. From these alone it is impossible to ascertain the terms of a contract for the sale of the land. The defect cannot be supplied by the entry in the auctioneer's book, because that is neither signed nor made by reference or annexation a part of any duly authenticated writing, and for this reason it cannot be treated as a part of the memorandum required by the statute. Bro. St. Fr., s. 346 b; O'Donnell v. Leeman, 43 Me. 158; Horton v. McCarty, 53 Me. 394; Brown v. Whipple, 58 N.H. 229. An unsigned memorandum made by an auctioneer, unconnected by annexation or reference with any writing duly authenticated by the signature of the party to be charged or his duly authorized agent, is not admissible in evidence as a part of the memorandum required by the statute of frauds.

Exceptions overruled.

BLODGETT, J., did not sit: the others concurred.