Ruff v. Hudspeth , 122 S.C. 391 ( 1923 )

January 11, 1923. The opinion of the Court was delivered by Action to recover a portion of the purchase price alleged to be due as an installment upon a contract to purchase land. The defendant resists recovery upon the ground that the alleged contract was void under the statute of frauds. The evidence in the form of written memoranda relied upon by the plaintiffs to establish the contract, and such portions of the pleadings as are pertinent to the point herein considered, will be reported.

On August 26, 1920, the defendant, Hudspeth, attended an auction sale of certain lands in York County, and bid off two of the tracts offered for sale. He was furnished with no memorandum of the sale by the auctioneer, but afterwards paid to the real estate broker "conducting the sale" a cash portion of the purchase price, amounting to $1,169.54, and received written receipts therefor signed by "Geo. W. Williams, Agent for Ruff." He also signed certain papers acknowledging the purchase of Tracts Nos. 1 and 2 of "the Ruff place," signed a memorandum of agreement authorizing Williams to resell the land, and subsequently wrote Mr. Williams to the effect that he was forced by conditions to drop his real estate deal with him "and Mr. Ruff." Certain plats were introduced, upon one of which appeared the name of G.W. Ruff and upon the other the name of L.G. Thompson.

The land in controversy was owned, and is alleged to have been sold, by five persons, viz., G.W. Ruff, L.M. Ruff, Wilborn Ruff, Carl P. Anthony, and Luther G. Thompson. Nowhere in any of the writings relied upon by the plaintiffs to bring the contract of sale within the statute of frauds do the names of these vendors appear. The nearest approach to the naming or designation of any person purporting to act as vendor in the transaction is in the signature to the receipt given the defendant for the cash payment, which receipt is signed "Geo. W. Williams, Agent for Ruff." No entry in writing appears to have been made by the auctioneer, and there is no memorandum signed by him.

For the purpose of charging the defendant, Hudspeth, it was not essential that the owners or vendors should have "signed" the contract. As was held by this Court in Sams v. Fripp, 10 Rich. Eq. (S.C.), 449, and in Peay v. Seigler, 48 S.C. 509, 26 S.E., 890, 59 Am. St. Rep., 731, the requirements of the statute of frauds under the facts there appearing "were fulfilled by the signature to the contract of the party to be bound, where the adverse party, by bringing his bill, or any writing, affirms the contract." But in those cases the names and identity of the contracting parties were disclosed by the paper writings otherwise than through the signatures.

The statute requires not only that the agreement, or "some memorandum or note thereof," shall be "signed by the party to be charged," etc., but that the memorandum or note shall be "in writing." That the memorandum so required to be in writing must contain all the essential elements of a contract is too well settled in this and other jurisdictions to require the citation of authority. It requires two parties to make a contract. That a writing which names one party and does not indicate who the other party is does not set forth an essential element of the contract would seem to follow as a necessary sequence. Hence the conclusion that the names of the vendors, or some designation of them which can be recognized without resort to parol proof, is an essential part of such a contract for the sale of real estate as will fulfill the requirements of the statute of frauds, is approved by the great weight of authority. One of the leading cases in this country so holding is that of Grafton v. Cummings, 99 U.S. 100,25 L.Ed., 366. In that case the property was sold at auction. The purchaser signed a memorandum acknowledging that he had purchased the property therein described, but neither in this memorandum nor in any other paper writing relating to the transaction was the vendor disclosed. The Court said:

"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 thing sold by which it can be known or identified, of the price to be paid for it, of 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."

In a note to the case of Mertz v. Hubbard (Kan.), 8 L.R.A. (N.S.), at page 33, the annotator says:

"The case reported holds in accordance with the great weight of authority that, in the sale of real estate, a memorandum thereof, in order to be sufficient within the terms of the statute of frauds, must show who the vendor of such real estate is. And where such memorandum shows that it is made by an agent of the vendor, who is not assuming to bind himself personally, and the vendor himself is not disclosed, as already stated, the great weight of authority holds that it does not comply with the requirements of the statute of frauds."

See Oglesby, etc., v. Williams, etc., 112 Ga. 359;37 S.E. 372; Clampet v. Bells, 39 Minn., 272, 39 N.W., 495;Ments v. Newwitter, 122 N.Y., 491, 25 N.E., 1044, 11 L.R.A., 97, 19 Am. St. Rep., 514; Breckinridge v. Crocker,78 Cal., 529, 21 Pac., 179; Schenck v. Spring Lake,etc., Co., 47 N.J. Eq., 44, 19 Atl., 881; O'Sullivan v. Overron,56 Conn., 102, 14 Atl., 300; Knox v. King, 36 Ala. 367; Sherburne v. Shaw, 1 N.H. 157, 8 Am. Dec., 47;Wheeler v. Walden, 17 Neb. 122, 22 N.W., 346; Carroll v.Powell, 48 Ala., 298; Ward v. Hasbrouck, 169 N.Y., 407,62 N.E., 434; Clark, Cont. § 118; Browne Stat., Frauds, §§ 372, 373; Benjamin on Sales (7th Am. Ed.), § 234.

In the case of Mertz v. Hubbard, supra, 75 Kan., 1,88 Pac., 529, 8 L.R.A. (N.S.), 733, 121 Am. St. Rep., 352, 12 Ann Cas., 485, the Court said:

"An imperative requirement of the statute is that the memorandum must indicate the parties. 29 A. E. Encycl. of L., 864. This requirement is not met by the naming of an agent who confessedly acts only as such. Not being personally concerned in the matter, assuming no individual liability, he is not a party to the agreement. The mention of his name is, therefore, immaterial, and fails to satisfy the statute. The memorandum being for this reason futile, no enforceable contract results. The rule that undisclosed principals may by parol evidence be charged with the burdens of a written contract, or be given its benefits, has no room for operation in such a case, because there is no valid written contract to start with to which to apply it."

The application of the rule thus clearly stated to the facts of the case at bar would seem to require no extended argument. If Hudspeth was bound to buy, it was because somebody was bound to sell. There could be no valid obligation to convey to Hudspeth what he agreed to buy unless the contract bound all — not one, or two or three — of the five owners. If the owners, the clients of Broker Williams, had declined to comply, and Hudspeth had sought to enforce the contract upon the theory that the signature of Mr. Williams was sufficient to charge all of the vendors, the inadequacy of the paper writings for that purpose is apparent. Mr. Williams signs not for himself, not for Anthony, nor Thompson, nor two of the three Ruffs, but merely as "agent for Ruff." That the case is not controlled by the principle applied in Episcopal Church v. Wiley, 2 Hill Eq. (S.C.), 584; 30 Am. Dec., 386, is obvious. In that case it was held that a memorandum of sale signed by the auctioneer of real estate was valid because the auctioneer was the agent for both the vendor and the vendee. Whether the memorandum in that case disclosed the name of the vendor does not appear. But in no view can the principle of double agency be applied where the agent is not the auctioneer, and where the writings expressly limit the character and extent of the agency, as in the case at bar.

The defendant's motion for a directed verdict should have been granted, and the exceptions assigning error in that regard are sustained. It is, accordingly, ordered that the judgment of the Circuit Court be reversed, and that the cause be remanded to that Court for the purpose of entering the appropriate judgment under Rule 27 of this Court.

Reversed.

MR. JUSTICES WATTS, FRASER, and COTHRAN concur.