Corbitt v. Salem Gas-light Company.

leay, on arrival of ship from Sydney, Australia, due during the month of March, 1876, one hundred and fifty tons New Castle coal, delivered at Salem, at fourteen dollars per ton of two thousand two hundred and forty pounds. Payment, cash on delivery. (Signed) Salem Gas-light Co., per Miles M. Miller, Sec'y." Defendant demurred, and the demurrer was overruled.

R. Mallory and J. A. Stratton, for appellants.

Catlin & Killen, for respondents.

PRIM, C. J. We are of the opinion that the demurrer to the complaint should have been sustained on the ground that it does not state facts sufficient to constitute a cause of action. This action is based upon a written agreement which is set out in full in the complaint.

It is unilateral in its character, and is only signed by one of the parties. It is a mere proposition of one party, in writing, to purchase a certain quantity of coal from the other at a certain price mentioned, without any corresponding obligation upon the other to sell said coal at said price.

But it is suggested that it is averred in the complaint that respondents agreed to sell and deliver said coal at the price and time mentioned in said contract. This is true, but it will be noticed that the said agreement referred to in said averment is the same agreement which is set out in full in the complaint. That averment amounts to nothing more than if the plaintiff, after having set out the written agreement, had said in his averment that the plaintiffs thereby agreed to sell and deliver said coal at the price and time mentioned, to said defendants.

A promise made by one party is a good consideration for a promise made by the other party, but the promise must be concurrent and obligatory on both parties at the same time. A promise made by one party, as in this case, without a corresponding obligation or promise by the other, is void. Lester v. Jewell, 12 Barb. 502; Keep v. Goodrich, 12 Johns. 396. But it is further claimed by appellant, that the alleged agreement set out in the complaint is within the statute of frauds, because there is no consideration expressed in it, as moving from the respondents to appellant to support the promises made by said appellant.

The alleged agreement is one for the sale of personal property at a price not less than fifty dollars, and there is no consideration

Corbitt v. Salem Gas-light Company.

expressed in the said writing, nor can any be inferred from any thing that is expressed therein. Our statute of frauds provides that an agreement for the sale of personal property at a price not less than fifty dollars is void, unless the same, or some note or memorandum thereof expressing the consideration, be in writing, and subscribed by the party to be charged. Civil Code, 264, § 775. Thus it will be seen that our statute expressly provides that the consideration must be expressed in writing, or the agreement is void. Many of the New York decisions hold that the consideration must be expressed in writing under a statute which does not provide that the consideration must be expressed. Hyatt v. Wood, 3 Johns. 239; Case of Yates, 4 id. 335. Respondent having averred in his complaint that the alleged agreement was in writing, and having set it out in full it cannot be presumed that it was in writing, as in the case of Taylor v. Patterson & Co.

It follows, from the views herein expressed, that the judgment must be reversed and remanded to the court below for further proceedings.

Judgment reversed.

NOTE BY THE REPORTER.- Where subscription by the "parties" is required, it is a delicate question whether that word is used in a general sense of one party in all such contracts, or of both parties to the same contract. The authorities widely differ. Parsons says: "It is now quite settled that the agreement need not be signed by both parties, but only by him who is to be charged by it. 3 Cont. 9. The New York statute of frauds requires a subscription of the memorandum "by the parties to be charged thereby," and Kent says of this case, 2 Com. 510: "The signing of the agreement by one party only is sufficient, provided it be the party sought to be charged. He is estopped by his signature from denying that the contract is validly executed, though the paper be not signed by the other party who sues for the performance." See, also, Clason v. Bailey, 14 Johns. 487. In Justice v. Lang, 42 N. Y. 493; s. c., 1 Am. Rep. 576, an action against the vendor, it was held that a subscription by the vendor alone was sufficient. The court in an opinion of thirty pages review the authorities. But the same case came up again, 52 N. Y. 323, and while the former decision was adhered to on the principle of stare decisis, yet its soundness was seriously questioned, and it was held that parol evidence of a promise on the part of the plaintiff to accept and pay, having been given, in order to show mutuality, it was a question for the jury, and that the court erred in directing a verdict for the plaintiff. The court observe: "The case presented a grave question; and without more consideration than I have now given it, I should have hesitated before assenting to the conclusions of the learned and accurate judge by whom the prevailing opinion was given, that a promise, void in law, made by one party, was a good consideration for a promise by the other. It is not easy to discover any of the elements of a consideration in such a void promise. It is neither a benefit to the one, nor a loss to the other party. The fact that the promise of the defendants was in writing and subscribed by them,

Corbitt v. Salem Gas-light Company.

as required by the statute of frauds, did not dispense with the necessity of a consideration, and that is found, as is claimed, in the implied verbal promise of the plaintiff to accept and pay for the rifles." "There is no agreement in form nor in fact between the parties, signed by both, from which mutual and corresponding undertakings would be implied. The undertaking of the defendants is in form, as well as in execution, unilateral. The act of the plaintiff, in putting the memorandum in his pocket and walking off, has no particular legal significance, and no inference can be drawn from it as a legal presumption." The case was tried a third time, before a referee, and he having found as a fact that the agreement was not delivered absolutely, but conditionally, and that the plaintiff did not perform, and rendered judgment for the defendant, this was affirmed. 63 N. Y. 633. It is apparent from the opinion in 52d N. Y. that in another case the doctrine of 42d id. would not be followed.

In Indiana, a subscription by the party sued was held sufficient. This was founded on the English decisions. Shirley v. Shirley, 7 Blackf. 452. So at an early day (1819), in South Carolina, Douglass v. Spears, 2 Nott & McC. 207. This was founded on Lord ELLENBOROUGHS decision in Egerton v. Mathews, 6 East, 307, that "this was a memorandum of the bargain, or, at least, so much of it as was sufficient to bind the parties to be charged therewith, and whose signatures to it is all that the statute requires." The same doctrine is laid down in Minnesota, Morin v. Martz, 13 Minn. 191. The court here say: "It will also appear from the authorities cited, that the language 'who is to be charged by it,' is held equivalent to the language 'who is to be charged by it in the suit,' or 'against whom it is sought to be enforced.' It is urged in this case that the use of the plural word 'parties' is significant when read by the light of other portions of the same statute, in which the singular word 'party 'is made,use of, and that it is fair to infer that the legislature intended to comprehend in the term 'parties' all the parties to the contract. In Classon v. Bailey, supra. Chancellor KENT adverts to this point, saying: “There is a slight variation in the statute respecting agreements concerning the sale of lands, and agreements concerning the sale of chattels, inasmuch as the one section (being the 4th section of the English and the 11th section of our statute)' speaks of the party, and the other section (being the 17th of English and 15th of ours), speaks of the parties to be charged. But I do not find from the cases that this variation has produced any difference in the decisions. The construction on the point under consideration has been uniformly the same in both cases. It would seem, then, that by a strong and united current of authority, the signification of the words 'parties to be charged therewith,' or of words equivalent in the statute of frauds, has been settled by adjudications reaching over a very long period of time. These words have acquired a meaning which it was not absolutely necessary to give them in the first instance; a meaning which has been frequently regretted by courts, but nevertheless a meaning settled and established by long usage. There is no practical, rational way of determining the meaning and definition of words and phrases, except by inquiring in what sense they are usually employed in the connection in which they are found."

Under the Ohio statute, in which the word party is employed, it seems that subscription by the one sued is sufficient. Anderson v. Harold, 10 Ohio, 399. In Massachusetts, where the word party is used, the court say, in a case reviewing the authorities: "We do not think that it is essential to the validity of a contract, required by the statute of frauds to be signed by the party, hat each party should be alike bound to the performance of the contract, by his written signature thereto." Old Colony Railroad Corporation v. Evans, 6

Corbitt v. Salem Gas-light Company.

Gray, 31. But in this case the necessity of proving mutuality is not recog nized, and the court say: "The result is therefore that there may be a mutual contract, to which both parties have given their assent, though the evidence of such assent may exist in a different form as regards the two parties; that, as to one, it may be verbal, while the other's is expressed by his signature in writing, and that the latter may be bound to perform his contract, while the first party might avoid his by reason of the statute of frauds." So a written offer by the defendant, orally accepted by the plaintiff, is valid. Lerned v. Wannemacher, 9 Allen, 412; but a written offer by the plaintiff, orally accepted by the defendant, is not binding. Smith v. Gowdy, 8 id. 566. Maine is on the same side. in the Maine statute is party. The case of Geiger v. Green, 4 Gill, 476, held that equity would not enforce specific performance of a contract, signed by the land-owner alone, granting the privilege of digging and moving ore, because it was not mutual. The court say: "But the contract grants to the appellee the mere privilege of digging ore, and is not compulsory in its character; a privilege to be exercised or not, at his pleasure, imposing no corresponding obligations; and if the appellee considers the agreement into which he had entered injurious, and refused to work the mine, it is apparent from every part of this paper, that the proprietor possessed no power to enforce in a court of equity an observance of the contract." "A contract so unequal in its stipulations and bearing, which binds one party, while it leaves the other unfettered, as it respects the observance of its terms, in which there are to be seen no mutual or reciprocal engagements, and which must be regarded therefore as unreasonable and inequitable, can never be enforced by a court of equity." Chancellor KENT held the same doctrine in Benedict v. Lynch, 1 Johns. Ch. 370. Although these cases are cited by counsel and conceded by the court in Old Colony Railroad Corporation v. Evans, supra, to be against the Massachusetts doctrine, we cannot see their applicability. So, in Lawrenson v. Butler, 1 Sch. & Lef. 13, it was held, that where nothing had been done under an agreement, the court ought not to decree specific performance except when the right to compel it is mutual. But this is not recognized in subsequent decisions. Laythoarp v. Bryant, 2 Bing. N. C. 735.

Barstow v. Gray, 3 Greeul. 409. The expression

The modern English doctrine requires both names to appear in the memorandum as parties.

The language of the statute is "parties to be charged." In Vandenbergh ▼. Spooner, L. R., 1 Exch. 319, the court say, "Can the essentials of the contract be collected from this document by means of a fair or reasonable intendment? We have come to the conclusion that they cannot, inasmuch as the seller's name as seller is not mentioned in it, but occurs only as part of the description of the goods." So in Laythoarp v. Bryant, 2 Bing. N.C. 735, TINDAL, C. J., says, "T admit that an agreement is not perfect unless in the body of it, or by necessary inference, it contains the names of the two contracting parties," etc. Here an agreement to buy real estate, not signed by the vendor, was held good.

At au early day it was held by Lord MANSFIELD (Champion v. Plummer, 5 Esp. 240, A. D. 1805), that the obligation must be reciprocal, because of the use of the word "purties." It would seem, however, that the decision was aimed at the omission to "specify any buyer," and not at the omission of the buyer to sign. Saunderson v. Jackson, 2 Bos, & Pull. 238, was where the vendor delivered a bill of parcels, at the head of which their names appeared as vendors, and subsequently they wrote and signed a letter asking for time to deliver the balance of the goods. Lord ELDON, C. J., held this a valid memorandum in an action by the vendee.

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Corbitt v. Salem Gas-light Company.

In Allen v. Bennett, 3 Taunt. 175, Lord MANSFIELD says: "It was then objected that one party, who has not signed, is not bound: but the fact was the same in the cases of Egerton v. Matthews and Champion v. Plummer, and the objection was never taken in either of these cases; but the whole of this case supposes that the plaintiff had agreed; suppose he had not contracted by writing, he has by parol, and he is bound in honor; and it has never yet been decided that an obligation in honor would not be a good consideration. All these cases, Egerton v. Matthews, Saunderson v. Jackson, aud Champion v. Plummer, suppose a signature by the seller to be sufficient, and every one knows it is the daily practice of the court of chancery to establish contracts signed by one person only, and yet a court of equity can no more dispense with the statute of frauds than a court of law can."

In Laythoarp v. Bryant, supra, the court say: "By what party?' By the party to be charged therewith,' the defendant in the action." See, also, Seton v. Slade, 7 Vesey, 275; Fowle v. Freeman, 9 id. 351; Bowen v. Morris, 2 Taunt. 887.

It was held in Sharman v. Brandt, L. R., 6 Q. B. 720, that one party could not sign the name of the other as his agent. The same was held in Rayner v. Linthorne, 2 C. & P. 124.

Of the principal case, then, it may be said, that although based upon old New York decisions, yet the opinion of Chancellor KENT and the leading subsequent New York case is the other way; all the decisions of the other States, with one exception, and the opinion of Parsons, are the other way; that the English decisions are the other way, on a statute requiring apparently a dual subscription; but that the apparent present leaning of the New York Court of Appeals is in harmony with it.