Love v. . Cobb .

Reads, J. I. The plaintiff cannot have a specific performance by defendant Cobb, for the reasons, (1) that Cobb had not tbe legal title at tbe time of tbe contract, nor has be it now,, nor can be get it, because tbe defendant Homesly has it, and refuses to make it to Cobb. And tbe fact that Cobb bad neither tbe title nor tbe possession, was known to tbe plaintiff,, and be made tbe contract in full view of tbe fact, and, of course, he knew that be was taking tbe chances of Cobb’s being able to get the title from Homesly. It is all tbe same, so far as this case is concerned, as if Cobb bad said, in so. many words, “ I will make you tbe title,provided I can get it. from Homesly. ” And if be chose to deal under sucb circumstances, be must be left to bis remedy at law. (2) It must be supposed to have been in tbe contemplation of the parties,, when they made the exchange of lots, and the plaintiff gave bis bond to Cobb for $6000 as the difference in the value of" tbe lots, that tbe plaintiff was to pay some value; but by reason o£ an unforeseen event, tbe result of the war, the funds in which the difference in value was to be paid, Confederate Treasury notes, were worthless. To decree a specific performance would, therefore, work manifest injustice to the defendant, Cobb. It is true that tbe plaintiff offered to pay Cobb what, the Confederate notes were worth at tbe time of tbe contract:: *327 wbicb would answer tbe ends of justice; yet that would not be the contract which he is seeking to have specifically performed. And, (3) if a specific performance were decreed, it might amount to the perpetual imprisonment of Cobb, upon his failure to make title, — for he has not the title; or, at least, it would put him in the power of Homesly to demand an unreasonable price for title. It would be otherwise, if the Court could see that it was quite within the. power of Cobb to get the title upon fair terms; Nor would it avail the plaintiff anything, to have a decree against Cobb for title with covenants of warranty of title, so as to give the plaintiff remedy at law upon the warranty, for he has the like remedy now upon the contract, if it be valid, II. The plaintiff is not entitled to a decree for specific performance against the defendant Homesly, because his contract was not with Homesly, but with Cobb. The bill states that the contract was with Cobb as principal, and that the pre-tence of his agency for Homesly is untrue. It is true that Cobb in discharge of himself, states in answer, that he was the agent of Homesly; and if the bill had been framed, or amended after the answer, to meet that view, the question might be considered; but both the plaintiff and Homesly deny the agency, and the plaintiff cannot, even under the general prayer, have relief contrary to the express allegations and general scope of the bill. It is true that the amended bill argues that if it were true that Cobb was the agent oí Homesly, and the contract in its inception was imperfect under the statute of frauds, yet the defendant Homesly ratified and confirmed the contract after it was made, and is obliged to perform it. We cannot allow the plaintiff the advantages of an argument against the facts, as he alleges them to be. But considering the case as if it were properly charged, then the acts relied on to make out a ratification and confirmation of the contract on the part of Homesly, are (1) that he took possession of the lots which Cobb got from the plaintiff, and repaired them; and (2) contracted to sell them; and (3) took from Cobb the $b,000 bond, which was given as the difference in the prices. It is a *328 plain proposition, that unless the contract purported to be Homesly’s, it could not be ratified or confirmed as his. If the contract was Cobb’s, then, however ratified and confirmed, it was ratified and confirmed as Cobb’s. Homesly might have adopted, as his own, the terms of contract which was Cobb’s, and then he would have been bound by it. But it is to be • noted that, under the statute of frauds, a note or memorandum in writing, signed by the party to be bound, or his agent, is necessary to the validity of a contract for the sale of land. If, therefore, the contract as made, was not Homesly’s, and it be put upon the ground that he subsequently adopted it as Ms, then the adoption must be by the same solemnities as were required for the original contract, for to him it is original. If, therefore, the contract as made was Cobb’s, in order to make it Homesly’s by adoption, the adoption must be by some note or memorandum in writing; else it would be, that a man might do by the instrumentality of another, what he could not ■do himself. It would be different if the contract purported to he Homesly’s; for, in that case, although made without his authority, he. might ratify and confirm it, and that might be proved by parol. But to set up a contract in writing, purporting to be the contract of A, by parol evidence that it was not the contract of A, but was the contract of B, would be liable to the two-fold objection, (1) that it violates the statu A of frauds, and (2) contradicts writing, by parol. There will be a decree dismissing the bills without costs. Per Curiam. Bill dismissed.