Thornton v. Kelly

Dukfee, C. J. This is an action of assumpsit, tried to tbe court, jury trial being waived. It was brought to recover damages of tbe defendant for refusing to take and pay for a bouse and lot of land wbicb tbe plaintiff alleged be agreed to purchase of bim. Tbe written memorandum of agreement was as follows: — “ I hereby agree to sell to John Kelly tbe bouse and lot situate on Lockwood Street, second lot east of Clay Street, on north side of Lockwood, for tbe sum of ($7,000) seven thousand dollars, and agree to give a satisfactory deed on or before tbe first day of September next, and hereby acknowledge tbe receipt of ten dollars on account of above sale. “ Witness: ) “ Jas. F. Donnelly. \ Wm. E. Thornton. John Kelly. “Providence, August 7, 1872.” After tbe refusal of tbe defendant to take and pay for tbe land, tbe plaintiff sold ito at public auction for $6,000, having notified tbe defendant of tbe sale. Tbe plaintiff claims to recover in this action tbe difference between tbe stipulated price and tbe auction price, less tbe ten dollars paid on account, with interest and tbe expenses of tbe sale, by way of damages. The defendant made no contest upon tbe facts, but contended that tbe action could not be sustained under tbe statute of frauds, Gen. Stat. R. I. cap. 193, § 8, tbe written memorandum being insufficient to charge bim. We think tbe action lies. Tbe memorandum gives tbe terms of a complete contract. It identifies tbe land to be sold; tbe price to be paid for it; tbe party who sells it; and tbe party to pay for and receive it. It is said it imports merely an offer, not an agreement. Tbe language is, “ I agree to sell.” Tbe word “ agree ” is sometimes used to signify an offer merely; but, prop *500 erly speaking, it imports concurrence or assent. It clearly imports concurrence here ; for the memorandum goes on to acknowledge the receipt of ten dollars “ on account of above sale. There can be no sale on the one side unless there is also a purchase on the other. The word u sale ” necessarily imports concurrence or agreement. It shows, then, that the contract between these parties was complete, and that it only remained to carry it into effect. The memorandum is, however, peculiar, and deserves to be further considered. It is signed by both the plaintiff and the defendant. Its language is, “ I agree to sell,” without naming the vendor. Who, then, is the vendor ? Clearly not the defendant, for the defendant is named as the vendee. The plaintiff, is the vendor. The memorandum admits of no other reasonable construction. Another peculiarity is, that the memorandum does not show in express terms any promise or agreement to purchase or pay for the land by the defendant. It is contended, because this is so, that the defendant cannot be charged. If the statute of frauds required a complete written contract, the objection might, perhaps, be fatal. But the statute does not require a complete contract. It requires only that the promise or agreement, “ or some note or memorandum thereof,” shall be in writing. We do not think there can be a doubt that the memorandum here would have been sufficient to charge the plaintiff in favor of the defendant, if the plaintiff had refused to fulfil the contract on his part. Why, then, is it not sufficient to charge the defendant in favor of the plaintiff ? The answer given is, that it does not show any promise in writing by the defendant. But it shows that there was a valid agreement between the plaintiff and the defendant, and what the agreement was; and such a memorandum, signed by the party to be charged, is all that the statute requires. If the defendant had prefixed to his signature the words “ agreed to,” or “ assented to,” no one would question his liability. But that he did agree or assent is proved by the fact that he paid fen dollars on account, which, by signing the memorandum, he impliedly admits. To require more would be to' give the statute an unnecessarily strict and technical construction. And see Atwood v. Cobb, 16 Pick. 227; Johnson v. Hodgson, 2 M. & W. *501 653 ; Sarl v. Bourdillon, 1 C. B. N. S. 188; Salmon Falls Manuf. Co. v. Goddard, 14 How. U. S. 446 ; Barry v. Coombe, 1 Pet. 640 ; McConnell v. Brillhart, 17 Ill. 354. We give the plaintiff judgment for $1,486.20 and costs.