Blood v. Hardy

After a continuance, the opinion of the Court was prepared by Westoiv C. J. A contract in relation to real estate, to be binding at law, must be in writing, signed by the party to be charged, or some other person thereunto by him lawfully authorized. The instrument adduced in evidence, is not under seal. It was not necessary, that the authority of Hardy to sign for Perkins, should be in writing. It might be given or proved by parol; and the testimony received to prove it, was, in our judgment, competent. The jury were properly instructed Upon this point. If they have found the authority, without sufficient evidence, it is not matter of exception to the opinion of the Judge. But we cannot say, if it was a question before us, that it was insufficient. The defendants were general partners. They bought the bond for the land jointly, to sell again, with a view to profit. They sold jointly ; and re [64] ceived a note payable to tbem, by the name of their firm. This may not have been, and probably was not, a part of their ordinary partnership concern; but being connected, they might speculate together in a business, which attracted general attention at that pe-> riod. The agreement contains these Words, “ provided Milford P. Norton, Esq. thinks that we are in justice bound, to grant said additional interest.’* This was a condition or qualification interposed, for the benefit of the defendants. We doubt not, they might waive it by paroh In Fleming v. Gilbert, 3 Johns. 520, it was held, that the strict performance of the condition of a bond, might be so waived. And the same opinion is intimated in Dearborn & al. v. Thrasher, 7 Cowen, 48. If the proviso was waived, which is in proof, the plaintiff became entitled to the benefit of the contract by paying, or offering to pay, his proportion of the purchase money. The plaintiff made the requisite tender. As it was refused, he is under no obligation to bring the money into Court. He is not the debtor of the defendants. They have realized the profits, in which the plaintiff was to be a sharer. The amount of his proportion was received by them to his Use, which sustains the plaintiff’s declaration. Exceptions overruled.