Hibbard v. Hatch Storage Battery Co.

Lathrop, J. The only questions raised in this case relate to the statute of frauds. Pub. Sts. c. 78, § 1. It is admitted that the letter of the plaintiff of September 28, 1897, offering to sell the property, is sufficient as an offer. This stated that $20,000 was to be paid in cash, and a certain amount in stock of the defendant company. The letter of October 14, 1897, which accepts the proposition of September 28, contains the words^ “ the twenty thousand ($20,000) dollars to be paid as subsequently agreed to by you and the other owners of the property.” The defendant contends that the word “ subsequently ” means subsequently to the offer of the plaintiff; and that, as it does' not appear that this was in writing, there was not a sufficient memorandum to satisfy the statute of frauds. If the phrase “ as subsequently agreed ” does not mean “ as to be agreed subsequently to this acceptance,” still this is not all that took place between the parties. On November 1, 1897, the plaintiff executed a deed of the land and buildings to the defendant, and the defendant executed a certificate of 9,985 shares of the capital stock of the defendant to the plaintiff. These papers were delivered to Causten Browne, Esq., attorney for the defendant, in escrow, and a paper was signed by both parties, which stated that the delivery of the deed was to await the payment by the defendant to the plaintiff of $20,000 within four months from date, with interest. The paper in escrow refers to the deed, and the deed describes the land in question, and both must be considered as parts of the same transaction with the agreement, and, being in writing, a sufficient memorandum to satisfy the statute of frauds. See Freeland v. Ritz, 154 Mass. 257, and cases cited; Lee v. Butler, 167 Mass. 426. This view of the case renders it unnecessary to determine whether the allegations of the bill are sufficient to show a part performance of the contract. Demurrer overruled.