Fletcher v. Underwood

Mr. Justice Scott delivered the opinion of the court: Several matters are here urged as defenses to the bill. It will be necessary to discuss but one. The contract which it is claimed existed between Carney and Fletcher, and which Parriott swears that he, representing both parties, made with himself, is not evidenced by any writing. Where an agent sells real estate for another, in order to bind the principal it is not only necessary that the authority of the agent should be in writing, but also that the contract made by the agent, or some memorandum thereof, should be in writing and signed by the agent. Lasher v. Gardner, 124 Ill. 441. Appellee contends that “an inspection of the written option signed by Carney shows that it was an offer to sell the one-fourth interest for $2000, to be accepted by the end of the 27th of January, 1908,” and relies upon Ullsperger v. Meyer, 217 Ill. 262, and other cases of that character in which specific performance has been decreed in favor of a vendee against a vendor where the latter had signed the contract or memorandum and the former had not. In each of those cases the identity of both vendor and vendee could be ascertained from the writing. Here no vendee is named or otherwise pointed out by the writing. It is true, the instrument states that Carney will upon demand, within the time limited, make a good and sufficient transfer of the interest to which the contract pertains; but to whom? Manifestly, to the person to whom Parriott should make a sale. The fact that Parriott had made a sale, the Statute of Frauds being interposed, could be evidenced, as against Carney, only by a writing signed by Parriott, acting as agent for Carney. It is also urged by appellee that appellant should not now be permitted to insist upon the Statute of Frauds, for the reason that in his conversation with Parriott on January 27, 1908, he based his refusal to make a conveyance on other grounds and did not at that time suggest a defense founded upon this statute. Parriott did not then disclose to him the fact that the sale which he pretended to have made was not evidenced by any writing. Carney’s failure to suggest the defense now under consideration when the existence of that defense was known only to Parriott does not bar the right to assert it. The decree of the circuit court will be reversed and the cause will be remanded, with directions to dismiss the bill for want of equity. Reversed and remanded, with directions.