Jones v. School District No. 48

HART, J., (after stating the facts). It is claimed by counsel for the appellant that the memorandum signed by J ones is not sufficient to take the case out of the statute of frauds and that it is not enforceable. Our statute of frauds provides that no action shall be brought to charge any person upon any contract for the sale of lands or any interest in or concerning them unless the agreement, promise, or contract upon which such action shall be brought, or some memorandum or note thereof, be made in writing and signed by the party to be charged therewith. Kirby’s Digest, section 3654. It will be noted that the statute does not require that the contract itself shall be reduced to writing and signed by tbe parties thereto. It is sufficient if there be a memorandum of the contract signed by the party to be charged. The great weight of authority is that the words, “the party to be charged,” refer not to “the party to be charged” with the contract, but to “the party to be charged” in the action, that is, the defendant. And the fact that the plaintiff has not signed the memorandum does not affect his right to maintain the action. Ullsperger v. Meyer (Ill), 3 A. & E. Ann. Cas. 1032, and note at 1036. See also Flegel v. Dowling (Ore.), 19 A. & E. Ann. Cas. 1159, and Western Timber Co. v. Kalama River Lumber Co. (Wash.), 7 A. & E, Ann. Cas. 667, 6 L. R. A. (N. S.) 397, and case note. One of the reasons usually given for this exception is that by resorting to a suit for specific performance, the party who did not sign, adopts the agreement and renders it obligatory upon himself. Our court has adopted the rule that a verbal acceptance of a written offer to sell land is sufficient to constitute a binding agreement on which to charge the person by whom the memorandum is signed. If the memorandum is otherwise sufficient when it is assented to by the purchaser, the contract is consummated by the meeting of the minds of the two parties, and the evidence to make it valid is supplied by the signature of the parties sought to be charged. Vance v. Newman, 72 Ark. 359, and Meyer v. Jenkins, 80 Ark. 209. The language of the writing in the present case shows that it was a contract for the sale of the land, and that it was intended to be mutually binding upon both parties. It recites the fact that Jones had agreed to sell to the school district four acres of land at $100 per acre; that the agreement was conditioned on the vote of the district to move the school building to the location. The school district voted to remove the school house to the location and the directors notified Jones of the district’s acceptance of the contract. This, under the authorities above cited, made it a valid and binding- agreement between the parties, and the court below was right in so holding. Again, it is objected that tbe notice of the annual school meeting was not given in conformity with section 7629 of Kirby’s Digest. The objection is that the notice did not contain a description of the site to be purchased, nor from whom it was to be purchased, and that, therefore, the election was void. We do not think the objection is tenable. The notice plainly stated that a vote was to be taken for a building site for the school house. This was sufficient. It' was also shown that the voters knew that the land was to be purchased from Jones. Finally, objection is made to the action of the court because Jones had mortgaged the tract of land of which the four acres was a part. The mortgagee was not made a party to this suit, and his interests are not affected thereby. Hence there is nothing in this objection. It follows that the decree will be affirmed.