Marqueze v. Caldwell

Simkall, J.: J. L. Caldwell agreed to purchase the lands in the pleadings mentioned, from E-. Marqueze, who held in trust for sundry parties, for the price of * # * , one-half to be paid in cash, and the other half eight months after the date of the deed, which was to be made by E. Marqueze. The agreement was signed by Caldwell, and R. S. Richey, witness. The question made is, whether Marqueze, trustee, and the parties for whom he acted as trustee, can have a specific performance of the contract. Caldwell maintains that there is no mutuality in the obligation; that he has no remedy upon it against the complainants, and therefore it ought not to be enforced at their suit against him. The 4th section of the English statute of frauds and perjuries, after enumerating the several classes of contracts required to be in writing, contains these words: “Unless the agreement upon which action shall be brought, or some note or memorandum thereof, shall be in writing, and signed, by the party to be charged therewith, or some person thereto by him lawfully authorized.” The first section of our statute, Code of 1857, p. 358, is as follows: “Unless the promise or agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him or her thereunto lawfully authorized.” It will be observed that the words of our statute as to the “signing” is an exact counterpart of the British original. [31] It is a doctrine of the American courts, very generally accepted, that when a state enacts a British statute which has received, in the mother country, a fixed and established judicial interpretation, the legislature will be supposed to adopt the statute with the interpretation put upon it. The principle has been several times recognized in this court, with respect to statutes borrowed from other states. If an old statute incorporated into our jurisprudence, having frequent and important bearing and application to the business and ¡prosperity of the community, has received a uniform exposition in the country or state from which it was borrowed, it is reasonable to assume that the legislature intended to introduce into our law the statute, with the judicial exposition of it. If the very words of the original are used, it is legitimate to presume that they were employed to prevent confusion and uncertainty, and to bring with the statute the precise and definite meaning which the judiciary, by exposition, has put upon it. The statute exacts that the contract or agreement, or some note or memorandum thereof, shall be signed by the person to be charged. It is said by Sugden on Vendors, p. 99, “ that he who signs will be bound, although the other party did not sign.” If the suit be against the party who signs, the statute is satisfied, for he is the party charged. This author states that this view of the statute has been sustained by the authority, Lord Keepers, North and Wright, Lord Hardwicke, Ch. Bar. Smith, Lord-Eldon, Thurlo w and Sir William Grant. Browne in his Treatise on the Statute, p. 385, says: “ It is now uniformly held that the signature of the defendant in the suit, alone, or the party who is to be charged upon the agreement, is sufficient.” The English cases to that effect are, in part, Lathorp v. Bryant, 2 Bing. N. C. 755; Huddestone v. Briscoe, 11 Vesey, 583; Hatten v. Gray, 2 Ch. Cas. 164; Seten v. Stade, [32] 7 Ves. 265; Foule v. Freeman, 9 Vesey, 351; Schnider v. Norris, 2 M. & S. 286; Allen v. Bennett, 3 Taunt. 173; Martin v. Michell, 2 Jac. & Walk. 426. Such was the current of decision until Lord Redesdale questioned the soundness of the principle in Lawrenson v. Butler, 1 Sch. & Lef. 13, on the suggestion that if the agreement was disadvantageous to the party who signed, he was liable to the performance, and yet, if advantageous, he could not compel the other party to perform. The authority of the great equity judge caused the courts to pause and reconsider the subject. They, however, soon settled down upon the original interpretation, resting the determination upon the unqualified language of the statute, and upon the further reason, that the plaintiff by filing the bill has made the remedy mutual. 3 Ball & Beat. 363; 1 Russ. & M. 391. Chancellor Kent in Clason v. Bailey, 14 Johns., after a very thorough review of the English cases, came to the conclusion that “ the point is too well settled to be now questioned.” In Parkhurst v. Van Courtlandt, 1 Johns. Ch. 282, and Benedict v. Lynch, ib. 370, the same learned judge had intimated a contrary opinion, because of the want of mutuality in the agreement. In his judgment, in Clason v. Bailey, he refers to the former inclination of his mind, but adds, “notwithstandingthis objection,” the point is concluded on authority. Subsequent cases in New York treat the question ás at rest; McCrea v. Purmort, 16 Wend. 465; Fenly v. Stewart, 5 Sandf. 105; where the court remark upon the statute that it “ does not require that the contract shall be signed by both parties, but by the party to be charged thereby,” that is the defendant to the suit. To the same point are the cases of Barton v. Gray, 3 Greenl. (Me.) 409; Douglass v. Spear, 2 Nott & McCord, 209; Cosach v. Descondes, 1 McCord, 425; Penniman v. Hartshorn, 13 Mass. 87; Lourey v. McHaffy, 10 Watts (Penn.) 387; Ives v. Hazard, 4 R. I. 14; Sans v. Tripp, 10 Rich. [33] (S. C.) 447; Old Colony R. R. v. Evans, 6 Gray (Mass.), 25; Shirly v. Shirly, 7 Blackf. (Ind.) 454. An examination into the authorities in this country and in England, discovers that the Lord Redesdale made a single departure.from the current of authority, which brought Lord Eldon to pause and express a doubt; Lord Redesdale was dissented from of overruled by his immediate successor. In this country, Chancellor Kent was inclined to follow the great Irish chancellor, subsequently abandoned his first opinion, and admitted that the question was concluded by the weight and uniformity of authority. This examination of the general subject seemed to be necessary because it was supposed by counsel that there was a conflict in the adjudications in this state. Sims v. Hutchinson, 8 S. & M. 328; Lee v. Dozier, 40 Miss. 481, and Hairston v. Jordon, 42 ib. 385, are the cases referred to. The last was a verbal executory contract for the sale of land. The vendor sued for the purchase money.. The court held that the case falls directly within the statute which denies an action unless the contract be in writing. Sims v. Hutchinson went to the point, that a verbal contract for the sale of land was voidable merely, and not absolutely void. Neither party can compel the other to perform. If the vendee has advanced money in part payment, he cannot recover it back if the vendor is willing to convey. In Lee v. Dozier the defendant attempted to set up, by-plea “puis darrier continuance,” that a certain agreement for the sale of land to the defendant in Louisana was not obligatory, for the want of his, the defendant’s, signature thereto. Commenting on cases cited by counsel (4 Mar. N. S. 260; 6 La. Rep. 530), the court say: “ The cases cited seem to go only to the extent which commands our full approval, that where the agreement contains stipulations on both sides, and is obviously intended to be executed by both parties, the signature of one party [34] will not be binding on him until the other party signs also.” These observations were thrown out by the learned judge, when considering whether the plea contained new matter arising since the last continuance, and was held bad because it did not. It was not necessary to the decision of that point. If, indeed, it was meant to be affirmed that the signature of both parties to the agreement was necessary under the statute, and no suit or action would lie against him who signed, unless the other party also signed, we would not feel bound by it since it was not a question involved. We are of opinion that this suit for performance can be maintained against Caldwell, although Marqueze, the trustee, did not sign the agreement. The signature of the defendant sought in the suit to be charged, meets the words of the statute, and that interpretation is sustained by a force and continuous current of authority in England and in this country, which ought to and does put the question at rest. Wherefore the decree of the chancellor, sustaining the demurrer and dismissing the bill, is reversed. Judgment here overruling the demurrer and cause remanded, with leave to defendant to plead or answer in forty days from this date.