delivered the opinion of the Court.
The hill in, this cause had a double-barreled aspect. First, the specific performance of an alleged contract of the appellees was sought, and in the alternative the complаinants, appellants here, prayed for damages against the defendant-appellee, Charles Giacosa, for such damages as they had sustained by reason of a breach of his contract. Demurrers were filed to this bill by the appellees, which were sustained, the suit dismissed, and this appeal resulted.
" The Cartwrights alleged that they had executed a written contract to purchase from the Giacosas a tract of land in Shelby County, Tennessee, specifically describing the land, and that even though they were ready, willing and able to comply with their contract Charles Giacosa announced that he would not comply with the contract, giving as a reason therefor the failure and refusal of his wife, Angeline Giacosa, to execute the contract because she was not satisfied with the рrice for the purchase of the land.
The contract is attached to the bill as an exhibit thereto. This contract is apparently on the form used for the sale of real estate in Shelby County, and сontains in the body of the contract the names of Charles Giacosa and wife as vendors and that of Cartwright and wife as vendees. The contract is signed by Cartwright for himself and wife, but is signed only by Charles Giacosa, аnd in no wise is it shown in this contract that Mr. Giacosa was signing it individually and as agent for his wife, but is signed by him alone. The first portion of the bill alleges very specifically that this contract was signed by *21 Charles Giacosa “acting with full аuthorization from his wife, * * * and was acting for and in her behalf and with her full knowledge and approval. ’ ’
Mrs. Giacosa demurred to the bill on the ground that it is shown on the face of the contract that it was not signed by or fоr her as required by the statute of frauds, T.C.A. sec. 23-201(4).
Mr. Giacosa demurred to the bill upon the ground that the contract showed that it was not signed by or for his wife as required by the same section of our statute of frauds, and that since the Cartwrights knew that the land in question was owned by the Giacosas as tenants by the entireties it was not contemplated that Mr. Giacosa would be bound unless his wife also became bound by the contract. .His demurrer was later amended to allege that he would not be bound because of lack of mutuality of remedy and/or obligation and because the contract was too vague and uncertain.
Our statute of frauds, T.C.A. sec. 23-201(4), as far as here applicable provides:
“Writing required for action. — No action shall be brought:
“ (4) Upon any contract for the sale of lands, tenements, or hereditaments, or the making of any lease
* # *
“Unless the promise or аgreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized.”
*22 Thе bill shows that the property in question was owned by the G-iacosas as tenants by the entireties. The contract fails to show that Mr. Giacosa in signing this contract signed it in any wise as agent of his wife. It is true that the word “ Seller(s) ” with the (s) is printed on the contract and the body of the contract shows Charles Giacosa and wife, but there is not the slightest indication that in signing this contract he was doing it personally and as an agent for an undisсlosed principal, his wife or anyone else. It is purely a personal signature.
The name Charles Giacosa and wife, in the body of this instrument, is not a signature within the meaning of the statute. The reasoning in
Burton v. Jones,
It is argued that our case of
Texas Co. v. Avcock,
The case of
Kaminski v. Wladerek,
It appears to us clearly that here we have no contract made by the wife or by anyone alleging that he was acting for her, which can be enforced against her under the statute of frauds, and we cannot enforcе the contract of the husband against the property held by him and his wife.
The existence of the relationship of husband and wife, standing alone, or knowledge by the wife of the husband’s intention to bind her, together with a fаilure
*24
on her part to object, is insufficient to constitute him her agent in making this contract.
Irwin v. Dawson,
So it is, we think the Chancellor was eminently correct in sustaining the demurrer as to Mrs. Giacosa. This being true and she being a tenаnt by the entireties with her husband, the portion of the suit for specific performance must go out, but the allegations of this bill insofar as the portion of the suit is concerned as to damages against Mr. Giacоsa presents another proposition.
The original bill alleges a contract, unconditional on its face, to convey, or cause to be conveyed, certain real estate ownеd by this man and his wife. This contract that Mr. Giacosa entered into was an unconditional promise to “convey, or cause to be conveyed”, the real estate in question, which he partly owned. The bill alleges he was acting in a dual capacity for himself and his wife. He agreed to convey his interest and to cause his wife to convey her interest, and thus it is that the bill in its latter aspects is for breach of this promise — that is, the promise to convey and to cause his wife to convey her interest- — and the complainants certainly should be entitled to recover for any damages flowing from such acts of Mr. Giacosa. Since we have here a bill making these allegations which is demurred to, we must assume that such factual allegations as are made are true.
Zager v. Cobb,
*25 We think under the factual situation as alleged in this bill that this case comes within the rule as set forth in 55 Am.Jur., Vendor and Purchaser, sеc. 562, page 955, thus:
‘ ‘ The rule that the purchaser cannot recover for the loss of his bargain where the vendor acted in good faith in entering into the contract to convey land is generally held, even by the court which ordinarily 'recognize and apply that rule, to be inapplicable where the. reason for the vendor’s breach is the refusal of his or her spouse to join in the conveyance; this breach is ordinarily deemed to constitute such fraud upon the part of the vendor as to entitle the vendee to recover as an element of damage compensation for the loss оf his bargain. * * * ”
The case of
Stone v. Kaufman,
“Where contracts are unenforceable because they comе within the prohibition of the statute of frauds, or lack mutuality, or there is some other legal impediment, and where the legal remedy to the injured party is inadequate, it has been held by this Court and by other jurisdictions, that it. would be inequitable not to redress the injury done in some way. Consequently, the cases have been retained for the purpose of ascertaining how far relief may be granted by enforcing a lien against the property or declaring that a trust exists over it for the benefit of the injured party, to the extent of advances made for improvements or of the purchase price, or other permanеnt payments, or additions made *26 to it. (Two cases are cited.) The basis of these cases is that it would be a flagrant injustice to permit a party to receive all the benefits of an unenforceable contract and to escape with them, leaving the other party with no remedy whatever.”
■ Thus it is, we hold.that the demurrer as to the husband should have .been overruled. The case is thus reversed and remandéd as to Charles Giacosa.