52 Pa. Super. 426 | Pa. Super. Ct. | 1913
Opinion by
The plaintiffs brought this action of assumpsit upon a check, payable to the order of the plaintiff firm, made by the defendant. The genuineness of the check being admitted, the production thereof in evidence established the prima facie right of the plaintiffs to recover. The burden of proof being thus cast upon the defendant, he
The plaintiffs were the payees of this check and had it in their possession, they were the holders, they had a right to maintain an action on it in their own names, and payment to them would discharge the instrument. The terms of the sale required the cash deposit to be paid to the plaintiffs, and for that deposit they might, upon failure of the defendant to pay it, maintain an action in their own names to recover the deposit: 4 Cyc. 1053.
The whole transaction involved a sale of real estate, and whether it was sufficiently evidenced by writing to take it out of the operation of the statute of frauds does not, from the evidence, clearly appear. The owner had by a written instrument authorized these plaintiffs to sell the land. It is not necessary that the writing, in order to comply with the requirements of the statute of frauds, should all be comprised within a single instrument. It is sufficient if a number of instruments, referring to each other, fully identify the property and fix the terms of the contract: Haines v. Dearborn, 199 Pa. 474; McFarson’s Appeal, 11 Pa. 503. The defendant, after the property was knocked down to him at his bid, did sign a book, but the book was not offered in evidence and we know nothing of its contents, nor does it appear that it was signed by the plaintiffs, as the agents of Landaw, the owner. The evidence was not sufficient to warrant any attempt to enforce a specific performance of the contract of sale, nor to sustain an action to collect from the defendant the full amount of the purchase money: Tripp v. Bishop, 56 Pa. 424; Everhart v. Dolph, 133 Pa. 628; Walter v. Transue, 17 Pa. Superior Ct. 94.
The judgment is reversed and a venire facias de novo awarded.