3 Chand. 234 | Wis. | 1851
This was an action of assumpsit, wherein the plaintiff in error sought to recover of the defendant in error, damages for the nondelivery of 400 bushels of barley. Upon the trial of the cause in the circuit court for Rock county, the plaintiff introduced as evidence of the agreement, a writing, of which the following is a copy, viz:
“ Janesville Brewery, Sept. 13,1847.
“ Agreed with A. M. Carter for 400 bushels of good barley, at 30 cents per bushel, to be delivered in December next; the undersigned, A. M. Carter, agreeing to deliver the same to William Hodson. A. M. Carter.”
There was some other testimony introduced for the purpose
The charge seems to combine three legal propositions, each one of which is submitted as a bar to the plaintiff’s right to recover. These propositions are as follows :
1. The instrument offered in evidence by the plaintiff is not evidence of a complete contract, because it does not contain the evidence of the plaintiff’s consent thereto.
2. If a mutual contract is proved by the instrument, it is a parol contract, so far, at least, as the plaintiff is a party, not being signed by him, and so void under the statute of frauds.
8. Admitting a mutual and valid contract to be proved by the instrument, the plaintiff’s right to sue upon it does not appear, because there is no evidence that it was made with him, or delivered to him.
In answer to the first proposition, it seems to me there is hardly less evidence of the plaintiff’s assent than of the defendant’s, to-wit: the written admission of the defendant himself. It is not denied that the defendant signed the instrument; and, by his signature, I think he must be understood to affirm the truth of whatever the instrument, by its terms, asserts. And I think the instrument plainly asserts, not simply that Carter promised to deliver barley to Hodson, but that there was an agreement between some competent parties for the delivery of
But a more serious question arises upon the second proposition contained in the charge. Admitting the assent of both parties to be sufficiently proved, is not' the agreement void for want of the signatures of both parties ?
Our statute declares that every such contract shall be void, unless the “ memorandum of such contract be subscribed by the parties to be charged therewith.” Clear and concise as this language may seem to us, the language employed in the 29th Car., chap. 3, was, if possible, still plainer. It required the memorandum to be “ signed by the parties to be charged by such contract.”
And yet this language has been construed as not requiring the signatures of the parties to be charged with the contract, but as requiring simply the signature of the party to be charged by the suit. And this construction has been established, in spite of the earnest protest of Lord Redesdale, through a series of adjudications, both at law and in equity, in England and in this country, by a weight of authority quite beyond the limits of questioning, and almost above the reach of criticism.
Again, it is objected that, though the agreement may have been properly executed and sufficiently proved, yet the plaintiff cannot recover upon it, because it does not appear that the agreement was made with him, or that the contract was delivered to him. But, in suits upon simple contracts, this does not seem to be a material inquiry. If the contract be not under seal, it seems to be a general principle that the party for whose sole benefit it is evidently made, may sue thereon in his own name, although the engagement be not directly to or with him. 1 Chit. Pl., 4, and cases therein cited.
We are therefore of opinion that the instructions given to the jury by the court below were erroneous, and that the judgment of the court below must be reversed.