8 Barb. 344 | N.Y. Sup. Ct. | 1849
The sole "question in this case is, whether the legislature, by the substitution of the word “subscribed” for the word “signed,” in that section of the statute of frauds requiring a note or memorandum to be made of contracts where the value of the goods is fifty dollars or more, intended to effect a sudden and radical change of the law as it had been clearly settled by numerous adjudications of the courts prior to the revised statutes; compelling the courts, as Mr. Justice Cowen has expressed it, “ to suddenly wheel about, and turn their faces against the former principles of construction.”
The British statute, and our own prior to the revision of 1830, required the note or memorandum to be made and signed by the parties to be charged. Under these statutes it had been often held by our own and the English courts, that an actual signing at the bottom of the contract was not absolutely required ; that the statute was satisfied, and it was immaterial in wrhat part of the instrument the name of the party to be charged thereby, appeared; whether at the top, in the middle, or at the bottom,.provided it was put there by himself or by his authority; that the courts were to see that the substance of the statute had been complied with in the material part, rather than to insist strenuously upon the form; and that a subscription by inserting the name in some part of the instrument was as effectual a guard against fraud and perjury (the mischief which the statute intended to avoid) as though such name were placed at the bottom of the instrument. (Long on Sales, 57, et seq. Rand's ed. of 1839, and cases cited. Merritt v. Clason, 12 John. 102. 14 Id. 484, S. C. in error.) Thus the statute had been construed, and thus the law stood, at least up to the revision, and commercial men governed themselves accordingly.
In the revision of 1830 the word “subscribed” was substituted for the word “signed.” By this verbal deviation from the former statute it is insisted that the legislature intended that there should be a signing or subscription at the bottom of the instrument, and nowhere else. This view of legislative intention is based solely on the fact that the revisers, in their notes, avowed such intention by the substitution of the word “ subscribed,” and that the legislature, though changing substantially the sections of the statute as reported by the revisers, retained the substituted word. This ground being confidently assumed, it may be important to briefly trace the history of legislation relating to the substitution of the word “subscribed.” To my mind it is manifest that whatever may have been the intention of the revisers, the legislature retained the word subscribed as reported to them in the section of the statute I am now considering, without a definite intent to overthrow the principles of construction that had been applied by the courts for more than half a century. In the revisers’ report of section 8 of title 1, concerning “ fraudulent conveyances and contracts relative to lands,” they proposed to change the law as it then stood, by omitting the words “note or memorandum thereof,” and requiring the contract for the leasing for a longer period than' one year, or for the sale of any lands, to. be reduced to writing, and • subscribed by the parties by whom, and to whom the lease or sale was to be made. The legislature struck out of the section the amendments proposed by the revisers, and re-enacted it substantially as it had stood, retaining, however, the word subscribed, as it had been reported. In the revisers’ report of the section now under consideration, they also suggested material alterations of the law. The section as reported provided that the note or memorandum of the contract should contain the names of the parties, a description of the thing sold, and the price thereof, and should be reduced to writing at the time the contract was made, and subscribed by all the parties thereto.
But it is urged that the point in this case has been definitely adjudged by the court for the correction of errors, in Davis v. Shields, (26 Wend. 341.) If this be so, we have no course to pursue but to follow that decision. From an examination, however, of that case, as reported, it is impossible to arrive at a satisfactory conclusion as to the point on which a majority of the court voted for a reversal of the judgment of the supreme court. This difficulty arises, in a great degree, from the peculiar organization of the court of errors, and the practice which prevailed therein in the latter periods of its existence. In the case of Davis v. Shields Chancellor Walworth and Senator Verplanck delivered opinions for reversal, in which they made two distinct points; 1st. That as the contract entered by the broker in his sale book varied from the contract as actually concluded, neither party was bound, inasmuch as no note or memorandum of the actual contract had been reduced to writing; 2d. That to be valid, within the provisions of the revised statutes, the note or memorandum of a contract for the sale of chattels, must be signed by the party to be charged thereby, below or at the end of the memorandum. The chancellor discusses the question involved in the first point, and arrives at the conclusion that the judgment should be reversed on that point, as distinct from the second. He then proceeds to discuss the secondhand regards that also as well taken. Senator Verplanck commences with a discussion of the second point, and comes to the conclusion that the statute requires an actual signing at the bottom of the memorandum, but apprehensive, as he states himself, that the opinions of all the members of the court might not be brought to bear upon this single point, and there might be such a diversity of opinion that it would not be safe to rest the cause thereon, he deems it of importance to the decision to notice the first point, which is, in his “judgment equally conclusive against the affirmance of the judgment.” Proceeding then to discuss the first point, he arrives at a conclusion equally
Now, from this history of the case, can we say that the point we are now considering was directly involved, and deliberately settled ? Is it possible to determine whether a majority of the court voted for reversal on the first, or second, or both points ? A majority of the court deeming the first point conclusive against the judgment, it was quite immaterial to decide the second. Indeed, assuming with the chancellor and Senator Verplanck, that there was no note or memorandum of the actual contract concluded between the parties, the second point was not involved in the case; for the court was- not called on to pass upon the due execution of an instrument which, if signed in the right or wrong place, was wholly nugatory and invalid, and did not affect the rights of the parties. If the memorandum varied from the actual contract sought to be enforced, it were quite a work of supererogation to inquire and determine whether such defective memorandum was properly subscribed. I am unwilling to conclude, therefore, in a case where there is so much difficulty to satisfactorily ascertain the precise point decided, that the court of errors have given a construction to a statute, barely from the alteration of a word therein, that overthrows the law as it had previously existed, and is at war with all former rules of construction. In doing this as respects a statute so largely entering into and governing the general business of the community, it is not too much to require that the point should have been presented unconnected with one in itself, as we are told by the members of the court expressing opinions, conclusive in the decision of the case.
In the present case, the note or memorandum was in the hand-writing of one of the defendants. The names of the defendants appeared in the body, and not at the bottom thereof. After the plaintiff rested, the defendants’ counsel moved for a
I am of opinion, (in which my brethren concur,) that there should be a new trial; costs to abide the event.