48 Miss. 23 | Miss. | 1873
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.
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,
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
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.