Moore v. Adams

153 Ga. 709 | Ga. | 1922

Atkinson, J.

1. The motion to dismiss the bill of exceptions will be dealt with first. As there was no joint demurrer by the defendants or judgment upon a joint demurrer, but the record specified in the bill of exceptions and brought to this court as such showing that there were separate demurrers by each defendant, and a separate judgment as to each demurrer, the assignment of error in one bill of exceptions by all of the defendants, properly construed, should be held to refer to each of the judgments so rendered upon the separate demurrers. . And as the bill of exceptions contains enough to enable this court to ascertain the questions properly raised for decision, the motion to dismiss the bill of exceptions must be overruled. Civi-l Code (1910), § 6183; Patterson v. Beck, 133 Ga. 701 (66 S. E. 911); Harris v. Lumpkin, 136 Ga. 47 (70 S. E. 869); Boyett v. Bainbridge State Bank, 136 Ga. 689 (72 S. E. 25); Harris v. Brock, 137 Ga. 113 (72 S. E. 947). The ruling in Burns v. Horkan, 126 Ga. 161 (54 S. E. 946), tends to support rather than conflict with what is here held.

2. The action for specific performance was instituted by Elton M. Adams, and the petition was projected on the theory that Elton M. Adams was a party to the contract and seeking to enforce it against the defendants as parties to the contract sought to be charged. Among the grounds of demurrer are, that the petition fails to allege a cause of action; that the paper set out in the petition and relied on as a contract is not binding upon the defendants, because it is not signed by the plaintiff and “ does not obligate ” him “ to convey the property therein described, and is therefore unilateral.” The paper does not purport to be signed by the plaintiff, Elton M. Adams, nor does his name appear anywhere in the paper. It could not be gathered from any construction of the terms of the paper that Elton M. Adams was the vendor or a party to the agreement. Contracts for sale of land, being within the statute of frauds, are required to be in writing, and the writing should in some way show the names of the parties to the contract. Civil Code (1910), § 3222; Oglesby Grocery Co. v. Williams Manufacturing Co., 112 Ga. 359 (37 S. E. 372). The decision in the case just cited was rendered on review of a judgment of the trial court sustaining a demurrer to a petition based on a contract within the statute of frauds; and it was held: “ A memorandum relied upon to take out of the statute of frauds a contract thereby required to be in writing must in some way indicate or show who are the parties to such contract, ‘not only who is the promisor, but who is the promisee as well.’ ” While the contract involved in that case differed from that now under consideration, it was of the character which the statute of frauds requires to be in writing; and hence the principles applied are applicable here. The opinion rendered by this court, speaking through Mr. Justice Eish, now Chief Justice Eish, is so apposite that it will be quoted, as follows:

“ The Oglesby Grocery Co., a corporation, sued the Williams Manufacturing Co., another corporation, for $490, as damages alleged to have been sustained by the plaintiff, by reason of the breach by the defendant of an alleged contract for the sale to the plaintiff (of 200 barréis of ‘ pure Georgia cane syrup,’ at 23 cents per gallon, it being alleged that the barrels of syrup would average 35 gallons apiece. It was alleged that the contract was in writing and signed by the Williams Manufacturing Co., and that a copy of the same was attached to the petition as an exhibit. Attached to the petition, as such exhibit, was the following memorandum: ‘Williams Manufacturing Co., Columbus, Ga.

‘ 200-% Bari. Ga. Cane, 23.

‘ Dee. 1, 1899. [Signed] Williams Mnfg. Co.’

“ The defendant demurred to the petition, upon the ground that it appeared therefrom that the alleged contract was within the statute of frauds, and no ‘memorandum in writing sufficient to bind this defendant was entered into between the parties,’ and that ‘ there was no such part performance or payment of earnest money to bind the bargain as is required by the statute of frauds and by section 2693 (7) of the Civil Code of 1895/ The court sustained this demurrer, and the plaintiff excepted.

“ The defect upon which counsel for defendant in error rely is, that the memorandum c failed to disclose the name of the purchaser, or to designate him ’ so ‘ that he could be identified/ They therefore contend that the memorandum is not sufficient to take the alleged contract out of.the statute of frauds. This position is well taken. Granting that this meager memorandum is sufficient ill other respects to meet the requirements of the statute of frauds, it fails to set forth a contract, because it does not show or describe who the parties to the contract are. It takes two parties to make a contract; and a writing which names only one party, and does not in any manner indicate who the other party is, does not set forth a contract. It is well established that where the statute requires the contract to be in writing, there can be no binding contract unless both parties thereto are named in the writing, or so described therein as that they may be identified. Clark on Contracts, 118;' Browne on St. Fr. §§ 372, 373; Wood on St. Fr. 655, n. 668; Beed on St. Fr. § 401; and the numerous cases cited by these authors to this effect. In Benjamin on Sales, 7th American (Bennett’s) ed. § 231, it is declared that ‘it is settled to be indispensable that the written memorandum should show not only who is the person to be charged, but also who is the party in whose favor he is charged.’ We can well apply to this case the language used by Sir James Mansfield, C. J., in the leading English case decided in 1805, where the memorandum was signed by the vendor, who was the defendant, but the name of the purchaser did not appear therefrom. ‘ Flow can that be said to be a contract or memorandum of a contract which does not state who are the contracting parties? By this note it does not appear to whom the goods were sold. It would prove a sale to any other person, as well as to the plaintiff/ Champion v. Plummer, 1 Bos. & P. N. R. 252. Counsel for the plaintiff, in error admit that this is the general rule which obtains elsewhere, but contend that, c under our statutes and the construction placed thereon by this court, . . parol testimony was admissible to explain the terms of this agreement and to show the parties thereto, especially so when the contract or memorandum was signed by the party sought to be charged therewith/ After quoting so much of section 2693 of the Civil Code as is applicable to this case, they contend that ‘The statute itself does not require that the names of both parties to the agreement shall appear in the contract or memorandum/ It is true that our statute of frauds does not, in express terms, make this requirement. It provides that, ‘ to make the following obligations binding on the promisor, the promise must be in writing signed by the party to be charged therewith, or some person by him lawfully authorized/ Civil Code [1895], § 2693.

“ While the statute does not in express terms require that both parties shall be named or described in the writing, such is its legal effect. It requires the promise to be in writing. There can be no promise without both a promisor and a promisee; and the promise is not in writing, unless the writing shows, in some way, who the promisee is. The memorandum relied upon in the present case does not even indicate the existence of a promisee. In a leading American case (Grafton v. Cummings, 99 U. S. 100 [25 L. ed. 366]) the Supreme Court of the United States held, ‘ That in order to satisfy the requirements of the statute of frauds of New Hampshire, the memorandum in writing of an agreement for the sale of lands, which is signed by the party to be charged, must not only contain a sufficient description of them, together with a statement of the price to be paid therefor, but in that memorandum, or some paper signed by that party, the other contracting party must be so designated that he can be identified without proof/ The statute of New Hampshire which the court had under consideration did not expressly require that the names of both parties to the contract should appear in the writing. It provided that ‘No action shall be maintained upon a contract for the sale of land, unless the agreement, upon which it is brought, or some memorandum - thereof, is in writing, signed by the party to be charged, or by some person by him authorized thereto by writing/ Mr. Justice Miller, delivering the opinion of the court, said: ‘ The statute not only requires that the agreement on which the action is brought, or some memorandum thereof, shall be signed by the party to be charged, but that the agreement or memorandum shall be in writing. In an agreement of sale there can be no contract •without both a vendor and a vendee. There can be no purchase without a seller. There must be a sufficient description of the thing sold and of the price to be paid for it. It is, therefore, an essential element of a contract in writing that it shall contain within itself a description of the thing sold, by which it can be known or identified, of the price to be paid for it, of the party who sells it, and the party who buys it.’

“Counsel for the plaintiff in error rely upon the case of Mohr v. Dillon, 80 Ga. 572 [5 S. E. 770]. In that case it was held that ‘ An auctioneer’s memorandum as follows “ Sale in front of store, June 18, 1886, D. E. Dillon (Mohr Bros.) A. Mohr, 100 acres of land, fronting Waters E., at 15 3/4, $1,575,” being ambiguous on its face, may be explained by parol evidence; and in this case, evidence showing that the land was bounded in a certain way and fronted on Waters road, that the D. E. Dillon referred to was the owner of the land which was sold for him by the auctioneer, and that the A. Mohr named was the purchaser, was properly admitted.’ The decision in that case was based upon the provision of the code that, ‘ in cases of sales by auctioneers, the auctioneer shall be considered the agent of both parties, so far as to dispense with any further memorandum in writing than his own entries;’ and the provisions in reference to the admissibility of parol evidence to explain all ambiguities, both latent and patent. There the auctioneer who conducted the sale was, when he made the memorandum, the agent of both the parties, and when he made the entry upon his book it was as though both parties had signed it. Thé name of both the seller and the purchaser appeared in the memorandum, but there was an ambiguity as to which one was the seller and which one was the purchaser, and this ambiguity the court held could, under our statutes, be explained by parol proof. There is nothing in the decision rendered in that case which conflicts with the conclusion at which we have arrived in this. Here the memorandum is signed by only one of' the parties, and the name of the other party neither appears therein nor is there anything which, in the slightest degree, even tends to indicate who the other party is. To use the expressive language of Chief Justice Bleckley in Lester v. Heidt, 86 Ga. 226 [12 S. E. 214, 10 L. R. A. 108], ‘Its deficiency is one of omission, not of imperfect or obscure expression. Its infirmity is not doubtful or ambiguous speech, but utter silence.’

“ A case decided by this court which is directly in point is that of North v. Mendel, 73 Ga. 400 [54 Am. R. 879], in which North & Company sued Mendel & Brother "for five boxes pork bellies, 124 pieces, 2817 pounds, at 8 cents, $225.36/ alleged to have been shipped by the plaintiffs upon a telegram sent from Savannah to the plaintiffs at Boston, by one Freeman, who the plaintiffs claimed was a broker and the defendants claimed was the agent of the plaintiffs. The telegram was as follows: "Mendel five bellies eight. . .’ In Freeman’s entry-book, under the same date as that of the telegram, was the following entry, in his handwriting: " Sold account C. H. North' & Co., Mendel, 5 bellies, 8.’ This court -held that, even taking the telegram and the memorandum together, " This was not a sufficient memorandum in writing to comply with the requirements of the statute of frauds, so as to bind Mendel & Brother as purchasers. It fails to set out the purchasers or quantity and price of the article sold, and parol evidence was not admissible to supply these defects.’ Hall, J., said in the opinion, "Mendel/ of itself and unaided by other evidence, could not be taken as the firm name of the defendants, while " 5 bellies, 8/ is, to the last degree, enigmatical, if not wholly unintelligible.’ An examination of the cases of Houston v. Bryan, 78 Ga. 181 [1 S. E. 252, 6 Am. St. R. 252], DePauw v. Kaiser, 77 Ga. 176 [3 S. E. 254], Wilson v. Coleman, 81 Ga. 297, and Roberts v. Mathews, 77 Ga. 460 [6 S. E. 693], which are cited by counsel for the plaintiff in error, will show that there is nothing decided in either of them which at all conflicts with the decision which we render in the present case.” See also Talley v. Southern Real Estate &c. Co., 152 Ga. 277 (109 S. E. 497).

This is ample authority for holding that the paper relied on as basis for specific performance in the present action is not a valid contract on the part of Elton M. Adams, whose name does not appear any where in the paper, and that it should be so held on demurrer. If there is any contract at all, it is in the paper; and it being set out as a part of the petition, the petition shows upon its face the absence of Elton M. Adams as a party to the contract, a defect which is fatal to his right to enforce it. The allegation in the petition that Elton M..Adams was the vendor, and that in making the sale he acted through his sales agent, Willingham Loan and Trust Company, whose signature was affixed to the paper "" by C. B. Willingham Jr., Agts.,” does not change the result. Such allegations amount to an attempt to add to the paper matter which the pleaded paper shows it did not contain. The Civil Code (1910), § 3594, has not been overlooked. It is there declared: “The form in which the agent acts is immaterial; if the principal’s name is disclosed, and the agent professes to act for him, it will be held to be the act of the principal.” This statute allows latitude as to the form in which an agent may contract, but in order to bind his principal the name of the principal must be disclosed, and the agent must profess to act for him. It does not purport to authorize an agent to contract for his principal in a form which would be insufficient if the principal acted for himself. If it is essential that the contracting party’s name should appear in the writing when the party is contracting for himself, it is also necessary where he contracts through an agent. Nothing here ruled conflicts with the rulings announced in Rawlings v. Robson, 70 Ga. 595, and Collins v. Johnson, 16 Ga. 458 (2). In Payton v. McPhaul, 128 Ga. 510 (3) (58 S. E. 50, 11 Ann. Cas. 163), and Tenant v. Blaclcer, 27 Ga. 418, applying the principle of this section of the code, the names of the alleged principals (as shown by the original records of file in this court) did appear in the paper executed by the alleged agent. It was contended that the judgment overruling the demurrers was erroneous for other reasons, among them, because the alleged agent’s authority to sell was not alleged to be in writing. No ruling will be made on any of the questions so made, for the reason that, as indicated above, the paper sued upon did not disclose the name of Eltoñ M. Adams, which rendered it fatally defective as his contract. It is therefore unnecessary to decide, and it would be immaterial, whether an agent executed it without authority, or whether it was void for any other reason.

Judgment reversed,.

All the Justices concur.