Reynolds v. Dunkirk & State Line Railroad

17 Barb. 613 | N.Y. Sup. Ct. | 1854

By the Court, Marvin, P. J.

No written contract was ever entered into between the parties, touching the sale and purchase of the land. Parol negotiations were had, but the parties did not come to any agreement as to the price. The. plaintiff fixed his price, and the agent of the defendants said that they would be obliged to pay it, if he would take no less, and paid to the plaintiff $150 on account of the land, and took possession of it. The plaintiff subsequently tendered a deed. This is stating the case as strongly for the plaintiff as the facts will justify. Assuming that the evidence was sufficient t,o justify the jury in finding an agreement implied by law, by which the plaintiff was to sell and convey, and the defendants to purchase, and pay the $2000, can this action be sustained? The agreement to purchase and pay $2000 can only be inferred from the facts that the plaintiff’s price was $2000, and that the defendants paid the $150 and entered upon the land: and so the judge put the case to the jury

This action cannot be maintained. By the statute every contract for the sale of any lands, or any interest in lands, is void, unless the contract or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the sale is to be made. (2 R. S. 135, § 8.) The plaintiff insists that there was a note in writing of the contract, subscribed by him, and that as he was the party making the sale, he and the defendants were bound, and that he can maintain the action to recover the price. It is not necessary to consider whether an action will lie against the vendee to recover the price of real estate as specified in an agreement signed by the vendor only and accepted by the vendee; as in this case there was no such agreement. It is not necessary to analyze the paper called a receipt, signed by the plaintiff, to ascertain whether it is a sufficient note or memorandum of a sale, for the simple reason that the defendants never accepted the paper, or assented to its terms. The president of the defendants paid $150 “ to apply on land damages,” and his clerk, a few days afterwards, called upon the plaintiff and took the receipt or instrument signed by the plaintiff, without any authority to make any contract, or to accept of any contract signed by the plaintiff. The defendants never accepted the written instrument, and knew nothing of it. The plaintiff might as well have drawn up a formal contract of sale, subscribed it, and deposited it with his own papers, and then tendered a deed and instituted his action. There must be a contract between the parties, and it must be subscribed by the party making the sale, in order to bind him, and the vendee must assent to it, or accept it; and until this appears it is quite unnecessary to consider whether an action will lie against him. The court erred in admitting evidence of the verbal agreement. In the complaint an agreement for the sale and purchase was stated. This was denied in the answer, and the plaintiff, to sustain Ms complaint, could only prove the agreement by evidence which showed a legal valid agreement. (4 Barb. 449. 3 Paige, 478. 10 Id. 524.) This evidence was objected to, and an exception taken to its admission. The whole case was put to)the jury upon a proposition excluding the written instrument signed by the plaintiff and delivered to Clark.

[Erie General Term, January 23, 1854.

Marvin, Bowen and Greene, Justices.]

There must be a new trial; costs to abide the event.