Sherburne v. Shaw

| Superior Court of New Hampshire | Feb 15, 1818

Woodbury, J.,

delivered the opinion of the court.

In the consideration of this cause, several points were suggested, which we have not found it necessary to settle. The defects of the written testimony, offered to prove the contract itself, and the inadmissibility of oral proof to aid those defects, are so striking, that our subsequent examination has confirmed our impressions at the trial, that all this evidence must he rejected, or we shall violate acknowledged principles, and the repeated decisions of the most respectable courts.

Our statute⁽¹⁾ declares, that “ no action shall hereafter be “ maintained upon any contract or sale of lands, tenements, “ or hereditaments, or any interest in or concerning them, “ unless the agreement, upon which such action shall be “ brought, or some memorandum thereof, be in writing, and “ signed by the parties to be charged therewith, or signed “ by some other person thereunto lawfully authorized in “ writing/’

Requiring the “ agreement” to be written, must have been a provision to enable the parties to pursue remedies against each other for a breach of it, without the expense and uncertainty of oral testimony. Unless the writing, then, which may be executed on the occasion, contain sufficient matter to apprise a court of the parties and terms of the contract, the object of the statute is obviously defeated. Indeed, the word “ agreement,” ex vi termini, must include stipulations to be performed, and parties to make those stipulations. We are aware, that it might be deemed severe to require great formality in instruments drawn on occasions so frequent as private sales, and sales at auction ; particularly since the statute permits a “ memorandum” of the agreement to suffice. But this “ memorandum,” however un-technieal, must contain the essentials of the contract, of it ceases to be a “ memorandum” of those parts of the agreement, which, above all others, the statute must have intended the parties should reduce to writing. 5 East 19, Wain vs. Walter, opinion of Gross, J.

It may be in the form of mere entries in a book, naming the seller, purchaser, article and price.

Sug. L. of V. 77. — 1 Com. C. 109, 119.— 3 John. 399, Bailey et al. vs. Ogden.

It may be a letter, containing the terms of the contract, and disclosing the names of the parties. 3 Taun. 169. — ' Rob. Frauds, 105, 106.

Indeed, it may be with a lead pencil in a mere minute-book, if only so explicit as to render intelligible the extent and makers of the contract. 12 John. 102, 106, Merrill et al. vs. Clason. It is the substance and not the form of the instrument which in this case becomes material : and, when produced in evidence, if it can furnish to the jury the essential facts detailed in the declaration, the spirit of the statute justifies its admission. 3 Aik. 503. — 3 John. 419.

But the writings produced on the trial of this action contain no intimation that the contract declared on was nmdte between the present plaintiffs and the defendant. They disclose the name of no person to whom the defendant was liable : of no one who would be entitled to prosecute him for non-performance, or whom he himself could prosecute for a failure to tender such deeds as were stipulated in the articles of sale.

Nor is the least reference made to the owners of the property, unless in the expression, that the estate is said to be what belonged “ to Jonathan Warner, deceased.” But this is a mere description of the premises, and not of the then owners, as the only person named is not one of the plaintiffs, and is said to be “deceased.” For aught that appears on the paper, therefore, the owners and vendors might as probably have been any other persons as the plaintiffs.

''The sale might have been authorized by administrators of Warner, under license, or by his executors under some direction in a will, or by his devisees, or by some purchasers from one of the above persons. The writings produced, neither explicitly nor by reference, designate which of these supposed persons were .parties to the sale. To sume one of them, in preference to another, would be to distinguish where no apparent difference exists: and, indeed/to presume either, would be rather supplying a total omission, than making a selection for what appears on the face of the paper. The signature might, in some cases, remedy this defect in the body of the instrument. But the plaintiffs here did not sign themselves ; and the auctioneer affixed his own name merely, without disclosing that of his employers, and without producing, as our statute requires, any authority in writing from the plaintiffs, to show that they were the persons who directed him to sell and to sign.

The written evidence, then, which hath been offered to prove the contract declared on, as it fails to give any intimation that the plaintiffs were one of the parties to that contract, must in itself be considered radically defective and inadmissible. 4 Bos. & Pul. 252, Champion vs. Plumer. 5 Es. C. 242, Ad. 12. — 3 John. 399, 420 — 1 John. Ch. 273, Parkhurst et al. vs. Cortland. — 5 East 10. — 3 Taunt. 169, obiter.- — 13 John. 300, Alcul vs. Raddiff.

Verdict set aside, and a new trial granted.

(1) Statute of Feb. 10, 179.1, Sec. 3, N. H. Laws 391.