209 F. 291 | 8th Cir. | 1913
(after stating the facts as above).
The terms of the statute are these:
“The following contracts are invalid unless the same or some note or memorandum thereof be in writing and subscribed by the party to be charged or by his agent: * * * An agreement for the leasing for a longer period than one year or for the sale of real property or of an interest therein; and suc-h agreement, if made by an agent of the party sought to be charged, is invalid unless the authority of the agent be in writing, subscribed by the party sought to be charged.”
In the absence of express decision to the contrary by the Supreme Court of North Dakota, we think the following generally accepted rules to be applicable:
“It is immaterial in what form the memorandum is made, or whether it was ever delivered to the other or not, provided that, in itself, or by reference to other writings, it embraces all the essential elements of the contract. Nor is it material in what form the writing admitting the existence of a contract, a memorandum of which is signed by one party, is made by the other party. If it admits the contract, and refers to the memorandum in such a manner that the court can connect it therewith, and ascertain the terms of the contract without the aid of parol evidence, it is sufficient to bind him, although he did not intend thereby to ratify the contract. The moment written evidence of the contract, under his hand, in whatever form, exists, the contract is taken out of the statute, even though such admission is in the form of a letter repudiating the contract.” Wood on Statute of Frauds, § 345, p. 651.
The original earnest money contract of sale, signed by both parties, was, in itself, a memorandum sufficiently explicit to satisfy the statute under ordinary circumstances. In the absence of special provision respecting the payment of the balance of the purchase price, the law would presume that it was to be paid in cash at the close of the transaction. However, the plaintiff, in its petition, has stated that other material terms were explicitly agreed upon, viz., the assumption of a mortgage of $13,500 by the defendant, and also the giving of a mortgage to secure the deferred payments aggregating $10,700. Having so stated the contract, it must be held to establish it as declared.
“In all actions, allegations of tlie execution of written instruments and indorsements thereon of the existence of a corporation or partnership or of any appointment or authority, etc., shall be taken as true unless tile denial of the same is verified by the affidavit of the party, his agent or attorney.”
In the petition Breeden is described as the duly authorized agent and attorney of defendant and as duly authorized by Harris to represent him in said transaction. These allegations are not denied under oath. The general allegation of an authorized agency will be presumed to be an agency with full powers legally conferred. The failure to deny under oath is equivalent to an admission in the answer. The law of the forum regulating the procedure is controlling. No further proof of the agent’s authority was required. Mitchell v. Knudtson Land Company, 19 N. D. 736, 124 N. W. 946.
All other essential terms of the agreement being contained in the original memorandum (Exhibit A) which was subscribed by both parties, and- the additional provisions respecting the assumption of the mortgage of $13,500, and the making of the mortgage securing deferred payments aggregating $10,700 by defendant, being disclosed in writings subscribed by plaintiff, it remains to be seen whether in the letters or other documents received or offered in evidence recognition or ratification of these terms by the defendant appears in writings subscribed by him; and in determining this we must look at all the correspondence and writings relating to this transaction which are
Exhibit C, the letter of November 16, 1908, from the plaintiff to the First National Bank of Medford, Old., in connection with the deed from Pitts, sets out the disputed terms of the contract with sufficient particularity. This letter, with its inclosures, was forwarded to the bank for defendant’s inspection, and as an important step in the closing of the contract. On the same day plaintiff wrote defendant saying:
“We have this day sent to the First National Bank of Medford, Oklahoma, your notes, deed and a mortgage. Please call and execute mortgage and notes at your earliest convenience. Not knowing Mrs. Harris’ name, we left that blank and instructed the bank to fill it in. We also left the county in which you live blank for them to fill in. All of these papers are drawn in accordance with our understanding. We have just received your letter and note what you say about the payments.”
Four days before, November 12, 1908 (Exhibit E) Baird had written Harris inclosing to him nine abstracts covering the land in question. In this letter he referred to their agreement that the incumbrance of $13,500 should be left against the property. November 18, 1908 (Exhibit F), Harris wrote Baird as> follows:
“I received the abstracts all O. K. Was glad to hear from you. I will send you my abstract in a few days.”
This letter, written in response to plaintiff’s letter of November 12th, gives implied assent to the mortgage of $13,500 as one of the terms of payment of the purchase price. Townsend v. Kennedy, 6 S. D. 47, 60 N. W. 164. But it may be said that the letters of November 16th to the First National Bank of Medford and to Harris, with their fuller recitals, had not yet been brought home to defendant because no reference is made to them. However, on November 24, 1908, the agent Breeden, having been employed by defendant to assist him in the transaction, wrote to plaintiff a letter in defendant’s behalf. In the course of this letter he says:
“The abstracts show in addition to the $13,000 which grantee is to assume in Mortgages that there are three other mortgages aggregating $9,043.24 on the land. Mr. Harris understands that you are to use the amount he is to pay on the notes executed at this time to remove or release this indebtedness, and I wish to know if that is correct.”
Some additional details are then requested respecting the payment of 'taxes on the land and interest on the mortgage. That Harris was to execute a mortgage back for $10,700 is recognized as a part of the agreement; but some question is raised as to an insurance clause contained in it, and also respecting some embarrassment to Harris that might arise from the fact that the $13,500 mortgage would mature before that securing the deferred payments aggregating $10,700. This letter is a sufficient written recognition both of the $13,500 mortgage and the $10,700 mortgage as parts of the original agreement between the parties. Still further recognition is cofitained in Breeden’s letters to Baird of December 4 and 5, 1908, in which the former seeks
It is true that in the former pleading, as in the present, the defendant Harris coupled his admissions respecting the contract with the Haim that the plaintiff, through its president, Baird, induced him to enter into that contract through fraud and misrepresentation as to the time when the incumbrance which he was to assume would fall due; but this is a defense which has no relation to the statute of frauds. By implication it recognizes and presupposes the existence of the contract which is thus assailed as induced and tainted by fraud. The defendant contracted to assume a certain incumbrance. Let it be conceded that through fraud or inadvertence he failed to provide against some details of .the assumption which worked to his disadvantage. He cannot invoke the statute of frauds for his relief. That statute thus interpreted would be made to work a revolution in the law of contracts apart from the evidentiary phase to which it is confined. It would become the vehicle by which the terms of written contracts might be varied upon the sole ground that they did not contain all the matters of detail which one. of the parties afterwards desired them to contain. This is not the "function of the statute. Defendant’s remedy, if his cause is just, lies in other forms of procedure of the nature disclosed in his former bill and affirmatively stated in his answer filed herein.
' “The statute does not say that if a written agreement is signed the same exception shall not hold to it that did 'before the statute. * * * It does not say that a written agreement shall bind, but that an unwritten agreement*300 shall not bind.” .Brown on the Statute of Frauds (5th Ed.) § 409; Glass v. Hulbert, 102 Mass. 24-35, 3 Am. Rep. 418.
With the question of ultimate recovery based upon other considerations it has nothing to do. Townsend v. Hargraves, 118 Mass. 325.
It follows that-the judgment below must bé reversed, and the cause remanded, with directions to grant a new trial.
HOOK, Circuit Judge, concurs in result.