This wаs an action for the specific performance of a contract to convey lаnd and to recover the balance of the purchase price. On 3 October, 1910, the plaintiff contracted orally to sell his home place to the defendant for $10,000, one-half payablе 2 January, 1911, and the other 2 January, 1912. It was in evidence that soon afterwards the parties by agreemеnt went to the First National Bank to get O. O. Blanton to witness the trade, and the defendant stated to Blanton in plaintiff’s presence that he had bought plaintiff’s home place for $10,000 and wanted Blanton to witness thе trade and wanted to make a payment to bind the trade, and suggested $50, but upon the plaintiff’s objecting, the defendant then and there gave his note for $500 due 2 January, 1911, to bind the trade; Blanton wrote the note, which defendant signed, and it was also witnessed by Blanton. It was also in evidence that thereupon the defendant asked the plaintiff for something to bind him; that the plaintiff gave a receipt for the $500 note, Blanton writing and witnessing it, and that after the receipt was given the defendant said: “Now, we had better call оver the amount to be paid and when it is to be paid,” and said: “I am to pay the remaining part of $5,000 оutside of this note on 2 January, 1911, and I am to pay Wellman the remaining $5,000 on 2 January, 1912.”
It was further in evidence: “Thаt Blanton drew a bank deposit slip near him and wrote down what defendant said, as he stated it, the defendant standing on the right of Blanton and the plaintiff on the left, where both could see what he was doing; that аfter Blanton wrote the memorandum he said: ‘Boys, let’s see if we understand this trade.’ Then Blanton read ovеr the following memorandum, which both parties agreed was correct: ‘$5,000 2 January, 1911; $5,000 2 January, 1912. J. A. Horn to pаy the above to E. A. Wellman when he makes deed to Horn for Wellman’s home place, 3 Octobеr, 1910.’ ”
There was evidence in corroboration and evidence contradictory of the abоve. The judge recited the above and the other evidence, and told the jury that if they should find that Blantоn *172 in tbe presence of tbe defendant, wrote the memorandum at the request of the defendant, еmbracing therein the terms of the contract, and thereafter read it to the parties, and that thе defendant then agreed that the memorandum was a correct statement of the contraсt, they would find that Blanton was lawfully authorized by the defendant to make the memorandum, and would answer the first issuе “Yes.” And unless they so found, to answer the first issue “No.” The jury responded “Yes.”
The statute of frauds was pleadеd, but this memorandum complies with that statute, because, as the jury find the facts, there was sufficient signing; the memorandum embraced all the essential elements of the contract; it was sufficiently definite and contained all the terms of the agreement.
Under the statute of frauds it is not necessary that the contract should be subscribed. It is sufficient if it is signed by the party to be charged or by some one duly authorized by him. If the name “J. A. Horn” in the memorandum had been signed by the defendant, it would have been sufficient. It is equally sufficient if “J. A. Horn” was written therein by some one authorized by him. It is not necessary that such authority should be in writing. There 'was evidence that Blanton wrote the memorandum, including the name “J. A. Horn,” in his presence and by his authority, and that the defendant could see him while he was writing.
The defendant subsequently, on 5 October, wrote the plaintiff a letter in whiсh he said: “I would like to git out of our land trade if it would suit you. I cannot rent my piase so it will pay,” and went on tо give other reasons why he wished to be released. The jury found all the other issues also in favor of thе plaintiff, to wit, that the plaintiff had tendered a good and sufficient deed, which the defendant refused tо accept, and that plaintiff had not made any fraudulent representations in regard to the matter. The case was fully argued below and here. But the above presents the real point in controversy, and we find no error in the record of the trial below.
The statute of frauds, Revisal, 976, provides: “All сontracts to sell or convey any lands, etc., shall be void unless the said *173 contract or some memorandum or note thereof be put in writing and signed by the party to be charged therewith, or by some other person by him thereunto lawfully authorized.”
Speaking for myself only, the statute does not require the agreement to pay the purchase money to be in writing, but only the contract
“to
sell or convey land.” The decisions on this рoint have been conflicting, and are fully stated on both sides in
Brown v. Hobbs,
No error.