Mathes v. Bell ( 1903 )

JPer Ouriam.

There are several reasons, as we think, why the judgment cannot be upheld. It. will be sufficient to say that, in our judgment, a contract to sell and convey real estate is not made out. Olearly, Grew was acting in the premises as the agent of Mathes, and was seeking to make a purchase for his client. Now, the letter written by Bell cannot be construed into a contract to sell and convey, and therefore there was no agreement in writing on his part, as required by the statute of frauds. Code, section 4625. And the deposit of the money in a bank by plaintiff and his agent cannot have the effect to take the case out of the statute. Such was done without any agreement on the part of the defendant, and without his knowledge. Moreover, we do not see how there could be any right of action in any event, until it was ascertained to a certainty what was the number of acres of land, and there was an offer to pay for the actual acreage at the price alleged. — Reversed.