James v. . Patten , 6 N.Y. 9 ( 1851 )

The principal question to be decided in this case is, whether the memorandum of the contract entered into between the parties was a valid note or memorandum of such contract within the statute of frauds. The objection made to it is, that it was not subscribed by the defendants, the parties to be charged thereby. The section of the chapter of frauds contained in the revised statutes relative to contracts for the sale of goods and chattels, declares, that every contract for the sale of goods, c. for the price of $50 or more, shall be void; unless, 1. a note or memorandum of such contract be made in writing and be subscribed by the parties to be charged thereby; or 2. unless the buyer shall accept and receive part of such goods,c.; or 3. unless the buyer shall at the time pay some part of the purchase money. (2 R.S. 136, sec. 3.) The old statute of frauds, passed February 26, 1787, as well as the British statute of 29 Charles 2, ch. 3, were substantially in the same words, with the exception of the word "subscribed." (1 Rev. L. of 1813, p. 79, sec, 15; 1 Chit. on Con. 385.) Those statutes required the note or memorandum of the contract to be signed by the parties instead of being subscribed by them. Under the judicial construction of our old statute and of the British statute, it was not necessary to the validity of the contract or of the note or memorandum thereof, that it should be signed underneath or at the end. It was held to be a compliance with the statute, if the name of the party to be charged appeared in any part of the instrument, either at the top, in the middle, or at the bottom, provided it was placed there by the party himself or by his authority, and was applicable to the whole substance of the writing. (Clason v. Bailey, 14 John. 486; 12 John. 106, 7.) Thus the law stood at the time of the revision. The revisers, in their notes to the 8th section of the 1st title of the chapter of frauds as reported by them, say it had been held, under the former statute of frauds, "that the literal act of signing is not "necessary, although the statute speaks of ``signing.' After "setting out with this principle, the courts found themselves "perfectly at large as to what should be considered a signing. "To prevent difficulties of this sort hereafter, the revisers propose "to require that these agreements shall be subscribed." The revisers, at the end of the 3d section of the 2d title, which relates to contracts for the sale of goods, and in which they also substituted the word "subscribed" for the word "signed," refer to their notes to the preceding sections. The note to the 8th section of the 1st title, is a plain expression of their understanding of the meaning of the word "subscribed;" and a clear manifestation of their intention in recommending its substitution for the word "signed." It is perfectly clear from the note of the revisers, that they intended by the word "subscribed," to require the manual signing of the agreement at the end thereof, by the party to be charged. When the members of the legislature passed upon the sections of the chapter of frauds as reported by the revisers, they had their notes before them, defining the meaning of the word subscribed, and in substance declaring that the adoption of that word would require an actual manual subscription at the end of the note or memorandum of the contract. The legislature under these circumstances retaining the word "subscribed," as proposed by the revisers, must be understood to have done so, for the purpose of requiring an actual signing in writing of the agreement or memorandum thereof, underneath the same. We cannot now so construe these sections of the chapter of frauds, as to dispense with the necessity of an actual subscription, without disregarding the plainly declared will of the legislature. It is the office of the courts to administer the law as the legislature has declared it; not to alter the law by means of construction, in order to remedy an evil or inconvenience resulting from a fair interpretation of the law. The etymology and definition of the word, subscribe, as given by lexicographers, show that its meaning when applied to the signature to an instrument in writing, as understood by men of letters, is the signature or writing of one's name beneath or at the end of the instrument. This is also its popular signification. I am aware that the popular meaning of the word "signed," when applied to a contract or other instrument, is generally writing one's name at the bottom; and that this is sometimes its literary meaning. But this is not so emphatically and universally its meaning, as it is the meaning of the word "subscribed." The derivation of that word from the Latin wordsubscribo, shows that literally and according to its derivation its meaning is "to write under," or "underneath." But this is not the primary or derivative meaning of the verb "to sign." Such meaning is, to write one's name on paper or to show or declare assent or attestation by some sign or mark.

I concede we are not always in the construction of a statute to be controlled by the literary signification of words, or their primary or derivative sense; and that where they have not by long habitual construction received a peculiar or technical meaning, they are to receive their natural and ordinary signification. (Wain v. Warlters, 5 East, 10.)

In all cases, the intention of the lawmaker in using the words is to be sought after, and when that is ascertained, it must be followed with reason and discretion in the construction of the statute. Wherever any words are obscure or doubtful, the intention of the legislature must be resorted to, in order to find their meaning. (Bac. Ab. Stat. 1. 5.) In the revision of the statute of frauds, no motive can be assigned for rejecting a word, the legal meaning of which had been established by a long line of adjudications, and substituting another, which had never received a judicial interpretation, but which had a known limited meaning; unless it was to change the law or the construction of the statute, so as to require an actual signing of the name of the party at the end of the contract or of the memorandum thereof, although in common parlance the word "signed" in reference to a contract or other instrument in writing is generally understood as a writing of the name at the bottom; yet now, neither in its ordinary or legal use is it confined to that office; but the word "subscribed," in its habitual use, and according to both its popular and literary signification, is limited to a signature at the end of a printed or written instrument. It has a secondary meaning, but that is purely metaphorical, denoting assent, without reference to any mode of expressing it by actual writing. It seems to me therefore that the legislature, by the substitution of the word "subscribed" for the word "signed," intended a change in substance of the statute of frauds, and to attain a greater degree of certainty in contracts, by requiring an authentication, by an actual subscription of the contract or of the memorandum thereof, by the party to be charged or his lawful agent. This alteration is more than a verbal one, or a mere change of phraseology. It is an alteration in substance; the rejection of a word, which by means of judicial interpretation, had an extensive legal signification; and the adoption of another in its place which had in its popular and literary use, and according to the general popular understanding, a known limited meaning. According to the familiar rules of construction, this substituted word must receive its natural and ordinary signification. (5 East, 10; Bac. Ab. Stat. I. 2.) And if that is accorded to it, the contract or memorandum must now be authenticated by a manual signature at the end. In neither a popular, literary or legal sense, are the words "signed" and "subscribed" synonymous, or of equivalent meaning. In the case ofMerritt v. Clason, (12 John. 102,) it was conceded by the eminent counsel, who argued that case, that there was a plain distinction between signing and subscribing.

Mr. Wells says "signing does not ex vi termini mean that "the name of the party should be subscribed." Mr. D.B. Ogden replies, "I do not say that the agreement must be subscribed, "but that it must be signed in some part of the contract."

I do not think that all the foregoing arguments can be overthrown by the mere circumstance that the legislature in the chapter in relation to wills, from abundant and unnecessary caution, added to the provision requiring the will to be subscribed by the testator, the words, "at the end of the will." The chapter in relation to wills was acted upon previous to the enactment of the chapter in relation to fraudulent conveyances and contracts. When the latter chapter was examined and passed, the legislature had the notes of the revisers before them which explained the distinction between the words signed andsubscribed; and, I think, we must presume that the word "subscribed" was adopted in reference to its meaning as defined by the revisers.

This question was expressly determined by the court of errors in Davis v. Shields, (26 Wend. 341,) and is therefore no longer open for debate. In that case it was elaborately and learnedly discussed by the late chancellor and by Senator Verplanck, and both of them came to the conclusion that the word "subscribed" as used in the statute of frauds, requires an actual signing in writing of the name of the party who is to make a sale of an interest in lands or to be charged by a contract for the sale of goods, at the end of the contract or of the memorandum thereof. The ground on which the binding force of this decision is sought to be evaded or overthrown is, in my judgment, unsound. The argument is, that inasmuch as Chancellor Walworth and Senator Verplanck examined two questions in that cause; 1. Whether as the memorandum of the broker, varied from the contract made by the parties, there was a contract binding on either party; and 2. Whether the word "subscribed" required an actual signing of the name of the party to be charged at the end of the contract or memorandum; and as all the other members of the court with one exception voted silently with them to reverse the judgment of the supreme court, that it is impossible to discover on which of the two questions a majority of the court voted for such reversal; although Chancellor Walworth and Senator Verplanck agreed that both of the questions were erroneously decided by the supreme court.

If this argument is to prevail, it will unsettle a great portion of our law, which, by universal consent, has been regarded as definitely established. If in a case like that ofDavis v. Shields, it is held that no point of law was decided, then no case is authority for any purpose which is decided by a court consisting of more than one judge, where one member of the court only delivers a written opinion, disposing of several questions distinctly arising in the cause, the decision of each of which is fatal to the recovery or defense, and the other members of the court concur without respectively declaring their individual views in regard to any of the questions discussed in such opinion. Such a doctrine is opposed to the general understanding of the bar, and to the uniform practice of the courts in recognizing such cases as binding authority as to all the questions which legitimately arose in the cause, and were passed upon by the judge who delivered the written opinion. Where a court consists of several judges, two or more of whom deliver opinions, and all arrive at the same general result in the cause, but for different reasons, and the residue of the judges give a silent vote of concurrence with them, in a decision for the one party or the other; there, as it does not appear that a majority of the court agreed as to any one question in particular as the ground of the decision, the case cannot be considered as authority on any of the questions which arose in the cause. But where several questions arise in the cause, and the opinions delivered agree in regard to all of them, and the other members of the court give a silent vote of concurrence, there all the questions will be deemed to have been determined by a majority of the court, and the case will be regarded and respected as an authoritative adjudication of all such questions.

It has been held by several of the courts of this state, that the case of Davis v. Shields, (26 Wend. 341,) expressly determined that the word "subscribed," in the chapter of the revised statutes in relation to fraudulent conveyances and contracts, called for an actual subscription of the name of the party at the end of the contract. Chancellor Walworth so held inCole v. Bowne, (10 Paige, 537,) and in Champlin v.Parish, (11 Paige, 410, 411;) and a like decision was made by the supreme court for the fourth district, in Vielie v.Osgood, (8 Barb. S.C.R. 134.) As a member of the senate, I took a part in the decision of the case of Davis v. Shields; and at the time that cause was decided, I had no doubt, nor have I any now, that a majority of the court, in voting for a reversal of the judgment of the supreme court, concurred with Chancellor Walworth and Senator Verplanck as to both of the questions discussed in their opinions. I dissented from the opinion of the majority of the court, on the ground that the legislature, by substituting the word "subscribed" for the word "signed," used in the former statute of frauds, did not intend to change the law. From my present examination of this question, I am satisfied that I was mistaken in the opinion I then expressed.

I am of opinion that the judgment of the supreme court should be reversed, and a new trial granted.