Gale v. Nixon , 6 Cow. 445 ( 1826 )

Curia, per

Sutherland, J.

The plaintiff was nonsuif-ec¡ at t}je tn-ai . |jjs right to recover being objected to on three grounds :

1. That the contract was within the statute of frauds, pot being signed by the defendants. 2. That if it was a valid contract, it being sealed, the action should have been covenant. 3. That the deed not baying been tendered by the plaintiff, until after the time stipulated, and the eon-tract, therefore, not having been fulfilled on his part, there could be no implied promise, on the part of the defend¡ants, to pay.

The article of agreement contains a perfect contract between the parties. It specified particularly what was to be done by each party. It was sealed by the plaintiff, and delivered to the defendants, who took possession of the land under it ; and the only objection to it is, that it was not signed by the defendants.

It is not necessary, in this case, to decide whether the action could be sustained merely upon the signature of the plaintiff to the contract, and the acceptance of it, together with the possession of the land, by the defendants, though I am inclined to think that it could. (I Eq. Cas. Abr. 21, pl. 10. 1 Powell on Cont. 286. Ballard v. Walker, 3 John. Cas. 60. Roget v. Merritt & Clapp, 2 Caines, 120, per Spencer, J. 1 Fonbl. 165, 166.)

But the indorsement on the back of the contract, signed by both of the defendants, is clearly sufficient to take the case out of the statute, although made at a subsequent period. It is a fpll and complete recognition of the Contract. It releases the plaintiff from the performance of one part of it. It is not necessary that the identical agree-jnent should be signed ; but if it is acknowledged by any other instrument duly signed, it is sufficient. (Rob. on Frauds, 121. Welford v. Beazly, 3 Atk. 503. 3 Bro. Ch. Rep. 318. 1 Ves. 6. 9 Ves. 355. 1 Com. on Contr. 109, 110.)

Assumpsit was the proper form of action. Covenant will lie only where the instrument is actually signed and sealed by the party, or by his authority. A recognition bf the contract, though in writing and under~seal, will not make it a covenant. If the instrument bj which the original contract is admitted, contain, in itself, a specification of the terms, and consideration of the contract, an action perhaps might be sustained upon that; and in such case, if it was under seal, the action must be either debt or covenant.

Under the circumstances of this case, it is not material that the deed was not tendered on the day fixed by the contract. The defendants were in possession of the land. They had, by a mutual arrangement between the parties, taken a deed from Astley for the largest parcel. They do not offer to deliver up possession of the land, and rescind the contract ; but seek to retain the land, and avoid paying the stipulated price. This they eannot do. They must either avoid the contract in toto, or else perform.

The plaintiff was improperly nonsuited, and the judgment must be reversed.

Judgment reversed.