Ives v. Hazard Others , 4 R.I. 14 ( 1855 )

"Mem. 28th May, 1852. I agree to sell R.H. Ives, the Peckham farm, now occupied and owned by me, say about 45 acres, in Newport, for the sum of fifteen thousand dollars, ($15,000,) payable 25th March, 1853, when possession is to be given. He, R.H.I., paying the annuity for December, 1852.

(Signed) "CHARLES T. HAZARD."

A few days afterward, the complainant received from Hazard the following letter, dated June 2, 1852, in which, after stating that as agent for the complainant, he had purchased another piece of land adjoining, and the terms of the purchase, he continues: —

"I am sorry to say, when I told my wife what arrangement I had made with you respecting the Peckham farm, she at once told me she would not consent to sell the whole of it. I thought I was doing what was for the best at the time, but she says she has been moved about from place to place, and has been to the trouble of furnishing the house and has got settled, she should not be willing to break all up and move again. I told her you said we could hire the place, but she would not consent to that, and said she would not sign a deed of the whole of it; but was willing and wanted to sell a part of it, which would be the south part, at a very low price. You will recollect I repeated it a number of times, that she did not want to sell the whole but a part, and I did not know what my folks would say if I put a price on the whole of it. As the thing has taken the course it has, I think it would be well if you could come down and talk the case over with her yourself. If you can get her willing, I am ready to go on as we talked. Under the circumstances, she says she should be willing to sell the south part, running on a straight line with the north end of the Armstrong lot, east and west, for the low price of $550 per acre, making about 18 acres. I may be in Providence on Saturday on business.

Yours respectfully, (Signed) "CHARLES T. HAZARD."

It was also proved by the admissions of the respondent, Hazard, that the complainant had agreed orally with him to take the farm named in the memorandum at the price therein named, but that he did not mean to convey the land to the complainant at the stipulated time, on account of the refusal by his wife to release her dower in the same, claiming that his wife's consent and release of her dower was a condition of his contract with the complainant.

The matter remained in this position until the 21st day of September, 1852, when the complainant having previously learned that the respondent, Hazard, had, in violation of his contract with him, sold or contracted to sell portions of the bargained farm to Henry A. Middleton, Esq., and Mumford Hazard, a brother of Charles T., filed his bill in the supreme court for the county of Newport against the three, praying that Charles T. Hazard might be compelled specifically to perform his contract with the complainant — an allowance to be made out of the stipulated price for the value of the wife's dower, if she should persist in refusing to release the same — and for an injunction against any conveyance by him to the other respondents, or any payment by them of any consideration therefor to Hazard, c., c. The bill was accompanied by a petition for special injunction against conveyance and payment as aforesaid, which was, on the 2d day of October, 1852, after hearing, granted by the Hon. Richard W. Greene, then Chief Justice, at Chambers, the injunction to continue until the hearing and further order. Before the hearing, an agreement was entered into between the complainant and Mumford Hazard, by virtue of which the latter, who had made improvements on the portion purchased by him by contract of his brother, Charles T., was, upon certain terms, to take a title from the complainant, if the latter succeeded in establishing his claim against the said Charles T., which removed that portion of the controversy. It appeared also that Middleton had never received a deed from Hazard of the portion of the premises stipulated to be conveyed to him, but that the deed from Hazard to him had been placed in the hands of the Hon. Henry Y. Cranston, to be delivered over to Middleton when the consideration therefor should be paid by him; and in this state of the matter further action was arrested by the filing of the bill and the special injunction above mentioned.

By agreement, the cause was removed for trial and decision to the County of Providence, where, after having been brought to an issue and the proofs taken, it was heard orally by the court at the March Term, 1854. Before the case was decided, the then Chief Justice, Hon. R.W. Greene, resigned, and Mr. Justice Haile died, whereupon, at the September Term, 1855, it was submitted, upon printed arguments, to the court as newly constituted by the intermediate appointment of Hon. Wm. R. Staples as Chief Justice, and of the Hon. Alfred Bosworth as a Justice of the Court. This case arises on a bill of equity, for a specific performance of a contract, the note or memorandum of which is in the following words, viz: —

Mem. 28th of May, 1852.

I agree to sell R.H. Ives the Peckham farm, now owned and occupied by me, say about 45 acres, in Newport, for fifteen thousand dollars, (15,000,) payable the 25th of March, when possession is to be given. He, R.H.I., paying the annuity for December, 1852.

The bill sets out, that the said Charles T. Hazard, being seized and possessed of the farm in question, on the 25th day of May, 1852, in consideration that the said R.H. Ives would pay him therefor, the sum of fifteen thousand dollars on the 25th of March, 1853, and would pay certain annuities, charged upon said estate, falling due and payable in December, 1852, and would also assume the future payment of said annuities so charged upon said estate, and would pay the same whenever and as they should become due and payable, contracted and agreed with the said Ives to sell him the said farm, to make to him a good title in fee simple, and give him possession on the 25th of March, 1853; the title and possession, however, to be subject to the annuities which are a charge upon the estate. The bill avers, that the said contract was, on the same day, reduced to writing and signed by the said Charles T. Hazard; and annexes a copy of the alleged contract, which is the note or memorandum above set forth.

The answer unequivocally denies the same; and the respondent avers therein, that he never so contracted, and denies that the aforesaid contract and agreement of said Charles T. Hazard, c., was reduced to writing and then signed by him. It then states in detail the particulars of an alleged interview, between the complainant and said respondent, in which the said Ives asked for a price of the Peckham farm, and the said Hazard expressed an unwillingness and a refusal to sell the whole of the Peckham farm, but that he was willing to sell a part of it; that he did say to the complainant, that if he was going to sell the whole of it, he should ask $15,000 for it. The answer admits the signing of his name in pencil in said book, as and for a memorandum of the talk between the parties; sets up that he wrote his name mechanically, without reading the memorandum, and without knowing what it contained; alleges haste and confusion, and want of opportunity to read it; and asserts, that whatever understanding there was between the parties, was intended and expressed by the said Hazard, to be upon the contingency that it was approved of, and agreed to, by his wife. The answer also sets up the statute of frauds.

The first question to which we turn our attention, in the consideration of this case is, as to whether there is evidence in the case proving a contract, or some note or memorandum thereof, in writing, signed by the party here charged, for the sale of the land in question? Upon examination of the memorandum produced, and the proofs of its execution, we find an agreement in writing, signed by Charles T. Hazard, to sell the Peckham farm owned and occupied by Hazard, containing about 45 acres, for a valid consideration expressed, the time when payment is to be made, and when possession is to be given, being definitely fixed. The execution of this instrument, we think, is conclusively proved.

This we deem a sufficient note or memorandum of an agreement to sell the land in question, to authorize the bringing of an action, in compliance with the restrictive terms of the statute of frauds. That statute enacts that, "No action shall be brought upon any contract for the sale of land, unless the promise or agreement upon which such action is brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or by some person by him thereto lawfully authorized."

Now there is here proved a contract, or memorandum of a contract, in writing, which is signed by the party here sought to be charged therewith. It is objected that the memorandum is not signed by the other party to the contract; but we do not deem it necessary that it should be signed otherwise than by the party to be charged therewith. Ordinarily, in matters not affected by the statute of frauds, a contract, if it be proved, must be held binding on both parties, though it be not in writing or signed by either party. In reference to a contract for the sale of land, the statute requires, that it shall be in writing, and signed by the party to be charged therewith, in order to authorize an action upon it. This is all that the statute requires. Authorities are cited to support the proposition that it is not necessary that both parties should sign the contract. 1 Sugd. Vend. 112, 113, 114. Laythoarp v. Bryant, 2 Bingh. N.C. 735. S.C. 29 Eng. Com. Law Rep. 469. But the point does not need to be sustained by authorities. The statute plainly does not require it.

The counsel for the respondent contend that the words of the memorandum import an offer to sell, and nothing more. We think the language imports an agreement to sell. The language is, "I agree to sell;" the consideration is expressed, and the time when possession is to be given is fixed by the memorandum. The mention of the time when possession is to be given, and when the price of the land is payable, indicates that the parties deemed the agreement a concluded one. The acceptance of the contract on the part of the other party, is perhaps implied, by the use of the term "agree," in the memorandum by the defendant; for in order to make an agreement, the assent of two parties is necessary. But we do not deem it necessary that the assent of both parties should appear on the face of the instrument, any further than that the writing should import a contract between the parties, and be signed by the party to be charged therewith. It is in proof, that the complainant agreed to take the land, at the price named in the agreement. This, we think, upon well-settled principles, may be proved, aliunde the instrument. The contract was therefore mutual.

The respondent objects that there was no consideration expressed in the instrument, moving from the complainant to the defendant. A promise without consideration, or a nude fact, is void. We do not understand this promise to be of that character. The defendant agrees with the plaintiff to sell the land is question for the sum of fifteen thousand dollars, the said sum to be paid on the 25th of March, when possession is to be given. True, no consideration had passed from the plaintiff to the defendant; neither had the land, which was the subject of the agreement, passed. The consideration for the agreement to sell the land for $15,000, was the agreement of the other party to buy it for $15,000; and the agreement was thus mutual. The plaintiff cannot have the enforcement of the contract, without the payment of the sum which was the consideration moving the defendant to make the agreement.

It is no objection that the defendant had not the power to enforce the contract at the time it was made. If he had chosen to have that power he might have obtained it, or refused to give such power to the plaintiff. The statute of frauds requires, that to give a party power to bring an action upon a contract, for the sale of land, he must have the contract, or some note or memorandum of it, in writing, and signed by the party to be charged. If the defendant had chosen to have his remedy or his right to enforce the contract by action, he should have obtained this requisite wherewith to charge the complainant, as he have it to the plaintiff whereby he made himself chargeable.

It is now well settled by authority, that mutuality of remedy, existing at the time of action brought, is all that is required to enable a plaintiff to maintain his action; and that where there is a bill for specific performance in a court of equity, the bringing of the bill makes the complainant chargeable as on a memorandum of the contract signed by him. This renders the remedy mutual between the parties at the time when the action is commenced. The cases in which this doctrine is decided and settled are numerous. See 4 Russ. 298; Flight v. Bolland, S.C. 3 Cond. Ch. 677; Batten on Specific Performance, 62;Salsbury v. Hatch, 2 Young Collyer, 64; Telfair, v.Telfair, 2 Desaus. Ch. Rep. 271; 1 Sugd. Vend. 241; 242, 246; 2 Story Eq. Jurisp. 736.

The allegations in the answer, of haste and confusion, and surprise, are not sustained by the proof in the cause, in any manner sufficient to render void the contract. The statements in the answer, setting up a condition of the contract contingent upon the approval of the defendant's wife, not being responsive to the bill, must be proved, to have effect. We do not find in the cause any legal evidence to prove that there existed any such condition in the contract between the parties. Such a condition, if it existed, would alter or vary the terms of the written contract, and must, at least, be proved, by evidence independent of the answer and declarations of the respondent, before it can avail to prevent a decree for the specific performance of a contract in writing. See 2 Dan. Ch. Prac. 984, n.; Rogers v. Sunders, 16 Maine Rep. 96; 2 Gill, 120.

It is no bar to the remedy which the complainant here seeks, that the memorandum in writing does not contain a specific agreement to pay the future annuities, which it appears are a charge upon the land. That was a part of the contract to be performed by the other party, not by the party signing the memorandum in a manner to be charged therewith. It is not necessary that the whole agreement should be in writing, but the substance of it; "a note or memorandum of the contract," not a detail of all its particulars, is what is required. SeeLaythorp v. Bryant, 29 Eng. Ch. 472; Atwood v. Cobb, 16 Pick. Rep. 230.

The complainant, in his bill, admits his agreement to pay the future annuities, and alleges his readiness to do so. If this was a parol condition of the contract, to be performed on his part, and he consents to it, the fact that it was not embodied and detailed in the written memorandum, is no reason why he should not have a decree against the respondent, he being ready to perform all the conditions of the contract which are incumbent on him. See Martin v. Pycroft, 15 Eng. L. Eq. Rep. 378;London Birmingham R.R. Co. v. Winter, 1 Craig Phillips, 57.

We think, therefore, that there is sufficient proof in the cause to establish the contract set out in the complainant's bill, and must decree that the contract be specifically performed.

DECREE. The decree, in substance, ordered Hazard to convey his title to the premises to the complainant upon receiving the amount of purchase-money stipulated, deducting therefrom the value of his wife's right of dower in the premises if she should refuse to release the same, such value to be ascertained by the master who settled the conveyance.