McGovern v. Hern

C. Allen, J.

The memorandum of the sale is insufficient to satisfy the statute of frauds. It is essential that it should show who are the vendors. It is true that they need not be named. It is enough if they are described, and in that case paroi evidence is admissible to apply the description and to identify the persons meant. Jones v. Dow, 142 Mass. 130, 140. Catling v. King, 5 Ch. D. 660. Rossiter v. Miller, 3 App. Cas. 1124,1141; S. C. 5 Ch. D. 648. Merely to refer to the persons selling as the vendors is no description. Catling v. King, 5 Ch. D. 660, 665, per Mellish, L. J. In Gowen v. Klous, 101 Mass. 449, the sellers were described as “ Eveline Gowan, guardian, and the heirs of Thomas Gowan”; and it was held that one of the heirs, who owned the lot in question, might maintain the action. The court said, “ It is no objection to the sufficiency of the memorandum, that the seller therein named is but an agent of the real owner; and on proof of the agency the latter may sue or be sued on the contract made by his agent in his behalf.” The trouble with the memorandum in the case before us is, that the seller is neither named nor described. Sullivan Brothers were indicated in one corner of the paper as the auctioneers, and it cannot fairly be considered that they were anything else. Their function as auctioneers was recognized in the memorandum as something distinct from that of parties contracting for unmentioned principals. Grafton v. Cummings, 99 U S. 100, 107, 108.

There is another objection which is fatal to the action in the present form, though it might perhaps be cured by an amendment, substituting the proper plaintiffs for the present plaintiff. At the time of the sale, it appears that the estate was owned by devisees of John Higgins, and by grantees of certain of the devisees. The plaintiff was not at that time interested in the estate, but acquired it afterwards for the purpose of conveying it. If anybody had contracted as vendor, then it would be sufficient if such person was able to give a good title at the time specified. Dresel v. Jordan, 104 Mass. 407. In that case it was held that the person who contracted to sell, and who was described in the memorandum, might maintain an action. But such a contract is not negotiable, and it could not be said that the purchaser is liable to a suit in the name of a person who subsequently acquires the title of those who were the owners at the time of the sale. Grafton v. Cummings, 99 U. S. 100.

Exceptions overruled.