Grafton v. Cummings
Decision Date | 01 October 1878 |
Parties | GRAFTON v. CUMMINGS |
Court | U.S. Supreme Court |
The bill of exceptions adds, that when this paper was put in evidence it was indorsed 'A. R. Walker, auctioneer and agent for both parties.' It was not fully shown when this indorsement was made, and there was some evidence that it was not there at the time when the deeds which Grafton refused to accept were tendered. The court, however, instructed the jury, that if it was done at any time before the commencement of this action it was sufficient.
Evidence was admitted to show that at the time of the sale another paper was read by the auctioneer affecting the terms of the sale, but it was not among the papers subscribed by defendant.
The following letter was, notwithstanding the objection of the defendant, read in evidence by the plaintiff:——
'DEAR SIR,—I came up to-day hoping to confer with you in regard to the purchase of the Glen House. I don's know but what Lindsay and Barron intend to take it. Some things they said indicated as much, and Grafton offered to let them take it at his bid, and let them have their own time to pay him his claim. But I find Mrs. Thompson is strongly attached to the place. The judge of the Probate Court will make her an allowance. It occurred to me that the purchase might be made in this way. One-tenth would be $9,000:——
S. H. Cummings, 3/10........... $27,000
Lindsay, 3/10................... 27,000
Barron, 3/10.................... 27,000
Mrs. Thompson, 1/10.............. 9,000
---------
'Very truly yours,
'WOODBURY DAVIS.
'S. H. CUMMINGS, Esq.'
There was a judgment for the plaintiff, whereupon Grafton sued out this writ of error.
Mr. A. J. Vanderpoel and Mr. James W. Gerard for the plaintiff in error.
The action cannot be maintained. No vendor is named in the paper relied on as the agreement. It is therefore invalid on its face. Sherburne et al. v. Shaw, 1 N. H. 157; Boyce v. Green, Batt. 608; Williams v. Lake, 2 El. & El. 349; Williams v. Byrnes, 9 Jur. N. S. 363; Potter v. Duffield, Law Rep. 18 Eq. 4; Champion v. Plummer, 1 New Rep. 252; Wain v. Warlters, 5 East, 10.
The indorsement by the auctioneer, in which no vendor is named, did not make the agreement sufficient under the Statute of Frauds. Potter v. Duffield, supra; Rossiter v. Miller, 48 L. J. N. S. 17; Browne, Stat. Frauds, sect. 374.
In the matters put in evidence, the only agreement of Grafton which, if any, the jury could consider was that signed by him, referring to the terms and conditions of sale. The connection between it and some other paper not so signed by him cannot be shown by parol evidence, but must appear by internal evidence derived from the signed memorandum itself. The declarations of the auctioneer were not admissible. Johnson v. Miller, 35 N. J. L. 344; Boydell v. Drummond, 11 East, 142; Coles v. Trecothick, 9 Ves. 250; Clunan v. Cooke, 1 Sch. & Lef. 22; Parkhurst v. Van Cortlandt, 1 Johns. (N. Y.) Ch. 273; Dobell v. Hutchinson, 3 Ad. & E. 355; First Baptist Church v. Bigelow, 16 Wend. (N. Y.) 28; O'Donnell v. Leeman, 43 Me. 158; Knox v. King, 36 Ala. 367; 1 Smith, Lead. Cas. 465, notes to Birckmyr v. Darnell.
No support to the argument of Cummings can be derived from Beckwith v. Talbot, 95 U. S. 289.
Conditions of sale read before the biddings commenced but not annexed to the catalogue on which the purchasers' names were entered, nor referred to therein, cannot supply the terms of sale omitted in the catalogue. Hinde v. Whitehouse, 7 East, 558; Kenworthy v. Scofield, 2 Barn. & Cress. 945. Nor, where the signed memorandum contains no reference to them, are handbills and newspaper notices admissible, although published at the time of sale and there circulated. O'Donnell v. Leeman, supra; First Baptist Church v. Bigelow, supra; Wright v. Weeks, 25 N. Y. 153; Riley v. Farnsworth, 116 Mass. 223.
Cummings claims that the declarations of the auctioneer were admissible, because he is the agent of seller and purchaser, so that his acts and declarations are competent. He is not the agent of the purchaser until the premises are struck down, and his agency is limited to then and there signing the contract.
A contract, as originally entered into, cannot at law be altered by evidence of a parol variation in favor of either the plaintiff or the defendant. Dart, Vend. and P. 451; Sugden, Vend. and P. 171; Goss v. Nugent, 2 Nev. & M. 33; Blood v. Goodrich, 9 Wend. (N. Y.) 68; Sanderson v. Graves, Law Rep. 10 Eq. 234.
A parol waiver of the whole contract is sometimes allowed, but never where the effect of the waiver is to substitute a new contract for the original one. Goss v. Nugent, 5 Barn. & Adol. 58; Sanderson v. Graves, supra.
Mr. Thomas H. Hubbard and Mr. Henry Heywood, contra.
There was a sufficient memorandum of the contract in writing to satisfy the requirements of the Statute of Frauds. Walker v. Whitehand, 16 Wall. 314; Browne, Stat. Frauds, sect. 373; Allen v. Bennett, 3 Taunt. 169; Beckwith v. Talbot, 95 U. S. 289. The objection that the memorandum which Grafton signed does not show who was the vendor, is answered by the letter written to Cummings by Davis, and also by the printed advertisement pasted to, and thus forming a part of, the memorandum. It is,...
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