King v. Cheatham

• Court: Kentucky Court of Appeals
• Writing for the Court: O'REAR, C.J.
• Citation: King v. Cheatham, 104 S. W. 751 (Ky. Ct. App. 1907)
• Decision Date: 23 October 1907
• Parties: KING v. CHEATHAM.

104 S.W. 751

KING v. CHEATHAM.

Court of Appeals of Kentucky.

October 23, 1907

Appeal from Circuit Court, Henderson County.

"Not to be officially reported."

Action by J. R. King against Alice Cheatham. From a judgment for defendant, plaintiff appeals. Affirmed.

Dorsey & Stanley and Montgomery Merritt, for appellant.

Yeaman & Yeaman, for appellee.

O'REAR C.J.

Appellant sues upon a writing signed by himself alone, in which he bound himself to buy from appellee certain trees standing on her land, to be severed in the future. He charges that the contract was made on appellee's behalf, by her agent Cunningham, and that, she having had no title to the land or timber, he lost his labor and profit, having cut some 263 trees before he was ousted by the owner of the true title. The question is: Was appellee bound on the paper?

A sale of standing timber, not for immediate severance, is a sale of an interest in realty, and must, to be obligatory, be in writing and signed by the party to be charged. Wiggins v Jackson, 73 S.W. 779, 24 Ky. Law Rep. 2189. As Mrs Cheatham did not sign the paper, and it is not signed by her agent, it is not essential to inquire into his authority. Under the statute of frauds (section 470, Ky. St. 1903) such contract, or some memorandum or note thereof, must be in writing, and signed by the party to be charged therewith, or by his authorized agent. The party "to be bound" is the party sued, or him against whom it is sought to enforce the contract. It is to be observed that such contracts are not necessarily void, in a correct use of the term. They are voidable on behalf of the party to be bound thereon only. Harrow v. Johnson, 3 Metc. 578; Newman v Sanders, 7 Ky. Law Rep. 294. The statute merely withholds a right of action upon them as against the party who has not signed them. The prohibition of the statute must reach the spirit of its purpose. As a suit to recover damages for the breach of such a contract would be an indirect enforcement, such actions are held to be within the inhibition of the statute. McCampbell v. McCampbell, 5 Litt. 92, 15 Am. Dec. 48; Bromley v. Broyles, 58 S.W. 984. Nor does part performance of the party signing affect the matter. Hunter v. Simrall, 5 Litt. 62; Hambell v. Hamilton, 3 Dana, 501; Montague v. Garnett, 3 Bush, 297; Mannen v. Bradberry, 81 Ky. 153; Graves Co. Water Co. v. Ligon, 112 Ky. 775, 66 S.W. 725.

Although the purchase money paid on such contract may be recovered if the party not bound refuse to execute it, that is not in any sense an action upon the contract, but is for money had and received for which the consideration has failed, and for which the law implies a promise to repay. But nothing was paid by appellant as...