Peevey v. Haughton

• Decision Date: 03 June 1895
• Court: Mississippi Supreme Court
• Parties: M. E. PEEVEY v. P. H. HAUGHTON

18 So. 357

72 Miss. 918

M. E. PEEVEY v. P. H. HAUGHTON

Supreme Court of Mississippi

June 3, 1895

E. H Bristow, of counsel for appellant,

Filed a suggestion of error, especially pressing the point that the bill of complaint, filed long after the date at which the consideration was, by the terms of the contract, to be paid cannot constitute a sufficient memorandum under the statute of frauds; that there cannot, in the very nature of things be now an offer by Haughton to deliver cotton in the quantities and at the times agreed upon; that, to make the promise good as a consideration, it must be such a promise as the promisee can compel the performance of against any objection of the promisor. Counsel reviewed, at length, on this point, the case of Catlett v. Bacon, 33 Miss 269, to show that it is conclusive of the case at bar in favor of appellant.

OPINION

WHITFIELD, J., delivered the response to the suggestion of error.

"The offer to perform," referred to in the original opinion as satisfying the statute, is, of course, not a verbal offer but the offer made in the bill signed in writing by the complainant. The case of Metcalf v. Brandon, 58 Miss. 841, announcing that, "if he" (complainant), "admits it in writing, over his signature, the terms of the statute are met," was not referred to by us, because we did not think it would be seriously questioned; and, hence, we addressed ourselves to the task of satisfying counsel of the inapplicability of his authorities in other views. But, as the case does not pass unchallenged, as it would seem, we say only that it is certainly undoubted law, and thoroughly settled elsewhere. In Sams v. Fripp, 10 Rich. (Eq.), S. C., 447, the court say: "It has always been held that the requirements of the statute of frauds concerning agreements to convey lands were fulfilled by the signature to the contract of the party to be bound, where the adverse party, by bringing his bill, or any writing, affirms the contract." In Ives v. Hazard, 4 R.I. 14, the court say: "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 pact, is void. We do not understand this promise to be of that character. The defendant agrees with the plaintiff to sell the land in question for the sum of $ 15,000, the said sum to be paid on the twenty-fifth 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 of 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. It is no objection that the defendant had no 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. . . 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 gave it to the plaintiff whereby he made himself chargeable. It is now well settled, by authority, 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." In Evans v. Williamson, 79 N.C. 86, the same doctrine is strikingly enforced. In Vassault v. Edwards, 43 Cal. 458, the same rule is declared, "that the statute is fully complied with if the agreement . . be signed by the party to be charged, or the party by whom the sale is to be made," and the court adds: "It was, accordingly, held from an early day, that when the action for a specific performance was instituted by the party who had not signed the agreement, the act of filing the bill made the remedy mutual." And many other cases to the same effect could be cited. We specially refer counsel to two: Ivory v. Murphy, 36 Mo. 534, and Roberts v. Griswold, 35 Vt. 496, cited in Reed on the Statute of Frauds, vol. 1., § 363. The very argument made by counsel here was made in both those cases. See brief of G. P. Strong, 36 Mo. p. 536. "Now, a consideration," says Mr. Strong, "is of the very essence of a contract; and, with or without the statute of frauds, no contract wanting this element can be enforced." Says counsel, in his suggestion of error: "If Mrs. Sartor had sued Haughton on his promise to deliver this cotton, she could not have recovered, because the promise was not in writing, and was, consequently, void (unenforcible, rather) under the statute of frauds. Then, this promise being the sole consideration for...