Tripp v. Bishop

• Decision Date: 07 January 1868
• Citation: 56 Pa. 424
• Parties: Tripp <I>et al. versus</I> Bishop.
• Court: Pennsylvania Supreme Court

Page 424

56 Pa. 424

Tripp et al. versus Bishop.

Supreme Court of Pennsylvania.

November 20, 1867.

January 7, 1868.

November 20th 1867.

Before THOMPSON, STRONG, READ and AGNEW, JJ. WOODWARD, C. J., absent

Error to the Court of Common Pleas of Venango county: No. 83, to October and November Term 1867.

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G. Shiras, Jr., for plaintiffs in error, referred to Act of March 21st 1772, § 1, 1 Sm. L. 389, Purd. 497, pl. 1; Parrish v. Koons, 1 Pars. R. 80; Wilson v. Clarke, 1 W. & S. 554; Hertzog v. Hertzog, 10 Casey 419; Lowry v. Mehaffy, 10 Watts 387; McFarson's Appeal, 1 Jones 503; Ewing v. Tees, 1 Binn. 450; Ellett v. Paxson, 2 W. & S. 418; Act of Cong. March 3d 1865, § 1, Brightly's U. S. Dig. p. 264, pl. 252.

O. Heydrick, for defendant in error, referred to Lowry v. Mehaffy, 10 Watts 387; Act of Cong. March 3d 1865, supra.

The opinion of the court was delivered, January 7th 1868, by STRONG, J.

It is only because of the Statute of Frauds that a parol contract for the purchase and sale of lands cannot be enforced according to the words of the contract. Unlike the British statute, ours does not absolutely avoid the agreement. It simply restrains its effect. The British statute declares that "no action shall be brought whereby to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." This is not found in our Acts of Assembly, and therefore an action may be maintained with us for the breach of a parol contract to sell or to buy a tract of land. But when such an action is brought against a vendee, the measure of damages for a breach of his contract is not the price he agreed to pay. If it were, courts would give the same effect to parol contracts which is given to contracts in writing, and that would be to disregard the statute. All this is plain enough. If, however, a contract is not within the Statute of Frauds, or if the contracting parties have done all that the statute requires, there is no reason why a purchaser should not be held to pay what he promised; or, in other words, why the price he undertook to pay is not the measure of damages for his breach of his contract.

Assuming that there was a contract made between the plaintiff below and the defendants, by which the former sold and the latter bought a moiety of the Dotterer farm at the price of $13,000, and this the verdict establishes, it is a primary question whether the contract was in writing, so as to take it out of the Statute of Frauds. If it was, the measure of damages for its breach was correctly stated to the jury. If it was not, the jury should not have been permitted to return a verdict for the stipulated price of the land. The facts of the case are summed up in the charge. On the 2d of December 1864, the plaintiff wrote and signed a paper by which he agreed to take $13,000 for his share of the Dotterer farm — $2500 down, and the balance in six months with interest, the money to be indubitably secured. This paper he sent by one of the defendants to Hoge his agent, with written instructions that Hoge should make a deed and send it to him, receive the first payment, and deposit and make everything sure. It is not alleged that this paper was a sufficient compliance with the requisitions of the statute. The court below instructed the jury, that if the plaintiff relied upon that paper he could not recover at all. But on the 20th of December 1864, a deed for the land to Tripp, one of the defendants, having been prepared, the plaintiff executed it, and Hoge, the owner of the other moiety, joined in the execution, having sold his interest to the same parties. The court submitted to the jury to find whether the deed was thus executed; whether Hoge was a tenant in common with the plaintiff, and sold his interest to the same parties; whether the defendants requested the deed to be made to Tripp, one of their number; whether the plaintiff sent on the deed so executed to Hoge to be delivered, upon his receipt of the hand-money and securing the balance; whether all three of the purchasers (defendants) examined the deed, were satisfied with it, and accepted it, and agreed to pay the money according to the terms set forth in the paper of December 2d 1864, signed by the plaintiff; whether the defendants then paid the hand-money, each one third, and agreed with Hoge the agent that he should keep the papers until the balance was paid, taking them with him to Harrisburg, they promising to pay, the balance when due. The jury was then instructed that if they found such to have been the facts, the plaintiff was entitled to recover the balance of the purchase-money, and interest. The jury found for the plaintiff, and it must therefore be taken that these facts are established. Do they show a sufficient compliance with the demands of the statute? Neither the British statute nor ours requires that the written agreement or memorandum of the sale should be signed by both parties — a receipt for the purchase-money, if it describe the lands, has been held sufficient: 9 Ves. 234; 12 Id. 466; and even a note, or a letter has more than once been held to be a sufficient agreement to take the case out of the statute: Sugden on Vend. 45.

This is even more certain under our statute than under that of 29 Charles 2. The words of the latter are, "unless the agreement, or some memorandum thereof shall be in writing and signed by the party to be charged therewith." Our act declares that all leases, estates, interests of freehold, &c., shall have the force and effect of leases or estates at will only, unless put in writing and signed by the parties so making or creating the same, that is, the parties making the leases or creating the estate. It is then only the lessor or...