White v. Dahlquist Mfg. Co.

• Decision Date: 20 June 1901
• Citation: 179 Mass. 427,60 N.E. 791
• Parties: WHITE v. DAHLQUIST MFG. CO. et al. (two cases).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 427

60 N.E. 791

WHITE v. DAHLQUIST MFG. CO. et al. (two cases).

Supreme Judicial Court of Massachusetts, Suffolk.

June 20, 1901

COUNSEL

M. J. Creed and J. Porter Crosby, for plaintiff.

Aza P French and Geo. W. Able, for defendants.

OPINION

HAMMOND J.

The defendants contend that each memorandum is insufficient under the statute of frauds, because as they allege it does not name or describe the owner of the land sold and some other material parts of the contract. It is not always necessary that the memorandum should name or describe the owner. Where, as in a case like this, it is signed by a person who is in fact an agent and acting as such, the existence and identity of the principal may be proved by parol, and he may sue or be sued upon the contract. Williams v. Bacon, 2 Gray, 387; Lerned v. Johns 9 Allen, 419; Gowen v. Klous, 101 Mass. 449. It has also been settled by this court that, whatever may be the doctrine elsewhere, under our statute the consideration for the promise sought to be enforced need not be stated in the memorandum, even in the case of a contract for the sale of real estate. Pub. St. c. 78, § 1, cl. 4; Id. § 2; Hayes v. Jackson, 159 Mass. 451, 34 N.E. 683.

While the memorandum says nothing about the taxes or the time within which the contract should be carried out, it may be said that the evidence as to what the contract was upon those points was conflicting, and it would warrant a finding that there was no definite agreement upon them, and the superior court may have so found. As to the mortgage on the Bolton street property, it was, at most, at the option of the purchaser whether it should be paid or not by the seller, and it appears by the memorandum that the seller has, in substance, agreed to pay it. There is nothing in it inconsistent with the terms of the sale, but it simply shows that the purchaser had made his election, and the seller had agreed to be bound by it. So far as respects the mortgage, therefore, the memorandum contained the contract of sale as finally agreed upon, in accordance with the option given to the purchaser at the time the property was struck off to him.

As to the contention that one of the terms of the sale was that there should be a cash payment of $100 on the spot at the time of the sale, and that the auctioneer had no authority to take a check instead of money, it may be said that the whole testimony, taken together, would seem to indicate that the auctioneer called for simply 'a deposit' of $100, and that the defendant was present, acting for himself and as the agent of the wife, and heard the declaration, and made no objection to it. It appeared that the plaintiff gave his check for that amount to the auctioneer for the Bolton street property, and another check for the same amount that next day for the Third street property; that both checks were good, and were duly honored. Such a check, if satisfactory to the seller or the auctioneer, may fairly be said to be a 'deposit,' within the general understanding of the phrase as used in sales by auction.

It is still further objected that, as to the Third street estate the memorandum was not signed until the next day, and that the auctioneer had no authority at that time to bind the defendants. The general rule is that the memorandum may be signed at any time subsequent to the formation of the contract, at least before action brought. Browne, St. Frauds, § 352a, and cases cited; Lerned v. Wannemacher, 9 Allen, 412, 416; Sanborn v. Chamberlin, 101 Mass. 409, 416. And this rule is applicable where the contract is made by an agent, and the subsequent memorandum is signed by him during the existence of his agency. It has been sometimes thought that there is an exception to this rule in the case of auctioneers (see the authorities referred to in Browne, St. Frauds, § 353); but the exception is more apparent than real. The question does not turn upon the fact that the agent is an auctioneer, but...