Grafton v. Cummings

ERROR to the Circuit Court of the United States for the Southern District of New York.

On the sixteenth day of May, 1871, the hotel known as the Glen House, at the foot of the White Mountains in New Hampshire, together with its furniture, was bid off at an auction sale by Grafton at the price of $90,000. At the end of the ten days allowed by the terms of the sale for examination of the title, three deeds were tendered him which were supposed to convey the title. He refused to accept them, or pay the purchase-money, or otherwise complete the contract of purchase. The property was again advertised for sale, and sold for $61,000; and the present suit was brought against him to recover the difference in the amounts for which the property sold at these two sales, as damages for failure to perform the first contract.

The Statute of Frauds of New Hampshire is in these words: 'No action shall be maintained upon a contract for the sale of land, unless the agreement upon which it is brought, or some memorandum thereof, is in writing, and signed by the party to be charged, or by some person by him thereto authorized by writing.' The agreement given in evidence on the trial by Cummings, the sole plaintiff, consisted of a paper writing signed by Grafton, certain printed matter on the margin of that writing, and the advertisement mentioned in the writing so signed. They are as follows:--

'I, the subscriber, do hereby acknowledge myself to be the purchaser of the estate known as the Glen House, with furniture belonging to it, in Green's grant, New Hampshire, and sold at auction Tuesday, May 16, 1871, at 11 o'clock A.M., and for the sum of $90,000, the said property being more particularly described in the advertisement hereunto affixed; and I hereby bind myself, my heirs and assigns, to comply with the terms and conditions of the sale, as declared by the auctioneer at the time and place of sale.

'JOSEPH GRAFTON.'

Upon the margin of said agreement were written and printed the following:--

'TERMS OF SALE.

'Ten days will be allowed to examine the title, within which time the property must be settled for. Five thousand dollars will be required of the purchaser on the spot, which will be forfeited to the seller if the terms and conditions are not complied with; but the forfeiture of said money does not release the purchaser from his obligation to take the property. Fifteen thousand dollars to be paid on the delivery of the deed, and one-half of the purchase-money to be paid Sept. 1, 1871, the remaining balance to be paid Sept. 1, 1872.

'The property is sold subject to the conditions of the sale of the stage-route, stages, &c., which are, that the proprietors of the route shall have the exclusive business of the house.'

The advertisement referred to in the foregoing paper as being thereunto affixed was as follows:--

'GLEN HOUSE AT AUCTION.

'The famous summer resort at the foot of Mount Washington, known as the Glen House, together with the land, furniture, mill, and out-buildings, will be sold at public auction at Gorham, N. H., Tuesday, May 16, 1871, at 11 o'clock A.M.

'May 2, 1871.

'The favorite summer resort known as the Glen House, situated at the foot of Mount Washington and at the commencement of the carriage road to the summit, will be offered for sale, together with the land containing about one thousand acres (well timbered), all the out-buildings, stables, and mill on the same, also the furniture, staging, mountain carriages, horses, &c. The house contains some two hundred and twenty-five rooms, capable of accommodating between four and five hundred guests. The whole property, if not disposed of at private sale previous to the 1st of May, will be sold at public auction to close the estate of the late J. M. Thompson. Notice of the time and place of sale will be given hereafter. Any person desirous of seeing the property, which is in thorough repair, or wishing to make any inquiries, can do so by applying to J. W. Weeks, administrator, Lancaster, N. H., or S. H. Cummings, Falmouth Hotel, Portland, Me.'

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:--

-

$90,

'This would relieve you from most of the care. It would give Mrs. Thompson an interest in it. The $9,000 due Grafton is as much as her share, and I will agree to let it be until she has time to pay it from the profits. I go home to-morrow, but I wanted to propose this to you, as Grafton really don't want any thing to do with the property, though he thinks Stearns, or some one of their leading hotel men, may have some young man that they would like to put into the house. He will try to dispose of it in that way, but hopes that before doing it I shall be able to write to him that it will be taken up here.

'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, in substance, a statement that Cummings was prepared to treat with purchasers, and to give them all desired information about the property. It thus designated him either as the seller, or the agent of the seller. Either designation complies with the statute. No formality is requisite in this respect. The memorandum is sufficient, if, in addition to the signature of the party to be charged, it appear with reasonable certainty who the other party is, and parol evidence is admissible to show that the person whose name appears on the memorandum acted as agent for one of the contracting parties. Gowen v. Klous, 101 Mass. 449; Browne, Stat. Frauds, sect. 373; Dykers v. Townsend, 24 N. Y. 57; Salmon Falls Manufacturing Co. v. Goddard, 14 How. 446.

The indorsement written upon the memorandum sufficiently indicates the other contracting party; and the auctioneer who made it being the agent of both parties at the time of the sale, and of the seller afterwards until the duties of his agency were accomplished, he could bind them by his signature. Mews v. Carr, 1 Hurlst. & Nor. 484; Kenworthy, v. Schofield, 2 Barn. & Cress. 945; Rice v. Grove, 22 Pick. (Mass.) 158; Lerned v. Wannemacher, 9 Allen (Mass.), 412; Learned v. Jones, id. 419; Williams v. Bacon, 2 Gray (Mass.), 387; Coddington v. Goddard, 16 id. 436; Sanborn v. Chamberlin, 101 Mass. 416; Gowen v. Klouse, id. 449; Hunter v. Geddings, 97 id. 41; Sievewright v. Archibald, 1 Langdell, Select Cases, 452; 17 Q. B. 103; Browne, Stat. Frauds, sects. 352 a, 353, 353 a, 364, 369.

The memorandum consists of all writings connected, physically, or by distinct reference made in one to the other. Browne, Stat. Frauds, sects. 346-349; Salmon Falls Manufacturing Co. v. Goddard, supra.

Inasmuch as it was a memorandum, and not the contract itself, parol evidence was admissible to show that as put in evidence it conformed to the contract and expressed its essential terms. Sievewright v. Archibald, 17 Q. B. 103; Parton v. Crofts, 33 Law Jour. 189; McLean v. Nicoll, 7 Jur. N. S. 999; Lerned v. Wannemacher, supra; 1 Langdell, Select Cases, 1032 et seq., and cases there cited.

Parol evidence was also admissible, to the same extent that it would have been to explain ambiguities, to identify the subject-matter to which the writing referred; to show the situation of the parties at the time the writing was made, and the circumstances under which the parties executed it. Benjamin, Sales, 156, 157; Browne, Stat. Frauds, sects. 409, 409 a; Blossom v. Griffin, 13 N. Y. 569; Springsteen v. Samson, 32 id. 703.

Somewhat greater latitude than is permitted in the case of written contracts should be allowed in proving by parol the details of such a contract as this, since the memorandum is required to contain only the essential elements, and not every individual incident in the contract. McLean v. Nicoll, supra; Salmon Falls Manufacturing Co. v. Goddard, supra; Linsley v. Tibbals, 40 Conn. 522.

MR. JUSTICE MILLER, after stating the facts, delivered the opinion of the court.