text:
    John B. Fogerty, plaintiff and respondent, vs. Peter M. Jordan, impleaded with Dudley W. Bain, survivors of Charles GaNun, deceased, defendant and appellant.
    1. The admissions of one partner, whether sworn to or otherwise, in regard to partnership matters, are always proper to charge his copartners; and it is immaterial whether they appear in a sworn statement, or were orally given, or were testified to under oath, by such partner as a witness on the stand. To render the .admission competent, however, it must appear, ly other evidence, that a copartnership existed aj; tlje time to which the admission refers, or in respect to which it is supposed to relate.
    2. In an action against attorneys, to recover moneys collected by them as such, they cannot question the title of their client to the moneys they have collected f<?r him by his authority. Nor can they protect themselves from liability by any illegality in the transaction between their client and the person from whom they collected such money, or between their client and any assignor who may have been the original owner of the claim collected.
    3. An admission in the answer, in such an action, of the employment by the plain,tiff °f the defendants “under the n/nne of G. J. S.,” as his attorneys to prosecute a claim against ]J. is conclpsiye evidence, if not of a partnership between the defendants, at least of such a joint employment o.f them and of their joint liability to the plaintiff, as would make an admission by one, in his answer, that “ the defendants ” received the money sought to be recovered, binding on the others,
    4. An agreement, made since the Code, by an attorney, to commence and carry on a suit, for a client, and to “ furnish all lawyers, expenses, and every thing else,” is not a violation of the provision of the Revised Statutes, (2 S. S. 288, § 71,) which prohibits an attorney from buying a thing in action for the purpose of bringing a suit thereon-
    (Before Moncbiee, Monell and McCtrair, JJ.)
    Heard April 11, 1864;
    decided April 30, 1864.
    Appeal from a judgment entered upon the report of a referee.
    The action was to recover moneys collected by the defendants, as the attorneys of the plaintiff. The complaint alleges that on the 21st of April, 1859, the defendants were attorneys and counsellors at law, lawfully entitled to practice, and practising as such in the courts of this state, “ and were partners at law, doing business in the city of New York, under the firm name of QaNun, Jordan & Bain.” That on or about that date, the plaintiff retained the defendants as his attorneys, in and about a certain claim against one Hogan, and that the defendants in April, 1862, as such attorneys, collected and received upon such claim the sum of $866.66, over and above their costs and charges, which upon demand they have refused to pay to the plaintiff, and for which he demands judgment against the defendants.
    The defendants answered separately. The appellant, Jordan, in answering, alleged: “ First. This defendant admits that the said defendants were, at the time stated-in the complaint, attorneys and counsellors at law, duly practising as such. And this defendant denies each and every other allegation in said complaint contained, except as is hereinafter, specially admitted.” The answer then alleges that in 1852 Hogan and one Willock had entered into a contract, Hogan to sell and Willock to purchase certain lots in the city of New York, Willock agreeing to erect houses thereon, and Hogan to advance money therefor. That after a part performance of the contract, Hogan employed the plaintiff as his attorney, (said plaintiff being an attorney at law,) to extinguish the interest of Willock in the contract and premises. That as such attorney of Hogan, the plaintiff caused the interest of Willock to be sold, and produced a release from him to Hogan, under which Hogan afterwards held possession of the premises ; for all which services Hogan paid the plaintiff in full. That Willock, in 1859, claiming that his rights under the contract had not been extinguished, commenced an action against Hogan in the New York common pleas, in which action the defendants were the attorneys of Willock; and that the alleged claim of Willock against Hogan is the same claim, which, it is alleged by the plaintiff, was prosecuted by the defendants, for the benefit of the plaintiff, and to prosecute which, the plaintiff claims to have employed the defendants, and upon which the defendants collected and received the money demanded in the complaint. The answer denies that the defendants were employed by the plaintiff to commence or prosecute the actiop against Hogan, or that the plaintiff had any interest whatever in it. The answer then alleges that upon a settlement of said action, the defendants received from the settlement moneys their attorneys and counsel’s fees, and that said Willock the balance thereof received;
    The defendant G-aHun answered separately, to the same effect. The defendant Bain admitted the partnership of the defendants, and their employment by the plaintiff, but denied all the'othet allegations in the complaint.
    On the trial, the plaintiff offered in evidence an affidavit sworn to by the defendant Bain, proving, or tending to prove, the partnership of the defendants ; their retainer by the plaintiff to prosecute the suit in the name of Willock, against Hogan ; the plaintiff’s interest (two thirds) in the claim, (Willock being the owner of the remaining third ;) an agreement by the defendants to prosecute the claim, as the attorneys of the plaintiff and Willock; and the receipt by the defendants of the money in settlement of the claim.
    The defendant Jordan objected to the affidavit, on the grounds, that on its face it was an extra judicial affidavit, not made in any action or proceeding ; and also, that it did not appear that the defendants were partners at the time the paper was signed. The referee overruled the objection, and allowed the affidavit to be read in evidence. To which the defendant Jordan excepted.
    The referee found as facts, that in April, 1859, the defendants were attorneys and counsellors at law, and copartners as such, and were retained by the plaintiff, to prosecute the claim of Willock against Hogan. That previous to such retainer, Willock had agreed that the plaintiff should receive two thirds of the amount recovered. That the defendants took the claim to prosecute, upon the retainer of the plaintiff, with full knowledge of his agreement with Willock. That the defendants afterwards settled the claim, with the consent of the plaintiff and Willock, and received the sum of $3000, of which they paid Willock $700. That $886.66 remained in the defendants’ hands, after satisfying their costs and charges, which sum. was due and payable from them to the plaintiff, and for which amount he directed judgment.
    The defendant Jordan excepted to all the findings of fact and conclusions of law, and appealed from the judgment to the general term. The other defendants did not appeal.

      E. P. Cowles, for the appellant.

      W. Fullerton, for the respondent.
   By the Court,

Monell, J.

The affidavit of the defendant Bain was properly admitted as evidence, against the defendants, of all the facts stated in it, except the single fact of partnership. If there is not other and sufficient evidence in the case, of the partnership of the defendants, then the affidavit, treating it as an admission of the parties, would not be evidence against the other defendants of any of the facts sworn to. The admissions of one partner, whether sworn to or otherwise, are always proper to charge his copartners; and it is immaterial whether they appear in a sworn statement, or were orally given, or that the same matter was testified to under oath, by a witness on the stand. To render the admission competent, however, it must appear, by other evidence, that a partnership existed at the time to which the admissions refer, and in respect to which they are supposed to relate. The objection, therefore, to the introduction of the affidavit of Bain, was well taken, unless the case furnishes other and sufficient evidence of the parnership of the, defendants.

The allegation in the complaint is that the defendants were attorneys and counsellors, and “ partners at law.” This allegation is not, in terms, denied by the defendant; nor is it in terms admitted. The express admission is, only, that the defendants were “attorneys and counsellors at law,” with a general denial of all other parts of the complaint.

It is by no means certain, that a defendant can specifically admit a part of an entire allegation, and put other parts of it in issue by a general denial. His answer must contain a general or specific denial of each material allegation in the complaint. That is, he must deny, generally or specifically, the whole of each allegation. If he admits a part, he cannot generally deny the residue. Rut without determining that question, there are other parts of the answer which contain, in my judgment, a sufficient admission of a partnership, to charge the defendants. It is alleged in the “second” defense set up by the defendant Jordan, that in or about the spring of 1859, Willock employed the defendants, “ under the firm name of GaNun, Jordan & Bain,” as his attorneys, to prosecute the claim against Hogan. He denies «that “ these defendants,- GaNun & Jordan, or that the attorneys of record for said Willock, in said suit, GaNun Jordan & Bain,” were ever employed by the plaintiff. He further says that said action was the only one prosecuted against Hogan by said “ GaNun, Jordan & Bain, as attorneys and counsel; ” and he admits that in the settlement of the suit “ the defendants ” received the money sought to be recovered in this action. These admissions of the employment of the defendants “ under the name of GaNun, Jordan & Bain,” to commence and prosecute the very claim which the plaintiff alleges was in part assigned to him, are, I think, conclusive evidence, if not of a partnership, at least of a joint employment of the defendants, and of their joint liability to the plaintiff. In such case, the admission of one would bind the others. (1 Phil. Ev. 93.)

But the defendant read in evidence, on the trial, an assignment from Willock of the claim in that suit to “GaNun, Jordan & Bain,” his attorneys therein. And also the complaint in the same action, subscribed by “Ga Nun, Jordan & Bain, plaintiff’s attorneys.” Here is strong evidence of the joint relation of the defendants, if not of their partnership in fact; and if there was any doubt before, of the fact, there could be none now. This affidavit and complaint were in for all purposes, and removed the objection of previous want of proof of partnership. (Gibbons v. Wilcox, 2 Starkie, 39.)

• The proof of partnership was therefore sufficient to render the'affidavit of Bain competent evidence against all the defendants, and fully supports the finding of the referee in that respect.

The offer by the appellant, of evidence to prove that the interest which the plaintiff acquired in the claim against Hogan, was acquired in hostility to the rights of Hogan,- who had been his client, and was therefore champertous, was properly excluded. Without inquiring whether the facts offered to be proven may or may not have been a good defense by Hogan to the action of Willock against him, it is enough to say that the defendants cannot avail themselves of it. However improper may havq been the manner in which the plaintiff procured his interest, (of which there is no evidence in the case,) and however jealously courts will protect clients from the fraud or overreaching of attorneys, they will only do so at the instance of the persons injured. And hence I think the defendants did not rightly understand their duty to their client, when they undertook to question his title to the money they had collected for him. Had Hogan, or his representatives, claimed the money, it would have afforded the defendants a pretext, at least, for withholding it from the plaintiff. No such claim appears to have been made ; and it is but for a questionable purpose, we think, that the defendants have sought to screen themselves from liability, under the pretense of misconduct on the part of the plaintiff towards Hogan. ' The defendants were employed to prosecute Hogan, to recover a claim due to Willock. They were employed by the plaintiff, and they understood that the plaintiff’s interest in the claim was two thirds. They did not refuse to agree to prosecute the suit for one half of the plaintiff’s interest; nor did they refuse to retain, out of the settlement money, their share. If the plaintiff’s transaction was champertous, I cannot see in what manner the defendants avoided being particejos fraudis; for it does not appear that they have accounted to Hogan, or his representatives, for the money they retained for themselves.

In Merritt v. Millard, (5 Bosw. 645,) money was paid to the defendant in execution of an illegal contract between the plaintiff and one Brewster. In an action to recover the money, it was held that the defendant could not set up as a defense, the. illegality of the contract. He was bound by his promise to pay the money to the plaintiff, and no one besides the party to the contract could avail himself of its illegality.

But it was further claimed by the appellant, that the transaction between the plaintiff and Willock, was a violation of 2 R. S. 288, § 71, which prohibits an attorney from buying a}j thing in action for the purpose of bringing a suit thereon. " Willock, who was examined as a witness on the part of the appellant, testified, that he agreed with the plaintiff to commence the suit; that at that time he had no money to carry on the suit, and he agreed to give the plaintiff two thirds of the proceeds, he to furnish all lawyers, expenses, and every thing else. Since the Code, such an agreement is not a violation of the provision in the Revised Statutes referred to. (Rooney v. Second Avenue R. R. Co., 18 N. Y. Rep. 368.)

Even if this was not so, the defendants were not in a position to avail themselves of the objection, for the same reason that made the offer to show the illegality of the transaction towards Hogan improper. Willock has not complained. He received his share of the proceeds, and seems to have been satisfied. The appellant is in error, I think, in supposing that in this action the plaintiff was compelled to prove the transfer from Willock to him. It was only necessary to show that he employed the defendants to prosecute a claim, and that they recovered a certain sum of money upon it. They could not dispute the amount the plaintiff was entitled to, for they were informed of the extent of his interest at the time they were retained. This is an answer to the objection that the complaint did not state facts sufficient to constitute a cause of action.

If the view we have taken, that any alleged illegality in the transaction between the plaintiff and Hogan, or between the plaintiff and Willock, was unavailable to the defendants, then the defence failed, and the referee was justified in rejecting all the offers of evidence tending to establish such facts. They were immaterial upon the issues between the parties.

That part of the referee’s finding of fact, which states the . agreement between Willock and the plaintiff, was unnecessary.

: The plaintiff was not bound to prove it, and • the defendants could not go into it. Hence none of the exceptions to the rulings of the referee, in allowing Willock to testify to the arrangement, can be sustained. The evidence being, as we have seen, wholly immaterial, did not injure the defendants. Eor the same reason it was proper to exclude the affidavit of Willock, offered as evidence by the defendants.

The assignment from Willock to the defendants, of the whole claim involved in the suit against Hogan, was taken by the defendants with knowledge of the prior interest of the plaintiff, and was therefore subject to it.

An error, clerical or otherwise, seems to have been made by the referee in the amount. for which he directed judgment. ■ The plaintiff claimed to recover $866.66, and there was no proof which authorized a judgment for a larger sum.

There being no other error, we can see no reason, if the plaintiff will stipulate to correct the amount of the judgment, for reversing the judgment on that ground.

If the plaintiff gives such stipulation, the judgment will be affirmed, otherwise it must be reversed, and a new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: Monell, J.

license: Public Domain

text:
    John T. Mills, plaintiff and respondent, vs. The New York and Harlem Railroad Company, defendant and appellant.
    1. Even if any one has a right to use his own premises as a hospital for his diseased horses, he has not the right to permit such horses, when afflicted with a contagious disease, to go at large in the highway, or to water them at a public tank used for watering the sound horses of other persons.
    2. The right of an individual to place a large number of sickly and diseased horses upon his own premises, although in immediate contiguity with a neighbor’s stables containing his horses, is all that such individual can claim, and it is the only concession the law makes. In the exercise of that right, he is bound to use due diligence to see that his neighbor is not injured by his negligence.
    3. The owner of diseased horses, knowing their disorder to be contagious, is bound to exercise all the care that a prudent man would exercise, or a rightful regard for the interests of others requires, such as placing his diseased horses so remote from a partition between his stable and that of a neighbor, as to render contact with his neighbor’s horses impossible.
    (Before Moncbiee, Momeul and McCumr, JJ.)
    Heard April 14,1864;
    decided May 28, 1864.
    The action was to recover damages for the loss of a number of horses.
    The complaint alleges that the defendants carelessly, negligently and improperly placed a large number of their horses, then infected and suffering from infectious, contagious and dangerous diseases, known as farcy and glanders, in their shed adjoining the stables of the plaintiff, and allowed them to remain there for a long space of time. That said horses so infected and diseased, by reason of the want of proper care, by the defendants, communicated the said disease to the plaintiff’s horses ; and that through the negligence, carelessness, and improper conduct of the defendants in placing said horses in the yard and shed of the defendants, adjoining the stables of the plaintiff, the said disease was communicated to the plaintiff’s horses, and they have died.
    The answer of the defendants alleges that their said horses were placed upon the defendants’ premises, contiguous to their railroad, and that if the plaintiff has sustained any damage, it was occasioned by his own negligence and not by the negligence of the defendants.
    The action was tried by a justice of this court- and a jury. A motion was made to dismiss the complaint, which was denied, and the defendants excepted. Several requests were made by the defendants to the court to charge the jury, which were refused and the defendants excepted ; they also excepted to such parts of the charge as were inconsistent with such requests. The jury found a verdict for the plaintiff, upon which judgment was entered and the defendants appealed.

      C. W. Sandford, for the appellants.
    I. The defendants had a right to keep their sick horses upon their own premises. (Boom v. Utica, 2 Barb. 104.)
    II. The defendants are not liable for any injury to the plaintiff’s horses, if any occurred, unless it were proved that they were guilty of some negligence by which their horses came in contact with the plaintiff’s horses, on his own premises.
    III. If the plaintiff kept his own stables so insufficiently closed, that the defendants’ horses came in contact with his horses, from some neglect on the part of the defendants, he cannot recover. (Wilbrand v. Eighth Avenue Railroad Co., 3 Bosw. 317, and cases there cited.)

    IV. It was negligence in the plaintiff to water his horses at a tank on the public highway, where any glanderous or otherwise diseased horse might drink.
    V. The court erred in refusing to charge the four propositions laid down in the foregoing points.
    VI. The court erred in refusing to nonsuit the plaintiff upon the defendant’s motion. (Haring v. N. Y. and Erie R. R. Co., 13 Barb. 9.)
    VII. The evidence does not sustain the verdict, and the damages, if it does, are excessive.
    1. The whole damage actually proved by the plaintiff was $1396. The residue is so vague, uncertain and contradictory, as not to amount to any thing.
    2. The defendants’ horses were. only kept there from April until October, during which period the plaintiff lost fourteen horses. When he lost the residue does not appear, and certainly not until long afterwards.
    VIII. The only cases relied upon by the plaintiff are actions of nuisance, and there is no evidence in this case to establish a nuisance.
    1. The defendants have the same right to occupy a stable as the plaintiff.
    2. There is no analogy between this case and those cases which refer to slaughter houses and blacksmith shops^ which in some instances have been pronounced nuisances.

      IX. There is much vulgar "error touching rights supposed to exist, beyond the line of the lot owner’s boundary. Much of it has been exploded in this country. No judicial trace of it exists, except in England.
    1. The supposed riparian right. (Gould v. Hudson River R. R. Co., 2 Seld. 522. Lansing v. Smith, 4 Wend. 9)
    2. The supposed right of prospect and light from adjacent lands. (Meyers v. Gemmel, 10 Barb. 540.)
    3. The supposed right to have one’s building or earth supported by adjacent lands. (Radcliff’s executors v. Mayor, &c. of Brooklyn, 4 N. Y. Rep. 202, 203, 204.)
    4. The supposed right to ancient lights. (Parker v. Foote, 19 Wend. 318. 10 Barb. 546.)

      T. Dunphy and Edwin James, for the respondent.
    The only exceptions made are to the charge of the judge at the trial, and his refusal to dismiss the complaint.
    I. The judge did right in refusing to dismiss the complaint. The complaint alleged that the defendants, well knowing the horses to be infected with an infectious, contagious and dangerous disease, placed those horses in a place where they could and did communicate the disease to the horses of the plaintiff. This, was proved by the testimony, and was not attempted to be contradicted by the defendants. Upon these facts, as alleged in the complaint and proved, an action is maintainable.
    II. It is a rule of common law that a man should so use his own as not to hurt another ; and, therefore, if one carry on a lawful trade or business in such a manner as to prove injurious to his neighbor, he must answer in damages. (Bradley v. Gill, Lutw. 29. Aldred’s case, 9 Coke, 58. Jones v. Powell, Hutton, 135. Moreley v. Pragnell, Co. Car. 510. Fish v. Dodge, 4 Denio, 311. Selwyn’s Nisi Prius, vol. 2, 1124, title Nuisance.)
    III. It is not necessary to a right of action, that the owner should have been driven from his dwelling; it is enough that the enjoyment of life and property has been rendered uncomfortable. (Per Lord Mansfield, in Rex v. White, 1 Burr. 337. 9 Paige, 576.)
    IV. Where one erects a nuisance, he is answerable for the. continuance of it, as well as for the injury done. (Roswell v. Prior, 12 Mod. 635. 1 Ld. Ray, 713, and 2 Salk. 460, S. C. Boom v. City of Utica, 2 Barb. 103. Vedder v. Vedder, 1 Denio, 257. Fish v. Dodge, 4 id.311. Brady v. Weeks, 3 Barb. 157. Myers v. Malcolm, 6 Hill, 292. Butler v. Kent, 19 John. 223. 2 Denio, 443-446.
    V. As to the refusals to charge : 1st. The defendants had no right to keep their horses in the state they were, so near to the plaintiff’s stables as to communieate the disease to his horses, as it was proved they did, and after they knew the fact. (See cases cited above.)

    2d. The evidence of negligence consisted in the proof that their horses in a diseased state were allowed to gnaw holes in the stable of the plaintiff, and were permitted to run loose in the pen.
    3d. The plaintiff’s stables were sufficiently closed, and notice was given to the defendants of the mischief the diseased horses were doing. This question was properly left to the jury by the judge, who decided in the plaintiff’s favor; and it is not alleged that the verdict is against the weight of the evidence. The plaintiff was not bound to remove his horses ; they had become infected with the disease, and the defendants are responsible. He requested the defendants to discontinue turning their diseased horses into the pen, and they refused to do so.
    4th. The plaintiff was guilty of no negligence in watering his horses at his own tank, where he was accustomed for years to do so. The tank was his own private property, and placed in front of his stable door on the side walk. . It was not pretended at the trial, that any disease was or could be communicated by other horses than the defendants’. The only negligence was that of the defendants, in allowing their diseased horses to escape and drink at the plaintiff’s tank. There is no exception to any evidence given at the trial, and the defendants did not dispute the amount .of damages sustained by the plaintiff.
   By the Court,

Monell, J.

The ground of the plaintiff’s action, as stated in his complaint, and attempted to be proved on the trial, was that the injury to his horses was occasioned by the negligent act of the defendants. It is not now claimed that the defendants are liable for any other reason. The motion to dismiss the complaint was not put upon the ground that the evidence of the plaintiff failed to establish any negligence by the defendants, but on the ground that the defendants had a right to use their own property in any way they thought proper, except where the use was a nuisance. This I do not understand to have been disputed. The judge charged the jury, substantially, that the use of the defendants’ sheds as a shelter for their diseased horses was not a nuisance, and therefore they had a right to use them for such purpose, (Bloom v. City of Utica, 2 Barb. S. C. R. 104,) and no exception was taken to the charge. But every man is responsible for the negligent use of his own property, and the right of enjoyment is limited to a prudent and careful use. (Clark v. Foot, 8 John. 421. Vanderburgh v. Truax, 4 Denio, 464.)

The sheds or pens in which the defendants placed their diseased horses were separated from the plaintiff’s stables by a wooden partition, and the heads of the plaintiff’s and defendants’ horses were towards and near the partition; so that except for the partition they could have come into immediate contact. In the rear of the stables a hoard fence separated the respective lots. It was in evidence that the defendants’ horses gnawed the boards and the fence, and made holes through the partition. One witness testified that the defendants’ horses ate through the partition a hole half a foot in size, which came through upon the manger of the plaintiff’s stable. There was a water tank in the street outside of the defendants’ premises, at which their diseased horses were allowed to drink. The doors or gates were left open, and the horses were suffered to go out: This tank was also used for watering the plaintiff’s horses.

The weight of the evidence is, that the disease which the defendants’ horses had (the glanders) was contagious and not infectious. The holes gnawed by the defendants’ horses through the wooden partition, and into the fence between the lots, afforded a means of easy contact with the virus deposited by the defendants’ horses, and was sufficient to convey the disorder. It was the duty of the defendants to have immediately closed the holes, and to have been vigilant in using all necessary means to prevent the disorder from being conveyed by contact to the plaintiff’s horses. This they do not seem to have done, for the plaintiff himself nailed boards over the holes. The defendants knew the disorder was contagious, and they were bound to exercise all the care that prudence and a rightful regard for the interests of others required, or else to place their horses so remote from the wooden partition that contact would not have been possible.

Again, suffering the defendants’ horses to go to the street tank for water, was not only unnecessary, as they had water in their yard, but it was highly negligent. There could be no. more sure way of communicating the disease. And whatever may have been the right of the defendants to use their premises for hospital purposes, for their diseased horses, they had not the right to let them go at large in the street, or to allow them to drink at a public tank.

This is within the principle established by some of the English cases. (See Hay on Liability, p. 154, and cases cited.)

I am of opinion that there was sufficient evidence of negligence of the defendants to go to the jury, and therefore that the motion to dismiss the complaint was properly overruled.

The learned justice, in submitting the case to the jury, instructed them' that “if the plaintiff’s horses, without any negligence on his part, and before he was aware, or ought, as a careful man, to have known of the existence of. the holes, contracted the disease from the horses of the defendants, and if at the same time the defendants were guilty of negligence, the plaintiff was entitled to recover.” And they were told that they must be satisfied that the defendants knew of the existence of the holes, or that as careful men they ought to have known' of their existence.

The only questions, therefore, in the case which could determine the defendants’ liability, namely, the absence of all negligence on the part of the plaintiff, and the negligence of the defendants, was properly and fairly submitted to the jury, and I can find no reason for disturbing their verdict.

All the requests to charge (although refused to be made in the precise language in which they were submitted,) were substantially made to the jury. A judge is not bound to use the language of a request to charge ; if he gives the substance of it to the jury it is sufficient.

I am in favor of affirming the judgment. To concede the right of the defendants to place a large number of sickly and diseased horses upon their own premises, in immediate contiguity with the neighboring stables of the plaintiff, is conceding all that the defendants can expect, and it is the only concession the law makes. In the enjoyment of that right, they must look to it that their neighbor is not injured by their negligence.


author: Robertson, Ch. J. McCunn, J.

text:
    Philip S. Justice, plaintiff and appellant, vs. William B. Lang et al. defendants and respondents.
    An agreement for the sale of goods of the value of $50 or more, is not valid unless in writing, and signed by loth parties to the contract. (McCunn, J. dissented.
    (Before Robertson, Ch, J., and Barbour and McCunn, JJ.)
    Heard May 9, 1864;
    decided May 28, 1864.
    This action was brought to recover damages for the nonperformance by the defendants of a promise contained in an instrument in writing signed by them alone, which was in the following words and figures :

      “New York, May 13, 1861. We agree to deliver P. 8. Justice one thousand Enfield pattern rifles (with bayonets, no other extras) in New York, at $18 each, cash, upon such delivery, said rifles to be shipped from. Liverpool not later than 1 July, and before if possible.”
    The plaintiff did not sign such instrument or any similar one. No money was paid on account of the price mentioned therein, nor was any of the merchandise mentioned therein delivered by the defendants or received by the plaintiff. On the trial before J us tice Barbour and a jury, the complaint was dismissed, and a subsequent motion for a new trial was denied. The case is heard upon appeal from both the dismissal and order.

      E. Terry, for the appellant.
    I. The promises of the plaintiff and the defendants were mutual, and as such the promise of one party was a good consideration for that of the other. It is proved and not disputed that the defendants made the contract in question, and that it was accepted by the plaintiff.
    II. Such contract is therefore valid, unless it was void by the operation of the statute of fraudb. The contract, as proved, when tested by the statute of frauds, is valid. The said statute, (2 R. S. 4th ed. 317, § 3,) declares : “Every contract for the sale of any goods, chattels, or things in action, for the price of fifty dollars or more, shall be void, unless a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby,” not requiring it to be subscribed by any other party.
    III. The contract on which this action is founded could not have been made more perfectly in compliance with the statute ; and the statute does not require the contract to be signed or subscribed by all the parties to it, either expressly or in spirit.
    (a.) Such contracts have always expressly been held to be valid, and have invariably been recovered on. (Roget v. Merritt, 2 Caines, 117. Russell v. Nicoll, 3 Wend. 118. Bailey v. Ogden, 3 John. 412. Clason v. Bailey, 14 id. 486. Dykers v. Townsend, 24 N. Y. Rep. 57. Davis v. Shields, 26 Wend. 341, rev. 24 id. 322. Worrall v. Munn, 1 Seld. 229.)

      (6.) The statute is in the nature of a rule of proceeding, or a law affecting the remedy. All our courts of justice every day practically recognize the doctrine contended for in this point. (U. S. Circuit Court Rules, Rule 90. Supreme Court Rules, Rule 13.)
    (c.) In Worrall v. Munn, (1 Seld. 246,) Paige, J. in delivering the unanimous opinion of the court, says : “ A contract valid within the statute, even if not binding on the party who has not subscribed it, can nevertheless be enforced against the party who is to be charged thereby, if subscribed by him, and want of mutuality is no defence to the suit. The vendor or party to be charged, who has subscribed the contract, is estopped by his signature from denying that the contract was validly executed, although not signed by the-other party who sues for the performance.”
    (d.) It would seem that this point was conclusively settled also, in the latest reported case on the subject, (24 N. Y. Rep. 60,) cited above, in which Mr. Justice Hoyt, in delivering the opinion of the court, which was concurred in by all the members and not dissented from, says : “A note or memorandum of such contract must be made in writing, and be subscribed by the parties to be charged thereby, or by a lawful agent of such party. In this case a note or memorandum of the contract was made in writing, and signed by the lawful agent of the defendant; and we think that this was a sufficient compliance with the statute, according to the settled construction tohich has teen given to it.”

    IV. It was not necessary for the plaintiff to aver or prove a tender of performance ; and the averment and proof of a readiness and willingness to pay in the manner agreed on was sufficient. (White v. Demilt, 2 Hall, 405. Porter v. Rose, 12 John. 212. West v. Emmons, 5 id. 179. Dana v. Fiedler, 1 E. D. Smith, 463. S. C. 2 Kern. 40. Rawson v. Johnson, 1 East, 203. Waterhouse v. Skinner, 2 Bos. & Pul. 447.)
    (a.) In White v. Demilt, Oakley, J. says : “ The formal tender of the notes which the plaintiff was not bound to part with, until the goods were delivered, could not be necessary.” “ The actual making and tendering the notes would have been idle, when the defendant refused to deliver the goods.”

      (b.) In Porter v. Rose, the court say, “Where two acts are to be done at the same time, as when one agrees to sell and deliver, and the other agrees to receive and pay,” an averment by the purchaser of a “ readiness and willingness ” to pay is necessary, and that such an averment must be proved on the trial.
    (e.) In Dana v. Fiedler, (1 E. D. Smith, 463,) the vendee got ready to tender performance, but did not tender ; and the court, Ingraham, J. says : “ The declaration of Fiedler, that he had no madder to deliver, rendered any further tender unnecessary.” And in the Court of Appeals, in same case, no point on the question of tender was raised or made, and such point made in the court below was abandoned.

      (d.) Silence is equivalent to a refusal to deliver the goods. (2 Pars. Cont. 164. Dunlap v. Hunting, 2 Denio, 643.)
    Y. The case therefore shows that there was sufficient evi-. dence to go to the jury, and the dismissal of the complaint and the order thereon were erroneous.

      S. E. Lyon, for the respondent.
    The questions raised on this appeal are :
    1. That the contract itself is nudum pactumand no action can be maintained upon it.
    2. That no tender of performance of the contract, by the plaintiff, was shown.
    I. The case of Dykers v. Townsend, (24 N. Y. Rep. 57,) invites the presentation of this question. In that case, it was not raised on the trial, and it was, therefore, not entertained by the Court of Appeals, for the reason, as stated by the court, that had it been raised, a counter-part, signed by the plaintiff, might have been produced. The opinion states that “ as an original question, I should have no hesitation in saying, in a case where a contract was entirely executory on both sides, and no part of the consideration had been paid, that it was necessary it should be in writing, under this statute, and be signed by both parties thereto, in order to be binding on either.” The fact that the question was not raised on the trial, is the reason why the court did not treat it as an original question, and in the language of the opinion “as there are several authorities which, seemingly at least, give a different construction to this and similar provisions of the former statute of frauds, I do not propose, further, to discuss the question at this time.” Thus it will be seen, that this opinion, which received the sanction of all the court present, except Judge James (who expressed no opinion,) not only declares in effect, that if the question had fairly arisen in the case, they would hold such a contract nudum pactum, but intimates pretty clearly, that at the proper time it could be shown that the authorities quoted only seemingly sustained the doctrine contended for by the appellant. I propose to call the attention of the court to these “seeming” authorities, for it is clear that the case of Dykers makes this an open question in this state. And it is equally clear that a careful examination of the cases fully sustains Judge Barbour’s ruling in the case.
    The first case I cite is that of Bailey v. Ogden, (3 John. 399.) In that case there were two memoranda made of the supposed bargain, one by the plaintiffs, and the other by the broker of the defendants. It. was held -that neither of them, nor both of them together, were sufficient to take the case out of the statute, and the plaintiff failed to recover. It would be enough, therefore, to say of this case, that it is no authority to show that a memorandum signed by one party is a sufficient compliance with the statute, but on the contrary, is an authority for the converse of that proposition.
    The plaintiffs in that case held the position of the defendants in this ; that is, they alone had signed the memorandum of sale, and had they been sued on that contract, their attitude would have been the same as the defendants’ here. It is of that position that Chancellor Kent pses these words: “ Whether the plaintiffs in the present case were bound at law by their memorandum, or if bound, whether they might have relief in equity, are questions not. before us, and con

      cerning which we are not now to inquire.” It will, therefore, be seen that this question was not only not passed upon in-that case, but was expressly avoided, and. the justice of the idea of holding one party to a contract in which the other was not bound, was illustrated by quoting the words of Lord Redesdale, who said, with great truth, that such a statute would indeed be a "statute of frauds.” The language of the opinion is to be especially remarked as falling from the court after the case of Roget v. Merritt, (2 Caines, 116,) which is the only case which had risen up to that time in this state in which this question was in any way discussed, and in that cáse the court expressly avoided deciding the question upon a construction of this statute. There the memorandum was signed by the defendants alone. A verdict was taken for the plaintiff by consent, subject to the opinion of the court, which is as' follows ’.. “ On the part of the defendants, two objections were raised to the plaintiff’s recovery: First. That in neither-of the counts is the contract set forth correspondent to the proof, and that, therefore, there is a fatal variance.” Second. “The contract between the parties is nudum pactum, and within the statute of frauds and perjuries. The opinion I am about to give, not being founded on either of the objections tahen, it will be unnecessary to enter into a minute examination of them.”

    The question now before the court, therefore, was no more decided in this case than in the case last before quoted. It is true that in the opinion it is said : "If there are acts to be' done by both parties, and the one who is to perform a principal! Part sign, and it is accepted by the other, there can exist no doubt but that such contract would be mutuallobligatory.” As the learned judge had just stated that this point would not enter into the judgment of the court, and he did not think it necessary to enter into a minute examination of the question, we can better appreciate the force of Chancellor Kent’s remark, six years afterwards, whether parties under the precise circumstances of Boget v. Merritt, “were bound at law by §uch a memorandum, or if bound, whether

      they might have relief in equity, were questions concerning which they need not then, inquire.” A judgment of non-suit was also granted in that case, and no recovery was had upon the agreement. This much is certain, that the court, in the case of Bailey v. Ogden, did not consider itself hound in any way by the obiter in Roget v. Merritt. On the contrary, they went out of their way to declare it to be an open question, whether the statute of frauds intended to hold one man to a bargain, and the other not.
    The next case in which this question is supposed to have arisen, is that of Clason v. Bailey, (14 John. 484.) And in this case, too, although there was a review of the English cases (showing, if nothing else, the unsettled condition of the question there,) the decision was put on the ground claimed for it on the argument, to wit, that the memorandum being signed by the broker, he was the agent for both buyer and seller, and therefore signed by both, and upon this point alone was the case decided. It is true that in this case the Chancellor, who put his decision on another ground, seems rather to have given his assent to the proposition that the memorandum need not be signed, in the language of the statute, “ by both parties, to be charged therewith,” but that signing by one was sufficient, being moved thereto, it would appear, solely by the consideration that the cases in England, in favor of that view, slightly outnumbered those decided against it. His mind, however, when left to its natural gravitation towards the right, discarding the influence of judicial arithmetic, recoiled from fixing this inequitable principle upon the body of our jurisprudence, and he avoided doing so, for he says: “ Bqt I do not deem it absolutely necessary to place the cause on this ground, though, as the question was raised and discussed, I thought it would be useful to advert to the most material cases, and to trace the doctrine through the course of authority.” In looking through the cases quoted by the chancellor, it will be noticed how many of them relate to agreements for the sale or purchase of land, and it is a subject of some little surprise that it did hot occur to the chancellor, that the language of the statute concerning agreements for the‘sale of chattels, was different from that concerning the sale of land, and different in a point so vital, as that it speaks of “ the party ” in one, and “the parties” in the other. The case last quoted came from the Supreme Court, where it- is reported in 12 Johnson, 102. In examining the history of this question, it becomes important to learn how it was treated by the courts and the profession, when it first arose. And by referring to the arguments and opinions in Merritt v. Clason, both in the Supreme Court and in the Court of Errors, it is worthy of notice that none of the distinguished counsel who argued the cause in either court, claimed that the agreement in that case was valid upon any other ground than that the broker who signed it was the agent for both parties. The points of Mr. Wells, and the late Chief Justice Jones, are reported. Judge Pratt, delivering the opinion of the court, says, that “ the only point is, whether the memorandum made by John Townsend ” (this was the broker,) “ was a sufficient memorandum of the contract within the statutes of frauds to hind the defendant.” It also appears by the decision in the Court of Errors, that the case was disposed of upon the grounds raised by the counsel-, and no other, so that this case is really no authority upon the question now before the court. Indeed, the presentation of the conflict of authority in the opinion itself, and the unwillingness of the. court to put the decision upon that ground, shows that down to 1817 it was still an open question in this state.
    The next case is Russell v. Nicoll, (3 Wend. 112.) Like those which preceded, it was against a recovery upon the agreements sought to be enforced. In that case, like the case of Dykers v. Townsend, no question was raised on the trial as to the contract. The defendant did not object that the contract was void under the statute. If he had done so, perhaps a counterpart would have been produced, and he succeeded without relying upon that objection. In the opinion in that case, Judge Marcy said that if the contract was within the statute, it is very clear that the signing by the defendants was a compliance with the statute, quoting 5 East, 307, 2 Bos. & Pul. 238. It was because the cause was not decided upon the point that that excellent judge did not notice that both of those cases arose under the other section of the statute, and that even these were subsequently questioned in England. But it is. enough to say of this case that the defendants did not raise the question on the trial, and that the .nonsuit was asked for and granted on other grounds, which were affirmed by the Supreme Court. It was suggested, it is true, in the court on appeal, but it did not enter into the disposition the court made of the case. Whatever was said upon the subject, like its predecessor, was not necessary to the decision, and was obiiur dictum in its purest sense. This case brings us down to the state of the question at the time it was attempted- to be raised in Dykers v. Townsend, and it is now seen how justly the court remarked of these cases, that they only seemingly sustained the doctrine. It is also easily understood why the court in that case declined to entertain it, because it had not been raised upon the trial when the. difficulty might have been averted. .
    We therefore come to the discussion of this question in a case where it is distinctly raised upon the trial without the authority of an adjudication in the courts of final resort in this state, declaring such a contract to be binding upon a party in the absence of an equal obligation on the part of the co-contractor ; and not only' so, but a distinct refusal in the only cases in which recoveries were had upon such a contract, to put it on that ground. In one case, it was put on the ground that a broker is the agent for both parties, and in the other, because it had not been raised at a time when the party could have met the objection by proof. This, therefore, being the question open to discussion, there can be no reasonable doubt that the'view taken by the learned justice, on the trial,- is the correct one, because v First: There must be at le’ast two parties to every valid contract, and two assenting minds to its conditions. The primary condition of all contracts involves the idea of performance and, necessarily, mutuality of performance. To make a given class of contracts valid, the law requires certain things to he done, and in a sale of goods for more than fifty dollars, it declares that “ it shall he void, unless a note or memorandum of such contract he made in writing, and he subscribed by the parties to be charged thereby.” Divesting ourselves of what may have been said, possibly to meet the supposed equities of a given transaction in some of the English cases, can any one doubt that the subscription of this memorandum by both parties, is as necessary to make it valid, as that both parties should have assented to it to make it a legal contract ? If the legislature had not so intended, why did they alter the phraseology from the words, “party to be charged therewith,” in the second section, to the words, “parties to be charged" thereby,” in the third section ? It is a curious fact, that in these cases from which this doctrine first had any countenance, the difference in the language of the two sections seems not to have been .noticed. By referring -to the case of Cooper v. Elston, (7 Term Rep. 15,) the court will find that Lord Kenyon congratulated himself, in being able to correct some of the mischievous consequences which had resulted from the judicial construction of this statute, in violation of its express terms, and for which he tried to find an excuse, arising from their particular circumstances. Baron Grose, in the same case, says : “It is much to be lamented that the excellent provisions of the statute of frauds, should ever have been infringed or weakened by construction ;” and was glad that the decision of Eondeau and Wyatt had brought them back to the letter and true spirit of that law.
    In Charles v. Beckett, (7 Term Rep. 203,) Lord Kenyon, in speaking of this statute, and in trying to make it speak for itself, says : “ I lament extremely that exceptions were ever introduced in construing the statute of frauds. It is a very beneficial statute, and if the courts had at first abided by its strict letter, it would have preveúted a multitude of suits that have been brought.” And in that case Barons Grose', Laurence and Ashurst stood with him in applying the statute strictly. It is to be hoped that we will follow the plain meaning of the law, and that our judges will not have to lament a departure, for no other reason than that English judges, in the eighteenth century, saw fit to repeal the statute by construction.
    The case of Ballard v. Walker, (3 John. Cas. 60,) was a contract for the sale of lands, under the section requiring only one party to sign. This is an authority in favor of the defendant, upon the construction of these words of the statute—founded upon jts language —wKich is, “ signed by the party to be charged therewith.” The court says: “ The language of the statute itself, supposes that the writing may be signed by one of the parties only.” If then, where the word “party ” is usedin the singular, and the statute is construed to apply to a case where one party only has signed the paper, because it meets the language of the statute, how can it be said that where the statute uses the word in the plural, it can apply to a case where only one party has signed it ? It will be noticed that it took a long course of decisions to settle the rule in regard to land contracts, that one party would be bound ever under this section of the statute by limiting to one party ; and it was only defended and sustained by recourse to the literal words of the statute. The same rule of construction must certainly be invoked in a literal compliance with the second section, which declares that the memorandum shall be subscribed by the parties to he charged therewith. I am aware that there are two cases in this court which may be cited ; but one of them will be found to- be under the “real estate” clause of the statute, and in the other, while the objection does not appear to have been taken on the trial, the court relied upon the dicta in the cases above cited, without giving them that examination which is now invited by the case of Dykers v. Townsend.

    II. The plaintiff was properly nonsuited, as he failed to show a sufficient tender of performance.
   Robertson, Ch. J.

The statute of frauds requires a written note or memorandum of every contract for the sale of goods, chattels, and choses in action, to be signed by the “parties to be charged therewith,” in order to make it binding, unless some of the articles sold have been delivered, or the price of them paid. (2 R. S. 136, § 3.) Of course at common law, in order to make such contract binding, it is necessary that a consideration, executed or executory, should move from each party to make that of the other binding. If the agreement of the vendor to sell and of the vendee to buy, constitute mutual considerations for each other, both parties 'must be bound by such contract to make it obligatory on either; consequently the statute has required such contract to be signed by the buyer as well as the seller, in order to make the former chargeable therewith. Unless, therefore, such statute meant to go farther than merely to require a written contract to be signed by both parties as a mode of obligation, in the alternative, with a delivery and acceptance of part of the goods or a payment and receipt of part of the price (which equally required an act to be done by both parties) and actually to abolish the rule of the common law as to the necessity of a consideration, no such contract could be binding under it unless signed by both parties.

It is to be noticed that in the same statute the section respecting agreements to last over a year in their performance, and to pay the debts of third persons, or in consideration of marriage, employs the same language as the clause already alluded to, which requires the contract to be signed by the parties, (2 R. S. 135, § 2,) immediately after requiring interests, trusts and estates in land or powers over it to be granted, created, assigned or surrendered by a conveyance in writing, subscribed merely by the party creating, granting, assigning or surrendering the same alone,. or his agent duly appointed, in writing. (2 R. S. 134, § 6.) Such statute also required a lease of land for over one year, and any agreement for the sale of any interest therein, which it prescribed should be made in writing, to be signed merely by the party by whom the lease or sale v)as to be made, (2 R. S. 135, § 8,) without regard to the lessee or vendee. Consequently, courts of equity early took the ground that specific performance of agreements in relation to land could be enforced when signed by the vendor only, (Halton v. Gray, Eg. Cas. Abr. pl. 10 ;) and that doctrine, after-some hesitation and struggle, as may be seen by the cases examined by Chancellor Kent in Clason v. Bailey, (14 John. 484,) was finally adhered to in this state. But in England even the cases of Egerton v. Matthews, (6 East, 307,) and Saunderson v. Jackson, (2 Bos. & Pul. 238,) erroneously cited in Russell v. Nicoll, (3 Wend, 113,) as referring to contracts for sales of goods, which sustained such view, have been questioned, and Lord Kenyon, in Charles v. Beckett, (7 Term Rep. 17,) alone, and in Cooper v. Elston, reported in the same volume, (p. 17,) jointly with Baron Grose, deplored such departure from the strict letter of the statute. In fact, however, such doctrine in the court of equity is justified only by assuming that the statute does not affect the liability of a vendee or lessee, who may bind himself orally, in consideration of the written agreement of the vendor or lessor, and thus make the contract binding on both parties without affecting the rule of law as to a nudum pactum. Without such mutuality Lord Redes dale declared in Laurenson v. Butler, (1 Sch. & L. 201,) that the statute would have been one of and not against fraud, and remarked that there was no late case in which equity had decreed performance where one party only was bound. An oral promise to pay for lands conveyed may be enforced, (Thomas v. Dickinson, 12 N. Y. Rep. 364; Murray v. Smith, 1 Duer, 412;) and there is no reason why one to pay for lands merely agreed to be conveyed in consideration of such agreement should not be so, equally. The statute in regard to contracts or conveyances affecting lands does not, in tepns, render void the promise of the purchaser or grantee to pay, unless written and signed by him, as it does the promise of the purchaser of goods, unless accompanied by part execution. It is true that a different reason was discovered by Paige, J. in Worrall v. Munn, (1 Selden, 246,) for enforcing contracts for the sale of lands, which he ventured to declare could be done, even where there was was no mutuality. That was, that the party to be charged was estopped by his signature from denying the contract to be validly executed, although not signed by the other, which after all only comes back to the same point that the statute requires it in the case of the seller, and makes that sufficient, without touching the obligation of the purchaser. The reasoning in Fenly v. Stewart, in this court, (5 Sandf. 101,) notwithstanding its artificiality, I do not understand as impugning that principle, hut merely as insisting that the party to he charged must sign, without adverting to any ground as that on which equity has enforced such contracts. There is another reason why different language should be used in regard to contracts or conveyances affecting lands and those in regard to goods. The former was always a favorite with the common law, and required peculiar protection ; whereas the latter was of less account, and merely required that both parties negotiating for a sale should have been established by incontrovertible evidence to have been in earnest and positive in making the bargain conclusively.

The principle in regard to contracts for the sale of goods has never been fully settled in this state, although sometimes assumed or stated to have been so, in obiter dicta. In the early case of Roget v. Merritt, (2 Caines, 117,) the court expressly avoided deciding the case upon the construction of this statute, and even Spencer, J. only held the defendant not to be bound because the consideration agreed (orally) by the plaintiff to be given failed, although he stated that, he thought it enough that the party who had to perform the principal part of the contract,” i. e. to deliver the goods, should sign it and the other accept it. I apprehend the payment of the price is as important a part of the whole contract as the delivery of the goods; indeed the statute expressly makes it so. The mere receipt of the written paper could impose no obligation on the recipient. In the case of Bailey v. Ogden, (3 John. 399,) the question was still kept open, Chancellor Kent declaring that the obligation of the plaintiff who alone had signed the agreement, was not a question in it. In Merritt v. Clason, (12 John. 102,) the agreement had been signed by a broker, and both counsel put the case upon the question whether he could bind both, and Justice Platt, in delivering the opinion of the court, held he could bind the defendant, and upon that ground alone the decision in that case was sustained in the Court of Errors. (S. C. sub. title Clason v. Bailey, 14 John. 484.) Even Chancellor Kent, who examined in such court of last resort the question and reviewed all the cases, including many which were confined to sales of land, and leaned towards the validity of the contract in favor of the non-signing party, expressly disclaimed “placing the cause on that ground.” In Russell v. Nicoll, (3 Wend. 112,) no objection had been taken on the trial to the validity of the contract, a nonsuit was granted on other grounds affecting the. merits ; one of which was that it was on a contingency which had not happened ; and such decision was sustained by the Supreme Court on the same grounds. It was in that case, as I have already noticed, that the English cases (Egerton v. Matthews, and Saunderson v. Jackson, ubi sup.) cited by the learned judge (Marcy) for his merely incidental remark that the signature of the defendants to the contract was a sufficient compliance with the statute, related to land alone. The late case of Dykers v. Townsend, (24 N. Y. Rep. 57,) is as strong an authority on the other side, as any just given, in regard to the obligation of a contract on a vendor when not signed by him. The learned judge who gave the opinion in that case says : “ As an original question I should have no hesitation in saying in a case where a. contract was entirely executory on both sides and no part of the consideration had been paid, that it was necessary it should be in writing under this statute, and be signed by both parties thereto in order to be binding on either.” It appears to me to be most decidedly a question not yet disposed of by authority, but studiously avoided.

The change of language in the statute from the party by whom an interest in, or lease or sale of lands, is to be made, and the party who is to be charged with the agreement mentioned in the immediately preceding section in the singular, to the parties to be charged, in the plural, in the provision under consideration, is most striking and conclusive. That second section of the statute expressly requires a consideration to be expressed in the agreements therein referred to, (2 R. S. 135,) although a similar requisite was held to he necessary, even without such express requirement. (Sears v. Brink, 3 John. 210.) The provision under consideration does not contain the same requirement, because in a contract of sale the terms, including the price, must be mentioned, and the signature of the purchaser shows the consideration by the instrument itself. If the principle is to prevail as to the purchaser, it must do so equally as to the vendor ; nor will it do to say, as in Roget v. Miller, (ubi supra,) that the delivery of the goods is of more importance than paying their price. And then a mere offer, which is all that an agreement or proposal on one side to buy is, might be converted afterwards by mere parol testimony of its acceptance, into a contract. There is certainly as much danger of perjury in proving by parol, such acceptance as the whole contract. I am satisfied, therefore, that the express terms of the provision under consideration, as well as the purpose of the statute, require that the terms of a contract of sale, after being fixed, should be reduced to writing, and signed by both parties, in order to prevent both misapprehension and perjury.

The judgment and order denying a new trial must, therefore, be affirmed, with costs.

Barbour, J. concurred.

McCunn, J.

(dissenting.) In-this case, I regret to say, after having given it a careful and anxious consideration, I am unable to agree with the opinion pronounced at general term. That the defendants are clearly liable under the contract, I have not the shadow of a doubt.

The principal question in the case is, whether the memorandum or contract signed by the defendants is sufficient in law to bind them.

The facts are as follows : The defendants made an agreement with the plaintiff to furnish him with 1000 Enfield rifles, and thereupon entered into a contract, and signed the following memorandum of the same :

“ New York, May 13th, 1861.
We agree to deliver P. S. Justice one thousand Enfield Pattern Rifles (with bayonets, no other extras) in New York, at #18 each, cash upon such delivery, said rifles to be shipped from Liverpool not later than 1st of July, and before if possible.
(Signed)
W. Bailey Lang & Co.”

Which agreement and-memorandum were accepted by the plaintiff. After the contract was entered into, the article increased largely in value, and the defendant neglected and refused to supply the rifles, whereupon this action was brought.

I will remark here, that in looking carefully into all the evidence, I am constrained to the belief that the only reason which influenced the defendants in refusing to perform the contract was that the rifles had nearly doubled in value from the time the contract was made until the time they were to be delivered. .After the testimony was nearly closed, a motion was made to dismiss the complaint, upon the ground that there was no consideration passing in the contract, and “ that the contract was a mere nudum pactumThe motion was granted. Notwithstanding this, I am satisfied, after a careful examination of the statute, and of all the American and English authorities on the subject, there was error in dismissing the complaint. The contract, as stated above, was a full compliance with the requirements of the statute, and upon the facts presented, the plaintiff was entitled to recover. It will be conceded that before the passage of the statute of frauds, a verbal contract between parties for any amount whatever was good. This being so, the statute simply altered the common law in this respect, that it merely requires for greater certainty that a memorandum of the contract should be made in writing.

It is admitted that the form of the memorandum of the contract in this case, so far as words are concerned, is all that is required. The defendants simply contend that there is no mutuality, because the plaintiff did not sign a duplicate of the memorandum. This, in my opinion, was of no consequence.

The defendants and the plaintiff made and entered into the contract; the one agreed to sell at a fixed and certain price, and the other to buy at that price. This was the mutuality, and the consideration expressed was the $18 per rifle. The defendants reduced the contract to writing, or made a note of the same, and signed and handed- it to the plaintiff, who accepted it, and this was all that was required to complete the transaction, and if the defendants did not demand a duplicate of the memorandum signed by the plaintiff, it was their own fault; but without this, the defendants, if they had delivered the rifles, could not recover in an action of assumpsit. (See Gridley v. Gridley, 24 N. Y. Rep. 130.)

The mere acceptance of the note or memorandum, in writing, of the contract by the plaintiff, was enough to bind him, and was sufficient to enable the defendants, in a court of law, to compel a- performance on his part. The law, in all cases, implies a promise to pay where it is the duty of one to pay; and no one will doubt for a moment that if the defendants had made and tendered the rifles, the plaintiff would have been compelled to pay. In the case of Gridley v. Gridley, above cited, Mr. Justice Davies, in one of the most clear and forcible opinions in our books, lays down the principle that where a party accepts a written obligation from another, although he does not subscribe the same, yet in a court of law he can be held responsible for the performance of its conditions, and such was declared to be the rule in the following cases : Spraker v. Van Alstyne, (18 Wend. 200;) McLachlan v. McLachlan, (9 Paige, 534;) Van Orden v. Van Orden, (10 John. 30 ;) Lord v. Lord, (22 John. R. 60.) Indeed, the cases are too numerous to cite, which fully establish this doctrine, and sustain my conclusion.

In construing a statute, it is our duty to ascertain the true legal import of the words used by the legislature, and to collect the intention from the language of the statute itself; but not to make out the intention from some other source of information, and thus interpret the words of the act, so as to meet the assumed intention.

The danger of traveling out of the statute, and looking elsewhere for the object of the legislature, may be illustrated by the wide difference of opinion entertained by the members of this court in the present case. In order to know what a statute does mean, it is one important step to ascertain what it does not mean, and what it forbids must be consistent with what it permits.

Now, the act says : “A note or memorandum of such contract must be made in writing, subscribed by the parties to be charged thereby.” It does not say all the parties to the contract must subscribe the memorandum, and that it must be signed in duplicate ; it simply says subscribed by the parties to be charged with doing the work or furnishing the goods ; in other words, the vendor.

There is a stronger reason than any that has been urged, showing this to be the proper construction of the statute. In 1835, the question came up in the legislature, when other amendments were being made to the old statute of frauds, as to whether the words in the statute, to wit, the parties to be charged thereby,” should be amended, so as to include the names of all parties to the contract, and that body rejected the proposed amendment, assigning as a reason that by virtue of the old act and the adjudications thereunder, all the parties to the transaction had a complete remedy without such alterations. (See reviser’s notes. 3 R. S. 656, 2d ed.) It is clear, therefore, that these words must now be taken in their fixed and adjudicated sense, and that they absolutely mean that the statute should be satisfied when the parties to be charged therewith signed the memorandum. And this interpretation is supported in reason and in equity. The contract is binding on both parties, because the promise on the one side to sell at a certain fixed price, and of the other to buy at such price, is the mutual consideration for each other, and the statute only requires that a note or memorandum of the contract must be in writing; it does not say, and does not mean that it shall be signed in duplicate by all the parties to the contract.

Moreover, a party should not be allowed to take advantage of his own neglect in not getting and retaining a copy of the contract.

After the original act was passed, I will show hereafter that a construction was given it, and that construction has been strictly followed to this day. It is the construction that naturally presents itself at once to the mind, and under it, all parties have a perfect remedy.

How, if this be so, and there is not a single authority to the contrary, why unsettle the law at this day, and that to no-purpose, and for no cause. On a careful examination of all the authorities from the time of the passage of the original act, it will be seen that the courts, both in England and America, have uniformly held that when a memorandum of a contract is committed to writing, and signed by the party to be charged thereby, and accepted by the other, this is entirely sufficient.

Precedent serves to illustrate principles, and give them a fixed authority. We must respectfully regard the authorities of prior adjudications, which form in themselves an established rule, and when they violate no principle; We must discriminate the actual grounds of decisions from any casual observations that accompany them, because these observations form no decisive resolution, no adjudication, no professed or deliberate determination. In the case of Davis v. Shields, disposed of in the Court of Errors of this state, in 1841, both the Chancellor and Mr. Senator Verplanck laid down the doctrine “ that the name of the party to be charged therewith was only requisite to the note or memorandum.” Indeed, Senator Yerplanck, in one of the most clear and forcible arguments I have ever had the pleasure of examining, establishes this doctrine beyond a doubt, and this rule was re-renunciated in the Court of Appeals of this state, in the case of Worrall v. Munn, (5 N. Y. Rep. 229,) where Mr. Justice Paige says: “that it is only necessary the memorandum should be signed by the vendor, the party to be charged therewith.” In Dykers v. Townsend, (24 N. Y. Rep. 57,) a side remark of Judge Hoyt, a mere obiter dictum, and not intended as law, is cited as indicating that he entertained a contrary opinion. He says : “ As an original question he would have no hesitation in saying in a case, where a contract is executory, that it was necessary it should be in writing under the statute, and be signed by both parties thereto,” but in another and latter part of his opinion, he takes all this back, and lays down the law after this clear manner.

“ In this case, a note or memorandum of the contract was made in writing, and signed by the defendant, and we think that this was a sufficient compliance with the statute according to the settled construction which has been given to it.” Now, after this candid avowal of the law on that point, it cannot be fairly said the question involved, and now under consideration, did not "come up in that case. It did come up, and was settled by a unanimous bench, and the views I entertain are correct.

The next case our attention is called to is that of Bailey v. Ogden, (3 John. 399,) a case in no way similar to the one at bar. That was a case where the plaintiff, the vendor, made an entry in his own books of the sale, of which entry the defendant, the vendee, knew nothing. But even in that case, Kent, chief justice, lays down the principle “ that it is only necessary for the party to be charged to sign the contract.” The case of Laurenson v. Butler, (1 Schoale & Lefroy, 201,) has no resemblance whatever to the case under discussion. That was a case of a mistaken contract about a lease, and the court held that a performance could not be compelled because there was a mistake as to the power to sell, and the plaintiff knew of the mistake before he accepted the contract'. In the case of Roget and Barrett, I do not agree with the defendant’s counsel in saying that this question was' passed without adjudication. On the contrary, the question came fairly up, and was fully discussed and passed upon, and in my view, that decision settles the law in this case in favor of the plaintiff. In announcing the opinion of the court in that case, Mr. Justice Spencer lays down the rule that only the parties to be charged are required to sign the memorandum, and he remarks that if there are acts to be done by both parties (such as the exchange of commodities to be manufactured,) there is no doubt but that such contract would be obligatory, if signed by one party and accepted by. the other. The case of Clason v. Bailey, fully corroborates the views I entertain in this respect. In that case, the chancellor, in announcing the opinion of the , Court of Errors, cites numerous English and American authorities, all clearly establishing the fact that a memorandum, signed by one party, and accepted by the other, is sufficient under the statute.

In the case of Russell v. Nicholl, (3 Wend. 118,) before referred to, that most learned and able judge, Marcy, lays down a similar doctrine to the one I entertain, and this clear principle can be no better illustrated than by the exposition of that eminent judge.

“ It was insisted,” says Governor Marcy, “ that the contract declared on was, within the statute of frauds, void, for not being reduced to writing, and signed as the statute directs. This objection is not sustainable. It is very clear that the signing by the defendants is a compliance with the statute.”

The case of Chater v. Beckett, (7 Term Rep. 203,) is not at all a case in point. The agreement in that case was by parol. It is true, however, that some remarks were made by Lord Kenyon, not only not bearing on this case, but entirely foreign to the record, and which decide nothing. The last, and only remaining case cited by counsel for the defendant is that of Ballard v. Walker, (3 John. Ca. 60,) which confirms my views in this case.

The question under consideration should not demand of me so much care and attention, especially since we find two cases in this very court, precisely similar, where similar memoranda were sued upon, and- where this court were unanimous in sustainiqg the old and well established rule, that it was only necessary for the parties to be charged thereby to sign the memorandum. I refer to Fenley v. Stewart, (5 Sandf. 101;) and also to the case of West v. Newton, (1 Duer, 277.) The memorandum in the first case was as follows :

“ For a valuable consideration to us in hand paid, we have sold A. H. Fenly two thousand five hundred bushels of canal oats, at forty-five cents per bushel of thirty two quarts ; to be delivered in this city at any time, at our option, between the 1st and 15th of June next ; to be cash on delivery.
New York, April 23,1847.
A. W. Otis & Co.”

The presiding justice, delivering the unanimous opinion of the court, employs this language :.

“ The statute of frauds requires not that the contract should be signed by both parties, but the parties to be charged thereby; and the uniform construction has been that the signature by the defendants alone, that is, by the parties sought to be charged, is sufficient to sustain the action. This construction has proceeded, not on the ground that contracts need not be mutual, but that the statute in certain enumerated cases has taken away the power of enforcing contracts, which would otherwise be mutually binding, unless the parties against whom they are sought to be enforced have subscribed some note or memorandum thereof in writing.” * * * It necessarily follows, however, from the provision of the statute, that all inquiry as to whether or not a contract was originally mutual is immaterial. It may be enforced against the party who has subscribed a note or memorandum of it, though the other party, by not having signed, is by the express words of the statute freed from its obligation. The objection, therefore, of want of mutuality is not well taken.

In the case of West v. Newton, (1 Duer, 277,) the following contract was sued on :

“ I do hereby agree to deliver to J. Selby West, at such places as he shall direct, during the months of August, September and October next, in about equal quantities each month, five hundred tons of egg end five hundred tons of good size stove coal, best quality of red ash, peach orchard, at five dollars per ton, cash, or interest added, after delivery, as he shall prefer ; the above coal to be in good order and gross tons, credit not to be over three months.
Morris Buckman.
Mew York, April 16,1846.
Agent for Jacob Carrigan, Jr.”

The presiding justice in delivering the unanimous opinion of the court says : “ The objection that the memorandum was insufficient under the statute, we incline to think is not well taken. The contract is not a mere proposal, but is mutual on its face, since the price stipulated to be paid for the coal is a sufficient consideration for the promise to deliver it.”

Mow can there be two cases more in point than these, especially when we find the contracts and the facts precisely the same as in this case, and they do not, unreversed as they are, settle the law so far as this court is concerned ; especially, when we remember that at that day the court was honored by the presence of an Oakley, a Duer and a Sandford, and when we consider the further fact that the only lights or adjudications the court have now to guide them in their deliberations .are precisely the same lights and the same adjudications the judges of that day enjoyed.

The judgment of dismissal should be reversed and a new trial ordered, with costs.

Judgment and order affirmed.