The, statute of frauds in Maryland requires written evidence of
the contract, or a court cannot decree performance. The words of
the statute are
"unless the agreement upon which such action shall be brought,
or some memorandum or note thereof, shall be in writing signed by
the party to be charged therewith or by some other person by him
thereto lawfully authorized."
A note or memorandum in writing of the agreement between the
parties is sufficient under the statute of frauds of Maryland, and
in order to obtain specific performance in equity, the note in
writing must be sufficient to maintain as action at law. The form
is not regarded, or the place of signature, provided it be in the
handwriting of the party or his agent and furnish evidence of a
complete and, practicable agreement. A court of equity will supply
no more than the ordinary incidents to such an agreement, such as
the ingredients of a complete transfer, usual covenants,
&c.
An examination of the cases will show that courts of equity are
not particular with regard to the direct and immediate purpose for
which the written evidence of the contrast was created. It is
written evidence which the statute requires, and a note or
letter, and even, in one case a letter, the object of which was to
annul the contract on ground really not unreasonable, was held to
bring a case within the provisions of the statute.
Where, in an account stated by the parties in the handwriting of
the defendant, his name being written by him at the head of the
account, a balance was acknowledged to be due by him to the
complainant in the bill for a specific performance, there was the
following credit:
"By my purchase of your half, E.B. wharf and
premises this day agreed upon between us, $7,578.63," it was
held to he a sufficient memorandum in writing under the statute of
frauds of Maryland, upon which the court could decree a specific
performance of the sale of the estate referred to, other matters
appearing in evidence and by the admissions of the defendant in his
answer to show the particular property designated by
"your 1/2
E.B. wharf and premises."
This was an appeal from a decree in equity of the Circuit Court
for the County of Washington against Robert Barry the appellant
upon a bill filed by Griffith Coombe for the specific execution of
a contract for the sale of real estate in the City of Washington
and for the payment of the balance of an account which it was
alleged had been settled and agreed upon by the parties.
The material charges in the bill, and which were brought into
the consideration of the court by the counsel in argument, were
that various transactions, commencing in 1815, had taken place
between the complainant and the defendant, who then resided in
Baltimore, together with a certain James D. Barry of the City of
Washington, as joint proprietors of a tan yard
Page 26 U. S. 641
in which the business of tanning and selling leather was carried
on, in the course of which the concern became largely indebted to
the complainant and to other persons for the payment of which
securities had been given. Afterwards, in 1821, the partnership
between the defendant and James D. Barry, was dissolved and the
whole of the stock in trade became the property of the defendant,
who afterwards continued the business on his own account.
That about 18 May, 1818, the complainant and the defendant
purchased an estate on the Eastern Branch of the Potomac in the
City of Washington, upon which were erected a dwelling house,
warehouse, and wharf, and which was held by the complainant and the
defendant as tenants in common. Large expenditures were made by the
complainant for the repairs of the property, and the defendant was
considerably indebted to the complainant for his proportion and
share of the same.
The bill further charged that about September, 1820, a
settlement of all accounts took place between the parties, upon
which the defendant was found in arrears and admitted himself to be
indebted to the complainant a stated balance of $9,078.33, and for
the purpose of liquidating and discharging the balance so due by
the defendant a bargain was then concluded for the sale of the
defendant's moiety of the said premises on the Eastern Branch so
held by them in common, for which the complainant agreed to allow
him the price of $7,578.63, to be passed to his credit in account
against the stated balance, the balance of $1,500 still remaining
due, the defendant agreed to pay with interest in installments, in
one, two, and three years, and to give his promissory notes for the
same, in consideration of which agreement on the part of the
defendant the complainant agreed to discharge the parties who had
been concerned in the tan yard from the debt due to him on account
of certain endorsements and to relinquish to the defendant his
interest in and lien upon leather which he held. Whereupon
the
defendant immediately drew up in his own handwriting a statement of
the said settlement, bargain, and agreement in the form of an
account between himself
as debtor and the complainant as
creditor, signed at the beginning with the defendant's name in his
own handwriting, and at the foot with the complainant's name in his
handwriting, in which written statement are set down the heads
of the several accounts upon which the said balance of $9,078.63
was ascertained against the defendant as aforesaid; the credit and
deduction of the purchase money, agreed to be allowed the
complainant for the defendant's moiety of the said estate and
premises on the Eastern Branch, as aforesaid, described in said
statement as "your [meaning the defendant's]
Page 26 U. S. 642
1/2 E.B. [meaning Eastern Branch] wharf and premises" and
expressly stated as purchased by the complainant on the day of the
date of said paper, with an express reference to the said agreement
between the complainant and the defendant, and lastly the said
balance of $1,500, remaining due after deducting the credit for the
said purchase money as aforesaid, payable by installments as
aforesaid.
The statement of the account, alleged to have been so drawn up,
was as follows:
"Washington, 27 Sept., 1820"
Robert Barry To G. Coombe Dr.
To amount of J.D. Barry's notes taken up by me, and
secured by him in tan yard stock, and leather, per
bill dated 27 Dec., 1819 . . . . . . . . . . . . . $4,209.00
Interest on do. to this day -- 9 Mos. . . . . . . . 184.40
--------- $4,393.40
To bill of leather sent you in June, 1819. . . . . .
$2,846.50
Interest to this date -- 15 Mos. . . . . . . . . . 216.65
--------- 3,063.15
To balance due on tan yard books (E.E). . . . . . . . 284.25
To cart of hay for tan yard. . . . . . . . . . . . . 37.37
To balance due for supplies to tan yard, per
account furnished by you . . . . . . . . . . . . . 152.64
474.26
--------- ---------
To 1/2 expenses of repairs on house and wharf,
E. branch. . . . . . . . . . . . . . . . . . . . . 1,145.49
$7,930.81
Interest, 9 mos. . . . . . . . . . . . . . . . . . . 51.52
1,197.01
-------- ---------
Cr. $9,127.82
By 1/2 rent and wharfage, &c., of sundries, to
this day on E.B. wharf . . . . . . . . . . . . . . 49.19
---------
$9,078.63
By my purchase of your 1/2 E.B. wharf and premises,
this day agreed on between us 7,578.63
---------
Balance due G. Coombe, fifteen hundred dollars $1,500.00
Payable in one, two and three years, with interest.
[Signed] G. COOMBE
The bill charged that this paper, each party having a copy, was,
for the purposes of mutual security, delivered to Daniel Carroll,
Esq. of Duddington, who was a creditor of the partnership.
It was further alleged that the complainant went on to do and
perform all that he had assumed and undertaken under
Page 26 U. S. 643
the agreement and settlement, that he took possession of the
premises on the Eastern Branch, and has laid out and expended large
sums of money in the repairs and improvements thereof, and that
although he has repeatedly made efforts to obtain from the
defendant a conveyance of the property so agreed to be conveyed to
him by the defendant, it has not been made.
The bill then prays the specific relief to which the complainant
alleges himself entitled in equity under the contract, and the
benefit of such a recovery as he might have at law by attachment or
otherwise for the debt due to him as stated in the account.
Among the documents contained in the record is the following
letter from the complainant to the defendant, and which by the
affidavit of John P. Ingle, was proved to have been delivered to
the defendant on 5 April, 1822.
"Washington City, March 26, 1822"
"Mr. ROBERT BARRY."
Sir -- It is now time that I should have your final answer
whether you will execute the contract made between us in presence
of Mr. Carroll for the conveyance of your moiety of the house,
wharf, and premises on the Eastern Branch and for the payment and
security of the balance due me in money. For this purpose I have
authorized Mr. John P. Ingle to call on you in my name and receive
your conveyance, a form of which he will present you, which you
will please execute and acknowledge in due form, so as to make it
effectual here. Please also pay to Mr. Ingle the installment of
$500 due in September last, with interest from 27 September, 1820.
Please also to execute and deliver to Mr. Ingle your two notes for
the other installments, drafts of which he will present you.
"I also require of you the surrender of J. D. Barry's draft,
endorsed by me for $1,000, which had been discounted in the Bank of
Washington, and which you promised to take up and release me from.
I must notify you that if you persist in refusing to comply with
the terms of your contract according to your pledged faith in
presence of the respectable witness above mentioned, I shall hold
you accountable in money for the whole balance due me according to
our settlement, and shall merely hold the house, wharf, &c.,
which you were to have conveyed to me as collateral security for
the entire balance ascertained by that settlement and for the
expenses since laid out in repairs and improvements of the same,
under the faith of your contract."
"Respectfully, your obedient servant,"
"GRIFFITH COOMBE"
Page 26 U. S. 644
The defendant, Robert Barry, denies in his answer the
liabilities to which, by the bill of the complainant, he is said to
have been under as connected with the tan yard and the concern with
James D. Barry, and, after stating other matters not necessary to
be inserted, admits, in the language of the answer, that in the
year 1820, he had a conversation with the complainant about
settling their accounts,
"including the debt alleged to have been secured by the
pretended bill of sale aforesaid,
and the complainant then
proposed to purchase from this defendant, his undivided moiety of
the lots and wharf aforesaid, and that the amount of purchase
money should be considered as a payment to the complainant, in part
of the amount
which he then alleged was owing to him;
and the defendant, at the request of the complainant, who
alleged the badness of his handwriting as an excuse for making that
request,
copied from a written memorandum furnished by the
complainant, the statement of the account referred to, in
which the defendant's name was written by him only for the purpose
of stating him as debtor to the complainant, in
compliance with
his request, not as signing any contract or agreement. And
that the said statement so written by him, at the instance and
request of the complainant, being signed by him, was delivered to
this defendant
for the purpose of considering whether, after
due examination, he would assent to the terms therein proposed, and
was not deposited in the hands of Daniel Carroll, as the
complainant alleges. For this defendant declares that he did not
then assent to the correctness
of the several charges and
estimates in the said statement, although he expressed his
willingness to sell his undivided moiety of the said wharf and
premises for the price proposed by the complainant, if this
defendant should be satisfied, on examination, that he would
actually receive a compensation fully equal in value to the said
price, and therefore the said statement was delivered to this
defendant for the purpose of examination and consideration as
aforesaid, and has always since been and now is in the possession
of this defendant, and in reference to the said verbal
agreement, and explanatory of the condition on which this defendant
was willing to carry the same into effect, this defendant, a few
days after he received the said statement, having
discovered a
part of the representations made to him as
aforesaid to be incorrect, wrote a letter to the complainant
representing
the said conditions so far as they were
affected by the discovery then made, a copy of which letter this
defendant herewith exhibits, which he prays may be received as a
part of this his answer; which letter was, as this defendant
believes, delivered to the complainant and was read by him, and is
probably in his possession or in his power to produce, and this
defendant prays that the said original letter may be here produced.
The answer also states
Page 26 U. S. 645
that upon subsequent examination, the account which was made out
and in which was the entry of 'E. B. wharf, &c.' had been found
erroneous in many particulars."
The answer submits to the decision of the court whether the
account set forth in the complainant's bill, is "an agreement, such
as is required by law and equity, to compel the defendant to make
the sale and conveyance claimed and prayed by the complainant."
The letter referred to in the defendant's answer, is as
follows:
"Baltimore, 7 October, 1820"
"MR. GRIFFITH COOMBE,"
"Sir: Having agreed to sell you my undivided half interest in
the Eastern Branch wharf and premises at Washington, lately deeded
to you and to me by James D. Barry, I hereby bind myself to give
you a good and sufficient conveyance of all my right and title in
law and equity for the same as soon as you send me or that I
receive the stock of leather now working out at the tan yard (the
same being a part of the consideration for my right to said
property) or otherwise place the proceeds thereof at my disposal as
far as you have or can or shall have the right or power to do or
cause to be done, agreeably to the inventory lately given me by Mr.
Edmund Rice, of said stock and materials, which inventory must
embrace a quantity of finished leather, amounting to about $806,
removed by him to his brother William's store; and as this lien to
you is blended with a lien to others, I further engage on receipt
of said stock of leather, to provide likewise for the lien held
thereon by Mr. Daniel Carroll, of Dud. for about $1,800, and also
for the payment of a lien on said stock of leather to secure the
amount of a note due to Edmund Rice or endorsed by him at the
Patriotic Bank for about $1,200, and in other respects to settle
for any balance I may owe you on the account you have furnished me
agreeable to the principles of equity and justice."
"I remain, &c., yours, respectfully."
"P.S. The effect of the paper signed by you and deposited with
Mr. Carroll will, of course, remain suspended subject to its
conditions for the purpose of carrying the foregoing into effect,
and which will by me be complied with in good faith."
The evidence before the circuit court, consisting of the
examinations of Mr. Pleasanton, Mr. Carroll, and others and
Page 26 U. S. 646
what is contained in the record, are sufficiently stated in the
opinion of the Court.
Page 26 U. S. 647
MR. JUSTICE JOHNSON, delivered the opinion of the Court.:
This appeal brings up for revision a decree of the circuit court
of this district by which this appellant has been required to
execute, specifically, an agreement for the sale of land. The bill
sets up a certain written instrument as a sufficient memorandum in
writing, but not relying solely on that, goes on to make out one of
those cases in which a court of equity exercises this branch of its
jurisdiction in order that the statute of frauds may not be made a
cloak for fraud; that is a case of performance on the part of the
complainant.
This has caused the question on the right to relief, in a case
within the provisions of the statute, to be mixed up with a great
deal of extraneous matter which need not have been set out had the
claim to relief been confined to the one ground alone.
The memorandum set up is in the form of a stated account, wholly
in the handwriting of the appellant, Barry, the defendant below,
and acknowledged to be a copy made by him of another, also made out
in his handwriting, actually signed by Coombe the appellee, and now
in the hands of Barry. So that Barry's name is in the caption, if
it may be so called, and Coombe's at the foot of the memorandum.
The item of the account which relates to the bargain or agreement
for the sale of the land is in these words, letters, and figures.
"By my purchase of your 1/2 E.B. wharf and premises this day as
agreed on between us," and the credit is carried out in figures
$7,578.66, and deducted from the amount charged to Barry.
Page 26 U. S. 648
Then follows this memorandum, "Balance due G. Coombe, $1,500,
payable in one two and three years with interest. G. COOMBE."
The defense set up in the answer is that the transaction was not
final; that it amounted to nothing more than a treaty in progress;
that as far as it proceeded, it was obtained by false and
fraudulent suggestions on the part of complainant; and that the
name of defendant was signed, if signed at all, only to state an
account, not to acknowledge a contract, and the answer concludes
with submitting to the court whether it be "an agreement such as is
required by law and equity, to compel the defendant to make the
sale and conveyance claimed, and prayed for by complainant."
It is under these words alone that the protection of the statute
of frauds is set up by defendant. But in the view which this Court
will take of this subject, it is unnecessary to inquire whether the
case required or admitted that it should be more formally pleaded,
since we will dispose of the cause under the admission that he has
entitled himself by his answer to the full benefit of the statute
if the facts of the case would maintain the defense.
And first it is obvious that it would be idle to consider the
form and effect of the instrument if the treaty was never brought
to a conclusion. On this fact the answer has put the complainant
upon proof, and two witnesses have been examined to the point. Mr.
Pleasanton the first witness swears that in the year 1820, the
defendant showed him a statement of accounts, which he believes was
a copy of one exhibited by the complainant, and informed him that
he had made a settlement of accounts with complainant, that the
account so shown exhibited a balance against the defendant of %500
or $1,500, that it was in Barry's own handwriting, and that he
stated, as an inducement to make it, that Coombe had made a
sacrifice to obtain it.
The account so shown to Mr. Pleasanton could have been no other
than the original of that which Coombe has exhibited, and the facts
to which this witness testifies are strongly indicative of a final
transaction.
The next witness, Mr. Carroll, is still more positive. He was
present at the transaction, and, as he testifies, at the request of
both parties, became the depository of several documents relating
to it, and on the subject of the conclusive character of the
transaction, his language is "that he understood the settlement to
be final and absolute."
But there were other facts to which Mr. Carroll was examined,
and it is argued that his testimony as to those facts goes to prove
that he was mistaken in the view which he took
Page 26 U. S. 649
of the transactions; that they go to prove that there was
something yet to be done before the agreement should be closed.
Coombe, it seems, insisted that Barry should give his note for the
balance stated and a deed for the property before he left
Washington. This Barry resisted, and finally left Washington
without doing either, and returned to his home at Baltimore.
It cannot be denied that this does conduce to prove an
unfinished treaty, but the inference is repelled by various
considerations.
And first, preparing the deed might require time, his business
may have pressed for his return home, or he may have wished his own
counsel or scrivener to draw up the deed.
2. As to the notes, giving them made no part of the agreement
reduced to writing; the balance stated was to have been paid in
one, two, and three years, but it does not express that notes are
to be given for it, and he may have had his reasons for declining
to give his notes or for taking advice upon it. If there should
prove to be errors in the stated accounts, upon more deliberate
examination these errors might more conveniently have been adjusted
upon the stated balance than upon notes, which might have found
their way into several hands and thus have multiplied
litigation.
3. It does not appear from Mr. Carroll's testimony that Barry
refused generally to give either deed or notes, but only to give
them before he went to Baltimore; on the contrary, he appears to
have resented Coombe's seeming to act upon a doubt that he would
then execute and send them, and to this Mr. Carroll bears positive
testimony when he says "that he understood that the notes and deed
were as certainly to be sent on from Baltimore as if executed on
that day."
But what is conclusive in this part of the cause is that the
transaction was followed up by an act on the part of Barry which no
honest man could have done otherwise than in the supposition that
it was a finished transaction. It appears that Coombe, together
with Mr. Carroll and Mr. Rice, held a mortgage of a quantity of
leather to the value of $7,000, given to secure to them certain
sums advanced on behalf of one James D. Barry; that the defendant
Robert Barry had assumed the debts of James D. Barry, and thereby
acquired a resulting use or equity of redemption in this leather.
That the sum for which Coombe held his lien on the leather, to-wit,
$4,209, was one of the items of account in the exhibit upon which
the complainant relies, to obtain a decree for specific
performance. But as a balance of $1,500 still remained due to
Coombe upon the stated account, the leather was still pledged to
him for that amount. This interest Coombe was induced to release to
Barry, and which he accordingly did, by an endorsement upon the
Page 26 U. S. 650
instrument of writing by which the lien was created. And Mr.
Carroll testifies "that the defendant did receive at the tan yard
in Washington, all the leather mentioned in the bill of sale, in
consequence of complainant's release."
It is true an attempt was afterwards made in this suit to arrest
the leather in the hands of Barry, but it was not on the ground
that the treaty was
in fieri or the release not final, but
to subject the leather to the debt which would be due to the
complainant if he could not obtain the specific execution of the
sale of the wharf as well as the acknowledged balance. It is
obvious, then, that in reducing the leather into possession, Mr.
Barry must either have acted fairly on the idea of a finished
transaction, or unfairly by entering upon the fruition a fraud
practiced to obtain the release.
We will consider him as having acted fairly upon the ground of a
treaty final and concluded, to be carried into execution according
to its terms. But the Statute of Frauds in Maryland requires
written evidence of the contract or a court cannot decree
performance. Is this such written evidence of a "contract or sale
of lands" as satisfies the exigency of that statute? The words of
the statute are
"unless the agreement upon which such action shall be brought or
some memorandum or note thereof shall be in writing and signed by
the party to be charged therewith or by some other person by him
thereunto lawfully authorized."
A note or memorandum in writing of the agreement, therefore, is
sufficient, and there is no question that in order to obtain a
specific performance in equity, the note in writing must be
sufficient to maintain an action at law. The form is not regarded,
nor the place of signature, provided it be in the handwriting of
the party or his agent and furnish evidence of a complete and
practicable agreement. A court of equity will supply no more than
the ordinary incidents to such an agreement, such as the
ingredients of a complete transfer, usual covenants, &c.
At first view this would seem to be an anomalous case, but it is
only necessary to reduce it to its elements in order to discover
that it is one known to the adjudications of courts of equity on
this statute. As to the balance stated, it is final and conclusive
between these parties, and
insimul computassent, might be
maintained upon it by Coombe for the amount. And in an action by
him going to claim the whole amount charged to Barry, it would be
good evidence in the hands of Barry to reduce Coombe's demand down
to the balance stated.
It is then equivalent to a mutual and reciprocal receipt between
these parties; on the one hand, Coombe signs a receipt for the
price of the premises in controversy in account with
Page 26 U. S. 651
Barry, and Barry, on the other, signs a receipt to Coombe
acknowledging that he has received the price stipulated in full of
the purchase money of the same.
This is the real purport and effect of the writing in evidence,
and had the instrument, signed by the parties, been expressed in
these terms, there could not have been a doubt of its sufficiency,
12 Ves.Jr. 466; 9 Ves.Jr. 234. But it is argued that this was not
the intent with which the writing was concocted. That it was to
state an account, and not to note an agreement for the sale of
property, that it was drawn up and signed. An examination of the
cases on this subject will show that courts of equity are not
particular with regard to the direct and immediate purpose for
which the written evidence of a contract was created.
It is
written evidence which the statute requires, and a note or
letter, and even in one case a letter the object of which was to
annul the contract on a ground really not unreasonable, 1 Atk. 12;
1 Sch. & Lef. 22, has been held to bring a case within the
provisions of the statute. But in the present instance, although
not the sole object of creating the instrument, it really was an
object, and an important one, inasmuch as the balance of account,
the immediate object of the stated account, mainly depended upon
the item for the sale of these premises. It could not be stated
without acknowledging that the one had agreed to sell and the other
to purchase these premises at a stated price. On this part of the
cause, the case of
Stokes v. Moore has been cited, 1 Cox
218, and insisted on as furnishing an argument against the
sufficiency of the signature of Barry in this cause. But in the
case of
Stokes v. Moore, it must be observed that both the
judges who sat on that cause admit that this was not the principal
question in the cause, and it was decided upon the ground that the
memorandum was proved but to express the entire agreement between
the parties. But if considered as authority in this point, it is
only necessary to advert to the ground upon which the opinion is
expressed "that the name there was not a sufficient signature under
the statute" in order to discover that it does not impugn the
opinion entertained by this Court in the present cause. The rule
there laid down is "that the signature is to have the effect of
giving authenticity to the whole instrument," and in this instance
we hold it to be in its proper place for that purpose. If so, the
court there further observes "that it does not signify much in what
part of the instrument it is to be found."
It remains to examine whether the memorandum is sufficiently
full and explicit to admit of a decree for specific performance.
The words are, "By my purchase of your 1/2 E.B. wharf and premises,
this day, as agreed on between us, $7,578.63." Brief as it is, this
memorandum contains a condensed summary of all the
Page 26 U. S. 652
essentials to a complete contract. By the use of the present
tense, it speaks of a thing final and concluded. By reference to
the date at the head of the account, the use of the words "this
day" gives a date to the transaction. By the use of the pronouns
"your" and "us," the parties are distinctly introduced. By carrying
out the price, the consideration is expressed with absolute
precision, and by deducting it from the sum acknowledged due by
Barry, the receipt of the consideration is acknowledged; nor is
there a single ingredient of a complete contract deficient, unless
the description of the property contracted for be insufficient. If
that description be fatally ambiguous, it is certainly a sufficient
ground to refuse relief. The ambiguity here arises from the use of
the capital letters "E.B." in the description of the premises, and
if those letters stood alone and unconnected with anything that
could give them a definitive signification, there would be much
reason to doubt whether the defect would be curable. The words are,
"Your 1/2 E.B. wharf and premises," and it is argued that this is
one of those ambiguities, generally designated by the epithet
"patent," and as such admitting of no explanation from extrinsic
evidence.
Sir Francis Bacon, in his elements of common law,
Regula 23, is the author usually referred to on this
distribution of ambiguities into "patent" and "latent," the former
appearing on the face of the instrument and not to be removed by
extrinsic evidence, but only, in the language of the author, "to be
holpen by construction or election," the latter raised by reference
to extrinsic circumstances and remediable by the same means. It
would perhaps be a more convenient and certainly a more
intelligible distribution of the doctrine on this subject if the
cases were divided into positive, relative, and mixed, the positive
corresponding to the patent and the relative to the latent
ambiguities of the authors who treat of the subject. The mixed
would consist of those cases in which, although the ambiguity is
suggested on the face of the instrument, the face of the instrument
also suggests the medium by which the ambiguity may be removed.
The facts of this case will bring it either within the second or
third class -- within the second because, for anything that appears
on the face of the instrument, E.B. wharf may be as definitive a
description of locality as F Street, and then the ambiguity could
only arise if it be shown that the bargainor had more than one
house in F Street, like the two manors of Sale, put by several
authors.
Perhaps this case belongs more properly to the third class,
since the description suggests several circumstances of identity by
reference to which the premises in question are distinguishable
from all others -- first, it is a wharf; secondly, a wharf
Page 26 U. S. 653
the property of Barry; thirdly, a wharf of which he owns a
moiety, and connected with these descriptive circumstances, the
letters E.B. became in fact the initials of the name of a place;
and the case is analogous to that of a will in which the devisee is
designated as my son A., my nephew B.C., or my uncle D.E., in which
the circumstance of relationship will let in evidence to fill up
the names designated by the initials.
In fact the cases on this point have gone much further, and
without committing ourselves on the correctness of the following
two, it will be found by referring to them, such evidence has been
let in to supply names in cases where the identification was by no
means as circumstantial as the present.
In the case of
Price v. Page, 4 Ves.Jr. 68, the entire
Christian name was supplied on parol evidence without any initial,
Price the son of Price being the only designation. In the case of
Abbot v. Massie, 3 Ves.Jr., the devise was to A.G. and
Mrs. G., and evidence ordered to be received to identify the
legatees.
If ever extrinsic evidence may be admitted to carry out the
initials of a name, it is impossible that a case can occur to
furnish evidence more full or unexceptionable in its character than
the present. The bill alleges that the letters "E.B." mean Eastern
Branch, and the defendant not only admits in his answer that the
treaty had relation to his moiety of a wharf and premises on the
Eastern Branch of the Potomac, but voluntarily, although
altero
intentii, introduces a letter from himself to complainant in
which it is explicitly acknowledged. "Having agreed to sell you my
individual half-interest in the Eastern Branch wharf and premises,"
is his language in the letter. Besides which, the original deed is
spread upon the record, by which it appears that the defendant held
a moiety, as tenant in common with the plaintiff, of a wharf and
premises on the Eastern Branch of the Potomac river, which is well
known in common parlance as the Eastern Branch, without the
addition of "Potomac" or "River." We are therefore of opinion that
the ambiguity is fully removed, and legally, since it is by
reference to a medium of explanation suggested on the face of the
memorandum, and on evidence which, while it neither adds to,
detracts from, nor varies the note in writing, supplies every
exigency of the statute of frauds.
The only remaining question arises on the effects of Coombe's
letter of 26 March, 1822, which the defendant insists amounted to a
relinquishment of the contract of sale, and this appears to some of
the Court to present the greatest difficulty in the cause. For it
cannot be denied that the letter is not confined in its import to a
demand of a fulfillment of the contract. It does not intimate an
intention to enforce the contract
Page 26 U. S. 654
but, on the contrary, concludes with a declaration that if Barry
does not comply with this contract on his part, the complainant
will hold himself exonerated and will resort to his original money
contract as it stood prior to their entering into the contract for
the sale of the premises.
Nothing, therefore, but the equivocal conduct of Barry on the
receipt of that letter as proved in the deposition of Ingle
deprives him of the benefit of this defense. To have availed
himself of it, he should have adopted the alternative offered him,
and as the only unequivocal proof of it should have tendered to
Coombe the amount justly due to him after extracting that item from
the account. This he did not do, and it was too late after the bill
filed to claim the benefit of a right thus gone by -- at least
without paying unto Coombe the amount which would have been due to
Coombe upon a mutual relinquishment of the bargain.
As to the ground of misrepresentation and fraudulent
concealment, we have not thought it necessary to say more than that
there is not the least evidence to support the charge set up in the
answer.
Nor is it necessary to examine the case on the ground of part
performance, since this Court is fully satisfied on the sufficiency
of the memorandum in writing to sustain the decree so far as it
requires Barry to make title to the moiety of the wharf, lot, and
premises.
With regard to that part of the decree which relates to the
payment of the balance of the stated account, and perpetuates the
injunction not to remove certain property beyond the jurisdiction
of the court until that balance be paid, we are induced to consider
all objections to be waived.
Yet we mean not to express any doubts of its correctness, since
the defendant has no where put his defense upon the ground of the
remedy at law, but on the contrary, by his answer he impeaches the
conclusiveness of the stated account and raises an issue in equity,
upon the fairness and correctness of several items which, if
expunged, would leave a balance in his favor.
This defense he has failed to sustain by proof, and the court,
on that ground alone, independent of its connection with the
principal subject of the bill, might legally decree payment of the
stated balance and the means of enforcing payment.
Decree affirmed with costs and cause remitted for final
proceedings.
