Marcus v. Barnard
The Superior Court of New York City
This is an appeal from a judgment entered upon the report of a referee. On the 13th of May, 1864, the defendant signed and delivered to the plaintiffs a memorandum in writing, as follows: “ Sold Messrs. Marcus & Co. fifty hhls. whiting, (ground,) to he delivered in June, at 2 c. a lb. cask ; barrels 20 c. cash. May 13, 1864. L. Barnard.” Another memorandum was made on the 14th May, for the same quantity of whiting, at l-¡- cent per lb. signed by the defendant.
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This is an appeal from a judgment entered upon the report of a referee. On the 13th of May, 1864, the defendant signed and delivered to the plaintiffs a memorandum in writing, as follows: “ Sold Messrs. Marcus & Co. fifty hhls. whiting, (ground,) to he delivered in June, at 2 c. a lb. cask ; barrels 20 c. cash. May 13, 1864. L. Barnard.” Another memorandum was made on the 14th May, for the same quantity of whiting, at l-¡- cent per lb. signed by the defendant. It appeared, upon the trial, that the defendant wholly neglected to perform the agreement; that the plaintiffs were ready and willing…
1Opinion of the Court
By the Court,
Garvin, J.
As the buyers did not sign either contract, this case presents the question whether, under the third section of the statute of frauds, (2 R. S. 140,) such a note, or memorandum, as that signed by the defendant, is binding upon the seller, when not signed by the buyers, and no part of the property is accepted or received, and no part of the purchase money is paid. By the terms of the statute, the buyers cannot be charged thereby, for they have not subscribed it, and without them there is no second party to the contract. How, then, can it be said the seller is liable ?…
2Cases cited2 opinions
- Brabin v. . HydeNew York Court of Appeals · 1865
- Justice v. LangThe Superior Court of New York City · 1864