
    ISAAC E. WRIGHT, Appellant, v. HERMAN MISCHO, Respondent.
    
      Purchase of land—binding contract to purchase—delivery of memorandum sufficient to satisfy statute of frauds, and payment of a sum of money not necessarily sufficient.
    
    After some negotiation as to the purchase and sale of certain specified property owned by the plaintiff, the following took place at defendant’s store, as testified to by plaintiff: Defendant said he would give for the property $24,000, and $500 in furs. Plaintiff said, “ It is yours, I will draw you a contract, a receipt, and you pay me some money.” Defend'ant said, “ Very well, I have not much money in the safe.” Plaintiff said, “ $50 will do.” Defendant instructed his book-keeper to give plaintiff $50, and “ to draw a receipt.” The book-keeper said to plaintiff “You had better draw the receipt yourself.” Plaintiff then drew the receipt. The document drawn constituted a sufficient memorandum of sale under the statute of frauds, was signed by plaintiff, who received the $50, and left the document with the defendant. It was understood at the interview that plaintiff was to have a formal contract drawn the next day, and defendant was to call at his office and pay $950 additional. The next day, as also testified to by plaintiff, defendant called at plaintiff’s office, and the formal contract (which had been prepared in duplicate) was read over to him, he said “ ‘ they are apparently all correct, I do not see anything there but what I agree to, . . but I never sign any papers without my attorney seeing them.’ I said ‘ I want this money to-day.’ He said, ‘ You sign this contract and leave it here with Mr. Knapp, and if my attorney does not come from Brooklyn, I will show it to another attorney and be here in time for banking hours with the check for $950.’ I then signed the contract and left it with my check as suggested.” Defendant as a witness on his own behalf, and the only one, gave a materally different version of the two interviews.
    
      Held, that the complaint was properly dismissed, and that the motion for a new trial which had been made on the minutes was properly denied.
    Before Sedgwick, Oh. J., Freedman and Truax, JJ.
    
      Decided June 1, 1885.
    Appeal by the plaintiff from a judgment dismissing his complaint, and from an order denying his motion for a new trial.
    The cause was tried before O’Gorman, J., and a jury. At the close of the testimony on both sides, the court, on motion of defendant’s counsel, dismissed the complaint. The plaintiff then moved for a new trial on the minutes, which, after argument, was denied, O’Gorman, J., writing as follows :
    
      “ The action is brought for the recovery of $4,000 as damages resulting from the breach, by the defendant, of a contract alleged to have been made by him in March, 1883, to purchase from the plaintiff certain real property in this city.
    “ The burden of proving this contract, by a preponderance of evidence, was on the plaintiff. The plaintiff testified, that after some preliminary negotiation between him and the defendant, an interview took place on or about March 21, 1883, at the store of defendant, who deals in furs. Defendant said he would give plaintiff for the property $24,000, and $500 in furs, to which plaintiff answered, ‘ The property is yours.’ Defendant said, ‘I want to know that for sure, because if I don’t get this property, I want other property I am looking at.’ Plaintiff said, £ It is yours. I will draw you a contract, a receipt, and you pay me some money.’ He (defendant) says, ‘Very well, I have not much money in the safe.’ I said, ‘all right, $50 will do.’ Defendant then, instructed his book-keeper to give me (plaintiff) fifty dollars, and to draw a receipt. The book-keeper commenced drawing the receipt, and turned to me (plaintiff) and said, ‘Mr. Wright, you know more about this property than I do ; you know the location of it; you better draw the receipt yourself then I took the pen and drew a receipt; This document was thereupon signed by the plaintiff, and left with the defendant, and plaintiff received the fifty dollars in bills. It was not produced at the trial by the defendant, who stated that it was lost, and plaintiff testified as to its contents, using, to refresh his memory, a copy which he made of the document a few days after it had been signed by him. The following is a copy: ‘ Hew York, March 21, 1883. Received from Herman Mischo, the sum of $50 on account of purchase of property, known as 411 and 413 East 115th street, for the sum of $24,500, as follows : subject to $16,000, now a lien on said property, $8,000 in cash, and $500 in furs. The property to be free and clear of all incumbrances except as above mentioned. Deed to be given on April 2, 1883.’ This paper, as the plaintiff testified, was read over to the defendant. This, however, defendant denies. Plaintiff, continuing his testimony further, said : ‘ I was to have a contract drawn next morning, and Mr. Mischo was to call at my office and pay $950 additional. I read the contract over to him.’ He says, ‘Mr. Wright, they are apparently all correct, I do not see anything there but what I agree to, but I have always done business in such a way that I never sign any papers without my attorney seeing them.’ I said to him, ‘I want the money to-day.’ He said, ‘ You sign this contract and leave it here with Mr. Knapp (plaintiff’s clerk), and before three o’clock, if my attorney does not come from Brooklyn, I will show it to another attorney, and be here in time for banking hours with the check for $950.’ The contract was thereupon signed by plaintiff and left with the clerk. Defendant did not return that day, and wrote a letter to plaintiff, declining to proceed further in the transaction. -This letter was answered on the part of the plaintiff, stating that defendant had bought the property and had plaintiff’s receipt, which debarred plaintiff from .selling it to any one else, whereupon defendant again wrote to plaintiff, inclosing plaintiff’s signature, which had been cut from the receipt. Plaintiff thereupon took steps to sell the property by private sale, and, failing in that, sold it at auction on May 12, 1883, for $20,500, $4,000 less than the price at which he claims that it was purchased from him by defendant. Plaintiff testified that the market value of the property in April, 1883, was about $20,500 or $21,000.
    “These are, I think, the material facts, as testified to by the plaintiff.
    “The question to be considered, is whether or no the transaction, as thus described by him, constituted a contract by the defendant to purchase the property and take a deed for it and pay for it, according to the terms, as set forth in the receipt drawn up by the plaintiff and given by him to defendant. Did the delivery by plaintiff to the defendant of the receipt, and its acceptance by the defendant, coupled with the delivery by the defendant to the plaintiff of fifty dollars, as stated by the plaintiff, considered in the light of all the attendant circumstances, constitute, or supply sufficient evidence of a contract on the part of defendant to purchase the plaintiff’s property, under the provisions of the statute of frauds as now in force in this state ?
    “ The section of the act bearing on this subject is as follows : ‘ Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest inlands, shall be void, unless the contract or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the lease or sale is to be made.3
    “ This receipt sets forth, I think, with sufficient accuracy, the description of the property, the price, and the terms of sale, to constitute ‘a note or memorandum of sale,3 by the plaintiff under that section. But that is not the question here. The question is, did the whole transaction constitute a contract on the part of the defendant to buy ? The section above set forth, does not require that the contract to purchase land should be in writing. But, nevertheless, a contract on the part of the purchaser is necessary to establish any obligation against him, and the burden is on the plaintiff to prove that such a contract was made.
    “ The plaintiff’s claim here is, that the acceptance by the defendant of the receipt, drawn up by the plaintiff, and payment by the defendant of fifty dollars, constitute a contract on his part, or are evidence of a contract. From a dictum in the opinion of the court of appeals, in Oagger v. Lansing (43 N. Y. 550), it may be inferred, that the court held it to be law, that the delivery by the vendor to the purchaser of a written contract for sale of land, subscribed by the vendor alone, and its acceptance by the purchaser, would constitute a contract on the part of the latter to purchase, if it were accepted by him as a valid subsisting contract. But if not so accepted, that it would not be binding on him.
    “Did defendant here accept this receipt as ‘a valid subsisting contract3 by the vendor to sell him this property ? The burden of proving that he did so accept it, was on the plaintiff.
    
      “ The question can be answered only by considering the circumstances of the whole transaction in defendant’s store, and also what occurred at the interview in plaintiff’s office next day. The payment of money on account of a purchase of land is held not to be, of itself, evidence of a contract to purchase the land (Oagger v. Lansing, supra; Baldwin v. Palmer, 10 N. Y. 232).
    1 ‘ In Raubitchek v. Blank (80 N. Y. 478), an action was brought for payment of a check, valid on its face. The defendant pleaded want of consideration, and the burden of proof was on him. ' It appeared that the check was given as part payment, on a verbal agreement for the sale of land ; that a receipt signed by the vendor was given to the purchaser, which receipt contained enough to constitute a note or memorandum under the statute of frauds. It was held, that the defendant failed to show that there was not good consideration for the check ; that the receipt amounted to a contract of sale, sufficient to satisfy the statute of frauds, and was binding on the vendor ; that the transaction bound the purchaser also, on the ground that the receipt and the check formed one contract, the mutual relations of these several writings appearing on their face. This case has been referred to in the argument, but is not in point with the case at bar, for the burden of proof there was on the defendant to prove that no valid contract existed on the part of the vendor to sell the property, whereas, in the case at bar, the burden is on the plaintiff to prove that there was a valid contract on the part of the defendant to buy ; and it is worthy of note that only three members of the court of appeals concurred in the decision in that case.
    “The question then in the case at bar, is whether there was evidence enough to go to the jury, that defendant understood the receipt to be, or that it was intended by plaintiff to be a valid and subsisting contract for the sale of the land, and that defendant accepted it as such. There is no evidence that he did so. At the interview in his store, defendant directed his book-keeper to draw a receipt. The book-keeper requested plaintiff to draw the receipt himself. The document was in form a receipt, and in the interview and conversation between plaintiff and defendant it was called a receipt.
    “The agreement then made between plaintiff and defendant, that they were to execute a contract in counterpart the morning after that interview, does not favor the conclusion that defendant understood that a valid and subsisting contract, binding plaintiff, had been made, or was intended to be made by plaintiff, and that the defendant was bound, as a purchaser, by reason of the delivery to, and acceptance by him of a contract. If defendant believed, and had reason to believe, that the paper then signed by plaintiff, and delivered to him, was a receipt, and nothing more, there was no valid or binding contract between them. A strong preponderance of evidence is that he did so believe.
    <CI have considered this question, so far, by the light only of the evidence in its aspect most favorable to the plaintiff, and I find therein no proofs of any valid contract on the part of the defendant to purchase this property.
    “ At the trial of the action, all evidence on both sides was received that was believed to be material and relevant to a full understanding of the whole transaction; and taking the evidence in the case altogether, I think that there is not only a failure of necessary proof by the plaintiff, but a preponderance of evidence in favor of the defendant. His conduct may have been unbusinesslike, vacillating, and on various grounds open to serious objection, but I see no evidence in the case that would have warranted a jury in finding that he had violated a contract by reason of which plaintiff was entitled to claim damages against him.
    
      “ The motion for a new trial is denied, but without costs.”
    
      E. H. Moeran, and Alfred Pagelow, for appellant, argued:
    I. The receipt embracing the memorandum of the contract signed by the vendor, and delivered to and accepted by the vendee, constituted a contract for the sale and purchase of real estate, valid within the statute of frauds, and binding on both (Tallman v. Franklin, 14 N. 
      
      Y. 585 ; Champlin v. Parrish, 11 Paige, 409 ; Cales v. Bowne, 10 Paige, 537; Bleecker v. Franklin, 2 E. D. S. 93 ; The National Fire Ins. Co. v. Loomis, 11 Paige, 433). Bicknell v. Byrnes (23 How. 486), holds, that in sales of mortgaged premises under a decree, it is not essential to the validity of a sale that the purchaser sign the memorandum of the sale. It is enough if signed by the officer making it.
    The opinion in Müller v. Maxwell (2 Bosw. 359), by Slosson, J., contains a reference to the case of Bleecker v. Franklin {supra), and affirms its doctrine. The opinion of Daniels, J., in Burrell v. Root (40 N. Y. 502), is clearly in point, and though a dissenting opinion, it is not in conflict with the prevailing opinion, for the reason that the contract in that case was sustained as a contract to purchase, and it was held binding as such, thoúgh there was no mutuality, on the ground that it was made for an implied consideration (being under seal). Daniels, J., however, treats the matter as a contract to sell, and finds it not binding because not subscribed by the vendor. He holds the letter of the vendor, exercising the option he had, an insufficient memorandum, though signed by him and sent to and received by the vendee, for the reason that the referee found the above and that only,, and did not find that it was received and accepted by him as the memorandum which would have been sufficient to hold him had such been-the fact. See also Raubitschek v. Blank (80 N. Y. 493), which was an exchange of lands— and both parties were vendors with respect to their own lands—and therefore a signing, by both parties was necessary, and on that ground only. See also Justice v. Lang (30 How. 439); Caggar v. Lansing (43 N. Y. 550).
    II. The memorandum fully contained all the terms of the contract, and was sufficient in that respect under the statute (Westervelt v. Matheson, 1 Hoff. Ch. 37 ; Cosack v. Descomdres, 1 McCord, 425 ; Hurley v. Brown, 98 Mass. 545 ; 1 Dart on Vendors & Purchasers, 98 ; citing Blagden v. Breabear, 12 Ves. 466; Coles v. Precothick, 9 Ib. 234 ; Tallman v. Franklin, supra,).
    
    III. A final contract to sell and purchase, complete in all its parts, and evidenced as required by the statute of frauds, was fully established. And this, notwithstanding that “a more formal agreement was to be drawn and signed the next day.” The English courts have many times considered the questions arising under this head, and the doctrine established by these adjudications is substantially that an acceptance of an offer to sell, the terms and property being sufficiently defined in the offer, and a memorandum sufficient to satisfy the statute of frauds being signed by the vendor, will constitute a final agreement to purchase, binding on the vendee ; although the parties may have declared that the writing is to serve only as instructions for a formal agreement, or, although it may be an express term that a formal agreement shall be prepared and signed by the parties (Fowle v. Freeman, 9 Ves. 351; Thomas v. Bering, 1 Keene, 729 ; Ridgeway v. Wharton, 6 H. L. C. 264; Chinnock v. Marchioness of Ely, 4 De G. J. & S. 633 ; Crossley v. Maycock, L. R. 18 Eq. 181; Rossiter v. Miller, 3 L. R. App. Cases, 1124; Opinion of Fry, J., Bonnewell v. Jenkins, 8 L. R. Ch. Div. 70 ; Brogden v. Metropolitan Railway, 20 English Rep. 176 ; Moak’s Notes, pp. 199 to 203 ; Lewis v. Brass, 28 Ib. 528 ; Bonnewell v. Jenkins, 25 Ib. 128 ; Moak’s Notes, 131; Byrne v. Van Tienhoven, 30 Ib. 833 ; Moak’s Notes, 839 ; Bell v. Offert, 10 Bush [Ky.] 632).
    It is only in cases where the concluded nature of the agreement does not evidently appear on the writings, or cannot be fairly inferred therefrom, that the fact that a subsequent and more formal contract was intended to be entered into,' will ■ be strong evidence that the previous negotiations and writings were not intended to amount to a contract (Ridgeway v. Wharton ; Chinnock v. Marchioness of Ely, supra).
    
    IV. The intention of the vendee to accept the memorandum as a binding contract, if material at all, was a question for the jury. The intention of a party is rarely, if ever, to be determined as a question of law. All the facts and circumstances of the case are to be given to the jury, and the fact is to be determined by them (Lewis v. Brass, supra).
    
    
      Julius Klampke, attorney, and Peter Mitchell, of counsel for respondent, made the following points:
    I. No contract was established which could bind the defendant. It is submitted, the essential elements which the law requires to constitute a contract are here wanting. There was no agreement or concurrence of the minds of the parties. Nor did the receipt, even if delivered' to defendant, bind him as his contract. Its terms and conditions were not known to him ; nor did he consider it in any other light than that of a mere receipt. And all through this controversy, and in his letter of March 23d to' defendant, plaintiff characterizes and alludes to this paper as a receipt. There is nothing whatever in the defendant’s conduct or actions to charge him with any' knowledge of having entered into, or being bound by any contract. In fact, his whole conduct negatives such a presumption. The law is well settled that there can be no contract unless the parties thereto assent to the same thing in the same sense (Ballard v. Trow’s Printing, &c. Co., 7 Wash. L. R. 590). Where there is any variance between the terms of the proposal and those of the acceptance, no contract arises (Fry Spec. Perf. 139, § 170). Again, if the plaintiff believed, or intended, that the receipt should constitute a contract, why trouble himself about the preparation and execution of another contract the next day ?
    II. The signing of the receipt by plaintiff is not a sufficient compliance with the statute of frauds. The receipt does not contain all the elements of a “ note or memorandum of sale” which the statute contemplates. Among other defects, the property mentioned in it is not described with the necessary particularity as to dimensions and location, which would give a purchaser the right to enforce specific performance as against the vendor (Calkins v. Falk, 39 Barb. 620 ; Lawson v. Mead, H. & D. Supp. 158). The fact of the defendant having given the plaintiff $50, and getting receipt therefor, does not constitute an acceptance on his part of the contract sought to be enforced by plaintiff. There is no proof showing that the defendant accepted the receipt as a contract, or that he knew the nature of its contents, or considered it anything more than a mere receipt. And admitting that the $50 was on account of purchase price, that of itself would not be evidence of a contract to purchase the property (Baldwin v. Palmer, 10 N. Y. 232; Cagger v. Lansing, 43 N. Y. 553; Fry Spec. Perf. 260, § 403). The case of Raubitschek v. Blank (80 N. Y. 482), referred to by the learned judge in his opinion, is not parallel with this case, nor applicable. The parties seeking to enforce their rights in each, occupied different relations, and the check given as part payment in that case, was construed with the receipt and held to form one contract with it; while in the case at bar, the money given was paid in bills, and was not intended to form any part of the purchase money (Foot v. Webb, 59 Barb. 38 ; Buckmaster v. Thompson, 35 N. Y. 558).
   Per Curiam.

The judgment" and order should be affirmed, with costs, upon the opinion delivered by the learned judge below on denying plaintiffs’ motion for a new trial.  