
    McWhorter and Baldwin vs. McMahan.
    An execution of a contract for the sale of real estate, owned by a partnership firm, by one partner in the partnership name, and so executed in the presence and with the approbation and consent of the other partner-, is a sufficient memorandum in writing to take it out of the statute of frauds.
    Such an execution would be sufficient to enable the vendee to enforce a specific performance thereof as against the partnership vendors, and is sufficient to enable the vendors to enforce it as against the vendee.
    Whether a specific performance of a contract for the sale of lands, signed by the defendant but not by the complainant, can be enforced, quere. The solution probably depends upon the circumstances of of each case.
    When there is a written contract for the sale of lands, containing a mere general description of the lands, and a deed is tendered in pursuance of such contract, describing the lands specifically, it should be proved that the lands described in the deed are the same lands contemplated by the contract; but if this is not made an objection in the pleadings, it may be referred to a master to whom the reference as to title is made, to take proofs as to the identity of the lands described in the contract and deed.
    This is a bill for the specific performance of a contract for the sale of lands, filed by the vendors against the purchaser. The complainants were partners in mercantile business, and tenants in common of the store and the appurtenances in which they transacted their business. On the 2d of February, 1839, they entered into a contract with the defendant of which the following is a copy.
    66 In consideration of two thousand seven hundred “ and fifty dollars, to be paid to us as herein after “ mentioned, we hereby agree to sell to James “ McMahan the brick store which we now occupy, “ together with the lot in the rear or lane, subject to «c such restrictions as are mentioned in a certain 44 writing passed between Joshua R. Babcock, John 44 McWhorter, Norman Kibbee, Aaron Rumsey and 46 others, in reference to keeping open a lane, as 44 therein mentioned ; the said store being fifty-six 44 feet in front and rear, and extending to the centre 46 of the wall on each of the sides respectively, and 44 to be paid for as follows, viz. one third of the 44 whole amount on the first day of May next, and 44 the other two thirds in three equal annual pay-44 ments, with the annual interest, and payable on 44 the first day of May, 1840, 1841, 1843. A deed 44 to be executed by the selling party, within four 46 days, and the said McMahan" to give his bond and 44 mortgage for the residue as above mentioned. 44 The selling party to give possession Immediately 44 or pay rent at the rate of $335 per annum until 44 the 1st of May next.
    McWhorter & Baldwin,
    James McMahan.
    February 3, 1839.
    The signature of the complainants to such contract was made by Baldwin. On the 6th February, 1839, the complainants, with their wives, executed a deed to the defendant, of the premises, fully described, alleged by them to be the same premises mentioned in the contract, and prepared a bond and mortgage for execution by the defendant, and sent such papers to the defendant by a commissioner of deeds. The defendant on that day was too unwell to attend to business, and by his consent all the papers were left with him. On the 11th of February, the defendant acknowledged the mortgage and executed the bond before the commissioner, but retained them both in his 'own possession. Only one copy of the contract was made, and that was retained by the complainants, who, however, sent the defendant a copy of it soon after by their clerk. The complainants gave notice to the defendant, that they would rent the store until May 1, 1839, at the rate of $>225 per annum. On the 1st May, the defendant was absent on a journey, and on that day the complainants sent to the defendant’s house, and offered to his son-in-law the amount of rent,, with the keys of the store, and ""notice that the complainants surrendered the premises to the defendant.
    
      C. H. S. Williams, for complainants.
    
      A. Dixon, for defendant.
   The Vice Chancellor.

The first objection made by the defendant is, that there is not a sufficient execution of the -contract on the part of the complainants within the statute of frauds. The complainants were tenants in common of the premises, and to make a contract on their part binding and valid within the statute, some note or memorandum of it in writing, executed by both the complainants, or their authorised agents, must be shewn. In this case, the contract produced is only signed by one of the complainants, using the name of both. The fact that the complainants were mercantile partners, 'and that the name of the partnership was used in the signature to this instrument cannot of course aid the complainants. Though they were mercantile partners, and owned the store together, that circumstance did not of itself confer upon one partner the right of making an agreement for the sale of real estate in the partnership name, which should be binding upon the other partner. As to this real estate they were simply tenants in common. The partnership name is of no further use in the contract than as simply a descriptio persona or identification of the vendors.

The- knowledge which we have of the circumstances under .which the contract was executed, is derived from the testimony of one of the complainants witnesses. This witness was present at the store of the complainants, with both of the complainants and the defendant. A conversation was had between them in relation to the sale and purchase of the store. After some conversation, the parties in this cause, all three of them went together into the counting room, where the witness could hear them converse, but could not distinctly hear what was said. They came again into the store room with the contract executed as it now appears; and the defendant, soon after, was taken by the complainant, McWhorter, into the chambers and cellar of the store, to shew them to the defendant. The statute in relation to contracts for the sale of land, provides that66 every contract for the sale of any ££ lands, or any interest in lands, 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 sale is to $£ be made,” and further, that 66 every instrument re-66 quired to be subscribed by any party” (as above) ££ may be subscribed by the agent of such party law- <£ fully authorised.” 2 Rev. Stat. old ed. page 135, Sec. 8, 9. Now under the testimony of the witness before referred to, it is hardly possible to come to any other reasonable conclusion, than that both of the complainants were together with the defendant in the counting’ room, during the whole time of their absence from the store. During that time, also, the writing must have been drawn and signed. It is also the reasonable, and almost irresistible inference, that it must have been signed by Baldwin, in the presence of, and with the consent of his co-tenant, McWhorter.

As long as the courts hold, as they have uniformly done, that a memorandum made by an auctioneer, is a sufficient memorandum in writing, under the statute,! should a fortiori, deem the signature sufficient. (See Clason vs. Bailey in error, 14 Johns’. Rep. 484, and the cases there cited by Chancellor Kent.) If the auctioneer can thus, by the mere bid, be deemed the authorised agent to make the necessary memorandum in writing, certainly in this case, when the party must be presumed to stand by and direct another to sign his name, the authority must be deemed to be sufficient. In other words under the circumstances of this case, Balwin must be held to be the lawfully authorised agent to affix McWhorter’s name to the contract. The whole conversation was in relation to their common property; both parties were present during’ the whole time—during the drawing and signing of the papers ; and McWhorter, who did not actually sign with his own hand, immediately after the contract was signed, took pains to show the defendant the chambers and cellar of the store he had just then contracted to purchase. All this is controlling with me, to lead me to the conclusion that McWhorter’s name was signed to the contract by Baldwin, by the direction, and with the consent of McWhorter. This is sufficient to take it out of the statute, and to obviate this objection made . . , P , by the defendant.

It is quite apparent to me, that under the testimony, there is a sufficient contract in writing on the part of both the complainants to entitle the defendant to a specific performance as against the complainants, if he should choose to claim advantage of the contract so executed. This gives to the contract that mutuality which the defendant contends it wants, and makes under my construction, both parties reciprocally liable.

Having.come to this conclusion, it is unnecessary to consider another question which the case presents, viz. that the contract having been in writing, and signed by the defendant, it can be enforced as against him whether it is signed by the complainants or not. Upon this point there are various and, perhaps upon principle, somewhat conflicting authorities, see 14 Johns’. Rep. 484 ; 3 Johns’. Cases, 60 ; 2 Caines, 117 ; 2 Bos. and Pull. 238 ; 4 Bos. and Pull. 252: 6 East, 307 ; 3 Taunton, 169 ; 1 Eq. case abridged, 21 ; 1 Vesey, 82 ; 7 Vesey, 275 ; 9 Vesey, 351 ; 1 Sch. and Lef. 13 . 11 Vesey, 592 ; 3 Vesey and Beames, 192 ; 2 Ball and Beatty, 370 ; 2 Dess. 172 ; 5 Day, 67 ; 2 Hoveden on Fraud, 8, 9 ; 2 Jac. and Walk. 428 ; but upon examining these and other authorities, I am convinced that an agreement drawn as this is, would not be binding unless signed by both parties to it, at least not upon the defendant, unless it was signed by the complainants as well as the defendant.

Specific performance of contracts in relation to the sale of lands, is a fruitful head of equity jurisdiction. In all cases the party claiming the performanee must present a case fair, just and reasonable ; the contract to be performed must be mutual, upon a^ecluate consideration, free from fraud, misrepresentation or surprise; and it must not be had unconscionable or unequal. The relief is always in the discretion of the court, but this discretion is a sound legal discretion. A hard or unconscionable bargain the court will not interfere with, but leave the parties to their remedy at law. 3 Cowen, 445. Contracts are not specifically enforced at the instance of the vendor, as readily as at the instance of the vendee; as when applied for by the vendor he can be better compensated in damages than the vendee, who may desire to acquire a particular estate.

• Still, when the bargain is fair, mutual, and free from fraud, it is every day’s practice to decree a specific performance in favor of the vendor. In any case the party who applies to compel a specific performance, must show that he has performed on his part, or that he has been able and willing and still is ready to perform. 1 McCord Ch. 39.

In this case the complainants executed a deed within the time, and sent it to the defendant, who retained it. The defendant, however, insists that there is no evidence that he has refused to perform.

The proof is that the complainants executed a deed, and that it was delivered to the defendant—that the defendant subsequently executed a bond and' mortgage, but retained them in his own possession. There is no farther proof; and from aught that appears from the testimony, the defendant has both the deed and •bond and mortgage now in his own possession. The complainants could not be called upon to prove a negative, viz. that the defendant did not pay and did not deliver the bond and mortgage, and the defendant , , r i i • tt has chosen to offer no proof upon the subject. Inder this state of the proof I am warranted in coming to the conclusion that the defendant has refused to comply with his contract.

Upon another point presented by the case, however, I have more doubt. The contract is general in its terms, as to the description of the property, while the deed is specific in description of the property; and the complainants have offered no proof that the property conveyed by the' deed, is the same as that contemplated by the contract. It may well happen that all the parties, living in the same village, may know the specific property contemplated to be conveyed, from the general description of it in the contract ; and as to them, the contract may have been sufficiently definite. They would also know whether the deed executed by the complainants, conveyed the same property contemplated to be conveyed; but it would have been more prudent, at least, to satisfy the court by testimony, that such was the fact.

This is the more important, as the premises mentioned in the contract are described in that instrument to be “ fifty-six feet in front and rear, and extending to the centre of the walls on each of the sides of the store respectively.55 This would ordinarily, but perhaps not necessarily, convey the idea that the store was fifty-six feet wide, whereas the deed conveys a store only nineteen feet wide. There is an ambiguity of expression in the contract, which the parties, being upon the spot, may have perfectly well understood, but which the court cannot, without the intervention of testimony. But this objection can be remedied. There is a suggestion that the premises are incumbered, and it must therefore be referred to a master to report upon the title; and the master can jn ^ same reference take proof as to the identity of the property described in the contract and the deed.

The order must be that the contract be specifically executed by the defendant, in case the complainants can give a good title, and for a reference to a master pursuant to the above suggestions. All farther questions to be reserved until the coming in of the master’s report.  