
    Lyman T. Thayer v. Charles L. Luce and John W. Fuller.
    Several 'writings, though made at different times, may be construed together, for the purpose of ascertaining the terms of a contract required, by the statute of frauds, to be in. writing and signed by the party to be charged therewith.
    If some only of such writings he so signed, reference must be specifically made therein to those which are not so signed ,• but if each of the writings be so signed, such reference to the others need not he made, if, by inspection and comparison, it appear that they severally relate to or form part of the same transaction.
    An instrument of writing in the usual form of a deed of conveyance, but not delivered as such, may nevertheless be delivered as an executory contract, or as partial evidence of a contract to sell and convey the lands therein described; and if signed and so delivered by t he vendor, and accepted by the vendee, it is sufficient, in an action thereon, against the vendor, to take the case out of the operation of the statute of frauds.
    On the trial of an issue under the statute of frauds, the assent of the plaintiff to the terms of the contract may be shown by parol testimony.
    If the contract was made by the agent of the plaintiff in such a case, the agency may be established by parol testimony, notwithstanding the ■agent may have contracted in his own name, without disclosing his agency or the name of his principal in the transaction.
    .If, on the trial of a cause, incompetent testimony be admitted with the consent of a party, but subject to his objection, and no motion be afterward made to rule out such testimony, its admission will not constitute a ground for the reversal of the judgment.
    The admission of incompetent testimony for the successful party, though excepted to at the time by the adverse party, does not necessarily entitle the latter to a reversal of the judgment. If the whole testimony in such case be placed on the record, and it appear to the reviewing court that the rejection of the incompetent testimony could not have changed the result of the trial, the error can not be considered as prejudicial to the party excepting.
    Error to the District Court of Lucas county.
    The facts of this case, material to the questions decided, are stated in the opinion of the court.
    
      Pratt § Starr, for plaintiff in error:
    The plaintiffs’ right of action, if any they hare, must be founded upon a contract in writing good under the statute, or upon a verb ail contract with such part performance as will take it out of the statute.
    
    Was there an agreement, or any memorandum or note of an agreement in writing, for the sale of the lands in question, signed by Thayer, and upon which an action for specific performance could be maintained against him by said Luce and Fuller?
    We .make the following points: '
    1. An agreement for the sale of lands, to be good under the statute, must' be in writing, signed by the party to be charged, or by some person thereunto by him lawfully authorized, and must contain in itself all the essential and necessary terms of the contract.
    
      2. One of the essential parts of every such agreement i» a description of the property sold.
    3. Where the writing fails to state all that is necessary to make a contract, it can not be helped out by parol — the contract can not be partly in parol and partly in writing.
    
    
      4. A contract may be contained in two or more papers,, but in such case the papers must themselves ref er to each other; and if they do not, parol testimony can not be given to connect them, or to show that they are part of one transaction.
    
    We cite first the case of Parkhurst v. Van Cortlandt, 1 Johns. Ch. 274, and quote from the head note as follows;-
    “A memorandum in writing for the sale of lands, to be valid within the 'statute of frauds, must not only be signed by the party to be charged, but must contain the essential terms of the contract, expressed with such clearness and certainty that they may be understood from the writing itself, or some other paper to which it refers, without the necessity of resorting to parol proof.”
    
    The opinion in this case is characterized by all that comprehensive and exhaustive discussion of the law for which the opinions of the distinguished chancellor are so celebrated. On page 279, he says, referring to the memorandum before him in that case, “ The memorandum appears to be utterly defective. It ought to have stated the terms-of the contract with reasonable certainty, so that the substance of it could be made to appear, and be understood from the writing itself, without recourse to parol proof. This-is the meaning of the statute, and without such the beneficial ends of it would be entirely defeated.”
    Again, on' page 281, after citing a number of cases, the ■ chancellor says, “I am warranted in considering it as a settled principle, that if the court can not ascertain with reasonable certainty the terms of the agreement from the writing, or from' some other paper to which it refers, the writing does not take the case out of the statute. It appears to be equally well settled that when the agreement is thus defective it can not be supplied by parol proof, for that would at once open the door to perjury, and introduce all the mischiefswhich the statute of frauds and perjury was intended to prevent.”
    In the course of his opinion, the chancellor refers to the case of Brodie v. St. Paul, 1 Ves. Jr. 326, which he regards as very conclusive “ as far as authority might be-wanting in support of a principle so very clear and expedient, and which appears to have been uniformly admitted by the courts.”
    In Brodie v. St. Paul, Justice Buller takes the position that in no ease will equity decree the performance of a contract, not so certain as. to sustain an action at law, an opinion cited and approved by Justice Story (2 Story’s Eq. Jur. 728), and made the basis of many decisions since made by the English and American courts.
    This case of Brodie v. St. Paul is repeatedly cited and. approved in subsequent decisions in the English courts, as well as in the American, and its authority has never been ' questioned in any court so far as we have discovered.
    
      Rose v. Conynghame, 11 Ves. 551; Higginson v. Clowes, 15 Ves. 516; Blagden v. Bradlea, 12 Ves. 446; Clinan v. Cooke,. 1 Sch. & Lef. 22; Lindsay v. Lynch, 2 Sch. & Lef. 7.
    Equally conclusive are the American authorities in support of the positions taken.
    
      Abeel v. Radclif, 13 Johns. 297. In the head note, and also in the opinion of the court in this case, we find this-language: “Every agreement which is required to be in writing by the statute of frauds must be certain in itself, or capable of being made so by reference to something else,, whereby the term can be ascertained with reasonable precision, otherwise it can not be carried into effect.”
    Browne on the Statute of Frauds, chap. 18, sec. 371, in speaking of the contents of the memorandum, says, “ Upon this the general rule is, that it must contain the essential terms of the contract, expressed with such degree of .certainty, that it may be understood without recourse to parol evidence, to show the intention of the parties.”
    In 2 Kent’s Commentaries, 511, it is laid down that “ the contract must, however, be stated with reasonable certainty, so that it can be understood from the writing itself, without having recourse to parol proof. Unless the essential terms of the sale can be ascertained from the writing itself, or by reference in it to something else, the writing is not a compliance with the statute, and if the agreement be thus defective, it can not be supplied by parol proof, for that would at once introduce all the mischief which the statute of frauds and perjuries was intended to prevent.”
    In Osborn v. Phelps, 19 Conn. 63, Waite, J., says: “Had the writing signed by Osborn (the party who was sought to be charged) referred to the one executed by the plaintiff) as containing, in whole or in part, the agreement, the case would be different. The two instruments might then be treated as one. The case of Clinan v. Cooke, already cited, is directly in point. There it was held that the omission in the agreement could not be supplied by the advertisement, because the former contained no reference to the latter. The same principle governs the present case.”
    We also cite State of Ohio v. Heirs of M. Baum, 6 Ohio, 387; Anderson v. Harold, 10 Ohio, 399.
    We do not suppose it necessary to present authorities to support the position that in an agreement for the sale of land, it is necessary to describe the property. If it were a question of sufficiency of description, authorities might be ■examined to ascertain the degree of certainty required, but here is no description whatever, except it can be reached through parol testimony. '
    II. Was there a verbal contract between these parties for the sale of this land, and has there been such part performance ■of this contract as to take it out of the statute, and enable the plaintiffs to obtain a decree for the specific performance of •such parts of the contract as remain unperformed?
    This doctrine of part performance is applied to verbal ■contracts, not written ones. A defective written agreement is not made good under the statute, but a verbal contract is Taken hold of and enforced notwithstanding the statute of frauds.
    
    
      la Browne on the Statute of Frauds, we find (sec. 447) it is said this class of cases “ consists of those where one party has done certain acts in part execution and upon the faith of the contract with the knowledge of the other,” and in section 448, that the mere circumstance of part performance gives no right to compel performance of that which has not been carried out, and that it is only “ where an agreement has been so far executed by one party with the tacit encouragement and relying upon his fulfillment of it, that for the latter to repudiate it and shelter himself under the statute, would amount to a fraud on the former, that fraud will be defeated by compelling him to carry out the agreement.”
    And in section 453, it is said, “ Again, the acts of part performance relied upon by the plaintiff must be acts done by himself.”
    Thayer might make and destroy as many deeds as he saw fit, so long as he did not deliver, and it would not be a matter with which Luce and Fuller would have any concern.
    The only possible effect of such an act would be as an admission that there was a contract of some kind for such a conveyance, but to quote Mr. Browne again, in section 453, where he is himself quoting from the court in Buckmaster v. Harrop, 7 Ves. 341, the court does “not profess to execute a verbal agreement merely because it was satisfactorily proved.”
    But could the making the notes and mortgage by Luce and Fuller act as part performance ? That would have been no more certainly than paying the purchase money, and as long ago as 1834 it was distinctly settled in Ohio, that payment of the consideration money does not take a case out of the statute. Sites v. Keller & Skinner, 6 Ohio, 483.
    There are other Ohio cases where the question of part performance of parol contracts has been passed upon. The following are some of them: Armstrong v. Kattenhorn, 11 Ohio, 265; Kelly and others v. Stanbery et al., 13 Ohio, 408; Minns v. Morse et al., 15 Ohio, 568; Crawford and Murray v. Wick, 18 Ohio St. 190.
    
      
      W. Baker, for defendants in error:
    As early as the case of Welford, v. Beazely, 3 Atk. 503, the question was raised whether a strict and literal compliance with the requirements of the statute of frauds was necessary to the validity of a contract relating to the sale of lands, and it was held that a liberal construction was to< be given to the statute, and that where an agreement had been reduced to a certainty, and the substance of the statute complied with in the material part, the forms were not to be insisted upon. And such has been the prevailing doctrine.
    1. The agreement need not be all in one paper. It may be contained in letters, even to third persons, with which the grantee has no privity; it may be instructions by the vendor to his solicitor, from which he is to draw up the papers in form. It need not be subscribed by the party at the end, but the words at the beginning, “I, A. B.,” agree, etc., are held to be enough. Ogilvie v. Foljambe, 2 P. Wms. 65; 1 Vernon, 110; 3 Mer. 53; Anderson v. Harold, 10 Ohio, 399.
    In the leading case of Fowle v. Freeman, 9 Ves. Jr. 351, the defendant made an informal memorandum, signed it,, and sent it to his solicitor, desiring him to draw up a proper agreement for him and Mr. Eowle to sign. He afterward refused to complete the purchase, and countermanded his direction to the solicitor, and the bill was filed, praying for a specific performance. The defendant resisted, on the' ground that the memorandum and letter were signed by him, not as an agreement for the sale, but merely as instructions for such agreement. But Sir William Grant, master of the rolls, said, “He had bound himself so far, that these should be the terms introduced; just like a letter,, intended to be carried into execution by a more formal agreement; but he repents; he is bound by his letter; by his proposal. There have been decrees founded merely upon letters, proposals, never intended at the time to be a complete formal agreement.”
    And so, in the well-known ease of Coles v. Trecothick, 9 
      Ves. Jr. 233, the same liberal view was taken by Lord Chancellor Eldon, and he held that though the agreement was not signed, yet the party was bound by a letter containing the terms, so that by the contents it can be connected and identified with the agreement.
    If the terms of the contract can be collected from the •correspondence of the parties, or from two or more separate papers, referring manifestly to the same subject, it will be a sufficient memorandum within-the meaning of the statute •of frauds.
    W. W. Story on Cont., sec. 489; Dobell v. Hutchinson, 3 Adol. & El. 355; Kennedy v. Lee, 3 Mer. 441; 5 Nev. & M. 251; Smith v. Surman, 9 Barn. & Cress. 561; Gale v. Nixon, 5 Cowen, 445; Corbett v. Arebel, 4 Nev. & M. 485; Johnson v. Dodson, 2 Mees. & W. 653.
    Writings executed between the same parties at the same time, about the same subject mattter, must be held as one instrument and construed together. Perry v. Holden, 22 Pick. 269; Chickering v. Lovejoy, 13 Mass. 51; King v. King, 7 Mass. 499; Carey v. Rawson, 8 Mass. 159.
    In Stow v. Tift, 15 Johns. 458, 463, Spencer, J., says: “I am authorized to say, by the decision of this court, in Jackson v. Dunsbagh, 1 Johns: Cas. 95, that where two instruments are executed at the same time, between the same parties, relative to the same subject matter, they are to be taken in connection, as forming together the several parts of an agreement.”
    In Crop v. Norton, 2 Atk. 74, the Lord Chancellor says: But when writings are executed so near together, it is very natural to think they are all in pursuance of one transaction and agreement between the parties.”
    To the same effect, Isham v. Morgan, 9 Conn. 378; Bates v. Coe, 10 Conn. 292.
    The rule laid down in 1 Smith’s Lead. Cas. 216, as deduced from the books, is this, “Provided that the agreement be reduced to writing, it matters not out of how many different papers it is to be collected, so long as they can be sufficiently connected in sense,” referring to numerous cases-sustaining this point.
    2. It is not necessary the instrument should be written for the purpose of setting forth the obligation, or as a recognition of it, or be delivered to the other party as a deed or a contract, in order to make it available as evidence of the contract. Mere letters to third persons, not intended or expected to be seen by or known to the other party, may housed to prove the contract, as shown above. The Supreme-Court of the United States, in the case of Barry v. Comber 1 Pet. 640, say: “ Courts of equity are not particular as to the direct and immediate purpose for which the written evidence of a contract is created. But it was 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 it is written evidence which the statutes require,, and a note or letter, and even in one case a letter, the object of which was to annul a contract on ground really not unreasonable, has been held to bring a case within the provisions of the statute.” In this case, the court also said: “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 practical agreement.”
    
    Wefind in American Law Review for January, 1869, p. 271-,. under “Digest of English Law Reports,” this syllabus: “A tenant applied to the landlord’s solicitors for a renewal of his lease. The solicitors sent him a report by a surveyor recommending the grant of a lease for fourteen years at a given rent, if the tenant would make certain repairs. The tenant replied, assenting to the repairs and rent, but asking for a term of twenty-one years. No agreement was come to; but some months after, the landlord and tenant having-negotiated directly, the landlord wrote to the tenant promising him a lease for fourteen years, ‘ at the rent and terms agreed on.’ The tenant accepted in writing. Held, that parol evidence was admissible to connect the report and the; tenant’s previous letters with the subsequent letters; and it being proved that there had been no other rent or terms agreed on than those mentioned in the report, the case was taken out of the statute of frauds.” Bauman v. James, Law Rep., chap. 8, p. 508. See also Clark v. Burnham, 2 Story, 1; Jackson v. Lowe, 1 Bing. 8.
    3. To proceed another step; the court will not only take and construe the written evidences of the contract belonging to, and in the hands of thé plaintiff, but it will reach out its hands, and gather from any source the materials to establish the contract. It will even take from the private chest of the defendant himself memoranda, instructions to his solicitor, and deeds executed and not delivered, to find out whether there is, anywhere, written evidence of a complete and practical agreement.
    Many of the cases already cited support this proposition ; also, Tawrey v. Crowther, 3 Bro. C. C. 218; Dobell v. Hutchinson, 3 Adol. &E1. 355; Sanderson v. Jackson, 2 Bos. & Pul. 238; Fitzmaurice v. Bailey, 38 Eng. L. & E. 136.
    The case of Bowles v. Woodson, decided, in 1849, by the Court of Appeals of Virginia, reported in 6 Grattan, 78, covers, at all points, the case made by us, although the facts in that case were much less stronger against the vendor than in the case at bar. The same principle was affirmed in Parrel v. McKinley, 9 Grattan, 1, and recognized in Anderson v. Harold, 10 Ohio, 399.
    4. To sum up the law, then, upon this question, it is apparent that courts of equity hold that even parol contracts for the sale of lands are voidable only, and not void; that as between the parties, the parol contract may give rise to equities as binding upon the conscience as if the same were evidenced by writing. Minns v. Morse, 15 Ohio, 568. The contract exists in foro consdentice, and that the object of the memorandum required by the statute is only to evidence the contract, not to constitute it, and that the contract is made before any signature thereof, by the parties, as was observed by Lord Tyndah 2 Bing. N. C. 744, and that this evidence of the contract may be made out from any paper or any number of papers, whenever written, or in whose-soever possession they may be found, provided only, from all together, you can make out the essential elements of the bargain, and the signature of the bargainor.
    The case of Osborn v. Phelps, 19 Conn. 63, cited by counsel for plaintiff in error, is an entirely different case from this, and the main point decided, that equity will not correct a mistake in a written instrument, and reform it on parol evidence showing the intention of the parties has been defeated, is certainly not law in Ohio. Besides, the dissenting opinion of J udge Ellsworth upon the merits of the case itself is much the abler and more satisfactory of the two, and more in harmony with the whole current of decisions in modern times on the law as applicable to that case.
   McIlvaine, J.

The defendants in error brought their action, in the Court 'of Common Pleas of Lucas county, against the plaintiff in error, to compel him to specifically perform his contract for the sale and conveyance to the plaintiffs of certain real estate described in the petition. The defendant answered, setting up the statute of frauds and perjuries.

The cause was tried in the Common Pleas, and judgment rendered for the defendant.

The plaintiffs appealed to the District Court, and upon final trial therein, a decree for specific performance was rendered as prayed for in the petition. A new trial was refused, and a bill of exceptions, embracing all the testimony, was made part of the record

This petition is prosecuted to reverse tbe judgment of the District Court, for the reasons that the court erred in admitting improper testimony, and in rendering judgment for the plai ntifls below.

Section 5 of the statute of frauds provides, “ That no action shall be brought whereby to charge the defendant, . . . . upon any contract or sale of lands, tenements, or hereditaments, or any interest in, or concerning of them, _ . . . unless the agreement upon which such action is 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 thereunto by him or her lawfully authorized.”

We will first consider whether the record shows that the 'Contract upon which the original action was brought was in writing, and signed by the defendant, within the meaning of said section 5.

The following is a copy of a memorandum signed by the defendant and John W. Euller, one of the plaintiffs, and delivered to Euller on the 8th day of May, 1868:

L. T. Thayer is to clear off the present mortgage within ninety days. At that time J. W. E. is to give him mortgage for. amount unpaid, with interest from date of sale, ff. W. E. is to pay taxes for 1808 (that is, on a fair proportion of the lots). J. W. E. is to pay $1,875, and give mortgage for $937.50, due in one year, and same amount due in two years, with annual interest.

“ L. T. Thayer.

J. W. Euller.”

«May 9,1868.”

On the day of the date of this memorandum, the defendant, Thayer, and his wife, signed and acknowledged an in.strument of writing in the usual form of a deed of conveyance, purporting to convey to the plaintiffs, Luce and Euller, by a pertinent description, the real estate described -in the petition, for the consideration of $3,750. Afterward, on the same day, the defendant presented the latter instrument to Euller for his approval of its terms and of the description of the property. Euller assented to and approved of the terms of the instrument, and returned the same to the defendant, who retained the possession thereof.

It was also proved upon the trial that the plaintiff, Euller, In the above transactions, was acting for himself and his cojfiaintiff, Charles L. Luce.

• The question now is, whether these writings, taken separately or together, furnish satisfactory evidence of a full and perfect agreement between the parties for the sale and conveyance of the property described in the petition.

That the memorandum alone is insufficient for that purpose is clear. The absence of necessary description of the subject matter of the contract is a fatal defect. The deed, however, supplies the defects in the memorandum, and taken together (if we may so construe them), we find in the two instruments the terms of a full and complete contract.

That several writings, though executed at different times, may be construed together, for the purpose of ascertaining the terms of a contract and for the purpose of taking an action founded thereon out of the operation of the statute of frauds, is fully settled. 3 Taunt. 169; 1 Bing. 8; 3 Myl. & K. 353; 14 How. S. C. 447; 14 N. Y. 584.

In such cases, however, the mutual relation of the several writings to the same transaction must appear in the writings themselves, parol evidence being inadmissible for the purpose of showing their connection. If one only of such papers be signed by the party to be charged in the action, the rule seems to be that special reference must be made therein to those papers that are not so signed; but if th.e several papers relied on be signed by such party, it is sufficient if their connection and relation to the same transaction can be ascertained and determined by inspection and comparison.

In this case, upon inspection and comparison of th.e memorandum and the deed, although no reference is made in either to the other, we find with reasonable certainty that they do relate to the same transaction, and contain fully the terms-of a contract of bargain and sale between the parties. The coincidences of names, dates, amount of purchase money, and reference to and description of fractional lots, are quite sufficient. But when these coincidences are considered in-connection with the averments and admissions in the pleadings, and the res gestae, we arrive at a degree of certainty-far beyond that which, is required in determining civil issues.

But it is claimed that this deed, which was signed and acknowledged by Thayer after the execution of the memorandum, but which was never delivered, can not be' considered to help out the defective memorandum.

The fact that the deed was signed after the contract itself had been made is no objection. It is well settled that a writing, relied upon to take a case out of the operation of the statute, may bé executed after the verbal agreement is complete and at any time before action brought. 2 Gray, 387; 17 Adol. & El. N. S. 107, 114; 3 Ves. 696.

And as to the objection that this deed was never delivered^ we may admit, as an abstract proposition, that an undelivered deed is no evidence of a subsisting contract between the parties named therein, notwithstanding cases to the contrary. 6 Grat. 78; 9 Grat. 1.

We think, however, that a distinction may well be taken between an instrument of writing in the usual form of a deed of conveyance which has never been delivered for any purpose, or which has been delivered for the purpose of transferring title, and a like instrument which has been delivered merely as an evidence of an executory contract, or as evidence in part of such contract. The distinction exists in the difference of intention with which the acts were performed, and the true intent in either ease must be determined by the circumstances of the act, by the res gestee. It is perfectly clear that such an instrument delivered by the apparent grantor to the apparent grantee under such circumstances as repel the conclusion that a transfer of title was inténded, is inoperative as a conveyance. And it appears to me to be just as clear that the like delivery of such an instrument, under circumstances which show an inten.tion to make a proposition to sell the property therein described on the terms therein written, is a legitimate and proper way to negotiate a contract of sale, and instantly that the terms thus proposed are accepted, the contract of bargain and sale is complete — not executed in fact by transfer of title, bat executory and evidenced by writing signed by the vendor within the meaning of the statute. Nor does it matter in whose possession the instrument may afterward be placed. The executory contract is subsisting, and will ■continue to be valid and binding upon the parties until mutually rescinded or consummated. Such is the case under consideration. The deed was signed by the defendant below and delivered to the plaintiffs, not as a conveyance of title, but as an evidence of their executory contract ■of bargain and sale.

It is true, the proof of the delivery of the instrument, and the acceptance of its terms by the plaintiffs, was made by parol testimony. To the admission of such testimony for ■such purpose we see no objection. The statute requires written evidence of the agreement to the extent of charging the defendant. Beyond that, the statute does not indicate the nature of the evidence required. And there is no reason why the rule requiring written evidence should be •extended beyond the terms of the statute. It must be observed that the signature of the defendant only is required, .and it must be further observed that verbal contracts touching the subject matter of the statute are not declared to be void. It follows, therefore, we think, that parol testimony may be admitted for the purpose of showing that the plaintiff' agreed to and concurred in the terms of the writing relied upon.

The record shows that on the -trial in the court below, •one of the plaintiffs, John W. Euller, was called as a witness on behalf of the plaintiff's, who produced the memorandum copied above, and testified to its execution by himself and the defendant.

“ And thereupon the plaintiffs’ counsel was proceeding to inquire what transpired between the parties at the time said paper was signed, and whether any other paper was signed between the parties, whereupon counsel for thp defense objected to the introduction of any parol testimony tending to enlarge the terms of said written memorandum; but the court suggested that such testimony as the parties desired to offer might as well be heard, subject to the defendant’s objection, to which the defendant assented, and thereupon the following parol testimony was given to the court, subject to any and all legal and valid objection thereto, on the part of the defendant.” And thereupon Fuller testified that at the same time of the execution of said paper, another memorandum was made by him containing merely a description of the property referred to in this memorandum, and which was identically the same as the description contained in the mortgage attached to the petition in Briscase. That said memorandum of description was not signed by either said Thayer or himself, and he could not-say that it was written on the same piece of paper, but his impression was that it was written on the same piece, and torn off from it, but he £ would not swear to it,’ but it was written within the same five minutes of time, and was part of the same transaction, and was handed to Thayer to get his deed drawn. Afterward, saw the memorandum at the attorney’s office, and had the mortgage attached to-the petition drawn from the same description and exactly like it.”

This unsigned memorandum was lost, at the time of the trial, but it appeared from the evidence that the description of property therein was the same as in the petition,, and in the deed as prepared and signed by the defendant.

The admission of this testimony is assigned for error.

It follows from what has been already said, that this unsigned paper, and the testimony offered touching it, were1 incompetent to sustain the plaintiffs’ case, as no reference-was made to it, either in the other- memorandum or in the deed. Yet, the judgment can not be reversed on the ground that such testimony was admitted, for two reasons: 1. After ■ the testimony was fully in by consent, and its incompetency was made to appear, no motion was made to rule-it out, nor was any exception taken to its admission. For aught that appears the court may have disregarded it. At all events we are not authorized, undertheatate ofthe record,, to assume that it was considered by the court in making: up its decree; and, 2. The rejection of this testimony could not have changed the result of the case. The sole issue to which it was directed, was whether or not the contract upon which the action was brought, was in writing and signed by the defendant within the meaning of the statute, and we have already found that the case was taken out of the operation of the statute by other and undisputed writings.

It is also objected that the decree was rendered in favor of Luce (as well as Puller), witli whom, it is claimed, the plaintiff in error had no contract relation, either verbal or in writing.

It is true the memorandum does not contain the name of Luce, but the deed, which, as we have found, related to the same transaction, does contain the name of Luce (with Puller), as one of the purchasers. Prom this fact, it might be reasonably inferred that the memorandum was made in the name of Puller, for the benefit of Luce and himself, and that Thayer knew at the time that Luce was a party in interest. But independent of such inference, it clearly appears from the testimony in the case, that the contract of purchase was made by Puller for the joint benefit of himself and Luce, and we think it was competent to make such showing by parol testimony. The statute of frauds does not change the law as to the rights and liabilities of principals and agents, either as between themselves, or as to third persons. The provisions of the statute are complied with, if the names of competent contracting parties appear in the writing, and if a party be an agent, it is not necessary that the name of his principal should be disclosed in the writing. Indeed, if a contract, within the purview of the statute, be made by an agent, whether the agency be disclosed or not, the principal may sue or be sued as in other cases. 7 Taunt. 295; 24 N. Y. 57. In objecting to this feature of the decree, it is further-urged that the liability of the plaintiff in error to Luce has been decreed, although Luce was never liable to him. And this result is .claimed to be contrary to the law, which regards reciproc•ity of right to enforce by action, as well as mutuality of obligation to perform, as an essential element in a contract. In answer to this objection we say, that mutuality of obligation (at least of moral obligation) did exist between the .plaintiff in error and Luce, and if the right of action to enforce that obligation does not exist in favor of the former against the latter, it is solely because the statute requires •the written agreement to be signed by the party to be .charged therewith. The remedial laws of the state are under legislative control, and as we understand it, the reciprocal right of parties to enforce certain contracts by action is taken away by force of this statute. If the written agreement in such case be signed by one of the contracting parties and not by the other, the latter may enforce it by action, although the former may be remediless if the agreement be broken against him.

Judgment affirmed.  