
    Henry B. Toomer v. Thomas O. Dawson.
    An entry in a broker’s sale book, with the consent of both parties, of the terms of an agreement for the sale of land, if not in itself a sufficient memorandum under the statute of frauds, may be so connected with a subsequent letter from the vendor, in reference to it, as to make it good against him.
    
       ‘ I am, however, far from conceding that the memorandum made by the direction of one party, and acquiesced in by the other, was not sufficient to bind both.”— (Butler, J.)
    
    Before O’Neall, J., at Charleston, January Term, 1840.
    This was an action of assumpsit against the purchaser, on a contract for the sale and purchase of a plantation.
    The -plaintiff and the defendant met, on November 28, 1838, at the office of Elliott & Condy, who had been employed by the plaintiff to make the sale of the property in question. Mr. Elliott, at the plaintiff’s request, who dictated the terms, and in the presence of the defendant, who saw it done, made the following entry, upon his sale book.
    H. B. Toojieb. Plantation in St., Andrew’s Parish, $7,000. • Titles 1st. January. Commissions, Advertising, Papers, 70 7 15 20 T. 0. Dawson. 28th. Terms, ¶ payable 1st. July — balance in 1, 2, and 3 years.
    On December 20, the defendant wrote the following letter to the plaintiff:
    “ Dear Henry, — I have seen my cousin, and he thinks there are objections to your title: and I now inform you, that I expect you, on the first of January next, to deliver me possession of the plantation, and at the same time to furnish me with good titles, and that I will be ready to comply with my part of the contract. Should you fail to comply with your part of the contract at the above-mentioned time, I shall not hold myself bound by the agreement entered into.
    •“ Yours, &c., T. O. DAWSON.”
    On the part of the defence, it was insisted that this was not a sufficient contract under the Statute of Frauds; and upon a verdict being found for the plaintiff, the defendant appealed on that ground.
    
      
       4 Stat. 671. An.
      
    
   Curia, per Butler, J.

Both parties were present when the entry was made. The plaintiff stated the terms of the contract in the presence of the defendant, and they were entered in the book accordingly. The terms were specifically set down in writing, by the tacit consent of the defendant, and the express direction of the plaintiff, by a third person, in books kept by him for the purpose of transferring property from one person to another, .or rather, for entering the terms of contracts on which sales were to be perfected. Such an entry, therefore, must be regarded, at least, as a memorandum in writing; and, if the party to be charged, subsequently refer to it, by letter or other writing, as a contract, he adopts it, and subjects himself to all the liabilities that such a contract would have imposed upon him, if he had signed it when first made.

The case of Saunderson v. Jackson et al., (2 Bos. & Pul. 238.) is full to the point. The plaintiff had bargained with the defendants for some gin, which the latter refused to deliver. The plaintiff had received from them the following bill of parcels. “ London. — Bought of Jaclcson & Hanlcin, distillers, No. 8, Oxford-street,” (so much in print; then followed, in writing,) “1,000 gallons of gin, 1 in 5. Gin 7s. 350Z.” About a month after, the defendant wrote this letter; “ Sir: We wish to know what time we shall send a part of your order, and shall be obliged for a little time for' the delivery of the remainder.’’ Lord Eldon, Ch. J., said: “ This bill of parcels, though not the contract itself, may amount to a note or memorandum of the contract Avithin the Statute of Frauds. The single question therefore is, whether, if a man be in the habit of printing instead of writing his name, he may not be said to sign by his printed name as well as his Avritten name. At all events, connecting this bill of parcels with the subsequent letter of the defendants, I think the case is clearly taken out of the Statute of Frauds. For, although it be admitted that the letter, Avhich does not contain the terms of the agreement, would not alone have been sufficient, yet, as the jury have connected it with something that is, and the letter is signed by the defendants, there is then a written note, or memorandum in writing,” &c. The case under consideration cannot in principle be distinguished from the above. On December 20, the defendant wrote a letter to the plaintiff, referring to a contract that had been made; and the jury, by their finding, have connected it with the memorandum in the books of Elliott & Condy, which sets out the terms of the contract. So that, even alloAving that neither the memorandum itself, nor the letter, separately, would have been sufficient, yet they Avere so when taken together. •

Bailey, for the motion;

Gbrimhe, contra.

I am, however, far from conceding that the memorandum made by the direction of one party, and acquiesced in by the other, ivas not sufficient to bind both; hut it is unnecessary to go so far to decide the point involved in this case. For authorities upon it, see 4 Bos. & Pull 252, and 5 Harris & Johnson It. 117.

Earle, J. In addition to the views presented by Mr. Justice Butler, in which I concur, it maybe added, as another reason for sustaining the judgment below, that section sixth of the Yendue Act requires auctioneers to keep a book in Avhich shall be fairly written and entered all vessels, lands, houses, slaves, or other articles “ by them sold or disposed of, either at public outcry or by private sale.” If any entry so made of a sale at auction, would be binding, which I think has never been questioned, there is no good reason why an entry in compliance with the provisions of the Act, of a sale by private agreement, negotiated through the agency of the auctioneer, and made in the presence of the parties, should not be considered equally binding. The terms were agreed on in the presence of the auctioneer, and he entered the sale at the time, and in the presence of the defendant, which I consider a sufficient authority under the Act, and as binding on the defendant.

Motion dismissed; O’Neall and Earle, JJ., concurring; Gantt, J., dissenting. 
      
       See 3McC. 458, and Notes, Dud. 142. 1 MoM. 256. 5 Strob. 130. 10 Ricli. 63.
     
      
       See 3 Strob. 233-5. An.
      
     