
    Alexander Anderson v. David Harold.
    The memorandum required by section 5 of the statute of frauds is not valid unless the name of the party to be charged appears somewhere on the instrument.
    This is a bill in chancery from the county of Sandusky.
    It is brought by the complainant to compel the respondent to specifically execute a contract averred to have been made 400] ^between the parties, for the sale and purchase of a certain tract of land, situated in the county of Sandusky. The bill sots out the consideration and terms of purchase, but they need not be noticed,-as the case turns entirely upon the fact whether, if any contract be proved, it is not within section 5 of the statute for the prevention of frauds and perjuries, which enacts, “That no action shall be brought whereby to charge any person upon any contract or sale of lands and tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.” Such memorandum is averred by the complainant, in his original and amended bills, to have been put down by the respondent in his memorandum-book at the time the contract was made.
    In his answer, the respondent denies that any binding or obligatory agreement was ever entered into by him. He admits a negotiation with the complainant, and that he made a memorandum of it at the time, which was shown to the complainant, but denies that it was ever signed, or that he ever intended to execute a contract until the first payment was made, agreeably with the understanding existing between him and the complainant.
    Rawson, for the plaintiff,
    insisted that the contract of sale was established by the proof, and that the memorandum of it in writing was sufficient to meet the requisites of the statute of frauds. He argued at length -on the facts of the case, and cited 2 Story’s Eq, 22; 1 Stark. Ev. 353; Roberts on Frauds, 105, 108; 2 Story’s Eq. 57, 58; Ten Broeck v. Livingston, 1 Johns. Ch. 357; Story’s Eq, Pl. 590; Cozine v. Graham, 2 Paige, 177. He further maintained that the literal act or particular place of subscribing the name is not material. Penniman v. Hartshorn, 13 Mass. 87; Douglas v. Spears, 2 Nott & McCord, 207; Ballard v. Walker, 3 Johns. Cas. 60; Raget v. Merrit, 2 Caine, 117; Roberts on Frauds, 120; *Barry v. Combe, 1 Pet. 640. Nor is it essential that [401 both parties sign the instrument. Roberts on Frauds, 124; Jeremy’s Eq. 434. Nor is it material whether the signature, or even the memorandum itself, be made with a pen and ink or written with a lead-pencil or otherwise. Clason v. Bailey, 14 Johns. 484.
    Watson, on the same side,
    claimed that by both the English and American authorities, the plaintiff was entitled to relief. Sug. Vend. 85, 99; Cosack v. Descoudres, 1 McCord, 425; Denton v. McKenzie, 1 Des. 289; Johnson v. Ronald’s Adm’r, 4 Munf. 77. That if an answer admits a document material to the plaintiff’s case to be in the possession of the defendant, the court will order it to be left with the defendant’s clerk in court for the inspection of the plaintiff, his solicitor or agent, it being considered part of the defendant’s answer. Bettison v. Farringdon, 3 P. Wms. 363 ; 4 Br. C. C. 479; Taylor v. Milner, 11 Ves. 41; Gresly’s Eq. Ev. 25.
    May, Parish and Sadler, for the defendant,
    maintained that there was no obligatory contract between the parties. A memorandum in writing for the sale of lands to be valid must not only be signed by the party to be charged, but contain the essential terms of the contract expressed with such clearness and certainty that they may be understood in the writing itself, or some paper to which it refers, without resort to parol proof. Parkhurst v. Vancortlandt, 1 Johns. Ch. 273; Sug. Vend. 54; Roberts on Frauds, 121; Fowle v. Freeman, 9 Ves. 351; Sanderson v. Jackson, 2 Bos. & Pul. 238; Knight v. Crockford, 1 Esp. N. P. 190; Stokes v. Moore, 1 P. Wms. 770. A party himself in default can not ask a specific performance. Remington v. Kelly, 8 Ohio, 103 ; Higbee v. Whitaker, 7 Ohio, 201, pt. 1; Benedict v. Lynch, 1 Johns. Ch. 370; Milwood v. Earl of Thanet, 5 Ves. 720; 1 Mad. Ch. 117 ; Ellis v. Deadman’s Heirs, 4 Bibb, 466.
    Where it is doubtful whether the transaction is an agreement or a mere treaty, equity will not decree a performance. *Stratford v. Bosworth, 2 Ves. & Bea. 341; Seagood v. [403 Meals, Prec. in Chanc. 460; Roberts on Frauds, 105: Mad. Ch. 374; Huddleston v. Biscoe, 11 Ves. 591; Brashier v. Gratz, Wheat. 541.
   Wood, J.

A great deal of testimony has been taken in inis case; the letters of the respondent are introduced, both to the complainant and one Bveret, in which the respondent speaks of the sale of his farm to the complainant, and in general terms of the conditions of tho sale, and there is some confusion in the evidence, whether a slip of paper produced in pencil marks, dr a book introduced in testimony, contains the contract referred to; or whether another book, kept back by the respondent, is the one in which it is entered. So far as it relates to the two first, they may be laid out of view, for the name of Harold, the respondent, neither appears in the body, at the top nor bottom of either; and it is a well-settled rule, that the name of the person to be charged must appear at least somewhere upon the instrument, and it must be placed there for the purpose also of giving it authenticity:

I shall at this time advert to no other evidence but that of R. Dickinson, which is relied upon by the complainant, as proving the execution of such memorandum on the book which it is supposed by counsel has not been produced in court. He states that he saw the parties together, in the respondent’s office, seven or eight years ago, and heard a conversation between them in relation to tho sale of this land. Ho understood the contract was not reduced to writing, in full, but the respondent remarked he had taken down the heads, in order to write it out in full when he got home, as he always did. The witness understood the terms were agreed upon, and noted down in a book, which he saw, but the witness is uncertain whether he saw the memorandum or not.

This is the evidence on which counsel mainly rely to prove the execution of this memorandum. It is, in our view, insufficient. It is denied by the answer that it was over executed ; it is denied iu 403] the letters of the respondent, introduced by the *complainant, and there is no evidence by the complainant, who sets up such memorandum, that it over was signed; there is no act relied upon as part performance, to take tho case out of the statute, and the bill must be dismissed, as the case is clearly embraced within its provisions, and for want of such memorandum signed by the party, can not be sustained. Bill dismissed.  