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the part of the appellant if, instead of a conveyance of record, the appellee had only a bond for title, with all the purchase money paid. The representation as to the title to the entire tract was not fraudulent, but made in the best of faith; nor was it material to the risk, because the appellee was entitled to his one-fourth interest in fee, including the dwelling insured. The appellee was the unconditional owner of this dwelling, and the ground upon which it stood, free of any incumbrance; and the fact that he did not own the entire tract, although he may have so stated, could in no manner have affected the rights of the Insurance Company, or misled its agent when taking the risk; and no court, it seems to us, should hold that the fee was not in the appellee for the reason that partition had not been made.

case; and therefore, unless there is proof showing that the insured has purposely fixed a high estimate upon his property, with a view of obtaining that to which he is not entitled, the mere expression of an opinion as to value, in the absence of bad faith, cannot be held to be either defective or fraudulent.

Under the Statute of February 4, 1874, neither representations nor warranties affect the right of recovery, unless "material to the risk, or fraudulent;" and where the property belongs to the insured, or, if a joint owner, and, between him and his co-tenants, he is entitled to the property insured, the mere fact that there has been no partition, or a partition without a conveyance, if otherwise free of incumbrance or lien, will constitute no defense by the Company. The best of faith has been shown in It is further claimed that the dwelling was this entire transaction, on the part of the apnot of the value placed upon it by the insured. pellee towards the appellant, and there is no The testimony on his part shows that the build-reason, upon any principle of law, equity or ing cost him $2,000, and the valuation, at best, justice, for relieving the appellant from its liais a mere matter of opinion, as is evidenced by bility. the conflicting statements of witnesses in this Judgment affirmed.

CONNECTICUT SUPREME COURT OF ERRORS.

Samuel E. MERWIN, Trustee in Insolvency of the Estate of Elijah Gilbert,

v.

Sarah E. AUSTIN, Appt.

(....Conn.....)

APPEAL by defendant from a judgment of the Superior Court for New Haven County disallowing her claim to set off certain demands in an action against her by the trustee of an insolvent estate. Reversed.

The case is sufficiently stated in the opinion. Messrs. Henry Stoddard and John W. Bristol, for appellant:

Where the defendant has, either in law or in

1. A sole solvent surety for a hopelessly insolvent principal, on a debt that was due before the appointment of a trustee in insolvency, is en-equity or in both, a counterclaim or right of titled to set off his claim for payment of such debt against debts due from him to the insolvent, in a suit on them brought by the trustee, although the

insolvency was not known when the debt became

due and payment by the surety was not actually

made until after the trustee was appointed.

2. A trustee of an insolvent, as a general rule, takes the estate subject to all outstanding

equities.

(September 13, 1889.)

NOTE.-Surety, paying debt of principal; rights of. When a surety has actually paid or satisfied the obligation of the principal or any part thereof, be is entitled to be reimbursed by the principal debtor; he is entitled to the creditor's place by substitution. Smith v. Rice, 27 Mo. 505; Tiernan v. Woodruff, 5 McLean, 352; Pardee v. Van Anken, 3 Barb. 540; Elwood v. Deifendorf, 5 Barb. 413; Wood v. Jefferson Co. Bank, 9 Cow. 206; Brown v. Williams, 4

Wend. 367; Cuyler v. Ensworth, 6 Paige, 32; Eddy v. Traver, 6 Paige, 521; Cheesebrough v. Millard, 1

Johns. Ch. 414.

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set-off against the plaintiff's demand, he may have the benefit of any such set-offs or counterelaims by pleading the same as such in his answer, and demanding judgment accordingly.

Rev. 1888, §§ 876, 877. See Norwich Printing Co. v. Kloppenberg, 50 Conn. 301.

and without recourse to equitable principles, The general doctrine that in an action at law, the debt to be set off must be due at the com

15 Gray, 453; Konitzky v. Meyer, 49 N. Y. 571; Townsend v. Whitney, 75 N. Y. 425; Harris v. Warner, 13 Wend. 400; Gahn v. Niemcewicz, 11 Wend. 312; Wesley Church v. Moore, 10 Pa. 273: Baxter v. Moore, 5 Leigh, 219; Butler v. Butler, 8 W. Va. 674; Hare v. Grant, 77 N. C. 203; Moore v. Young, 1 Dana, 517; Hamilton v. Johnston, 82 Ill. 39; Hearne v. Keath,

63 Mo. 84.

When a surety pays the debt of his principal he has a right to be substituted in the place of the creditor, as to all his remedies against the principai debtor and his estate. Van Horne v. Everson, 13 Barb. 530.

The equity of a surety to be subrogated to the debtor or his estate exists as well when the surety's rights which the creditor has against the principal property only is pledged as when he comes under a personal responsibility. Royalton Nat. Bank v. Cushing, 53 Vt. 325.

Equity requires cross-demands to be set off.

A court of equity recognizes the natural equity that cross-demands should be offset against each other and the balance only recovered, and acts upon

mencement of the action, is applied only when | v. Green, 12 Neb. 215; Tuscumbia, C. & D. R. no occasion for the exercise of equity power Co. v. Rhodes, 8 Ala. 206; Wood v. Steele, 65 exists.

Henry v. Butler, 32 Coun. 141.

It does not apply to a payment by a surety to a creditor, made after action brought.

Colebrook, Collateral Secur. § 226, p. 293, citing Thompson v McClelland, 29 Pa. 475; Beaver v. Beaver, 23 Pa. 167; Brittain v. Quiet, 1 Jones, Eq. 328; Mattingly v. Sutton, 19 W. Va. 19.

Trustees in insolvency represent and stand in the place of the insolvent, and they have no greater rights, either at law or in equity, than the insolvent.

Palmer v. Thayer, 28 Conn. 245; Gaylor v. Harding, 37 Conn. 518. See also Boston Type & S. Co. v. Mortimer, 7 Pick. 167; Marrett v. Equitable Ins. Co. 54 Me. 537; Donnell v. Portland & O. R. Co. 76 Me. 37; Farmers Bank v. Franklin Bank, 31 Md. 404; Boston & M. R. Co. v. Oliver, 32 N. H. 172; Strong v. Mitchell, 19 Vt. 644; Drake, Attachm. § 685; White v. Wiggins, 32 Ala. 424.

Natural equity says that cross demands should compensate each other by deducting the less sum from the greater, and that the difference is the only sum which can be justly due.

Spurr v. Snyder, 35 Conn. 173; 2 Story, Eq. Jur. § 1433, p. 1766; Clarke v. Hawkins, 5 R. I. 219; Paterson Bank Receivers v. Paterson Gaslight Co. 23 N. J. L. 283.

The insolvency of Mr. Gilbert is sufficient to give jurisdiction and power in the courts to enforce an equitable set-off, which will be allowed, although the debt of the principal to the surety be not due.

Colebrook, Collateral Secur. § 226. pp. 292, 293, citing Lindsay v. Jackson, 2 Paige, 581; Simpson v. Hart, 14 Johns. 67; Mattingly v. Sutton, 19 W. Va. 19; Brandt, Sur. § 196; McKnight v. Bradley, 10 Rich. Eq. 557; Waterman, Set-Offs, & 395, 396; Pond v. Smith, 4 Conn. 297. See Coffin v. McLean, 80 N. Y. 564; Smith v. Felton, 43 N. Y. 419; Greene v. Darling, 5 Mason, 207; Chicago, D. & V. R. Co. v. Field, 86 Ill. 270; Fulkerson v. Davenport, 70 Mo. 542; Brewer v. Norcross, 17 N. J. Eq. 225; Morrow v. Bright, 20 Mo. 298; Raymond

this principle in cases where the law cannot give a remedy in a separate suit in consequence of the insolvency of one of the parties. Chicago, D. & V. R. Co. v. Field, 86 Ill. 272; Quick v. Lemon, 105 Ill. 587; Jackson v. Bell, 31 N. J. Eq. 559. See Gay v. Gay, 10 Paige, 369; Simpson v. Hart, 14 Johns. 63; Carson v. Carson, 2 Met. (Ky.) 97; Hughes v. M'Coun, 3 Bibb, 254; Edminson v. Baxter, 4 Hayw. (Tenn.) 112; Smith v. Field, 6 Dana, 361; Tuscumbia, C. & D. R. Co. v. Rhodes, 8 Ala. 206; Bettison v. Jennings, 8 Ark. 287; Ponder v. Cox, 28 Ga. 305; Payne v. Loudon, 1 Bibb, 518; Buckmaster v. Grundy, 8 Ill. 626; Raleigh v. Raleigh, 35 III. 512.

Equity follows the law.

Equity follows the law on the subject of set-off, unless special circumstances occur, or peculiar equities exist, to justify the interposition of courts of equity for protection of the rights of parties. Armstrong v. McKelvey, 39 Hun, 219; Jennings v. Webster. 8 Paige, 503.

While, as a general principle, courts of equity follow the rules of law in enforcing set-offs, they

Ala. 436; Barney v. Grover, 23 Vt. 391.

As Miss Austin is a surety, she has a surety's right to compel the principal to exonerate her and appropriate any amount due the principal in payment of her debt.

Colebrook, Collateral Secur. § 226, p. 293; Nisbet v. Smith, 2 Bro. Ch. 583, note A; 1 Story, Eq. Jur. chap. 7, § 327; 2 Story, Eq. Jur. $730, 849; Tyson v. Cox, 1 Turn. & R. 395; King v. Baldicin, 2 Johns. Ch. 561; Hayes v. Ward, 4 Johns. Ch. 432; 3 Pom. Eq. p. 468; Ardesco Oil Co. v. North American Oil & Min. Co. 66 Pa. 381; Norton v. Reid, 11 S. C. 593; Wooldridge v. Norris, L. R. 6 Eq. 413.

When Miss Austin became surety for Mr. Gilbert at his request, in May, 1888, thereupon an indirect or implied contract of indemnity was created at that time.

Ward v. Henry, 5 Conn. 599; Brandt, Sur. § 177, p. 255.

The payment only fixes the amount of damages for which the principal is liable under his original agreement to indemnify the surety.

Brandt, Sur. § 177, p. 255; Rice v. Southgate, 16 Gray, 142; Barney v. Grover, 28 Vt. 391.

Messrs. John W. Alling and James H. Webb, for appellee:

Appellant could have no right of set-off for a claim not due at the commencement of the suit.

Henry v. Butler, 32 Conn. 140.

She would have owned no counterclaim, until she bad paid the obligation.

1 Story, Eq. Jur. 12th ed. 499, b, c, d. See Munger v. Albany City Bank, 85 N. Y. 580; Spaulding v. Backus, 122 Mass. 553.

The trustee should recover according to his title, when it accrued.

Henry v. Butler, supra; Finch v. Ives, 28 Conn. 115; Rhodes v. Seymour, 36 Conn. 1.

The indefinite extension of the rule of set-off would offend the spirit of the Insolvent Law, both as to equality, and as to an early settlement of the estate.

First Nat. Bank v. Hartford L. & A. Ins. Co. 45 Conn. 39; Tolle's App. 4 New Eng. Rep. 482, 54 Conn. 521; Nowell's App. 51 Conn.

exercise an original jurisdiction over the subject, and in cases of peculiar equity and under special circumstances will enforce a set-off in cases not within the letter of the statute. Bathgate v. Haskin, 59 N. Y. 538; St. Matthew's Congregation v. Heise, 44 Md. 480; 2 Story, Eq. Jur. § 1437; Smith v. Felton, 43 N. Y. 419; Smith v. Donnell, 9 Gill, 89; Cawdor v. Lewis, 1 Younge & C. (Exch.) 427; Beasley v. Darcy, 2 Sch. & Lef. 403, note; Southeastern R.Co. v. Brogden, 3 Macn. &. G. 25.

The power of common-law courts to compel a setoff of judgments, upon motion, is based upon their supervisory power over their own judgments and suitors in their courts, and is governed by no fixed rules. While, in actions in equity, it is said that suitors may ask the interference of the court ex delito justitia. Zogbaum v. Parker, 55 N. Y. 123.

A court of equity is not confined to the terms of the Statute of Set-Off, but can allow a set-off to be made in a case not within the Statute, where, from the peculiar circumstances of the case, justice cannot be obtained in a cross action. Perry v. Chester, 12 Abb. Pr. N. S. 137.

108. See also Demmon v. Boylston Bank, 5| City Bank. The defendant appeals from this
Cush. 194; Aldrich v. Campbell, 4 Gray, 284; denial of her right of set-off.
Nelson v. Harrington, 16 Gray, 139; Spaulding
v. Backus, supra; Backus v. Spaulding, 129
Mass. 234; Jones v. Wolcott, 15 Gray, 541;
Howe v. Snow, 3 Allen, 111; Myers v. Davis,
22 N. Y. 489; Martin v. Kunzmuller, 37 N.
Y. 396; Newcomb v. Almy, 96 N. Y. 308;
Walker v. McKay, 2 Met. (Ky.) 294; Ex parte
Smith, 5 Ves. Jr. 295; Bradley v. Angel, 3 N.
Y. 475; Munger v. Albany City Bank, supra;
Granger v. Granger, 6 Ohio, 35; Fuller v.
Steiglitz, 27 Ohio St. 355; Harris v. Taylor, 1
New Eng. Rep. 392, 53 Conn. 500; Nichols v.
Dayton, 34 Conn. 65; Olmstead v. Scutt, 4
New Eng. Rep. 807, 55 Conn. 125; Parsons
v. Root, 41 Conn. 161; Stanford v. Hide, 1
Root, 397.

The claims, to be entitled to dividends, must be such as existed at the time the title to the property vested in the trustee for the benefit of the creditors.

1 Story, Eq. Jur. 12th ed. § 499, b, c, d. Pardee, J., delivered the opinion of the

court:

In May, 1888, Elijah Gilbert was indebted to the City Bank of New Haven by his note for $5,000, for money loaned to and used by him. For his accommodation the defendant had signed the note as surety. On November 13 the bank notified the defendant that the note was overdue and unpaid, and that it should look to her for payment. On December 5 she orally promised the bank to secure the note by a mortgage, and on December 7 duly executed and delivered it. On December 10 Elijah Gilbert was adjudicated an insolvent upon a petition filed on December 6, and served on December 7, and the plaintiff was duly appointed trustee of his estate in insolvency. On January 22, 1889, the defendant, upon the demand of the bank, paid the note from her own money and now holds it as her property, as a claim against the estate of Elijah Gilbert. The estate is also indebted to her for the rent of a store to the amount of $2,000.

The plaintiff as trustee complains that the estate has a claim against the defendant for money paid for or to her from time to time during the years 1887 and 1888; for an account on book, and upon a rent account, aggregating $4,633.02, and asks for judgment. Gilbert had been insolvent during the entire year preceding the adjudication of his insolvency; but that fact was unknown both to him and to the defendant until the adjudication.

It is the claim of the defendant that so much of the sum of $4,633.02, paid to and for her by Elijah Gilbert, as is necessary to pay the amount of $2,000 due from him to her for rent should be so applied; or, if not so applied, that she should be permitted to set off the $2,000 against the claim of the estate against her; and that she be allowed to set off such portion of the sum of $5,000 which she has been compelled to pay to the bank, as is necessary to meet the balance. The plaintiff denies the right of set-off. The superior court determined that the defendant is entitled to a set-off to the extent of $2,000, the amount due from the estate to her for rent, but that she is not entitled to any set-off by rea son of having paid the note for $5,000 to the

Upon November 13 the note for $5,000, owned by the bank, made by Elijah Gilbert as principal and the defendant as his surety, being due and unpaid, she stood as the sole and solv ent surety for a hopelessly insolvent principal upon a matured obligation; she owed a debt to the bank, and the bank had the right to compel instant payment. No circumstance was wanting to the certainty of her obligation to pay the amount of the note for the sole benefit of the insolvent principal. He having procured her suretyship for his own accommodation upon his implied agreement to save her harmless therefrom, it became his duty on November 13 to credit her upon his account with the amount of the note,-to so state the account as that he should be her debtor for a balance. He omitting to do this, it has been continuously her right since that day to ask a court of equity to compel him to do And, not only so, but to compel him to make such provision for the payment of the balance as would protect her from possibility of loss. For this purpose, in equity, she became, so far forth as he was concerned, the real creditor in a matured debt and could move in compelling him to instant payment. 1 Story, Eq. Jur. § 327, and cases there cited; 3 Pom. Eq. note to 1417, p. 468; Bishop v. Day, 13 Vt. 88; Ardesco Oil Co. v. North American Oil & Min. Co. 66 Pa. 381; Norton v. Reid, 11 S. C. 593. And this even in the absence at that time of belief on her part that he was insolvent.

That she for a long time had been and then was the sole solvent surety for a hopelessly insolvent principal, is now made certain by judicial determination; certain that she then was under an obligation to the bank, for his sole accommodation, from which there could be no release except by payment. The right to relief in equity was in her, even if she did not know it; it rests upon the existence of the fact, not upon her knowledge of it. It has been in her continuously thence to the present; she has not released it; she has not forfeited it. In her answer she moves the court to enforce it; and her motion relates back to the first moment of the existence of the right; and that was prior to the acquisition of any right by the trustee; and his right is subject to her elder and stronger equity. For, while it is true that the trustee can exercise some rights which are not in the insolvent, such as the setting aside of preferences and the recovery of property conveyed in fraud of the rights of creditors, yet as a general rule he is entitled to have and do only what the insolvent could have had and done; must take the estate with the burdens placed thereon by him, with all outstanding equities against it.

In Parsons v. Root, 41 Conn. 161, the defendant was factorized by the plaintiff as the debtor of French & Nichols; at the time of service of the factorizing process Root owed them, but he then had an unperformed contract with them upon performance of which they would be indebted to him. He subsequently performed it, and they became his debtor. This court denied him the right of set-off of any part of this indebtedness for the reason that at the time of service of the garnishee process it was uncertain whether anything would ever be due to

him from French & Nichols. In effect, the court declined to make the possibility that he would complete a contract the basis of a setoff.

Bispham, Eq. § 364, p. 433; Pickering v. Pickering, 38 N. H. 400; Huntington v. Rogers, 9 Ohio St. 512; Jones v. Newhall, 115 Mass. 244; Patterson v. Bloomer, 35 Conn. 63; 5 There is error in the judgment complained of. Wait, Act. and Def. 763; Hennessey v. WoolIn this opinion the other Judges concurred.worth, 128 U. S. 438 (32 L. ed. 500); Pom. Spec. Perf. 66.

Preston H. HODGES

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Edwin W. KOWING and Wife, Appts. (....Conn.....)

This contract is not mutual within the meaning of that term as applied to the doctrine of specific performance. Here is no written contract on the part of the plaintiff to sel. the land, as is required by the Statute of Frauds, nor any part performance to relieve the contract from the operation of said Statute. The 1. The signature of the vendor to a con-part payment of $100 has no such effect. tract for the sale of real estate, which is otherwise sufficient, is not necessary in order to enable him to enforce it against the vendee. 2. An objection that a contract is void upon its face for uncertainty cannot be raised for the first time on appeal.

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APPEAL by defendants from a judgment of the Superior Court for Fairfield County in favor of plaintiff in an action to enforce specific performance of a contract for the purchase of certain real estate. Affirmed.

The facts are fully stated in the opinion. Messrs. D. B. Lockwood and E. W. Seymour, for appellants:

The specific performance of a contract for the purchase of land, though possessing all the other jurisdictional requisites, will not be decreed if the plaintiff has adequate remedy at law, which is defined in Wheeler v. Bedford, 2 New Eng. Rep. 831, 54 Conn. 249.

See Rev. 1875, p. 413, § 5; Meeker v. Meeker, 16 Conn. 403; Quinn v. Roath, 37 Conn. 24; Taylor v. Atwood, 47 Conn. 509; Stuart v. London & N. W. R. Co. 1 DeG. M. & G. 721; Webb v. Direct London & P. R. Co. Id. 521; Whitney v. New Haven, 23 Conn. 631.

Such want of adequate remedy is a jurisdictional fact to be stated, proved and found before a decree of specific performance can be granted.

Dodd v. Seymour, 21 Conn. 478.

If it appears that there is adequate remedy at law, or that the contract is not equitable, reasonable, certain, on good consideration, consistent with policy, and free from fraud, suspicion or mistake, then the specific performance will not be decreed.

NOTE.-Specific performance.

See notes to Lindley v. O'Reilly (N. J.) 1 L. R. A. 79; Gassert v. Bogk (Mont.) 1 L. R. A. 240; Woodruff v. Woodruff (N. J.) 1 L. R. A. 380; Miller v. Cameron (N. J.) 1 L. R. A. 554, Middletown v. New7 L. R. A.

Pom. Spec. Perf. 149, 150, 159, 160, § 164; Eaton v. Whitaker, 18 Conn. 229; Fry, Spec. Perf. 2d Am. ed. § 286; Benedict v. Lynch, 1 Johns. Ch. 370; Lawrenson v. Butler, 1 Sch. & Lef. 13; Bromley v. Jefferies, 2 Vern. 415; Bodine v. Glading, 21 Pa. 50; Duvall v. Myers, 2 Md. Ch. 401.

The difference in the amount of land as represented by the plaintiff, and as in fact contained in the deeds, makes it inequitable to sentation made by the vendor in a matter of compel specific performance. A misrepresubstance, affecting the value of the estate performance, although the vendor, as well as sold, is a good defense to a suit for specific the vendee, was ignorant of its untruth.

Best v. Stow, 2 Sandf. Ch. 298; Coles v. Bowne, 10 Paige, 526; Fry, Spec. Perf. §§ 431, 432, 458; Ainslie v. Medlycott, 9 Ves. Jr. 13, 21; Wall v. Stubbs, 1 Madd. 80; Harris v.

Kemble, 5 Bligh, N. R. 780, 751; Cadman 7. Horner, 18 Ves. Jr. 10; Clermont v. Tasburgh, 1 Jac. & W. 112.

The contract must be fully understood from the writing itself without the necessity of resorting to parol proof.

Pom. Spec. Perf. 226, § 161; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273; Colson v. Thompson, 15 U. S. 2 Wheat, 341 (4 L. ed. 253); Carr v. Duval, 39 U. S. 14 Pet. 77 (10 L. ed. 361); Reed v. Hornback, 4 J. J. Marsh. 377; Ellis v. Deadman, 4 Bibb, 467; Kendall v. Almy, 2 Sumn. 278; Parrish v. Koons, 1 Pars. Sel. Eq. Cas. (Pa.) 79.

lee

Messrs. Wheeler & Curtis, for appel

The remedy of specific performance upon an agreement for the sale of land is mutual, and open equally to vendor and vendee.

Cathcart v. Robinson, 30 U. S. 5 Pet. 276 (8 L. ed. 120); Old Colony R. Corp. v. Evans, 6 Gray, 30; Hayes v. Harmony Grove Cemetery, 108 Mass. 400; Richmond v. Gray, 3 Allen, 25; Hopper v. Hopper, 16 N. J. Eq. 147; Richards v. Green, 23 N. J. Eq. 537; Brooklyn Park Comrs. v. Armstrong, 45 N. Y. 248; Jenkins v. Fahey, 73 N. Y. 355; Bensel v. Gray, 80 N. Y. 521; Whitney v. New Haven, 23 Conn. 624; Goodale v. Hill, 42 Conn. 317.

An action for the breach of a contract for the purchase of land is not as complete or ben

port Hospital (R. I.) 1 L. R. A. 191; Close v. Stuyvesant (Ill.) 3 L. R. A. 161; Townshend v. Goodfellow (Minn.) 3 L. R. A. 739; Converse v. Hood (Mass.) 4 L. R. A. 521; Boggs v. Bodkin (W. Va.) 5 L. R. A. 245; Frame v. Frame (W. Va.) 5 L. R. A. 323; Tappan v. Albany Brewing Co. (Cal.) 5 L. R. A. 428.

eficial a remedy as an action for the specific performance of such contract.

See Munson v. Munson, 30 Conn. 435. All that the Statute of Frauds requires is a written promise by the party to be charged to buy or sell the land at certain terms.

Sage v. Wilcor, 6 Conn. 85; Packard v. Richardson, 17 Mass. 122; Potter v. Tuttle, 22 Conn. 515; Old Colony R. Corp. v. Erans, supra. Where a party to a contract comes into court to seek the specific performance of such contract, against a party bound by a writing, the party before unbound, upon filing his complaint, puts himself under all the obligations of the contract, and the other party is enabled to enforce it. And thus the want of mutuality in the remedy fails to exist.

Richards v. Green, supra; Snell, Eq. p. 455; Fry, Spec. Perf. 2d Am. ed. § 297.

The land to which the contract related might be shown by parol evidence disclosing the circumstances of possession, ownership, situation of the parties, and their relations to each other and to the property at the time of the negotiations.

Mead v. Parker, 115 Mass. 415; Hurley v. Brown, 98 Mass. 548; Atwood v. Cobb, 16 Pick. 229; Slater v. Smith, 117 Mass. 97; Nichols v. Johnson, 10 Conn. 192; Annan v. Merritt, 13 Conn. 492; Fish v. Hubbard, 21 Wend. 652; Robeson v. Hornbaker, 3 N. J. Eq. 60; Barry v. Coombe, 26 U S. 1 Pet. 640 (7 L. ed. 295). General descriptions of land in memorandums are sufficient.

Hurley v. Brown, 98 Mass. 545; Slater v. Smith, supra; Mead v. Parker, 115 Mass. 413; Nichols v. Johnson, supra. See also Atwood v. Cobb, supra; Smith's App. 69 Pa. 474; Colerick v. Hooper, 3 Ind. 318; Torr v. Torr, 20 Ind. 122; Waterman, Spec. Perf. § 152; Pom. Spec. Perf. § 161.

The memorandum discloses all that is essential—the parties, the subject matter, the price, the terms,—and, when taken in connection with the situation and relations of the parties to the land and to each other, its certainty is beyond question.

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Beardsley, J., delivered the opinion of the

court:

On the 17th day of August, 1887, the defendants entered into the following contract with the plaintiff:

Stratford, August 17th, 1887.

We agree to purchase of P. H. Hodges his place in Stratford, Conn., containing fifteen acres, more or less, for the sum of nine thoucash and three thousand five hundred on bond sand five hundred dollars; to pay six thousand and mortgage for one year; to take title immediately, and possession on the first of January, 1888; and have paid him one hundred dollars Edwin W. Kowing, Eliza Kowing.

on account.

No writing relating to the contract was signed by the plaintiff. The court below, upon the petition of the plaintiff, decreed that the defendants should specifically perform the contract, from which decree they appeal to this court.

They claim that under the Statute of Frauds the plaintiff was not bound by the contract, not having signed any memorandum of it, and hence that it should not, in equity at least, be enforced against them; and make this claim the ground of one of their reasons of appeal. The Statute requires only that the written agreement shall be signed by the party to be charged therewith." The defendants rely upon certain cases as authority for their claim, and among others upon the cases of Benedict v. Lynch, 1 Johns. Ch. 370, and Lawrenson v. Butler, 1 Sch. & Lef. 13.

Both of these cases are in accord with the claim of the defendants; but the former case is opposed to the numerous decisions in the State of New York on the same subject, and the latter case to nearly all the English decisions.

In the case of Clason v. Bailey, 14 Johns. 484, Chancellor Kent, after reviewing the New York decisions, says that "it is sufficient if the agreement is signed by the party to be charged." In the same opinion he reviews the English decisions up to that time, and adds: Andrews v. Bell, 56 Pa. 349; Nichols v. John-"There is nothing to disturb this strong and son, supra; Annan v. Merritt, 13 Conn. 478; Grace v. Denison, 114 Mass. 16; Matteson v. Scofield, 27 Wis. 671.

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Weart v. Rose, 16 N. J. Eq. 290; Winch v. Winchester, 1 Ves. & B. 376; Noble v. Googins, 99 Mass. 232, and cases cited; Morris Canal Co. v. Emmett, 9 Paige, 168; Johnson v. Taber, 10 N. Y. 319; Veeder v. Fonda, 3 Paige, 97.

The words "more or less" should be construed to qualify representations of quantity, in such a manner that, if made in good faith, neither party should be entitled to any relief on account of deficiency or surplus.

Stebbins v. Eddy, 4 Mason, 414; Jones v. Plater, 2 Gill, 128; Noble v. Googins, supra.

An agreement for the sale of land shall not be defeated by reason of excess or deficiency in quantity, unless the excess or deficiency is so great as to raise a presumption of fraud, or to destroy the purpose of the sale.

Noble v. Googins, 99 Mass. 235; Pom. Spec. Perf. § 352.

united current of authority but the observation of Lord Redesdale in Lawrenson v. Butler, 1 Sch. & Lef. 13, who thought that the contract ought to be mutual, and that if one party could not enforce it the other ought not."

The authority of Lawrenson v. Butler seems not to have been recognized in England. The more recent decisions in that country are referred to in 1 Benjamin on Sales, $254, 255.

There is still some conflict in the decisions in this country, but the weight of authority is that the Statute of Frauds is satisfied by the signature to the contract of the party sought to be charged only, whether the suit to enforce it be at law or in equity, and whether it relates to the sale of real or personal estate. Clason v. Bailey, 14 Johns. 484; McCrea v. Purmort, 16Wend. 460; Richards v. Green, 23 N. J. Eq. 536; Old Colony R. Corp. v. Frans, 6 Gray, 33; Sutherland v. Briggs, 1 Hare, 34.

We think that there is not sufficient ground for this reason of appeal.

Another reason of appeal is, "that the specific execution of the contract should not have been decreed because it is too uncertain to be

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