Fessenden v. Mussey

65 Mass. 127

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1853
• Status: Published

Opinion

Thomas, J.

This was assumpsit for the price of a pew in the Bulfinch Street church, Boston, sold, as the plaintiff alleges, by her to the defendant. The defendant, among other grounds of defence, relied upon the statute of frauds. The presiding judge instructed the jury, that the contract was within the statute of frauds, and, therefore, void, and that there was nothing in the memorandum in writing offered by the plaintiff, or the other evidence, to take the sale out of the statute. The pew was sold at auction, and in the record of sales kept by the auctioneer, is this entry: “ Sale of pew in Bulfinch Street church, for ace. Belinda Fessenden. Monday, March 24, 1845. Pew No. 18. Benj. Mussey. $112.50. Charges, advertising, and commission, $5.” If this memorandum was made at the time and place of sale, by the auctioneer, or his clerk, then acting under his direction, we think it is sufficient. Gill v. Bicknell, 2 Cush. 355 • Morton v. Dean, 13 Met. 385. It designates clearly what was sold, by whom, to whom, the time when, and the price. The middle name of the purchaser is omitted, but it was competent to show by paroi that defendant was intended, or that defendant was well known by the name, or that he subsequently recognized the signature. As to terms of payment, the presumption of law in the absence of an express stipulation is, that it was for cash, payable on a tender of a deed.

The only remaining question is, was this memorandum made at the time and place of sale, and by a clerk acting under the direction of the auctioneer. On this point, we have only to say that there was competent evidence on which the jury might have found that the memorandum was so made.

W. Brigham, for the plaintiff. A. H. Fiske, for the defendant.

Exceptions sustained.