Cole, J.
It is not entirely clear from the arguments of counsel, whether they regarded this action as one at law or one in equity. Looking at the nature of the relief demanded in the complaint, which we suppose determines the character of the action (Gillett v. Treganza, 13 Wis., 473), we think it must be treated as a suit in equity, brought by the plaintiffs as vendors to enforce the specific performance of a contract for the sale and purchase of real estate. The case will be considered by us in that aspect.
The contract for the sale and conveyance of the real estate by the plaintiffs- to the defendant is in writing, and is only signed by the vendors. And the first question to be considered is, Did it become binding upon the defendant, so that, if not vitiated by fraud, it can be enforced against him ? It is claimed by his counsel that it never became a valid binding contract upon the defendant, because he did not execute it; and therefore that he is not liable rrpon it. This question is practically decided adversely to this view in Vilas v. Dickinson, 13 Wis., 488. That'was an action upon a bond for the conveyance of real estate, brought by the obligor against the obligee to recover a portion of the purchase money. The objection was taken that the obligation was signed by the plaintiff only, and therefore was not binding upon the other party. But the objection was overruled, the court holding that a party who accepts and adopts a written contract, although it is not signed by him, is bound by its terms and conditions. But it is insisted that under the statute of frauds the defendant is protected, because he did not sign the instrument upon which the action is founded, and which creates a n estate in lands. Our statute in substance enacts, that any contract for the sale of lands or of any interest therein shall be void unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the sale is to be made. Sec. 8, ch. 106, R. S. The distinction between this provision and the English statute, which required the contract to.be signed [183] by the party to be charged, is pointed out by the chief justice in Dodge v. Hopkins, 14 Wis., 631-641, and need not be dwelt upon here. See also Hodson v. Carter, 3 Chand., 234. The signature of tbe party who makes the sale satisfies this provision of tbe statute. But then the question arises, whether the contract signed and delivered by the plaintiffs, and accepted and adopted by the defendant as the agreement between them, binds the latter. This can hardly be said to be an open question, certainly not after the' rule laid down in Vilas v. Dickinson, which was an action at law. True, it has been gravely doubted by very eminent equity judges, whether an agreement which was signed by one party only should be enforced against the other in a court of equity ; but the rule is firmly settled that it may be, especially where specific performance is sought against the vendor. The want of mutuality is held to be no objection in such a case; or rather it is said that the plaintiff, by the act of filing the bill, makes the remedy mutual. But jit seems to me that the real foundation of the rule is, that the party who accepts and adopts a written contract, though not signed by him, should be deemed to have fully assented to its terms and conditions, and is therefore bound by them. He ought not to be in a position where he can hold the other party to the contract, and compel its performance, if advantageous to him, and at the same time be at liberty to avoid the contract on his part if disadvantageous. Both parties ought to be bound by the contract, or neither should be bound. And where the contract has been accepted and adopted by the party not signing it, he does assent and agree to it on his part, and the law implies a promise to perform. It is analogous in principle to implied covenants, which depend for their existence on the intendment and construction of law. Platt, in his work on Covenants (sec. 3, ch. 2, part first), gives many instances where implied covenants are raised and are held to be as effectually binding on the parties as if expressed in the most unequivocal language. See also Vyvyan v. Arthur, 1 Barn. & Cress., 410.
[184] In the present case, the plaintiffs, for and in consideration of $850, agreed to sell and convey to the defendant an undivided interest in the lands therein described; the conveyance to be made within ninety days from the date of the instrument, at which time payment was to be made. The evidence, we think, shows that the defendant accepted and adopted this written contract, and assented to its terms. And unless the contract is affected by misrepresentation or fraud, it must be held binding upon both parties.
It is claimed by the counsel for the defendant, that there was a conditional delivery of the contract, and that it was not to be binding on the defendant unless upon an examination he should find the lands to accord in all respects with the representations made at the time of sale. We do not think the facts warrant the inference that the parties agreed that the plaintiffs should be bound by the contract while the defendant was to retain for a time his option to be bound or not. This was not the arrangement. Nor could the contract be delivered to the defendant to remain in escrow. The cases cited on the brief of counsel for the plaintiffs are clear to the point, that if the grantor does not intend that his deed shall take effect until some condition is performed, he should keep it himself or leave it with a stranger; and we see no reason why the same rule should not apply to the delivery of a written contract for the sale of real estate. We therefore must hold, upon the facts proven, that the delivery of the contract was not conditional, but that it was executed and delivered by the plaintiffs, and accepted and assented to by the defendant, as an obligation binding on both parties. This, we think, made it a valid agreement in law. See Gale v. Nixon, 6 Cowen, 445; Reynolds v. Dunkirk & State Line R’y, 17 Barb., 614; Roget v. Merritt, 2 Gaines’ R., 120.
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Cole, J.
It is not entirely clear from the arguments of counsel, whether they regarded this action as one at law or one in equity. Looking at the nature of the relief demanded in the complaint, which we suppose determines the character of the action (Gillett v. Treganza, 13 Wis., 473), we think it must be treated as a suit in equity, brought by the plaintiffs as vendors to enforce the specific performance of a contract for the sale and purchase of real estate. The case will be considered by us in that aspect.
The contract for the sale and conveyance of the real estate by the plaintiffs- to the defendant is in writing, and is only signed by the vendors. And the first question to be considered is, Did it become binding upon the defendant, so that, if not vitiated by fraud, it can be enforced against him ? It is claimed by his counsel that it never became a valid binding contract upon the defendant, because he did not execute it; and therefore that he is not liable rrpon it. This question is practically decided adversely to this view in Vilas v. Dickinson, 13 Wis., 488. That'was an action upon a bond for the conveyance of real estate, brought by the obligor against the obligee to recover a portion of the purchase money. The objection was taken that the obligation was signed by the plaintiff only, and therefore was not binding upon the other party. But the objection was overruled, the court holding that a party who accepts and adopts a written contract, although it is not signed by him, is bound by its terms and conditions. But it is insisted that under the statute of frauds the defendant is protected, because he did not sign the instrument upon which the action is founded, and which creates a n estate in lands. Our statute in substance enacts, that any contract for the sale of lands or of any interest therein shall be void unless the contract, or some note or memorandum thereof expressing the consideration, be in writing, and be subscribed by the party by whom the sale is to be made. Sec. 8, ch. 106, R. S. The distinction between this provision and the English statute, which required the contract to.be signed [183] by the party to be charged, is pointed out by the chief justice in Dodge v. Hopkins, 14 Wis., 631-641, and need not be dwelt upon here. See also Hodson v. Carter, 3 Chand., 234. The signature of tbe party who makes the sale satisfies this provision of tbe statute. But then the question arises, whether the contract signed and delivered by the plaintiffs, and accepted and adopted by the defendant as the agreement between them, binds the latter. This can hardly be said to be an open question, certainly not after the' rule laid down in Vilas v. Dickinson, which was an action at law. True, it has been gravely doubted by very eminent equity judges, whether an agreement which was signed by one party only should be enforced against the other in a court of equity ; but the rule is firmly settled that it may be, especially where specific performance is sought against the vendor. The want of mutuality is held to be no objection in such a case; or rather it is said that the plaintiff, by the act of filing the bill, makes the remedy mutual. But jit seems to me that the real foundation of the rule is, that the party who accepts and adopts a written contract, though not signed by him, should be deemed to have fully assented to its terms and conditions, and is therefore bound by them. He ought not to be in a position where he can hold the other party to the contract, and compel its performance, if advantageous to him, and at the same time be at liberty to avoid the contract on his part if disadvantageous. Both parties ought to be bound by the contract, or neither should be bound. And where the contract has been accepted and adopted by the party not signing it, he does assent and agree to it on his part, and the law implies a promise to perform. It is analogous in principle to implied covenants, which depend for their existence on the intendment and construction of law. Platt, in his work on Covenants (sec. 3, ch. 2, part first), gives many instances where implied covenants are raised and are held to be as effectually binding on the parties as if expressed in the most unequivocal language. See also Vyvyan v. Arthur, 1 Barn. & Cress., 410.
[184] In the present case, the plaintiffs, for and in consideration of $850, agreed to sell and convey to the defendant an undivided interest in the lands therein described; the conveyance to be made within ninety days from the date of the instrument, at which time payment was to be made. The evidence, we think, shows that the defendant accepted and adopted this written contract, and assented to its terms. And unless the contract is affected by misrepresentation or fraud, it must be held binding upon both parties.
It is claimed by the counsel for the defendant, that there was a conditional delivery of the contract, and that it was not to be binding on the defendant unless upon an examination he should find the lands to accord in all respects with the representations made at the time of sale. We do not think the facts warrant the inference that the parties agreed that the plaintiffs should be bound by the contract while the defendant was to retain for a time his option to be bound or not. This was not the arrangement. Nor could the contract be delivered to the defendant to remain in escrow. The cases cited on the brief of counsel for the plaintiffs are clear to the point, that if the grantor does not intend that his deed shall take effect until some condition is performed, he should keep it himself or leave it with a stranger; and we see no reason why the same rule should not apply to the delivery of a written contract for the sale of real estate. We therefore must hold, upon the facts proven, that the delivery of the contract was not conditional, but that it was executed and delivered by the plaintiffs, and accepted and assented to by the defendant, as an obligation binding on both parties. This, we think, made it a valid agreement in law. See Gale v. Nixon, 6 Cowen, 445; Reynolds v. Dunkirk & State Line R’y, 17 Barb., 614; Roget v. Merritt, 2 Gaines’ R., 120.
The circuit court held that the contract was not within the statute of frauds, but was binding upon the parties so far as by its terms it purported to be obligatory. The court further held, that as the promise of the defendant to pay the purchase [185] money was implied, or rested in parol, parol testimony was admissible to show that this promise was not absolute, but conditional. The defendant sets up in his answer, and so testified on the trial, and adduced other evidence to the same effect, that when the sale was made the plaintiffs represented that the lands were good cranberry lands, and that they were all the lands of that character in that portion of the state; that they could be easily drained and flowed, and made productive for growing cranberries; and that unless, upon a personal examination and inspection of the lands, these representations were found to be true, he was not to pay the purchase money. The court found in favor of the defendant upon this parol evidence. It seems to us that this evidence was incompetent, and that the terms of the written instrument could not thus be changed by parol proof. By the contract the conveyance was to be made within ninety days from its date, at which time payment was to be made. If we are right in saying that the defendant adopted and assented to this condition, it amounted to an absolute promise to pay at that time, and could no more be varied by parol proof than any other stipulation of the contract. The effect of the evidence admitted was the same, so far as changing the terms of the contract was concerned, as though the defendant had proposed and been allowed to show that he was not tp pay $850 for the land, or was to have six months or a year to make payment. It was an attempt “ to show by parol that the actual contract was different from that which was manifested by the language of the writing.” The judgment, we think, cannot be sustained on the ground upon which it was placed by the court below.
"We have already remarked that we regard this action as one in equity to enforce a specific performance of the contract against the vendee. Now, it does not follow, though this contract is valid and binding upon the parties in point of law, that it must be carried into execution by a court of equity. On the contrary, if the court become satisfied that there were [186] fraudulent representations made in regard to the lands, as alleged in the answer, it might not only refuse to decree specific performance, but it might rescind the contract altogether. In his answer the defendant does not ask for a rescission of the contract on the ground of fraud, though he sets up matters as a defense, which, if established by evidence, might induce a court of equity to withhold its aid to enforce it. For “ it is a principle in equity, that the court must see its way very clearly before it will decree a specific performance, and that it must be satisfied as to the integrity and good faith of the parties seeking its special interference.” Lord Lyndhurst, in Brealey v. Collins, 1 Younge, 317-327; Watters v. Morgan, 3 D., F. & J., 718. In this case, if the court should'simply refuse to interfere, and dismiss the complaint, the parties would be left to their legal rights upon the contract. The proof in regard to the misrepresentations is somewhat conflicting, and another trial may throw additional light upon these questions. We have therefore concluded to reverse the judgment, and send the case back to the circuit court with directions to allow the defendant to amend his answer by asking for a rescission oE the contract on the ground of fraud — if he shall be so advised,— and for another trial of that issue. We have most attentivel}1-considered the evidence, and are quite clear that the plaintiffs ought not to have specific performance in the present state of the proofs.
By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for further proceedings in accordance with this opinion.