Justice agt. Lang. paid. It is apparent that the same return has been made in this case as in the others, without observing the difference in the time claimed for. The order should be reversed, and a peremptory writ ordered to issue. NEW YORK SUPERIOR COURT. PHILIP S. JUSTICE agt. WILLIAM B. LANG, and others. A contract for the sale of goods is not binding on the vendor, unless a note or memorandum thereof in writing, signed by the vendee as well as the vendor, where no part of the goods are delivered, and no part of the purchase money is paid. The statute of frauds requiring that "a note or memorandum of such contract be made in writing, and be subscribed by the parties to be charged thereby," is not satisfied by being signed by one of the parties to the contract only, but it requires the contract to be signed by both parties. (McCUNN, J. in an able opinion dissents.) General Term, February, 1866. Before ROBERTSON, Ch. J., BARBOUR and McCUNN, Justices. APPEAL by the plaintiff from a judgment dismissing the complaint. EDMUND TERRY, for plaintiff. SAMUEL E. LYON, for defendants. By the court, ROBERTSON, Ch. J. The plaintiff seeks to recover damages for the non-performance by the defendants of a promise contained in an instrument in writing signed by them, which is as follows: "NEW YORK, May 13th, 1861. "We agree to deliver P. S. Justice one thousand Enfield pattern rifles (with bayonets, no other extras) in New York, at $18 each, cash upon such delivery; such rifles to be shipped from Liverpool not later than 1st of July, and before, if possible." Justice agt. Lang. Such instrument, or any similar one, was not signed by the plaintiff; no money was paid on account of the sum mentioned therein, nor were any of the articles mentioned therein ever delivered by the defendants and received by the plaintiff. On the trial, the complaint was dismissed. This raises the question whether under the third section of the statute of frauds (2 R. S. 136), a contract for the sale of goods is binding on the vendor, unless a note or memorandum thereof in writing, be signed by the vendee as well as by him, where no part of the goods are delivered, and no part of the purchase money is paid. It is clear that the vendee is not bound by such contract in such case unless he signs it, and there is, therefore, no consideration for the undertaking of the vendor. The question, therefore, presents itself, whether the statute referred to by such section intended to alter, in regard to promise in writing for the sale and delivery of goods, the rule of the common law that a parol promise without a consideration was void, and has used language sufficient for the purpose. That rule was originally adopted to prevent frauds and perjuries. It assumes that it is unnatural and unusual for any party to intend legally to bind himself to do anything without some equivalent. If the promise be gratuitous, the law properly held its performance should be entirely voluntary. If a consideration is testified to, fraud in it or its inadequacy or failure may be set up as a defence. At the same time the law afforded to a promisor an opportunity to bind himself legally without a consideration, by the solemnity of a writing under seal. If proof of the parol agreement. of the party not signing, to comply with the terms of such an instrument be necessary to make it binding on the parties signing, it is evident that some part of that which goes to make up the contract must depend on parol evidence, that evidence may be conflicting, and the whole evil intended to be guarded against is let in. If no proof of such parol agreement is necessary, a mere proposal or offer Justice agt. Lang. in writing, could be converted into an agreement binding on the makers of it at the pleasure of the party receiving it at any time afterwards. The voidness of a parol agreement without a consideration, was not one of the evils intended to be guarded against by the statute of frauds, but dependence upon parol testimony to make up any part of what constitutes a contract of the kinds mentioned therein in the cases therein specified (Abee agt. Radcliff, 13 J. R. 297). Under the original statute of frauds, which did not contain the words "expressing a consideration," it was early held that a consideration must appear on the face of the instrument signed, otherwise the whole contract did not appear in writing (Wain agt. Walters), and it was so decided in this state (Sears agt. Brink, 3 J. R. 210). Clearly then, if a consideration was stated, which for any reason was not good, the written promise would not be binding. For if the written memorandum signed by the vendor alone should state that the vendor bound himself to sell and deliver certain goods in consideration of a mere parol promise of the vendee to buy them, without the payment of any part of the purchase money by the vendee, or delivery of any of the goods by the vendor, it would not set out a contract but a mere promise, without a valid consideration, and the vendor cannot be put in a worse situation by omitting to state the consideration in such memorandum. In the case of Roget agt. Merrit (2 Caines, 117), although the learned justice (SPENCER) thought it enough for the one who had to "perform the principal part" of the contract, such as to deliver the goods, to sign it, and the other to accept it, he yet held that the defendant was not bound, because the consideration agreed (orally) to be given by the plaintiff failed. I am unable to appreciate the distinction between a void or not binding consideration, and one that fails in regard to the obligatory character of the whole contract. The language of the section of the statute in question is "subscribed by the parties to be Justice agt. Lang. charged thereby." This is in contrast with the language of the immediately preceding section (§ 2), where the words are "subscribed by the party to be charged," but the agreement recited therein are those in which one party is to receive all the benefits, and is not required to do any thing. The first is an agreement to perform anything whose performance may require over a year. The second is a promise to answer for the debt of another, and the third is every agreement whose consideration is a marriage; the length of time in the first case, and the danger of a misunderstanding and imperfect resolution, if not perjury, in the second and third, make it proper to insist on the production of a written contract from the party agreeing to do the work, pay the debt, or for the consideration of a marriage do anything more, while proof of the consideration moving from the party for whom the work is done, to whom the debt is paid, or the person who marries in con sideration of the promise, can safely be trusted to parol evidence. The sections of the same statute relating to conveyances creating, granting, assigning, surrendering or declaring interests, powers or trusts in lands (2 R. S. 134, §§ 6, 7), and to contracts for the lease or sale of lands, or any interest therein (2 R. S. 135, §§ 8, 9), are made still more definite, as the first are required to be subscribed only by the party creating, granting, assigning, surrendering or declaring such interests, powers or trusts, and the second only by the party by whom the lease or sale is to be made. But a sale of goods implies certain things of a definite character to be done on both sides, the terms of which are to be definitely fixed. The goods are required to be delivered, and the title thereby transferred by the vendor, and in consideration of a price, and the price is to be paid as such by the vendee in consideration of the transfer of the goods. The partial performance of either is made equivalent by the statute to a writing, undoubtedly on the same principle on which equity sustains a mere oral Justice agt. Lang. contract to convey lands. "Parties to be charged in such case, means something more than the party who alone is to be charged" with the performance of work beyond a year, or the payment of the debt of another, of to do something in consideration of a marriage, which is an executed consideration. It means the party who is to pay the price, as well as the party who is to transfer the goods, the contract on both sides being of a well defined character, consisting of but one kind of obligation on each side, with whose performance the parties are respectively to charge themselves by the subscription. I am satisfied, therefore, that the intention of the statute in regard to a contract of sale and purchase of goods, was that the obligations on both sides, which are of a fixed and definite character, although their terms may vary, should be assumed by both parties by signing a written contract, in order to be binding on either; and that this view is supported by the general objects of the statutes to secure certainty and prevent frauds, by the definiteness of the obligations to be assumed on both sides in a contract of sale, and the marked difference in language when the consideration on one side, which may be infinitely varied for certain specified obligations in the other, is left open and not defined, or the consideration is the peculiar executed one of a marriage, or the instru ment to be signed affects land. The learned judge who delivered the opinion of the court in Dykers agt. Townsend (2 N. Y. 57), sustains this view when he says: "As an original question, I should have no hesitation in saying, in a case where a contract was entirely executory on both sides, and no part of the consideration had been paid, that it was necessary it should be in writing under this statute, and be signed by both parties thereto, in order to be bind. ing on either." It remains to be seen, therefore, whether it is an original question. Courts of equity, in enforcing the specific performance of agreements in relation to land, early took the ground |