Justice v. Lang. He then says, that, in his opinion, "the objection itself is not well founded in point of fact;" and after a reference to the memoran um and its contents, and the facts found by the special verdict, he con clides that the contract was, in judgment of law, reduced to writ ing and signed by both parties. Another objection, taken by Clason in the supreme court, and by the executors in the court for the correction of errors, to the validity of the contract (not material to the case now under review), was then considered by the learned chancellor, and held to be untenable; and thereupon the judgment of the supreme court was affirmed (two senators dissenting). It may be important in this connection to advert to the fact that this opinion was delivered in 1817, nearly nine years after what was said by him as chief justice in Bailey & Bogart v. Ogden, 3 Johns. 399, supra, and about three years after the intimations made by him in Parkhurst v. Van Cortlandt, 1 Johns. Ch. 282, and Benedict v. Lynch, id. 370, to the effect, that an agreement concerning lands, to be enforced in equity, should be mutually binding, and to which he probably had reference in that opinion, and as to which he said, therein, that it appeared from the view of the cases that the point was too well settled to be then questioned. Although, in view of the conclusion arrived at by the learned chancellor on the other point (that the contract was, in judgment of law, reduced to writing and signed by both parties), it was not, as he himself stated, absolutely necessary to place the cause on the ground first discussed and considered by him as above mentioned; yet, as it was raised by the facts found by the special verdict, on which the supreme court had given judgment, and on the argument in the court for the correction of errors, it was material that it should be considered by him. He remarked, in the commencement of that opinion, that the case struck him, on the argument, as being plain; but as it may have appeared to other members of the court in a different, or, at least, in a more serious, light, he deemed it proper and necessary to state the reasons for his opinion on both the questions subsequently examined and discussed by him. It, as it appears to me, is a perversion of terms, and an entire misconception of the effect and force of the able and elabc rate opinion of that learned and distinguished jurist, to characterize or treat it as a mere obiter dictum. Justice v. Lang. GARDINER, J., in James v. Patten, 2 Seld. 9, in which it had been claimed by counsel that a case, cited on the argument in support of, and, indeed, decisive of, the question then under review and consideration, might have been decided on other grounds than those stated in the prevailing opinion on that point, said: "We are now gravely informed that it was possible to reverse the judgment upon other grounds. The effect of any decision in a court composed of more than a single judge might in this way be avoided. But when two questions are presented to the appellate court, upon which their decision is asked, both of which are discussed by counsel, and each 18 considered and determined in the only opinions read in the hearing of the members, the majority must be deemed to acquiesce in the conclusions upon those questions reached in those opinions, unless some one dissents. With a different rule, there could be no such thing as the establishment of a principle by the court of last resort, when more than a single point was presented." And PAIGE, J., said in the same case: "Where several questions arise in a cause,. and the opinions delivered agree in regard to all of them, and the other members give a silent vote of concurrence, then all the questions will be deemed to have been determined by a majority of the court, and the case will be regarded and respected as an authoritative adjudication of all such questions." In the case of Clason v. Bailey, 14 Johns. 484, supra, the opinion of the chancellor was the only one delivered, and must be held to be an authority of the court of last resort on the very question now presented for our decision and adjudication. The question again arose in the supreme court in 1829, in Russel v. Nicoll, 3 Wend. 112, which was an action by the plaintiffs claiming damage for the non-delivery of a quantity of cotton alleged to have been purchased by them of the defendants. The contract was substantially in all essential particulars like the one in the present case. It was in these words: "NEW YORK, February 9th, 1825. "Sold by Daniel Rapalye, for our account, to R. M. and J. Russell, five hun dred bales of cotton, at sixteen and a half cents per pound. Said cotton wa purchased for our account at Huntsville, and is to be delivered, on its arrival at this port from New Orleans, at any time between the present date and the first day of June next, and the amount to be cash on delivery, to be reweighed, and two per cent tare allowed. "FRANCIS H. NICOLL & CO." Justice v. Lang. The plaintiffs were nonsuited on the trial at the circuit, on grounds other than that now under consideration. But on the review of the case by the supreme court, the counsel for the defendants stated that the plaintiffs, if an action had been brought against them on the contract, might have interposed the statute of frauds as a defense, they not having signed any note or memorandum in writing of the bargain; and, the agreement produced being signed only by the defendants, that the plaintiff could not have been holden, and the defendants were not bound, and that, though this objection was not taken at the circuit, the court would not grant a new trial if they perceived that the plaintiffs must be nonsuited on that ground; as to which point the court, by MARCY, J., said. in the commencement of his opinion: "It was insisted on the argument that the contract declared on was within the statute of frauds, and void for not being reduced to writing and signed as the statute directs. This objection is not sustainable. If the contract be within the statute, it is very clear that the signing by the defendants is a compliance with its requirements. Egerton v. Mathews and another, 6 East, 307; Saunderson v. Jackson and another, 2 Bos. & Pul. 238.” The question was thus distinctly raised and decided in the supreme court, and the decision is a distinct and positive authority thereon. If the objection had been well founded, it would have been decisive against the plaintiffs' right of recovery, and there would have been no necessity to consider the questions raised at the circuit, and which were afterward elaborately discussed in the opinion. Those questions were based on the assumption that the contract was valid and obligatory on the defendants. The circumstance that the question arising on the statute of frauds was not raised at the circuit does not impair, or in the least weaken, the effect of the decision thereon by the supreme court. On the contrary, it shows that the eminent counsel for the defendants did not at that time deem it available and effectual, and they probably presented it, in opposing the motion to set aside the nonsuit, on the principle that they would not then fail to present and urge any point on which the nonsuit might be sustained or supported. The next case referred to by the counsel was that of Dykers & Alstyne v. Townsend, reported in 24 N. Y. 57, etc. That was an action to recover damages for the failure of the defendant to receive and pay for 1,100 shares of the capital stock of the New York and Justice v. Lang. Erie Railroad Company, purchased under three several contracts, one of which is set forth in the case, and is in the following form: "NEW YORK, May 2d, 1854. "I have purchased of Dykers, Alstyne & Co. 500 shares of the New York and Erie Railroad Company at seventy (70) per cent, and deliverable in sixty days buyer's option, with interest at the rate of six per cent per annum. "W. S. HOYT." The other two were in the same form, except that one of them was signed by one Brown. It was alleged and proved on the trial that Hoyt and Brown were brokers, and acted as the agents of the defendant in making the contract. When the plaintiff rested, the defendant moved to dismiss the complaint, on the grounds that the contracts were signed by Brown and Hoyt in their own names, and that the name of the defendant nowhere appeared upon them; that parol evidence could not be introduced to show that the defendant was the person for whose benefit the contracts were made, and that the plaintiffs had not shown any valid contract between themselves; and the defendant took an exception. Proof was then offered of certain facts, for the purpose of showing the contract void under the stockjobbing act, in force at the time of the sale, which was rejected, and the defendant took an exception. The plaintiff recovered a verdict, and judgment thereon was rendered at general term, in the first district, which, on an appeal to this court, was affirmed without any dissent to such affirmance. One of the judges, SELDEN, J., was absent, and another, JAMES, J., expressed no opinion. That decision, so far as it affects the present question, gives no color for sustaining the judgment in the case now under review. It is true that Judge HoYT, in giving his opinion for its affirmance, remarked, that, as an original question, he should have had no hesitation in saying, in a case where the contract was entirely executory on both sides, and no part of the consideration had been paid, that it was necessary that it should be in writing, under the statute, and be signed by both parties thereto, or their agents, in order to be binding upon either; or, in other words, there being no consideration paid, the promise of one party would be the consideration for the promise of the other, and that both must be in writing to charge either; and, after referring to the distinction between the section of the statute applicable to that case, Justice v. Lang. and section 8, relating to a contract for the sale of land, which he concedes, on the authority of this court, in Worrall v. Munn, 1 Seld. 244, is only required to be signed by the party by whom the sale is to be made, and after adding, that, in the case of a contract for the sale of goods, he should say the party to be charged means the vendor upon his contract to sell, and the vendee upon his contract to accept and pay for the goods, he added, that this question did not appear to have been directly raised on the trial; if it had been, it might, perhaps, have been obviated by the production of a counterpart of the contract, signed by the plaintiff, and then said: "As there are several authorities which seemingly, at least, give a different construction to this and similar provisions in the former statute of frauds, I do not propose to further discuss the question at this time." And after a more particular reference to the requirements of the statute, he concludes with the remark: "In this case, a note or memorandum of the contract was made in writing, and signed by the lawful agent of the defendant, and we think that this was sufficient compliance with the statute, according to the settled construction that has been given to it." The only other case referred to by the respondent's counsel, on this question, was that of Brabin v. Hyde, 32 N. Y. 519, which he says decided that the memorandum must be signed by both parties. This is clearly a mistake. The action was brought by the plaintiff to recover the possession of a mare and colt, which he claimed as owner, by purchase from one Milton Blackmer in August, 1857; and which, on the third day of September next thereafter, the defendant took from his possession, under a claim that he owned them under a purchase from the same vendor in the month of July preceding. The plaintiff recovered a verdict, on which judgment was entered. That judgment was reversed by the general term on appeal, and the plaintiff thereupon appealed to this court. The judge on the trial, in his charge to the jury, after stating that the defendant had given evidence of a prior bargain, and that it was objected by the plaintiff that the contract under which he claimed ownership was void by the statute of frauds, read and explained the statute, and then charged, "that, according to the defendant's narrative of facts, the contract rested solely in words. There was no other evidence of it; there was no delivery of the property or memorandum made, as the contract was narrated by him, nor any payment, nor was the property present at |