Robert Barry, Appellant, vs. Griffith Coombe, Appellee

Robert Barry, Appellant, vs. Griffith Coombe, Appellee. The statute offrauds.in Maryland requires written evidence of the contract, . or a Court cannot decree performance. The words of the statute are “ unless the. agreement upon which such action shall be brought, or some memorandum or note thereof, shall.be in writing signed by the party to be-charged therewith, ,or by some other person by him thereto lawfully authorized.” {650} A note or memorandums-writing of the agreement between parties, is sufficient under the1 statute of frauds of Maryland'; and in order to obtain specific-performance-in equily, the note in writing must be sufficient to maintain an action at law.-The form is not regarded, or the place of signature, provided it be in the handwriting of the party, or his agent, and furnish evidence of a complete and practicable agreement.' A Court of Equity will supply no more than, the ordinary incidents to such-an agreement, such as the. ingredients of a complete transfer,. usual .covenants, &c. {650} An examination of the cases will-show that Courts of Equity are not particular, with regard to the direct and immediate purpose for which the written evidence of the contract was created. It is written evidence which the statute requires; and a note.br letter, and even in one case a letter, the object of which was to annul the contract, on a ground really not .unreasonable, was held to bring a case within the provisions of the statute. 1651} . Where, in. an account stated by the parties, in the handwriting of the defendant, his name being written by-' him at the head of the. account, a ba. lance was acknowledged to be due by him to the complainant in the bill for'a specific performance,"there was the following credit; “ By my purchase of your half E. B. wharf and premises this day agreed upon, between us, $75%8 63 ;”;it was held to be a sufficient memorandum in writing under the statute of frauds of Maryland, upon which the Court could decree a specific performance of the sale of the estatf referred to fother matters áppearingin evidence, and by the admissions of the defendant in his answer, to show the particular property designated by “ your ¿ E. B: wharf and premises.” {651} THIS was- an appeal from a decree in equity, of the Circuit ' Court for the county of Washington, against Robert Barry the appellant* upon a bill filed by Griffith Coombe, for the specific execution'-of a contract for the sale of real, estate in the city of Washington, and for the payment of the balance of an account, which it was alleged had been settled and agreed upon by the parties." Thq material charges in the bill, and.which were brought into the eoits.ideration of the Court, by the counsel in argument, ■ wer;e;that various transactions,' commencing.' in 1815, had taken place between’thecomplainant-and the defendant, who then ’ resided in Baltimore, together' with a certain James D. .Barry of the city of Washingtotí, as "joint proprietors of -a tanyard, in which the business of tanning .and selling leather was carried op; in the course of which, the concern became largely indebted to the complainant, and to other persons;, for the payment of which securities had been given.. Afterwards, in 1821, the partnership between the defendant and James I). Barry, was dissolved, and the whple of the stock in trade became the property.of the defendant; who afterwards continued the business on his own account. That about the 18th of May 1818, the complainant and' the defendant purchased an estate on the Eastern Branch of .the Potomac in the city Washington, upon which were erected a dwelling house, warehouse, and wharf, and which was held by tlie. complainant and the defendant as tenants in common. Large expenditures were made by the complainant for the repairs of the property, and the defendant was considerably indebted to the complainant for his proportion and share of the same. The bill further charged, that, about September 1820, a set-, tlement of all accounts’took place between, the parties, upon which’the defendant was found in’arrears, and admitted himself to be indebted to the complainant, a stated balance of 9,078 dollars 33 cents; and for the purpose of liquidating, and ■ discharging the balance, so due by the; defend ant, a bargain was then concluded for the sale of the defendant’s moiety of the said premises, on the. Eastern Branch, so held by them in common; for. which the complainant agreed to allow him the price of 7,578 dollars 63 cents, to be passed to his credit, in account against the stated balance; the balance of .1,500 dollars still remaining due, the defendant agreed to pay with interest in instalments, in one, two, and three years, and to give his promissory notes for the same; iii consideration of which agreement, on the part.of the defendant,.the. complainant agreed to discharge the parties who had been concerned in the lanyard, from the debt due to him, on account of .certain endorsements; and to reliquish tbthé defendant his interest in, and lien upon, leather which he held. Whereupon the defendant immediately drew up, in his own handwriting, abatement of the said settlement, bargain, and agreement, in' the form of an account between himself as debtor, and the complainant as creditor signed at the beginning with the defendant’s name in his own handwriting, ' and at the foot with tlie complainant’s name in his handwriting: in which written statement, aré set down the’ heads of the several accounts upon which the said balance of 9,078 dollars 63 cents, was ascertained against the defendant •as aforesaid; the' credit and deduction of the purchase money, agreed to be allowed the complainant for the defendant’s moiety of the said estate and premises on the Eastern Branch, as aforesaid, described in said statement as “ your [meaning the defendant’s] l E. B. [meaning Eastern Branch] wharf and premises;” and expressly stated as purchased by the complainant on the day of the. date of said paper, with an express reference to the said agreement between the complainant and the defendant; and lastly, the said balance of 1,500 dollars, remaining due. after'deducting the- credit for the said purchase money as aforesaid, payable by instalments as aforesaid. The statement of the account, alleged to'have been so. drawn up, was as follows ' u. Washington, 9.7th Sept, 1820. ■ “ Robert Barry, To.G. Coombe,• Dr.' “ To amount of-J. D. Barry’s notes taken up by me, and secured by him in tanyard-stock, and leather; per bill dated 27th Dec; 1819, - - - 84,209.00 .“ Interest on do. to this- day&emdash;9 Mos. - • 184 -40 ■ ’ ' . v.-:--84,395 40 ■ - “ To bill of leather sent you in June, 1819', 8 2,846 50 f ‘ Interest to-this date&emdash;15 Mos. - - 216 65 . . -- 3,06315 . “To balance due on tanyard-books, (E. É.) ' 284.25 “ To cart of hay for tanyard, '- -. 37 37 “ To balance due for supplies to'tanyard,' per account furnished .you, - - - 152 64 474 26 “ To é expenses of-repairs on hous.e and . wharf, E. Branéh, - ' - - • r 1,145 49 8 7,930 81 “ Interest, 9 Mos." r - - - - • '51 52''' 1,197 01 “Cr. .... 89,12782 “ By i rent'and whárfage, &c. óf-sundrys, - to this day on E. B; wharf, - - - . - - 49 19 ~` By mypwchasè afyour ~ `E. B. w1zarfandpremi~es, thi~ day as agreed on~eiween us; co<D CO p Ci S co CD 00 K “ Balance due G. Coombe, fifteen hundred dollars,- 8 1,500 00 “ Payable in one, two and three years, with interest. (Signed,) G. COOMBE.*’ •The bill charged, that this paper, each party having a copy, was, for the purposes ,of mutual security,' delivered to Daniel Carroll, Esq. of Duddipgton, who was a creditor of the partnership. . . It was further alleged, that the complainant went on to do and perform all that he had assumed and undertaken under .the agreement and settlement; that he-Wok possession of the premises on the Eastern Branch, and'Eas laid'out and expended' large sums of money in the repairs afid improvements thereof; and that although: he has repeatedly-made efforts to obtain from the defendant, a conveyance of the property, so agreed W ' be- conveyed to him by the .defendant, it has not been Wade. • The bill then prays the specific relief to which the complainant alleges-himself entitled in equity, 'under the contract; and the benefit óf such.a .recpvéry, as he might have at. law, by attachment or. Otherwise, for the .debt due to-him as .stated in the account. '. . Among the documents .contained in the record, is the following' letter from the complainant,, to the defendant, and which by the affidavit of. John.P. Ingle, was proved to have been delivered to the defendant on the 5th.of April .1822. Washington City, March 26, .1822. Mr. Robert Barky., ■ Sir — It' is now time that I. should have your final answer,, whether you will execute the; Contract.made between us in presence of Mr. Carroll, for the conveyance of your mioiety of. the house,' wharf, and premises on the .Eastern' Branch, and for the payment and security' of -the balance due me in* money, For this'purpose I have . authorized Mr. John P. Ingle to call on' you- in.my name, and'■receive -your conveyance, a form-of which he will present yoú,. which you'will please execute, and. acknowledge in due .form,'so as to make it effectual here. Please also.pay to Mr. Ingle'the instalment of 8500, due in September last, with ■ interest from 27th September 1820. Please also to execute and deliver; to M-r, Irigle, your- two notes for- the other, instalments, drafts of which, hé will present you:- I álso require of.you the surrender of J. D. Barry’s draft,. endorsed by me for 81000, which had been discounted in the Bank-, of Washington,, and which you promised .to taka.up ,¿nd release me from. I must notify you, that if: you persist in' refusing to comply with' the terms of your contract, according to ■your pledged faith in presence of the respectable witness-above-mentioned, .! shall hold you accountable in money, for the whole bal ¿rice, duú me- according to our-settlement, arid shall merely .hold the house, wharfj&c. which you were to have conveyed' to me, as collateral security for the entire balance ascertained by that settlement, and for the expenses, since laid out in repairs and improvements' of the. same, under .the faith of your' . contract. Respectfully^ your obedient servant, . Griffith Coombf. The defendant, Robert Barr.y, denies' in his answer, the liabilities to which, by the bill of -the complainant, he is said to haVe been .under as connected • with the tanvard, and the concern with James Df Barry; and, after stating other matters, not necessary to be inserted, admits, in the language of the answer, that in the year 1820, he. had a conversation with' the complainant .about settling their- accounts, “including the debt alleged to hive been secured by the pretended bill of sale aforesaid, and the complainant then proposed to purchase from this defendant, Ms undivided moiety of the lots; and wharf aforesaid, and that the amount of purchase money should, b.e considered as a payment to' the complainant, in part of .the amount which he then alleged was owing to him;. arid the defendant, ai the request of the complainant, who alleged the badness of his handwriting’ as an excuse for making that request, copied from a written me-, morandum furnished by the complainant, the statement of tjie account referred to, in which the .defendant’s name was written by him, only for the purpose of stating him as debtor to the complainant, in compliance with Ivisr req test, not as signing any contract or agreement. And that the said statement so written ■by him, at the instance and request of the complainant, being signed by him, was delivered to this, defendant, for the purpose of. considering whether, after due examination, he would assent to the .terms therein proposed, and was not deposited in the hands of JDmiiel Carroll, as'the. complainant alleges. . For this defendant de-dares, that he did not then assent to the correctness of the several charges and estimates in the said statement, although'he expressed' Ms willingness to sell his undivided m-oiety of the said wharf and, premises for the price proposed by the complainant, if this defendant should be satisfied, on examination, that he would actually receive a-compensation fidly equal in value to the said price; and therefore-the said statement was delivered to this defendant,^»’ the purpose of examination and consideration as áfoxesaid, and has always since been, and now is,.in the possession of .this, defendant; and in reference to the said yerbal agreement, and explanatory of the condition on which this defendant was willing to carry the same into effect; this defendant a few days after he received the said statement, having disco vereda pari of the representations made to him, as aforesaid, to be incorrect, wrote a letter, to -the complainaut, representing the said ■ conditions so far as they were affected by the discovery then made, a copy of which letter this defendant herewith exhibits, which he prays may be received as a-part Of this his answer; which letter >vas, as this defendant, believes, delivered to the complainant, and was read by him, and is probably in his possession, ór in his power to produce; and this defendant prays that the said original letter may be here produced.' The answer also state?, that, upon'subsequent examination, the account whichWas made out, and, in which was the entry of “ E. B; wharf, 8tc«” had been found erroneous in many particulars.- . The answer submits to the decision of the Cdurt, ,'whether the account set forth ift the complainant’s bill, is “an agreement, such as is requifecf by law and- equity, to. compel the. defendant to make the sale and conveyance claimed and prayed, by the complainant. ” The letter referred- to, in the defendant’s answer,, is as follows :— Baltimore, 7th October 1820. Mr. Griffith Coombe, Sir: — Having agreed to sell you nay undivided half interest^ in- the Eastern Branch- wharf and premise's, at-Washington; lately deeded to you and-to me,'by James D. Barry, l.hereby bind myself to give you-a good and sufficient conveyance of all my right and title in law and equity for' the same', as spón as you-send me, or that I-receive, the stock of leatherpow working out at the tanyard, (the same being a part of the. consideration for my right to said property,) or otherwise place the proceeds thereof'at my disposal, as far as' you have, .or can, or shall have,.’the right or power to do,' or caus'e to be done,, agreeably to the inventory lately given me by Mr: Edmund Rice, of said stock and materials^ which inventory must embracé a quantity of finished leather, amounting to about eight hundred arid six dollars, removed by him to,his brother William’s store; and as this-lien to you is blended, with a lien to others, 1 further engage on receipt of said stock of leather, to provide likewise for the lien held thereon by- Mr. Daniel Carroll,- of.Dud.. foi: about eighteen hundred dollars,- and. also for the payment of a lien- On said stock of leather, to secure" the amount of a noté due to Edmund Rice, or endorsed by him,- át the Patriotic Bank, for about twelve-hundred dollars'; and, in Other respects, to-settle. for any balance-1 may owe ytfu on the account you' have fur- . nished me, agreeable to the principles' of equity and justice. I remain, &,c. yours, respectfully.,’ P-. S. The effect.of .the paper signed by you, and deposited-. iyith Mr:'Carroll, will, of course, remain, suspended, subject to its conditions, for the'purpose of carrying:.-the foregoing into effect, and which will, by me, be complied., with-in good faith. The evidence-before- the Circuit Court, consisting'of the examinations of Mr. Pleasanton, Mr..Carroll; and others,-and what is contained in the record, are sufficiently stated in thp opinion of the Court. The case was argued for .the appellant-,by Mr. Cox¿ and Mr. Worthington; and by Mr. Jones, for.the appellee. The appellant .contended: 1st. That there was no final agreement .between-the parties. 2d. If there was, it was' void under the statute of frauds. ,3d. Supposing’ an agreement fully 'concluded, it was obtained by misrepresentation, and fraudulent concealment. 4th. It was without consideration. The counsel for the appellant .cited . the following authorities : — 13 Vez. 76. Préc. in Chan. 500: 1 Aik. 12. 449; lb. 497.' 2 Ihssas, 145. 1 John. Ch. Pep: 149. 279..283. 1 Cox,-222. IP: Williams, 771, n. ' Sugdm on Vend. 71. 86. 91. 1 Equ. Cases Abr. 20. 4 Taunt. 754., Jonés on Cont. 167. 1 SchJ ^ Lef. 9.%. \ Vezsjr. 226'. 336.! 2 Sell. VLef. 7. 557.3 Vez. 185. 379. 6 Fez. ,39. 1 Édw. 516. . 8 Com. Big. 362.. Shi 705. ■■ LI Ray. 1410.. 2 Camp. -308. 2.«#i&. 4,88. 3 Camp, 493- 15 East, 7. 3 T. Rep. 757.- 761. 2 P. Williams, 217. SAtk. ¿83.6. 1 .Dessas, 2,57. 2 Sch. & Léf. 554.' 18 Vez.. 10. 2 Ball# Beat. 369. 1 lb.'256. 2 Wheat. 336. 7 Vez. 341. 5 ;Serg. fy Lowb. 485. 2 Caines’ R. 241. 4 John. 251., 2 76. 300. 16 lb. 54. For the appellee, it was argiied, 1. -That the. original agreement was'sufficiently certain and precise in its term?; and was ascértained1 by a sufficient metno■randum in writing, under the statute of frauds.: 2. That, if the original memorandum in writing were, at all, defective,- the case is. taken put of the' statute by the answer f which fully admits the agreement charged in the bill, without pleading, or, in any manner, relying on the statute. '3. '.That the collateral, matters of' pretended equity, set up in the. answer by way of avoidance, are, for the most part, utterly foreign to the merits of a specific execution of the agree-: ment';- and, in so far. as they are. -at all material to-any question^ between1 the parties to this, cause, required Substantive proof to support the answer: Of not one óf which has the «ppellaht offered or pretended • any manner of proof; but has turned his. back, on the most obviouk means and ample opportunities, challenging hitó to the proof’ from accessible and unfailing’sources of evidence, if there had been any truth in his averments; which, moreover, have been positively contradicted, in every material circumstance, and conclusively disproved by'the evidence in thé cause.. 4. .That' the appellee is entitled to a specific execution of 'the agreement, upon principles wholly independent of all the. solemnities required by the statute, in consequence of an-equitable obligation, .affecting thé' COMsciénce of the appellant, beyond the mere force Of an express cuntrabt, and combining, .in this case, all the equitable circumstances; any one of which was sufficient to bring a specific execution-of the contract within the appropriate jurisdiction of equity to relieve against fraud. 1st. Because the- appellant practised finesse to evade the instantaneous execution of the agreement, by promising that he would, in, a few days, reduce it to. the more solemn and consummate form of a regular conveyance for the land, and of promissory notes'for the balance of account remaining due, after taking credit for the purchase money of the land; and,'.in the'mean time,- drew from the appellee, upon- the faith of that promise, all the valuable equivalents of the agreement; • 2dly.' Because the contract1 has been completely executed, on the part of the purchaser, by payment of all the purchase rrionéy, and, in part, executed oh both sides, by an exclusive, long -continued, and unquestioned possession in the' purchaser, under the contract. Sdly/ Because the purchaser has made.large expenditures,in. extensive, and beneficial improvements' of the property-,, upon the faith of thé contract. [MAJORITY — Mr; Justice Johnson,] Mr; Justice Johnson, delivered the opinion of the-Court. — - This appeal brings up for,-revision- a decree of -the Circuit Court of this district^ by which this appellant has been required to execute, specifically, an agreement for the sale of land. The bill set's up a certain written instrument, as a sufficient memorandum in writing; but not relying solely- on that,- goes -on to make ovit one of-those cases,, in which a Court of Equity -exercises this branch of its jurisdiction,, in, order that the statute of-frauds may not be made a cloak for fraud; that is a ease of performance on the part of the complainant. . This, has caused the question on the right tc relief, in a case within the provisions of the -statute, to be mixed up with -a great deal of ¡extraneous- matter, which need not have been set out, hadthe.claim to'relief-been confined to the one ground alone. The memorandum set up is in the formmf a'stated account, whoily in the handwriting of the appellant-, Barry, the defendant beiów, and acknowledged to be a copy made by.him of another, .¿Iso made out'in his ■ handwriting, actually signed by Coombe the-appellee, and now in the hands of Barry. So that -Barry’s name is in the caption, if it may be. so,called,’.and. Coombe’s-at the foot of the'memorandum* -The.item of the account, which relates to the-bargain -or agreement for the sale of the land,, is in these wofds, letters, and figures. - “ By my purchase of your ¶ E. B. -Wharf .ánd - premises this-day as agreed on between us;” and the credit is carried out in figures' 87578 63, and deducted from the-amount charged to Barry.; Then follows this memorandum, r‘ balanc'e'due G. Coombe fifteen hundred Dollars, payable'in one two and three years, with'interest. G. Coombe.” The defence-set up in the answer is, that the transaction was not final; that it amounted to nothing more than a treafy in progress'; that as far as it -proceeded it was obtained, by.false and fraudulent suggestions on ■ the part. of- complainant; and' that the name of defendant was signed, if signed at all, only to-síate an account, not to acknowledge a contract; and the answer concludes with submitting to the Court, whether it be “ an agreement such as is required by law and equity, to com--pel the defendant to make the sale and conveyance claimed, and prayed for by complainant” It is under these words alone, that the protection of the statute of frauds is set up by defendant; . But in the view which this Court will take of this subject, it’ is unnecessary to inquire, whether the case required or admitted that it should be more formally pleaded, since we will,dispose of the cause under, the admission, that he has entitled himself by his answer to the full benefit of the statute, if the facts of the case would maintain the defence. And first it is obvious, that it would be idle to consider the form and effect of the instrument, if the treaty was never brought to a conclusion. On this fact the answer has put the complainant upon', proof, and two witnesses have been examined to the point. Mr. Pleasanton the first witness- swears — that in the year 1820, the defendant showed him a statement of accounts, which he believes was a copy of one exhibited by the complainant, and informed him that he' had made a settlement of accounts with complainant, that the account so shown exhibited' a balance' against the defendant of 500’or 1500 dollars, that it was in Barry’s own handwriting, and that he stated, as ah inducement to make it, that Coombe had made a. sacrifice to obtain it. The account so shown to Mr.'Pleasanton, could have been no ’ other than the. original of that which Coombe has exhibited, and the facts to which this witness testifies, are strongly indicative of a finalftransaction. The next witness, Mr. Carroll, is still more positive. He was present at the transaction, and, as he testifies, at the request'of' both parties, became the depository of several documents relating to it; and on the- subject of the conclusive character of the transaction, his language is “ that he understood the settlement to be final and absolute.” But there were other facts to which Mr. Carroll was exa-amined; and it is argued, that his testimony as to those facts goes to prove, that he was' mistaken in the view which he took of the transactions; that they go to prove that there.was some” thing yet to be done, before the agreement should be closed. Coombe, it seems, insisted that Barry should" give his note for the balance stated, and a deed for the property before heleft Washington. This Barry resisted, and finally left Washington without doing'either, and returned to his home at Baltimore. ■ It cannot be.denied that this does conduce to prove an unfinished treaty, but the inference is repelled by various considerations. And first, preparing the deed might require time, his business may have pressed for his return home, or he may have wished his own counsel or scrivener to draw up the deed. 2. As to the notes, giving them, made ho part of the agreement reduced to writing; the balance stated was-to have been paid in one, two, and three years, but it does not express, that notes are to be given for it, and he may have had his reasons for declining to give his notes, or for taking advice upon it. If there should prove to be errors in the stated accounts, upon' more deliberate examination, these errors might more conveniently have been adjusted upon the stated balance, than-upon notes, which might have found their way into several hands, and thus have multiplied litigation. 3.. It does not appear from. Mr. Carroll’s testimony, that Barry refused generally to give either deed or notes, but only to give them before he went to Baltimore; on the contrary, he appears to have resented Coombe’s seeming tó act upon a doubt that he would then execute and send them, and to this Mr. Carroll bears positive testimony, when he says “ that he understood that the notes and deed were as certainly to be sent on from Baltimore, as if executed on that day.” But what is conclusive in this part of the cause is, that the transaction was followed up by an act on the part of Barry, which no honest man could have done, otherwise than in the supposition that it was a finished transaction. It appears that Coombe, together with Mr: Carroll and Mr. Rice, held a mortgage of a quantity of leather to the value of 7000 dollars, given to secure to them certain sums advanced on behalf of one James D. Barry ; that the defendant Robert Barry had assumed the debts of- James D. Barry, and thereby acquired a resulting use, or equity of redemption, in this leather. That the sum for which Coombe held his lien on the leather, to wit, 4209 dollars, was one of the items of account in the exhibit upon which the complainant relies, to obtain a decree for specific performance. But, as abalance of 1500 dollars still remained due to Coombe upon the stated account, the leather was still pledged to him for that amount. This interest Coombe was induced to release to Bar-rv, and which he accordingly did, by an endorsement upon the ' instrument of writing by which the lien .was created. And Mib Carroll .testifies “ that the defendant did. receive at'th'e t.anyard in Washington, all the leather mentioned in the bill of s'ale, in consequence of complainant’s release.” It is true, an attempt was afterwards made.in this' suit to .arrest the leather in the hands of.. Barry, but it was not.on the .ground that the treaty was in fieri, or the release not final; but to subject the leather to the debt, which would be due to the complainant, if.-he could not obtain the specific execution of the sale of the whárf, as well 'as the acknowledged balance. It is obvious then, that in reducing thé leather into' possession, Mr. Barry must either.have acted fairly, on the idea of a-finish-ed transaction, or unfairly, by entering upon thé fruition a'fraud* practised to obtain the release. • Wewill consider him as having acted fairly upon the ground of a . treaty final and Concluded, to bé .carried' into .exec u tion according to its terms. But the statute of-Frauds in Maryland requires-written evidence of the contract, or a Court cannot decree performance. Is this Such written evidence of á “contract or sale of lands” as satisfies'the exigency of that; statute? The'words, of the statute are, “ unless. the .agreement upon which' such action shall be brought, or some memorandum'or • note thereof, shall be in writing and signed 'by the party, to- be' charged therewith, or by some other person, by him thereunto' lawfully authorized.” A note or memorandum in writing of the agreement, therefore, is sufficient,, and there Is no question that in order to obtain a specific performance in equity, the note in writing must be sufficient to maintain an action at law. The form'is riot regarded, nor the place of signature, provided it be in the handwriting of the-party- or his agent, and furnish evidence of a complete and practicable agreement. A Court oí Equity will supply no moré than-the ordinary-incidents tósuchan agreement; such as the ingredients of a complete transfer, usual covenants, &c« ■ • At first view, this would seem tp be,an anomalous case, but itis only necessary to reduce it to its elements, in order tó discover, that'-itis one., known to the adjudications of; Courts of' Equity on this statute^. As.to-the balance.stated, it is final and' conclusive-between these--parties, and insimul computasseni,. might pe maintained upon it, by Cbbm.be, for the: amount..' And in an action by him, going'.' to claim'the whole amount charged to Barry, it would be good evidence in the hands of Barry, to reduce Coombe’s demánd downto-the bal'arice- stated. It is then equivalent to a mutual and reciprocal receipt between these parties; on-the orné hand,-.Coombe signs' a receipt for the price’ of the--premises in controversy,’ in account with-■Barry, and Barry on the other, signs a receipt to Coombe, acknowledging that he has received the price stipulated, in full • of the purcháse money of the same. This is .the real purport and effect of the writing in evidence, and had the instrument, signed by.the parties, béen expressed in these terms, there could not have heen a doubt of its sufficiency, (12 Vez. jr. 466. 9 Vez. jr. 234.) But it is argued that this was not the intent with vCiich the writing was concocted. That it was to state an account, and not to note an agreement for the sale of property, that it was drawn up and signed; An examination of the cases on. this subject, will show that Court,s of Equity are pot particular with regard to the direct and immediate purpose for which the written evidence of a contract was created. It is written evidence, which"1 the statute requires, and anote or letter, and even in one case, a letter, the object of which Was to annul the contract, on a- ground really not unreasonable, (1 Atk. 12. 1 Sch. & Lef. 22,) has been held to bring a Case within the provisions of the. statute.- But, in the present instance^ although not the sole object of creating the instrument, it really was an object, and an important one, inasmuch as the balance-of account, theimmediate object of the stated account, mainly depended upon the item for the'sale of these premises. It could pot be,stated without acknowledging, that the one had agreed to sell and the- other to purchase 'these premises, at a stated price. On this párt of the cause,- th.e case of Stokes vs. Moore, has been cited, (1 Cox, 218,) and insisted on as furnishing an argument, against the. sufficiency of the signature of. Barry in this cause. But in the case of Stokes ns. Moore, it must, be observed, that both the Judges who sat on that cause.admit that this was not the principal question in the cause, and it was decided upon the ground, that the memorandum was proved but to- express the entire agreement between the parties. But, if considered as authority in this point, it is only necessary to advert to. the ground upon which- the opinion is expressed, “that-the name-there w'as-not a sufficient signature under the statute,” in order to discover that it does not impugn the opinion entertained by this Court in the present caused The rule there laid down is, “ that the signature is to have the effect of giving authenticity to the whole instrument j” and in .this instance, we hold it to be in its.proper place, for that purpose. If so, -the Court there further obseryes,. “that it doe? not signify much in what part of the instrument it is to be found.” It remains to examine whether the memorandum is sufficiently full and explicit, to admit of- a decree for specific performance. The words are,u By my purchase of your i E. B. wharf and premises, this day, as agreed on -between us, 87578 63.” Brief as it is, this memorandum contains a condensed summary of all the essentíais to a complete contract. By the use of the present tense, it speaks of a thing’ final and concluded. By reference to the date at the head of the account, the use of the words “ this day” gives a date to the transaction. By the use of the pronouns your and ms, the parties are distinctly introduced. By carrying out the price, the consideration is expressed with absolute precision, and by deducting it from the sum acknowledged due by Barry, the receipt of the consideration is acknowledged; nor is thcr.e a single ingredient of a complete contract deficient, unless the description of the property contracted for, be insufficient. If that description be fatally ambiguous, it is certainly a sufficient ground to refuse relief. The ambiguity here, arises from the use of the capital letters E. B. in the description of the premises;, and if those letters stood alone, and unconnected with any thing that could give them a definitive signification, there would be much reason to doubt whether the defect would be curable. The words are, “ Your é E. B. wharf and premises,” and it is argued that this is one of those ambiguities, generally designated by the epithet — patent, and as such, admitting of no explanation from extrinsic evidence. Sir Francis Bacon, in his elements of common law, (Regula 23,) is the author usually referred to on this distribution of ambiguities, into patent and latent; the former appearing on the face of the instrument, and not to be removed by extrinsic evidence, but only, in the language of the author, “to be holpen by construction or election;” the latter raised by reference to extrinsic circumstances, and remediable by the same means. It would perhaps be a more convenient, and certainly a more intelligible distribution of the doctrine on this subject, if the cases were divided into positive, relative, and mixed; the positive corresponding.to the patent; and the relative to the latent ambiguities of th.e authors who treat of the subject. The mixed, would consist of those cases in which, although the ambiguity is suggested on the face of the instrument, the face of the instrument also suggests the. medium by which the ambiguity may be removed. The facts of this case will bring it either within the second or third class; within the second, because, for any thing that appears on the face of the instrument, E. B. wharf, may be as definitive a description of locality as F street, and then the ambiguity could only arise, if it be shown that the bargainor had more than one house in F street, like the two manors of Sale, put by several authors. Perhaps this case belongs more properly to the third class, since the description suggests several circumstances of identity, by reference to which, the premises in question .are distinguishable from all others ;'first, it is a wharf; secondly, a wharf the property of Barry; thirdly, a wharf of which he owns a moiety; and connected with' these descriptive circumstances; the letters E. B. became in fact the initials of the name of a place; and the case is analogous to that of a will, in which the devisee is designated as my son. A, my nephew B. C, or my uncle D. E, in which the circumstance of relationship, will let in evidence to fill up the names designated by the initials. In fact the cases on this point have gone much farther, and without committing ourselves on the correctness of the following two, it will be found by referring to them-, such evidence has been let in to supply names, in cases where the identification was by no means as circumstantial as the present. In the case of Price vs. Page, (4 Vez. jun. 68,) the entire Christian name was supplied .on parol evidence without any initial, Price the son of Price being the only designation. In the case of Abbot vs. Massie, (3 Vez. jun.) the devise was to A. G. and Mrs. G. and evidence ordered to bé received to identify the legatees. If ever extrinsic evidence may be-admitted to carry but the initials of a name, it’is impossible that.a case can occur, tofurnish evidence more full or unexceptionable in its character, than the present. The bill alleges that the letters E. B. mean Eastern Branch, and the defendant not only admits in his answer, that the treaty had relation to his moietyof a' wharf and premises on the-Eastern Branch of the-Potomac, but voluntarily, although altero intmtii, introduces a letter from himself to complainant, in which itis explicitly acknowledged. “ Having agreed to sell ' you my individual half-interest in the Eastern Branch wharf and premises,” is His language in the letter. Besides which, the original deed is spread upon .the record, by which it appears that the defendant held a moiety, as tenant in common with the plaintiff, of a wharf and premises on the Eastern Branch of the Potomac river, which is well known in common parlance as the Eastern Branch, without the addition of Potomac or river. .We are therefore of opinion, that the ambiguity is fully removed, and legally, since it is by reference to a,medium of explanation suggested on the face of the memorandum;.and on evidence, which while it neither addsjto, detracts from, nor varies, the note in writing, suppliés every exigency of the statute of frauds. The.onl-y remaining question arises on the effects of Coombe’s letter of the ,26th of March T822, which the defendant insists amounted to a relinquishment of the contract of salé, arid this appears tp .some of the Court, to present the greatest difficulty ■ in the causé. For it'•cannot be denied, that the letter is not confined in its import to a demand of p fulfilment of the contract. It does nqt intimate an intention to enforce the contract; but on the contrary, conclúdes with a declaration, that if Barry does not comply with this contract oft his part, the complainant will hold himself exonerated, and -will resort to his original money contract, as it stood prior to their entering into the contract for the sale of the premises. Nothing therefore, but the equivocal conduct of Barry on the receipt of that letter as proved in the deposition of Ingle, deprives him of the benefit of this defence. To have availed himself of it, he should have adopted the alternative offered' him; and as the only unequivocal proof of it, should have tendered to Coombe the amount justly due to him, after extracting that-item from the account. This he did not do, and it was too late after the bill filed to claim the benefit of a right thus gone by; at least, without paying unto Coombe the amount which would have been due to Coombe upon a mutual relinquishment of the bargain. As to the ground of misrepresentation and fraudulent con cealment, we have not thoiight it necessary to say more, than that there is not the least evidence to support the charge set up in the answer. Nor is it necessary t.o examine the case on the ground of part performance, since this Court is fully satisfied on the sufficiency of the memorandum in writing.to sustain the decree; so far as it requires Barry to make title to the moiety of the wharf, lot and premises. ■ With regard to that part of the decree which relates to'the payment of the balance of the stated account, and perpetuates . the injunctionnot to remove, certain property beyond the jurisdiction of the Court, until that balance be paid, we are induced to consider all. objections to be waived. Yet wé mean not to express any doub.ts-of its correctness, since the defendant has no where put his defence upon the ground of the remedy at law; but on the contrary, by his answer he impeaches thé conclusiveness of the stated account,.- and raises .an issue, in equity, upon the fairness and correctness of several items, which if expunged would leave a balance in his favour. This defence he has failed to sustain by proof, and the Court on that ground alone, independent of its connexion with the' principal subject of the bill, might legally decree payment of the stated balance, and the means of enforcing payment. Decree affirmed with costs, and cause remitted for final proceedings.