GRAFTON V. CUMMINGS, 99 U. S. 100 (1878)

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U.S. Supreme Court

Grafton v. Cummings, 99 U.S. 100 (1878)

Grafton v. Cummings

99 U.S. 100


In order to satisfy the requirements of the statute of frauds of New Hampshire, the memorandum in writing of an agreement for the sale of lands which is signed by the party to be charged must not only contain a sufficient description of them, together with a statement of the price to be paid therefor, but in that memorandum, or in some paper signed by that party, the other contracting party must be so designated that he can be identified without parol proof.

On the sixteenth day of May, 1871, the hotel known as the Glen House, at the foot of the White Mountains in New Hampshire, together with its furniture, was bid off at an auction sale by Grafton at the price of $90,000. At the end of the ten days allowed by the terms of the sale for examination of the title, three deeds were tendered him which were supposed to convey the title. He refused to accept them, or pay the purchase money, or otherwise complete the contract of purchase. The property was again advertised for sale, and sold for $61,000, and the present suit was brought against him to recover the difference in the amounts for which the property sold at these two sales as damages for failure to perform the first contract.

The statute of frauds of New Hampshire is in these words:

"No action shall be maintained upon a contract for the sale of land unless the agreement upon which it is brought or some memorandum thereof is in writing, and signed by the party to be charged, or by some person by him thereto authorized by writing."

The agreement given in evidence on the trial by Cummings, the sole plaintiff, consisted of a paper writing signed by Grafton, certain printed matter on the margin of that writing, and the advertisement mentioned in the writing so signed. They are as follows:

"I, the subscriber, do hereby acknowledge myself to be the purchaser of the estate known as the Glen House, with furniture belonging to it, in Green's grant, New Hampshire, and sold at auction Tuesday, May 16, 1871, at 11 o'clock A.M., and for the sum

Page 99 U. S. 101

of $90,000, the said property being more particularly described in the advertisement hereunto affixed, and I hereby bind myself, my heirs and assigns to comply with the terms and conditions of the sale as declared by the auctioneer at the time and place of sale."


Upon the margin of said agreement were written and printed the following:


"Ten days will be allowed to examine the title, within which time the property must be settled for. Five thousand dollars will be required of the purchaser on the spot, which will be forfeited to the seller if the terms and conditions are not complied with; but the forfeiture of said money does not release the purchaser from his obligation to take the property. Fifteen thousand dollars to be paid on the delivery of the deed, and one-half of the purchase money to be paid Sept. 1, 1871, the remaining balance to be paid Sept. 1, 1872."

"The property is sold subject to the conditions of the sale of the stage route, stages, &c., which are, that the proprietors of the route shall have the exclusive business of the house."

The advertisement referred to in the foregoing paper as being thereunto affixed was as follows:


"The famous summer resort at the foot of Mount Washington, known as the Glen House, together with the land, furniture, mill, and outbuildings, will be sold at public auction at Gorham, N.H., Tuesday, May 16, 1871, at 11 o'clock A.M."

"May 2, 1871."




"The favorite summer resort known as the Glen House, situated at the foot of Mount Washington and at the commencement of the carriage road to the summit, will be offered for sale, together with the land containing about one thousand acres (well timbered), all the out-buildings, stables, and mill on the same, also the furniture, staging, mountain carriages, horses, &c. The house contains some two hundred and twenty-five rooms, capable of accommodating between four and five hundred guests. The whole property, if not disposed of at private sale previous to the 1st of May, will be sold at public auction to close the estate of the late J. M. Thompson.

Page 99 U. S. 102

Notice of the time and place of sale will be given hereafter. Any person desirous of seeing the property, which is in thorough repair, or wishing to make any inquiries can do so by applying to J. W. Weeks, administrator, Lancaster, N.H., or S. H. Cummings, Falmouth Hotel, Portland, Me."

The bill of exceptions adds that when this paper was put in evidence, it was endorsed "A. R. Walker, auctioneer and agent for both parties." It was not fully shown when this endorsement was made, and there was some evidence that it was not there at the time when the deeds which Grafton refused to accept were tendered. The court, however, instructed the jury that if it was done at any time before the commencement of this action, it was sufficient.

Evidence was admitted to show that at the time of the sale, another paper was read by the auctioneer affecting the terms of the sale, but it was not among the papers subscribed by defendant.

The following letter was, notwithstanding the objection of the defendant, read in evidence by the plaintiff:

"DEAR SIR -- I came up today hoping to confer with you in regard to the purchase of the Glen House. I don't know but what Lindsay and Barron intend to take it. Some things they said indicated as much, and Grafton offered to let them take it at his bid, and let them have their own time to pay him his claim. But I find Mrs. Thompson is strongly attached to the place. The judge of the Probate Court will make her an allowance. It occurred to me that the purchase might be made in this way. One-tenth would be $9,000:"

S. H. Cummings, 3/10 . . . . . . . . . $27,000

Lindsay, 3/10. . . . . . . . . . . . . 27,000

Barron, 3/10 . . . . . . . . . . . . . 27,000

Mrs. Thompson, 1/10. . . . . . . . . . 9,000



"This would relieve you from most of the care. It would give Mrs. Thompson an interest in it. The $9,000 due Grafton is as much as her share, and I will agree to let it be until she has time to pay it from the profits. I go home tomorrow, but I wanted to propose this to you, as Grafton really don't want anything to do with the property, though he thinks Stearns, or some one of their

Page 99 U. S. 103

leading hotel men, may have some young man that they would like to put into the house. He will try to dispose of it in that way, but hopes that before doing it, I shall be able to write to him that it will be taken up here."

"Very truly yours,"


"S. H. CUMMINGS, Esq."

There was a judgment for the plaintiff, whereupon Grafton sued out this writ of error.

Page 99 U. S. 106

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