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Wier v. Batdorf.

62, to sustain the position that such writings are sufficient. In that case there was a memorandum, as follows: "L. T. Thayer is to clear off the present mortgage within ninety days. At that time J. W. F. is to give him mortgage for amount unpaid, with interest from date of sale. J. W. F. is to pay taxes for 1868 (that is, on a fair proportion of the lots). J. W. F. is to pay $1,875, and give mortgage for $937.50, due in one year, and same amount due in two years, with annual interest. May 9, 1868. L. T. Thayer. J. W. Fuller."

On the same day on which the above memorandum was made and delivered, Thayer and wife signed and acknowledged an instrument in writing in the usual form of a deed of conveyance, purporting to convey to the plaintiffs, Luce and Fuller, by a pertinent description, the real estate described in the petition, for the consideration of $3,750, and thereupon presented the instrument to Fuller, who approved of the same and returned the instrument to the defendant. Upon this state of facts the court decreed specific performance. This is the only case cited by the plaintiff which at all resembles the one at bar.

It will be observed that in the case cited the memoran-` dum was sufficient, except in failing to describe the property sold, and the court treated the acceptance of the terms of the deed by Fuller as the completion of the contract, and as identifying the property sold. The court, after saying that an undelivered deed is no evidence of a subsisting contract, say: "We think, however, that a distinction may well be taken between an instrument of writing in the usual form of a deed of conveyance, which has never been delivered for any purpose, or which has been delivered for the purpose of transferring title, and a like instrument which has been delivered merely as an evidence on an executory contract, or as evidence in part of such contract.

"The distinction exists in the difference of intention with

Wier v. Batdorf.

which the acts were performed, and the true intent in either case must be determined by the circumstances of the act, by the res gesta. It is perfectly clear that such an instrument delivered by the apparent grantor to the apparent grantee, under such circumstances as repel the conclusion that a transfer of title was intended, is inoperative as a conveyance. And it appears to me to be just as clear that the like delivery of such an instrument, under circumstances which show an intention to make a proposition to sell the property therein described on the terms therein written, is a legitimate and proper way to negotiate a contract of sale, and instantly that the terms thus proposed are accepted, the contract of bargain and sale is complete-not executed in fact by transfer of title, but executory and evidenced by writing signed by the vendor within the meaning of the statute. Nor does it matter in whose possession the instrument may afterwards be placed."

If the facts in the case under consideration brought it within those of the Ohio case, we would have no hesitancy in enforcing the contract.

In Parker v. Parker, 1 Gray, 409, the parties to an oral agreement to a sale of land went together to an attorney, and had a deed therefor drawn, and the grantor signed it and the grantee paid part of the consideration, and after both parties had looked at the deed and expressed themselves satisfied with the form of it, the grantor took it for the purpose of procuring from his wife a release of dower. The court held that there had been no delivery of the deed, and that it did not take effect, either as a deed or as a memorandum in writing. The court say (p. 411): "The parties separated without any act having been done equivalent to a delivery of the deed, and nothing further was done to give effect to the instrument as a deed. The instrument was therefore not operative to pass any title, or lay the foundation for a bill in equity to recover possession of the deed. It was further urged that, if the

Wier v. Batdorf.

instrument was not valid as a deed, it might be considered as a memorandum in writing, signed by the party agreeing to convey the real estate therein described, and thus authorize a decree in equity to make a conveyance. But in regard to this, the same difficulty exists. As a memorandum in writing stipulating to convey the land, to make it operative it must have been executed, and delivered to the plaintiffs, or some one in their behalf." See also Comer v. Baldwin, 16 Minn., 172. Prutsman v. Baker, 30 Wis., 644.

We have made a pretty thorough search, but have been unable to find any case which sustains the position that an undelivered deed may be treated as a memorandum in writing. A few cases, perhaps, may be found where it has been held that a memorandum need not be delivered, but the better rule is, that delivery is required. There is a class of cases where letters have been addressed to a third party stating and affirming the contract, in which such letters may be used against the writer as evidence of the contract. It is sometimes said that such letters may be used as a memorandum of the contract. In fact, however, such letters are independent evidence, or admissions by the party to be charged, of the existence of the contract and its nature, and being delivered to a third party, and thus beyond the control of the writer of the letters, they are held to be admissible against such party as admissions in writing. In a proper case there is no doubt of the admissibility of such evidence, but the rule if invoked in this case would not aid the plaintiff. Here the contract rested in parol, neither party being bound until the delivery and acceptance of the deed. The case, therefore, comes clearly within the statute of frauds, and the judgment is affirmed. JUDGMENT AFFIRMED.

THE other judges concur.

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54 133

M. P. R. R. Co. v. Metzger.

MISSOURI PACIFIC R. R. Co., PLAINTIFF IN ERROR, V.
GOTLIEB METZGER, DEFENDANT IN ERROR.

1. Railroads:

INJURIES TO STOCK: NEGLIGENCE: VERDICT.

In an action against a railway company for horses killed, the testimony showed that the railway was fenced with barbed wire; that at a point adjoining a certain bridge the wire was so close to the ground that the horses had stepped over the fence, leaving at least three bunches of hair from their legs on the barbs of the wire, and their tracks were plainly seen where they had crossed the fence. Held, That the evidence sustained the charge of negligence on the part of the company in not protecting its railway by a sufficient fence, and that a verdict for the fair value of the horses would not be set aside.

2. Trial:

ARGUMENTS OF COUNSEL. An attorney, in his argument to the jury, should confine his discussion to the issues and the evidence in the case, and it is the duty of the trial court to see that he does so; and statements in regard to the adverse attorney, not in evidence, if calculated to prejudice the jury, may be sufficient to set the verdict aside.

ERROR to the district court for Cass county. Tried below before CHAPMAN, J.

B. P. Waggener and Beeson & Sullivan, for plaintiff in

error.

M. A. Hartigan, for defendant in error.

MAXWELL, J.

The petition alleges that, at a point on its line of railroad, and not within the incorporated limits of any city, village, or town, or public highway, and at a point where it was the duty of the defendant company, by force of the statute, to erect and maintain a suitable and amply sufficient fence upon the sides of the defendant's line of railroad, to prevent horses from getting on said railroad, and that the defendant negligently, carelessly, and wrongfully

M. P. R. R. Co. v. Metzger.

did neglect and omit to erect and maintain a suitable and sufficient fence, as by law required, to prevent horses from getting on its railroad; but therein wholly failed and made default, and by reason of and in consequence of which negligence and carelessness, neglect and default of defendant company, its agents, servants, etc., the horses aforesaid, the property of plaintiff, by reason of the premises, strayed in and upon, and got upon the track and right of way of defendant, and while so upon said railroad they and each of them then and there were struck, run upon and against by a locomotive, and were killed, etc.

The material allegations in the answer are as follows: That at the point where the mares described in the petition got on the defendant's track the defendant had erected a fence on each side of said track, and thereafter maintained said fences amply sufficient to prevent horses from getting on said track at said point, and had also constructed and built gates at farm crossings, at said point, as required by law, and had in all respects fully complied with the law of the state as to fencing its tracks and erecting gates at farm crossings; that plaintiff's horses trespassed upon the premises of an adjoining proprietor, upon whose premises a private farm crossing gate had been erected by defendant, which gate was under the control of the owner of said land, and, without any fault of defendant, its agents, or servants, said gate had been left open, and through which open gate plaintiff's mares escaped, and thereby got on defendant's track, and were injured without any fault of defendant, etc.

This was denied by the reply.

The jury returned a verdict for $250, which is considerably less than the value of the horses, as proved on the trial. The testimony shows that the railway is fenced with barbed wire, and that the wires which joined up to the north end of the bridge, where the horses were killed, were but a few inches above the ground. The proof also shows

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