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Sherman v. Luckhardt, 65 Kan. 610.

See Sherman v. Luckhardt, 67 Kan. 682.

Sims v. Daniels, 57 Kan. 552.

See Miller v. Clark, 62 Kan. 279.

Simmons v. Garrett, McCahon, 82.

See Burchfield v. Haffey, 34 Kan. 43.

State v. Horne, 9 Kan. 131.

See Shellabarger v. Nafus, 15 Kan. 554.

State v. Reisner, 20 Kan. 548.

See State v. McGillvray, 21 Kan. 680.

Stewart v. Price, 64 Kan. 191.

See Manley v. Park, 68 Kan. 400.

Stigers v. Stigers, 5 Kan. 652.

See Finley v. Funk, 35 Kan. 673.

Warner v. Broquet, 54 Kan. 649.

See Nagle v. Tieperman, 74 Kan. 32.

Watkins v. Glenn, 55 Kan. 417.

See Beverly v. Barnitz, 55 Kan. 466.*

W. & W. Rld. Co. v. Kuhn, 38 Kan. 104.

See W. & W. Rld. Co. v. Kuhn, 38 Kan. 675.

* Reversed by the supreme court of the United States.

See Barnitz v. Beverly, 163 U. S. 118, 16 Sup. Ct. 1042, 41 L. Ed. 93.

NOTE.

THIS volume begins with the January session, 1907, and includes the record of all cases decided prior to the June session, 1907, except such as are pending upon rehearing. It contains 137 opinions, delivered by the justices as follow: JOHNSTON, C. J., 21; GREENE, J., 19; BURCH, J., 15; MASON, J., 22; SMITH, J., 19; PORTER, J., 19; GRAVES, J., 22. Opinions per curiam were delivered in 41 cases, all of which are reported (pp. 810-863). Mr. Chief Justice JOHNSTON concurred specially in one case (p. 321). Mr. Justice GREENE concurred specially in one case (p. 561). Mr. Justice MASON rendered a separate opinion concurring specially in one case (p. 138). Mr. Justice SMITH rendered a separate opinion concurring specially in one case (p. 332). Mr. Justice PORTER rendered dissenting opinions in three cases (pp. 276, 457, 764), and concurred specially in another case (p. 142).

SUPREME COURT,

STATE OF KANSAS.

JANUARY TERM, 1907.

PRESENT:

HON. WILLIAM A. JOHNSTON, CHIEF JUSTICE.

HON. ADRIAN L. GREENE,

HON. ROUSSEAU A. BURCH,

HON. HENRY F. MASON,

JUSTICES.

HON. CLARK A. SMITH,

HON. SILAS W. PORTER,

HON. CHARLES B. GRAVES,

SHERMAN MERTZ V. J. M. HUBBARD.
No. 14,376 (88 Pac. 529.)

SYLLABUS BY THE COURT.

STATUTE OF FRAUDS Contract to Sell Land-Undisclosed Principal-Specific Performance. Under a statute requiring contracts for the sale of lands to be evidenced by writing, where a written agreement for such a sale shows that one of the two persons by whom it is made incurs no individual liability, but acts merely as the agent of some one else who is not named or described, specific performance thereof cannot be compelled at the suit of the principal if his relation to the transaction can only be proved by parol evidence.

Error from Wabaunsee district court; ROBERT C. HEIZER, judge. Opinion filed January 5, 1907. Affirmed.

B. H. Tracy, and Codding & Keyser, for plaintiff in

error.

Wheeler & Switzer, for defendant in error.

1-75 KAN.

Mertz v. Hubbard.

The opinion of the court was delivered by

MASON, J.: A real-estate broker wrote to the owner of a tract of land saying that he had a customer for it and asking its price. Correspondence followed which for present purposes may be said to have resulted in a contract in writing for the sale of the land, valid in every respect unless it was rendered non-enforceable under the statute of frauds by this fact: while it showed that the agent was acting for another and was not himself bound, it nowhere disclosed the identity of his principal. The owner refused to convey, and the would-be purchaser in whose behalf the negotiations had been conducted brought a suit to compel him to do so. The petition set out the correspondence in full and thereby invited the question whether the requirements of the statute had been met, which the defendant raised by demurring. The demurrer was sustained, and the plaintiff prosecutes error.

As indicated, the inquiry to be determined is this: Where a written agreement for the sale of lands shows that one of the two persons by whom it is made incurs no individual liability, but acts merely as the agent of some one who is not named or described, can specific performance thereof be compelled at the suit of the undisclosed principal, whose relation to the transaction can be proved only by parol evidence, where the statute of frauds requires such contracts to be in writing?

It is settled law that a memorandum in order to meet the requirements of the statute of frauds shall give the names of the contracting parties or some description by which they can be identified. (29 A. & E. Encycl. of L. 864.) Several courts have held that this rule is not satisfied by the memorandum's naming an agent who acts for one of the parties throughout the transaction but who is not personally bound. The leading case to this effect is Grafton v. Cummings, 99 U. S. 100, 25 L. Ed. 366, which has been followed in Oglesby Co. v. Williams Co., 112 Ga. 359, 37 S. E. 372, Clampet

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