#### GABRIEL EDWARDS et al, Trustees, v. JAMES KELLY.

Where a remainder in slaves, during the 'particular interest, was offered for sale at auction, when certain written terms were proclaimed by the crier, and the defendant was the last and highest bidder, but the property was ¡■not delivered to him, in a suit for not complying with the terms of sale, it was Held that the contract was within the statute of frauds, so far as the «bidder was concerned, and no action would lie against him.

This was an action of assumpsit, tried before Saunders, J., •■at a Special Term (June, 1859,) of Wayne Superior Court.

The plaintiff declared in three counts.

1st. For the price of theelaves.

2nd. For breach of the contract in not complying with tike terms of sale.

3rd. For the difference ‘between the priee at the first and second sales.

The plaintiffs, as trustees, under a deed of trust from one *70John JD. Pearsall, had title to a remainder in* certain slaves after the life-estate of Mrs. Pearsall, who was still living. As trustees, they offered the estate vested in them, (to-wit, the said remainder,) for sale at public auctionon which occasion the. crier made known as the terms of sale, which were in writing, and publicly read by him, that the property would; be sold on a credit of three and six months, and the purchaser would be required to give a note with two approved sureties, with interest from the date, before the property changed ; and that if any one bid off the property and, failed to comply with the conditions, it was to be resold, and the first purchaser was to be liable for the deficiency in the price at the second sale, if any, and the property was not to be delivered until after the-death of Mrs. Pearsall, the tenant for life- The defendant,, James Kelly, was the last and highest bidder for the property, at the price of $'600-, but he subsequently refused to give note- and security, whereupon, it was again exposed to sale in the-presence of the defendant, and knocked off to one Kornegay.. at $275.

The Court intimated* an opinion that the plaintiff could not recover, whereupon, he submitted to-a, nonsuit and appealed.

Dortch and: Strong, for the plaintiffs..

McDac, for the defendant.

Manly, J.

The-contract, which is. the* subject of this suit,. Ms within the* pro visions of'the statute of frauds, incorporated in our Code, c-fe*., 50, sec. 11,, and in no part thereof can be enforced, without a memorandum, in writing, signed by the. party to. fee* charged therewith.. If is not divisible and exempt from tiie operation of the law-in some of its parts, as for instance, in the penalty for non-compliance with the- terms of the sale, as insisted in the argument..

Such a construction would render the-provisi'ons of the law, referred to, inoperative. Eor, except in cases.where a specific performance may be compelled, the relations to each other of the parties to such a contract, would not be changed, by tho-*71law. Anterior to its passage, the party charged, had the power to refuse compliance and run the hazards of an action for damages, and the construction, now sought to be put upon it, gives him that option — nothing more. It would be a palpable inconsistency to declare the contract void and of no effect, which is done by the statute, and still to hold the party responsible in damages for its non-fulfilment.

In a case recently decided in this Court, Mizell v. Burnett, 4 Jones, 249, general principles are enunciated, which have a direct bearing upon this case, viz., that no part of a contract, falling under the provisions of the law, is binding upon a party, who does not sign the writing, while others who do sign, may be bound.

The opinion of his Honor below, that the contract was not binding upon the defendant, in submission to which plaintiff suffered a nonsuit, was clearly correct.

Per Curiam,

Judgment affirmed.