Opinion of the Court, per WELLES, J. ment was entered, together with $252.83, costs. The complaint is dated December 15th, 1854; it states that the defendants are indebted to the plaintiff for the work and services mentioned, in the sum of $1506, and in the sum of $487.26, for interest thereon, and demands judg ment for the said $1506, and interest thereon from the date of the complaint, and said sum of $487.26. The appellants complain that the judgment is for too large an amount, and make the following statement: Interest from December 15, 1854, to date of The sum demanded. .$1506 00 169 67 487 26 $2162 93 On appeal to the general term, the judgment was affirmed, on the plaintiff remitting the sum of $32.03, as of the date of July 25th, 1856. The plaintiff thereupon remitted the last mentioned sum, and perfected judgment in his favor, as a judgment of the date of November 12th, 1856, for $2450.52. * 305 ] It will be seen by a computation, that taking the amount claimed in the complaint, at $2162.93, according to the defendants' statement, and the costs before the appeal, $252.83; $2415.76, with interest thereon, from the date of the judgment, to November 12th, 1856, $50.61, the amount of the judgment finally entered up, is about $10 less than the amount claimed, with the interest on that sum, and on the costs before the appeal, to November 12th, 1856. The defendants, therefore, have no just ground to complain of the amount. The objection is, not that the amount found due by the referee is unjust, or greater than the evidence warranted, but that it is more than Statement of the Case. the demand of judgment would warrant. For the foregoing reasons, I think the judgment should be affirmed. Judgment affirmed. PRATT, Survivor, v. HUDSON RIVER RAILROAD COMPANY. Authority of Agent. The engineer of a railroad company charged with the duty of engrossing contracts and procuring the signatures of contractors, for which no particular time is limited, has power to consent to a month's delay in the execution of a written contract. The court has power, on appeal, to conform the pleadings to the proofs, when the variance is merely formal. [ * 306 *APPEAL from the general term of the Supreme Court, in the third district, where judgment on the report of a referce in favor of the plaintiffs was reversed, and a new trial awarded, the appellants stipulating that judgment absolute might be entered in case of affirmance. On the trial before the referee, it appeared in evidence,, that on the 19th of June 1850, the defendants inserted in the newspapers of the day, an advertisement inviting proposals for doing the grading upon certain sections of their road, including No. 67, and containing the following clause: "Contractors, whose bids may be accepted, will be required to enter into contract, and commence the work without delay." This was signed by the chief engineer of the company. The plaintiffs, pursuant to this invitation, delivered to the defendants, on or about the 1st of July 1850, a written proposition for section 67, among others, embracing a table minutely specifying the various kinds of work, and the prices for each, and containing the Opinion of the Court, per SELDEN, J. following clause: "On the acceptance of this proposal for all or either of the said sections, we hereby bind ourselves to enter into written contracts, and give the required bond and surety, to perform the said work for the con* 307 ] sideration above mentioned. *On the 6th of July 1850, the defendants gave notice to the plaintiffs, that they accepted their proposition for No. 67, and that they were required to come and execute the contracts immediately. On the 15th of the same month, Frederick Pratt, Jr., one of the plaintiffs, called upon Mr. Jarvis, the resident engineer, whose business it was to attend to the execution of the contract. Mr. Jarvis thereupon took printed blanks, prepared for the purpose by the company, and filled them up for section No 67, pursuant to the terms of the proposition which had been accepted; and these contracts were signed by the plaintiff, Frederick Pratt, Jr., and witnessed by Mr. Jarvis. They were then taken by Frederick Pratt, Jr., by arrangement with Mr. Jarvis, for the purpose of procuring the signature of the other plaintiff. The referee found that Jarvis had authority to extend the time for the execution of the written contract; and that within the extended time, it was executed and tendered to the defendant, who refused to accept the same, or permit the plaintiffs to perform the work. He assessed the plaintiffs' damages at $2660, for which sum he directed judgment to be entered. This judgment was reversed at general term and a new trial ordered; whereupon the plaintiffs took this appeal, stipu lating, as required by *the statute, for judgment absolute against them in case of affirmance. * 308 ] Wheaton, for the appellants. Thompson, for the respondent. SELDEN J.-The opinion delivered by the supreme court, at general term, shows that the new trial, in this Opinion of the Court, per SELDEN, J. case, was not granted upon any disputed question of fact, but for an erroneous legal inference, drawn by the referee, from facts clearly established. The principal question involved in the case, therefore, is open for the examination of this court. It is very clear, that the plaintiffs did not make out, upon the trial, the precise cause of action stated in their complaint; because that assumes that a contract, by the defendants, to let the work in question to the plaintiffs, was in all respects perfected, and the breach alleged, is, that the defendants refused to permit the plaintiff's to go on with the work. But, as both the advertisement on the part of the company, and the proposition made by the plaintiffs, expressly contemplated that the contract for the work should be reduced to writing and executed by the parties, until that was done, the contract to let the work cannot be said to have been consummated. In the aspect, therefore, in which the plaintiffs have presented their case, they clearly have no claim. The supreme court was, no doubt, right, in holding that the defendants had never entered into an obligatory contract to let the work upon section 67 to the plaintiffs; because it was an essential part of the agreement between the parties, that the evidence of their contract should not rest in parol, but should be in writing; and this became, therefore, a necessary preliminary to the completion of the contract. Hence, the defendants were guilty of no violation of contract, in refusing to permit the plaintiffs to do the work. It does not follow, however, from this, that no contract was made which was binding upon the defendants. A contract to make and execute a certain written agreement, the terms of which are specific, and mutually understood, is, in all respects, as valid [ * 309 and obligatory, where no statutory objection interposes, as the written contract itself would be, if executed. If, therefore, it should appear from the evidence, that the minds of the parties had met; that a proposition for a Opinion of the Court, per SELDEN, J. contract had been made by one party and accepted by the other; that the terms of this contract, were, in all respects, definitely understood and agreed upon, and that a part of the mutual understanding, was, that a written contract, embodying those terms, should be drawn and executed by the respective parties, this is an obligatory contract, which neither party is at liberty to refuse to perform. Such a case cannot be distinguished from that of an agreement to execute a lease. If two parties negotiate for a lease of certain premises, and they agree upon the terms and conditions of the lease, and that a written lease shall be drawn and executed, embracing those terms, this is not a lease, but it is a contract, which, whenever the statute of frauds does not interfere to prevent, can be enforced; and which the courts will compel the parties specifically to perform. The books are full of such cases, and it can hardly be necessary to refer to them at length. It is required, in such cases, that the preliminary agreement to execute the lease, should, itself, be in writing; but this is merely to avoid the effect of the statute of frauds; wherever there is anything to take the case out of the operation of the statute, the agreement, although by parol, will be enforced. Thus, it is said, in Seagood v. Meale (Prec. in Ch. 560) "So, where a min, on promise of a lease to be made to be made to him, lys out money in improvements, he shall oblige the lessor afterwards to execute the lease;" the laying out of money in improvements being held, in such a case, to prevent the operation of the statute. The cases of Powell v. Dillon (2 Bill & Beatty 416) and Verlander v. Codd (1 Turn. & Russ. 352) are cases where the agreements to execute the lease were by parol, but there was a brief note in each case, signed by the lessor, which the courts held sufficient to take the cases out of the statute. These, it is true, were bills in chancery, to compel a |