Opinion of the Court.

the court to instruct the jury that "the contract for the sale of the premises described in the plaintiffs' declaration being in parol, and there being no evidence that any possession thereof was taken by the defendants under and pursuant to the contract, there can be no recovery of the purchase price by the vendor, unless the contract was fully executed by the delivery of a good and indefeasible deed for the land accepted by the vendees."

The court instructed the jury accordingly, but with this qualification, that if the first deed, the one of November 22, 1883, was accepted by the defendants, and at their request the plaintiffs executed and on November 28, 1883, transmitted to Bell a second deed, and on November 30, 1883, such second deed was tendered by the plaintiffs to two of the defendants, namely, Bayne and Fuller, this was a sufficient execution of the contract, notwithstanding the first deed was defective.

The jury returned a verdict for the plaintiffs in the sum of $11,300, upon which judgment was rendered; and the defendants, having duly excepted to the instructions, sued out this writ of error.

It may be admitted that the original memorandum of November 21, signed by Bell in the presence and by the authority or assent of both parties, which stated a sale by Wiggins to the defendants of "a lot of seventy acres of land," and specified the terms of payment in cash and notes, was not of itself a sufficient memorandum to satisfy the statute of frauds, because it in no way described or gave any means of identifying the land sold.

The deed to the defendants, executed by the plaintiffs on November 23, was not acknowledged so as to take effect as a conveyance, nor accepted as such by the defendants. But it contained a full description of the land by metes and bounds; and it was sent to the defendants' agent by the plaintiffs'

hereditaments, shall at any time be assigned, granted or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting or surrendering the same, or their agents thereto lawfully authorized by writing, or by act and operation of law." 1 Dall. Laws, 640; 1 Purdon's Digest (11th ed.) 830, 831.

Opinion of the Court.

agent in a letter demanding payment of part of the price in money, and of the rest in notes, in the terms of the original memorandum. The defendants' agent replied on the next day that he had received that letter; and three days later, in further response, wrote another letter, inclosing a form of deed substantially like the first one, but with a sufficient certificate of acknowledgment, requesting that this deed might be executed instead of the other, and promising, on receipt of it, to "forward money, notes and old deed."

This letter of the defendants' agent, read in connection with the other writings which had passed between the parties, unequivocally refers to the first deed, which fully described the land sold, and to the money and notes to be given in payment therefor, as specified in the letter which inclosed that deed. In the light of the undisputed facts, its language could apply to nothing else. It thus, by necessary reference, embodies a definite statement of the contract actually made by the parties, both as to the property to be conveyed, and as to the terms of payment; and, taken together with that deed and that letter, constitutes a sufficient memorandum, signed by both parties or their agents, to take the case out of the statute of frauds. Beckwith v. Talbot, 95 U. S. 289; Ridgway v. Wharton, 6 H. L. Cas. 238; McFarson's Appeal, 11 Penn. St. 503, 510; Tripp v. Bishop, 56 Penn. St. 424.

For this reason, the defendants cannot have been prejudiced by the instructions given to the jury; and it becomes unnecessary to consider whether, under the statute of frauds of Pennsylvania, as expounded by the Supreme Court of that State, the memorandum of a contract for the sale of land need be signed by the buyer, as well as by the seller, in order to maintain such an action as this. See Browne on Statute of Frauds (4th ed.) § 226, and cases there cited.

Judgment affirmed.

Statement of the Case.

NORTHWESTERN FUEL COMPANY v. BROCK.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF IOWA.

No. 1159. Submitted March 2, 1891.- Decided March 16, 1891.

The judgment in this case was reversed in this court for want of jurisdiction in the Circuit Court, 130 U. S. 341. The reversal was accompanied by an order that the defendants recover their costs in this court, and have execution therefor, and the cause was remanded to the Circuit Court for further proceedings. Upon filing the mandate in the Circuit Court, the defendants moved that they have judgment against the plaintiff for their costs in this court, and for the costs of the transcript from the Circuit Court, and that execution issue therefor. The defendants, alleging in their motion that certain sums had been collected on the judgment, also moved for a summary inquiry as to the amount, and that they have judgment for the same, with interest; and they having proved that there was collected by the plaintiff upon the judgment, by supplementary proceedings in aid of the execution thereon, the sum of $629.23, the court rendered judgment that the defendants recover that sum with interest and costs, and that the action be dismissed for want of jurisdiction as to the subject matter of the suit. Held, That the Circuit Court had jurisdiction to correct by its own order that which, according to the judgment of this court, it had no authority to do in the first instance, and that the judgment should be affirmed.

THE case, as stated by the court, was as follows:

The Northwestern Fuel Company, a corporation of Minnesota, brought an action in the Circuit Court of the United States for the Northern District of Iowa, against the defendants, citizens of that State, to recover the sum of $1309.50, claimed upon a contract made in July, 1881, between them and the What Cheer Land and Coal Company, alleged to be doing business in that State, and by that company assigned to the plaintiff. Judgment was recovered upon it for $1402.47, and the defendants brought the case on a writ of error to this court, where it was reversed upon the ground that the record did not show affirmatively that an action could have been brought upon it in the federal court if no assignment had been

Statement of the Case.

made; the act of 1875 declaring that no Circuit or District. Court should "have cognizance of any suit founded on contract in favor of an assignee, unless a suit might have been prosecuted in such court to recover thereon if no assignment had been made, except in cases of promissory notes negotiable by the law merchant and bills of exchange." 18 Stat. 470; Brock v. Northwestern Fuel Co., 130 U. S. 341.

The reversal was accompanied by an order that the defendants recover their costs in this court, and have execution therefor, and the cause wa remanded to the Circuit Court for further proceedings.

Upon filing the mandate in the Circuit Court, the defendants moved that they have judgment against the plaintiff for their costs in this court, and for the costs of the transcript from the Circuit Court, and that execution issue therefor. The defendants, alleging in their motion that certain sums had been collected on the judgment, also moved for a summary inquiry as to the amount, and that they have judgment for the same, with interest; and further, that the suit be dismissed with costs, unless the plaintiff should forthwith, by amendment, show a cause of action of which the court had jurisdiction. The court ordered that the defendants have execution against the plaintiff for the costs mentioned; and afterwards gave the plaintiff leave on or before September 1, 1889, to file amendments to the petition as to the jurisdiction of the court. It also gave judgment for the amount paid for the transcript of the record for this court.

The plaintiff failed to amend its petition, within the time designated, showing jurisdiction in the court, and the defendants moved that the action be dismissed; and they having proved that there was collected by the plaintiff upon the judgment, by supplementary proceedings in aid of the execution thereon, the sum of $639.23, the court rendered judgment as follows:

"Now, this 4th day of December, A.D. 1889, this cause again. coming before the court, upon the motion by defendants for a judgment in restitution for money collected by the plaintiff on the original judgment herein, which original judgment was

Opinion of the Court.

reversed by the Supreme Court, as it appears from its mandate as filed herein, and plaintiff appearing by Messrs. Henderson, Hurd, Daniels & Kiesel, its attorneys, and the defendants appearing by Charles A. Clark, their attorney, and the plaintiff having failed to amend its pleadings so as to show jurisdicion of this court as to the subject matter of the action, and the court finding that the plaintiff has collected from the defendants on the original judgment herein in favor of plaintiff and against defendants the sum of six hundred twenty-nine and 23-100 dollars on the first day of May, 1884, which said sum, with interest thereon at six per centum per annum from said date, the defendants are entitled to recover back from plaintiff, because said original judgment herein has been and is reversed and set aside:

"It is therefore ordered and adjudged by the court, that the defendants, R. G. Brock and T. G. McKenzie, do have and recover of and from the plaintiff, the Northwestern Fuel Company, the sum of eight hundred and forty dollars, ($840,) with interest thereon at six per cent per annum until paid, together with the costs of this action, taxed at $22.70, with judgment for said costs against C. W. Eaton, surety on the cost bond filed herein, and that said plaintiff pay said sums into this court within twenty (20) days, in default of which payment defendants shall have execution therefor. To all of which the plaintiff at the time excepted.

"And it is further ordered that this action be now dismissed for want of jurisdiction as to the subject matter of this suit." To reverse this judgment the case is brought to this court on writ of error, under the act of Congress of February 25, 1889. 25 Stat. 236, p. 693.

Mr. David B. Henderson and Mr. Francis B. Daniels for plaintiff in error.

Mr. Charles A. Clark for defendants in error.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.