Case 10 — 'Aqtion by Cumberland & Ohio Valley R. R. Co. against the (Shelbyville, Bloomfield & Ohio R. R. Co. and L. & N. R. R. Co., for Specific Performance of Contract.

Dec. 16.

#### Cumberland & O. V. R. R. Co. v. Shelbyville, B. & O. R. R. Co. &c.

APPEAL FROM SPENCER CIRCUIT COURT.

From a Judgment Dismissing the Petition the Plaintiff Appeals.

Affirmed.

Statute of Frauds — Contract of Sale of Real Estate — Validity.

Held: 1. An option agreement for the sale of the shares of capital stock by the individual stockholders of a railroad corporation, and a subsequent agreement for the sale of the roadbed, rolling stock, and other property of the corporation, ,are independent transactions.

2. A parol agreement for the sale by a railroad corporation of its roadbed, rolling stock, and other property, bejing an agreement for the sale of real estate, is void, within the statute of frauds.

*963. A resolution adopted by the directors' and stockholders of a railroad corporation declaring their willingness to sell! the roadbed, rolling stock, and the other corporate property at a fixed price, and empowering the president of the corporation to consummate the sale, though entered on the records of the oorporation, did not constitute a valid contract for the sale of real estate, within the statute of frauds.

GORDON *&*GORDON, DALiDAM, FARMSDEY & MEANS, and W. W. THUM, FOB APPELLANT.

POINTS AND AUTHORITIES.

1. 'The statement shows an existing contract, first in parol, afterwards .ratified in writing, the terms of which writing were in themselves sufficient to evidence a contract, and which writings were in the shape of resolutions. A completed deed was drawn in pursuance thereof to be delivered on payment of the purchase money. The Statement further shows the failure of certain parties giving an option upon the stock of the Shelbyville road to carry out the option and the substitution therefor of the aforesaid real estate transaction by which the corpus of the property was to be conveyed by the .Shelbyville corporation to the plaintiff corporation and ample time given to perfect the details in Philadelphia for the procurement and payment of the money.

2. The evidence in this case shows that the plaintiff is able, ■ready, and willing to perform; that the failure resulted from the delays iof the defendants an'd' that thereafter instead of affording a reasonable time the defendants immediately sold the property to. other parties. The evidence further shows the continued ability, willingness and eagerness of the plaintiff to perform; and’the surrounding circumstances and the admitted value of the property make it conclusive that the plaintiff was and is and has always been able to 'produce the money within a reasonable time and that the plan contrived by Booker Reed and Peter Arlund was not “mere wind.”

3. There was a contract agreed upon between Reed and Arlund, ratified 'by the resolutions of the vendor- and the vendee, and a deed made in pursuance thereof, and a tender of said deed in writing by the agent of the vendor, and an acceptance of said deed, and tender thereof to the trustee for bonds by the agent of the vendee. The conduct of the parties, the communications passing between them, letters and telegrams, and the surrounding facts, evidence the existence of this eon-tract and not a mere proposal, or authorization to agents.

*974. The minutes signed by the respective secretaries of th< vendor and vendee companies containing the respective reso lutions constitute complete written' memoranda of the contract sufficient to ta’-e it out of the statute of frauds. Ayers & Co v. Mayor of Albany, 14 Am. E., 297; Winchester *&*Lexingtox Turnpike Co. v. Wiekliffe’s Admr., 100 Ky., 531; Chase v City of Lowell, 7 Gray, 33; Martin v. Chaplin, &e., 79 R. I., 423; Brown on the Statute of Frauds, par.,, 348; Sterns v, Muscogee, 111 Mich., 72: Bourland v. County of Peoria, 16 111., 538; Jo-es v. Victoria Graving Dock Co., L. R., 2 lb. Div., 314; Lamkin v. Baldwin *&*Lamkin Mfg. Co., 14 L. R. A., 78‘6; McManus v. Boston, 171 Miass., 152; Wtork v. Cowhick, 81 111., 317; Central .Land Co. v. Johnston, 95 Va., 223; Grime* v. Hamilton Co., 37 Iowa, 290; Johnson v. Trinity CkurcF Soc., 11 Allen (Mass.), 123.

"Several different writings may be read together as constituent parts of the memorandum within the statute of frauds where, when they are viewed together in the light of the situation and circumstances of the parties at the time they were written, they show unmistakably that they relate to the same matter and constitute several parts) of one connected transaction, although there is no express reference from one to the other.” White v. Breen, 32 L. R. A., 127. See also, Louisville Asphalt Varnish Co. v. Loriek, 2 L. R. A., 212, and full note. Smith v. Theobald, 86 Ky., 141; 8 Am. & Eng. Eney., 172 and 712.

“Where there is more than one signed paper, it is not necessary that each one should refer to all the .others or contain any definite reference to other papers. The connection between them may be gathered from their contents, and parol evidence is admissible to identify and explain them.” Wilkinson v. Evans, L. R. I. C. P., 407; Buxton v. Rust, L. R., 7 Exch., 279; Allen v. Bennett, 3 Taunt., 169; Roche v. Haummesser (Ind.), 12 No. East. Rep., 345; Learned v. Wannemacher, 9 All., (Mass.), 412; Peck v. Vandemark, 99 N. Y., 29; Peabody v. Speyers, 56 N. Y., 230; Thayer v. Luse, 22 Ohio St., 62.

See also the case of Salmon Falls Mfg. Co. v. Goddard, 14 How., 446.,

See also 8 Am. & Eng. Eney., 717 and copious notes. As to proof of minutes see 2 Cook on Stockholders, sec. 714. See also Hays v. Pittsburg R. R. Co., 38 Pa. St., 81; Fox v. Allensville Turnpike Co., 46 Ind., 31.

As to the only corporate book required see Kentucky Statutes, 546.

*98‘^Corporations may pass by-laws, elect officers and agents and keep records of tEeir proceedings without affixation .of seal.” 3 J. J. Mar., 203.

“And while formerly a corporation aggregate could only be bound by its seal, it is otherwise now.” 4 Bibb, 18; 1 Marshall, 105; 3 J. J. M., 201; 7 J. J. M., 88; IB. M., 14.

.5. The memorandum of an agreement sufficient to satisfy the statute of frauds must not be confounded with a writing which constitutes an agreement cif itself. The real agreement is never written when a memorandum is necessary. *S*Am. *&*Eng. 'Ency., 710, 711, 712.

“The writing may he sufficient, however informal. A letter, a receipt for money, a bill of parcels, or a stated account, in which the vendor of land charges himself with the price, or tEe return .of a sheriff upon an execution, or a vote of a corporation entered .on their records, signed hy the clerk, or a city ordinance apportioning land and acted upon by defendant, may be sufficient memorandum.” Tufts v. Plymouth Gold Mining Co., 14 Allen, (Mass.), 407; Johnson v. Trinity Ch. Soc., 11 Allen, (Mass.), 123; Chase v. City of Dowell, 7 Gray, (Mass.), .33; Grimes v. Hamilton, 37 Iowa, 290; Ayers Co. v. Albany, 55 N. Y., 495; Caldwell v. (City of Huntington, 1322 Tnd., 92; Hardin v. Champlin, 17 R. I., 423; Kleeman- v. (Collins, 9 Bush, 461 (a letter to a partner.)

•6. Exceptions to incompetent testimony must be definite, must cover all the incompetent testimony, and must have been acted on hy the trial court. 5 Mon., 167; 3 Met., 397; 3 Bush, .318; *4*Bush, 655.

In this case the trial court, after stating a principle of the law of evidence, says:

“Exceptions to the testimony therefore^ are sustained or overruled as said testimony is made competent or incompetent hy the application of said nile or principle thereto.”' This amounts to no action at all upon the exceptions.

7. Time was not of the essence of the contract. Kereheval v. Swope and Clift, 6 Mon., 365 ’(Ch. J. Bibb.)

“Kercheval’s counsel insists that, in equity, time is not regarded as of the essence tof the contract, and relies on circumstances of excuse for his failure to pay the money precisely at the time it was stipulated, and upon part performance. The counsel! for defendant has argued that, in this case, time was of the essence of the contract, and that the parties, by their stipulation have made it so; that there is nothing to outweigh the express stipulations of the parties.

“The rule has been often recognized in courts of equity that *99time is not of the essence of‘a. éontráct. • Many cases have been -.adjudged wherein specific peftforafaSTce was decreed', notwithstanding the vendor or vendeéi.had failed' to perform his part on the day stipulated. ' - -

.“A failure of vendor or of- pufchplfe/ to perform on the day . appointed, does not, of itself;*’ deprive him of his right to have specific execution at an after,day, when he shall be able to com,.®ly with his part of the engagement. Where the court can direct compensation adequate (to-the breach in point of time, the object of the parties may bVjrequenljly best effected by carrying the agreement into execution. II a bill be brought for specific performance by a party who has been in default, the court ought to consider all the cireümstances, and pronounce such de- " cree as is best adapted to the circumstances.

■ “Examples will be found in''Gibson, v. Patterson, 1 Atk., 12; Vernon v. Stevens, 2 Pr. ^feíliams,^’66; Langford v. Pitt, 2 Pr. Williams, 629; Stomtore v. Meers, cited in the last case, 630, and many !" Others’, stated and referred .to by Newland, and in his _ Treatise on 'Contracts, from 230 to 241; 1 Fonb. Eq., 227. And cases also will be found where time has been adjudged' 'material and specific execution .refused, because the one par.tjí-ó’r theíother has been in default, .or has shown backwardness, 'negligence of a gross character, far has trifled, etc., or where.'ffi'e circumstances have, in the ■interim, materially changed.-f'Exampies of this kind may be found ini Newland on Contracts, chap. 12, pp. 241 to 250; ’Sugden Vend., chap. 8, pp. 244'to *259; Benedict v. Lynch, 1 .John. Chan. Cases, 370; Pratt-v. Carráil, 8 Cran., 471; Brashear v. Gratz, 6 Wheat'., 528. ,.

■ “The result of the cases seems? to be; that courts of equity will -not indulge either party, at'-any dist&nee of time, to come in, and ask specific performance, and say. he is now ready, though she-was not at the time stipulated?in Precontract, for carrying it into execution. But to say, 'because t&e plaintiff was not ready at'-the very time when the contract, by its terms, ought to. have been performed, h‘e never can fiájyfe a? decree for an execution of the agreement, would contradict the' 'whole current of authorities. Parties may, certainly, render time of greater importance bj\,express stipulations as to tirnel -But time alone, unconnected with -other circumstances ’¿tewing'opt of the failure as to the. stipulated performance, has not been acknowledged of itself a conclusive objection to á*decréet for an execution of the agreement. ... >•■•<>■

“The rule is acknowledged to be - (ini the case of Brashear v. Gratz, 6 Wheat., 533), by the? supreme court of the United *100.States, that there .can be no 'doubt that a failure on the part of a purchaser or vendor to perform his contract on the stipulated day, does not, of itself, deprive him of his right to demand a specific performance at a subsequent day, when he shall be able to comply with, his part of the engagements.. It may be in the power of" the court to. direct compensation .for the breach of contract in p'oint of time, and in such case,, the ■object of the parties is effectuated by carrying it into execution.” Fleming v. Kenney,-4, J. J. Mar., 156; .Smith v. Cansler, 83 Ky., 374; 2 Story’s Eq.„ sec. 776; Tapp v. Nock, 89 Ky., 414; ■Seton v. Slade, 7 Ves., 273,-et *seq.,*Id., 279, n. 3; Easton v. Lyon, 3 Ves., 696; n. 2; Jackson v. Ligón, 3 Leigh, 187; Tyree, &c. v. Williams, &c., 3 Bibb, 3.67; Henry v. Graddy, 5 B. Mon., 451; Benedict v. Lynch, 1 Johns. Chy., 379; Kercheval v. Swope, 6 Mon., 265; Cotton v. Ward, 3 Mon., 313; Logan v. Bull, 78 Ky., 617; Hisle v. Witherspoon, 19 Ky. Law Rep., 1013; Cocanougher v. Green, 93 Ky., 522.

8. ’Time was not of the essence of the contract according to the expressed intention of the parties, and according to the testimony and the circumstances .of the case.

9. No tender of the money was necessary.

“In an action by vendee to enforce specific performance of an agreement to convey reap estate, the plaintiff need not aver tender of performance if he avers that the defendant had repudiated the contract, and expressly waived tender.” Gray-son v. Dougherty, 25 Cal., 280 (1864) (Syl.).

“If the vendor, by any act of his, prevents the vendee from performing his part of the agreement, or making it known that he does not intend to perform, his covenant except upon compulsion, the vendee is not required to demand a deed from ithe vendor, or perform his part of the agreement before commencing suit; in such case, a court of equity will award a decree, compelling specific performance within a celrtain time, provided the vendee shall have, before that time, performed on his part.” Hunter, *et al.*v. Boles, 24 Ind., 393; Deglow’s Exr. v. Meyer, &c., 12 Ky. Law Hep., 954; Grayson v. Dougherty, 25 Cal., 280; Davis, &c. v. Howe, 2 Schoals *&*Lefroy, 341; Bourke v. Brequet, 1 Desaussar, 142; Washburn v. Dewey, 17 Vermont, 92; Deichman v. Deichman, 49 Mo., 107; Work v. Hedy, 13 Ohio St., 306; Hunter v. Darnel, 4 Hare Eq., 420; Cary v. .Smith, 2 N. Y., 60; Mattocks v. Young, 66 Maine, 459; Brown v. Eaton, 21 Minn., 311; Fry on Specific Performance, par. 619; Vaupell v. Woodward, 2 Sandf. Or., 143; Kerr v. Purdy, 50 Barbour, 25; Stevenson, &c. v. Dunlap, 7 T. B. Mon., 142; Turner v. Parry, 27 Ind., 163; Lynch v. Jen*101nings, 43 Ind., 276; Marshmáñ vl Mitchell, 117 Ind., 312; Brock v. Hedy, 13 Ohio St., 306; Westerfield v. Matherson, Hoffman’s /•‘Chy. (17. Y.), 37; Pingree/v.' Coign, 12 Gray, (Mass.), 288;

- Wellborn v. iSechrist, 88 N. C., 287; 22 Am. & Eng. Ency. of ' Law (Old Series), pp. 103,5,jT03.6,' -1041-2; Fowler v. Lewis, . 3 Mar., 466; Craig v. MpBridgs 9 B. Mon., 11; Ker- ■. cheval v. Swope, 6 Mon., 368;.. Jackson v. Long, 1 Mar., , 82; Caldwell v. Moore, D'ana, 342; Com. v. Col- •. dins, 12 Bush; Tyree v. Willisüñsi JÜiÓibb; Mason v. Chambers, 3 '.Mon., 318; Woodson v. Scott, ,1, Dana, 471; Cotton v. Ward, , 3 Mon., 313; Maddox v. Mostreen,,¡3 Mar., 40.2; Logan v. McChord, 2 Mar., 226; Hart v.-Brand,- ! Mar., 160; Jones v. Shack- - elford, 2 Bibb, 410; Fisher v, MeKey, 2 Bibb, 434; Miles v. Metcalfe, 1 Mar., 478. 'Y.

•- 10. Defendant’^ authorities^-* examined. It is not necessary to the position assumed by the_ plaintiff in this case to dissent from the result of the decisions,-cited bn the other side. Plaintiff contends that some of '{hem aré misapplied and ministerpreted by the defendants, and that they, -as a whole, do not state law applicable to this caáe.“ ’**

11. The plaintiff company was- legally incorporated. It is not competent in this ease to raise that question as’ between the plaintiff and these defendants.^-."Thompson on (Corporations, sec. 247; Lake Ontario R. R. Co. vl Mason, 16 N. Y., 451; 'Spartans-burg, &e. R. R. Co. v. *Ezell,<*14 -S. C., 281; Atlanta, &e. v. Gate City Gas Light Co., 71/Gá.,. 176.; Eastern Plank Road Co. -v. Vaughn, 14 17. Y., 546; Kentucky Statutes, 5.66; Beach on Private Corporations, secs. 16, S67; Clark on Corporations, p. 86, *et seq.;*Cook on Stockholders, ''sec. 637. 12. The remedy. In this equitable action, under the prayer ' of the -petition and under the facts, the court has the right .either to award specific performance ,and fix the time at which -the plaintiff must pay the/money into court and defendants deliver the deed to the corpus of the property, or the court has the right, if it deems it ¿mófe equitable and just under all the circumstances of the case,'to award compensatory damages to the plaintiff in place of specific performance of the contract, or it has the right, if the case (be not sufficiently prepared upon tha subject of damages', to "direct, upon reversal, the Ibwer court to take evidence and ascertain the damages suffered. Ky. -Civil Code, section 90; Davis* *&*Campbell v. Gl-eaves’ Heirs, 5" Hitt., 142, (Judge Owsley)*; Bryant v. Everley, 22 Ky. Law Rep., 346, (1900); Borden v. Curtis, 48 N. J. Eq., 120, 21 Atl., 472; 22 Am. & Eng. Ency. -of'Law, 1079; Fisher’s Heirs v. *102Kaye, 2 Bibb, 421; Taylor v. Whiting, 9 Dana; 22 Am. & Eng. Ency. of Daw, p. 934. o

HELM, BRUCE & HELM, eok appellees.

POINTS.

We submit:

(1) That there never was any contract between the Cumberland ■& Ohio Valley Railroad ¡Company and. the Shelbyville, Bloomfield & Ohio Railroad Company.

(2) That in whatever negotiation there were between the parties interested in or connected with these .matters, it was contemplated that the property, • if taken at all, should be taken and paid for not later than August 15th.

(3) That the Cumberland & Ohio Valley Railroad Company was utterly unable on August 15 to pay the alleged consideration, or any part of it, and has at all times been unable before and since that time to pay .any part of this amount; the whole transaction so far as the Cumberland & Ohio Valley Railroad Company and Arlund are concerned, being merely a wild speculation, an effort to make something .out of nothing.

(4) That if by any chance the court should conclude that there wasi a contract, and that the complainant has a right to ■have it enforced in a court of equity, then this should be upon condition that the increase in value of the property by reason of the permanent improvements which the Louisville *&*Nashville Railnoad Company have put upon it, and which any one would have been compelled to put upon it, should be paid to ■the Louisville & Nashville Railroad Company, -with a lien upon the property to secure the same.

AUTHORITIES.

1. No contract. 1 Morawetz on Priv. Corp., secs. 512, 513; American Wire Nail Co. v. Hedge, 96 Ky., 513, 520; Jones v. Allen, 88 Ky., 381; Duncan v. Duncan, 93 Ky., 37; Asher v. Brock, 9.5 Ky., 270; Newberger v. Adams, 92 Ky.,. 26; Alford ■v. Wilson, 95 Ky., 506; Freeland v. Chanley, 80 Ind., 132; Steel v. Fife, 48 Iowa, 99; Parker v. Parker, 1 Gray, 409; Callanan v. Chapin, 158 Mass., 113; Johnson v. Brooks, 31 Miss., 17; Wier v. Batdorf, 24 Neb., 83; Cagger v. Lansing, 43 N. Y., 550; Comer v. Baldwin, 16 Minn., 172; Alexander v. De Kermel, 81 Ky., 355.

^2. Time. Waterman v. Banks, 144 U. 'S., 403.

*1033. Plaintiff’s inability. Pomeroy on Spec. Per., sec. 323; Smith v. Cansler, 83 Ky., 367; Woolums v. Horsley, 93 Ky., •582; Graves v. U. S., 150 TJ. S., 12jL; S'elma, Reme, &c. R. R. Co. v. U. S., 139 U. .S., 567; "Pullins v. Pullins, 23 Ky. Law Rep., 333; January v. Martin, 1 Bibb, 586.

*4.*Improvements by purchaser. Taylor’s Heirs v. Whiting’s Heirs, 9 Dana, 399.

L. C. WILLIS, ROE APPELLEES.

POINTS.

1. The appellee corporation, the S. B. & O. Railroad Company, was not and could not ba bounjl by the verbal statements •or agreements of its officers o,r attorneys.

2. Appellant never had a legal or enforceable contract with ' the appellee, S. B. & O. Railroad Company.

' 3. If there was a contract time Was an essence of it and the appellant did not comply or offer to comply within the time fixed.

*4.*Appellant has at no time been' able to comply with its •contract and is not now able to comply if a decree for a specific performance was entered.

5. The Louisville & Nashville Railfoad Company’s claim for betterments is just, and if the appellant is to be adjudged this property, the value of 'the property has been increased by the amount claimed. The work and material was furnished because, under the law, the Louisville *&*Nashville 'Railroad Company was required to do it.

AUTHORITIES.

Competency of evidence. American Wire Nail Co. v. Gedge, 96 Ky., 513.

Appellant had no contract, and specific performance. Ballard’s Ky. Law of Real Property, sec. 86; 1 J. J. Marshall, 244; Tiedeman on Real Property, sec. 812; Alexander, &e. v. De Kermel, &c., 81 Ky., 355; Ward y. S'mall’s Admr., 90 Ky„ 201; Pomeroy’s Equity Jurisprudence, secs. 1405, 1408; Gray-bill, &c. v. BrugS, 21 L. R. A., 133; Gotthelf v. Stranahan, 20 L. R. A., 455; L. & N. R. R, Co. v.'.Herd, 14 Law Rep., 670; Jones v. Noble, &c., 3 Bush, 694; Stembridge v. Stembridge, 87 Ky., 91; Woolums v. Horsey, 93 Ky., 283; Counterclaim by L. *&*N. R. R. Co., Kentucky. Statutes]-3728.

*104Opinion of the court by

JUDGE O’REAR

Affirming.

This a suit by the Cumberland & Ohio Yalley Railroad Company, a railroad corporation, against the Shelbyville, Bloomfield & Ohio Railroad Company, and the Louisville & Nashville Railroad Company for the specific performance of an alleged contract of sale, by which plaintiff claims that the Shelby-ville, Bloomfield & Ohio Railroad Company undertook to •sell it (the Cumberland & Ohio Yalley Railroad Company) the railroad running from- Shelbyville to Bloomfield, formerly known as the Northern Division of the Cumberland & Ohio Railroad, and later known as the Shelbyville, Bloomfield & Ohio Railroad. The Louisville & Nashville Railroad Company is made a party defendant because it is now the owner of the property, and plaintiff claims that it purchased same with notice of the existing contract between plaintiff and the Shelbyville, Bloomfield & Ohio Railroad Company. The above named railroad had recently been purchased at a foreclosure sale by a certain syndicate of its bondholders', of whom P. B. Reed, J. Stone Walker, A. L. Schmidt, and others were members. The purchasers organized themselves into the corporation, the Shelbyville, Bloomfield & Ohio Railroad Company, and apportioned to themselves shares of stock in proportion to their respective interests as former bondholders. Peter Arl'und, a promoter and broker, conceived the seheme of selling .this property, or combining it, with other properties, into a more extensive and profitable railroad system. He, with certain associates, organized a corporation called the Southern Finance & Development Company, which they caused to be incorporated under the laws of West Virginia. This last named corporation took an option upon the capital stock of about all of the stockholders of the Shelbyville, Bloomfield & Ohio Railroad Com*105pany. The option provided that it was to continue for 30 days from its date, July 1, 1901, but that it might be extended 15 days longer upon the payment of $500 to P. B. Reed for the stockholders, but it must be accepted in writing and signed toy the development company within the time allowed by the contract, “otherwise, it is considered withdrawn.” It provided for the payment of certain claims against the railroad company, and for the payment to the stockholders for their shares of stock at the rate of $600 per share. This made the total consideration a little over $136,000, which was to be paid in cash upon the acceptance of the option. Arlund and his associates organized the appellant, Cumberland & Ohio Yalley Railroad Company, with-a view to ultimately taking over the railroad properties under the option named, when it should be accepted. The option was never accepted. Nor did the Southern Finance & Development Company, or any one* else for it, pay or tender to the stockholders of the Shelbyville, Bloomfield & Ohio Railroad Company, the purchase money, or any of it. A few days before the expiration of the option period it was discovered that at least one of the interests represented by the option could not be transferred within the time covered by the option. At least it Avas ho considered by the parties. It was then attempted to execute the agreement by an actual conveyance of the corporeal property (that is, the railroad and its rolling stock and other properties, instead of the transfer of the capital stock), the consideration to be the same as would have been paid for the capital stock; leaving the purchase price to be distributed among the original stockholders according to their interests. This agreement Avas in parol, Arlund’s companies had arranged (so he claims) to raise the purchase money upon mortgage bonds *106to be issued upon the property, and to be negotiated in Philadelphia.. The stockholders of the Shelbyville, Bloomfield & Ohio Railroad Company, at a called meeting adopted a resolution authorizing and empowering their board of directorsto execute a deed to all of the company’s property to the appellant railroad company upon the payment of $126,878.67. This resolution was spread upon the records of the company, and signed by the chairman of the meeting and the secretary. Immediately the board of directors of appellee company adopted a resolution authorizing and empowering their president, P. B. Reed, to execute and deliver the deed referred to upon the payment in cash of the consideration named. This resolution was adopted at a meeting of the board of directors at which a quorum was present, and was spread upon the minutes of the board’s meetings, signed by the president and secretary. The deed was drawn, signed, and acknowledged by the president and secretary of the grantor corporation, but retained in the possession of its president, and not delivered. It was so prepared that if the purchase price was paid on the 15th day of August, 1901, in Philadelphia, where the representatives of the corporations were to meet, it could be delivered and the transaction closed without delay. The board of directors of appellant, Cumberland & Ohio Yalley Railroad Company, by a resolution adopted, authorized the acceptance of the deed mentioned, and empowered its president, Arlund, to negotiatejnecessary loans to pay the purchase price. Arlund failed in his negotiations. The purchase price was not paid, nor has it ever been tendered.

The question is whether these resolutions altogether satisfy the requirements of the statute of frauds and perjuries, that a contract respecting the sale of real estate, or some memorandum thereof, must be in writing, and signed by the par*107ties to be charged. The court is of the opinion that the option agreement for the sale of the shares of capital stock by the individual stockholders of the Shelbyville, Bloomfield & Ohio Railroad Company was an entirely independent transaction from the proposal to sell the railroad, so far as the corporation was concerned. It could have no effect whatever upon the title of the corporation to its property. The subsequent agreement between the president of the railroad company proposing to buy the property in question (that is, the roadbed, rolling stock, etc.,) and the president of the railroad company proposing to sell it, was a proposition in parol regarding the sale of real estate* and, not being in writing, was not obligatory upon either party. It was, of course, competent for the parties to- have executed it by writing sub-, sequently signed and delivered. It is claimed for the appellant thatthiswasdoneinthe matter of making of the entries upon the records of the respective corporations above referred to, and the signing and acknowledging of the deed by the vendor corporation, but which was retained in the possession of its president until such time as. the purchase money should be paid. To constitute a' valid contract for the sale of real estate, it is essential that the parties to it (the vendor and the vendee) should have agreed upon the terms and the property concerned; that this agreement should have been reduced to writing, and should have been signed by the party to be bound thereby; and that the contract so signed should have been delivered. A resolution adopted on the.part of the directory or at a stockholders’ meeting of a corporation declaring their willingness to sell the corporate property at a certain figure, and empowering the president to consummate the sale by executing and delivering the necessary deed, will not alone be a contract of sale. It is so far an unexecuted purpose or intention to sell.

*108It is no more a contract -of sale than would have been a power of attorney executed by the owner to an attorney in fact, clothing him with authority to mate a conveyance of the property upon the satisfaction of certain conditions. It was only an investiture of the president of the company with legal authority to make a valid contract of sale, which he otherwise did not have. The parties were left in precisely the same attitude, so far as having contracted with each other was concerned, as they were when the presidents of the two companies had respectively-agreed with each other in parol upon the terms. There was no time when the Shelbyville, Bloomfield & Ohio Railroad Company was legally bound to convey its property to the Cumberland & Ohio Yalley Railroad Company. All that the parties undertook to do in their effort to close that transaction was voluntary, and fell short of becoming obligatory as a contract, executed or otherwise.

The judgment of the circuit court dismissing appellant’s bill for a specific execution of the alleged contract concerning the sale of the property of the appellee corporation, Shelbyyille, Bloomfield & Ohio Railroad Company, must be affirmed.