From the language of these sections he argues that when in section 1973 of the Code of Civil Procedure and in sections 1624 and 1741 of the Civil Code, it is declared that contracts within the statute of frauds are invalid unless they or some note or memorandum of them, "be in writing and subscribed by the party to be charged, or by his agent," the "party to be charged" is the vendor and not the vendee. And it is said that such is the construction put upon the statute in this state by the cases of Joseph v. Holt, 37 Cal. 254; Rutenberg v. Main, 47 Cal. 213; and Scott v. Glenn, 98 Cal. 170, [32 P. 983], while elsewhere this construction receives support; as in Wisconsin, (Hubbard v. Marshall, 50 Wis. 322, [6 N.W. 497],) in Nebraska, (Gardels v. Kloke, 36 Neb. 493, [54 N.W. 834],) in Michigan, (Mull v. Smith, 132 Mich. 620, [94 N.W. 183],) in Montana, (Ide v. Leiser, 10 Mont. 5, [24 Am. St. Rep. 17, 24 P. 695],) and in New York, (Boehly v. Manning, 52 Misc. 382, [102 N Y Sup. 171].) Upon the proposition that specific performance is a road open to the vendor under the circumstances here presented, it is said that the vendee who has not signed may prosecute such an action against the vendor who has signed.
tcher to the terms of the escrow agreement, and that plaintiff failed to deposit the unpaid balance of the purchase price with the escrow-holder on or before the expiration of the ninety-day period. [1] It is well settled as a general rule that an undisclosed principal can either sue or be sued on the contract made by his agent (1 Cal. Jur., Agency, sec. 131, p. 854; Parker v. Otis, 130 Cal. 322 [92 Am. St. Rep. 56, 62 P. 571, 927]; Schader v. White, 173 Cal. 441 [ 160 P. 557]); and the fact that plaintiff brought the action thereon was a sufficient ratification of the acts of Jacobson (2 Cor. Jur., Agency, sec. 132, p. 513; Argenti v. Brannan, 5 Cal. 351; Thompson v. Spray, 72 Cal. 528 [14 P. 182]). [2] Moreover, contracts within the statute of frauds need be subscribed only by the party to be charged or his agent (Civ. Code, sec. 1624), and may be enforced notwithstanding they are not signed by the plaintiff or his authorized agent ( Cavanaugh v. Casselman, 88 Cal. 543 [26 P. 515]; Scott v. Glenn, 98 Cal. 168 [32 P. 983]). [3] Nor does this rule render the contract liable to the objection of a lack of mutuality, for by bringing the suit the plaintiff binds himself to abide by the judgment of the court ( Harper v. Goldschmidt, 156 Cal. 245 [134 Am. St. Rep. 124, 28 L.R.A. (N.S.) 689, 104 P. 451]; Allen v. Dailey, 92 Cal.App. 308 [ 268 P. 404]; Williston on Contracts, sec. 140, p. 314). [4] Defendant Fletcher refused to sign the escrow agreement or to proceed with the sale.
By said payment, in the absence of an express agreement that said payment should not be construed as having that effect, Wright accepted what was theretofore an offer on the part of Bunting to sell his property, and Bunting's acceptance of such payment bound him to comply with the terms of his offer. ( Benson v. Shotwell, 87 Cal. 49, 54, [25 P. 249, 681]; Eaton v. Montgomery, 90 Cal. 307, [25 Am. St. Rep. 123, 27 P. 280]; Reed v. Hickey, 13 Cal.App. 136, [ 109 P. 38]; Karahadian v. Lockett, 33 Cal.App. 413, [165 P. 552]; Russ v. Tuttle, 158 Cal. 226, [ 110 P. 813]; Scott v. Glenn, 98 Cal. 168, [32 P. 983]; Copple v. Aigeltinger, 167 Cal. 706, [ 140 P. 1073]; Oursler v. Thacher, 152 Cal. 739, [ 93 P. 1007]; McCowen v. Pew, 18 Cal.App. 302, [ 123 P. 191].) [2] This brings us to the question whether Wright, being in default, unexcused, in the payments due under Bunting's offer to sell, and having made no tender of complete performance, and Bunting acknowledging his obligations thereunder and standing upon its terms, the former was entitled to receive back from Bunting the money paid by him. That he was not so entitled is well established by the authorities ( Glock v. Howard, 123 Cal. 1, [69 Am. St. Rep. 17, 43 L.R.A. 199, 55 P. 713]; Oursler v. Thacher, 152 Cal. 739, [ 93 P. 1007]).
It is sufficient that the agreement was signed by the party sought to be charged. (Justice v. Lang, 42 N.Y. 493;Cavanaugh v. Casselman, 88 Cal. 543; Vassault v. Edwards, 43 Cal. 458; Rutenberg v. Main, 47 Cal. 213; Easton v. Montgomery, 90 Cal. 307, 312;Scott v. Glenn, 98 Cal. 168; McDonald v. Huff, 77 Cal. 279; Crutchfield v. Donathon, 49 Tex. 691; Fry on Specific Performance, secs. 291, 292; 2 Kent's Commentaries, pp. 510, 511.) The filing of the bill for specific performance makes the remedy mutual.
The provision by which time is made the essence of the agreement did not authorize the defendant, by failing to make the payments agreed upon, to treat the contract as rescinded. (Newton v. Hull , 90 Cal. 487; Scott v. Glenn , 98 Cal. 168.) 2.
By reason of this default respondent, by virtue of the provisions of the contract, was not only released from all obligations to sell, convey, or transfer the property described in the contract, but, as provided therein, entitled to retain the one thousand five hundred dollars so paid by plaintiff, which by the terms of the agreement was "fixed as the consideration and in full compensation for the option . . . granted." ( Townsend v. Tufts, 95 Cal. 257, [29 Am. St. Rep. 107, 30 P. 528]; Scott v. Glenn, 98 Cal. 170, [32 P. 983].) Appellant, however, insists that the contract was made in violation of the provisions of section 361a of the Civil Code, and therefore void, and being void, defendant obtained no rights by virtue of its terms.
This, it is claimed by the appellant, under authorities cited, was a ratification of Lewis' agency by Carey of such a character as to estop him from denying it, and this contention, we think, must be sustained. (Civ. Code, secs. 2300, 2317; Code Civ. Proc., sec. 1962, subd. 3; Donnelly v. San Francisco Bridge Co., 117 Cal. 417, [49 P. 559]; Scott v. Glenn, 87 Cal. 221, [25 P. 405]; S.C., 98 Cal. 170, [32 P. 983].) Afterward, the plaintiff applied to Lewis for a deed and was offered a deed executed by Crenshaw, containing the building restrictions and other restrictions provided for in his contract with Carey, and without any provisions as to the street work and water piping referred to in the contract sued on.