would be complete when the defendant, after thus getting possession of Teeling's money and inducing him to count out $190 more than was needed, appropriated it to his own use."

When the defendant took up the money from the table, it had not yet passed under the dominion of Bent, who represented the opposite party. The defendant did not receive it as representing the opposite party; he purported to be acting in the interest of Teeling. The jury would have been warranted in finding that Teeling impliedly authorized the defendant to take up the money from the table, but they only could have found that he allowed him to do so for the purpose of immediately transferring the identical bills, or all but ten dollars of them, to Bent under Teeling's eyes. Subject to a single consideration, to be mentioned later, there is no doubt that in thus receiving the money for a moment the defendant purported at most to act as Teeling's servant or hand, under his immediate direction and control. Therefore not only the title to the money, but the possession of it, remained in Teeling while the money was in the defendant's custody: Commonwealth v. O'Malley, 97 Mass. 584. If the defendant had misappropriated the whole sum, or if he misappropriated all that was left after paying Bent, the offense would be larceny: Commonwealth v. Berry, 99 Mass. 428; 96 Am. Dec. 767; Regina v. Cooke, L. R. 1 C. C. 295; 12 Cox C. C. 10; Regina v. Thompson, Leigh & C. 225, 230; 2 East P. C., c. 16, secs. 110, 115. See further, Commonwealth v. Donahue, 148 Mass. 529, 530; 12 Am. St. Rep. 591, and cases cited.

The instructions made the defendant's liability conditional upon his having obtained the money from Teeling by a premeditated trick or device. If he did so, and appropriated all that was left after paying Bent, he was guilty of larceny, irrespective of the question whether Teeling retained possession, according to the dicta in Commonwealth v. Barry, 124 Mass. 325, 327, under the generally accepted doctrine that if a party fraudulently obtains possession of goods from the owner with intent at the time to convert them to his own use, and the owner does not part with the title, the offense is larceny. Even if the possession had passed to the defendant, there can be no question that the title remained in Teeling until the money should be handed to Bent: See note to Regina v. Thompson, Leigh & C. 225, 230.

In this case, however, by the terms of his agreement with

Teeling, the defendant had the right to retain $10 out of the moneys in his hands; and it may be argued that it is impossible to particularize the bills which were stolen, seeing that the defendant appropriated bills to the amount of $195 all at once, without distinguishing between the $10 he had a right to select and the $185 to which he had no right. This argument appears to have troubled some of the English judges in one case, although they avoided resting their decision on that ground: Regina v. Thompson, Leigh & C. 233, 236, 238. If the argument be sound, it might cause a failure of justice by the merest technicality. For it easily might happen that there was no false pretense in the case, and that a man who had appropriated a large fund, some small part of which he had a right to take, would escape, unless he could be held guilty of larceny. We think the answer to the argument is this. All the bills belonged to Teeling until the defendant exercised his right to appropriate ten dollars of them to his claim. He could make an appropriation only by selecting specific bills to that amount. He had no property in the whole mass while undivided. If he appropriated the bills as a whole, he stole the whole, and the fact that he might have taken ten dollars does not help him, because he did not take any ten dollars by that title, or in the only way in which he had a right to take it. The later English cases seem to admit that a man may be liable for the larceny of a sovereign given him in payment of a debt for a less amount in expectation of receiving change, as well as in cases like Commonwealth v. Berry, 99 Mass. 428, 96 Am. Dec. 767, where there is nothing due the defendant: Regina v. Gumble, L. R. 2 C. C. 1; 12 Cox C. C. 248; Regina v. Bird, 12 Cox C. C. 257, 260. See further, Hildebrand v. People, 56 N. Y. 394; 15 Am. Rep. 438.

Although the point is immaterial to the second ground of liability which we have mentioned, we may add that we are not disposed to think that the fact that the defendant may have been expected to select ten dollars for himself during the moment that the bills were in his hands was sufficient to convert his custody into possession. That right on his part was merely incidental to a different governing object, and it would be importing into a very simple transaction a complexity which does not belong there to interpret it as meaning that the defendant held the bills on his own behalf, with a lien upon them until he could withdraw his pay.

It is not argued that the averment as to promissory notes is not sustained: Commonwealth v. Jenks, 138 Mass. 484, 488. Exceptions overruled.

LARCENY - PROPERTY OBTAINED BY FRAUD.-One to whom personal property is delivered for a special purpose, but who intended when he procured such delivery to appropriate it to his own use, is guilty of larceny: Soltau v. Gerdau, 119 N. Y. 380; 16 Am. St. Rep. 843, and note; State v. Hall, 76 Iowa, 85; 14 Am. St. Rep. 204, and note; Grunson v. State, 89 Ind. 533; 46 Am. Rep. 178, and note; Smith v. People, 53 N. Y. 111; 13 Am. Rep. 474; People v. Dimick, 107 N. Y. 13. To fraudulently procure the delivery of goods with a felonious intent to convert them is larceny: People v. Raischke, 83 Cal. 501.

MCGOVERN v. HERN.

[153 MASSACHUSETTS, 308.]

STATUTE OF FRAUDS. — MEMORANDUM OF SALE cannot satisfy the statute of frauds, unless it either names the vendors or describes them so that they can be identified by other evidence. Where the sale is at public auction, and the advertisement of sale states that it is to be made “to settle the estate of John Higgins," a memorandum of the sale, made by the auctioneer, neither naming the vendors nor describing them, except. to designate them as the "sellers," is fatally defective, though the parties for whom the sale was made were either the devisees of John Hig. gins or grantees from such devisees. VENDOR AND PURCHASER.

A contract for the purchase of land is not negotiable, and cannot be enforced by one who acquires title to the land from the vendors after the contract is made.

ACTION to recover damages for breach of an agreement to purchase land. The sale upon which the plaintiff relied was made at public action, and the memorandum of the sale made by the auctioneer was upon a blank form, in one corner of which were the words: "By Sullivan Brothers, Auction. eers, No. 9 School Street," and these words were followed by a copy of the advertisement of sale, copied from a newspaper, stating that the property is to be sold "to settle the estate of John Higgins, deceased," and also by the following statement of the conditions of sale, signed by the purchaser:

"BOSTON, October 18, 1888. "Terms and conditions of sale. Cash on delivery of the deed. Conveyance to be made in ten days from date, at the office of Sullivan Brothers, No. 9 School Street, by a good and sufficient deed, or the sellers may take thirty (30) days, if necessary, in order to give title. Taxes for 1888 to be paid by the purchaser; five hundred dollars to be paid into our

hands to bind the sale and form part of the purchase-money in settlement for the estate, but will be forfeited to the seller if the purchaser fails to comply with the terms of sale. Forfeiture of the deposit-money will not release the purchaser from his obligations to take the property; but if the title to the estate shall not be good, this agreement shall be void. "BOSTON, October 18, 1888.

"I am the purchaser of the estate described in the printed advertisement hereto affixed, for the sum of twenty thousand six hundred and fifty ($20,650) dollars, and hereby assent to the terms of sale, and agree to abide by the same."

The property sold was owned by the devisees of John Higgins, deceased, and by their grantees, and the owners, after the sale and before the tender of the deed, made a conveyance to the plaintiff. The trial court ruled in favor of the defendant on both the grounds mentioned in the opinion of the appellate court, and the plaintiff excepted.

C. F. Donnelly, for the plaintiff.

D. E. Ware, for the defendant.

C. ALLEN, J. The memorandum of the sale is insufficient to satisfy the statute of frauds. It is essential that it should show who are the vendors. It is true that they need not be named. It is enough if they are described, and in that case parol evidence is admissible to apply the description and to identify the persons meant: Jones v. Dow, 142 Mass. 130, 140; Catling v. King, L. R. 5 Ch. Div. 660; Rossiter v. Miller, L. R. 3 App. Cas. 1124, 1141; L. R. 5 Ch. Div. 648. Merely to refer to the persons selling as the vendors is no description: Catling v. King, L. R. 5 Ch. Div. 660, 665, per Mellish, L. J. In Gowen v. Klous, 101 Mass. 449, the sellers were described as "Eveline Gowan, guardian, and the heirs of Thomas Gowan "; and it was held that one of the heirs, who owned the lot in question, might maintain the action. The court said: "It is no objection to the sufficiency of the memorandum, that the seller therein named is but an agent of the real owner; and on proof of the agency, the latter may sue or be sued on the contract made by his agent in his behalf." The trouble with the memorandum in the case before us is, that the seller is neither named nor described. Sullivan Brothers were indicated in one corner of the paper as the auctioneers, and it cannot fairly be considered that they were anything else. Their

function as auctioneers was recognized in the memorandum as something distinct from that of parties contracting for unmentioned principals: Grafton v. Cummings, 99 U. S. 100, 107, 108.

There is another objection which is fatal to the action in the present form, though it might perhaps be cured by an amendment substituting the proper plaintiffs for the present plaintiff. At the time of the sale, it appears that the estate was owned by devisees of John Higgins, and by grantees of certain of the devisees. The plaintiff was not at that time interested in the estate, but acquired it afterwards for the purpose of conveying it. If anybody had contracted as vendor, then it would be sufficient if such person was able to give a good title at the time specified: Dresel v. Jordan, 104 Mass. 407. In that case it was held that the person who contracted to sell, and who was described in the memorandum, might maintain an action. But such a contract is not negotiable, and it could not be said that the purchaser is liable to a suit in the name of a person who subsequently acquires the title of those who were the owners at the time of the sale: Grafton v. Cummings, 99 U. S. 100.

Exceptions overruled.

THE PRINCIPAL CASE WAS FOLLOWED IN THE CASE OF Lewis v. Wood, 153 Mass. 321. The memorandum relied upon in that case was a letter written by Mrs. Hawes, with the assent of the defendant, and was as follows:"EAST WEYMOUTH, March 24, 1890. "Dear Sir,- My sister and I have decided to accept the offer of $1,450 for our interest in the Cambridge property now under discussion. I think, however, I would better see you this evening or next, between six and seven, if convenient. Respectfully, E. C. HAWES."

The writer of the letter and the defendant each owned an undivided seventh of certain land in Cambridge, and there had been some discussion by the writer, on behalf of herself and defendant, with one Pratt, who was acting as their agent, regarding the sale of their respective interests, and he had communicated to them an offer of purchase made by him, but had not stated at any time who the proposed purchaser was. After the offer was made, the letter above referred to was written. Afterwards, a bill in equity was brought by one Lewis for the specific performance of the agreement to sell the defendant's interest in the land. The memorandum above referred to, being relied upon at the trial, was ruled out, and in sustaining this ruling, the supreme court said: "Without considering all the objections that can be urged against the memorandum, it is sufficient to say that it is materially defective in not containing the name of the purchaser, or any designation of him whatever. In order to satisfy the statute, the memorandum should not only have been signed by the defendant or her authorized agent, and have identified the property to be sold, but should also have contained the name