¶1 dissenting. The original purpose of the Statute of Frauds, so-called, was to prevent disputes as to contracts required by the statute to be in writing, but the desire to accomplish in particular cases, what was conceived to be just, has led to the creation by judicial interpretation of so many distinctions and exceptions, that the resulting confusion and uncertainty have been as great, and the consequent litigation, as voluminous, as if the statute had never been enacted.
¶2 Commenting upon this tendency, Coleridge, L. J., in the case of Reeve v. Jennings, 2 K. B., 522, 79 L. J., K. B., 1137, stated that “the statute of frauds has been much buffetted about by decisions, but its life is not quite extinct.”
¶3 It is inconceivable that any case could be presented to any court involving more acrimonious and bitter *145 dispute, charges and counter charges, than is presented in the record in the instant cases, the possibility and opportunity for which, it would seem, the statute was intended to prevent.
¶4 There is no denial of the fact that the contract in question was materially altered by some one other than Brudno, the party to be charged, after it had been signed by him. No witness testified that Brudno suggested to any one, or requested or directed any one, to make the alterations; the utmost that is claimed, by defendants in error being that it was made by one of their attorneys, Mr. Felsman, of Beckerman & Felsman, in the private office of Mr. Beckerman, in the presence of themselves and of Beckerman and Brudno, and that before and after it was made Brudno, in effect, said: “That will be satisfactory.” All of these gentlemen were witnesses, and all of them are interested directly or indirectly in the result of this controversy.
¶5 The evidence shows that the property which Shane was to convey to Brudno was 127 feet in depth, and, according to Brudno, in order that he might be assured that there were no restrictions, zoning or otherwise, as to the building of apartments thereon, he redrew the contract, inserting therein the condition that “it is understood that the land of the second party is not restricted against the building of apartments, nor has it any restrictions against building to the lot line,” the alteration consisting in striking out the words “has it any” and interlining the words “are there deed.” Brudno denied any knowledge of the alteration so made, claiming that duplicate copies of the contract as prepared by *146 him, one of which he had signed, were taken into an adjoining office, and that, when returned to the office where he was waiting, he was given one copy thereof ; that he thereupon left the office of Beckerman & I'elsman, and did not observe the alteration made therein until the next morning, when he discovered that he had been given the copy of the contract signed by Shane, but not by himself; that he at once investigated the matter, and, finding that there was in fact a zoning ordinance requiring buildings erected on the lot in question to be set back 19 or 20 feet from the lot line, immediately called attention and objected to the alteration so made. If Brudno had himself made the alteration, or had in any way indicated on the instrument itself his approval thereof, the situation would be quite different.
“It is a well-settled rule, that the name of a person to be charged must appear at least somewhere upon the instrument, and it must be placed there for the purpose also of giving it authenticity.”
¶6 Anderson v. Harold, 10 Ohio, 400; Kling, Admr., v. Bordner, 65 Ohio St., 86, 99.
¶7 How can it be said that the signing of a proposed contract, in which new terms and conditions are thereafter substituted by interlineation and existing ones eliminated by erasure, constitutes either a signing or an authentication of the changed instrument within the meaning of the statute? Is not the writing as changed a counter offer, which, to be enforceable as a contract, must be signed by the party to be charged?
¶8 Is it anything more than mere pleasantry to suggest that the retracing of his signature by the party *147 to be charged subsequent to the alteration of a contract signed by him, or a notation thereon “O. K.,” or “Approved, Brudno,” or the placing thereon of some other mark of affirmative approval, is not more certain than a conclusion of fact adduced by weighing the conversations pro and con of interested persons? Memory of conversations is fleeting at the best, and inclined generally to recall, if not intentionally, subconsciously, what self-interest dictates. Does compliance with a statutory rule “lead to a ridiculous end and make the statute of frauds a hardship instead of a protection?” If this were true, the fault is with the Legislature, but to so say is a false conclusion, for who is to be the judge as to which of the parties is most in need of protection? Was it not because of this uncertainty that the Legislature established a fixed rule of procedure as to contracts of the character here in question? Is not the Legislature, speaking through the statute, the judge?
¶9 What the real facts are no one will ever know except the parties themselves, and, however much opinions may differ, the fact remains that there was no re-signing by Brudno of the proposed contract, although the alteration was made by an attorney who might have avoided all' possibility of dispute by requesting Brudno, who, it is claimed, ’ consented thereto, to indorse upon the contract his approval thereof. The question here in controversy does not relate to a dispute as to whether the contract was changed after its execution, the party to be charged claiming that it had been, and the other that it had not; nor to a dispute as to whether an agent who had *148 signed a contract for Ms principal had been “thereunto by him lawfully authorized;” nor is it a contract signed by a principal with authorization to an agent to complete it, the statute not requiring the agency to be evidenced in writing. Questions such as these must necessarily be submitted to a jury for determination, but to say that the issues involved in the instant cases are for a jury to decide is in my judgment an erroneous conclusion.
¶10 I take it that the Legislature intended the statute to mean what it purports to say, and to be mandatory in its command that “no action shall be brought whereby to charge the defendant” upon contracts of the character therein enumerated, unless compliance has been made therewith. The statute does not create a limitation upon what constitutes a contract, but requires a specified formality of proof to enforce it. It does not provide expressly or impliedly that ignorance of its operative effect will excuse its violation. The party to be charged may, at his option, perform, or refuse to perform, a contract not enforceable, because within the purview of the statute, but to permit a jury to determine from disputed testimony that a person has signed a contract that admittedly he has not adds but another amendment to the statute by judicial act. Generally, a reviewing court assumes the facts to be what a jury has said they are, unless the error complained of involves the weight of evidence, and on this assumption proceeds to consider the question presented as one of law. If the judgment of a jury were infallible, there would be no need for a statute of frauds.
¶11 If the law is as announced in the majority opinion, how easy it would be to inveigle the party to be *149 charged into the presence of three or four or more adversely interested persons and there alter, to the entire satisfaction of a jury, not only one condition' of a signed contract, but, if the spaces therein were sufficient, make any number of interlined alterations, including even the description of the real estate and the consideration, against which the party to be charged might, like a “voice crying in the wilderness, ’ ’ truthfully, yet vainly, protest to the most discerning jury. The purpose of the statute is to make certain the facts, and not to permit a jury or the party seeking to enforce the contract to juggle with conflicting testimony in search of a conclusion to serve as a substitute for the certainty which the statute requires. Nor is the contract here in question analogous to a deed, which, if properly executed and acknowledged, consummates negotiations and vests title upon delivery. In a contract for the sale of lands, the owner may impose such restrictions and conditions as he sees fit with respect to the proposed conveyance of his property. Section 8621, General Code, applies to contracts of sale, but has no application to deeds. Accordingly it seems to me that authorities in which the facts in issue relate to deeds cannot assist in arriving at a correct conclusion in the instant cases.
¶12 My experience has been that, if one searches with sufficient avidity and patience, he can find an authority or a near-authority on almost any question in litigation, but, even on the assumption that authorities must always be forthcoming before a conclusion may be reached, I am not satisfied that the particular question here involved has been judicially determined. My conviction is that the court should *150 seek not to destroy by strained interpretation or construction tbe effect and plain import of tbe statute, but rather to uphold it, leaving to tbe discretion of tbe Legislature its amendment or repeal. If, however, in tbe course of time, its life is to become “quite extinct,” it would seem that tbe Legislature should be permitted to conduct tbe obsequies.
¶13 Tbe judgments of tbe trial court should be reversed and final judgments rendered for plaintiff in error.