167 N.W. 175 | S.D. | 1918
Plaintiff seeks the specific performance of a Contract to convey real property. Finding's, conclusion, and judgment were in favor of defendant. From such judgment and an- order denjing a new trial this appeal is taken-.
Parties contracting for the sale and purchase o>f real property
“When the contract itself is in writing arid signed! by both, parties, the writing is 'the contract. When the memorandum of the oral contract is in writing and signed by the vendor, -it is not the contract, 'but a memorandum.”
Statutes of frauds have condemned oral contracts; Some by leaving suclh contracts valid, but declaring them1 unenforceable; others, like ours, by declaring the contracts • invalid unless there be some rióte or meimoraodum signed by the parties sought to be charged, which note or memorandum furnishes evidence of the materiaii terms of sUdh contracts. Sectioln 1238, C. C. The difference in the .two diasses of statutes was very fully noted in Jones v. Pettigrew, 25 S. D. 432, 127 N. W. 538, and in which we said:
“Considering now tine difference between these two classes of statutes — that undler one the contract is valid, but not enforceable without certain proof can be made, while under the other the ,contract itself never becomes valid until it is entered into (evidenced) in tlhe manner prescribed by statute or unless certain p'ant performance prescribed by statute has .taken place —iwe see that, upon the trial, if one is attempting to prove a state of facts which brings the particular case under the bar of a statute sulch as we have in South Dakota, it would be an attempt to prove am invalid contract by perfectly competent evidence; while in tire other case it would! he an attempt to enforce a .comitnadt which, under the law, was aibsolultely. valid, but by means of 'incompetent -evidence.”
It .must be rauembered that, under our statute, the party sought to be charged may admit every term of the oral contract and yet rely -upon its invalidity under the statute offrauds. As was well said in Fisher v. Andrews, 94 Md. 46, 50 Atl. 407, in speaking of a contract coming under the provisions of another section of the statute of frauds:
“The principal object in making a memorandum of sale in mercantile transactions is to comply with the requirements of the statute oif frauds, and the general rule is that, if the memorandum' does not embrace all the material terms of the verbal contract, it is not sufficient. It frequently happens, therefore, that in -such cases parol evidence is admitted, not for the purpose of varying or contradicting a written agreement, as was suggested by the appellants that the appellee w/as attempting to dO', but to show that what [wa®] professed/ to- be a memorandum of the contract idlid not in fact truly state it, but had omitted some essential terms that had been agreed upon in the verbal contract. The case of Kriete v. Myer, 61 Md. 558, is a good illustration of the sufficiency of such memorándum. There a sold note was given by the agents, of the vendor, and it was held that the*285 memorandum of sale meed not state the time of. the 'delivery if no time was fixddi in the parol agreanierat, as the law would imply that iilt ¡i's,’im isudh case, the duty of the seller to deliver the good's in a reasonable time; or, if there be am established' custom among merchants dealing in such good® regulating the time of 'delivery, it will be dotoitro-ll-ed 'by such custom. But it was further held that, if a time fot delivery be fixed in the verbal agreement of slate, such time must be incorporated in the memorandum, and', if it is not, it is infsufficient.”
“That during the negotiations between toe plaintiff and defendant tire defendant stated- in effect to- the plaintiff that if he sold toe land in controversy to the plaintiff that he needed- the money to meet -bilis--that was them coming due and wished to take aldlvantage of too discounts allowed on the bills if paid when -due, and- if toe deal could) not' be -closed by May 1, 1915, hie would not sell toe land to: -the plaintiff.”.
Appellant contends that the above fin-ding i-s unsupported by toe evidence. In this- contention -appelant is -in- error; such finding i-s fully supported by undisputed testimony. The time of do-sling the' deal to-us became a controlling provision of said canitradt, and therefore, even if toe memorandum should he held to contain amp-l-e evidence o-f all the terms essential' to a -complete contract, yet it does not contain all toe material terms audi conditions of the contract that was in fact entered into-; and, for that reason alone, i-t remained invalid -under the 'statute of frauds. Moreover, it is perfectly clear that, if there had been -a written contract embodying therein this condition upon/ which toe continued- binding force of such contract depended, -ahd such con
Tire record in this- case peculiarly discloses the importance of foreclosing all chance for innocent mistake or for actual fraud in transactions of this- kind by contracting- in writing. If peo-, pie s-ee fit to enter into invalid contracts, -and thus rely upon-each -other’s honor, they must dlo s-o- at their peril.
Under tire views herein 'expressed it is clear that tíre judgt menst and- order 'appealed from should be, and- they are, affirmed.