57 Ala. 253 | Ala. | 1876
This letter, written by Adams, was entirely silent as to the price to be given for the land, and it was held in view of this defect to be totally deficient.
“ The purchase money,” say the court, “ is at least as important a part of the contract as any other. Perhaps there would be more danger of perjury, from allowing parol proof to be given of this, than any other constituent of the contract ; yet the latter contains no statement of the price of the land, nor does it refer to any other writing which does.” It was further contended, however, that, although neither the auction sale bill nor the letter taken singly might be evidence of a contract for the sale of lands under the statute; yet, taken together they would be sufficient. But the court held that conceding that to be the fact, it is very clear unless there is a direct reference in one to the other, so as in effect to embody in itself the paper referred to, without the aid of parol proof to effect such union they can not be considered together. The principle thus enunciated has been frequently recognized and affirmed in subsequent cases. Thus the memorandum of a sale made no mention of the name of the person on whose account the sale was
Shorter writes, proposing to sell to Carter 677 acres of land in Barbour county, describes the land, and states his price at $3,466, payable in cash January 1,1876. The letter from Carter to Shorter, dated Lumpkin, November 25,1875, is as follows:
“Maj. Shorter: After considering your proposition, I have come to the conclusion that I will take your place, if there is nothing else against it save what you have shown me. So soon as Mr. Oattis signs the deed of waiver of his equity of redemption, let me know, and I will come over.
“ It seems that it is almost impossible for us all to meet at once. Write me by mail. Our mail comes up from Cuthbert every Tuesday and Saturday. Yours, J. E. CARTER.''
In Brown on the Statute of Frauds it is said, the note or memorandum must import an agreement made..
If it show only a treaty pending and not a contract concluded, or if, referring to the alleged agreement, it annex conditions or otherwise malte variations, it has no effect as a memorandum to bind the party from whom it proceeds. Brown on the Statute of Frauds, § 371 a. In Stralford v. Bosworth, 2 Vea. & B. 341, it was held, that a contract for land by letter does not constitute an agreement under the statute, if the general character and description of the correspondence is applicable merely to treaty, nor unless it can be collected upon a fair interpretation of the letters that they import a concluded agreement. — And see Ballingall v. Bradley, 16 Ill. 373. So it has been held that as the purchaser did not in his letter recognize the absolute contract described in the vendor's letter but stated one conditional in its nature, there was no note in writing of the bargain to satisfy the statute of frauds.—Smith v. Surman, 9 Barn. & Cress. 561. It is evident that appellant's letter of November 25, 1875, by its terms was conditional in its nature and not an absolute acceptance of appellee's proposition of sale. It contemplates a future meeting and further correspondence, gives directions as to the arrival of the mails; offers to come over when the equity of redemption is released by Oattis, and says, “ I will take your place, if there is nothing else against it save what you have shown me.''
We do not think that this letter, even in connection with and in response to an earlier one, can be considered as a memorandum under the statute of frauds.
As the other points presented by the record will probably • not arise upon a second trial, we deem it unnecessary to ■ consider them.
The judgment is reversed, and the cause remanded.