52 Ind. App. 286 | Ind. Ct. App. | 1913
Appellant sued appellees to enforce- the specific performance of a written contract for the sale of certain real estate located in the city of Indianapolis,' and to compel the execution of a deed therefor. The amended complaint of one paragraph was tested by a demurrer, and held to be insufficient by the trial court. The ruling on this demurrer presents the only ground for contention here.
Tf we find that there is such certainty in the language of the writing relied on here as to leave the intention of the parties clear and definite respecting the substantial terms of the contract, and also the other necessary qualities are
B. F. Cline, Esq.,
City.
Dear Sir:—
We have from the owner of lots 1, 2, 3, 4, 5, 6, in block 1; lots 3, 4, 5, 6, 7, 8, 16, 17, 18,19,20,21, and 22 in block 3; lots 4, 5, 12, 13, 14, 17, 18, 19, 20, 21, and 22 in block 8; lots 1, 2, 3, 4, 5, 6, 23, 24, 25, 26, 27 and 28 in block 7, all in Cleveland’s addition City of Indianapolis, Indiana, an agreement to accept the snm of six thousand ($6000) dollars for said lots if taken on or before June 22nd, 1908. As this offer was obtained after an offer made by you for said lots, we will be pleased to hold this open for your account until this date. [Signed] C. F. Sayles & Co.
I hereby accept the above proposition June 12th, 08.
[Signed] Benj. F. Cline.
Received of Benjamin F. Cline ($1.00) as earnest money on the above proposition, June 12, 1908.
[Signed] C. F. Sayles & Co.’ ”
The terms of this writing, when considered as a contract, are so indefinite and the form of the acceptance so doubtful that it ought not to be specifically enforced in a court of equity. We are unable to say whether the language of the letter is sufficiently definite and certain to constitute a proposition for an actual sale of the lots mentioned therein, or whether thereby merely an option to purchase was extended to appellant; nor are we able to say that by the terms of the so-called acceptance appellant bound himself, by such a memorandum as is required by the statute of frauds, to purchase appellee’s real estate, in such certain terms that appellee could have obtained a decree of specific performance against appellant if he failed to pay the consideration and accept a deed. We are also unable to determine what force or effect is to be given the receipt for $1, executed by the real estate agents, when considered in connection with the other writings heretofore set out. Whether such payment shows that appellant intended thereby to enter into
Appellant might contend, and such contention might well be supported, if he himself were sued, that he never agreed in writing to purchase the property in suit, but that his sole intention was, when he paid $1 and accepted the proposition, to obtain from the agents a number of days within which he liimself might obtain purchasers for the property at a profit to him, as soon as he would obtain a deed to himself therefor, or to acquire sufficient time to determine for himself the advisability of making the purchase for any purpose. In short, appellant, if sued for an enforcement of the agreement, might quite properly insist, in view of the uncertainty of the language of the writings, that he sought and obtained for $1 an. option to purchase the lots before June 22, 1908, and that he declined to avail himself of the opportunity to consummate such purchase.
While we give to appellant the benefit of all the facts well pleaded in his amended complaint, to which he is entitled on a demurrer, yet he has not set out a completed contract with that degree of certainty and definiteness which the general principles of specific performance require, for it does not appear that the minds of the parties met on the essential particulars of any contract with that degree of certainty which is necessary to enable the court to determine with any sort of accuracy what the parties intended.
The demurrer was properly sustained, and the judgment is affirmed.
Note. — Reported in 100 N. E. 569. See, also, under (1) 36 Cyc. 587, 609, 612; (2) 36 Cyc. 587, 597; (3) 36 Cyc. 622. As to the certainty necessary in a contract to warrant a decree for its specific performance, see 26 Am. Dec. 661; 140 Am. St. 58. For a discussion of the specific performance of optional contracts, see 1 Ann. Cas. 900; 12 Ann. Cas. 90; Ann. Cas. 1913 A 362.