315 Mass. 729 | Mass. | 1944
The defendant declared in set-off for breach of a contract to buy real estate. The district court judge made a finding for the defendant. The Appellate Division vacated the finding and ordered judgment for the plaintiff. The defendant appealed.
Whether the defendant’s cause of action is properly one
The only question is the sufficiency of a memorandum under the statute of frauds (here G. L. [Ter. Ed.] c. 259, § 1, Fourth). The trial judge’s findings show the following: The defendant was the owner of three lots, comprising fourteen thousand three hundred square feet, on Galvin Road, Watertown. This was the only land he owned in Water-town. The defendant orally agreed to sell, and the plaintiff to buy, this land at thirty-two cents per square foot. On September 1, 1941, the plaintiff handed the defendant a check for $200, payable to the defendant, wholly in the plaintiff’s handwriting, on the face of which was written, “Deposit for land in Galvin Road, Watertown price 32 cents a foot.” The defendant cashed the check, and the plaintiff “proceeded to dump” on the land. The plaintiff later repudiated the agreement. Both parties testified that the plaintiff filled a cellar hole and changed the surface.
We are of opinion that the memorandum was sufficient to satisfy the statute of frauds. It “need not be a formal document intended to serve as a memorandum of the contract; but it must contain the terms of the contract agreed upon — the parties, the locus (if an interest in real estate is dealt with), in some circumstances the price, . . . and it must be signed by the party to be charged or by some one authorized to sign on his behalf.” Des Brisay v. Foss, 264 Mass. 102, 109. In the nature of things there is no reason why the memorandum cannot be written on a check. “The form of the memorandum is immaterial, if its contents adequately set forth the agreement.” Hurley v. Brown, 98 Mass. 545, 546. In Little v. Pearson, 7 Pick. 301, a valid memorandum was written on a promissory note. The payee and the maker of the check in the present case are sufficiently identified as the seller and the purchaser, respectively. In McGovern v. Hern, 153 Mass. 308, and Lewis v. Wood, 153 Mass. 321, relied upon by the plaintiff, the seller was not named or described with reasonable certainty. In Sanjean v. Miller, 248 Mass. 288, the form of the memorandum was
The agreement is not defective as failing to show the kind of transaction agreed upon. The word “price” on these facts is consistent only with a sale of the property. It is "The consideration in money given for the purchase of a thing.” Bouvier’s Law Dictionary. See De L’Isle v. Moss, 34 La. Ann. 164, 167; Good v. Erker, 170 Mo. App. 681, 690; Hudson Iron Co. v. Alger, 54 N. Y. 173, 177; Scott v. People, 62 Barb. S. C. 62, 72; Guy v. McDaniel, 51 S. C. 436, 440; Williston on Contracts (Rev. ed.) § 574; 49 C. J. 1345. "Price” is not an appropriate word to refer to payments as tenant under a lease, which are commonly denominated "rent.” See Guild v. Sampson, 232 Mass. 509, 513; Whiting
The trial judge correctly denied the plaintiff’s requests for rulings to the effect that the memorandum was insufficient. He was in error, however, in stating, “I find that the check constituted a sufficient memorandum in connection with the physical alteration of the surface of the land to satisfy the Statute of Frauds.” The memorandum was enough by itself, and the physical alteration could not be considered for two reasons: (1) Part performance is recognized only in equity. Montuori v. Bailen, 290 Mass. 72, 75. (2) Such performance must be by the party seeking to enforce the oral contract. Glass v. Hulbert, 102 Mass. 24, 31. Palumbo v. James, 266 Mass. 1, 3.
The Appellate Division thought that this error in some way tainted the trial judge’s otherwise correct denial of the plaintiff’s requests. We are unable to follow this conclusion. The right result is not to be set aside because it was reached by error which can be corrected on the record. Ryder v. Warren, 295 Mass. 24, 29.
The order of the Appellate Division is reversed, and judgment is to be entered for the defendant on the declaration in set-off on the finding of the trial judge.
So ordered.