Doherty v. Hill

144 Mass. 465 | Mass. | 1887

Holmes, J.

The memorandum would have satisfied the statute of frauds, if the evidence had shown that there was only one “estate on Congress Street owned by Sarah A. Hill,” in Stoneham, where the memorandum is dated. Hurley v. Brown, 98 Mass. 545. Scanlan v. Geddes, 112 Mass. 15. Mead v. Parker, 115 Mass. 413. But the evidence shows that there were more than one. The plaintiff argues that this is an ambiguity introduced by paroi, and that therefore it may be removed by paroi. 98 Mass. 548. But the statement seems to us misleading. The words show on their face that they may be applicable to one estate only, or to more than one. If, on the existing facts, they apply only to one, then the document identifies the land; if not, it fails to do so. In every case, the words used must be translated into things and facts by paroi evidence. But¿ if, when so translated, they do not “ identify the estate intended, as the only one which would satisfy the description,” they do not satisfy the statute. See Slater v. Smith, 117 Mass. 96, 98; Potter v. Duffield, L. R. 18 Eq. 4, 7.

The letter from the defendant to her agent did identify the estate, we will assume, as the only one owned by her which had a house upon it. But, of course, this letter was not of itself a sufficient memorandum. It has been held that an offer in writr ing, afterwards accepted orally, satisfies the statute. Sanborn v. Flagler, 9 Allen, 474. Browne, St. of Frauds, (4th ed.) § 345 a. But this letter was only an authority to offer. It does not appear to have been exhibited to the plaintiff, as in Hastings v. Weber, 142 Mass. 232, and plainly was not intended to be. We express no opinion whether it would have been sufficient, if it had been shown and its terms had been accepted.

Again, the letter cannot be used to help out the memorandum, on the ground that the latter impliedly incorporates it. The memorandum, it is true, purports to be signed by an agent, and therefore may be said to refer by implication to some previous authority. But this implied reference is at most rather an implied assertion that authority exists, (which may be oral,) than a reference to documents containing the authority. Jefts v. York, 10 Cush. 392, 395. Boston & Albany Railroad v. Richardson, 135 Mass. 473, 475. It would hardly be argued as a defence to an action of deceit, against a person who had assumed to act as agent without authority, that the memorandum signed by him impliedly referred to and incorporated the written' communications from his alleged principal, and that therefore the plaintiff must be taken to have known them, and that they did not confer the authority assumed. In this case, the agent had authority by telegram before he received the letter; the argument, therefore, would have to go the length of saying that all documents of authority were tacitly incorporated.

In Hurley v. Brown, ubi supra, it was held that a memorandum of an agreement to sell “ a ” house on a certain street should be presumed to mean a house belonging at the time to the contractor. It may be asked whether there is not at least as strong a presumption that a memorandum signed by an agent refers to property which he is authorized to sell. But unless the document of authority is specifically incorporated, then the memorandum is only of a sale of a house which the agent is authorized in some way to sell, and, so far as the memorandum goes, his authority may as well be oral as written. The difference may be one of degree, but the distinction is none the less plain .between an identification by extrinsic proof of the usually manifest, external, and continuing fact that the party owned but one house on a certain street, and that by similar proof of possibly oral communications between principal and agent, which is precisely the kind of identification the statute seeks to avoid. See Whelan v. Sullivan, 102 Mass. 204, 206; Rossiter v. Miller, 3 App. Cas. 1124, 1141; Potter v. Duffield, ubi supra; Jarrett v. Hunter, 34 Ch. D. 182.

The same considerations would apply to an attempt to help out the memorandum by evidence that the estate intended was the only one which the plaintiff knew of as belonging to the defendant.

The remaining exceptions become immaterial. The draft of a deed of the premises was admissible, in connection with proof that it was offered to the defendant for execution, to show a breach, but not to aid the memorandum. The deed was not referred to by the previously executed memorandum, nor were its contents governed by the signature of the latter.

Evidence that a real estate agent had not sold the land for $1200 was not evidence of its value.

Exceptions sustained.