Fisher v. Kuhn

Apr 15, 1877

Versions:54 Miss. 480

Simrall, C. J.,

delivered the opinion of the court.

The complainant alleges that on July 10, 1874, Joseph Kuhn, the defendant, was, or claimed to be, seised in fee of a parcel of land in the town of Biloxi, the boundaries of which *482are given, being the same property occupied and leased by A. J. Ward for many years. Thе last lease was made by the defendant March 1,1869. The leases are made exhibits to show the location and size of the lot. On July 10, 1874, the complainant bought this lot of land from Kuhn for $2,0Q0, with six per cent interest until the final payment, which was to be madé when demanded. When final payment wаs made, a deed with general covenants of warranty was to be made. Payment was completed oh July 10,1876 ,• at which time the defendant gave a detailed statement of the debt with interest and credits, and final receipt, which paper is also made an exhibit. The complainant further alleges that, when the sale was made, “ it was merely a parol contract for the sale of real estate ; ” but that the sale is not void under the Statute of Frauds, because he fully performed his part of the contract of sale ; that with the consent of the defendant he went into possession, has remained in possession, and has' made valuable and lasting improvements ; that, another reason why the contract is legal and binding is, that on Aug. 10,1874, he paid to the defendant, on account of the purchase-money, 1500, for which the defendant gave a written receipt, in which he declared that this sum was on account of the price for the lot of ground formerly occupied by A. J. Ward, — meaning that the said Ward had formerly occupied said land under the leases before refеrred to ; which receipt is claimed to be a memorandum, or note in writing, signed by the defendant, sufficient to take the case out of the statute. He sets out also a second receipt, in which the defendant made a written memorandum that the $1,000 paid was in part pаyment on the lot of ground purchased of the defendant, which paper is also exhibited. In March, 1874, the complainant bought the unexpired lease of Ward, with the defendant’s knowledge and consent, for $500 ; the receipt for that payment is also exhibited. The property is and has been assessed to the complainant, who has paid the taxes.

The only question for our decision is whether the allеgations of the bill take the case out of the Statute of Frauds. It makes’certain averments, and sets forth certain written memo-randа, which, it is claimed, fulfil the requirements of the statute ; viz., that the promise or agreement, or a memorandum or *483note thereof, exists, which is а sufficient ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍compliance with the statute.

It has long been the settled doctrine of this court not to accept part performance, or any other thing, as an exception to take a case out of the operation of the statute. The complainant, in his. bill, by implication concedes that the parol sale, under which he took possession and paid the money, was nоt such a contract as a court of equity in this State would enforce ; he therefore sought by averment to show the contract оr agreement by certain written papers, which are charged to be sufficient to comply with the statute.

The “ promise ” or “ agrеement,” or the “ note ” or “ memorandum ” thereof, intended bjr the statute, is such written memorial as points out the subject-matter of the sale, and the terms. These written memoranda need not necessarily be embodied in one writing: there may be one or more, if they are сonnected by physical contact, by reference, or by necessary connection. Jelks v. Barrett, 52 Miss. 315, 322, 323. Whether the “promise” or “agreеment” is evidenced by one writing or several, such writing must be certain as to the terms of the sale and the subject-matter, either of itself, or by rеference to something else. Bowers v. Andrews, 52 Miss. 596. If the writing itself does not identify the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍subject of the sale, or refer to something dehors itself, by resorting to which certainty may be attained, it cannot be enforced. 1 Sug. Vend. 134 ; Bowers v. Andrews, ubi supra. A pleader cannot by averment give to a writing which he sets out a different meaning from what it imports; nor can he, if the writing discloses an uncertainty which parol evidence would not be admissible to explain, ground a right by alleging that the par-, ties to it intended a particular thing, if the words themselves do not disclose such intention.

The memoranda are set оut in the bill in full, and their sufficiency for the purpose for which they are pleaded must be judged of as they are therein disclosed. While it is not lеgitimate to refer on demurrer to the exhibits to help out or to impair the bill, in this case the writings are so fully set out in the bill, that for conveniеnce we will analyze the memoranda themselves. The general statement is to this effect: —

*484“Mr. Cakl Fishek,

“ To Joseph KuhN, Dr.

“ July 10, 1874. To amount due this day for property sold

him.$2,000 ”

The statement of interest and credits is'continued to July 10, 1876, with balance due ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of $589.41; beneath which is a receipt of payment in full, signed by Joseph Kuhn.

This pap@r shows a debt of $2,000 for property sold by Kuhn to Fisher, and that it has been paid for; but, whether real or personal property, and, if the former, whether town or rural property, or where situated, it fails to disclose. Plainly, it does not point out the subject of the sale; nor does it refer to any external matter by consulting which identity could be reached. Another writing is as follows : —

“Biloxi, Aug. 10, 1874.

“ Received of C. Fisher the sum of $500, being on account on the price of the lot of ground formerly occupiеd by A. J. Ward.

(Signed) “ Joseph Kuhn.”

This paper contains an acknowledgment by Kuhn that the money was received ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on account of the price of a lot of ground, and that,it was the lot formerly occupied by A. J. Ward. It is quite certain that Kuhn-had in his mind a certain lot, and so had Fisher; although Ward may have occupied several lots before the date of the receipt. But, as said in McGuire v. Stevens, 42 Miss. 724, 731, “ direct evidence of intention, as contradistinguished frоm evidence to show the intent expressed by the words or language of an instrument, is inadmissible.” The receipt does not point to a time, or State, county, town, or city, to which we must look for the lot formerly occupied by Ward. A lot at Pascagoula, Bay of St. Louis, or Pаss Christian, or in Harrison or Hancock County, would suit the words, if Ward had, at either of the places, formerly occupied a lot. In Holmes v. Evans, 48 Miss. 247, 250, a writing, much mоre specific, was held insufficient. It located the property “ on the corner of Main and Pearl Streets, city of Natchez, county of Adams, State of Miss.”

*485In none of tbe papers signed by Kuhn, the party sought to be charged, is any reference made to the prоperty leased to Ward, so as to connect ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the property described in the leases as the property sold. We concur with the Chancellor that the, case is within the Statute of Frauds. Decree affirmed.