159 Mass. 451 | Mass. | 1893
This is an action upon a contract for the sale of land. The judge has found for the plaintiff, and the only question is whether the memorandum was sufficient to satisfy the Statute of Frauds. Pub. Sts. c. 78, § 1, cl. 4. The memorandum, was as follows :
“ Boston, April 6, 1889. Received of Albert H. Hayes one hundred dollars on account of sale of estate number 379 Columbus Avenue, for the sum of $14,140, subject to a mortgage of 8,000 dollars on 44- per cent interest, and I agree to pay the 140 dollars as commission to James C. Tucker. Rents and insurance and interest to be adjusted to date. Title to be passed within ten days from date. C. E. Jackson.”
On the face of it this discloses no defect. But as the defendant and the plaintiff agreed in their testimony that the assumption of the mortgage of $8,000 was part of the consider
Of course it may be said that, in a bilateral contract like the present, the contemporaneous payment of the price is a condition of the promise, and therefore that the promise cannot be set forth truly unless the consideration is stated. But the language of the section is general, and should be read as no doubt it was meant. The only effect is that a promise set forth as absolute may be subject to an implied condition of performance on the other side. When such an implied condition exists it will be construed into the writing, and knowledge of the law gives notice of its possible existence. In some cases it has been held unnecessary to state the consideration, even when there is no provision like our § 2, although the consideration was execu
The only case at all opposed to our conclusion, so far as we know, is Grace v. Denison, 114 Mass. 16. That was a bill for specific performance; not of the original agreement, but of the written document set forth, which document showed that a mortgage was to be given by the purchaser, but did not state what part of the purchase money was to remain secured in that way. Specific performance was refused, and in the judgment a brief reference was made to the Statute of Frauds, citing Browne on St. Frauds, §§ 376, 381; Fry on Spec. Perf. §§ 221, 222, and note 7. These sections state in general terms that the memorandum must contain the price, and do not apply in this State, so that the inference is that § 2 of our statute was overlooked by the court. It was not mentioned in the briefs of counsel, or in the judgment. The decision cannot overrule the statute, and is no authority for a distinction under it. So far as it went on the doctrines of specific performance only, as would seem from the reference to Fry on Spec. Perf. § 222, note 7, stating Baker v. Glass, 6 Munf. 212, and to Boston & Maine Railroad v. Babcock, 3 Cush. 228, 232, and from the fact that Mr. Justice Wells, who delivered the opinion of the court in Grace v. Denison, also wrote the decision in Wetherbee v. Potter, 99 Mass. 354, 362, it has no bearing on the case at bar. Exceptions overruled.
I do not assent to the opinion of the court. The agreement or receipt signed by the defendant purports to set out the price, and apparently contains all the terms of the contract. It is argued that one term of the contract was that “ the tenant should be allowed to remain,” but the exceptions recite that there was “ conflicting evidence upon the point as to whether or not it was a part of the oral agreement that the tenant should be allowed to remain.” The court, trying the case without a jury, has found for the plaintiff, and has refused to rule ac
Atwood v. Cobb, 16 Pick. 227, was assumpsit by the vendee against the vendor on an agreement to convey land signed by both parties. The agreement was “ in consideration of the same sum which I paid' him [the vendee] for the same, with interest from the time I purchased the same till I paid for it (supposed about six months), with the expense of the deed, also the taxes for one year.” One defence was the statute of frauds. On this the court say: “ The principal uncertainty is as to the price to be paid. ... As the amount paid for an estate is usm ally determined by the consideration expressed in the deed of conveyance, or by some receipt or memorandum, it is impossible to pronounce this contract void under the. statute, because it does not express with sufficient certainty the price to be paid for the estate.”
Morton v. Dean, 13 Met. 385, was an action of assumpsit by the vendor of land against the vendee; the memorandum was signed by an auctioneer who was the agent of both parties; and in the opinion in that case it was said : “ But the memorandum of sale must refer to the conditions of sale, or the case will be within the statute. Where the connection between the memorandum and the conditions is to be proved entirely by paroi evidence, it is within the mischief intended to be prevented by the statute. The terms of the agreement, which are material, must be stated in writing.”
In Waterman v. Meigs, 4 Cush. 497, an action to recover the price of merchandise sold, the court say: “ The statute [of frauds] requires ‘ some note or memorandum in writing of the bargain.’ This letter alludes to plank bought, and to be delivered; but it does not state any one of the elements of a contract, price, quantity, quality, time, place, or anything to inform us what the nature of the contract was, and is clearly not a sufficient memorandum.” Coddington v. Goddard, 16 Gray, 436, was an action of contract to recover damages for not delivering 200,000 pounds of copper, alleged to have been sold by the defendant to the plaintiff. The same doctrine was announced.
Riley v. Farnsworth, 116 Mass. 223, was an action of contract
Ashcroft v. Butterworth, 136 Mass. 511, was an action of contract for breach of a written agreement to sell goods. The court say: “ In this case it does not appear that the price is made certain by any writing signed by the defendants. The present price is indeed 8|d. per pound; but the prices generally are to be the same as those paid by the Ashcroft Manufacturing Company, and it does not appear that those prices are contained in any writing signed-by the defendants, to which this offer of the defendants refers. The statute of frauds has been pleaded. We think the ruling cannot be supported.” See also Elliot v. Barrett, 144 Mass. 256; Fogg v. Price, 145 Mass. 513.
In Freeland v. Ritz, 154 Mass. 257, the court say: “ It is a well settled rule of law, that, while the memorandum must express the essential elements of the contract with reasonable certainty, these may be gathered either from the terms of the memorandum itself, or from some other paper or papers therein referred to.” The agreement concerned an interest in land.
In White v. Bigelow, 154 Mass. 593, the court say: “ To satisfy the statute [of frauds], the agreement or memorandum must, either by its own terms or by reference to some other writing, express with reasonable certainty all the conditions and essential elements of the bargain.” The agreement was alleged to have been made upon consideration of marriage. See Callanan v. Chapin, 158 Mass. 113.
I do not know whether the majority of the court intend to make a distinction between contracts of sale described in the first section of Pub. Sts. c. 78, and contracts of sale described in the fifth section. While some of the cases cited above are suits against the vendee and some suits against the vendor, it seems to me that this court has always held, in both classes of cases, that, in a con
Some of the decisions in other States whose statutes on this subject are similar to ours are-cited below. O’Donnell v. Leeman, 43 Maine, 158. Williams v. Robinson, 73 Maine, 186. In the last case the court say : “ But while, as before seen, the memorandum need not necessarily mention the consideration, that being proved by paroi testimony, nevertheless, in order that the court may ascertain the rights of the parties from the writing itself, without resort to oral testimony (Riley v. Farnsworth, 116 Mass. 223, 225, 226), to satisfy the statute, the memorandum must contain within itself, or by some reference to other written evidence, the names of the vendor and vendee and all the essential terms and conditions of the contract, expressed with such reasonable certainty as may be understood from the memorandum and other written evidence referred to (if any), without any aid from paroi testimony.” Gault v. Stormont, 51 Mich. 636. Norton v. Gale, 95 Ill. 533. Farwell v. Lowther, 18 Ill. 252. Nibert v. Baghurst, 2 Dick. 201. Schenck v. Spring Lake Beach Improvement Co. 2 Dick. 44. See Williams v. Morris, 95 U. S. 444; Reed on St. Frauds, §§ 398 et seq.; Browne on St. Frauds, §§ 376-385.
In Camp v. Moreman, 84 Ky. 635, an opinion is expressed which accords with the opinion of a majority of the court in the present case, although perhaps it was not necessary to the decision. See Freeland v. Ritz, 154 Mass. 257. Thornburg v. Masten, 88 N. C. 293, and Miller v. Irvine, 1 Dev. & Bat. 103, were decided under a statute of frauds copied from the English statute of 29 Car. II. c. 3, which contained no provision concerning consideration similar to ours. Ellis v. Bray, 79 Mo. 227, appears to have been decided on the ground that, “ when a written memorandum of a contract does not purport to be a complete expression of the entire contract, or a part of it only is reduced to writing, the matter thus omitted may be supplied by paroi evidence,” — a doctrine to which I think this court is not committed.
When the whole contract or promise of the defendant is to do a certain thing, and this is an absolute promise, resting upon a consideration which has been executed, there is some reason in saying that the memorandum signed by the defendant need not contain the consideration or inducement of the contract or promise. But in a contract executory on both sides, where the promises are mutual, and each is the consideration of the other, the promises are conditional, and one party agrees to perform his part of the contract only on condition that the other will perform his part, and it cannot be known what the promise of the one is without knowing the express or implied promise of the other. A promise to convey land because the promisee has actually received $1,000 is not the same as a promise to convey land if the promisor will pay $1,000 on receiving the conveyance, and a promise to convey land for $1,000 to be paid on the delivery of the deed is not the same as a promise to convey land for $10,000 to be paid on the delivery of the deed. The conditions on which the vendor agrees to convey are often many and complicated, and involve the assumption of mortgages and the performance of other acts. If a mere acknowledgment in writing by the vendor that he has agreed to convey specific land to the vendee on terms which are not expressed is sufficient to satisfy the statute of frauds, then it is open to the vendee to prove by oral testimony the price to be paid, and all the other terms of the contract to be performed by him, and the statute will no longer prevent frauds and perjuries. If it is a condition of the promise of the vendor that it is not to be performed unless at the time of the performance the vendee pays money and gives or assumes mortgages, the condition qualifies the promise and is a part of it, and the writing should contain all that is essential to show what the promise or contract on the part of the vendor in fact was. The decision of the court seems to me in great part to nullify the statute. I have not considered whether the judgment of the court may not be sustained on some other ground than that stated in the opinion.
Mr. Justice Knowlton concurs in this opinion.
The rulings requested were as follows: “ 1. Upon all the evidence in this case, the plaintiff is not entitled to maintain this action. 2. The memorandum relied upon in this case is not, upon all the evidence in this case, a sufficient memorandum to satisfy the requirements of the statute of frauds.
3. Upon the pleadings and all the evidence in the case, there is no sufficient memorandum to satisfy the requirements of the statute of frauds, and entitle the plaintiff to maintain this action,”