269 F. 710 | D.C. Cir. | 1921
This is an appeal from a decree dismissing a bill in equity filed by appellant in the Supreme Court of the District of Columbia to enforce specific performance of an alleged oral contract for the purchase of real estate. The terms of the contract, as .set out in the bill, are as follows:
*711 “During the month of September, 1908, Charlotte T. Dailey, since deceased, a sister of the plaintiff, and a woman of considerable means, entered into a verbal agreement with the plaintiff whereby it was agreed between them that the said Charlotte T. Dailey should purchase for the sum of $13,000, upon the terms hereinafter stated, lot 41, in William It. Kellogg’s subdivision of part of block 6, Washington Heights, in the county of Washington, District of Columbia, with the improvements thereon, also known as premises No. 1800 Belmont Hoad, Northwest, in said city, and take the title thereto in her own name; that on account of the purchase price she should make the required initial payment of $500, and should receive a conveyance of the equity In the property subject to an existing first deed of trust of $8,000, and that she should execute to the grantor her note for $4,500, being the deferred purchase price, and secure it by a second deed of trust upon said property; that she should pay the interest upon the $8,000 note secured by said first deed of trust, as such interest should mature, and pay taxes ux>on said property until such time as by the further terms of said agreement, presently set out, the plaintiff should become entitled to a conveyance of the title to said property; and by the further terms of said contract it was agreed that the plaintiff should occupy said premises without liability for rent therefor, and that he should discharge said $4,500 second trust to be placed on said property by the said Charlotte T. Dailey, by monthly payments of $50 each, and should pay all interest accruing upon said second trust, and that he should also keep the said premises in repair; and that when the said second trust should be entirely discharged by the plaintiff in the manner herein set out, the said Charlotte T. Dailey should convey to thd plaintiff the equity in said premises, without the payment of any price or charge to be paid by him, but subject only, to the said first trust, and which first trust should then be assumed by the plaintiff.”
“In some jurisdictions it is held that the acts relied on as part performance are sufficient to take the ease out of the statute Of frauds, if they are unequivocally and in their own nature referable to some such agreement as that alleged. Many courts declare a stricter rule, however, holding that the party seeking aid must show by clear and satisfactory proof the existence of the contract as laid in his pleading, and that the acts of part performance must.be of this identical contract. It is not enough, say these courts, that the acts of. part performance evidence some indefinite agreement. They must be unequivocal and satisfactory evidence of the particular agreement pleaded and proved.” Hammon on Contracts, 615.
“Specific performance in such a case will not he decreed, unless the terms of the contract are clearly proved or admitted, and a sufficient part performance is made out to show that fraud and injustice would be done if the contract was held to be inoperative; and all the authorities agree that the acts of part performance must be such as are referable to the contract as alleged, and consistent with it.”
A careful review of the evidence fails to disclose' satisfactory proof of the agreement set out in the bill, or conduct by plaintiff referable to such an agreement; hence there is nothing upon which to base a decree for specific performance.
The decree is affirmed, with costs.
Affirmed.