130 Va. 408 | Va. | 1921
Lead Opinion
delivered the opinion of the court.
The errors assigned are (1) the judgment of the trial court sustaining the demurrer, and (2). its refusal to permit the amendment. The plaintiff filed no bill or certificate of exception to the ruling of the trial court refusing to permit the amendment, but embodied the amendment and the ruling of the trial court'thereon and his exception thereto in the order of the court. This was an irregular mode of procedure, not to be commended, but if it be conceded that it was sufficient for the purpose, the amendment did not cure all the defects of the original notice.
The original notice was signed by the plaintiff and, so far a,s it need be recited, was as follows:
“To J. C. LaPrade:
“The sum of nine thousand four hundred and fifteen dollars ($9,415.00) is due me, the undersigned, by you, with interest thereon from the 17th day of December, 1919, until paid, the same being for compensation in damages for*412 the breach by you, without legal justification, of the following contract made and signed by you, to-wit:
“ ‘Dec. 1, 1919.
“ ‘Received of W. J. Matthews $10.00 for option on one tract of land in Prince Edward county for 20 days from date, same containing 466 acres more or less.
“ ‘Payments as follows: •
“ ‘1/3 cash, balance 1-2 & 3 & 4 years; purchase price to be $6,000.00.
“ ‘(Sgd.) J. C. LA PRADE;
“ ‘Witness:
“ ‘H. A. LESTER.5
“Which said damages are evidenced by the following account hereby incorporated into this notice as an integral part thereof, to-wit: ,
“To difference in price at which you agreed to sell me said property and the market price, $9,415.00.55
To this notice the defendant demurred and assigned the following grounds of demurrer:
“(1) No facts are stated which would charge the defendant with a breach of contract. The charge that there was a breach of contract is a mere conclusion of law.
“(2) The notice of motion does not aver that the plaintiff performed the alleged contract as he must do in order to bind the defendant to any such alleged contract.
“(3) The alleged contract sued on is void because it is unilateral. It attempts to bind defendant, but not plaintiff, and said alleged contract is not such a unilateral contract as in law will bind defendant.
“(4) The alleged contract is void under the Statute of Frauds in that no such contract as is valid under the Stat*413 ute of Frauds for the sale of real estate is alleged in said notice of motion.
“(5) The said notice of motion alleges a claim for damages which is unlawful and neither of which alleged damages, nor any part thereof, is recoverable upon said alleged contract.”
“In a proceeding of this kind the notice takes the place of the writ and the declaration, and while the notice is viewed with great indulgence, it must set out matter sufficient to maintain the action, and whether or not it does so is tested by a demurrer to the notice. What is lacking in allegation cannot be supplied by evidence. There must be both allegation and proof to entitle a plaintiff to a judgment, and the allegation must precede the proof. * * * If this were the only error committed on the trial, we would hardly reverse the judgment of the trial court, but we do not recede from the proposition that, no matter what*414 form of procedure is adopted, every litigant has the right to be informed in plain and unmistakable language of the ground of complaint or defense of his adversary. The procedure by notice under section 6046 of the Code is looked upon with great indulgence not because the notice is supposed to be the act of a' layman ignorant of forms of procedure, for that would be contrary to almost universal experience, but because the courts are loath to sacrifice substance to form, and desire, so far as possible, to avoid that result. The adoption of this method of procedure, however, cannot dispense with the allegation of the substance of a good ground of action or defense. Anything less than this would endanger the substantial rights of litigants.” Mankin v. Aldridge, 127 Va. 761, 105 S. E. 459.
The plaintiff, however, tendered an amendment of his notice which showed an acceptance of the option, but only vaguely tended to aid the description of the land and indirectly charged fraud-on the part of the defendant in refusing to comply with his contract. This amendment was refused by the trial court, but upon what ground does not appear from the record. It appears, however, from the argument of counsel for the defendant in error in this court that they deny liability of the defendant in error upon the ground (1) that the receipt filed with the notice is not a sufficient memorandum under the statute of frauds because the land is not adequately described therein, and the description given cannot be aided by parol evidence; and (2) that under the general rule prevailing in this State in cases of this kind the measure of the plaintiff’s damages is the contract price of the land and not the difference between the contract price and the market value at the time of the breach, and that the plaintiff’s notice, as amended, contains no allegations of fact which take his case out of the general rule.
It may be conceded that a majority of the States which have passed upon the question hold that a contract which describes the land merely by its acreage and general location is not sufficient to satisfy the statute of frauds, and that the case at bar comes within that category. But it is also -generally held that if the description is by ownership,
In view of the conflict of authority elsewhere, we feel at liberty to adopt our own course. The chief question is whether parol evidence is admissible to identify the land by proof of ownership, although ownership is not expressly stated in the written memorandum. Where the contract calls for “one tract of land in Prince Edward county * * containing 466 acres, more or less” is it permissible, in aid of the writing, to show by parol that the vendor owned only one tract of land of that description? We think it is.
In Plant v. Bourne (1897), 2 Ch. Div. 281, 66 L. J. Ch. (N. S.) 643, the description given was “twenty-four acres of land, freehold, and all appurtenances thereto at Totmonslow, in the parish of Draycott, in the county of Stafford, and all the mines and minerals thereto appertaining. Possession to be had on the 25th of March next. The vendor guaranteeing possession accordingly.”
The objection to this agreement was that it did not specify in terms what twenty-four acres of freehold land at Totmonslow the agreement referred to, and that the property to be identified must be more accurately .ascertained in language than was done by the memorandum.
In stating the case, it was said: “At the hearing the plaintiff proposed to adduce evidence to prove that he was the owner of certain freehold land situate at Totmonslow, in the parish of Draycott, in the county of Stafford, on the south side of the highway from Totmonslow to Tean, and containing 24A. 1 R. 26 P. more or less; that at the date of
Lindley, L. J., after referring to the cases of Ogilvie v. Foljambe, 3 Mer. 53, and Shardlow v. Cotterell, 20 Ch. D. 90, in which similar memoranda had been held sufficient, said: “Now it seems to me that we should be simply splitting hairs, and introducing a distinction without a difference, if we adopted the view which Mr. Astbury has pressed upon us, that there is a substantial distinction between this and the two cases to which I have referred. Of course, I see that there are differences; but the question is what they are worth. Now is this, or is it not, when looked at, a sufficient description to let in this parol evidence to show what the agreement referred to. That there was an agreement is plain enough. What is it that the agreement refers to? The answer to that is, it was the twenty-four acres of freehold land which they were talking about. Evidence to show that is admissible; and if that is once admitted, there is an end of the case.”
Chitty, L. J., in the same case, also said: “Now there is no mystery about the statute of frauds. All that it requires is a memorandum in writing of the contract where the subject matter is such as we are dealing with. That memorandum must be construed in a reasonable way, as well as any other memorandum which is in writing to which the statute of frauds does not apply. Now what have we here? We have the vendor, Plant, and the purchaser, Bourne, sufficiently named and described, and we have Plant agreeing to sell,- at the price which is mentioned, ‘twenty-four acres of land, freehold, and all appurtenances thereto, at Totmonslow, in the parish of Draycott,
Concurrence Opinion
also delivered a concurring opinion.
In Hurley v. Brown (1868), 98 Mass. 545, 96 Am. Dec. 617, the description of the property was, “a house and lot of land situated on Amity street, Lynn, Mass.” This memorandum was held to be sufficient under the statute of frauds. Foster, J., delivering the opinion of the court, said: “No more particular description is necessary under the statute of frauds, in a contract for the sale of real estate, than in one relating to personal property. In each, to constitute a bargain and sale, or a contract which will be specifically enforced in equity, the subject matter thereof must be identified.
“In a deed, the words of description are, of course, intended to relate to an estate owned by the grantor. And, in our opinion, this is also the presumption in construing ¿ contract for a future conveyance. If the party who enters into the agreement in fact owns a parcel answering to the description, and only one such, that must be regarded as the one to which the description refers.
“With the aid of this presumption, the words ‘a house and lot’ on a street where the'party who uses the language owns only one estate, are as definite and precise as the words ‘my house and lot’ would be; a description the suf
“In the present case the writing does not show that there is more than one house and lot on Amity street. This fact was disclosed by the oral evidence at the trial; and the familar rule would seem to apply, that parol evidence is admissible to explain and remove a latent ambiguity. If there had been only one house and lot on the street, there would have been no indefiniteness in the description. The supposed uncertainty having been created by parol, evidence of the same character may be resorted to for its removal. But without relying much upon this consideration, we regard the fair construction of the words used to be, that they relate to a house and lot owned, at the time the memorandum was signed, by the parties who subscribed it. Thus interpreted, they are sufficiently certain, and the oral evidence is needed only to apply the description. This must be done by extrinsic evidence in every contract or conveyance, however minutely the boundaries of the estate may be set forth. The maxim, Id cerium est quod cerium reddi potest, is the established rule of construction in suits for specific performance. The contract in the present case seems to us fairly within its application.”
In Meade v. Parker, 115 Mass. 413, 15 Am. Rep. 110, the memorandum was dated at Boston, and the description given of the property was, “a house and lot on Church street.” It was held, chiefly on the authority of Hurley v. Brown, supra,
In Holley’s Ex’r v. Curry, 58 W. Va. 70, 51 S. E. 135, 112 Am. St. Rep. 944, it is said:
“It may be laid down generally that great liberality is allowed in the, matter of description. In description, that is certain which can be made certain. A deed will not be declared void for uncertainty if it is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evidence, what property it is intended to convey. ' The office of description in a deed or other writing is not to identify the land, but to furnish means of identification.” See also Crotty v. Effler, 60 W. Va. 258, 54 S. E. 345, 9 Ann. Cas. 770; Lente v. Clarke, 22 Fla. 515, 1 So. 149; Burns v. Witten, 56 Ore. 568, 108 Pac. 129; Minge v. Green, 176 Ala. 343, 58 So. 381; Ranck v. Wickwire, 255 Mo. 42, 164 S. W. 460; Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979, 7 L. R. A. 87; Bogard v. Barham, 52 Ore. 121, 96 Pac. 673, 132 Am. St. Rep. 676.
We are of opinion that it was permissible for the plaintiff to allege, and to prove by parol, that the defendant owned a tract of land answering the description given in the written memorandum, and only one such tract, and that it was the tract upon which the defendant gave the option in the declaration mentioned.
In Stuart v. Pennis, 100 Va. 612, 42 S. E. 667, decided in 1902, a vendor of real estate was- sued in assumpsit for breach of contract to convey, and it was there said: “In Thompson v. Guthrie, 9 Leigh (36 Va.) 101, following Stout v. Jackson, 2 Rand. (23 Va.) 132; Threlkeld v. Fitzhugh, 2 Leigh (29 Va.) 451; Mills v. Bell, 3 Call. (7 Va.) 320, and the leading English case of Flureau v. Thornhill, 2 W. Blacks. 1,078, it is shown that the rule is as ap
“It is true, as pointed out in the argument of the case at bar, the doctrine announced in Flureau v. Thornhill and Thompson v. Guthrie has not been uniformly followed in the Supreme Court of the United States and several of the State courts, but it has been recognized as a settled doctrine in a number of decisions by this court: viz., Wilson v. Spencer, 11 Leigh (38 Va.) 271; Newbrough v. Walker, 8 Gratt. (49 Va.) 16; Chick v. Green, 77 Va. 835; Sheffey v. Gardiner, 79 Va. 313; Abernathy v. Phillips, 82 Va. 769, 1 S. E. 113; Conrad v. Effinger, 87 Va. 59, and Roller v. Effinger, 88 Va. 641, 14 S. E. 337.”
In Click v. Green, 77 Va. 835, the reason for the rule is stated as follows: “The reason why the increased value cannot be estimated in the damages incident to the breach of the covenant is that the covenant, which runs with the land, cannot be construed to extend to anything other than the land itself, which is the subject matter of the covenant. A different rule, however hardly this one may in some cases seem to operate to the prejudice of the warrantee, would be fraught with most disastrous consequences. In the absence of fraud, and none is pretended in this case, it would be a ruinous rule to say that a vendor making a sale in good faith — it may be of land of but little value, but which, from the discovery afterwards of rich mineral- deposits, or from other cause, should become suddenly of immense value — should be held by his vendee, on eviction, liable for
In 1 Minor’s Real Property, sec. 1132, p. 1231, it is said: “Because of the danger of imposing a grievous burden upon the grantor, in case he should unwittingly convey a defective title, the courts of England and of Virginia also have persistently declined to measure the damages, upon a breach of covenant of title, by the value of the land lost as at the time of eviction, but have held that the proper measure of recovery is the value of the land at the time of the warranty; that is, at the time of the conveyance; and the best standard of such value is in general the price agreed upon at the time of the sale or so much thereof as has been paid (with interest from the date of the eviction and the legal and taxable costs expended in the action in which eviction occurs). But nominal damages only will be recoverable if no actual loss has been sustained by reason of the breach of the covenant.”
In the face of these authorities, we do not feel at liberty to change a rule so firmly established by the decisions of this court. It has become, in a sense, a rule of property. But the authorities cited concede that there are exceptions to the rule, and the plaintiff claims that he is within such exceptions. This claim, the defendant denies. This controversy was not developed in the trial court, because the proposed amendment of the plaintiff’s declaration was not
Affirmed.