Ross v. Allen

45 Kan. 231 | Kan. | 1891

The opinion of the court was delivered by

JohNSTON, J.:

The defense made against a specific performance is, that the memorandum or evidence of the contract of sale is insufficient within the statute of frauds. Under the statute no action can be brought to charge a party upon a contract for the sale of land unless the agreement upon which the action is brought, or some note or memorandum thereof, shall be in writing and signed by the party sought to be charged, or by his or her agent lawfully authorized. (Gen. Stat. of 1889, ¶ 3166.) The only memorandum of agreement set up in the petition as a basis for plaintiff’s action is the following:

“Leavenworth, March 19,1887.

“Received one hundred dollars of Mrs. D. Byington, account of Chas. J. Ross, to apply on payment of eight thousand dollars for property number 617 and 619 Delaware street, block 74, city proper; two thousand to be paid when abstract and title is furnished; two thousand in ninety days, and balance two years, with interest at 8 per cent, abstract to be furnished within thirty days. J. M. AlleN, Agent.”

Ross contends that this receipt or memorandum is defective in many respects, and wholly insufficient as a basis for the action: (1) It is not signed by the party sought to be charged, nor by any other person lawfully authorized for him. (2) No vendor is named in the receipt relied on. While signed by J. M. Allen, agent, yet the identity of the person for whom Allen was acting cannot be ascertained from the memorandum. (3) The writing does not describe Ross as a vendee or purchaser. (4) The memorandum does not upon its face import an agreement or contract for the sale of any property. It is a mere receipt for money and a memorandum of another payment to be made by installments, upon some property mentioned therein. (5) The writing does not describe lots 23 and 24, in block 74, in Leavenworth,«nor any other real estate, but only refers to street numbers in some city not named. (6) It does not definitely appear from the writing when, where or how the installments were to be paid, nor what installments should bear interest, nor what was the entire purchase-price, and there is no mention of any promissory note or mortgage, both of which the court required the defendant below to give.

Under the decisions of this court, we think the memorandum relied on is clearly insufficient. It does not contain the essential elements of a contract which can be specifically enforced. To be sufficient, the memorandum or writing should designate the parties to the contract, give a sufficiently clear description of the property so that it can be identified; the price to be paid or other consideration to be given, together with the terms and condition, should be stated; and the party to be charged, or his agent, must have signed the memorandum or writing. “While the form of the memorandum is not material, it must state the contract with reasonable certainly, so that the substance can be made to appear and be understood from the writing itself, or by direct reference to some extrinsic instrument or writing, without having recourse to parol proof.” (Reid v. Kenworthy, 25 Kas. 701.) The writing is obviously vague and indefinite, both with respect to the parties and the character and description of the property sold. Who wps the vendor? For whom was J. M. Allen acting? Was he the agent of Byington, Ross, or some unnamed person? Would not anyone infer, looking at the memorandum alone, that Byington and Ross were the parties to the transaction, and that Allen was the agent of the latter? It is conceded, however, that Allen was not the agent of Ross; and if the writing had been signed by Ross, probably the agency of Allen might have been shown by parol testimony, although the principal’s name was not disclosed by any writing. While both parties need not sign the writing or writings, they must in some way show who are the parties to the contract. “The contract necessarily embraces two parties, each contracting with reference to the real estate — either of whom may be charged upon the contract, if the contract or some note or memorandum thereof is reduced to writing and signed by such party; but neither of whom can be charged, unless the contract or some note or memorandum thereof is reduced to writing and signed by the party to be charged. The contract, note or memorandum must in all cases be in writing; it must in all cases be ’signed by one of the parties, and must in all cases be signed by the party who is eventually to be charged upon it.” (Becker v. Mason, 30 Kas. 701; Grafton v. Cummings, 99 U. S. 100.) The memorandum is not signed by Ross, nor by any one for him, and the omission of this essential is of itself sufficient to defeat the maintenance of the action.

Then, again, the property is not described with sufficient certainty. It is true that an absolutely accurate description of the property is not required, but the property should be so explicitly described that it will be susceptible of identification by reference to other writings and facts which may be shown to the court. If the designation is so definite that the description given in the memorandum can, with the aid of extrinsic evidence, be applied to the exact property intended to be sold, it is enough. (Hollis v. Burgess, 37 Kas. 494.) In this case, however, the memorandum does not show that the property is located in any state, county, or city. The memorandum itself is dated at Leavenworth, and the property is described as being on Delaware street of some “city proper.” If the name of the owner or vendor had been given, it would have aided in the identification of the property; but her name nowhere appears in the writing.

Specific perform-forcea'0*en_ Then, again, there is no certainty upon the face of the writing whether the property sold was real or personal. Only street numbers are mentioned, and it now appears that those are not the ones by which the real estate in question is de-1 scribed. The property is not described as lands, lots, or real estate, and the street numbers may be attached to buildings which may or may not be a part of the real estate. The writing is vague and uncertain with respect to the terms and conditions of the contract, and nothing appears therein with reference to the promissory note and mortgage required, or to any other security for the deferred payments. Although no other writing than the one set out was .mentioned in the pleadings, the plaintiff below introduced in evidence and relies to some extent on certain correspondence between the parties. The writings relied on should have been set out in the pleadings, but we have overlooked that objection, and find that the correspondence does not recognize or supplement the memorandum pleaded, so as to make complete evidence of a contract within the statute. The evidence of a contract may be gathered from several writings or letters, but their relation to each other should appear upon their faces, and cannot' be established by parol evidence. While the memorandum may consist of several parts, all of them must be either physically connected or by direct reference made in one to the other make up the entire agreement of the parties. The letters relied on to supply the essential features omitted from the. memorandum should distinctly recognize and adopt the contract. Quite a number of letters were written to Ross, but only two were written by him. One was the letter of May 4, 1887, which we think contains no recognition or affirmance of the contract which supplements or aids the memorandum of March 19, 1887; and the letter written by him on July 16, 1887, is an explicit disavowal of any contract relation and that he has any claim or interest in the property in controversy. There was no part performance by Ross to take the case out of the statute of frauds, and taking the memorandum and writings together, they are insufficient to sat- . „ . . „ , _T lsv the requirements oí the statute. JNo application has been made to reform the contract so that it shall contain all the terms and conditions of sale, and as it now stands, the written evidence of the contract is indefinite, uncertain, and insufficient to sustain an action for specific performance. (Reid v. Kenworthy, 25 Kas. 701; Becker v. Mason, 30 id. 701; Fry v. Platt, 32 id. 62; Brundige v. Blair, 43 id. 364; Sherburne v. Shaw, 1 N. H. 157; Bailey v. Ogden, 3 Johns. 399; Shipman v. Campbell, 44 N. W. Rep. 171; Nichols v. Johnson, 10 Conn. 192; Fry, Spec. Per., 245.)

The judgment of the district court will be reversed, and the cause remanded with instructions to enter judgment upon the special findings in favor of the plaintiff in error.

All the Justices concurring.