*1 434, which Chinberg, 282 S. W. Layton v. 427, and 298 Mo. Cox, liability actionable of law general principle announce the speeu- mere grounded cannot be negligence a defendant pre inferences upon successive conjecture, or builded lation sumptions. judgment record opinion, that the follows It therefore must proceeding in this Appeals under review respondent Court of CC., concur. Ellison, Lindsay and so ordered. quashed, and it is adopted Seddon, C., PEE CUEIAM The foregoingopinion concur. judges of the court. All opinion Ferguson Mollie Mc Martha A. F. Anna Shy, R. L. (2d) 719. W. S. Corkle, Appellants, Lewis. 12 v. Levi One, 31, 1928. December Division *2 c§ George Longan F. appellant. Jones Jones for I). respondent. 8. Lamm for damages alleged
LINDSAY, breach, C. This suit for *3 purchase defendant, by for of a farm by of a contract the owned the plaintiffs’ At the case plaintiffs. the close of the court sustained plaintiffs evidence. In due course demurrer to the defendant’s City Appeals. appeal the Kansas Court of took their to sole, question controlling, The and indeed the considered the signed memorandum of Appeals Court of was whether the the con Frauds; upon the requirements tract of Statute of met the ruling Appeals the held that the of the trial Court of court question, but, cause; erroneous, judgment, reversed the and remanded deeming of its to in conflict with the decision St. decision Small, App. 249, Appeals, of in Mason v. or Court Louis to this court. dered the cause transferred acres, Morgan situated in The farm was one of father, County, plaintiffs by from their to the inheritance came constituting thе farm was at an Shy, T. C. deceased. land sold The farm, day October, the 6th sale, auction on on printed hand-bills described The sale advertised acres, miles farm as situated two one-half southwest one other contained of Otterville. Some details sale, according The will be later. terms of advertisement noticed auctioneer, testimony, at sale as re- were stated down, quiring or hundred dollars one dollars fifteen thousand payments thereafter, a the deferred to year thousand dollars one bid in the land at per bear cent interest. defendant five testimony was that no memorandum sale, per for acre. The $62.50 auctioneer; but, on October at of the sale made the time Shy, plaintiff 8th, days defendant, two Frank sale, after the plaintiffs the other who, according represented as testimony, to his himself, signed memorandum: well Shy to T. C. Frank Levi Lewis. “Contract to Farm of principal down when abstract is delivered $4000 Terms: $20,687.50 interest, a years per at five thousand or to run cent five if is sold paying $20,687.50 place date on more at each interest cash down at time of any part paid or all above stated sale. “Levi Lewis, Shy/'
“FbaNK 8th, his wife also On October the defеndant and executed their day date, Frank at $1500 for favor due one after note upon per per annum. had marked it: five cent interest This note payment farm, Shy’s.” “First T. C. Abstracts title to the defendant, land were at about the same time delivered to lawyers many him who re- these were to his made submitted quirements respect title. firm abstracters was em- to A ployed requirements. requirements not all to meet such were August, 1922; until and when the abstracts fulfilled some time in accept same, saying, defendant, were tendered he refused to long plaintiffs long.” thereafter, “It been too At some had time deed, tendered which defendant refused. tending plaintiff pos-
There was show that delivered land; the full session to but circumstances part defendant of from the evidence clearly appеars as to this are not shown. land; years a number rented defendant had above men- signing that after the memorandum of key tioned, delivered to defendant. the farm was the house on testimony after the in the deed There is also that fall plaintiffs him, received some tendered to defendant refused testimony money seems land. defendant as rent *4 except* of the land possession to be tо the effect that defendant had of that after refusal part spoken pasture;” also a of “south as the Frank that plaintiff tendered defendant wrote him, the deed Frank (defendant) got it, put key he had where he testimony also ad- it in house. There found the door of the time in the fall mitted, objection, at some over defendant’s distributed memorandum, defendant signing of the owner. printed advertising sale, himself circulars the farm' for a vendee plaintiffs argue that where Counsel for in their brief price, re- purchase possession, pays part takes of the a the case take sufficient property, ceives revenue from it is Owen, v. to Walker Frauds, out of and call attention the Statute of 622; Tatum v. App. Reynolds, 563; Reynolds 79 Mo. Mo. v. 45 Brooker, possession 51 Mo. 148. As to the nature therеfrom, we have stated receipt defendant and the revenue
692 definitely what is shown the evidence as as can determined from the record. decisions,
Under long rule followed line of part performance importance, contract, is not one of serious in the law, and a suit instant case. This is an action at equity. In Nally question of whether Reading, 350, v. 107 Mo. performance part Frauds took the case of the Statute of ivas out fully determined, said, page. considered and at and therein it part 355: equity doctrine of “Whatever be the rule as to the place law, in an at as in performance, that rule has no action present uniformly instance.” followed. That rule has been [Sursa Cash, 403; McInturf, v. 171 184 Mo. App. Aylor App. Mo. l. c. v. 691; Rhodes, 449; v. App. Holloway, Hillis v. l. c. Davis Mo. Cummins, l. c. 108; App. S. W. l. c. v. 178 Mo. 311. Shacklett ] Co., Nally Reigart v. & approval Coal Coke case is cited with 142, Mo. 163. plaintiffs that as Counsel for also contention the laud make the - beforehand, auction, was sold at the advertise was advertised sale, call ment of at the sale formed a of the contract v. Springer Briggs Munchon, 467, tention to v. Klein Mo. sorge, Corpus general as follows. rule is stated agent page Juris, 366: is the both section “An auctioneer making signing a memo purpose the sale by him signed is suffi randum of contract A of sale. memorandum charge purchaser cient to both under the statute the vendor and the contents, frauds, as to provided complete it is and sufficient agency provided signed still con it him a while his at time agency By authority however, “the auc tinues.” the same sо as to bind the enabling sign tioneer him memorandum sale; subsequently him buyer ends with made a memorandum accepts purchaser purpose, insufficient for this unless C. J. sec. the sale.” memorandum otherwise assents to [27 313.] Munchon, Briggs v. Springer Kleinsorge, were
The cases of executed, sale time of the both cases in Avhich auctioneer at the comply Avith agent sufficient to parties, both a memоrandum Briggs the memorandum vras case of Frauds. Statute sale, and it auctioneer, at the time made the clerk of the prefaced auctioneer’s boob. posted in the the advertisement at the sale “lots sold, were sold the'lots advertisement showed situated “on Briggs estate,” subdivision that this of the inter distance west Clayton Road, a short both sides of the *5 roads, half a about mile Clayton section of and Manchester of the Laclede city northeast limits, and a short distance west ” race track subdivision. The memorandum made the auctioneer particular purchased by showed number the lot Munchon. Springer Kleinsorge case of
The was a case which in its facts parallel a case. to the Munchon The auctioneer’s memorandum eye auctioneer, was made his clerk under the of the at the time sale, presence of the in purchaser, of the and showed the lots, price, purchaser. numbers of the and name express memorandum made reference to the fact the auction sale property constituting pur- which subdivision of the lot part. chased a a The advertisement was made memo- randum clear referеnce thereto. positive
In this case the is that the auctioneer himself all, made no memorandum at and that the memorandum heretofore signed by plaintiff set out was Frank made and defendant, days two after This makes the sale. memorandum no reference -to mentioned, advertisement, in not, and is as the cases to, attached sale; part of, or made a the advertisement of the nor did the auc- anything preparation tioneer have do with the of it. to The result foregoing upon of the is terms of that the case turns the memo- case, randum; only and the real in as it now stands, requirements is whether the memorandum meets Statute of Frauds. sold, description
"Where land is a of the land be sold essential validity Frauds; contract, aof under the Statute of but it is generally necessary held that it is not should given particularity be with such a resort to extrinsic as to make evi descriptions unnecessary. variety in dence Out of the infinite general been evolved, volved cases of this kind a few rules have ease. The applied given are to be tests general appears Cye. statement in 20 270: “In sale of lands the land a contract for the must memorandum of a sufficiently identify its own terms or the land definite at the time of reference it to in existence external standards beyond making being capable determined dis contract and Where, pute. appears to its face re however, the memorandum on not be such parcel land, fer to definite need identify entirety aid to to render extrinsic needless a resort to property; sufficient, with the assist enough it is if description be property which evidence, comprehend ance of external fit and subject prop all other the exclusion the transaction to erty. appellation local a familiar Thus of the require which refers sufficient.” to a definite tract Juris, page ment in sec particular Corpus this in 27 is stated can that it tion so described as follows: must be “The lаnd ' writing must disclose with certainty. reasonable *6 description which is itself definite and certain or it must furnish key by may means or which the be made certain the ground. words con- with its location the other the identified note, is parol insufficient where evidence tract, or memorandum is necessary, description, thereof, or supply to determine the agree- subject-matter, the and define the and to show intention and it sufficient subject-matter; the is as ment the as to regards subject-matter where sufficient foundation it furnishes a the apply the admission of extrinsic evidence to particular of land is the of such tract means evidence the may subject-matter agreement and located of the identified exclusion of all others.” Ruling Law,
Another Case applicable rule is thus stated given 649, description is or page “If an insufficient section 282: description, admissible in aid of there is no oral is not memorandum, will receive such evidence because court never description. This land, apply both describe the then Again, Corpus fully applicable is rule to auction sales.” following: “An Juris, page 273, omission of 324, section we find property state, village is county, city, or wherein town, nothing it writing located where contains renders the insufficient may inferred and extrinsic evi- from which the omitted statement distinguished necessary supplying, purpose dence for the however, description. omission, is not applying, from Such an always from which description may facts fatal. The state other certainty to property may with sufficient be located satisfy “'a Again, it has been Stаtute of Frauds.” which refers appellation of the a familiar local citing J. to a C. sec. definite tract be sufficient.” [27 Hall, Anderson v. 188 W. S. 79.] description other than
The memorandum in contains no this case Shy,” T. and it contains C. no that embodied in -words“farm of county state, or any or fact; other no mention external mention place; any or and the num- proximity known town, farm to stated; ber acres number acres calculated nor can the any memorandum, is there reference to contents of nor auxiliary writing. made, memorandum was farm, at time the plain- the four property not the T. C. but was owned Shy. tiffs as the T. No evidence introduced heirs of C. generally as the purpose showing direct known there was farm Shy controversy popularly T. farm, C. the farm in auctioneer, generally Uрon so the direct examination known. T. C. selling he farm known was asked if he “remembered ’" Shy he did. The wit- answered that he Otterville, near if on bis examination he was was also direct ness Dellaven asked Shy farm,” known as he with what is said that “acquainted than that. inquiry farther The advertisement was. The went no he began with the words: “Public introduced defendants of the sale T. Estate of 395-aeres-land-395.” then to Settle C. Sale accompanied with a acres, charac- mentioned thereon, improvements upon acres. Follow- crops ter of *7 known as the C. E. ing that, Messerly “155 acres was the statement: ’’ farm. respective counsel, Among cited suffi numerous cases Springer Kleinsorge, v. Briggs been made of cient mention has Wilson, v. 160 plaintiffs for cite Smith v. Munchon. Counsel Mo. purchaser, specific performance. for 657, which was a suit In was as follows: “Five acres of in that case the land 5-27-20, E. 1-4 Linn Mo.” Co., S. W. corner of N. Sec. This was description. case, In 1. c. it was held to be sufficient that said: fully accurately land not be “The rule is that the need described reading paper. from a paper in the so as to be identified mere writing whereby must afford means the identification But may perfect by pаrol descrip evidence.” The and certain be made -washeld to within that rule. tion therein . App. 12, People’s Bank, description, 31 Mo.
In Parks v. IT. of Charles Parks the receipt, was as follows: “Received sum of my interest, dollars one-half of undivided one-fifth hundred for four by my my to me father.” This of all real estate left or half father, from meaning the lands inherited his Wm. sufficient held subject-matter of the Parks, M. and -within the rule that “the sale standard, to an external may always be reference being however, said, further explained.” be in terms need not must “ascertained from subject-matter or terms that something in it to else.” writing reference itself Snyder 74 Andriano, App. 480, v. Mo. In Black and Crowther damages breach of contract. The was for the suit your joint proposal give equity “$800 in cash for in a to was embodiеd by you us.” This acres of held and one-half land five therein: “The land sufficient, rule as stated need under the actually paper so as to fully described be identified writing paper, but the must reading of the afford the mere from per- vffiereby be made certain and the identification means page 484: parol said, it was at In that case “We evidence.” fect difference, yet any it would be а far- say it would make do not joint equity held a that the assumption, to state fetched Unless we tracts. assume that and one-half-aere than one five more testimony identify, the means they did, afforded parol can mentioned. Extrinsic evidence can particular land paper, 'the proper sugges- description to the apply any paper and without other aid.” in the tions contained App. Sonka, v. 137 Mo. an action Wilcox is called to Attention “my that case for breach of contract. County, Texas.” This was held sufficient on in Linn of 160 acres “my ownership, and theory words farm” denoted also that acres; and, surveyor ownership implied of but one farm Linn go County, Texas, and in hand could locate with contract the land. Cramer, App. Mo. Kriling v.
Attention is called to оccupied by of land now “about 160 acres was, there of the land Cramer, as follows: ‘All south said Milton described except Place, county road, adjoining acres the Thoma ” Thus, was reference several exter- there west.’ north occupied by Cramer nal the land then matters —tlie fact forty county road, adjoining acres except and was all south of the place on north west. the Thoma v. have called our attention Anderson Counsel defendants Kreis, 160; Hall, & Co. v. 307; 273 Mo. Material Mo. Cement Watkins, 436; 423; 143 Mo. John Kelly Thuey, v. White *8 Reigart Co., 343; 142; 217 v. & Mo. Fecht, 185 Coal Coke son v. Mo. Holtzclaw, 519, v. 112 Ringer Mo. 111 Courtney, Fox v. 147: Mo. 249, App. cases, among v. Small, them Mason and other description, land, was of it less, held that “Two hundred acres wherein farm,” L. known as the N. Stewart statement more or without or insufficient. county state, of the 399, S.) Harris, Ky. (N. In L. R. A. Bates there upon sufficiency the of is an annotation extensive of de appellation. scription use of a local Under upon -based the cases there, many to, from the jurisdictions, referred conclusion of the subject-matter is, the of “that where the is annotator evidence, may that, applied of extrinsic it such aid to the parties met, minds of аs which the it property exact would appellation sufficient; sup where local used but that does not ply description, parol admissible, evidence would not be and description would under the be insufficient statute frauds.” In appellation given a considerable number of these cases the local place, explained in the memorandum reference to somе or further characteristic.
In Hall, Anderson v. S. W. the land was gathered telegrams passing to be a series letters and be- place parties, was referred to as “Joe Shel- tween the wherein the Aullville,” farm,” or and as “800-acre farm near Anderson Missouri.” County, as the Lafayette “800-acre in descriptions correspondence referring these as all connected In same farm. that case the was held sufficient. Wit- place containing nesses testified that acres and situated near Lafayette County, Missouri, in popularly gener- Aullville ivas ally Shelby, Anderson, known as or descriptions the Joe farm. The telegrams merged, into which the various letters showed the acres, county and state, number town near which farm was that ease it said situate. Division Two of this course, court, 1. c. was, upon plaintiff 81: “It incumbent contract, subject-matter alleged establish that is, that parties contracting which gen- both were to, reference erally familiarly community by popular known that name appellation Shelby or ‘the Joe farm Anderson farm.’ or She must commonly generally recognized show that it sowas known and readily beyond dispute that name it that could be ’’ upon when ques- so referred to or described. was held that that contradictory tion there was no offered plaintiff. fall memorandum the case at bar and the evidence short certainty mentioned, in the- last shown case majority
indeed in the great to which reference has the eases been made herein, have examined. and most other eases we To necessary sustain the memorandum would to assume from it it “farm Shy” the words of T. C. were used as a local appellation, popu- it was find also from the evidence that larly generally insufficiency is so known. There memo- hold, randum and trial court was evidence, to so and the war- sustaining ranted in the evidence. the demurrer to Ellison, judgment GO., concur. affirmed. Secldon C., PER adopt- foregoing opinion by Lindsay, CURIAM: The ed opinion judges concur. the court. All of the *9 Elijah Railway Sullivan v. St. Company, Louis-San Francisco
Appellant. (2d) S. 735. W. Two,
Division December